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For Immediate Release
Press Release November 27th 2020: 


Ten Grounds for an immediate Northern Ireland Executive Decision on a Moratorium on Petroleum Licensing

To implement the Will of the Assembly expressed in the unanimously-passed motion of October 13th, 2020 which 

calls on the Executive to instigate an immediate moratorium on petroleum licensing for all exploration for, drilling for and extraction of hydrocarbons until legislation is brought forward that bans all exploration for, drilling for and extraction of hydrocarbons in Northern Ireland.”

 

1.    Minister Dodds misled the Assembly on the day of the Motion saying Tamboran had proposed a revision of their work programme that “will remove the need for fracking” but it was only a proposal not to frack one test well.

2.    Completely ignoring the petroleum licensing moratorium motion passed in the Assembly one day earlier, the Department for the Economy (DfE) still insisted in awarding a research study into onshore petroleum exploration, at a cost to the public purse of GBP 65,810.

3.    An internal DfE report to the Permanent Secretary itself stated that if the research went ahead - which it has - then there must be a consideration of  “the need to formally suspend the licensing regime to provide space to analyse the evidence from the research and develop a coherent, informed policy position”.

4.    A litany of Financial irregularities has shown that DfE, with no outside scrutiny or sanction, has failed in its due-diligence obligations in the validation of the current petroleum licence applications. These included the fact that no audited accounts were supplied by any of the applicants along with the fact that the DfE could not even ascertain who the ultimate beneficial owners of Tamboran were because the Isle of Man Financial Services Authority refused to give that information to John White of the DfE when he requested it on December 15th, 2017 on the grounds that DfE was not a law enforcement agency.

5.    Minister Dodds has claimed she had not received any recommendation, explicit or otherwise, to grant licences to EHA and Tamboran but her department officials have already done so by validating the license applications, publishing its opinion and making the public interest decision in December 2018 - noted by her predecessor Minister Simon Hamilton.

6.    Minister Mallon’s recent removal of  permitted development rights (PDR) for gas exploration has granted the public a voice but also added certainty for the oil and gas industry. However, with the exit of the UK from the EU and extra powers being vested in DAERA, the concern now is that a pathway for an onshore oil and gas industry via regulation is being created, as an unforeseen consequence (to the advantage of EHA and Tamboran) until DfI updates its planning policy (SPPS) to have a presumption against all hydrocarbon exploration and extraction development.

7.    Minister Dodds confirmed that the Research Study would not be making “any recommendations in relation to the grant or otherwise” of the current petroleum license applications by EHA and Tamboran.

8.    Fracking has been banned in Ireland since 2017 on public health and environmental grounds. The Northern Ireland Executive must take cognisance of the transboundary implications of granting petroleum licenses, especially on border communities directly affected by such decisions and strive for an alignment of energy policy in mutual areas of impact and concern.

9.    A litany of conflict of interest concerns surrounding the GSNI advisors to DfE, with 2 former GSNI directors now working for Tamboran, has been uncovered which now requires oversight from the Executive.

10.  There is a growing public consensus against fracking and drilling with over 5,700 official submissions made against the Tamboran and EHA license applications; a local Fermanagh petition against the research study gathering 627 signatures, motions from Fermanagh and Omagh District Council calling for a ban on oil and gas prospecting in the DfI Strategic Planning Policy Statement; almost half of the Dail TDs signing up to a pledge against fracking in Northern Ireland and over 80 groups calling for an immediate ban on fracking in Northern Ireland.

 

 

Detailed Discussion of The case for an immediate Northern Ireland Executive Decision on a Moratorium on Petroleum Licensing

 

Implementing the Will of the Assembly as expressed in the unanimously-passed motion of October 13th, 2020:

 

That this Assembly recognises the moratoria, in various forms,on fracking in England, Scotland and Wales and the ban on fracking in the Republic of Ireland; notes that this motion builds on the 2015 strategic planning policy statement presumption against the exploitation of unconventional hydrocarbon extraction in Northern Ireland; acknowledges its responsibility to protect public health and the environment; and calls on the Executive to instigate an immediate moratorium on petroleum licensing for all exploration for, drilling for and extraction of hydrocarbons until legislation is brought forward that bans all exploration for, drilling for and extraction of hydrocarbons in Northern Ireland.” 

