Supreme Court halts Noranda/New Day bauxite mining
The Supreme Court issued an injunction last Friday which should end either the commencement or the continuation of mining of the lands by the bauxite/alumina partners under Special Mining Lease 173, and will remain in force until the claim brought by the residents is heard and determined.

The Supreme Court has barred Noranda Jamaica Partners II and New Day Aluminum (Jamaica) Limited from mining lands in St Ann's Cockpit Country, which some residents say is threatening their survival.

The court issued an injunction last Friday which should end either the commencement or the continuation of mining of the lands by the bauxite/alumina partners under Special Mining Lease (SML) 173, and will remain in force until the claim brought by the residents is heard and determined.

But sources at the Ministry of Transport and Mining have expressed concern about the effect the halt to production could have on the 25-year mining deal between the Government and Noranda Alumina and Noranda Bauxite, with the latter company focused on mining and shipping bauxite from Jamaica.

In September 2018, Noranda Bauxite announced that it had been given a new, expanded 25-year deal, as well as a 25-year renewal of the Special Mining Lease that will allow it to extract as much as 5.2 million tons of bauxite annually from the Trelawny and St Ann parish reserves.

Noranda resumed delayed bauxite levy payments in September 2021 following negotiations which led to its reinstatement and the asset usage fee debt of US$3.4 million, which was owed to Jamaica Bauxite Mining Limited and was paid in full.

There is also concern that the idled plant and shipping resources could affect the jobs of more than 1,000 employees, as well as 3,000 residents in and around the affected communities.

The court has accepted the evidence of the companies that bauxite mining exercises which they have carried out pursuant to special mining leases 165 and 172 have ceased, and that any tasks being carried out in respect to those leases have been limited to reclamation work.

However, the six claimants insist that the matter has raised important issues surrounding their constitutional rights. They also assert that the bauxite mining activities, on the part of first defendant, Noranda Jamaica Bauxite Partners (Noranda I); second defendant, Noranda Jamaica Bauxite Partners II (Noranda II); the third defendant, New Day Aluminium (Jamaica) Limited (New Day) — collectively referred to as "the Defendant Companies" — and the fourth defendant, the attorney general of Jamaica, have breached or are likely to breach certain of their fundamental rights.

The court heard that following complaints from the claimants, resulting from the issue of SML173 and resumption of mining activities by Noranda I and/or Noranda II and/or New Day, pursuant to the leases, they have suffered significant injuries to their health, damage to their homes, farms and subsistence crops, contamination of their drinking water sources, loss of their livelihood and rural way of life and/or other financial and personal loss and, in the case of the first claimant, the loss of her spouse.

The six claimants who sued the bauxite companies and the attorney general are being represented by King's Counsel Michael Hylton. He is joined by attorneys Marlene Alleyne, Melissa McLeod and Daynia Allen, instructed by Hylton Powell.

They are seeking damages, and are contending that the bauxite 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.

They maintained that, despite numerous complaints in relation to the health impact of bauxite dust pollution, the defendants, in particular the fourth defendant, have failed to take even basic measures to safeguard the life and health of the citizenry before granting special mining leases 165, 172 and 173.

It was asserted that the defendants have never conducted a health impact assessment, in respect of areas which have previously been mined for bauxite; that they have never carried out any medical diagnoses of people in the communities which have been affected by bauxite mining activities; and that they refuse to adopt air quality standards which address the most serious of the industry-related pollutants.

The claimants also contend that the defendants have carried out dangerous bauxite mining activities in their communities and have failed to take sufficient measures to reduce the resultant risk to a minimum.

The court said it accepts the submissions of Hylton, that it cannot tenably be argued that the claimants' pleadings are "obviously unsustainable" or so "unarguable" that they should be struck out.

The court said it finds that the claimants' statement of case raises important and complex questions in relation to the nature and scope of the right to life; the extent of the defendants' obligations in the context of the bauxite mining activities of the defendant companies in the claimants' communities.

The court also said that the State's obligation to respect human rights law includes the obligation to prevent and avoid conditions which may lead to the displacement of people. In the context of the obligation, the claimants' statement of case raises a triable issue which ought properly to be determined by a Full Court.

By Balford Henry Observer senior writer balfordh@jamaicaobserver.com

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