September 28, 2015
For 25 years reEarth has fought for environmental and animals rights. But in this case there is a lot more at stake than dolphins. The rule of law and due public process which has been so eroded by successive governments is under attack again. The Blackbeard’s Cay case is a life line that Justice Isaacs’ has thrown out to us in dark waters of tyrannical, corrupt, irresponsible and arrogant governance. It has occurred to reEarth for a long time now that we have not just been fighting for the environment or the dolphins, we are fighting to free ourselves from the abuse of power by a government that appears to choose not to comply with the law and now a very direct court order.
In an article published in the Tribune on Sept 23 2015 titled “Multi-Million ‘Liability’ If Blackbeard’s Cay Shut” Wayne Munroe, the latest attorney hired by Blue Illusions (the company which heads up the illegal Blackbeard’s Cay facility) warns “that the Bahamian taxpayer would be held “liable for millions of dollars” should the Government "succeed in enforcing the Supreme Court order requiring it to close the Blackbeard’s Cay development.”
What struck reEarth in particular was this, “should the Government succeed” What other choice do they have: jail time? Perhaps if the Prime Minister and the Minister of Agriculture felt the oppression of a jail cell they might find it somewhere in their souls to empathize with the dolphins they so blithely incarcerated for the rest of their natural lives!
Blue Illusions may very well sue the government when it is shut down, and it may cause the government to cough up millions of dollars because they all so abjectly ignored our laws...even a child can look them up on the internet!! Why didn’t the lawyers for Blue Illusions do so before they spent millions of dollars! That’s who is negligent here! But there are larger questions here; How can we not afford to shut this illegal development down?
How can the Prime Minster “leader” of our nation choose not to follow the law? How can we allow our democratic process to be manipulated and subverted by one developer? Or any number of developers? We continue to live here. They can pull out and go. And we live with the environmental and social consequences, not to mention our global reputation. No one, especially the Prime Minister is above the law!
Mr. Munroe claims that it would be “unfair” to his client because it had been “dismissed” as a party to that case. Firstly that is incorrect. Secondly, the truth is Blue Illusions attorneys sat in on every court case on the matter and at no time did they ask to join the action. In fact during the appeal process Justice Conte criticized the developer’s lawyers expressing shock that they never tried to defend their development, instead they allowed the government to go to bat for them, and use the taxes they collect from all of us to pay legal costs for a private developer. This is what the Government did in the Guana Cay and Bimini cases as well; your tax and my tax dollar spent by our government to protect foreign, private, for profit developers to whom they gave our Crown land to for a pittance!
Mr. Munroe further stated that “It would be a breach of constitutional rights to be affected by a court action to which you are not a party,” Pray tell, where in the Constitution does it say that a developer – or the government for that matter, is allowed to break the laws of the land?...or that they are entitled to be a party?
Mr. Munroe goes on to speak about “breach of contract” – but what about the several and significant breaches of law that this government allowed this development to circumvent? And how is an illegal contract enforceable? The Government argued and the Privy Council upheld the Government that “Heads of Agreements” were not enforceable contracts…just expressions of intent!
The government faces this lawsuit because they failed to uphold the law and they failed us as a people. They are the ones that are ultimately responsible for the loss of jobs. Like the issue of crime facing the country, the government needs a scapegoat and they trot out their newest recruit to confuse the public and point the finger at reEarth and Save The Bays as allegedly causing the problem, risking jobs and costing the taxpayer millions! When in reality, it was the negligence of Blue Illusions lawyers for not making sure their client got all the lawfully required permits; it was the Prime Minister and his Cabinet who entered into illegal agreements; it was the Town Planning Committee and the Director of Physical Planning who failed to abide by their statutory duties; and it was Blue Illusions recent lawyers who sat back at every court hearing and remained mute as the trial progressed…and now…they want to trot in Munroe to bleat about his poor client’s rights? Give us a break!
We must remind the public that Justice Isaacs handed down his judgement on July 17, 2014; over a year ago! He declared the dolphin import permits, and the Site Plan Approval issued by the Town Planning committee invalid. The Court also ordered that the dolphins be moved to a suitable location, the land restored to its original use and condition and restrained the Town Planning Committee from granting any permits without a public hearing; meaning NO MORE SECRETS! NO MORE BACK DOOR DEALS! RESPECT THE LAWS PASSED BY PARLIAMENT! SIMPLE! RULE OF LAW 101!
Also, in July 2014, Blackbeard’s claimed that they had by then spent $8 million. How is it then after this judgement could the developer be so cock sure of himself to defy the court and continue the development of Blackbeard’s Cay by spending another $4Million to now say his investment is $12 million? Did he get other secret approvals from the Government through Exchange Control? The Investment Board? This is another example of why we need a Freedom Of Information Act!
As recently as August of 2015 a comment on Trip Advisor was responded to by the General Manager of Balmoral Island (Blackbeard’s Cay) stating;
“We thank you for taking the time to write such a great review about us! We thank you for your feedback in regards the changing rooms, we will take in consideration your suggestion. What you saw under construction was our second pool that we just finished today!!! We hope to welcome you very soon for you to enjoy our new facility! “
How is it that the developer has continued construction at this facility in defiance of the judgement? Did he get more permits from Town Planning without Public Hearings? The developer sunk an additional $4 million into this project knowing full well that a Bahamian Supreme Court judge ruled AGAINST them. How is that even possible? What does this developer know that the Bahamian people do not? If this is not a case of wilful blindness I don’t know what is!
