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A COMPLAINT by the Environmental Management Authority (EMA) over the Tobago House of Assembly’s failure to get the requisite approvals to start roadworks for the Shirvan/Store Bay Local Connector Road at Friendship Estate, Tobago, will proceed in the High Court.
On Thursday, Justice Frank Seepersad dismissed the THA’s objection to the High Court proceeding with the EMA’s complaint.
It was the THA’s position that the better forum to hear the EMA’s complaint would be the Environmental Commission and not the High Court. Not so, says the EMA which remains adamant that the High Court does have the power to hear its complaint and not the commission which has limited statutory remit.
Last month, the EMA approached the High Court with its complaint that the assembly did not get the requisite approvals to start roadworks and obtained the injunction to stop any continuing work on the project until a certificate of environment clearance application was lodged and approved.
The THA has since been applied for the CEC. However, site visits are yet to take place. The THA says this is because the injunction prevents its contractor from being on the site.
On Thursday, Justice Frank Seepersad, who granted the injunction to the EMA on May 26, also ruled that the appropriate forum to hear the authority’s challenge was the High Court.
He said the Environmental Management (EM) Act gave the High Court the jurisdiction to grant the injunction and hear the EMA's complaint.
"The High Court has an inherent jurisdiction founded in the common law to provide injunctive relief so as to enforce statutory obligations.
"If Parliament intended to oust the jurisdiction of the High Court it should have used language which was unequivocal and precise so as to establish such an ouster.
"No such language can be found in the act and there is no provision contained therein to suggest that by necessary implication that the intent to oust the High Court is evident."
He said the act also reinforced the right for the EMA to seek injunctive relief, among others.
"The High Court, for the first time, is now tasked with the obligation to consider the provisions of the EM Act so as to determine whether same ousts it from exerting its inherent jurisdiction under common law as well as the Supreme Court of Judicature Act Chapter 4:01 to grant injunctive relief.
"The court addressed its mind to the preamble to the EM Act and notes that the Environmental Commission is vested with the authority to, inter-alia, support the processes and functions of the EMA under the act.
"The act does not, however, designate the commission as the sole adjudicative body but merely establishes it as an additional judicial body.
"It is the view of this court that Section 68 of the EM Act expressly empowers the EMA to seek injunctive relief before the High Court in circumstances such as those which operated in this case, namely, where there existed a concern as to works being discharged in circumstances where no application for a certificate of environmental clearance was applied for."
In its application, filed on June 15, the THA asked the court to discharge the injunction.
The THA also said it had to issue a suspension notice to its contractor who, in turn, detailed the penalties that the assembly would owe on the contract between the parties because of the stoppage of works.
The THA said it was incurring daily penalties because of the injunction which stops its contractor, California Stucco, from continuing with any work on the site.
It was also the THA’s position that commission is a superior court of record with the responsibility under the Environmental Management Act.
In submissions, Senior Counsel Larry Lalla, who leads Christlyn Moore and Adanna Joseph-Wallace for the THA, argued that the act empowered the commission to enforce the EMA’s policies and it was Parliament’s intent that both bodies work in tandem.
He said it was “nonsensical” to suggest that the commission did not have the power to grant injunctive relief.
“Why would Parliament create two bodies, one regulatory and one for enforcement, but not give the enforcement body the power to grant injunctions?”
He referred the judge to the relevant sections of the legislation which he said supported his client’s position.
However, Senior Counsel Ian Benjamin, who leads Sadna Lutchman, Tekiya Jorsling and Maurice Wishart for the EMA, said the THA’s argument fails to get off the ground since the legislation was specific as it related to the powers of the commission.
He, too, took the judge through the relevant sections of the act, to show the delimination of power of the commission as intended by Parliament.
“There is no specific jurisdiction to do what THA is asking you to do.”
Benjamin said the court could not infer powers onto the commission and had to construe the act in a proper legislative context and not in defiance of the usual canons of statutory construction.
“If you have to strain, (to interpret the legislation) then that construction is likely to be flawed, wrong and liable to be overturned.
“Everyone has its specific role.”
Benjamin maintained that the act did not give the commission injunctive powers.
On the THA’s complaint relating to possible violations of its contract with its contractor, Benjamin reminded that all FIDIC contracts – considered to be the trusted international standard for projects – make explicit provision for the compliance of laws by either party so it was either for the THA or the contractor to obtain approvals for the project.
Referring to an earlier submission by Lalla who contended that the THA Act and the Constitution gave the assembly the power to implement policy, Benjamin said the assembly could formulate any policy it wanted once it became legislation. He referred to the landownership policy for foreigners on the island.
“Policy does not trump legislation.”
He said the EMA's only concern was that all parties abide by the rule of law and uphold Trinidad and Tobago's environmental laws.
At a previous hearing, Lalla had asserted that it was debatable if the EMA was acting on statutory authority as it related to work done by the THA in Tobago.
As a result of Seepersad’s ruling on Thursday, the EMA’s complaint will proceed to trial on July 26. The THA was given a four-week extension to file its defence.
The construction of the Shirvan/ Store Bay Local Road Connector is said to comprise of a 2.5 kilometre single carriageway, two roundabouts and a drainage system.
In its complaint, the EMA’s managing director, Hayden Romano, alleged that the THA, either by itself or through the Division of Infrastructure, Quarries and Urban Development, or its contractor, California Stucco Company Ltd, had not applied for a CEC, in breach of the Environmental Management Act and the CEC 2001 order.
Work on the road began on May 8.
It added, “The project entails the clearing and excavating of more than two hectares of vegetated land and once the roadway has been paved the environmental impact would be irreversible and permanent.”
Last week, there was standoff between the THA’s Division of Infrastructure, Quarries and Development Secretary, the Water and Sewerage Authority (WASA, and the utility’s line-minister, Marvin Gonzales, about a pipe-laying project at the worksite.
The Public Utilities Minister and WASA called on Commissioner of Police Erla Harewood-Christopher to investigate orders by the police to the authority’s contractor remove all its equipment, tools and tents off the road.
The alleged instruction cited the injunction granted to the EMA.
The minister and WASA said checks with the assistant commissioner of police in Tobago revealed no instruction had come from his office.
Gonzales said the THA had stopped the 7.6 kilometre pipeline project which runs from Signal Hill to Store Bay Local Road. WASA accused the THA of stopping the pipe-laying project without providing a proper basis for doing so.
The division claimed it wrote to WASA informing the authority it could not provide oversight for the pipe-laying project because of the injunction.
Both WASA and the minister insist that the authority has received all statutory approval for its work.
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