The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court has barred attempts by environmental activists to shut down the $12 million Blackbeard’s Cay project, with the same judge issuing an Order that stays his previous ruling.

Justice Stephen Isaacs’ decision blocks any attempt by the Government and its agencies to enforce the Judicial Review verdict obtained by the reEarth group in July 2014, which effectively required that the ‘cruise passenger getaway’ destination be closed.

His April 8, 2016, Order came as reEarth and its attorneys were attempting to enforce ‘a penal notice’ that would enable them to apply to commit all the Judicial Review defendants, including Prime Minister Perry Christie and V Alfred Gray, to Fox Hill prison for contempt of court.

The ‘penal notice’ move stemmed from the Government’s persistent refusal to close Blackbeard’s Cay down, in defiance of both Justice Isaacs’ Judicial Review verdict and subsequent enforcement Order.

However, all this has now been ‘neutered’ by the April 8 Order, which neutralises reEarth’s previous legal successes by blocking the Government from enforcing the rulings the activists obtained.

In his latest verdict, Justice Isaacs Ordered that the Prime Minister, Mr Gray, Michael Braynen, director of fisheries and marine resources, and the Town Planning Committee all “be restrained.... from enforcing or purporting to enforce the prerogative Orders and/or subsequent judgement” resulting from his Judicial Review ruling.

This nullifies, at least temporarily, the July 17, 2014, Judicial Review verdict rendered by Justice Isaacs himself.

This quashed Blackbeard’s Cay’s dolphin import licences and preliminary Site Approval Plan, on the grounds they had not been properly obtained in accordance with procedures laid down in Bahamian law.

It also found that the Government and developer had failed to hold proper public consultation, which is again required by law, and required them to return the development site - located on Balmoral Island opposite Sandals Royal Bahamian, off New Providence’s north coast - to its original condition.

Blackbeard’s Cay’s developer, Blue Illusions, which is headed by businessman Samir Andrawos, appears to have pulled off a neat legal manoeuvre to safeguard its investment and near 100 jobs that rely on it.

Given that reEarth was not named as a party to the action giving rise to the April 8 Order, it may be difficult for the environmental group to challenge it.

And the Government defendants are unlikely to challenge the injunction obtained by Blue Illusions and its attorneys, Wayne Munroe QC and Damian Gomez QC, given that they have already shown extreme reluctance to act on the Judicial Review verdict and close Blackbeard’s Cay down.

reEarth and its attorneys, Callenders & Co, are also unlikely to be happy that Blue Illusions has obtained its injunction by filing a new action after it elected not to participate in the original Judicial Review action or subsequent appeal.

The developer, meanwhile, also appears to have taken legal action to prevent the return of Blackbeard’s Cay’s eight dolphins to their Honduran supplier/owner.

For Blue Illusions has issued a separate writ against the Attorney General’s Office, seeking an injunction that would bar “any agency of the Government of the Bahamas, or its servants” from trespassing on its Balmoral Island property.

The document, filed with the Supreme Court on March 29 and obtained by Tribune Business, is a response to the Government’s alleged “unlawful entry upon its leasehold property” on March 18, 2016.

“Indira Brown, of the Fisheries Department, along with four armed marines of the Royal Bahamas Defence Force and a contingent of persons not associated with the Fisheries Department, entered the said leasehold property threatening staff of [Blue Illusions] and the tourist guests with bodily harm, in addition to the closure of the leasehold property as a business,” the writ alleges.

Blue Illusions’ writ seeks an injunction preventing the Government and its agencies “from further unlawful entry upon Balmoral Island, and from making threats of harm to the employees and other guests”.

It also seeks an injunction to prevent the Attorney General and other government agencies from “denying” Blue Illusions “due process in the protection of their property rights, including licenses and permits issued by the Ministries of Agriculture and the Ministry of Works and the Ministry of the Environment, or pending applications before such ministries”.

Damages and compensation are also being demanded by Blue Illusions for the intrusion, which appears to have been an attempt to enforce Justice Milton Evans’ December 17, 2015, ruling that the attraction’s dolphins belong to their supplier, Honduran-based Instituto De Ciencias Marinas (IMS).

This judgment effectively paved the way for Blackbeard’s Cay’s dolphins to be returned to Honduras, but the writ - and associated April 8 Order - now impose an obstacle to that occurring.

Justice Isaacs, as part of the latter Order, required that the notice of proceedings be served on reEarth, together with all relevant legal documents.

All the matters are due back before him on April 29, 2016, for a directions hearing, with the April 8 Order to remain in effect until then.