COMMONWEALTH OF IN THE COURT OF APPEAL SCCivApp. No. 70 of 2006

B E T W E E N

SAVE GUANA REEF ASSOCIATION LTD. 1st Appellant -and- AUBREY CLARKE 2nd Appellant Ex parte

THE QUEEN - V - WENDELL MAJOR As Secretary to the National Economic Council 1st Respondent - and -

THE MINISTER RESPONSIBLE FOR CROWN LANDS In the person of the Honourable Mr. Perry Gladstone Christie Prime Minister of the Commonwealth of The Bahamas 2nd Respondent - and – THE TREASURER OF THE BAHAMAS 3rd Respondent - and - PASSERINE AT ABACO LIMITED 4th Respondent - and - PASSERINE AT ABACO HOLDINGS LIMITED 5th Respondent

-and- BAKER’S BAY LIMITED 6th Respondent -and-

BAKER’S BAY HOA LIMITED 7th Respondent -and- BAKER’S BAY MARINA LIMITED 8th Respondent -and- BAKER’S BAY FOUNDATION LIMITED 9th Respondent

Before: The Rt. Hon. Dame Sawyer, President The Hon. Mr. Justice Ganpatsingh, J.A. The Hon. Mr. Justice Osadebay, J.A.

Appearances: Mr. Fred Smith with Mrs. Kendra Barr Whittaker and Mr. Damien Gomez for the appellants Mr. Lloyd Barnett with Mr. Leif Farquharson, Loren Klein and Sophia Williams for the first to third respondents Mr. Michael Barnett with Mr. Robert Adams for the fourth to ninth respondents

Date: 25th April, 2007, 17th May, 2007, 18th February, 2008

2

Osadebay J.A.

1. Passerine at Abaco Holdings Ltd., Passerine at Abaco Limited, Baker’s Bay Club Limited, Baker’s Bay HOA Limited, Baker’s Bay Foundation Limited and Baker’s Bay Marina Limited are a group of companies incorporated under the laws of The Commonwealth of The Bahamas whose shares are beneficially owned by non-Bahamian investors. Together they form an investment partnership and in these proceedings are together referred to as “the Developers”. 2. The Developers are the owners of contiguous pieces, parcels and tracts of land together containing approximately four hundred and fifty one (451) acres more or less (the property) which comprises a portion of the northwestern end of the of Great Guana Cay, on the Abaco chain of Cays in the north of The Commonwealth of The Bahamas. The property was acquired by the Developers pursuant to a permit granted by the Investment Board of The Bahamas on the 11th February, 2005, under the International Persons Landholdings Act, 1993. 3. It is the desire of the Developers to develop and construct on the property an intimate resort and residential community with a golf and marina club with the highest environmental standards and management practices (the project). The project is expected by the Developers to create or generate a variety of jobs and employment both on site and in the Marsh Harbour area on the neighboring Abaco mainland. This venture was disclosed to the Investment Board by the Developers in their application for permission to acquire the property. 4. The project upon completion will feature among other things – (i) Approximately 400-500 residential units, golf villas and marina village homes. (ii) A championship – Caliber 18 hole golf course

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(iii) A 240 slip marina (iv) Up to 75 rental villa – style rooms (v) A club house 5. The Developers also propose that the project will feature modern infrastructure and utility systems designed for the island’s ecological system. Land will be allocated for both conservation of natural areas as well as for island-wide logistical support for solid waste processing and transfer, community meetings facilities and public beach access. The project will have a centralized sewerage treatment plant with a solid waste transfer station and management system. To facilitate the project, more land is needed by the Developers and therefore the Developers, at the time of their application to the Investment Board for permission to purchase the property, also made an application to the Government of The Bahamas for the grant of some crown land adjacent to the property. While the Developers’ application to purchase the property was being considered by the Investment Board headed by the Prime Minister, the Developers’ application for the grant of the needed crown land was at the same time being investigated and considered by the government. 6. At the request of the government and to enable a proper consideration of the project and the application for the grant of crown land the Developers at their own expense commissioned and submitted to the government an Environmental Impact Assessment (“EIA”) in accordance with the requirements of the Bahamas Environment, Science and Technology Commission (BEST Commission) 7. The BEST Commission is a body established by the Government in 1994 comprising of a chairman and a number of board members from various governmental and non-governmental agencies with responsibility for environmental oversight in The Bahamas. Its functions include, inter alia,

