A Supreme Court judge ruled yesterday that the Government of The Bahamas has no legal obligation to consult the public before approving development and threw out the case of the Save Guana Cay Reef Association, which has been fighting a multimillion-development for months now.
It came as a major blow to the group, which had submitted an application to the court to halt the controversial Baker’s Bay development at Guana Cay.
Justice Stephen Isaacs also dismissed the entire action, noting that the association, as the applicant in the matter, had no standing before the court as it was neither a landowner nor a resident with any interest directly affected by the development.
Steve Adelson, a partner with Discovery Land Company, which is carrying out the development, said his team was excited about the decision and feels strongly that it was the right one.
“This was an important decision for The Bahamas and foreign investment, as it upholds the rights of the government to enter into these types of agreement. We are still disturbed at the amount of mis-information and false advertising that [the Save Guana Cay Reef Association] continues to publish.
“We are confident that the people who have taken the time to research the truth contained in the heads of agreement, the [Environmental Impact Assessment] and Discovery’s track record know this is a great project for The Bahamas, Abaco and Guana Cay.”
Some residents of Guana Cay, led by Grand Bahama attorney, Fred Smith, have been fighting the development.
The developers have indicated that they expect to commit approximately $500 million to the development over a 10-year period, but the residents claim that the project would have an adverse impact on the island’s natural environment.
The association had asked the court to determine that the National Economic Council had no power or authority to enter into a heads of agreement with the developers and had sought an order prohibiting the government from granting the leases for Crown and Treasury land to the developers.
But Justice Isaacs agreed with Cabinet Secretary Wendell Major that the National Economic Council is in fact comprised of members of the Cabinet, and is therefore effectively the government.
The association also wanted the court to block the granting of any concessions under the heads of agreement with the developers which government officials signed in March.
In addition, as an alternative, the applicant had asked that the government conduct a process of “full and proper public consultation prior to the granting or issuing of any leases, approvals, permits, rights, concessions, exemptions or grants.”
The judge found that the Save Guana Cay Reef Association Ltd. had no interest in the proceedings and therefore the injunction should not be granted and further, that it would be pointless to continue the action.
While determining that the court had jurisdiction to grant the relief sought, Justice Isaacs ruled that the applicant failed to show sufficient interest in the matter in order to succeed in a judicial review application.
Pointing to another case which established a precedent in these kinds of matters, the ruling indicated that, “The mere fact that thousands of people join together and assert they have an interest does not create one.”
The ruling also indicates that if there is insufficient interest, the court is prohibited from granting leave.
“It is submitted that the heads of agreement which the applicant challenges does not interfere directly with the applicants’ personal or public rights or has adverse financial consequences for it, and therefore this is not a case where leave should be granted,” the ruling states.
The developers also noted that the court, in considering whether to grant injunctive relief is required to consider whether the application raises a serious issue to be tried and if so, whether there would be irreparable harm if an injunction is granted.
Justice Isaacs wrote, “It is submitted that there is no important issue of law raised by this application.
The developers during the matter also outlined the damage that they would suffer if the injunction were granted. An affidavit placed the monthly expenditure of the developers in preparatory work as being just under $750,000.
Using another test in reaching his decision, Justice Isaacs also determined that, “-it would be impossible, based on the material before the court, to show that their property was going to be directly affected by the development-”
He also wrote that, “Although much weight was attached to the Environmental Impact Assessment by the applicants, it is not a document on which the court can adjudicate, because ‘it is not a decision making end in itself, it is a means to a decision making end. Its purpose is to assist the decision makers.'”
The ruling states, “In other words the policymakers are armed with the Environmental Impact Assessment for the purpose of deciding what ought to be allowed and what ought to be prohibited with regard to the development.”
As indicated, Justice Isaacs also touched on the issue of public consultation. Members of The Save Guana Cay Reef Association, who at one point demonstrated in downtown Nassau against the development, have insisted all along that the government did not consult residents of the tiny island in the Abacos.
But the judge noted that, “There is no statutory requirement for such consultation, although it may amount to good governance and good business practice where a company is embarking on a large scale project.
“The suggestion that such a requirement can be imported from another jurisdiction is rejected in the strongest terms, as such a requirement can only be established by the legislature, and not by a court of law.”
The ruling also says, “Although the applicant and its supporters may feel passionately that their pristine and idyllic island paradise ought not to have on it such a large development as proposed, the current application has no more effect than the demonstrations staged by them earlier.”
Mr. Smith, the association’s attorney, issued a statement shortly after the ruling was delivered.
“Obviously, the people of Guana Cay are very disappointed by this ruling,” he said. “However, this is just a battle in a long war. This is only round one. We are still in the fight. This decision will not deflect or weaken the passionate resolve of the people of Guana Cay to stand up for their rights.”
He said the people of Guana Cay are committed to saving their heritage, their community, and their environment, not only for themselves, but future generations of Bahamians.
“This judicial review action is but a small part of their political, legal, public relations, local, national and international campaign to preserve their Crown Land, their way of life, their access to beaches and their environment.”
But Mr. Adelson said in his reaction to the ruling that his company’s plans as always have been to develop the project in the highest quality and in an environmentally sensitive manner.
“We have obtained initial permits to clean up the Premiere cruise line damage (previous occupants of the land) and will be receiving our permits for our initial marketing and lodging facilities. We will also be hiring an additional 15 to 20 Abaconians for full time, long-term positions to operate these project facilities. We remain excited and fully committed to Baker’s Bay and The Bahamas.”
Several weeks ago, Prime Minister Perry Christie said in the House of Assembly that he was confident that justice would prevail in this matter and that the Guana Cay development was in the best interest of The Bahamas.
By: Candia Dames, The Bahama Journal
