Re-Route Reboot

The continued dispute over the Debe-Mon Desir Link of the Point Fortin Highway and the growing public debate over this issue require further attention to certain critical aspects.

The Armstrong Reportcover-tilt was published in March 2013 after a process agreed between parties to the dispute over this highway link.  It is a significant achievement in the journey to a more considered and consultative approach to national development.  Given the shifting grounds of the dispute and the nature of the various statements, it is necessary to clarify some of the key issues.

The three main issues to be clarified are –

The Armstrong Report

The State’s position in relation to The Armstrong Report is a critical element of the dispute, so it is important to detail how this has morphed, like so much else in this matter.  The Ministry of Works & Infrastructure Press Statement of 3 December 2012welcomed the inputs…from the JCC, FITUN, T&T Transparency Institute and Working Women‘ and went on to note that ‘the discussions had been very fruitful‘.  That statement settled a basic framework for a Review of the elements of the link which were in dispute, with the preliminary Report to be provided within 60 days ‘to NIDCO for its consideration and publication thereafter’.  Some people have tried to restrict the meaning of NIDCO’s ‘consideration’ of The Armstrong Report to a merely editorial vetting which implied no commitment to any post-publication consideration.  The only conceivable reason for a party to this kind of process to have the right to review the preliminary Report would be to address factual errors in a situation in which the completed Report is of some significance.

At the post-Cabinet Press Briefing on Thursday 14 February 2013, the then ‘line Minister’ for NIDCO, Emmanuel George, said that the Report gave the State the ‘green light’, thanked the members of the Highway Review Committee and was reported to have agreed to ‘…as far as possible, accommodate their suggestions and recommendations…‘.

The only reasonable meaning to put to the State’s actions and agreements at the time was that there was a commitment to consider the recommendations of the Report.  Of course we are now hearing from officials that there was no commitment to adopt or consider any of the recommendations in The Armstrong Report.

As a reality check, just ask yourself what would have been the position if The Armstrong Report had fully vindicated the State’s actions.

You see?

The Highway Contract

The high cost of halting construction is the main argument being used by the State to criticise The Armstrong Report and in its litigation with the Highway Re-Route Movement (HRM).  On 25 February 2013, NIDCO wrote to JCC with its comments on the preliminary Report and the first page of that letter noted its concern that no consideration had been given to the fact that a $5.2Billion construction contract was in existence for this project. (Comment #2 on p. 30)  That complaint is fundamentally misplaced, to say the least, since technical and scientific reviews do not normally take financial or commercial elements into account as material considerations.

At the level of general principles, two examples can clarify the position. In the widely-used two-envelope tendering situations, the tenderers submit separate technical and financial proposals, which are examined independently, with points awarded for each.  The eventual selection is made after considering both those scores.

The most recent Commission of Enquiry was announced by the Prime Minister on 18 September 2014 into the HDC apartment blocks which had to be demolished in 2012 at Las Alturas in Morvant. (pp. 68-70) When HDC recognised that the stability of these newly-constructed hillside apartment blocks was in jeopardy, they obtained technical advice from professional engineers. It is doubtful whether those reports considered the financial and commercial fact that the building had already been erected or the losses that would accrue if they were to be demolished.  Very doubtful.  Indeed, one would rightly be suspicious of technical advice which was coloured by commercial considerations.

SIDEBAR: NIDCO’s reply to JCC

The JCC wrote to NIDCO on 10 October 2014 to request a detailed statement as to how the ten recommendations of The Armstrong Report had been treated and we met with NIDCO’s team on 17 October to discuss that request.  NIDCO agreed to provide the details to JCC by Friday 24 October, but that reply is still awaited at the time of this writing.

Now, to deal directly with NIDCO’s criticism of The Armstrong Report, we need to note two facts –

  1. Terms of Reference – If, despite the general principle, NIDCO had wished to have the construction contract for the highway considered alongside the other factors to be examined during the 60-day Review, it could have made that request.  The fact is that NIDCO never made that request, so the construction contract was not included in the terms of engagement for this review exercise.
  2. The Highway Review – If, having not requested that the construction contract be included in the review, NIDCO subsequently wanted it considered, there was an option to submit it. NIDCO never submitted the contract to the JCC or the Highway Review Committee.

Proceeding from the general principle to the particulars of this case, it is therefore clear why the Highway Review Committee did not consider the contract as part of the review process.

Note also that NIDCO has not submitted the contract to the Court during this extended litigation with the HRM.

Submitting the contract to either the Highway Review Committee or the Court would have exposed the underlying financial and commercial arrangements, as well as the repeated claims of adverse cost implications, to critical scrutiny.

