Group wins fight against Blackbeard’s Cay
Guardian Business Editor
Published: Jul 18, 2014
A litany of failures by the government to follow the law were outlined yesterday in a Supreme Court judgment obtained by environmentalists ordering the removal of eight dolphins from a local tourist attraction, and the revocation of its import licenses for the creatures.
The prime minister, the minister of agriculture and the Town Planning Committee, among others, were all found to have failed to follow the law when they allowed Blue Illusions Limited, headed by St. Maarten businessman, Samir Andrawos, to move ahead with establishing the dolphin facility on Blackbeard’s Cay/Balmoral Island, off the coast of Nassau. Blue Illusions was also found to have constructed the facility in contravention of the Planning and Subdivision Act.
Besides pointing to a failure to follow procedural protocol, Justice Stephen Isaacs raised questions regarding whether it is legal for anyone to import dolphins into The Bahamas for anything other than research purposes, or to establish a dolphin facility in the location chosen by Blue Illusions.
Favoring the arguments of applicants reEarth, an environmental organization, Isaacs granted an order quashing a decision by Minister of Agriculture, Marine Resources and Local Government V. Alfred Gray to grant dolphin import licenses to the company.
Placing in question the future of the Blackbeard’s Cay shore excursion, frequented by cruise ship visitors, Isaacs further ordered that the developer “restore to its original use and condition” the area developed for the purposes of providing the dolphin pen.
Among the failures on the part of the government highlighted by the judge were the decision by the Town Planning Committee of the Department of Physical Planning not to hold a public hearing about the project. reEarth had long held that the project had moved ahead under a cover of secrecy, without key information being disclosed to the public for its input.
Appearing to affirm this position, the judge said it appeared that such a meeting was not even “contemplated” by the committee, later adding of the government approval process: “There appears no evidence that a public discourse was encouraged, it seems rather than such a discourse was avoided.”
The judge also granted an order which quashed the decision of Prime Minister Perry Christie, in his capacity as minister responsible for Crown land, to allow Blue Illusions to carry out the construction of the facility on Crown land without site plan approval and to operate a captive marine mammal facility without a premises license as required under the Marine Mammal Act.
The Town Planning Committee was also found to have been in breach of its statutory duty.
The order, which will not be executed for a further six weeks, giving developer Blue Illusions a chance to appeal, is likely to be viewed as a major blow to the company, which has invested a reported $8 million in developing the island as a cruise ship passenger attraction. The facility is advertised and sold to passengers on board Royal Caribbean Cruise Lines (RCCL) and Carnival Cruise Lines ships as a fun day excursion for those on board when the ships are in Nassau. It is unclear how the ruling might impact the decision by the cruise lines to promote the facility to their guests. Messages sent to RCCL and Carnival yesterday seeking comment were not returned up to press time.
It was welcomed as a major victory for reEarth, which had received approval to move ahead with a judicial review of the project in February of this year. Isaacs awarded the payment of reEarth’s legal costs in pursuing the matter.
President of reEarth Sam Duncombe, who has long lobbied against captive dolphin facilities in general, was overjoyed after the decision was given yesterday morning.
“I am thrilled. We’ve been fighting this issue for 24 years and finally we’ve been able to bring one of the developers with dolphins in captivity to court over the circumvention of the Marine Mammals Protection Act.
“(The judge has) seen the merit of why these animals should not be kept in captivity and why the government cannot circumvent its own laws, which is basically what has been happening for years.”
The judgment outlined a series of gaps and apparent oversights in the government approval process relating to Blue Illusion’s redevelopment plans.
Among those, the judge said that what was “offered as a site plan approval” for the project by the government was a building permit. While an affidavit filed by Craig Delancy, a building control officer at the Ministry of Works and Urban Development, claimed the permit was “equivalent” to site plan approval, the judge noted that in order to obtain a building permit, site plan approval must be obtained as a prerequisite.
The judge added that it appeared that site plan approval had not been obtained as certain conditions were not met by Blue Illusions with respect to enhancing the conditions of the dolphin facility, including detailing what would be done with the dolphins in case of a hurricane.
Meanwhile, in a turn of events the judge viewed as “significant”, import permits needed for the dolphins to be brought in from Honduras under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) were granted six weeks before any import license applications were lodged. Once this import license application was finally made, on July 19, 2013, the minister approved it the same day.
Besides the speed with which the application for import permits was approved, the judge notes that the dolphins then arrived in The Bahamas some six months prior to any operator license having been applied for. This was despite the fact the Marine Mammal Protection Act “prohibits the operation of a captive marine mammal facility unless the premises are licenced”.
Isaacs went on to point out that a premises license cannot be issued if such a facility is set to be located in an area that is, among other things, subject to “any fuel, oil, or toxic chemical pollution”.
“In all of the circumstances, it is a reasonable conclusion that a premises license could not be issued,” he added, having earlier noted concerns raised that the facility lies close to popular channels used by cruise ships entering the Port of Nassau.
The judge further noted that an internationally-supported petition expressing concern about the facility that garnered just under 65,000 signatures “was met with silence” from the government, beyond a letter from the Department of Physical Planning stating that the project “had received conditional approval...from the National Economic Council”.
When reEarth pressed for a response by a letter dated July 16, 2013, a seemingly rushed sequence of events was initiated which resulted in the dolphins arriving in The Bahamas nine days later; one day prior to the date on which the animal health certificate of export issued by Honduras would have expired.
A finding in the decision with implications for captive dolphin facilities in The Bahamas more broadly is the fact that The Bahamas’ status as party to the United Nations Environment Programme’s Specially Protected Areas and Wildlife Protocol (SPAW) “may indeed prohibit the import of marine mammals for anything other than preservation or scientific research”.
For this reason, whether proper approvals protocol was followed or not, the judge suggested an import license for the dolphins “ought to have been denied” on the basis that it was intended for the dolphins to be a cruise passenger attraction.
Efforts to reach Andrawos for comment yesterday were unsuccessful, as his cell phone did not ring and would not allow messages to be left. His attorney, Charles Mackay, did not return messages seeking comment up to press time.
Bahamian shareholders in the company include Spanish Wells community leader, Abner Pinder; and well-known media owner and former PLP Cabinet minister, Charles Carter.
Caribe 2016 Cleveland