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BPC argues why it should be party to judicial review

Legal counsel for Bahamas Petroleum Company (BPC) yesterday argued that BPC should be added as a party in the judicial review of the government’s decision to authorize exploratory oil drilling by the company as it is “directly affected” by the outcome.

Waterkeeper Bahamas Ltd. and the Coalition to Save Clifton Bay brought the action against the government, charging that the relevant provisions in the law regarding approval for drilling were not fulfilled.

However, BPC was not named as a defendant.

Clare Montgomery, QC, represents BPC.

The judicial review hearing is set to start on February 17.

Fred Smith, QC, who represents the environmental groups, said his side will not seek costs, noting that he does not “want to have more fights on procedural issues”. 

He said his interests — on behalf of the applicants — was to move “as quickly as possible” to trial.

“We intend to completely comply with the relevant rules to service appropriate parties if she wishes now, on behalf of whichever her client is, to file a summons to be added or named a respondent under some appropriate rule,” he said.

“She is free to do so. But, she is not free to mutate and transmogrify her pre-leave application into something it was not. So, the fact that I have not filed my notice of motion doesn’t mean leave hasn’t been granted and that there isn’t an actual action that is in existence.” 

Montgomery said the remedy to the situation — that the parties that she represents have — is to rely on Smith’s adherence to the rules.

“But, the problem is those rules are not yet effective,” she said.

“He hasn’t issued his notice for motion. So, it’s not clear that he’s going to accept as he ought to that those persons who I represent are directly affected and therefore have to be served.

“And so, the remedy that we have is the general one under the rules — under article 15 —  is for your ladyship now to consider whether you are satisfied they are indeed directly affected, as we submit they clearly are, and direct that they should be joined.” 

The government also withdrew its application for security for costs.

Smith noted that the government had written to Supreme Court Justice Petra Hanna-Adderley “earlier” to inform her that it had withdrawn its application.

Hanna-Adderley replied, “I was a little confused by Mr. [Franklyn] Williams’ email because their application was not sent down for today. Even so, I didn’t take his mention of your application as an intention to withdraw.” 

She said she thought there had been discussions between counsel that she was not privy to.

Hanna-Adderley asked Williams, “if that was the case”, that the application had been withdrawn.

Williams responded, “Yes, my lady. You can take it as our intention to withdraw that application. We did have a discussion with counsel.”

The matter was adjourned.

Hanna-Adderley said she will come back with a ruling “as soon as I can”.

Waterkeeper Bahamas Ltd. and Coalition to Protect Clifton Bay are challenging several decisions in relation to this matter, among them the environment minister’s decision in February 2020 to grant BPC environmental authorization; the decision in November 2020 to approve changes to the project and a decision in November 2020 to issue a new environmental authorization.

The applicants are also challenging the director’s decision in February 2020 to approve BPC’s environmental impact assessment (EIA) and environmental management plan (EMP); the director’s November 2020 decision to approve the amended resubmitted EIA and/or the decision in November 2020 to approve the changes to the project without an amended EIA and EMP.

In addition, the applicants are challenging the decisions by the governor general in April 2020 to renew or extend the validity of the licenses of BPC/BOP (Bahamas Offshore Petroleum Limited) to December 2020; the decision in August 2020 to renew or extend the validity of the licenses to April 2021 and the November 2020 decision to renew or re-extend the validity of BPC’s licenses to June 2021.

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Jasper Ward

Jasper Ward started at The Nassau Guardian in September 2018. Ward covers a wide range of national and social issues. Education: Goldsmiths, University of London, MA in Race, Media and Social Justice

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