Noranda Jamaica Bauxite Partners v Victoria Grant

• Jurisdiction: Jamaica
• Judge: Brooks P
• Judgment Date: 09 June 2023
• Neutral Citation: JM 2023 CA 72
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2023CV00009
• Court: Court of Appeal (Jamaica)

IN THE MATTER OF THE CONSTITUTION OF JAMAICA

AND

IN THE MATTER OF SPECIAL MINING LEASES PERMITTING BAUXITE MINING IN AREAS WHERE THE CLAIMANTS LIVE AND FARM

AND

IN THE MATTER OF AN APPLICATION FOR CONSTITUTIONAL REDRESS PURSUANT TO SECTION 19 OF THE CONSTITUTION

Between

Noranda Jamaica Bauxite Partners

1 ^st Appellant

and

Noranda Jamaica Bauxite Partners II

2 ^nd Appellant

and

New Day Aluminium (Jamaica) Limited

3 ^rd Appellant

and

Victoria Grant

1 ^st Respondent

and

Linsford Hamilton

2 ^nd Respondent

and

Cyril Anderson

3 ^rd Respondent

and

Merlina Rowe

4 ^th Respondent

and

Beverly Levermore

5 ^th Respondent

and

Alty Currie

6 ^th Respondent

and

Boblet Campbell

7 ^th Respondent

and

Lawford Fletcher

8 ^th Respondent

and

Edlin Walton

9 ^th Respondent

and

The Attorney General of Jamaica

10 ^{th Respondent}

[2023] JMCA Civ 34

BEFORE:

THE HON Mr Justice Brooks P

THE HON Mrs Justice V Harris JA

THE HON Mrs Justice Dunbar-Green JA

SUPREME COURT CIVIL APPEAL NO COA2023CV00009

IN THE COURT OF APPEAL

Civil Procedure — Application for interim injunction in constitutional matters — Findings of fact — Whether there is a serious issue to be tried — Whether the applicants will suffer irreparable harm — Balance of convenience — Public interest — Waiver of the requirement of the undertaking as to damages

Ransford Braham KC, Glenford Watson and Ms Christina Thompson instructed by Glenford Watson for the 1 ^st and 2 ^nd appellants

Miss Carlene Larmond KC and Ms Giselle Campbell instructed by Patterson Mair Hamilton for the 3 ^rd appellant

B St Michael Hylton KC, Ms Malene Alleyne, Ms Melissa McLeod and Ms Daynia Allen instructed by Hylton Powell for the 1 ^st to 9 ^th respondents

Miss Lisa White instructed by the Director of State Proceedings for the 10 ^th respondent

Brooks P

The parties

1 Noranda Jamaica Bauxite Partners (‘Noranda I’), Noranda Jamaica Bauxite Partners II (‘Noranda II’) and New Day Aluminium (Jamaica) Limited (‘New Day’) (together, ‘the appellants’) appeal from the decision of a judge of the Supreme Court (‘the learned judge’), made on 20 January 2023. The learned judge granted an interim injunction restraining Noranda II and New Day from mining bauxite on lands that the Government of Jamaica (‘the Government’), through its respective agencies, had leased to New Day. Those leases are called Special Mining Leases (‘SMLs’). New Day had appointed Noranda II to act as its agent for carrying out the mining and Noranda II got the required environmental permits from the Natural Resources Conservation Authority (‘NRCA’) to carry out the activity in a section (‘the permitted area’) of the leased area.

2 Mrs Victoria Grant, Mr Linsford Hamilton, Mr Cyril Anderson, Ms Merlina Rowe, Ms Beverly Levermore, Mr Alty Currie, Ms Boblet Campbell, Mr Lawford Fletcher, and Mr Edlin Walton (‘the 1 ^st to 9 ^th respondents’) are the parties who sued the appellants and sought that injunction from the Supreme Court. They live in or near the permitted area. Not only do these respondents resist the appeal, but they have filed a counter-notice of appeal asking this court to reverse the learned judge's refusal of an interim injunction in respect of two other areas, in which they say the appellants’ mining of bauxite also adversely affects their lives and livelihood.

3 The 1 ^st to 9 ^th respondents have also sued the Attorney General of Jamaica (‘the Attorney-General’), as the representative of the Government. The Attorney-General appears as the 10 ^th respondent to the appeal.

The application for the interim injunction

4 The interim injunction, which the 1 ^st to 9 ^th respondents sought, was to restrain the appellants until the determination of their claim, the trial of which is scheduled to start in November 2023. It sought restraints that were almost identical to the permanent injunction that the claim seeks.

5 The 1 ^st to 9 ^th respondents sought the injunctions on the basis that the appellants and the Government had breached their constitutional rights in several respects.

