Environmental claims and the George Town landfill
Anthony Akiwumi and Vaughan Carter write: The recent publication of a study from Italy entitled Morbidity and mortality of people who live close to municipal waste landfills: a multisite cohort study in the International Journal of Epidemiology (Mataloni et al, Int J Epidemiol (2016) 1-10) should bring into even sharper focus the dangers posed by the continuing presence of the George Town Landfill (GTL) and the failure to remediate this national environmental hazard.
The Italian study concluded that people who live within three miles of a landfill and who are exposed to landfill pollutants are at an increased risk of dying of lung cancer and respiratory diseases, as well as being hospitalised for respiratory diseases. If correct, then a significant portion of our population who live and also potentially who work or attend school in the three-mile radius around the GTL could be affected and such persons may well now be considering whether they have a cause of action to bring an environmental claim against the government entities responsible for the GTL.
Given that George Town Primary School, John Gray High School, Cayman Prep and High School, St Ignatius Catholic School, Triple C School, the University College of the Cayman Islands, the Truman Bodden Law School, along with numerous other pre-schools and early childhood centres, and not just the neighbouring Cayman International School, fall fully within the cross-hairs of what may very well be a public nuisance emanating from the centrally located landfill; as do the South Sound neighbourhood, the signature Camana Bay development, the West Bay Road tourism corridor and many of the major hotels and associated residences, not to mention our capital and the entire downtown George Town area; this ought to be nothing short of a national emergency.
In the circumstances, the government, in compliance with its statutory and common law obligations, should be required to take proactive steps to mitigate the danger that the GTL presents to children and adults alike. Failure to take any steps to assure the public and mitigate the danger of exposure to harmful substance deleterious to public health could raise the spectre of the government being held accountable and liable in law for any resulting damage.
Although, to a few, the prospect of “depoliticising” the issue of the GTL and requiring compliance by government with its basic obligations might be surprising, our conclusion, as set out below, is that a government that fails to act, including providing the requisite infrastructure to abate a public nuisance, risks being compelled to fulfil its statutory duty through actions in the Grand Court for negligence, breach of statutory duty, public/private nuisance and constitutional claims founded on the Bill of Rights, Freedoms and Responsibilities.
Negligence
In order to succeed, any claim in negligence will be required to prove that (i) a duty of care is owed to the claimant; (ii) such duty has been breached; (iii) the breach of such duty has resulted in loss; and (iv) the loss arising from the breach of duty was foreseeable. If the Cayman Islands Government was not already on notice as to the foreseeability of loss arising from the GTL and was somehow hoping that no causal link could be established between the landfill pollutants known to emanate from the GTL and illnesses regularly suffered by persons in the proximity of the GTL, then this approach must now be under urgent review.
Breach of Statutory Duty
The various causes of action for environmental claims are not mutually exclusive and where a statutory duty can be established, as is the case in the United Kingdom where section 33(1)(c) of the Environmental Protection Act 1990 introduced a prohibition on the disposal of waste in a manner likely to cause pollution of the environment or harm to human health, negligence claims are often supplemented accordingly (see Re Corby Group Litigation [2009] EWHC 1944).
Whilst the relevant local legislation – the Public Health Law (2002 Revision) – does not go as far as to provide a comparable express prohibition, it does still create a series of statutory duties, which oblige designated public officials to take what are, in many instances, actions clearly designed to be preventative or precautionary in nature. Hence section 4(2) of the Public Health Law (2002 Revision), for example, stipulates that: “It shall be the duty of the Chief Medical Officer to take, from time to time, such steps as may be necessary for ascertaining the sufficiency and wholesomeness of water supplies within the Islands.”
In the context of Nuisances in Part III of the Public Health Law (2002 Revision), the statutory duties are twofold. Section 6(1) obliges the “Senior Medical Officer of Health to cause the Islands to be inspected from time to time for the detection of matters requiring to be dealt with under this Part as being statutory nuisances ….” In the event that a statutory nuisance is identified, whether this is by way of an inspection undertaken in accordance with section 6(1) or otherwise, section 6(2) places a duty on the Chief Environmental Health Officer “to take such steps as he deems necessary to remove or secure the abatement of all statutory nuisances and, if the circumstances so warrant, proceed at law against ant person committing such nuisances.”
