the development of environmental law in jamaica

8/3/2019 The Development of Environmental Law in Jamaica

1/36

The Development of Environmental Law

in Jamaica

By Ryan Hussey

Caribbean Law Yearbook Vol. 1. Issue 1


2/36

Introduction

The Development of Environmental Law in Jamaica has been a more than 60-year

process. The main aim for the environmental laws is to preserve the countrys natural resources

and protect its citizens from careless acts brought on by industries and the like. Environmental

laws in Jamaica are unique in the sense that it seeks to influence industries to innovate and

promote better economic benefits on the island. It seeks to ensure that the people of Jamaica can

enjoy the countrys natural beauty and benefit from the abundant natural resources for years to

come. Its aim is to not only promote the social well-being of Jamaicans, but to ensure that there

is an equal opportunity for all Jamaicans to enjoy and have access to all aspects of public land.

Jamaica, as well as any many other countries, is currently experiencing the phenomenon

of environmental jurisprudence. The concept of environmental jurisprudence is a relatively new

one in many countries. In the United States, for example, environmental jurisprudence began to

really develop in the 1970s. In 1970, the U.S. Congress (Congress) enacted the United State

Environmental Protection Agency (EPA). Congress required the EPA to be a federal agency to

assess environmental impacts and to mainly enforce environmental laws that were enacted by

Congress. For the last 40 years American Environmental Jurisprudence developed as a result of

the EPA and private citizens filing suit in various courts. As a result, case precedence and

statutory interpretations began to develop as the Supreme Court of the United States and other

federal courts interpreted the powers of the EPA.


3/36

The EPA now has a strong establishment in Environmental Jurisprudence in the United

States. EPA has become a benchmark when one thinks of environmental jurisprudence in the

United States. While the EPA has a strong establishment in the United States; its equivalences in

other countries are not as well established, and in some cases have been poorly defined in the

kinds of powers they may possess.

There is a Jamaican equivalent to the EPA. It is known as The National Environment and

Planning Agency (NEPA) and it was established in 20011.According to many current

environmental activists in Jamaica; it is seen as more or less a glorified institution that acts to

enforce Jamaican Environmental Laws in name only2. These activists stated that from the 1950s

up until the early 2000s Jamaica has never really enforced its environmental laws. In doing so,

the environmental committees and institutions established, by the Jamaican Parliament, in

Jamaica has not really become a benchmark in environmental jurisprudence in Jamaica.

However, over the last ten years, there has been a trend in Jamaican Courts to begin to

enforce the environmental laws and establish a precedent for statutorily interpretation in

Jamaican Environmental Jurisprudence. This new trend coupled with the Jamaican Non-

Governmental Organizations (NGOs), and outside influence (such as the United States and Costa

Rica) is starting to make a difference in the way ordinary Jamaicans and businesses are

approaching the environmental laws and policy. To understand Jamaicas approach to

1There were other NEPA equivalents before 2001 in Jamaica that enforced environmental laws.

2From a telephone interview with a Peter Espeut, a leading sociologist, and former director of Caribbean Coastal Area

Management


4/36

environmental policy it is imperative to look at a brief overview of the environmental laws that

have been enacted by the Jamaican Parliament since the 1950s.3

Part 1: Historical Overview of the different laws enacted by the Jamaican Parliament

concerning the environment

In the 1950s, the Jamaican Parliament began to initiate laws concerning the environment in

Jamaica. There has been a common misconception that Jamaica has no environmental laws, and

if they do, it is very little. This misconception is actually quite the contrary. Jamaica, indeed, has

a well-developed environmental law structure. It has numerous laws concerning the environment

and procedures for implementing environmental policy. Like the United States, it is Jamaicas

executory that enforces the environmental laws. (Somewhat a comparison, for the governmental

structures of the United States and Jamaica though similar in the sense of a representative

democracy are in fact structured very differently. Jamaicas government structure is modeled

after The United Kingdom)4.

The Following laws are a historical overview of the various environmental laws in Jamaica

and how they are administered:

3Reference from interview quotes from Dale Weber, representative of Environmental Foundation of Jamaica

4View the Jamaican laws enacted by Parliament on the Ministry of Justice, Jamaica website moj.gov.jm; Jamaica is a

Commonwealth Country making the laws and government modeled to that of England.


5/36

The National Environment and Planning Agency of Jamaica have the power to enforce the

environmental laws. Through the NEPA, various sub-agencies were established to enforce the

different kinds of environmental laws.5

One of the first such laws established on that behalf was The Beach Control Act of 1956. The

Beach Control Actestablished that there is no common law right of bathingon the foreshore

or of taking gravel, stones, sand or seaweed from the foreshore or of holding meetings on or

passing over the foreshore except for the purposes of navigation or fishery. In addition the

public may have rights of access to the foreshore of an access agreement or access made under

an Act. (See Ministry of Justice, The Laws of Jamaica, The Beach Control Act)6

The common misconception in Jamaica is that all citizens in Jamaica have access to the

beaches without restriction. However, this is not the case. The Beach Control Actvested all

rights of the foreshore to the Crown. (Here, Parliament refers to The Crown, this was before

Jamaican Independence when Jamaica was still a British Crown Colony, though even today, The

Jamaican Government and Courts still address, in certain aspect, Powers vested in The Crown,

making it still relevant to say that such entity belongs to The Crown in Jamaicas present

common parlance.) In fact, the public does have unrestricted access to some beaches but not all.

The public has access to only those beaches that have been deemed a public recreational beach

and these only can be accessed through a payment of fee. See Section 52 of the Beach Control

Act7.

5See Jamaicas Commitment to the Conservation and Management of Natural Resources Ten years in Retrospect, Laleta Davis

Matis, (Director of NEPA 2002.)6 (See Ministry of Justice, The Laws of Jamaica, The Beach Control Act)

7 (See Ministry of Justice, The Laws of Jamaica, The Beach Control Act 52)


6/36

The aim of the Act was to protect the environment from encroachment by private

institutions, public institutions and citizens. It was designed to make sure that if the beach was

going to be accessed then a fee would be needed to pay to help pay for the maintenance of the

beaches (See NEPA Initiatives and guidelines)8. The Jamaican Parliament of the 1950s had the

foresight to see that tourism was growing in Jamaica. A way to regulate that tourism was to have

hotel companies pay for a license in order to build hotels on beachfront property.

The Beach Control Actis enforced by the NEPA. By the act of the Jamaican Parliament,

the NEPA has the power to enforce fines and imprisonment for violation of theBeach Control

Act.

