10 January 2010

Walls Within Walls

John Maxwell


First- full disclosure: Butch Stewart has been a friend of mine for a very long time and I was a buddy of his dad's – Gordon Sr – when he was the founding Chief Engineer of the Jamaica Broadcasting Corporation. We haven't always seen eye to eye, except perhaps mostly on the environment and even there we have had some serious disagreements. Butch is also the owner of the Jamaica Observer in which my column has appeared for more than a dozen years.

All this to explain that while Butch has never tried to tell me how to write my column, I am presuming to advise him how to run his business. Butch's hotel chain, Sandals has applied for planning permission to erect some over-water rooms on an artificial island off Montego Bay.

Butch had no planning permission to create the island, but that was a long time ago.

It is my considered opinion that these over-water rooms are a bad idea and I hope Butch abandons his application for permission to build them.

•    They provide a bad example to less scrupulous and less intelligent 'developers' who are intent on reworking the geography of Jamaica;

•    They defy logic and wisdom in an area where strong 'Northers' – storms – are prevalent in the winter tourist season and an 'accident' will bathe Sandals and Jamaica in the sort of publicity we cannot afford;

•    Butch should remember Hurricane Allen which came ashore on the north coast shortly after he went into the hotel business. Allen made matchwood out of the Trident, a solidly built hotel on a cliff, not at sea-level. Allen's storm surge wrecked San San lifting the upper story of one house 18 feet above ground level and leaving it on the parochial road to the Blue lagoon

•    At Galina, near Oracabessa, Allen lifted an enormous rock weighing several thousand tons off the seabed and onto the road 30 to 40 feet above sea level. A pretty solid little cottage between the rock and the place it came to rest was atomised and the two old ladies who lived in the house were never seen again.

•    I was a little boy in Duncans when the 1944 hurricane came through. Among that hurricane's feats was the lifting of the perimeter verandah of the Eldon Great House and depositing it hundreds of yards away in a coconut walk in Harmony Hall/Georgia.

Not another Pear Tree Bottom?

    Several years ago some of us noticed that a Company called Tankweld had created an enormous unsightly stone-crushing arena on land at Pear Tree Bottom. A few years later we noticed that the public road was diverted at great expense, apparently on the orders of the Great I-Nyam, and since most of us had said nothing about Tankweld's visual disaster nor about the road, we were soon greeted by news that a Spanish hotel was to be built there by the Pinero Group.

Despite protests and a court case launched by some brave women (mostly) led by Wendy Lee, the hotel was built. The hotel's sewerage was reaching Pear Tree Bottom beach as I documented in these pages. The enterprise was allowed by some lunatic bureaucrats to inject sewage into the limestone aquifer, which means that by the time the hotel's incentives run out the land will be good only for tumble-tu'd' beetles and other coprophagic life-forms.

And then to everyone's surprise, in 2008, Mr Pablo Pinero declared his outrage at the decision of NEPA/NRCA, to stop him from concreting even more of the coastline in the interests of his bank account.

As I said at the time, the NRCA had, up till then, managed to foul up almost every aspect of the regulation of the hotel including – the EIA, the fact that the hotel is built on a public beach, illegally, and the inadequate sanitary arrangements and other environmental protections which ought to have been built into any permit for any hotel anywhere in the world, but especially in an environmentally sensitive and important Jamaican wetland, fronting a world famous and scientifically important coral reef.

Since then on the south coast of Jamaica, largely unspoiled, people are starting to spoil things, with a vengeance

Some time ago elements of the Bicknell family, owners of Tankweld, have built on the south coast, something even more hideous than any of their stonecrushing enterprises on the North Coast.

This excrescence, this wanton insult to civilisation and culture sits athwart the beach at Great Bay, Treasure Beach, about 9,000 tons of river stone (quarried under what licence) and placed to cock a dirty snook at the public interest and whatever else its builders may have chosen to insult.

The problem with this wall is not simply that it desecrates, defiles and devalues one of the last tranquil places in Jamaica; it is that it is so monumentally ugly, so devoid of any hint of an aesthetic sense, so vehemently and virulently hideous that it could provide an icon for some plague, some noxious affliction meant to torment and terrify frail humanity.

Its size is intended to impress, to overwhelm and oppress and if there were two of these monstrosities side by side one could easily imagine oneself in the anteroom to hell itself – "Abandon Hope, All Ye Who Enter Here" or, alternatively, "Arbeit macht Frei""

But I don't wish to examine the existential meaning of the wall. What concerns me is the ancient doctrine of prescriptive right.

Under the Prescription Act 1882 as amended by Act 65 of 1955, the Beach Control Act:

"4.1 When any beach has been used by the public or any class of the public for fishing, or for purposes incident to fishing, or for bathing or recreation, and any road, track or pathway passing over any land adjoining or adjacent to such beach has been used by the public or any class of the public as a means of such access to such beach, without interruption for the full period of twenty years, the public shall, subject to the provisos hereinafter contained, have the absolute and indefeasible right to use such beach, land, road, track or pathway as aforesaid, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."

That seems to me to be perfectly clear, as it should be, having been drafted by N. W. Manley himself.

Although termites have been eating away at the Beach Control Act for years, they fortunately ignored the Prescription Act, possibly out of ignorance.

The situation in my non-lawyer's opinion, is that no land below high-water mark in Jamaica may now be claimed by any private or public entity. That is to say, apart from designated licenced private beaches adjacent to houses, and the public recreational beaches including those attached to hotels with licences older than 1993, there are no beaches in Jamaica over which any entity or person, whether the Universal Devastation Conglomerate or Mr Vin Lawrence or his heirs and successors, can legally claim hegemony of any kind. The UDC's attempt to steal Winnifred Beach or any other attempt to compromise the public interest in any form, is ultra vires and null and void

Now and then I wish I had followed my father's wishes, that I should become a lawyer, like Mr Manley. Even if I hadn't become a lawyer like Manley, but just another lawyer, I would now be making life unbearable for those who trample on the public interest and human rights.

If the Spanish hotels are to attempt to colonise Treasure Beach we now have a new weapon. The EPAs we signed under duress with the EU now allow poor litigants like me access to the European Commission for Human Rights where such enactments as the Aarhus Convention apply. That convention gives us the rights our constitution and laws such as the NRCA act say we have but sometimes can't find.

The Aarhus Convention according to the UN Economic Commission for Europe, " is by far the most impressive elaboration of Principle 10 of the Rio Declaration, which stresses the need for citizens' participation in environmental issues and for access to information on the environment held by public authorities." These principles, believe it or not, are also enshrined in the Jamaican NRCA's guide to the conduct of Environmental Impact Assessments.

"The Convention adopts a rights-based approach. Article one, setting out the objective of the Convention, requires parties to guarantee rights of access to information, public participation in decision-making and access to justice in environmental matters.

It also refers to the goal of protecting the right of every person of present and future generations to live in an environment adequate to health and well-being, which represents a significant step forward in international law." (United Nations Economic Commission for Europe http://www.unece.org/env/pp/contentofaarhus.htm)

Mr Tufton and the Spaniards

    As I reported last week, the Spaniards are handing over to the Minister of Agriculture, about half a million US$ for a Centre of Excellence or perhaps a nice little agronomy lab. As Dr Tufton is also the MP for the Treasure Beach area, I really hope that my criticising the Spaniards has not queered his pitch with these eminent benefactors.

Copyright ©2010 John Maxwell jankunnu@gmail.com

1 comment:

Bruce said...

AMEN, Squire, AMEN!