Tuesday, May 08, 2007

That dubious Alutrint CEC

by Prof Julian Kenny
Trinidad Express
May 8, 2007

I am sure that Dr Saith has access to top legal advice to support his view that the Government is not afraid of any legal challenge on the CEC granted to Alutrint. After all, the Constitution does charge the executive with the general direction and control of the government of the country. On the other hand Dr Saith by now must be able to recite from memory the oath of office to uphold the Constitution and the law. As a highly experienced legislator he will confirm that when this country signs, accedes or ratifies an international treaty, it does so with the genuine intention of fulfilling its obligations to the international community.

I have written before on the Basel Convention on the Control of Transboundary Movements of Hazardous Materials and their Disposal. This country acceded to the treaty in February 1994, 13 years ago. Despite repeated requests from the Chief Parliamentary Counsel for instructions (Hansard, March 3, 1998) nothing I know of has been done. Perhaps this is deliberate as without the essential domestic legislation the High Court may simply rule that the Basel Convention is irrelevant. Note that in the appeal by Talisman against the refusal of the EMA to grant a CEC for a 3D seismic survey in the Nariva Swamp, the Environmental Commission did not even bother to hear technical arguments. It ruled simply that the EMA violated the right of the company to be heard, that the RAMSAR Convention (wetlands of international importance as habitat for wildfowl), one pillar of the EMA's decision, could not be applied in the absence of necessary domestic legislation.

But to return to the Basel Convention if one reads through the "internationalese" there are two things that stand out. The first is that parties to the convention may not ship hazardous wastes to non-party members. The second is that if a party member wishes to ship to a non-party member it may only do so by the mechanism of a bilateral treaty with the non-party. The United States has not ratified the convention. And notice that the US, having signed it, has not ratified the convention of the International Criminal Court, choosing to seek bilateral agreements - with inducements!

It seems therefore that the position taken by the EMA regarding the spent pot liners, accepting a "draft agreement" between Alutrint and some firm in Arkansas, is clearly in breach of the principles of the convention that we signed, unless, of course, there has been some formal bilateral treaty between the US and this country about which we know nothing. And there is yet another major problem. To ship spent pot liners to the US shipments will have to pass through the exclusive economic zones of other countries party to the convention, requiring their approval. Has this been done? If so, can the EMA give the route and the countries involved? And remember that the spent pot liner issue will only arise five to eight years down the line.

And again, there are relevant issues. There is in law a National Physical Development Plan that was approved by Parliament in 1984. Existing law requires the Minister to secure consistency and continuity in development of policy in accordance with the plan approved by Parliament. When the NEC applied for a CEC for clearing 800 acres of Union Estate it was granted without consideration of the fact that the area was designated for agriculture. The EMA, had it the independence it claims it has, would have been on much stronger grounds for a refusal of a CEC, and in its refusal it could simply have advised the NEC that the matter be referred to the ministry responsible for planning, so that a revised regional plan could be submitted for approval by Parliament after the necessary public consultations and review.

That the EMA does not seem to understand the jurisdiction of Parliament should not surprise anyone. At the Government's aluminium symposium a few months ago the EMA expert on the panel ventured that the Authority preferred to deal directly with applicants on the matter of standards, clearly not understanding that the jurisdiction for final approval of standards belongs to Parliament, not Cabinet, as the jurisdiction for physical planning in law clearly belongs to Parliament. Does the Authority assume that Parliament has no role? If so, why lay water pollution rules and not air pollution and hazardous wastes rules? Notwithstanding the directions given to the Authority regarding standards elsewhere in the Act Sections 26 and 27 clearly establishes the role of Parliament, if even for negative resolution of a ministerial order, which may be challenged with a motion.

Sadly, things are stacked against citizens for regardless of the cause it costs serious money to challenge any Government of Trinidad and Tobago, although governments have been shown to violate constitutional rights and law. Just think back to the Maha Sabha radio licence case, and to the Integrity in Public Life Act that demands fairness, and prohibits favouritism.


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