Commissioner of Mines and Attorney General v Glencore Alumina Jamaica Ltd
| Jurisdiction | Jamaica |
| Judge | HARRISON JA , MORRISON JA , MCINTOSH JA |
| Judgment Date | 17 June 2011 |
| Neutral Citation | JM 2011 CA 57 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 143/2008 |
| Date | 17 June 2011 |
[2011] JMCA Civ 17
JAMAICA
IN THE COURT OF APPEAL
THE HON MR JUSTICE HARRISON JA
THE HON MR JUSTICE MORRISON JA
THE HON MRS JUSTICE McINTOSH JA (Ag)
SUPREME COURT CIVIL APPEAL NO 143/2008
Curtis Cochrane and Harrington McDermott, instructed by Director of State Proceedings for the appellants
Christopher Kelman instructed by Myers Fletcher & Gordon for the respondent
FATAL ACCIDENTS - Mining - Whether death occurred in connection with mining operations under the Mining Act - Statutory interpretation
[1] This appeal is from an order of prohibition made by Mrs Justice Sinclair-Haynes on 21 November 2008.
Background
[2] On 13 February 2006, Astley Salmon, while carrying out repairs to an elevator at the precipitation section of the Kirkvine Plant of WINDALCO's ore-processing facility, sustained injuries to which he succumbed. Consequently, the Commissioner of Mines (the Commissioner) commenced an enquiry into Mr Salmon's death and purported to proceed pursuant to section 65 of the Mining Act (the Act) which states:
‘(1) Whenever an accident occurs in connection with prospecting or mining operations causing or resulting in loss of life or serious injury to any person, the person in charge of the operations shall report in writing with the least possible delay the facts of the matter so far as they are known to him to the Commissioner.
(2) In the event of such accident the Commissioner shall hold an enquiry into the cause thereof and shall record a finding.’ (Emphasis supplied)
[3] At the hearing before the Commissioner, counsel for Glencore Alumina Jamaica (the respondent) objected to the enquiry taking place on the ground that the Commissioner had no jurisdiction to proceed under section 65 of the Act. The enquiry was adjourned for the matter to be determined by the Supreme Court and a claim was filed which sought the granting of an order of prohibition.
The Hearing Below
[4] It was argued below by the respondent that the Act circumscribes the power of the Commissioner to enquire into accidents since section 65 permits the Commissioner to enquire only into accidents which occur in connection with prospecting or mining operations. Counsel had argued that:
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a. The precipitation section of the plant is not a mine as defined by section 2 of the Act;
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b. The elevator on which Mr Salmon was working at the time of his injury did not have access to the mines nor was any work in connection with mining carried on.
[5] The respondent also contended that precipitation is one of the later stages of processing alumina from bauxite ore long after the mining process has been completed. Counsel referred to and relied on the English Court of Appeal case of English Clays Lovering Pochin & Company Ltd v Plymouth Corporation [1974] 2 ALL ER 239 and the dictionary meaning of the word “mine” by the learned author in Stroud's Judicial Dictionary of Words and Phrases volume 3, 5th edition, page 1986:
‘The primary meaning of the word “mine” standing alone, is an underground excavation made for the purpose of getting minerals.’
[6] The appellant, on the other hand, contended that the Act conferred on the Commissioner, the necessary jurisdiction to conduct enquires in relation to non-mining, mining or non-prospecting acts such as processing. Counsel contended that the definition given of the words “to prospect and to mine” by the Act, clearly includes operations necessary for the purposes of processing the ore. Counsel also contended that when one examines the scheme of the legislation, it is clear that the intent is to regard the processing of the minerals as an activity connected to the mining operations. He referred to and relied on the Australian case of Federal Commissioner of Taxation v Broker Hill Smith Limited 65 CLR 150.
[7] The learned judge rejected the submissions of the appellants and granted the order, as I have said, on 21 November 2008. She held inter alia:
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(a) It had not been shown from the evidence that the legislators intended to extend the Commissioner's investigatory power under section 65 to the processing of alumina;
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(b) If the legislature had so intended it would have so legislated; and
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(c) An application of the literal interpretation of section 65 would confine the Commissioner's power to investigate accidents which occur in connection with mining and prospecting operations and therefore exclude accidents which occur outside of the prospecting mining operations.
