The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian QC says it “seems contrary to the rule of law” for the $12 million Blackbeard’s Cay project to still be operating more than 26 months after the Supreme Court quashed all its approvals.

Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, in an interview with Tribune Business echoed those questioning how the controversial development has been able to remain operational without the necessary licenses and permits.

Mr Moree, who represents the Honduran-based Instituto De Ciencias Marinas (IMS) in its dispute with Blackbeard’s Cay’s developer, Blue Illusions, said it was “reasonable” in the circumstances to repatriate the project’s dolphins to his client.

The Court of Appeal recently upheld a Supreme Court verdict that IMS is the dolphins’ true owner, not Blue Illusions and its principal, Samir Andrawos.

With the dolphins a major attraction for the cruise passengers and other visitors to Blackbeard’s Cay, their potential loss threatens to deal the business a severe blow - hence the intention of Blue Illusions and its attorney, Wayne Munroe QC, to appeal the latest ‘ownership’ verdict to the London-based Privy Council.

“The bigger question continues to be whether the business should be operating at all in view of the judgment of Senior Justice Stephen Isaacs,” Mr Moree told Tribune Business of Blackbeard’s Cay.

“It would appear for some reason that the Government has allowed this business to continue to operate, even though it does not have all the licenses required by law.

“This raises a serious question as to the rule of law, and it is the position of IMS that all parties are required to obey and comply with court Orders. It is difficult to understand how the business can operate without the requisite licenses.”

Blackbeard’s Cay has remained operational despite Justice Isaacs’ end-July 2014 judgment, which quashed all the development’s approvals because the Government had failed to follow its own statutory permitting processes.

That judgment was won by environmental activist group, reEarth, which then also subsequently obtained a ‘penal notice’ requiring the relevant government agencies to close the development down.

The Government, though, has steadfastly refused to act on the Supreme Court Order and ‘penal notice’. And, just to make sure it would not, Blue Illusions and its attorneys subsequently initiated numerous court battles in a bid to prevent enforcement.

They even persuaded the same Justice Isaacs, on April 8, 2016, stay any government efforts to close down Blackbeard’s Cay, although that was later removed.

The matter remains before the courts and, to date, the cruise passenger getaway destination, which is located on Balmoral Island, off New Providence’s north coast opposite Sandals Royal Bahamian, has been able to continue operating in defiance of the Judicial Review judgment.

IMS’s case for the dolphins’ repatriation would be significantly strengthened were any government agencies to move against Blackbeard’s Cay, a fact Blue Illusions is keenly aware of given its host of legal actions.

Echoing the concerns of reEarth and its attorney, Fred Smith QC, Mr Moree said it was “a reasonable expectation” that all sides would comply with the law.

“It has not been explained how this business can continue to operate without the requisite licenses that were quashed by the Supreme Court,” he reiterated to Tribune Business.

“The business has continued to operate without interference, notwithstanding the Order of the Supreme Court, and it would seem this is a matter that has to be addressed at some point.

Mr Munroe and Blue Illusions are disputing the finding that the initial permits and approvals were granted improperly, but Mr Moree added: “It’s not clear that new applications were made, but the fact an application was made does not mean they have licenses.

“Until the licenses are granted, it seems contrary to the rule of law to allow this business to operate. And a reasonable question is, if the business doesn’t have the requisite licences and approvals, then it would seem the dolphins should be repatriates to their owner, which the Supreme Court and Court of Appeal have held to be IMS.”

Mr Moree also refuted Mr Munroe’s previous assertion to Tribune Business that the dolphins’ ownership did not matter, because there was an agreement that the Hondurans would only get them back if another agreement they struck was terminated.

Mr Munroe questioned whether that other agreement had been terminated, but Mr Moree argued that the real issue between the parties was whether Blue Illusions had complied with the deal’s terms.

“To the extent that reference has been made to certain agreements between the parties, serious questions arise as to whether the agreements have been complied with,” Mr Moree said.

“Both the Supreme Court and Court of Appeal have decided that the dolphins are owned by IMS, and it would seem that is an important matter from the point of view of Blue Illusions, as they have indicated they are appealing to the Privy Council.”

Justice Milton Evans, in the original December 17, 2015, ruling on the dolphin ownership issue, rejected much of Mr Andrawos’s evidence and branded him as “evasive and untruthful”.

Justice Evans also suggested that some of the documentary evidence presented at trial implied that the dolphins’ importation into the Bahamas was structured to evade import taxes.

He told attorneys for both sides that the documents “could give rise to the conclusion” that the Government was defrauded of due Customs duty, given that the dolphins were not accurately valued.

Both Blue Illusions and the Honduran-based Instituto De Ciencias Marinas (IMS) denied “any knowledge or intent” to defraud, and Justice Evans confined his ruling to determining that the latter was the dolphins’ true owner.