Finding that a challenge was wrongly brought against Head of the Guyana Energy Agency (GEA), Mahender Sharma and Permanent Secretary in the Ministry of Natural Resources Joslyn McKenzie; when it should instead have been filed against the environmental appeals board on which they sit, the entire case was thrown out.
Stabroek News understands that in a ruling handed down yesterday morning, High Court Judge Fidela Corbin-Lincoln threw out the case, finding favour with the arguments advanced by attorneys for Sharma and McKenzie.
This newspaper understands that it was the argument of Arud Gossai, who represented Sharma that the claim needed to be struck out, since, in judicial review matters, it is the decisions of public bodies—such as a board—or a person performing a public function that can be reviewed.
Gossai and King’s Counsel Darshan Ramdhani who represented McKenzie, advanced the argument that individual members of the Environmental Assessment Board (EAB) do not perform public functions.
They argued this against the background of stating that the decisions made by the board are done as a collective, by the board and not by any single individual.
Describing the application as “misguided,” Gossai said that his client’s application had merit and that the case against him needed to be throw out.
This newspaper understands that the Judge agreed with the position of counsel for the respondents, and granted the application; thus, throwing out the case.
Background
Citing a conflict of interest surrounding the two members of the panel, the court application had been filed by civil society activist Danuta Radzik challenging the hearing of an appeal of a decision not to require an impact survey for the proposed 300 MW gas to power plant.
The application filed on May 22nd targeted the role of Sharma and McKenzie.
The EAB presides over appeals of decisions made by the Environmental Protection Agency (EPA) and conducted a highly controversial hearing in March over the EPA’s decision not to require an Environmental Impact Assessment (EIA) for the gas to power plant.
It had been the argument of Radzik and others that Sharma and McKenzie should not have presided over the hearing as their substantive positions in the energy sector posed a flagrant conflict of interest.
Sharma and McKenzie nevertheless participated in the hearing of the appeal on March 22 this year.
In her application under the Judicial Review Act, Radzik was seeking a series of reliefs which would have in essence quashed the March 22nd hearing.
According to document seen by this newspaper, Radzik sought: A declaration that Sharma’s and McKenzie’s’ duties in their capacity as the Head of the Guyana Energy Agency, and Director of Guyana Power and Light Inc (GPL), and Permanent Secretary of the Ministry of Natural Resources, respectively, directly and indirectly conflict with their duties as Chairman and Members of the Environmental Assessment Board in the matter of the EPA’s decision to waive an EIA for the Natural Gas Power Plant Project;
A declaration that the Respondents (Sharma and McKenzie) illegally took part in deliberations of the EAB with respect to the said matter;
An order that the Respondents declare their direct and indirect interest in their capacity as the Head of the Guyana Energy Agency, and Director of the GPL and the Ministry of Natural Resources;
An order that the Respondents’ taking part in deliberations and decisions of the Board with respect to the gas to power matter, be rendered void ab initio and of no legal effect, pursuant to section 8 of the Third Schedule to the Environmental Protection Act Cap. 20:05;
An order that all deliberations, hearings, submissions, and decisions taken by members of the EAB that include the Respondents are unlawful, null and void and of no legal effect, pursuant to section 8 of the Third Schedule to the Environmental Protection Act Cap. 20:05.
For weeks, questions had been raised about the propriety of the presence of Sharma and McKenzie on the panel. Opposition had also come in the wake of general concerns that both the EPA and the EAB were overriding best practices and the law in granting approvals in oil industry matters.
