The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

TWO leading environmental groups have filed a Supreme Court application to discontinue a judicial review of the government’s approvals concerning Bahamas Petroleum Company’s exploratory drilling in Bahamian waters.

Earlier this year, Save the Bays (STB) and Waterkeeper Bahamas (WKB) jointly launched the challenge to confirm whether BPC had received all of the necessary approvals and permits required to carry out exploratory offshore drilling. The action also sought to have the courts establish the “proper and lawful” procedure for projects of a similar nature going forward.

The recently filed consent order seeks for the judicial review action to be discontinued and for each party to bear its own costs. The environmental groups said despite the government’s and developer’s efforts to “price advocates out of justice”, their legal challenge has proven to be a “huge success”.

In a statement, STB and WKB said oil companies could “consider themselves warned” since their judicial review challenge not only “sparked global awareness,” but also relayed a “strong warning” to those that would seek to pursue a similar venture in the future.

STB legal director, Fred Smith, QC, said he lamented the fact environmentalists continued to be priced out of justice by the government and developers who “ganged up” on environmentalists and small business owners.

“Whether you are Bahamas Petroleum Company (BPC) or any other entity, consider yourself duly warned: The Bahamas has a strong, outspoken environmental activist community that will aggressively challenge any project if it appears that the procedures mandated by law might not have been followed,” Mr Smith’s statement read.

“...Sadly, the drill went ahead before these questions could be determined by the court. With that ship having already sailed, so to speak, we then offered to streamline the matter, as it had become impossible because of KYC challenges to set up the security ordered by the court, to focus on the all-important second question of proper procedure and which laws apply to oil drilling.

“However, BPC were unwilling to cooperate and so we had no choice but to accept their counter-offer that all parties mutually agree to bring the case to an end. But make no mistake, this challenge was a huge success. BPC and any other company that may be seeking oil drilling licensces in Bahamian territory now know that they will be carefully scrutinised every step of the way.”

In their joint statement, Rashema Ingraham, executive director of Waterkeeper Bahamas, also noted the “enormous attention” the legal case drew to issues surrounding oil drilling in The Bahamas both locally and internationally.

“The judicial review made instant headlines and raised a tremendous amount of awareness about the threat these projects could pose to the marine and terrestrial environment of the Bahamas, especially if they are undertaken without regard to the full legal framework designed to regulate developments and protect both the natural ecology and local communities,” Mrs Ingraham said.

Mr Smith added that it was important for the public to understand why environmental groups were “forced to agree to end the case”. He explained that a judicial review is simply meant to be an inspection of a decision-making process undertaken by the government, and in this case, the decision to allow BPC to drill.

“It is not intended to take a long time or be particularly costly for any of the parties involved,” he explained. “Unfortunately, over the past several years in The Bahamas, collusion between the government and developers has been used to delay, complicate and stymie proceedings, then the developers apply to the court for a huge financial guarantee from the applicants in order to move forward with what is now an unnecessarily complicated and drawn-out case. The clear intent is to price NGOs and regular people out of justice and that is exactly what we faced in this challenge.

“Our offer to streamline proceedings would have significantly simplified matters, cut costs for all involved and allowed for a prompt and straightforward hearing on questions of the law. BPC’s decision not to accept it meant we were faced yet again with a mind-bogglingly complicated and potentially hugely costly procedural case, over a drill that had already happened and therefore could not be prevented or stopped, even if we had won. It was impossible to continue in those circumstances.”

Mr Smith said despite this fact, BPC along with other oil companies and developers should remember that environmentalists will not hesitate to take “strong and forceful action, including through the courts, in the name of environmental protection and the rule of law in The Bahamas” regardless of the hurdles they continue to face.

Earlier this year, BPC announced it had ceased its drilling operations after having failed to find commercial volumes of oil.

BPC - which in May changed its name to Challenger Energy Group PLC -  welcomed the move to stand down.

In a statement Chief Executive Officer Eytan Uliel said: “Our company has been committed to The Bahamas for over a decade, and has spent over $150 million on its Bahamian operations to date. Despite the fear mongering engaged in by the applicants during the course of their action, the Perseverance-1 exploration well was ultimately drilled safely, responsibly and without any environmental or operating incident.

“We have always complied with all relevant laws and regulations, and we have never had any issue with government decisions pertaining to our business being subjected to proper scrutiny and review. However, in the instant case, the timing and manner in which the applicant groups brought their action was entirely cynical – at the last minute, and with the clear intent of not seeking any genuine process of judicial review, but rather to derail a legitimate business project that does not agree with their political agenda.

“We are glad that the Bahamian Court did not reward this conduct, thereby reinforcing our confidence in The Bahamas as a reliable investment location, and we are pleased that the judicial review application has now been definitively discontinued.”