‘Don’t Sign That Bill”

May 20, 2025 News

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-Int’l lawyer tells Pres. Ali oil spill bill violates Guyana’s constitution, international obligations  

—-urges him to withhold assent

Kaieteur News- The recently passed Oil Pollution Prevention, Preparedness, Response and Responsibility bill is unconstitutional and violates Guyana’s international legal obligations, International Lawyer, Melinda Janki has said.

Janki is among a number of Guyanese who have identified flaws in the bill, which was passed in the National Assembly last week. She documented her concerns in a letter to President Irfaan Ali urging him to withhold his assent to the bill, until those flaws are corrected.

‘Don’t Sign That Bill”

Following a four-hour-long debate at the Arthur Chung Conference Center, Lilliendaal, Georgetown, last Friday, the government, with its one-seat majority, managed to push the Bill through despite calls from the opposition for the Bill to be sent to the Special Select Committee for refining. Leading the debate on the opposition side, Shadow Minister of Natural Resources, Shurwayne Holder, pointed to the fact that the new law protects the ‘parent’ of oil companies from costs associated with a spill. He cited Part VI (6) of the new law, which addresses liability or what he described as “the backbone of PPP’s deceit.” He quoted Clause 17 of the Law, which states, “A responsible party is liable for all damages caused by an oil spill incident, removal and removal costs, and restoration of environment as far as practicable, and for any costs arising therefrom or connected therewith.” Holder pointed out that while this section sounds brilliant, the government waged war in and out of the courtroom against the people of Guyana for an unlimited Parent Company Guarantee. With elections now nearing, the Opposition MP said the government seems to have awakened from their slumber to champion full liability coverage. However, this is no more than a “hoax”.

Contrary to int’l obligations  

In her letter to President Ali, Janki said: “The Bill was passed in the National Assembly on Friday 16 May. It will be sent to you for your assent as President to enable it to become law under Article 170 of the Constitution. You must withhold your assent because the Bill is contrary to Guyana’s international legal obligations and is unconstitutional.”  The lawyer pointed out that the drafter of the Bill clearly had no idea about Guyana’s international law obligations. “The Bill at best contains meaningless references to international law and does not meet the requirements of international law for Guyana to act with due diligence and to take steps to prevent transboundary harm.”

She noted that Article 149J of the Constitution requires the State to take “reasonable legislative measures” to protect the environment including preventing pollution and ecological degradation. However, Janki said the bill attempts to: (i) lower or remove altogether (through the doctrine of implied repeal) the environmental protection and environmental rules and standards set out in the Environmental Protection Act or made under the authority of that act; (ii) to remove or make redundant the system of environmental management to protect the environment.

Additionally, she said the Bill lacks the precautionary principle which was described by Justice Winston Anderson, the future President of the Caribbean Court of Justice, as follows: “Precaution is emerging as a bedrock principle in Caribbean law relating to resource exploitation. The clearest statement of the principle is to be found in the 1996 Environmental Protection Act of Guyana.”

Janki said too that the bill gives the executive the power to forego obtaining financial assurance such as the unlimited uncapped parent company guarantee which ExxonMobil Guyana Ltd. Is currently required by law to provide in order to protect Guyana from financial liability as a result of Exxon’s petroleum operations. “The Environmental Protection Act is the base line. Under Article 149J the State may improve environmental protection but the State cannot reduce environmental protection. The Bill is therefore not a reasonable legislative measure, violates Article 149J and is offensive to the Constitution,” Janki told President Ali.

Protecting foreign companies   

She said too that the Bill also seeks to protect foreign oil companies at the expense of Guyana. “The BP Macondo well blowout in 2010 cost BP over US$65 billion, or around US$95billion in today’s money. Guyana’s revenue from oil for the whole of 2024 is reported as being US$2.57billion. It would take Guyana more than 35 years of current income to pay for a Macondo type spill if the ‘responsible party’ did not pay and if there was no effective and readily enforceable unlimited uncapped parent company guarantee as is currently required by law,” Janki warned.

She reminded President Ali that Justice Sandil Kissoon had warned in 2023 in the Collins and Whyte v EPA, ExxonMobil and Attorney-General case that if there is an oil spill, “…the consequences will be devastating not only to the citizens of this land and the environment but to inhabitants of neighbouring states and territories as well.” He further warned that in the absence of the unlimited uncapped parent company, “then the potential consequences are elevated and borders on catastrophic.” “This massive potential liability as a result of harm to neighbouring sovereign states and their economies is well illustrated in ExxonMobil’s maps, Janki said, noting that as is common and public knowledge deep water drilling is a very dangerous exercise.

According to the lawyer, ExxonMobil has admitted to using faulty equipment (the gas processor) and to operating above the limits set in its environmental impact assessments thereby increasing the danger to Guyana financially and environmentally. “All MPs who voted for this Bill should now be required to provide ‘financial assurance’ to cover the increased financial risk to Guyana as a result of their reckless approval of this Bill. Should you decide to assent to this Bill, the people of Guyana will be entitled to demand that you also provide ‘financial assurance’ to them,” Janki told the President.

Constitutional breach

Turning her attention to Article 36 of the constitution, Janki said the oil spill Bill offends this article, which states that, “The well-being of the nation depends upon preserving clean air, fertile soils, pure water and the rich diversity of plants, animals and ecosystem.” If there is an oil spill are you and the MPs going to put fish back in the water for our fisherfolk? Are you going to walk into a store and buy replacement sperm whales, marine turtles and other endangered animals? How will you restore Guyana’s natural capital? Money is not a substitute for life. It is impossible to be guided by Article 36 and approve this Bill.”

The bill, she added also offends Article 65 Constitution which gives Parliament the power to make laws

for the peace, order and good government of Guyana. “Parliament consists of the MPs in the National Assembly and the President, which is you. Even the widest and most generous interpretation of this Bill cannot bring it within the meaning of ‘good government’. This Bill is unlawful and to the extent that you and your government attempt to bring it into law or treat it as law you are acting outside of your constitutional powers.”  Jank said the Bill is an act of recklessness towards Guyana and a humiliating capitulation to the oil industry by those who voted for it. “As is common and public knowledge the world over, it is the purpose of the oil industry to transfer as much value as possible to their shareholders. They do that by getting oil and gas as fast and as cheaply as governments allow them, and by leaving the host country to pay for all harm caused.” Janki said it is therefore the job of the executive and the legislature to protect Guyana from such exploitation and both have failed. “You are doubly culpable as President and as the minister with responsibility under the Environmental Protection Act. You have failed in both offices to do your duty towards the citizens of this country,” Janki told the President in her letter. “If you decide to approve this assault on the Constitution and to give your assent to the Bill, please provide me with a written statement of your reasons for doing so. Please include in your written statement an explanation of how you believe you have complied with Article 149J and with your constitutional duty under Article 39(1) of the Constitution to be guided by Article 36 of the Constitution. Please also explain how this Bill complies with Article 65.”

She also warned: “Please note that although as President you are the “supreme executive authority” you do not have any power as President except what the law gives you for the sole purpose of serving Guyana and the people of Guyana. You are subject to the rule of law. When you use public power, your actions and decisions are subject to judicial review. There is no ‘prerogative’ which allows you to escape the scrutiny of the courts. The Courts have a duty to uphold the rule of law and can strike down your decisions and action if you exercise public power unlawfully. I have written to you in the past and not received any acknowledgement, let alone a reply. Such discourtesy is an affront to the dignity of your office. I look forward to hearing from you,” the letter concluded.

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• Arthur Chung Conference Center, Guyana’s Constitution, international obligations, oil spill bill, President Irfaan Ali

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