Coalition delighted by pledge not to dredge without handing over permits; still concerned about secrecy, failure to consult with the community
Concerned citizens who oppose the Resorts World Bimini mega-resort are cautiously celebrating after the developers agreed, at the urging of a judge, not to begin dredging without handing over all the necessary permits.
The Bimini Blue Coalition, which initiated a judicial review challenge of the project citing the potential for extensive environmental damage foreshadowed in the company’s own Environmental Impact Assessment (EIA), claims if any permits or approvals do exist, they have been granted by the government in secret, despite numerous requests for information.
“We are delighted to know that Resorts World intends to abide by Bahamian law and commend the legal team that has represented us so well,” said the coalition in a statement. “But at the same time, given the lack of transparency thus far on this issue, where the government and the developer are concerned, we are still very wary.
“We have requested that we be notified before any permits or approvals might be granted and given an opportunity to present very valid reasons why permits shouldn’t be granted.
“This resort will be a game changer for Bimini. One can’t walk back the cat. We don’t want to awaken one morning to find permits have been granted, work is beginning and the people of Bimini have never had any input whatsoever.”
The developer’s attorney, John Wilson, agreed to produce the permits before dredging last week Friday at the urging of the court, after the coalition’s lead lawyer, Fred Smith, QC, sought an injunction to force Resorts World Bimini’s hand.
“In all fairness and justice, given that this entire development is before the court, we ought to have sight of the relevant permits so that we can take the appropriate actions,” Smith argued, adding that the arrival of a massive dredger off the coast of the island suggested that a start to the dredging was imminent.
The area tapped for excavation to accommodate a cruise ship-size ferry includes six of Bimini’s pristine reefs and is dangerously close to eight others, the coalition says. Smith told the court his clients are seeking to prevent “irreparable” ecological damage.
Several scientists and experts have backed this claim, with international dive guru Neal Watson recently saying dredging in Bimini will cause more irreversible damage to reefs in 30 days than would normally occur in 30 years.
“An entire process has been undertaken, in secret, where we have not been given an opportunity to be consulted, and to make a considered contribution to the decision-maker as to whether a permit should or should not be granted. We have been asking for them, they haven’t given them,” Smith told the court. “We were told we would be given them, we now find the dredger, at the site, we still haven’t seen a permit.”
Court of Appeal President Justice Anita Allen pointed out that Wilson had already given a commitment to the Supreme Court that his clients would not begin work without permits. She asked why he could not simply give another undertaking not to begin dredging without first issuing notice that the permission had been granted, and providing copies of the permits to the coalition.
“You have nothing to hide, you have your permits – I don’t know if you have them or not – but you can’t dredge until you have them,” she told Wilson. “The further undertaking I’m asking: can you not go a step further and say ‘We will give you a copy of the permits before we dredge’? What’s wrong with that? If they are all lawful, if they are all legal, they are all properly given, what’s the problem?”
Before committing to provide the permits, Wilson argued that although a similar commitment had been given in the lower court, his clients should not be held to it as the matter had been stayed pending the outcome of the appeal.
Justice Abdulai Conteh said he was “troubled” by this line of argument, adding that the court must guard against any move to alter the facts on the ground in Bimini and thereby undermine the entire proceedings, effectively rendering the hearings futile.
“This is not semantics or if you like, some theory. The courts are there to do justice, regardless of who or what is involved,” he told Wilson.
The court also asked the government’s attorney David Higgins if he could confirm whether permits had in fact already been granted.
Higgins said he did not have that information – a statement which drew an expression of disbelief from Smith, who pointed out that in its draft bill of costs, the Attorney General’s Office had claimed 48 hours were spent investigating what permits had or had not been granted, at a combined cost of $46,000.
The appeal itself centers on the question of costs, and was applied for against a Supreme Court decision that the Bimini Blue Coalition must pay a combined $650,000 as security - $400,000 to the developer and $250,000 to the government – before the case could continue.
Earlier on Friday, Smith presented a number of amendments to his original notice of appeal, several of which Wilson objected to. In particular, he opposed the claim that the amount the Bimini Blue Coalition had been asked to pay was excessive to the point that it effectively denied the applicant and other grass-roots organizations of their right to access the courts.
Wilson argued that the court had given very strict guidelines when allowing an extension of time for the appeal, and that Smith was going outside those guidelines.
A protracted legal discussion ensued, with Justice Allen maintaining that Smith had been given strict instructions to limit his appeal to certain provisions of the original notice. Justice Conteh, however, said in his view Smith’s additions went to the heart of the appeal - the question of what the costs should have been.
Eventually, Smith asked leave to amend his notice to better reflect the earlier instructions of the court.
The court also questioned Smith’s attempt to drop the case against Resorts World Bimini in an effort to focus on the government, specifically the process by which it granted permits to the developer. In this way, Smith sought to avoid having to pay security for costs, which he has maintained his clients cannot afford.
It was noted the Supreme Court earlier ruled that failure to pay any part of the $650,000 would lead to the entire case being thrown out.
Although Justice Conteh said that in his opinion, it was a composite ruling and the two respondents could be separated, Justice Allen was not convinced and Smith indicated his willingness to argue the appeal against both parties if necessary.
Diane Phillips and Associates
Caption: CAUSE FOR CONCERN – The Niccolo Machiavelli dredger anchored off Bimini’s pristine and ecologically significant reef system. The 450-foot vessel is to be used as part of the controversial construction of a 1,000 foot pier and ferry terminal by Resorts World Bimini. The developers have agreed, at the urging of a judge, not to start dredging without delivering copies of all the necessary permits and approvals to concerned citizens.
