High court grants injunction to Bimini Blue Coalition; developers must demonstrate they have satisfied all conditions under the law
The controversial dredging operation in Bimini, which concerned citizens say is threatening some of the most pristine and ecologically significant reefs in the region, has been brought to a halt with the granting of an injunction by the Privy Council in London.
The order to stop all dredging activities, which went into effect immediately, will stay in place until the developers, Resorts World Bimini (RWB), can demonstrate they have satisfied all the conditions for a the granting of a permit under the Conservation and Protection of the Physical Landscape of the Bahamas Act (CPPLB).
Declaring a major victory for advocacy group Bimini Blue Coalition (BBC), their lawyer Fred Smith, QC, said: “This is a significant step in the effort to save the vital natural resources of Bimini and defend the integrity of the rule of law in The Bahamas. Hopefully, political leaders will come to realize that they do not have the right to bypass the safeguards and protections built into our laws when granting approvals to developers. We are very happy with the court’s decision, and will continue to hold the government’s feet to the fire in an effort to protect the interests of Bimini’s unique community and precious environment.”
Since the start of dredging last month, a number of environmental scientists and dive experts have said 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 underwater ecosystem, a cruicial nursery for some of the country’s most important fisheries and marine resources.
The developer has said its management plan will prevent environmental fallout, but BBC produced images purporting to show that the silt curtains erected to contain the sediment produced by the dredging have failed.
In its ruling, the Privy Council noted that the RWB development was a controversial one, and that the environmental aspects are not ideal.
Lawyers for BBC argued that the dredging was being carried out contrary to the provisions of the CPPLB. The position of the developers and government was that the dredging did not fall within the ambit of the Act, which refers to “excavation”.
The Privy Council ruled that contrary to the view of the Court of Appeal in Nassau, which rejected an injunction application on Monday, dredging does fall within the meaning of excavation outlined in the act, although not included in the primary definition.
The court also ruled that the approval given by the minister for lands and surveys (Prime Minister Christie) in his capacity as landowner on January 23, 2014, was not a valid permit.
The Law Lords noted that after asking for and being granted a day’s adjournment, lawyers for the government and developer yesterday produced a permit under the Act, dated the day before.
However, that permit can only be issued subject to certain conditions, and even if this were not the case, the court found, there would still be cause for concern.
The Lords noted that before granting the permit, the Director of Physical Planning should have listened to objections and taken them into account. Given the last-minute nature of the document, and the lack of evidence as to whether there was compliance with the conditions, a question-mark hangs over its validity, they said.
The court also noted that although the developers only applied for a permit under the Act at the last minute, it can be said in their favor that up until then, Bahamian authorities had told them the document was unnecessary.
The ruling also took into consideration that BBC is not in a position to give an undertaking to pay damages should they lose, while the developer is facing considerable costs per day.
But, the court said, had the injunction not been granted, it would have undermined the underlying judicial review of the entire development, which is currently stayed in the Bahamas Supreme Court pending the outcome of an appeal concerning security costs.
The Lords noted that the injunction is not unconnected with the underlying judicial review, and that BBC represents individuals who live and work in Bimini and will be affected by the development.
They also pointed out that Resorts World Bimini can be said to have begun the dredging with their eyes open and at their own risk, as the judicial review was already in place and the developers themselves gave an undertaking not to dredge without permits.
Diane Phillips and Associates
Caption: 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 Privy Council in London has granted an injunction to halt the dredging until the developers show they have satisfied all the conditions for a permit stipulated by law.
