‘Speculative and without merit’

Bengal Development Limited has dismissed as “speculative” and “without merit” the claims by six residents and property owners that its controversial proposed mining and quarrying operation in the Dry Harbour Mountains in St Ann threatens their constitutional rights to a healthy and safe environment.

Opening the company’s defence in the Constitutional Court on Wednesday, attorney Abe Dabdoub said Bengal has complied with all legal requirements in obtaining an environmental permit and insisted that “none of the procedures that they have taken are inconsistent with the Natural Resources Conservation Authority (NRCA) Act or are in breach, or likely to breach, any of the claimants’ constitutional rights”.

Dabdoub argued that the residents’ assertions lack evidence.

“The claim that the mere grant of an environmental permit, without more, breaches their constitutional, or is likely to breach their constitutional rights, is unfounded, speculative and without merit,” he told the panel of justices, Sonya Wint-Blair, Andrea Thomas, and Tricia Hutchinson Shelly.

Bengal’s case is supported by the testimonies of Campbell and Managing Director Kashif Sweet, and its lawyers are banking on the Charter of Fundamental Rights and Freedoms to protect its property rights.

“We feel that the courts, even if they find that perhaps the claimants’ rights are likely to be breached, they ought to apply the principles of balancing and proportionality,” Dabdoub said. “Your rights are protected to the extent that they do not interfere or prejudice the rights of others.”

CLAIMS ‘UNWARRANTED’

Meanwhile, the NRCA, which did not call any witnesses, closed its defence with remarks from attorney Kimberley Myrie Essor. She said the reliefs sought by the claimants are “unjustified” and “unwarranted”.

She said no evidence was put forward to show how granting the permit breached, or is likely to breach, the residents’ rights. She added that the agency had a legal obligation to issue the permit after Prime Minister Dr Andrew Holness overturned the NRCA board’s original refusal.

The NRCA board denied Bengal’s application for an environmental permit in May 2020. The company appealed and Prime Minister Dr Andrew Holness overturned the NRCA’s decision and granted the permit in November 2020. It was amended a month later and finalised with 76 conditions.

The six residents filed a lawsuit in December against the attorney general, NRCA and Bengal Development, claiming that the permit breaches, or is likely to breach, their rights to a safe and healthy environment, free from degradation of ecological heritage.

Attorney Annaliesa Lindsay had opened the attorney general’s defence on Tuesday, saying they’ve adopted the Court of Appeal’s observation that the environmental permit “does engage (as distinct from infringes)” residents’ constitutional rights, but that this did not mean their rights had been violated, and that this would have to be proved at trial. She told the court that the claimants have failed to show that any such rights were breached or likely to be breached.

Wednesday started with further cross-examination of Gillian Guthrie, chief technical director in the Ministry of Economic Growth and Job Creation, from King’s Counsel Michael Hylton, attorney for the residents.

Hylton pressed Guthrie on the scope of the environmental permit issued to Bengal and its comparison to the quarry licence granted to Anne and Martin Hopwood, two of the claimants whose business is near the area that Bengal has been permitted to mine. Anne Hopwood had agreed with the defence that her expired quarry licence was less stringent than Bengal Development's environmental permit. 

Guthrie, who is not a geologist but holds expertise in environmental chemistry, admitted she could not speak to the type of limestone found in the area. But she agreed with Hylton that quarrying usually refers to surface-level extraction, while mining is the extraction of material below the earth’s surface.

She acknowledged that while both permits relate to limestone extraction, Bengal’s explicitly authorises “drilling, blasting and mining of the limestone rock”, a more expansive operation than the Hopwoods’ licence, which does not include those activities.

Bengal Development’s attorney objected to the comparative questions, arguing that it was unfair to ask Guthrie to compare a quarry licence with an environmental permit. However, Hylton countered that the defence lawyers, including Daboub, had used the same documents to compare and suggest that Bengal’s permit was stricter than the Hopwoods’.

The court ruled against the objection.

Hylton also drew attention to the St Ann Development Order, which outlines land use policies for the parish. Guthrie agreed that Bengal’s proposed site falls within an “underdeveloped” coastal area and agreed that policies UC4 and UC5 – which restrict development that would significantly alter the topography or affect forest integrity – appeared to conflict with Bengal’s proposed operations.

BREACH OF POLICY

“Bengal’s development would not be in keeping with policy UC4 and policy UC5,” Guthrie stated, after being asked whether she agreed with a statement in the NRCA’s May 2020 letter to Bengal advising of the denial of their environmental permit. The letter included a line that said “the proposed development is contrary to and not in keeping with the provisions of the St Ann Confirmed Development Order, 2000 ... more specifically, policies UC4 and UC5.”

The court questioned Hylton on whether her expert opinion was being sought, given that her expertise was in environmental science, which was unrelated to the issue. Hylton said he just wanted her view, having read the letter and the development order.

Under re-examination by Annaliesa Lindsay, the attorney representing the attorney general, Guthrie indicated that the quarry licence and the environmental permit were issued under two different laws. She also indicated that she did not see the NRCA’s letter before retaking the stand on Wednesday and had nothing to do with its production.

Dabdoub’s defence opened with its first witness, environmental scientist Dr Carlton Campbell, who is testifying from the United States.

Campbell, the managing director of C.L. Environmental Co Ltd, worked on Bengal’s 2019 environmental impact assessment.

Asked by Hylton to clarify the size of the permitted area – what the environmental permit covers – Campbell confirmed it was 50 hectares, inclusive of a 100-metre buffer zone. He acknowledged that a previous mining operation on the same land was approximately six hectares.

Hylton confronted Campbell with a November 2020 statement from the Office of the Prime Minister, which quoted Holness saying “mining has only been permitted on the disturbed marginal areas of the land which already have been mined”.

Hylton suggested the statement was inaccurate. But Campbell said that interpretation was wrong, arguing that ‘disturbed’ included not just prior mining, but also activities like cattle-rearing, logging and bird shooting.

The senior lawyer then asked Campbell whether ‘which has already been mined’ in Holness’ statement meant ‘bird shooting’. Campbell then said the statement was incorrect, even as he insisted that ‘disturbed marginal areas’ included more than just mining.

Dabdoub objected to Hylton’s framing, accusing him of cherry-picking from the statement to support his argument. Justice Wint-Blair sided with the objection, cautioning against a question that could lead to more than one interpretation.

Hylton agreed to rephrase and proceeded to have Campbell confirm both the total permitted area (50 hectares) and the size of the previously quarried area (six hectares).

The trial, which started on May 26, is expected to conclude today.

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