Re: http://newsday.co.tt/news/0,156832.html
wherein
it's reported that Dr. Joth Singh, head of the Environmental Management
Authority [EMA], begged for the EMA to be excused over its failure
personally to intervene and stop the rape of the Asa Wright slopes
because, in the EMA's view, quarries of less than 150 acres (60.7 hectares) were removed in 2007/2008
from the CEC process and, in any case, the operations of quarries do not fall under the jurisdiction of the EMA:
It
is my considered view that Dr. Joth Singh and the EMA are wrong. They
are wrong because the law establishing the EMA gives them jurisdiction.
It's worth noting that law needed a special majority -two-thirds- to be
passed.
Here are my reasons:
(i.) Some laws are not written [common law]; some are written [statute/statutory law]; common or statute, every law is made for a purpose, else it won't be respected and its continued existence won't be allowed.
If the need arises, the purpose of any common law would be explained
by asking the appropriate court of law. However, in statute law, such
purpose is perspicuously stated up front -in the introductory part
called "the preamble".
If there's no preamble, or the preamble is muddled,
then the purpose can be easily gleaned by reading the law itself together with the record of the relevant Parliamentary debate [Hansard report].
(ii.) The EMA is a statutory authority -having been created by
Parliament via the statute law called the "Environmental Manangement
Authority Act" [EMAA]:
Section
6. (1) There is hereby established a body corporate to be known as the
Environmental Management Authority, which shall be governed by a Board
of Directors consisting of the persons appointed in accordance with this
section.
(iii.) The EMAA clearly states that the Government of Trinidad and Tobago [GORTT] must strictly adhere to it's provisions:
Section 3. This Act binds the State.
In other words, in exercising any power they may have, whether under the
EMAA or otherwise, no GORTT official -from Captain to Cook- or GORTT
agency may deviate either from what the EMAA says and from what the EMAA
intends.
(iv.) The EMAA is littered -pun intended- with provisions which
individually and collectively confirm the EMA has been given full
oversight and the final say of how and to what extent TT's environment
and natural resources may be used, with such provisions being genesissed
not on anyone's partisan ramblings, rather on the very EMAA's
preambles, particularly these:
- WHEREAS,
the government of the Republic of Trinidad and Tobago (hereinafter
called “the government”) is committed to developing a national strategy
for sustainable development, being the balance of economic growth with
environmentally sound practices, in order to enhance the quality of life
and meet the needs of present and future generations:
- And
whereas, management and conservation of the environment and the impact
of environmental conditions on human health constitute a shared
responsibility and benefit for everyone in the society requiring
co-operation and co-ordination of public and private sector activities:
- And
whereas, while several public authorities and other institutions have
been performing various environmental functions and services under
existing laws, there is need for a coordinated approach to ensure the
application of those laws is consistent with the government’s
commitment:
- And
whereas, sustainable development should be encouraged through the use
of economic and non-economic incentives, and polluters should be held
responsible for the costs of their polluting activities:
- And
whereas, in furtherance of its commitment, the government is
undertaking the establishment and operation of an Environmental
Management Authority to co-ordinate, facilitate and oversee execution of
the national environmental strategy and programmes, to promote public
awareness of environmental concerns, and to establish an effective
regulatory regime which will protect, enhance and conserve the
environment:
- And
whereas, for the purpose of supporting and strengthening the role of
the said Authority, the government is also undertaking the establishment
of the Environmental Commission which would be endowed with the power
to enforce the policies and programmes of the Authority:
(v.)
Nowhere in the EMAA is any Minister, on his own, given any power to
exempt any person from being under the ongoing scope of the EMA. Indeed,
the only place where any person is exempted is in Section 7. of the Act
-and that Section deals with noise pollution emanating from religious,
domestic, entertainment pursuits and the like, certainly not from
quarrying.
