By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The developer behind the controversial $12 million Blackbeard’s Cay project will appeal its latest legal reversal to the Privy Council, its attorney yesterday warning opponents against making another 100 Bahamian unemployed “in this climate”.

Wayne Munroe QC told Tribune Business that “an appeal has already been filed” on behalf of Blue Illusions after the Court of Appeal upheld a previous verdict that the developer did not own the project’s eight dolphins.

Dame Anita Allen, the Appeal Court’s president, affirmed the earlier Supreme Court decision that found the dolphins’ supplier, the Honduran-based Instituto De Ciencias Marinas (IMS), was the mammals’ true owner.

“For the reasons, which we will give at a later date, we dismiss the appeal with costs to [IMS]... and affirm the learned judge’s decision, namely that on a true construction of the documents, IMS is the true owner of the eight bottlenose dolphins at Blackbeard’s Cay,” Dame Anita said.

Confirming Blue Illusions’ intention to appeal, while it waits for the Court of Appeal’s written verdict, Mr Munroe said he had been encouraged by the arguments presented at the latest hearing.

“I’m not sure the ownership of the dolphins really matters,” he told Tribune Business, “because there was an agreement that the Hondurans would only get them back if another agreement they struck was terminated.

“If that construction is correct, one of the agreements had them owning, and they can only export them [the dolphins] if that other agreement is terminated. The question is: Was that other agreement terminated?”

Seemingly seeking to allay environmentalist concerns over the dolphins’ safety during/after Hurricane Matthew, Mr Munroe said the protection plans at Blackbeard’s Cay and other Bahamas-based dolphin attractions had “worked perfectly by all accounts”.

With no suffering or injuries reported at Atlantis, Blue Lagoon and UNEXSO in Grand Bahama, the QC praised the Ministry of Agriculture for its insistence on proper protection, with inspections by vets to assess the mammals’ welfare occurring immediately after Matthew’s passage.

“They caused them to be treated better than Social Services treated your children,” Mr Munroe joked.

Blue Illusions, whose principal is St Maarten businessman, Samir Andrawos, is still fighting numerous court battles in a bid to prevent enforcement of a Supreme Court judgment, and subsequent ‘penal notice’, requiring the Blackbeard’s Cay project to be shut down.

Its problems stem from a successful Judicial Review challenge by the environmental activist group, reearth, which resulted in Justice Stephen Isaacs quashing the development’s approvals because the Government had failed to follow its own statutory permitting processes.

To prevent the enforcement of this ruling, Blue Illusions has initiated separate legal actions, one of which saw the same Justice Isaacs, on April 8, 2016, stay any government efforts to close down Blackbeard’s Cay.

To date, the cruise passenger getaway destination, which is located on Balmoral Island, off New Providence’s north coast opposite Sandals Royal Bahamian, has been able to continue operating in defiance of the Judicial Review judgment for more than two years.

Mr Munroe, though, told Tribune Business that the ongoing litigation was impeding Blackbeard’s Cay’s ability to grow and plan, plus jeopardising the jobs of its existing 100 staff.

“That is the concern,” he told Tribune Business. “No businessman likes litigation, and all along the way I try to civil matters as much as I can...

“But for businessmen it does affect their ability to do long-term planning. We’re dealing with the Government saying they want to do a re-consultation for the grant of the license in the proper fashion. We don’t accept that the first one was done improperly.

“All this creates uncertainty. There are 100 Bahamian employees out there, and we don’t want to see another 100 Bahamian unemployed; not in this climate.”

Mr Munroe described the Blackbeard’s Cay staff and the dolphins as “like a little family over there”, adding that the potential loss of his $12 million investment - if Blackbeard’s Cay was to be shut down - was “the least” of Mr Andrawos’s worries.

Should a ‘worst case’ scenario occur, Mr Munroe said his client would simply sue the Government to recover its loss, having previously alleged that it had failed to defend Blackbeard’s Cay’s interests during the reearth Judicial Review hearings.

However, the potential loss of the project’s dolphins and their export to Honduras, which has been brought a step closer by the Court of Appeal ruling, represents a potentially significant blow for Blackbeard’s Cay.

For the dolphins are its primary attraction, and their loss would reduce the project’s allure for its primary cruise passenger customer base.

Justice Milton Evans, in the original December 17, 2015, ruling on the ownership issue, rejected much of Mr Andrawos’s evidence and branded him as “evasive and untruthful”.

Justice Evans also suggested that some of the documentary evidence presented at trial implied that the dolphins’ importation into the Bahamas was structured to evade import taxes.

He told attorneys for both sides that the documents “could give rise to the conclusion” that the Government was defrauded of due Customs duty, given that the dolphins were not accurately valued.

Both Blue Illusions and the Honduran-based Instituto De Ciencias Marinas (IMS) denied “any knowledge or intent” to defraud, and Justice Evans confined his ruling to determining that the latter was the dolphins’ true owner.

Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, and Kevin Moree represented IMS at the Court of Appeal hearing as well as at the Supreme Court.