Court dismisses Gov’t’s application to strike out anti-mining case

In a landmark ruling on Tuesday, the Supreme Court declared that a company by itself can bring a constitutional claim and dismissed the Government’s application for an anti-mining case brought by an environmental entity to be struck out.

The Southern Trelawny Environment Agency (STEA) and farmer Clifton Barrett have sued the State, Noranda Jamaica Bauxite Partners II and New Day Aluminum (Jamaica) Limited over mining activities in sections of Trelawny and St Ann near the Cockpit Country.

The attorney general, however, applied for the STEA and its case to be removed, claiming that a company could not pursue a claim for constitutional redress as it was not a person and, therefore, does not have the requisite standing under the Constitution.

But Justice Sonya Wint-Blair, in dismissing the application, said a company is entitled to enforce all rights that are capable of being enjoyed by a person.

“There is nothing limiting the enforcement provisions of the charter to Jamaican citizens. It is any person. This means a non-Jamaican company is also a person within the meaning of Section 19(1).

“Any other interpretation would result in an absurdity, lead to legal and factual anomalies, and it would be, in my view, asking the court to apply the law in a manner which would lead to the disadvantage of many,” the judge said.

As a result, she concluded: “STEA can, therefore, commence a claim in its own name in its own right, pursuant to Section 19(1) of the charter as it is a legal person.

“The word person, where the context so requires, and where it can be applied, in Section 19(1) includes a company,” Justice Wint-Blair added. “The word ‘person’ does not limit or exclude artificial persons, as such a construction would derogate from the enjoyment of rights by companies in existence ... ,” she added.

The environment agency and Barrett had filed a claim in January 2021 against the attorney general, Noranda and New Day, seeking a declaration that Special Mining Lease (SML) 173, which was granted to the companies, abrogates, abridges or infringes – or is likely to breach – some of their guaranteed constitutional rights. This includes 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 reside in any part of Jamaica.

Among the relief sought by the claimants was an order for SML 173 to be declared null and void, as well as constitutional and vindicatory damages.

LEASE AGREEMENT

The August 28, 2018 lease between the Government and New Day establishes over 1,200 hectares of land for mining.

It provides for New Day to appoint Noranda as its agent to mine the bauxite and perform other related activities.

Deputy Solicitor General Lisa White argued that under Section 19(1) of the Charter only natural persons could commence a claim under the Constitution.

According to her, a company, as a legal person, can only pursue constitutional claims in restricted circumstances such as being authorised by law or being a civic or public organisation with leave of the court under the Constitution.

“The STEA is not clothed with constitutional rights. It cannot enforce these rights as a juristic person. Therefore, it cannot obtain an order on the premise that its constitutional rights have been, are being, or are likely to be infringed,” she argued.

However, the claimant’s attorney, Michael Hylton, KC, emphasised that STEA is a company incorporated under the Companies Act of Jamaica and is, therefore, a legal person.

He further averred that the Constitution gives his client the right to apply for redress if certain of its rights are violated.

Hylton, however, agreed that there are some rights which can only be enjoyed by natural persons such as the right to freedom from discrimination on the grounds of being male or female or on the grounds of race.

But, he said: “There are no reasons why only natural persons can enforce the rights STEA asserts in this claim.”

Meanwhile, while acknowledging the absence of precedent in answering the pertinent questions raised, the judge said that the argument that a company cannot assert rights in its own regard is one of fiction.

tanesha.mundle@gleanerjm.com