Tender Truths

Lastly, there is now a series of new statements emerging from the HRM and its supporters which did not form part of the original concerns of that group. The most striking of these is that the highway contract was not tendered. That allegation can be found in the HRM’s International Media Release of 24th September 2014 on their Facebook page and on the AVAAZ campaign webpage, as well as in other media statements by various persons supporting the HRM.  That assertion is most alarming for two reasons.

Firstly, that is an entirely false assertion since the highway contract was tendered in 2010.  Consider this extract from the top of page 19 of The Armstrong Report

…On May 07, 2010, the closing date for this procurement, three proposals were submitted by 1.00 p.m. (from the 29 Request for Proposals issued)
The three entities submitting tenders were, in alphabetical order:

  1. China Railway Construction Corporation Limited;
  2. Construtora OAS Ltda (OAS); and
  3. GLF Construction Corporation…

On May 13, 2010 The NIDCO Evaluation Committee submitted its Final Report and recommended OAS as the Preferred Respondent, and so informed OAS by letter dated May 25, 2010…”

Secondly, those baseless assertions by the HRM show a lack of familiarity with the contents of The Armstrong Report.  The HRM has relied heavily upon The Armstrong Report in its recent campaigning, so one can only wonder at the implications of these repeated claims.
Given the public positions taken by the protagonists, it seems unlikely that mediation can be a real option.

The Armstrong Report is a serious advance in terms of our nation’s development, being to my knowledge the first Civil Society review of a State-sponsored project in the Caribbean region.  That Report would not have existed without Dr. Wayne Kublalsingh’s sacrifice, but the full benefits of the Report can only be realised by a proper and open consideration of its recommendations.  Only then can we gain from the increased public attention to the complex issues of national development and really start to learn the lessons.

National development is a real and inescapable challenge which will continue to evolve, whoever is in government.  That challenge can only be properly addressed by a fact-based approach adopted by all parties.

Re-Route Truth

hrm-proposed-rerouteThe leader of the Highway Reroute Movement, Dr. Wayne Kublalsingh, has started another hunger-strike in protest at the actions of the State in relation to the hotly-contested Debe-Mon Desir link of the Point Fortin Highway.  Some of the issues now emerging offer disturbing echoes from Kublalsingh’s first hunger-strike in November 2012, but it seems to me that these are the very reasons we need to think again so as to find a different way to speak about our country’s large-scale development.  This column is to be published on Republic Day, so it an invocation of the ideals of our status as equals, with our disputes on public policy to be settled on the facts.

A bit of background is important, given the great deal of confusion which is swirling on this issue –

  • The San Fernando – Point Fortin Highway has been proposed for over 40 years, with the actual construction contract being signed in January 2011 with the Brazilian Construtora OAS for a reported sum of $5.2 Billion.
  • According to the Highway Re-Route Movement (HRM), the proposals for a Debe-Mon Desir link had attracted serious concerns since 2005, garnering support from various politicians who were then in opposition and now in government.    The precursor to the HRM was stated to be the Debe-San Francique Action Committee under the leadership of MP Dr. Roodal Moonilal, but I can find little other info on that. Dr. Wayne Kublalsingh was one of the founders of the HRM in 2011.
  • The Hunger-strike – After failing to get the government to delay this controversial link, the HRM’s Dr. Wayne Kublalsingh started a hunger-strike protest in November 2012 to seek an urgent review.
  • The Civil Society proposal – On 26 November 2012, in an attempt to act as ‘Peacemakers’, the JCC, the T&T Transparency Institute, the Federation of Independent Trades Unions and NGOs (FITUN) and Working Women for Social Progress made a joint proposal to the Prime Minister for an independent review of the aspects in dispute. This was a serious effort to reduce the heat and increase the light in this matter, by examining the competing claims on the basis of solid evidence.
  • The agreed terms – On 3 December 2012, the government agreed to the proposed review of the Debe-Mon Desir link with the JCC, FITUN and TTTI. That review was to be done in 60 days, with all requested documents to be provided by government and NIDCO agreeing to consider the Report.  NIDCO is a wholly-owned State Enterprise.
  • The Review Committee – On 5 December 2012, the Civil Society Organisations appointed a Review Committee, under the Chairmanship of then Independent Senator Dr. James Armstrong, with Terms of Reference agreed by both the State and the HRM. Upon arriving at that important agreement, Dr. Wayne Kublalsingh ended his hunger-strike.
  • The 60-day Review – The principal documents in the formulation and conduct of the Highway Review Committee are on the JCC ‘s website at – http://www.jcc.org.tt/resources.htm#. That 60-day exercise was conducted by 19 highly-qualified professionals who worked intensely to review submissions received from the State, the HRM, Regional Corporations and other organisations.
  • The HRC Report – On 3 March 2013, the 269-page Final Report of the Highway Review Committee (HRC) was published after a  review process in which the State’s concerns were addressed.
  • Payment – On 17 April 2013, NIDCO paid $742,400 as claimed by the JCC for the review process, being a substantial contribution to the total cost of the exercise, which exceeded $1,100,000.

