The Tribune

* Allege Ferreira said 'never' to permits

* Blame this for delayed legal challenge

* BPC attorneys: 'You'll fail at first hurdle'

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists yesterday alleged the delayed legal challenge to oil exploration in Bahamian waters resulted after they were lulled into a false sense of security by a Cabinet minister.

Waterkeepers Bahamas and the Coalition to Protect Clifton Bay, in their bid for Supreme Court permission to launch Judicial Review proceedings that seek to overturn the permits granted to the Bahamas Petroleum Company (BPC), claimed they and others were "misled" by Romauld Ferreira, minister of the environment and housing, at a May 2018 meeting.

Recalling the meeting, which was attended by the likes of the Bahamas National Trust (BNT) and companies such as Dolphin Encounters, the two groups asserted that Mr Ferreira "gave a commitment to all present that there 'never' would be permission given for offshore drilling for oil in The Bahamas".

However, Waterkeepers Bahamas and the Coalition to Protect Clifton Bay (Save the Bays) alleged that unknown to all present, BPC had submitted its application for Environmental Authorisation (EA) for its first exploratory well - and the associated Environmental Impact Assessment (EIA) and Environmental Management Plan (EMP) to the ministry some three weeks before that meeting.

The activists, in legal papers filed yesterday, were forced to explain the lengthy delay in filing their Judicial Review challenge given that BPC's receipt of EA approvals was made public in late February 2020.

The Supreme Court's rules require that Judicial Review applications be filed within six months of when grounds for such an action arise, but the Waterkeepers Bahamas and Coalition to Protect Clifton Bay move is taking place more than nine months after the EA announcement - a point made by BPC's attorneys, Graham, Thompson & Company.

To address arguments that they are non-compliant with this rule, and thus "out of time", the activists blamed the disruption caused by the subsequent COVID-19 lockdowns and curfews as well as BPC's decision to suspend drilling plans originally scheduled for April.

Arguing that they "maintained the hope that the minister's May 2018 assurance would be honoured" after BPC's self-enforced halt, the Judicial Review filings alleged: "The applicants were misled by the minister in May 2018 into thinking the project would not go ahead, and so were unprepared when the February decisions were announced."

Recalling events at that time, the activists claimed: "Three weeks after the BPC EA application, and the BPC EIA and EMP were submitted, which was not known to them at the time, Joseph Darville, in his capacity as executive chairman of Save the Bays, and a large number of other environmental NGOs were invited to a meeting with the minister on Thursday, May 17, 2018, at 2pm at his offices.

Those present were said to include members of multiple fisheries associations; Kelly Meister of Dolphin Encounters; Michelle at Stuart Cove's Diving; reEarth's Sam Duncombe; Casuarina McKinney from Bahamas Reef Environmental Education Foundation (BREEF); and Shenique Albury of The Nature Conservancy.

"Notification of the meeting was by e-mail and there was no advance notice of the purpose of the meeting and no documents or information were distributed at the meeting, and there was no follow up," Waterkeepers Bahamas and the Coalition alleged.

"The meeting transpired to be for the purpose of gathering the organisations to discuss in a closed setting the Government’s position on future oil drilling in The Bahamas. At the meeting the minister questioned each attendee and organisation about their views with respect to oil drilling in The Bahamas. All objected to it and said it was something that should never be done in Bahamian waters.

"The minister then gave a commitment to all present that there would 'never' be a permission given for offshore drilling for oil in The Bahamas. At this, there erupted a big explosion of applause and congratulations, and all activists present went on their way 'comfortable and joyful' in Mr Darville’s words," they continued.

"There was no communication from the minister at that meeting that they were on track to approve oil drilling, that there was an EA application under consideration by the Government, or that there was any reason to be concerned.

"The clear assurance given at this meeting - that there was no longer a threat of oil drilling in Bahamian waters,. and at least not during the FNM Minnis administration - was relied upon by Save the Bays. Notwithstanding these assurances, and ten months after the drilling deadline under the licenses had passed, BPC's licences were apparently once again extended until the end of 2020.

"On February 28, 2020, to the surprise of those organisations represented at the May 2018 meeting, BPC announced it had been granted Environmental Authorisation from the minister, which it said it received on February 27, 2020."

The delay in filing Judicial Review proceedings is likely to be among the first lines of attack deployed by the Government and BPC to knock out the activists' legal challenge, which is why so much effort has been devoted to explaining the timing of filings that come just 11 days before the company is due to begin exploratory drilling in Bahamian waters.

Simon Potter, BPC's chief executive, could not be contacted for comment yesterday despite messages being sent to both himself and the company's public relations consultants. He is thought to have been travelling back to The Bahamas.

Leif Farquharson, attorney and partner at Graham, Thompson & Company, which acts for BPC, in a November 30, 2020, letter to Fred Smith QC, the activists' attorney, argued that the Judicial Review application would "fail at the first hurdle because your clients do not have any arguable case, still less a strongly arguable case".

He added: "Even if there were merit in the proposed grounds for Judicial Review, the claim is long out of time and there is no good reason for an extension..... The grounds for your threatened application first arose on February 25, 2020, when the minister made his decision. The decision was publicised at the time.

"BPC relied on the decision. Since February 25, 2020, BPC has entered into dozens of contracts with a variety of well service companies and consultants. A total of $9.1m has been incurred or contracted by BPC following receipt of the EA on February 27, 2020. In addition, its bankers, shareholders and others have relied upon the unchallenged grant of the EA in making economic decisions."

Arguing that the activists have "plainly no good reason" for the delay in launching Judicial Review proceedings, Mr Farquharson added: "In those circumstances, BPC is entitled to rely on the EA and the proposed claim is doomed to fail."

The Minnis administration's position on oil exploration in Bahamian waters has never been clear, as it has always hidden behind the argument that its hands have been bound legally by the agreements entered into by its predecessors.

The opposition Progressive Liberal Party (PLP), some of whose leading members have connections to BPC, when last in office took the stance that once exploratory drilling confirmed the presence of commercial quantities of oil the matter would be turned over to the Bahamian people for a referendum on whether the country should permit production

Former prime minister, Perry Christie, for a time served as a consultant to BPC when in opposition. And Davis & Co, the law firm of current PLP leader, Philip Davis, acted as BPC's attorneys when it first came to The Bahamas although it no longer serves in this capacity. Mr Davis has recently indicated his backing for exploratory drilling.

Senator Jobeth Coleby-Davis, who is seeking the party's nomination for the Elizabeth constituency for the upcoming election, is also BPC's in-house attorney.