Justice Conteh: “No self-respecting government” would give the green light to construction while the matter is still before the courts
One of the country’s top judges has warned of implications for the rule of law if the controversial Bimini Bay development is allowed to forge ahead while still subject to judicial challenge.
Court of Appeal Justice Abdulai Conteh told lawyers for the government and Resorts World Bimini that any construction at the resort site could put the entire case at risk.
“In a democracy, no self-respecting government would do anything to jeopardize proceedings before the court,” he said.
“When there is a contested issue, one should not change the facts on the ground until a decision is made.”
Justice Conteh’s comments came as the appeal, lodged by environmental groups Bimini Blue Coalition and Save The Bays, was again adjourned – this time to June 2.
When the new date was announced, lead lawyer for the environmentalists Fred Smith, QC, expressed concern that construction would be allowed to advance in the meantime.
“Development continues, dredging continues,” the Callenders & Co attorney and partner said.
Pointing to other resort developments contested on the grounds of environmental damage, Smith said: “The government continued to give permits in secret, without disclosure to the appellants. By the time the trial came, it was a fait accompli, and a total waste of time.”
Turning to the lawyer for Resorts World, John Wilson of McKinney, Bancroft and Hughes, Smith asked the court: “Will he give an undertaking not to dredge?”.
But Wilson would only say that his client will give a commitment not dredge unless it has the appropriate permits.
When asked directly if any permits had in fact been granted, he said he did not know.
Justice Conteh intervened, saying he believes Smith’s concern “goes to the heart of the matter” as it speaks to whether there is respect for the legal process.
“It’s more than a precept, and it is applicable in the Bahamas – it’s about the rule of law,” he said.
The judge then asked the government’s lawyer, David Higgins of the Attorney General’s office, “Can’t you say, ‘I will advise my client to hold the status quo’?”
Higgins said he would have to take instructions before answering, while Wilson said the developer would object to any such declaration, as it would lead to “demobilization, at considerable costs”.
For his part, Smith said he was glad to hear Justice Conteh’s statements, adding that he “would come back on that” as the proceedings continue.
A veteran environmental and human rights campaigner, Smith has described the Bimini case as fundamental to regulation and orderly development in the Bahamas.
“The time has come when the Bahamas is no longer the Wild West development show,” he said.
The current appeal was brought against the Supreme Court’s ruling that unless Smith’s clients pay a collective $650,000 ‘security for costs’ to the government and Resorts World Bimini, the Judicial Review action would be dismissed.
Diane Phillips and Associates
Caption: One of the country’s top judges has warned of implications for the rule of law if the controversial Bimini Bay development is allowed to forge ahead while still subject to judicial challenge. Pictured is the bulldozing of mangroves as part of earlier resort construction, which environmentalists say is damaging the island’s crucially important marine and terrestrial ecology. Photo by Gail Woon of EARTHCARE.
