Senior Reporter
Former government minister and political activist Devant Maharaj has lost his final appeal against the National Gas Company (NGC) over its refusal to disclose details of this country’s controversial Dragon Field gas deal with Venezuela.
Five Law Lords of the Privy Council yesterday rejected Maharaj’s appeal challenging consecutive decisions by the local courts to dismiss his case over the NGC’s handling of his disclosure request under the Freedom of Information Act (FOIA).
The country’s highest appellate court agreed with the local courts that NGC’s decision could not be faulted.
Lord Philip Sales, who wrote the board’s judgment, said: “The Board agrees with the majority in the Court of Appeal that it cannot be said that in the circumstances of this case the decision arrived at by NGC after taking all the relevant factors into account was irrational or unlawful in any way.”
However, Lord Sales and his colleagues provided guidance on how lawsuits over FOIA requests should be considered and determined by judges.
The case related to a request made by Maharaj in December 2018.
Maharaj sought copies of the agreement between T&T, the NGC, Venezuela and its State-owned gas company Petroleos de Venezuela SA (PDVSA); details over the procedure used to negotiate and finalise the deal; and the cost per unit T&T is required to pay for the Venezuelan gas, once the billion-dollar gas pipeline between the neighbouring countries is completed.
In its response, the company claimed that some of the information and documents did not exist and the disclosure of the rest could prejudice the deal.
In August 2020, Maharaj’s claim was dismissed by High Court Judge Avason Quinlan-Williams.
Justice Quinlan-Williams ruled that the company properly considered public interest factors related to exempted documents, under Section 35 of the FOIA, although it failed to identify any factors which favoured disclosure.
The legislation requires public authorities to consider whether exempted documents could be disclosed in circumstances where public interest concerns favouring disclosure outweigh those against it.
In May 2024, the Court of Appeal delivered a majority decision in which they found that the previous judgment was correct even with minor errors being made by the judge.
While two appellate judges agreed with NGC’s decision, current Chief Justice Ronnie Boodoosingh disagreed.
He also disagreed with the majority over the ability of a court to decide whether public interest favoured disclosure in circumstances where a public authority is found to have made errors when conducting the balancing exercise.
He agreed with Justice Quinlan-Williams who suggested that in such circumstances the decision should be remitted for reconsideration instead of judges substituting their own decision.
Lord Sales found Justices Boodoosingh and Quinlan-Williams were correct to find that judges could only review a public authority’s decision and not undertake an objective assessment over disclosure and render a final decision.
“Since Parliament has designated the public authority as the primary decision-maker, it is natural to expect that the proper approach for a court in legal proceedings to challenge its decision should be one of review rather than one which involves it in substituting its own judgment,” Lord Sales said.
He stated that the public authority would be better placed to conduct the assessment if its decision is remitted by a judge with guidance.
Maharaj was represented by Anand Ramlogan, Jodie Blackstock, Mohammud Hafeez-Baig and Ganesh Saroop.
NGC was represented by Sir James Eadie, KC, and George Molyneaux.
About the Dragon Gas deal
The deal was signed between former prime minister Dr Keith Rowley and former Venezuelan President Nicholas Maduro in August 2018.
The agreement relates to the construction of a 14-kilometre pipeline between Venezuela’s Dragon Gas Field and the Hibiscus platform, located off Trinidad’s north-west coast.
The platform is jointly owned by the NGC and Shell, who will also share the cost of the pipeline.
Once operational, the pipeline is expected to deliver 150 million cubic feet of natural gas per day, with the figure expected to double within some years.
At the time when the deal was struck, Finance Minister Colm Imbert estimated the cost at approximately US$1 billion.
Rowley refused to divulge details of the “confidential” deal, including the agreed-upon rate for the gas, which he merely described as “competitive”.
The deal is expected to boost the gas supply to the local Liquified Natural Gas (LNG) and petrochemical sectors, once the pipeline is completed.
The fate of the deal was affected by former United States (US) sanctions on Venezuela and a US Office of Foreign Assets Control (OFAC) licence, which was revoked last year.
Last week, Prime Minister Kamla Persad-Bissessar, who repeatedly criticised the deal while serving as Opposition Leader, revealed plans to soon hold talks with the Venezuelan Government led by interim president Delcy Rodriguez.
Last October, Venezuela’s National Assembly declared Persad-Bissessar persona non grata, barring her from entering the country.
The move came amid escalating diplomatic tension linked to her government’s support for US military action in the Caribbean, which culminated in the arrest of Maduro by the US military in early January.
