15 March 2009

Public Mischief & the Public Interest

John Maxwell

I am fond of quoting the 1954 World Bank Report on Jamaica, where it says, on page 17 I think:

"In Jamaica, absolute ownership of land means in practice, the absolute right of the owner to ruin the land in his own way."

Now, nearly six decades later, the very idea of Jamaica is under siege.

For our rulers, the poor have a duty to be poor, to bear their misery with grace and to shut up and to know their place.

In the last twenty years the transfer of wealth from the poor to the rich has outpaced the rate and volume of the transfers in the same direction over the previous 300 years.

And yet, the poor are told they must make further sacrifices in the name of Development.

During the last 32 years the people of Hellshire, assisted by people like me have been fighting a rearguard action against the Urban Development Corporation, parish councils and various private interests to maintain their rights to develop the only decent white sand beach near Kingston. We have had to suffer bulldozers and official obloquy as well as middleclass squatting, all intended to take away the people's rights.

What rights can they have?

They are fishermen and women. Their children don't go to university.

Over 30 years ago, when I was chairman of the NRCA the staff of the department designed and constructed a little park for people and a sanctuary for manatees at Alligator Hole River in Canoe Valley, near Milk River.

We are now told Canoe Valley must be destroyed to make way for 'Development' – a project to dig down the precious biodiversity and archaeological heritage along with of the limestone hills in the neighbourhood. The hills are to be dug down and to be exported.

Every precious piece of Jamaica is under threat.

A few years ago the Ministry of Housing collaborated with two developers to try to steal part of Hope Gardens for an upscale housing development. When public outrage stopped that little boondoggle, the government solaced the developers with a priceless archaeological site at Long Mountain/Wareika with important biodiversity to destroy. We still have no idea what we have lost there.

The UDC and successive governments have conspired to steal public beaches all along the north coast for the building of environmentally hostile hotels. These projects are destroying the coral reefs and the fishing and tourist attractions based on them. / Spanish millionaires have priority over Jamaican fishermen and consumers, and over Jamaican schoolchildren seeking places to relax and enjoy their country.

A few months ago it was announced that Mr. Michael Lee Chin was about to acquire the last unspoiled beaches in Portland and St Thomas to convert the coastline of southeast Jamaica into a gated paradise for foreigners. It is to have its own international airport and, perhaps, its own passports.

Next door, at Fairy Hill, the UDC is doing its damnedest to steal the Winifred Public Recreational Beach, one of the first to be gazetted under Norman Manley's Beach Control Act.

Enormously rich entrepreneurs in collaboration with the government are planning to convert two thirds of the coast of Trelawny into another gated demesne, from Rio Bueno almost to Falmouth – a paradise for high rolling gamblers. At Falmouth the Port Authority is busy knocking down 500 years of history and destroying unique phosphorescent wetlands to build a project straight out of the South Sea Bubble.

Falmouth is to be transformed into a mall and theme park reserved for foreigners, providing an enormous sewage disposal facility for gigantic cruise ships which are actually self-contained floating resort properties competing tax-free with Jamaican hotels.

In Westmoreland a Dubai-style anti-environmental development is to be built south of Negril and there are no doubt, other exquisite horrors just waiting to be announced.

This week Mr Charles Johnston pronounced sentence of death on Portland. In the parish where the first Tarzan epic was filmed, with lianas strong enough to bear Johnny Weismuller, Mr Johnston announced Portland's destiny. Jamaica's greenest and most enchanting parish is to be stripped, and raped to supply aggregate – sand and stone – to build other paradises, in other places.

When the Jamaican Constitution was being written in 1962, lawyers for the Jamaica Labour Party fought hard for the inclusion of a clause making it obligatory for the government effectively to pay cash for any land it wanted for any public purpose. Effectively, this precluded governments from paying in bonds or other securities and has helped to foreclose the principle of eminent domain – the right of a government to force the owner of private property sell it if it is needed for a public use. The right is based on the doctrine that a sovereign state has dominion over all lands and buildings within its borders.

Pernicious Garbage

According to a column in the Gleaner by Dr Garth Rattray, the Jamaica Bauxite Institute has found a way around the constitution and the law.

Friends of Dr Rattray have been told they cannot subdivide or develop their land because the JBI claims "the land falls within an area reserved for possible future mining and cannot be subdivided."

"The JBI admits that many people unknowingly already own lands that fall into the category of an area reserved as an exclusive prospective (bauxite) mining area. And, the JBI has recently added more properties to their list of reserved areas. They even admitted that there is no notification of this anywhere - therefore, anyone acquiring lands runs the risk of inadvertently buying JBI-reserved real estate."

The JBI's claim is pernicious garbage.

There is nothing in the law or in custom or tradition – outside of a confirmed Development Order that could allow anyone to sterilise private property because it may be wanted for bauxite mining. And Development Orders are public documents – they were not designed for the surreptitious confiscation of private property.

In November 2006, in a column entitled "My Grandfather's Bones" I revealed that "between the Jamaica Bauxite Institute and ALCOA, there has been a plan kept secret for 13 years, to build a million-ton a year alumina refinery in the middle of Jamaica's most ecologically and environmentally valuable real estate in the Cockpit Country.

At that time many people, not simply the environmental/ecological movement, were seriously apprehensive of the massive programme of economic and environmental vandalism being planned by the bauxite interests. In a column in October 2006, I wrote:

"What is planned, whatever the developers say, is nothing less than the total destruction of a priceless resource – for a polluting alumina refinery, the destruction of Rio Bueno harbour and the world-famous coral cliffs above and below the waterline. Below the waterline are corals and an unimaginable wonderland of aquatic life, already threatened by climate change/global warming, and about to be sentenced to death by so-called development.

