Gov’t flip-flop on Bengal mining in Dry Habour Mountains exposed in court

The Government which approved a controversial environmental permit for quarrying in the Dry Harbour Mountains in St Ann in 2020 later blocked its operation, citing “environmental sensitivities” and an impending declaration to enhance protection of the area, according to revelations in a major constitutional court battle.

That about-face, revealed yesterday in the case brought by six St Ann residents, came to light through two letters from the then Ministry of Transport and Mining in 2022. They confirmed that the mining licence for Bengal Development Limited was denied because the area was under consideration for protection.

Those revelations have come in the context of the court being told that the area was later declared ecologically sensitive in 2024, except for the part covered by Bengal’s environmental permit.

The Government’s shift in position was highlighted during the cross-examination of Gillian Guthrie, the chief technical director for environmental policy and management in the Ministry of Economic Growth and Job Creation, which is headed by Prime Minister Andrew Holness.

King’s Counsel Michael Hylton, who represents the claimants, directed the court to the two letters, dated April 25 and June 28, 2022, and their reiteration that Bengal Development’s application to mine in the Dry Harbour Mountains was refused because of the area’s environmental value and a stated government intention to designate it as protected.

The contents of the letters contrasted with the Government’s previous position in 2020, when Holness overturned the decision of the National Resources Conservation Authority (NRCA) board to refuse the environmental permit. The minister has the authority under the NRCA Act. The permit, which was issued with 76 conditions, required Bengal Development to get a quarry licence.

“Approval of the application for quarry licence #2171 was not granted,” acting permanent secretary Dr Janine Dawkins wrote in the June 28, 2022 letter addressed to Kashif Sweet, Bengal Development’s managing director. “The Government of Jamaica intends to create a designation under the Natural Resources Conservation Authority (NRCA) Act for ecologically sensitive areas ... . The Dry Harbour Mountains in St Ann is one such area listed for protection.”

Her letter followed the earlier April 2022 letter, signed by then Permanent Secretary Dr Alwin Hales, which confirmed that in light of this intent, “the captioned quarry licence will not be issued in respect of those lands.”

DENIAL OF QUARRY PERMIT

Dawkins’ June letter was in response to correspondence from Sweet. She also noted that she wanted to clarify that the environmental permit Bengal Development got from NEPA “does not automatically guarantee the issuance of a quarry licence over the lands which are the subject of the permit” and that the denial of the quarry permit was “consistent” with the quarries law that speaks to “preservation of the character of the environment including the fauna and flora”.

Questioned by Hylton, Guthrie acknowledged the quarry licence was not granted but repeatedly stressed she was not involved in the decision and had no knowledge beyond what the letters stated. “I can only go by based on what the letter says … . I wasn’t a part of any discussions between NEPA and the Ministry of Transport and Mining,” she told the court.

Guthrie also testified that although part of Bengal in St Ann had been declared an Ecologically Sensitive Area (ESA) in Prime Minister Holness’ March 2024 budget speech, the specific land covered by the environmental permit was not part of the designation. “It is my understanding that it excluded the permitted area,” she said.

She exhibited a map in court, showing a shaded white area representing the Bengal ESA and an adjacent, separate area marked for mining and quarrying. “They are two separate and distinct areas that do not overlap,” she added.

Guthrie said she could not confirm whether the ecological characteristics of the mining site differed from those of the ESA. “I’m not able to say because this map was generated by NEPA,” she said. “My understanding is that they would have taken into account the characteristics that are outlined in the policy in determining the ESAs.”

Following objections from the defence lawyers, Justice Wint-Blair later pointed out that the characteristics Guthrie referred to applied to the designation of protected areas, not ESAs, based on documents in the case.

Guthrie also clarified that ESAs are policy instruments distinct from declared protected area. “Legally, there is nothing in law for an ecologically sensitive area,” Guthrie said. “What is anticipated is that the minister... has so designated the ESAs, then the agencies will move to protect them under law.”

She noted the 15 designated ESAs are aimed at helping Jamaica meet global conservation targets under the 2022 Kunming-Montreal Global Biodiversity Framework.

CONSIDER ALTERNATIVE

The mining ministry letters also revealed details of efforts to identify government-owned mineral lands in Iron Mountain, St Ann, as an alternative, and suggested Bengal consider other uses for the lands under the environmental permit.

“To maximise the potential of the lands, ... uses other than quarrying can be proposed,” Dawkins wrote. She also acknowledged the company’s concerns about costs incurred to get financing and an environmental impact assessment, and offered to meet with directors “to discuss same.”

Dawkins said “understandably” the refusal to grant the licence “may create economic challenges” for Bengal Development.

As Hylton pressed Guthrie on whether the decision to deny the licence was directly linked to the policy intent to protect the area, defence lawyers objected, insisting Guthrie was not involved with the mining ministry.

Bengal’s lawyer, Abe Dabdoub, lashed out, accusing Hylton of “scraping the bottom of the barrel.” But Justice Wint-Blair rebuked Dabdoub, calling the comment “inappropriate” and directing him to apologise on the record.

“I have no problem in apologising and withdrawing the comment,” Dabdoub said.

Lindsay, who is representing the Attorney General, stressed that Guthrie could not interpret the mining ministry’s letters and it was unfair for such questions to be put to her. The court eventually ruled against Hylton’s question on the licence denial, citing a lack of proper foundation.

Hylton had argued that the lawsuit was not against a ministry and Guthrie was the only witness called by the Government, and it would be unfair to the claimants for them to be blocked from questioning the witness on a document that the parties agreed should be tendered as evidence. Lindsay noted that Guthrie’s evidence came following a request by the claimants.

NEPA, through court disclosures, admitted it has no record of the Prime Minister’s reasons for overturning the decision. Hylton told the court that NEPA said the matter was handled directly by the Ministry of Economic Growth and Job Creation, where Holness sits as portfolio minister.

The resident/property owner-claimants filed their lawsuit against the Attorney General, NRCA, and Bengal Development in December 2020. They claim that the environmental permit allowing mining in the ecologically sensitive area would breach the constitutional rights of residents to a healthy and safe environment, free from degradation of ecological heritage.

A scathing 2020 letter from the Forestry Department had warned that mining in the area would likely result in “total loss of forest cover, species loss ... habitat loss and degradation of the existing landscape.”

In opening her defence yesterday, Lindsay argued that the claimants had not led any evidence showing that their rights were likely to be breached due to the permit, and said damages should not be awarded to them. Wendy Lee, the lead claimant, agreed with Dabdoub’s suggestion that she has tendered no evidence contradicting the environmental impact assessment, which proposed various ways in which the land can be rehabilitated after the quarrying is done.

The trial will enter its seventh day today with Guthrie continuing on the stand.