By NEIL HARTNELL
Tribune Business Editor
A well-known QC is awaiting instructions from his environmental activist clients over how to enforce the judgment they obtained against the $8 million Blackbeard’s Cay project.
Fred Smith QC, the Callender’s & Co attorney and partner, hailed the Court of Appeal’s “administrative dismissal” of the Government’s bid to overturn Justice Stephen Isaacs’ initial ruling as another sign it was “not business as usual” in the Bahamas.
The appellate court’s decision effectively leaves the tourist attraction, which features a dolphin encounter, in a state of ‘legal limbo’.
Justice Isaacs’ initial verdict effectively spells the end of Blackbeard’s Cay, in its current form, as it quashed the dolphin import licences and required the mammals to be moved to a different location.
He had also granted the request by the reEarth environmental activist group to quash the preliminary Site Approval Plan for Blackbeard’s Cay, and ordered that the Government halt its land development.
The Government was ordered to mandate that the developer, Blue Illusions, return the site - located on Balmoral Island off New Providence’s north coast, opposite Sandals Royal Bahamian - to its previous state.
A final batch of Orders prevented the grant of Site Plan Approvals to Blackbeard’s Cay without public consultation over the project, and quashes the Government’s decision to permit the dolphin facility’s construction on Crown Land.
Following the Court of Appeal decision, Mr Smith told Tribune Business he was “going to take instructions” from his reEarth clients “to see what enforcement measures can be undertaken”.
“This is a unique case because we are dealing with flesh and blood animals, not simply property,” he added.
Samir Andrawos, the St Maarten-based businessman who is Blackbeard’s Cay’s principal, did not return Tribune Business phone messages seeking comment last night.
However, in a previous interview with Tribune Business, Mr Andrawos warned that the reEarth legal action would jeopardise more than 100 jobs and send a bad message to potential and current investors.
He pledged that he and his attorney, Charles Mackay, would defend Blue Illusions’ interest “the best we can”, adding that ReEarth’s move had created “a lot to be concerned about”.
The Court of Appeal verdict appears to have caused even more for Mr Andrawos and his legal advisers to “be concerned about”, since it seemingly paves the way for much of the development to be taken down and removed.
Not surprisingly, Mr Smith does not see it the same way. He told Tribune Business: “Finally, perhaps, the Government is recognising it should not spend the Bahamian citizen’s tax dollars defending developers who do not bother to get the proper permits when coming to the Bahamas.
“This should be a signal less to both Bahamian and foreign developers to simply apply for the legally required permits, instead of throwing themselves at the feet of the almighty figure of the Office of the Prime Minister.
“The Prime Minister’s Office cannot give legal dispensation foe Acts of Parliament.”
Justice Isaacs, in finding that the Government had failed to follow its own legal processes in granting Blackbeard’s Cay its permits, ruled that it effectively breached the Marine Mammals Protection Act and the Planning and Subdivisions Act.
“There is no sense in passing the Marine Mammals Protection Act and the Planning and Subdivisions Act, and then ignoring them,” Mr Smith told Tribune Business.
“The Prime Minister’s Office is supposed to enforce the laws passed by Parliament, not ignore them. I ask my Prime Minister, who loves to promote these Heads of Agreement: What does the Government propose to do about this unique challenge facing the Bahamas?
“In the face of international scrutiny, I expect my Prime Minister to rise to the challenge and make the Bahamas proud by doing the right thing.”
In an implicit reference to the fate of Blackbeard’s Cay’s dolphins, Mr Smith said that following the Court of Appeal dismissal, the Bahamas now had “a unique opportunity to develop international jurisprudence on marine mammal protection”.
“It is a wonderful opportunity for the Supreme Court to step on to the world stage in the protection of mammals,” he added. “The Government closed its eyes to the importation of these dolphins, and is the architect of its own unique challenge.”
Mr Smith questioned whether the dolphins were to be freed; sent back to Central America, where they came from; transferred to another facility; or if the Government was to be responsible for their care.
Suggesting that Blue Illusions’ own attorneys should have advised the developer on the processes it needed to follow to properly obtain permits, the QC added: “I look forward to the regulators enforcing the various acts. It is not business as usual in the Bahamas.”
The Blackbeard’s Cay case revolved around whether or not the Government had followed the statutory processes set out in law for granting the approvals and permits required by the developers.
Justice Isaacs found that it had not, and among the highlights of his ruling were:
• The minister of agriculture and marine resources, V Alfred Gray, failed to issue the Premises Licence before approving the dolphin import and facility’s operational licence.
As a result, the Supreme Court found that Mr Gray’s decision to issue the dolphin import licences was “clearly premature” in the absence a Premises Licence.
• The ‘preliminary’ site approval did not amount to full approval, which the judge found Blue Illusions had to obtain under the Planning and Subdivisions Act.
Craig Delancy, the building control officer at the Ministry of Works, had offered a building permit issued to the Blackbeard’s Cay project as being “equivalent” to Site Plan Approval, but Justice Isaacs said it was “patently clear” that the two were completely different.
• Justice Isaacs also criticised the “silence” and “deaf ears” approach adopted by the Government to reEarth’s concerns and requests for information on Blackbeard’s Cay.
• The initial Crown Land lease of the seabed to Blackbeard’s Cay’s initial developer, which was then sub-let to current operator Blue Illusions, was for a stingray attraction only - not a dolphin facility. And the original lease could not be “underlet” to anyone else.