 

Ten Grounds of immediate concern for bringing the issue of Petroleum Licensing directly to the Executive:

 

1.            Minister Dodds told the Assembly on October 13th that “Tamboran Resources (UK) Ltd, made a request to the Department to revise its application. The proposed revision will remove the need for fracking”. 

            However, Tamboran itself contradicts this assertion since it confirmed on March 3rd 2020 that it only “wishes to slightly revise the Work Programme to remove HVHF [High Volume Hydraulic Fracturing] and utilise conventional techniques for testing the well”. This proposed revision only concerns the Work Programme testing of one well during the initial 5 year “exploration” term of a 30-year licence. The second 5 year term  - the Development phase - requires the submission of the ‘Field Development plan’ which has not been submitted whereas  the third term - the Production phase lasts for 20 years. On February 13th, 2018, Tamboran submitted the original Work Programme which was also of only 5 years duration and has never asserted that it would forego fracking for the 25-year Development and Production phases. The factually-incorrect narrative that Tamboran will “remove the need for fracking” has also been repeated in the media with the BBC running with the titles “NI Assembly hears of Fermanagh fracking change” and “Fracking: Tamboran to use 'conventional' drilling in shale gas search” and needs to be addressed by the Executive

 

2.            On October 14th, completely ignoring the petroleum licensing moratorium motion passed in the Assembly one day earlier, the controversial DfE “Research study into the potential economic, societal and environmental impacts of onshore petroleum exploration in Northern Ireland” was awarded to Hatch Associates Limited in London (headquartered in Calgary, Canada) at a cost of GBP 65,810.

 

3.            On November 19th 2019, the case for instigating a formal moratorium of petroleum licensing if the research study was commissioned (which it now has been) was supported by DfE officials themselves in an internal submission to the Permanent Secretary as follows:

            While Scotland and Wales were considering their policy position on petroleum licensing, they called a moratorium on new licence applications [DN: is this still in place?]. In the absence of a Minister and having previously considered the public interest test requirements under the Executive Formation & Exercise of Function Act 2018 (EFEFA), the Department concluded that given it is both controversial and cross-cutting, any decision on the award of a petroleum licence could not be taken by civil servants. This has in effect created a moratorium on decisions on new petroleum licence applications in Northern Ireland at this time. In the event that a Minister were to be in place before the research and policy development work was completed, it would be necessary to take legal advice on the need to formally suspend the licensing regime to provide space to analyse the evidence from the research and develop a coherent, informed policy position.

 

4.            Minister Dodds also told the Assembly on October 13th that “I have taken legal advice on the matter and have been advised that the course of action proposed in the motion would, most likely, be subject to challenge.” However, The Hydrocarbon Licensing Directive Regulations (Northern Ireland) 2010 section 4 states that  The Department “may refuse an application for a licence” as long as it is not done in a “discriminatory manner”. At the very least, the Minister should explain this advice to the Executive and clarify if this advice was given on the questionable understanding that the licence applications were validated correctly in the first place.

            A litany of Financial irregularities has shown that the Department for Economy, with no outside scrutiny or sanction, has failed in its due-diligence obligations in the validation of the current petroleum licence applications. These included the fact that no audited accounts were supplied by any of the applicants along with the fact that the DfE could not even ascertain who the ultimate beneficial owners of Tamboran were because the Isle of Man Financial Services Authority refused to give that information to John White of the DfE when he requested it on December 15th, 2017 on the grounds that DfE was not a law enforcement agency.

 

5.            Minister Dodds stated on September 24th 2020: “I have not received any recommendation, either explicit or otherwise, from my Department on whether or not I should grant the two Petroleum Licence applications PLA1/16 and PLA2/16”. However,

a.      The fact that two Public Interest Decisions were made in December 2018 on the EHA and Tamboran applications (as obliged following the advice from the Secretary of State published in November 2018, and under the authority conferred by the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018), is itself an implicit and explicit acknowledgement that a recommendation to approve both licenses was made.

b.      The Public Interest Decision of December 20th, 2020 for the EHA application clearly stated that “If the Department were to proceed to the normal consultation process, this requires the Department to come to a decision in the absence of a Minister i.e. that all things being equal it would award a PL.” and  that “While Minister Hamilton had noted DfE’s intention to award and to move to consult, this process was halted under pre-election guidance”. meaning Minister Hamilton had already received a recommendation on the current EHA license application.   

c.      The Department already published its opinion that it is “by no means the case” that there are “actual” adverse environmental and health impacts from fracking in Northern Ireland and that fracking can be mitigated “to an acceptable level” on December 21st 2018, one day after publishing its Public Interest decision on December 20th 2018.

d.      The Department has attempted to remove the ban in the Fermanagh and Omagh District Council, Local Development Plan, in spite of an unanimous vote by the Council Members to maintain the ban.



