Ramon Gaskin v Minister of Natural Resources

• Jurisdiction: Caribbean States
• Judge: Anderson J,Saunders P,Rajnauth-Lee J
• Judgment Date: 27 June 2024
• Neutral Citation: [2024] CCJ 14 AJ
• Docket Number: CCJ Appeal No GYCV2023/005
• Court: Caribbean Court of Justice (Appellate Jurisdiction)

Between

Ramon Gaskin

Appellant

and

Minister of Natural Resources

Respondent

and

Exxonmobil Guyana Limited

Cnooc Petroleum Guyana Limited

Hess Guyana Exploration Limited

Added Respondents

Environmental Protection Agency

Amicus Curiae

[2024] CCJ 14 (AJ) GY

Before:

Mr Justice Saunders, President

Mr Justice Anderson

Mme Justice Rajnauth-Lee

Mr Justice Barrow

Mr Justice Burgess

CCJ Appeal No GYCV2023/005

GY Civil Appeal No 20 of 2020

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDICTION

ON APPEAL FROM THE COURT OF APPEAL OF THE CO-OPERATIVE REPUBLIC OF GUYANA

Environmental law — Oil and Gas law — Statutory interpretation — Delay in issuing judgments — Whether non-operators required to apply for environmental permit — Whether Minister may grant petroleum production licence to non-operators who do not have environmental permits — Whether delay by court in issuing judgment breached statutory time limit for judgment delivery — Environmental Protection Act, Cap 20:05 — Petroleum (Exploration and Production) Act, Cap 65:04 — Time Limit for Judicial Decisions Act, Cap 3:13.

SUMMARY

The first respondent is the Minister of Natural Resources (‘the Minister’). The three added respondents, ExxonMobil Guyana Ltd (‘Exxon’), CNOOC Petroleum Guyana Limited (‘CNOOC’) and Hess Guyana Exploration Ltd (‘Hess’) formed a joint venture to find and exploit petroleum from the Stabroek Block, offshore Guyana. They and the Minister entered into a Petroleum Agreement on 27 June 2016, which appointed Exxon as the operator. Exxon alone applied for and was granted an environmental permit by the Environmental Protection Agency pursuant to the Environmental Protection Act of Guyana. Subsequently, the three added respondents applied for and were all granted a Petroleum Production Licence dated 15 June 2017.

The appellant, Mr Ramon Gaskin, filed a Fixed Date Application in the High Court seeking to quash the Minister's decision to issue the Petroleum Production Licence and to prevent him from granting the Licence to Hess and CNOOC until they acquired an environmental permit. The High Court dismissed the application but took three hundred and sixty-six (366) days to deliver judgment. On appeal, the Court of Appeal determined that the Minister did not breach the Environmental Protection Act or the Petroleum (Exploration and Production) Act (‘PEP Act’) by granting the Licence to the three added respondents because the environmental permit was tied to the Liza 1 Project of the Stabroek Block itself and not to the permit holder Exxon. The Court of Appeal also held that the trial judge did not unduly delay in giving her decision and was not in breach of the Time Limit for Judicial Decisions Act. Mr Gaskin then appealed to this Court seeking to have the Court of Appeal decision set aside. He contended that the delay by the High Court and Court of Appeal in delivering judgment contravened the relevant statutory time limits.

Two principal issues fell to be determined by the Caribbean Court of Justice (CCJ). These were: (i) Whether the Minister acted unlawfully in granting the Petroleum Production Licence to the three added respondents when only Exxon was granted an environmental permit; and (ii) Whether the High Court and the Court of Appeal breached the statutory time limit for judgment delivery and if so, the effect this had on the judgments they delivered.

In delivering the judgment of the Court, Anderson J commented that arts 25, 36 and 149J of the Constitution of the Co-operative Republic of Guyana, in expressly providing for environmental rights, placed protection of the environment upon an exalted plane and that these provisions must be borne in mind when interpreting legislation that touch and concern the environment. Under ss 14 and 4(5) of the Environmental Protection Act, the granting of environmental authorisation was a condition precedent to the power exercisable by the Minister under s 35 of the PEP Act to grant a Petroleum Production Licence.

Interpreting the Environmental Protection Act as a whole and within the context of its objectives and constitutional underpinnings, Anderson J concluded that environmental authorisation must be given for the undertaking of a project and that the Environmental Protection Agency must be convinced that a developer can fulfil their role and responsibilities and comply with the terms and conditions of the environmental permit. As sole operator, Exxon alone was able to comply with the obligations of the developer under the Environmental Protection Act.