The Clean Air Actwas established by the Jamaican Parliament in 1964. This Act seeks to

regulate affected premises which entails industrial works, the operation of which is in the

opinion of an inspector to result in discharge of smoke, fumes, gases or dust into the air (See

Jamaica: Ministry of Justice, Laws of Jamaica, The Clean Air Act). This act is administered by

the Jamaican Central Board of Health. This Act had the intention of Parliament to regulate and to

ensure that companies engaged in the business of heavy industries such as Bauxite, Tobacco, and

Sugar would not cause the discharge of dangerous fumes into the areas where they are situated

(See NEPA Id.)9

8See a pocket guide to Environmental and Planning laws of Jamaica, (NEPA 2003), See NEPA guidelines from nepa.gov.jm

9(See Ministry of Justice, The Laws of Jamaica, The Clean Air Act ), See NEPA guidelines from nepa.gov.jm


7/36

However, according to some critics such as Peter Espeut, The Jamaican Government does

not really enforce The Clean Air Act. In a telephone interview, Peter Espeut stated that

inspectors will go on to the premises and audit the companies engaged in the industries. He

stated that more often than not, the companies would fail the inspection, but the government

would do little to enforce the failed audits and inspections.10

The Country Fires Actwas enacted by the Jamaican Parliament in 1942. This Act set to

regulate and to prevent fires being set to get rid of vines and pests, and to clear out open space.

The Act permits citizens engaging in this activity by virtue of permit See Jamaica: Ministry of

Justice, Laws of Jamaica, The Country Fires Act).

The Watersheds Protection Actwas established by the Jamaican Parliament in 1963. This

Act seeks to protect the watersheds from the various rivers in Jamaica. Many of the Sugar

Industries and Bauxite industries are located in areas near rivers. Rivers are needed to help in the

production of Sugar and Bauxite, thereby making enforcement of this Act critical. The Act also

seeks to conserve the water resources of the island and to promote the usage of Jamaicas

abundant ground water. (See Jamaica: Ministry of Justice, Laws of Jamaica, The Watersheds

Protection Act.)

The Wildlife Protection Actseeks to protect the fauna that is indigenous to Jamaica. (See

Jamaica: Ministry of Justice, Laws of Jamaica, The Wildlife Protection Act.)The Act seeks to

establish reserves for various kinds of wildlife and to support in its use for tourism. There have

10Peter Espeut, among other environmental activists who have worked in Jamaica for the past 20 years, are highly critical of

government initiatives.


8/36

been reserves, over the years since Jamaican Independence, established for dolphins, manatees

and sea turtles wear they lay their eggs for nesting.

In 1976, The Jamaican Parliament enacted theFish Industry Actwhich seeks to prohibit

fisheries without a license (See Jamaica: Ministry of Justice, Laws of Jamaica, Fishing Industry

Act.) The Act also gave parliament the right to appoint a licensing authority. The Act enables the

minster to declare fishing sanctuaries. An inspector enforcing The Fishing Industry Actalso has

the right to go on any fishing boat to inspect any violations of the Act. The Minster has the right

to close the fishing season and to declare certain species of fish prohibitory or protected from

fisheries. Parliament also enacted a similar law specifically for the protection of lobsters in 1976.

This Act specifically regulates the prohibition of catching, destroying or landing berried lobster

(See Id.) It also regulates that no spiny lobster can be caught, destroyed or landed if it is less than

3 inches. As recently as 2000, Parliament enacted a similar law concerning Conch (See Jamaica:

Ministry of Justice Id.)

In 1958, The Flood Water Control actwas consecrated by the Jamaican Parliament (See

Jamaica: Ministry of Justice, Laws of Jamaica, The Flood Water Control Act.) This gave the

NEPA, administered through the National Works Agency, the power to enter land in a flood-

water control area. The Act sought to survey, measure, alter, or regulate watercourses. Clean

watercourses or banks and deposit refuse from banks if required. The act sought to build dames

or similar structures necessary for flood water control11

.

11The Country Fires Act, Watersheds Protection Act, Wildlife Protection Act, Fish Industry Act (with similar statutory language

concerning Lobsters and Conchs), Flood Water Control Act, were accessed through the See Jamaica: Ministry of Justice, Laws ofJamaica, where Parliament made provisions for NEPA to enforce those acts.NEPA illustrates its enforcement of these acts in a pocket guide to Environmental and Planning laws of Jamaica, (NEPA 2003), See

NEPA guidelines from nepa.gov.jm


9/36

The Jamaican Parliament enacted The Endangered Species Act of 2000 (See Jamaica:

Ministry of Justice, Laws of Jamaica, The Endangered Species Act of 2000.) This act seeks for

the protection, conservation and regulation of trade of all animals presumed to be endangered.

This act enables officers who enforce the act to enter any vehicle, aircraft, similar vessels, and

storage facilities without a warrant. The search, however, has to be justified with a reasonable

cause. This act is directly enforced by the NEPA. In certain aspects the Jamaican Constabulary

Force can be called to enforce the act (See Footnote on the enumerated powers of enforcement by

NEPA and other various Jamaican Government Environmental Agencies.)

12

Jamaica also has several forest regulation acts with the most recent one being passed by

the Jamaican Parliament in 2001. These regulations seek to curb the deforestation in Jamaica.

Deforestation, in recent years, has become a problem in Jamaica. It is very important that many

of the forests remain intact in Jamaica. Jamaica is a very hilly country, and such deforestation

would result in serious and deadly erosions (See Id at NEPA Guidelines).13

Furthermore, the Jamaican Parliament enacted several environmental initiatives in the

1990s. According to Peter Espeut, per telephone interview, the government began to create

initiatives for the environment for fear of losing funding from the IMF (International Monetary

Fund) and the World Bank. The then Vice President of the United States, Al Gore, wanted to

ensure that many developing countries would begin to enforce their environmental laws and

12Note: in 2001, Parliament merged the various environmental agencies into one entity known as NEPA. The goal was to integrate

environmental, planning and sustainable developments with greater efficiency. Thereby making the powers of NEPA enumerated in

the environmental laws.13

pocket guide to Environmental and Planning laws of Jamaica, (NEPA 2003), See NEPA guidelines from nepa.gov.jm


10/36

establish a jurisprudence to interpret the powers of environmental agencies established in the

developing countries. Al Gore, by using the IMF and the World Bank, influenced many of the

Caribbean Countries to begin to develop a more robust environmental policy. The background to

this is that the United States Government has more than 50 percent shares in the IMF and a

substantial share in the World Bank, and therefore has a very strong influence in the dispersal of

aid to the various developing countries, especially the Anglophone Caribbean Countries. For

example, the IMF and the World Bank give aid to a developing country on condition that the

country does certain actions in its policy etc.

