The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Court of Appeal judge has branded flaws in Bahamian law, which allow developers to obtain approval for major investment projects and infrastructure works without first producing an Environmental Impact Assessment (EIA), as “ominous” and “worrisome”.

Justice Abdulai Conteh, giving the seventh annual Eugene Dupuch lecture, urged Parliament to pass a “comprehensive Act dedicated to the protection of the environment” to address the current weakness/loopholes in Bahamian statute laws.

Suggesting that the solution lay in an Environmental Protection Act and accompanying regulations, Justice Conteh said the BEST acronym for the Bahamas Environment, Science and Technology Commission was misleading.

Noting that BEST has no statutory basis in law, and can only ‘advise’ the Government, Justice Conteh said the body’s initials “do not reflect the best practice or arrangement that could be made for the protection of the environment”.

In his address, a copy of which has been obtained by Tribune Business, Justice Conteh told attendees of his speech, hosted by COB’s Environmental Law Clinic, that previous court judgments had drawn attention to the Bahamas’ ad-hoc, ‘scattergun’ approach to environmental protection.

Despite numerous laws, the Bahamas has not mandated that developers submit - and publish - EIAs before undertaking major infrastructure and development works.

“It is a curious feature that despite the Bahamas’ environmental circumstances, and even with a Government Ministry responsible for environmental health, there is no comprehensive statute dealing with the protection of its environment,” Justice Conteh said.

Referring to laws such as the Wild Birds Protection Act, the Plants Protection Act, Marine Mammal Protection Act and Captive Dolphins regulations, the Conservation and Protection of the Physical Landscape Act and the Town Planning Act, Justice Conteh said all were effectively silent on the preparation and disclosure of EIAs.

“Ominously for the protection of the environment, none of these statutes requires an Environmental Impact Assessment to be prepared and published before approval of any major infrastructural works or development,” Justice Conteh said.

“And worrisome still, there is no statutory requirement for an EIA to be obtained by a developer before permission is given for a major project likely to affect the environment.

“This state of affairs can, and should, be troubling for anyone interested in the protection of the environment.”

Justice Conteh said that while it had become “standard practice” for developers to submit EIAs to the BEST Commission for review, there was nothing in law that required them to do so.

“The acronym BEST, does not, in my respectful view, reflect the best practice or arrangement that could be made for the protection of the environment,” he added.

While agreeing that BEST “undoubtedly performs a very useful role” in advising the Government on the environmental implications of development proposals, and acted as a ‘public watchdog’, Justice Conteh said protection of the environment in the Bahamas “does not have a statutory basis”.

Environmental protection has assumed ever-increasing importance in the Bahamas in recent years, and not just because of the litigation involving the Baker’s Bay project; BEC Wilson City power plant; Blackbeard’s Cay; and Nygard Cay that have either gone through - or are making their way - through the court system.

Bahamians are becoming ever more-aware of the environment’s increasing importance, both to their quality of life and economic well-being, given that its preservation is vital to future generations and this nation’s continued attraction for the tourists and developers that drive its economy.

To facilitate this, Justice Conteh called for the Bahamas to pass an Environmental Protection Act and accompanying regulations that would require EIAs to be approved before developers began their construction projects.

“I think the undoubted need to protect the environment is far too serious to be found scattered in a myriad of legislation and regulations as at present,” he warned.

“A comprehensive Act on the protection of the environment and supplementing regulations would also be in the interest of would-be investors, both local and foreign, who would then have ready access to the law that might affect any project they are interested in that would have consequences for the environment.

“The rules of engagement would therefore be available to all interested parties. This can only foster the objectives of sustainable development.”

Explaining how an Environmental Protection Act would work, Justice Conteh added: “Such a statutory regime should require that anyone undertaking a project which may significantly affect the environment must cause an EIA to be carried out and submitted to the Ministry of the Environment or the BEST Commission.

“Such a regime may also prescribe the form and content of the EIA to be submitted. But, more importantly, the regime should stipulate that work on the project shall not commence until the EIA in respect of it is approved.”

Justice Conteh said this would also boost transparency surrounding major investment projects, and give Bahamians and concerned stakeholders the opportunity to be consulted and provide feedback before approvals are forthcoming.

“In my view, the abiding merit of such a regime for the protection of the environment will be that it will distinguish between the procedure to be followed in arriving at the decision to approve the project and the merits of the project itself,” Justice Conteh said.

“The procedure to be followed in arriving at the decision is a matter of statute, while the merit of the project is for the competent authority, usually a department of government.

“As a matter of statue, the procedural requirements will be binding on the decision maker. But the merits of the proposal are entirely for the decision maker.”