Bengal Development Company v Wendy A Lee et Al

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop, J.A.,Edwards, J.A.,Simmons, J.A.
• Judgment Date: 11 April 2025
• Neutral Citation: JM 2025 CA 28
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: COA2021CV00038

Bengal Development Company

and

Wendy A Lee et al

McDonald-Bishop, J.A.; Edwards, J.A.; Simmons, J.A.

Suit No.: COA2021CV00038

Court of Appeal

Appearances:

Abraham Dabdoub instructed by Dabdoub Dabdoub & Co. for the appellant.

Ms Melissa McLeod and Miss Daynia Allen instructed by Hylton Powell Attorneys at Law for the 1st to 8th respondents.

Miss Annaliesa Lindsay and Miss Karressian Gray instructed by the Director of State Proceedings for the 9th respondent.

McDonald-Bishop, J.A.

1 This appeal raises questions regarding the exercise of a judge's discretion in the Supreme Court in applications made by defendants to strike out a constitutional claim. The appeal arises from the decision of Carr, J. (Ag.) (‘the learned judge’) made on 23 April 2021 refusing applications brought by the three named defendants in those proceedings: the Attorney General of Jamaica (‘the AG’); the National Resource Conservation Authority (‘the NRCA’); and Bengal Development Company Limited (‘Bengal’), to strike out a claim. The claim was brought by the 1st to 8th respondents, who are the claimants in those proceedings.

2 The learned judge granted Bengal leave to appeal. Neither the AG nor the NRCA sought leave to appeal, but are named as the 9th and 10th respondents, respectively, in the proceedings. The AG made brief submissions aligning himself with the 1st to 8th respondents in responding to the appeal, while the NRCA remained silent. In actuality, the main parties to the appeal are Bengal, as the sole appellant, and the 1st to 8th respondents.

3 An appreciation of the relevant factual background and chronology of events leading to the proceedings in the Supreme Court is deemed necessary and will now be provided.

THE RELEVANT FACTUAL BACKGROUND AND CHRONOLOGY OF EVENTS LEADING TO THE PROCEEDINGS IN THE SUPREME COURT

4 Bengal is registered as an overseas company under the Companies Act of Jamaica to carry on specified business in Jamaica. It engages in the business of mining and quarrying lands and is the registered proprietor of land situated in the Dry Harbour Mountain, Discovery Bay in the parish of Saint Ann (‘the Bengal land’). In 2000, an area of land between the Rio Bueno in Trelawny and Discovery Bay in Saint Ann, including the Dry Harbour Mountain, was zoned for special protection by the Town and Country Planning (St Ann Parish) Provisional Development Order, 1998 and confirmed in January 2000 by the St Ann Confirmed Development Order, 2000 (‘the zoned area’).

5 The 1st to 8th respondents all claim to have proprietary and other interests in lands within the zoned area and the vicinity of the Bengal land.

6 The NRCA is a statutory body established under the Natural Resources Conservation Authority Act (‘the NRCA Act’). The NRCA's primary function involves the management, protection and conservation of Jamaica's environment, protected areas and natural resources. As part of the exercise of those functions, the NRCA considers applications for permits to carry out designated activities, such as mining and quarrying, on certain lands.

7 The NRCA Act and subsequent ministerial orders made pursuant to it provide the legislative framework for applications to be made to the NRCA for permission to be granted before the undertaking of those designated activities.

8 The NRCA is given administrative assistance by the National Environment and Planning Agency (‘NEPA’), an executive agency.

9 On 3 March 2014, Bengal submitted an application to the NRCA for a permit to allow mining and quarrying on a part of its lands (‘the quarry site’). The NRCA directed Bengal to do an environmental impact assessment (‘EIA’) in relation to the quarry site. Residents and stakeholders in the area of the site raised concerns about the proposed mining and quarrying operations and signed letters of objection petitioning against the grant of the permit. The 1st to 8th respondents were among the objectors.

10 In May 2020, the NRCA refused Bengal's application for a permit after consultations with other regulatory and advisory agencies, including NEPA, and after considering the objections of the stakeholders and other members of the public. In a letter dated 8 May 2020, the NRCA gave its reasons for refusing to issue the permit, which were, in outline:

• (1) The proposed development is contrary to and not in keeping with the provisions of the St. Ann Confirmed Development Order, 2000, more specifically, policies UC4 and UC5.

• (2) The area is not a designated quarry zone.

• (3) A quarry of this nature, size, scale and intensity will have a deleterious effect on the environment in general and the surrounding uses.