Al Gore used the IMF and the World Bank to get many of the Caribbean Countries to

implement and enforce environmental policy. During the 1990s, Al Gores environmental

initiative through the IMF forced many Caribbean and Central American Countries, including

Jamaica, to begin environmental initiatives. These countries would implement such initiatives to

gain special aid from the IMF and the World Bank; initiatives such as the implementation and

the use of Environmental Impact Assessments.14

Jamaica has several other environmental laws that cover other aspects of the Jamaican

environment. It is most important to note that the NEPA has the power to enforce the following

acts: The Beach Control Act,The Endangered Species Act, The Land Development and

Utilization Act, The Natural Resources Conservation Act, The Towns and Planning Act, The

Watersheds Protection Act, and The Wildlife Protection Act. NEPA directly or indirectly

14Per telephone interviews with Peter Espeut, he went into great detail on Al Gores role in Jamaicas enactment of environmental

procedures. After further research this was shown in Vice-President Al Gores Environmental Initiative from the White Housewebsite clinton4.nara.gov, also for the U.S. influence on the IMF and the World Bank See The United States and the InternationalFinancial Institutions: Power and Influence within the World Bank and IMF, by Ngaire Woods, 2003 in chapter 5 of US Hegemony

and International Organizations (Oxford University Press)


11/36

(through its various sub-agencies) has the power to enforce these acts. The fines and powers

bestowed on the NEPA can be hefty. NEPA has the power to enforce very expensive fines and in

some cases, enter premises without a warrant or imprisonment (See Id at NEPA).

In addition, Crocodile hunting has also been an issue in Jamaica. A certain species of

Crocodile is indigenous only to Jamaica. Crocodiles are considered a national treasure in

Jamaica; it is on the National Coat of Arms. Crocodiles are classified as an endangered species.

The Jamaican Parliament bestowed that NEPA would be responsible for protecting and

maintaining the crocodile population in Jamaica through the Wildlife Protection Act. NEPA

imposes hefty fines and special procedures to enforce the protection of crocodiles.15

Parliament also enacted various procedures that NEPA must follow in order to enforce

the various environmental laws in Jamaica. This is to make sure that when NEPA enforces

Jamaicas environmental laws the parties who are suspected of violating a certain environmental

law are given proper due process (See id. at NEPA).16

Part 2: Brief overview of the enforcement procedures enacted by the Jamaican Parliament in

concerns to the environmental laws

The Jamaican Parliament stipulated that the environmental laws can only be enforced by

those who are enumerated in the various environmental acts.17

This almost always included

15See NEPA Guidelines from nepa.gov.jm

16pocket guide to Environmental and Planning laws of Jamaica, (NEPA 2003), See NEPA guidelines from nepa.gov.jm

17Parliament enumerated the powers and procedures for NEPA in the various environmental laws, which sometimes includes other

agencies See Ministry of Justice, Laws of Jamaica, Environmental Laws, and NEPA guidelines


12/36

NEPA and, in certain circumstances, The Jamaican Constabulary Forces and other Jamaican

Environmental Agencies. Some of the protocols for agents to follow, regarding entry into

premises, when enforcing such laws are the followings:

1) Produce identification to the occupier of premises on or prior to entering the premises

thereby establishing the agents legal authority to so enter.

2) Where the intent is to inspect or obtain information this should be carried out at a

reasonable time. (The Jamaican Parliament gives a guideline for reasonable time as

between 6:00 am and 6:00pm,cite note this guideline does not have to be strictly

followed.)

3) Note whether the legislation under which the agent is operating requires that notice be

given before entering private premises. Note: In Jamaica, entry to premises is often as a

means of conducting a search.

In addition, there are also enforcement procedures for search. Some of the environmental

laws allow for agents to search. All searches must be carried out with the appropriate

procedures. The environmental acts that allow for searches stipulate that the procedures must be

carried out in the following way:


13/36

1. The agent produces identification

2. Inform the person of the reason for the search.

3. Where possible, ensure that a search of either premises or a conveyance is not carried

out alone; ensure that the agent has someone to observe the suspect while he or she is

carrying out the search.

4. Have the occupier or person in charge of the conveyance accompany the agent and

observe the agents actions.

Furthermore, there are also enforcement procedures for body searches, questioning a witness,

seizure and detention, arrest, and investigation of an environmental breach.18

Hence, there exists a complex environmental legal structure in Jamaica. Over the last 60

years, the Jamaican Parliament has enacted numerous environmental laws. It has established an

agency to enforce those laws. In accordance to the Jamaican Constitution all environmental laws

that are enforced are required to have a procedure and afford suspected parties basic due

process rights (See Id.)19In another regard, the history and overview of the environmental legal

structure in Jamaica actually mirrors that of the United States. The United States established the

EPA, and Jamaica established the NEPA. Both of these agencies enforce environmental laws and

implement policies.

However, there is one main difference between the two environmental legal structures is

that the United States has a well-developed legal history, concerning environmental

18See Sampling Guidelines, Protocols, and Procedures, (NEPA 2003)

19See Id.


14/36

jurisprudence, in case precedents and court interpretations of legislative intent to determine the

powers of the agencies that enforce environmental laws20. Jamaica does not have that similar

history. It is however, starting to develop case law or common law, as the Jamaican Courts begin

to take seriously environmental policy in the United States.

Part 3 The Development of Jamaican Environmental Jurisprudence.

Environmental jurisprudence in Jamaica is a recent phenomenon. As mentioned before, there

has been a legislative history of the enactment of environmental laws. However, there were very

little court cases addressing environmental issues. NEPA has enforced some of the Jamaican

Environmental Laws since its inception. Some of these enforcements have been addressed in

court. However, the courts have never expressly addressed the role and powers of the NEPA (See

Interviews).21In Contrast to the American Environmental Jurisprudence, there has been a long

history since the 1970s, of American Courts interpreting the powers of the EPA (See Discussion

in Intro Id). The conservative nature of the Jamaican Courts regarding environmental laws

resulted in the minimization of NEPAs enforcement. Furthermore, there has been a tremendous

amount of criticism that NEPA has done very little since its inception on the enforcement of

environmental law. Danielle Andrade, legal counsel of the Jamaican Environment Trust, quoted

NEPA and the Jamaican Government in the past 50 years have done little to enforce its

20See Environmental Justice: Legal Theory and Practice, Environmental Law Institute (2009)

21Reference is from interviews of Danielle Andrade and Diana McCauley of the Jamaican Environment Trust.


