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Undoing Sandil Kissoon – Part 2

Every Man, Woman and Child in Guyana Must Become Oil-Minded – Column 156 – 17 May. 2025

Introduction

As feared, the Government ignored calls to refer the Oil Pollution Prevention, Preparedness, Response, and Responsibility Bill to a Select Committee and advanced it to a second reading. Listening to the exchange in the National Assembly, it was entertaining to see how members accused each other across the House of not having read the Bill. Standing among these was the Minister of Natural Resources, who spent most of his time discussing the IMF, the OAS, EITI, the World Bank, and the NRI.

Yesterday’s column spoke of the maze of institutions created by this Bill. At the top of the pile is the Civil Defence Commission, currently a loose body that, in a single clause, is transformed into a body corporate, a legal entity headed by a Governing Board. There is nothing to suggest how this body will relate to the Environmental Protection Agency and to the Ministry of Natural Resources.

One thing is sure: any idea of a Petroleum Commission is now dead, as dead as Review and Renegotiate. Another certainty is that the CDC has no capacity in personnel and assets to carry out the functions and duties imposed on it by this Bill. As the Competent National Authority, the CDC is required to develop, prepare, and publish a National Oil Spill Contingency Plan to guide all coordination and response operations of oil spill incidents or potential oil spill incidents. It faces an immediate uncertainty: the Bill provides no guidance on development processes, consultation requirements, approval mechanisms, or update frequency. Even though it is a “National” plan, there is no indication whether the plans of various companies and sectors, including those of the oil companies, are to be incorporated into the National Plan.

The other organisational issue is how this Bill will alter the CDC’s prior focus – the management of disasters.

The Prosecution Puzzle

Another feature of the Bill is the bewildering array of offences – from failing to submit plans to refusing to respond to spills – with penalties ranging from fines to mandatory three-year prison terms. Yet remarkably, it fails to specify who will bring these criminal charges or which courts will hear them. The legislation simply states that responsible parties “commit an offence” and “shall be liable on summary conviction” or “on conviction on indictment,” leaving prosecutors, defendants, and courts to guess whether the Director of Public Prosecutions, the CDC, the EPA or some other authority has the power to initiate proceedings. The Attorney General did not name the Office of the DPP as one of the persons and organisations consulted.

This omission creates potential chaos where administrative agencies like the EPA pursue civil penalties while criminal prosecutors pursue parallel charges in different courts for the same conduct.

The link with the Deal of the Millennium

The greatest threat from any environmental disaster comes from the operators of the Stabroek Block, which controls over eleven billion barrels of oil. Clause 10 of the Bill requires oil companies (the “responsible party”) to submit their contingency plans which must align with or be incorporated into the National Oil Spill Contingency Plan. The problem is that the 2016 Agreement has its own provisions dealing with environmental disasters, including oil spills. Yet, this Bill conspicuously avoids directly addressing how it interacts with the existing 2016 Petroleum Agreement between Guyana and the ExxonMobil consortium, particularly the Agreement’s powerful stability clause in Article 32.

Oil companies will therefore have two obligations and two options. They can point to either the Agreement or the Bill, whichever is more favorable, while taxpayers fund the oversight system.

International Outlier

Almost every speaker on the Government side spoke of the international standing of Guyana’s Bill, with several countries cited as sources from which this Bill was drawn. That is not supported by evidence from several countries. The United States’ Oil Pollution Act of 1990 makes operators the primary responders and creates a trust fund financed by a tax on oil companies. Norway imposes criminal liability on executives for willful violations and maintains strict liability without regard to fault. Canada requires operators to submit prevention plans while maintaining clear operator responsibilities. The UK’s approach focuses on vessel discharges with consolidated controls.

What makes Guyana’s Bill particularly troubling is its funding model – every other country either requires operators to pay directly or ensures operator liability, whereas Guyana’s taxpayers fund the entire bureaucracy. I found no other country with as many layers of bodies and overlapping jurisdictions. The effect of this Bill is that many of the costs are shifted from operators to taxpayers.

Conclusion

The Government has used its majority in the twilight of the 12th Parliament to rush this Bill through its second and third reading to passage. However, there is no funding for the massive structure and functions contemplated in the Bill, which, along with a range of marine, air, and land transportation assets and technical facilities, will be required to give the Bill a chance of success. Passage of the Bill will prove to be the easy part.

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Undoing Sandil Kissoon

Every Man, Woman and Child in Guyana Must Become Oil-Minded – Column 155

Introduction

The National Assembly is scheduled to meet today, as the 12th Parliament moves to a close in preparation for historic elections. The Prime Minister will lead the second reading of the Oil Pollution Prevention, Preparedness, Response and Responsibility Bill tabled last week. At first glance, the unsuspecting reader and observer may believe that the law set out in the 56-page, 39-clause Bill, arranged over eleven parts from Preliminary to Miscellaneous, is progress and development. They would be dangerously mistaken.

