By NEIL HARTNELL
Tribune Business Editor
Prime Minister Perry Christie could soon face court proceedings seeking to imprison him, and other public officials, for failing to obey a Supreme Court Order to shut down the $12 million Blackbeard’s Cay development.
Fred Smith QC, attorney for environmental activist group, reEarth, told Tribune Business yesterday that his clients had obtained “a penal notice” that would enable them to “apply to commit” all defendants, including Mr Christie and one of his Cabinet ministers, to Fox Hill prison for contempt of court.
Mr Smith revealed that all members of the Town Planning Committee had been served with the enforcement Order, and penal notice, relating to Blackbeard’s Cay, and only Mr Christie and V Alfred Gray, minister of agriculture and fisheries, remained.
The Callenders & Co partner, though, admitted that process servers were “too afraid” to-date to approach either man, given that they would likely have to contend with the phalanx of bodyguards hired to protect them.
The latest development in the legal battle over Blackbeard’s Cay, located off the northern New Providence coast opposite Sandals Royal Bahamian, stems from what reEarth alleges to be the Government’s persistent refusal to close the development down in defiance of a Supreme Court Order.
Mr Smith yesterday accused the Government of “creating a constitutional crisis” by failing to the court, and said: “This case is symptomatic of a complete break down of the rule of law in the Bahamas.”
He described the “festering” battle over the cruise passenger excursion destination as “a blatant example” of the Government ignoring and disrespecting the Supreme Court.
Blackbeard’s Cay remains open, and in full operations mode, despite acting-Chief Justice Stephen Isaacs issuing an Order on August 31, 2015, last year to enforce his earlier judgment in favour of reEarth’s Judicial Review application.
His enforcement Order requires both Mr Christie and the Town Planning Committee to mandate that Blue Illusions, the project’s operator, cease developing the island location and restore the land to its original condition,
And Mr Gray, as minister of agriculture and fisheries, is required to remove the eight dolphins at the Blackbeard’s Cay encounter to a new, “appropriate location”.
Justice Isaacs’ Order should effectively spell the end of Blackbeard’s Cay in its current form on Balmoral Island, yet the Government has yet to act despite six months having passed.
“Given that none of the defendants have complied with the court’s Order in stopping activities there, and causing the physical and marine landscape changes to be made to revert the Cay back to its original condition,” Mr Smith told Tribune Business, “reEarth returned to the judge and obtained a penal notice endorsed on the Order for the purpose of applying to commit all the defendants for contempt of court in breaching the Order.”
Acknowledging that it “has proven difficult and, in some cases, impossible” to serve all defendants, Mr Smith said as of yesterday only Mr Christie and Mr Gray remained outstanding.
“The process servers are afraid to serve V Alfred Gray and the Prime Minister,” he added. “We are looking for a process server that will be able to access either of these Cabinet ministers.
“It is very disappointing that the chief executive and his Cabinet minister are difficult to be served, and we may well have to apply for substitute service or, unfortunately, attempt physical service.”
Mr Smith confirmed that Blue Illusions and its principal, Samir Andrawos, had also been served with the documents at their registered office, even though they were not parties or defendants in the case.
He said the move was “just to put them on notice, as they’re acting in breach of the Order”.
Wayne Munroe QC, the attorney for Blue Illusions and Mr Andrawos, did not return Tribune Business messages yesterday seeking comment, even though Munroe & Associates staff confirmed that they - and the nature of the inquiry - had been passed to him.
In an interview with this paper last September, Mr Munroe pledged to fight any effort to close Blackbeard’s Cay on behalf of his client.
He argued that such an action would be “manifestly unfair” to Blue Illusions and a breach of their constitutional rights because they were not a party to the action, which was between reEarth and the Government defendants.
And, should efforts to block the Order’s enforcement fail, and Blackbeard’s Cay be forced to close, Mr Munroe hinted that the Government would face a multi-million dollar lawsuit for loss of profits and other damages stemming from a ‘breach of contract’ involving Blue Illusions Ltd’s Heads of Agreement.
He warned then that the Bahamian taxpayer would be held “liable for millions of dollars”, given his client’s $12 million investment to-date, while 60-100 Bahamian jobs would also be jeopardised.
Mr Smith, though, told Tribune Business that the Government’s failure to follow the court Order “reflects very poorly on the rule of law in the Bahamas”.
“This is what Save the Bays is all about,” he added, “seeking to uphold the rule of law and transparency in governance, upholding statutory procedures, protecting freedom and access to information, and accountability by public servants in the exercise of their public duties.
“It is very unfortunate that such a high profile case continues to fester as such a blatant example of the executive refusing to obey a court Order,” the QC added.
“We’re being driven to the absurd step of having to commit public officials. This has caused a constitutional crisis where the executive has refused to obey an Order of the Supreme Court.”
Sam Duncombe, reEarth’s president, yesterday confirmed that the group was waiting for the enforcement Order and penal notice to be served on all defendants.
“Then we’ll see if the Government follows the law like the rest of us poor slobs have to,” she told Tribune Business.
Justice Isaacs’ original verdict, and subsequent enforcement Order, quashed Blackbeard’s Cay’s dolphin import licences and preliminary Site Approval Plan, on the grounds that they had not been properly obtained in accordance with procedures laid down in Bahamian law.
He also ruled that the Government and developer had failed to hold proper public consultation, which is again required by law.
Mr Gray did not respond to Tribune Business requests for comment yesterday, despite messages being left on his mobile phone.