Mining injunction ‘death knell’ for New Day, Noranda

Two bauxite companies have appealed a court order blocking them from mining lands in St Ann and Trelawny, arguing that their survival is under threat and the Jamaican economy faces major upheaval.

On January 20, Justice Anne-Marie Nembhard granted the injunction restraining Noranda Jamaica Partners II and New Day Aluminium (Jamaica) Limited from commencing or continuing any mining activity under Special Mining Lease (SML) 173, which covers lands some residents claim are in the ecologically sensitive Cockpit Country.

The attorney general has been named as a defendant and is vigorously opposing the claim, Finance Minister Dr Nigel Clarke has confirmed.

“Jamaica’s bauxite-alumina sector is of vital economic and developmental significance. The sector supports relatively high-paying jobs and in the past two years has generated between US$300 million and US$400 million in foreign exchange each year,” Clarke said in a Gleaner interview Sunday evening. “In the past, of course, foreign-exchange earnings have been even higher.”

The claimants – nine residents from communities in the affected areas – sought the injunction until their lawsuit against the companies is determined. The trial is set for November 20 to December 15 this year. But the ruling could take months after that.

They are contending that the mining activities have breached – or are likely to breach – their fundamental right to life, the right to receive information, and the right to reside in any part of Jamaica.

But the bauxite companies have counterclaimed that the judge’s decision is wrong and that there are grave implications for the local industry.

Following a case-management conference in the Court of Appeal last Tuesday, an expedited hearing of the appeal against the injunction is set for March 20 and 21.

Justice Nembhard “failed” to grapple with the potential blow to the economy and their business if the planned mining was not allowed to take place, they argued.

“The learned judge failed to sufficiently consider the evidence from them and the attorney general that ought to lead to a finding, on any reasonable exercise of judicial discretion, that the balance of convenience rests in favour of the companies specifically and the Jamaican economy generally and against the grant of an interim injunction,” they said.

According to the companies, by restricting the impact on the companies to “financial hardship and financial losses”, the judge “ignored and failed” to demonstrate that she considered “the real prospect of closure of their operations and that their business would be irreparably ruined if the second (Noranda Jamaica Partners II) and third appellant (New Day Aluminum (Jamaica) Limited) companies were denied the right to access and mine reserves in SML 165, 172, and 173”.

“Given the depleted levels of reserves in SML 165 and SML 172 and the issue of the high silica content, access to reserves in the permitted area of 173 is critical to the survival of the appellant companies, and an interim injunction in circumstances where trial is one year away would sound the death knell for the appellant companies,” the appellants are contending.

The bauxite-alumina industry is a major source of foreign exchange for Jamaica.

The mining industry accounts for more than two per cent of the country’s gross domestic product.

In 2021, Noranda said the company, which employed more than 1,000 persons directly and another 2,000 indirectly, contributed some US$84 million annually to the economy through salaries and procurement of local supplies.

The 25-year renewable lease under SML 173 was originally approved in August 2018. At the time, earnings were estimated at US$150 million per year. The permit has since been amended.

Meanwhile, the companies say Justice Nembhard erred in attributing to the bauxite companies an intention to do blasting, contrary to their evidence that there has not been any such activity in excess of 12 years, and that they had no intention of conducting blasting or using dynamite in any of their operations.

They have also taken issue with the judge’s finding that the residents “stand to lose far more than financial resources” and that “they stand to lose their way of life and livelihoods, face deterioration in the quality of their health … losses for which money cannot really compensate”.

Noranda said that finding was based on speculation or unconvincing evidence.

The residents have complained of breaches to their right to enjoy a healthy and productive environment free from the threat of injury or damage from the threat of injury or damage from environmental abuse and degradation of the ecological heritage and the right to protection from degrading treatment.

They have also appealed aspects of Nembhard’s ruling.

According to them, the judge erred in accepting as credible a submission from the bauxite firms that mining activities in the areas covered by SML 165 and SML 172 “have ceased” except in parts where reclamation work is ongoing and that such a submission was never challenged.

The residents had argued that the mining in those areas impacted their health, contaminated water supplies, and destroyed crops.

They want the Court of Appeal to extend the injunction to cover activities being undertaken under SML 165 and SML 172.

The residents are being represented by King’s Counsel Michael Hylton.

Ransford Braham, KC, in consultation with attorney-at-law Glenford Watson, is representing Noranda Jamaica Bauxite Partners and Noranda Jamaica Partners II.

King’s Counsel Carlene Larmond, instructed by the law firm Patterson Mair Hamilton, is representing New Day Aluminium (Jamaica) Ltd.

In 2021, Noranda Jamaica Bauxite was rebranded Discovery Bauxite. It is the local operation of New Day Aluminium, which is ultimately owned by United States-based Atlantic Alumina.

Discovery is a partnership between Noranda and the Government of Jamaica, now called Discovery Jamaica Bauxite Partners II.

Jamaica is the majority shareholder, owning 51 per cent of the mining company

- Barbara Gayle and Jovan Johnson