Grant, Victoria, Linsford Hamilton, Cyril Anderson et al v. Noranda Jamaica Bauxite Partners, Noranda Jamaica Bauxite Partners 11 et al,  JMSC Civ 6 (Supreme Court of Jamaica) (20 January 2023)
Local residents and farmers filed a case claiming bauxite mining activities violate 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.” Grant, Victoria, Linsford Hamilton and Cyril Anderson et al v Noranda Jamaica Bauxite Partners, Noranda Jamaica Bauxite Partners 11 et al,  JMSC Civ 6 (Supreme Court of Jamaica) (20 January 2023), para. 2. Among other remedies, the claimants seek permanent injunctions prohibiting mining activities under three mining leases and compensatory damages. Para. 3.
The claimants filed the case after the National Environment and Planning Agency (NEPA) granted permits to begin mining in a proposed mining area which would add to damages caused by existing mining in the area.
Claimants raised concerns about activities under three mining leases: Special Mining Lease 165, Special Mining Lease 172, and Special Mining Lease 173, which were issued respectively in 2004, 2017 and 2018.
The claimants sought preliminary injunctive relief until the case can be heard. The claimants argued in part:
That, if the relief sought is not granted and the Defendants are allowed to proceed or to continue as they plan, the injury to the health, property, livelihoods and possibly even the lives of the Claimants/Applicants will be irreparable and the court’s judgment at trial may be rendered nugatory, since the damage would have already been done.
Id. at para. 16.
The Court reviewed its authority to grant interim injunctive relief. The Court found in part that
The grant of such an injunction serves the additional purpose of improving the court’s ability to do justice after a determination of the merits at trial. At the interlocutory stage, the court is required to assess whether granting or withholding an injunction is more likely to produce a just result. As the House of Lords pointed out in American Cyanamid Co v Ethicon Ltd, that means that, if damages will be an adequate remedy for the claimant, then there are no grounds for interference with the defendant’s freedom of action, by the grant of an injunction.
Likewise, if there is a serious issue to be tried and the claimant could be prejudiced by the acts or omissions of the defendant pending trial and the cross-undertaking in damages would provide the defendant with an adequate remedy, if it turns out that his freedom of action should not have been restrained, then an injunction should ordinarily be granted.
Id. at paras. 21-22 (citation omitted).
The Court then laid out the threshold test for granting interim injunctions which includes 1) determining whether there is a serious issue to be tried; 2) the balance of convenience if the injunction is granted; 3) special factors to consider; and 4) whether a damages award would be an adequate remedy. Id. at para. 23.
In this case, the Court refused to grant a preliminary injunction for the first two mining leases, after accepting statements that there is no on-going mining at those sites. Id. at paras. 45-46. It then turned to consider the third lease.
With regard to Special Mining Lease 173, the Court does grant a preliminary injunction. After acknowledging that there are serious issues to be tried related to the impact of mining on the constitutional rights of the claimants, the Court determines that “the risk of irreparable harm . . . is apparent and that the balance of convenience lies in favour of the granting of the injunctive relief sought.” Id. at para. 110.
Addressing irreparable harm, the Court explains:
The authorities make it clear that irreparable harm refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured. In the present instance, the balance is between the economics of the Jamaican economy and the lives of some of its citizens or residents.
Id. at para. 105.
The Court acknowledges that a preliminary injunction will have a significant economic impact, but recognizes that the harm to the claimants is more than financial, and impossible to quantify:
“It is made clear, from the evidence adduced on behalf of the Defendants/Respondents, that they would suffer financial hardship and financial losses, were the Court to restrain the commencement of bauxite mining activities pursuant to Special Mining Lease 173, until the final determination of the Claim. The Court finds however, that the Claimants/Applicants stand to lose far more than financial resources. They stand to lose their way of life and livelihoods, face the deterioration in the quality of their health, in circumstances where there are no comprehensive medical health facilities in the affected communities, losses for which money cannot readily compensate. The Court finds that the Claimants/Applicants have demonstrated by their evidence that the potential damage or harm, is unknown and is impossible to ascertain and to quantify.”
Id. at para.106.
The Court then determines the balance of convenience weighs in favor of granting the injunction. Id. at para 110.
Finally, the Court turns to the undertaking of damages. The Court acknowledges that “the Claimants/Applicants are unable to give an undertaking as to damages, for the reason that they are all persons of limited means.” Id. at para. 119.
The Court noted that the claimants cited the decision of the Board of the Privy Council in the BACONGO case in which “Lord Walker of Gestingthorpe explained that, in public law cases, the court will grant an injunction to the citizen without any undertaking in damages, where the justice of the case requires that such a course be adopted.” Id. at para. 120 (citing to Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment & Anor (Belize)  UKPC 63 (13 August 2003)). The Court recognized this decision “clearly demonstrates that the court has a wide discretion with respect to the usual undertaking in damages." Id. at para. 125.
The Court concluded that the risk of irreparable harm to the claimants is clear and that damages would not be an adequate remedy. Id at paras. 135-136. And then found:
In light of the magnitude of the issues raised by the Claimants/Applicants, by virtue of their Claim, this Court is of the view that it ought properly to exercise its judicial discretion in favour of waiving the requirement that the Claimants/Applicants give an undertaking as to damages. This course seems more likely to minimize the risk of an unjust result.
Id. at para. 137.
Ultimately, although the Court refused to issue an injunction related to the first two leases after accepting evidence that there is no current mining activity in those areas, the Court did issue an injunction prohibiting “commencing or continuing any exploring, mining or other activity” under Special Mining Lease 173 until the underlying claims are decided. Id. para. 138. The Court used its discretion to waive the requirement that the claimants give an undertaking as to damages with regard to the injunction.