The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Opponents of Resorts World Bimini’s controversial cruise ship terminal believe they now have proof the developers were “dredging illegally” for more than a week, following Friday’s Privy Council hearing.

Fred Smith QC, the lead attorney for the Bimini Blue Coalition, told Tribune Business that the environmental activist group now possessed “incontrovertible evidence” that Resorts World and the dredger, Niccolo Machiavelli, were dredging in breach of the Conservation and Protection of the Physical Landscape of the Bahamas Act.

The ‘smoking gun’, according to Mr Smith, is the ‘Permit in Relation to Excavation’, signed off by the director of physical planning, on May 22, 2014.

This permit was produced in time for the following day’s Privy Council hearing, which granted the Coalition’s bid for an injunction to halt all dredging related to the proposed cruise ship terminal and pier - at least for the moment.

The permit’s significance, though, lies in the date it was signed. Apart from appearing to have been ‘rushed out’ in time for the Privy Council hearing, the May 22 date was some six days after the Court of Appeal hearing at which the Coalition’s injunction bid was denied.

And it is a full eight days after the Niccolo Machiavelli began its dredging off North Bimini on May 14, implying that work began without the developers and their contractors having obtained all the necessary government approvals and permits.

Mr Smith, in an interview with Tribune Business, said the timing of the ‘excavation permit’s’ production, and its sign-off date, showed that Resorts World had breached its court undertaking not to begin dredging until all necessary permits and approvals had been obtained.

“Bimini Blue Coalition now has incontrovertible evidence that the Niccolo Machiavelli has been conducting dredging activities illegally, and in contravention of the Conservation and Protection of the Physical Landscape of the Bahamas Act,” he told this newspaper.

“Bimini Blue Coalition will be writing to the Attorney General [Allyson Maynard-Gibson] inviting her to prosecute the owners and directors of the dredge company, and the owners and directors of the developers, for dredging in breach of the Act.

“We will also be applying next [this] week to commit the Government and the developers for contempt in breaching their undertaking not to dredge without the required permit.

“Having now produced the required permit at the Privy Council is evidence that they required the permit. They are thereby acknowledging dredging in breach of the undertaking given to the Court of Appeal.”

Resorts World, though, in a statement issued to Tribune Business, denied that it had begun dredging illegally, or that it had failed to obtain all the necessary approvals and permits.

A spokesperson said: “From day one we have proceeded cautiously and within the constraints of the law. We have only proceeded with development that has been properly permitted and approved by the Government of the Bahamas.

“All permits are in hand and have been properly issued to lift the injunction expeditiously, so that we can continue to provide Biminites with jobs, construct the cruise pier, and complete the full destination project.”

The spokesperson warned that the dredging halt would hurt both Bimini’s economy and the creation of jobs for Bahamians. Delays to the terminal project, they added, would only impact the ability of the Bimini Superfast cruise ship to dock at the island.

“The delay will negatively impact the economy of Bimini and the livelihood of Biminites, as they will not have patrons to frequent their shops/stands, nor will they have access to fresh produce, medical supplies and cargo,” the spokesperson said.

“Resorts World is hosting a job fair for Biminites on June 4 to fill positions immediately open on the resort property and those coming online when the hotel opens.”

They added: “Upon learning of the Privy Council’s injunction, we immediately stopped dredging. We foresee this being a temporary issue that will be resolved in the very near future, and our equipment will remain idle until we are permitted to proceed.”

John Wilson, the McKinney, Bancroft & Hughes partner who is representing Resort World Bimini, did not respond to Tribune Business phone messages and e-mails seeking comment.

The Court of Appeal, which has now been overruled by the Privy Council, refused to grant the Coalition’s injunction application by a 2: 1 majority verdict.

In her written reasons for not granting the injunction, Appeal Court president, Anita Allen, agreed with attorneys for the Government and Resorts World that two letters signed by Richard Hardy, acting director of Lands and Surveys, were the necessary approvals for the developers to begin dredging.

