The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government is arguing that the Supreme Court “misapplied” the provisions of two key Acts, as it moves to overturn the verdict that quashed the permits granted to the $8 million Blackbeard’s Cay project.

The Christie administration, in its August 28, 2014, Notice of Appeal filed with the Court of Appeal, effectively alleged that Justice Stephen Isaacs had erred in applying both the Planning and Subdivisions Act and Marine Mammal Act and Regulations to the facts of the case.

And it claimed that he had failed to “fully consider the potential draconian consequences” of granting the reEarth environmental activist group 100 per cent of the Orders/declarations it was seeking.

It is unclear what the “draconian consequences” refer to, but it is likely an aside to the impact on the Blackbeard’s Cay project and its developer, Blue Illusions, headed by St Maarten businessman, Samir Andrawos.

No to mention the precedent the verdict may have set for similar ongoing and future investment projects.

Justice Isaacs, in his July 17 ruling, found that both the Premises Licence for Blackbeard’s Cay’s captive dolphin facility, plus Site Plan Approval, “neither have been granted not could have been granted”.

However, the Attorney General’s Office, in its appeal notice, focused its attack on both these permits and the Acts that underpin them.

When it came to Site Plan Approval, which must be granted under the Planning and Subdivisions Act 2010, the Government’s attorneys alleged that Blackbeard’s Cay was a development that started before this law was passed.

As a result, the “transitional provisions” in the Act “removed the need for a new Site Plan Approval”, they are claiming.

“Her [Justice Isaacs] failed to properly consider, and dismissed the existence of, the relevant site plans bearing [this] out and that the development predated the provisions of the Planning and Subdivisions Act,” the Attorney General’s Office alleged.

“In all the circumstances, the judge erred in concluding that Site Plan approval under the 2010 Planning and Subdivisions Act was necessary and, if necessary, was non-existent.”

The Attorney General’s Office also alleged that the Supreme Court failed to account for Michael Major, director of physical planning, confirming that Site Plan Approval was granted on November 22, 2012.

“The learned judge placed too much emphasis over the form of the approval, rather than the substance of the approval if one was necessary under the Planning and Subdivisions Act,” the Government’s attorneys alleged

“He failed to properly consider the existence of the Site Plan and other evidence provided, which specifically evidenced the pre-existing development and structures prior to the enactment of the Planning and Subdivisions Act.

“He failed to, and/or failed to properly consider that the provisions of the Planning and Subdivisions Act as it relates to Environmental Impact Statements and public consultation are not a mandatory, but rather discretionary, having regard to the nature of each development.”

When it came to the Premises Licence due under the Marine Mammals Act and regulations, the Government attorneys alleged he “placed too much emphasis” on the Bahamas’ membership in the Specially Protected Areas and Wildlife Protocol (SWAP), which is overseen by a United Nations body.

This, the Attorney General’s Office argued, did “not form part of domestic law”.

Justice Isaacs had found tha the Government appeared to have breached its international obligations over SWAP.

‘“The Bahamas became a party to SWAP in March 2012, and by Article II it seems the [dolphin] import licence ought to have been denied as its purpose is a cruise passenger attraction,” Justice Isaacs said of Blackbeard’s Cay.

“The membership in SPAW may indeed prohibit the import of marine mammals for anything other than preservation or site research.”

And, in its final salvo, the Attorney General’s Office alleged: “The learned judge failed to give proper and/or adequate weight to the presumption of regularity to the actions of public officials in having granted the necessary approvals, permits and licenses, where supporting back documents may not have been available at the hearing.”

The Blackbeard’s Cay case revolved around whether or not the Government had followed the statutory processes set out in law for granting the approvals and permits required by the developers.

Justice Isaacs found that it had not, and among the highlights of his ruling were:

• The minister of agriculture and marine resources, V Alfred Gray, failed to issue the Premises Licence before approving the dolphin import and facility’s operational licence.

The Premises Licence was applied for, by Blue Illusions, for the first time on January 6, 2014, some six months after the dolphins were imported on July 23, 2013.

The Marine Mammals Protection Act, Justice Isaacs noted, prevented the operation of a captive marine mammal facility unless the premises were fully licensed.

As a result, the Supreme Court found that Mr Gray’s decision to issue the dolphin import licences was “clearly premature” in the absence a Premises Licence.

“In all of the circumstances, it is a reasonable conclusion that a Premises Licence could not be issued,” Justice Isaacs found.

• The ‘preliminary’ site approval did not amount to full approval, which the judge found Blue Illusions had to obtain under the Planning and Subdivisions Act.

Craig Delancy, the building control officer at the Ministry of Works, had offered a building permit issued to the Blackbeard’s Cay project as being “equivalent” to Site Plan Approval, but Justice Isaacs said it was “patently clear” that the two were completely different.

• Justice Isaacs also criticised the “silence” and “deaf ears” approach adopted by the Government to reEarth’s concerns and requests for information on Blackbeard’s Cay.

“There appears no evidence that a public discourse was encouraged. It rather seems that such a discourse was avoided.”

The initial Crown Land lease of the seabed to Blackbeard’s Cay’s initial developer, which was then sub-let to current operator Blue Illusions, was for a stingray attraction only - not a dolphin facility. And the original lease could not be “underlet” to anyone else.

Having thus found that the Government had indeed failed to follow its own legal processes, Justice Isaacs subsequently approved Orders quashing the dolphin import licences granted to developer Blue Illusions, headed by St Maarten businessman Samir Andrawos, and requiring that the dolphins be moved to “an appropriate location”.

Justice Isaacs also granted reEarth’s request to quash the preliminary Site Approval Plan for Blackbeard’s Cay, and ordered that the Government halt Blue Illusions’ land development and require it to return the site - located on Balmoral Island off New Providence’s north coast, opposite Sandals Royal Bahamian - to its previous state.

The final batch of Orders prevents the grant of Site Plan Approvals to Blackbeard’s Cay without public consultation over the project, and quashes the Government’s decision to permit the dolphin facility’s construction on Crown Land.