LEGISLATION PASSED by the Government more than six years ago to facilitate the Corrib gas onshore pipeline was flawed, according to Labour Party president Michael D Higgins.
Corrib gas developer Shell EP Ireland is now applying for a new pipeline route under different legislation because it may be aware of the legal difficulties rather than because it wants to address “community concerns”, Mr Higgins claims.
The company applied to An Bord Pleanála for permission for a modified route last week under the Strategic Infrastructure Act.
Legal advice obtained by Mr Higgins states that the flawed legislation which facilitated access to lands for the original pipeline route was passed by then minister for marine and natural resources Frank Fahey in late 2001.
Just over a year before, in September 2000, Taoiseach Bertie Ahern had transferred regulatory power over “any upstream pipeline network” from the Minister for Public Enterprise (then responsible for An Bord Gáis) to Mr Fahey.
Mr Fahey, who issued a number of key approvals for the controversial project before the 2002 general election, introduced Statutory Instrument (SI) 517 under EU legislation in November 2001.
This set a precedent for a private company acquiring access to privately owned land, by way of CAOs (compulsory acquisition orders) issued by the relevant minister. CAOs were then issued to landowners along the route of the proposed high pressure pipeline, linking the gas field off the Mayo coast with a proposed refinery located inland at Bellanaboy.
During this period, Enterprise Energy Ireland, developer of Corrib, was taken over by Royal Dutch Shell in a €6.5 billion deal. Opposition by some of the 34 landowners on the route led to protests and the jailing for 94 days in late June 2005 of the “Rossport Five”.
Mr Higgins said his legal advice was that there were several problems with Mr Fahey’s statutory instrument. A European directive, which Mr Fahey was transposing into Irish law, contained “nothing at all” on the subject of compulsory acquisition, whether by the private or public sector.
The legislation had to be amended the following year by the then minister of state for public enterprise Joe Jacob, under the Gas (Interim) (Regulation) Act 2002, which revoked Mr Fahey’s regulations and endeavoured to regulate the CAO issue under section 32 of the 1976 Gas Act. Mr Higgins said that at no point did the Government give the full reasons for these changes during the debates on the Gas (Interim)Regulation Act 2002 in the Dáil and Seanad.
“Obviously a political decision had been taken to try short-cuts and Frank Fahey’s statutory instrument was found to be invalid,” Mr Higgins said. “To think that such invalid legislation could have been applied to prosecute landowners in Mayo is outrageous.
“We may now be faced with going back over every aspect of legislation permitting this project and questioning its legal validity.”
Shell EP Ireland last week applied for CAOs to An Bord Pleanála, under the Strategic Infrastructure Act, for a modified pipeline route. The company has said it identified this modified route “in keeping” with the report issued by mediator Peter Cassells in July 2006. The route is double the minimum distance from occupied housing and takes into account “community concerns and environmental and technical issues”, the company says.
However, Mr Higgins said he believed the change was being made because original consents for the first pipeline route were legally unsound. “Many points of law remain in place in relation to this new pipeline route and it is a great pity that the opportunity for moving forward is not being taken by the Corrib gas developers.”
He was referring to the recent compromise proposal for relocation of the Corrib terminal or refinery to the coast, which would obviate the need for an onshore pipeline at all. The proposal, made by a group of Erris residents, has won the support of Bishop of Killala Dr John Fleming. Fine Gael TD Michael Ring last week called on Shell and Minister for Energy Éamon Ryan to respond positively. However, Shell rejected the proposal.
Shell EP Ireland was unavailable for comment on Mr Higgins’s statement.
