ExxonMobil was appointed agent of GLSC to access private lands – Govt. tells High Court

Jul 16, 2023 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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Gas-to-Energy Permit challenge…

Kaieteur News – Attorney General Anil Nandlall, S.C has told the High Court that Esso Exploration and Production Guyana Limited (EEPGL)- ExxonMobil Guyana- was appointed an agent of the Guyana Lands and Surveys Commission (GLSC) to access privately owned lands to conduct surveys for the 12-inch pipeline now under construction for the Gas-to-Energy (GTE) project.

The AG in his defence application filed in the High Court on Friday featured a sworn statement by Head of the GTE Taskforce, Winston Brassington who highlighted key occurrences prior to the Environmental Permit being granted to the oil company to undertake the project.

Exxon was granted a Permit on November 25, 2022, to commence the pipeline works, however, two citizens moved to the High Court on March 27, 2023, seeking an order to quash the Permit. In their application, the citizens contended that at the time the Permit was granted, EEPGL had no proof of ownership for the lands through which the pipeline will pass.

The Attorney General and the oil company were approved by the Court to join the matter in which the EPA was the first named respondent.

Brassington in the Affidavit in Defence of the Attorney General said that as part of the GTE Project, the Government of Guyana (GoG) was responsible for acquiring lands pursuant to the Acquisition of Lands for Public Purposes Act, Chap. 62:05, to enable the construction of the onshore gas pipeline. These lands are located along the pipeline route from Plantation Nouvelle Flanders to Wales, West Bank Demerara.

He told the Court that the applicants argue the granting of the Permit did not comply with Regulation 17(2)(c)(ii) of the Environmental Protection Authorisation Regulations, in that the application “failed to include or provide any proof of ownership, a lease or other agreement with the land-owners of the said areas, as required” by the law.

Regulation 17(2)(c)(ii) of the Regulations provides: “An application for an environmental authorization…shall contain the following information…(c) proof that the applicant either owns the facility or has a lease or other agreement with the landowner or occupier to enable the applicant to conduct the activity on the facility or has legal rights or ability to conduct the activity without the consent of the landowner or occupier.”

Brassington told the Court that he believes the Applicants “in reliance of a narrow construction” of the Environmental Act failed or refused to recognize that that legislation provides for an applicant to possess “legal rights or ability to conduct the activity.” As such, he argued that the application was wholly misconceived.

He said that at all times, EEPGL had the requisite permission, legal rights, or ability to conduct the activities associated with the GTE Project.

The GTE Taskforce Head went on to elucidate that in a letter dated July 29, 2021 issued by Commissioner of State Lands, Enrique Monize, EEPGL was appointed as an agency of GLSC to access and enter upon public lands in the pathway of the GTE project.

Permission was therefore granted for the oil company to “undertake and/or carry out activities related to the Gas to Energy Project on the surface and in the subsurface of the Land (“the Activities”) for the duration of the Activities, including Activities such as onshore geotechnical surveys, environmental, studies. Further, such activities shall also include the bringing on, storage and deployment on the Land any plant, machinery, equipment, stores or materials which are required for carrying out said activities.”

Brassington went on to note that the Commissioner of State Lands also indicated that the GLSC would seek the permission of the Minister of Public Works, Juan Edghill to appoint EEPGL as agents of the Commissioner of State Lands and of the GLSC, to enter upon private lands to be acquired for the GTE Project, to survey or otherwise examine the lands, and to inter alia, conduct geotechnical and geophysical work. He explained that the permission to access and enter private lands was conditional on an Order to that effect being gazetted. The permission was gazetted, according to the Head of the Taskforce on August 7, 2021.

Brassington explained that following the gazetted order, EEPGL was appointed an agent of GLSC pursuant to the letter dated September 3, 2021, “For the purpose of surveying, save and except cadastral surveys, or otherwise examining the lands described in the Schedule”.

Even though the Gazetted orders, as pointed out by the Head of the Taskforce permitted the oil company to conduct surveys on the private lands, he told the High Court in his 15-page application that he believes this series of correspondences aggregate to provide proof of EEPGL’s legal rights or ability to conduct the activities associated with the GTE project, without the consent of the land owner or occupier.

Brassington said the requirement of Regulation 17(2)(c)(ii) was satisfied and asked the Court to dismiss the challenge brought by Elizabeth Deane-Hughes and Vanda Radzik. Moreover, he requested that costs be awarded to the respondents in the matter.

He argued, “I am advised by my Attorneys-at-Law and verily believe that the Applicants’ FDA, which seeks to quash the Environmental Permit and to require its re-application in circumstances of a completed and closed acquisition process, constitutes an abuse of the process of the Court, is frivolous, vexatious, misconceived and an uneconomic use of judicial time and resources.”

Background

Through their lawyers, Melinda Janki, Abiola Wong-Inniss, and Joel Ross, the citizens are seeking an Order of Certiorari to quash the decision made by the EPA to award an Environmental Permit to EEPGL- ExxonMobil Guyana- to undertake the GTE project activities, on the grounds inter alia that the decision was in breach of the provisions of the Environmental Protection Act (Cap. 20:05), and more particularly, the Environmental Protection (Authorisation) Regulations.

The citizens outlined that ExxonMobil Guyana in its application, dated June 24, 2021 includes details of the project site, the proposed route of the pipeline and the areas to be used and affected by the project, which includes residential properties, commercial properties and state-owned properties. Be that as it may, the application did not include or provide any proof of ownership, a lease or other agreement with the land owners of the said area.

Notwithstanding, the EPA granted EEPGL a Permit to undertake the project on November 25, 2022. Subsequently, the Minister of Public Works, Juan Edghill in January 2023 passed various orders to acquire lands for the purpose of the project, pursuant to the Acquisition of Lands for Public Purposes Act, Chapter 62:05.

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• Abiola Wong-Inniss, Anil Nandlall, Attorney General, lawyers, Melinda Janki, SC

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