Victoria Grant v Linsford Hamilton

• Jurisdiction: Jamaica
• Judge: A. Nembhard J
• Judgment Date: 20 January 2023
• Docket Number: CLAIM NO. SU 2022 CV 02353
• Court: Supreme Court (Jamaica)

[2023] JMSC Civ 6

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU 2022 CV 02353

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

Victoria Grant

1 ^st Claimant

and

Linsford Hamilton

2 ^nd Claimant

and

Cyril Anderson

3 ^rd Claimant

and

Merlina Rowe

4 ^th Claimant

and

Beverly Levermore

5 ^th Claimant

and

Alty Currie

6 ^th Claimant

and

Boblet Campbell

7 ^th Claimant

and

Lawford Fletcher

8 ^th Claimant

and

Edlin Walton

9 ^th Claimant

and

Noranda Jamaica Bauxite Partners

1 ^st Defendant

and

Noranda Jamaica Bauxite Partners II

2 ^nd Defendant

and

New Day Aluminium (Jamaica) Limited

3 ^rd Defendant

and

The Attorney General of Jamaica

4 ^th Defendant

IN CHAMBERS

Mr B. St. Michael Hylton KC and Mesdames Malene Alleyne, Melissa McLeod and Daynia Allen instructed by Messrs. Hylton Powell for the Claimants

Mr Ransford Braham KC instructed by Mr Glenford Watson for the ^st and 2 ^nd Defendants

Mesdames Carlene Larmond KC and Giselle Campbell instructed by Patterson Mair Hamilton for the 3 ^rd Defendant

Ms Lisa White, Mrs Taniesha Rowe-Coke and Mr Robert Clarke instructed by the Director of State Proceedings for the 4 ^th Defendant

Injunction — Application for the grant of an injunction — Threshold test — Whether there is a serious issue to be tried — Balance of convenience — Whether the balance of convenience lies in favour of the grant of injunctive relief — Irreparable harm — Whether the applicants would suffer irreparable harm should the application for the grant of an injunction be refused — Whether the respondents would suffer irreparable harm should the application for the grant of an injunction be allowed — Application for the grant of an injunction made against the background of a constitutional claim challenging the lawfulness of bauxite mining activities on the part of the defendants — Breach of fundamental rights — Right to life — Right to receive information — Right to reside in any part of Jamaica — 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 — Right to protection from degrading treatment

Damages — Whether damages are an adequate remedy

Undertaking as to damages — Waiver of requirement for undertaking as to damages — Whether the application for an injunction should properly be granted in circumstances where the applicants are unable to give an undertaking as to damages

Remedies — Whether grant of injunctive relief — Whether award of damages — The Judicature (Supreme Court) Act, section 49(h), Civil Procedure Rules, 2002, rules 17.1(1)(a) and 17.4

A. Nembhard J

INTRODUCTION

1 This matter raises important issues surrounding the constitutional rights of the Claimants. The Claimants assert that the bauxite mining activities, on the part of the 1 ^st Defendant, Noranda Jamaica Bauxite Partners (“Noranda I”), the 2 ^nd Defendant, Noranda Jamaica Bauxite Partners II (“Noranda II), the 3 ^rd Defendant, New Day Aluminium (Jamaica) Limited (“New Day”), (collectively referred to as “the Defendant Companies”) and the 4 ^th Defendant, the Attorney General of Jamaica, have breached or are likely to breach certain of their fundamental rights.

2 The Claimants specifically assert that the bauxite mining activities on the part of the Defendants have breached or are likely to breach their fundamental right to life; the right to receive information; the right to reside in any part of Jamaica; 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 the right to protection from degrading treatment.

3 The Claimants’ assertions are encapsulated in a Fixed Date Claim Form, which was filed on 29 July 2022, by virtue of which the Claimants seek the following relief: -

• 1. A Declaration that the Defendants and/or each of them have breached the following guaranteed constitutional rights of the Claimants, by the bauxite mining which the First and/or Second and/or Third Defendants have carried on and the Government of Jamaica has permitted them to carry on, pursuant to Special Mining Leases 165 and 172:

  • (a) the right to life, acknowledged by section 13(3)(a) and guaranteed by section 13(2) of the Constitution;

  • (b) the right to receive information, acknowledged by section 13(3)(d) and guaranteed by section 13(2) of the Constitution;

  • (c) 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;

  • (d) 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;

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

• 2. A Declaration that Special Mining Lease 173 breaches or is likely to breach the said guaranteed constitutional rights.

