Smoke victims arise - Jamaicans urged to sue the state for unhealthy Riverton smog
Published:Sunday | March 30, 2014 | 12:00 AM
Ryon Jones, Staff Reporter
A shortage of resources and the failure of Jamaicans to stand up for their rights are being blamed for the lack of legal action against the State over the frequent fires at the Riverton City Landfill.
Under the Charter of Fundamental Rights and Freedoms, Jamaicans have "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 attorney-at-law Bert Samuels believes it's time that someone affected by the Riverton smoke take the matter to court.
"It has to start with a victim to show that some damage has been caused - like an asthmatic child. Then you can get what is called a constitutional relief on two grounds: one, the Government had permitted a dump to be operated without a licence; and two, it has caused a breach to the entitlement to a safe environment," said Samuels.
He noted that for the matter to be placed before the courts, it needs persons who are directly affected to make the first step.
"The parents who have children attending schools down there (close to the Riverton City Landfill) should do a petition and then get the lawyers behind them. Then we would have real cases with real children suffering.
"The charter includes rights of children, so if a school is not functioning because of the amount of pollution, then you may be able to attack it under two rights: rights of children in general, and then right of safe environment, because the respiratory system of children is more delicate than adults," added Samuels.
LACK OF WILL
The outspoken attorney was supported by Diana McCaulay, chief executive officer of the Jamaica Environment Trust (JET), who declared that it is not a lack of will why more has not been done through the judicial system to force the Government's hands in some of these environmental matters.
"Essentially, it is simply a matter of resources. We have actually done quite a lot of research in doing exactly that," McCaulay told The Sunday Gleaner.
"But one of JET's principles is that we need people who are more directly affected - like those in Cooreville Gardens, Patrick City or Duhaney Park - to stand with us. That's a much stronger case, rather than just the environmental group filing it on behalf of everybody in Jamaica," added McCaulay.
She said JET has identified enough environmental cases that should be tested in the courts to keep 10 lawyers fully occupied.
According to McCaulay, the filing of legal action has been one of the more successful approaches in challenging environmental breaches in the past, and there needs to be more of them.
"We have filed three successful lawsuits against the Government and are currently researching Goat Islands and Riverton," said McCaulay. "Goat Islands is one, because if you look at the Charter of Rights and Freedoms, it says [we have a right] not just to a clean and healthy environment, but free of the threat of abuse of the ecological heritage. And everywhere you look in Jamaica, there is abuse of the ecological heritage."
The environmentalist charged that persons might not be taking the matters to court because they are afraid to challenge the Government.
"They are afraid of victimisation, they are afraid of repercussions, and they don't think that they will be successful," said McCaulay.
"Somehow, we have lost control of our democracy. We have convinced ourselves that there is nothing to be done, we can't hold our governments accountable, we cannot require of them to obey the very laws they have passed, and everything is hopeless."
LEGAL HURDLE
Fellow environmentalist Wendy Lee, the former executive director of the Northern Jamaica Conservation Association, noted that in Jamaica, there is no right of third-party standing, and this has prevented groups from taking legal action for breaches of fundamental rights.
"We might have something in the Constitution that says we have a right to a clean environment, but unless it is operationalised, how do we compel the Government to do this?" asked Lee.
"Riverton [smoke] affects a lot of people and it is visible, and the people it affects are powerful people, so they make a lot of noise. But in the rural areas, we have a lot of garbage issues that affect people in pockets all over the country," added Lee.
She charged that the Government only reacts when persons resort to drastic measures.
"They (political representatives) behave with impunity, as if they are not accountable to the people who have elected them, or even to the people who didn't elect them. What gets results in Jamaica is block road and burn tyres," added Lee.