Constitutional Court Says No! Government Loses Again!

追加: 2026-05-09

[00:00:00]The government has lost another constitutional case. This one has to do with protection of the environment. What happened? I'm Dion Jackson Miller. Going to break it down for you. Thank you so much for joining me courtside. It's time for tea.

[00:00:19]So, I have three things to say up front, right? One, it raises serious concerns about the decisions that were made in this case. Two, it exposes what environmentalists have saying for years that political interference in the decision making in relation to environmental protection is problematic.

[00:00:39]And three, it raises serious concerns about the powers under the NAR bill.

[00:00:44]That's the law that the government wants to pass to set up this hugely powerful entity that is going to lead on the post hurricane militia reconstruction work.

[00:00:53]The bill gives huge powers to the CEO as well as to the line minister who is going to be the prime minister. This ruling though is showing us in real time the dangers that can come from giving politicians sweeping powers to ride rough shod over technical experts and regulators in environmental matters.

[00:01:15]Speaking of the environment, remember that's one of my areas of expertise. All right, I studied ecology. I'm also a lawyer. anything to do with the environment, anything to do with law, but really anything cuz I'm versatile like that. And so is my colleague and friend Archable Gordon. He also moderates, he hosts, he does public relations, he does video production, and we both do media training together.

[00:01:36]That's my shameless plug of the day.

[00:01:38]Back to the video. So in short, here's what happened. A company called Bengal applied for an environmental permit for mining and quarrying project on their property was being called the Bengal lands in the dry harbor mountain area of Saint an forestry department say we not agree with this cuz it's going to cause irreversible damage to the forest in the area. The regulator is a natural resources conservation authority, the NRCA, and they said, "Hell no, we not agree with this." Obviously, my words, not theirs. They refused to grant the environmental permit because they said it would cause damage to the environment in the area also to the health of residents. Now, that includes impacting groundwater and air quality. Just in case you tell me, you know, business with bush and birds. Now this happens all the time. Our laws give veto powers to ministers and they do overrule the decisions of technical experts. This time though citizens in the community what the court called a collective of concerned residents said hell no. Now they went to the public defender for help. And from what I hear this could not have happened without former public defender Arlene Harrison Henry. So big her all the way up. The office of the public defender is set up to protect our constitutional rights. Now they can't go court themselves, but they can hire lawyers, what we call external counsel.

[00:03:12]And in this case, they hired constitutional expert and former solicitor general Michael Hilton who went to bat for the citizens. I spoke to one of the citizens who had gone to court, Wendy Lee. So we actually um we appealed to the office of the public defender. That is another that is without the support from the office of the public defender to cover the legal costs. This would not have happened because they are totally um prohibit prohibitive the costs. So I I cannot understate the importance of that and the encouragement, you know, but once we got linked up with our legal team of Michael Hilton and his team, um, we worked things out together. But as I was saying before, we had had a long history of trying to protect this area. And in fact, Northern Jamaica Conservation Association, which I used to be the the executive director on, we had conducted a study jointly with the forestry department of an FAO of the area and had had facts and data on its incredible biodiversity and geology and history of of being, you know, used as a living laboratory. it. We had the facts that clearly showed why the thing the area should be protected. I am very very happy. Um I think that it was the right decision. We have been we've literally been fighting this battle I have for for nearly 26 years from from the first time a quarry was established on that land that was supposed to be protected, you know. And so we we watch as the regulatory agencies keep on entertaining these um ideas, these these applications for projects that are clearly, you know, in conflict with the development order with, you know, environmental conservation. And this is finally with under the charter of fundamental rights and freedoms.

[00:05:27]We we are seeing a judgment that reflects you know the need to conserve our environment.

[00:05:33]>> Now look let's get something clear. The ministry that was involved here is a ministry of economic growth and job creation as it was called at the time.

[00:05:42]The minister is the prime minister. Now the appeal in this case was held by a minister without portfolio in that ministry Leslie Campbell. The PM didn't hear the appeal himself, but he is, as I said, the portfolio minister, and he issued a statement to say he was allowing the appeal. Now, all of this centers on a constitutional right that a lot of people probably don't even know we have. It's the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage. Now, that was put into the Charter of Rights. And that was put into Jamaica's constitution, passed as law in 2011. That's 15 years ago. And this was a new constitutional right that we had not had before.

[00:06:28]Remember though, rights are not absolute, right? Government under certain circumstances can infringe on our rights. what the constitution calls abrogate, abridgeidge or infringe but only if it's again to use the words in the constitution demonstrably justified.

[00:06:44]In other words, they better have a very good reason. The big question here that you're going to hear me ask again and again and again is why would the government ignore its technical experts and regulator who insisted that this development was not a good idea that it would irreversibly harm the environment that it could also damage the health of community members? Why would the expert technical recommendations be ignored?

[00:07:10]Another thing you need to know is that this wasn't an ordinary piece of land.