• 3. A Declaration that the bauxite mining activities which the Second and/or Third Defendants intend to carry on pursuant to Special Mining Lease 173 are likely to breach the said guaranteed constitutional rights.

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

• 5. Consequently, an order that Special Mining Lease 173 is void and of no effect and/or should be struck down.

• 6. An injunction restraining the First, Second and Third Defendants whether by themselves or by their employees, servants or agents or howsoever, from continuing any mining or other activity pursuant to or in reliance on Special Mining Leases 165 and 172.

• 7. Alternatively, an injunction restraining the First, Second and Third Defendants, whether by themselves or by their employees, servants or agents or howsoever, from continuing any mining or other activity pursuant to or in reliance on Special Mining Leases 165 and 172, without taking reasonable steps and precautions as directed by the court to mitigate injury and damage to the Claimants and other residents of the affected communities.

• 8. An injunction restraining the Second and Third Defendants, whether by themselves or by their employees, servants or agents or howsoever, from starting or continuing any exploring, mining or other activity pursuant to or in reliance on Special Mining Lease 173.

• 9. Compensatory damages.

• 10. Constitutional/Vindicatory damages.

• 11. Aggravated damages.

• 12. Interest on damages at the statutory rate of interest.

• 13. Such further and other relief as this Honourable Court deems appropriate or which may be necessary to give effect to the Declarations sought.

• 14. Costs.

4 The Claim is brought on the bases that: -

• 1. The Claimants all live or farm in or very near to areas in which Noranda I and/or Noranda II and/or New Day, have carried out bauxite mining activities pursuant to Special Mining Leases 165 and 172;

• 2. Noranda I and Noranda II are partnerships between New Day and Jamaica Bauxite Mining Limited, a company wholly owned by the Government of Jamaica;

• 3. New Day, formerly Noranda Bauxite Limited and, before that, St. Ann Bauxite Limited, is a company incorporated under the Companies Act and is owned by New Day LLC and Jamaica Bauxite Mining Limited;

• 4. The Fourth Defendant, the Attorney General of Jamaica, is joined as the representative of the Crown, pursuant to the Crown Proceedings Act;

• 5. On 30 September 2004, the Government of Jamaica granted Special Mining Lease 165 to New Day (which was then called St. Ann Bauxite Limited) for the purposes of mining bauxite in, under or upon approximately 177.33 km ² (17,733 hectares) of land in the parish of St. Ann;

• 6. Special Mining Lease 165 provided that New Day would appoint Noranda I as its agent to mine the bauxite and to perform other mining activities. (At that time Noranda I was named St. Ann Jamaica Bauxite Partners. It was subsequently renamed Noranda Jamaica Bauxite Partners);

• 7. On 16 May 2017, the Government of Jamaica granted Special Mining Lease 172 to New Day for the purposes of mining bauxite in, under or upon approximately 11.79 km ² (1,179 hectares) of lands in the parish of St. Ann. Special Mining Lease 172 provided that New Day would appoint Noranda II as its agent to mine the bauxite and to perform other mining activities;

• 8. As a result of the mining activities carried out by Noranda I and/or Noranda II and/or New Day, pursuant to Special Mining Lease 165 and Special Mining Lease 172, the Claimants have suffered significant injury to their health, damage to their homes, farms and subsistence crops, contamination of their drinking water sources, loss of their livelihood and the rural way of life and/or other financial and personal loss and, in the case of the First Claimant, the loss of her spouse;

• 9. The loss and injury suffered by the Claimants and the likelihood of further loss and injury are compounded by the fact that there are no adequate medical facilities in the Claimants’ communities where they can receive comprehensive medical treatment for mining- related illnesses. Furthermore, there is no water quality monitoring or decontamination of public water catchments in these communities;

• 10. On 28 August 2018, the Government of Jamaica granted Special Mining Lease 173 to New Day for the purposes of mining bauxite in, under or upon approximately 120 km ² (12,000 hectares) of lands in the parishes of St. Ann and Trelawny (“the Proposed Mining Area”). Special Mining Lease 173...