The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists last night urged Blackbeard’s Cay’s principal to “stop whining” over earlier reverses, and slammed as “disingenuous” claims the $12 million project had been treated unfairly in previous legal hearings.

Sam Duncombe, reEarth’s president, told Tribune Business she was “not surprised” at the latest legal manoeuvre by Blue Illusions, and its attorneys, which has successfully blocked the group’s bid to enforce the project’s closure.

And she vehemently denied claims by Blue Illusions’ principal, Samir Andrawos, that the developer was not given a fair opportunity to be heard during the Judicial Review action brought by reEarth against the development.

Besides the company’s attorney, Charles Mackay, being present at every hearing, Mrs Duncombe said the Court of Appeal even “invited” the company to join the proceedings, admonishing it when it elected not to do so.

Implying that Blue Illusions and its principal were now ‘crying wolf’, given that they had every chance to participate in the Judicial Review, Mrs Duncombe said: “It’s not over.”

Tribune Business revealed on Friday how Justice Stephen Isaacs had issued an Order staying his previous Judicial Review verdict in favour of reEarth, blocking - at least temporarily - any attempt by the Government and its agencies to act on the latter ruling and close Blackbeard’s Cay.

This came just 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 new April 8 Order from Justice Isaacs.

Responding to the latest legal developments, Mrs Duncombe told Tribune Business: “I would like to think that Justice Isaacs’ request that all the documents be sent to us, and we all appear before the court on April 29, is a sign this is not over by any stretch of the imagination.

“He [Mr Andrawos] should stop whining. The reality is that the Government, whether knowingly or unknowingly, allowed him to do things that did not follow statutory legal processes, and we were able to use the law to get where we are now.

“The fact the Government dragged their heels and did not close this facility has allowed them to tap whatever they can to block us. This is about understanding that the law has not been followed, and we as a country need to follow the law.”

The Judicial Review verdict, rendered by Justice Isaacs himself on July 17, 2014, quashed Blackbeard’s Cay’s dolphin import licences and preliminary Site Approval Plan, on the grounds they 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 ordered them to return the development site - located on Balmoral Island opposite Sandals Royal Bahamian, off New Providence’s north coast - to its original condition.

Mrs Duncombe charged that it was “completely disingenuous” for Mr Andrawos and his attorneys to allege they had not been treated fairly, and had not been given a chance to be heard, in the Judicial Review action.

“His lawyer, Charles Mackay, was present at every single hearing,” the reEarth president said. “He had all the documents. At any time they could have joined the action.

“They chose instead to let the Bahamian people shoulder the burden of that, rather than stepping up to the plate and taking their licks. They were aware of every step of the court case.”

Contrasting this with Blue Illusions’ latest legal move, Mrs Duncombe told Tribune Business: “We were left in total darkness. This latest set of moves by Blue Illusions and its agents, we were totally unaware of. Who’s being sneaky now?

“The Court of Appeal invited them into the Judicial Review, and admonished them for not coming in to say what they had to say and defend their development.

“I would like to say I’m surprised [by Blue Illusions’ action] but I’m not. This is more underhand legal manoeuvring as far as I’m concerned, and it’s not over.”

Mr Mackay, in a March 31, 2016, affidavit supporting Blue Illusions’ case, alleged that reEarth removed his client as a defendant in the Judicial Review action between December 2013 and February 2014.

Recalling that Fred Smith QC, the attorney for reEarth, had alleged non-compliance with the necessary approval permits for the project, Mr Mackay alleged: “He was unable to do so in a substantive way against Blue because Blue was in possession of the relevant licenses and approvals issued by the Government.

“The Government’s response was that, to a large extent, the businesses which were being carried on are the same businesses which were carried on by the previous tenant, except with respect to the operation of the dolphin facility for which it had received approval and the licence.

“The only point made by [reEarth’s attorney] was that the approvals were not given in the order prescribed by the relevant statute.”

Mr Mackay said Blue Illusions had never waived its rights to defend “any adverse findings” in the reEarth proceedings, and added: “At no time has Blue sought to breach the laws of the Bahamas.”