[00:07:14]Right? In 2000, an area of land between Riaboa in Trilani and Discover Bay in St. An including dry harbor mountain was zoned for special protection under the Saint Anne development order. Now the Bengal lands fall within the Saintan development order and this area that had been zoned for special protection. And the idea here is that the development order had identified parts of the coastline between Rio and Discovery Bay as environmentally sensitive. Right? The special protection was to preserve the area's natural character including vegetation, scenic quality, flora meaning plant life, fauna meaning animal life and scientific value. So look from the getgo then you would expect that this area would have been treated differently and that not every kind of activity would have been allowed here and this happens in every country right?

[00:08:08]Do we need industry? Clearly yes. But you have to balance industrial development and protection of the environment because you have to have some areas of the country where you can say look not everything can go on your s. So Bengal owns land in the dry harbor mountain area. They do mining and quarrying and they applied for a permit to do mining and quarrying on the land there. Now an EIA that's an environmental impact assessment was done by Bengal because NRCA requires it for this kind of development. Residents and other stakeholders objected to the project. The NRCA consulted different agencies, listened to the stakeholders and refused the application in May 2020.

[00:08:50]Now an EIA, an environmental impact assessment looks at environmental pros and cons of a proposed development. It's supposed to say, "Will this create any problems? And if so, can they be dealt with?" All right. So, let's be frank about something. EAS are paid for by the developer. So, you're never going to get an EIA that says, "This is a terrible project. Don't do it. That not going to happen." What you're going to get is a report saying, "Okay, there could be ABC problems. These are the ways we can deal with them so the development can go ahead." And sometimes the regulator has to send back the consultant and say, "All right, this no good. you need to do more of this, more work in this area or this area or answer this question or what have you. So NRCA now refused to grant the environmental permit and that was dated May 8th, 2020. So Bengal then asked for an appeal on May 21, 2020 and they appealed to the Minister of Economic Growth and Job Creation in July 2020. Minister Leslie Campbell, Minister without portfolio in the minister granted the appeal. That means he overturned NRCA's refusal. Then on October 30, 2020, the PM, who as I said is the portfolio minister at the time for economic growth and job creation, issued a letter saying he had decided to allow the appeal and set aside the decision of NRCA. So again when keep asking there's a big question why would the PM ignore the very strong objections from the technical expert and the regulators and insist that this permit be granted. So after NRCA was overruled then they said all right you're going to get the permit but we put on 76 conditions also included an environmental performance bond. An environmental performance bond is when you tell the developer you have to put x amount of money in an account and you can't touch it and if anything goes wrong that money has to be used to try to repair the damage. The 76 conditions had to do with things like protecting fauna, animal life, flora, plant life, air quality assessment, dust control, archaeological protection, water supply, protecting water resources, solid waste disposal, prohibiting burning, quarry restoration and rehabilitation. So what was happening here is that NRCA despite having refused this permit was now being forced to issue the permit. So they added on all these conditions now clearly trying to make the best of a bad situation trying to put measures in place to try to prevent the problems that they foraw would have happened but environmentalists would tell you look once an industrial operation is in place trouble dead right we're very bad at protecting communities exhibit A ribbre and the everlasting ongoing pollution breaches that severely affect the livelihood of the fisher folk who make their living from the Rio Cobra. Just look on that. All right. So, let's look at what some of what came out in court.

[00:11:57]Now, all three judges wrote a ruling.

[00:12:00]The strongest was by Justice Wint Blair.

[00:12:03]She explained that the position of the attorney general was that the minister acted lawfully. also that the court should not lightly overturn a decision from the minister which under the act was supposed to be final. They argued that mining allows for economic development, tax revenue, foreign exchange earnings and employment.

[00:12:24]Now Bengal was saying look they're acting within a lawful industry that permits quarrying. They said it's their land and their property rights should be respected. And to be clear, look, this is not on Bengal, right? Then can't approve them own permit, then can't approve them own development. The questions here are for the minister. I can't say for the government cuz we have two government agencies that stood up strong and said, "Don't do this. It's a bad idea." Now, one of the government witnesses was the head of the government's environment branch. in giving evidence. One of the things she admitted was that Bengal's proposed mining activities conflict with the Saint and development order. Now that's big. What's the point of making these development orders if ministers can just disregard them? Look, government agencies like NRCA get a whole lot of flak. As a matter of fact, let me say that again. NRCA gets unending flak from environmentalists who do not think the agency does enough to protect the environment and to reign in business and industry that pollute the environment.

[00:13:33]So the fact that you see forestry department and NRCA standing so firm on this is remarkable in and of itself honestly and every day think this and you need to hear exactly what NRCA said.

[00:13:48]Why it was a refuses permit? You need to hear what forestry said because that letter that forestry wrote was one of the strongest worded letters I've seen for a long time. They were adamant said this enough for go on. And in part two going to give you those details. Going to be telling you what Forester said, what NRCA said, and also what the court said, and how the court reasoned in coming to its decision that the grant of the permit as well as the action of the minister were unconstitutional.

[00:14:20]But for now, I go and leave it there.

[00:14:21]All right. Comment below. As always, keep it civil. Like the video, share it with somebody who might be interested.

[00:14:26]Subscribe to the channel. Click the notification bell so you know anytime I drop a new video. I'm Dion. Thank you so much for joining me courtside. Gone back to my tea.