‘Straight sell-out’
‘Straight sell-out’ . Describing details of the secret pact between the Natural Resources Conservation Authority (NRCA) and Trade Winds Citrus Limited as “worse than anticipated”, attorney-at-law Marcus Goffe says the environmental body acted against Jamaicans’ interest...
The Gleaner
Describing details of the secret pact between the Natural Resources Conservation Authority (NRCA) and Trade Winds Citrus Limited as “worse than anticipated”, attorney-at-law Marcus Goffe says the environmental body acted against Jamaicans’ interest when it discontinued prosecution against the private company and committed to no future litigation after it spilled oil in the Rio Cobre in St Catherine in December 2023.

Particulars of the private settlement, which was first mentioned in the St Catherine Parish Court on Wednesday, was published on the National Environment and Planning Agency’s (NEPA) website yesterday after public furore, including from Jamaica Environment Trust, Friends of Rio Cobre and the opposition People’s National Party.

Trade Winds, a juice-making firm, was charged with breaches of the Wild Life Protection Act following an oil spill on December 11, 2023. The company owns the Jamaica Beverage Plant from which the oil was emitted.

NEPA is the technical and enforcement arm of the NRCA, which is an agency of the Prime Minister Andrew Holness-led Ministry of Economic Growth and Job Creation.

The agency obtained permission from the Office of the Director of Public Prosecutions to prosecute the matter.

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“This [appears] to be a routine thing that has happened in the past. It’s never appropriate for any crime to be given a non-disclosure, confidentiality agreement of promises of non-prosecution,” said Goffe, who witnessed the court proceedings on behalf of the environmental group, Friends of Rio Cobre.

The group said it represents over 200 fisherfolk and residents who depend on the river for their livelihood. The oil spill impacted the source of income of scores of residents.

“It’s a straight sell-out because here it is in the agreement, NEPA is committed to not assisting the public to get justice – the communities who brought a claim against Trade Winds. So they are therefore agreeing in the agreement to protect Trade Winds against the public interest. So it’s worse than we thought because they obviously colluded and that is why they didn’t want it to come under scrutiny,” Goffe told The Gleaner.

An international exporter, Trade Winds, whose flagship brand is Tru-Juice, is a key employer in the area and surrounding St Catherine communities. The company faced possible reputational damage if successfully prosecuted.

THE AGREEMENT

In the seven-page agreement, Trade Winds is called on to “take all reasonable steps to maintain and expand its usage of best environmental practices across its operations and actively collaborate with NEPA and community groups in environmental monitoring and developing sustainable solutions for the areas of the Rio Cobre river adjacent to its properties”.

NRCA in return agreed to immediately withdraw from the prosecution of the court proceedings “and employ its best endeavours to secure the proper and effective termination of the court proceedings, including the entry of a nolle prosequi” before Wednesday’s court hearing. At the hearing, presiding Judge Yvette Wenthworth-Miller was told by the attorney from NEPA that the regulator, the NRCA, had reached a settlement with Trade Winds Citrus Limited and wanted to discontinue the case.

The environmentally friendly request by the NRCA of Trade Winds, which the company agreed to, represents the “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 Trade Winds, whether relating directly or indirectly to the oil spill, including, but not limited to, any costs, and attorney’s costs.

The agreement also means that NRCA consented to releasing and discharging Trade Winds’ insurers and other interested parties from all liability, proceedings, claims, demands, suits, and actions whatsoever whether relating directly or indirectly to the oil spill.

“NRCA hereby agrees and covenants with Trade Winds that it will not at any time hereafter take or bring any action or proceedings or make any claim or demand whatsoever against Trade Winds, its insurers, agents, assigns, affiliates, licensees and/or sub-licensees arising directly or indirectly out of or relating to the subject matter of the court proceedings,” the documents said.

Further, both the NRCA and Trade Winds agreed that the settlement is a “compromise” of the court proceedings and “is not to be construed as an admission of liability or of any facts that could give rise to liability” on the company’s part.

There is also to be no future lawsuit whether brought by the NRCA or Trade Winds relating to the oil spill.

Both parties agreed to maintain the confidence of the settlement and that there would be no publicity concerning the settlement. The two also agreed to take “every reasonable precaution to prevent disclosure to third parties”.

The agreement was signed by Trade Winds’ Director Peter McConnell and NRCA Board Chairman Weldon Maddan.

CHAIRMAN RESIGNS

On Thursday, when asked about the private agreement, Maddan told The Gleaner that he did not have “any recollection” of the decision being made by the board.

Maddan tendered his resignation yesterday as questions mounted about the private agreement.

Yesterday, Matthew Samuda, the minister without portfolio in the Ministry of Economic Growth and Job Creation, who has responsibility for the environment, acknowledged public concerns over the matter, noting the “valid expressions of concern” regarding the inclusion of the non-disclosure agreement (NDA).

He said he instructed NEPA to waive its rights under the NDA, disclosing that it has formally written to effect this waiver.

“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.

This latest issue with a secrecy clause comes approximately 10 months after The Sunday Gleaner exposed a non-disclosure clause in a settlement between the National Housing Trust and a private developer, Dexim Holdings, over a botched housing development contract. After public pressure, the NHT released the agreement through an access to information request.

Samuda said the Government is not satisfied that the issue was handled at the board leadership level with the required standards of transparency and openness.

“Consequently, following a conversation this morning (yesterday), Board Chairman, Mr Weldon Maddan, offered his resignation. Mr Maddan’s resignation has been accepted. We thank Mr Maddan for his service and reaffirm the Government’s commitment to safeguarding the Rio Cobre and all other critical natural resources,” he said.

WHAT NEPA SAID ABOUT THE DEAL

Regarding the pollution incident in December 2023 and the reasoning for the agreement, Samuda said he was advised by NEPA that:

1. The incident involved an oil spill on the grounds of Trade Winds Citrus Limited. While the spill was largely contained to Trade Winds property, some seepage occurred into the Rio Cobre. However, the extent of the seepage was not significant enough to cause a fish kill or require an environmental impact assessment (EIA).

2. According to the National Fisheries Authority, a fish kill is defined as “large-scale mortality events of fish that occur due to various factors, such as wastewater pollution, hypoxic conditions, nutrient enrichment, and the introduction of pathogens, whether in area of or per cent of the population”; this did not occur.

3. In light of the foregoing, a determination was made by NEPA that there was no basis for compensation or extensive consultation with stakeholders. It is also worth noting that Trade Winds Citrus Limited assumed full responsibility for the cleanup and restoration efforts, which were conducted under the guidance of NEPA, the Water Resources Authority, the National Fisheries Authority, and Petrojam. The costs of these efforts greatly exceeded the fines stipulated under the Wildlife Protection Act, which amounts to a maximum of $100,000 for breaches.

4. The matter went to mediation on October 2, 2024, and the resulting agreement was approved by the NEPA Board on November 26. Considering the limited material impact of the incident and the comprehensive cleanup undertaken, the NRCA determined that withdrawing the case was justified.

kimone.francis@gleanerjm.com
Jamaica
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2024-11-30
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Describing details of the secret pact between the Natural Resources Conservation Authority (NRCA) and Trade Winds Citrus Limited as “worse than anticipated”, attorney-at-law Marcus Goffe says the environmental body acted against Jamaicans’ interest...
‘Straight sell-out’