Statutory nuisances are defined in section 7(2) of the Public Health Law (2002 Revision) and include, inter alia, at (i) “noxious matter or waste flowing or discharged from any premises into any street, or into the gutter or side-channel of any street, or into any gully, swamp, watercourse, irrigation channel or bed thereof, not approved by a Medical Officer of Health”; at (n) “area of land kept or permitted to remain in such a state as to be prejudicial or offensive to health or a nuisance”; at (q) “accumulation or deposit of refuse, garbage, offal, manure or other matter whatsoever which is prejudicial to health or a nuisance” and at (t) “factory, workshop or other trade premises causing or emitting effluvia, gases, vapours, dust or smoke in such a manner as to be offensive or prejudicial to health or a nuisance to persons either within or outside such premises”.
The extent to which the GTL has been subject to the scrutiny anticipated in Part III of the Public Health Law (2002 Revision) is a legitimate question and the government ought to move swiftly to clarify whether the GTL has been inspected by the Senior Medical Officer of Health and, if not, why not; whether, in the course of such inspection, a public nuisance was identified by the Senior Medical Officer of Health and, if not, why not; and whether the Chief Environmental Health Officer has taken any steps to remove or secure the abatement of the statutory nuisance arising at or from the GTL and, if not, why not.
Without in any way prejudging the answers to these important questions, it might be that the government has taken the view that its facilities are somehow exempt from the statutory regime and/or that it is impractical for one arm of Government to proceed against another (or indeed, in the case of the Chief Environmental Health Officer, effectively to police itself given that the Department of Environmental Health is also responsible for waste management under the very same Public Health Law (2002 Revision)), thereby relieving the designated public official or officials from their respective statutory duties.
This, we suggest, would be flawed for all kinds of reasons, not least that it would fly in the face of section 18(1) of the Bill of Rights, Freedoms and Responsibilities, which declares that the “Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is not harmful to the health or well-being of present and future generations, [albeit] while promoting justifiable economic and social development” (see further in respect of this and other human rights claims below).
Public and Private Nuisance
In addition to the concept of a statutory nuisance established in the Public Health Law (2002 Revision), common law actions for public and private nuisance could also be available to potential claimants. While “the same conduct can amount to a private nuisance and a public nuisance” … “the two torts are distinct and the rights protected by them are different” (per Dyson LJ in Re Corby Group Litigation [2009] QB 335 (CA).
Private nuisance will be of particular assistance to property owners because it generally pertains to the right to enjoy one’s property. In contrast, a public nuisance does not necessarily involve interference with use and enjoyment of land and arises when a person acts in a manner not warranted by law, or fails to discharge a legal duty, and where the effect of such act or failure is to endanger the life, health property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone (R v Rimmington, R v Goldstein [2006] 1 AC 459). Claims for public nuisance are therefore potentially available to a far wider group of claimants, including in particular for present purposes, students attending school in the proximity of the GTL, who would not themselves have the requisite property right for a private nuisance claim.
As regards the requirements for establishing liability in public nuisance, these were set out by none other than the recently retired President of our own Court of Appeal, the Rt. Honourable Sir John Chadwick, in the course of his judgment in the Court of Appeal of England and Wales in Wandsworth London Borough Council v Railtrack Plc [2002] QB 756. Put simply, there are three elements that must be satisfied and if (i) a defendant is aware of a public nuisance; (ii) has the means to abate it; and (iii) has then opted not to abate; then the defendant is liable.
It is indisputable that the government was aware of certain problems associated with the GTL, as these have been extensively documented. The pertinent question now is whether these problems amount to a public nuisance. Thereafter, the equally pertinent questions will be whether the government had the means to reasonably prevent or abate the public nuisance and whether the government then failed to utilise such means within a reasonable time.
