The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An outspoken QC yesterday slammed as “a farce” the planning consultation over The Pointe, arguing that the $250 million project epitomised the Government’s failure to learn from repeated “teachable moments”.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business the Christie administration had again “put the cart before the horse” by allowing a developer to start construction before a public planning consultation had been held.

He added that the China Construction (America) project, located next to the British Colonial Hilton, showed the Government’s “complete contempt” for the law given that it had again failed to follow its own statutory planning and approvals processes.

Mr Smith, who is also legal director for the Save the Bays environmental advocacy group, said the consultation over The Pointe’s parking garage was set up as “a rubber stamp” for permit/approval decisions that already appeared to have been taken.

He added that Save the Bays was unlikely to adopt The Pointe as the latest chapter in its crusade against so-called ‘unregulated development’, especially since no one had asked it to do so.

However, Mr Smith revealed that the organisation is set to imminently launch Judicial Review proceedings in the Supreme Court against the Minister of the Environment, Kenred Dorsett, over the alleged failure to stop the Bahamas Electricity Corporation’s (BEC) repeated pollution of Clifton Bay.

And he also moved to “raise the alarm” over the proposed changes to the Planning and Subdivision Act, which seek to dilute the existing provisions mandating public hearings and consultations.

The Pointe, which is being developed by Baha Mar’s controversial contractor, ran into fresh issues this week after the Ministry of Works issued a ‘stop work’ order to halt construction.

Craig Delancey, the Ministry’s Buildings Control Officer, said CCA had gone further than their existing approvals allowed in constructing the foundations for the multi-level parking garage. The order has thus temporarily halted work until the necessary permits - which have all been applied for - come through.

This, while embarrassing for CCA and the Christie administration, is likely to only be a temporary setback. However, the nature of the planning consultation over The Pointe, and particularly its parking garage, has also come under fire.

The Government’s Department of Physical Planning first started publishing notices about the public consultation earlier this month - after China Construction America’s subsidiary, Newworld One Bay Street Ltd, began building work that is still continuing.

The timeline indicates that the Government may again have failed to follow its own statutory planning processes, and will fuel suspicions that respondents to the consultation are being asked to respond to a ‘fait accompli’ and to help legitimise the project retroactively.

Backing such an analysis, Mr Smith told Tribune Business: “The Pointe is another prime example of putting the cart before the horse by the Office of the Prime Minister on foreign investment and development in the Bahamas.

“It epitomises the complete contempt with which the executive holds the laws passed by Parliament in the Bahamas.”

Mr Snith said Save the Bays, and other activist groups, had repeatedly brought to the Bahamian people’s attention what now-Chief Justice Hartman Longley had described as “the runaway train” of the Government approval process in the BEC Wilson City power plant case.

Suggesting that The Pointe was another example of the Prime Minister’s Office reaching an agreement with a foreign developer that “completely disregards the laws of the Bahamas”, the well-known QC added: “This is exactly what we complain about in relation to unregulated development.

“Having a consultation process now is a farce. It is a slap in the public’s face. We know that a rubber stamp is going to be sealing the project with the required approvals.”

Mr Smith likened The Pointe planning consultation to what happened over the Resorts World Bimini project, where the necessary dredging permits appeared to be retroactively approve after work had begun - and only after their existence was challenged at the Privy Council.

He also recalled the Wilson City power plant case, where the Government created “a fait accompli” by simply issuing the necessary permits over the weekend, thus making it impossible to challenge its location.

Poking fun at Prime Minister Perry Christie’s repeated use of the phrase ‘teachable moment’, Mr Smith said in relation to planning: “All these teachable moments don’t seem to teach the Prime Minister and his Cabinet about respecting the laws passed by Parliament.

“We live in a Prime Ministerial dictatorship in the Bahamas, where the rule of law is observed more in the break than the adherence.”

Still, to the likely relief of CCA and the Government, Mr Smith said Save the Bays “has not focused on this matter, because we have so many other matters we are dealing with”.

No complaints over The Pointe have been submitted to the environmental advocacy group, and Mr Smith said there were no environmentally sensitive sites - such as mangroves and wetlands - that could be affected by its construction.

However, he praised others such as former deputy prime minister Brent Symonette for “taking up the cudgel” over the multiple issues raised by The Pointe.

Apart from its “architectural affinity with old Nassau town”, Mr Smith said the $250 million development’s size and scale, plus the ability of nearby infrastructure to support it, were further concerns.

“There are so many issues that sensible urban and town planning authorities would look at before you break ground on such a project,” he added.

Mr Smith also expressed concern that the proposed changes to the Planning and Subdivisions Act appeared designed to water down the need for public consultation.

In particular, he said it “specifically takes away” consultation over planned dolphin attractions. The absence of any such consultation was one factor that influenced Justice Stephen Isaacs to quash the planning and other permits issued to the $12 million Blackbeard’s Cay project.

And oil pollution appears to be the next challenge for Save the Bays. “We’re about to launch a Judicial Review challenging the failure of the Ministry of the Environment to prevent oil pollution by BEC,” Mr Smith revealed to Tribune Business.