The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Blackbeard’s Cay’s developer has slammed the Government for failing to properly protect its $12 million investment from environmental activists, claiming it has been “unfairly treated” in efforts to shut the project down.

Samir Andrawos, principal of Blue Illusions, alleged in a March 22 affidavit that the Government had failed to ask the developer for evidence that would have enabled it to resist reEarth’s bid to force the project’s closure.

In particular, Mr Andrawos said the Government’s legal representative, the Attorney General’s Office, failed to show that Blackbeard’s Cay’s marine park and tourist attraction “was a world-class facility” and among the best in the Caribbean.

His affidavit, which has been obtained by Tribune Business, is among the numerous documents that were employed by Blue Illusions and its attorneys to successfully obtain a Supreme Court injunction barring Blackbeard’s Cay’s closure.

Tribune Business revealed on Friday how Justice Stephen Isaacs had issued an Order staying his previous Judicial Review verdict in favour of reEarth, blocking - at least temporarily - any attempt by the Government and its agencies to act on the latter ruling and close the ‘cruise passenger getaway’ destination.

But, alleging that reEarth deliberately excluded Blue Illusions from the Judicial Review proceedings by removing it as a defendant, Mr Andrawos said the developer was thus denied “a right of audience in the proceedings”.

“The threat to discontinue the operations of Blue, along with the closure of the facilities on Balmoral Island, is a real and imminent threat,” he alleged, “in that the Government of the Bahamas has moved to address matters without Blue having an opportunity to be heard.”

This is a reference to the Government’s decision on March 8, 2016, to issue a marine export licence that paves the way for Blackbeard’s Cay’s eight dolphins to be returned to their Honduran supplier, after Blue Illusions lost a Supreme Court battle over the animals’ ownership.

The export licence was signed by V Alfred Gray, minister of agriculture and fisheries, just one day after Tribune Business revealed the legal verdict, while suggesting the Government appeared to be ‘dragging its feet’ over acting upon it.

Mr Andrawos and Blue Illusions are appealing the Supreme Court verdict, and claimed they had received reassurances from the Government that no action would be taken over the dolphins until the legal process was exhausted.

The export licence’s issuance, coupled with reEarth’s efforts to enforce ‘a penal notice’ that would enable them to apply to commit all the Judicial Review defendants, including Prime Minister Perry Christie and V Alfred Gray, to Fox Hill prison for contempt of court, appear to have convinced Blackbeard’s Cay’s developer that the threat of closure is real.

This, in turn, seems to have sparked Blue Illusions and its Bahamian attorneys, Wayne Munroe QC and Damian Gomez QC, into their latest legal manoeuvre to block this.

“Blue contends that it was not a party to the proceedings in [the Judicial Review] and that its right to be heard is a real right,” Mr Andrawos alleged.

“The [Government] did not call upon Blue to assist with providing information that could have assisted... in resisting the reEarth proceedings.”

Mr Andrawos said the developer’s attorneys only attended the Judicial Review hearings in a ‘Watching Brief’ capacity, and did not participate actively in the proceedings.

“Blue states that it was not fully aware, and neither did Blue know, all of the facts as to what case was made against Blue during the reEarth proceedings,” he alleged.

“Blue contends that it was not provided with all of the evidence and statements in the reEarth proceedings.... Blue contends that it was not given a fair opportunity to correct or contradict any assertions, evidence or statements made during the reEarth proceedings.”

Arguing that Blue Illusions had obtained all the necessary permits, approvals and licences for its marine park and dolphin encounter, Mr Andrawos alleged that the Government had failed to adequately defend the company during the Judicial Review.

“Blue asserts that the [Government] failed to demonstrate that the marine park, aqua culture, tourist attraction and water sports facility at Blackbeard’s cay was a world-class facility, being one of the best in the region.” Mr Andrawos alleged.

“During the course of the reEarth proceedings, no evidence was led by the [Government] to sufficiently demonstrate that Blue was committed to marine mammal educational and conservation programmes that are found throughout the world in progressive societies.”

In relation to the dolphins, Mr Andrawos asserted that “at no time were the marine mammals in any harm or danger, either during their transport to and during their stay in the Bahamas”.

He alleged that the Government had failed to inform the Judicial Review hearings that through Blackbeard’s Cay, “the Bahamian population and the international clientele to the Bahamas has been exposed to world-class dolphin and marine life orientation”.

Mr Andrawos said Blue Illusions had invested $200,000 in building a pool to protect the dolphins against hurricanes, and alleged that sufficient weight had not been given to its hiring of doctors and veterinarians to care for the animals.

Arguing that the attraction had never failed an outside inspection, Mr Andrawos alleged: “Blue states that several Environmental Impact Assessments were conducted, which would demonstrate that the environment at Blackbeard’s Cay/Balmoral island was not in any way contaminated, as alleged by reEarth.

“Blue maintains that at all times it was in possession of the requisite permits, and that any allegation that no licence or permit was in hand is rebuttable. If given a chance, Blue can demonstrate that it did in fact meet the threshold of the presumption of regularity.’

Mr Andrawos referred to a January 23, 2014, letter sent to then-director of investments, Joy Jibrilu, by SEC Consulting Group to support his case.

“The letter therein addresses any negative concerns levied at Blue, and that the site visit by SEV Consulting Group clearly contradicts all of the negative publicity which has caused Blue to suffer loss and damage,” Mr Andrawos alleged.

However, the supporting documents attached to Mr Andrawos’s affidavit appear to show that a full EIA was only conducted more than a year after the Judicial Review action was filed, and several years after the project was first approved.

The EIA, performed by Innovative Solutions Group, and entitled ‘Redevelopment of Balmoral Island’, carries a July 2015 date.