The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A dissenting Appeal Court judge has described Resorts World Bimini’s actions as “surreal” and “worthy of the description Machiavellian”, yet his opinion counts for nothing after his two colleagues effectively gave the developer permission to continue dredging.

Justice Conteh found himself in the minority, after Appeal Court president, Justice Anita Allen, and fellow justice Neville Adderley both ruled that there were sound legal grounds to refuse the Bimini Blue Coalition’s injunction application.

Both justices said the injunction bid was the wrong response to Resorts World Bimini’s alleged breaching of an undertaking to inform the Coalition of all permits and approvals it received prior to starting dredging.

Justice Allen ruled that the undertaking had not been breached, as Resorts World’s attorneys had provided the Coalition with a January 23, 2014, letter stating that the Minister of Lands and Surveys had approved their dredging permit request subject to payment of a $110,000 fee and compliance with other conditions.

She ruled that there was no evidence to support the Coalition’s argument, and that of its attorneys Callenders & Co, that this letter was not a proper permit and approval, adding: “The first line of that letter is a clear indication that the developers had received approval to dredge.”

And Justice Allen also disagreed with the argument that the permit did not comply with the Conservation and Protection of the Physical Landscape of the Bahamas Act, which the Coalition alleged regulated dredging activities.

“‘One one reads the entirety of the Act, it is clear that its purpose was to cover the physical landscape of the Bahamas - land above water, and not the seabed,” the Appeal Court president ruled.

“In these proceedings, the applicant has not provided any evidence that remotely suggests that any part of the coastline would be negatively affected......

“As much as I am deeply aware of the serious underlying environmental issues and the public interest in this case, it must however be noted that this court cannot step outside of the confines of the law and the extent of the applications before it.”

Justice Adderley, meanwhile, refused to grant the injunction on the same basis that Justice Hartman Longley used at the Supreme Court earlier in the case - namely that imposing the injunction would be a greater injustice because the Coalition had given no undertaking to pay the developer’s damages resulting from a work stoppage.

“The developer had made it clear that it will suffer considerable commercial and financial loss if dredging had to stop now,” Justice Adderley said.

Yet he went on to back previous calls, ironically made by the Coalition’s counsel, Fred Smith QC, for public interest Judicial Review cases to be “fast tracked” so they are not overtaken - as with the Wilson City power plant and Guana Cay - by events on the ground and rendered moot.

“One can see the frustration of the appellant. It has taken the view that environmental protection is built into the existing statutes, but that the statutes are being ignored with impunity,” Justice Adderley found.

“The problem is that even if the applicant’s applications are ultimately successful, the practicability of obtaining the remedies claimed continues to diminish as the progress of the development becomes more advanced.”

Disagreeing with his fellow judges, Justice Conteh said he had “a feeling of surrealism” because Resorts World had pressed ahead prior to the Appeal Court determining the substantive appeal.

“In my view, this act seems to have been accomplished by some manoeuvre by the developers that is worthy of the epithet Machiavellian,” Justice Conteh wrote, adding that it was not intended as a pun on the dredger’s name, Nicolo Machiavelli.

He noted that the developer, after dispatching the disputed permits to the Coalition on January 13, began dredging the very next day.

“This I venture to say, is like a page out of The Prince, containing advice tendered by Nicolo Machiavelli to 15th century Italian princes on expediency as an asset in governance,” Justice Conteh said.

He said the developers’ actions were not “in keeping with the spirit” of their undertaking, and represented “fancy footwork” that had presented the Appeal Court and Coalition with “an unacceptable fait accompli”.

Justice Conteh said that refusing the injunction would render the Coalition’s Judicial Review application “nugatory”, and said he would have granted it to “preserve the status quo” until Resorts World proved it had the proper permit.