In this case, the Petroleum Production Licence had been granted on the basis that Exxon was the operator of the project and was subject to extensive environmental obligations which were extended to Hess and CNOOC through joint and several liability. The grant of the Licence to CNOOC and Hess did not render the Licence invalid for four (4) reasons. Firstly, the essential requirements under s 14 of the EP Act to obtain an Environmental Permit had been satisfied with the grant of the environmental permit to the sole operator of the Liza 1 Project. Secondly, it was consistent with international oil and gas industry practice that Exxon as operator functioned as representative of the joint venturers and that Hess and CNOOC be included within the Licence as financial partners to secure financing. Thirdly, the three added respondents shared liability for environmental harm guaranteed by their joint and separate liability. Lastly, there was no increased risk of harm to the environment under either the precautionary principle or avoidance principle by the inclusion of Hess and CNOOC in the Licence. Anderson J concluded that there was no basis for finding that the Minister acted unlawfully and thus considered it unnecessary to address the issue of amendment of grounds of relief pleaded. As the appellant had acted as a public-spirited citizen intent on advancing the constitutional protection of the environment costs ought not be awarded against him.

Saunders P concurred with Anderson J that the appeal must fail. The President reasoned that the environmental permit was obtained in contemplation of works that placed the environment at risk to be undertaken solely by Exxon. It is only necessary that those co-venturers who were to be engaged in development activity that may have a significant impact upon the environment should be granted an environmental permit. Given that a) the liabilities undertaken in connection with the Licence are joint and several; b) Exxon (and not CNOOC nor Hess) was the developer carrying out day to day activities; c) neither the grant of the permit nor of the Licence, in each case to Exxon, is being challenged and d) no grounds were advanced to impugn either of those two authorisations to Exxon, it could not fairly be said that, in licensing CNOOC and Hess, the Minister acted illegally or irrationally or unfairly or unreasonably.

Saunders P highlighted the importance of transparency and accountability in environmental governance, acknowledging Mr Gaskin's concerns about environmental risks.

Regarding the issue of delay, this Court's comments on lengthy delay in Reid v Reid were referenced. Saunders P took the view that the time limits set out in the Time Limit for Judicial Decisions Act, Cap 3:13 must be construed as being of a discretionary and not mandatory nature. While a one-year delay should not be condoned, the Court had no way of knowing what objective difficulties, if any, faced the courts below. Finally, the Court on principle should avoid imposing a costs order on a citizen who in good faith files proceedings in a genuine effort to comply with their constitutional duty to participate in activities designed to improve the environment and protect the health of the nation.

In a concurring judgment, Rajnauth-Lee J recounted this Court's approach to statutory interpretation in OO v BK and highlighted arts 25, 36 and 149J of the Constitution of Guyana which were given legislative force by the Environmental Protection Act. The Constitution of Guyana and Guyana's international obligations required balancing of sustainable development and the use of natural resources, with justifiable economic and social development, to safeguard the environment for the benefit of future generations. The question of whether an environmental permit approves a project or an applicant undertaking the project ought not to be bifurcated. The Environmental Protection Act did not envision a multiplicity of applications. Accordingly, there was nothing in the Act requiring CNOOC and Hess to make separate applications for an environmental permit.

Rajnauth-Lee J was therefore of the view that the objectives of the Environmental Protection Act, particularly the environmental protection and the sustainable development and use of the natural resources of Guyana, were fully satisfied by the grant of the Licence to the three added respondents. There was also no increased risk of harm to the environment by the inclusion of CNOOC and Hess in the Licence.

Rajnauth-Lee J further emphasised the role of the public in the decision-making process in environmental matters in accordance with the Rio Declaration. Rajnauth-Lee J agreed that the appellant as a member of the public played a key role in advancing environmental law in Guyana through the pursuit of this matter and costs are not to be awarded against him.

Having regard to the opinions expressed the Court ordered that the appeal should be dismissed and that each party should bear its costs in this Court.

Cases referred to:

BCB Holdings Ltd v A-G of Belize [2013] CCJ 5 (AJ) (BZ), (2013) 82 WIR 167; Caledonian Rly Co v North British Rly Co (1881) 6 App Cas 114; Collins v Environmental Protection Agency (GY CA, 3 May 2023); Commissioner of Police v Alleyne [2022] CCJ 2 (AJ) BB, [2022] 2 LRC 590; Environmental Protection Agency v Midland Scrap Metal Co Ltd [2016] IECA 64; ...