Political commentator Ramon Gaskin has appealed the ruling of Chief Justice Roxane George-Wiltshire that Hess Guyana Exploration Ltd (Hess) and CNOOC Nexen Petroleum Guyana Ltd (Nexen) do not need separate environmental licences from co-venturer ExxonMobil to conduct oil production here.
Last Wednesday, the acting chief justice declared that the two companies do not have to be issued separate licences since they are covered under the environmental licence issued to ExxonMobil’s local subsidiary Esso Exploration and Production Guyana Limited (Esso).
Gaskin had challenged the Petroleum Production Licence (PPL) issued to Hess and Nexen by Minister of Natural Resources Raphael Trotman, whom he said ought not to have made the grant, since they did not have separate environmental permits.
In her ruling, however, Justice George-Wiltshire SC declared the PPL to have been properly issued, while noting that since they operate under Esso, they are covered by the environmental licence issued to that company.
She explained that there being a joint venture by Hess and Nexen, these companies would be covered by virtue of their operation under Esso, which is the developer.
Noting that he is dissatisfied with the chief justice’s entire judgment which according to him contains several legal errors, Gaskin said that the judge arrived at conclusions “no court acting judicially and properly instructed” would have come to.
He contends, also, that the judge misunderstood/and or did not consider sufficiently or at all, the nature and effect of the evidence in the case or the applicable law and as a result “fell into serious error” in ruling against him.
Gaskin expresses the view that the chief justice’s decision was among other things, “unreasonable, irrational, disproportionate and harsh.”
In his notice of appeal filed with the Guyana Court of Appeal, which was seen by this newspaper, Gaskin (the appellant) opined that the judge misunderstood his case and the relief he was seeking, “having taken an inordinate length of time to rule on the case.”
On this point he noted that arguments in the matter had completed a year earlier—February 11th 2019, which he argues is contrary to the Time Limit for Judicial Decisions Act Cap 3:13 and/or binding decisions of the Caribbean Court of Justice, regarding delay in judicial decisions.
Through his attorneys, Seenath Jairam SC and Melinda Janki, Gaskin said that Justice George-Wiltshire erred in law by adding Hess and Nexen in the matter not only as interveners, but as respondents to an application which was for judicial review of the decision of a public authority.
Hess and Nexen were not initially parties to the action, but had subsequently been granted their application to be by the chief justice, who endorsed their attorneys’ argument that they ought to have a say in the matter in which they would have an interest, as it concerned them.
Their lawyers had argued that the companies would be liable “to suffer very real material damage totaling hundreds of millions of US dollars” and thus needed to be added as parties to defend their property and rights.
Gaskin is also appealing the chief justice’s ruling on grounds that she misconstrued/misapplied the canons of construction and rules of interpreting statute and by taking into account what he says were “irrelevant and extraneous” material, thereby allowing herself to “fall into gave error” and arriving at “erroneous conclusions.”
The appellant said that the judge also erred in considering joint and several obligations, when in fact according to him, obligations have no bearing on the Environmental Protection Act which he says determines both the requirement and eligibility for the grant of an environmental permit.
In her ruling the chief justice had noted that she agreed with submissions from Trotman’s attorneys, that where liability is joint and several, the parties have jointly and individually promised to carry out the same promise or obligation; and that there is only one obligation by which they are all bound.
“I therefore do not agree that the effect of the joint and several obligations on Esso, Hess and Nexen means that each has a separate obligation to comply with the Environmental Protection Act by each obtaining an environmental permit,” the chief justice had said.
Gaskin said that he was also appealing on grounds of the judge holding that he raised a number of irrelevant issues regarding oil spills when according to him in truth and in fact those issues were raised to demonstrate the importance of an environmental permit being granted to a capable and qualified developer of a project.
The appellant is also of the view that the judge erred in holding that Section 10 of the Petroleum (Exploration and Production) Act Cap 65:04 is wide enough to permit the issuance of a licence to Esso, Hess and Nexen and considered irrelevant matters in the process.
He said that the judge was wrong to hold that the one environmental permit issued to Esso was sufficient and binding on all three companies combined, and by extension erred by ruling that Hess and Nexen are bound to comply with the permit by virtue of the PPL, the Petroleum Agreement and section 9 (3) of the Petroleum Act, stating that they have no relevance to granting an environmental permit.
Gaskin is now hoping that the appellate court would reverse and/or set aside the chief justice’s decision.
His contentions have always been that since environmental permits had been issued only to Esso, then it was only that company that could rightfully undertake oil production exploration through the petroleum production licence it has been granted.
Declaring the PPL to have been properly issued by the minister to not only Esso, but Hess and Nexen as well, the chief justice had said that the environmental permits were issued in relation to a project and that it was not necessary for it to be issued to each company which is a party to the petroleum agreement for the execution of the project.
The judge said that in accordance with Section 11 of the Environmental Protection Act, a developer is required to apply to the Environmental Protection Agency (EPA) for an environmental permit.
She noted that as defined in Section 10 of the Act, developer means, “the applicant for environmental authorization for a project or the State initiating a project.”
The chief justice pointed out further, that the Environmental Protection (Authorisation) Regulations also support submissions made on behalf of the minister that the authorization is granted in respect of a project.
She said it is clear that the environmental authorization as evidenced in the environmental permit relates to the project.
Justice George-Wiltshire noted that Gaskin had relied on Section 14 (1) of the Environmental Protection Act, but said that it did not apply in this case, since in this case, Esso could be classified as the developer.
She said that it was this company that had applied for, and obtained the environmental permit, thus, there was such a permit in existence when the PPL was issued.