4 advising the Government on the environmental impact of various development proposals submitted for the commission’s review. 8. It appears from the record of these proceedings that on or about 19th February, 2004, a consultative town meeting with the community was held at Guana Cay All Age School, Great Guana Cay, Abaco. The meeting was attended by about 60 to 70 residents and property owners amongst whom were members of the local Council. The meeting was conducted by Mr. Alexander Williams, the Family Island Administrator responsible for the area who informed the people that he had been delegated by the government to bring to their attention the proposed project by the Developers and its possible impact on the surrounding wet lands and the community and to report back any concerns they might have. The project and its possible impact were thereafter explained and the community’s views and concerns recorded and submitted to the Bahamas Government. (see: the Affidavit evidence of Ms. Ruth Flowers at tab 36, Vol. 4 of the Record). 9. Again on 20th August, 2004, another consultative community meeting was held at Great Guana Cay School at Great Guana Cay in the Abaco Cays. The meeting was conducted by Sir. Baltron Bethell. The meeting was attended not only by Government representatives but also by representatives of the Developers and the members of the community at large. The project was again discussed and the comments and concerns of the community were discussed and noted. Those concerns were subsequently addressed by the Developers resulting in some further adjustments in the project and E.I.A. report. (See: Affidavit evidence of Mr. Kayus Fernander in Vol. 4 tab 32 of Record). 10. On or about 27th October, 2004 the BEST Commission received from the government the EIA submitted to it by the Developers in respect of the project. It had been prepared for the Developers by a team of environmental consultants, Dr. Kathleen Sullivan Sealey, Associate Professor, University of Miami, Coral Gables, Florida; Applied Technology Management, a marine, coastal, environmental and water resources engineering firm with offices in the United States of America; Bethell Environmental of Marsh Harbour,

5 Abaco, Bahamas; Moffit and Nickel Coastal Engineering Firm of Tampa, Florida, U.S.A., and others. 11. Upon consideration of the EIA the BEST Commission raised a number of concerns which were later addressed by the Developers. In response to those concerns and comments a number of modifications to the original design of the project were made by the Developers who provided additional material to the BEST Commission for review. In the end, the BEST Commission was satisfied that most of its concerns had been favorably addressed by the Developers. At the time that litigation commenced in this matter the BEST Commission still awaited receipt of a final design for the proposed golf course that would minimize or eliminate any ecological risk associated with the current design, and a revised Environmental Management Plan. (see: Affidavit of Dr. Donald Cooper, dated 30th Jan, 2006, at tab. 34 vol. 4, Record of Appeal). 12. Finally the Government, being satisfied that the project will impact positively and significantly upon the economy of The Commonwealth of The Bahamas in general and the island of Abaco in particular approved in principle the project upon the terms and conditions stated in the Heads of Agreement entered into on the 1st day of March, 2005, between the Government of The Commonwealth of The Bahamas, represented by Wendell Major CMG, the Secretary to the National Economic Council, acting by and under the authority of the National Economic Council (The Government of The Bahamas) of the one part and the Developers of the other part. Also the Government approved the grant of a Conditional Purchase Lease of a total of one hundred and forty eight (148) acres of Crown Land and Treasury land to the Developers to facilitate the project. Simultaneously, by a permit dated 11th February, 2005 the Investments Board gave its approval to the Developers to go ahead through Passerine At Abaco Holdings Ltd, one of their companies, to purchase the property containing about 451 acres more or less for the project. The purchase was subsequently completed and title conveyed on the 1st March, 2005, the same date as the date of the Heads of Agreement.

6 13. By an Originating Notice of Motion filed on the 4th April, 2005, Save Guana Cay Reef Association Ltd, (1st Appellant) sought, and on the 5th April, 2005, obtained leave of the Supreme Court to apply for Judicial Review of the Heads of Agreement entered into between the Developers and the Government of The Bahamas. 1st Appellant also on the 5th April, 2005, obtained leave to amend the Notice of Motion by identifying the Honourable Mr. Perry Gladstone Christie, Prime Minister of the Commonwealth of The Bahamas in his capacity as the Minister responsible for Crown lands as Second Respondent. 14. The 1st Appellant in its application sought the following relief:

