Challenge to licensing of Exxon’s partners sent back to High Court

The Guyana Court of Appeal yesterday remitted to the High Court an application filed by Ramon Gaskin, who is seeking to challenge the grant of a petroleum production licence to Hess Guyana Exploration Ltd (Hess) and CNOOC Nexen Petroleum Guyana Ltd (Nexen), which are the partners of the local Exxon subsidiary, as he contends that they have no environmental permits allowing them to engage in oil exploration here.

Gaskin had formerly filed an urgent appeal before the Appeal Court against the February 26th, 2018 judgment of High Court judge Justice Franklyn Holder, who, among other things, had ruled that the three companies constituted a single developer.

As stated in court documents, Gaskin is of the view that the judge exceeded his jurisdiction in so finding, while arguing that such determinations of law and finding of fact, being matters of substance, are to be decided upon in an inter partes hearing. 

According to him, the judge erred in finding that “the form of the joint arrangement had to have been set down in an application for the Petroleum Production Licence.”            This, he argued, was done in the absence of any evidence to support such a finding.

In his judgment, Justice Holder had also denied Gaskin the grant of orders nisi of prohibition and certiorari against the decision of Minister of Natural Resources Raphael Trotman, who granted the licence to Hess and Nexen although they were never granted environmental permits by the Environmental Protection Agency (EPA).

At the hearing yesterday, however, Justices of Appeal Dawn Gregory, Arif Bulkan and Rafiq Khan set aside Justice Holder’s order, dismissing the nisi orders and remitted the matter to the High Court.

As it had previously noted, the appellate judges said that all parties involved in the matter must first be fully heard at the High Court before commencing proceedings before the Court of Appeal. (The EPA is yet to be added as a party to the proceedings to be heard.)

It was in those circumstances that the matter was remitted to the High Court for a date to be fixed and to be assigned by the Chief Justice to a judge other than Justice Holder, before whom it was previously dealt.

In its reasons for sending the case back to the High Court, the Court of Appeal also cited judicial pronouncements made     by the Caribbean Court    of Justice as regards    issues surrounding the            applicability of nisi orders as provided for under the Crown Office Rules 1906 of England, for which the New Civil Procedure Rules of 2016 do not provide.

The case referenced was that of The Medical Council of Guyana v. Jose Trueba Ocampo CCJ Appeal No GYCV2018/001.

The Ocampo case, however, had been decided after Justice Holder had already dealt with Gaskin’s application.

In his application, Gaskin is arguing that not only do the Hess and Nexen not have environmental permits to facilitate their exploration of oil here, but they have also not carried out any environmental impact assessments.

It is against this background that he contends that in the absence of being assessed by the EPA, there can be no payment of compensation for loss or damage by Hess and Nexen.

According to Gaskin, Justice Holder exceeded his jurisdiction when he determined that the effect of Section 14 of the Environmental Protection Act is to impose on parties who are not holders of an environmental permit an obligation to comply with the said permit.

Gaskin also took issue with what he said was the misconstruing and misapplication of Part IV of the Environmental Protection Act by Justice Holder in his finding that section 14 extended the obligations of an environmental permit to both Hess and Nexen, who never conducted environmental impact assessment—a pre-condition for an environmental permit.

In the affidavit supporting his motion, Gaskin says that since Esso has been granted an environmental permit, Trotman, in accordance with Section 14 of the Act, was proper in granting a petroleum production licence to Esso alone.

He said, however, that given the peculiar circumstances, Esso would have authorisation to continue with its petroleum operations, subject to the law, pending environmental permits also being lawfully granted to Hess and Nexen.

He argued that the benefit of the environmental permit issued to Esso cannot be extended to Hess and Nexen, since they have not been approved by the EPA under Section 13 of the Act, while adding that Esso does not have the power to share the benefit of the environmental permit with them.

Gaskin is being represented by Senior Counsel Seenath Jairam and attorney Melinda Janki.

Meanwhile,  Trotman is being represented by Senior Counsel Edward Luckhoo in association with Solicitor-General Kim Kyte-Thomas and attorneys Oneka Archer-Caulder, Judy Stuart-Adonis and Eleanor Luckhoo. 

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