Western People (Ireland): Legal fear prompts Council to resist call for offshore site: Tuesday 16 August 2005
BY CHRISTY LOFTUS
The Cathaoirleach of Mayo County Council has been given the go-ahead to use the “goodwill, office and resources of the council” to seek the release of the Rossport 5.
The council, following legal advice and guidance from the acting county manager, declined to adopt a motion calling on Shell to move the processing of the gas to sea.
At a special meeting of the authority in Castlebar, which went on for four and a half hours at the weekend, the Shell to Sea campaign and one of the wives of the Rossport Five addressed the meeting.
The debate was, for the most part, conducted on a constructive basis but broke down along party political lines when it came to votes on the two motions tabled for discussion.
Despite warnings that a rupture of the upstream pipeline could result in devastating loss of life in Rossport and that there could be a Chernobyl like “meltdown,” the council declined to go along with the demand of the Five that the processing of the gas be done at sea.
Spokesman for the Shell to Sea campaign, Mr Mark Garavan, made it clear that the bottom line for the jailed men was their safety and that of their families. Unless their safety could be guaranteed they would remain in jail. They saw the only guarantee of their safety in a decision by Shell to abandon their present proposal and refine the gas offshore.
The motion tabled by the FG cathaoirleach Cllr Henry Kenny stopped short of calling on Shell to move the operation to sea, though it did offer the prospect of that eventuality in the event the Independent Safety Review found Shell’s present proposal untenable on safety grounds.
Fine Gael had their troops marshalled in support of their Cathaoirleach, though in the end one of their number, Johnno O’Malley (Westport electoral area) broke ranks and voted in favour of the Tim Quinn motion calling for the refining of the gas to be done offshore.
On the other side of the house, Fianna Fail were in total disarray with only half their twelve members in attendance. The prospect of getting their motion through was illusory rather than real.
A new element was added to the debate from the council’s point of view with the legal advice that any call on Shell to alter the project, for which the council has granted permission, would be in breach of the County Development Plan and would leave the council open to a massive legal suit by Shell, its partners or anyone connected to the project, including contractors to the development.
Mr Michael Browne, legal adviser, told the members while he could not direct them to take the legal advise, he “strongly urged” them to do so.
While the tone of the debate was largely constructive there were some special barbs reserved for Cllr Quinn and for Dr Jerry Cowley because of the picketing of the offices of Dep Enda Kenny.
Cllr Tim Quinn proposed his motion calling on the council to ask Shell to process the gas at sea. It was seconded by Cllr Gerry Murray.
Before the council commenced to debate the motion, Mr Joe Beirne, acting county manager expressed reservations about the motion and told members it would be “unhelpful” to pass the motion.
He said the motion was “unlawful.” It would make it difficult for the Council to attract multi-national companies into Mayo in the future. The Shell project had gone through all the necessary regulatory processes and major substantial investment works had already been carried out.
He pointed out that the Council's decision to grant planning permission was upheld by An Bord Pleanála subject to 42 conditions. All works, which had been carried out, were being monitored by the Council to ensure that all conditions are being complied with.
Substantial infrastructural works, paid for by Shell E. & P. Ireland Ltd., have already been carried out or are under construction by the Council.
“Having considered the matter and taken advice, I now believe that the motion submitted by Councillor Quinn is unlawful for the following reasons:-
It contravenes Objective TI-G1 of the County Development Plan which reads as follows:-
"It is an objective of the Council that it fully supports the realisation of the Corrib Gas Field find and any other gas find in the County either on or off-shore. It also supports the provision of an on-shore gas terminal in North Mayo and the related pipe network through the County to maximise the benefits for the County."
“The Council is obliged by law to implement its County Development Plan. In the event of a litigation arising involving the Council, other parties could sue the Council on various grounds including the following:
“* A claim that there was a legitimate expectation that the provisions of the County Development Plan and the relevant conditions of the planning permission would be honoured and implemented.
“* The Council is obliged by law to have regard to Government policy.
“* Any attempt to interfere with planning permission breaches Shell E. & P. Ireland Ltd.'s property and constitutional rights.
Again, members will be aware that the cost of this project is approximately €900,000,000 and therefore, the cost of any litigation would have major impact on the Council's finances and therefore, effect our ability to continue our delivery of services.
In the light of the above, I now recommend that the motion be withdrawn,” said Mr Beirne.
