No “adverse consequence” to Guyana if Exxon complies with High Court ruling – TT Senior Counsel tells Court of Appeal

Jun 23, 2023 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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…says entire application by Gov’t. to join appeal of parent company guarantee case is misconceived

Kaieteur News – Attorney-at-Law, Seenath Jairam, SC on Thursday argued that the entire application made by the Attorney General (AG) Anil Nandlall, S.C to join the appeal of the unlimited parent company guarantee, ordered by the High Court is “misconceived”.

Jairam in his arguments told the Appeal Court “The entire application by the AG is misconceived. Any anticipated or purported adverse consequence to the State, to the Government of Guyana and to the executive branch of government does not come from the Order made by Justice (Sandil) Kissoon but from Esso’s colossal failure to comply with the Order.” He therefore submitted that the AG’s claim to have any interest in the matter be disposed of.

The Senior Counsel went on to point out that the Attorney-General represents the State in litigation, under Section 8 of the State Liability and Proceedings Act Cap 6:05 proceedings for the enforcement of any claim by or against the State shall be brought by or against the AG. On this note, Jairam said there is no claim being brought by or against the State and therefore no role for the AG in the matter.

He was keen to note, “The Order benefits and protects the Government of Guyana, yet the AG in a strange twist or irrationally wishes to intervene to oppose the Order and thus to go against the interests of the Government of Guyana.” Jairam told the Court of Appeal that the AG is acting contrary to the interests of the State and the people of Guyana, since the State and the people will be liable for all costs of clean up and compensation related to a spill if Esso Exploration and Production Guyana Limited (EEPGL) disobeys the Court and does not produce the parent company guarantee.

Meanwhile, the Attorney General in his arguments to join the appeal told the Court that that as a party to the 2016 Production Sharing Agreement (PSA) with ExxonMobil, it will be affected by any decision taken to suspend the Permit for the oil company’s Liza One project. The High Court in its May 3, 2023 ruling determined that a failure to provide the unlimited parent company guarantee would result in a suspension of the Permit.

To this end, the AG told the Appeal Court, “This is an Agreement that generates hundreds of billions of dollars, which the government uses in its Budgetary allocations for the general development of Guyana and the public good, as is provided for by Section 16 (2) (a) of the Natural Resources Fund Act, 2021. This singular contract in this one sector has catapulted Guyana’s economic growth rate from 5.4 percent to over 62.5 percent, making it by far the largest-growing economy in the world.” As such, he said the State should be added to the matter.

He also argued that based on the “major national importance” of the project that is tied to the public interest, the Attorney General qualifies an “appropriate intervener.”

Jairam in opposing to the AG’s submission to join the matter reasoned that the AG has made it clear that his interest is in maintaining a flow of billions of dollars of revenue to the current executive arm of government and not in protecting the State or the Government of Guyana from possible catastrophic events.

The Senior Counsel told the Court, “The AG also has a constitutional duty to uphold the rule of law. In order to fulfill that duty, he ought to require Esso to comply with the Order and respect the authority of the judiciary, under the Separation of Powers Doctrine (the Executive, the Legislative and the Judicial).” Jairam argued that the AG has chosen to do the opposite in seeking to intervene in the matter to challenge the Court’s Order.

According to him, this breach of the AG’s constitutional duty is by itself sufficient to dispose of the AG’s claim to be permitted to intervene. As such he argued that the Court should not enable the AG in aiding a breach of the law, namely, s. 31 (4) of the Act and Reg 14 (1) of the Environmental Protection (Authorisations) Regulations [10/200].

Jairam also submitted “all the tortuous arguments by the AG cannot overcome the fact that an unlimited guarantee (which is) a piece of paper with no number in it, is the best financial protection that Guyana and the Government of Guyana can have.” He therefore noted that the AG has no business whatsoever in trying to reduce that guarantee for the benefit of Esso and its parent, ExxonMobil Corporation.

BACKGROUND

On May 3, 2023 High Court Judge, Justice Sandil Kissoon, ruled in favour of two citizens, Frederick Collins and Godfrey Whyte who had challenged the EPA for failing to enforce the provisions of the Liza One Permit, requiring an unlimited parent company guarantee from ExxonMobil Corporation. The case was filed in the High Court on September 13 by Attorneys Seenath Jairam, SC, Melinda Janki, and Abiola Wong-Inniss.

After the ruling was handed down, the EPA filed an appeal. On June 8, 2023 Appellate Judge, Justice Rishi Persaud issued a Stay of the Order and directed the company to lodge a US$2 billion guarantee pending the outcome of the appeal.

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• appeal, Application, court, misconceived, submission

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