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Privy Council Refuses Gov't Bec Plant Appeal

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Fred Smith

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A well-known QC yesterday said “a real tipping point” had been reached in protecting the Bahamian environment and local rights, after the Privy Council flatly refused to hear the Government’s appeal over the Wilson City power plant ruling.

The UK-based court, the highest in the Bahamian judicial system, rejected the Government’s bid to appeal the Court of Appeal’s 2012 verdict on BEC’s new Abaco plant because the matter “does not raise an arguable point of law of general public importance”.

Responding to the Privy Council’s decision not to let the Government’s appeal get past ‘first base’, Fred Smith QC, who represented Responsible Development for Abaco (RDA) in the case, described it as “an historic point” in developing case law on Bahamian environmental regulation.

The Callender’s & Co attorney and partner told Tribune Business: “We lost at the Supreme Court, won at the Court of Appeal, and the Privy Council refused BEC and the Attorney General leave to appeal on the basis that clearly the Court of Appeal were correct, and there was no important principle of public law involved in the appeal - meaning the idea that persons affected by a decision of a public authority had a right to be consulted at every turn, that a decision that would affect their rights was so trite as to be uncontroversial, and should not form the basis of an appeal.”

Mr Smith added that the Privy Council decision emphasised “that decision makers cannot keep their decisions secret, and when discovered take advantage of limitation periods and claims of delay in the challenge to defeat a claim in the courts and set aside the decision.

“Apparently, only in the Bahamas would our central government dictatorship, the Office of the Prime Minister, pretending to be some sort of paragon of the Westminster Model Virtue of Governance, think otherwise.”

As for the wider implications of the Privy Council decision, Mr Smith said it was “an historic point in the development of Bahamian environmental and regulatory law jurisprudence, a real tipping point in the fight for the protection of local rights and the environment”.

In its opposition to the Government’s attempt to appeal to the Privy Council, RDA argued that the action should be rejected “because it raises no issue of principle or of public importance to justify the Board’s intervention, and the identified grounds are entirely without merit and bound to fail”.

It further alleged: “There is no basis for attacking the Court of Appeal’s finding of a legitimate expectation giving rise to a duty to consult and, in any event, the Petitioners [the Government] do not challenge the Court of Appeal’s additional finding of a duty to consult based on the finding that the decision was likely to affect the rights and interests of the Respondents.

“There is no basis for the Petitioners’ assertion that the Court of Appeal ought to have made a separate finding of a duty to consult in relation to the operation of the plant ,as distinct from in relation to the location and construction of the plant. The duty found by the Court of Appeal encompasses this, and in any event there is a continuing duty to consult.”

In its October 2012 ruling, the Court of Appeal had ordered BEC to engage in “full and proper public consultation” over the operation of its new $105 million Abaco power plant.

It also found “there was no adequate and meaningful consultation relative to the location and construction” of the Wilson City power plant by either BEC or the Government.

Court president Anita Allen, in her ruling that was backed by all three judges, agreed that a September 10, 2009, meeting on the Wilson City power plant presented the project as a ‘fait accompli’.

And she added that it was “a reasonable inference” for RDA to conclude that BEC’s decision to change the fuel type, and abandon plans for a fuel pipeline, resulted from “the pressure exerted by... the Judicial Review proceedings” rather than any public consultation.

Given that the Wilson City plant is now constructed and operational, the Court of Appeal said it would “serve no useful purpose” to grant RDA’s demands - that it not be built at all - in full.

Instead, it ruled that consultation be limited to the plant’s ongoing operations and previous approvals that were only granted ‘in principle’.

These approvals include the construction of a generator house and dock; Town Planning approval in principle; and the “conditional approval of plans for the power plant”.

Mr Smith said that as a result of the Court of Appeal ruling, “RDA was made essentially a member of BEC’s governing body on environmental and operating issues”.

RDA did not have it all its own way, though, the Court of Appeal finding that its constitutional claims were based on “duplicity” and were “an abuse of the court process”.

Apart from BEC, the defendants included former Prime Minister Hubert Ingraham, plus ministers Earl Deveaux, John Delaney, Hubert Minnis and Neko Grant, and South Abaco District Council.

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