An aerial view of the Rio Cobre,at Flat Bridge. NEPA made the controversial decision to discontinue legal action against Trade Winds Citrus Limited over an oil spill in the river in December 2023.
River pollution fight not over
DPP reviewing Rio Cobre oil spill case
THE Office of the Director of Public Prosecutions (ODPP) says it is reviewing the “legal and evidentiary material” in the case which made headlines in November 2024 after the State’s environmental watchdog made the controversial decision to discontinue legal action against Trade Winds Citrus Limited over an oil spill in the Rio Cobre in December 2023. It is also reviewing all other cases which the State entity had been given fiats to prosecute.
The National Environment and Planning Agency (NEPA), the administrative arm of the Natural Resources Conservation Authority (NRCA), under a fiat granted by the ODPP, had in December 2023 hauled Trade Winds before the St Catherine Parish Court charging it with breaches of the Wild Life Protection Act for causing a pollutant to enter the Rio Cobre earlier that month.
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However, the case was dropped in November due to the terms of a non-disclosure agreement, inked after a mediation session, and which insulated the company from any claims for damages or costs in exchange for its pledge to adhere to environmental best practices. That agreement bound the parties to keep its “existence or the negotiation that preceded it, their contents, terms, conditions” secret. According to that agreement, based upon the company’s commitment to carry out those actions, the NRCA agreed to immediately withdraw the court case and enter a nolle prosequi in the parish court by or before the next court date of Wednesday, November 27, the very day the case was dropped. News of the secret pact caused widespread disquiet, resulting in the resignation of NEPA Chairman Weldon Maddan.
The decision to discontinue criminal action against Trade Winds Citrus triggered outrage from environmental groups Jamaica Environment Trust and Friends of Rio Cobre, which stated that “the decision sets a dangerous precedent that trivialises environmental violations and prioritises corporate interests over the health of natural resources and justice for impacted Jamaicans”.
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Friday, Director of Public Prosecutions Paula Llewellyn, King’s Counsel, in an interview with the Jamaica Observer, said that matter which had come up while she was on a hiatus from her official duties and others related to the entity are now under review.
“I have been fully briefed of all that has happened in my absence and there are certain urgent matters I am attending to. One of them is the concerns raised by the handling of the NEPA/Trade Winds trade case by external counsel who was on fiat from the Office of the DPP. We are enquiring into it and certain steps are being taken,” she said.
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She said the team, which is reviewing that matter as well as “the other cases for which (NEPA) has been given fiats”, has already collated all the files, researched them and looked at the law, “to be in the best position to be fully informed so that we can give the best guidance to NEPA as well”.
“The legal and evidentiary material in all these cases including the Trade Winds matter, which has excited the concerns of the public, will be fully discussed with the legal department and the managing director of NEPA at the appropriate time and will have the appropriate discussions with the clerk of court who was present during the proceedings and will also discuss the issues with the external counsel from NEPA who had conduct of the matter,” Llewellyn told the Observer.
In the meantime, the DPP said after consultation with Senior Deputy Director of Public Prosecutions Jeremy Taylor, King’s Counsel, and Senior Deputy Director of Public Prosecutions Claudette Thompson, who had acted in her absence, she has “already decided that we will be preparing a written protocol extracted from our code of conduct for prosecutors that we will send going forward with the copy fiat to the clerk of courts in respect of what their expected role is”.
“Because a fiat is really the permission of the DPP for external counsel to associate with the prosecution, so everything that external counsel is privy to, the clerk of court is not only privy to it, but is the guardian of the integrity of the process and it is the clerk of court who is to report to the Office of the DPP if the fiat is not being properly executed,” Llewellyn pointed out.
The DPP said her office will also be crafting a protocol to go to all external counsel.
“So if it is deemed appropriate in you getting the fiat, we will send a reminder extracted from our code of conduct for prosecutors in respect of what you have to be mindful of when you are external counsel and what your relationship with the Office of the DPP is, for example, when you are doing a plea deal. That really should be discussed with us as well,” she said.
Said Llewellyn: “I like to be positive, I don’t like the blame game, I want to be positive so that at the end of the day, what we will do after we do all of this, I am not going to make any judgment without evidence. I try my best not to indulge in personalities, indulging in personalities is never helpful to the public interest. What is important is that there is fairness and transparency and that the process will be helped going forward”.
In the meantime, the DPP said she would not at this point make any pronouncements on the question of further issuing of fiats to NEPA.
“It would not be helpful so to do, and we have not completed our due diligence. When we have and we have had all the discussions, then we will take our decision as to what we believe as a matter of policy would be best for the integrity of the process in terms of environmental governance, the issuing of fiats from the Office of the DPP, and the public interest,” she said.
“We will decide what the best way forward is and if it is appropriate, we at the end of the process, will indicate what it is we did and what the result of our due diligence was, but I would wish the public to know that it is being handled. We will certainly be seeking to add clarity to the process as it relates to ourselves and NEPA; the issuing of fiats going forward if that is to continue, if it is to continue, under what conditions, but we will prefer to wait until we have completed our due diligence,” Llewellyn declared.
In the meantime, she said the ODPP has already responded to the Jamaica Environment Trust who, in a very detailed letter, queried the steps being taken by her office to unearth “what actually happened and how we can move forward to ensure that whether polices needs to be modified or if there needs to be an intervention”.
“But suffice it to say, move forward in a way that enhances the trust and credibility of the process as it relates to environmental governance,” the DPP said.
