Sun | Feb 17, 2019

Bauxite battle | Russians take Gov’t to court for revoking licence

Published:Thursday | January 24, 2019 | 12:52 AMNickoy Wilson

A court battle is looming between the Government and UC Rusal over Jamaica’s decision to revoke the mining licence that was issued to the Russian owners of West Indies Aluminium Company (Windalco) nearly 18 years ago.

Already, lawyers for UC Rusal have filed papers in the Supreme Court seeking a judicial review of the decision taken by Mining Minister Robert Montague last June to revoke the company’s licence.

According to government insiders and UC Rusal attorneys, the decision to yank the licence was based on Section 42(b) of the Mining Act, which authorises the minister to take such action “if the holder [of the lease] wholly ceases work in, on, or under the land subject of the lease during a continuous period of six months, without the written consent of the minister”.

“There has been no mining for over eight years,” one government insider insisted yesterday.

Montague declined to comment when contacted yesterday. “It is a matter that is before the court. I cannot make any comment,” he said.

However, in court documents obtained by The Gleaner, UC Rusal asserted that over an eight-year period ending in 2018, it spent US$1.2 million on land-reclamation and restoration activities and a further US$1.9 million last year for asset-preservation activities. The company said this was evidence that work was being carried out under the lease agreement.

As a result, the company wants the court to grant an order of certiorari quashing Montague’s decision and a declaration that “the reclamation and restoration of lands disturbed for mining subject to the Kirkvine lease and other activities carried out by the claimant from April 2009 to present date constitutes work in, on, and under the land the subject of the Kirkvine lease”.

UC Rusal said it suspended the extraction of ore at Kirkvine from April 2009 to the present but that this was because of circumstances beyond its control, including market fluctuations and lack of energy efficiency.

The company, however, pointed out that it had consistently been involved in conducting work on the land in accordance with the Kirkvine lease.

UC Rusal argues that the minister failed to establish the precedent as required by the act when he moved to revoke the company’s mining licence. The bauxite-mining company asserted that at no time did it cease work on the land for such an extended period.

Under the circumstances, the company believes that “it is illegal and unlawful for the minister to revoke the Kirkvine lease under Section 41(1)(b) of the Mining Act as the minister has misdirected himself in law as to what constitutes ‘work’ ... .”

Consequently, according to the company, the decision is a breach of the legitimate expectation of the applicant to enjoy the benefits of the Kirkvine lease for a further 13 years.

The matter will be heard on March 19, 2019.

nickoy.wilson@gleanerjm.comlivern.barrett@gleanerjm.com