The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court’s decision not to grant an injunction halting work on Bimini’s controversial cruise terminal sets a precedent that “stifles access to justice” for ordinary Bahamians.

Romauld Ferreira, the attorney who represented the Bimini Blue Coalition in its injunction application, told Tribune Business the verdict was “a sad day” for civic-based organisations that initiated ‘public interest’ actions.

The Coalition, a group of Bimini residents, homeowners and business people, along with environmental activists, had sought a Supreme Court injunction to prevent Resorts World Bimini from constructing its cruise ship terminal and jetty until their Judicial Review action was heard.

While the Coalition had previously been granted leave to bring the Judicial Review action, Justice Hartman Longley last week stayed this and refused to grant the injunction.

He instead ruled that the Coalition had to pay both the Government and the developers, each of whom is named as defendants, security for costs totalling $250,000 and $400,000, respectively.

The Coalition now has 21 days to pay the $650,000, failing which both the Government and Resorts World Bimini can apply to the Supreme Court to have the Judicial Review action dismissed.The funds have to be paid into court, and held in escrow, as a means for the defendants to recover their legal costs.

Tribune Business understands that the Coalition plans to appeal Justice Longley’s decision to the Court of Appeal, with the group acknowledging that it had suffered “a major setback” in its battle to halt the 4.5 acre man-made island that will house the cruise terminal.

Still, Mr Ferreira told Tribune Business that Justice Longley’s ruiling had worrying implications for ordinary Bahamians and non-profit interest groups when it came to seeking justice against opponents with deeper pockets.

“The implications of the ruling itself are that a civic-based organisation being expected to put up costs effectively stifles justice in this country,” Mr Ferreira told Tribune Business.

“You have to look at this against the backdrop of, according to studies, less than 5 per cent of Bahamians have more than $5,000 in the bank. If you look at this against that backdrop, if security for costs is ordered, they will be unable to pay it. The process of justice is being denied for a civic group.”

Mr Ferreira also criticised the Government for electing to side with wealthy foreign developers, rather than the Bahamians they professed to believe in.

“Our leaders, instead of standing up for the rights of the small man and poor man, the Bahamians they claim to believe in, instead of standing up for their rights, take a philosophically opposing position.”

Resorts World Bimini denied allegations that it did not have the necessary permits to proceed with the cruise terminal and jetty construction, producing a building permit that was stamped issued on October 16, 2013.

And it also produced a Location Map, stamped approved by the Department of Physical Planning and the Ministry of Works, on the same October 16, 2013, date.

Sidney Brodie, vice-president of RAV Bahamas, Resorts World Bimini’s joint venture partner, alleged in an affidavit: “All of the approvals and permits required pursuant to the Planning and Subdivisions Act and the Building Regulation Act were applied for and obtained by the company for the construction of the cruise ship terminal.”

Mr Ferreira, on the Coalition’s behalf, argued that the Location Map did not meet the Site Plan Approval requirement of the Planning and Subdivisions Act.

He told the Supreme Court that none of the developers’ affidavits described this as Site Plan Approval, and the Location Map did not bear the stamp of the Town Planning Committee - the authority charged with granting Site Plan Approval.

Mr Ferreira said the onus was on Resorts World Bimini to prove it had obtained Site Plan Approval, absent which they were breaching the Planning and Subdivisions Act and had to halt construction.

However, Justice Longley sided with Resorts World and the Government. The latter had sought both security for costs and an Order that the leave granted to bring the Judicial Review action be struck out because it “has no merit and is otherwise an abuse of the process of the court”.

The Attorney General’s Office, which is representing the Government in the case, had sought $500,000 in security for costs on its client’s behalf. It said this sum was justified because the action, if it proceeded to the full Judicial Review, would likely see it incur a $1 million legal bill.

Karen Dorsett, an attorney in the Attorney General’s Office, alleged that “in all the circumstances” the developers had met the various requirements of the Buildings Regulation Act, the Town Planning Act and the Planning and Subdivisions Act.

“The assertion made by the applicant [the Coalition] that work being carried out on Crown Lands without the requisite approvals and permits required under the Buildings Regulation Act, the Town Planning Act and the Planning and Subdivisions Act is frivolous, vexatious and and abuse of the process of the court,” Ms Dorsett alleged.

Mr Ferreira and the Coalition had alleged that Prime Minister Perry Christie and Deputy Prime Minister Philip Davis, in their respective posts as Minister responsible for Crown Lands and minister of works, had acted “ultra vires” and been “irrational” in approving the cruise terminal/jetty project.

They claimed that “the likelihood of an adverse impact on local infrastructure and island life in general (including loss of character, disposition and inconvenience, impaired visual and seascape, increased pollution and traffic” was detailed in the developers’ own Environmental Impact Assessment (EIA).

The Coalition noted the risks posed by “the planned imposition of 570,000 tourists per year on a locality with a current population of 1,717 and current tourist figures of 50,000 per year”.