Beneath this technical jargon and smooth veneer lies a troubling reality: this legislation may weaken the very protections it purports to strengthen. Perhaps most strikingly is the suspicion that one of the hidden objectives of the Bill is to neutralise the decision of Justice Sandil Kissoon in the successful action brought by Fred Collins and Godfrey Whyte vs. the EPA and (conveniently joined by) ExxonMobil Guyana. If that suspicion is true, it is infinitely worse than the Government seeking to reverse a ruling by the High Court for which an appeal is pending. Such practice is not unusual but is usually only done to plug loopholes and fix lacunae. In this case, it seems designed to relax the regulatory controls over which Exxon appears to call all the shots.

Legislative reversal of Kissoon

To recap, in the Collins and Whyte case v. EPA, Justice Kissoon found that ExxonMobil’s Guyana subsidiary, a major oil company, had operated for eleven months in violation of its permit by failing to provide unlimited liability insurance. Meanwhile, the EPA had “descended into a state of slumber” and acted as a “derelict, pliant, and submissive” regulator.

If the Government persists with this Bill, it is not just legislative malpractice but another egregious abandonment of the national interest, in which we moved from the President’s “Review and Renegotiate to supine capitulation. In close to five years, this Government has failed to close a single annual audit; it refuses to use its powers to set any conditions, such as ringfencing, in production licences. It has engaged in secret deals with Exxon concerning the Gas – to – Shore and, most incredibly, has not enforced the mandatory relinquishment clause in the Agreement.

Despite representing “one of the most critical environmental and economic bills ever presented to our Parliament,” this legislation is being fast-tracked without adequate scrutiny. The Bill’s technical provisions, multiple bodies, unconnected parts, divisions, and sections without clear interconnection, as well as vague drafting that special interests can exploit, make for an almost unworkable arrangement.

MBA – style creation

The legislation creates at least five major bodies: the Civil Defence Commission (as the “Competent National Authority”), its six-member Governing Board, a National Oil Spill Committee with over 20 agency representatives, ad hoc Oil Spill Incident Boards of Inquiry, and a National Emergency Operations Centre. Inescapably, 95% of all these positions are directly appointed by the Minister, with the remaining 5% being ex officio appointments of officials who were themselves politically appointed, creating a system where political loyalty takes precedence over technical expertise. This legislative masterpiece is worthy of a special case study at Harvard Business School under “Advanced Organisational Dysfunction: A Masterclass in Bureaucratic Architecture.” 

This maze of institutions, all operating under vague mandates with unclear lines of authority, virtually guarantees bureaucratic paralysis when swift action is needed. Rather than streamlining response capability, the Bill spreads functions and responsibilities across multiple layers of bureaucracy, creating enough regulatory confusion to allow oil companies to operate with even greater abandon. At the same time, appointees can always point to some other body as being responsible for enforcement. When a spill occurs, who exactly is in charge? The Bill’s answer seems to be everyone – and no one. A disaster dressed up as comprehensive governance.

Taxpayers Pay – Exxon creams

As the structure goes, so do the financial arrangements. Typically, in regulated sectors, it is the players who fund the regulators through a levy. Not with this Bill. The entire elaborate bureaucratic ecosystem – five major bodies, dozens of appointed officials, multiple committees, emergency centres, and boards of inquiry – is funded entirely by Guyanese taxpayers through the Consolidated Fund. This allows the oil companies to operate in Guyanese waters, as the ultimate spillers and polluters of Guyanese shores – and beyond.

What makes this sellout particularly galling is how it exceeds even ExxonMobil’s original expectations. The oil giant has operated for years, knowing it needed unlimited liability coverage – that was the deal from the start. Justice Kissoon insisted on the enforcement of existing obligations.

Clause 22, in plain terms, removed that obligation and placed it on a motley group of ill-defined entities known as the responsible party. In contrast, Clause 21 can be read to render a parent company’s guarantee invalid. Clyde & Co told us that Exxon’s Brook Harris wrote the Cabinet Paper recommending the signing of the 2016 Agreement. I have serious doubts that Brook Harris could have done a better job on this one. Or maybe Brook Harris has a twin. To be continued

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Refer the Oil Pollution Bill 2025 to a Select Committee due to its technical deficiencies and legal ambiguity

Dear Editor,

I write to make an urgent appeal to the Speaker of the National Assembly, the Leader of the House, the Leader of the Opposition, and the Prime Minister regarding the Oil Pollution Prevention, Preparedness, Response and Responsibility Bill 2025, tabled by the Prime Minister last Friday.

