Bahamas dredging permit grant ‘extraordinary’, says Privy Council in dismissing appeal

Nassau, Bahamas — A lord justice of the Judicial Committee of the Privy Council on Monday described as “completely extraordinary” the Bahamas government’s decision to grant a permit for an “expanded” dredging project to take place off Bimini in the midst of a legal challenge without allowing for input from “known objectors”.

Despite these concerns, which Lord Mance said made the permit on which Resorts World Bimini proceeded “extremely questionable”, the Privy Council determined that it would refuse an application from the Bimini Blue Coalition (BBC) that would have stopped dredging off the coast of Bimini.

The decision was welcomed by Resorts World Bimini, which aims to complete the North Bimini Ferry Terminal project by the end of summer, while an attorney for opponents of the work blamed the Bahamian government for an “appalling” lack of respect for the country’s legal system.

Fred Smith QC, called the Judicial Committee of the Privy Council’s decision “the worst case” scenario for the Bimini Blue Coalition, which has maintained that developers Resorts World Bimini have moved ahead with the controversial dredging without proper approvals.

While the Privy Council has not yet provided its reasons for the decision it reached to dismiss the Bimini Blue Coalition’s application that would have reinstated an injunction on Monday, it came shortly after attorneys for Resorts World Bimini provided evidence to the court that the dredging for which the BBC had sought an injunction was already completed.

This revelation led Lord Neuberger to state: “So we can go home now, can we?”

“If it has stopped, then if we grant the injunction it won’t matter…” said the judge.

In its second turn hearing an application related to the dredging dispute, the Privy Council, The Bahamas’ highest court of appeal, dismissed the BBC’s application in which it had sought to overturn the Court of Appeal’s judgment regarding a decision by Supreme Court Judge Hartman Longley.

Longley had, on May 30, discharged an injunction previously granted by the Privy Council of the dredging by the developer. The injunction had been granted on the basis that Resorts World Bimini and the government had to prove the validity of their dredging permit to the Bahamian courts.

Commenting on the decision of the Privy Council on Monday, Smith suggested that the government had made it difficult for opponents to ascertain the status of permits associated with the process. He said this had made it virtually impossible to challenge the dredging project legally before the majority of the environmental impact had already taken place. In the case of the dredging work, this included impacts to the seabed and surrounding marine environment in Bimini, which is known for its recreational diving and diverse marine life.

“As with Guana Cay, Wilson City power plant and, now, Bimini, by keeping the permitting process secret until work has actually started makes it almost impossible to effectively access the judicial system in time to protect local and environmental rights.”

He said the case shows why The Bahamas “desperately needs an effective Freedom of Information Act”, suggesting that such an act would allow concerned individuals to know what is going on with developments in their communities with enough time to ensure their voices are heard on the matter.

In the case of the North Bimini Ferry Terminal project, the permit for dredging to proceed was not produced by attorneys for Resorts World Bimini until a week after it had started, and opponents were not presented with a formal opportunity to have input on the granting of the permit as is suggested under the law.

Just a week prior, attorneys for the BBC had discovered in court that Resorts World Bimini had applied for an extension of the dredging project to three times its original size.

In court, Lord Hodge suggested that, given the timeframe involved, the government had not “done very much to let interested parties know what they are facing” in relation to the expanded version of the project.

To this, an attorney for the government, identified as “Mr Knox” in court transcripts, said: “My Lord, no, I can accept that they haven’t done very much. My answer to that is that they are not statutorily obliged to.” Knox defended the validity of the permit and the process by which it was granted.

Nonetheless, Lord Mance, referring to the swiftness with which the permit was granted, called it “a rather remarkable thing… a permit that came like manna from heaven”.

Earlier, Ruth Jordan, attorney for the BBC, had said due process had been ignored in the permitting process.

“There has been a political decision taken by the prime minister to support this development, and it’s been pushed through, we say, in secret and effectively on a wink and a nod from the prime minister.

“We say the prime minister clearly doesn’t have the power to overreach public officials and drive through projects without requiring developers to go through the proper channels.”

Resorts World Bimini said of the ruling: “Resorts World Bimini is pleased with the court outcome, which was consistent with our position. We will continue to construct the cruise pier as expeditiously as possible while providing Biminites with jobs and working to complete the full destination project. The pier is scheduled to be completed by the end of the summer with the new marina hotel marked for a late fall opening.”

Smith committed to continuing a judicial review action against the government in relation to the North Bimini Ferry Terminal project, designed to allow the Bimini Superfast Ferry to dock at the island, despite attorneys for the Bimini Blue Coalition in London losing in their bid to have the injunction order reinstated

“Bimini Blue Coalition lives to fight another day and looks forward to its day in court to hopefully prevent future environmental gamesmanship. BBC considers that it has a strong case to continue for judicial review. Although dredging has been completed, that is but a small piece of the development puzzle. The golf course is no doubt next!”

Some local Biminites have objected to the BBC’s legal challenges, claiming that the project has the support of the island as it will bring economic development, while others have expressed concern over a lack of information relating to the project and its impact on the environment, established dive-related tourism and important fisheries.

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