Melinda Janki is an international lawyer, an attorney-at-law in Guyana, and winner of the Commonwealth Lawyers Rule of Award.
The case
On 1st June 2017 the Environmental Protection Agency (EPA), under Kemraj Parsram, then the acting head, granted an environmental permit to Esso Exploration and Production Guyana Ltd. (now ExxonMobil Guyana Ltd.) on the basis of an environmental impact assessment also dated 1st June 2017. Two weeks later, on 15th June 2017 Raphael Trotman, as Minister with responsibility for petroleum, granted a Petroleum Production Licence to ExxonMobil Guyana Ltd., Hess Guyana Exploration Ltd. and CNOOC Nexen Petroleum Guyana Ltd. Mr Ramon went to court. He said the Minister acted unlawfully. He said that Hess and CNOOC were not entitled to the petroleum production licence because they did not have an environmental permit, either jointly with Exxon or in their own right. Mr Gaskin lost his case. But the Caribbean Court of Justice (CCJ) made significant other rulings which the Guyanese need to know about. For example, the CCJ emphasised that Guyanese citizens have a duty to protect the environment. You also have every right to go to court in good faith to protect Guyana’s natural wealth.
I am the worst person to discuss this case having represented Mr Gaskin, drafted the relevant legislation (the Environmental Protection Act) and been involved in drafting the Escazu Agreement. Nevertheless, I hope readers will find this article interesting and useful.
The special nature of judicial review
Mr Gaskin brought a judicial review case in the public interest. Judicial review cases are special. When people think of court, they usually think of the criminal justice system where the State punishes people for wrong doing. Or they think of disputes between people over children, money and property. Or business disputes over goods and services. However, judicial review is a different thing altogether. It protects the ordinary person against wrongdoing by government people and from government agencies such as when they abuse their power, act in bad faith, act on instructions from unauthorised people etc. So, judicial review is part of public law, not private law. It addresses public wrongs, not private rights. In short, judicial review is the rule of law in action. It says that nobody is above the law. Judicial review makes sure that the President, the Prime Minister, the Ministers, and all public bodies (e.g. the EPA) obey the law. They are all public servants who must serve the public interest. Judicial review cases are so important that courts generally give them priority over other matters. Why are they important? Because, judges have a constitutional duty to uphold the rule of law. They must immediately stop wrongdoing by the government and public bodies and provide citizens with proper remedies. In addition, economic development and social progress depend on these public servants acting lawfully.
Obviously public interest judicial review depends on conscientious citizens ready to act in the public interest. In a case last year Her Honour Justice Sewnarine Beharry described two public interest litigants as ‘public benefactors’. Mr Gaskin was also a public benefactor, so much so that the CCJ graciously acknowledged his public spiritedness and his contribution to clarifying the law. That public spiritedness is now critical for Guyana to achieve national wellbeing and to fight back against the impacts of the phenomenon known as the ‘oil curse’ – foreign domination, a rich elite, a lot of poor people, and public money being wasted on vanity projects while basic needs such as education and health for all are neglected.
Costs
But what happens if a public-spirited public interest litigant loses in court? Do you have to pay the government’s legal costs? In many jurisdictions courts do not make you pay costs if you lose your public interest case. Why? Because if you have to pay the government’s legal costs you might not challenge the government. The government is more likely to do wrong if they think they can get away with it. But, government wrongdoing harms you and the economy and replaces law with bullyism. Judges are not supposed to let that happen.
The Gaskin case is very important for Guyanese citizens. Mr Gaskin lost in each court but the CCJ did not award costs against him. Instead, the CCJ ruled that courts should not award costs against public interest litigants. They said, “A court, at first instance and even at the level of the Court of Appeal should not award costs against a public spirited citizen intent on advancing the constitutional protection of the environment. Such public spiritedness should be encouraged.” The CCJ have put public interest judicial review on a proper modern basis. They have reduced the threat of costs so it is easier for you to go to court in the public interest. The CCJ even mentioned that the public have a ‘watchdog’ role. A ‘watchdog’ needs to be able to bite, not just bark. That means swift and well-reasoned decisions from judges with appropriate remedies if you win and no costs if you lose.