He was asked by cllr Quinn if the statement was his own and responded that he was making the statement as acting county manager and he had taken advice in preparing the statement.
Cllr Quinn said he had thought long and hard before tabling his motion and he had no intention of withdrawing it. He did not hold any brief for Shell and his sole motivation was the widespread concern at the danger of the present project. “This is about the safety of the project. Nothing else and all the reports and reviews won’t allay the fears or alter the fact that there is an inherent danger in the proposal,” he said.
He added the proposal was designed to maximise the profits of Shell who had not given proper consideration to the shallow water terminal proposal.
A whole lot of questions remained unanswered and it was vital for the council to consider the people of Rossport who were in jail not because they did not want the gas to come ashore but because they wanted to have the terminal offshore in the interests of their safety.
“That is it, the beginning and the end of the story. There can’t be a safe pipeline unless the gas goes offshore,” he said.
He stated Shell had been arrogant in their approach to the project and instanced the fact that he had counted 19 lorry loads of pipes going into Erris on the very day that the oral hearing opened in Ballina. There was also the deception about the septic tank and the welding of three km of pipeline for which there was no permission.
There was a huge breakdown of trust and confidence between Shell and the people and a huge unity of purpose behind the men who were in jail to highlight a serious issue of health for themselves and also for all the people of the area.
“They are in jail for a principle. They don’t want a time bomb seventy metres from their homes. Multinationals don’t come into this county for the good of their health and as we have seen they are quick to depart when the first cold winds blow. If they are not making money for their shareholders they are gone,” said cllr Quinn.
He wanted to know who would take responsibility if an accident happened. The council or some agency would have to accept responsibility for the safety of the people.
“I have done my bit. I am here convinced that it is the wrong thing to do. Shell has the technology to take the project to sea and that is where I stand at the moment and I am satisfied to stand by my proposal. I feel very strongly about it. This whole thing has been very badly handled by the powers that be and we have been very badly let down by the Dept of the Marine. “I firmly believe that no amount of resolutions will secure the release of these men until such time as Shell agrees to process the gas at sea,” he stated.
Mr Michael Browne, legal adviser, said he was obliged to caution the members that the motion could expose the council to legal proceedings and he again urged that it be withdrawn. The councillors had an absolute duty under the Planning Acts to secure the objectives set out in the Co Development Plan. If they went ahead with the proposal it would be a breach of duty and would be actionable as the motion would represent a substantial modification of the permission granted by the council. He pointed out that the members also had an obligation under the 2001 Act to have regard for government policy.
Shell had a ‘legitimate expectation’ that having been granted permission they could go ahead with their project. “There is a permission in place and I have no doubt that the council could be sued by Shell or anybody connected to the project,” he warned. He added that planning permission was a property right and breaking that left the council exposed.
He adverted to the fact that in a previous matter (Glencar Exploration and gold-mining on the Reek) the council had become embroiled in very expensive litigation with twenty-one days in the High Court and four days in the Supreme Court.
Cllr Murray said Shell were dealing with a Third World government when they came to Ireland but when they arrived in north Mayo they found they were not dealing with a third world people. For the first time in a long time the way government and big business operated was under scrutiny and the government decisions and actions was not bearing up well.
He rejected the threats about legal action. He could not recall how many times the council had been reminded of Glencar and their duty to have regard to government policy. “We also have a duty to the people we represent and we must bear in mind that this section of pipeline is not subject to the planning permission the council granted. It is not subject to any authority and that is the problem. Essentially the Minister has become a law unto himself. He has set himself up as judge, jury and executioner in relation to consent for the upstream pipeline.”
He said that looking beyond the issue of the Rossport Five and taking in the bigger picture the issue at stake was one of multi-national corporations dictating to government how to do business. “It would be appropriate that the first people to take a blow against global economics should be the people of Mayo following in the footsteps of Davitt. If that blow does not happen in Ireland and Mayo it will happen elsewhere,” he predicted.
He said he did not agree with govt policy on the pipeline, he did not agree the project represented sustainable development and he failed to see what difficulty there was for the council in supporting the motion to have the gas processed at sea.
“Surely we have the right to disagree with Govt policy? Surely we have the right to support our own people who are fearful for their safety if this project goes ahead as planned? And surely we have the right to express a view about a stretch of pipeline that is not part of any permission the council granted,” said Cllr Murray.
