Smith: Bethel wrong on illegal Oban deal

As of Wednesday, May 16, 2018

Attorney Fred Smith QC

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

THE Oban Energies Heads of Agreement is “illegal,” attorney Fred Smith said yesterday.

His comment followed Education Minister Jeffrey Lloyd’s admission that the Minnis administration did not follow the law with the HOA was contradicted by Attorney General Carl Bethel.

Mr Bethel said because Oban Energies made no application for land use to the Department of Physical Planning, the question of whether the law and its requirement for an environmental impact statement has not emerged. Mr Bethel said the HOA is a “framework, not a blueprint which is unchangeable.”

Mr Smith, long a critic of such agreements, disagreed.

“I don’t wish to comment on the disagreement between the two ministers but in my professional view the Oban Heads of Agreement is most illegal in that it purports to be a binding agreement between Oban and the government,” he said.

“It does not appear to be simply an approval in principle. To my mind it goes much further. It’s entire approach is putting the cart before the horse. It fritters and controls the discretion which is vested under the Director of Physical Planning or the relevant minister under the Conservation and Protection of the Physical Landscape Act. It deprives the relevant minister under the Coastal Protection Act. It was entered into without prior consultation with those affected particularly the East Grand Bahama local government district council. And to my mind it is not simply an indication of ‘approval in principle.’ This appears to be a definitive agreement upon which Oban can sue the government. In fact, I believe there is a provision in this document in which the Bahamas government waivers sovereign immunity protection. That’s an amazing provision to put in what is not supposed to be a binding document.”

Mr Lloyd yesterday declined to address Mr Bethel’s comments. Mr Lloyd is a member of the cabinet subcommittee examining the Oban matter. Labour Minister Dion Foulkes heads that committee.

Mr Lloyd, on a recent television show, said the government did not follow the Planning and Subdivision Act which mandates that an environmental impact statement be submitted to the Department of Physical Planning for developments expected to have a significant impact on the environment.

In a statement yesterday, Progressive Liberal Party (PLP) Chairman Fred Mitchell said in light of the statements from Mr Lloyd and Mr Bethel, “the prime minister has to send at least one of his ministers packing. The Oban deal smells of corruption and malfeasance. This is well known and widely acknowledged.”

Mr Smith said: “I urge them to stop putting the cart before the horse and that is why I always criticise these Heads of Agreement entered into in secret without consultation for these anchor projects which are then put on the public who have to swallow a bitter pill.”

sucteeth 6 years, 6 months ago

Couldn't we have chosen someone with a little more law experience than Bethel ? Some of the stuff that comes out of his mouth is amazing..

Voltaire 6 years, 6 months ago

Of course Bethel is wrong on the Oban deal. The whole deal is ill-conceived and stupid. Not in the best interests of the Bahamas at all. You can't sign a deal that includes very specific stipulations - including an agreement on the part of our government not to interfere with the project EVEN if it is shown to be environmentally disastrous - and then say you haven't done anything. Our prime minister signed a terrible deal with a very shady fella. That is doing something; a very big thing in fact. A thing that made the international news. There is really nothing else to say.

licks2 6 years, 6 months ago

Mr. Smith. . .if he is right. . .in principle. . .THEN TAKE IT TO COURT FOR A JUDICIAL REVIEW. . .he will not. . .his rant here is nonsense. . .circular reasoning at best. . .all he gave is his personal opinion. . .which is not in question here. . .IT IS THE LAW IN QUESTION HERE!!!

people. . .PLEASE READ CAREFULLY WHAT PEOPLE ARE SAYING BEFORE YOU COMMENT. . . HOAs are not the final document of approval or final agreements. . .they are what the parties involved will expect from each other before they mutually proceed with final agreement. . .precursors to final approval if you please!! That article about RISK MANAGEMENT will not lock the government into any "final" action no matter what the EIA says. . .such clauses are common place in Project Plans. . .the final plans will proceed from the deliverable out of the Project Charter which will be input for the final agreement and further on to the Project Planning Process. Oban knows that if the EIA finds any risk(s) that cannot be averted or managed, the government is likely to "run away" from the deal. . .so they asked for the "allowances" to manage the risk first. . .then if they cannot avert that risk. . .THERE WILL BE NO FINAL AGREEMENT. . .they "locked" the government into "giving" them a chance to try to avert the risk. . .IF IT CAN BE AVERTED!! This is typical project planning negotiations. . .

Porcupine 6 years, 6 months ago

It has been established that the continued use of fossil fuels is highly irresponsible, likely leading to out of control climate change and probable horrors, the likes of which we haven't seen before. Now, what were we talking about?