COMMONWEALTH OF THE BAHAMAS 2007/PUB/jrv/FP/0003
IN THE SUPREME COURT
Public Law Division
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N
THE QUEEN
and
THE DIRECTOR OF PHYSICAL PLANNING OF THE COMMONWEALTH OF THE BAHAMAS et al
Ex parte
SAVE GUANA CAY REEF ASSOCIATION LTD.
1st Applicant
AUBREY CLARKE
2nd Applicant
_________________________________________
ORIGINATING NOTICE OF MOTION
_________________________________________
COMMONWEALTH OF THE BAHAMAS 2007/PUB/jrv/FP/0003
IN THE SUPREME COURT
Public Law Division
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N
THE QUEEN
and
THE DIRECTOR OF PHYSICAL PLANNING OF THE COMMONWEALTH OF THE BAHAMAS
1st Respondent
THE PRIME MINISTER OF THE COMMONWEALTH OF THE BAHAMAS
2nd Respondent
THE TOWN PLANNING COMMITTEE OF THE COMMONWEALTH OF THE BAHAMAS
3rd Respondent
MINISTER OF MARITIME AFFAIRS AND LABOUR OF THE COMMONWEALTH OF THE BAHAMAS
4th Respondent
THE MINISTER OF PUBLIC WORKS AND TRANSPORT OF THE COMMONWEALTH OF THE BAHAMAS
5th Respondent
THE COMMISSIONER OF POLICE OF THE ROYAL BAHAMAS POLICE FORCE OF THE COMMONWEALTH OF THE BAHAMAS
6th Respondent
THE WATER AND SEWERAGE CORPORATION OF THE COMMONWEALTH OF THE BAHAMAS
7th Respondent
THE HOPE TOWN DISTRICT COUNCIL
8th Respondent
THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF THE BAHAMAS
9th Respondent
PASSERINE AT ABACO LIMITED
10th Respondent
PASSERINE AT ABACO HOLDINGS LIMITED
11th Respondent
BAKERS BAY LIMITED
12th Respondent
BAKERS BAY HOA LIMITED
13th Respondent
BAKERS BAY MARINA LIMITED
14th Respondent
BAKERS BAY FOUNDATION LIMITED
15th Respondent
Ex parte
SAVE GUANA CAY REEF ASSOCIATION LTD.
1st Applicant
AUBREY CLARKE
2nd Applicant
_________________________________________
ORIGINATING NOTICE OF MOTION
_________________________________________
TO:
The Director of Physical Planning of the Commonwealth of The Bahamas
John F Kennedy Drive
Nassau, Bahamas
The Prime Minister of the Commonwealth of The Bahamas
Sir Cecil Wallace Whitfield Centre
West Bay Street
Nassau, Bahamas
The Town Planning Committee of the Commonwealth of The Bahamas
John F Kennedy Drive
Nassau, Bahamas
Minister of Maritime Affairs and Labor of the Commonwealth of The Bahamas
Clarence Bain Building
Nassau, Bahamas
Minister of Public Works and Transport of the Commonwealth of The Bahamas
John F Kennedy Drive
Nassau, Bahamas The Commissioner of Police of the Royal Bahamas Police Force of the Commonwealth of The Bahamas
East Street
Nassau, Bahamas
The Water and Sewerage Corporation of the Commonwealth of The Bahamas
87 Thompson Blvd
Nassau, Bahamas
The Hope Town District Council
Hope Town
Abaco, Bahamas
The Attorney General of the Commonwealth of The Bahamas
East Hill Street
Nassau, Bahamas
AND TO
Passerine at Abaco Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave
Nassau, Bahamas
Passerine at Abaco Holdings Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay HOA Limited
c/o Graham Thompson & Co.
Chambers Sassoon House
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay Marina Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay Foundation Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
TAKE NOTICE that pursuant to the leave granted by the Honourable Mr. Justice Peter D. Maynard, Actg., on Tuesday the 27th day of September 2007, the Supreme Court will be moved at the Supreme Court Building, Garnet Levarity Justice Centre, Mall Drive, Freeport, Grand Bahama on the of 2007 at the sitting of the Court or so soon thereafter as Counsel can be heard, by Counsel on behalf of the Applicants in respect of the following matters and relief sought by the Applicants.
The Parties
1. This Originating Notice of Motion for Judicial Review is brought by Save Guana Cay Reef Association Ltd. (the 1st Applicant) and by Aubrey Clarke (the 2nd Applicant) (together periodically referred to as the Applicants) under Order 53 rule 1 of the Supreme Court Rules.
2. The 1st Applicant is a company formed for the purpose, inter alia, of representing and protecting the interests of landowners and/or the residents of Great Guana Cay, Abaco, Bahamas (Guana Cay) and those affected by the proposed development of a very substantial private residential resort and club membership community at Guana Cay comprising hotel style accommodation, private lots, a marina, and a golf course (the Development). The members of the 1st Applicant are some of the stakeholders referred to in an Environmental Impact Assessment the entirety of which the Applicants do not have a copy of but which will be sought in discovery (the EIA) prepared by consultants employed by the developers of this Development. The shares of the 1st Applicant are directly and indirectly owned by hundreds of residents and landowners of Guana Cay. These persons have all signed petitions showing their resistance to the Development.
3. The 2nd Applicant is a Bahamian and a resident of Guana Cay. He was born in Harbour Island, in The Bahamas, on March 9, 1941. He has been a resident of Guana Cay for approximately 12 years. He has often gone crabbing on the Crown and Treasury Land and Bakers Bay area before it was closed off by the developers and he has fished in the surrounding waters off the northern point of Guana Cay where the Development is located. He resides at Front Street in Guana Cay. Mr. Clarke has been a driving force from inception to the objections of the residents of Guana Cay to this Development.
4. The Applicants have from inception opposed the Development because of its scale; the anticipated catastrophic terrestrial and marine environmental impacts; and the social, political, economic and cultural disruption to the community of Guana Cay (e.g. by putting in 400 non-citizens on an island which has 150 Bahamians). Central government departments and agencies including the Respondents appear to have allowed the Development or aspects of it to proceed without requiring the Developers to make the statutorily mandated applications through various acts, in particular The Local Governement Act. The Applicants have made numerous requests for information as to the existence of applications for permits and approvals and requests to take part in a consultation process in relation thereto. These requests have all been ignored by the Respondents. This secrecy surrounding the entire process has deprived the Applicants of their legitimate right to be consulted both under the Constitution, relevant acts and as interested and affected parties.
5. The 10th to 15th Respondents are the developers, Passerine at Abaco Holdings Ltd, Passerine at Abaco Ltd, Bakers Bay Club Ltd, Bakers Bay HOA Ltd, Bakers Bay Foundation Ltd and Bakers Bay Marine Ltd (the Developers). The Development involves an investment of $500 million over 10 years and commenced in March 2005 without any permits having been applied for or issued.
6. A Heads of Agreement dated 1 March 2005 was signed between the Government of the Bahamas and the Developers (the Heads of Agreement) pursuant to which the Government purported to:
facilitate on an accelerated basis all necessary approvals, permits, agreements, licences and concessions hereinbefore and hereinafter requested and required by the Developers and each of them as may be appropriate in connection with the completion, operation and maintenance of the Development including []
(e) Approval under provisions of the Conservation and Protection of the Physical Landscape of the Bahamas Act, and any other relevant/applicable Acts for the dredging and landfill operations required in connection with the development of the Development site including the Marina;
[..]
(i) and all such other approvals, permits, agreements, licenses and concessions as may be required by the Developers for the purposes of the Development (Clause 6.8 )
and undertook to expedite the issuance of any delayed permissions or approvals (Clause 8.2).
7. On 4 April 2005, the 1st Applicant brought judicial review proceedings challenging the Heads of Agreement on the basis that it was entered into ultra vires; that it constituted an improper fettering of the Governments discretionary powers to grant the various approvals and permits referred to in it; and on the basis that there had been no, or no proper public consultation (the 2005 Proceedings).
8. The 2005 Proceedings are now at the stage of an appeal to the Court of Appeal brought by the Applicants against the decision in those proceedings of Acting Judge Carroll dated 12 October 2006. The Court of Appeals judgment is awaited.
9. In the course of the 2005 Proceedings (in order to defeat the Applicants application to the Court of Appeal for an injunction prohibiting the carrying out of the Development pending the decision of the Court of Appeal), the Developers represented to the Court of Appeal that they had not and were not relying on the Heads of Agreement as authority to engage in any Development works or to occupy and or conduct any works on the Treasury and/or Crown Lands as they had obtained all of the permits and approvals that they lawfully required in order to carry out the works that they were and are undertaking at the Development site. On 17 May 2007, the Developers undertook to provide copies of these permits and approvals to the Court of Appeal and to the Applicants.
10. This was done under cover of the Affidavit of Randol Dorsett, counsel to the Developers, sworn on 30 May 2007.
11. The Applicants have been seeking disclosure of all permits and approvals relating to the Development from the Developers and from all relevant Government departments and local and central governmental agencies by unanswered correspondence and by unsuccessful discovery applications to the court since February 2005.
12. According to the exhibits to the Affidavit of Randol Dorsett of 30 May 2007, the following approvals and permits have, to the Applicants knowledge, been issued by the Respondents to the Developers:
12.1 On 31 May 2005, the Port Administrator informed the Developers that they had been granted permission to place eight artificial reef structures in the sea bed (on condition that they did not obstruct of surface navigation). It is not clear from the letter exhibit to Mr Dorsetts affidavit what body took the decision and granted this permission. As the person responsible for the Port Department, the Minister of Maritime Affairs and Labour (the 4th Respondent) is joined in these proceedings in relation to this decision. The Applicants reserve the right to add further respondents and grounds of judicial review as necessary after discovery when the question of what body has taken the decision and on what basis should be clearer.
12.2 On 7 November 2005, the Developers were notified by the Office of the Prime Minister (the 2nd Respondent) that approval had been given for them to proceed with use of the Treasury Land referred to under clause (I) of the Heads of Agreement for the storage of dredged materials in connection with the agreed stated uses. It is not known what these agreed stated uses are. The letter indicated that the formal leases of Crown and Treasury Lands were still being considered.
12.3 At a meeting of the Town Planning Committee (the 3rd Respondent) on 21 June 2005, it gave approval in principle (for a one-year period) to the Developers Land Use Plan for the proposed residential and club membership community subject to certain conditions and informed the Developers that subdivision approval had also been given. The Developers were notified of these approvals by letter from the 1st Respondent, the Director of Physical Planning dated 22 June 2005. It is not known whether the site or sites that are the subject of this approval consist of Crown, Treasury or privately-owned lands.
12.4 At a meeting on 4 July 2006, the 3rd Respondent extended the original approval in principle and approved a revised land use plan for residential and club community for a further one-year period. Again, it is not known whether the site or sites that are the subject of this approval consists of Crown, Treasury or privately-owned lands.
12.5 On 10 May 2005, the Royal Bahamas Police Force (the 6th Respondent) purported to grant the 11th Respondent permission, pursuant to s.212(6)1 of the Penal Code, to light a fire at [Guana Cay] for the purpose of clearing grounds for development. This permission was renewed on 8 June 2006. It is not known whether the permission allows fires to be lit on Crown, Treasury or privately-owned lands.
12.6 On 23 June 2005, permission was given by the Director of Physical Planning (the 1st Respondent) at the Ministry of Public Works pursuant to s.23 of the Conservation and Protection of Physical Landscape of the Bahamas Act 1997 for the removal of protected trees from the 610-acre development site at Guana Cay to accommodate building and driveway construction. It is not known whether the 610-acre site referred to includes Crown, Treasury or privately-owned lands , although given the acreage it seems to include all of them.
12.7 On 30 June 2005, the Developers were notified by letter that the 1st Respondent had approved all of the applications that had been tendered to him under the Conservation and Protection of Physical Landscape of the Bahamas Act. Permits were issued to the Developers in respect of Land Use Approval in Principal, Land Excavation, and the Harvesting of Protected Trees. It is not known whether the proposed sites of the excavation, harvesting of trees and general development envisaged by these permits are on Crown, Treasury or privately-owned lands, although from the Applicants local knowledge and observation, the desecration of the beaches, forest, mangroves, and civil works appear to be ongoing on the Crown and Treasury lands as well as the private land.
12.8 On 1 November 2005, the Developers were informed that the Minister of Public Works (now, the Minister of Works and Transport, the 5th Respondent) was granting them approval in principle for their proposed subdivision road construction with conditions attached. One of the conditions was that no building permits be granted until the infrastructure was completed. The approval was for 2 years. It is not known whether the proposed site of these roads are on Crown, Treasury or privately-owned lands, although again, as in 12.7 it appears to be ongoing on all three lands.
12.9 On 21 February 2007, the Water and Sewerage Corporation (the 7th Respondent) granted approval to the Developers proceed with the construction of a waste water treatment plant effluent disposal well at Guana Cay. It is not known whether the proposed site of this well is on Crown, Treasury or privately-owned lands.
12.10 On 6 March 2007, the 7th Respondent granted approval for the construction of wells at Bakers Bay, Great Guana Cay. It is not known whether the proposed sites of these wells are on Crown, Treasury or privately-owned lands.
