Stabroek News

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 dealt.

In its reasons for sending the case back to the it was previously 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 preconditi­on 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 SolicitorG­eneral Kim Kyte-Thomas and attorneys Oneka Archer-Caulder, Judy StuartAdon­is and Eleanor Luckhoo.

 ??  ??

Newspapers in English

Newspapers from Guyana