The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists were yesterday “in a state of shock” after the Government, rather than obey a court Order to close Blackbeard’s Cay down, instead initiated a process to grant it the necessary planning approvals.

Sam Duncombe, founder of reEarth, the group that won a near three year-old Supreme Court verdict that quashed the controversial $12 million development’s permits, slammed the Christie administration for “failing to follow the rule of law”.

She described herself as “very distressed” after the Department of Physical Planning yesterday announced a May 25, 2017, public meeting at its offices to review the Site Plan Application (SPA) submitted by developer, Blue Illusions Ltd.

Mrs Duncombe said it was “disgraceful” that the Government, rather than obey the July 31, 2014, verdict by Justice Stephen Isaacs, was now staging a process to give Blackbeard’s Cay everything it wanted through “the retroactive backdoor”.

She accused the Christie administration of allowing Blue Illusions and its principal, Samir Andrawos, “to do whatever they want”, and asked: “Who in Government is in bed with the developer?”

“I’m in a bit of a state of shock,” Mrs Duncombe replied, when informed by Tribune Business of Blackbeard’s Cay’s latest planning application. “The fact they’ve gone ahead with that is outrageous. I’m very disturbed about that.

“How can they retroactive everything in the courts? This is another example of this Government failing to follow the law. I don’t know how this developer, three years since the ruling and four years since the development was announced, can backdoor it now and pretend to make everything right after doing it all wrong.

“How does this Government turn a complete blind eye to this? It’s the Government ministries that have to approve this and go through the whole motion. They’re completely disregarding the court Order.”

Mrs Duncombe said it appeared as if Blue Illusions can “do whatever it wants on that island”, and added: “I would like to know who is in bed with the developer, as obviously someone high up in government allowing him to move forward.

“This government seems to forget that with one click the world knows how disgracefully they’re behaving.”

The Site Plan Application drawing, published in yesterday’s newspapers, appears to show that, rather than fearing its imminent closure, Blackbeard’s Cay - which employs 100 Bahamians - is actually aiming to expand.

The drawing has ‘Proposed new development and renovations’ plastered on it in large text, with the Department of Physical Planning stating: “The development by Blue Illusions includes ocean pens for a dolphin/stingray encounter, a restaurant, swimming and beach facilities, a nature trail, swimming pools and support buildings and utilities.”

Fred Smith QC, reEarth’s attorney, told Tribune Business that the Department of Physical Planning seemed to be “pretending” that it was a new application from Blue Illusions as a way to get around Justice Isaacs’ ruling.

“I am shocked and appalled at this raw abuse of political power,” Mr Smith said, “genuflecting at the altar of a developer who has for years operated an unlicensed facility.

“In addition, the various government authorities are under a court Order to close down the facility, and the director of physical planning has been ordered to cause Blackbeard’s Cay to be returned to its original condition because everything occurred without Planning and Subdivision approval.”

He added: “This is an attempt at an end-run around Justice Stephen Isaacs’ judgment. This isn’t even an after-the-fact attempt to legitimise; this is an attempt to pretend that it is a new development.

“This is nothing less than an utter contempt of the Supreme Court judgment, and reEarth will be taking steps to hold the various government authorities, and the developer, its officers and directors, in contempt of the ruling.”

Justice Isaacs’ ruling quashed all Blackbeard’s Cay’s approvals because the Government had failed to follow its own statutory permitting processes.

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

Justice Isaacs 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, meanwhile, described the Christie administration’s governance over the past five years as “nauseating’, adding that it had shown “complete disregard for the Bahamas and its people”.

“How can they expect people to follow the law if they don’t,” she added in reference to Blackbeard’s Cay. “They continue to act as if the law doesn’t apply to them; just the rest of us.

“I don’t see how we can go forward in this country if the leaders of the day don’t follow the rule of law. Talk about discouraging. It’s disgraceful. This can’t work.”

The Department of Physical Planning, in announcing the Site Plan Application meeting, said Blackbeard’s Cay’s Environmental Impact Assessment (EIA) and other plans will be available for inspection at its JFK Drive offices over the next 20 days. Feedback has to be provided within that period.

Mrs Duncombe, though, questioned why the EIA had not been posted on the Bahamas Environment, Science and Technology (BEST) Commission’s website for convenient access by all.

“They need to stop that foolishness,” she argued. “You can’t cherry pick which EIA goes on the BEST website. We need to be transparent in this country.

“We’re never going to progress if we shroud development in secrecy. We have an absolute right to know what’s going on in this country. Why do I, as a citizen, have to fight tooth and nail for a document I should have access to?”

Mrs Duncombe recalled that when the Bahamas was considering whether to approve multiple liquefied natural gas (LNG) projects, she obtained more information from US and Florida regulators than those in the Bahamas.

The Blackbeard’s Cay Site Plan Application has also been published a month after the Court of Appeal gave Blue Illusions leave to appeal to the Privy Council over the ownership of the project’s dolphins.

Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, accused Blue Illusions of “perverse conduct”, and exploiting the Bahamian legal system to prevent enforcement of both the reEarth verdict and the rulings requiring the project’s dolphins to be returned to his client.

Mr Moree, who represents the dolphins’ supplier, Instituto De Ciencias Marinas (IMS), argued that the Privy Council appeal, together with four other Supreme Court actions launched by Blue Illusions following the initial dolphin verdict, were “obfuscation” attempts designed to prevent Blackbeard’s Cay’s closure.

However, the Court of Appeal ruled against Mr Moree and granted Blue Illusions leave to appeal the dolphins’ ownership to the Privy Council, finding he had not shown that the developer’s conduct was completely “oppressive, perverse, or frivolous and vexatious”.

Mrs Duncombe told Tribune Business that reEarth, and international organisations it worked with, were “completely aghast that Blackbeard’s Cay is going to the Privy Council over the dolphin ownership”.

“They’re effectively calling us a banana republic,” she added.