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Sand mining permit the result of a successful appeal

Peter
Knight

Wednesday, July 12, 2017

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The National Environment and Planning Agency (NEPA) takes note of media coverage of the recent decision by the minister with responsibility for the environment to permit sand mining at Duncan's Bay. It is our view that the issue deserves a measured response, not only to clarify the decision of the portfolio minister, but to underscore the legislative provisions that guides a minister's decision on an appeal.

It is useful to provide the context in which the aggrieved applicant — Duncan's Bay Development Company Limited (DBDC) — arrived at a decision to appeal the decision of the Natural Resources Conservation Authority (NRCA), whose decision was taken on the recommendation from the NEPA subsequent to its review of the application. We wish to establish the circumstances beginning from the application and accompanying environmental permit refusal to the final decision by the minister.

The application to the NRCA for an environmental permit for mining and quarrying of sand was received November 6, 2015; processed and considered by the Technical Review Committee (TRC) at its meeting held January 5, 2016. The TRC recommendation was placed before the full board of the NRCA on January 19, 2016. The recommendation from the TRC was supported by the NRCA and the environmental permit refused. The decision was communicated via letter to the applicant February 12, 2016.

The decision of the NRCA is not final. This is reflected in the present circumstance where the NRCA's decision was appealed to the minister with responsibility for the environment.

Section 35 of the NRCA Act makes provision for an aggrieved applicant to exercise his right to appeal. The section states: “Subject to the provisions of this section, an aggrieved person may appeal to the minister against a decision of the authority in relation to a permit or licence and the appeal shall be made in writing within 28 days of the date of the decision or within such further period as the minister may in any special circumstances allow.” On hearing the appeal the minister may:

(a) dismiss the appeal and confirm the decision of the authority;

(b) allow the appeal and set aside the decision;

(c) vary the decision; or

(d) allow the appeal and direct that the matter be determined afresh by the authority. Also, “and the minister's decision shall be final”.

Section 35 further defines “an aggrieved person” as a person “who has been refused a permit or a licence or who objects to the terms and conditions subject to which a permit or licence is granted; or who is the holder of a permit or licence and who objects to a decision of the authority in respect of such permit or licence”.

It is useful that the public be provided with a basic understanding on how the appeal process works. Once an appeal is received, the process to prepare and submit all relevant information on the application begins. This is followed by preparing a compendium of briefs which are circulated to all parties to the appeal, including the aggrieved person or applicant. On the day of the appeal hearing the minister is generally supported by teams drawn from the Attorney General's Chambers, senior technical staff from the Ministry of Economic Growth and Job Creation, the respective regulatory agencies involved — in the instant case, NEPA and Mines and Geology Division (MGD) — and representative from the municipal corporation. The aggrieved appellant was present along with his attorney and technical advisers.

In the instant appeal the minister, on hearing the appeal, exercised his authority and “varied the decision” of the NRCA and mandated the inclusion of robust additional conditions derived from the appeal process. The appeal's process was intense. It saw the entry of new technical information and documentation to the process, which the minister was forced to hear.

Subsequent to the formal hearing teams from the technical agencies — the NEPA and the MGD — were mandated by the minister to undertake a site visit to verify the veracity of the “new” information and to report its findings. The report verified that the area contained large quantities of retired carbonate beach sand which could be mined, provided that it would be done in accordance with MGD guidelines, the NRCA stipulations, and outside of the known turtle nesting season. It is noteworthy that the aggrieved applicant had prior to the application obtained a quarry licence from the MGD.

In fact, the concerns of the residents and other stakeholders weighed heavily on the minister's mind and influenced his decision to instruct the site visit and assessment that would guide the final decision to be determined. This was so since the minister heard arguments regarding complaints and concerns from residents of sightings of turtles along the beach, the accompanying noise, and impact on the existing amenities enjoyed by the neighbourhood.

The minister, having considered the appeal and the findings of the site assessment report, decided to vary the NRCA's decision and instruct that robust conditions be formulated jointly between the MDG and the NEPA to allow for protection of the surrounding environment, citizens protection, and restricted mining and quarrying at the location. The environmental conditions were prepared within those guidelines and form the basis for the minister's approval. The conditions issued by the minister are clear. We are confident that readers will conclude not only that due process was followed, but that the conditions were of such to protect the environment, the residents and the wildlife species.

It is true that, in the past, the NRCA had approved environmental permits for the DBDC, under different circumstances, to mine sand at Duncan's Bay, Falmouth, Trelawny. It is also true that the mining and quarrying activities then challenged NEPA and the MGD to expend scarce resources to enforce compliance with earlier approval(s).

Finally, no mining has taken place, despite the ministers decision, for the simple reason that the DBDC finds the terms and conditions to be restrictive and burdensome.

Peter Knight is chief executive officer of National Environment and Planning Agency. Send comments to the Observer or peter.knight@nepa.gov.jm.

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