15/36

environment laws in concerns to industries developing land in Jamaica. It has been stated that

since the 1990s, Jamaicas enactment of various environmental government agencies and laws,

was a result of Former Vice-President Al Gores global environmental initiative, and for

Jamaicas desire to get further funding from the World Bank (See Interview quotes at id.)22

Since Jamaicas Independence, Courts of Jamaica have not really recognized environmental

rights for the private citizen. There is no specific right for any members of the public to bring an

action in court where it can be established that some person has or is about to imminently

contravene a prescribed environmental law or regulation and that the contravention has or

imminently will cause significant harm to a natural (public) resource.23 The private citizen has

very limited options in providing a suit because of environmental harm. The maintenance of this

stance of the Jamaican Courts in concerns of specific rights hindered any effective

development of environmental jurisprudence for the private citizen. Therefore, in this regard, the

common law establishment of private citizen rights in concerns to the environment has been

almost nonexistent throughout the history of Jamaican Legal Jurisprudence. (In American

Jurisprudence, this was the American Courts original stance in concerns to private citizens and

the environment, during the Regan Administration, private citizens suits requirement for

standing has been liberalized in many circumstances which were specifically provisioned in

many environmental statutes enacted by Congress such as The Clean Water Act.)24

Part 3(1) The Development of Jamaican Environmental Jurisprudence, the private

citizens right to file suit for the protection of the environment.

22Id at JET interviews.

23See Review of Justice System: Providing Better Access to Environmental Justice (JET, 2009)

24Id at See Environmental Justice: Legal Theory and Practice, Environmental Law Institute (2009)


16/36

However, private citizens in Jamaica do have some limited means in addressing

environmental issues in Jamaican Courts. These limited means in addressing environmental

issues are by judicial review actions and private actions of tort law such as nuisance or trespass.

To add emphasis, the most effective means for private citizens to address environmental issues in

court is through the common law of tort (id at telephone interview with Diana McCauley)25

.

According to Diana McCauley, President of the Jamaican Environment Trust, suits established

by tort law were and still, to an extent, the main way to access Jamaican Courts in concerns to

environment protection.

However, this is only possible, provided that the private citizen can meet the standing

requirement. The typical standing requirement in Jamaican Tort Law is that the person filing

suit must first satisfy the court that he or she suffered particular damage over and above that

suffered by the general public (see Hunter v Canary Wharf, (1997) AC 67726

. As a result, it

should be stressed that civil actions concerning environmental suits are, therein inherently,

addressed as issues in Jamaican Common Law Tort. Therefore, environmental suits are

restrictive in respects to the court because of the guise of tort law.

For example,In Hunter v Canary Wharf, a suit concerning nuisance, with the pretention to

protect the environment, plaintiffs claimed damages because of interference to television

reception as a result of the construction of the Canary Wharf Tower. The construction of the

tower caused considerable damage to the area it was placed because of the excessive amount of

25Id at Diana McCauley

26See Hunter v Canary Wharf, (1997) AC 677, Note many cases are still quoted from England in Jamaica see discussion further

below.


17/36

dust created from the tower and the citizens forced adjustments to their residences. There, the

court limited the action of nuisance only to the private property holders (See id). Jamaica follows

the general English Common Law mantra in regards to nuisance: the act of nuisance is a person

committing a nuisance by using his property to cause damage to the property of another.27

Hence, when private citizens file a suit claiming nuisance with the notion of protecting the

environment; Jamaican Courts will only see the suit as a nuisance claim which may result in a

limited relief for the private citizen. That is to say, the main goal of the private citizens action

was to protect the environment for the benefit of the community, but because the court only

interprets the claim as a nuisance claim it may only provide relief for a particular nuisance

limited to the private citizen and not benefit the community as a whole in respects to the

environment.

In addition, in Cambridge Water Co. Ltd., v. Eastern Counties PLC (1994) 1 ER 53 , the

court, there, expressed its continued restriction in their interpretation of the use of

environmental litigation to ensure broader outcomes for the protection of public resources such

as air, water, soil, and other natural resources (See Review of Justice System: Providing Better

Access to Environmental Justice, submission by the Jamaica Environment Trust and See

Cambridge case.)28

The two previous cited cases were in England. It must be noted that in Jamaican Legal

Jurisprudence the laws and court decisions of England are often cited. The countries of the

Commonwealth Caribbean continue to exhibit perhaps excessive tendencies of reliance on the

27See Ministry of Justice, Laws of Jamaica, Tortfeasors Act 1946

28See Review of Justice System: Providing Better Access to Environmental Justice, submission by the Jamaica Environment

Trust. AndCambridge Water Co. Ltd., v. Eastern Counties PLC (1994) 1 ER 53


18/36

form, structure, substance, and content of the laws expressed in England. (See Guide to

Caribbean Law Research by Yemisi Dina, November 18, 2002, LLRX Law and Technology

Resources for legal professionals.)29

Interestingly, The Public Health Regulations undersection 14 of thePublic Health Act of

Jamaica states that any person authorized in that behalf by the Minister or a Local Board may

institute any legal proceedings against any person for non-compliance with the notice and such

persons may prosecute or conduct such proceedings(See Public Health (Nuisance) Regulations,

1995). To whom may be authorized is not specified by the act, therefore, a private citizen may

have the possibility to be authorized by the Minister of Health or a Local Board and file an action

on nuisance in regards to the environment. However, as of yet, there has been no cases as such.

Note, the authorization is still limited to nuisance. However, nuisance concerning public health

regulations may be advantageous for private citizens to file suit for the protection of the

environment in concerns to court interpretation.30

Several Jamaican Non-Governmental Organizations who work and focus on behalf of the

protection of the Jamaican natural environment have advocated that the current laws regarding

the environment should provide provisions where private citizens can file suit. In the report,

Providing Better Access to Environmental Justice, by the Jamaica Environment Trust

recommended that the Natural Resources Convention Authority Act, 1991 or another other

relevant Act concerning the protection of the environment is amended to expressly provide for a

right of access to the court by any member of the public for breaches of the provisions of these

29See Guide to Caribbean Law Research by Yemisi Dina, November 18, 2002, LLRX Law and Technology Resources for legal

professionals.30

From Section 14 of the Public Health(Nuisance) Act of 1995, Jamaica


19/36

Acts and Regulations, including where such action has resulted in damage to a natural

resource(See Review of Justice System, 2009)31

. The NGOs advocated for years for the

Jamaican Parliament to amend their environmental statutes to grant such access for private

citizens to the Jamaican Courts.

In addition, the fact that Jamaica is a member of the Commonwealth of Independent Nations,

this is the successor to the original British Commonwealth of Nations, Jamaica is heavily

influenced by other Commonwealth Countries statutes. Several other Commonwealth Countries

have enacted statutes that provide for private citizens the right to file suit in concerns to the

environment and public interest. For example, the Trinidad Environmental Management Act,

2000, provides that any private party may institute a civil action before an Environmental

Commission against any other person for a claimed violation of any of the specified

environmental requirements identified in the Act after giving written notice of such violation to

the head of the government environmental authority and the authority has not commenced an

enforcement action (See Judicial Review, and Trinidad and Tobago Statutes Section 69 (1)).

