By LARRY SMITH
KINGSTON, Jamaica – As prospectors are about to drill for oil in Bahamian waters, it’s worth taking a look at the recent experience of petroleum licensing in a fellow CARICOM state – Belize.
Over the past several years, the government of that little Central American nation – sandwiched between Guatemala and Mexico – secretly handed out licenses to a slew of shell companies to drill for oil throughout the country and its offshore waters, including in protected areas.
This sparked the formation of the Belize Coalition to Save our Natural Heritage, which has been fighting a running battle with the government over oil licenses. The coalition includes scores of civil society groups and is supported by Oceana, an international marine conservation society.
A “people’s referendum” was organised just before the last general election (in March 2012), which resulted in an overwhelming no vote against offshore oil drilling by more than 29,000 people. The coalition also took the government to court, with a decision expected next month.
At a regional conference here last week – organised by the Jamaica Environment Trust, the World Resources Institute, the University of the West Indies and others – Belize was cited as a prime example of why freedom of information is vital for good governance and environmental protection.
“A few years ago we learnt from a whistleblower that 95 per cent of our ocean territory had been leased to private companies for oil drilling, including protected areas,” said Audrey Matura-Shepherd, a lawyer who is vice-president of Oceana Belize.
In addition to the marine carve-out, most of Belize’s 8,867 square miles of land were also allocated out in petroleum concessions, despite the fact that ecotourism is big business. The country’s spectacular barrier reef is a UNESCO World Heritage Site, and it has the world’s only jaguar reserve, covering some 150 square miles of rainforest.
But the lure of oil revenues has set the government on a different course, similar to the one that we are about to embark on, although the licenses in Bahamian waters are a matter of public record.
According to Matura-Shepard, “the government never responded to any of our questions. But eventually we found that one company – Princess Petroleum, owned by a casino operator – had a concession over the famous blue hole on our barrier reef. We are going through judicial review on that right now. It’s like a chess game we are playing with the government.”
One of the key organisers of the Kingston conference was the Jamaica Environment Trust, headed by Diana McCauley. She is a former insurance agent who experienced a “road to Damascus” conversion to environmental advocacy when she visited a public beach in the 1980s that she had frequented as a child.
“Sewage flowed everywhere, foamy and malodourous, carrying condoms and sanitary pad liners and untreated human excrement right into the sea,” she wrote in her blog. “I couldn’t believe it. Then, I thought, the problem was that people didn’t know. After all, I hadn’t known. So I would tell them. Eventually, I gave up my suits and stockings and went around Jamaica on my self-appointed mission of Telling People.”
She formed JET in 1991 as a non-profit membership organisation, providing legal advice to communities affected by environmental issues, and campaigning to protect specific natural resources. But the broken Harbour View sewage treatment plant continued to spew untreated waste into the sea.
After years of unsuccessful letter writing, meetings, attempts at mediation and engagement with the press, in 2006 JET recruited two community residents who were prepared to go to court. They ended up with a consent agreement that required the National Water Commission to fix the plant, with a detailed timeline.
Critical evidence against the government in the law suit was obtained through Jamaica’s Access to Information Act. According to JET’s environmental lawyer, Daniele Andrade, “we found that taxes were collected but never used to fix the plant. Eventually the government agreed they had failed in their statutory duty and we got a consent order forcing them to do what they were supposed to do. Our lawsuit was not worth fighting because the evidence against them was so strong.”
McCauley spent years as a frustrated activist unable to access official information. “Government agencies would just ignore you,” she told me at the conference. “When the access to information law was fully implemented in 2005 we suddenly had a legal right to information, and anything the government denied we could appeal. This is an important tool that has to be used.”
Damian Cox, the director of Jamaica’s Access to Information Unit, told the conference his office was dealing with over 900 information requests a year. “We still have cultural issues within the public sector and we need more proactive disclosure, but public sector heads are now fully aware of the consequences of refusing to disclose.”
The Cayman Islands Information Commissioner’s Office is even more active. There have been thousands of information requests since their law came into effect in 2009, in a population of less than 60,000. Brent Fuller, a reporter for the Caymanian Compass, said most requests did not involve big corruption stories, but focused on quality of life issues such as garbage collection or the number of failing high school students.