Claims under the Bill of Rights, Freedoms and Responsibilities
As noted above, the Cayman Islands Constitution Order 2009 has specific protection for the environment in its Bill of Rights, Freedoms and Responsibilities and should be acknowledged as being progressive in so doing. However, whenever the opportunity has presented itself, the government has been quick to seek to limit the application of this right, along with other rights which were included in the final document at the behest of the Cayman Islands and which go beyond those rights that the United Kingdom are themselves bound by under the European Convention on Human Rights (“ECHR”) (see Coe, Multon, Smith and Ebanks v Governor and Four Others [2014 (1) CILR 251 and on appeal at [2014 (2) CILR 465] – the “West Bay Road Closure Case”).
While the Cayman Islands Courts were called upon to consider section 18 of the Bill of Rights, Freedoms and Responsibilities in the course of the West Bay Road Closure Case, the extent to which this particular right is justiciable and gives rise to enforceable rights, as opposed to a mere responsibility to observe, undoubtedly merits further consideration.
Irrespective of how section 18 is ultimately construed, there are, in addition, other fundamental rights that do feature in the ECHR, which are well established as the basis for environmental claims. These rights include the right to private and family life in section 9 of the Bill of Rights, Freedoms and Responsibilities (the equivalent of Article 8 ECHR) and the right to the peaceful enjoyment of property in section 15 of the Bill of Rights, Freedoms and Responsibilities (effectively the equivalent of Article 1 of Protocol 1 to the ECHR, albeit that the ECHR provision refers to the peaceful enjoyment of “possessions” and not simply property), which can be activated where a nuisance impacts such rights and interferes with their enjoyment.
Moreover, when the nuisance results in a death – precisely what the recent Italian study finds where persons who live close to municipal waste landfill contract lung cancer and other respiratory diseases – then the most fundamental of all rights, the right to life, which is enshrined in section 2 of the Bill of Rights, Freedoms and Responsibilities (and, in almost identical fashion, in Article 2 ECHR), will also be activated.
Given the parallels between the Bill of Rights, Freedoms and Responsibilities and the ECHR, once environmental matters start to be litigated in the Cayman Islands and fundamental rights engaged for this purpose, it is highly likely that trends, already clearly evident in the ECHR jurisprudence and which have obliged States to disclose environmental information, to enforce environmental laws and to regulate environmental risks, will be mirrored locally. Indeed, even if the government is successful in watering down the effectiveness of the stand-alone “right” to protection of the environment, the mere presence of section 18 in the Bill of Rights, Freedoms and Responsibilities and the commitment to environmental protection that it still represents will surely underscore the weight environmental issues are then accorded in the application of other and what some consider to be more tangible rights.
Accordingly, as regards the GTL, the Cayman Islands Government ought to be alive to the significance of disclosing all relevant information regarding the GTL and, especially, any risk that the GTL may pose; conscious of the need to apply and enforce all local statutes insofar as their provisions pertain to the GTL; and very much mindful of the importance of being able to demonstrate that it is mitigating any risks that do stem from the GTL.
Conclusion
Public health laws are a manifestation of a government’s obligation to ensure that its citizens are not exposed to noxious and otherwise hazardous substances, which are deleterious to and/or expose residents to a substantial risk of damage to their health. In discharging this basic obligation, political and parochial considerations are necessarily subordinate to the assurance that the government will proactively procure all reasonable measures to guarantee the protection of all residents from the risk of exposure to toxic substances.
Abatement powers granted to government officers entrusted with the responsibility of safeguarding the public from nuisances are an essential weapon wielded by governments for the protection of its citizens. The omission by a government to deploy its protective mandate is matter of grave concern, more so in circumstances where, paralysed by indecision and politics and in breach of its social responsibility, a government fails to take steps to abate a nuisance that is a clear, continuing and present danger to all. Given the seriousness of the issues at hand, the time may soon come when affected members of the public could require the government to account for any omissions in a court of law.
Anthony Akiwumi and Vaughan Carter are Attorneys at Law with Etienne Blake.
This article has been produced for general interest and does not constitute legal advice.