12.11 On 30 November 2006, the Office of the Prime Minister informed the Developers that they had been granted approval for the issuance of five separate leases. The letter lists the following leases: Crown Conditional Purchase Lease; Crown Marine Lease; Crown Preserve Lease; Treasury Lease; and Treasury Staging Area Lease. It is not clear what body approved the granting of these leases nor what is their duration and terms.
13. In addition to these permits, Hope Town District Council (the 8th Respondent) at some time between March and May 2007 issued to the Developers some or all of the permits that they require in order to carry out the Development. Further, the 4th Respondent, either itself, or through its Port Department, has purported to grant certain approvals for the refurbishment of an existing dock and the construction of a service dock in 2005. Despite requests, the Applicants have not been provided with copies of the applications or of the permits granted.
The relief sought; Part 1
14. The Applicants seeks the following relief:
14.1 Declarations that:
14.1.1 All of the decisions taken by the 1st to 8th Respondents which led to the granting of the permits, approvals and leases set out at paragraphs 12 and 13 above were contrary to and in breach of the Applicants rights and repugnant to Articles 15 and 20(8 ) of the Constitution of the Commonwealth of the Bahamas and therefore void, illegal and of no effect;
14.1.2 The 2nd Respondent had no power or authority to grant the approval given by him as set out at sub-paragraph 12.2 above and that this approval is therefore ultra vires, void and of no effect;
14.1.3 The 2nd Respondent had no power or authority to issue the two leases of Treasury lands set out at sub-paragraph 12.11 above and that their issuance is therefore ultra vires, void and of no effect;
14.1.4 The 3rd Respondent had no power or authority to issue the approvals issued by it as set out at sub-paragraph 12.3 and 12.4 above and that these approvals are therefore ultra vires, void and of no effect; and
14.1.5 The 6th Respondent had no power or authority to issue the permissions set out at sub-paragraph 12.5.
14.2 Orders of Certiorari to quash the decisions of the 2nd, 3rd and 6th Respondents to grant the approvals, permits and Treasury leases issued by them as set out at sub-paragraphs 12.2 to 12.5 and 12.11 above;
14.3 An order of prohibition that the 2nd, 3rd and 6th Respondents be enjoined from issuing any further permits, approvals or leases of Treasury land to the Developers or renewing any permits, approvals or leases of Treasury land in relation to the Development;
14.4 Orders of Certiorari to quash the decisions of the 1st, 4th, 5th, 7th and 8th Respondents to grant the approvals and permits issued by them as set out at sub-paragraphs 12.1 and 12.6 to 12.10 and paragraph 13 above;
14.5 An order of mandamus that the 1st, 4th, 5th, 7th and 8th Respondents conduct a process of full and proper public consultation prior to the granting or issuing to the Developers of any leases, approvals, permits, rights, concessions, exemptions or grants; and
14.6 In relation to the leases of Crown Lands by the 2nd Respondent as set out at sub-paragraph 12.11 above:
14.6.1 An order of certiorari to quash the decision to issue these leases; and
14.6.2 An order of mandamus that the 2nd Respondent receive and consider recommendations of the 8th Respondent in relation thereto before granting any leases of Crown Lands.
14.7 An order of mandamus that the Attorney-General (the 9th Respondent) do take action against the Developers:
14.7.1 Should they proceed or continue to undertake the works contemplated by the permits and approvals granted;
14.7.2 Should they occupy or carry out works of development on Treasury lands or continue to do so without the approval of the Treasurer or the approval of such Minister as the Treasurer may, with the approval of the Minister of Finance, nominate for this purpose pursuant to in the Ministry of Finance Act, Chp. 23, section 5;
14.7.3 Should they occupy or carry out works of development on Crown lands without colour of title;
14.7.4 Should they continue or undertake works of development without the necessary permits and approvals having been properly issued or granted by the appropriate bodies.
15. These proceedings are brought on the basis of information only very recently obtained by the Applicants in relation to various permits granted to the Developers to proceed with the Development. The information has been obtained as a result of an undertaking extracted from the Developers by the Court of Appeal in the 2005 proceedings. Notwithstanding this undertaking and requests made by the Applicants for further particulars and documentation, the information is far from clear as to the nature of the permits granted. As to the issue of docks, the Applicants have been waiting for information from the 4th Respondent since June 2005. In particular, it is in many cases unclear what body has issued the approval, pursuant to what authority and in relation to what part of the Development and for works to take place on what land (Crown, Treasury or privately-owned). Without this information the Applicants are in some cases unable to ascertain whether permission has been given by a body with authority to do so. In all cases, the Applicants are unable to ascertain whether the permits purport to allow works to be undertaken on Crown or Treasury lands. If they do so purport, the Applicants may have further grounds upon which to challenge the decisions. The lack of information as to what precisely is permitted by each permit or approval prevents the Applicants from ascertaining whether or not the Development works that the Developers have already embarked upon are covered by the permits in question and whether they were covered at the time that they were undertaken.
16. The Applicants reserve the right, once this information is disclosed:
16.1 To join further respondents as necessary;
16.2 To amend its motion to add further grounds of review as necessary;
16.3 To challenge the Attorney-Generals failure to take steps to prevent the Developers from proceeding with the Development without the necessary properly issued approvals and permissions; and
16.4 To seek an order requiring the Attorney-General to take action against the Developers in relation to works undertaken without permits and/or approvals and/or proper title to Crown or Treasury Lands.
Interlocutory relief sought; Injunctions
17. The Applicants also seek the following interlocutory relief pending the final determination of the proceedings:
17.1 An order restraining the 10th to 15th Respondents from proceeding with or continuing to undertake the works contemplated by the permits and approvals purportedly granted;
17.2 An order restraining the 10th to 15th Respondents from undertaking or continuing to undertake works of development without the necessary permits and approvals having been properly issued or granted by the appropriate bodies;
17.3 An order restraining the 10th to 15th Respondents from undertaking or continuing to undertake works of development on Treasury lands without the approval of the Treasurer or the approval of such Minister as the Treasurer may, with the approval of the Minister of Finance, nominate for this purpose pursuant to in the Ministry of Finance Act, Chp. 23, section 5
17.4 An order restraining the 10th to 15th Respondents from undertaking or continuing to undertake works of development on Crown lands without colour of title;
17.5 An order restraining the 1st to 8th Respondents from issuing any further permits or approvals to the Developers or from renewing any existing permits or approvals in relation to the Development;
17.6 An order of mandamus requiring the 9th Respondent, to take action against the Developers should they proceed with or continue to undertake the works contemplated by the permits and approvals purportedly granted.
Interlocutory relief sought; Discovery
18. The following orders are also sought immediately against each of the 1st to 8th and 10th to 15th Respondents:
18.1 to disclose and deliver up to the Applicants copies of all correspondence, plans, applications and related documentation submitted to them by or on behalf of the Developers in relation to the Development or any part thereof and/or in relation to any application made to them by or on behalf the Developers for any permit, approval, grant, exemption, lease or licence; and
18.2 to disclose and deliver up to the Applicants copies of all correspondence, permits, approvals, grants, exemptions, leases or licences granted to the Developers in relation to the Development and all related documentation including but not limited to all documents evidencing, recording or relating to the decision-making and consultation process undertaken, if any, in reaching each decision to grant or issue a permit, approval, grant, exemption, lease or licence including details of and documentation relating to all recommendations and communications received and/or considered and consultations entered into in relation thereto.
Relief Generally; Part 2
19. Costs;
20. Such further or other relief as to the Court seems just.
Grounds for review
21. The grounds on which the Applicants seek judicial review as set out above are as follows:
Ground 1: The 2nd, 3rd and 6th Respondents had no power or authority to issue the approvals, permits and Treasury leases issued
22. The 2nd to 3rd and 7th Respondents had no power or authority to grant the permits and approvals they purported to grant as set out in paragraph 12 above.
23. In the case of the decisions taken by the 3rd Respondent, the powers that it has purported to exercise were not vested in it but, rather, are vested in the 9th Respondent. The purported exercise of those powers by the 3rd Respondent was, therefore, ultra vires, void and of no effect.
24. The Parliament of the Commonwealth of the Bahamas has conferred certain important regulatory powers upon local government pursuant to the Local Government Act Chp. 37 (LGA) including (but not limited to) the power to permit any change of land use and the functions assigned to the Town Planning Committee under the Town Planning Act (s.14). These are powers that the 3rd Respondent has purported to exercise in reaching the decisions that it reached and in granting the approvals and permits that they purported to grant as set out in paragraph 12.3 and 12.4 above.
25. In taking these decisions, the 3rd Respondent has purported to exercise powers that it did not possess and has usurped and bypassed the 9th Respondent as the only body with the power and authority to take those decisions.
26. In the case of the 2nd Respondent, the Prime Minister, the power that he has purported to exercise in (1) purportedly allowing the Developers to proceed with the use of Treasury Lands for the storage of dredged materials and (2) purporting to issue the Developers with two leases for the use of Treasury Lands was not vested in him but, rather, was vested in the Treasurer. Under the Ministry of Finance Act, s. 5, the power to grant members of the public leases or licences to occupy Treasury Lands lies with the Treasurer. Section 5 allows the Treasurer, with the approval of the Minister of Finance, to delegate the right to grant such leases or licences. To the Applicants knowledge, this right was not delegated to the Prime Minister by the Treasurer. In addition, if the leases and licences are for a period of three years or more, the approval of the Governor-General is required.
27. The grantor of leases or licences of Treasury land is required to do so in a manner consistent with those lands being held in trust for the public purposes of the Bahamas. The grants of leases and a licence to the Developers for the purposes of this Development are ultra vires and void because they go against the public interest of the Bahamas and its inhabitants.
28. In the case of the 6th Respondent, it purports to grant permissions to the Developers pursuant to s.212(6)1 of the Penal Code to clear forested areas for development by lighting fires. There is no s. 212(6)1. S.212(6) provides that Every person who does any of the following acts shall, in every case, be liable to a penalty of one hundred and fifty dollars, that is to say, every person who (6) in any part of any town or settlement or any place immediately adjacent thereto, makes or causes to be made any fire [..].. There is no provision giving the 6th Respondent authority to permit the burning and clearing of forested areas for development. The 6th Respondent therefore did not possess the power to grant these permissions and they should be set aside and the 6th Respondent should be ordered to refrain from renewing these permissions.
Ground 2: The decisions to grant the permits, approvals and leases were irrational
29. Even if, contra the above, the 2nd, 3rd and 6th Respondents had the power or authority to grant the permits, approvals and leases as they purported to do, in any event they are ultra vies and void because no reasonable decision-making body, properly exercising its discretion, could have granted these approvals, permits and leases.
30. In addition, the decisions of the 1st, 4th, 5th, 7th and 8th Respondents to grant the permits and approvals granted are ultra vires and void because no reasonable decision-making body, properly exercising its discretion, could have granted these approvals and permits.
31. The decisions in question all relate to the Development and enable the Development or parts thereof to take place. The decisions were irrational for the following reasons:
31.1 The Development will have major adverse environmental, social, political and economic implications:
Environmental implications
31.1.1 The Development as a whole and, in particular, the clearing of land by fires, the harvesting of protected trees, the excavation of land to build roads and buildings and a golf course, the construction of sewerage systems, wells, artificial reef structures and dry docks; and the construction of a residential and club membership community as envisaged and permitted by these approvals threaten the ecologically unique and precious environment of Guana Cay.
31.1.2 Guana Cay contains marine and reef life that is of global ecological importance. The proposed Development threatens to cause major environmental and ecological damage.
31.1.3 The development of a golf course at Guana Cay, and the necessary chemicals to be used in tending such a golf course, will leech into the waters and kill the wildlife, marine life and reef.
31.1.4 The development of a very substantial marina, and sea-plane landing facility, and the use of those facilities, will cause substantial water, air and noise pollution, threatening the wildlife and marine life around Guana Cay.
31.1.5 Guana Cay is presently an area of outstanding natural beauty. The construction of the commercial and residential properties envisaged by the Development will destroy the visual environment and the entire tranquillity and nature of the Cay itself.
The EIA
31.1.6 The EIA makes clear that the environmental impact of the proposed Development will be very significant, negative and detrimental to the environment:
At page 6, under the rubric Probable Adverse Impacts, the EIA states
Short-term and long term environmental impacts will occur with such a large-scale land conversions. The developers and the environmental management team have identified areas of concern:
1.) Loss of local biological diversity and wildlife habitat
2.) Degradation of habitats for some wildlife specie
3.) Loss of wetlands
4.) Probability of chronic nutrification (nutrification) stress to near shore marine communities.
5.) Some chance of small scale fuel spillage and seeps.
At page 14, the EIA states that
the main threats to small island environments from development stem from
Chronic eutrophication or nutrification of the island, leading to a loss of biological diversity and wildlife habitat degradation of the land and in the sea;
Loss of critical habitats for wildlife on and around the island in the land cover conversion; and
Increased sediment run-off and erosion due to large-scale vegetation loss in the construction phase of the development.
At page 81 the EIA states that loss and severe alteration of inland mangrove areas will occur with marina construction and that it is unlikely that a forest will ever recover from the golf course conversion (page 90).