According to Cayman Information Commissioner Jennifer Dilbert, a former diplomat and financial services regulator, “we still have a lack of buy-in from some senior government officials and problems with resources, but basically we wouldn’t change a thing. There have been 100 appeals so far to our office and all have been resolved favourably except for a current dispute with the governor’s office, which is going to judicial review.
“It was a new concept to have a body outside of government that would have order-making powers,” she told the conference. “That was a bit of a shock at first, but now people accept that we are truly independent, especially since the governor is actually suing us.”
The conference reviewed the status and effectiveness of freedom of information laws in the region, as well as institutional structures for their implementation and enforcement. Jamaica is one of seven Caribbean countries (Belize, Trinidad and Tobago, Antigua and Barbuda, Dominican Republic, St. Vincent and the Cayman Islands) to have freedom of information laws in force.
Five countries have draft laws pending, and both the Bahamas and Guyana have passed laws that have yet to be implemented. Gaps in implementation were noted in Belize, Antigua, and St Vincent, which have laws that have not fully been utilized by the public.
Although the Ingraham administration passed a freedom of information law early last year to satisfy a campaign pledge, last-minute consultations with the then opposition PLP removed the commencement date for the act to come into force. And since the May 2012 general election nothing more has been heard about the law. No consultative process ever took place for this groundbreaking legislation in the Bahamas. However, it is similar to the Cayman Islands law – which was years in the making.
The Bahamas legislation – like the Caymanian law – gives a general right of access to all persons, stipulates a public interest test for most exemptions, and establishes the post of information commissioner for enforcement. The commissioner will be appointed to a five-year term by the governor-general in an “open process” and be responsible to parliament.
The law also protects whistleblowers who publish information on illicit activities, but will not apply to the judiciary, the uniformed services or financial supervision agencies “in respect of their strategic or operational intelligence gathering.” Records will be exempt from disclosure if the disclosure would harm foreign relations or reveal other confidential information of Cabinet; trade secrets, and in other specified circumstances.
The original bill was modified just before passage early last year. The amendments restricted application rights to Bahamian citizens and permanent residents; and provided for the appointment of an information commissioner, who will also act as data protection commissioner – a post created by another law that was passed in 2003.
The changes also confirmed that the Official Secrets Act will still apply “to the grant of official documents in contravention of (the freedom of information) act.” Presumably, this means that everything in government is officially top secret, unless the information commissioner says otherwise. And the information commissioner can be overruled by the minister, whose decision is not subject to judicial review. These rules were criticised as counter-productive by the opposition PLP at the time.
Exempt records are sealed for 30 years – it was 20 years in the first draft of the Bill. And the law can now be implemented whenever the government decides to gazette it, with different provisions coming into force at different times. The original Bill had a specific timetable, calling for implementation on July 1, 2012.
Perhaps the most interesting amendment was the one that effectively combined two seemingly incompatible posts, presumably as a cost-saving measure. The data protection commissioner’s role is to safeguard the privacy rights of individuals. The office was legislated almost a decade ago to comply with international standards on the processing of personal information by both the private and public sectors, but few Bahamians know it exists.
George Rodgers, a little-known former official in the Bahamas Development Bank, has been data commissioner since 2006, but he appears to have little to keep him occupied. His 2010 report mentions only two relevant complaints, a handful of inquiries, and a number of “awareness visits” to local agencies. And regulations are apparently still being developed.
If the FOI law is ever implemented here, the appointment of a strong information commissioner will be an important step towards more transparency and accountability in government. So there should be some measure of public input in the selection process, which should seek a high-profile, independent-minded individual, who is both interested in the issues and who can withstand political pressure.
But first we have to get the law in force. At the close of the landmark Jamaica conference, participants launched a Caribbean network on freedom of information to help “improve standards for access to information in the region.” But the main impetus for freedom of information here has to come from Bahamian civil society.
Conference participants included journalists, government officials, and environmentalists from 11 Caribbean countries, funded by the Commonwealth Foundation. This writer attended, but the Bahamas government declined to send a representative, although all expenses were covered. The conference had a strong environmental component, but a Bahamas National Trust official was forced to cancel plans to attend at the last minute.
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