Today I’m thinking of those who sounded the alarm about environmental destruction before I did. Professor Ivan Goodbody. Dr Barry Wade. Dr Homero Silva. Then the folks I overlapped with – Terry Williams. Katy Thacker. John Maxwell. Michael Schwartz. And I wish they were all alive to see the January 20, 2023 decision of the Supreme Court: 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.
In brief: Nine claimants, residents of rural communities in St Ann (Gibraltar, Madras, Bryan Castle, Somerton, Endeavour and Barnstaple), some located at the intersection of three Special Mining Leases for bauxite, filed a case in the Supreme Court asserting that their constitutional rights either had been breached or were likely to be breached by bauxite mining. For those who might not know, the Jamaican Charter of Fundamental Rights and Freedoms guarantees ‘… 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.’ The trial has not yet been held – it is scheduled for November 2023 – so the court has not yet made a decision on the merits of the case. But the claimants also applied for an injunction to halt any bauxite mining in three different Special Mining Leases until the outcome of the trial is known.
Credit: Dr Susan Koenig, Windsor Research Centre, Cockpit Country
The three leases in question are SML 165, 172 and 173. The first two, SML 165 and SML 172, were granted in 2004 and 2017 respectively. SML 173, however, is the license granted in 2018 in an area omitted from the Cockpit Country Protected Area, although the people who live there, the landforms, the place names and the historical and cultural heritage all proclaim or demonstrate they are part of Cockpit Country. This question – where exactly is Cockpit Country – has been debated, quietly at times, raging at other times, since the 1950s.
This case, though, despite media framing, is not about the boundaries of Cockpit Country. It’s about whether bauxite mining can be carried out in proximity to human settlements, including homes, schools, churches and farms, without breaching the constitutional rights of those who live there. The decision, when it is handed down, will set precedent for all mining and quarrying in Jamaica.
Gibraltar All Age School, 2019. Credit: Jamaica Environment Trust
This case was about whether the applicants’ case had sufficient merits for a court to adjudicate on, and if it did, whether or not mining could proceed in the months before the case is heard. For SML 165 and 172, those licenses granted earlier, the court accepted the evidence of the defendant companies that no mining was taking place or would take place in these area, and that all the work now ongoing is reclamation work. The injunction in respect of SML 165 and SML 172 was therefore refused by the court.
(Bear with me here: According to the judgment, the Defendant Companies are Noranda Jamaica Bauxite Partners, Noranda Jamaica Bauxite Partners II and New Day Aluminium (Jamaica) Limited. Noranda I and II are partnerships between New Day and Jamaica Bauxite Mining Limited, the latter being a company wholly owned by the Government of Jamaica. New Day is owned by New Day LLC and Jamaica Bauxite Mining Ltd. Note also that Noranda Jamaica Bauxite Partners II changed its name to Discovery Bauxite Partners. And New Day Aluminium (Jamaica) Limited changed its name to Discovery Bauxite Operations Limited.)
Back to the instant case. With regard to SML 173, the court GRANTED the injunction until the case is decided – no mining can take place there until the court decision is handed down.
Also of significance: One of the obstacles to an individual, community, or civil society group going to court to request injunctive relief is the requirement to present an undertaking for damages in the event that their application is unsuccessful and the defendant incurs costs caused by delay in getting the case heard. An applicant not only has to state that they are willing to give this undertaking, but show they have the required assets. This is an unsurmountable obstacle for most people or small groups. But in this case, the court waived the requirement for an undertaking for damages.
This is an absolutely ground-breaking ruling. I stand to be corrected, but I do not think this kind of injunction has been granted in a human rights and environmental case in Jamaica before.
It takes courage to file legal action against the state and/or powerful private sector interests – in this case both. Seeking a court ruling for a contested matter tends to be regarded in Jamaica as outrageously radical, generates intimidation and threat, takes a long time, is expensive, and there is a formidable amount of detailed legal work involved. Not to mention the years and years of background efforts – campaigns, meetings, workshops, committees, letters, community efforts, protests, public meetings, presentations, studies, reports, signs, films, images, drone footage, bumper stickers, social media posts. So congratulations and gratitude to the applicants and their legal team. May the force be ever with you all.
Of course, this judgment may be appealed. New evidence could come to light, resulting in new applications. But for today, I’m thinking about the shoulders of giants, about John and Mike in particular – how happy they would be.
See here for the full judgment:
Oh yes! They would be happy as can be. For sure! I wish they were both still on this Planet, but they are somewhere else, for now, and we need to carry on their work...