The Act also liberalized the standing requirement in that it grants standing to any individual

or group of individuals expressing a general interest in the environment or a specific concern

with respect to the claimed violation (See Judicial Review, and Trinidad and Tobago Statutes

Section 69(1)). Since the early 2000s, there has been a general trend in the Commonwealth

Countries to enact environmental statutes providing an easier access for private citizens to file

31See Id at recommendations Judicial Review in Environmental Jurisprudence in the Commonwealth Caribbean, Danielle

Andrade, Legal Director, JET (2009)


20/36

suit such as AustraliasEnvironment Procedure Actand Ontario, CanadasEnvironmental Bill of

Rights Act, 200332

.

It seems that the Jamaican Parliament finally responded to the recommendation suggested by

the NGOs. As recently as March of 2011, the Jamaican Parliament has just enacted an

amendment to the current Jamaican Constitution. This amendment will include a Charter of

Fundamental Rights and Freedoms which will replace chapter three of the current Jamaican

Constitution. This amendment was in negotiations in Parliament since the 1980s. The charter

seeks to ensure fundamental rights and freedoms for every Jamaican citizen. This charter will

include a provision that will ensure the right or very person and child the enjoyment of a

healthy and productive environment free from threat or injury or damage from environmental

abuse and degradation of the ecological heritage. Furthermore, the charter also enumerates the

fact that all persons in Jamaica are entitled to preserve for themselves and future generations the

fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as

persons and as citizens of a free democratic society.33 Speaking with Angela Brown-Burke,

Vice President of the Peoples National Party of Jamaica, she stated that the special provision in

the new constitution will ensure private citizens the right to sue in regards to the

environment34

.This constitution amendment will be effective by the end of 2011. This provision

will enable private citizens to have easier access to the courts in concerns to the protection of the

environment in Jamaica. How the courts will interpret future private citizens actions is yet to be

determined. But for now, after the review of the Jamaican Courts conservative nature in

32Trinidad Environmental Management Act, 2000, Section 69 of the Act defines Standing for environment issues. Review of

Justice System discusses issue as well. See Similar liberalized standing laws in Environment Procedure Act of Australia, and

Environment Bill of Rights Act, 2003 of Ontario, Canada. 33

See the New Charter of Fundamental Rights and Freedom which will replace chapter 3 of the current Jamaican Constitution. 34

Angela Brown-Burke, Vice-President of the Peoples National Party of Jamaica, discussed this issue at a conference located inFort Lauderdale, provided by David Rowe.


21/36

addressing environmental issues, this is a big step in the development of Jamaican

Environmental Jurisprudence.

In recent Jamaican Elections, environmental policy has not been a pressing issue to the trends

the economic situation and crime being more of a press matter. However, environmental issues

do come at center stage when issues of tourism and natural disasters such as erosions. However,

as result of the new amendment to the Constitution, where private citizens have easier access to

the court there may, perhaps, be a trend where environmental policy becomes more of a serious

issue in election matters.

Part 3(2) The trends in Judicial Review regarding Jamaican Environmental Jurisprudence

A. Court Costs and Environmental Jurisprudence

As discussed before, private citizens of Jamaica have very few avenues in addressing

environmental issues in Jamaican Courts. When civil actions are filed in concerns to

environmental issues, the issue of court costs becomes an important factor. Generally in

Commonwealth Countries the court process of filing a suit can have serious adverse effects on

the losing party. It is the practice in Commonwealth Countries Court Procedures to have the

losing party pay for all costs in the suit. This is why, in many Commonwealth Countries, persons

filing a civil action are often hesitant to file suit because of adverse consequences. (In contrast,

American court systems are much different in concerns to the losing party, such as the losing


22/36

party normally not having to pay all court costs)35

. Given the fact that the Jamaican Courts have

had a very conservative approach in developing common law rights in regards to the

environment, thus, normally, dismissing the civil action in concerns to the environment, private

citizens and NGOs have been discouraged to file suit because of court costs. In Jamaica,

pursuant to the Jamaican Civil Procedure Rules, is that if the court decides to make an order

about the costs of any proceedings, the general rule is that it must order the unsuccessful party to

pay the costs of the successful party. (See JCPR rule 64.6(1), amended in 2002). This rule

inhibits the private citizens to file suit because of the high risk of that suit not prevailing in court,

thus making it unattractive for private citizens

36

.

However, the Jamaican Courts do have the power to in its discretion to have the successful

party pay for or part of the court costs. However, certain criteria must be met in order for this to

take place such as inter alia, the conduct of parties before and during proceedings, whether a

party may have succeeded on particular issues but not on the whole claim, and payments into

court or offers to settle which are drawn to courts attention etc. (See JCPR Rule 64.6 (2), (3),

(4), and See A Report by the Environmental Justice Project, March 2004 and See Review of

Justice System: Providing Better Access to Environmental Justice.)37

Therefore, citizens have

the ability to convince the court to allocate the court costs to the successful party in court,

however, because it is at the discretion of the court, this successful allocation is not always

guaranteed. Also, at the outset of the suit, the court may not have the ability to have a pre-

emptive order to costs which, in turn, could favor the opposing party. That is to say, at the

35Commonwealth Countries civil procedures are structured slightly different from the American system, such as the losing party

paying all costs. This practice was adopted by the Jamaican legal practice. 36

See Jamaica Civil Procedure Rule 64.6(1), amended in 2002.37

See JCPR Rule 64.6 (2), (3), (4), and See A Report by the Environmental Justice Project, March 2004 and See Review of JusticeSystem: Providing Better Access to Environmental Justice. At id.


23/36

beginning of the suit, the Jamaican Civil Procedure Rules is silent on whether or not a court can

grant a pre-emptive order to cost.38 So if the private citizen files a suit concerning an

environmental issue, it is not determined whether or not the court can grant for the private citizen

a motion for an order to compel or strike a pre-emptive cost. Thus, there is no assurance to the

private citizen in undergoing adverse consequences concerning court costs.