This legislation represents one of the most critical environmental and economic bills ever presented to our Parliament. The reliance of the national economy on a single sector or company has never before been greater – drawings from the NRF into the Consolidated Fund account for 50% of 2025 revenues. And that is only part of the total direct revenue from the oil-producing companies. Clearly, then, any oil spill could have enormous consequences: the emphasis should be on prevention rather than cleaning up.  That is what makes this Bill so important.

 My assessment of the Bill is that it has technical deficiencies and legal ambiguities that could undermine its effectiveness. For example, clause 21 is framed in overly broad language that may inadvertently invalidate standard parent company guarantees essential to international oil operations. The Bill also lacks specific technical standards for response capabilities, relying on undefined terms like “adequate response.” Most concerning, it provides no dedicated funding mechanism for Commission operations, effectively requiring taxpayers to subsidise preparedness for corporate environmental risks.

I therefore appeal to our leaders to:

Immediately refer the Bill to a Select Committee.

Establish clear terms of reference for a comprehensive technical review.

Allow adequate time for stakeholder consultation and expert input.

Ensure that the Committee reports back with amendments before the Bill is returned to the National Assembly.

While I understand the urgency to establish regulatory frameworks, hasty passage of deficient legislation serves no one’s interests. We have seen, in the case of the Natural Resource Fund Act, the detrimental effects of rushing through critical legislation without adequate consultation and participation. The stakes are too high for anything less than the best efforts of the National Assembly and all Guyanese.

Sincerely,

Christopher Ram

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President’s lack of response and Information Commissioner’s disdain exemplify their disregard for information rights

Dear Editor,

I write to share the latest information on Guyana’s dismal state of transparency and right to information.  On April 14, 2025, on behalf of a group of civil society organisations and individuals, I wrote the President, who holds the Portfolio for Information, requesting a meeting regarding the Office of the Commissioner of Information’s failures: no mandatory annual reports tabled, unanswered public information requests, and erosion of citizens’ constitutional right to information. A briefing note accompanied the letter.

There was no response to the letter, and therefore no meeting. To deny citizens the courtesy of a response is bad enough. To effectively refuse to discuss an issue of which you hold portfolio responsibility, and which is the oxygen of democracy and the essence of good governance, does a disservice to the Presi-dent’s Office. 

On 23rd April 2025, I sent a pre-action letter to Mr. Charles Ramson Snr., Commissioner of Information and the Minister of Natural Resources, reminding them of long-outstanding requests for information and indicating my intention to approach the Courts if they still refused my request. I received a response from Mr. Ramson that was dismissive, characterising my concerns as “transparently relentless, brazen alignment with the agenda-driven, political media malcontents.” He mocked citizens’ rights as a “self-induced myth of a constitutional right to information” and my concerns as “manicured spasms of delusional concern, opportunistic at best, but deceptively disruptive at worst.”

Rather than address his statutory failures, Ramson threatens that his office “will strenuously defend on its behalf, any mischievously contrived litigation, however authored” – an apparent attempt to intimidate citizens exercising their legal rights.

The irony is stark. This Office was established to facilitate the enjoyment of several constitutional rights, guaranteeing inclusive democracy and the right to information. Instead, it consumes tens of millions in public funds while producing nothing of value. It is highly disappointing that the President condones this flagrant mockery of transparency by his silence.

Having exhausted all reasonable avenues, I will shortly initiate legal proceedings to obtain the information I sought. The rule of law must be upheld, particularly by those sworn to administer it. Our group will soon resume its public campaign to obtain our rights.

I call on my fellow Guyanese to follow the example of a Trinidadian who, a couple of years ago, was confronted with a denial of access to information and who successfully pursued his case all the way to the Privy Council. I wonder whether the Law Lords silently asked themselves: what a backward culture that requires its citizens to resort to such extreme action.  

I am providing copies of all three letters referenced in this correspondence for transparency and public interest. They allow the public to judge the inadequacies of the official attitude and responses.

Sincerely,

Christopher Ram

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Privy Council ruling in Methanex case underlines need for urgent reform of CARICOM Double Taxation Agreement

Dear Editor,

Two weeks ago, the Judicial Committee of the Privy Council (PC), the highest court of Trinidad and Tobago, handed down a ruling that affects the entire Region. The decision in Methanex Corporation v The Board of Inland Revenue of Trinidad and Tobago [2024] UKPC 6, raises difficult but long overdue questions about the weaknesses of CARICOM’s legal architecture, the aging 1994 CARICOM Double Tax-ation Agreement (the Agreement), and the troubling consequences of maintaining a bifurcated system of final appellate courts within the region.

