Ramon Gaskin v Minister of Natural Resources, Exxon, Hess and CNOOC
Ramon Gaskin claimed the Minister of Natural Resources illegally granted a petroleum production licence to oil corporations Esso, Hess, and CNOOC.
Date filed: 19th February 2018
The Caribbean Court of Justice (CCJ) gave its judgement in this case in June 2024. Unfortunately the CCJ did not rule in favour of Mr. Gaskin but they made really important rulings which protect Guyana and put judicial review on a more solid footing. These are:
In summary
(1) Extension of Liability:
The court has extended liability under Exxon's Environmental Permit to Hess and CNOOC. They will be liable if Exxon breaches its Exxon’s Environmental Permit! So, if there is an oil spill, Hess and CNOOC are liable even though they are not parties to Exxon's Environmental Permit.
(2) New legal principle on costs: the CCJ has removed the threat of adverse costs awards being used to stymie public interest litigation. The Attorney-General is on record as saying that the courts should use costs to stop what he called, ‘frivolous and vexatious’ cases related to the oil sector. But now the CCJ ruled that, “A court, at first instance and even at the level of the Court of Appeal should not award costs against a public spirited citizen intent on advancing the constitutional protection of the environment. Such public spiritedness should be encouraged.”
This is a very significant advance for public interest litigation to protect the planet from fossil fuels.
(3) Rio Declaration and Escazu agreement: In a first for Guyana (and probably the region) the CCJ expressly referenced the Rio Declaration and the Escazu Agreement in support of public access to information and participation in decision making. Only Antigua and Barbuda have had their apex court (the Privy Council) refer to the Escazu Agreement but that court did not cite the Rio Declaration.
(4) New higher standards for transparency and accountability: The CCJ set new rules for transparency and accountability. They stressed the importance of transparency as a vital tool in protecting the environment. They quoted extensively from the Environmental Protection Act and said that, “Good governance, fairness and the utmost transparency must be observed and information about policies and decisions, applications and applicants must be readily made available to the public.”
This is a major step forward for public interest litigants and citizens in general. The Government and the Environmental Protection Agency (EPA) have for years withheld information from the public. The EPA in particular has interpreted its transparency duties as narrowly as possible. In another case the judge said the EPA had ‘sought refuge in silence, concealment, avoidance and secrecy.’ The CCJ has made it clear that such conduct is unacceptable. They pointed out that when information is available it is easier for the public to identify instances of non-compliance and misconduct for the EPA to correct.
(5) New legal principle: Accountability obligations extend to oil companies: The CCJ extended duties of transparency and accountability to Exxon, Hess and CNOOC. They said “Corporations, government agencies (like the EP Agency) and other public entities have a solemn obligation to hold themselves accountable for the steps they take in the management, conservation, protection and improvement of the environment.” This is a very important principle which citizens can use to get at the truth.
(6) Constitution: the CCJ relied on Guyana’s constitution in particular Article 36 which states that, “The wellbeing of the nation depends upon preserving clean air, fertile soils, pure water and the rich biodiversity of plants, animals and ecosystems.” They also used Article 149J the fundamental constitutional right to a healthy environment.
(7) Incorporation of international law: The CCJ has reinforced the message that the Environmental Permit requires Exxon to comply with international law. According to the CCJ these international obligations include, “a raft of legislation and international conventions and protocols on the environment, noise management, air quality management, water quality, waste materials management. Other obligations imposed on Exxon relate to well blowout prevention, oil spills and other emergency management, compliance reporting, and liability for pollution damage.” The CCJ also said that Hess and CNOOC have these obligations because of joint and several liability.
(8) Multi-jurisdictional impact: The CCJ is the final court of appeal for 5 states. They all benefit from this case. As a regional court, the CCJ’s decision could have influence across the English speaking Caribbean and the rest of the Commonwealth. The case makes new law for Guyana while benefiting people in the Caribbean and potentially across the world.
The Legal Claims:
1) The Minister breached section 14 of the Environmental Protection Act in granting a petroleum production licence to Esso Exploration and Production Guyana Ltd., Hess Guyana Exploration Ltd. and CNOOC Petroleum Guyana Ltd.
2) Esso, Hess and CNOOC are in breach of the accounting requirements under the Companies Act.
Status: on 16th June 2023 the Court of Appeal granted permission for Mr Gaskin to appeal to the Caribbean Court of Justice. The notice of appeal has been filed.
The story of the case: Mr Gaskin filed his Application on 19th February 2018 on an urgent ex parte basis for Orders Nisi to quash the licence and prohibit the minister from issuing new licences until Hess and CNOOC had obtained environmental permits. Justice Franklyn Holder dismissed the claim. Mr Gaskin filed his Notice of Appeal to the Court of Appeal and on 23rd March a Motion for an urgent hearing. Before the appeal was heard a decision of the Caribbean Court of Justice altered the procedure and removed the order nisi procedure.
Mr Gaskin therefore asked the Court of Appeal to send his matter back to the High Court for a full determination of the issues.
The Minister asked for the case to be dismissed. Esso, Hess and CNOOC filed an application to join the case.
On 28th June 2018 the Court of Appeal allowed Mr Gaskin’s appeal and ordered that the matter be sent back to the High Court fora hearing de novo. The Court of Appeal rejected the Minister’s arguments to hear and decide the substantive matter and also declined to hear the application by Esso, Hess and CNOOC to be joined. The transcript of the decision is here along with the court order of 29th June 2018.
On 25th October 2018, the Chief Justice (Acting) Roxane George SC, CCH made an Order adding Esso, Hess and CNOOC as respondents/intervenors on condition that they did not receive any costs.
The hearing was concluded on 11th February 2019. The Chief Justice did not give a decision for 366 days.
On 12th February 2020, the Chief Justice gave her judgement dismissing Mr Gaskin’s case. She ruled that the environmental permit issued to Esso was issued for a project and that Hess and CNOOC were bound by the environmental permit. Mr Gaskin’s Appeal was filed two days later on 14th February 2020.
The Court of Appeal did not hear Mr Gaskins’ Appeal for over two years. In December 2022 Court of Appeal dismissed Mr Gaskin’s appeal and held that the Chief Justice had not delayed. The transcript is here.