The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The public meeting on the Blackbeard's Cay project's Site Plan application was indefinitely postponed yesterday, after environmental activists threatened to launch 'contempt' and Judicial Review proceedings against the Government.

Attorneys for reEarth, the group that obtained a Supreme Court judgment ordering the $12 million development's closure, had earlier this week warned that legal action would start unless last night's Site Plan meeting was "put on hold" for 30 days.

And the Government appears to have granted their wish and more, postponing the Site Plan application meeting indefinitely. "The public is hereby notified that the public meeting and consultation process.... on behalf of Blue Illusions Ltd for Balmoral Island (also known as Blackbeard's Cay) is postponed until further notice," said a newspaper advertisement signed by Charles Zonicle, acting director of physical planning.

The public notice came after Fred Smith QC, the Callenders & Co attorney and partner, warned the newly-elected Minnis administration that he would bring contempt proceedings on reEarth's behalf if last night's meeting was not postponed.

Mr Smith, in a May 22, 2017, letter seen by Tribune Business, argued that the Town Planning Committee and its responsible minister, the Minister of Works, had breached Justice Stephen Isaacs' July 2014 judgment and subsequent Order by failing to enforce Blackbeard's Cay's closure.

He also warned that a Judicial Review action would be launched against the Town Planning Committee, ministers of works and the environment, and the director of physical planning over their decision to "entertain" the Site Plan application from the developer, Blue Illusions Ltd, despite the closure Order's existence.

"This letter is to put you on notice of reEarth's intention to initiate contempt proceedings against the Town Planning Committee and the Minister [of Works], and to apply for leave to bring Judicial Review proceedings challenging the decisions and seeking an interlocutory injunction preventing the Site Plan application from being considered pending determination of the Judicial Review," Mr Smith wrote.

"By failing to take any, or any sufficient, action to require Blue Illusions to cease the development of the facility and to restore the land to its original use and condition as required by the Order, the Town Planning Committee has acted in breach of the Order and is in contempt.

"The contempt is proven by the Town Planning Committee's failure, and by its decision to entertain a Site Plan application in relation to the facility."

The letter, which was addressed to Mr Zonicle and Carl Bethel QC, the attorney general, added that the Minister of Works, who is responsible for planning, was also in 'contempt of court' by failing to have Blackbeard's Cay's dolphins removed from the development.

Mr Smith said: "The fact that the Government is (or at least the previous administration was) entertaining an application for Site Plan approval for the dolphin enclosure at the site further establishes the breach and the contempt."

Doubling down, Mr Smith also warned the new administration: "In addition to contempt proceedings, reEarth is considering an application for leave to bring Judicial Review proceedings to challenge the decisions of the Town Planning Committee, the director of physical planning, the Minister [of Works] and the Minister of the Environment."

The basis of such an action, he added was the decision "to entertain, or allow there to be entertained", the Site Plan application" and related public consultation despite the existence of Justice Isaacs' closure Order.

Given the circumstances, Mr Smith argued that the process incorporating last night's planned meeting was "ultra vires and/or irrational", given the failure of the Government and its agencies to enforce the July 2014 ruling.

The Christie administration spent almost three years failing to act against Blackbeard's Cay, and Mr Smith wrote: "We appreciate, and hope, that the change of administration, especially with the new Prime Minister, on the occasion of his swearing in last week, committing his administration to respect to the 'rule of law', quite unlike the previous Prime Minister and his administration..... may give rise to a reconsideration of the decisions, and a reappraisal of the decisions not to comply with and [not] to take action in breach of the Order.

"To enable the new administration to consider and reappraise the position, we respectfully suggest that the Site Plan application consultation process that was begun by the previous government, by the Government notice on May 4, 2017, be put on hold for 30 days."

Mr Smith warned that the contempt and Judicial Review proceedings would be launched on Wednesday this week if the Government failed to suspend the process. It has now done so, and it is unclear if the actions have been filed.

"Our client earnestly wishes to work with the new administration and does not wish to launch proceedings," the Callenders & Co partner added.

Sam Duncombe, reEarth's founder, yesterday said no response had been received to Mr Smith's letter from the Government.

She reiterated the environmental group's demand that the Government "uphold the rule of law" and move to enforce the Supreme Court's closure Order, rather than facilitate Blackbeard's Cay's bid to obtain permits retroactively.

Referring to the May 4 Site Plan application notice, Mrs Duncombe told Tribune Business: "The only further notice that we're looking for is that the Government follows through with this court Order, and shuts this place down.

"It's [Blackbeard's Cay] been operating illegally for almost three years now, and if this government is serious about keeping the rule of law alive in the Bahamas, they have an obligation to follow the court Order. It's amazing, the gall of this developer. Is this government going to uphold the rule of law?"

Mrs Duncombe continued: "What is even more incredible is the last government's response: No law here. We are looking, and watching, and are looking for a favourable response from this administration to follow the rule of law, shut this place down, send the dolphins back to Honduras, and cap the number of dolphin facilities in the Bahamas at three."

The Blackbeard's Cay situation is likely to be a tricky one for Desmond Bannister and Romauld Ferreira, the respective ministers of works and the environment. The former acted as the attorney for Blue Illusions and its principal, Samir Andrawos, at one point during the challenge to its permits, while Mr Ferreira was closely associated with Save the Bays - a group with which reEarth is affiliated.

reEarth's outrage was sparked earlier this month when the Department of Physical Planning announced the May 25, 2017, public meeting at its offices to review the Site Plan Application (SPA) submitted by the Blackbeard's Cay developer.

It argued that the Government, rather than obey the July 31, 2014, verdict by Justice Isaacs, was now staging a process to give Blackbeard's Cay all the permits it needed through "the retroactive backdoor".

Justice Isaacs' ruling quashed all Blackbeard's Cay's approvals because the Government had failed to follow its own statutory permitting processes.

Among the permits quashed were Blackbeard's Cay's dolphin import licences and preliminary Site Plan Approval, on the grounds they had not been properly obtained in accordance with procedures laid down in Bahamian law.

Justice Isaacs also found that the Government and developer had failed to hold proper public consultation, which is again required by law, and ordered them to return the development site - located on Balmoral Island opposite Sandals Royal Bahamian, off New Providence's north coast - to its original condition.

But the Site Plan Application drawing, published in the newspapers, appeared to show that, rather than fearing its imminent closure, Blackbeard's Cay - which employs 100 Bahamians - is actually aiming to expand.

The drawing had 'Proposed new development and renovations' plastered on it in large text, with the Department of Physical Planning stating: "The development by Blue Illusions includes ocean pens for a dolphin/stingray encounter, a restaurant, swimming and beach facilities, a nature trail, swimming pools and support buildings and utilities."

The Blackbeard's Cay Site Plan Application was also published a month after the Court of Appeal gave Blue Illusions leave to appeal to the Privy Council over the ownership of the project's dolphins.

Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, accused Blue Illusions of "perverse conduct", and exploiting the Bahamian legal system to prevent enforcement of both the reEarth verdict and the rulings requiring the project's dolphins to be returned to his client.

Mr Moree, who represents the dolphins' supplier, Instituto De Ciencias Marinas (IMS), argued that the Privy Council appeal, together with four other Supreme Court actions launched by Blue Illusions following the initial dolphin verdict, were "obfuscation" attempts designed to prevent Blackbeard's Cay's closure.

However, the Court of Appeal ruled against Mr Moree and granted Blue Illusions leave to appeal the dolphins' ownership to the Privy Council, finding he had not shown that the developer's conduct was completely "oppressive, perverse, or frivolous and vexatious".