The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court’s $250,000 ‘security for costs’ Order against opponents of Bimini’s cruise ship terminal and dock “is a further nail in the coffin” of public interest Judicial Review actions, an environmental activist has alleged.

Gail Woon, in an affidavit filed in support of today’s appeal by the Bimini Blue Coalition against Justice Hartman Longley’s verdict, said the ruling would prevent Family Islanders challenging “abuse by Government and large financial interests” if it stood.

The Earthcare founder alleged: “Allowing the Government to get substantial security for their costs is a further nail in the coffin of public interest litigation by grass roots organisations in the Family Islands seeking to protect their rights.”

Drawing on her own experiences in Bimini, and advice from Fred Smith QC, the Callenders & Co attorney and partner who has led many Judicial Review actions, she added: “There is general fear amongst ordinary citizens in the Bahamas with regard to challenging the Government and large developers in actions such as the present.

“The Bahamas does not have a system of legal aid, except for representation of murder accused and periodically funding serious criminal offences. There is absolutely no funding for any other kind of challenge to the Government and/or large financial interests in the protection of environmental rights, human rights and or even commercial or family rights.

“Consequently, many rights go unprotected in The Bahamas and abuse by Government and large financial interests go unchallenged.”

Justice Longley ordered that the Coalition, which is challenging Resorts World Bimini’s plans to construct cruise facilities it says are vital to its business model and operations, pay the developer $400,000, and the Government $250,000, into escrow to cover their respective legal costs should the Judicial Review action prove unsuccessful.

Ms Woon, in her affidavit to support the Coalition’s case, alleged that the Bahamas’ small, tight-knit society with interlocking family relationships, and cultural norms, often meant it was difficult for grassroots organisations to pursue public interest litigation.

“The Bahamas is a small nation which only became independent in 1973, and which still suffers from racial discrimination, xenophobia, nationalism, anti-foreign mentality and Government overriding rights in order to achieve political goals (such as in this case, central government imposing a mega development on a small community),” the Earthcare founder added.

“Allowing security for costs applications, particularly of the oppressive magnitude of the order in the instant case ,will have the effect of chilling all future public interest litigation, especially of this nature by grass root organisations.

“I am therefore afraid that in future, if this Order is not overturned, attorneys will have to forewarn intending applicants of the real possibility that the Government and/or developers will seek and obtain substantial security costs orders against them. Such ominous advice could result in effectively putting an end to potential actions before they even get off the ground.”

Suggesting that public interest Judicial Review actions “will ultimately dry up” if the Bimini ruling remains, Ms Woon alleged that the Supreme Court ruling was contrary to established legal authorities on public interest actions by grassroots organisations.

“I am also afraid that if this Order is not overturned, the Government will rely on it to beat back Judicial Review cases,” she alleged.

“It sets a dangerous precedent for access to the courts to be denied in future cases brought in the public interest.

“The learned judge’s decision to award such a substantial sum effectively seeks to overturn by the back door settled law on the standing of campaigning and other public interest associations to bring Judicial Review proceedings, and therefore runs directly contrary to such well-established authority.”

Ms Woon alleged that Justice Longley was wrong to find the Coalition’s case was ‘weak at best’, arguing that the Government had failed to provide evidence showing the developers had Site Plan Approval in compliance with the Planning and Subdivisions Act.

“I am informed by Mr. Smith QC, and I verily believe that for the most part in this jurisdiction, the Government’s approach in Judicial Review matters of this kind is to defend the developers’ right to continue development as opposed to addressing the genuine and legitimate concerns set out by the applicants in challenging the Government’s decisions,” she claimed.