Residents’ claims that they faced “irreparable harm” if two bauxite companies were allowed to mine parts of St Ann and Trelawny “are more speculative than based on proof”, according to the Court of Appeal, which lifted an injunction last week.
The court also said “it is plain that the inconvenience to the appellants (the companies) and the public interest from the granting of an interim injunction is greater than the inconvenience” for the residents if the order was allowed to remain.
On June 9, the appeal court overturned a Supreme Court injunction that nine residents obtained in January. The reasons were published late Thursday.
The order had blocked Noranda Jamaica Partners II and New Day Aluminium (Jamaica) Limited from doing any mining under the 25-year Special Mining Lease (SML) 173. It was granted in 2018 but set off a firestorm with fears that the ecologically-sensitive Cockpit Country was threatened.
The residents, mostly small farmers, wanted the injunction to remain until the determination of a lawsuit they have brought against the companies.
But the companies appealed, arguing that the residents did not provide enough evidence to support an interim injunction and that there was not adequate consideration to the view that they would be ruined if they were not allowed to mine since mining was their core business.
The Government, which has a stake in Noranda, supported the appeal, pointing out that a loss of bauxite revenue could have resulted in the imposition of $6 billion in taxes and that it was exposed to lawsuits for contractual breaches.
The appeal court agreed that Justice Anne-Marie Nembhard made several errors in granting the injunction, noting that “it cannot be said that the evidence provided by the 1st to 9th respondents (residents) could convince a court that they would suffer irreparable harm”. The residents pointed to concerns about dust on their farms and health; dangers of exposed mining pits; and contamination of water sources.
“The appellants are correct in asserting that the harm to which the 1st to 9th respondents point, as to effect on their health and livelihood, is speculative. This is because it is largely based on past experiences when the present circumstances, particularly the issues of the blasting and the provision of potable water have been shown to differ significantly,” argued Court of Appeal President, Justice Patrick Brooks, who wrote the unanimous decision.
The other justices who heard the case were Vivene Harris and Marcia Dunbar-Green.
Brooks said there was no report or other scientific evidence “to state definitively” that past mining activities caused health issues and that some of the residents “make several bald assertions as to the deleterious effect of the mining but have not supported those assertions with convincing medical evidence”.
One of the residents, Victoria Grant, has blamed mining for the death of her husband but the court said “there is no conclusive connection”. It pointed to evidence from a doctor used by the residents that the man was a chronic smoker, who also suffered from non-respiratory issues. A contributing cause of death was prostate cancer.
The court also concluded that the SML 173 mining permit “is the most stringent” of the three permits that the residents have complained about although it noted that the condition relating to dust control did not have specific requirements. The companies have essentially finished mining in areas covered by SML 165 and SML 172.
The court also found that Justice Nembhard did not give full consideration regarding which party stood to suffer the greater harm if the injunction was granted.
Brooks said the companies made “bald assertions” and did not provide enough evidence to support their claim that they would likely have to close down if their appeal was not successful.
“Nonetheless, even if the appellants were not obliged to close, the loss of the opportunity to mine in the SML 173 area would be financially significant. If the appellants were permitted to mine in the SML 173 area, it would provide significant assistance to the Jamaican economy and aid in the social development of the community,” he said.
Brooks also noted that the financial losses would be “exacerbated” by the fact that the judge waived the usual undertaking in damages, meaning if after the trial it was determined that the injunction was wrongly granted the companies would not be able to recover their losses from the residents.
The court had waived the requirement for the residents, as claimants, to make a security deposit, on the grounds that they were financially poor.
Noranda and New Day’s argument that the judge “ignored a material fact” that blasting was not the method of mining for work in SML 173 was also accepted.
Meanwhile, the appeal court dismissed the bauxite companies’ claim that the residents were not genuinely motivated in their lawsuit and that they were being backed by a lobby group called Freedom Imaginaries.
“The appellants are not on good ground with this complaint. The fact that the 1st to 9th respondents may have been organised and galvanised into filing and pursuing this claim, does not reduce the validity of their allegations,” Brooks said.
The trial of the substantive issues is set for November to December this year.
The Government of Jamaica has a 51 per cent stake in Noranda Jamaica Bauxite, which is a partnership with New Day, an American firm. In 2021, Noranda Jamaica Bauxite was rebranded Discovery Bauxite.
– Jovan Johnson
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