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Adverse Privy Council Alarm Sparked Bimini Dredge Permit Signing

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The dredging permit for the controversial Bimini cruise terminal project was only produced after attorneys for the Government and developers realised the Privy Council was likely to decide it was necessary.

Confirmation as to why the Government granted Resorts World Bimini this permit with such “overnight” haste came in the UK-based court’s written ruling on why it rejected the second attempt by the project’s opponents for a second injunction to halt the dredging.

The highest court in the Bahamian judicial system, explaining why it granted the Bimini Blue Coalition’s first injunction, said the attorney representing both the Government and Resorts World quickly realised it would find the latter needed a dredging permit issued under the Conservation and Protection of the Physical Landscape of the Bahamas Act.

“As a result of questions put by the Board during the first day’s hearing, the respondents [government and Resorts World] correctly anticipated that the Board might take a different, provisional, view from that of the majority of the Court of Appeal on the question of whether the Conservation Act applied,” the Privy Council ruled.

“When the application resumed on the morning of 23 May, the [Coalition’s] counsel, Ms Jordan, and the Board were presented with what purported to be a permit granted overnight to the developers by the director of physical planning under the Conservation Act.

“There was no suggestion that the document was a fabrication, but there was no written statement from anyone to verify it or to explain how it came into existence.”

The “unusual circumstances” surrounding the permit’s issuance resulted in the Privy Council granting the Bimini Blue Coalition the injunction it craved, as “given the very, very last minute nature of this permit, we consider that there must be a real question as to whether it is valid”.

However, the Privy Council ultimately backed the Court of Appeal and Supreme Court’s decision to discharge that injunction at the behest of Resorts World.

It found that Justice Hartman Longley correctly decided Resorts World was entitled to continue dredging using that permit, and that it had not breached its previous undertaking. This was that it would not dredge without the necessary permits, a question different from whether the permit was valid.

“The judge fell into no legal error in concluding that on the evidence before him the developers were entitled to rely on the permit as prima facie valid, with the consequence that they would not be breaching their undertaking to the court by continuing with the dredging,” the Privy Council found.

“The judge, however, recognised the possibility that a court might subsequently hold that the permit was invalid, in which case the discharge of the injunction might in the meantime result in irremediable damage, and he took that into account in the exercise of his discretion.

“He also took into account the daily loss being suffered by the developers and the absence of any cross-undertaking in damages. On the question which caused the judge the greatest difficulty, that is, whether the developers were fully complying with the conditions of the licence, the Board rejects the suggestion that his approach or conclusions were perverse. He was entitled to conclude that the developers were at least arguably complying with the necessary conditions, and he was properly entitled to take the evidence from the Bahamas Environment, Science and Technology (BEST) Commission into account in reaching his ultimate decision whether to set aside the injunction.”

As previously revealed by Tribune Business, Resorts World had lost $160,000 per day while the dredger sat idle, and faced a $5.5 million mobilisation/demobilisation charge if the operation had to be suspended as a result of the injunction.

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