Furthermore, the courts in the United Kingdom have begun to address the issue of court

costs in concerns to sensitive public interest issues. The Environmental Justice Project

reviewed the issues of court costs in the United Kingdom. (Note: The Jamaican Civil Procedure

Rules almost mirrors the English Civil Procedure Rules). The Project found in its study

releasing in 1994 that the possibility of an order for costs remains a major deterrent to the pursuit

of legal action (See a report by the Environment Justice Project, March 2004 and See Review of

Justice System.)39In 2005, in a UK Court of Appeal case stated that the Civil Procedure Rules of

the United Kingdom a protective costs order may be made at any stage of the proceedings; on

such conditions as the court thinks fit, provided that the court is that: inter alia, 1) the issues

raised are of general public importance, 2) the public interest requires that those issues should be

resolved, 3) the applicant has no private interest in the outcome of the case Etc. (SeeR (Corner

House Research) v Secretary for Trade and Industry (2005) EWCA CIV, 192 UK Court of

Appeal.) These trends in addressing court costs favor the private citizen in filing a suit, however,

it must be noted that it is still up to the discretion of the court in the issuance of court costs40.

38No procedural language on Pre-emptive costs in JCPR

39See Environmental Justice: The Cost Barrier submitted by Lord Justice Brooke 2007, also civil procedure rules of Jamaica and

the United Kingdom are almost identical this is another tradition Jamaica adopted from the United Kingdom. 40

See R (Corner House Research) v Secretary for Trade and Industry (2005) EWCA CIV, 192 UK Court of Appeal


24/36

It seems, however, that Jamaican Courts often cite their power of discretion into the

matters of court costs pursuant to Rule 64.6 of the Jamaican Civil Procedure Rules.In Calvin

Green v. Wynlee Trading Ltd, the court stated that Rule 64.6(1) provides that where the court

decides to make an order for costs the general rule is that the unsuccessful party must pay the

costs of the successful party- However, it is clear that, the general rule notwithstanding, the court

enjoys a wide discretion with regards to cost, Rule 64.6(3) providing further that in deciding

who should be liable to costs the court must have regard to all circumstances ( See Calvin Green

v. Wynlee Trading Ltd., JMCA App 3A, from Supreme Court Civil Appeal No. 28/2010., March

2010). Hence, if Jamaican Courts are influenced by the aforementioned Corner House Research

case and the fact that Jamaican Courts often observe their power of discretion into matters of

court costs then the trend would be to set forth for private citizens to file suit for the protection of

the environment with reduce adverse consequences in concerns of court costs41

.

B. The Environmental Impact Assessments: a report that grants enforcement, thus ensuring

success on environmental protection in Jamaican Jurisprudence? Or a report that has little

impact in Jamaican Courts, and the actions of the Government and Developers in

concerns to the environment?

Since the 1990s, in several Caribbean Commonwealth Countries, the governments have

begun to initiate the requirement for developers to conduct an Environment Impact Assessment.

An Environmental Impact Assessment is, according to NEPA, a study of the effects, positive

and negative, of a proposed action on the area in which the development is being carried out it

also outlines mitigation measures necessary to reduce any negative impacts the activity may

41See Calvin Green v. Wynlee Trading Ltd., JMCA App 3A, from Supreme Court Civil Appeal No. 28/2010., March 2010.


25/36

cause (See id at NEPA)42

. In 1992, Jamaica was party to the United Nations Convention on

Environment and Development, Agenda 21. Jamaica signed the accords of the convention, and in

the accords Principle 17 stipulated that Environmental Impact Assessment, as a national

instrument, shall be undertaken for proposed activities that are likely to have an adverse impact

on the environment and are subject to a decision of a competent national authority (See United

Nations Convention Conference on Environment and Development, Annex 1: Rio Declaration of

Environment and Development, Rio De Janeiro, Brazil, 1992)43

.

The Environmental Impact Assessment was adopted in many Caribbean Commonwealth

Countries to make developers aware and, at times, obligated to follow the provisions stated in the

EIA reports. That is to say, the EIA(s) were designed to ensure that wherever developers would

develop land that they do it with the purview in regards to the protection of the environment.

This mantra was to prevent any serious possible harm or adverse impact on the environment as a

result of the developers possible careless reckless disregard. Dependent on the circumstances,

developers in the various Caribbean Commonwealth Countries were required to draft a report on

Environmental Impact Assessment and implement it in their construction procedure.

That report would be accessible by the public, therefore, giving the public ability to

scrutinize the report (Note: the implementation and requirement of the EIA by the act of the

various Caribbean Commonwealth Parliaments indirectly provided for private citizens and

NGOs the right to address in court on the basis of judicial reviewsee further discussion below).

As a result, from the EIA; the findings of the study should be taken into account in project

42See NEPA guidelines from nepa.gov.jm

43See United Nations Convention Conference on Environment and Development, Annex 1: Rio Declaration of Environment and

Development, Rio De Janeiro, Brazil, 1992) also known as Agenda 21.


26/36

design and recommendations implemented should the project be approved, that is if there were

determined any negative impacts in the EIA report (See Environmental Jurisprudence in the

Commonwealth Caribbean, Danielle Andrade, Jamaica Environment Trust, 2009)44

.

In addition, dependent on how the Caribbean Commonwealth Countries adopted the

Environmental Impact Assessment, it also gave the opportunity for private citizens and NGOs to

file suit on behalf of the protection of the environment on the basis of judicial review. Many of

the Commonwealth Countries parliaments enumerated the Environmental Impact Assessment in

their various environmental statutes. By enumerating the Environmental Impact Assessment, it

created a duty for the government and the developers to abide by the results of the EIA. That is

to say, if the developer or the respective government did not follow the proper procedure in

issuing an EIA, the breach of procedure could possibly be accessed to the courts for judicial

review.

In Jamaica, the use of the Environmental Impact Assessment is enumerated in sections Nine

and Ten of the National Resources Conservation Authority Act of 1991, The Authority may

upon evaluation of an application for a permit or license, require the applicant to furnish any

document, information or environmental impact assessment pursuant to Section 9 and10 of this

Act (See National Resources Conservation Authority Act of 1991, Sections 9, 10, and General

18). From looking at the language of the provisions in the NRCA Act of 1991 pertaining to

EIA(s), it would seem that the access to judicial review for the EIA procedure may not be so

expressive in concerns to court interpretation45

.