Transparency and accountability
To carry out the public ‘watchdog’ role you must be able to see what public servants are doing. Highhanded and secretive behaviour has no place in modern democracies. Last year His Honour Justice Kissoon rightly described the EPA’s secretive conduct as ‘reprehensible.’ Mr Gaskin complained that the Minister and the EPA failed to make documents publicly available. The CCJ acknowledged his concerns. They ruled that government and public bodies must be transparent. They said “Good governance, fairness and the utmost transparency must be observed and information about policies and decisions, applications and applicants must be readily made available to the public.” Guyanese citizens should no longer accept high-handed and secretive behaviour from ministers and public authorities. The CCJ also pointed out that, “Transparency promotes trust and facilitates public participation in environmental decision-making processes.” People cannot (and should not) trust government ministers and public authorities unless they can see what they are doing. As the CCJ pointed out, when information is available it is easier for you to see when there is non-compliance with the law. And then you can ask the judges to correct that wrongdoing and uphold the rule of law.
Escazu agreement:
The CCJ’s statements are strongly supported by Guyana’s obligations under international law. They relied on the Escazu Agreement which, as they pointed out, aims to provide full public access to environmental information, legal protection and legal recourse concerning environmental matters. You can (and should) now use the Escazu Agreement when requiring information from the government and public bodies like the EPA about their activities.
The special nature of oil
The CCJ acknowledged the dangers of oil and gas. They emphasized that Mr. Gaskin’s fears should not be brushed aside. They specifically noted the risks of subsea drilling stating that, “A demonstrated commitment to openness and accountability is especially required given the massive investment in subsea drilling for oil currently underway in Guyana.” This new requirement for openness and accountability is not limited to government. The CCJ extended the duties of transparency and accountability to Exxon, Hess and CNOOC. The CCJ said, “Corporations, government agencies (like the EP Agency) and other public entities have a solemn obligation to hold themselves accountable for the steps they take in the management, conservation, protection and improvement of the environment.” You should now feel empowered to demand transparency and truth from companies as well as government.
Criminal sanctions for Exxon
The CCJ dismissed Mr Gaskin’s request for Hess and CNOOC to be removed from the petroleum production licence. Instead the CCJ said there would be criminal sanctions if Exxon allows Hess and CNOOC to carry out petroleum activities. It’s important to read the CCJ’s actual words: “Two consequences flow, however, from the award of the permit only to Exxon. Firstly, CNOOC and HESS, having not been included in the permit, will have to abide strictly by the notion that their part in the venture or project will not include the activities of a developer. They are not permitted to engage in any activity that may significantly impact the environment without the prior consent of the EP Agency as that would amount to an unlawful transfer or assignment of the permit. If Exxon permitted any such thing, as earlier indicated, under s 21(9)(a) of the EP Act, Exxon will be exposed to criminal sanctions.”
Hess and CNOOC are liable for oil pollution: Although Hess and CNOOC cannot carry out petroleum operations, the CCJ says they are jointly and severally liable with Exxon if Exxon breaches its environmental permit. Exxon’s maps show potential oil spills across the Caribbean. On one estimate oil pollution could hit Caribbean countries whose economies are together worth over US$100billion. Following the Gaskin decision Hess is liable for all the damage if Exxon and CNOOC do not pay up. Similarly, CNOOC is liable for all the damage if Exxon and Hess do not pay up. But, if Exxon, Hess and CNOOC do not pay up, Guyana will be liable under international law. This makes it critical for Guyanese to see that these three companies have the financial resources to meet their liability.
Conclusion
There is no doubt that Mr Gaskin lost his case. But he did Guyana a great service. He showed the value of persistence. He showed conscientious and courageous citizens that they too can take steps to protect the country they love from the oil curse. During the year when Mr Gaskin was waiting for Chief Justice George to deliver her decision, Mr Gaskin asked whether he would live to see the fruits of his case. Sadly he did not. It took 6 years for the case to emerge from Guyana’s judicial system and reach a decision in the CCJ. Mr Gaskin died 3 weeks later. But he has a special place in the hearts of those who love Guyana.
