By Chevy Devonish
Guyana’s highest court, the Caribbean Court of Justice (CCJ) recently handed down two significant decisions which will affect future oil and gas operations and litigation in the South American country.
These decisions are Ramon Gaskin v. Minister of Natural Resources et al [2024] CCJ 14 (AJ) GY, and Attorney General of Guyana v Environmental Protection Agency [2024] CCJ 16 (AJ) GY.
In today’s article I will break down the latter decision. The other decision will be addressed in a subsequent article.
Attorney General of Guyana v Environmental Protection Agency [2024] CCJ 16 (AJ) GY
In this case, the issue before the CCJ, and the Court of Appeal (CoA) before it, was whether the Attorney General (AG) of Guyana should be a party in a lawsuit against the Environmental Protection Agency (EPA) concerning the proper enforcement of the Environmental Protection Act, Cap 20:05, Laws of Guyana (EP Act).
In the High Court, the persons who brought the lawsuit (the activists) argued that EPA refused or omitted to compel ExxonMobil Guyana Limited, CNOOC Petroleum Production Limited and Hess Guyana Exploration Limited, (the Co-ventures), to provide (proof of) insurance and a guarantee to indemnify the Government of Guyana (GoG) and the EPA against environmental and other liability in the Stabroek Block.
The High Court agreed and ordered EPA to make the Co-venturers provide proof of insurance and guarantee. The Co-venturers have since lodged proof of insurance policies and guaranty and indemnity agreements.
The EPA appealed the decision to the CoA, particularly the requirement that the Co-ventures provide a US$2 billion parent company guarantee and indemnity. An attempt by the AG to join the appeal was opposed by the activists, and refused by the CoA. The AG then appealed the CoA’s refusal to let him join the lawsuit.
The activists argued before the CoA and the CCJ that the lawsuit concerned the interpretation and application of the EP Act, and that the AG could not say anything the EPA, as the implementing authority, could not say.
The CCJ, however, said that as the legal advisor of the State and guardian of the public interest, the AG should be added to the proceedings since the outcome could affect the State and the public interest.
The CCJ also said the that the AG should be added to the lawsuit in the CoA since he wants to advance arguments on the interpretation and application of the 2016 Petroleum Sharing Agreement, to which the GoG, not he EPA, is a party. The CCJ also said the AG should be added since the judgment of the CoA “may be relevant to the obligations created under the Agreement.”
Ultimately, the CCJ said that the interests of justice required that the AG be added to the proceedings in the CoA.
A few questions fall to be answered here: why does the AG want to be added to these proceedings; and what are the implications of this decision?
The ongoing lawsuit could affect the co-venturers operations. In turn, this could affect revenue for both the co-ventures and the GoG, and also trigger a dispute under the Agreement. Given these possibilities, it is obvious why the GoG insists on being a party to, and being heard in these proceedings.
The implication of the CCJ’s decision
It can be argued that the CCJ’s decision has provided the GoG wide latitude to be named in or added to any court proceedings relevant to the Agreement, even if the Agreement is not mentioned in the lawsuit. The duties and obligations under the Agreement is so extensive that is difficult to think of any oil and gas related lawsuit that would not touch the Agreement. This and another recent decision of the High Court will make it difficult (though not impossible) for the GoG to be left out of similar court proceedings in the future.
About the Author
Chevy Devonish is a Senior Legal Advisor at the Attorney General’s Chambers, a Legal Advisor at the Ministry of Parliamentary Affairs and Governance, a lecturer at the University of Guyana, and has worked as a legislative analyst. He can be reached at [email protected]
