The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamas Electricity Corporation (BEC) has been ordered by the Court of Appeal to engage in “full and proper public consultation” over the operation of its new $105 million Abaco power plant, a move the project’s opponents yesterday described as “a victory for the entire Bahamian public”.

In overturning Supreme Court Justice Hartman Longley’s ruling that dismissed Responsible Development for Abaco’s (RDA) Judicial Review application, the Court of Appeal found “there was no adequate and meaningful consultation relative to the location and construction” of the Wilson City power plant by either BEC or the Government.

Court president Anita Allen, in her October 1 ruling that was backed by all three judges, agreed that a September 10, 2009, meeting on the Wilson City power plant presented the project as a ‘fait accompli’.

And she added that it was “a reasonable inference” for RDA to conclude that BEC’s decision to change the fuel type, and abandon plans for a fuel pipeline, resulted from “the pressure exerted by... the Judicial Review proceedings” rather than any public consultation.

RDA’s attorneys, Callender’s & Co, yesterday expressed hope that the ruling would make the Government and local authorities ‘think twice’ about forging ahead with both private and public sector projects without properly consulting affected residents.

Fred Smith QC, RDA’s lead attorney, said in a brief interview: “This is a vindication of the right to be consulted if you are a person affected by a public body’s decision.”

In an briefing note sent by Callender’s & Co attorney, Jacqueline Banona, to RDA members yesterday, she said of the verdict’s wider implications: “We are, of course, disappointed that we lost the constitutional point, but we are elated and thankful that we won our Judicial Review challenge as respects the future running of the plant.

“This is not a victory for just RDA and Matt McCoy, but a victory for the people of Abaco and the entire Bahamian public. Public authorities will now hopefully recognise the grave importance of consultation before embarking on projects of this kind.”

Given that the Wilson City plant is now constructed and operational, the Court of Appeal said it would “serve no useful purpose” to grant RDA’s demands - that it not be built at all - in full.

Instead, it ruled that consultation be limited to the plant’s ongoing operations and previous approvals that were only granted ‘in principle’.

These approvals include the construction of a generator house and dock; Town Planning approval in principle; and the “conditional approval of plans for the power plant”.

Justice Longley had dismissed the initial Judicial Review action brought by RDA and Mr McCoy because it had not complied with the timeframe for filing such cases.

He found RDA should have brought their case within six months of the Government’s December 2007 signing of the contract to build the Abaco-based power plant.

That meant Judicial Review proceedings should have been brought by June 2008, or November 2008 at latest. Justice Longley also found that based on the evidence Mr McCoy had, by his own admission, learnt of the Wilson City decision through attending a speech given to Abaco’s Chamber of Commerce by Prime Minister Hubert Ingraham in May 2008.

“They did not bring the application until December 2009, more than 18 months later, by which time construction of the plant was continuing,” Justice Longley found in his ruling.

However, in its ruling the Court of Appeal found that the main decision subject to Judicial Review was not the December 2007 contract signed between BEC and Man Diesel for Wilson City’s construction, but the actual decision to build it that was taken in 2005.

And, since RDA could not have known about this decision until May 2008, the Court of Appeal found that Justice Longley failed to account for all the circumstances that led to the delay in filing the Judicial Review action.

“Pertinently, the learned judge did not appear to fully consider the circumstances which contributed to the delay, namely that the decision was announced nearly three years after it was made, that the construction of the plant was revealed after it had already commenced, and that the approvals and permits for the construction of the plant were granted retrospectively, and not make known to [RDA] until some six months after the construction of the plant had begun,” the Court of Appeal ruled.

It added that Justice Longley also failed to take into account “the serious concerns” Abaco and Wilson City residents had about the power plant’s impact on nearby property values, the environment and health and safety.

With there being “good reason” to extend the time period for filing the Judicial Review case, RDA also challenged the Supreme Court conclusion that ‘adequate and meaningful consultation’ had taken place.

Justice Longley had based this on the September 2009 town meeting, and the fact BEC had changed the plant’s fuel from Bunker C to diesel oil.

Wilson City’s opponents, though, said these changes resulted from “pressure exerted by the launch of the Judicial Review proceedings”, rather than consultation with the public.

“The appellants’ contention is a reasonable inference, given that the announcement of the said changes came during the course of the proceedings for Judicial Review,” the Court of Appeal said.

RDA had also “rightly held that there was no intention” on the part of BEC and the Government to consult the public “when they ought to have done”, the Court of Appeal agreeing with Justice Longley that the September 2009 meeting was a ‘fait accompli’.

RDA’s real contention was that consultation was inadequate, and that it did not take place early enough to influence the Wilson City decisions.

Given that no Environmental Impact Assessment (EIA) had been submitted before the Wilson City decisions were made, the Court of Appeal said the Bahamian public had “a legitimate expectation” that there would be consultation.

It found that Justice Longley’s verdict that there was ‘meaningful consultation’ was not supported by the evidence, especially since the town planning permits and building approvals - all granted retroactively - were not disclosed until early 2010.

“It cannot be correct to say that [BEC and the Government] could delay consultation on the location and construction of the plant until it was too late for it to have any impact, and also say that there had been adequate and meaningful consultation,” the Court of Appeal ruled.

“There was no adequate and meaningful consultation relative to the location and construction of the plant.”

The Government and BEC had “breached” the public’s expectations, the judgment added, given that “fairness” required them to consult and listen to those who would be impacted by Wilson City.

RDA did not have it all its own way, though, the Court of Appeal finding that its constitutional claims were based on “duplicity” and were “an abuse of the court process”.

And it also said RDA’s move to challenge specific permits and approvals granted in 2009 was “an attempt to get around the time bar” for filing a Judicial Review.

Apart from BEC, the defendants included former Prime Minister Hubert Ingraham, plus ministers Earl Deveaux, John Delaney, Hubert Minnis and Neko Grant, and South Abaco District Council.

BEC was represented by Robert Adams at Graham, Thompson and Co, and the Government ministers by the Attorney General’s Office.