ON APRIL 27 the THA debated and adopted a motion on the environment. The motion began: “Whereas the Tobago House of Assembly (hereinafter referred to as the Government of Tobago…” The Government of Tobago? I hadn’t until then realised that the Tobago political directorate considered the island an independent entity or, at least, a state (as in the USA) or province within a federation. This suggests that exchanges over internal self-government are now superfluous.
And is there a Government of Trinidad, I wonder? If there isn’t, perhaps one might be declared after Watson Duke dislodges Joel Martinez from Port of Spain and continues his announced journey to the prime ministership of TT. (The federal state of TT, mind you. Note that our Constitution nowhere defines TT as a unitary state.) Could the Attorney-General please advise on these apparent and possible constitutional developments?
The aims of the April 27 motion were that “the Government of Tobago take full responsibility and authority for the management of all matters concerning Tobago’s environment,…that (it) immediately proceed to establish the institutions, frameworks, and mechanisms necessary (to that end)…(and) that (it) take the (required) actions…to ensure the sustainable management, preservation and protection of Tobago’s environment.”
The motion was in part buttressed by the fact that the Fifth Schedule of the THA Act, which sets out the THA’s “areas of responsibility,” lists the environment as one of those areas. (It also lists “licensing,” which I shall discuss in another article.) But many of the areas are in conflict with areas listed in other schedules to the act, and indeed with existing legislation and common sense.
For instance, the same Fifth Schedule confers on the THA responsibility for “infrastructure, including air and sea transportation, wharves and airports and public utilities.” Does this mean that the THA is responsible for Caribbean Airlines, the inter-island ferries, Crown Point airport, and TTEC and WASA? Could Ministers Sinanan and Gonsalves please advise? To make things more confused, the Sixth Schedule to the act, which sets out “matters for which the Assembly shall not be responsible,” includes “civil aviation.” Should we therefore assume that air transportation has nothing to do with civil aviation?
What of the Environmental Management Act of 2000? It says in its preamble that the Government of Trinidad and Tobago (at least I’ve heard of that government) “is committed to developing a national strategy for sustainable development…(and that) an Environmental Management Authority (is to be established) to co-ordinate, facilitate and oversee execution of the national environmental strategy and programmes,” etc. Is “the Government of Tobago” part of this national approach? From the wording of the motion, apparently not.
This isn’t the first time that a matter has officially come up concerning the authority and responsibilities of the THA on the environment vis-à-vis those of the central government. Several years ago, the THA (it was at the time content to call itself that) sought a number of declarations from the judiciary.
It wanted assurances that, on a proper construction of section 25 of the THA Act, it was “entitled to formulate and implement policy (on) matters…in the Fifth Schedule without hindrance from or leave of the Cabinet or central government;” that (it) was “the body solely responsible for the formulation and implementation of policy (regarding) the matters…in the Fifth Schedule;” that “matters (re) the reforestation programme in…Tobago (fell) within section 25…and the Fifth Schedule…;” and that the “central government (was) not entitled to formulate policy or conduct any activities related to reforestation and/or forestry in Tobago…without sanction of the THA.”
In June 2015 the court ruled that section 25(1) of the act meant that “any responsibility given the (THA) pursuant to (that) section…must be subject to the overriding and overarching policy directives of the Cabinet of the Government of the Republic of Trinidad and Tobago;” that the section gave the THA “responsibility to implement policies…consistent with that (sic) of the Government in instances where the Government already (had) a policy in place;” and that the section “(did) not give the THA responsibility to formulate and/or implement policy in respect of matters set out in the Fifth Schedule…which (might) frustrate or hamper the implementation of Government policy.”
And tell me, how does a motion adopted by a “Government of Tobago,” a body which has absolutely no law-making powers – indeed, which, so far as I know, doesn’t legally exist at all – override legislation passed by the national Parliament of TT and interpreted by a TT court? Will the “Government of Tobago” approach the courts for a new interpretation of the THA Act? But why, if it is a real government?