Supreme Court says its Dry Harbour Mountains ruling protects against 'likely' environmental harm

The Supreme Court on Wednesday underscored that constitutional rights must not only be safeguarded after harm occurs, as it struck down a 2020 environmental permit granted to Bengal Development Limited for mining activities in Rio Bueno, Dry Harbour Mountains, Discovery Bay, St Ann.

The court ruled that the decision to grant the licence was unconstitutional and of no legal effect.

The ruling blocks the proposed quarrying operation in the ecologically sensitive Dry Harbour Mountains, where residents argued that the development threatened their constitutional right to a healthy environment.

President of the three-panel court, Justice Sonya Wint-Blair, emphasised that “Nothing harmful has yet taken place, but the decision opened the door for it to happen."

"The permit authorised that decision, and the Constitution protects against likely harm as well as actual harm,” she said.

Justice Wint-Blair also noted that although the court acknowledged the projected economic benefits of the proposed 20-year project, the evidence pointed to a significant risk of environmental harm in a fragile ecosystem known for its endemic flora and fauna.

The Constitutional Court granted judgment this morning in favour of six residents who challenged the approval of the project.

The residents had filed a constitutional claim against the Attorney General of Jamaica (first defendant), the Natural Resources Conservation Authority (NRCA) (second defendant), and Bengal Development Limited (third defendant), seeking declarations that the decision infringed on their right to enjoy a healthy and productive environment free from threats of injury, damage, environmental abuse, and degradation of the ecological heritage.

They also argued that their rights to reside in any part of Jamaica and to protection from degrading or inhumane treatment were breached.

Among the reliefs sought was an order for an injunction restraining Bengal from starting or continuing any mining, quarrying, or other activity pursuant to the permit.

In its ruling, the court declared that the environmental permit, which had authorised the mining and quarrying of bauxite, peat, sand, and other minerals in the ecologically sensitive Dry Harbour Mountain area, was null, void, and of no legal effect.

The permit was originally granted on November 5, 2020, and later amended in December of that year.

Additionally, the court issued an injunction restraining Bengal Development, its agents, and employees from commencing or continuing any mining or related activities on the Bengal lands under the disputed permit.

The panel, which also included Andrea Thomas and Tricia Hutchinson-Shell, made several declarations.

It found that both the ministerial decision to overrule the NRCA and the granting of the permit were likely to breach constitutional protections guaranteeing citizens the right to a healthy and safe environment.

The dispute dates back to May 2020, when the NRCA denied Bengal Development’s application for an environmental permit on environmental and public health grounds.

The company appealed, and Prime Minister Dr Andrew Holness, who has oversight responsibility for the NRCA, overturned that decision and granted the permit later that year, subject to 76 conditions.

In December 2020, eight residents filed a constitutional claim; however, two withdrew, leaving six claimants in the matter.

Michael Hylton represented the claimants, while Annaliesa Lindsay appeared on behalf of the Government.

Bengal Development was represented by Abe Dabdoub, while Kimberley Myrie Essor appeared for the NRCA.

- Tanesha Mundle

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