The Tribune

By FAY SIMMONS

Tribune Business Reporter

jsimmons@tribunemedia.net

A senior official with the Attorney General’s Office yesterday branded the legal dispute over who has regulatory authority for the energy sector in Freeport as a “difference of opinion”.

Danya Parker-Wallace, deputy director of legal affairs in the Attorney General’s Office, said the Government’s view is that “Parliament has spoken” on whether such authority resides with the Grand Bahama Port Authority (GBPA) or the Utilities Regulation and Competitive Authority (URCA).

Speaking on a panel discussion at the Ministry of Energy and Transport’s energy forum, Mrs Parker-Wallace said the Attorney General’s Office is not involved directly in the dispute as URCA was instead named as the respondent party while the Grand Bahama Power Company was the plaintiff.

“There’s a difference in opinion, and who the regulator is really depends. The answer that you will get will depend on who you ask,” said Mrs Parker-Wallace. “So let me just explain what I meant by that. So two things, one, to be clear, the Electricity Act of 2024, a large part brought forward some of the provisions of the Electricity Act 2015.

“One of those provisions would have been that the Act applied to the entire Bahamas. So that was part of the law from 2015, and recently brought forward in the 2024 legislation. So, as far as URCA and the Government is concerned, Parliament has spoken.

“It’s been almost been ten years. Parliament has stated what its position is, and URCA as regulator is trying to ensure the laws of The Bahamas are complied with. So, from our perspective, that would be what our position would be.”

Mrs Parker-Wallace, though, said that from GB Power and the GBPA’s perspective they have been granted certain privileges under the Hawksbill Creek Agreement, Freeport’s founding treaty. They believe the Electricity Act is “inconsistent with that vision”, so GB Power asked the courts to determine who Freeport’s electricity regulator is.

“However, we understand that Grand Bahama Port Authority (GBPA) and its affiliates would have a different position because they expressed that. Shortly after the 2015 legislation was passed, litigation commenced. The GBPA, one of their affiliates, brought an action against URCA as regulator in respect of the Electricity Act 2015, and that litigation of some form is still ongoing,” she explained.

“Their position in law, just to summarise, it is simply that if there exists the Hawksbill Creek Agreement that was done between the Government and the Grand Bahama Port Authority, and in the GBPA’s view there’s certain rights and powers and privileges that will afford them under the Hawksbill Creek Agreement, the Electricity Act is simply inconsistent with that vision.

“And so they have done what any other citizen or entity would do; they simply asked the courts to adjudicate and make a decision. So that’s really all.” 

GB Power, in its still-live Supreme Court action, sought an injunction to prevent URCA “from regulating, or seeking to exercise licensing and regulatory authority” over it. GB Power’s action is founded on the basis that, as a GBPA licensee, it is licensed and regulated by the latter via the Hawksbill Creek Agreement - and not by URCA and the Electricity Act 2015.

It is arguing that the previous Electricity Act’s sections 44-46, which gave URCA the legal right to licence and oversee energy providers, “are inconsistent, and conflict with, the rights and privileges vested in [GB Power] and the Port Authority” by the Hawksbill Creek Agreement.

GB Power’s statement of claim argues that itself and the GBPA “have been vested with the sole authority to operate utilities”, including electricity generation and transmission and distribution, within the Port area until the Hawksbill Creek’s expiration in 2054. Cable Bahamas, too, also has a separate legal action contesting URCA’s jurisdiction and authority to regulate its Freeport subsidiary.

The GBPA, too, asserted earlier this year: “The Hawksbill Creek Agreement, a cornerstone of our governance structure, granted GBPA the right and responsibility of regulating all utilities within the City of Freeport.

“In 1993, with the execution of the east and west agreements, this mandate was extended to include government territories on the island of Grand Bahama. Since the inception of the Hawksbill Creek Agreement, no Act of Parliament has superseded its provisions.

“Under Clause 2 (21) and 2 (23) (a) of the Hawksbill Creek Agreement, GBPA and GB Power - as a licensee of GBPA - have been vested with the sole authority to operate utilities, including electricity generation, transmission and distribution, within the Port area until the Hawksbill Creek Agreement’s expiration in 2054 without having to obtain a permit or licence from the Government of the Bahamas or any department or licensing thereof.”

Applying this to the Government’s recent legislative reforms, the GBPA added: “As such, the Electricity Act, which attempts to give URCA the legal right to licence and oversee energy providers, is inconsistent with - and conflicts with - the rights and privileges vested in GB Power and the GBPA by the Hawksbill Creek Agreement.

“An action was commenced in the Supreme Court to challenge URCA’s ability to licence and regulate on the basis that these conflict with the provisions of the Hawksbill Creek Agreement as Freeport’s founding treaty. We will continue to defend our positions, and it is important to point out that there have been over a dozen successfully litigated cases that have set a judicial precedent for the GBPA’s exclusive regulatory authority in Freeport.”