GUYANA | AG Anil Nandlall Files action in the CCJ against the citizens of Guyana?

GUYANA’S Kaieteur News is reporting that the Government of Guyana has secretly made an application to the Caribbean Court of Justice (CCJ) in a bid to reverse a decision of the local Appeal Court blocking the state from fighting against citizens of Guyana who want ExxonMobil to provide unlimited guarantee to clean up in the event of an oil spill.

They sought an unlimited parent company guarantee from ExxonMobil to cover cleanup costs in the event of an oil spill as a result of their offshore oil exploration activities. 

On May 3, 2023, the High Court ordered the EPA to obtain from Exxon Guyana, environmental liability insurance as is customary in the petroleum industry and an unlimited parent company guarantee to cover all costs of an oil spill, in accordance with the environmental permit issued to Exxon Guyana.

In his judgment, Justice Kissoon was very clear and castigated the EPA for abdicating its statutory responsibilities stating that the EPA had “relegated itself to state of laxity of enforcement and condonation compounded by a lack of vigilance thereby putting this nation and its people in grave potential danger of calamitous disaster.” 

Justice Kissoon also found in the evidence that Exxon Guyana, “was engaged in a disingenuous attempt which was calculated to deceive when it sought to dilute its liabilities and settled obligations stipulated and expressed in clear unambiguous terms” in its environmental permit.

According to Kaieteur News, The application  to go to the CCJ was filed on February 29, 2024 by the Attorney General (AG) and Legal Affairs Minister of Guyana, Anil Nandlall. It was only made known yesterday.

Guyana’s Environmental Protection Agency (EPA) and citizens Godfrey Whyte and Frederick Collins, along with Esso Exploration and Production Guyana Limited (now ExxonMobil Guyana Limited) are the named respondents in the matter that will be heard before CCJ Judges Justice A Saunders, President, Justice W Anderson and Mme Justice Maureen Rajnauth-Lee.

According to the Notice of Application for Special Leave to Appeal, seen by Kaieteur News, the Attorney General was instructed by the CCJ to file and serve written submissions and a list of authorities on or before 11 March 2024.

Meanwhile, the respondents were instructed on each file and served written submissions in response and a list of authorities on or before 25 March 2024. Nandlall was granted until April 1, 2024 to file and serve written submissions in reply, if needed. 

The Court of Appeal on December 19, 2023, unanimously rejected the application by Nandlall to join the case of two Guyanese to get ExxonMobil to furnish the nation with unlimited liability coverage for oil spills.

The Court of Appeal unanimously upheld the submissions made by Seenath Jairam ,SC, leading Ms Melinda Janki and Mrs. Abiola Wong-Innings on behalf of Collins and Whyte, strenuously objecting to the joinder of the Attorney-General. 

The Attorney-General had sought to join the side of Exxon Guyana which opposed the orders made by High Court Judge, Justice Sandil Kissoon for there to be a full coverage for all oil spill costs. 

Jairam, SC made a number of legal arguments as to why the AG should not be allowed to join but in particular pointed out that the Attorney-General has no place in judicial review proceedings – a legal position that has now been judicially endorsed by the Court of Appeal.

The Collins and Whyte case is currently in the Court of Appeal following the internationally renowned and historic decision by Justice Sandil Kissoon on May 3, 2023. 

The High Court Judge had ordered the EPA to obtain from Exxon Guyana, environmental liability insurance as is customary in the petroleum industry and an unlimited parent company guarantee to cover all costs of an oil spill, in accordance with the environmental permit issued to Exxon Guyana.

Both the EPA and Exxon Guyana appealed the decision which is now before the Court of Appeal.

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