 

SIDEBAR: A Summary of the Recommendations of the HRC Report

(those are at pgs 10 & 11 of the Report)

  1. The CEC 1372/2006 contains an extensive list of conditions intended to address the lack of detail presented to the EMA at the time of the application. A significant amount of work still needs to be undertaken to obtain approvals before any additional site activities are carried out, those include satisfying CEC conditions, submission of EIA plans to the EMA, Storm Water and Water Management plans.
  2. In accordance with the TCP Act no further construction work should be carried out on the site until all of the conditions attached to the Planning Permissions have been fulfilled.
  3. It is imperative that a proper Social Impact Assessment be undertaken before a decision is made whether or not to continue with the Debe to Mon Desir segment of the Highway…the SIA studies to consider the alternate routes proposed by the HRM and by MOWT/NIDCO.
  4. In view of the issues relating to the dislocation of persons from their homes it is critical that a Re- settlement Plan should be prepared and submitted to the EMA before any decision is finalised regarding the resettlement of affected persons.
  5. No further engineering operations are to be undertaken on the land at Petit Morne, St. Madeline on which it is proposed to relocate persons residing in the path of the alignment until all necessary approvals are obtained.
  6. Quantitative assessment of the surface and groundwater hydrology model and study of the wetland as a hydrodynamic system should be undertaken in the public interest…
  7. An Environmental Economic Study of this Project must also be undertaken to inform a decision whether or not to proceed with this Highway segment. This should include a cost-benefit analysis….
  8. Off-site impacts, such as the impact of removing and transporting extraordinarily large quantities of aggregate to be sourced from areas far removed from the Project Area need to be determined and measures designed to mitigate any negative impacts.
  9. The HRC recommends that the APDSL studies be continued and consideration be given to staging highway improvement for the south western peninsula to allow the phased development of the transportation system.
  10. The HRC recommends that all relevant state agencies together review their policy for the assessment of damage at Section 3 of the Land Acquisition Act.

In summary, the HRC concluded –

Should the Government decide to proceed with the construction of the Debe-Mon Desir segment, the HRC is of the considered opinion that shortcomings resulting from the inadequacies of proper assessment of the likely impacts on the human and natural environment must first be determined and resolved.

At this stage the air is choked with claims and counter-claims –

  • Many people are relying on the Highway to ease the heavy traffic in those areas, but the HRM is not against the actual San Fernando-Point Fortin Highway, so those concerns are misplaced.
  • Environmental concerns as to drainage and habitats which can only be settled after study of those issues.
  • The matter is before the Court and therefore is somehow removed from the agenda – of course one can contrast that with the treatment of the fortunate ‘Soca Warriors’.  Different strokes, so it seems.
  • The fact that the work is continuing on the disputed section is being cited by some as reason to finish the project now, but of course an alternative view is that the commitment of Public Money to complete a disputed link while it was under study is itself questionable.
  • In my sober view, the HRM has taken an unrealistic stance to call on the government to ‘abide by‘ the findings of the Armstrong Report, as it is now called. As I pointed-out earlier, the State agreed, on 3 December 2012, to ‘consider‘ that Report and that is what we have to call for.  It is premature to insist upon compliance until the Report has been considered.

cover-tiltThe Armstrong Report is an historic achievement, to my knowledge being the first review of a State-sponsored project ever undertaken by a Civil Society group in the Caribbean.  The Report represents an attempt to review the competing claims on the evidence and therefore promotes the ideal of fact-based decision-making in public policy.

Those are the positives we have to take from this turbid situation and we need to act soberly so as to ensure that those gains are not lost in the heat of this moment.  Kublalsingh’s sacrifice opened the way for the Civil Society proposal to be accepted and the Armstrong Report is now a reality.

Many people have been asking whether there is a legal obligation on the State to consider the Armstrong Report and it is clear to me that such an obligation does exist.  One of the tenets of Good Public Administration is ‘reasonableness’ in the conduct of decisionmaking by Public Officials.

The government agreed to the Highway Review on 3 December 2012 and participated in that 60-day  exercise, up to commenting on the completed Report and paying a substantial part of the costs.  Given those prior events, it is perfectly reasonable, in my view, for the government to give proper consideration to the recommendations of the Armstrong Report.

We need to summon the will to turn this corner, the State needs to exercise its powers in a reasonable fashion and that means that the Armstrong Report must be properly considered.  The public needs to be advised of that consideration and its outcomes.  Vague statements are not acceptable in this situation.

In years to come it will seem literally unbelievable that the State routinely carried out large-scale developments without this kind of study and consideration.  The future is an inescapable part of reality, it is waiting for all of us.

We need to turn this corner.  Do we have the will to do so?