It is evident from the terms of the EIA that the Developers regard the Development as something of an environmental experiment; the EIA itself admits (at page 1230) that The project will be an experiment in sustainability for small island developments. Page 124 of the EIA states
It is often very difficult to document the real ecological costs of development until years after the developers have completed the job and left. The long term environmental impacts pose a significant financial burden to residents of the resort community. For example, resort development in the Florida Keys commonly underestimated the flushing rates of residential finger canal systems. Twenty to thirty years after the construction, residents are faced with very expensive mitigation options to improve near shore and canal water quality, with millions of dollars slated for advanced wastewater treatment plants, backfilling canals, and re-landscaping canal margins.
It is evident that the Government of the Bahamas has chosen to use the people of Great Guana Cay as guinea pigs in an experiment and as a case study site for small island development (p.117 of the EIA) secretly and without consultation or even their informed consent. And this is despite noting that
The project will be an experiment in sustainability for small island developments. Clearly, local residents or Bahamians in general would not appreciate being the site of experimental approaches to development of their natural resources, but the aim of the experiment is to provide a truthful documentation of the real ecological costs.
The decisions failed properly to take into account, that land in the Northern Abacos, in particular in the Cays, is an ever decreasing national, cultural and heritage resource and treasure. In fact, as the EIA itself makes clear, at page 7
As land becomes increasingly scarce in Abacos (and all of The Bahamas), there needs to be an overall land use plan that sets aside natural areas for tourism, recreation, and conservation of the natural heritage of the country.
And at page 47
The rate at which islands are being developed in the Northern Bahamas makes all land conversions from natural vegetation communities significant.
Further, at page 21 of the EIA the Developers acknowledge
These smaller islandsare particularly vulnerable to environmental destruction.
Indeed, at page 21, the EIA states
Environmental Impacts from the proposed development will be largely a function of habitat loss and destruction inland.
It goes on to say that, uniquely,
The property represents the largest intact tract of broad evergreen coppice remaining in Northern Abaco
At page 29 the EIA quotes sections from studies of the BEST Commission in 2002 on the Biological and Ecological Aspects of the coastal zones which dominate small island ecologies. It states
The coastal zone dominates small island ecology. The coastal environment is the area where the land meets the sea. The coastal zone includes areas of dunes, beaches, rocks, low cliffs, wetlands, bays and coves, and often refers to both the marine and terrestrial habitats that occur near the shoreline. Because of the effects of current, waves, tidal changes, storms, and hurricanes, the coastal zone is a dynamic environment. The coastal zone includes many diverse and interconnected ecosystems and communities so that any impact on one ecosystem or community can directly affect all others that are connected to it through the life histories of species that travel between them (B.E.S.T., 2002). The coastal zone provides critical habitats and resources for many species, such as seabirds, sea turtles, and marine mammals. Additionally, coastal zones also provide people with benefits, which include hurricane buffer zones, tourist attractions, educational opportunities, and living resources (B.E.S.T., 2002).
Following on from these comments on the sensitivity of coastal zones, the EIA considers the effects of the development on terrestrial wildlife and fauna.
Page 41 of the EIA notes that both species of black and white crabs are found on Guana Cay and it is noted at page 42 of the EIA that
..the white crab species is probably in decline throughout the country due to habitat loss, harvesting pressure and pollution impacts. Large migrations of crab during the breeding season were reported in the past and only rarely observed today.
Land crabs require high quality habitat, especially clean ground water. Land crabs, as an ecological group includes the soldier crab or land hermit crab
Since land crabs spend much of their time in burrows, any contaminants (especially anti-mosquito pesticides) can have devastating impacts on land crab populations.
Land crabs can serve as critical indicators of environmental quality throughout the project site.
In commenting on marine fauna at page 43, the EIA notes that there is a mosaic of soft-bottom marine communities dominating the western side of the project site, including Bakers Bay and states that
Dense to sparce seagrass beds provide critical habitat for finfish and invertebrates, as well as foraging areas for juvenile sea turtles.
In dealing with the reef environment, the EIA states
All reef habitats are critical habitats for fisheries target species such as groupers and lobsters
Page 43 of the EIA notes that the
Marine environments adjacent to the island provide abundant habitat for all 5species [of turtles] and Nesting adults and hatchlings may potentially use these beaches throughout the year.
The five species of turtles are Green Turtle, Hawksbill Turtle, Loggerhead Turtle, Kemps Ridley and Leatherback. Page 111 of the EIA states
However, they are being pushed to the brink of extinction by human activities
Human factors in turtle decline include:
Destroying nesting habitat, particularly beaches and dunes
Overfishing
Disorienting nesting turtles with in appropriate lighting along beaches
Polluting near shore water with oil, plastics and debris
The Bahamas is a signator to the CITES (International Convention on the trade of endangered species), and thus, there are legal requirements to protect sea turtle habitat and protect turtles from exploitation. Interference with a nesting attempt may constitute a violation of the law, which protects all sea turtles from harm and harassment.
The EIA concludes the section on marine habitat by saying
Every effort should be made to protect remaining turtle habitat and near shore quality.
As to birds, the EIA, at page 44 notes that further development of the outer cays is of concern in general for protection of seabird habitat and forage areas. It also notes that the most endangered bird is the Audubons shearwater which occurs in the Abacos; and notes that Seabirds are suspected of undergoing a serious decline in populations in The Bahamas.
The EIA comments on Marine Mammals at page 45. It states that the Northern Abacos platform margin is an active foraging area for several species of marine mammals. It notes that
There are 11 species of whales and dolphins that can occur seasonally in the Great Guana Cay environs. It further states that
All coastal development poses a potential threat to whales and dolphins. Increased boat traffic, from recreation boat to barge and cargo ships, can threaten marine mammals. Humans also compete with some species (e.g. spotted and bottlenose dolphins) for fisheries resources.
At page 58 the EIA, deals with water pollution issues.
Water also poses one of the most insidious environmental threats to the near shore marine environments and enclosed waterways of the marina.
Changes to the island hydrology, pollution or contamination of groundwater sources, or introduction of pathogens, nutrients or excessive organic matter can all pose serious and irreversible environmental impacts.
Near shore water quality and marina water quality are critical components of the site-monitoring plan.
Water quality is fundamental to both species and natural community distribution in the coastal zone environments, and the impact of water quality degradation is complex. Small islands such as Great Guana Cay place all the upland areas in close proximity to the ocean and mangrove wetlands. Changes in water quality parameters will occur with human alterations of coastal hydrology and runoff patterns.
Sewage and wastewater discharge are notorious for long-term changes in tropical marine environments. Human activities on land inevitably increase nutrient inputs to coastal waters from deforestation, wastewater, fertiliser and other sources.
We concede the fact that water quality degradation will occur with coastal development and land-cover change.
At page 66 the EIA also overviews the overall environmental impact
Islands have proven to be very desirable sites for development, but costly to acquire and manage in any protected area status.
Tropical islands present a particular challenge in balancing costal development needs and environmental protection for both cultural and ecological reasons. Development poses an especially difficult challenge in the oligotrophic, carbonate environment of the Bahamian archipelago. In the Bahamas, small islands are acutely impacted by development activities, particularly the reclamation of coastal wetlands and pollution discharge to coastal waters. Source activities on land have produced ecological changes in the coastal environment. The most significant changes include:
Changes in coastal species abundance and diversity (including local extirpation),
Changes in near shore natural community structure,
Changes in coastal water quality and
Changes associated with exotic species invasion.
Fragmentation and chronic eutrophication of tropical near shore marine environments. The smaller islands often post the greatest challenge to development, as there are cumulative impacts of the landscape-scale of the archipelago beyond the island itself.
The EIA also deals with the Marina site. At page 82 it states
The marina area is particularly sensitive ecologically because of the diversity of vegetation communities that are small in scale and clustered in this area of the island.
It is possible to inflict irreparable damage to the environment in very short order with careless practices.
As to the golf course, the EIA states that it is a keystone amenity and at page 84 notes that
The location of golf courses near the coastline causes concern about nonpoint source (NPS) pollution effects on the water quality of surrounding marine and wetland environments. Of particular interest is the impact of herbicides, fungicides and fertilisers on groundwater quality.
As to general construction activity, page 86 of the EIA states
Construction activities, by their nature, create many sources of potential pollutants, especially to near shore marine waters. Accelerated erosion and sedimentation caused by land disturbing activities is one of the major pollution problems caused by construction. Control measures and practices to limit sediment pollution are specified later.
The EIA goes on to consider the effects of dredging at page 4 of Part 2
Dredging is extremely destructive to near shore marine environments, and there is already dredging damage in Bakers Bay associated with the Treasure Island Cruise Ship report. Dredging can damage and destroy seagrass beds, an important fish habitat as well as disrupt the near shore circulation and movement of sand. Dredging can potentially impact the beaches of Bakers Bay, a critical natural resource to the development as well as local residents.
The EIA also comments on Eco-Tomes as unique habitats for both plants and animals (page 19, Part 2) and at page 18 of Part 2 says
Ecotomes are described as transitional vegetation communities on the boundary of one vegetation type to another. Ecotomes are often small in area, with variable environmental parameters, and provide unique habitats for plant and animal species. An important ecotome in the proposed marina environs is the area between mangrove wetlands and upland broadleaf evergreen forests. These areas are shown in Figures 3.2 and 3.3 and are often areas of high orchid and bromeliad density.
The EIA also notes that the Ecotome where the proposed dredging is to occur for the Marina contains
The rare Bahamas dildo cactus(which) thrives in the xeric ecotome between the inland mangrove wetlands and upland coppice: and,
The endangered orchid encyclia ruja (which) thrives in the ecotome, often growing on old buttonwood or red mangrove trees.
The dredging will destroy large areas of dense red mangroves of 13-17 feet (page 27 Part 2). There will be loss and severe alteration of inland mangrove areas. The destruction will be a certaintywith marina construction. The changes will be permanent to the landscape and mangrove will be reduced in areas and there will be changes to adjacent wetland areas. It goes on to say there will be loss of habitat in coastal strand areas and broadleaf forest. As these areas will be used in waterways and entrance channel, and there is no doubt that there will be a loss of wetland and upland vegetation areas.
Social , political and economic implications
31.1.7 The Development as a whole and, in particular, the construction of a residential and club membership community as envisaged and permitted by these approvals threatens to have an adverse impact on the economy, culture and way of life of this small island community.
31.1.8 It is part of the local culture and heritage of Great Guana Cay that its inhabitants live a simple, calm, quiet, crime-free life on a small island that has preserved its unique heritage, culture, environment and way of life by slow, sustained and almost imperceptible growth. This slow sustained growth has given prosperity and jobs to many of the residents of Great Guana Cay. There is virtually 100% employment on the island. The settlement of Great Guana Cay represents successful environmentally sustainable development at a pace which the community has been able to accommodate without economic, social, cultural or environmental upheaval. The Development threatens to completely change this. The Development and in particular the gated residential and club community proposes to exclude Bahamians from large parts of their island including vast stretches of beach.
31.2 Turning to the second factor indicating irrationality in the decisions to grant the approvals and permits in question, there was a complete failure on the part of the 1st to 8th Respondents properly to take into account matters which should have been taken into account. In particular, there was a failure to take into account the views and interests of those living and working at Guana Cay and the surrounding area. None of the Respondents could have been unaware of the considerable public interest in and the need for consultation in relation to all aspects of the Development. There are two websites www.saveguanacayreef.com and info@saveguanacayreef.com which have been devoted to resisting the Development. The 2005 Proceedings have attracted considerable attention in the media and elsewhere. Letters, emails and faxes have been sent to many different central and local government departments and agencies including most of the 1st to 8th Respondents informing them of the Applicants concerns and requesting the opportunity to be consulted in relation to any applications being considered.
31.3 Section 5 of the Ministry of Finance Act provides that licences for members of the public to use Treasury lands may be only granted where it is in the public interest for them to be granted. For the reasons set out in the preceding paragraph, the public interest is not in any way served by the Developers being allowed to store dregded materials on Treasury Lands. On the contrary, allowing the Developers to make this use of Treasury Lands (as the 2nd Respondent has purported to do) runs directly counter to the public interest.
32. For the reasons set out above, no reasonable decision-making body could properly have decided to grant the approvals, permits and leases granted. The decisions to issue these approvals, permits and leases were therefore taken ultra vires and are void.
33. The Applicants reserve the right to plead further as to the irrationality of the Respondents decisions to grant the permits, approvals and leases issued once the Applicants have had discovery of the applications therefor, all associated documentation and, in the case of the permits granted by the 8th Respondent, the permits themselves.
34. The decisions of the 2nd Respondent to grant the leases over Treasury and Crown Lands were not decisions which a reasonable decision-maker could have come to by the proper and reasonable exercise of his discretion. In taking these decisions, the 2nd Respondent took into account improper considerations (the existence of the Heads of Agreement) and failed to take into account relevant considerations (the environmental impact of the Development and the fact that public lands are held on trust for the public benefit and the proposed use would not be for the public benefit.).
Ground 3: All of the permits, approvals and leases were issued without any or any proper public consultation
35. All of the permits and approvals set out at paragraphs 12 and 13 above were granted without any, or any proper, public consultation and involvement in the process contrary to Articles 15 and 20(8 ) of the Constitution.
36. There was a legitimate expectation, by virtue of the provisions of the Local Government Act and otherwise, on the part of the landowners and residents of Guana Cay to be properly consulted concerning the grant of approvals or permits in respect of this Development, to be given notice that applications had been made and were to be considered, to be given the opportunity to put their views forward for consideration prior to the granting of any approvals or permits and to have those views properly taken in to consideration by the decision-making bodies.
