By NEIL HARTNELL
Tribune Business Editor
An oil explorer and its opponents have given sharply different versions of the Christmas Eve legal battle that set up today’s hearing on the Judicial Review challenge to halt its exploratory drilling.
Fred Smith QC, the Callender’s & Co attorney and partner, yesterday argued that Bahamas Petroleum Company’s (BPC) description of the December 24, 2020, hearing before Justice Petra Hanna-Adderley was “deceptive and misleading” because his clients’ case was not rejected by the judge.
BPC, in two statements on the court hearings issued over the Christmas holidays, asserted that Justice Hanna-Adderley refused to give their environmental activist opponents permission to proceed with an action that aims to halt their activities in Bahamian waters.
The oil explorer, which is listed on London’s Alternative Investment Market (AIM), said in releases yesterday and on Christmas Eve that the judge had also declined to grant Waterkeepers Bahamas and the Coalition to Protect Clifton Bay (Save the Bays) a “stay” that would have halted oil drilling operations that are now into their ninth day in waters 90 miles west of Andros.
“As indicated in BPC’s announcement of Thursday, 24 December, 2020, on that day, at a hearing of the court, Justice Petra Hanna-Weekes, following her consideration of the relevant documents, refused the applicants leave to apply for Judicial Review of the decision by the Government of The Bahamas in February 2020 to grant BPC Environmental Authorisation (EA) to proceed with the drilling of Perseverance No 1,” BPC said of its exploratory well.
“This ruling was made ‘on the papers’. That is solely on the basis of written materials provided by parties to the court, without any parties making oral submissions. Following that ruling, the court also refused the applicants’ request for a stay order (halt) to BPC’s drilling activities.”
However, Mr Smith countered by arguing that Justice Hanna-Adderley had made no ruling either way on whether to give or reject permission for the Judicial Review action to proceed. “We live to fight another day,” he said.
And he also denied BPC’s assertion in yesterday’s release that he and his clients “have made a renewed application for Judicial Review in respect of the Environmental Authorisation (EA)” that was granted for the project by the Government in February 2020.
While acknowledging that Justice Hanna-Adderley had “initially refused permission” for his clients to challenge both the EA and the Government’s April 2020 decision to extend BPC’s licences to March 2021 due to COVID-19’s impact, as they had failed to launch the Judicial Review within the timeframe allowed, Mr Smith said she ultimately relented.
This occurred, he added, after he argued that the Supreme Court’s rules require an oral hearing to be held if a judge is minded to refuse permission for a Judicial Review action to proceed.
As a result, Justice Hanna-Adderley has ordered that she will hear arguments from both Mr Smith and the Government today on whether the environmentalists’ challenge to BPC’s permits – and the process for issuing them – should proceed or not.
“Both the BPC statements are misleading because the judge did not refuse or grant leave,” Mr Smith told Tribune Business.
“They are misleading because the judge is having a full hearing on whether to grant leave and/or a stay.
“She made no decision, and we do not have to ‘renew’ our approval as suggested by BPC. That was very wrong, deceptive and misleading.”
BPC yesterday said Justice Hanna-Adderley had made no decision on whether it should be added to the court proceedings as “an affected party”, or whether to give the activists’ Judicial Review permission to challenge more recent approvals and permits issued by the Government.
These were the August 2020 move to extend BPC’s licences to end-June 2021, as well as the decision that no new EA or public consultation was required due to the switch to the Stena IceMAX drill ship.
Mr Smith, though, argued that BPC and its attorneys, Clare Montgomery QC and Graham, Thompson & Company, were seeking to “string out” the court proceedings such that BPC’s drilling activities would be completed within the 45-60 timeframe it needs before a decision is made.
“Despite the rules providing BPC with an opportunity to be heard if it is affected, and me confirming we would have no objection to them being heard, BPC insists on becoming a party so it can now bedevil the process with applications for security for costs, strikes outs and challenges on all kinds of procedural tactics to delay this and drag it out until they finish drilling,” Mr Smith said.
“They want to string this out and make it take as long as possible so they can say to the judge this case is now a complete waste of time. “
BPC, meanwhile, pointing out that exploratory drilling was continuing, confirmed that today’s hearing between the activists and the Government will address only those arguments contained in documents already filed with the Supreme Court.
Should the Judicial Review challenge be given the go-ahead, BPC said its bid to be added as a party to the action will be heard on January 6, 2020.
The Government, meanwhile, has also brought in a foreign attorney to lead its case in the form of Aiden Casey QC. Mr Smith said he had requested more time to assemble the necessary evidence for a full hearing on the action’s merits even though the Government had known a Judicial Review action was likely since mid-November.
“Judicial Review is supposed to happen speedily to assist in good governance,” Mr Smith said. “Either there was consultation or not. Does the Planning and Subdivision Act apply or not? If it does, do they have the permits or not?
“The Government should co-operate in having a speedy trial so it can be guided by the court. It’s not factually complicated, and because the drilling is time sensitive and already going on, it’s a matter that should be treated with urgency.”