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Northern Jamaica Conservation Association and JET v NRCA and NEPA, Supreme Court of Jamaica, HCV 3022 of 2005
A hotel developer wished to build a 1918 room hotel in Pear Tree Bottom, an area along the northern coastline of Jamaica that is particularly rich in biodiversity and very sensitive from an ecological standpoint. Two non-governmental organizations challenged the decision to grant the environmental permit given to the developer by the Natural Resources Conservation Authority and the National Environment and Planning Agency. The applicants' position was that the authority had acted irrationally when granting the permit and that the Environmental Impact Assessment was so flawed that any decision based on it was unreasonable. Furthermore, they argued that an important part of the relevant information was not placed in the public domain and the public was not informed about this omission.
38. It is now safe to say that consultation of citizens by public bodies and authorities is now a well established feature of modern governance. Sometimes a statute may impose a duty to consult. At other times the decision maker decides to consult where there is no statutory duty to consult. The law now requires that any consultation embarked upon must meet minimum standards. The standard is the same whether the consultation arises under statute or voluntarily undertaken by the decision maker.
39. Lord Woolf explained that consultation is not litigation. Consultation does not require the disclosure of every submission or (absent a statutory mandate) all the advice received. The duty entails letting “those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response”. [...] Lord Woolf accepted the proposition that “adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”
40. It does not follow from this that flaws in the consultation process will necessarily mean that the decision should be quashed. It would seem to me that it depends upon the seriousness of the flaw and the impact that it had or might have had on the consultation process. Consultation is the means by which the decision maker receives concerns, fears and anxieties from the persons who might or will be affected by his decision. These concerns should be taken into account conscientiously when making his decision.
43. The EIA was then disseminated to the public for their comments. The public were asked to submit their comments by March 29, 2005. Mr. Smith said that the document was sent out on March 7, 2005. Miss Lee swore that she did not receive it until March 21, 2005. There is no evidence challenging this assertion and I accept it. This, in practical terms, meant that she had eight days to review a 111 page document which contained graphs, maps, references to literature, statistical and technical information [...] This reduced the ability to secure technical advice if needed. Despite these difficulties, NJCA submitted its own response by April 18, 2005 and a joint response with JET by April 28, 2005. A public meeting was held on April 28, 2005, in Runaway Bay, St. Ann.
44. All this appears to be an example of a public body engaging in consultation. However it had one defect. It is common ground that a marine ecology report that should have formed part of the EIA was not submitted at the time the EIA was sent to the NRCA. The marine ecology report was also missing at the time of the public meeting. In fact, the public, other than perhaps the applicants, still do not know of the marine ecology report. The report has not been exhibited. It is said that this was an oversight. No one knows what effect it might have had on the public discussion. No one knows if a different decision would have been made had it been made public or how it would have affected the public’s understanding of the project.
51. This omission is significant. The area under consideration is agreed to be an area that is an ecologically important area. It is located where two rivers enter the sea. There are mangroves that filter the fresh water that runs into the sea and that helps to balance the salinity of the sea so that marine life suitable to that environment can flourish. [...]
79. The NRCA has published guidelines indicating how public consultation ought to take place. The first level of consultation is that done by those responsible for doing the EIA. When the EIA is completed it is then disseminated for public discussion. The purpose of this is to receive responses from members of the public and interest groups which ought to be taken into account when the decision whether to grant the permit is being considered.
81. On the face of it, it would seem that there was adequate public consultation on the matter. It is accepted that the EIA did not have the marine ecology report as it ought to. The applicants have, since the application for judicial review was granted, learnt of the May and June addenda. It would seem to me that if there is going to be effective public discussion then all the information that ought to be disclosed must be disclosed. This is a legitimate expectation of the applicants.
The court concluded that the order of certiorari should be granted quashing the decision to issue the permit. It also emphasized that consultation of citizens by public bodies and authorities was a well established feature of modern governance and stated that the public had been deprived of participating in a consultation process with complete information, which was even more significant since the proposed project affected an ecologically sensitive area. It therefore instructed the authority to reconsider its decision to grant a permit to the developer.