At the heart of the case was a dispute between Trinidad and Tobago’s tax authorities and Methanex, a wholly owned Canadian-controlled enterprise that has routed its Carib-bean operations through a subsidiary incorporated in Barbados. Methanex claimed benefits under the 1994 Agreement, arguing that it was a resident of a CARICOM member state (Barbados) and therefore entitled to relief under the treaty. 

The Privy Council, taking a literal and formalistic reading of the treaty’s text, agreed. It ruled that the absence of a Limitation on Benefits clause, a principal purpose test, or any economic substance requirement meant that Methanex was entitled to treaty benefits. In doing so, it rejected a more modern, progressive purposive interpretation offered by the Trinidadian courts below, which had urged a reading of the Agreement in line with its objective of promoting regional economic integration.

While the ruling is legally defensible under the Agreement’s text, it reveals a deeper failure –  not of the judiciary or the legal profession, but of regional governance. The 1994 Agreement replaced a 1973 agreement that was more narrowly drawn and intended to operate as a closed treaty, available only to those genuinely resident and operating within the region. In contrast, the 1994 Agreement is now shown to function effectively as an open treaty, accessible to any person or entity formally subject to tax in a CARICOM member state, even if that connection is nominal or commercially artificial.

The Agreement has remained untouched for thirty-one years des-pite repeated warnings about its deficiencies. It lacks some of the modern safeguards in international tax treaties. Yet efforts to revise it have been met with institutional lethargy. CARICOM’s leadership has failed to initiate reform, and its economic affairs committees have not acted. Methanex has exposed and exploited the region’s tax base. Suriname is right not to subscribe to the Agree-ment in its present form.

The case is ripe with painful irony. It was brought by Trinidad and Tobago, which continues to reject the appellate jurisdiction of the Caribbean Court of Justice. Methanex, by contrast, is incorporated in Barbados, which has embraced the CCJ. Yet, it is Trinidad’s preferred final court, the Privy Council, whose ruling will most benefit foreign-controlled companies seeking tax advantages at the entire region’s expense – including Trinidad’s. Most directly, the Privy Council overruled Trinidad’s Tax Court and its Court of Appeal. 

This contradiction extends to legal principles and the Privy Council as well. In 1976, in the Jamaican case, popularly referred to as Seramco, the PC embraced substance over form, a philosophy adopted later by the House of Lords in the famous Ramsay case. That is also Guyana’s approach, founded in separate judgments handed down by temporary Justices of Appeal Rafiq Khan and Dr. Arif Bulkan. In fact, substance over form has long been part of Guyana’s Income Tax Act (section 74). A further irony is that the Methanex decision does not bind the UK, where the substance over form principle was formally adopted in a landmark House of Lords case. 

Methanex signals a return to formalism, privileging nominal residence over commercial reality. The spirit of Seramco survives in theory but has been undermined in practice. 

Some may argue that companies like Methanex bring investment and employment to the region, and that legal certainty is essential. That is true. However, the issue is not whether tax treaties should exist or whether international companies are welcome. It is whether a multilateral regional treaty, explicitly intended to foster intra-regional economic integration, trade and investment, should be used to deliver tax advantages to third-country multinationals with no substantial commitment to the region’s development.

Indeed, in jurisdictions like Guyana and Barbados, Canadian investors are already covered by bilateral treaties with Canada. The availability of the CARICOM treaty as an additional option means they can choose whichever arrangement yields the most favourable tax outcome, effectively converting a regional integration instrument into a platform for treaty shopping.

If individual CARICOM states wish to offer tax relief to non-CARICOM jurisdictions, they can do so through bilateral treaties. That is a sovereign prerogative. But it is wholly inappropriate to use a regional framework designed for unity and shared prosperity as a tool of convenience for external actors. In this sense, the Methanex decision is not just about one company’s tax status. It is about the erosion of regionalism itself.

We are often told that treaty reform in CARICOM is difficult because it requires the elusive unanimity. But what we now have is unanimity of exposure. The Agreement makes every CARICOM state vulnerable to treaty shopping, base erosion, and the loss of tax revenues meant to fund public services and development goals.

CARICOM countries must respond to this decision. The 1994 CARICOM Agreement must be revised or supplemented by protocols that insert modern anti-abuse clauses. The CARICOM Secretariat must take the lead, and those states that support the CCJ must continue pressing for judicial coherence. But above all, we must restore the principle that our regional instruments serve regional interests.

We cannot afford two final courts, two tax philosophies, and one treaty that serves neither. The price of disunity is being paid in revenue lost, sovereignty diminished, and a regional project undermined by its own contradictions.

Yours faithfully,

Christopher Ram