37. Acting Justice Norris Carroll in his judgment in the 2005 Proceedings dated 12 October 2006 held that the landowners and residents of Guana Cay had a right to be properly consulted in relation to the proposed Development.
38. Notwithstanding the high public profile of the 1st Applicant and its objection to the Development, none of the 1st to 8th Respondents consulted the Applicants at all in relation to the permits and approvals that were issued.
39. In addition to the fact that the 1st Applicants interest in and objection to the Development is a matter of public knowledge in the Bahamas, the 1st Applicant made direct contact with many of the respondents registering its opposition and requesting information and a right to be consulted and heard before any decisions were taken. The following are by way of example only:
The 1st Respondent
39.1 The Applicants did not communicate directly with the Director of Physical Planning but wrote a number of letters to his department (the Ministry of Public Works and Utilities) as set out at sub-paragraphs 71.5-6 below.
The 2nd Respondent
39.2 On 18 February 2005 and again on 7 March 2005, the 1st Applicant wrote to the 2nd Respondent in relation to the proposed Development and observing that the 1st Applicants have a right to know what is going on in their small island. The 2nd Respondent replied on 17 March 2005 not providing the information requested but directing the 1st Applicant to the Office of the 10th Respondent. In November 2005, the 2nd Respondent nonetheless went on to purport to grant the Developers approval to proceed with use of the Treasury Land for the storage of dredging materials and did so without recourse to the Applicants without taking the 1st Applicants interest and objection into account.
The 3rd Respondent
39.3 The Applicants did not write to the 3rd Respondent because the 3rd Respondent had no power or authority to take any decision in relation to the Development at Guana Cay, this power lying solely with the 8th Respondent.
The 4th Respondent
39.4 On 1 June 2005, the 1st Applicant wrote to the Port Department asking to be kept informed of any applications so that they might have an opportunity to be heard thereon. The 1st Applicant received no reply to this message but has subsequently (in May 2007) discovered that the Port Department had purported to grant the Developers permission on 31 May 2005 to place eight artificial reef structures in the sea bed. In addition, as to certain docks, the Applicants have been waiting since 2005 for replies to their letters.
The 5th` Respondent
39.5 On 18 February 2005, the 1st Applicant wrote to the 5th Respondent to express their opposition and resistance to the proposed development, requesting a meeting and asking that in the meantime, no approvals or permits be issued to the developers.
39.6 The 5th Respondent replied to this letter by letter May 27 2005 in which he refused to provide any information and stated: The Ministry of Works and Utilities is not able to provide you with a set of plans submitted for the Bakers Bay Development nor are we able to instruct the Developers to provide the Association with a set of plans. This is despite a public notice to the effect that plans had been tendered to the Ministry. Notwithstanding this response, it now transpires that the 5th Respondents went on to grant the Developers two-year approval in principle for their proposed subdivision road construction on or around 1 November 2005 a fact that did not come to the Applicants attention until 30 May 2007. The Applicants were never consulted in relation thereto and their interest and objections were not taken into account.
The 6th Respondent
39.7 On 8 March 2005, the 1st Applicant wrote to the Commissioner of Police, Royal Bahamas Police Force, informing him of its interest in and opposition to the proposed Development. The 1st Applicant received no response to this letter although the Applicants did receive a permit to demonstrate. Notwithstanding the communication from the 1st Applicant, the 6th Respondent purported to grant the Developers permission to light fires in order clear areas for development on 10 May 2005 and again on 8 June 2006 without notifying or consulting with the 1st Applicant and without taking the 1st Applicants interest and objection into account.
The 8th Respondent
39.8 The 1st Applicant wrote letters to the 8th Respondent on 23 May and 1 June 2005 registering its objection to the proposed Development and asking whether the 8th Respondent intended to issue any permits without giving them an opportunity to be heard.
39.9 The 1st Applicant wrote to the 8th Respondent on 20 February 2007 in response to notices having been posted in relation to the Developers applications stating that they would like an opportunity to make representations with regard to those proposed applications and asking for copies of the applications and accompanying documents submitted by the Developers as well as copies of the BEST Commission reports and the current Environmental Impact studies that had been repeatedly promised and not provided. They also asked that you adjourn the consideration of these applications until such time as [the Applicants] have been provided with the information sought.
39.10 As no response was received to this letter, the 1st Applicant wrote again on 23 April 2007 asking for a response to the enquiries made and renewing its request for relevant information so that we may make a contribution to your consideration of the applications.
39.11 Again no response was received. The 1st Applicant wrote once again on 11 May 2007 when it came to light that the permits had been granted without any warning being given to the Applicants and without any consultation with them. In this letter the 8th Respondents were asked to inform the Applicants whether the permits had been granted.
39.12 The 8th Respondent responded to this letter on 30 May 2007 in terms that implied that the permits had been granted. In this letter the 8th Respondent ignores the request for information and documentation in relation to any permits granted or to be granted. Instead it states: In light of the paucity of information gotten from the news media [about the Supreme Courts ruling in the 2005 Proceedings], the Council has acted using bounded rationality in its decision making process, using its most reasonable judgment. The 8th Respondent goes on to suggest that if it is of the view that its rights have been breached it is open to the 1st Applicant to judicially review the 8th Respondents decisions and suggests that this be done by enumerat[ing] the specific permits, and state the various breaches that have incurred. The 8th Respondent makes this suggestion notwithstanding the repeated ignored pleas of the 1st Applicant for information as to what specific permits had been issued.
40. In the premises all of the decisions taken by the 1st to 8th Respondent (as set out at paragraphs 12 and 13 above) were taken without any, or any proper, public consultation and involvement in the process and as such should be quashed and orders should be made that no future decisions are taken without proper public consultation and involvement.
41. An additional basis of review of the decision taken by the 2nd Respondent to grant the Developers leases over Crown Lands is that this decision appears to have been taken without the proper consultation having taken place between central and local government. Under s.14(1)(h) and 14(2) of the Local Government Act, the 8th Respondent was required to tender to the 2nd Respondent such recommendations in relation to the use of Crown Lands as it saw fit. As far as the Applicants are aware this was not done. Accordingly, the decision to issue the leases should be quashed and no future leases should be issued without these recommendations having been tendered and considered by the 2nd Respondent.
Ground 4: The decisions to grant the permits, approvals and leases were contrary to Articles 15 and 20(8 ) of the Constitution
42. Article 15(a) of the Constitution provides for a right to the protection of the law. Article 20(8 ) of the Constitution provides that
Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right of obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are institute by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
The Applicants have been deprived of their rights in the following ways:
42.1 The entire process that has been adopted by the 1st to 9th Respondents is arbitrary. The whole process adopted seeks to circumvent the protection of the laws, and due process in the Bahamas to which the Applicants are entitled.
42.2 The protection of various very practical lawful rights (such as the right to use the Crown and Treasury Lands for public benefit, the right to use the beaches, traditional crabbing, fishing and hunting rights) have been denied the Applicants without any proper or lawful process.
42.3 The refusal by the 1st to 9th Respondents to respond to the 1st Applicants requests for information and documents, in particular, for copies of the plans and applications and permits granted is another aspect of the deprivation of the protection of the law. The Applicants ability to conduct a proper review of the decision-making process has been hampered and the transparency required to guarantee protection of the law has been removed in this case.
42.4 The Respondents failures in this regard have hampered the bringing of these judicial review proceedings in that the Applicants could not apply to review decisions of which they were not aware. This has hindered and delayed the Applicants access to justice. The Applicants have for many years been asking the Respondents for information as to the permits that had been issued. The failure to provide that information has meant that the Applicants have been denied their right to challenge the decisions to grant those permits etc. In many instances the work permitted by the permits has already been carried out and damage has been caused.
42.5 Article 20(8 ) provides that proceedings before any Court shall be given a fair hearing within a reasonable time. As a result of the secret process adopted between the Respondents in the submission of applications, their consideration, and the grant of approvals (either by the correct or incorrect authority) the Applicants have been denied access to the Court for the determination of the existence or extent of any civil right. The Applicants have therefore been deprived of access to the Supreme Court and the determination of their rights.
The Relief Sought; Part 3
Further Relief sought against 2nd Respondent;
42.6 A Declaration that it is in breach of Article 15 of the Constitution for the 2nd Respondent to cause, and or for various lawfully constituted statutory bodies created under legislation, to delegate their decision making powers and authority to the BEST Commission; and,
42.7 A Declaration that the creation of a process by which persons (be they foreign or Bahamian) are required to apply to the 2nd Respondent for any omnibus approval for an investment is outside of the law, illegal and in breach of due process because it predetermines applications, deprives statutory bodies of properly considering and more to the point, creates a process where interested parties, such as the Applicants, have no opportunity to participate in the process and breach of natural justice as the Applicants do not have an opportunity to be heard; and
42.8 A Declaration that the Bahamas Environment Science and Technology Commission (BEST) is not a lawfully constituted statutory body created under any legislation and therefore does not exist in law;
Relief sought against Attorney General
43. The Applicants seek an order of mandamus that the 9th Respondent, the Attorney-General, take action against the Developers:
43.1 should they proceed or continue to undertake the works contemplated by the permits and approvals granted;
43.2 should they continue to occupy or carry out works of development on Treasury lands without the approval of the Treasurer or the approval of such Minister as the Treasurer may, with the approval of the Minister of Finance, nominate for this purpose pursuant to in the Ministry of Finance Act, Chp. 23, section 5;
43.3 should they occupy or carry out works of development on Crown lands without colour of title;
43.4 should they continue or undertake works of development without the necessary permits and approvals having been properly issued or granted by the appropriate bodies.
44. The Applicants wrote to the Attorney-General on 17 January 1 2006 alerting him to the Applicants interests. In this letter, the Applicants asked the Attorney General to make enquiries as to whether or not the Developers had the necessary permits and approvals. The Applicants referred the Attorney General to the various statutes governing the issue of permits such as the Local Government Act, Town Planning Act, Building Regulations Act, Port Authorities Act, etc. The Applicants also informed the Attorney General of the extensive works already undertaken by the Developers such as (a) construction of access roads and ancillary works (b) extensive clearing of trees and vegetation (c) extensive clearing of land in the construction of the development (d) construction of holding areas on which to locate vehicles and plant use for the construction (e) construction of fencing and preparatory works at the site. The Applicants detailed the activities which were being conducted and which were illegal in the absence of permits.
45. The Applicants wrote to the Attorney General again on February 9 2006 asking for a reply to the letter previously sent. The Applicants received no response from the Attorney General to these letters.
46. On 11 May 2007, the 1st Applicant wrote to the office of the Attorney General referring to and enclosing the previous correspondence with that office in relation to the Development and enclosing the correspondence with other ministries and government departments. The 1st Applicant repeated its complaint that no lawful permits had to its knowledge been issued to the Developers. The 1st Applicant requested that the Attorney-General take action to intervene against the Developers.
47. On 18 May 2007, the 1st Applicant again wrote to the Attorney-General. In this letter the 1st Applicant referred to the representation made by the Developers in the 2005 Proceedings on 17 May 2007 to the effect that the Developers had received all lawfully required permits for the conduct of all of their activities on Crown, Treasury and private lands. The letter goes on to request discovery from the Attorney-General of all of these permits and related documentation.
48. On 13 July 2007, the 1st Applicant wrote again to the 9th Respondent repeating its request for information and documentation.
49. The 9th Respondent replied by letter dated 30 August 2007 in which it refused to provide the documents requested on the basis that the discovery of these documents was not necessary to dispose of the 2005 Proceedings.
Interlocutory relief for injunctions and discovery
50. On the balance of convenience it is appropriate, in the light of the irreversible nature of the development work purportedly authorized by the permits and approvals at paragraphs 12 and 13 above and due to the irreversible damage that will be caused by the continuation of this work, that the interlocutory orders sought for injunctions and discovery as set out in paragraphs 17 & 18 hereof be made pending final determination of the proceedings, in order to ensure that the status quo remains intact and further to ensure that no irremediable and irreversible damage to the Applicants rights and the environment occurs.
51. On the one side, the Development is a private, foreign, commercial real estate venture and on the other, this judicial review application is concerned to prevent irremediable and irreversible harm to the environment. In these circumstances it is appropriate to maintain the status quo and issue the injunction.
Dated the 5th day of October, 2007
Frederick R.M. Smith
of
CALLENDERS & CO.
Chambers, Suite C, Regent Centre East,
Freeport, Grand Bahama
Attorneys for the Applicant
To: The Respondents and/or the Attorneys for the Respondents
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Public Law Division
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N
THE QUEEN
and
THE DIRECTOR OF PHYSICAL PLANNING OF THE COMMONWEALTH OF THE BAHAMAS et al
Ex parte
SAVE GUANA CAY REEF ASSOCIATION LTD.
1st Applicant
AUBREY CLARKE
2nd Applicant
_______________________________________
ORIGINATING NOTICE OF MOTION
_______________________________________
2007/PUB/jrv/FP/0003
Callenders & Co.
