The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists yesterday accused the Government of "jumping the gun" after it filed legal papers opposing their bid to halt oil exploration in Bahamian waters.

Rashema Ingraham, executive director of Waterkeeper Bahamas, told Tribune Business "it goes against normal legal process for Judicial Reviews" for the Attorney General's Office to file a "notice of objection" prior to Justice Hanna-Weekes determining whether the activists' case should proceed.

The Supreme Court is due to make that decision at 11am today, but in its December 22, 2020, "notice", the Attorney General's Office revealed its intention to seek judicial permission to oppose the Judicial Review challenge on three counts.

It cited these as the "delay" in bringing proceedings, a likely reference to the argument that Waterkeepers Bahamas and the Coalition to Protect Clifton Bay (Save the Bays) are out of time as they did not file the Judicial Review within six months of Bahamas Petroleum Company (BPC) obtaining its Environmental Authorisation (EA) in late February 2020.

It is also arguing that the case is "devoid of substantive merit", and urged the Supreme Court not to grant a "stay" that would halt BPC's Perseverance One well in mid-drilling in waters some 90 miles west of Andros.

Thus the Government is now, in effect, backing oil exploration in Bahamian waters even though the Prime Minister and several of his Cabinet ministers have said publicly that they are personally opposed to such activities.

This was not lost on oil exploration opponents. Sam Duncombe, reEarth's president, said in a statement: "Sadly we have a government that is all too happy to roll over and play dead in the face of such shameful tactics [by BPC].

"They are now opposing our Judicial Review application, even though the Prime Minister and several of his ministers have all come out against oil drilling.... It's just bizarre to me. I think they need to get together and talk with one voice. We're very happy to hear ministers open their mouths now, way too late.

"You have to wonder what they are thinking about when they're putting the country at risk, and there's so much confusion in government. It doesn't leave me with the feeling they have a clue what they're doing. Everything is suspect now. One minute it's something, the next minute it's the opposite. Unbelievable. It's truly bizarre."

The so-called "shameful tactics" were BPC's alleged rush to bring the Stena IceMAX drill ship across the Atlantic to The Bahamas and begin drilling even though it knew of the legal threat to its activities, only to now say it is "too late to stop" because of the health, safety and environmental risks.

Mrs Duncombe also argued that the Government and BPC were "jumping the gun" by filing submissions, affidavits and multiple other legal papers with the Supreme Court when the judge had yet to give permission for the Judicial Review to proceed.

BPC, in particular, was not named as a party to the proceedings and will have to apply to get court permission to join the action, as Mrs Duncombe was backed by Ms Ingraham. She added: "The Judicial Review process has not actually begun. For BPC and the Government to be filing affidavits and submissions, it goes against normal legal process for Judicial Reviews."

Meanwhile, BPC's attorneys, UK-based Clare Montgomery QC, and Graham, Thompson & Company's Leif Farquharson and Adrian Hunt, argued in their "skeleton" submissions that Bahamian environmental legislation would be rendered "unworkable" if the oil explorer was required to seek new Environmental Authorisation (EA) every time the drill ship merely changed.

The environmental activists are arguing that the switch to the Stena IceMAX should have required a new EA, and fresh round of public consultation under the new Environmental Planning and Protection Act, but BPC's attorneys are arguing this is unnecessary because it "makes no difference to the environmental impact of the operation".

Pointing out that neither the Petroleum Act 2016 nor the accompanying regulations required a fresh application for approval if the drilling vessel's identity changed, they argued: "The legislation would be unworkable if changes to the identity of personnel, plant and equipment that could make no difference to the environmental impact of the operation required separate consideration and approval by the minister."

BPC's attorneys also sought to refute the activists' assertions that their client required approvals under the Planning and Subdivision Act and Conservation and Protection of the Physical Landscape of The Bahamas Act before starting drilling.

They argued that both Acts referred to activities that took place on land or in the ground, rather than the seabed, which meant that neither a site plan approval nor excavation permit was required by BPC.

The oil explorer also promised that if the Judicial Review is given the go-ahead by the Supreme Court it will demand that the activists pay $100,000 as "security for costs" - a sum it said would cover less than one-third of its estimated $350,000 legal fees.