She rejected the Coalition’s argument that a permit was required under the Conservation and Protection of the Physical Landscape of the Bahamas Act.

Mr Smith, in correspondence previously with the developers’ attorneys, had argued that the dredge permit had to come from the Department of Physical Planning, and that Mr Hardy and Lands and Surveys were not authorised to issue one.

“When 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.”

Justice Allen said the Conservation and Protection of the Physical Landscape argument “cannot stand”, and said the letters from Mr Hardy 
“must be taken to be the necessary approval absence of any proof to the contrary”.

Such proof now appears to have been provided through the May 22 ‘excavation permit’, which was never produced to the Court of Appeal and, indeed, not completed until six days after the hearing. Justice Allen’s verdict may now be subject to reappraisal.

The Government and Resorts World had argued before the Court of Appeal that the Conservation and Protection of the Physical Landscape of the Bahamas Act did not apply to offshore dredging, which is what they were engaged in.

In response, Mr Smith said: “If that [the letters from Mr Hardy] was all they needed, and the basis upon which they prevailed at the Court of Appeal, why did they get a permit and produce it at the Privy Council when our lawyer was on her feet?

“You can’t make one representation to the Court of Appeal and a different one to the Privy Council. Which is the true truth? That which they advanced in the Court of Appeal, or that which they advanced in the Privy Council?”

And Mr Smith alleged to Tribune Business that it was the Government’s London-based attorneys who told it to produce the ‘excavation permit’ in time for the Privy Council hearing on Friday.

“John Almeida QC said to our counsel, Ruth Jordan, that the director of physical planning issued the permit on his advice,” he said. “This was all done at the behest of their London QC.”

Connecting the dots from the documentary evidence, it appears the Government’s attorneys may have become concerned after reading the Coalition’s submissions to the Privy Council.

One affidavit produced copies of other permits issued under the Conservation and Protection of the Physical Landscape of the Bahamas Act for other offshore, underwater dredging projects. This was designed to show that such permits were required, contrary to what the Government and the developers had told the Court of Appeal.

And Ms Jordan, in her Privy Council arguments, said it was clear the Conservation and Protection of the Physical Landscape of the Bahamas Act did apply to offshore dredging.

She added that Resorts World Bimini’s own Environmental Impact Assessment (EIA) envisaged that a permit under the Act, signed by director of physical planning, Michael Major, would have been needed for construction of the cruise ship terminal and pier.

“The Applicant has obtained copies of two different excavation permits obtained in respect of unrelated developments. The permits are issued by the director of physical Planning under section seven of the 1997 Act and relate to offshore dredging,” the submissions said.

“It is submitted that it is clear beyond doubt that the 1997 Act applies to the dredging, and that the developers require a permit or permits under section seven of the 1997 Act in order to legally dredge.”

Mr Smith, meanwhile, told Tribune Business that the Government was being “tied in knots because they’ve done it all wrong” in relation to the Resorts World project.

And he argued that the May 22 sign-off meant it was impossible for Resorts World to have complied with the Conservation and Protection of the Physical Landscape of the Bahamas Act’s consultation requirements.

“The Conservation Act requires public consultation before they issue the permit,” Mr Smith said. “How can they sign-off on the permit yesterday, then produce it to the court today, without any public consultation?”

Ms Jordan, in her Privy Council submissions, said the issue of whether the Conservation and Protection of the Physical Landscape of the Bahamas Act did govern dredging would need to be settled.

She said: “The marine environment under threat at Bimini is of national and international importance. If the developers were to continue their dredging operation pending judgment, the damage would be irreparable and this significant environment would be lost.

“The fact that the developers are continuing to dredge despite the failure of the mitigation measures in place suggests that the damage to the marine environment is likely to be catastrophic.”

And the submissions further added: “The manner in which the Government respondents (here the 1st Respondent) have sought to bypass the statutory approvals regime in order to permit large developments appears to be replicated in other developments in the Bahamas. The issues raised are therefore replicated in a number of other cases.”