Concerned citizens say the cloud of silt seen trailing away from the mammoth dredger ‘Niccolo Machiavelli’ will settle on Bimini’s pristine coral reefs and suffocate the island’s rich marine ecosystem.
The dredger at work off the coast of Bimini
By Alison Lowe
Nassau Guardian Business Editor
NASSAU, Bahamas -- A justice of the Bahamas Court of Appeal said on Thursday that it appears that there was a “monumental misapprehension” of the law by government officials who were involved in granting permits for dredging in Bimini. Justice Abdulai Conteh questioned whether or not there was an “abject failure” of Director of Physical Planning (DPP) Michael Major to do his duty as it relates to the controversial project.
Justice Conteh made his comments as three sides -- Resorts World Bimini (RWB), the Bimini Blue Coalition (BBC) and the government -- met again in court, as the BBC continued seeking to have the Court of Appeal overturn the May 30 decision of the Supreme Court to discharge an injunction granted by the Privy Council in London of the Bimini dredging project being undertaken by RWB.
The hearing ultimately resulted in a 2-1 decision by the Court of Appeal -- with Senior Justice Anita Allen and Justice Neville Adderley ruling in the majority, and Justice Abdulai Conteh dissenting -- to uphold Supreme Court Justice Hartman Longley’s decision to discharge the injunction and allow the dredging to continue.
Fred Smith, attorney for the BBC, requested and received leave to appeal the decision to the Privy Council in London, and the matter is expected to be heard as early as this week. This would mark the second time the case has been heard in London.
In its May 23 ruling, the Privy Council said that Resorts World Bimini could seek to have the injunction discharged by either The Bahamas’ Supreme Court or the Court of Appeal. In order to do so, RWB would have to provide evidence proving that the permit it had shown the Privy Council was a legally valid permit.
The Privy Council, in its deliberations, noted that the permit that was shown to the court had been obtained a day prior, on May 22, a week after the dredging began, and questioned whether the DPP had given proper consideration to the issue before granting it.
Presenting the BBC’s case to have the order discharging the injunction overturned, attorney for the coalition, Fred Smith, QC, pointed to evidence that he said showed that Major had “abdicated his statutory duty”, regarding the granting of the permit. Smith argued that it was, therefore, invalid.
His case hinged on the fact that, in a letter dated May 14, 2014, Major stated that his department was not responsible for issuing permits related to dredging.
In the letter provided to the court, Major said: “Please be advised that applications for dredging operations are submitted to the Department of Lands and Surveys, a body that is also responsible for issuing permits. You are advised to contact that agency for further information on the references permits and plans.”
In addition, Smith referred to a May 28 affidavit from Acting Director of Physical Planning Charles Zonicle, who said that prior to the granting of the permit on May 22 the DPP had “numerous inter-agency meetings and consultations with other governmental agencies to collectively review and properly consider the application for the dredging of the seabed to facilitate the proposed ferry terminal at North Bimini”.
Zonicle said that the DPP was “involved in all of these meetings to consider approvals for the project and was aware of all the documentations and issues raised in respect of the project”.
Smith suggested Zonicle’s statement showed there was a “clear contradiction” between Zonicle and Major on the issue of whether Major as DPP had ever given consideration to the permit, and therefore the permit’s validity was in question.
Smith later went on to point out how applications for the permits were made in December 2013 and mid-March 2014, telling the court that Major’s letter on May 14 suggests Major “never applied his mind” to the question of whether these permits should be granted, as it is his duty to do.
Justice Abdulai Conteh noted that there seemed to be some “corroboration” among various pieces of evidence submitted on the part of the government and developer regarding the fact that they believed the Department of Lands and Surveys -- not the Department of Physical Planning under Major -- was responsible for granting the permit.
However, he questioned whether the letter written by Major suggested that there had been an “abject failure” on the part of the DPP with regard to the matter of the dredging permit and his responsibilities in this respect.
Rejecting Smith’s argument, the attorney for the developer, John Wilson of McKinney, Bancroft and Hughes, said he felt the letter from Major should be of “no matter” to the court. He suggested it merely corroborated evidence given earlier by one of the developer’s representatives, Sidney Brodie, who had said that he was directed either by the DPP or the Office of the Prime Minister to take his application to the Department of Lands and Surveys rather than the Department of Physical Planning, as required under the Conservation and Protection of the Physical Landscape of The Bahamas Act (CPPLBA).
Later, Wilson suggested that, even if the CPPLBA applied to sea dredging, there is no statutory basis in the act to have an environmental impact assessment; he added that the act does not make reference to “coral” or “sediment” -- two of the types of resources that the BBC expects will be impacted by the dredging.
The attorney appearing on behalf of the government, Loren Klein, said that the government took a “very similar” position to the developer on the issue of the letter from Major.
“We say it simply confirms the position that... all of the authorities were still operating under the authority of the Crown Land regime”, said Klein. The Crown Land regime would have required an approval from the Department of Lands and Surveys, rather than the Department of Physical Planning and its director, Major.
But both Smith and Justice Conteh were at odds with this position.
Smith argued: “I submit that the submission by the developer and the government that their failure to abide by the provisions of the (CPPLB) act could be excused because they were advised by the DPP or the OPM (Office of the Prime Minister) to follow a different procedure should not be accepted by the court.”
Rather, Smith added, there is evidence that the DPP in doing so “completely abdicated his statutory duty” in the permitting process, bringing into question the validity of any permit granted.
Conteh said that it appeared the “whole process” leading up to the granting of the permit “seems to have been attended by a monumental misapprehension of the act (the CPPBLA)” and the duties of officials under the act.
Crown Land regime
Senior Justice Anita Allen, however, said that Major and Zonicle’s evidence suggested that “everyone thought that was the process”. She was referring to the appropriateness of the application for the permit being referred from the director of physical planning to the Department of Lands and Surveys to be dealt with under the “Crown Land regime”, rather than the CPPLBA.
She said she felt there was “no point going back” over this issue given that “everyone was of the view that the Crown Land regime governed the process until the Privy Council gave their view”.
Smith applied for a stay of the court’s dismissal of the BBC’s appeal against Longley's decision on the injunction. The court refused this application, meaning that its judgment will be enforced immediately, and the injunction is effectively lifted.
The Court of Appeal reserved judgment with respect to costs to be paid by the BBC.
Republished with permission of the Nassau Guardian