The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

LAWYERS representing environmental activists, the government and Bahamas Petroleum Company tussled over applications seeking judicial review of BPC’s exploratory oil drilling during a Supreme Court hearing yesterday.

Justice Petra Hanna-Weekes said she will consider their submissions today and return a judgment as soon as possible.

BPC’s drilling of Perseverance #1 began on Sunday, December 20, about 90 miles west of Andros and is expected to be completed within 45 to 60 days.

Yesterday’s hearing considered environmentalists’ application for leave for judicial review, their motion seeking to amend that application to add the Town Planning Committee as a party to the proceedings and their application seeking a stay of drilling activities pending the judicial review.

Attorney Fred Smith, QC, represents Waterkeepers Bahamas in the case. He insisted that to be granted leave for judicial review proceedings, the bar he must meet is low.

The court, he said, must simply be convinced that his application “is not frivolous (and) not vexatious” and that the applicants “simply have an arguable case and that Waterkeepers are not busybodies who shouldn’t be before the court.”

Reflecting on the “mountain” of documents filed in the case, Mr Smith said this helped show how important the matter is.

“The court is not immune from also seeing a lot of the media attention that has been focused on this and obviously it is a matter of great public importance,” he said.

“The court is not today here to mine this mountain of legal papers. We are not here to have a trial. Waterkeepers have a very, very low threshold to meet (to secure leave for judicial review).”

The crux of Mr Smith’s argument was that although BPC was given a license by the executive branch of government to explore for oil, that license does not allow the company to ignore various statutory requirements for such projects.

He said: “The applicants are simply asking the court to have regard to the laws passed by Parliament in the Planning and Subdivision Act, in the Environmental Health Services Act, in the Archipelagic Waters (and Maritime Jurisdiction Act), the MARPOL convention which the government has signed on to, under the relevant Merchant Shipping Prevention of Oil Pollution Act, etc, the Conservation and Protection of the Physical Landscape Act…all of these pieces of legislation are required by parliament to be complied with by the government and by BPC before they actually poke a hole into mother nature as they are doing now…The court will decide whether the legislation does apply or not. If the court finds that those pieces of legislation do apply, then the next very simple question is, does BPC have those licenses?”

Last week, Justice Hanna-Weekes said that because the applicants’ application was brought out of time, she was minded to refuse one part of their application which relates to the decisions the government made in February and April authorising the drilling.

The government’s lead lawyer, Aiden Casey, QC, argued in support of refusing this part of the environmentalists’ application, citing a recent Privy Council ruling denying leave for judicial review when applicants failed to act promptly in a matter of public interest.

He added that without permission to review the February and April decisions, there is little left to the applicants’ action.

“It leaves very little in the application and leaves nothing of any substance,” he said. “Shorn of the attack of that central decision, what is left we submit is a case which becomes devoid of merit largely for that reason.”

Mr Smith invited the judge to view the government’s decisions in February, April, August and November as part of a process leading to BPC’s drilling activity.

“They are a continuum and should be seen in that light,” he said.

Mr Casey said: “We would agree with Mr Smith that the applicants’ applications do indeed all relate back to February 2020 and that’s an appropriate way of characterising it. We say that militates against the applicants in terms of delay. February 2020 is the gravamen of this case and this application, not events in November 2020 for example in which it is said that well, items of details needed to be changed, such as the identity of certain pieces of the equipment…If you look at those in isolation, there’s no real meaning to the case, there’s no reviewable decision. The reviewable decision was, potentially, the grant of the environmental authorisation back in 2020.”

Mr Casey argued that the environmentalists did not have a strong reason for delaying their application but made a tactical decision not to bring an earlier challenge because they believed BPC would not raise enough money to begin exploratory drilling.

On the application to stay drilling, Mr Casey said that too is “fatally undermined” by the applicants’ delay in the case.

“This brings in with full force the observations of the Privy Council in the Fishermen and Friends of the Sea case,” he said. “Even if my lady was minded to grant leave, it is quite clear that a grant of a stay would produce delay to this project of public importance, unnecessary delay we say because it could’ve been avoided by the applicants acting properly and that alone is a matter injurious to the public’s interest.”

Mr Casey said the applicants are wrong to frame the case as though it is about drilling for oil, extracting oil and the environmental considerations arising from this.

“It isn’t,” he said. “The license granted to BPC is an exploratory license and the environmental authorisation…is actually very narrow in its permission to drill one exploratory well which…once it’s been drilled…will be capped and abandoned. This well will never serve for the extraction of oil. We submit that it is a matter of public importance for the government and the people of the Bahamas to know whether there are here possible oil reserves and the purpose of an exploratory exercise of this nature is to then allow an informed decision to be taken as to whether the reserves should be exploited and it doesn’t follow from the fact that exploration is permitted that drilling for oil will ever be permitted.”

Mr Casey also argued that if the court granted a stay of drilling, there is risk that BPC will choose not to be involved in exploring oil and that other commercial entities will adopt the same view.

“That really is illustrative of the extremity of the delay in this case,” he said. “For the applicants to sit back and let BPC progress as far as it has done and then ask the court for a stay, creates a situation where the grant of the order carries a real risk that in the future operators might be very weary of getting involved in oil exploration offshore in the Bahamas.”