Mark Wignall | How come, Trade Winds?

To the man at street level, he has seen and heard that a ‘big man’ company called Trade Winds can get away with polluting a national treasure like the Rio Cobre with little consequence. But if the “little man” runs a taxi without a licence, it is the crime of the year, and he is sanctioned harshly. Classic inequality.

This does not necessarily mean that the man at street level is willing to admit that he has openly broken the law or is he convinced that Trade Winds has also done the same. But an uneasiness is settled in the system.

This is a matter of critical, national importance. As I understand it, NEPA is charged with protecting Jamaica’s environment of which the Rio Cobre is a critical part.

In December of 2023, fuel oil from a boiler plant owned by Trade Winds somehow leaked into the Rio Cobre in St. Catherine. The DPP directed NEPA to criminally prosecute Trade Winds for the fuel oil pollution into the Rio Cobre. Trade Winds purportedly cleaned up the contamination and pollution.

An attorney-at-law with 30 years’ experience said to me recently: “Curiously, the parties requested the presiding judge in the matter to order mediation. The judge declined and ruled the parties could mediate on their own. My view is that the parties wanted to have the judge approve their settlement efforts and/or eventual agreement.”

Then he said: “Generally, you do not need the judge to order mediation if the parties to a case want to mediate. You only need a judge to order mediation if one party refuses to mediate or both parties refuse to mediate.”

OK, let’s go along with that. It means that in the process, an agreement was reached at mediation. The attorney said: “What caught my attention was that Trade Winds admitted no liability and NEPA waived the right currently or in the future to bring any proceedings or claims that NEPA might have had against Trade Winds and its ‘insurers, agents, assigns, affiliates, licensees, or sublicensees.’”

It gets better. “The agreement also calls for each side to bear their own legal costs. Trade Winds’ only obligation was the costs of the clean-up and to use best environmental practices in the future and to collaborate with NEPA even though that word, collaborate, in the circumstances, comes across as vague. The icing on the cake was that the agreement was confidential. Ixc cxn other words, the parties signed a non-disclosure agreement (NDA).”

FACTS AND OTHER STUFF

My lawyer friend of many years said, “The Board of NEPA approved this arrangement for Trade Winds, and Mr Maddan, the Board Chair signed the settlement agreement. Signing for Trade Winds were Directors Peter Mc Connell and Anthony Desnoes. Did someone later state that he had no recollection of the matter? Who was that?

“In later court proceedings when the judge was informed of the settlement as NEPA sought to dismiss the case, the judge inquired, rightfully so, about the settlement agreement. She was informed of the NDA and thus the agreement was not public record. So the parties did not want to advise the judge of the actual settlement terms. Quite unusual.”

This matter has many troubling elements. First is, why did the taxpayers of Jamaica have to pay legal fees? The actions of Trade Winds brought about the pollution and triggered the legal proceedings. The least they should do, in addition to any clean-up, is pay NEPA’s legal fees. I do not get the sense that Trade Winds is uncaring and hostile to Jamaica.

The lawyer said: “Why did the agreement not require Trade Winds to establish a pollution clean-up fund for any future pollution? Why did the agreement not contain language that if there is any future pollution by Trade Winds, there is no possibility for any mediation or settlement and that criminal proceedings shall be brought against Trade Winds.

“If there was a general policy against NDAs for public and governmental bodies, who approved the deviation in this case? Curiously, when this whole matter came to light, Minister Samuda immediately waived the NDA, and that is how the public learned of this deal that Trade Winds got.”

Let us not fool ourselves here. We are dealing with powerful people. People with heft. And the fact is that those very people have a responsibility to the man at street level to communicate in such a way to convince that man and woman that special treatment was not involved in the matter.

Those people need to communicate that someone high up in Government did not give any sort of signal to tread lightly in key elements of this matter. If this did not happen, those in government need to clear themselves. Openly so.

LONGING FOR JAMAICA

She writes, “I am a 71-year-old Jamaican, and my heart beats for Jamaica and Jamaica only. But I have adopted the USA, and it has been good to me. I was fortunate to get a good education courtesy of my parents in the USA and have done decently as a chartered accountant in Florida. But every week, I wish for my homeland, and I wonder what life would have been like had I stayed in Jamaica and not migrated. I wonder what I missed.”

“I have lived in Toronto for 30 years. Believe it or not, every single day, mi miss yaad. Canada treats me quite well and the last time I was here, I cried on the morning of my flight out. Before I left, I shared Red Stripe beer with old school friends. On the way back to Toronto, one of my friends wished me goodbye with a smile. That smile made me want to stay for an extra ten minutes.”

Mark Wignall is a political and public affairs analyst. Send feedback to columns@gleanerjm.com and mawigsr@gmail.com.