Class bias raised as court fight over permit to mine in Dry Harbour Mountains starts
Published:Tuesday | May 27, 2025 | 1:44 AM
A judge has warned that the court is “blind” after Bengal Development Company raised class and colour discrimination as possibly influencing a constitutional lawsuit brought by residents seeking to stop mining in a section of Jamaica's ecologically sensitive northern coast.
They are challenging an environmental permit that is critical to the company's planned mining in Bengal, near a protected section of the Dry Harbour Mountains in St Ann.
Bengal's attorney, Abe Dabdoub, made the discrimination claim as the Constitutional Court on Monday began a seven-day hearing of the suit brought against the Government, the Natural Resources Conservation Authority (NRCA), and Bengal. Dabdoub broached the issue while cross-examining Martin Hopwood, a white Jamaican and the first resident-witness.
King's Counsel Michael Hylton objected, arguing the line of questioning was irrelevant. Justice Sonya Wint-Blair, one of three judges hearing the case, echoed the concern, noting that discrimination is not a defence being pursued by Bengal.
Dabdoub said he would not press the point with Hopwood but would “let it come out” during proceedings. He said he was not accusing Hopwood of discrimination but believed the witness should have been able to identify an official linked to Bengal.
Hopwood said he didn't know the official, prompting Dabdoub to insist, “He could have easily said he was a black man.”
Wint-Blair pushed back, saying Dabdoub had not established a basis for raising discrimination and reminded that the court was “blind” with a sole duty to interpret the Constitution.
Dabdoub countered, “Even the court cannot blind itself to the culture,” though the panel appeared unconvinced. Wint-Blair said the questions would not be allowed unless the issue became relevant.
The lawsuit stems from controversy that erupted in November 2020 after it emerged that Prime Minister Dr Andrew Holness, as minister in charge of the National Environment and Planning Agency (NEPA) and NRCA, overturned the NRCA board's decision and granted an environmental permit to Bengal following its appeal.
Former minister Leslie Campbell heard the appeal, but Holness, the senior minister in charge of NEPA and NRCA, signed the outcome. NEPA provides administrative services for the NRCA.
The NRCA had denied the permit in May 2020, citing, among other things, that the proposed quarry would violate the St Ann Development Order and have a “deleterious effect” on the environment and public health. The permit, issued in December 2020, came with 76 conditions.
Eight residents filed a lawsuit in December 2020, arguing that Holness' decision to overrule the NRCA breached or will breach several of their constitutional rights, such as their right to enjoy a healthy environment free from threat or damage. Environmentalists say the area contains an almost untouched dry limestone forest and endemic flora and fauna.
The number of claimants has fallen to six.
Hopwood, during cross-examination, said that despite suing over the permit, he did not know the 76 conditions Bengal must satisfy. This came after he agreed with attorney Annaliesa Lindsay that a permit had been issued.
“Would you agree with me that one of the conditions speaks to other approvals, permits, or licenses that Bengal would need to get to operate?” asked Lindsay, who is representing the Attorney General's Chambers in the matter.
Hopwood replied, “I can't, I don't know … I have not seen the permit myself.”
He acknowledged living within a 2.5-mile drive of the proposed site and said he operates a quarry that he took over around 2007 from a company that worked on a nearby highway.
Pressed by Lindsay, Hopwood admitted that from 2020 to Monday, he had not experienced any dust nuisance. The lawyer suggested that Bengal had not yet started quarrying.
He also admitted that despite a “tremendous dust nuisance” from nearby Discovery bauxite operations, no lawsuit was filed.
“No, we've never really gotten in the court. Probably it's something that we should have done. Over years, we have had many meetings with them,” he said.
Hopwood also admitted that inspectors have flagged a breach at his quarry, which he said is linked to the heavy rains last year.
In his opening remarks, Hylton told the court that the Government has not disclosed the reasons Holness relied on to overturn the NRCA.
He pointed that out as he referenced six "important" documents issued by public bodies, which highlighted various aspects of the decision-making process and how government policy surrounding the mining area shifted.
"One might have thought that the minister's reasons would be one of important documents. It isn't because it's not been disclosed,” Hylton said.
He also cited a letter from the public defender to NEPA requesting Bengal's appeal notice, notes from the appeal process, and the minister's written reasons. NEPA responded, he said, stating the documents “do not reside within the agency” and that the appeal was handled through the Ministry of Economic Growth and Job Creation. The NRCA's written opposition to Bengal's appeal has been disclosed.
Hylton said the case will explore not just the right to a healthy environment but also environmental degradation, a matter often overlooked. He made clear the residents take no issue with the NRCA: “We cast no blame at the NRCA's feet.”
Hylton also pointed to a series of policy announcements from 2023 - 2025. He noted a 2023 parliamentary announcement by the prime minister that 15 ecologically sensitive areas, including Bengal, had been identified for enhanced protection. A year later, in March 2024, he said the Government issued an “overarching policy for Jamaica's protected areas”.
Hylton said the Government notified the public that the prime minister had tabled a Green Paper (the overarching policy document) and that five areas were designated as ecologically sensitive areas.
"For some reason, the 15 went down to five, but Bengal is still included," he said.
Hylton said his firm wrote to the attorney general's lawyers in the case asking whether the policy documents would be disclosed to the court, but received no response. He said in September 2023, one of the residents filed an affidavit disclosing them.
“Finally, in 2025, the attorney general's witness filed an affidavit in which he said that the ecologically sensitive area that the [prime] minister declared does not include the part of Bengal for which the permit was issued,” he said.
Justices Andrea Thomas and Tricia Hutchinson Shelly are also presiding. The hearing is expected to run for seven days.
In April, the Court of Appeal dismissed Bengal's bid to strike out the case. It rejected Bengal's argument that the lawsuit was an abuse of the process and that judicial review, not a constitutional claim, was the proper challenge. The residents argued that judicial review was inadequate for the relief they sought, especially since Bengal could not have been a party in such a proceeding. Among other things, the residents want orders blocking mining in the area, declaring and overturning the permit.
Holness has rejected criticisms, saying his administration made an “enlightened decision” to balance environmental protection with economic development.
The 569-acre property, located off the Queen's Highway between Rio Bueno and Discovery Bay, is owned by Bengal, whose parent company is Jamaica World LLC, a US-based company. Businessman Duane Blake, who has a stake in the company, was present in court on Monday.
It holds over 335 million tonnes of limestone, and Bengal proposed to extract 35 million from 123 acres. Bengal pitched a 20-year project that promises more than $600 million in taxes and up to 100 jobs.
Attorney Daynia Allen is appearing with Hylton. Attorney Karessiann Gray also represents the Government, while Kimberley Myrie Essor is representing the NRCA.