Aug 03, 2021 News
By Carlos Gonsalves
Kaieteur News – On June 29, last, Chief Justice (Ag) Roxane George-Wiltshire handed down a judgment in a dispute between the state owned National Industrial Commercial Investments Limited (NICIL) and various persons who would have leased sugar estate lands from the company. The ruling effectively bars the state-owned privatisation company, from reclaiming lands that it leased to several private individuals and entities. The ruling, as well as the state’s intention to appeal, as highlight by NICIL’s attorney-at-law Devindra Kissoon, signals the introduction of another hurdle that can hinder the timeline of the government’s proposed gas-to-energy project and inflate the project’s cost.
It has been noted that a portion of the disputed lands are located at Wales and are within the area for the proposed gas-to-energy project. Consequently, the US$900 million estimated price tag associated with the project as well as its projected 2024 startup date would inevitably be affected if the government is to proceed with the appeal process. The reasons for this interference with the project is that in granting the declaration sought by the Claimants to revoke NICIL’s decision, Justice George-Wiltshire also imposed a permanent injunction against NICIL from interfering with the Applicants’ quiet and peaceful enjoyment of their properties.
This essentially bars NICIL, and by extension the government, as NICIL is a government entity that is under the authority and control of the government from executing any action in relation to the disputed lands until (and if) the high court’s decision is overruled by a higher court. The appeal process in Guyana has historically been noted to be tediously lengthy, and while recent judicial reforms, such as the advent of the new civil procedure rules, have enabled a more streamlined and expedited approach, the estimated timeline for the Court of Appeal and then possibly the Caribbean Court of Justice to hear and issue a determination on the matter would undoubtedly go beyond the 2024 startup date for the project. The government had previously indicated that the project will require about 2,000 acres of land for the construction of the power generation facility as well as additional areas to facilitate possible expansion.
According to documents previously seen by this publication, the legal challenge was mounted by businessman and proprietor of Universal Janitorial Services, Ian Edwards, and eight other persons against NICIL after the company took a decision to cancel their lease for the occupation of lands once owned by the Guyana Sugar Corporation Limited (GuySuCo). NICIL had acquired several plots of land after the previous A Partnership for National Unity + Alliance For Change (APNU+AFC) coalition administration shut down sugar estates at Enmore, Rose Hall, and Wales between 2015 and 2017. The APNU+AFC had subsequently allowed the properties to be divested and leased to private individuals and companies through NICIL. However, sometime last year, after a new administration came into place, NICIL moved to reclaim the lands by issuing notice to cancel the leases. According to legal papers, the NICIL’s Privatisation Unit, sought to reclaim the land for the purpose of resuscitating the operations of the GuySuCo estates.
The court handed down the ruling in favour of the applicants despite claims last November by Attorney General, Anil Nandlall, that the lands at Wales were disposed of “without any process whatsoever.” The AG had also stated that he had advised the new board of NICIL to send notices of rescission of leases to the persons occupying the lands at Wales. Some persons on the lands at Wales had also been given notices of eviction. Government had also made a decision to undertake an occupational survey to ascertain which lands were developed, the state of development and overall what should be done.
The High Court’s injunction prevents the government from executing any undertaking related to the disputed lands in question, some of which falls within the confines of the area marked for the proposed GTE project. Additionally, even if the government is to abandon its appeal process, it would have to rely on a notorious legal provision known as eminent domain in order to compulsorily acquire the lands, and consequently would have to fork out millions of dollars more to compensate the persons occupying the lands at market value. It remains uncertain if this current market value would accurately reflect the actual value of the lands as this is computed by the government’s Chief Valuation Officer. Should a discrepancy exist between the proposed market value and the actual market value of the lands, another legal challenge would again undoubtedly ensue, further stalling the massive energy project.
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