Bengal pressing ahead with mining plans

Bengal Development’s quest, which has been backed by the prime minister, to mine in the ecologically sensitive Dry Harbour Mountains is going ahead after the State’s environmental regulator accommodated the late payment of a $40-million bond.

Bengal says it is now awaiting the approval of its mining licence to proceed with the 20-year project that has promised over $600 million in taxes and up to 100 jobs.

The Quarries Advisory Committee has been considering the application that Bengal made for a licence to mine limestone, Commissioner of Mines Roy Nicholson has confirmed.

“It is still being processed. In order for a licence to be granted, it must be … signed by the minister,” he said last Wednesday on the progress of the application. A formal recommendation is reportedly yet to go before Mining Minister Robert Montague.

Bengal’s application is progressing after it indicated that it met a third deadline imposed by the National Environment and Planning Agency (NEPA) for the payment of the performance bond. An environmental permit is required before a mining licence can be granted.

The bond is one of the 76 conditions in the amended environmental permit the NEPA issued in December 2020.

The company had failed to meet two previous deadlines – January 17, 2021 and March 21, 2021 – to pay the bond that the regulator will use to cover the cost of any environmental damage caused by the mining.

After missing the March deadline, Bengal wrote to the Natural Resources Conservation Authority (NRCA), for whom NEPA is the administrator, and sought a further extension, but that was denied, NEPA said.

“Bengal Development Limited/Jamaica World is, therefore, in breach of the permit condition,” said NEPA on March 30, 2021.

The prime minister had declared that he would “shut down” the project if any of the terms of the permit were violated.

However, project spokesman Kashif Sweet revealed to The Sunday Gleaner on December 31, 2021, that the project was continuing.

“We continue to expend our time, financial resources and focus in establishing the mining project in compliance with the 76 conditions of the environmental permit as permitted by NEPA,” said Sweet, the managing partner of Jamaica World LLC, the US-based entity that owns the St Lucia-registered Bengal.

Bengal’s attorney, Abe Dabdoub, subsequently explained that NEPA wrote Bengal on April 30, 2021, giving notice that unless the bond was posted within seven weeks of May 3, the environmental permit would be suspended.

He said the company posted the bond on June 7, 2021, as well as the mining bond, which the mines commissioner said is calculated at US$35,000 per hectare.

“The company has complied with the notice and, therefore, has been continuing with its efforts,” Dabdoub said.

Given the refusal to extend the deadline for payment of the bond in March 2021, it is not clear how the NRCA proceeded to later accommodate the payment.

Questions sent on January 3 to NEPA were not answered up to press time. A spokesperson said Friday that they were awaiting internal feedback before responding to The Sunday Gleaner.

Not interested in relocating

Bengal’s pursuit of mining in the Dry Harbour Mountains also means that the Government failed to entice the company to take an alternative location in order to soothe the concerns of residents and environmentalists.

The outcry was driven by factors including that mining was being permitted in an area that was not zoned for that purpose and with endemic and endangered species.

Montague told Parliament on May 27 last year that the Government had begun talks with Bengal to identify suitable lands with the same or better-quality limestone.

Jamaica Bauxite Mining (JBM) Limited, a government entity under Montague’s portfolio, said Bengal’s Kashif Sweet indicated that the company was not interested in relocating after he was shown one of the Government’s leasing areas in Lydford, St Ann, on May 1.

JBM Managing Director Donna Howe said Sweet did express interest in possibly using a port in Discovery Bay.

But she said she has not heard back from Bengal since the site visit.

Controversy erupted in November 2020 after news emerged that Holness as the minister in charge of NEPA/NRCA used his powers under the law to overturn the board’s decision and grant the permit to Bengal following an appeal by the company.

The NRCA had denied the application in May 2020, stating that, among other things, the proposed development was contrary to the St Ann Development Order and that the quarry would have a “deleterious effect” on the environment and public health.

“The impact and loss of biodiversity and the natural resources of the area in an area of environmental significance and unique biodiversity is irreplaceable and may nullify any trade-offs to be considered,” was also one of the reasons.

In approving the permit, the minister considered submissions, sought technical advice and examined issues including land management, mitigation measures and minerals and environmental enterprises as economic drivers, NEPA told a parliamentary committee.

Holness has dismissed criticisms, arguing that his administration took an “enlightened decision” to protect the environment while ensuring economic development.

The 230-hectare property is located off the Queen’s Highway between Rio Bueno and Discovery Bay and has changed ownership at least three times since the late former Shower Posse gang leader Vivian Blake bought it in 1989.

It contains over 335 million tons of limestone reserves and Bengal is proposing to mine 35 million from 50 hectares.

Meanwhile, the Court of Appeal in December set November 22 this year to hear Bengal’s appeal against a Supreme Court decision in a constitutional claim residents brought against the granting of the environmental permit and for a declaration that mining should not be allowed in the area.

In their suit filed in December 2020, the residents contended that the prime minister’s 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.

The Attorney General, NRCA and Bengal were the named defendant and all three applied for the claim by eight residents to be struck out as an abuse of the process because the alternative remedy of a judicial review of the minister’s decision could have been pursued.

Judicial review not appropriate

But the residents responded that judicial review would only consider procedural issues unlike in a constitutional case where the court examines the merits of the decision to grant the licence.

It was also argued that in a judicial review hearing that the State could determine what information to disclose in a situation where the residents would have the burden of proof. In a constitutional matter under the Charter of Fundamental Rights and Freedoms, the State has the burden of proof.

The residents also submitted that a judicial review application could only be made against the minister and the NRCA and no action could be brought against Bengal.

If the case proceeded as a judicial review matter, the residents insisted, the remedies for the alleged breaches would be limited since the judge could only quash the decision and ask the minister to reconsider Bengal’s appeal using the correct steps.

If they are successful on a constitutional claim, however, the court has the power to order that mining should not take place.

Justice Tara Carr agreed with the residents, noting that judicial review would not be appropriate for their claim.

“The claimants in this case are seeking the court’s protection of their constitutional rights under the Charter. … Further, the claim is also brought against a company which cannot be brought before the court in judicial review proceedings. I am therefore not of the view that this action is an abuse of process,”said Carr in her judgment handed down on April 23, a month after hearing the arguments in chambers.

Bengal has appealed the decision on several grounds, including a claim that the judge erred when she failed to consider that the company had complied with the law, which guaranteed it a right to apply for an environmental permit.

The company also says the judge erred in asserting that the Privy Council has moved away from the view that judicial review is the exclusive route for members of the public to challenge the authority of a public body.

A claim that the residents failed to say how their constitutional rights would be impacted by the grant of the environmental permit as opposed to a mining licence was also among the grounds of appeal.

EDITOR'S NOTE: An earlier version of this story referenced Vivian Crawford as the former Shower Posse gangster. That should have been Vivian Blake. We apologise for the error.

jovan.johnson@gleanerjm.com