Cllr Frank Chambers said he supported the call for Shell to process the gas at sea. They had to be realistic and take on board the advice of the executive and the legal advice but to date no resolution of the issue had been found and it was a time to focus minds. The public in general wanted to see the gas delivered but only if it was safe to do so. The council had taken a decision on the gas in the best interests of the county and it was done in an open, frank, professional and transparent way.
They were now confronted with a different situation with five people in jail. There was a need for dialogue to seek the means whereby the men could be released and returned to their homes. The council had to be prepared to look at the Shell to Sea option. He rejected Cllr Murray’s suggestion that the government was a Third World government. If there were corrupt politicians then they should be exposed but not all politicians should be branded. There was a need to address some fundamental issues that had been brought into focus by the action of the Rossport Five, issues such as the deficiency of infrastructure and jobs in north Mayo. “We are not turncoats, we are realists seeking to get a solution and get the five men out of jail,” he added.
Cllr Michelle Mulherin said her hope was that they could get some forward movement from the present stalemate. People had talked about division in the area. People were picketed and given a hard time, the seeds of discord were being sown and politicians were being blamed for being negligent. The reality was that the Minister and the government had made a hames of the (consent for the) upstream pipeline. She did not wish to be political on the issue but the reality was that Fianna Fail dealt with the matter with undue haste prior to the last general election. They were now left with a serious health and safety issue that served only to enhance the profits of a multi-national company. She would not want to live alongside the pipeline and if the independent safety audit showed the proposal to be unsafe then the gas would have to be processed at sea and nobody was saying anything contrary to that.
Cllr Johnny O’Malley said people’s live were being disrupted. They were torn apart and upside down and the sad part of that was that it could have been avoided. He had spent a number of hours in the area and had visited some of the families. He was totally in support of the people in jail and wanted them released immediately. It was necessary to understand how these men had turned bogland into productive green pasture. It had been done through their “blood, sweat and tears” and provided an understanding of their attachment to the land. “I would not like this pipeline running by my land and god forbid that they find gas out from my house,” added Mr O’Malley. He said Shell had to do the sensible thing and move to sea with the processing. How could they expect to work for fifteen years in the area with the community against them.
Cllr Jarlath Munnelly said he was amazed at the u-turn done by Cllrs Quinn and Chambers. He wondered had they been to Damascus as their conversion was on a par with that of Saul. They were indulging in purely political opportunism, a fact that was to be seen clearly when one looked at the Fianna Fail benches and noted how few of the FF members were in attendance. He had to question the bona fides of Fianna Fail and their commitment to Cllr Quinn’s motion. He said as far as he was concerned Mr Garavan (Shell to Sea spokesman) had hit the nail on the head when he observed that nobody has responsibility for the upstream pipeline.
“That’s the issue and that is what must now, even at this late stage, be addressed. The safety review is the first step in that process and it is rather strange that the Fianna Fail members come in here and talk as if they were not in government when these failures were allowed to happen,” he said. He described the Fianna Fail performance as nothing more than a stunt and “if hand-wringing was an Olympic sport Fianna Fail would have a gold medal for their performance.”
“This (Quinn) motion is cheap and the efforts being made here would be better deployed in the offices of the Minister or the Taoiseach,” said Cllr Munnelly as he called for an end to the “showboating.”
Cllr Patsy O’Brien said no matter what the council did, it would not make any impression on Shell. When an Bord Pleanala turned down the planning there was a huge outcry to have the gas brought ashore. Now with the Rossport Five in jail it was being used as a political football. The Fianna Fail members were jumping on the bandwagon and he did not like that. The opposition could have been avoided if the pipeline had been brought up the Bellanaboy river and for the issue to have got to the present stage was beyond belief. Shell knew there was opposition to the upstream pipeline and yet they ploughed ahead. It was time for the Minister to tell Shell to lift the injunction. He added that what Gerry Coyle had to endure was totally wrong. There was no better man to fight for the people of Erris.
Cllr Gerry Coyle said there had been a lot of truths, untruths, misconceptions and misrepresentations about the project. He was pro gas, pro Erris and pro Mayo. He did not try to ride two horses at one time and was not about to jeopardise the future of the council by doing something daft. He had nothing but respect for the people of Rossport and knew 97% of those who picketed his premises. Many of them could not look him straight in the eye because they knew Statoil would not lose any sleep over the picket. He knew he had caused hurt but he was not going to be a hypocrite. While he was on the council he would stand against hypocrisy and told the Fianna Fail members “the game is up for ye.”