Margaret Heffernan describes wilful blindness as “a legal concept which means, if there is information that you could know and should know but somehow you manage not to know, the law deems that you’re wilfully blind. You have chosen not to know.” How could the government proceed with this development after reEarth wrote several letters pointing out the illegality of this development, and how could the developer continue especially after Justice Isaacs ruled the facility was in breach of our laws and was effectively shut down?
The problem is that there is an awful lot of wilful blindness going on in this country – most, if not all of us feel it, and yet so many of us decide not to rise up and face it.
And it is not as though this government has not been fraught with what seems an abnormal amount of catastrophic failures. We can no longer allow our laws and our rights as citizens to be trampled upon.
Mr. Munroe further states; “It can’t (sic) make the Bahamian public liable, and liable for millions of dollars,...“They’ve [Blue Illusions] invested a significant amount of money in the country, so they have retained counsel to make sure they’re interests are protected.
“When you have a deal with somebody and they break it, you’re entitled to damages.”
So we ask Mr. Munroe, what about the “deal” with the Bahamian people to uphold the laws of the land? What about the contract between the people of the Bahamas and Its Government; The Constitution? Or is the Rule of Law…like almost everything else in The Bahamas to be sacrificed at the Altar of the Almighty Investment dollar? What if the deal is not legal? Why didn’t the developer choose to join the action to defend their development? Simple! Because he had no enforceable contract with the Government! Otherwise he would have sued! There are consequences for breaking the law. The Supreme Court has ruled that Blackbeard’s Cay has been operating without the necessary permits and approvals since July 17 2014. Just because you have invested $12 million does not allow the government, or the developer to break the law...oddly enough.
Mr. Munroe continues “The Cay is seeking to comply with everything the Government asks of it. They send people out frequently to examine the mammals, give them directions as to what they can and can’t do, and they comply.”
To say that they are now complying after the fact is too late! It’s just a tad late for the government to start asking Blackbeard’s to be compliant – that was supposed to happen BEFORE issuing their non-compliant approvals and licences. And more to the point, the court ruling did not say “if you fix these issues you have the green light to continue to operate your facility”! You really have to wonder what delusional reality allows one to simply rewind and pretend that you were compliant from the start, and just erase the bits that don’t suit you. It is truly astonishing! reEarth pointed out the gross deficiencies in our letters to government - all of which were ignored. There are NO SECOND CHANCES WHEN YOU BREAK THE LAW!
The article continues, “Mr Munroe, meanwhile, acknowledged that his clients were likely to be the subject of another Judicial Review action by reEarth as its permits were subject to an annual renewal.”
This is simply ludicrous! How can there be an annual review of a permit which was quashed, and is not valid? The fact that he is suggesting that they should be allowed to continue to defy the court order is to set a dangerous precedent with regard, or should I say – disregard, for the laws of the country. The suggestion that Mr. Munroe is trying to bait reEarth into another JR sounds very much like he is wasting his clients money and he is aiding and abetting a contempt of court for which he too can be personally liable! The facility has been ordered closed! reEarth’s issue is with the government, not the developer. The sooner his client understands that, the less money he will continue to lose.
And finally, Mr. Munroe says it is “beyond me” with regard to the lack of an environmental impact assessment (EIA) not being presented to the court. We can tell you why there was no EIA presented in the court documents Mr. Munroe; it’s because one was NEVER done. In fact, several people in the environmental consulting field contacted reEarth to say that Blackbeard’s Cay had contacted them scrambling to get their EIA done - this year – we know how it goes... just back date the report and continue to flout the laws of the land. And frankly, the EIA is immaterial at this point.
In the end, the dolphins continue to suffer in substandard conditions, at the hands of a government who appear to not only be visionless, but soulless, and who behave as if they are above the law; as if the House of Assembly does not exist and the laws they pass invisible!
It is really quite alarming that this government is allowing the further denigration of our beautiful country by totally ignoring the rule of law: showing contempt for the laws passed by the same Parliament in which they make the laws: and being in contempt of our Courts, which are there to uphold those laws. If we allow our Prime Minister, the Minister of Agriculture, and the other Regulatory bodies established by Parliament to further fail in their duties, then democracy in our country is nothing but a farce, a sham.
The government must obey the law immediately, and close the Blackbeard’s facility, and return it to its permitted use. Failure to do so will earn The Bahamas that most dreaded status as a “Banana Republic“, and we will deserve every bit of it.
We are at a critical crossroad in the development of our country. Our social fabric is decaying all around us, in part because we know we are getting screwed by the powers that be. We all see people getting away with things because they “know someone”. We can disregard the rule of law and fall further into decay – or, we can stand together for the rule of law, demand the government accept their failures and make it right - close Blackbeard’s Cay, and collectively begin to pull this country back out of disaster.
What is clear is we have a rogue government, which today can abuse its power to illegally cage dolphins, but tomorrow it could be us. Are the Bahamian people ready for that?