The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Despite expressing “concern” over whether Resorts World Bimini was in “full compliance” with the requirements of its dredging permit, a Supreme Court judge ruled that the developers had made a “prima facie” case that the approval was valid.

In overturning the Privy Council-imposed injunction that had halted dredging off north Bimini for almost a week, Justice Hartman Longley noted that government officials had “sworn” all environmental safeguards were being complied with.

Suggesting that he might have “taken a different view” had Resorts World and the Government been forced to produce “a higher standard of proof”, Justice Longley repeatedly cited the fact that the matter was a preliminary hearing - and not the full Judicial Review - as providing the basis to overturn the injunction.

Referring to submissions by the Bimini Blue Coalition’s attorney, Fred Smith QC, Justice Longley questioned the ‘independence’ of the person hired by the developers to carry out the ‘environmental risk’ study.

Such ‘independence’ was a condition of the dredging permit, and Justice Longley also queried whether the same study should have been completed before dredging started.

Yet, given that it was an ‘interlocutory hearing’, Justice Longley concluded: “On the evidence as a whole, I am satisfied that the onus placed on the respondents [government and developers] to establish that the permit is one on which they can rely as valid has been discharged.”

The dredging permit, issued under the Conservation and Protection of the Physical Landscape of the Bahamas Act 1997, was issued and dated May 22, 2014, some eight days after dredging began off north Bimini.

And Justice Longley conceded: “One issue of some concern to me, however, is the question of whether all the conditions of the permit were complied with.”

While the dredge permit imposed no new conditions, Justice Longley noted that it was granted after dredging started and added: “A very substantial amount of dredging had been carried out under the original approvals.

“Indeed, Mr. Smith pointed out that the volume of dredged material was so considerable that the requested amount made in the initial application was fulfilled in that very short period of time.”

Mr Smith pointed out several alleged instances where the dredge permit terms appeared not to have been complied with, findings Justice Longley appeared to agree with.

“In the first case, the [developers] appear to have appointed a person who is the employee of an independent engineering firm that was employed by [Resorts World],” Justice Longley said.

“ Whether that person is truly independent is an issue that has to be addressed on the Judicial Review application. As to the study, the [developers] say they have given an undertaking to conduct the study.

“The way the conditions read, however, it would seem that it ought to have been carried out before the dredging commenced.”

Yet counterbalancing this, the Bahamas Environment, Science and Technology (BEST) Commission had testified that all environmental concerns and approvals had or were being addressed.

“The question of full compliance is the one area that has caused me some concern,” Justice Longley said. “The conditions imposed are numerous and quite rightly so. The environmental impact can be devastating and catastrophic.

“However, the review and management of the project from an environmental point of view is an ongoing process and the director of physical planning has the authority under the Act on giving notice to the developer to suspend or revoke a permit if the built-in monitoring safeguard should fail for whatever reason.”

While there was no evidence to refute this, Justice Longley added: “If the standard of proof was higher at this stage, I might have to take a different view.”

He ruled that Resorts World’s dredge permit was “prima facie valid” and one they could rely on to dredge the seabed, finding that the issues raised by Mr Smith and the Coalition should be kept for the main Judicial review hearing.

The same applied to the latter’s claims of a ‘lack of consultation’ over the dredge permit, as mandated by the conservation and Protection of the Physical Landscape of the Bahamas Act.

Justice Longley found that “it is not mandatory” for the director of physical planning to advertise any dredging permit application and seek feedback from other parties.

“The failure to consult with the applicant was not a violation of the statutory obligation, although it might be a proper issue for Judicial Review,” the judge added.

While continued dredging might render the Bimini Blue Coalition’s action “moot”, Justice Longley said that in light of its failure to provide ‘security’ for the developers’ and government’s legal costs, and the fact Resorts World was losing $160,000 per day on the dredge halt, the interests of justice were best served by the injunction’s removal.

He described the matter as “a difficult case”.