The evidence before the learned judge

6 The parties placed extensive affidavit evidence before the learned judge. That evidence is condensed for these purposes, but the court assures the parties that all the evidence has been considered.

7 The appellants say that they and their predecessor companies have been conducting bauxite mining in Jamaica for close to 60 years. They aver that they export the bauxite to New Day's parent company's factory in Gramercy, Louisiana, in the United States of America. That factory is specially tooled to process bauxite from Jamaica.

8 There are three SML areas relevant to this case. The three are in rural parts of the parishes of Saint Ann and Trelawny. They are numbered respectively, SML 165, SML 172 and SML 173. Most of the land in those SML areas is owned by the Commissioner of Lands. The bauxite is vested in the Crown by the Minerals (Vesting) Act.

9 The SML areas are relatively near to some communities in those two parishes. The 1 ^st to 9 ^th respondents are mostly small farmers who live and farm in those communities. Those respondents complain that bauxite mining adversely affects their lives and livelihood. The dust from the mining, they say, affects their health, in that it gets into their airways and causes illness. It is, they aver, especially harmful to residents with respiratory illnesses, exacerbating their conditions and even causing death. In addition, they say, the dust settles on the roofs of their houses and other structures that are used to harvest water for drinking and other domestic purposes. They say that the dust pollutes the water and renders it unfit for its intended uses. This is important, they say, because there is no public piped water in those areas. Further, the 1 ^st to 9 ^th respondents say the dust adversely affects their crops. They allege that mining also creates a physical danger to residents, especially schoolchildren, when the pits are dug very close to homes and schools. They contend that the mining also results in excessive noise daily, from morning until night. There has also been noise from blasting, they assert, and that activity also causes cracks in houses and other structures.

10 Those matters, the 1 ^st to 9 ^th respondents assert, constitute breaches of their constitutional rights. They contend that the mining activities have breached and/or are likely to breach their rights to life, to reside in any part of Jamaica, to enjoy a healthy and productive environment, and to protection from degrading treatment. In addition, they say that the appellants have breached their constitutional right to receive information.

11 The appellants have countered most of those assertions by the 1 ^st to 9 ^th respondents. They contend, through their representatives, Messrs Delroy Dell, Evon Williams, and Kent Skyers that:

• a. the majority of the residents in the communities in the vicinity of the mining support the appellants because they assist the community by generating economic activity and increasing access to the communities by providing roadways;

• b. although the levels of dust (termed ‘fugitive dust’) from the mining and transportation of the bauxite are below the prescribed standards, the appellants are proactive in liaising with the residents of the communities in the vicinity of the mining; they try to minimise the dust by wetting the mining area and also make monthly payments to residents to compensate for the dust nuisance;

• c. the nature of the soil in those areas is such that ordinary tilling and farming practices create fugitive dust, and the farmers do not wear protective gear, such as masks;

• d. the appellants assist residents with money for medication and assist with medical treatment, even for illnesses which are not said to be connected to the effects of mining;

• e. the residents who are near the mining area are given the option to temporarily or permanently relocate if they wish, and the appellants assist them in that regard by one or more of the following methods:

  • i. purchasing their property;

  • ii. providing land in a scheme managed by the appellants;

  • iii. paying a relocation allowance, whether or not the resident actually relocates;

• f. the appellants do not use blasting any more in mining and have not done so for over 12 years;

• g. the environmental licences compel the appellants to not only provide domestic water storage facilities but to truck water to the relevant areas in times of water shortage;

• h. the only mining pit that was near a school was dug during the COVID-19 pandemic when there was no in-person attendance at school, and the pit has since been filled in and the area reclaimed;

• i. no mining is done within 300 feet of any dwelling unless with the owner's consent, for which compensation is paid;

• j. the appellants reject the assertion that the fugitive dust damages crops and say that they have never received any complaint from residents in this regard;

• k. residents, including the 1 ^st to 9 ^th respondents, are in frequent contact with the appellants' representatives but have never made some of the complaints that are being asserted in the court action;

• l. none of these respondents live in Industry Pen, the part of SML 173, which is destined for mining in the first two years of the appellants' Five-Year Mining Plan; the closest respondent resides 981 feet away from an orebody (scheduled for mining in 2024);

• m. at least one respondent has her house on lands belonging to the Commissioner of Lands and has no authority to occupy that land; some of the farms are also unlawfully on lands owned by the Commissioner of Lands; all these lands have been leased to the appellants; and

• n. the appellants are prohibited from mining in forest reserves and are mandated to protect caves, sinkholes, rivers, springs, wells, and other water resources; they take all reasonable and practicable measures to ensure that the...