The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Grand Bahama’s electricity provider yesterday revealed it was never consulted on key energy reforms passed by the House of Assembly last week and had to learn about them “in the papers”.

Dave McGregor, Caribbean chief operating officer for Emera, Grand Bahama Power Company’s 100 percent owner, told Tribune Business in a series of messaged replies that the utility is now carefully studying the Electricity Bill 2024 to determine the potential impact for its business and operations.

“We are currently reviewing the implications,” he said of the legislation. “We are focusing on continuing to supply clean and cost effective power to our customers in Grand Bahama without disruption.”

Asked by this newspaper when GB Power first learned of, or saw, the Davis administration’s proposed legislation and energy sector reforms, and if there had been any opportunity for discussion, talks or consultation over its contents, Mr McGregor, who was travelling, replied: “No consultation... We read about it in the papers.”

His comments support assertions by Opposition MPs that the Government failed to consult GB Power and the wider Grand Bahama community over potentially far-reaching reforms to energy regulation on the island given that the Bill appears designed to strip this responsibility from the Grand Bahama Port Authority (GBPA).

Instead, the legislation seems to transfer regulatory oversight authority to GB Power by making the utility the “approving authority” for anyone submitting a proposal to supply electricity to the public on the island.

The Bill states that decisions by such an “authority” must also be approved by the Utilities Regulation and Competition Authority (URCA), which retains ultimate power to licence any new electricity providers. Many observers view this was a neat way of circumventing the GBPA’s utilities regulatory authority in Freeport and transferring it to URCA via GB Power.

Michael Pintard, the Opposition’s leader, yesterday told Tribune Business that the Electricity Bill 2024’s Grand Bahama-related provisions were “no doubt emblematic” of the direction the Government plans to take in both its dealings with the GBPA and the Hawksbill Creek Agreement, Freeport’s founding treaty.

He added that the Davis administration, via legislation and the passage of new statute law, was almost seeking to “wrest away” the issue of who has regulatory authority for utilities in the Port area - the GBPA or URCA - away from the courts given that GB Power has had a case seeking a determination of that question before the judicial authorities for eight years.

And, questioning why the Government would not provide advance warning to GB Power of new obligations it planned to “foist” on them, Mr Pintard asserted the utility “cannot be judge and jury” or power provider and regulator at the same time given the obvious conflict of interest this creates.

“We’re not at all surprised that the Government continues the same pattern of behaviour, which is failing to consult stakeholders so that the policy positions they are taking or legislation they are proposing is informed by the consultation,” the FNM leader told this newspaper. “It does not rob the Government of its authority or ability to make the decisions they believe are in the best interest of the country.

“It gives them a wide range of opinions, particularly from those independent entities directly impacted by the decision. In this case, the Government clearly already signalled it intends to strip the GBPA of some of its regulatory functions, which is no doubt emblematic of where they are headed in other areas related to governance of Freeport and the provisions in the Hawksbill Creek Agreement. This is emblematic of that.

“This is the Government moving to redefine the regulatory authority previously vested in the GBPA, and to redefine the Hawksbill Creek Agreement in the most elegant of ways.” The Prime Minister had previously confirmed that the Electricity Bill 2024 provides “the flexibility” to remove the GBPA’s ability to regulate the energy sector in Freeport.

Speaking to journalists, Mr Davis was asked if the legislation “intends to take away the authority for Freeport energy from the Grand Bahama Port Authority and give it to URCA” based on provisions in the Bill. Replying, the Prime Minister affirmed: “That flexibility exists in the Bill.”

The legislative effort to redraw Freeport’s energy oversight regime comes as the Government and GBPA begin the process of heading to arbitration over the former’s claim that the latter owes it some $357m for public spending and services provided to the city in excess of tax revenues generated during the period 2018-2022.

Mr Pintard, meanwhile, said the reforms contained in the Electricity Bill 2024 represent a “doubling down” of what the 2015 legislation it will replace contains. That, too, sought to expand URCA’s regulatory authority to Freeport by using statute law to override the Hawksbill Creek Agreement. That bid, though, was blocked by GB Power’s 2016 legal challenge that remains live before the Supreme Court.

“This legislation is addressing what is in the court matter,” the FNM leader said. “They are wresting the matter away from the court and making a political decision which is interpreted as an erosion of the provisions in the Hawksbill Creek Agreement.”

Mr Pintard also argued that the “approving authority” designation has been “foisted” on GB Power without any “forewarning” to the utility and assessment as to whether it was equipped to take on these functions.

“More concerning is that they cannot be both regulator and provider of power, judge and jury,” he added. “We in the FNM have already expressed concern about the regulation of GB Power. We wanted the GBPA to provide stricter oversight of GBPA to make sure it does not overreach in its charges and has greater care in making power available for Grand Bahamians.

“We wanted a more effective GBPA to provide oversight. You are now making it worse by making the company the regulator of themselves; the Power Company. How do you give them that additional authority? That’s worrisome to us. You’ve made the situation even worse.”

Kirk Antoni, the Cafferata & Company partner and attorney, told Tribune Business it is almost certain that the Electricity Bill’s Grand Bahama-related provisions will be subject to legal challenge much like its predecessor legislation has been.

“It’s just another effort to undermine the Port Authority’s regulatory role. It is another attack by the Government to circumvent the GBPA,” he said. “My question: Is the Power Company going to monitor the Power Company, and are we going to end up having a monopoly that raises the rates how they want to raise the rates? Can you imagine if GB Power has carte blanche to charge what they want? As a consumer, you have no choice.

“This is just another attempt by the Government to throw another dart at the Port Authority. It’ll be challenged; I’m sure it will be challenged and it will be resisted, and go through a court process like everything else. This Electricity Bill, I haven’t read too much into it, but it will be challenged by the Power Company and resisted.”