Cllr Eddie Staunton said he was for the gas but he did not agree with the episode that had taken place on Friday (picketing office of Enda Kenny). His heart went out to the people who were in jail and getting them out was the priority. While the men were in jail it would not cost him a thought if the gas never came in. He did not wish to be personal with Tim Quinn but the reality was that even his colleagues in Fianna Fail did not stand with him. “If they had faith in your motion they would be here,” he added.
Cllr Michael Holmes said he had signed for the meeting out of a sense of duty to the men in jail. After three and a half hours of debate he was having second thoughts because it was clear how the decision was going to go. Fianna Fail were the downfall of their own motion as they were not there to support it. The Rossport Five were no closer to getting out of jail and the meeting was only prolonging the agony for them. The reality was that the whole deal would have to be renegotiated and the Rossport Five should not have to spend even one minute longer in jail.
Cllr Paddy McGuinness rejected the suggestion that the meeting was a shambles and was worthless. Cllr Holmes had looked for the meeting and then had a go at both the political parties while at the same time failing to submit a motion himself or make any suggestion as to how the matter could be moved forward.
Fine Gael had taken the issue seriously. They had used their best judgement to bring forward a motion that could get some movement. The council could not get the men out of jail, they could not let them out but they could take the matter to the people who had a duty to seek to resolve the issue. “We believe that dialogue is necessary to get movement and that is what out motion will achieve,” he said. He added that he was opposing the Quinn motion because it would leave the council open to legal action and would not achieve anything in terms of getting the men out of jail.
Cllr Tom Connolly said the inactivity of Minister Dempsey was absolutely shameful and deplorable. He said that Deputy Cowley had acted disgracefully in picketing Enda Kenny’s office… a remark that brought a rebuke from Dr Cowley who was in the public gallery.
Cllr Joe Mellett said the Rossport Five had the support of 100% of people in the county. Nobody wanted to see them in jail. They would have to forget politics and be fully behind any move that could secure their release. He hoped the independent safety review would provide some answers and lead to the release of the men.
Cllr Margaret Adams said she felt sorry for the people of Rossport who had to listen to all the “back-clapping and back-stabbing” that members were indulging in. There were genuine reasons why the absent Fianna Fail members could not be present.
Cllr Austin F O’Malley said he had come to the meeting expecting to hear about the release of the Rossport Five. Instead all he heard was about Shell. He could not understand why the Taoiseach and his Ministers were not making any effort to secure the release of the men. Instead of playing games the Fianna Fail members should be sitting on the Taoiseach’s lap demanding action. It was a disgrace to see the wives of the Rossport Five with tears in their eyes and everyone, FF, FG, Sinn Fein, Labour and Independents should be united to get the men out.
“Those men did absolutely nothing except stand up for their rights and it is a disgrace. Bertie is getting away with murder and the Fianna Fail members are allowing him. If anywhere should be recalled it is the Dail that should be in session to try to resolve this issue,” he declared.
Replying to the debate Cllr Quinn denied that it was a cheap stunt. He had proposed the same motion on July 18 and had no control over what happened later. He had raised the matter at the Fianna Fail caucus and got 100 per cent support for his Shell to sea proposal. He took exception to the remarks made against him personally. He had declared his support for the gas but with the proviso that it be brought ashore safely. “When I believe in a cause I will fight for it. Five weeks ago I met the Five in Cloverhill, I met with Dempsey and O’Cuiv and I met with Shell. I am not defending the Minister, I say what I think and I have the courage of my convictions and I am now putting my motion because I am convinced that there is no solution to this deadlock unless Shell agrees to process the gas at sea,” he said.
When the motion was put the following voted for: Cllrs Adams, Carty, Chambers, Holmes, Moloney, Murray, Johnny O’Malley, Quinn and Ryan. Voting against were Cllrs Connolly, Coyle, Cribbin, Kenny, McGuinness, Mee, Mellett, Mulherin, Munnelly, O’Brien, O’Malley (Austin F), Staunton and Weir.
The motion was declared lost by 9 votes to 13.
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