Fyard Hosein, SC

Senior Counsel, Fyard Hosein, submitted yesterday that the Environmental Management Agency (EMA) failed to consider all the relevant matters prior to the decision to grant a Certificate of Environmental Clearance (CEC) to Alutrint Limited to construct the controversial aluminium smelter plant. Hosein said section 35 of the Environmental Management Act mandated that the EMA considered all relevant matters prior to the grant of the CEC. He said the EMA was therefore not entitled to defer a consideration of mitigation measures to a point in time after the grant of the CEC. In doing so, Hosein added, the EMA failed to consider all the relevant matters it is required to consider under the Act, and it deprived the public of its democratic right to be consulted on those mitigation measures. Hosein was making submissions before the Court of Appeal in the appeal brought by the EMA against the decision of Justice Mira Dean-Armorer, dated June 16. Hosein is representing one of the environmental groups, Smelta Karavan, at the appeal.

The appeal is being heard before Chief Justice Ivor Archie, Justice Wendell Kangaloo and Justice Allan Mendonca. In a 156-page judgment, Dean Armorer granted an order of certiorari, quashing the decision of the EMA to issue a Certificate of Environmental clearance on April 2, 2007 to Alutrint, the developer. “It is my view that the decision of the defendant, EMA, was procedurally irregular, irrational and made without regard to the relevant consideration, that is to say, the consideration of the cumulative impact of the three related projects—the power plant, the aluminium complex and the port facility.” Dean-Armorer remitted the matter to the EMA for consideration, meaning that the EMA must go over the entire process for the construction of the smelter plant.

Hosein said: “The EMA, having realised it did not have sufficient information to make a determination as to the appropriate mitigation measures to be employed in respect of the deferred matters, opted to defer that decision to a point in time after the grant of the CEC. As a result, the issue of the CEC was unlawful and contrary to the provisions of section 36 of the Act.” Hosein said the Act bestowed upon the EMA, the duty to manage and protect the environment. “It is clear therefore, that the EMA was either empowered to permit an activity, or not to permit the activity by either issuing or refusing to issue a Certificate of Clearance. “What the EMA is not entitled to do, is to purport to grant a CEC which does not permit the performance of the activity, but seeks instead to impose pre-conditions, the fulfilment of which are further pre-requisites to the actual performance of the activity,” Hosein said. Hearing continues today.