Category: Environmental Health, Health, Viewpoint
It’s encouraging to understand that new WTE’s will be the solution. That the WTE’s solve the problems of OLD landfills. BUT, how does the fact that the old landfill will still be over 80 FT high and counting? That it will still be seen from Cruise ships at sea.
Won’t we still be stuck with a landfill mountain? Won’t it still catch fire? Will it not still keep on leaching into the groundwater, the sea in the North Sound? So by moving it to any other part of the island will it not still continue to create more problems? I heard that another landfill area on the other islands filled up with rainwater and the workers decided to puncture so it could go into the soil? If thats true what guarantees would landholders around a WTE have to secure that from happening near their property? If a WTE has no problem and you all feel that by moving it SOMEWHERE else then where it is now, Would you offer your neighborhood please?
The dump situation is like the Dart situation: we all know it’s a problem but we don’t know what the solution is!
The people who are saying “don’t move it to BT” are being hippocritical and need to be reminded that their garbage from BT is “moved” to GT for dumping everyday and has been for the past 75 years. With the amount of illegal dumping that is currently taking place in BT, it is evident that BT now needs it’s own dump.
As I have said, over and over before ,MOVING IT is not a solution you need to fix it where it is. These lawyers and anyone else need to understand what they read from the report .Landfills cause major respiratory problems. Then why would you put it in Bodden Town? The wind travels west, that means more problems for people to the west. It would spread all over from Bodden Town to George Town. What is the difference?
You furriner always coming here disrespecting our Heritage!
We do need to do something about the dump but do you morons realize how much cleaner the air is in George Town than most cities in the world. You cant compare the dump here with one half way around the world and many times bigger.
Hello 4:02pm, OUR dump is relative to the size of our tiny tin bit island! We can’t afford for it to get worse before we take action!
If you had half a clue you would acknowledge that it’s slowly killing us all!!!!!!
If there are valid concerns about ” air ” quality around Mount Trashmore, what on earth leaches into the ground and eventually North Sound, after heavy rain. In the 80’s, the water at the back of my house just east of Harbour House Marina was swarming with fish – Sergeant Majors, Grunts, Squirrel fish, Angel fish, baby Barracuda, Gars – endless varieties. Now, it is a complete desert, nothing, and the bottom covered with dirty brown scum. Wonder why?
mostly dredging, mangrove destruction, over development, and runoff with pesticides and chemicals from land (an not just from the landfill).
Something called phillipinos happened to the fish. As for the brown scum it is caused by the nitrogen fertilizer run off from all those pretty lawns and golf courses
Jamaican fish tea played a role as well, together with a total refusal by the authorities to enforce laws relating to fishing licenses.
Uhhh Thanks for using all those fancy lawyer type words.
You should have a link to second version that puts most of this in layman’s terms just in case one of the members of government wants to read and understand it.
Wish I could like and Lol this comment! Top marks.
You mean the bit in the study that says “The link with respiratory disease is plausible and coherent with previous studies, whereas the association with lung cancer deserves confirmation.”, this is from the report, and is associated with airborne contaminates, which are unlikely to be prevalent within a ‘prevailing wind’ environment. ie 95% of the time the wind blows the carcinogens out to sea and the 43% increase in respiratory disease is actually 5% of 43% for anyone living upwind of the dump, In essence a 2% increase in risk for most of Cayman, which compared to an increased risk in radiation from flying or the sun is pretty inconsequential.
A summary.
“The CI Government is open to lawsuits because they have knowingly jepodised the rights of their citizens in numerous ways.”
Some of these could be catastrophic is their scope if you consider they could be obligated to pay health care costs, restitution, be forced to purchase adjacent properties in a 3 mile radius, damages due to impediments on all businesses and propert owners, damages due to infringing on a persons constructional rights. Not to mention the remediation cost of cleaning up a hazardous waste disaster. I’m sure some creative lawyers will find even more ways to beggar our government.
the people who knowingly bought land next to a dump and then developed it messed up their own rights
Well Iwill be staying away from Camana Bay that’s for sure!
