Thursday, May 18, 2017
By NEIL HARTNELL
Tribune Business Editor
Environmental activists yesterday demanded that the newly-elected government cancel the controversial Blackbeard’s Cay project’s latest bid to obtain planning approval, and urged it to “do right by the public” by shutting it down.
Sam Duncombe, founder of reEarth, the group that won a near three year-old Supreme Court verdict that quashed the controversial $12 million development’s permits, urged the Minnis administration to cancel the May 25 meeting over its new Site Plan Application.
Expressing hope that the new administration’s election would cause a change in attitude towards Blackbeard’s Cay, Mrs Duncombe said the Government’s failure to enforce the rule of law cannot continue.
“With the statement by the Prime Minister that they want to be accountable and do right by the public, I’m hoping this is one of those cases where the Government will be doing that,” she told Tribune Business.
reEarth earlier this month vented its outrage that the Department of Physical Planning had announced a May 25, 2017, public meeting at its offices to review the Site Plan Application (SPA) submitted by Blackbeard’s Cay developer, Blue Illusions Ltd.
It argued that the Government, rather than obey the July 31, 2014, verdict by Justice Stephen Isaacs, was now staging a process to give Blackbeard’s Cay all the permits it needed through “the retroactive backdoor”.
“I’m a little bit more than irritated that the public is being asked to look at something that should not see the light of day,” Mrs Duncombe told Tribune Business yesterday in relation to the May 25 meeting.
“It’s a farce and moot point. Why are we having a meeting about a development that shouldn’t even be. I’m discussing with our legal team to see what we want to do, and we call on the Minister of Works to just cancel the meeting.”
With Desmond Bannister yet to be officially sworn into that post, it was announced yesterday that the Prime Minister, Dr Hubert Minnis, will act as minister of works until that happens next week.
The Blackbeard’s Cay situation will likely be a tricky one for Mr Bannister, and one he may have to recuse himself from, given that he acted as the attorney for Blue Illusions and its principal, Samir Andrawos, at one point during the challenge to its permits.
This was not lost on Mrs Duncombe, who said: “He [Mr Bannister] should know the problems with this facility, since he was one of their legal representatives. He knows what the situation is.
“We want the May 25 meeting cancelled and the Attorney General [Carl Bethel] to uphold the Supreme Court judgment.”
Mrs Duncombe accused the former Christie administration of announcing the May 25 meeting just prior to the general election “in the hopes that with elections at a fever pitch it would have gone unnoticed and unchallenged”
She added: “It is truly unconscionable that this development has been allowed to continue to operate as though the Supreme Court judgement was some sort of suggestion, and not an Order to close the facility and remove the dolphins.
“We appreciate that the new government has their hands full, but, this judgment has not been enforced for almost three years, while the foreign developer and his Bahamian partners continue to spit at the rule of law and continue to expand.
“How can the acting director of physical planning, Charles B. Zonicle be giving an illegal development the nod to proceed with a public meeting given the Supreme Court ruling?”
Justice Isaacs’ ruling quashed all Blackbeard’s Cay’s approvals because the Government had failed to follow its own statutory permitting processes.
Among the permits quashed were Blackbeard’s Cay’s dolphin import licences and preliminary Site Plan Approval, on the grounds they had not been properly obtained in accordance with procedures laid down in Bahamian law.
Justice Isaacs also found that the Government and developer had failed to hold proper public consultation, which is again required by law, and ordered them to return the development site - located on Balmoral Island opposite Sandals Royal Bahamian, off New Providence’s north coast - to its original condition.
But the Site Plan Application drawing, published in the newspapers, appears to show that, rather than fearing its imminent closure, Blackbeard’s Cay - which employs 100 Bahamians - is actually aiming to expand.
The drawing had ‘Proposed new development and renovations’ plastered on it in large text, with the Department of Physical Planning stating: “The development by Blue Illusions includes ocean pens for a dolphin/stingray encounter, a restaurant, swimming and beach facilities, a nature trail, swimming pools and support buildings and utilities.”
Mrs Duncombe described Justice Isaacs’ ruling as “about as plain as you can get”, and added of the Government: “They can’t keep acting as if the ruling means nothing.
“The judgment is still the judgment. It does matter. They can’t ignore it. That needs to stop. I’m hoping that with a new government in, and with their desire to be accountable to the Bahamian people, that this will finally be resolved and the facility will be closed.”
Mrs Duncombe also expressed hope that the more open, transparent approach promised by the Hubert Minnis-led government would result in environmental activists not having to take the Government to court every time they sought information on investment projects.
The Blackbeard’s Cay Site Plan Application was also published a month after the Court of Appeal gave Blue Illusions leave to appeal to the Privy Council over the ownership of the project’s dolphins.
Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, accused Blue Illusions of “perverse conduct”, and exploiting the Bahamian legal system to prevent enforcement of both the reEarth verdict and the rulings requiring the project’s dolphins to be returned to his client.
Mr Moree, who represents the dolphins’ supplier, Instituto De Ciencias Marinas (IMS), argued that the Privy Council appeal, together with four other Supreme Court actions launched by Blue Illusions following the initial dolphin verdict, were “obfuscation” attempts designed to prevent Blackbeard’s Cay’s closure.
However, the Court of Appeal ruled against Mr Moree and granted Blue Illusions leave to appeal the dolphins’ ownership to the Privy Council, finding he had not shown that the developer’s conduct was completely “oppressive, perverse, or frivolous and vexatious”.