CONTROLLER OF SUPPLIES MINISTER OF ECONOMIC DEVELOPMENT, PETROLEUM, INVESTMENT, v GAS TOMZA LTD WESTERN GAS COMPANY LTD SOUTHERN CHOICE BUTANE LTD dba ZETA GAS BE

Summary. The appellants to the appeal and respondents to the cross-appeal are the Controller of Supplies; the Minister of Economic Development, Petroleum Investment, Trade and Commerce; and the Attorney General of Belize (hereinafter collectively referred to as ‘the Government’). The respondents to the appeal and appellants to the cross-appeal are Gas Tomza Ltd; Western Gas Company Ltd; Southern Choice Butane Ltd (dba Zeta Gas); and Belize Western Energy (hereinafter collectively referred to as ‘the Gas Companies’). Liquefied Petroleum Gas (‘LPG’) is widely used for a variety of purposes in Belize. It was sourced from the United States Gulf Coast (‘USGC’) to suppliers across Central America and then imported by land into Belize by each of the Gas Companies for distribution. Together, the Gas Companies controlled the importation of LPG into Belize for over 20 years. The Government embarked on the National Liquefied Petroleum Gas Project (‘NLPG Project’) with the goals of ensuring the stability, quality, and affordability of the LPG supply, the creation of climate resilient infrastructure for LPG, the minimisation of smuggling of LPG, and the protection of the health and safety of the people of Belize. The National Gas Company (‘NGC’) was created to drive the NLPG Project. There was a Definitive Agreement between the Government and NGC which contemplated the importation of LPG wholly by sea and the construction of supporting infrastructure for importation, distribution and supply of LPG throughout Belize. Subsequently, the National Liquefied Petroleum Gas Project Act (‘the Original Act’) was enacted to give effect to the Definitive Agreement. The Original Act introduced a regime whereby LPG would be exclusively imported by NGC into Belize by sea from USGC, undergo quality assurance and other testing and stored at the NGC facility. The Act also exempted NGC from obligations relating to the payment of income and business taxes, sales tax, customs and excise duties, stamp duties, environmental taxes, and others. Following the passage of the legislation, the Gas Companies instituted a claim challenging its constitutionality arguing that the monopoly conferred on the NGC, together with the various tax exemptions, caused them the loss of a substantial proportion of their customer base. They contended that the Original Act violated their rights to the enjoyment of property, to work, to freedom of association, and to protection under the law and equality of treatment guaranteed by the Constitution. At the close of the trial, but before judgment was rendered, the Original Act was amended by the National Liquefied Petroleum Gas Project (Amendment) Act 2021 (‘the Amended Act’) making the importation of LPG by other companies possible. The Amended Act provided that to obtain a licence to import, companies would now be required to receive, store, and subject to testing their imported LPG at the NGC’s terminal or an authorized import landing terminal with a minimum storage capacity of 1.5 million US gallons. The Gas Companies claimed that the Amended Act continued the unconstitutionality of the Original Act but they amended the particulars of their complaint. They alleged that the amendment preserved the NGC’s monopoly due to the unreasonable and/or unattainable requirements for importation and sought compensation for breach of their rights and vindicatory damages. The parties agreed on the issues to be tried by the court. As regards the loss of property, the claim was that through the Amended Act, the Government had compulsorily acquired the goodwill of the Gas Companies without compensation and had imposed onerous and unreasonable conditions to engage in the business of importation of LPG. The trial judge found that the Amended Act compulsorily acquired the Gas Companies’ goodwill without compensation, but the other claims were dismissed. Specifically, it was held that the conditions imposed by the Amended Act were a matter of executive policy and d