Ramon Gaskin says CJ’s ruling on oil producing licences “unjustifiable, disproportionate”

Feb 20, 2020 News

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– petitions Court of Appeal for it to be quashed

A week after Chief Justice (CJ) Roxane George ruled that Minister of Natural Resources, Raphael Trotman, exercised his discretion when he issued Petroleum Production Licences (PPL) to Esso Exploration & Production Guyana Limited (Esso), Hess Guyana Limited (Hess) and CNOOC Nexen Petroleum Guyana Ltd (NEXEN), local activist Ramon Gaskin who had asked that the Minister’s decision be quashed, has now turned to the Court of Appeal for redress.

The case was filed in the Court by Gaskin, through his lawyers Trinidad-based Senior Counsel, Seenath Jairam, and environmental lawyer, Melinda Janki. Together, the two had applied for an order deeming the Minister’s action unlawful and to have it overturned in light of the fact that the PPL was issued to the three companies based on an environmental permit issued only to Esso.
In fact, Gaskin contended before the Chief Justice that the Minister’s action was in breach of Sections 14 of the Environmental Permit Act (EPA), and that in the absence of an environmental permit issued to Hess and NEXEN in accordance with part IV of the Environmental Permit Act, Trotman was prohibited from granting the PPL to the three companies to carry out the LIZA 1 project.
Among other things, his lawyers essentially argued that the Minister’s powers to issue a PPL were restricted to Esso only, and therefore could not include NEXEN and Hess.
In a Notice of Appeal filed with the Court of Appeal last Friday, Gaskin argues that the Chief Justice’s decision is not only unjustifiable and disproportionate, but also unwarranted, unreasonable, irrational and harsh as no court is aware of the relevant laws would arrive at such a conclusion.

Further, Gaskin argues that the Chief Justice clearly did not understand the arguments put forward on his behalf as she took one year after arguments concluded in the case to render her ruling. Against this backdrop, he argues that the delay by the Chief Justice amounts to a breach of the time limit set out in the Judicial Decisions Act, as well as binding decisions of the Caribbean Court of Justice (CCJ) as it relates to delays in judicial decisions.
Gaskin contends that the Chief Justice’s view that he raised a number of irrelevant issues regarding oil spills amounts to an error in law, as the said issues were raised to demonstrate the importance of an environmental permit being granted to a capable and qualified developer of a project.
According to him, Justice George fell into serious error when she ruled 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.
The Chief Justice did not only dismiss Gaskin’s application, she ordered that he pay $100,000 in court costs to Minister Trotman. Gaskin in his action filed at the Court of Appeal has also taken issue with this. In fact, he contended that the Chief Justice erred in law when she refused to grant him a stay of execution on the order.In light of the forgoing, Gaskin is asking the Court of Appeal to set aside and/or reverse the ruling of the Chief Justice.

Among the reliefs being sought by Gaskin, is for the matter to be heard on an urgent basis. In his court action filed more than a year ago, Gaskin had moved to block the companies from proceeding with their exploration and production on the grounds that Hess and NEXEN are covered by the environmental permits issued to ExxonMobil, through its local subsidiary Esso Exploration and Production Guyana Limited.
In support of his contention, Gaskin explained that Hess and NEXEN will escape liability should there be an incident such as an oil spill that can affect the Caribbean islands.The Chief Justice, however, dismissed this argument as she found that the issuance of a permit to Esso for the Liza Project satisfied the requirement of the Environmental Permit Act, that a project must not be commenced without first obtaining an environmental permit, and as Esso’s permit covered all three Contractor parties – Esso, Hess and NEXEN.
The Chief Justice agreed with the submissions proffered by lawyers from the Attorney General’s Chambers that appeared for Minister Trotman, Senior Counsel Edward Luckhoo who appeared in association with Maria Luckhoo for Esso and HESS, which was represented Senior Counsel Andrew M.F. Pollard and Nigel Hughes.
Jointly, they argued that by Esso being issued with an environmental permit, it was enough to satisfy the Environmental Permit Act as (a) permits are issued for Projects (not persons); and (b) the obligation to obtain an environmental permit (EP) prior to commencing a Project was classified in law as a ‘joint and several’ obligation, the effect of which was that Esso’s obtaining the required permit covered all three of the Contractor’s parties.
It was pointed out by the Chief Justice that although the environmental permit was issued to Esso alone, the Petroleum Act (PA) caters for joint and several ventures, and therefore Esso’s permit covered everyone. She also pointed out that Hess and NEXEN as companies that satisfied the requirements to be granted a licence under sections of the PA, which state that a licence may be granted to two or more persons associated together in any form of joint arrangement.
“The PA speaks to Esso, Hess and NEXEN being associated with joint arrangements. Sub-section 9 (3) clearly permits a PPL issued in the names of two or more persons and, importantly, for them to be collectively called licensees,” pointed out the Chief Justice who added “As a collective or joint licensee their obligation under the PPL is statutorily joint and several, meaning that each of them or all of them would be liable under the terms of the PPL.”

