The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Opponents of the $8 million Blackbeard’s Cay project were yesterday celebrating a preliminary victory in their Judicial Review battle, after the Government “abandoned” its demand that they lodge $500,000 ‘security for costs’.

Fred Smith QC, lead counsel for the ReEarth environmental activist group, told Tribune Business that the Government also withdrew its bid to set aside the February 6 discovery Order, requiring it to provide details of all permits and approvals granted to the developers.

Justice Stephen Isaacs, in addition to ordering that the Government provide discovery March 26, 2014, and that a trial on the Judicial Review’s merits begin on April 10th, also broadened the scope of information that must be divulged to ReEarth.

Mr Smith explained that the judge had made the discovery Order “more expansive”, broadening it beyond the permits granted to Blackbeard’s Cay’s current developer to those also provided to any previous owner/operator of the facility.

“It was an excellent result today,” the Callenders & Co attorney and partner told Tribune Business. “The Attorney General’s Office was so emboldened by the Bimini Bay security for costs order that they felt it could hammer down every Judicial Review application with a spurious application for security for costs, as in other Judicial Review cases.

“I ask why our government feels it acceptable to use my tax dollars to defend every developer against Judicial Review.”

Mr Smith said Justice Isaacs yesterday varied the initial discovery Order against the Government to make it “more expansive”.

This, he added, meant that information on permits and approvals granted by the Government would not be restricted solely to those received by the current developer, but those handed to all previous owners of the Blackbeard’s Cay facility.

“The developers and the Government will not be able to hide behind unnamed, and thus far undiscovered, corporate participants at the facility,” the well-known QC added.

Mr Smith suggested that yesterday’s developments indicate “the Attorney General’s Office is recognising that it is in the best interests of business and developers for information to be put into the public domain”.

This, he added, would only serve to boost accountability and transparency when it came to governance in the Bahamas surrounding foreign direct investment (FDI) projects.

“It is not the job of the Government to protect, defend and promote every developer,” Mr Smith reiterated.

He added that Charles Mackay, the attorney for Blue Illusions, the current Blackbeard’s Cay developer, who is headed by St Maarten businessman Samir Andrawos, was present at yesterday’s Supreme Court hearing on a ‘watching brief’ for his client.

Mr Smith added that Mr Mackay, on behalf of Blue Illusions, had not applied to be heard or joined as a party in the Judicial Review case.

ReEarth is challenging the permits and approvals granted to the Blackbeard’s Cay developer, especially those for the importation of dolphins and the dolphin facility, on the grounds that the Government has allegedly failed to comply with the Marine Mammals Act and its Planning and Subdivisions Act.

The Government defendants are Prime Minister Perry Christie; agriculture and fisheries minister, V Alfred Gray; the Town Planning Committee; and Michael Braynen, director of fisheries.

ReEarth had previously alleged that the Government’s bid to strike out their action was “oppressive”, noting that its $500,000 ‘security’ demand is “more than twice” its estimated legal costs.

Martin Lundy, an attorney with Callender’s & Co, had alleged: “The respondents [the Government] have filed an application seeking security for costs in the sum of $500,000, which is oppressive for the following reasons.

“The respondents estimate the sum of approximately $231,600 for the entire Judicial Review, yet they have requested more than twice that figure by way of security, more than $500,000.... ”

Mr Lundy argued that the attorneys assigned to the case both worked for the Attorney General’s Office and drew salaries, and did not charge at a $500 per hour rate.

And he alleged that in the draft Bill of Costs submitted by the Attorney General’s Office, “some entries are extraordinarily unreasonable”.

As examples, Mr Lundy pointed to the $500 charged for spending an hour drafting a Memorandum and Notice of Appearance, and the $1,000 incurred in the two hours putting together ‘security for costs’ summonses.

Arguing that the Blackbeard’s Cay Judicial Review was in “the public interest”, especially given the permits and approvals issue for the dolphin encounter, Mr Lundy said no other group could take ReEarth’s place in initiating such litigation.

“If an Order is made, the applicant [ReEarth] will be unable to fundraise to provide security in the sum claimed or even in the sum of the estimated Bill of Costs in order to allow the action to go ahead with the required urgency,” Mr Lundy claimed.

“The Order sought will stifle these proceedings and prevent the serious issues from being investigated, and will prevent the marine mammal protection legislation and planning legislation from being enforced.....

“The sum requested as security exceeds by more than 100 per cent the amount of the draft Bill of Costs, which is itself unreasonable. The Order would stifle the action and prevent serious environmental and public interest issues from being investigated.”