The Tribune

* QC: Body has power to halt BPC 'overnight"

* Now it added to legal battle and Act applies

* Judicial Review go-ahead 'gold' for activists

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A prominent QC yesterday urged the Town Planning Committee "to grab oil drilling by the horns" after it became embroiled in the escalating legal battle over exploration in Bahamian waters.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business that Bahamas Petroleum Company (BPC) is "not out of the woods" yet despite Justice Petra Hanna-Adderley yesterday declining to grant a "stay" that would have halted drilling of its first exploratory well in waters 90 miles west of Andros.

While BPC hailed the decision as virtually removing all potential legal obstacles to completion of its Perseverance One well (see other article on Page 1B), Mr Smith argued that judicial intervention was now not necessarily required to halt exploratory drilling that is now into its third week.

He said the Town Planning Committee possesses the power to issue "a stop order" to BPC, on the basis that its well lacks the necessary "site plan approval" under the Planning and Subdivisions Act, after Justice Hanna-Adderley added the regulatory body as a "respondent" to his environmental activist clients' Judicial Review challenge.

She found that Waterkeepers Bahamas and the Coalition to Protect Clifton Bay (Save the Bays) had made an arguable case that the Planning and Subdivisions Act applies to BPC's project, ruling that the Act's section 4.1 definition of land "seems to suggest that the drill site is located within the territorial waters of The Bahamas and would be subject to" this law.

BPC's attorneys had previously argued that the Planning and Subdivisions Act applies only to land-based development activities, not offshore drilling in Bahamian waters, but with Justice Hanna-Adderley determining that it applied, Mr Smith challenged the Town Planning Committee and its chair, Adrian White, to act and use its powers to halt the oil explorer's activities.

While acknowledging his clients' "disappointment" that BPC's drilling is continuing, the outspoken QC argued that the explorer "is not out of the woods" because he had made "an arguable case" that it requires site plan approval under the Planning and Subdivisions Act for its project.

BPC has yet to provide any evidence that it has such an approval, and Mr Smith said: "We were successful in joining the Town Planning Committee, and I urge Adrian White, as chair of the committee, now that they are included, to take independent legal advice and, if advised the Act does apply, to take measures to stop illegal drilling.

"They can issue a 'stop order' tomorrow. They don't have to wait for a judicial 'stay'. I urge Mr White to grad the Planning and Subdivision Act bull by the horns and apply it to BPC. All these statutory Boards really need to consider their responsibilities

"Recognised Boards appointed by Parliament, like the Town Planning Committee, aren't connected by an umbilical cord to the Attorney General's Office. They can take independent advice and govern themselves accordingly. I hope the Town Planning Committee, even though we couldn't get a 'stay', they could drop a 'stop order' on BPC overnight."

Mr White, when contacted by Tribune Business, was unaware the Town Planning Committee had been added as a respondent to the BPC action and gave a non-committal response. "The Town Planning Committee, if they've been joined in the action regarding BPC as the court may have determined, will take the proper and necessary steps to be represented through legal counsel who will render advice.

"And, in accordance with the Planning and Subdivisions Act, we will take the necessary matters into consideration by the committee and formulate actions as and when required."

Justice Hanna-Adderley's much-anticipated ruling enabled both sides to claim victory. BPC got the main thing it wanted, which was rejection of the "stay" application, leaving it free to proceed with drilling an exploratory oil well that should be completed by the time the Supreme Court gets round to hearing the substantive Judicial Review case, which is schedule for mid-February at the earliest.

As for BPC's opponents, they gained the go-ahead to proceed with their Judicial Review challenge to all permitting and approval decisions taken by the Government. Besides the second BPC licence extension, and change in drill ship to the Stena IceMAX, which were approved in August and November respectively, they also obtained leave to challenge the company's Environmental Authorisation (EA) and first licence extension.

These were issued in February and April, respectively, outside the six-month timeframe within which Judicial Review actions must be launched under Supreme Court rules. Sources close to the environmentalists, speaking on condition of anonymity, said they had never expected to get the "stay" nor be able to challenge the EA and first licence extension because they were out of time.

The source suggested the activists thus obtained more than they expected. Mr Smith, meanwhile, hailed the fact that his clients "are going to have their day in court on this very important public issue".

He added that they were "particularly grateful that the court has given permission to test the February and April decisions, as well as the August and November decisions".

"This is really a line the environmental community is drawing in the sand as far as oil exploration is concerned," Mr Smith told Tribune Business. "Unfortunately the drilling is still going on now, but there are four other exploratory licence areas and we don't know if the Government is or isn't negotiating with other persons to expand the carbon-based industries in The Bahamas.

"What the court has done is indicate we have an arguable case. The Government took the position that our case was without merit, and we should be refused leave on all decisions. This ruling puts beyond dispute whether the Planning and Subdivisions Act, Conservation and Protection of the Physical Landscape of The Bahamas Act, Environmental Health Services Act and Merchant Shipping Act apply to oil exploration.

"This is pivotal to the future of the Bahamian environment. Having an opportunity to adjudicate this is gold for us. It really opens the shutters on civil society oversight of overreach by developers and the failure of the executive branch of government, as far as we're concerned, to abide by the laws passed by Parliament," Mr Smith continued.

"While we are disappointed that we did not get a 'stay', we are very excited with the prospect of holding the Government to account on consultation and abiding by the Environmental Planning and Protection Act and Planning and Subdivision Act. This is a moment in environmental history for The Bahamas."

BPC's application to be joined as a party to the Judicial Review will be heard by Justice Hanna-Adderley next Thursday, January 14, which is when she will also issue case management instructions for how future hearings will proceed.

The Government's demand that the activists lodge a $200,000 bond to cover its legal expenses, known as "security for costs", will be heard on January 22. A hearing on the substantive case raised by the Judicial Review will be heard on February 17-18, or mid-March.

Carl Bethel QC, the attorney general, said the Government's lawyers working the BPC case will meet today to make "some decisions.... on the way forward". He added: "I have asked for their advice on the next steps and await the same."