6.            There are perceived conflict of interest concerns for Minister Mallon, which may need to be addressed in the context of voting on petroleum licensing within the Executive due to the fact that her husband is the named EHA public liaison officer in the EHA licensing application submitted to DfE. Specific concerns for the Infrastructure Department which must still be dealt with if DfI does not urgently update its policy to have a presumption against development consent for all hydrocarbon exploration and extraction (an approach which already took place in England, Scotland and Wales), and these concerns include:

a.      The removal of permitted development rights (PDR) for gas exploration was announced on October 5th, 2020 by Minister Mallon may be seen as regulation of  the petroleum industry in Northern Ireland and a signal to the market that Northern Ireland is open for gas exploration without a policy decision at the Executive level. Businesses seek regulation as it gives them a clear pathway. The removal of PDR rights granted the public a voice but also added certainty for the oil and gas industry. However, with the exit of the UK from the EU and extra powers being vested in DAERA, the concern now is that a pathway for an onshore oil and gas industry via regulation is being created, as an unforeseen consequence. 

b.      By creating a planning process for gas exploration in Northern Ireland, Minster Mallon, with no supporting research, is either implying that it is possible to have a gas industry in Northern Ireland without Fracking - as asserted by Minister Dodds in the Assembly on October 13th, 2020  - or else she is undermining her Department’s own effective ban on Fracking.  

c.      A new planning process per gas well is ignoring the cumulative adverse public health impacts of thousands of gas wells in Northern Ireland as each application is assessed individually. One other consequence of the removal of PDR rights is that any drilling or exploration work now comes under the planning process.  Therefore it now comes solely within the SPPS remit. There are now no barriers to updating the SPPS with a presumption against all drilling for, exploring for and extraction of oil and gas.

d.      The Research Study will undermine the effective ban on fracking. The Department has preempted the decision from the Executive on whether the licences should be awarded by commissioning a report into fracking before the Executive decides. The wording of the Strategic Planning Policy Statement (SPPS) (section 6.157) states:“in relation to unconventional hydrocarbon extraction there should be a presumption against their exploitation until there is sufficient and robust evidence on all environmental impacts”.Therefore, commissioning this report is effectively removing the ban on fracking in Northern Ireland, before the Executive has made a decision. The published aim of the research outwardly covers all the caveats of the SPPS policy ban on fracking, namely “research into the economic, societal and environmental impacts of future onshore petroleum exploration and production, including Unconventional Oil and Gas (UOG), in Northern Ireland”. This report removes the last legal loophole created by the SPPS in 2015 as the device that has effectively banned fracking in Northern Ireland.

e.      The Public Interest Decision on the Tamboran application in December 2018 noted that the SPPS effective ban on fracking would only be “likely to become a point of challenge at a later stage should exploratory activity be successful”. The concern here is that DfE is implying the ban on fracking only applies at the 20-year production stage (exploitation) and not the 10 year exploration and development phases preceding the production phase.

 

7.            On September 17th, 2020 Minister Dodds confirmed that the Research Study would not be making “any recommendations in relation to the grant or otherwise” of the current petroleum license applications by EHA and Tamboran - which should not prevent other cross-cutting Departments making a decision on these applications now in the Executive. 

a.      Minister Dodds stated that “the findings of the research will be used to inform the department’s policy development process

b.      The Department has stated that its policy objective is pro-licensing: “DfE’s policy objective is to maximise successful and expeditious exploration and exploitation of Northern Ireland’s oil and gas resources, and all decisions will be made with regard to that policy.”, but other Departments do not obviously have the same objective and this policy cannot be imposed on other Departments without an Executive decision.

c.      The November 19th 2019 internal review by DfE also found that “Benchmarking with others, such as Scotland and Wales, and preliminary discussions with colleagues in DAERA, DfI and NIEA has clarified that it can no longer be assumed that there is broad acceptance of the need to explore for and extract geological resources. Therefore, there is a need to determine if there is still a sufficient evidence base to support a policy to explore for, and extract, local geological resources.” Therefore, DfE officials accept that the current DfE policy supporting exploration and exploitation is not held by other impacted Departments and DfE is in the process of determining if it also needs to change its own policy as a consequence. 

