A proposal which could lead to the release of five men jailed after they refused to give undertakings not to obstruct installation of a high pressure gas pipeline in Co Mayo will come before the High Court on Thursday. The five have been imprisoned for almost two weeks.
The case was before the president of the High Court, Mr Justice Joseph Finnegan, on three separate occasions yesterday before being adjourned until Thursday when new attempts are expected to be made to have the men freed.
The five men are in prison on foot of an order of April 4th last which required them and others not to obstruct or interfere with the entry by the Shell company on to lands for the purposes of "preparation, construction and installation" of the pipeline.
Yesterday, it was submitted on behalf of the protesters that ministerial consent had been given only for preparatory work to be carried out for the gas pipeline. It was argued no consent had been given for the actual construction.
On behalf of Shell E&P Ireland Ltd, it was submitted that, at this point, it is only doing preparatory work.
When the case came before the judge yesterday afternoon, Mr Patrick Hanratty SC, for Shell, said it proposed to put in a proviso stipulating that works would be carried out only in accordance with ministerial consent under the Gas Act.
Peter Bland, for some of the protesters, said the proposal by Mr Hanratty went some way to meet his clients' concerns. He asked for time to consider the matter and the case was adjourned until 10am on Thursday.
Mr Bland also said he would be seeking an injunction restraining Shell E&P Ireland Ltd from carrying out "any works of installation" of the gas pipeline through lands at Rossport, Co Mayo, unless or until such works are authorised by an appropriate consent pursuant to the provisions of the Gas Act, 1976.
Earlier, one of the five protesters, James B Philbin, said he wished to be represented by another counsel and also asked for time.
When adjourning the proceedings, the judge, referring to the proposed injunction application, said it seemed to him a ludicrous proposition that a person might come to court seeking its assistance when they themselves were in flagrant breach of a court order.
Earlier, when the judge heard that some of the protesters would be happy to express their regret for disobeying the court order if it was varied, the judge said that was not the same as purging their contempt.
In an affidavit, three of those in jail - Phillip McGrath, James B Philbin and Willie Corduff, all of Rossport South - said the court order, of April 4th last, appeared to have been made on the basis that it was lawful for Shell E&P Ireland "to enter on to our lands for purpose of installing a gas pipeline". They said the consent given by the Minister pursuant to section 40 of the Gas Act was limited. The extent of the limitation was in a letter written on behalf of the Minister dated July 9th, 2002.
This stated that the approval given to carry out "phase 3 preparatory works" was exclusive to surveying and setting out; erection of right of way fencing; making of trial holes; preparation of temporary access points and roads; and construction of temporary compounds along the proposed onshore pipeline route.
The consent specified that "no phase 3 works, apart from preparatory works specified in the approval" were to be carried out without further specific approval. There was as yet no consent by the Minister for construction and installation, it was stated.
The affidavit said the opposition of the three to the pipeline at Rossport was founded on their concern and conviction that the installation of the pipeline on their lands would give rise to a significant risk of explosion and resultant injury to their families.
They believed the company had wrongfully commenced the installation works for the pipeline in the absence of a consent from the Minister.