44Environmental Jurisprudence in the Commonwealth Caribbean, Danielle Andrade, Jamaica Environment Trust, 2009)

45See National Resources Conservation Authority Act of 1991, Sections 9, 10, and General 18


27/36

In other Commonwealth Countries, there is a much more robust environmental legislation in

concerns to the Environmental Impact Assessment. In recent court rulings, Trinidad and Tobago

has expressed an Environmental Impact Assessment procedure and defined its government and

the developers a duty to uphold that procedure. In People United Respecting the Environment

(PURE) v. The Environmental Management Authority, CV 2007-02263 (High Court of Justice)

also known as The Trinidad Smelter Case plaintiffs filed suit against the Environmental

Manage Authority. The suit was based on the Environmental Manage Authoritys permission,

pursuant to an Environmental Assessment Report, to grant Alutrint Limited to construct a

smelter in the location of where some 10,000 people live. The EIA was prepared by the Institute

of Marine Affairs. (Note: The Environmental Manage Authority, Alutrint Limited, and the

Institute of Marine Affairs are all part of the Trinidadian Government.) Health surveys were

conducted by various independent organizations which reported that there was significant

health risks.46

Upon Judicial Review by the High Court of Justice in Trinidad, the court stated that with

respects to handling of hazardous wastes and cumulative human health and environmental

impacts were outrageous, procedurally irregular and shroud in secrecy. Furthermore, the court

citingFisherman and Friends of the Sea v. EMA and ALNG CV 2148 of 2004, defined the

procedures on how the Environmental Management Act is supposed to use the Environmental

Impact Assessment. The court showed these procedures being: 1) the requirement for the EMA

to consider cumulative effects is provided by legislation, without any specific guidelines. 2) The

46See People United Respecting the Environment (PURE) v. The Environmental Management Authority, CV 2007-02263 (High

Court of Justice)


28/36

Court is required to assess whether the Authority took a hard look at all relevant

circumstances. 3) The Authoritys hard look must be supported by substantial evidence. 4) The

Court ought not to impose its own views and ought to set aside the decision only if the

Authoritys decision is not supported by substantial evidence. 5) The Courts mandate is to

verify two things: - procedural compliance, and substantive compliance. 6) Compliance by the

Authority is judged by the level of detail and the decision-making process must exhibit

transparency. The Trinidadian Court, using the hard look doctrine, raised the standard on how

Environmental Impact Assessments should be viewed. This view illustrated here is with great

scrutiny.

47

Furthermore, in other Commonwealth Caribbean Countries, some courts have noted the

required procedures in concerns to Environmental Impact Assessments must be expressly

enumerated.In Belize Alliance of Conservation Non-Governmental Organizations v. Department

of the Environment and Anor (Belize) (2003) UKPC 63 and 2004 (UKPC) 6, the general

allegation was the government of Belize did not follow its proper Environmental Impact

Assessment procedure because of the failure to provide public disclosure of information

concerning the possible adverse impacts on the environment as a result of the construction of the

Chalillo Dam. The failure to properly follow the EIA procedure made it unreasonable and

irrational for the Belizean Government to use the EIA as method of approval to allow the

construction of the dam. The case was appealed to the Privy Council of the United Kingdom.

There, the court stated that the errors in the EIA were not of such significance to prevent it from

satisfying the requirement of the legislation or forming a proper basis for approval (See

Environmental Jurisprudence in the Commonwealth Caribbean, See Belize Alliance Case.)

47See Fisherman and Friends of the Sea v. EMA and ALNG CV 2148 of 2004


29/36

Furthermore, the Privy Council stated that there was language, regarding the enforcement of

EIA(s), in the statutes that were not explicit, and issues remaining to be resolved. As a result,

the Privy Council ruled that it was impossible to enforce the EIA procedure explicitly.48

Jamaicas Environmental Impact Assessment procedure is peculiar, in the sense, that is

distinct from Trinidad and Tobagos and Belizes because Jamaica has no legislation or protocol

in how the procedure of the EIA(s) should be conducted. Jamaicas EIA procedure is in fact

enumerated by NEPAs own agency procedures in implementing EIA(s) (See NEPA: Guidelines

for Conducting Environmental Impact Assessment (EIA), October 2007 by NEPA)

49

. In Addition,

Jamaican Courts have conducted Judicial Review on NEPAs agency procedures in conducting

Environmental Impact Assessments. Jamaican Courts have held, through Judicial Review, that

NEPA and its agencies violated their own EIA procedures by failing in its statutory duty to

consul according to law with the relevant government department and agencies by failing to

distribute the EIA to them. The form of the public meetings held by NRCA and NEPA

adequately met recommended guidelines but not substance. The court held that the agencies

failed to meet legal standards for consultation because they withheld from the public an

important ecological report and addenda to the EIA. (See The Northern Jamaica Conservation

Association and Others v. The Natural Resources Conservation Authority and Another (2006)

claim no. HCV 3022 of 2005, also known as the The Pear Tree Bottom Case50

. The Pear Tree

Bottom Case was a major breakthrough for the environmental legal advocates in Jamaica. For

this was one the first times the Jamaican Courts begun to recognize the need for environmental

48See Belize Alliance of Conservation Non-Governmental Organizations v. Department of the Environment and Anor (Belize)

(2003) UKPC 63 and 2004 (UKPC) 649

See NEPA: Guidelines for Conducting Environmental Impact Assessment (EIA), October 2007 by NEPA)50

See The Northern Jamaica Conservation Association and Others v. The Natural Resources Conservation Authority and Another(2006) claim no. HCV 3022 of 2005, also known as the The Pear Tree Bottom Case


30/36

protection and preservation. Broadly speaking, the case was about the construction of a Hotel in

a protected area in Northern Jamaica.

Furthermore, the court also recognized the need to have the public involved (because the

basic provisions of the EIA establish that there should be public disclosure). The Court inPear

Tree Bottom quoted the Sedley Definition expressed inR v Brent London Borough Council Ex

Parte Gunning (1985) 84 LGR 16851, It is common ground that, whether or not consultation of

interested parties and the public is a legal requirement, if it is embarked upon it must be carried

out properly. Hence, Judicial Review of environmental procedures and legislation is currently

developing in Jamaica, and it seems that the trend is for courts to properly assess the concerns of

the environment and public interest.

Part 4 The Role of the Non-Governmental Organizations

Throughout the history of the development of the Environmental Jurisprudence of Jamaica,

NGOs have played a significant role in developing environmental advocacy in Jamaica. Through

the initiatives of the various NGOs; NGOs have provided education seminars concerning the

protection and maintenance of the environment to Jamaican children. Furthermore, NGOs give

private citizens of Jamaica better opportunity and access to the Jamaican Courts. NGOs are

better funded, better organized, and many in Jamaica have fulltime legal counsel working for

them.

51See Sedley Defintion in R v Brent London Borough Council Ex Parte Gunning (1985) 84 LGR 168


31/36

Secondly, because of the use of Judicial Review and longtime advocacy for the

recommendation that the Jamaican Parliament enact an amendment that would allow easier

access for private citizens to sue on behalf of the protection of the environment (which will

become effective law by the end of 2011); the NGOs have certainly made an impact on courts

developing environmental jurisprudence in Jamaica. Some impacts include the Judicial Review

of the EIA procedures, which has become an effective way in accessing the Jamaican Courts.52

Part 5 Environment Policy in relations to Tourism and Eco-Tourism

Environmental policy seems to be having an impact in tourism in Jamaica. Perhaps, as a

result of The Pear Tree Bottom Case, hotel developers have become more and adherent to the

environmental procedures enforced by NEPA when developing new resort area. The Pressure of

the NGOs, NEPA, and other environmental authorities are ensuring that hotel developers comply

with the environmental procedures.there has been no wonton development without

permission (Interview, from Jamaicans articles and prime interviews by Cathy Kleinhans,

with Basil Smith, the Director of Tourism, for the Jamaica Tourist Board (2007)).

