Court denies bid to introduce new evidence in New Day, Noranda mining case

Residents in a major fight with two bauxite firms have lost a bid to get fresh evidence admitted in an appeal brought by the companies that are pushing for the removal of an injunction against mining in parts of St Ann and Trelawny. 

The injunction granted in January blocks Noranda Jamaica Partners II and New Day Aluminium (Jamaica) Limited from commencing or continuing any mining activity under Special Mining Lease (SML) 173. 

However, Supreme Court judge Justice Anne-Marie Nembhard did not grant the injunction sought against mining-related activities in areas covered by SML 165 and SML 172. 

The hearing of an appeal brought by the mining companies started in the Court of Appeal this morning. 

The court first had to consider the fresh evidence application by King's Counsel Michael Hylton, who is representing the nine residents.

The residents claimed the new information shows mining activities in the areas covered by SMLs and 165 and 172. 

A three-judge Court of Appeal panel ruled against the application. 

The court said it was not satisfied that sufficient diligence was taken to get the evidence so it could have been used in the Supreme Court case.

It also said the new information was unlikely to change the decision of the lower court judge. 

Hylton said the evidence came to light after the judge heard arguments in December last year on whether to grant the injunction.

The ruling was handed down on January 20. 

The mining companies and the Government opposed the application to admit the new evidence. 

King's Counsel Ransford Braham, who is representing Noranda, argued that while their language was "not completely clear", his clients did not argue in the lower court that mining had fully ceased in under SMLs 165 172. 

He said activities were taking place but not at a "significant level", a view he said was indicated in an affidavit from Noranda. 

Braham made the argument after the Court of Appeal President Justice Patrick Brooks questioned whether it was "strange" that the mining companies did not deny claims in the lower court that mining had not ceased in the two areas. 

The Government's lawyer Lisa White admitted that it was "unusual" but said the residents had enough time to put the purported new evidence before the low court judge.

The injunction against the 25-year SML 173 would remain until the lawsuit brought against it by the residents is determined.

They claim that the mining activities have breached – or are likely to breach – several of the constitutional rights including their fundamental right to life and the right to reside in any part of Jamaica.

But, the bauxite companies are arguing that their survival is under threat, risking major upheavals in the Jamaican economy.

"An interim injunction in circumstances where trial is one year away would sound the death knell for the appellant companies," they said. 

Finance Minister Dr Nigel Clarke has argued that the bauxite-alumina sector "is of vital economic and developmental significance". 

The industry accounts for more than two per cent of Jamaica's gross domestic product.

The trial is set for November 20 to December 15 this year.

But, the ruling could take months after that.

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.

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