The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists had an “arguable case” against the Government and Resorts World Bimini over the latter’s planned cruise ship terminal, a Supreme Court judge finding there were “serious issues to be tried” despite his refusal to grant an injunction.

A transcript of the December 19, 2012, ruling by Freeport-based Justice Hartman Longley, which has been obtained by Tribune Business, shows the judge was effectively ‘in two minds’ over whether to grant the Bimini Blue Coalition’s injunction application.

He ultimately sided with the Government and developers, declining to grant the injunction - which would have stopped all work on the proposed cruise terminal/jetty - largely because the Coalition had failed to provide an undertaking that they would compensate Resorts World for any resulting damages.

Noting that the developer, a subsidiary of Malaysian conglomerate Genting, had undertaken not to dredge without the necessary permits in place, Justice Longley said the absence of a ‘cross undertaking’ by the Coalition was “a very significant consideration”.

“I have come to this conclusion with some hesitation, as I recognise it can have a significant impact on the future of this application,” Justice Longley said of the refusal to grant the injunction.

“But to my mind it represents the best avenue to minimise the injustice that would flow from granting it.”

However, the Coalition can take heart from the fact that Justice Longley found it did have a case against Prime Minister Perry Christie, in his capacity as the minister responsible for Crown Lands.

He was named as a defendant in the initial Judicial Review application because the Government had to lease a portion of the seabed to Resorts World, a move the Coalition attacked “on the basis of irrationality, procedural unfairness in not consulting, and illegality in so far as it is alleged no permits were granted”.

“The applicants allege that there are serious environmental consequences, some of which are highlighted in Environmental Impact Assessment (EIA), which may make the approval of the project irrational as the damage would be irreversible and catastrophic in effect. They also alleged it was done without necessary consultation,” the judge found.

But, while describing these as “serious matters”, Justice Longley said the Coalition’s case against the other two ministerial defendants - Deputy Prime Minister Philip Davis and Glenys Hanna-Martin, minister of transport and aviation, “seems very weak”.

This, he ruled, was because the developers and the Government had produced evidence that the necessary permits/approvals under the Planning and Subdivisions Act, the Building Regulations Act, and from the Docks Committee, had all been issued.

In summing up, Justice Longley said of the Judicial Review application: “In those circumstances, it seems to me there is an arguable case.

“It is certainly not frivolous or vexatious in relation to the first respondent [the Prime Minister], although on the face of it the case against the second and third respondents seems week. There are, however, serious issues to be tried.”

Justice Longley added there was “no doubt” that Resorts World’s EIA had detailed the potential harmful effects the cruise ship terminal/jetty would have on Bimini’s environment.

And he seemingly questioned why no Bimini-based dive operators had teamed up with the Coalition over the Judicial Review action, given the “untold damage and loss of significant business” that could result from the water turbidity identified by the EIA.

Yet, by the same token, Justice Longley said the EIA also laid out the measures being taken to prevent environmental damage, noting what was being put in place to mitigate turbidity.

“The upshot is that there is no doubt environmental issues still need to be addressed, and careful planning is needed to limit the negative impact of the development,” Justice Longley said.

“On the other hand, this project is a major investment for not only Bimini but the Bahamas as a whole, because it has already been pointed out that citizens from other islands have descended on Bimini and have secured jobs there.”

Acknowledging that governments had a sovereign right to approve projects despite the environmental risks, Justice Longley added: “The EIA need not to be perfect. It must, however, alert the decision makers to the environmental danger involved. That is not in dispute. No issue appears to be taken with the EIA in this respect.

“And so the approval of the development project is a decision which successive governments could properly make in the interest of the Bahamian public, including the use of the sea bed, having regard to the need to find employment for the people of the Bahamas.

“The developers are no doubt anxious to proceed, and have already invested millions of dollars in the project, and have mobilised at considerable expense in expectation of getting all approvals - most of which they have already gotten - a team to carry out these works, and stand to loose millions more if forced to demobilise. This is a substantial commercial investment” by Resorts World Bimini.

The cruise ship terminal and jetty are vital to Resorts World’s Bimini investment, including the $150 million Bimini Bay expansion and new hotel that are projected to create another 350 Bahamian jobs, as they will facilitate the embarking/disembarking of visitors brought to the island from Florida. Without it, this process - and the visitor experience - will be disrupted, especially in the rough winter weather now being experienced.

In ordering that the Coalition pay $650,000 security for costs, split between $250,000 for the Government and $400,000 for the developer, Justice Longley said this was not designed to create an impossible obstacle for the Coalition to overcome.

“I am satisfied that there is no improper motive,” he said of the Government and Resorts World Bimini. “There are genuine concerns that the applicant does not have a strong case; the expenses are likely to be considerable; and the company [Bimini Blue Coalition] was only formed days before it commenced this action.

“I am not satisfied that the motive behind the application is to drive the [Coalition] from the judgment seat or to stifle a genuine claim.”

While suggesting that the Coalition’s attorney, Romauld Ferreira, had put his client’s case “too high”, the judge reiterated: “I consider the case weak at best, and I am satisfied it is a bona fide claim and it is not a sham.”

It is unclear what the Coalition’s tactics will be now, given that the 21-day deadline by which they had to pay security for costs has expired. It is thought they may be contemplating a different strategy.