The Tribune

By NEIL HARTNELL Tribune Business Editor OPPONENTS of the $105 million Wilson City power plant argued before the Court of Appeal that their Judicial Review action still has merit in preventing the Bahamas Electricity Corporation (BEC) from behaving "as a runaway train" when it comes to permitting and construction. The Responsible Development for Abaco's (RDA) attorney, Callender's & Co partner Fred Smith QC, told the appellate court that the fact the Wilson City plant had "for the most part" been built, and that its location was not being challenged any more, was "not an end of the matter". "BEC should not be permitted to continue to proceed to operate in the same fashion as it located and built the project...as a runaway train and without permits," Mr Smith argued orally, and in his skeleton arguments, before the Court of Appeal. Alleging that BEC had failed to keep a promise not to bring Wilson City online before an Environmental Management Plan (EMP) was in place, Mr Smith indicated RDA's appeal was seeking two things - a right to be consulted on all permits that BEC was applying for, and for no work to be done before the relevant permits and licences were issued. "This is not an academic exercise," Mr Smith alleged. "Even as we speak, BEC is operating illegally. The Appellants [RDA] have rights which the court can uphold and vindicate. The court can stop operations until the lawfully required permits are in place. This court can bring some law and order to bear. "The Appellants' rights to be consulted remain a very much needed remedy...... Permits have not been applied for or obtained for many aspects of the Project which are lawfully required to allow it to operate." In response, BEC's attorneys, Graham, Thompson & Co, argued before the Court of Appeal that "it is not possible for rigid rules to be laid down" if consultation procedures were not enshrined in Bahamian statute law. RDA, they alleged, were claiming that BEC and the Government respondents had an obligation to consult Abaco residents on "each and every decision" made in relation to the permits for constructing and operating the Wilson City plant. "The appellants expect the 'Gunning criteria' to be applied, like a legislative code, to 'any' and 'all' applications and/or decisions relating to the location, construction, operation and management of the Wilson City power plant," BEC alleged. "[BEC] contents that the appellants' contention in this regard was, and continues to be, advanced much too broadly, and, unfortunately, became the springboard for the untenable 'blanket' claims for declaratory and other relief sought." Set against statute law governing each permit required/issued to BEC for Wilson City, the Corporation's attorneys argued: "Upon an examination of each 'decision' challenged by the appellants on the grounds of procedural impropriety, it is abundantly clear that there is no proper basis for complaint that the appellants were not afforded a fair and adequate opportunity to be consulted or heard." And BEC's attorneys also challenged RDA's claims that the Corporation altered its plans for Wilson City because of the Judicial Review proceedings. "It is not supported by a scintilla of evidence," they argued, saying the modifications were made due to concerns expressed by Abaco residents. In the original Supreme Court action, Justice Hartman Longley dismissed it because it had not complied with the timeframe for filing Judicial Review actions. He found RDA should have brought their case within six months of the Government's December 2007 signing of the contract to build the Abaco-based power plant. That meant Judicial Review proceedings should have been brought by June 2008, or November 2008 at latest. Justice Longley also found that based on the evidence, Matthew McCoy, RDA's principal and the second applicant bringing the action, had also by his own admission learnt of the Wilson City decision through attending a speech given to Abaco's Chamber of Commerce by Prime Minister Hubert Ingraham in May 2008. "They did not bring the application until December 2009, more than 18 months later, by which time construction of the plant was continuing," Justice Longley found in his ruling. However, the judge agreed with RDA that if the project had been private sector-driven it would "have been stopped sooner" by the Government's regulatory agencies for building without the necessary permits. "In my judgment, the applicants had a genuine complaint about the way the permits were granted," Justice Longley found. "Mr Smith described BEC as a runaway train. That might not have been entirely apt, since under the contract Man Diesel had the obligation to obtain the necessary permits. "They went at 'break neck' speed, no doubt conscious of the need to complete the plant as soon as possible. But, in doing so, many procedures were ignored or bypassed and, in one instance, a 'stop work' order had to be issued so that the proper permits could be obtained. "As Mr Smith rightly pointed out, if this had been a private contract the building would probably have been stopped sooner. But such was the nature of the relationship between the regulatory agencies and [BEC] that nothing was done."