Bengal dithers

Bengal Development Limited may no longer pursue its controversial limestone mining project in the ecologically sensitive Dry Harbour Mountains in St Ann. The company signalled a possible shift during testimony Thursday in the Constitutional Court, where its environmental permit is being challenged.

Kashif Sweet, managing director of Bengal and head of its US-based parent company Jamaica World LLC, made the revelation as he testified virtually from New York.

“The plans have changed due to the disruption of this case to our mining efforts,” he said. “The company is considering alternative use cases at the current moment for the property, and we will reexamine all possible use cases post the results of this claim.”

Six residents and property owners have brought the case, alleging that the mining permit violates their constitutional right to a safe, healthy environment. The Natural Resources Conservation Authority (NRCA) originally denied Bengal’s permit in May 2020, citing environmental concerns and breaches of the St Ann Development Order. However, Prime Minister Dr Andrew Holness later overturned that decision in November 2020, exercising his legal authority as minister with oversight of the NRCA.

The trial, which began on May 26, concluded its oral evidence phase on Thursday. Final written arguments are due by September 22, after which Justices Sonya Wint-Blair, Andrea Thomas, and Tricia Hutchinson Shelly will deliberate.

PRESSING QUESTIONS

Sweet’s disclosure followed persistent questioning from King’s Counsel Michael Hylton, who represents the residents. Hylton pressed him to clarify whether the mining would destroy forest cover and whether it would ever be reinstated.

“Do you agree that the planned activity – mining and quarrying – by Bengal Development would destroy the forest to get to the limestone underneath?” Hylton asked.

“No, I don’t agree,” Sweet replied.

Asked whether the company could mine without removing the forest, Sweet requested clarification, referencing the comprehensive nature of the project and its included reclamation plan.

Hylton split the question: “Does the first stage – mining and quarrying – involve removing the forest?”

“Components of the forest, yes,” Sweet answered.

“And does the reclamation involve reinstating the ‘components’ of the forest?” Hylton continued.

“That is correct,” Sweet replied.

When Hylton asked what the company planned to do with the area covered by the permit after mining, Sweet revealed the project might not proceed at all, citing the court case’s disruption.

Earlier in the trial, Bengal’s attorney, Abe Dabdoub, had asked one of the resident claimants if they would be satisfied with a housing development instead of a mining operation in the area.

The witness said they were not aware of any housing plans and could not comment.

When pushed to confirm whether forest reinstatement was originally part of the plan, Sweet responded: “The reclamation process is multi-tiered and multi-staged, and so ultimately reclamation was the plan along with the consideration of other use spaces.”

“Does that mean yes?” Hylton pushed.

“It means what I just conveyed,” Sweet said.

Hylton referred to Bengal’s environmental impact assessment (EIA), specifically the section titled ‘Quarry Closure (Decommissioning) and Rehabilitation Plan’, which outlines future development but does not mention restoring forest cover. Sweet insisted the EIA included such provisions but admitted he couldn’t locate the relevant section.

“Unfortunately, I hadn’t memorised that much of the 356-page EIA,” he said.

When the court asked Hylton if would read the section to Sweet, Hylton retorted that the EIA “speaks for itself” and argued that its rehabilitation provisions “do not mention reinstating the forest”.

Sweet also confirmed that the Government had offered Bengal alternative mining lands. A June 2022 letter from the mining ministry advised that no licence would be granted for the Dry Harbour Mountains and offered lands in Iron Mountain, also in St Ann. That letter also noted the Dry Harbour area had been identified for enhanced environmental protection under the NRCA Act.

Sweet acknowledged receiving the letter, along with a March 2022 email from Donna Howe, managing director of the Jamaica Bauxite Mining (JBM), offering 150 acres for potential use, pending geological surveys.

“We can refine the detail once you decide to lease the land,” Howe wrote.

However, on re-examination by Dabdoub, Sweet said the JBM property “ultimately” became unavailable.

“That land ended up not being able to be subleased by JBM because it had a much longer lease by Lydford Mining,” he said.

Although Holness designated part of the Dry Harbour Mountains as ecologically sensitive in 2023, the section tied to Bengal’s proposed mining was not included. The area has a history of quarrying and other human activity.

PREVIOUS USE

Dr Carlton Campbell, the environmental scientist who prepared the EIA for Bengal, testified that parts of the site had previously been used for quarrying, dumping, logging, and bird hunting.

Hylton questioned whether the project aligned with the St Ann Confirmed Development Order, which includes policies UC4 and UC5 that limit development altering topography or harming forest integrity. Sweet defended the project, saying it complied with those policies.

“It is my understanding that our total, comprehensive proposed project was consistent with the pertinent policies,” he said.

Campbell supported that claim but described the policies as “ambiguous” – “in the sense that there’s a national mineral policy, which in my mind, supersedes this (policies)”, among other things.

He also said the permitted area is not homogeneous as it has different kinds of vegetation.

However, under Hylton’s cross-examination, Campbell admitted that only 38 per cent of the 50-hectare (123-acre) site was classified as dry limestone forest. Hylton then introduced a 2020 letter from the Forestry Department asserting that 59 per cent – about 29 hectares – was “tall open dry limestone forest”. Campbell disagreed, calling the Forestry Department’s assessment “incorrect”. He said those discrepancies were submitted to the minister during Bengal’s appeal of the original permit denial.

The EIA explored seven project alternatives, including not proceeding with the quarry. That option would have protected endemic species and preserved ecosystem services but would not have created jobs or provided construction materials. The preferred option, according to the EIA, was to proceed with mining followed by site redevelopment for renewable energy. The document acknowledged, however, that this would cause “habitat loss of the core dry limestone forest and all endemic, rare and threatened species”, despite planned rehabilitation.

The controversy dates back to November 2020 when it was revealed that Holness had overturned the NRCA board’s May 2020 decision to reject the permit. Court documents show the Forestry Department strongly opposed the permit.

Bengal, the NRCA, and the attorney general have all argued that the permit was lawfully granted. They maintain that the residents have provided no evidence of constitutional violations.

Dabdoub has leaned on arguments of proportionality and property rights, stating the residents’ case is “unfounded, speculative, and without merit.”

The NRCA, which did not call any witnesses, argued that it was legally bound to issue the permit following Holness’ ruling.

The attorney general has cited Court of Appeal precedent stating that an environmental permit “engages” but does not violate constitutional rights.

Bengal has pitched a 20-year project that promises more than $600 million in taxes and up to 100 jobs. The proposed mining site is part of 569-acre (230-hectare) property the company owns.

editorial@gleanerjm.com