Environmental
and animal rights advocates scored what they called “a major victory
after a 24-year
long battle” this week when the Court of Appeal dismissed Government’s
appeal of a Supreme Court’s decision that permits allowing the opening
and operation of an island attraction across from the western end of
Cable Beach were improperly granted.
The case involved the island re-named Blackbeard’s Cay opposite Sandals Royal Bahamian, a project
reportedly costing $8 million, intended as an offshore excursion for Carnival Cruise Line passengers.
Nassau
businesspeople, including retailers and operators of numerous other
attractions, argued against touristic development of the island so close
to Nassau, saying diverting
as many as half a million passengers away from known establishments,
museums, restaurants, fishing, boating and snorkeling excursions would
lead to serious economic repercussions, including job loss. The threat
of economic loss did not deter St. Maarten businessman
Samir Andrawos and Bahamian partners from continuing.
It
wasn’t until late 2013 when Save The Bays’ legal team agreed to take on
the case on behalf of reEarth to raise environmental, development
processing and animal rights issues
that the courts became involved, catapulting the conversation from
what’s good for local business, investment and jobs to what’s legal in
the development process.
When
the case went to court in April, lead attorney Fred Smith, QC, senior
partner at Callenders Grand Bahama, told the Supreme Court the evidence
pointed to a “tsunami of disregard”
for due process and the rule of law as civil servants rubber-stamped
approvals for the project at the behest of their superiors.
“The
facts of the case evidence what I could term an endemic subservience,
an institutional subservience entrenched in the civil service, to cater
to ministerial dictate,” he
told the Supreme Court. “The Cabinet and the minister are regarded as
the extreme authority on what should happen, regardless of what
parliament has legislated.”
Attorneys
presented evidence showing the Blackbeard’s Cay project moved forward
in the absence of necessary site approvals, environmental studies,
public hearings and proof of
the developer’s compliance with mandated conditions. In allowing this
to happen, Smith said, the government contravened the provisions of the
Planning and Subdivisions Act (PSA), the Conveyancing and Law of
Property Act (CLPA) and the Marine Mammal Protection
Act (MMPA).
In
July, Supreme Court Justice Stephen Isaacs quashed the permits,
agreeing with the attorneys’ assertion that “the development has been
carried out, and continues to be carried
out, unlawfully.”
Government
officials including the Minister of Agriculture, Marine Resources and
Local Government, the Director of Fisheries and Marine Resources, the
Town Planning Committee
and the Minister Responsible for Crown Lands, appealed the case. When
they failed to file the Record of Appeal in the stipulated time, the
appeal was dismissed. The dismissal came via an order signed in
mid-November but mailed and received by the lawyers on
December 4.
The
dismissal has left those who have been arguing for an end to
unregulated development and the protection of animal rights ecstatic.
Along
with matters surrounding the permitting process, at the heart of the
issue was the future of penned dolphins at the island. ReEarth presented
evidence during the April
trial showing that the nine dolphins had no shade, were in shallow
waters and a substandard size pen – all in violation of Bahamian law and
international standards.
“This
has been a long, hard 24-year battle,” said Sam Duncombe, a director of
Save The Bays and founder of reEarth which
has collected 96,000 signatures on a petition calling on the Bahamas
government to protect dolphins and other marine mammals from being
treated as chattel for entertainment and the tiered transition from
confinement for shows to sanctuaries where visitors
can view the mammals in their natural state. Duncombe points to falling
audience numbers and share value for Sea World, saying that films like
Blackfish have opened people’s eyes to what confinement does to these
self-aware and highly socialized mammals. “The
entire industry rips these mammals’ families apart and just like
humans, each dolphin has a ‘place’ in its family structure. The petition
calls for an end to
mammal facility breeding programs going
forward, prohibits future imports or exports of marine mammals to The
Bahamas and looks to a tiered closure of all marine mammal facilities in
The Bahamas with a plan to house retired dolphins
in a sanctuary funded by the very industry that has benefitted from
their enslavement for decades.”
While
Duncombe is pleased that the victory in the current case is bringing
new attention to the plight of animals for entertainment, Smith and
other Save The Bays directors say
the case shows that governments can be held accountable for obeying
their own laws when it comes to development.
The
most recent court action brought a smiling, “victory for the rule of
law” accolade from Save The Bays director and Bahamas Waterkeeper
President Joseph Darville.
“As
the president of Waterkeeper Bahamas and the education director of Save
The Bays, I would like to state my joy and pleasure about the outcome
of this case which has restored
my confidence in the independence of the judiciary of The Bahamas,”
said Darville. “As a Waterkeeper, I am concerned about every element of
water in The Bahamas and about these wonderful animals that have aligned
themselves so much with the consciousness of
human beings. We have an obligation to treat them in a humane manner.
As a director of Save The bays, I salute reEarth and our legal team for
their passionate insistence in bringing this debacle with the powers
that be to a successful and glorious conclusion.”
Duncombe
echoed appreciation for the legal team, adding that the case should
make The Bahamas think twice about the face it shows the world in
dolphin care.
“ReEarth is very grateful for the support of Save The Bays and of course our awesome legal team,” said Duncombe.
According
to the judge’s ruling, the Ministry of Agriculture is required to take
responsibility for the fate of the dolphins at Blackbeard’s Cay, placing
them in an appropriate
location.
“I
would be happy to work with the Minister to ensure that when these poor
dolphins that have suffered so are moved, they will have a new home
where they can lead lives that
are as secure and free as possible,” said Duncombe. “Until they are
assessed, they cannot be released into the wild because they have become
dependent on being fed and would require rehabilitation to make sure
they could fend for themselves. In the meantime,
we can protect them in a sanctuary and the silver lining in this case
may just be that it leads to the first dolphin sanctuary in The Bahamas –
something which reEarth is working on and something that would be
fantastic for tourism as well as for these amazing
mammals we share the planet with who call each other by name, swim 50
miles a day and make choices about their daily lives just as humans do.
This would send an enlightened and positive message to the world that
The Bahamas cares and is tune with the ever-expanding
global awareness about the welfare of marine mammals.”