Chambers Suite C Regent Center East
Freeport, Grand Bahama
BAHAMAS
Attorneys for the Applicants
IN THE SUPREME COURT
Public Law Division
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N
THE QUEEN
and
THE DIRECTOR OF PHYSICAL PLANNING OF THE COMMONWEALTH OF THE BAHAMAS et al
Ex parte
SAVE GUANA CAY REEF ASSOCIATION LTD.
1st Applicant
AUBREY CLARKE
2nd Applicant
_________________________________________
ORIGINATING NOTICE OF MOTION
_________________________________________
COMMONWEALTH OF THE BAHAMAS 2007/PUB/jrv/FP/0003
IN THE SUPREME COURT
Public Law Division
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N
THE QUEEN
and
THE DIRECTOR OF PHYSICAL PLANNING OF THE COMMONWEALTH OF THE BAHAMAS
1st Respondent
THE PRIME MINISTER OF THE COMMONWEALTH OF THE BAHAMAS
2nd Respondent
THE TOWN PLANNING COMMITTEE OF THE COMMONWEALTH OF THE BAHAMAS
3rd Respondent
MINISTER OF MARITIME AFFAIRS AND LABOUR OF THE COMMONWEALTH OF THE BAHAMAS
4th Respondent
THE MINISTER OF PUBLIC WORKS AND TRANSPORT OF THE COMMONWEALTH OF THE BAHAMAS
5th Respondent
THE COMMISSIONER OF POLICE OF THE ROYAL BAHAMAS POLICE FORCE OF THE COMMONWEALTH OF THE BAHAMAS
6th Respondent
THE WATER AND SEWERAGE CORPORATION OF THE COMMONWEALTH OF THE BAHAMAS
7th Respondent
THE HOPE TOWN DISTRICT COUNCIL
8th Respondent
THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF THE BAHAMAS
9th Respondent
PASSERINE AT ABACO LIMITED
10th Respondent
PASSERINE AT ABACO HOLDINGS LIMITED
11th Respondent
BAKERS BAY LIMITED
12th Respondent
BAKERS BAY HOA LIMITED
13th Respondent
BAKERS BAY MARINA LIMITED
14th Respondent
BAKERS BAY FOUNDATION LIMITED
15th Respondent
Ex parte
SAVE GUANA CAY REEF ASSOCIATION LTD.
1st Applicant
AUBREY CLARKE
2nd Applicant
_________________________________________
ORIGINATING NOTICE OF MOTION
_________________________________________
TO:
The Director of Physical Planning of the Commonwealth of The Bahamas
John F Kennedy Drive
Nassau, Bahamas
The Prime Minister of the Commonwealth of The Bahamas
Sir Cecil Wallace Whitfield Centre
West Bay Street
Nassau, Bahamas
The Town Planning Committee of the Commonwealth of The Bahamas
John F Kennedy Drive
Nassau, Bahamas
Minister of Maritime Affairs and Labor of the Commonwealth of The Bahamas
Clarence Bain Building
Nassau, Bahamas
Minister of Public Works and Transport of the Commonwealth of The Bahamas
John F Kennedy Drive
Nassau, Bahamas The Commissioner of Police of the Royal Bahamas Police Force of the Commonwealth of The Bahamas
East Street
Nassau, Bahamas
The Water and Sewerage Corporation of the Commonwealth of The Bahamas
87 Thompson Blvd
Nassau, Bahamas
The Hope Town District Council
Hope Town
Abaco, Bahamas
The Attorney General of the Commonwealth of The Bahamas
East Hill Street
Nassau, Bahamas
AND TO
Passerine at Abaco Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave
Nassau, Bahamas
Passerine at Abaco Holdings Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay HOA Limited
c/o Graham Thompson & Co.
Chambers Sassoon House
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay Marina Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
Bakers Bay Foundation Limited
c/o Graham Thompson & Co.
Chambers Sassoon House,
Shirley Street & Victoria Ave.
Nassau, Bahamas
TAKE NOTICE that pursuant to the leave granted by the Honourable Mr. Justice Peter D. Maynard, Actg., on Tuesday the 27th day of September 2007, the Supreme Court will be moved at the Supreme Court Building, Garnet Levarity Justice Centre, Mall Drive, Freeport, Grand Bahama on the of 2007 at the sitting of the Court or so soon thereafter as Counsel can be heard, by Counsel on behalf of the Applicants in respect of the following matters and relief sought by the Applicants.
The Parties
1. This Originating Notice of Motion for Judicial Review is brought by Save Guana Cay Reef Association Ltd. (the 1st Applicant) and by Aubrey Clarke (the 2nd Applicant) (together periodically referred to as the Applicants) under Order 53 rule 1 of the Supreme Court Rules.
2. The 1st Applicant is a company formed for the purpose, inter alia, of representing and protecting the interests of landowners and/or the residents of Great Guana Cay, Abaco, Bahamas (Guana Cay) and those affected by the proposed development of a very substantial private residential resort and club membership community at Guana Cay comprising hotel style accommodation, private lots, a marina, and a golf course (the Development). The members of the 1st Applicant are some of the stakeholders referred to in an Environmental Impact Assessment the entirety of which the Applicants do not have a copy of but which will be sought in discovery (the EIA) prepared by consultants employed by the developers of this Development. The shares of the 1st Applicant are directly and indirectly owned by hundreds of residents and landowners of Guana Cay. These persons have all signed petitions showing their resistance to the Development.
3. The 2nd Applicant is a Bahamian and a resident of Guana Cay. He was born in Harbour Island, in The Bahamas, on March 9, 1941. He has been a resident of Guana Cay for approximately 12 years. He has often gone crabbing on the Crown and Treasury Land and Bakers Bay area before it was closed off by the developers and he has fished in the surrounding waters off the northern point of Guana Cay where the Development is located. He resides at Front Street in Guana Cay. Mr. Clarke has been a driving force from inception to the objections of the residents of Guana Cay to this Development.
4. The Applicants have from inception opposed the Development because of its scale; the anticipated catastrophic terrestrial and marine environmental impacts; and the social, political, economic and cultural disruption to the community of Guana Cay (e.g. by putting in 400 non-citizens on an island which has 150 Bahamians). Central government departments and agencies including the Respondents appear to have allowed the Development or aspects of it to proceed without requiring the Developers to make the statutorily mandated applications through various acts, in particular The Local Governement Act. The Applicants have made numerous requests for information as to the existence of applications for permits and approvals and requests to take part in a consultation process in relation thereto. These requests have all been ignored by the Respondents. This secrecy surrounding the entire process has deprived the Applicants of their legitimate right to be consulted both under the Constitution, relevant acts and as interested and affected parties.
5. The 10th to 15th Respondents are the developers, Passerine at Abaco Holdings Ltd, Passerine at Abaco Ltd, Bakers Bay Club Ltd, Bakers Bay HOA Ltd, Bakers Bay Foundation Ltd and Bakers Bay Marine Ltd (the Developers). The Development involves an investment of $500 million over 10 years and commenced in March 2005 without any permits having been applied for or issued.
6. A Heads of Agreement dated 1 March 2005 was signed between the Government of the Bahamas and the Developers (the Heads of Agreement) pursuant to which the Government purported to:
facilitate on an accelerated basis all necessary approvals, permits, agreements, licences and concessions hereinbefore and hereinafter requested and required by the Developers and each of them as may be appropriate in connection with the completion, operation and maintenance of the Development including []
(e) Approval under provisions of the Conservation and Protection of the Physical Landscape of the Bahamas Act, and any other relevant/applicable Acts for the dredging and landfill operations required in connection with the development of the Development site including the Marina;
[..]
(i) and all such other approvals, permits, agreements, licenses and concessions as may be required by the Developers for the purposes of the Development (Clause 6.8 )
and undertook to expedite the issuance of any delayed permissions or approvals (Clause 8.2).
7. On 4 April 2005, the 1st Applicant brought judicial review proceedings challenging the Heads of Agreement on the basis that it was entered into ultra vires; that it constituted an improper fettering of the Governments discretionary powers to grant the various approvals and permits referred to in it; and on the basis that there had been no, or no proper public consultation (the 2005 Proceedings).
8. The 2005 Proceedings are now at the stage of an appeal to the Court of Appeal brought by the Applicants against the decision in those proceedings of Acting Judge Carroll dated 12 October 2006. The Court of Appeals judgment is awaited.
9. In the course of the 2005 Proceedings (in order to defeat the Applicants application to the Court of Appeal for an injunction prohibiting the carrying out of the Development pending the decision of the Court of Appeal), the Developers represented to the Court of Appeal that they had not and were not relying on the Heads of Agreement as authority to engage in any Development works or to occupy and or conduct any works on the Treasury and/or Crown Lands as they had obtained all of the permits and approvals that they lawfully required in order to carry out the works that they were and are undertaking at the Development site. On 17 May 2007, the Developers undertook to provide copies of these permits and approvals to the Court of Appeal and to the Applicants.
10. This was done under cover of the Affidavit of Randol Dorsett, counsel to the Developers, sworn on 30 May 2007.
11. The Applicants have been seeking disclosure of all permits and approvals relating to the Development from the Developers and from all relevant Government departments and local and central governmental agencies by unanswered correspondence and by unsuccessful discovery applications to the court since February 2005.
12. According to the exhibits to the Affidavit of Randol Dorsett of 30 May 2007, the following approvals and permits have, to the Applicants knowledge, been issued by the Respondents to the Developers:
12.1 On 31 May 2005, the Port Administrator informed the Developers that they had been granted permission to place eight artificial reef structures in the sea bed (on condition that they did not obstruct of surface navigation). It is not clear from the letter exhibit to Mr Dorsetts affidavit what body took the decision and granted this permission. As the person responsible for the Port Department, the Minister of Maritime Affairs and Labour (the 4th Respondent) is joined in these proceedings in relation to this decision. The Applicants reserve the right to add further respondents and grounds of judicial review as necessary after discovery when the question of what body has taken the decision and on what basis should be clearer.
12.2 On 7 November 2005, the Developers were notified by the Office of the Prime Minister (the 2nd Respondent) that approval had been given for them to proceed with use of the Treasury Land referred to under clause (I) of the Heads of Agreement for the storage of dredged materials in connection with the agreed stated uses. It is not known what these agreed stated uses are. The letter indicated that the formal leases of Crown and Treasury Lands were still being considered.
12.3 At a meeting of the Town Planning Committee (the 3rd Respondent) on 21 June 2005, it gave approval in principle (for a one-year period) to the Developers Land Use Plan for the proposed residential and club membership community subject to certain conditions and informed the Developers that subdivision approval had also been given. The Developers were notified of these approvals by letter from the 1st Respondent, the Director of Physical Planning dated 22 June 2005. It is not known whether the site or sites that are the subject of this approval consist of Crown, Treasury or privately-owned lands.
12.4 At a meeting on 4 July 2006, the 3rd Respondent extended the original approval in principle and approved a revised land use plan for residential and club community for a further one-year period. Again, it is not known whether the site or sites that are the subject of this approval consists of Crown, Treasury or privately-owned lands.
12.5 On 10 May 2005, the Royal Bahamas Police Force (the 6th Respondent) purported to grant the 11th Respondent permission, pursuant to s.212(6)1 of the Penal Code, to light a fire at [Guana Cay] for the purpose of clearing grounds for development. This permission was renewed on 8 June 2006. It is not known whether the permission allows fires to be lit on Crown, Treasury or privately-owned lands.
12.6 On 23 June 2005, permission was given by the Director of Physical Planning (the 1st Respondent) at the Ministry of Public Works pursuant to s.23 of the Conservation and Protection of Physical Landscape of the Bahamas Act 1997 for the removal of protected trees from the 610-acre development site at Guana Cay to accommodate building and driveway construction. It is not known whether the 610-acre site referred to includes Crown, Treasury or privately-owned lands , although given the acreage it seems to include all of them.
12.7 On 30 June 2005, the Developers were notified by letter that the 1st Respondent had approved all of the applications that had been tendered to him under the Conservation and Protection of Physical Landscape of the Bahamas Act. Permits were issued to the Developers in respect of Land Use Approval in Principal, Land Excavation, and the Harvesting of Protected Trees. It is not known whether the proposed sites of the excavation, harvesting of trees and general development envisaged by these permits are on Crown, Treasury or privately-owned lands, although from the Applicants local knowledge and observation, the desecration of the beaches, forest, mangroves, and civil works appear to be ongoing on the Crown and Treasury lands as well as the private land.
12.8 On 1 November 2005, the Developers were informed that the Minister of Public Works (now, the Minister of Works and Transport, the 5th Respondent) was granting them approval in principle for their proposed subdivision road construction with conditions attached. One of the conditions was that no building permits be granted until the infrastructure was completed. The approval was for 2 years. It is not known whether the proposed site of these roads are on Crown, Treasury or privately-owned lands, although again, as in 12.7 it appears to be ongoing on all three lands.
12.9 On 21 February 2007, the Water and Sewerage Corporation (the 7th Respondent) granted approval to the Developers proceed with the construction of a waste water treatment plant effluent disposal well at Guana Cay. It is not known whether the proposed site of this well is on Crown, Treasury or privately-owned lands.
12.10 On 6 March 2007, the 7th Respondent granted approval for the construction of wells at Bakers Bay, Great Guana Cay. It is not known whether the proposed sites of these wells are on Crown, Treasury or privately-owned lands.
