Tuesday, December 05, 2006

My Lord, I rest the people's case

Prof Julian Kenny
Trinidad Express
December 5, 2006

My Lord, at the end of this trying hearing, which has consumed so many months of your patient attention, it is now my honour to summarise the people's case. This I assure your Lordship can be done in just a few paragraphs. The thrust of my argument is the legality of processes employed.

As your Lordship is undoubtedly aware, Section 75 (1) of our Constitution, while giving authority to the Cabinet for the general direction and control of the government of Trinidad and Tobago, goes on to state "and shall be collectively responsible therefore to Parliament". Our official language is English and the use of the word "shall" is clear - Cabinet is responsible to Parliament.

And My Lord, here is the first point of my argument. A constitutionally appointed Joint Select Committee of our Parliament did formally invite all of the major participants in the smelter issue to attend, give information and answer questions on the issue. Few of the senior persons actually attended, giving dubious excuses, and one even refused to attend. My Lord, I argue that this is a contempt of Parliament, and of the people, and I suggest that had Cabinet so wished, it could easily have instructed its agents to attend and give all the requested information.

My Lord, the second pillar of my submission is that the extant law regarding physical planning development is the Town and Country Planning Act Ch 35:01. It may be true that this Act is obsolete and it is true that during the past two decades desultory steps have been taken to replace it with a more up-to-date law. Ch 35:01 is nevertheless the law of the land, a law that all Cabinet members have sworn on Holy Books to uphold. Section 3 of the Act states unequivocally, when referring to the Minister, that he "shall secure consistency and continuity in the framing and execution of a comprehensive policy with respect to use of all in Trinidad and Tobago in accordance with a development plan prepared in accordance with the provisions of Part II".

I will not burden Your Lordship with the fine details except to note that after more than a decade of preparation and deep public consultation a National Physical Development Plan (NPDP) was prepared by the Minister and submitted for the approval of Parliament, as required by Ch 35:01. This was approved unanimously by Parliament in 1984. The plan was supposed to have been updated by the Minister every five years but no Minister has ever done this in the 22 years since Parliament approved the first plan.

The area currently under threat was reserved for agriculture, forestry and rural development. I argue, your Lordship, that the very least that might be expected in a true democracy should have been a preparation of a regional plan in accordance with the provisions of Ch 35:01 involving broad public consultation and ultimately approval by Parliament. I respectfully suggest that you consider these two important points.

There are very many other points that I could raise, Your Lordship, but I focus only on three. We as a sovereign nation have signed many international conventions, some of which are not forcefully binding and some that are. The United Nations Convention on Biological Diversity is one that simply urges parties to do everything possible to conserve biological resources by various means, including establishment of a system of protected areas.

This obligation is adopted in our recently revised National Environmental Policy. The other treaty of interest is the Basel Convention that seeks to manage transboundary transport of toxic wastes. We signed this 12 years ago. Unfortunately, the treaty requires domestic legislation that has not yet been drafted and it must be noted that we are not permitted to ship wastes to a non-party country, such as the USA, except through bilateral treaty.

The second point I raise, Your Lordship, is that the biota of the south-western peninsula has been demonstrated scientifically to be unique in our country, as unique as that of the Aripo Savannah or the Nariva Swamp, supporting a large assembly of continental species of plants and animals not seen elsewhere in Trinidad. Our National Environmental Policy is unequivocal on conservation of unique ecosystems.

My final point, Your Lordship, concerns the sincerity of the framers of our National Environmental Policy in proposing citizen participation in decision-making regarding the use of the resources in their communities. It states that they should be given the right to participate - there is no ambiguity.

My Lord, as I close my argument for the people, a slip of paper was passed to me by counsel for the other side, even as I address you. May I read it Your Lordship? I may! Thank you Your Lordship. "Trust us, we know what we are doing. Stop being dotish and talking foolishness. Shut Up". Your Lordship on behalf of my clients, the people, I rest their case.


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