The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court refused to "stay" Bahamas Petroleum Company's (BPC) exploratory oil drilling because its opponents failed to give "a cross-undertaking" to cover potential losses from such delay.

Justice Petra Hanna-Adderley, noting BPC's assertion that it could incur at least $25m in extra costs "and possibly much more" if she suspended its activities in mid-drilling, declined to issue the halt sought by Waterkeepers Bahamas and Save the Bays because they did not promise to compensate the explorer for any damages suffered.

She also accepted arguments by the Government's attorney, Aiden Casey QC, that there was no decision-making process to halt because the Government had already issued BPC with the necessary Environmental Authorisation (EA) and all other relevant permits and approvals.

"The facts, as highlighted by all of the parties, are that the decision-making process has been completed, the decisions have been implemented, and subsequently the drilling exercise to which those decisions that were made has commenced. Therefore, to my mind, in the circumstances, there is no decision-making process to be stayed," Justice Hanna-Adderley ruled.

Mr Casey had argued that granting a "stay" would also result in "unnecessary delay to the project which is of great public importance", and that it could undermine investor confidence in The Bahamas and agreements with the Government.

"Mr Casey also submits that the granting of a stay poses a real risk of BPC losing its window for its vessel and teams of specialists to complete the exploration drill, and more so other commercial operators being unwilling to become involved or make investments with the Bahamas in regard to oil exploration," Justice Hanna-Adderley recorded.

While the Supreme Court's rejection of a "stay" was the main result BPC was seeking, since it largely removes all obstacles to the completion of its Perseverance One exploratory well, its opponents have hailed the fact that Justice Hanna-Adderley has given them permission to bring Judicial Review proceedings against all the project's permits and approvals.

In particular, she agreed that the Planning and Subdivisions Act applied to BPC's project, and that it likely needed site plan approval under this law. "The definition of land as set out in Section 4(1) of the Planning and Subdivisions Act seems to suggest that the drill site is located within the territorial waters of The Bahamas and would be subject to the Planning and Subdivisions Act," the judge found.

"In my view the applicants have an arguable case on the applicability of the Planning and Subdivisions Act...... I find that the Town Planning Committee should be joined as a party to this action as its presence before the court is necessary to ensure that all of the matters in dispute may be effectually and completely determined."

Justice Hanna-Adderley added that it was "a grave miscalculation" by Waterkeepers Bahamas and Save the Bays to believe that BPC would not raise the necessary financial resources to complete the project, but said there were sufficient reasons to extend the time for them to bring the Judicial Review beyond the six months when the decisions complained of were taken.