Peter Espeut
LAST FRIDAY, Justice Bryan Sykes varied elements of his May 16 decision. He removed two of his orders, the first an order of certiorari which quashed the environmental permit granted to the Piñero Group; and the second the order of mandamus instructing the NRCA and NEPA to begin again the process of issuing the permit.
He heard evidence as to the loss that Piñero would suffer if construction were halted; so he ruled that Piñero fit the definition of an affected third party, and should have been formally served in the judicial review action. So with regard to the environmental permit, he allowed it to remain in place and Phase 1 of the hotel to continue.
Justice Sykes then extended and reinforced his other declarations, namely, that NRCA and NEPA breached their own standards of consultation and failed to meet the legal standard of consultation with the stakeholders; that NRCA and NEPA failed to put the marine ecology report and two addenda to the EIA into the public domain and gave no reason why this was not possible or desirable; that NRCA and NEPA breached their own stated standards of consultation in that they failed to give the public all the information required for them to make an informed decision on the project, and caused the public to deliberate on a document which to the certain knowledge of the NRCA and NEPA was incomplete; that NRCA and NEPA failed to demonstrate that they conscientiously considered the issue of the adequacy of setback raised by the Water Resources Authority; that the NRCA failed in its statutory duty to consult according to law with the relevant government departments and agencies by failing to circulate the marine ecology report to them and particularly to the Water Resources Authority; that there was a breach of the legitimate expectation of the applicants that when they were invited to participate in the consultation that the information provided would be fair, full and accurate.
DEFEAT FOR THE GROUPS
The press has reported this as a defeat for the two environmental groups who brought the action because the hotel construction is going ahead; but this is both narrow-minded and short-sighted, for the legal action was intended as a test case to address the way the NRCA and NEPA has been treating public consultations, EIAs and the granting of permits. The action has resulted in six strong declarations that NEPA and the NRCA are not doing their job properly. This is a tremendous victory for the Northern Jamaica Environmental Association and the Jamaica Environmental Trust and all those committed to sustainable development; NJEA and JET should be profoundly congratulated for they have raised the bar with respect to environmental advocacy.
Justice Sykes' declarations in this case should cause the NRCA and NEPA to change the way they require EIAs to be conducted, how they treat with the findings of EIAs, how they consider comments received from other agencies, and how they deal with public consultations. Agencies entitled to comment on permit applications should feel empowered to say what they really feel, and have it taken seriously. This court case will lead to the conservation of natural resources in the future, and is a famous victory for the environment and a serious loss for the government's environmental agency.
I'm sure there will be other legal actions, and the environmental groups have learnt that in the future they must serve all affected third parties. I wonder what would have happened in this case if the Piñero Group had been properly served?
Peter Espeut is a sociologist and executive director of an environment and development NGO.
