The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists yesterday urged the Government to uphold the “precedent-setting” judgment over the $8 million Blackbeard’s Cay project, questioning why Bahamians should follow laws it breached with seeming impunity.

Sam Duncombe, principal of the reEarth group, told Tribune Business that instead of “rising to the occasion” by correcting the flaws that led to its Supreme Court defeat, the Government seemed intent on fighting the judgment.

Tribune Business revealed yesterday how the Government has filed a Notice of Appeal, its main arguments being that Justice Stephen Isaacs “misapplied” two key Acts - the Planning and Subdivisions Act and the Marina Mammals Protection Act - to the facts of the case.

In response, Ms Duncombe urged the Christie administration to “enlighten” Bahamians on which laws did apply to Blackbeard’s Cay.

And, with the Government’s appeal arguing that a key United Nations (UN) convention did “not form part of domestic law”, the reEarth activist told Tribune Business it was “a waste of taxpayer money” for it to travel to numerous international conferences to sign up to environmental protection-related protocols.

She accused successive governments of paying “lip service” to environmental regulation and protection, failing to take this “to heart” and translate signatures into action.

“Absolutely we’re going to defend the judgment,” Ms Duncombe said, in response to the Government’s appeal. “We believe Justice Isaacs hit the nail on the head, and he set a precedent we should aspire to.

“Instead of dragging it back down to God knows where, we should be inspired to follow our laws and protect the animals. This should send a very strong message to the Government and developers that we need to follow the law. That’s why they’re here; to protect the environment.

“It’s so frustrating,to put it mildly. I was expecting they [the Government] would appeal, but they should stop wasting the people’s money, move along, rise to the occasion, accept the judgment, say we were wrong and make the country a better place.”

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.

“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 is arguing.

It is also claiming that the Planning and Subdivisions Act’s requirements for developers to conduct Environmental Impact Assessments (EIAs), and hold public consultations on their projects, are “discretionary” and not mandatory - meaning these are dependent on a development’s specifics.

“Maybe they need to enlighten us to which laws apply in this situation,” Ms Duncombe told Tribune Business. “It seems like they are doing a really great job in making it difficult for people to use the laws that exist to fight the foolishness they [the Government] are up to.

“If the Government doesn’t follow the law, why are the citizens expected to follow the law? It’s just a great way of letting them get away with whatever they want, putting as llttle emphasis as possible on protecting the environment.”

Taking on the Government’s appeal points one by one, Ms Duncombe queried why no EIA was required for Blackbeard’s Cay when it sat next to a proposed Marine Protected Area (MPA) and had been completely transformed by developer, Blue Illusions.

As for Site Plan Approval, the activist said it was impossible for one not to be required, as the facility was “not the same” as the one that obtained the necessary permits many years ago.

When it came to the Premises Licence due under the Marine Mammals Act and regulations, the Government attorneys alleged in the appeal that Justice Isaacs had “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 that 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 SWAP may indeed prohibit the import of marine mammals for anything other than preservation or site research.”

Suggesting that the Government was trying to “discredit” Justice Isaacs’ judgment, Ms Duncombe said: “Why do we spend money going to these conventions, carrying on pretending that we’re going to be good stewards, when we’re not.

“Stop wasting our money going to conferences, pretending to be upstanding citizens and that we’re going to protect the environment. It’s lip service. It looks good on our resume as a country, but if we’re not going to take those conventions to heart, stop wasting our money.”

Ms Duncome added that the Marine Mammals Protection Act and regulations specifcally dealt with the governance regime for captive animal facilities, and the licencess and approvals that needed to be obtained.

She suggested it was hyprocritical for Prime Minister Perry Christie to be making “grandiose statements” on climate change and environmental protection to the UN in New York, when his government had approved “the dredging up of coral reefs in Bimini”.

“There are countless other things happening out of sight, out of mind,” Ms Duncombe told Tribune Business. And, with the Bahamas seeking to attract millions of tourists annually, she urged this country to take heed of global trends and reduce - not increase - its number of captive animal facilities.

“There’s no leadership in the country. They’re the same archaic, fossilised people they’ve been for ever.”

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.

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.

• 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.

• 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.