Transparency Advocate, Ramon Gaskin has petitioned the Court of Appeal to reverse and or set aside the ruling of Chief Justice (CJ) Roxane George that the Petroleum Production License dated June 15, 2017 and issued to Esso Exploration and Production Guyana Limited, a subsidiary of Exxon Mobil, Hess Guyana Limited (Hess) and CNOOC Nexen Petroleum Guyana Ltd (NEXEN), were properly granted.

 

Gaskin’s lawyers, Trinidad-based Senior Counsel, Seenath Jairam and environmental lawyer Melinda Janki, had asked the Chief Justice to issue an order quashing the decision of Minister of Natural Resources, Raphael Trotman to issue the license to Esso which in operation for all three of the companies. Gaskin contended that the companies each had to be issued with separate environmental licenses in order for the Stabroek Block to be developed.

The transparency advocate had also sought another order prohibiting the subject minister from taking any steps in furtherance of the Petroleum Exploration and Production Act until Hess and CNOOC/NEXEN are given individual environmental licenses.

Justice George, however, in her ruling essentially agreed with submissions advanced by lawyers from the Attorney General chambers who appeared for Minister Trotman as well as those proffered by Senior Counsel Edward Lukhoo, who in association with Maria Luckhoo appeared for Esso and Senior Counsel Andrew Pollard and Nigel Hughes, who appeared for Hess.

The Chief Justice found that the issuance of the license to Esso Exploration satisfied the requirements of the Environmental Permit Act, and that Minister Trotman acted properly in the exercise of his discretion in issuing the license. Justice George also ruled that the license issued to Esso Exploration covered the three contracting parties—Esso, Hess and CNOOC/NEXEN.

Gaskin is contending that the Chief Justice erred in law as not court acting judicially and properly construed to the relevant laws could or would arrive at such a decision. In fact, he argues that the ruling of Justice George fell into serious error, while labeling it “unjustifiable, unwarranted, unreasonable, irrational, disproportionate, and harsh.

Taking issue with the length of time the Chief Justice took to render a ruling in the case, Gaskin argues that she misunderstood his case. According to Gaskin, arguments in the case were completed on February 11, 2019; the Chief Justice only handed down a ruling last week Wednesday (February 12), one year later.

Against this backdrop, Gaskin argues that the delay in the ruling is a clear breach of the time limit set out in the Judicial Decisions Act, as well as binding decisions of the Caribbean Court of Justice (CCJ) as it relates to delays in judicial decisions.

According to Gaskin, the Chief Justice erred at law in holding that he raised a number of irrelevant issued regarding oil spills, when in truth and in fact these issues were raised to demonstrate the importance of an environmental permit being granted to a capable and qualified developer of a project as adumbrated in her judgment.

Among other things, he argues, too, that Justice George fell into serious error in holding that Section 10 of the Petroleum (Exploration and Production) Act Cap 65:04 is wide enough to permit the issuance of a license to Esso, Hess and NEXEN and took into account irrelevant matters as outlined in her decision.

Apart from dismissing Gaskin’s application, Justice George ordered that he pay $100,000 in court costs to Minister Trotman. Gaskin says that the Chief Justice erred in law when she refused to grant him a stay of execution on that order. Among the reliefs being sought by Gaskin, is for the matter to be heard on an urgent basis.

 

 

 

 

 

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