I’d strongly suggest you read the third paragraph again and reassess whether you should ever leave your house again.
LOL DART land gonna make everyone there sick
Yeah – and all of George Town too. Still so happy?
Alden, you said the dump wasn’t a “quick fix”; but a quick fix would’ve better than no fix at all. As Minister of Health you should be held criminally negligent for failing to act and not protecting the public’s health.
The voters of GT are waiting for you and Roy
Don’t forget charged for allowing the destruction of our coral as well..
Alden, you should remind all concerned that the dump was there before they all came along. Now they are dictating that government mitigate the problem at tax payers expense.
Get ready for the political and financial elites to spin this into a PPM vs UDP issue rather than a health vs government incompetency issue.
Just swallow your pride and beg Dart for his deal again. I’m soooo tired of our politicians doing NOTHING unless their cronies get a profit?!?
We don’t need a new port and construction of new hotels and condos should not be encouraged as an arm of the economy.
You can’t make more land so cherish not destroy what we have left.
Thank you Anthony and Vaughn !
If you dont like the cancerous fumes here on the islands, then it is time for you to leave. I myself will stay and be a proud caymanian in the face of expats who are trying to steal our island, and now they are trying to steal our trash.
Huh? You can have the trash, just move it to BT.
You do realise how stupid that comment makes you look and how backwards it sounds when you say you are a ‘proud Caymanian’?
You’re just a racist moron, be proud of that.
The stealing our trash line is a wee hint this is ironic (I hope!)
Racist? Caymanian is not a race! Do you know how moronic that comment made you look!
Its called sarcasm and it is kinda funny.
Thank you for finally telling the truth about how Caymanians feel about everyone else. Now the way you treat us makes perfect sense. We are not going to steal your island. Not when you have already sold it to us.
To 10.34am You actually fell for that? That is obviously not written by a caymanian but someone pretending to be a Caymanian in order to cause strife between expats and caymanians , and you fell for it. Sorry.
LOL.
As a Generational Real CAYMANIAN (you forgot to put your caps lock on) I 100% agree with you. If ex-pats don’t like cancerous fumes, the sweet stench of our caymanian waste, the prolifiration of our own native born Caymanian rats and flies then they can just go back to where they came from. We Caymanians are proud people – we are proud of the great mountain we have built – it is a new mount Ararat where we Caymanians will be saved from the great flood that God is about to unleash on all the gays and foreigners who come here to steal our jobs.
To Whodatisnt, the name seems well earned since you are obviously not a real Caymanian but only a pretend one. I guess you are one of those who wants to fan the flames of those who want to create problems between Caymanians and expats. If you can’t do something good then do nothing. At the very least stop trying to create unrest here in Cayman . You probably do not even live here ,but since CNS allows anonymous postings you are allowed to get away with it. If you were forced to sign your name then you would not post such a comment on here, not if you lived here.
@9.40am This is what I hate about anonymous comments; there is no way in the world that you are Caymanian .Just a foreign troll.
Really, do ya think genius.
You just don’t see the irony in the posters name do you. You know, that other ‘proud Caymanian’ genius.
To the poster at 5.09pm 03/06/2016 I am not sure who you are responding to as you do not specify. FYI I am the commenter at 1.40pm 03/06/2016 and my post clearly states that I was responding to a comment at 9.40am which was by Anonymous so if by some chance you were responding to my comment then I don’t see the relevance . However feel free to clarify.
Have any of you ever noticed the yellow/brown haze that is often seen out at sea to the west of the island? I can only assume this is caused by a nice combination of noxious dump fumes and CUC exhaust fumes. CUC and the dump are quite simply disgusting and outright dangerous to our health!
And cruise ship exhausts, to say nothing of the unregulated emissions coming out of an increasingly congested GT/SMB.
Wrong, it’s just Mac blowing hot air as usual.
