– as CCJ overrules CoA, allows AG’s participation in oil spill liability case
– AG to protect the public’s good, interest in law

THE Caribbean Court of Justice (CCJ) has overturned a previous ruling by Guyana’s Court of Appeal (CoA), ordering that the Attorney General be added as a party to the case involving the unlimited parent guarantee for ExxonMobil.
This is according to Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., while speaking on his Facebook programme ‘Issues in the News,’ on Tuesday evening.

The case originated with Guyanese citizens Frederick Collins and Godfrey Whyte, who filed proceedings with the High Court demanding that the Environmental Protection Agency (EPA) enforce the liability clause of the environmental permit issued to ExxonMobil.

The duo requested that the court ensures that Exxon assumes full financial responsibility in the unlikely instance of an oil spill.
The court ruled, on May 3, 2023, in favour of the petitioners, mandating ExxonMobil to provide a signed parent guarantee for insurance coverage in potential oil spill scenarios.

Both the EPA and Exxon Guyana have appealed this decision, which is now under consideration by the Court of Appeal. The Attorney-General said the government has not had an opportunity to represent itself in these proceedings.
Minister Nandlall’s application to join as a party to the case back in December was denied on the grounds that the EPA can substantially represent the government.

However, the Attorney General moved to the CCJ to overturn the ruling, citing that the EPA is a statutory body that cannot speak on behalf of the government.
After hearing submissions, the CCJ, on Tuesday, May 14, revered and overruled the CoA’s decision and ordered the Attorney-General to be added to the substantive appeal.

According to Nandlall, this is not the first time a decision from the CoA against the government was reversed by the Caribbean Court of Justice.
“The Court of Appeal consistently rules in a particular way and the Caribbean Court of Justice consistently reverses [it]. Here it is that the government of Guyana is a party to a contract with Esso Petroleum, known as ExxonMobil.

We are a party to that contract.
A High Court judge makes a particular ruling that can have the potential of bringing that contract to a halt. This is not an outsider; this is a party to the contract that a court has ruled can come to a halt,” he said.
The Attorney- General pointed out that in his application to the CoA, he outlined the importance of this contract and the revenue generated from the said contract is used to push the developmental agenda of Guyana.

“We also explained, in great detail, that the Attorney General represents the public good and the public’s interest. This is one of the most important contracts ever executed in the history of this country to which the government is a party and for which the government is getting hundreds of millions of dollars annually,” Nandlall explained.
This year, government presented the historic $1.146 trillion budget to deliver accelerated improvement to the lives of Guyanese and development.

It is the third budget that will benefit from financing from the proceeds of Guyana’s new and emerging oil-and-gas sector, following the historic passage of the Natural Resources Fund (NRF) Act, which addressed the most “offensive deficiencies” of the predecessor Act.

By doing so, Nandlall pointed out this will finance projects for the benefit of the citizens of this country – which will cease it the challenge is allowed.
“The Attorney General protects the public’s interest in law. All those arguments are put forward to the Court of Appeal.

And the Court of Appeal says ‘No, you cannot be a party.’ In fact, the Court of Appeal was bold enough to say that the Environmental Protection Agency can represent the government of Guyana in the appeal,” he said.
However, Nandlall explained that ruling is woolly, since the EPA is not a part of the Government but an agency of the state.

“In fact, the government and that agency cannot be seen to be working together because that agency is the regulatory agency; it regulates both the government and the oil companies and operators in the oil and gas sector,” he said.
As he criticised the CoA’s ruling, Nandlall asked, “By what principle of law or system of logic can the Environmental Protection Agency ever represent the interest of the government in a case?”

Nandlall warned that ramification of the CoA’s ruling has been detrimental to the development of Guyana since it would have opened that door for persons to file proceedings to stop major operations in Guyana, and the government would be unable to do anything.

He highlighted that the government respects the rights of every citizen to bring an action or to appear in a court, the same must be allowed to the government to bring transparency and accountability.
Against this backdrop, Nandlall also dismissed claims suggesting that he “secretly” filed the appeal to the CCJ.

“No appeal was secretly filed. The appeal was filed in accordance with the rules for filing appeal. The filing of that appeal cannot, in any form or fashion, be sensibly interpreted as siding or supporting ExxonMobil.
“The government has an interest in ensuring that the oil and gas industry continues to operate because the government is drawing revenue from that industry. The government is using that revenue to fuel and finance its developmental agenda. Obviously, the government must be heard, and the government is not taking any sides,” he said.