Tue | Jan 26, 2021

Abe Dabdoub | Dry Harbour mining deal is all legal

Published:Wednesday | November 25, 2020 | 12:09 AM
Puerto Bueno Mountain, also called the Dry Harbour Mountains, in St Ann.
Puerto Bueno Mountain, also called the Dry Harbour Mountains, in St Ann.
Abe Dabdoub
Abe Dabdoub
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I usually refrain from publicly discussing the cases which I am involved in but must on this occasion. In light of the misinformation and erroneous assumptions of damage to the environment, I set out the facts leading to the filing and grant of the appeal of the decision of the board of the Natural Resources Conservation Authority (NRCA).

The company has, over the past 10 years, expended considerable resources in seeking to obtain a quarry licence in respect to part of the land at Puerto Bueno Mountain (also called the Dry Harbour Mountains) in St Ann, and has been in negotiations with National Environment and Planning Agency (NEPA), who insisted that an EIA report be obtained.

This area (123 acres of the 572 acres) that the EIA considered was arrived at by NEPA in extensive consultations with the relevant stakeholders, which included agencies, St Ann Municipal Corporation and non-governmental organisations. These 123 acres, which involved previously quarried lands, were considered by the stakeholders to be the most disturbed and they were all, therefore, prepared to examine it for quarrying.

The fact that the area was considered disturbed was supported by the vegetation survey which revealed an endemism (ecological state of a species being native to a single defined geographic location) percentage for the proposed site of approximately 10 per cent, which is way below the approximately 30 per cent national endemism percentage.

The area for which the permit is granted is located to the far western side of the property, situated away from the bluff/cliff that has been reportedly referred to in various social media and newspaper articles. The eastern section of the property (towards Noranda Bauxite) is relatively undisturbed and considered an area of interest for plants and animals (confirmed by NEPA fieldwork and the Forestry Department in 2010).

This area will be conserved as outlined in the NEPA permit conditions as the balance of the property (449 acres) will be under a Tree Preservation Order.

An EIA report was painstakingly prepared and submitted to NEPA in May 2019, which it then circulated to the various ministries and agencies involved in assessing the environmental impact of the application to establish a quarry on a part of the property. The EIA report was also circulated to other stakeholders to obtain feedback.

The Mines and Geology Department, on January 3, 2020, recommended approval and is willing to support the preferred alternative involving the project as proposed with conversion into a renewable energy source upon the decommissioning of the quarry operation.

Mines and Geology also recommended that public concerns be addressed through increased public sensitisation forums and community-based stakeholder meetings. They also imposed nine conditions covering noise and dust, sprinkling of roads, road signs, including the rehabilitation of the quarried area to the satisfaction of the commissioner of mines and NEPA. The applicant agreed with these recommendations.

NO OBJECTION

By letter dated January 3, 2020, the Water Resources Authority (the authority on groundwater) offered no objection, subject to their recommendations set out in the said letter, all of which the applicant agreed to.

On January 10, 2020, the Ministry of Health (EHU) offered no objection and recommended that the mitigation measures from the EIA report be implemented at the pre-construction, construction and operational phases and an Environmental Management and Monitoring plan be submitted to the EHU. The EIA set out a framework which the applicant proposed and agreed to.

On February 4, 2020, the Jamaica National Heritage Trust offered no objection to the proposed development. Clearly, the trust did not consider the 123 acres to be part the national heritage.

On February 12, 2020, the National Works Agency gave their approval to the EIA report, subject to the inclusion of 13 recommendations, which have been taken aboard by the applicant.

The Forestry Department, by letter dated February 24, 2020, objected to the proposed quarry and mineral processing activities. The views of the Forestry Department were clearly taken into account by NEPA in designating the 123 acres as a site in a less forested area which had already been disturbed.

On March 2, 2020, the St Ann Municipal Corporation offered no objection and made several recommendations pertaining to drainage and storm water run-off, air quality control, roadways, wastewater generation and disposal, noise nuisance and related applications, all of which have been accepted by my client.

On March 18, 2020, the Office of Disaster Preparedness and Emergency Management (ODPEM), by letter, offered no objection to the proposed development, subject to seven recommendations which were accepted by the applicant.

As can be seen from the above, the applicant company submitted an EIA report which was submitted and approved by all relevant ministries and agencies with their recommendations and imposed conditions.

Environmental and other concerns of the residents, stakeholders and NGOs were all taken into account, recommendations made and conditions imposed for the grant of the environmental permit. The application should, therefore, not have been turned down, and was in fact not turned down by the technical personnel.

APPEAL DECISION

Upon the NRCA board, which consists of persons appointed by the Government, turning down the application, the company decided to exercise its right of appeal, in accordance with the law, to the minister who held portfolio responsibility. Some of the reasons for the refusal to grant the permit were made on a basis which factually did not exist. The appeal was heard in July of this year when the minister reserved the decision pending review and consideration of all the evidence placed before the tribunal.

It is my considered opinion that given the background facts as outlined above, the minister with the portfolio responsibility had no choice but to approve the appeal subject to imposing, as conditions, the various recommendations from the ministries and agencies involved. To do otherwise would have amounted to the perpetuation of a grave injustice, thereby forcing the company to seek the Supreme Court’s intervention in order to secure its rights.

One appreciates the work that the various stakeholders, NGOs and environmentalists do but we all need to understand that in the eyes of the law, we are all equal and have equal rights and opportunities which are all subject to the law. We are all entitled to be treated fairly and without discrimination.

The minister cannot and should not, in good conscience, ignore the evidential facts and act on the whim and fancy of persons who have different agendas, even after their concerns have been taken into account.

Abe Dabdoub is an attorney-at-law with Dabdoub, Dabdoub & Co. Email feedback to columns@gleanerjm.com