The current trend in Jamaica is to promote Eco-Tourism on the island. Eco-tourism has

brought profit to many other developing countries such as Costa Rica. However, environmental

advocacy groups and NEPA are trying to ensure that eco-tourism will be properly regulated. The

Tourist Board of Jamaica has begun to develop initiatives to expand eco-tourism in Jamaica. In

an interview with Basil Smith, the process of defining Eco-Tourism is being developed by the

Ministry of the Environment and NEPA (Basil Smith Interview at id.) Furthermore, procedures

52Interview with various NGOs advocates


32/36

have been defined to establish eco-tourism criteria such as, inter alia 1) must be within a

protected or eco-sensitive area, 2) must have an element of conservation, 3) formal standards of

operation must be included in the revised Jamaica Tourist Board (JTB) Act etc. (Basil Smith

Interview).53

Part 6 Criticism regarding Environmental Jurisprudence of Jamaica

However, on the contrary, there has been a tremendous amount of criticism of Jamaicas

environmental jurisprudence. According to Peter Espeut, Jamaica has done little to nothing in the

past 60 years or so to enforce its environmental laws. His statement is actually quite accurate.

There have been scant court cases concerning the protection of the environment prevailing in

Jamaica. The conservative nature of the Jamaican Courts further inhibited any development of

common law in concerns to the environment. The fact that it wasnt until very recent, and recent

meaning the amendment will be effective by the end of 2011, that the most effective means to

file a civil action for the protection of the environment was through the Jamaican Common Law

Tort, as discussed before, this was a very limited approach in trying addressing any adequate

judicial ruling for the protection of the environment.54

Furthermore there is no guarantee that if private citizens file suit in matters of protection of

the environment that if he or she loses he will have to pay the court costs of the successful party.

Though there has been recommendations and courts have expressed their discretion; the rule still

remains to be unaltered.

53Interview, from Jamaicans articles and prime interviews by Cathy Kleinhans, with Basil Smith, the Director of Tourism, for the

Jamaica Tourist Board (2007)).54

From interviews with Peter Espeut and Danielle Andrade


33/36

The NEPA has also gone under some heighten scrutiny as well. Recently in December 2010,

the Jamaican Parliament, through Green Paper Proceedings, recommended to replace the NEPA

with a new environmental regulation authority. The reason was from a report by the Auditor

General stating that the NEPA has failed in its mandate to effective enforce the Jamaican

Environmental Laws55

. After several telephone interviews with various Jamaican Environmental

Advocates; it seems that the general consensus is that the NEPA is doing very little in enforcing

the environmental laws. However, perhaps, this is the kind of scrutiny the NEPA needs in order

to be better effective in the future.

There has also been criticism of the Environmental Laws of Jamaica. Some criticisms being

that many of the laws are outdated and are no longer effective. Such laws being enacted in the

1970s with 1970s stipulated fines, which due to inflation, would translate to a miniscule fine

today, thus, making the statute not an effective deterrent in trying to implement environmental

protection.56 Furthermore, the National Parks in Jamaica, many of which have been managed by

various NGOs, have legislation that really does not make any sense. The Jamaican Parliament

established national parks and national wildlife reserves all over Jamaica. Parliament stipulated

in their statutes regarding national parks that the fees regarding the use of the national parks are

to be used for the maintenance of the national parks. However, according to some NGOs, when

the NGOs try to administer the fees to the park guests there are overriding statutes that prevent

55The Auditor General, Pamela Monroe Ellis, initiated Green Paper Procedures on assessing whether or not to replace NEPA

because of its perceived failures.56

See Jamaica for Sale criticisms including comments submitted by Diana McCauley and Esther Figueroa. Jamaica for Sale wasa documentary on Jamaicas ineffective environmental law enforcement and how the tourism industry hinders real Jamaican

economic growth (2010.)


34/36

the NGOs from administering the fees, thus, inhibiting the national parks from properly funding

themselves.57

Moreover the fact that when environmental suits are filed; there should be faster relief and

injunction from the courts. For example, the Pear Tree Bottom Case went through a slow and

long litigation process resulting, by the time, the suit was over the hotel company that was

constructing its hotel on the nature reserve had already completed the construction, thus eclipsing

the goal of the environmental advocates.58

In doing so, this slow litigation process has brought

forth many environmental legal advocates to for the Jamaican Parliament to enact an

environmental court. Advocates state that an environmental court (like the one in Trinidad, the

Environmental Commission) would expedite court cases and allow easier access for private

citizens to file a civil action for environmental protection. Also, it would faster develop a

common law for environmental jurisprudence.

Part 7 Conclusion

Per the discussion, Jamaican Environmental Jurisprudence is really experiencing a

phenomenon, in the sense, that the Jamaican Courts are beginning to seriously address the

matters of public interests. The protection of the environment has become a big concern in

amongst the private citizens of Jamaica. The NGOs will continue to play a vital role in the

57From Jamaican environmental advocate interviews

58The Pear Tree Bottom Case took a number of years to be resolved; by the time the case was done the hotel company had near

completion of the development, subsequently the court made a provision stating that the company was allowed to complete theproject because of the timing of the litigation. This is why many environmental advocates in Jamaica suggest for a quicker

expeditious process in concerns to environmental litigation.


35/36

advocacy of successful litigation and change in government policies that favor the environment

preservation.

However, the shadow of Jamaica, in the past, receiving criticism for failure to effectively

enforce its environment policies remain a reality. However, there have been many initiatives by

NEPA to cast doubt on that criticism. It is up to the Jamaican Government and People to assure

that the environment can be benefited by future generations.

In another regard, Jamaicas stance on enforcing its environmental laws and providing its

private citizens access to the courts for environmental protection will maintain its sovereignty.

For many foreign hotels develop lands throughout the Caribbean Commonwealth Countries, and

in many circumstances, the foreign hotels disregard the local environmental laws of that

particular Commonwealth Country. By Jamaica properly enforcing its laws against these foreign

hotels, who in some cases blatantly disregard the environmental laws, Jamaica will be able to

uphold its rule of law and show to developers that if they want to invest in Jamaica they will

have to respect the rule of law. That rule of law being the Jamaican Environmental Law.


36/36

the development of environmental law in jamaica

Documents