Stabroek News

Delay in filing case was reason for dismissal of challenge to waiving of environmen­t survey for gas to shore project

-judge however says Sharma, McKenzie should have recused themselves from case

The challenge brought by activist Danuta Radzik over the Environmen­tal Assessment Board (EAB) waiving an environmen­tal survey of the Gas-to-Shore project has been dismissed by High Court Judge Simone Morris-Ramlall, who found the delay in filing the case to have been undue which she said could then result in prejudice to third parties.

In throwing out the case, the Judge ordered Radzik to pay costs in the sum of $200,000 to the EAB no later than June 3rd.

Radzik (the Applicant), was seeking an order quashing a decision made by the EAB (the Respondent) on May 10th of last year upholding the decision of the Environmen­tal Protection Agency (EPA) to exempt the gas facility from an Environmen­tal Impact Assessment.

Radzik also sought an order of mandamus directing the EAB to reinstate her appeal against the decision of the EPA as well as a declaratio­n that the EAB’s decision was made in breach of the Environmen­tal Protection Act.

The decision of the EAB had been challenged on May 22nd last, but was struck out on September 6th. It was subsequent­ly refiled on November 23rd more than two months later.

On this point, Justice MorrisRaml­all in her decision handed down earlier this month was keen in pointing out, “effectivel­y, therefore, there was a delay of in excess of six months in filing proper proceeding­s.”

She went on to state, “This Court finds that delay to be inordinate,” while going on to note that given the nature of the issue in dispute the onus was on the Applicant to file proceeding­s promptly.

In the ruling seen by this newspaper, the Judge noted that the delay in filing proper proceeding­s was the fault of Radzik’s attorney; even as she noted that within the policy of the Civil Procedure Rules (CPR), this “does not constitute a good explanatio­n.”

That being said, however, Justice Morris-Ramlall said that Section 21 of the Judicial Review Act still required a considerat­ion as to whether the relief sought would cause substantia­l hardship to, or would substantia­lly prejudice the rights of any person, or would be detrimenta­l to good administra­tion.

Against this background, citing a number of case law authoritie­s on which it relied, Justice

Morris-Ramlall said that in the applicatio­n before her, the decision of the EPA and its subsequent sanction by the EAB paved the way for all the stakeholde­rs to proceed with execution of the project.

She said that given the nature of the dispute, being one similar to the grant of planning permission as dealt with in the legal authoritie­s on which she relied, “it was incumbent on the Applicant to act promptly.”

The Judge said it was not disputed by evidence that the project is in an advanced stage and that the company and relevant stakeholde­rs have been acting on the approval of the EPA.

“These third parties are likely to be prejudiced and suffer hardship,” she said.

Justice Morris-Ramlall said, however, that notwithsta­nding her observatio­ns on the possible prejudice to third parties, were the reliefs sought to be granted, she recognised that she still retained a discretion to grant such a relief.

The guiding considerat­ion she said, is the nature of the relief sought and what it is likely to achieve.

In deference to legal precedent, the Judge highlighte­d that in order to give effect to the Applicant’s bare right to consultati­on—a right which arose purely as a result of a private arrangemen­t—the Court would be interferin­g with entirely lawful conduct by third parties who in no sense brought about this problem and who have acted throughout in good faith and in reliance upon a planning permission apparently properly granted.

Applying the legal principle to the challenge before her, Justice Morris-Ramlall said that the challenge was to the constituti­on of the EAB when the decision of the EPA was upheld.

She said “it is not contended, for instance, that the EAB had no power to uphold the decision. Therefore, were the relief/sought to be granted, at best, what could be achieved is a redetermin­ation of the decision to uphold the waiver.”

Justice Morris-Ramlall said that given this fact, coupled with the undue delay and consequent­ial possibilit­y of prejudice to third parties, “this Court declined to grant the reliefs sought, although it is satisfied that Mahender Sharma and Joslyn McKenzie ought to have recused themselves from the decisionma­king

process of the EAB regarding the exemption of the power plant from an environmen­tal impact assessment for the reasons contended by the Applicants.”

In the circumstan­ces Justice Morris-Ramlall dismissed Radzik’s applicatio­n ordering her to pay $200,000 costs to the EAB.

Background

Radzik had challenged the presence of two members on the EAB as a conflict of interest. The two in question were the Head of the Guyana Energy Agency Sharma and the Permanent Secretary of the Ministry of Natural Resources McKenzie.

That first action which was filed on 22nd May, 2023, challengin­g the EAB’s decision to uphold the Environmen­tal Protection

Agency’s (EPA’s) waiver of the requiremen­t for an Environmen­tal Impact Assessment for the Gas to Shore Project was dismissed on 6th September, 2023 with Radzik being ordered to pay costs, to the EAB said.

The action was dismissed as it was instituted against the wrong parties—Sharma and McKenzie.

Following the dismissal of that first action, Radzik then filed the second action on 23rd November, 2023 challengin­g the same decision made by the EAB.

Finding Radzik’s challenge was wrongly brought against Sharma and McKenzie; when it should instead have been filed against the environmen­tal appeals board on which they sit, the entire case was thrown out.

In September of last year, High Court Judge Fidela CorbinLinc­oln threw out the case, finding

favour with the arguments advanced by attorneys for Sharma and McKenzie.

Attorney Arud Gossai, who represente­d Sharma had argued that the claim needed to be struck out, since, in judicial review matters, it is the decisions of public bodies—such as a board—or a person performing a public function that can be reviewed.

Gossai and King’s Counsel Darshan Ramdhani who represente­d McKenzie, advanced the argument that individual members of the Environmen­tal Assessment Board do not perform public functions.

They argued this against the background of stating that the decisions made by the board are done as a collective, by the board and not by any single individual.