Shell-Corrib Gas: Current High Court Proceedings – June ‘05

mayo | rights, freedoms and repression | opinion/analysis Friday June 10, 2005 15:48 by Ed - Rossport Pipeline Resistence

there is no proof authorization for this confiscation of rights

At the end of March, 2005, an injunction was granted to Shell (SEPIL) by the High Court restraining the defendants from refusing to allow pipe-laying on their lands. As of Tuesday last the period of injunction ended with the commencement of the legal proceedings proper, but again the high-profile Shell legal team managed to obtained a deferral for several further weeks.

Shell-Corrib Gas: Current High Court Proceedings – June ‘05
Background:
At the end of March, 2005, an injunction was granted to Shell (SEPIL) by the High Court restraining the defendants from refusing to allow pipe-laying on their lands. This happened despite Shell’s failure to show proof in court that Compulsory Acquisition Orders (CAOs) had actually been signed by the relevant Minister. To date there is no proof authorization for this confiscation of right from the owners and subsequent beneficial grant to the Plaintiff, Shell.

The court proceedings took place over four separate appearances which were spread over several weeks at great cost and inconvenience to the landowners. This protracted exercise suited Shell whose tactics throughout the Appeals process and Oral Hearings have been marked by such harassment, gratuitously inflicted burdens and threat of intimidating costs.

In brief, the grant of an injunction is based on considerations of equity (i.e. the common law concept of fairness) and its purpose is to “freeze” matters until considerations of statutory law can be brought before the court. Shell had not entered on the defendants’ lands prior to the injunction application though it claimed to have had that CAO right for well over two years. The landowners had contested this at all times and Shell failed to show proof at any time eventhough the landowners stated their willingness at all times to permit entry on production of such proof.

The principle of laches alone should have ensured refusal of an injunction to Shell. (That is, where a right has been granted, proof that it has not been exercised in due course is ground for refusing its exercise as a matter of claimed urgency.) Not only did Shell not produce proof of authorization by the relevant Minister to the High Court, as requested by the Court, but it failed to explain the two and a half year delay. (It claimed the delay arose pending receipt of Planning Permission for the terminal-cum-refinery but it still does not have an equally necessary IPPC licence – i.e. permission to pollute – from the EPA.)

Nevertheless, Shell’s high-profile legal team managed, against all these odds, to obtain an injunction which was not only contrary to the status quo but enabled Shell to claim the high moral ground contrary to equity and natural justice. The fact that money and influence can buy this kind of representation, which can achieve such incongruous advantage, indicates an awesome gap between constitutional guarantees and delivery. Ironically, a corporation has no standing under the constitution other than through the legal fiction that it is a person!

As of Tuesday last the period of injunction ended with the commencement of the legal proceedings proper, but again the high-profile Shell legal team managed to obtained a deferral for several further weeks. This is in effect an extension of the injunction and the ‘rough’ transcript below gives a glimpse of the valiant efforts made by two defendants who are representing themselves against the delaying and obfuscating tactics of their eminent opposition.


"If they are wrong compensation will be paid. Isn't that what compensates everyone?"

Shell V's McGrath and others.

Case for mention in High Court: Tuesday 7th June, 2005, at 11am.
Presiding Judge: President of High Court Justice Finnegan.
Plaintiffs represented by: Patrick Hanratty S.C.
Litigants: McGrath & Corduff represented by Michael Ford S.C.
Philbin & McGarry represented themselves.
Muller not represented.

Rough transcript from 11:20am on.
Judge - Just because I thought it was right to give an injunction Against the landowners doesn't mean I was right. A hearing will determine that.
Philbin - I want the Minister for the Marine for 2002 in court to Testify whether he signed the original order or not.
Judge - You can do that at a hearing not today.
Philbin - The plaintiff argued in seeking the injunction that the Facility was in the national interest. The government has thus facilitated a private company from getting a Compulsory Acquisition order for the companies own private gain. The Irish state will be buying this gas back from Shell at top dollar. How can this be in the national interest?
Judge - It might not be in the national interest. If they are wrong compensation will be paid. Isn't that what compensates everyone?
Philbin - Money can't fix safety.
Judge - It's not my job to determine safety. It's Mr Hanrattys to prove It is safe and yours to prove it is not.
Philbin - That's why we are here. If the company had done their Homework they would know they can't put such a pipeline through a residential area.
Judge - I have to be satisfied that injunction was correct decision to make and as such want to get to the hearing as quickly as possible.
Philbin - Very well.
END Mr. Brendan Philbin.

START - Ms. Bríd McGarry
McGarry - Why is todays hearing not in Mayo. It is most inconvenient for us.
Judge - That's not my fault.
McGarry - There was a piece in the Times of May 10th written by Lorna Siggins stating that Shell knew then that B.P.A .were part owned by Shell. However they have stated since that they did not know until May 25th. In addition to this I want some other documents made available to me, the original QRA plus some other discoveries.
Judge - Mr. Hanratty has assured me that he will get them.
McGarry - I want to return to the point about when Shell knew the consultants were part owned by Shell. It goes without saying that the Minister should have known from the start that the British Pipeline Agency were Shell. I have the letter from Eugene Collins which proves that Shell engaged in fraudulent concealment. Shell are thus in contempt.
Judge - That is a matter for the hearing. I will not be dealing with that.
McGarry - Apart from that there is the matter of affidavits.
Judge - Affidavits are water under the bridge now.
McGarry - I am a lay litigant. I have not been furnished with 1st, 4th, 5th , 6th , 7th claim/counter claim.
Judge - I will sort that out.
McGarry - The plaintiff has yet to receive their EPA pollution licence. This is another matter which shows what a fiasco the whole thing is. Lorries are going off the road goodo in Mayo.
Judge - I am attempting to get a deadline for the receipt of all outstanding documentation. June 29th.
McGarry - Just on another point. Can the plaintiff determine Health & Safety issues before the pipeline is laid?
Judge - Safety was not the point of the injunction. If they get it Wrong you get money. That's it.
McGarry - Surely as a resident I have rights?
Judge - There are conflicting views here. The hearing will decide.
McGarry - The difference between me and the company is that the company should not have constitutional rights whereas I should.
Judge - There are incidents where rights apply to different parties.
McGarry - I want to see all documentation.
Judge - For mention again on June 29th.