The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Oil exploration opponents yesterday pledged they will “not be priced out of justice” after the Supreme Court ordered them to find $200,000 to cover Bahamas Petroleum Company’s (BPC) “security for costs”.

Representatives for Save the Bays and Waterkeepers Bahamas, the two environmental groups that initiated the Judicial Review challenge to BPC’s permits and the process by which they were obtained, told Tribune Business they are focusing on raising the funds within the 30-day period granted by Justice Petra Hanna-Adderley rather than appealing her ruling.

Conceding that previous Bahamian court rulings had established a precedent for such awards, Joe Darville, Save the Bays’ executive chairman, said the activists will “do everything we can to raise” the necessary funding in a bid to ensure the merits of their Judicial Review are heard and they “terminate for ever” the potential for further oil drilling in Bahamian waters.

Speaking out after Justice Hanna-Adderley ruled in BPC’s favour yesterday, Mr Darville argued that the requirement to come up with a bond to cover the oil explorer’s legal costs effectively “prices out” public interest litigation brought by non-governmental organisations (NGOs) from the justice system.

“‘Security for costs’ is an attempt to price regular people out of justice,” he said. “If we are bringing public interest law cases, we should not have to pay to play.” Justice Hanna-Adderley, though, strongly disagreed as she yesterday ruled that BPC’s opponents “are not immunised from an application for security for costs simply because their action raises points of law of public importance”.

With the activists’ action under threat of being “stayed” or knocked out if they cannot raise the $200,000 set by the court, Mr Darville said they were now concentrating on raising the funds rather than appealing the Supreme Court ruling.

“We are not thinking about an appeal right now, although we may have to explore that,” he added. “Right now we have 30 days to raise the money, and we are going to do everything we can to raise it. It’s vitally important we proceed all the way to the end of the case no matter what the obstacles may be.

“We should not be priced out of justice in the interests of the Commonwealth of The Bahamas and its people..... We want to go all the way to the end. If we leave it hanging BPC will have an inroad under an administration more sympathetic to them. We don’t want to leave it hanging.

“This is something to deal with. We have to take it all the way to the end and continue it so that for good, for ever, we terminate oil exploration in the waters of The Bahamas.” Mr Darville’s reference to a “more sympathetic administration” likely alludes to a potential PLP government headed by Philip Davis, as he and his party have both indicated they are in favour of oil exploration in Bahamian waters.

Senior PLPs, such as former prime minister Perry Christie, and also Mr Davis’ law firm, have worked as consultants, attorneys and advisers to BPC previously, while Senator Jobeth Coleby-Davis, the party’s candidate for the Elizabeth constituency, is the oil explorer’s in-house legal counsel.

BPC could not be reached for comment before press time last night, but Rashema Ingraham, Waterkeepers Bahamas executive director, told Tribune Business it was vital that the Judicial Review’s merits be heard and ruled upon by the Supreme Court so that the Bahamian people had a full understanding of its licence terms and commercial deals reached with the Government.

She added that it was also critical that the Bahamian judicial system determine what approvals must be obtained, and processes followed, so that the permitting processes for future exploratory wells can be properly established.

“It’s such an unfortunate thing that it seems as though we’re being priced out of bringing things to court and having justice prevail,” Ms Ingraham told Tribune Business. “Our only focus is on trying to raise the funds. What will speak louder is the final judgment in this matter rather than the sub-applications.

“We don’t want to be distracted by these other applications. It’s important to show that this is a public interest case and important to good governance. It’s important we hit on this. We need case law for other cases that may come up.”

Justice Hanna-Adderley has given BPC’s opponents 30 days to raise the funds, rather than just the 14 days sought by the oil explorer, but Ms Ingraham said the precedent set down in Bimini Blue’s challenge to Resorts World Bimini’s cruise ship terminal - where the activist group was ordered to pay $850,000 in ‘security for costs’ - has had a potentially chilling effect on all similar litigation.

“It has put a hindrance on non-profits bringing these cases because they don’t have the liquid assets and capital of for-profit companies,” she added. Save the Bays and Waterkeepers Bahamas are seeking to raise the $200,000 via donations from the public, international environmental groups and the likes of foundations.

While BPC’s Perseverance One well failed to discover commercial oil quantities, the oil explorer has yet to signal it has abandoned The Bahamas completely given its statements about “monetising” its licence assets in this jurisdiction.

Reading between the lines of its latest statements, BPC will likely seek to renew its five licences that are due to expire at end-June 2021 but is unlikely to drill another well in this nation unless it can find a farm-in or joint venture partner to share the financial, technical and operational risk. In such a way will it monetise its licence, with the Perseverance One well data already attracting new interest.

“To have this action stayed is going to set us back another five years, which we cannot afford as a matter of public importance,” Ms Ingraham said. “A lot of the questions we were asking in the legal process have not been answered, and that is whether or not there are additional avenues for BPC to apply for exploration wells in other licence areas as well as the one it has just drilled in.”

Voicing concern that BPC can apply for further well Environmental Authorisations (EAs), Ms Ingraham added that the judicial system is also needed to determine whether the Planning and Subdivision Act’s site plan approval and excavation permits under the Conservation and Protection of the Physical Landscape of The Bahamas Act are required.