d.      On November 2nd, 2020, a leaked report commissioned by DfE highlighted a lack of coherence and party political influence in the development of Stormont energy policy. It recommends  that responsibility for energy policy be transferred to the Executive Office, as this could provide a “powerful combination of both political leadership and expert scrutiny”. The report warns that without major changes the key aim of achieving so-called net zero by decarbonising energy consumption will be put at risk. As the report highlights current energy-related policy across no fewer than five departments, it is clear that the DfE should not have a monopoly on when the decision on petroleum licensing is made in the Executive, while it gets its own house in order.

e.      Question marks also hang over the dropping of 3 Judicial Reviews taken by Tamboran against what are now the Departments for Economy (DfE) and Infrastructure (DfI) on 17 January 2018 - "amicably resolved by all three parties".  It is highly questionable how Tamboran could reapply for a petroleum license in September 2016 and only withdraw its 3 Judicial Reviews once its licence application had first been validated by DfE on November 12th, 2017 - 2 months earlier. No agreement on why the 3 cases were withdrawn was ever made public. This issue should be clarified within the Executive.  

 

8.            Fracking has been banned in Ireland since 2017 on public health and environmental grounds.  The Northern Ireland Executive and the Irish Government must both take cognisance of the transboundary implications of their respective petroleum licensing decisions, especially on border communities directly affected by such decisions, and strive for an alignment of energy policy in mutual areas of impact and concern.

  

9.            Another litany of conflict of interest concerns surrounding the advisors to DfE has been uncovered which now requires oversight from the Executive

a.      In simple terms, the conflict of interest concern is that the fracking industry has huge influence over the pro-fracking British Geological Survey (BGS), which in turn controls the Geological Survey of Northern Ireland (GSNI). GSNI, in turn, advises and influences the Department for the Economy (DfE) which is currently undertaking a research report that will remove the effective fracking ban in Northern Ireland - a report whose terms of reference dictate that GSNI will be working directly with its former directors Garth Earls and Tony Bazley who now work for Tamboran. 

b.      GSNI should not have been directly “coaching” applicants for fracking licences in Northern Ireland - especially Tamboran whose senior management were their former managers in GSNI - while at the same time being advisors to the government department assessing those same applications. It seems that fracking companies like Tamboran operate a revolving-door system for financially enticing ex-directors of BGS and GSNI, which clearly demonstrates the serious conflict of interest problems of  independence, objectivity and transparency of BGS and GSNI in their roles in advising government departments.

c.      The biggest conflict of interest concern of all is that the Department itself has a policy of expeditiously developing an oil and gas industry in Northern Ireland, with no concern at all for adverse impacts on the environment or on public health. As the Oil and Gas Authority in the UK has the same outdated policy that is allowing fossil projects to be forced through, this is now attracting increasing legal attention

 

10.         Evidence of Public concern and consensus against fracking is increasing

a.      The petition against the research into fracking in Fermanagh has 627 signatures

b.      Over 5,700 submissions were made on the public consultations on the two current license applications by Tamboran and EHA with an almost universal objection rate

c.      Almost half of the TDs elected to the Dail in 2020 signed a pledge stating that they were "opposed to fracking in Northern Ireland". Before the 2020 General Election, in their #Pledge4Climate campaign, environmental NGOS 'Love Leitrim', 'Friends of the Earth' and 'Safety Before LNG' obtained support from at least 193  candidates for the General election held on February 8th, 2020, for the pledge which stated:

       "I am opposed to the importation of US fracked Gas into Ireland via LNG import terminals. If elected, I, as a T.D., will work to find a way in the next Dail to prevent fracked Gas from entering the Irish energy mix via fixed or floating LNG terminals. I am opposed to fracking in Northern Ireland. If elected, I, as a T.D., will work constructively in the next Dail to prevent fracking from taking place in Northern Ireland". 

 

       74 of those candidates were elected and this included all the elected T.D.s from the Labour Party, The Social Democrats,  People Before Profit, The Green Party, Independents for Change, and Sinn Fein,  along with leading elected Fianna Fail and Fine Gael T.D.s Eamon O'Cuiv, Marc McSharry and Frank Feighan.  

