By NEIL HARTNELL
Tribune Business Editor
An outspoken QC was yesterday optimistic that an upcoming Privy Council case may set legal precedent over tactics employed by the Government and developers to “scuttle” court challenges.
Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business the highest court in the judicial system has granted permission for his Responsible Development for Abaco (RDA) client to contest “the over-zealous protection” afforded by the Bahamian courts.
Speaking after RDA obtained “leave to appeal” directly from the Privy Council, having been denied this by the Court of Appeal, he said the outcome could impact both the magnitude and amount of so-called “security for costs” orders that have frequently been used to stifle public interest litigation in The Bahamas.
Recalling cases where he has acted for Save Guana Cay Reef Association, Save the Bays, Waterkeepers Bahamas and reEarth, Mr Smith said: “Many non-governmental organisations (NGOs) have been denied their day in court on the merits of their claim by the Government and the developers joining forces and scuttling what are meritorious and substantial public interest claims by using procedural trench warfare such as security for costs applications.
“Regrettably, since the development of environmental jurisprudence in The Bahamas since the early 2000s, NGOs have repeatedly been met with what are extremely high security for costs orders by the court. By the use of these security for costs mechanisms, civil society has been denuded and deprived of its day in court.
“There is the perception that once developers and the Government have entered into a Heads of Agreement, secretly usually, the sacred cow of development should not be challenged by legitimate, justified reasons, and strong cases by the NGOs have been torpedoed or foundered on the rocks of security for costs.”
RDA is challenging a November 2017 ruling by Supreme Court Justice, Petra Hanna-Weekes, and which was subsequently upheld by the Court of Appeal, to pay the Abaco Club $150,000, and the Government a further $100,000, as a total $250,000 “security for costs” relating to its challenge to the former’s marina in Little Harbour.
“Security for costs” are effectively a bond, lodged in escrow, that will be used to cover a respondent’s legal costs - a well as compensate them for time and delay - should the applicant in a Judicial Review or similar action ultimately lose the case.
Developers and the Government will likely argue they are justified in demanding “security for costs” payments given the legal expenses they incur in combating Judicial Review challenges, many of which they view as frivolous and having no chance of success.
For developers, in particular, requiring environmentalists and other activists to make such payments into escrow is also a means by which they can secure compensation for costs and time-related delays that are incurred if they have to cease construction activity.
Mr Smith, though, said “security for costs” were now being demanded by the Government and developers in almost every Judicial Review challenge. The Bimini Blue Coalition, in its opposition to Resorts World’s dredging, had initially been ordered to pay $850,000 as “security for costs” although this was later cut to $650,000 on appeal.
Describing this as “an impossible bar”, the Callenders & Co attorney and partner noted that Waterkeepers Bahamas and its partners were also required to come up with $200,000 recently to continue with their fight against the former Bahamas Petroleum Company’s (BPC) oil drilling in local waters.
Mr Smith said this had resulted in public interest litigants being denied access to the judicial system and having “their day in court” - something that he argued was guaranteed by the constitution. “I hope that this is a new day for NGOs, and the respect that ought to be accorded to them in having their right to be heard in a trial,” he told Tribune Business.
“RDA is very pleased to have been given the opportunity by the Privy Council to address what is an unconstitutional block to their right of access to trial, and to review and challenge what appears to be an over-zealous protection of developers and the Government by the courts in ordering security for costs.
“The Little Harbour case was particularly egregious because the developer was not sued by RDA. They were allowed to join the action on the eve of the trial, and the Government and the developers in a pincer move together applied for security for costs and derailed the trial days before it was supposed to happen.”
Mr Smith conceded that security for costs demands were allowed, but they should “not be relied upon just as a tool to prevent the hearing of the trial”. And he added that RDA’s complaint, the lack of public consultation on the Abaco Club’s project, had been addressed by legal reforms ushered in by the Environmental Planning and Protection Act.
RDA is opposing The Abaco Club’s construction of a 44-slip marina, along with a supplies shop, private restaurant, 6,000 square foot covered car park, generator, desalination plant and waste treatment facility.
The development will measure 320 feet across the outside piers, 210 feet between the two parallel main piers, and will extend 270 feet into Little Harbour, with the intent for it to accommodate boats up to 60 feet.
However, RDA fears that if the project goes ahead it will completely change the environment and character of Little Harbour, a 50-home community that runs entirely off solar power.
Besides its environmental concerns, RDA is claiming that the relevant government agencies did not hold proper consultation with the Little Harbour community before issuing the grants, permits and approvals required by the Abaco Club for the project’s construction.
The group is also alleging that the Government agencies have withheld information, thereby depriving it of its statutory rights and/or legitimate expectations to contribute to any consultation process.