The controversial non-disclosure agreement inked between the State’s environmental watchdog and citrus producer Trade Winds Citrus Limited a day before the entity dropped its case against the company for a 2023 oil spill in the Rio Cobre had insulated the company from any claims for damages or costs in exchange for its pledge to adhere to environmental best practices.

In December last year, National Environment and Planning Agency (NEPA) hauled Trade Winds before the St Catherine Parish Court charging it with breaches of the Wild Life Protection Act for causing a pollutant to enter the Rio Cobre earlier that month.

The company reportedly swiftly implemented “effective measures to prevent environmental damage, including remediation efforts and the cessation of the use of heavy fuel oil in its operations”.

An October 2 mediation session this year to discuss an amicable resolution of the court proceedings resulted in the agreement which bound the parties to keep its “existence or the negotiation that preceded it, their contents, terms, conditions” secret.

However, news of the secret pact caused widespread disquiet, resulting in the resignation of NEPA Chairman Weldon Maddan on Friday morning.

The pact between Trade Winds and NEPA’s parent body, the Natural Resources Conservation Authority (NRCA), signed in the presence of a justice of the peace and witnessed by an attorney on Tuesday last week, saw Trade Winds Citrus Limited (TWCL) agreeing to “take all reasonable steps to maintain and expand its usage of best environmental practices across its operations” and to “actively collaborate with NEPA and community groups in environmental monitoring and developing sustainable solutions for the areas of the Rio Cobre” next to its properties.

According to that agreement, based upon the company’s commitment to carry out those actions, the NRCA agreed to immediately withdraw the court case and enter a
Nolle Prosequi in the Parish Court by or before the next court date of Wednesday, November 27, the very day the case was dropped.

The agreement went further to state that the commitment offered by TWCL was accepted by the NRCA “in full and final settlement of the court proceedings and all claims or entitlements for damages, injunctive relief, declaratory relief, and any other form of legal or equitable remedy which NRCA may claim against TWCL, whether relating directly or indirectly to the subject matter of the court proceeding, including, but not limited to any costs and attorneys’ costs”.

“NRCA hereby releases and discharges TWCL, its insurers, agents, assignees, affiliates, licensees and/or sub licensees arising directly or indirectly to the subject matter of the court proceedings which NRCA now has, or at any time may have, whether such claims are, or could be known to the parties or be in their contemplation at the date of this settlement agreement which, but for the execution of this settlement agreement, NRCA could or may have had against TWCL, their insurers, agents, assignees, licensees and sub-licensees,” the document said further.

In addition it said the NRCA agreed and covenanted with TWCL that it would not at any time after “take or bring any action or proceedings or make any claim or demand whatsoever against TWCL, its insurers, agents, assignees, affiliates, licensees and or sub-licensees arising directly or indirectly out of or relating to the subject matter of the court proceedings”.

As far as any admission of liability was concerned the parties said the agreement is not to be construed as an admission of liability and further agreed that they would not bring any legal action against each other arising directly or indirectly from the court proceedings.

The confidentiality clause, which has raised hackles, saw the parties agreeing to maintain “in strict confidence the existence of this settlement agreement and/or the negotiation that preceded it, their contents, terms, conditions, save that NRCA may make such disclosures to the Director of Public Prosecutions in so far as it is necessary to give effect” to the agreement by the NRCA to drop the case.

Leaks of the agreement were prohibited by each party agreeing to take every reasonable precaution to prevent disclosure to third parties, and that there will be no publicity directly or indirectly concerning the settlement agreement.

Furthermore the pact said neither the attorneys nor representatives of either party should reveal any of the terms of the settlement agreement or the negotiations to anyone.

“It is understood and agreed by the parties than any disclosure made by either or by their agents… that is prohibited by this settlement agreement will be a material breach… which entitles the non-offending party to sue for damages and any other appropriate relief, including but not limited to injunctive relief and specific performance.”

The parties further agreed to pay their own costs associated with the court proceedings and the settlement agreement.

On Friday, Matthew Samuda, minister with responsibilities for water, environment, climate change, and the blue and green economies, in a statement to the media said the Government was “not satisfied that the issue was handled at the board level with the required standards of transparency and openness”.

Samuda, who said Maddan offered his resignation following a meeting on Friday morning, sought to reassure Jamaicans of the Government’s commitment to protect the environment, noting that he understands the “valid concerns surrounding the care and protection of the Rio Cobre, which is a unique and invaluable asset”.

He also noted what he said were “valid expressions of concern regarding the inclusion of a non-disclosure agreement (NDA) clause in the mediated settlement” between NEPA and TWCL, and said he has instructed NEPA to waive its rights under the NDA.

“It is important to note that the Government has previously signalled that NDAs should be used only in very limited circumstances. This situation did not warrant such a clause, and the Natural Resources Conservation Authority (NRCA) has been directed to desist from including NDA clauses in future mediated agreements,” Samuda said.

MADDAN… resigned on Friday morning