As we were outraged by the attempted rape of Hope Gardens, five years earlier, so too were we outraged by the planned assault on the Cockpit Country, the Land of Look Behind

Thousands signed petitions demanding the government protect this priceless ecological/geological/historic and cultural treasure

The Jamaica Environment Trust tried to find out from the JBI and the Commissioner of Mines (CMGD) the extent of areas to be mined and areas already mined – information they believed was in the public domain and to which they were entitled – and copies of certificates and other documents demonstrating whether the mining companies had obeyed the law in restoring and rehabilitating mined out land.

The Commissioner of Mines refused to hand over most of the information requested contending that "they [the maps] were not created therefore they do not exist." and that "The ones that were not supplied contained material exempted from disclosure under the ATI Act."

JET challenged the CMGD under the Access to Information Act and the department responded by contending that disclosure … would constitute an actionable breach of confidence –under Section 17 (b) (i) of the ATI Act.

In evidence before the Tribunal, of which I was and remain a member, the Commissioner of Mines himself, one Clinton Thompson, personally contended that the materials in question were "confidential", and "in the nature of trade secrets" and were handled by him in conformity with what he alleged was a worldwide or industry-wide "protocol" regarding such information.

He contended:

"We submit that the information in question is certainly not in the public domain. He amplified this contention by asserting that "It is understood by all parties involved based on long established practice and the highly competitive nature of the mining industry that all maps showing prospective mining activities are confidential and should not be disclosed to the public" and again in para 26 it is contended that the maps represent the time, expense and expertise of the companies and are "valuable intellectual property'" of the company that any reasonable person would consider to deserve the "utmost care and confidentiality."

"It is indeed a reality and a practice of regulatory agencies in the mining industry in Jamaica and worldwide that maps showing the prospective mining operations of bauxite companies must be treated with confidentiality. It is indeed a protocol adopted internationally by regulatory agencies responsible for mining that documents such as these must be kept confidential."

The CMGD had summoned the Attorney General's Department to defend its case. As a member of the Tribunal I was transfixed by these claims and decided to do some research on these matters.

Not a word of truth

What I discovered was astonishing. The CMGD's case was garbage, explicitly contradicted by the Jamaica Mining Law and the Mining Regulations themselves.

There was not a word of truth in the CMGD's contentions. The Tribunal, two of whom were Queens Counsel and former Attorneys General ( one, David Coore, Jamaica's most senior and eminent lawyer) and the Chair, herself a very senior lawyer, were being asked to endorse a fiction, to prevent Jamaicans getting information that they owned and that the law says they are entitled to have.*

Not satisfied with my research, the Tribunal decided to consult the two foremost authorities on Jamaican bauxite law, the head of the JBI, Dr the Hon Carlton Davis and the Hon Pat Rousseau, Jamaica's team leaders in the 1974 negotiations with the bauxite companies.

They agreed with me.

The CMGD's arguments could not be supported by a single piece of evidence.

The CMGD had managed to involve us all in a gigantic wild goose chase, an intellectual Ponzi scheme as it were, where JET, the Attorney General's department, the Access to Information Tribunal itself and all the support services had been assembled in pursuit of a fantasy.

If Mr Thompson had been simply deluded he might perhaps be forgiven. But it is clear that when he spoke of international 'protocols' enjoining secrecy his statements were contradicted by the international bodies to which most mining companies and countries are affiliated.

The world mining industry has spent much of the last two decades devising protocols for the dissemination of information to comply with the recommendations of Agenda 21, the Declaration of Rio, and the worldwide trend towards accountability and transparency for the protection of the public interest and sustainable development.


The International Council on Mining and Metals is a confederation governing worldwide standards in the mining industry. The ICMM "Members Resource Guide" states unequivocally:

"There is also a vital need to provide communities with the capacity and the information to participate knowledgeably in decision-making around minerals projects.…companies will report publicly on their environmental and social performance in a manner that is accountable and transparent and that allows for appropriate participation.

…" If communities and regions consent to mining, there must be ways to verify that the promised benefits do materialize."

We have a serious problem.

Our environment is under threat. For nearly 60 years we have created a number of institutions and laws to protect our interests.

It is now clear that these institutions are not only failing to protect us but some are being used to work against the public interest.

It cannot be in the public interest for the JBI to invent some new procedure which sterilises private rights of property;

It cannot be appropriate for the JBI to be asked to deputise for the Natural Resources Conservation Authority in relation to bauxite mining. Bauxite mines require EIAs and no one has ever heard of any EIA having been conducted re bauxite – yet, if Dr Rattray's friends are to be believed the JBI has decided to allot mining leases which will block development.

It cannot be acceptable for a Government department to attempt to frustrate the public interest by way of fictitious statements and mythical protocols and to waste the time of private people and public servants in the pursuit of such fantasies.

WE need to take action now. The GG's Privy Council, the Public Services Commission, the Attorney General, the Director of Public Prosecutions, the Public Defender and the Contractor General, all in my opinion, need to act on the information in this column.

And Dr Rattray's friends need to hire some high-powered lawyers to get the justice they deserve by filing some multibillion dollar law suits.

Copyright©2009 John Maxwell


*Members of the Tribunal were; Hon Dorothy Pine-Mclarty OJ , Chair; Hon David Coore, QC.,OJ.; Dr the Hon Oswald Harding, Ph.D., Q.C. OJ; Rev Philip Robinson, CD.; John Maxwell, CD.

1 comment:

sanjay said...

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