The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists have accused the $12 million Blackbeard’s Cay developer of “an abuse of court” by initiating a separate legal action to block the Supreme Court verdict requiring the project’s closure.

reEarth and its attorneys, Callenders & Co, on Wednesday sought the Supreme Court’s permission to “intervene” in the case brought by the developer, Blue Illusions, which in April obtained an injunction barring enforcement of the group’s earlier Judicial Review win.

Fred Smith QC, reEarth’s attorney, yesterday accused Blue Illusions and its advisers of doing an “end run around” his client’s Judicial Review victory by filing the separate action.

He suggested that the Government had “collaborated” with the developer, headed by businessman Samir Andrawos, in not enforcing that judgment, and it was only when reEarth sought to enforce a ‘penal notice’ against the Christie administration that the new action was initiated.

That move resulted in Justice Stephen Isaacs’ April 8, 2016, Order that restrains the Government and its agencies from attempting to enforce reEarth’s July 2014 judgment - a verdict that he himself delivered.

The reEarth ruling quashed all the permits and approvals granted to the Blackbeard’s Cay project, and effectively required the Government and its agencies to ‘close down’ the cruise passenger getaway destination, which is located on Balmoral Island, off New Providence’s north coast opposite Sandals Royal Bahamian.

However, reEarth and its attorneys alleged this week that Blackbeard’s Cay has continued operating until this day, effectively defying the Supreme Court ruling - affirmed by the Court of Appeal - that was rendered more than two years ago.

“I am shocked that Blue Illusions and its various attorneys should try to do an end run around, and a collateral attack, on a final judgment of the Supreme Court that was reaffirmed by the Court of Appeal,” Mr Smith told Tribune Business.

“This is nothing more than some kind of compliant collaboration between the Government and Blue Illusions. It is only when reEarth sought to hold the respondents [the Government] in contempt for the refusal to put into effect the judgment that Blue Illusions and their allies bestirred themselves.”

Blackbeard’s Cay’s developer appeared to have pulled off a neat legal manoeuvre to safeguard its investment and the almost 100 jobs that rely on it with the April 8 Order, as reEarth was not named as a party to the action. That makes it difficult for the environmental group to challenge it, hence its bid this week to seek Supreme Court permission to intervene.

Mr Smith, meanwhile, said he interpreted the Government’s failure to enforce the Judicial Review verdict as another indication of its “modus operandi” and support for unregulated development in the Bahamas.

The July 2014 ruling quashed Blackbeard’s Cay’s permits, including those for its dolphin attraction, on the basis that the Government had failed to follow its own statutory processes in granting these approvals.

Mr Smith argued that the Government’s failure to enforce it was symptomatic of “a complete breakdown of the rule of law in the Bahamas”, with good governance undermined by its dealings with investors outside legally-established procedures.

Adrian Gibson, a Callenders & Co associate, in a September 14, 2016, affidavit supporting reEarth’s intervention, alleged that Blue Illusions was trying to

“set aside” the Judicial Review ruling by initiating new court proceedings.

“Over the last two years since the [Judicial Review] ruling, Blackbeard’s Cay continued to operate unabated, despite its permits being quashed,” Mr Gibson alleged, “and reEarth commenced taking steps to enforce the judgment by applying to the Court for its Judgment Order to be endorsed with a penal notice.

“In the process of seeking an order of committal, Blue Illusions filed the instant action..... By this action, Blue Illusions seeks to set aside that ruling. Though reEarth obtained the judgment that is the genesis of the instant application by Blue Illusions, reEarth was not joined as a party.”

Mr Gibson alleged that reEarth would be “prejudiced and adversely impacted by relief being sought, and/or any re-litigating on the part of Blue Illusions”.

He added: “Further, as one of the foremost environmental watchdogs in the Bahamas, reEarth has a vested interest in that the proper processes are followed, that there is no attempt to frivolously and vexatiously abuse the process of the court in an effort to cure the premature and improper issuances of licences and permits and, conjointly, that the dolphins currently in Blue Illusions’ custody are secure, properly maintained and suitably housed in accordance with statutory requirements and world-class standards.”

Given reEarth’s obvious interest in the Blue Illusions case, Mr Gibson addled that “the rules of natural justice demand” that it be given the chance to participate.

Mr Gibson alleged that the Blackbeard’s Cay developer’s attorneys, Charles Mackey and then Desmond Bannister, had ended virtually every hearing before the Supreme and Appeal courts on the Judicial Review action.

However, they only held ‘a watching brief’, and despite being invited by the Court of Appeal to join the action, present its case and defend the project, Blue Illusions and its attorneys elected not to do so.

Mr Gibson alleged that the developer and its attorneys were also served with all relevant documents in the Judicial Review matter, and while Mr Bannister “exalted the economic impact of Blue Illusions upon the local tourist industry” in an affidavit, he never sought to join the case as a party.

“Blue Illusions, by their counsel, held a watching brief in the courts and never asserted their interest or sought to intervene,” Mr Gibson alleged.

“The court records show that Blue Illusions knowingly stood by while the reEarth and Government respondents litigated in Judicial Review proceedings bearing the same interest as the instant matter... I verily believe that Blue Illusions’ action is tantamount to an abuse of court.”

Subsequent to obtaining the April 8, 2016, Order, Blue Illusions filed another action seeking nearly $16 million in ‘special damages’ from the Government because it “recklessly breached” its duty to defend the project from environmental activists.

The developer has also alleged that it and its 90-strong staff are threatened with “irreparable harm” as a result of the ongoing legal woes, which have already reduced cruise visitor numbers to the site.