It's no use rebutting that the Minister can, because of what Section 5. says:
"The
Minister may from time to time give the Authority directions of a
special or general character in the exercise of the powers conferred and
the duties imposed on the Authority by or under this Act"
for,
as argued in (ii) above, the Minister, being a living embodiment of the
GORTT, is inextricably bound by the spirit of the law as well as the
script, therefore, in exercising his lawful power, cannot do it in a
manner which utterly exorcises the spirit. Proof of that last taste of
the pudding is found in Section 96. of the EMAA, which provides:
(1)
The Minister may make Regulations prescribing matters required or
permitted by this Act to be prescribed, or necessary or convenient for
carrying out or giving effect to this Act.
Notice
it said "for carrying out or giving effect to". It didn't say "for
frustrating or rendering ineffective". Which is a good comment by which
to introduce the next argument.
(vi.) Law is a sedimentary thing -if its foundations are undermined, everything thereupon-based
shall crumble, like the Walls of Jericho on day seven. Seeing that, in
trying to clear the EMA from blame, Dr. Joth Singh doth sing of there
being no need for a Certificate of Environmental Clearance [CEC], it
is necessary then to see precisely what the EMAA says concerning the
CEC business. For that, let's go to Section 35. of the EMAA:
(1)
For the purpose of determining the environmental impact which might
arise out of any new or significantly modified construction, process,
works or other activity, the Minister may by Order subject to negative
resolution of Parliament designate a list of activities requiring a
certificate of environmental clearance (hereinafter called
“Certificate”).
(2)
No person shall proceed with any activity which the Minister has
designated as requiring a Certificate unless such person applies for and
receives a Certificate from the Authority.
(3) An application made under this section shall be made in accordance with the manner prescribed.
(4) The Authority in considering the application may ask for further
information including, if required, an environmental impact assessment,
in accordance with the procedure prescribed.
(5) Any application which requires the preparation of an environment
impact assessment shall be submitted for public comment in accordance
with section 28 before any Certificate is issued by the Authority.
Wheel! Did it properly register on you what's written in Section 35 (1)? If not, then let me restate it:
(1)
For the purpose of determining the environmental impact which might
arise out of any new or significantly modified construction, process,
works or other activity, the Minister may by Order subject to negative
resolution of Parliament designate a list of activities requiring a
certificate of environmental clearance (hereinafter called
“Certificate”).
In
other words, Section 35 (1) of the EMAA clearly has no bearing in mea
ex culpa the EMA may proffer. Why? Because a CEC speaks to the future
not to the present or the past -it is applicable only to determine what
might arise, not to determine what exists or has arisen because of past
or ongoing activities!
(vii.) Such argument is more easily understood if one takes the
ministerial action of removing or exempting of certain activities to be
what it really is -tantamount to giving any person wishing to undertake
an exempted activity a pre-approved CEC, nothing more, nothing less. To
conclude otherwise is also to conclude the role of the EMA is functus
once someone obtains a CEC, in which case, the law would be an ass,
which it isn't.
Therefore, CEC or no CEC, as far as the relevant law is concerned, the EMA was spiritually and scripturally wrong
when it failed to carry out its statutorily-mandated duties in the face
of the clear and present danger posed by the rampant quarry near Asa
Wright Nature Centre, since the EMAA perspicuously provides:
Section
25. Whenever the Authority reasonably believes that... any...
environmental condition, presents a threat to... the environment, the
Authority may, after consultation with the Minister and in co-ordination
with other appropriate governmental entities, undertake such emergency
response activities as are required to protect... the environment,
including—
(a) the remediation or restoration of environmentally degraded sites;
(b) the containment of any wastes, hazardous substances or environmentally dangerous conditions; and
(c) such other appropriate measures as may be necessary to prevent or mitigate adverse effects on...the environment.
(viii.) It being accepted that:
a.
where an institution is required to take action after consulting with
another person, such consultation shall not only take place, but take
place in an atmosphere of good faith and,
aa. when such consultations are finished, the institution shall give serious consideration
to the views of such person, then decide how to act, but act it shall;
and thatb. "whenever" means "at any time",
I rest my case.
