Broken bauxite promise - Brothers feel betrayed after land mined out, company backs out on agreed compensation
Published:Sunday | February 9, 2020 | 12:00 AMLivern Barrett - Senior Staff Reporter
Elderly siblings Mannaseh and Gerald Thomas had little trouble reeling off the assurances they claim they got from Kaiser Bauxite Jamaica 15 years ago.
“They said, ‘look, we are going to give you justice because you give us no trouble … so we are going to see that everything is okay’,” Mannaseh, 76, recounted.
That promise, the brothers say, came in 2005 when Kaiser, which has since been replaced by Noranda Bauxite Jamaica, trespassed on the family’s 50-acre property near Orange Hill, St Ann, to conduct mining operations.
“My father worked hard to purchase that property in 1960. Several nights a mule him come home pan,” recalled Gerald, 69, who shares the same name with his late father.
Another assurance, Mannaseh asserted, came after the family informed the bauxite company that the lands had not been transferred to their possession, and that they were contemplating hiring an attorney to negotiate on their behalf.
“Dem (Kaiser) say it nuh necessary because they could use their lawyer to do the legal part of it and it would be much, much cheaper than to go out there and seek other lawyer,” he told The Sunday Gleaner.
“They said they would do everything.”
The brothers thought their jitters were allayed six years later when, after several meetings, they negotiated a compensation agreement with Noranda.
Under the handwritten agreement, signed by both sides in January 2012, the siblings were to get separate two-bedroom houses to be constructed on lands in Hawkhurst; $150,000 per acre for 27 acres of their property; and 10 acres of land in Orange Valley, all in St Ann.
But their joy was short-lived and the brothers say the events that unfolded thereafter left them feeling betrayed.
SURFACE DISTURBANCE COMPENSATION
Four months later, in April 2012, Noranda wrote to the siblings, who had by now secured their own attorney, indicating their desire to opt out of the signed compensation agreement. Instead, the company offered them $1.25 million as “compensation for the disturbance of surface rights in the property”.
The company contended, too, that the area disturbed by its mining operations and which it would pay compensation for was five acres.
The brothers baulked at the proposal and soon found themselves with a legal fight on their hands.
Noranda took the issue to a then Resident Magistrate’s Court and asked a judge to use the Mining Act to set “fair and reasonable compensation” for the damage to the surface rights of the Thomas property.
According to court documents that have since been made public, the company explained that the decision to back out of the compensation agreement was based, in part, on “the amount of bauxite remaining on the property”.
“There was no sufficient economic justification to continue mining the property,” read a section of the court document.
But Mannaseh and Gerald prevailed when, in September 2015, the presiding magistrate ordered Noranda to honour the agreement.
Again, their jubilation was short-lived. This time Noranda went to the Court of Appeal to have the order of the then Resident Magistrate’s Court overturned, contending that the judge erred in a number of areas.
As an example, they argued that the judge “erred in law” when she failed to consider that the title for the property had not yet been transferred to Mannaseh and Gerald. “Therefore, there was no person with the legal authority to bind the estate”, read a section of the transcript from the Appeal Court case.
Noranda argued, too, that the judge “erred in law” when she determined that she had the jurisdiction to hear the case “in circumstances where the contract and land in question exceeded the limit set by the Judicature (Resident Magistrate’s [sic]) Act and there was no consent of the parties for the Resident Magistrate to try the matter”.
COURT OF APPEAL RULING
The Appeal Court, in a ruling handed down last month, set aside the order of the Resident Magistrate’s Court and instead ordered Noranda to pay the brothers $1.25 million as compensation for damage to surface rights of their property.
The Appeal Court also ordered the bauxite company to pay them interest totalling $1.25 million at the rate of 12 per cent annually from June 2005 to June 2006 and six per cent per annum from June 2006 to the date of the decision.
The brothers were livid over the decision by Jamaica’s second-highest court and vowed that their legal fight was not over.
“We feel betrayed by Noranda and the court system,” Gerald said during a sit-down with The Sunday Gleaner.
“All the documents are there to show that they actually violated our rights. Our property has been destroyed by the bauxite company and they promised that they would compensate us.”
Mannaseh could barely find words to express his emotions. “That almost sound like theft,” he lamented.
Noranda declined to comment in details for this story.
“This is a matter that eventually went before the Court of Appeal, which has issued its ruling that is binding on the parties,” the company said through its public relations consultant, Lance Neita.
“The court also assessed the amount of compensation payable as ‘fair and reasonable’. With the case therefore closed, we would rather not comment outside of the ruling by the court,” he said in response to a request for an interview with executives of Noranda.
Neita, however, indicated that Noranda “values and respects the relationships established with our land vendors in our operating areas over many years and regards it as unfortunate that this particular issue could not have been resolved without the intervention of the court”.
“We are committed to continue working with our various stakeholders, including our land vendor partners, to ensure the sustained viability of an industry that continues to make a significant contribution to the economic and social development of Jamaica and our neighbouring communities.”
Gerald disclosed that already they have instructed their attorney, Michelle Senior-Smith, to take the case to the Privy Council in the United Kingdom.
“It is not fair. You gonna mine out the land and after you mine out the land you gonna say you don’t want the land anymore ... and you only gonna pay for surface rights when we weren’t selling anything,” he protested.
“You take everything off it and then you gonna come now and say we must tek back we land without any roads and the infrastructure gone.”