The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Despite a dissenting judge finding that the “rabbit-like production” of a dredging permit “cannot pass muster”, the Court of Appeal majority yesterday ruled that the lower court was correct to remove the bar on Resorts World Bimini’s dredging.

And, in joining Appeal Court president, Anita Allen, in ruling against the Bimini Blue Coalition, fellow Justice Neville Adderley said it had “only lately nailed its colours to the mast of dredging as a matter of convenience”.

He added that the environmental activist group had combined the issue of whether the dredge permit was valid, and Resorts World’s previous undertaking not to dredge without it, were being used to “whip” the developers.

But, siding with the Coalition, Justice Conteh ruled that it was “clear on all hands and unarguable” that the Conservation and Protection of the Physical Landscape of the Bahamas Act 1997 did apply to the Bimini dredging, and that a dredge permit would need to be issued.

He found that the key question was whether a valid permit under the Act had been issued, given that such a document was only produced on the second day of the Privy Council hearing - and dated eight days after dredging began.

“The late production of what could, in the circumstances, be likened to a rabbit out of a hat of what was purported to be a ‘permit’ under the Act understandably gave a pause to the Privy Council, especially the financial implications involved in deploying the dredger already by the developers,” Justice Conteh wrote.

And, in his dissenting judgment, he wrote that the May 22 permit spoke only to ‘proposed dredging’ when “it is plain as a pike staff that the developers had commenced dredging over a week earlier”.

Returning to his hat, Justice Conteh said: “Leaving aside the last minute rabbit-like production of the ‘permit’ before the Privy Council, it beggars the imagination why this ‘permit’ was never produced before the courts in the Bahamas.

“It caused anxiety even to the Board before which it was only produced for the first time on the morning of May 23, 2014......

“The ‘permit’ on which the judge relied to discharge the injunction cannot, with respect, pass muster as a valid permit under the Act authorising the dredging activities which were the subject of the appellant’s appeal to the Privy Council, against which the Board had granted the injunction in this case.”

Justice Conteh also questioned whether there was evidence of a dredge permit application, as Resorts World was directed to the Department of Lands and Surveys - not the director of physical planning, who had the statutory authority to deal with it.

“One is left to speculate how the ‘permit’ came to be issued,” he wrote, adding that a May 14 letter from Michael Major, the planning director, “if anything affirms the view that the so-called permit in this case was procured outside the statutory framework of the Act”.

Justice Conteh, though, was in the minority. Appeal Court president Allen found that the Supreme Court correctly interpreted the its remit from the Privy Council as determining whether the dredge permit could be prima facie ‘relied upon’ by the developers, not proving it was ‘valid’.

She also found that there was enough evidence submitted by the Government’s various regulators, including the director of physical planning and the Bahamas Environment, Science and Technology (BEST) Commission, to disprove the Coalition’s allegations that the dredge permit terms were not being complied with.

Justice Allen found that the Coalition made “heavy weather” of the increase in dredge volume to 694,500 cubic yards, and said it had not “demonstrated that any exceptional circumstances existed” to warrant the dredging injunction’s reinstatement.

Justice Adderley, meanwhile, noted that dredging was not the focus of the Coalition’s Judicial Review application. And nor was the dredge permit, and governing Act, considered by the developers in giving their undertaking.

“Bimini Blue Coalition now seeks to use an undertaking obtained in those circumstances to whip the developers,” Justice Adderley found.

While acknowledging that the Privy Council’s “suspicion” of the May 22 dredge permit was “understandable”, Justice Adderley agreed with President Allen that the Supreme Court had applied the correct approach and tests.

The Coalition is now sedt to take its appeal to the Privy Council on Monday.