12.11 On 30 November 2006, the Office of the Prime Minister informed the Developers that they had been granted approval for the issuance of five separate leases. The letter lists the following leases: Crown Conditional Purchase Lease; Crown Marine Lease; Crown Preserve Lease; Treasury Lease; and Treasury Staging Area Lease. It is not clear what body approved the granting of these leases nor what is their duration and terms.
13. In addition to these permits, Hope Town District Council (the 8th Respondent) at some time between March and May 2007 issued to the Developers some or all of the permits that they require in order to carry out the Development. Further, the 4th Respondent, either itself, or through its Port Department, has purported to grant certain approvals for the refurbishment of an existing dock and the construction of a service dock in 2005. Despite requests, the Applicants have not been provided with copies of the applications or of the permits granted.
The relief sought; Part 1
14. The Applicants seeks the following relief:
14.1 Declarations that:
14.1.1 All of the decisions taken by the 1st to 8th Respondents which led to the granting of the permits, approvals and leases set out at paragraphs 12 and 13 above were contrary to and in breach of the Applicants rights and repugnant to Articles 15 and 20(8 ) of the Constitution of the Commonwealth of the Bahamas and therefore void, illegal and of no effect;
14.1.2 The 2nd Respondent had no power or authority to grant the approval given by him as set out at sub-paragraph 12.2 above and that this approval is therefore ultra vires, void and of no effect;
14.1.3 The 2nd Respondent had no power or authority to issue the two leases of Treasury lands set out at sub-paragraph 12.11 above and that their issuance is therefore ultra vires, void and of no effect;
14.1.4 The 3rd Respondent had no power or authority to issue the approvals issued by it as set out at sub-paragraph 12.3 and 12.4 above and that these approvals are therefore ultra vires, void and of no effect; and
14.1.5 The 6th Respondent had no power or authority to issue the permissions set out at sub-paragraph 12.5.
14.2 Orders of Certiorari to quash the decisions of the 2nd, 3rd and 6th Respondents to grant the approvals, permits and Treasury leases issued by them as set out at sub-paragraphs 12.2 to 12.5 and 12.11 above;
14.3 An order of prohibition that the 2nd, 3rd and 6th Respondents be enjoined from issuing any further permits, approvals or leases of Treasury land to the Developers or renewing any permits, approvals or leases of Treasury land in relation to the Development;
14.4 Orders of Certiorari to quash the decisions of the 1st, 4th, 5th, 7th and 8th Respondents to grant the approvals and permits issued by them as set out at sub-paragraphs 12.1 and 12.6 to 12.10 and paragraph 13 above;
14.5 An order of mandamus that the 1st, 4th, 5th, 7th and 8th Respondents conduct a process of full and proper public consultation prior to the granting or issuing to the Developers of any leases, approvals, permits, rights, concessions, exemptions or grants; and
14.6 In relation to the leases of Crown Lands by the 2nd Respondent as set out at sub-paragraph 12.11 above:
14.6.1 An order of certiorari to quash the decision to issue these leases; and
14.6.2 An order of mandamus that the 2nd Respondent receive and consider recommendations of the 8th Respondent in relation thereto before granting any leases of Crown Lands.
14.7 An order of mandamus that the Attorney-General (the 9th Respondent) do take action against the Developers:
14.7.1 Should they proceed or continue to undertake the works contemplated by the permits and approvals granted;
14.7.2 Should they occupy or carry out works of development on Treasury lands or continue to do so without the approval of the Treasurer or the approval of such Minister as the Treasurer may, with the approval of the Minister of Finance, nominate for this purpose pursuant to in the Ministry of Finance Act, Chp. 23, section 5;
14.7.3 Should they occupy or carry out works of development on Crown lands without colour of title;
14.7.4 Should they continue or undertake works of development without the necessary permits and approvals having been properly issued or granted by the appropriate bodies.
15. These proceedings are brought on the basis of information only very recently obtained by the Applicants in relation to various permits granted to the Developers to proceed with the Development. The information has been obtained as a result of an undertaking extracted from the Developers by the Court of Appeal in the 2005 proceedings. Notwithstanding this undertaking and requests made by the Applicants for further particulars and documentation, the information is far from clear as to the nature of the permits granted. As to the issue of docks, the Applicants have been waiting for information from the 4th Respondent since June 2005. In particular, it is in many cases unclear what body has issued the approval, pursuant to what authority and in relation to what part of the Development and for works to take place on what land (Crown, Treasury or privately-owned). Without this information the Applicants are in some cases unable to ascertain whether permission has been given by a body with authority to do so. In all cases, the Applicants are unable to ascertain whether the permits purport to allow works to be undertaken on Crown or Treasury lands. If they do so purport, the Applicants may have further grounds upon which to challenge the decisions. The lack of information as to what precisely is permitted by each permit or approval prevents the Applicants from ascertaining whether or not the Development works that the Developers have already embarked upon are covered by the permits in question and whether they were covered at the time that they were undertaken.
16. The Applicants reserve the right, once this information is disclosed:
16.1 To join further respondents as necessary;
16.2 To amend its motion to add further grounds of review as necessary;
16.3 To challenge the Attorney-Generals failure to take steps to prevent the Developers from proceeding with the Development without the necessary properly issued approvals and permissions; and
16.4 To seek an order requiring the Attorney-General to take action against the Developers in relation to works undertaken without permits and/or approvals and/or proper title to Crown or Treasury Lands.
Interlocutory relief sought; Injunctions
17. The Applicants also seek the following interlocutory relief pending the final determination of the proceedings:
17.1 An order restraining the 10th to 15th Respondents from proceeding with or continuing to undertake the works contemplated by the permits and approvals purportedly granted;
17.2 An order restraining the 10th to 15th Respondents from undertaking or continuing to undertake works of development without the necessary permits and approvals having been properly issued or granted by the appropriate bodies;
17.3 An order restraining the 10th to 15th Respondents from undertaking or continuing to undertake works of development on Treasury lands without the approval of the Treasurer or the approval of such Minister as the Treasurer may, with the approval of the Minister of Finance, nominate for this purpose pursuant to in the Ministry of Finance Act, Chp. 23, section 5
17.4 An order restraining the 10th to 15th Respondents from undertaking or continuing to undertake works of development on Crown lands without colour of title;
17.5 An order restraining the 1st to 8th Respondents from issuing any further permits or approvals to the Developers or from renewing any existing permits or approvals in relation to the Development;
17.6 An order of mandamus requiring the 9th Respondent, to take action against the Developers should they proceed with or continue to undertake the works contemplated by the permits and approvals purportedly granted.
Interlocutory relief sought; Discovery
18. The following orders are also sought immediately against each of the 1st to 8th and 10th to 15th Respondents:
18.1 to disclose and deliver up to the Applicants copies of all correspondence, plans, applications and related documentation submitted to them by or on behalf of the Developers in relation to the Development or any part thereof and/or in relation to any application made to them by or on behalf the Developers for any permit, approval, grant, exemption, lease or licence; and
18.2 to disclose and deliver up to the Applicants copies of all correspondence, permits, approvals, grants, exemptions, leases or licences granted to the Developers in relation to the Development and all related documentation including but not limited to all documents evidencing, recording or relating to the decision-making and consultation process undertaken, if any, in reaching each decision to grant or issue a permit, approval, grant, exemption, lease or licence including details of and documentation relating to all recommendations and communications received and/or considered and consultations entered into in relation thereto.
Relief Generally; Part 2
19. Costs;
20. Such further or other relief as to the Court seems just.
Grounds for review
21. The grounds on which the Applicants seek judicial review as set out above are as follows:
Ground 1: The 2nd, 3rd and 6th Respondents had no power or authority to issue the approvals, permits and Treasury leases issued
22. The 2nd to 3rd and 7th Respondents had no power or authority to grant the permits and approvals they purported to grant as set out in paragraph 12 above.
23. In the case of the decisions taken by the 3rd Respondent, the powers that it has purported to exercise were not vested in it but, rather, are vested in the 9th Respondent. The purported exercise of those powers by the 3rd Respondent was, therefore, ultra vires, void and of no effect.
24. The Parliament of the Commonwealth of the Bahamas has conferred certain important regulatory powers upon local government pursuant to the Local Government Act Chp. 37 (LGA) including (but not limited to) the power to permit any change of land use and the functions assigned to the Town Planning Committee under the Town Planning Act (s.14). These are powers that the 3rd Respondent has purported to exercise in reaching the decisions that it reached and in granting the approvals and permits that they purported to grant as set out in paragraph 12.3 and 12.4 above.
25. In taking these decisions, the 3rd Respondent has purported to exercise powers that it did not possess and has usurped and bypassed the 9th Respondent as the only body with the power and authority to take those decisions.
26. In the case of the 2nd Respondent, the Prime Minister, the power that he has purported to exercise in (1) purportedly allowing the Developers to proceed with the use of Treasury Lands for the storage of dredged materials and (2) purporting to issue the Developers with two leases for the use of Treasury Lands was not vested in him but, rather, was vested in the Treasurer. Under the Ministry of Finance Act, s. 5, the power to grant members of the public leases or licences to occupy Treasury Lands lies with the Treasurer. Section 5 allows the Treasurer, with the approval of the Minister of Finance, to delegate the right to grant such leases or licences. To the Applicants knowledge, this right was not delegated to the Prime Minister by the Treasurer. In addition, if the leases and licences are for a period of three years or more, the approval of the Governor-General is required.
27. The grantor of leases or licences of Treasury land is required to do so in a manner consistent with those lands being held in trust for the public purposes of the Bahamas. The grants of leases and a licence to the Developers for the purposes of this Development are ultra vires and void because they go against the public interest of the Bahamas and its inhabitants.
28. In the case of the 6th Respondent, it purports to grant permissions to the Developers pursuant to s.212(6)1 of the Penal Code to clear forested areas for development by lighting fires. There is no s. 212(6)1. S.212(6) provides that Every person who does any of the following acts shall, in every case, be liable to a penalty of one hundred and fifty dollars, that is to say, every person who (6) in any part of any town or settlement or any place immediately adjacent thereto, makes or causes to be made any fire [..].. There is no provision giving the 6th Respondent authority to permit the burning and clearing of forested areas for development. The 6th Respondent therefore did not possess the power to grant these permissions and they should be set aside and the 6th Respondent should be ordered to refrain from renewing these permissions.
Ground 2: The decisions to grant the permits, approvals and leases were irrational
29. Even if, contra the above, the 2nd, 3rd and 6th Respondents had the power or authority to grant the permits, approvals and leases as they purported to do, in any event they are ultra vies and void because no reasonable decision-making body, properly exercising its discretion, could have granted these approvals, permits and leases.
30. In addition, the decisions of the 1st, 4th, 5th, 7th and 8th Respondents to grant the permits and approvals granted are ultra vires and void because no reasonable decision-making body, properly exercising its discretion, could have granted these approvals and permits.
31. The decisions in question all relate to the Development and enable the Development or parts thereof to take place. The decisions were irrational for the following reasons:
31.1 The Development will have major adverse environmental, social, political and economic implications:
Environmental implications
31.1.1 The Development as a whole and, in particular, the clearing of land by fires, the harvesting of protected trees, the excavation of land to build roads and buildings and a golf course, the construction of sewerage systems, wells, artificial reef structures and dry docks; and the construction of a residential and club membership community as envisaged and permitted by these approvals threaten the ecologically unique and precious environment of Guana Cay.
31.1.2 Guana Cay contains marine and reef life that is of global ecological importance. The proposed Development threatens to cause major environmental and ecological damage.
31.1.3 The development of a golf course at Guana Cay, and the necessary chemicals to be used in tending such a golf course, will leech into the waters and kill the wildlife, marine life and reef.
31.1.4 The development of a very substantial marina, and sea-plane landing facility, and the use of those facilities, will cause substantial water, air and noise pollution, threatening the wildlife and marine life around Guana Cay.
31.1.5 Guana Cay is presently an area of outstanding natural beauty. The construction of the commercial and residential properties envisaged by the Development will destroy the visual environment and the entire tranquillity and nature of the Cay itself.
The EIA
31.1.6 The EIA makes clear that the environmental impact of the proposed Development will be very significant, negative and detrimental to the environment:
At page 6, under the rubric Probable Adverse Impacts, the EIA states
Short-term and long term environmental impacts will occur with such a large-scale land conversions. The developers and the environmental management team have identified areas of concern:
1.) Loss of local biological diversity and wildlife habitat
2.) Degradation of habitats for some wildlife specie
3.) Loss of wetlands
4.) Probability of chronic nutrification (nutrification) stress to near shore marine communities.
5.) Some chance of small scale fuel spillage and seeps.
At page 14, the EIA states that
the main threats to small island environments from development stem from
Chronic eutrophication or nutrification of the island, leading to a loss of biological diversity and wildlife habitat degradation of the land and in the sea;
Loss of critical habitats for wildlife on and around the island in the land cover conversion; and
Increased sediment run-off and erosion due to large-scale vegetation loss in the construction phase of the development.
At page 81 the EIA states that loss and severe alteration of inland mangrove areas will occur with marina construction and that it is unlikely that a forest will ever recover from the golf course conversion (page 90).