I think you may need to ‘localise’ that study a bit before you take something written in Italy as applicable to Cayman, I’m sure that being close to a dump isn’t good for anyone but without a study on how prevailing winds impact the fallout it is really just stating the obvious. If we can assume that 80% of the time the winds blow the stink out over the North Sound does that mean I can live upwind of the dump without issue for 80% of the time? Then of course is the question of ‘what next’, burning the stuff releases more of these toxins in greater volumes, so do we just find an area with a 3 mile exlusion zone and dump stuff there? The final thing is the dump has been there for a long time, so could you bring a lawsuit knowing the dump was there and yet still built next to it?
If the 1860ish case of Tipping v Copper Works is still good law the answer to your last point may well be -yes.
Thanks Aki! Aki for Premeir!
Any lawyer willing to take on a claim will have a field day and be laughing all the way to the bank.
There are also private entities and other govt. departments in breach of environmental legislation but red handed proof is either hard to come by or turned a blind eye to or covered up. This is the order of the day and I don’t see it changing any time soon.
30 plus years of environmental neglect has been swallowed like a small pill by the populace and the pace of population growth and development continues.
Now the solution to the problem seems too big to swallow for any future regime to swallow. We are all to blame for thinking govt. have this in hand and letting this happen.
Yup. Everyone living next to the dump moved there after it was there. Government is mitigating by layering marl over it. It could possibly do more, including for example banning the importation of polystyrene, but move it it should not. It is in the industrial area and close to the producers of the waste – i.e. Exactly where it should be.
With all the hazardous waste from decades of improperly disposed Materials mixed in. All that leaching into the ground water and out to the north sound. You have no idea just how much poison is in there or how serious it is. Covering it up won’t fix that.
Remediate by waste to energy. More expensive to build and treat this way, but less xonsive in the long run because of limiting the Governments legal liabilities. Plus it would just be b enter for the public health and our visitors won’t have to look at and smell a giant stinking pile of garbage.
Can we just start recycling the yard waste already. I’m sick of importing fertilizer and soil when we could be creating that here.
Wheezy.
Why do you call it stinking? I have been around it much of my life. Standing on it it smells, but even nearby the smell is undetectable. when it smells in the area, that is the smell of mangrove swamps at low tide, not the smell of the dump.
Moving it to Bodden Town won’t fix it either.
Thank you Ozzie for selling out your country for a small special interest group and a seat in the LA.
So by government supporting the development of more public roads near this toxic wasteland and supporting the closure of public roads along the coast where the air is cleaner, it is forcing the public to suffer greater exposure to noxious fumes which may lead to respiratory illnesses and exposing itself (the government) to increased liability for negligence?! Wow! I guess a proper development plan by the government would have forced them to consider all those factors!
Instead, it appears that the developers are dictating the development plans, so they can buy acres of cheap, potentially hazardous land and then agree to expand public roads next to the area and frighten government about liability in negligence for making the public sick in an effort to have the toxic fumes moved from their once cheap acres of swamp land so the value of the land can increase and they can make a profit without any mention of why the developer would build a school and a community center so close to such a toxic wasteland?!
I guess no mention of the developer’s potential liability in negligence as well, for knowingly building schools etc so close to a dump that had already been there for decades, knowing that the developer would be exposing tenants and the public to such noxious fumes!
To make matters worse, the developer and government are closing even more coastal access public roads and building public roads even closer to the toxic dump!
However, the developer wants to force government to move the dump in a residential community where no dump previously existed thereby negatively impacting those persons’ health and property values, in order to positively impact the rich developer’s land values and decrease their potential liability in negligence for causing their tenants and the public to suffer harm from noxious fumes that the developer exposed them to!
Consider all things with both eyes wide open!
So it’s clear our gov’t is at fault here on many of the offenses brought up– question is, how do we, the general public who are breathing in the cancerous fumes from the dump, go about holding our gov’t accountable?????
Who would put a school next to a dump? A developer with a plan. Who would send their child to that school?
time for a class action…lets go….
And placing the dump in people backyards in Bodden Town is still not the answer.
Yep, doing nothing is obviously the Cayman answer as always.
It’s treatment facility…….do you people read???? It’s not going to be the same as it is in town.