• (4) The development will exacerbate the air quality impacts on the airshed. Also, the development may have a deleterious impact on public health, particularly from dust and noise generation.

• (5) The unprecedented number of objections received from residents who reside in the surrounding areas, as well as stakeholders with particular interests in the area.

• (6) The comments from a key partner, the Forestry Department, that while the EIA “explores the impact of the quarrying operations, it does not propose feasible and effective mitigation measures geared towards minimising the overall negative impact of the quarry on the forested areas”.

11 Bengal appealed the NRCA's decision to refuse its application to the Minister of Economic Growth and Job Creation (‘the Minister’) as it was entitled to do under section 35 of the NRCA Act. The Minister considered the appeal on 23 July 2020 and allowed it in October 2020. Consequent to this decision was the issuance of an environmental permit (‘the permit’) to Bengal to undertake mining and quarrying on the quarry site. The permit was issued on 5 November 2020 and subsequently amended and re-issued on 17 December 2020. The permit was granted subject to Bengal fulfilling 76 conditions, which are aimed at addressing environmental and public health concerns raised by the NRCA in its earlier refusal. The conditions address matters such as compliance with the EIA, the protection of fauna and flora, air quality assessments and fugitive dust control measures, drainage, construction of access and haulage roads, protection of water resources, solid waste disposal and no burning and sewage treatment and disposal.

12 The permit is a first step to obtaining a mining licence, which would permit Bengal to carry on full-fledged mining and quarrying operations on the Bengal land.

THE PROCEEDINGS IN THE SUPREME COURT

THE 1ST TO 8TH RESPONDENTS' CLAIM

13 Aggrieved by the NRCA's issuance of the permit to Bengal, the 1st to 8th respondents filed a fixed date claim form in the Supreme Court on 17 December 2021, challenging the Minister's decision to overrule the NRCA's refusal to grant Bengal a permit to conduct mining and quarrying on the quarry site. They did so on purely constitutional grounds, contending, essentially that the Minister's decision to issue Bengal a permit contravenes or is likely to contravene their constitutional rights acknowledged by sections 13(3)(f)(ii), 13(3)(l), 13(3)(o) and 13(6) and guaranteed by section 13(2) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (‘the Charter’). These rights are, respectively: (a) the right to live in any part of Jamaica; (b) the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage; and (c) the right to protection from degrading and “other” treatment.

14 The 1st to 8th respondents' claim contends that the Constitution provides that no organ of the State shall take any action that infringes or is likely to infringe any of the rights guaranteed by the Charter. The organs of the State include the Minister. Therefore, the 1st to 8th respondents are entitled to bring their claim pursuant to section 19(1) of the Constitution, which provides that any person alleging a breach or likely breach of a constitutional right in relation to himself may apply to the Supreme Court for redress.

15 They are seeking the following reliefs:

• “1. A Declaration that the decision by [the Minister] to overrule the [NRCA's] decision to refuse [Bengal's] application to permit mining and quarrying at Rio Bueno, Dry Harbour Mountain, Discovery Bay, St. Ann abrogates, abridges or infringes (‘breaches’) or is likely to breach the following constitutional rights of the [1st to 8th respondents]:

  • (a) the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage, acknowledged by section 13(3)(l) and guaranteed by section 13(2) of the Constitution;

  • (b) the right to reside in any part of Jamaica, acknowledged by section 13(3)(f)(ii) and guaranteed by section 13(2) of the Constitution; and

  • (c) the right to protection from degrading ‘other treatment’, acknowledged by sections 13(3)(o) and (6), and guaranteed by section 13(2), of the Constitution.

• 2. A Declaration that permit No. 2014–06017-EP00040 granted on November 5, 2020, by [the NRCA] to [Bengal] to permit mining and quarrying of bauxite, peat, sand and minerals at Rio Bueno, Dry Harbour Mountain, Discovery Bay, St. Ann breaches or is likely to breach the [1st to 8th respondents'] said guaranteed constitutional rights.

• 3. A Declaration that the mining and quarrying of bauxite, peat, sand and minerals at Rio Bueno, Dry Harbour Mountain, Discovery Bay, St. Ann by [Bengal] is likely to breach the [1st to 8th respondents'] said guaranteed constitutional rights.

• 4. A Declaration that neither the manner nor the extent of the breaches or likely breaches of the said constitutional rights is demonstrably justified in a free and democratic society.

• 5. Consequently, an order that the Minister's said decision, and permit No....