       These numbers were boosted by the clear positions against Fracking taken by Fianna Fail in the Dail on October 3rd, 2019 "in recognition of the health and climate impacts of exploiting shale gas reserves". 

d.      On October 22nd, 2020 Fermanagh and Omagh District Council passed a formal motion against fracking and fracked gas imports, as follows:

       "That this council restates its opposition to shale gas exploration and extraction by the process of hydraulic fracturing, otherwise known as 'fracking' and further opposes the importation of fracked gas to the island of Ireland.

       Furthermore, that this Council, having already recognised that we are in a climate emergency; being aware of the environmental damage caused by fracking and all forms of exploration and extraction of fossil fuels; and furthermore aware of our duties under the Paris Agreement to drastically decarbonise to limit global warming to 1.5 degrees by the end of the century, again calls on the Minister for the Economy to place an immediate moratorium on the issue of all petroleum licenses, acknowledges the Minister for Infrastructure amending the regulations around permitted development rights and calls on that Minister to now place a ban on prospecting for oil and/or gas and update the 'Strategic Planning Policy Statement accordingly."

e.      A call for an immediate ban on Fracking in Northern Ireland was signed by over 80 groups in October 2020

f.       Mid Ulster District Council passed the following Motion calling on the Executive to enact an immediate ban on petroleum licensing and immediate rejection of the current license applications by EHA and Tamboran on November 26th, 2020:

       "This Council recognises that we are in a climate emergency, notes that this motion builds on the 2015 Strategic Planning Policy Statement presumption against the exploitation of unconventional hydrocarbon extraction, acknowledges its responsibility to protect public health and the environment, and in light of the Assembly's unanimous motion on 13th October which called for a moratorium and legislative ban on petroleum licensing for all hydrocarbon exploration, drilling and extraction, this Council calls upon the Executive to enact an immediate ban on all such petroleum licensing and agrees to write to the Minister for the Economy requesting that the current applications (PLA1/16 and PLA2/16) for petroleum licences be immediately rejected." 

 

Procedure for Bringing a Decision to the Northern Ireland Executive

Section 2 of The Northern Ireland Ministerial Code outlines the decision-making process in the Northern Ireland Executive (i.e. the Executive Committee) as provided for under section 28A of the Northern Ireland Act 1998 as amended.

Section 20 of Northern Ireland Act
1998 and Section 2.3 of the Ministerial Code require the NI Executive as a whole to take decisions on any ‘significant’ and ‘controversial’ matters, which had not already been agreed in the Programme for Government.

 To determine whether a decision which ministers wish to take or have taken relates to a matter that ought to be considered by the Executive Committee, Section 2.5 of the Ministerial code states:

“Where a Minister or junior Minister wishes the Executive Committee to make such a determination, he or she shall set out in writing the details of the decision taken or to be taken, and why he or she believes it is or is not covered by paragraphs 2.4 (i) to (v) above, and seek the views of the Executive Committee. The Executive Committee should normally make a response at its next meeting

Section 2.4 lists out the types of decision that must be brought to the Committee by the Minister responsible - including if these decisions are cuts across the responsibilities of two or more Ministers,  require agreement on prioritisation,  require the adoption of a common position, and is significant or controversial, 

 Section 2.11 of the Ministerial code states:

“The agenda for Executive Committee meetings will be agreed by the First Minister and deputy First Minister, taking account of proposals made by Northern Ireland Ministers.”

 Section 2.12 of the Ministerial code goes on states:

“In accordance with Section 28A (8) it is the duty of the Chairmen of the Executive Committee to seek to secure that decisions of the Executive Committee are reached by consensus wherever possible: if consensus cannot be reached, a vote may be taken, and if any 3 members of the Executive Committee require the vote on a particular matter which is to be voted on by the Executive Committee to require cross community support, any vote on that matter in the Executive Committee shall require cross community support in the Executive Committee. ”Cross community support” shall have the same meaning as set out in Section 4(5) of the Act. A quorum of 7 members will be required for any vote. The requirement for cross-community support must be requested prior to a vote actually commencing.”

 In addition section 20(7) of the Northern Ireland Act gives extra powers to the Minister for Infrastructure as follows:

“Decisions may be made by the Department for Infrastructure or the Minister in charge of that Department in the exercise of any function under—

            a.            the Planning Act (Northern Ireland) 2011 (except a function under section 1 of that Act); or

            b.            regulations or orders made under that Act,

without recourse to the Executive Committee.”  







End.
Contact:
John McElligott
Safety Before LNG
(087-2804474)
SafetyBeforeLNG@hotmail.com