* Activists to launch BPC legal challenge in 14 days
* Will seek injunction unless voluntary halt agreed
* Say Gov't failed to follow lawful approval process
By NEIL HARTNELL
Tribune Business Editor
Environmental activists last night threatened to initiate legal action against the Government and Bahamas Petroleum Company (BPC) within 14 days unless the latter halts its oil exploration plans.
Fred Smith QC, the Callenders & Co attorney and partner, fired off multiple letters to the Prime Minister, Cabinet ministers and relevant government agencies warning that his clients will seek to obtain a Supreme Court injunction blocking BPC's activities until such time as the merits of their Judicial Review are determined.
Acting on behalf of the Our Islands, Our Future group, as well as Waterkeeper Bahamas and a "coalition" of unnamed "Bahamian citizens, local businesses and local and international environmentalists", Mr Smith argued that the approvals granted to BPC breached assurances given by Dr Hubert Minnis, were contrary to the nation's international obligations, and did not follow legally-mandated processes.
In a letter to BPC's chief executive, Simon Potter, which was sent just hours after it revealed the vessel hired to drill its first well is poised to leave the Canary Islands for The Bahamas before end-November, Mr Smith urged the company to avoid the need for an injunction battle by giving a voluntary "undertaking" not to proceed with the project.
"We... invite you to undertake not to proceed with the project until such time as a full and proper public consultation process has taken place," the Callenders & Co attorney urged Mr Potter.
"We hereby put you on notice that absent a satisfactory response within 14 days to this letter or to our letters sent today to the [government], we are instructed by our client to apply to the court for leave to bring Judicial Review proceedings."
These, Mr Smith said, will focus on challenging the Government's February 2020 decision to approve BPC's Environmental Impact Assessment (EIA), and subsequently issue its Environmental Authorisation (EA), "without proper consultation or at all". It will also tackle similar issues with what he described as BPC's revised EIA.
"As part of this Judicial Review application we will be seeking an injunction preventing you from embarking on the project pending final determination of the Judicial Review," he told Mr Potter. "To obviate the need to obtain such an injunction, we therefore invite you now to undertake not to proceed with the project until the final determination of any Judicial Review challenge launched by our clients."
The move threatens to throw a last-minute wrench into BPC's plans to spud its first exploratory well, Perseverance One, in Bahamian waters just before Christmas 2020. The oil explorer, in an update issued yesterday, said Stena Drilling, providers of its drill ship, had formally notified it that the vessel will begin operations on December 15.
"BPC anticipates that it will take four to five days from this start date for the rig to be provisioned, loaded and then transitioned to the drilling location for spud of the well," the oil explorer said yesterday. However, that timeline for a project BPC says it has invested more than $100m on over the past 13 years, has now been thrown into doubt at the last minute if Mr Smith and his clients are successful.
Any Supreme Court-enforced delay could prove extremely costly to BPC and its shareholders, including the Bahamian investors who also recently bought into the company via a private placement.
Reaction to the efforts of Our Islands, Our Future and its environmental partners is likely to be mixed given that the issue of oil exploration in Bahamian waters is highly divisive. Some view it as a potential 'game changer' that the Bahamian economy desperately needs, and can ill-afford to ignore, post-COVID-19 especially if commercial quantities of extractable oil lie below the seabed.
Advocates argue that The Bahamas simply cannot pass up the potential of a multi-million dollar windfall following the fiscal and social hardship inflicted by the pandemic, especially since there are few other economic diversification opportunities on the immediate horizon.
The project's opponents, though, have always voiced scepticism about BPC's ability to pull-off the project. Many have also expressed fears for the environment, and the industries that rely upon it - especially tourism and fishing - were any oil-related accidents to occur. They also argue that an oil exploration industry is not compatible with fighting the very climate change now impacting The Bahamas.
Meanwhile Mr Smith, in a separate letter to Romauld Ferreira, minister of the environment and housing, said that "owing to assurances given by the Prime Minister" and himself "our clients had a legitimate expectation that the BPC EIA and EA would not be approved or granted".
Suggesting that the Government's approvals were incompatible with its international environmental obligations and the treaties it has committed to, the QC also queried whether BPC had met the requirement in the Petroleum Act's accompanying regulations that it "satisfy" any issues raised by those affected by its potential activities before submitting an EA application.
"This is of particular interest given that you granted EA to this project without notice to Our Islands, Our Future nine months after you gave unequivocal assurances to representatives of Our Islands, Our Future and other environmental organisations that there would be no oil drilling in The Bahamas," Mr Smith told Mr Ferreira.
"It seems clear to us that neither BPC nor your department engaged in any, or any proper, public consultation in relation to the EIA or the project..... There has been a complete failure to fulfill the public consultation obligation in relation to this project. Doubtless as a result of this failure, the BPC EIA is a woefully inadequate document."
BPC has repeatedly refuted allegations that there has been little to no consultation with Bahamian stakeholder groups, citing meetings it has held with numerous fishing communities and other potentially affected parties in Andros and throughout the Family Islands.
Mr Smith, meanwhile, zeroed in on reports that BPC's EIA is being updated due to the interruptions caused by COVID-19 and the change of drill ship. Noting that the regulations accompanying the Petroleum Act require changes to an EA-approved project to be granted by the minister, meaning Mr Ferreira, he queried whether this had happened.
Arguing that the EIA would have to be resubmitted, and a new EA application made by BPC, Mr Smith suggested its Stena IceMAX drill ship "will not be able to begin drilling" until these documents were approved and a fresh round of public consultation had taken place.
"To this end we request that you suspend the EA and re-open the EIA process to allow proper public consultation to take place," he argued, while also requesting that the Government clarify whether BOC has been issued with a Certificate of Environmental Clearance (CEC) as required by the Petroleum Act.
"If a CEC has not been issued, please provide an assurance that a CEC will not be issued without our clients having an opportunity to make representations in relation to the project in general, and the EIA and Environmental Management Plan in particular," Mr Smith added.