It is evident from the terms of the EIA that the Developers regard the Development as something of an environmental experiment; the EIA itself admits (at page 1230) that The project will be an experiment in sustainability for small island developments. Page 124 of the EIA states
It is often very difficult to document the real ecological costs of development until years after the developers have completed the job and left. The long term environmental impacts pose a significant financial burden to residents of the resort community. For example, resort development in the Florida Keys commonly underestimated the flushing rates of residential finger canal systems. Twenty to thirty years after the construction, residents are faced with very expensive mitigation options to improve near shore and canal water quality, with millions of dollars slated for advanced wastewater treatment plants, backfilling canals, and re-landscaping canal margins.
It is evident that the Government of the Bahamas has chosen to use the people of Great Guana Cay as guinea pigs in an experiment and as a case study site for small island development (p.117 of the EIA) secretly and without consultation or even their informed consent. And this is despite noting that
The project will be an experiment in sustainability for small island developments. Clearly, local residents or Bahamians in general would not appreciate being the site of experimental approaches to development of their natural resources, but the aim of the experiment is to provide a truthful documentation of the real ecological costs.
The decisions failed properly to take into account, that land in the Northern Abacos, in particular in the Cays, is an ever decreasing national, cultural and heritage resource and treasure. In fact, as the EIA itself makes clear, at page 7
As land becomes increasingly scarce in Abacos (and all of The Bahamas), there needs to be an overall land use plan that sets aside natural areas for tourism, recreation, and conservation of the natural heritage of the country.
And at page 47
The rate at which islands are being developed in the Northern Bahamas makes all land conversions from natural vegetation communities significant.
Further, at page 21 of the EIA the Developers acknowledge
These smaller islandsare particularly vulnerable to environmental destruction.
Indeed, at page 21, the EIA states
Environmental Impacts from the proposed development will be largely a function of habitat loss and destruction inland.
It goes on to say that, uniquely,
The property represents the largest intact tract of broad evergreen coppice remaining in Northern Abaco
At page 29 the EIA quotes sections from studies of the BEST Commission in 2002 on the Biological and Ecological Aspects of the coastal zones which dominate small island ecologies. It states
The coastal zone dominates small island ecology. The coastal environment is the area where the land meets the sea. The coastal zone includes areas of dunes, beaches, rocks, low cliffs, wetlands, bays and coves, and often refers to both the marine and terrestrial habitats that occur near the shoreline. Because of the effects of current, waves, tidal changes, storms, and hurricanes, the coastal zone is a dynamic environment. The coastal zone includes many diverse and interconnected ecosystems and communities so that any impact on one ecosystem or community can directly affect all others that are connected to it through the life histories of species that travel between them (B.E.S.T., 2002). The coastal zone provides critical habitats and resources for many species, such as seabirds, sea turtles, and marine mammals. Additionally, coastal zones also provide people with benefits, which include hurricane buffer zones, tourist attractions, educational opportunities, and living resources (B.E.S.T., 2002).
Following on from these comments on the sensitivity of coastal zones, the EIA considers the effects of the development on terrestrial wildlife and fauna.
Page 41 of the EIA notes that both species of black and white crabs are found on Guana Cay and it is noted at page 42 of the EIA that
..the white crab species is probably in decline throughout the country due to habitat loss, harvesting pressure and pollution impacts. Large migrations of crab during the breeding season were reported in the past and only rarely observed today.
Land crabs require high quality habitat, especially clean ground water. Land crabs, as an ecological group includes the soldier crab or land hermit crab
Since land crabs spend much of their time in burrows, any contaminants (especially anti-mosquito pesticides) can have devastating impacts on land crab populations.
Land crabs can serve as critical indicators of environmental quality throughout the project site.
In commenting on marine fauna at page 43, the EIA notes that there is a mosaic of soft-bottom marine communities dominating the western side of the project site, including Bakers Bay and states that
Dense to sparce seagrass beds provide critical habitat for finfish and invertebrates, as well as foraging areas for juvenile sea turtles.
In dealing with the reef environment, the EIA states
All reef habitats are critical habitats for fisheries target species such as groupers and lobsters
Page 43 of the EIA notes that the
Marine environments adjacent to the island provide abundant habitat for all 5species [of turtles] and Nesting adults and hatchlings may potentially use these beaches throughout the year.
The five species of turtles are Green Turtle, Hawksbill Turtle, Loggerhead Turtle, Kemps Ridley and Leatherback. Page 111 of the EIA states
However, they are being pushed to the brink of extinction by human activities
Human factors in turtle decline include:
Destroying nesting habitat, particularly beaches and dunes
Overfishing
Disorienting nesting turtles with in appropriate lighting along beaches
Polluting near shore water with oil, plastics and debris
The Bahamas is a signator to the CITES (International Convention on the trade of endangered species), and thus, there are legal requirements to protect sea turtle habitat and protect turtles from exploitation. Interference with a nesting attempt may constitute a violation of the law, which protects all sea turtles from harm and harassment.
The EIA concludes the section on marine habitat by saying
Every effort should be made to protect remaining turtle habitat and near shore quality.
As to birds, the EIA, at page 44 notes that further development of the outer cays is of concern in general for protection of seabird habitat and forage areas. It also notes that the most endangered bird is the Audubons shearwater which occurs in the Abacos; and notes that Seabirds are suspected of undergoing a serious decline in populations in The Bahamas.
The EIA comments on Marine Mammals at page 45. It states that the Northern Abacos platform margin is an active foraging area for several species of marine mammals. It notes that
There are 11 species of whales and dolphins that can occur seasonally in the Great Guana Cay environs. It further states that
All coastal development poses a potential threat to whales and dolphins. Increased boat traffic, from recreation boat to barge and cargo ships, can threaten marine mammals. Humans also compete with some species (e.g. spotted and bottlenose dolphins) for fisheries resources.
At page 58 the EIA, deals with water pollution issues.
Water also poses one of the most insidious environmental threats to the near shore marine environments and enclosed waterways of the marina.
Changes to the island hydrology, pollution or contamination of groundwater sources, or introduction of pathogens, nutrients or excessive organic matter can all pose serious and irreversible environmental impacts.
Near shore water quality and marina water quality are critical components of the site-monitoring plan.
Water quality is fundamental to both species and natural community distribution in the coastal zone environments, and the impact of water quality degradation is complex. Small islands such as Great Guana Cay place all the upland areas in close proximity to the ocean and mangrove wetlands. Changes in water quality parameters will occur with human alterations of coastal hydrology and runoff patterns.
Sewage and wastewater discharge are notorious for long-term changes in tropical marine environments. Human activities on land inevitably increase nutrient inputs to coastal waters from deforestation, wastewater, fertiliser and other sources.
We concede the fact that water quality degradation will occur with coastal development and land-cover change.
At page 66 the EIA also overviews the overall environmental impact
Islands have proven to be very desirable sites for development, but costly to acquire and manage in any protected area status.
Tropical islands present a particular challenge in balancing costal development needs and environmental protection for both cultural and ecological reasons. Development poses an especially difficult challenge in the oligotrophic, carbonate environment of the Bahamian archipelago. In the Bahamas, small islands are acutely impacted by development activities, particularly the reclamation of coastal wetlands and pollution discharge to coastal waters. Source activities on land have produced ecological changes in the coastal environment. The most significant changes include:
Changes in coastal species abundance and diversity (including local extirpation),
Changes in near shore natural community structure,
Changes in coastal water quality and
Changes associated with exotic species invasion.
Fragmentation and chronic eutrophication of tropical near shore marine environments. The smaller islands often post the greatest challenge to development, as there are cumulative impacts of the landscape-scale of the archipelago beyond the island itself.
The EIA also deals with the Marina site. At page 82 it states
The marina area is particularly sensitive ecologically because of the diversity of vegetation communities that are small in scale and clustered in this area of the island.
It is possible to inflict irreparable damage to the environment in very short order with careless practices.
As to the golf course, the EIA states that it is a keystone amenity and at page 84 notes that
The location of golf courses near the coastline causes concern about nonpoint source (NPS) pollution effects on the water quality of surrounding marine and wetland environments. Of particular interest is the impact of herbicides, fungicides and fertilisers on groundwater quality.
As to general construction activity, page 86 of the EIA states
Construction activities, by their nature, create many sources of potential pollutants, especially to near shore marine waters. Accelerated erosion and sedimentation caused by land disturbing activities is one of the major pollution problems caused by construction. Control measures and practices to limit sediment pollution are specified later.
The EIA goes on to consider the effects of dredging at page 4 of Part 2
Dredging is extremely destructive to near shore marine environments, and there is already dredging damage in Bakers Bay associated with the Treasure Island Cruise Ship report. Dredging can damage and destroy seagrass beds, an important fish habitat as well as disrupt the near shore circulation and movement of sand. Dredging can potentially impact the beaches of Bakers Bay, a critical natural resource to the development as well as local residents.
The EIA also comments on Eco-Tomes as unique habitats for both plants and animals (page 19, Part 2) and at page 18 of Part 2 says
Ecotomes are described as transitional vegetation communities on the boundary of one vegetation type to another. Ecotomes are often small in area, with variable environmental parameters, and provide unique habitats for plant and animal species. An important ecotome in the proposed marina environs is the area between mangrove wetlands and upland broadleaf evergreen forests. These areas are shown in Figures 3.2 and 3.3 and are often areas of high orchid and bromeliad density.
The EIA also notes that the Ecotome where the proposed dredging is to occur for the Marina contains
The rare Bahamas dildo cactus(which) thrives in the xeric ecotome between the inland mangrove wetlands and upland coppice: and,
The endangered orchid encyclia ruja (which) thrives in the ecotome, often growing on old buttonwood or red mangrove trees.
The dredging will destroy large areas of dense red mangroves of 13-17 feet (page 27 Part 2). There will be loss and severe alteration of inland mangrove areas. The destruction will be a certaintywith marina construction. The changes will be permanent to the landscape and mangrove will be reduced in areas and there will be changes to adjacent wetland areas. It goes on to say there will be loss of habitat in coastal strand areas and broadleaf forest. As these areas will be used in waterways and entrance channel, and there is no doubt that there will be a loss of wetland and upland vegetation areas.
Social , political and economic implications
31.1.7 The Development as a whole and, in particular, the construction of a residential and club membership community as envisaged and permitted by these approvals threatens to have an adverse impact on the economy, culture and way of life of this small island community.
31.1.8 It is part of the local culture and heritage of Great Guana Cay that its inhabitants live a simple, calm, quiet, crime-free life on a small island that has preserved its unique heritage, culture, environment and way of life by slow, sustained and almost imperceptible growth. This slow sustained growth has given prosperity and jobs to many of the residents of Great Guana Cay. There is virtually 100% employment on the island. The settlement of Great Guana Cay represents successful environmentally sustainable development at a pace which the community has been able to accommodate without economic, social, cultural or environmental upheaval. The Development threatens to completely change this. The Development and in particular the gated residential and club community proposes to exclude Bahamians from large parts of their island including vast stretches of beach.
31.2 Turning to the second factor indicating irrationality in the decisions to grant the approvals and permits in question, there was a complete failure on the part of the 1st to 8th Respondents properly to take into account matters which should have been taken into account. In particular, there was a failure to take into account the views and interests of those living and working at Guana Cay and the surrounding area. None of the Respondents could have been unaware of the considerable public interest in and the need for consultation in relation to all aspects of the Development. There are two websites www.saveguanacayreef.com and info@saveguanacayreef.com which have been devoted to resisting the Development. The 2005 Proceedings have attracted considerable attention in the media and elsewhere. Letters, emails and faxes have been sent to many different central and local government departments and agencies including most of the 1st to 8th Respondents informing them of the Applicants concerns and requesting the opportunity to be consulted in relation to any applications being considered.
31.3 Section 5 of the Ministry of Finance Act provides that licences for members of the public to use Treasury lands may be only granted where it is in the public interest for them to be granted. For the reasons set out in the preceding paragraph, the public interest is not in any way served by the Developers being allowed to store dregded materials on Treasury Lands. On the contrary, allowing the Developers to make this use of Treasury Lands (as the 2nd Respondent has purported to do) runs directly counter to the public interest.
32. For the reasons set out above, no reasonable decision-making body could properly have decided to grant the approvals, permits and leases granted. The decisions to issue these approvals, permits and leases were therefore taken ultra vires and are void.
33. The Applicants reserve the right to plead further as to the irrationality of the Respondents decisions to grant the permits, approvals and leases issued once the Applicants have had discovery of the applications therefor, all associated documentation and, in the case of the permits granted by the 8th Respondent, the permits themselves.
34. The decisions of the 2nd Respondent to grant the leases over Treasury and Crown Lands were not decisions which a reasonable decision-maker could have come to by the proper and reasonable exercise of his discretion. In taking these decisions, the 2nd Respondent took into account improper considerations (the existence of the Heads of Agreement) and failed to take into account relevant considerations (the environmental impact of the Development and the fact that public lands are held on trust for the public benefit and the proposed use would not be for the public benefit.).
Ground 3: All of the permits, approvals and leases were issued without any or any proper public consultation
35. All of the permits and approvals set out at paragraphs 12 and 13 above were granted without any, or any proper, public consultation and involvement in the process contrary to Articles 15 and 20(8 ) of the Constitution.
