The Tribune

By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

Oil exploration opponents are arguing that Bahamas Petroleum Company (BPC) is engaging in a "tactical denial" of a speedy hearing after being added as a party to their Judicial Review case.

They expressed their concerns after Justice Petra Hanna-Adderley ruled on Friday that BPC "are parties directly affected" by the action launched by environmental activists, Save the Bays and Waterkeepers Bahamas, and therefore should be added as respondents to the case.

Clare Montgomery QC, BPC's attorney, immediately sought a date for a hearing on "security for costs". If the oil explorer's application is granted, it would require the environmental groups to lodge a performance bond with the court to cover BPC's legal costs if they are ultimately unsuccessful.

The Supreme Court set the "security for costs" hearing for February 17-18, while the merits of the Judicial Review action will be heard on March 29-30. This effectively guarantees that BPC will be able to complete its Perseverance One exploratory well, as the drilling - which started on December 20 and is expected to take between 45-60 days - should have finished or be closed to finishing when the former hearing takes place.

Aiden Casey QC, the Government's lead attorney, also argued that the February 17 and 18 dates were “mooted” because of the well timetable and need to move forward with the court matter “expeditiously”.

Fred Smith QC, the Callenders & Co attorney and partner acting for the environmentalists, argued that BPC was seeking to "derail" an early hearing of the Judicial Review merits through procedural tactics. These, he added, were designed to either delay such a hearing or deny his clients their day in court by imposing a financial burden they would struggle to meet.

Mr Smith asked Ms Montgomery to declare the size of the bond her clients are seeking so they can get it “over and done with”, but she replied that they were “going over the numbers" and are not prepared to give any details.

Mr Smith said he will be filing a “constitutional motion", citing that it is a “tactical denial of the applicant’s right to a fair hearing in a reasonable time” by making a "security for costs" application.

But Ms Montgomery fired back and said: “This is really inappropriate to be bargaining with the court. The applicants have deliberately delayed their applications for Judicial Review, and deliberately sought to shut out the applications that otherwise we would have made earlier in the process. To have them complain about a situation they created it is, in my submission, quite wrong and shouldn't take place in this hearing.”

“We are concerned that this ruling will further remove access to swift justice,” said Rashema Ingraham, of Waterkeepers Bahamas, in response to the verdict. “This ruling now gives BPC an opportunity to slow down the pace of this Judicial Review process considerably.

"Applications for security for costs have been used in previous proceedings to prevent matters from moving forward until citizen groups are able to pay large bond payments into the court as a security in the event the judge’s final decision is not in their favour. Citizens often have no choice but to drop the case if they are unable to pay. They are trying to derail the hearing on a technicality.”

“Now that BPC is joined, they should not apply nor be granted security for costs, as that would only serve to deny justice to the people of The Bahamas,” said Joseph Darville of Save the Bays. “The only way for this important decision to be reviewed and decided upon accurately is to get the facts on the table and to let the court decide, not to let the financial wherewithal of the parties determine the outcome.”