Ruling on oil drilling expected ‘ASAP’

After hearing both sides on the matter involving whether Bahamas Petroleum Company (BPC) should be allowed to proceed with its exploratory oil drilling yesterday, a Supreme Court justice is set to deliver a ruling “as soon as possible.”

Justice Petra Hanna-Adderley heard from the lead attorneys representing Waterkeeper Bahamas Ltd and Coalition to Save Clifton Bay, the government as well as BPC yesterday and adjourned the matter until 5 p.m. today.

Fred Smith, QC, who represents the environmental groups, in his argument contended that the issue at hand is whether the exploratory oil drilling exercise now underway by BPC was lawful and whether the process of licenses being granted by government included all of the steps required by law, including the issuance of permits as well as proper consultation.

“The applicants are simply asking the court to have regard for the laws passed by Parliament in the Planning and Subdivision Act, in the Environmental Health Services Act, in the Archipelagic Waters Act, the MARPOL Convention which the government has signed on to in the relevant [Merchant Shipping (Oil Pollution) Act] etc., Conservation and Protection of the Physical Landscape Act, all of these pieces of legislation are required by Parliament to be complied with by government and by BPC before they actually poke a hole in the belly of mother nature as they are doing now,” Smith said.

Smith argued that BPC was well aware of the application for judicial review prior to drilling and proceeded.

Disregarding BPC’s claim that it would be impossible to halt the drilling abruptly, Smith said, “Surely, if a ministry or a government agency orders a stop order, they have to stop. Or if the court makes an order, they have to stop. They are not above the law simply because they have a license from the executive branch of government.”

In explaining his reasoning for a motion to add the Town Planning Committee as a party, Smith said it is because the body has a statutory obligation, mandated by Parliament, to stop what he called an illegal process.

He also pointed to the fact that Prime Minister Dr. Hubert Minnis has already come out and said that he’s totally against drilling for oil in Bahamian waters, but the agreement was one his government met in place and could not get out of.

Smith said the argument in this matter is not whether government could have gotten out of the agreement, but the process that was followed.

“A responsible, a sensible, a rational government would not be jumping to the defense of BPC at this stage,” said Smith, pointing to the government’s response in the matter.

However, government’s lead attorney, Aidan Casey, QC, out of the United Kingdom, said Smith’s argument in his effort to add the Town Planning Committee as a party lacks substance.

Casey said it is in the interest of the government and the people of The Bahamas to know if there is an oil reserve.

He contended that the applicants waited from February to December to make their filings because they wished to see if BPC could secure funding for the drilling.

“For the applicants to sit back and let BPC progress as far as it has done, and then ask the courts for stay, creates a situation where a grant of the order carries a real risk; that in the future operators might be very weary in getting involved in offshore exploration offshore of The Bahamas,” Casey said.

He added that the purpose of the drilling was simply to determine if there is oil, not to permit further oil drilling.

Casey pointed to a third affidavit filed by BPC CEO Simon Potter, which said that if a stay is granted, “BPC would essentially lose its window for its vessel and teams of specialists and so on. You can well see that BPC might choose to have no further involvement with this exploration and that any further commercial operator, looking at what happened to BPC, might say well we’re not going to get involved either.”

Although not a party in the matter, BPC’s lead attorney Clare Montgomery was heard on the stay application.

She said the granting of a stay would come as a major expense to BPC, costing the company between $350,000 to $400,000 per day if there is a delay.

“This is an immense logistical operation. It involves the use of men, material and ships which are not going to be available long-term. The rig is due to go to Mexico and the crew is likely to be dispersed,” she said.

Waterkeeper Bahamas Ltd. and Coalition to Protect Clifton Bay seek to challenge several decisions in relation to this matter, among them the environment minister’s decision in February 2020 to grant BPC environmental authorization; the decision in November 2020 to approve changes to the project and a decision in November 2020 to issue a new environmental authorization.

The applicants also seek to challenge the director’s decision in February 2020 to approve BPC’s environmental impact assessment (EIA) and environmental management plan (EMP); the director’s November 2020 decision to approve the amended resubmitted EIA and/or the decision in November 2020 to approve the changes to the project without an amended EIA and EMP.

In addition, the applicants seek to challenge the decisions by the governor general in April 2020 to renew or extend the validity of the licenses of BPC/BOP (Bahamas Offshore Petroleum Limited) to December 2020; the decision in August 2020 to renew or extend the validity of the licenses to April 2021 and the November 2020 decision to renew or re-extend the validity of BPC’s licenses to June 2021.

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