The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The lead attorney for opponents of Bimini’s cruise ship terminal yesterday likened Heads of Agreement deals with major developers to “an AIDS virus in the body politic” of the Bahamas.

Fred Smith QC, speaking as the Bimini Blue Coalition continues to wait for its dredging injunction application to be heard by the Privy Council, told Tribune Business that the Government’s continued use of the ‘Heads of Agreement’ device had reduced all its agencies to mere ‘rubber stamps’.

He argued that once a ‘Heads of Agreement’ was signed between the Government and a developer, it was automatically expected that all necessary permits required by the latter will be forthcoming - regardless of the application’s merits and potential consequences.

“Heads of Agreement are unlawful, pre-determined and a fettering of all statutory bodies’ discretion,” he blasted. “Once the Prime Minister’s Office deems it approved, every single body rubber stamps it. They cannot say ‘no’.

“This is bad for business, and creates the impression that the Bahamas is an unlawful place because the Prime Minister’s Office is dictating approvals rather than Parliament.”

Other observers have suggested to Tribune Business over the years that ‘Heads of Agreement’, first invented by the 1992-1997 Ingraham administration, can be used as a means to bypass Parliamentary and public scrutiny of investment/development deals entered into by the Government.

And, Mr Smith and others have argued, the resulting lack of transparency and information makes it very difficult for impacted Bahamians and local communities to mount timely challenges to projects they perceive as being against their best interests.

Echoing this theme, the Callenders & Co attorney and partner told this newspaper: “When one’s project begins, it’s almost a juggernaut that cannot be stopped, for all practical purposes.

“Heads of Agreement create a virus in the body politic and rule of law. It’s hard to counter it. Heads of Agreement are almost like an AIDS virus in the body politic. They deprive statutory bodies of all legitimate functionality as legislated by Parliament.”

In the case of Bimini, the developer, Resorts World Bimini, has consistently asserted that dredging and associated construction activities for its man-made cruise terminal island and pier are being done in accordance with all relevant permits and approvals.

Mr Smith and his clients, though, remain unimpressed. Noting that Prime Minister Perry Christie had “touted” numerous Heads of Agreement in his 2014-2015 Budget communication, the QC said this merely “continues to highlight” the supposedly “secret decisions between central government and developers to the exclusion of Family Island stakeholders and local communities”.

“The irony is this could not happen in south Florida, where Genting [Resorts World’s parent] has in the past been trying to get all of its permits from the Miami authorities,” Mr Smith added. “It is simply bad for business for things like this to be going on in secret.”

The Prime Minister Perry Christie also used his Budget communication to take a not-so-subtle shot at the Bimini Blue Coalition and its backers, pointing to Disney’s Castaway Cay destination as an example of a cruise ship pier living in harmony with the environment and local community.

This theme was subsequently taken up by minister of state for investments, Khaalis Rolle, but the Coalition has argued that the comparison with Bimini is invalid. For starters, they have told Tribune Business that Disney’s cruise pier was nowhere near 13 top dive sites.

“The Prime Minister continues to fail to appreciate the one message that the Bahamian citizenry in the Family Islands are shouting at him,” Mr Smith told Tribune Business.

“That is: ‘Oh, Prime Minister. Before you make a decision that affects my community in such a fundamental way socially, economically, environmentally and culturally, give me a real opportunity to be consulted’.

“The Family Islands are not colonies of Nassau to be used by the central government or given away for pennies to foreign development companies.”

The Coalition, meanwhile, in its latest Privy Council injunction application, is seeking an urgent hearing on the grounds that dredging off north Bimini’s coast has increased to a rate of 10,000 cubic yards per day and threatens to cause “irreversible environmental damage”.

“The expanded project involving a three-fold increase in dredging, the pumping of dredged material to a new area of marine importance (endangered mangroves), disturbance to further coral reef site etc. has not undergone any Environmental Impact Assessment (EIA)whatsoever,” the Bimini Blue Coalition alleged in its application,

Fearing that Resorts World and its dredging contractor will complete their work, and thus render the Coalition’s substantive Judicial Review as moot and irrelevant, it further alleged: “The pace of dredging has dramatically increased since the Privy Council’s Order was discharged and is now more than 40 per cent complete (based on 874,900 cubic yards), and the pumping of soil to the eastern side of North Bimini adjacent to the Mangrove Creeks adjacent to Marine Protected Areas has increased and expanded the risk to important vegetation and marine life.”

The Coalition alleged that the expanded Bimini dredging project, which has increased in size from 220,000 cubic yards to 874,900 cubic yards, did “not appear” to have the relevant Planning and Subdivisions and Buildings Regulation Act approvals in place. And nor had a new EIA, or Environmental Management Plan, been completed, they claimed.

The Coalition is thus arguing that because the expanded project does not appear to have the necessary approvals, Resorts World should not have been released from its previous Court of Appeal undertaking. That promised not to dredge without the necessary permits.

The other strand of the Coalition’s application is that the dredging permit ultimately issued to Resorts World Bimini on May 22 (eight days after dredging started) had not been properly considered by the director of physical planning, Michael Major - whose department is responsible for the sign-off.

The Coalition is further alleging that conditions attached to the dredging permit have not been complied with.