Now that Shell and the Rossport 5 have fought each other to a standstill, and the political temperature has cooled, the way may be clear for a viable solution to the problem. Although both sides remain deeply entrenched and intensely hostile towards each other, there is a sequence, a solution that might get both sides off the hook.
Clearly the first priority has to be for the men to get out of prison so they can attend talks. If Shell was prepared to stand down the injunction, the men say, they would be able to consider purging their contempt of the court order and so attend those talks.
Shell’s continued insistence that there are legal impediments preventing this simply doesn’t hold water. It may have more to do with the company’s fear of conceding any ground now that might be difficult to recover if the going got tough in the talks. Shell is right though when it insists that there is an issue between the men and the courts, which must first be settled to enable the Rossport 5 to return to hearth and home.
What should have been a cause celebre for the entire nation – the prospect of enough gas to keep this country going for up to a century – has now divided an area, which has long since lagged the rest of the country in its economic development and profile.
Instead, five ordinary men who should be out and about, getting on with their work and their lives, are in prison – convinced that the construction of a high-pressure pipeline so close to their homes poses an unacceptable risk to life, limb and property.
For the Rossport 5, the critical issue is that a high-pressure pipeline will impose an unacceptable health and safety risk that may last long after the Corrib gas field is exhausted. With enormous additional reserves nearby just waiting to be tapped, the men and their supporters wonder why they should bear all of the risks for so little direct benefit, especially as accountability for health and safety seems so muddied.
But there are deeper issues, which are not easily resolved: respect for individual property rights; the ability and willingness of the State to exploit mineral wealth for the common good; the adequacy of our planning laws and oversight arrangements for major infrastructural projects; the need for full and proper adherence to the terms of consents; deference to the environment; respect for the courts and the law itself.
With the project now on hold, all sides have gained valuable breathing space. Shell’s decisions to defer installation of the offshore pipeline; and to suspend construction of the onshore section pending the outcome of the safety review ordered by the Minister, are welcome. Previously, the company also indicated that if the courts were satisfied with the men’s assurances, it would not object to their release from Cloverhill.
Mr Dempsey has done as much as he can for now: the high-level technical group, more broad-based in composition than the departmental division that was responsible for monitoring the project up to now, will select the consultancy that carries out the review, examine its conclusions and ensure more rigorous project monitoring.
The High Court itself has accepted there are significant issues involved and that it is prepared to give these a full hearing once the men purge their contempt of the court order, which was handed down in light of the facts presented and the law as it stands.
Ultimately, there has to be a compromise between the parties themselves, though there is probably enough there already to start a sequence of events that would lead quickly to real talks, with the courts providing a safety hatch if that were needed.
Both sides can save face and make progress by moving to break the deadlock at the same time. Although trust between the parties may not to be that important in terms of the men leaving prison, there does need to be a realistic understanding of the interests of both sides if the subsequent talks are not to founder within hours of beginning.
Shell will not willingly agree to the off-shore refining option because of the cost implications. Nor can the State withdraw the consents it has given without exposing the taxpayer to an enormous liability. Somehow the men must be reassured that every effort can and will be made to minimise the chances of a pipeline rupture.
Essentially, the company needs to get the gas safely to its refinery, while the men need every assurance that it can be taken there safely. The State’s main role at this early stage has to be to take all steps necessary to ensure an adequate safety regime.
What then might be the sequence for getting the men out of prison and into talks, and what might the solution to the substantive problem be? Six bases need to be covered.
First, Shell would reiterate its decision to mothball the project pending talks through a third party, and honour its previous commitment not to object to the men’s release.
Second, the five men would signal that they are prepared to put their trust in the courts to hear and adjudicate on substantive legal issues if necessary; and that as the company is maintaining a moratorium on construction work, there is no need for them to engage in any activity covered by the court order. By announcing that they will trust in the integrity and even-handedness of the courts, the men would create a context in which they could apologise for defying the original court order.
Third, the safety review would be undertaken by a consultancy not linked to Shell.
Fourth, both sides would agree to be bound by the outcome of the review, with the company agreeing to implement any additional measures that may be recommended to assure the safety of the entire gas-pumping and refining infrastructure, including any re-routing or re-configuration of the pipeline for health and safety reasons.
Fifth, government would agree to review the existing regime for exploration and exploitation of mineral and hydrocarbon resources, with a view to realising greater benefits for the state, especially in terms of regional development and job creation.
Finally, Shell would hand over all matters related to the construction of the onshore pipeline to a trusted third party, competent to deliver it to the highest international standards of construction and safety, in line with the approved development plan and consents, having regard to any specific measures contained in the safety review.
Alternatively, the firm would retain responsibility for the construction work, but oversight for the entire project would transfer to the (permanent) high-level group, which would have an appropriately-qualified expert nominated by local people.
It could be argued that the final two proposals are a very big ‘ask’ of Shell and that the company would not willingly agree to them. But even if substantial modifications to the current project were recommended on health and safety grounds, these would still be cheaper than the off-shore facility. It would also give confidence that health and safety issues are the number one concern for both the short and the long run.
Both sides need to accept that making concessions is not the same as admitting or inflicting defeat. Each party has to give something, but neither should feel they are being forced to blink. Compromise is inevitable. It is in nobody’s interest that the men should remain in prison, or for the gas to stay where it is, for one minute longer.
With fuel prices rising by the day, the country needs a stable, secure supply of energy now. Having fought each other to a standstill, the company and the men can deliver it.