Gov’t schooled!

The Court of Appeal has upheld a landmark ruling that companies can sue for constitutional breaches, dealing a blow to the Government, which is in a fight with a firm and a farmer over mining near the Cockpit Country.

The unanimous ruling clears the way for the Supreme Court to resume proceedings in the constitutional claim brought by the Southern Trelawny Environment Agency (STEA) and Clifton Barrett against the State, Noranda Jamaica Bauxite Partners II, and New Day Aluminum (Jamaica) Limited over mining activities near the Cockpit Country in Trelawny and St Ann.

Noranda Jamaica Bauxite Partners II is a partnership between New Day (Noranda’s parent company), an American firm, and the Government of Jamaica.

Barrett and the environment agency filed their claim in January 2021, seeking a declaration that Special Mining Lease (SML) 173 would infringe on their rights to enjoy a healthy environment free from the threat of injury or damage from environmental abuse. They want the licence revoked.

In November 2017, Prime Minister Andrew Holness announced new boundaries for the Cockpit Country, an ecologically sensitive area that provides 40 per cent of water to western Jamaica. Known for its endemic flora and fauna, vital hydrological features, and cultural heritage sites, the area holds significant environmental and historical importance.

Environmental and cultural lobbyists have insisted that the Cockpit Country Protected Area (CCPA) announced by the prime minister excluded areas that were traditionally part of the Cockpit Country.

In 2018, the Government granted the licence to New Day to mine bauxite in the areas just outside the CCPA.

Three years later, STEA, an environment lobby incorporated in 1996, and Barrett, who has lived in Alps – a Trelawny district in the traditional Cockpit Country area – for more than 60 years, filed their constitutional claim in the Supreme Court.

The Government applied to have STEA and its case struck out, 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 dismissed the application in March 2023 and declared that 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.

‘Novel and important question’

The Government filed an appeal, which was heard on November 28 and 29, 2023 and the judgment handed down on June 7.

The Court of Appeal said the case raised the “novel and important question” of whether STEA, as an artificial or legal person, can seek constitutional redress in its own right. It said the answer turned on the interpretation of Section 19 of the Charter of Fundamental Rights and Freedoms of the Constitution.

Section 19 allows “any person” to bring claims that their rights have been breached or are likely to be violated. It allows any person or organisation to bring cases on behalf of persons whose rights are being violated. Organisations, however, must first get the court’s permission.

While the Constitution does not expressly state that a person includes a company, Jamaica’s Interpretation Act defines a “person” as including “any corporation, either aggregate or sole, and any club, society, association or other body, of one or more persons”.

Deputy Solicitor General Lisa White and attorney Taneisha Rowe-Coke from the Attorney General’s Chambers argued the appeal for the Government.

White acknowledged that while a legal person (a public or private company) may assert certain human rights, for example, the right to own property, only natural persons (human beings) can commence a constitutional claim for redress.

She argued that the structure and words of the Jamaican Charter of Rights are closer to those of the American Convention on Human Rights than the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Several cases from the Inter-American Court of Human Rights, of which Jamaica is a member, were also drawn upon.

The appeal court said White’s point was not made “on a whim” because the American Convention on Human Rights defines a “person” as being every human being.

It said the approach of the ECHR has been to apply the rights under that convention to companies based on one of its provisions which refers to every natural or legal person.

White also pointed out that the preamble to the Jamaican Charter refers to the State’s obligation “to provide universal respect for, and observance of, human rights and freedoms”.

However, STEA’s attorney, Michael Hylton, KC, countered.

He argued that the Inter-American Court for Human Rights cases cited by the Government were based on the American Convention on Human Rights, whose provisions are very different from Jamaica’s Charter.

Hylton urged the court to rely on decisions from the European Commission on Human Rights and the European Court of Human Rights, which considered the ECHR.

The senior attorney and former solicitor general pointed out that as a former British colony, Jamaica was bound by the ECHR, which granted rights to companies before Jamaica gained political Independence.

He argued that it could not have been the intention of the post-Independence Constitution, including the 2011 Charter, to restrict the persons and the rights they always had without clearly stating it.

The Court of Appeal, comprising President Patrick Brooks and fellow justices Vivene Harris and Georgiana Fraser, agreed with Hylton’s submissions and said they found his interpretation of the word ‘person’ to be “irresistible”.

“I am convinced, on the strength of those authorities, that the word ‘person’ in the Charter includes artificial or legal persons. Therefore, the learned judge did not err when she determined ... that ‘the rights and freedoms given to a person in [Section] 13 of the Charter, which, by their nature, are capable of being enjoyed by a company, can be claimed by that company’,” said Justice Harris, who wrote the court’s 21-page opinion.

Maurice Tomlinson case

The court also noted that the attorney general was an interested party in the Maurice Tomlinson case, in which it upheld in 2020 the constitutional rights of Television Jamaica and CVM Television to not broadcast advertisements promoting tolerance for gays.

“That case is a clear recognition by this court that artificial or legal persons can enjoy guaranteed rights under the Charter,” Justice Harris said.

The court accepted Hylton’s view that if the Government’s arguments are taken to their logical conclusion, it would mean that “as a farmer carrying out his business in the SML 173 area, Barrett could claim constitutional redress, but a company which owns and operates an adjoining farm could not”.

Justice Harris said she was reminded of certain words in a 1982 Trinidad and Tobago Court of Appeal judgment in a similar case, which she said are “equally applicable” in the STEA case.

In that case, the then Justice Cross wrote that: “The framers of [the Constitution of Trinidad and Tobago] could not have intended to and did not exclude corporations from the protection afforded by the Constitution. To hold otherwise would be not only to admit a ‘scandalous defect in the law’, which would permit Parliament by a bare majority to pass confiscatory legislation against corporate property but would also make a mockery of constitutional guarantees with respect to the enjoyment of property and equality of treatment”.

The Jamaican Court of Appeal dismissed the Government’s appeal, saying “there is no justification to interfere” with the Supreme Court’s decision. It ordered the Government to pay STEA’s legal costs.

Attorneys Malene Alleyne, Melissa McLeod, and Daynia Allen also appeared with Hylton for STEA.

Noranda was represented by Ransford Braham, KC; Glenford Watson; and Christina Thompson, while New Day was represented by Carlene Larmond, KC, and Giselle Campbell.

The Government has a 51 per cent stake in Noranda Jamaica Bauxite. In 2021, Noranda Jamaica Bauxite was rebranded as Discovery Bauxite.

jovan.johnson@gleanerjm.com