The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

A SUPREME Court judge yesterday granted environmentalists leave to begin judicial review proceedings over Bahamas Petroleum Company’s exploratory oil drilling.

However, the judge refused their application for a halt to drilling pending completion of the review, thus allowing BPC’s drilling to continue as the review takes place.

Finding the applicants met the threshold required for judicial review proceedings, Justice Petra Hanna-Weekes also granted their request to add the Town Planning Committee as a party to the matter.

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

The applicants want to quash the approvals the government gave the company last year.

Justice Hanna-Weekes said that to grant leave for judicial review she was required to ensure the applicants had sufficient interest in the matter, that they acted promptly enough and that they have an arguable case.

A key question hovering over the proceedings was whether the judge would grant the applicants permission to review decisions of the government in February and April 2020, which authorised the drilling even though the applicants failed to file their application within the required six months period.

Last week the government’s lead lawyer, Aiden Casey, QC, argued that if the judge rejected the applicants’ ability to challenge the February decision, there would be little left to their action even if they are allowed to review subsequent decisions.

Justice Hanna-Weekes herself indicated last month that she was inclined to refuse the applicants leave to review the February and April decisions, but yesterday she ruled the applicants had good reason for filing their applications out of time.

“Like BPC, the applicants were impacted by COVID-19,” she said. “I accept, as stated by Mr (Joseph) Darville, that (applicants) made several non-mitigation efforts to sway the respondent as late as July 2020 to stop the project when they wrote to the Prime Minister of The Bahamas and in November 2020 with the initiation of letters before action. Therefore, I find that the applicants wait-and-see strategy was a grave miscalculation. However, I accept that the reasons given, when taken together, are sufficiently good reasons for the court to consider an extension of time.”

Regarding the application for a stay, Justice Hanna-Weekes said granting this was tantamount to granting an application for an injunction.

“It is important to make a distinction because while the court does have the jurisdiction (to grant a stay), such an order is only to stay the decision-making process…the decision-making process has been completed, the decision has been implemented and subsequently the drilling exercise to which those decisions were made has commenced. Therefore, in my mind, there is no decision-making process to be stayed. I therefore accept the submissions of Mr Casey, QC, in this regard.”

She rejected the applicants’ submission that the respondents would suffer no prejudice if their stay application is granted.

As for the application to add the Town Planning Committee as a party to the proceedings, Justice Hanna-Weekes said the definition of land in Section 4.1 of the Planning and Subdivision Act “seems to suggest that the drill site is located within the territorial waters of The Bahamas and would be subject to the PSA.”

Noting that in his affidavit, environmentalist Joseph Darville said there has been no publication of a site plan approval in accordance with the Planning and Subdivision Act, she granted permission to add the Town Planning Committee as a party.