The Grounds of Appeal
[8] The appellants were certainly not satisfied with the result and have now filed notice and grounds of appeal in the registry of this court. I now turn to the grounds which state:
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A. ‘The learned Judge erred by prohibiting the 1 st Appellant/1 st Defendant from holding the required enquiry as provided under section 65 of the Mining Act’;
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B. ‘The learned Judge erred by failing to correctly interpret section 65 of the Mining Act in the context and spirit of the legislation’; and
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C. ‘The learned judge erred by relying on irrelevant authorities to arrive at her decision.’
Grounds A and B were argued together by Mr Cochrane for the appellants. It seems to me, however, that all three grounds could be conveniently dealt with together.
The Submissions
[9] Mr Cochrane, for the appellants, made submissions on their behalf. The thrust of his submissions is that the learned trial judge had, by adopting a literal interpretation of section 65 of the Act, failed to correctly interpret section 65 within the context and spirit of the Act. He referred to and relied on the authorities of AG v H.R.H. Prince Ernest Augustus of Hanover [1957] 1 All ER 49, DPP v Schildkamp [1969] 3 All ER 1640, and Maxwell on the Interpretation of Statutes and submitted that on a true construction of the Act and the regulations made pursuant to the Act, it becomes apparent that Parliament had intended the Commissioner to be clothed with the authority under section 65 of the Act to conduct an enquiry into Mr Salmon's death. He argued that when one examines the provisions of section 99(2) (n), for example, it is clear that Parliament had legislated with a view to the further encouragement, expansion and development of the bauxite processing and mining industries. The section provides inter alia:
‘… the furnishing of such other information as the Minister may from time to time require to enable him to make, review, or confirm any arrangements or agreements he considers necessary for the encouragement, expansion and development of mining and of the bauxite and alumina industry.’
[10] Mr Cochrane also argued that the definition of “minerals” in the Act shows a close connection between mining operations and processing operations and that this is consistent throughout the Act. Section 2 of the Act states that, except for the purposes of Part VIII, the word “minerals” has the same meaning as that contained in the Minerals (Vesting) Act. Section 2 of the Minerals (Vesting) Act defines minerals as including ‘metalliferous minerals containing aluminum’. He submitted that in order to obtain aluminum, such metalliferous minerals are mined and then processed and that a direct connection can therefore be seen between mining such metalliferous minerals and the processing thereof.
[11] Mr Cochrane referred to section 84 of the Act which deals with certain restrictions on the exportation of minerals. Section 84 (3) (a) states that a person:-
‘… shall not export or deliver to any other person for export any alumina, bauxite or other mineral unless he does so pursuant to and in accordance with a permit granted in that behalf by the Minister in his discretion …’
[12] Mr Cochrane therefore submitted that by creating restrictions on the exportation of alumina, Parliament clearly contemplated the process of the mining of bauxite and its processing into alumina.
[13] He also submitted that, further support regarding the close connection between the mining and processing of bauxite is to be found in regulation 40 of the Mining Regulations (1947) made pursuant to section 99 of the Act. Regulation 40 provides inter alia:
‘…
(4) The Commissioner shall not issue to any holder of a mining lease a permit to export bauxite or laterite or alumina during any quarterly period unless the royalty payable on the total amount of bauxite or laterite which such holder disposed of in the manner described in subparagraphs (b), (c) and (d) of paragraph (5) during the last preceding quarterly period but one has paid.
(5) A permit to export bauxite or laterite or alumina shall be in the form set out as Form 22 in the First Schedule with the words ‘on which royalty has been paid’ omitted therefrom.
(6) Every holder of a mining lease for bauxite or laterite shall, in respect of each quarterly period, make to the Commissioner a return in writing showing-
(a) the amount of bauxite or laterite mined in Jamaica by him;
(b) the amount of bauxite or laterite exported by him;
(c) the amount of bauxite or laterite supplied by him to any other person for processing into alumina in Jamaica and the name of that person;
(d) if he is a producer of alumina in Jamaica, the amount of bauxite or laterite processed by him into alumina in Jamaica;
(e) the amount of bauxite or laterite which he has in hand.’
[14] Mr Cochrane argued that, on a proper reading of these provisions, it is seen that Parliament had intended to consider the processing of bauxite ore into alumina and that the legislative scheme intended that there ought to be a direct connection between the mining and the processing of bauxite....
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