36. There was a legitimate expectation, by virtue of the provisions of the Local Government Act and otherwise, on the part of the landowners and residents of Guana Cay to be properly consulted concerning the grant of approvals or permits in respect of this Development, to be given notice that applications had been made and were to be considered, to be given the opportunity to put their views forward for consideration prior to the granting of any approvals or permits and to have those views properly taken in to consideration by the decision-making bodies.
37. Acting Justice Norris Carroll in his judgment in the 2005 Proceedings dated 12 October 2006 held that the landowners and residents of Guana Cay had a right to be properly consulted in relation to the proposed Development.
38. Notwithstanding the high public profile of the 1st Applicant and its objection to the Development, none of the 1st to 8th Respondents consulted the Applicants at all in relation to the permits and approvals that were issued.
39. In addition to the fact that the 1st Applicants interest in and objection to the Development is a matter of public knowledge in the Bahamas, the 1st Applicant made direct contact with many of the respondents registering its opposition and requesting information and a right to be consulted and heard before any decisions were taken. The following are by way of example only:
The 1st Respondent
39.1 The Applicants did not communicate directly with the Director of Physical Planning but wrote a number of letters to his department (the Ministry of Public Works and Utilities) as set out at sub-paragraphs 71.5-6 below.
The 2nd Respondent
39.2 On 18 February 2005 and again on 7 March 2005, the 1st Applicant wrote to the 2nd Respondent in relation to the proposed Development and observing that the 1st Applicants have a right to know what is going on in their small island. The 2nd Respondent replied on 17 March 2005 not providing the information requested but directing the 1st Applicant to the Office of the 10th Respondent. In November 2005, the 2nd Respondent nonetheless went on to purport to grant the Developers approval to proceed with use of the Treasury Land for the storage of dredging materials and did so without recourse to the Applicants without taking the 1st Applicants interest and objection into account.
The 3rd Respondent
39.3 The Applicants did not write to the 3rd Respondent because the 3rd Respondent had no power or authority to take any decision in relation to the Development at Guana Cay, this power lying solely with the 8th Respondent.
The 4th Respondent
39.4 On 1 June 2005, the 1st Applicant wrote to the Port Department asking to be kept informed of any applications so that they might have an opportunity to be heard thereon. The 1st Applicant received no reply to this message but has subsequently (in May 2007) discovered that the Port Department had purported to grant the Developers permission on 31 May 2005 to place eight artificial reef structures in the sea bed. In addition, as to certain docks, the Applicants have been waiting since 2005 for replies to their letters.
The 5th` Respondent
39.5 On 18 February 2005, the 1st Applicant wrote to the 5th Respondent to express their opposition and resistance to the proposed development, requesting a meeting and asking that in the meantime, no approvals or permits be issued to the developers.
39.6 The 5th Respondent replied to this letter by letter May 27 2005 in which he refused to provide any information and stated: The Ministry of Works and Utilities is not able to provide you with a set of plans submitted for the Bakers Bay Development nor are we able to instruct the Developers to provide the Association with a set of plans. This is despite a public notice to the effect that plans had been tendered to the Ministry. Notwithstanding this response, it now transpires that the 5th Respondents went on to grant the Developers two-year approval in principle for their proposed subdivision road construction on or around 1 November 2005 a fact that did not come to the Applicants attention until 30 May 2007. The Applicants were never consulted in relation thereto and their interest and objections were not taken into account.
The 6th Respondent
39.7 On 8 March 2005, the 1st Applicant wrote to the Commissioner of Police, Royal Bahamas Police Force, informing him of its interest in and opposition to the proposed Development. The 1st Applicant received no response to this letter although the Applicants did receive a permit to demonstrate. Notwithstanding the communication from the 1st Applicant, the 6th Respondent purported to grant the Developers permission to light fires in order clear areas for development on 10 May 2005 and again on 8 June 2006 without notifying or consulting with the 1st Applicant and without taking the 1st Applicants interest and objection into account.
The 8th Respondent
39.8 The 1st Applicant wrote letters to the 8th Respondent on 23 May and 1 June 2005 registering its objection to the proposed Development and asking whether the 8th Respondent intended to issue any permits without giving them an opportunity to be heard.
39.9 The 1st Applicant wrote to the 8th Respondent on 20 February 2007 in response to notices having been posted in relation to the Developers applications stating that they would like an opportunity to make representations with regard to those proposed applications and asking for copies of the applications and accompanying documents submitted by the Developers as well as copies of the BEST Commission reports and the current Environmental Impact studies that had been repeatedly promised and not provided. They also asked that you adjourn the consideration of these applications until such time as [the Applicants] have been provided with the information sought.
39.10 As no response was received to this letter, the 1st Applicant wrote again on 23 April 2007 asking for a response to the enquiries made and renewing its request for relevant information so that we may make a contribution to your consideration of the applications.
39.11 Again no response was received. The 1st Applicant wrote once again on 11 May 2007 when it came to light that the permits had been granted without any warning being given to the Applicants and without any consultation with them. In this letter the 8th Respondents were asked to inform the Applicants whether the permits had been granted.
39.12 The 8th Respondent responded to this letter on 30 May 2007 in terms that implied that the permits had been granted. In this letter the 8th Respondent ignores the request for information and documentation in relation to any permits granted or to be granted. Instead it states: In light of the paucity of information gotten from the news media [about the Supreme Courts ruling in the 2005 Proceedings], the Council has acted using bounded rationality in its decision making process, using its most reasonable judgment. The 8th Respondent goes on to suggest that if it is of the view that its rights have been breached it is open to the 1st Applicant to judicially review the 8th Respondents decisions and suggests that this be done by enumerat[ing] the specific permits, and state the various breaches that have incurred. The 8th Respondent makes this suggestion notwithstanding the repeated ignored pleas of the 1st Applicant for information as to what specific permits had been issued.
40. In the premises all of the decisions taken by the 1st to 8th Respondent (as set out at paragraphs 12 and 13 above) were taken without any, or any proper, public consultation and involvement in the process and as such should be quashed and orders should be made that no future decisions are taken without proper public consultation and involvement.
41. An additional basis of review of the decision taken by the 2nd Respondent to grant the Developers leases over Crown Lands is that this decision appears to have been taken without the proper consultation having taken place between central and local government. Under s.14(1)(h) and 14(2) of the Local Government Act, the 8th Respondent was required to tender to the 2nd Respondent such recommendations in relation to the use of Crown Lands as it saw fit. As far as the Applicants are aware this was not done. Accordingly, the decision to issue the leases should be quashed and no future leases should be issued without these recommendations having been tendered and considered by the 2nd Respondent.
Ground 4: The decisions to grant the permits, approvals and leases were contrary to Articles 15 and 20(8 ) of the Constitution
42. Article 15(a) of the Constitution provides for a right to the protection of the law. Article 20(8 ) of the Constitution provides that
Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right of obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are institute by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
The Applicants have been deprived of their rights in the following ways:
42.1 The entire process that has been adopted by the 1st to 9th Respondents is arbitrary. The whole process adopted seeks to circumvent the protection of the laws, and due process in the Bahamas to which the Applicants are entitled.
42.2 The protection of various very practical lawful rights (such as the right to use the Crown and Treasury Lands for public benefit, the right to use the beaches, traditional crabbing, fishing and hunting rights) have been denied the Applicants without any proper or lawful process.
42.3 The refusal by the 1st to 9th Respondents to respond to the 1st Applicants requests for information and documents, in particular, for copies of the plans and applications and permits granted is another aspect of the deprivation of the protection of the law. The Applicants ability to conduct a proper review of the decision-making process has been hampered and the transparency required to guarantee protection of the law has been removed in this case.
42.4 The Respondents failures in this regard have hampered the bringing of these judicial review proceedings in that the Applicants could not apply to review decisions of which they were not aware. This has hindered and delayed the Applicants access to justice. The Applicants have for many years been asking the Respondents for information as to the permits that had been issued. The failure to provide that information has meant that the Applicants have been denied their right to challenge the decisions to grant those permits etc. In many instances the work permitted by the permits has already been carried out and damage has been caused.
42.5 Article 20(8 ) provides that proceedings before any Court shall be given a fair hearing within a reasonable time. As a result of the secret process adopted between the Respondents in the submission of applications, their consideration, and the grant of approvals (either by the correct or incorrect authority) the Applicants have been denied access to the Court for the determination of the existence or extent of any civil right. The Applicants have therefore been deprived of access to the Supreme Court and the determination of their rights.
The Relief Sought; Part 3
Further Relief sought against 2nd Respondent;
42.6 A Declaration that it is in breach of Article 15 of the Constitution for the 2nd Respondent to cause, and or for various lawfully constituted statutory bodies created under legislation, to delegate their decision making powers and authority to the BEST Commission; and,
42.7 A Declaration that the creation of a process by which persons (be they foreign or Bahamian) are required to apply to the 2nd Respondent for any omnibus approval for an investment is outside of the law, illegal and in breach of due process because it predetermines applications, deprives statutory bodies of properly considering and more to the point, creates a process where interested parties, such as the Applicants, have no opportunity to participate in the process and breach of natural justice as the Applicants do not have an opportunity to be heard; and
42.8 A Declaration that the Bahamas Environment Science and Technology Commission (BEST) is not a lawfully constituted statutory body created under any legislation and therefore does not exist in law;
Relief sought against Attorney General
43. The Applicants seek an order of mandamus that the 9th Respondent, the Attorney-General, take action against the Developers:
43.1 should they proceed or continue to undertake the works contemplated by the permits and approvals granted;
43.2 should they continue to occupy or carry out works of development on Treasury lands without the approval of the Treasurer or the approval of such Minister as the Treasurer may, with the approval of the Minister of Finance, nominate for this purpose pursuant to in the Ministry of Finance Act, Chp. 23, section 5;
43.3 should they occupy or carry out works of development on Crown lands without colour of title;
43.4 should they continue or undertake works of development without the necessary permits and approvals having been properly issued or granted by the appropriate bodies.
44. The Applicants wrote to the Attorney-General on 17 January 1 2006 alerting him to the Applicants interests. In this letter, the Applicants asked the Attorney General to make enquiries as to whether or not the Developers had the necessary permits and approvals. The Applicants referred the Attorney General to the various statutes governing the issue of permits such as the Local Government Act, Town Planning Act, Building Regulations Act, Port Authorities Act, etc. The Applicants also informed the Attorney General of the extensive works already undertaken by the Developers such as (a) construction of access roads and ancillary works (b) extensive clearing of trees and vegetation (c) extensive clearing of land in the construction of the development (d) construction of holding areas on which to locate vehicles and plant use for the construction (e) construction of fencing and preparatory works at the site. The Applicants detailed the activities which were being conducted and which were illegal in the absence of permits.
45. The Applicants wrote to the Attorney General again on February 9 2006 asking for a reply to the letter previously sent. The Applicants received no response from the Attorney General to these letters.
46. On 11 May 2007, the 1st Applicant wrote to the office of the Attorney General referring to and enclosing the previous correspondence with that office in relation to the Development and enclosing the correspondence with other ministries and government departments. The 1st Applicant repeated its complaint that no lawful permits had to its knowledge been issued to the Developers. The 1st Applicant requested that the Attorney-General take action to intervene against the Developers.
47. On 18 May 2007, the 1st Applicant again wrote to the Attorney-General. In this letter the 1st Applicant referred to the representation made by the Developers in the 2005 Proceedings on 17 May 2007 to the effect that the Developers had received all lawfully required permits for the conduct of all of their activities on Crown, Treasury and private lands. The letter goes on to request discovery from the Attorney-General of all of these permits and related documentation.
48. On 13 July 2007, the 1st Applicant wrote again to the 9th Respondent repeating its request for information and documentation.
49. The 9th Respondent replied by letter dated 30 August 2007 in which it refused to provide the documents requested on the basis that the discovery of these documents was not necessary to dispose of the 2005 Proceedings.
Interlocutory relief for injunctions and discovery
50. On the balance of convenience it is appropriate, in the light of the irreversible nature of the development work purportedly authorized by the permits and approvals at paragraphs 12 and 13 above and due to the irreversible damage that will be caused by the continuation of this work, that the interlocutory orders sought for injunctions and discovery as set out in paragraphs 17 & 18 hereof be made pending final determination of the proceedings, in order to ensure that the status quo remains intact and further to ensure that no irremediable and irreversible damage to the Applicants rights and the environment occurs.
51. On the one side, the Development is a private, foreign, commercial real estate venture and on the other, this judicial review application is concerned to prevent irremediable and irreversible harm to the environment. In these circumstances it is appropriate to maintain the status quo and issue the injunction.
Dated the 5th day of October, 2007
Frederick R.M. Smith
of
CALLENDERS & CO.
Chambers, Suite C, Regent Centre East,
Freeport, Grand Bahama
Attorneys for the Applicant
To: The Respondents and/or the Attorneys for the Respondents
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Public Law Division
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N
THE QUEEN
and
THE DIRECTOR OF PHYSICAL PLANNING OF THE COMMONWEALTH OF THE BAHAMAS et al
Ex parte
SAVE GUANA CAY REEF ASSOCIATION LTD.
1st Applicant
AUBREY CLARKE
2nd Applicant
_______________________________________
ORIGINATING NOTICE OF MOTION
_______________________________________
2007/PUB/jrv/FP/0003
Callenders & Co.
Chambers Suite C Regent Center East
Freeport, Grand Bahama
BAHAMAS
Attorneys for the Applicants
