Government to appeal Bengal mining court ruling that curbed ministerial power over regulators

The Government will appeal a landmark Constitutional Court ruling that struck down a ministerial decision to override an environmental regulator's rejection of bauxite and limestone mining in an ecologically sensitive area of St Ann.

Information Minister Dr Dana Morris Dixon made the disclosure at Wednesday's post-Cabinet press conference in response to a query from The Gleaner.

"We briefly discussed the ruling and it is my understanding that the attorney general's chambers, they will be appealing," she said, before adding: "In terms of the implication of it, we've not been able to go through; I know I, personally, have not gone through the full judgment and that's not been brought to Cabinet for us to look at, what are the implications coming from it."

The court's ruling, delivered by Justices Sonya Wint-Blair, Andrea Thomas and Tricia Hutchinson-Shelly, declared unconstitutional an environmental permit granted to Bengal Development Limited to mine bauxite, peat, sand and other minerals in the ecologically sensitive Dry Harbour Mountains, located between Rio Bueno and Discovery Bay in St Ann. 

Both the permit and the ministerial decision authorising it were ruled "unconstitutional, void, and of no effect." The court declared that the permit was likely to breach residents' rights to  a healthy environment and the protection of their ecological heritage. Dry Harbour is renowned for its unique karst topography, significant underground water systems, and high levels of endemic flora and fauna.

At the centre of the ruling was the October 2020 decision by Prime Minister Dr Andrew Holness, acting as minister responsible for the Natural Resources Conservation Authority (NRCA), to overturn the NRCA's rejection of Bengal's application. 

Justice Wint-Blair, who wrote the main opinion, argued that "this court is not saying that the minister was bound to agree with the NRCA" but "once he chose to disagree with the authority’s considered conclusion, there had to be a clear, evidence-based, reasoned justification for doing so."

The judge noted that there was no document outlining the reasons for overturning the NRCA's decision and that the 76 conditions accompanying the permit do not "transform likely irreversible environmental harm into constitutionally acceptable minimal impairment merely by being attached to the permit".

King's Counsel Michael Hylton, who led the legal challenge on behalf of eight residents, said the ruling carries implications that stretch well beyond the Bengal case.

"It speaks to the limits of executive power. Where does the policymaking and other decision-making power of a minister or government body stop? And what are the limitations?" Hylton said.

He said the judgment set clearer standards ministers must meet when overturning a regulator's decision. 

"You're entitled to come to another view, but you need a good reason - and a demonstrably better reason than the body you're overruling," he said. "And you need to explain the reason to the public, to the affected people, and, if necessary, to the court. That's a really big point."

The residents relied largely on evidence from the Government and Bengal. They include the NRCA's stance against the permit application, objections from the Forestry Department, which warned that Bengal's Environmental Impact Assessment lacked feasible mitigation measures and that no quarry site in Jamaica had been successfully restored through reforestation. Bengal’s own assessment also acknowledged risks, including blasting hazards and groundwater contamination.

Last Thursday's unanimous decision of the Constitutional Court landed in the middle of a national debate over the controversial National Reconstruction and Resilience Authority (NaRRA) bill, a special purpose legislation designed to fast-track reconstruction projects following Hurricane Melissa's devastation.

Critics, including dozens of civil society groups and individuals, and the parliamentary Opposition, have raised concerns about concentrating power in a minister, including giving powers to override regulatory bodies. The bill has cleared the House of Representatives and heads next to the Senate.

Follow The Gleaner on X and Instagram @JamaicaGleaner and on Facebook @GleanerJamaica. Send us a message on WhatsApp at 1-876-499-0169 or email us at onlinefeedback@gleanerjm.com or editors@gleanerjm.com.