The Court of Appeal has ruled that Discovery Land Company could resume work on the controversial Guana Cay development effective next Wednesday if a Supreme Court judge does not hand down a ruling in the case involving a challenge to the multimillion-dollar project.
The case in the lower court wrapped up on February 23, but Acting Justice Norris Carrol has yet to deliver a judgment.
The Save Guana Cay Reef Association wants the judge to rule that the government had no legal authority to approve such a project, which Association members insist is already damaging the environment.
The developers had asked the Court of Appeal to release them from a court-approved undertaking given on November 22 to halt work on the project until the Supreme Court case is decided.
In a letter to Association President Fred Smith, which was copied to the registrar of the Court of Appeal and the Office of the Attorney General, the developers had said they shall not cut, tear down or remove any vegetation or trees; disturb or remove any mangrove or wetlands; excavate or dredge the land or seabed; erect any further buildings or structures on the land; or construct or pave any further roads.
The Court of Appeal said that the fairest decision it can reach for all parties concerned “is to say that unless the judge in the court below gives the decision by the 31st of May, on that date, the undertaking will be no more.”
But Mr. Smith had asked the Court of Appeal for an order saying that until the judgment is delivered by Acting Justice Carrol in the Supreme Court the developers be prohibited from continuing their project, which would have included the blocking of any further clearing of land, or extension of roads.
But the high court dismissed that request saying it was “misconceived”.
The court noted that it had heard extensive arguments from Mr. Smith as to why it should not relieve the developers from their undertaking given last year.
The Association had claimed that the developers had caused damage to the environment since the undertaking was given, and that this damage could be irreparable.
It had also said that an Environmental Impact Assessment study needed to be done, but the Court of Appeal said that it was not dealing with the material facts of the case before the Supreme Court.
“The issue, really, is whether or not we should relieve the developers of the undertaking to this court in good faith in November of 2005,” the justices noted, adding that Mr. Smith had argued that since the developers breached the undertaking that was one good reason not to relieve them of the undertaking.
But they said, “We are not satisfied that there has been any breach of the undertaking by the developers since they gave it in November 2005.”
The Association had asked the Court of Appeal to send the developers to Her Majestyﾒs Prison “for their contempt of this Honourable Court in breaching the developersﾒ undertaking dated November 22, 2005.”
The Court of Appeal said that to ask for somebody to be committed or to suggest that somebody has breached an undertaking, “the evidence must be as cogent as it must be goodﾅWe do not see any proof so far.”
The justices said the undertaking was given on the understanding that within a reasonable time, a decision would be rendered in the substantive action, but they did not question why it was taking so long for a judgment to be delivered.
Mr. Smith had suggested that another two months would not have been unreasonable for the undertaking to remain in effect.
But the justices said, “We do not think soﾅWe do not think it was anticipated by anyone in November 2005 that by May 2006 there would not have been a resolution, at least at the trial court level of this issue. Hence, the need for speed ﾖ reasonable speed ﾖ in dealing with the matter by all concerned.”
In response to the Associationﾒs attempt to have the undertaking remain in effect, the developers had said the Association was again seeking to delay employment of Bahamians and meaningful development in The Bahamas by rehashing alleged violations of voluntary undertakings by the developers of the Bakerﾒs Bay Golf and Ocean Club.
“The Bakerﾒs Bay Project categorically denies all of the alleged violations and is disappointed in the actions of SGCR Association which we feel amounts to unwarranted harassment,” the developers said in a release in March.
“The Bakerﾒs Bay Golf and Ocean Club shares the concerns of all Bahamians for the environment and protection of the corals and reefs that are key components of the natural resources of The Bahamas. To say and or portray otherwise in the manner frequently done by SGCR is a misrepresentation of the truth and a travesty.”
The developers had reiterated: “Bakerﾒs Bay will be the most environmentally sensitive development in the world. Clearly, it would not be in the projectﾒs best interest to harm the environment and we are taking very careful, proven, and appropriate steps to safeguard the environment in and around Bakerﾒs Bay. We are more than prepared to share our environmental safeguard plans with all interested parties.”
By: Candia Dames, The Bahama Journal
