Not surprising, last weekend’s STAR report that Martinus Francois is of a mind to initiate a judicial review of the arrangements between the government of Saint Lucia and Jack Grynberg’s company RSM Corporation generated a deluge of reader reaction.
Hardly unexpected were the several comments from Johnny Cochran wannabes, home-based and abroad, a number of which centered on Section 42 of Saint Lucia’s Interpretation Act, in particular this: “Where the function of the governor general under any enactment is to be exercised in accordance with the advice of a minister acting under the general authority of the cabinet, any instrument required to be issued in the exercise of that function under the Public Seal may be signified under the hand of the minister acting under the general authority of the cabinet, and such signification is sufficient for all purposes.”
One particular reader’s take on the above: “Check this,” he writes, and proceeds to restate the following: “‘Where a function of the GG under enactment is to be exercised in accordance with the advice of any minister acting under the general authority of the cabinet . . .’ That’s it. In accordance with the advice of a minister. The word ‘advice’ is the key. The GG had to be advised by the minister, whether she eventually signed or not. If she did not receive such ‘advice,’ then the signature on the agreement is unlawful. The point is that the governor general has the authority of Her Majesty the Queen, to be advised on all new laws to be enacted in Saint Lucia. Anything contrary is
unlawful, therefore null and void. Martinus will be victorious!”
An interesting take, but to my layman’s mind not quite on target. But first a question: What was the new law that the prime minister neglected to advise the governor general on? It seems to me, based on official documents I’ve carefully perused, that what the prime minister may have done was rewrite Article 3 of Grynberg’s draft agreement, which states as follows:
“As soon as possible,
but in no event later
than 90 days after the effective date, the company shall apply for, and the minister, under and in accordance with the Act, will grant to the company an exploration licence over the area described in Annex A and shown on the map in Annex B. This licence shall be substantially in the form of a draft licence set forth in Annex C.
“The exploration licence granted pursuant to Article 3 hereof shall be for an initial period of four years, commencing from the date of the grant of the licence and shall, subject to the Act, on application duly made by the company, be renewed for two further periods of two years each in accordance with the Act.”
The preceding coincides with the contractual arrangements between Grynberg and Grenada and between Grynberg and St Vincent and the Grenadines. Somehow, the final draft signed by Kenny Anthony, on behalf of the government of Saint Lucia, and by Grynberg on behalf of RSM Corporation, contains an Article 3 quite different from Grynberg’s original draft.
The retooled version says: “The government hereby grants the company an exploration licence
covering its interest in the agreement area for an initial term of four years from the effective date, subject, however, to the force majeure provisions of Article 24. Upon application duly made by the company, the exploration licence shall be renewed for two further periods of two years each.”
In the Saint Lucia contract, unlike in the contracts with Grenada and St Vincent, Article 3 makes no reference whatsoever to a licensing authority (according to Saint Lucia’s Minerals (Vesting) Act, the governor general). Neither does it speak of a 90-day period when the applicant must apply for an exploration licence.
It is instructive to note that in the Saint Lucia version of Article 3, the exploration licence covers the government’s interest in the agreement for “an initial term of four years, subject to the force majeure provisions of Article 24.” This does
not form part of the agreements with the named two other islands. Neither is it a part of the original draft agreement sent to Petrus Compton, for the AG’s perusal.
No matter, this is what he wrote to the prime minister on 1 February 2000, in connection with a “revised” version received on 28 January 2000. He had “reviewed the same with reference to the government of Grenada/RSM agreement and the original draft prepared for Saint Lucia. I am of the view that, having regard to the subject matter of this agreement, Saint Lucia would be better served by having a specialist petroleum lawyer review the same and advise. There are matters contained in the agreement which can only be properly appreciated by one familiar with the industry, its standards and practices. Notwithstanding this obvious deficiency within Chambers, I have made recommendations for change in the interest of Saint Lucia.”
So, did the attorney general recommend the changes to Article 3 of the Grynberg agreement?
Also interesting to note: barely six months after signing on, Grynberg took refuge behind the agreement’s force
majeure clause and suspended all operations until such time as alleged boundary disputes were satisfactorily settled. In the case of Grenada, he had invoked force majeure just two weeks after signing.
What then, are Martinus Francois’ chances for a satisfactory outcome of a judicial review? I hesitate to conjecture. After all, there is the fact that the Grynberg agreement was inked over a decade ago, in 2000. It remained a calculated secret until brought up by MP Richard Frederick during his 2009 Budget presentation, in the presence of the then opposition leader
Kenny Anthony, who
chose not to comment.
So, is there a statute of limitations related to
judicial reviews? If yes, what is it? Would it apply to when the agreement was first signed or when it was discovered?
Will it matter that until 2009 only three individuals knew of the agreement’s existence? Should it turn out that the prime minister crossed the line when he issued a licence that only the governor general is authorized to issue, what might the sanctions be? Can the judicial review, having found fault, declare the licence null and void? If yes, then bearing in mind Grynberg’s insistence that the agreement itself, based on its force majeure conditions, remains intact, will the famous Denver oilman
still be guaranteed on application a properly issued new licence?
By the way: A cabinet authorized minister may properly sign in lieu of the governor general, if such signing is related to an
action on the part of the governor general that
can be properly carried
out only “on the advice
of the prime minister.”
The authority given the
GG by the Minerals Act does not rely on the advice of the prime minister!
Finally: Will international adjudicators agree,
should a judicial review declare Grynberg’s
licence invalid? Would that get Saint Lucia off the hook? We will visit these possibilities next time!