“(a) a declaration that neither the First Respondent [Wendell Major] nor any member of the National Economic Council had power or authority to enter into the Heads of Agreement and/or to bind the Government or any part thereof under the terms of Heads of Agreement and the Heads of Agreement is a nullity and void; (b) a declaration that, in any event, the Heads of Agreement was entered into by the Respondent ultra vires and is, therefore, void and not binding; (c) an Order of Prohibition prohibiting the Second [The Minister Responsible for Crown lands] and Third Respondents [The Treasurer of The Bahamas] from granting the leases of any part of the Crown Land and the Treasury Land (as defined at Clauses (E) and (F) of the Heads of Agreement) to the Developers for the purposes of the Development; (d) an Order of Prohibition prohibiting the First Respondent [Wendell Major] from granting or permitting the granting of any of the rights, concessions, exemptions or grants set out in Clause 6 of the Heads of Agreement to the Developers; (e) in the alternative to the relief sought above, an Order of Mandamus that the Respondents conduct a process of full and

7 proper public consultation prior to the granting or issuing of any leases, approvals, permits, rights, concessions, exemption or grants as set out above. (f) costs”. 15. Save Guana Cay Reef Association Ltd.[1st Appellant] is a limited liability company incorporated under the laws of The Bahamas on the 11th March, 2005 mainly as a vehicle for pursuing litigation in this matter. It does not own any land in Abaco which could be affected by the project nor does it own land in The Bahamas. Although it was said by counsel for the Appellants, which is of course not evidence, that the company represents the interests of landowners and residents, (both Bahamians and non-Bahamians) on Great Guana Cay, one of the Abaco Cays on which the project is to be located, none of the said landowners was made a party to the proceedings. 16. By an order of Stephen Isaacs J. made on the 26th May, 2005, on an application, the leave granted to the 1st Applicant/Appellant to bring an application for Judicial Review itself was set aside on the ground that the 1st applicant had no locus standi. The 1st Applicant/Appellant appealed that order. By order of the Court of Appeal made on 23rd November, 2005, the order of Stephen Isaacs J. made on the 26th May, 2005, was set aside and the previous leave granted on 5th April, 2005, by Stephen Isaacs J. and the subsequent Application for Judicial Review were restored. Leave was granted for Mr. Aubrey Clarke, a resident and landowner of Great Guana Cay to be joined as 2nd Applicant to save the application. 17. On a subsequent application by the Applicants leave was granted for the Developers, who, hitherto, were not parties to the proceedings, to be joined as 4th to 9th Respondents. 18. The Applicants subsequently by leave of court amended the relief sought as follows:

“(1) a declaration that neither the First Respondent nor any member of the National Economic Council had power or authority to enter into the Heads of Agreement and /or to bind

8 the Government or any part thereof under the terms of Heads of Agreement and that the Heads of Agreement is a nullity and void;

(2) a declaration that, in any event, the Heads of Agreement was entered into by the Respondent ultra vires and is, therefore, void and not binding;

(3) in the alternative and upon the assumption that the First Respondent did have the lawful power or authority (without waiver of the Applicants’ challenge thereto) and/or that the Court so finds, certiorari to quash the decision of the First Respondent and/or the National Economic Council and /or the Cabinet, made on February 22nd, 2005, to agree the Guana Cay Development Project and /or the Cabinet to enter into the Heads of Agreement signed by the First Respondent on March 1st, 2005;

(4) an Order of Prohibition prohibiting the Second and Third Respondents from granting the leases of any part of the Crown Land and Treasury Land (as defined at Clauses (E) and (F) of the Heads of Agreement) to the Developers for the purposes of the Development;

(5) an Order of Prohibition prohibiting the Second and Third Respondents from permitting any of the Fourth to Ninth Respondents to enter into, enter upon, take possession of, and or in any way use, license, lease, occupy, despoil, destroy, or take from, any part or portion of the Crown Land and Treasury Land as defined in recitals (E) and (F) of the Heads of Agreement if and until such time as the Minister Responsible for Crown Lands pursuant to Section 54 of the Conveyancing and Law and Property Act shall have made a grant or disposition

9 thereof to the said Respondents in accordance with the said Act, and the Treasurer shall have leased the Treasury Land in compliance with the provisions of Section 5 of the Ministry of Finance Act and the Government-General shall have given his prior approval thereto;

(6) an Order of Prohibition prohibiting the First Respondent from granting or permitting the granting of any of the rights, concessions, exemptions or grants set out in Clause 6 of the Heads of Agreement to the Developers;

(7) in the alternative to the relief sought above, an Order of Mandamus that the Respondents conduct a process of full and proper public consultation prior to the granting or issuing of any leases, approvals, permits rights, concessions, exemptions or grants as set out above.

(8) and in the meantime, an Order of Mandamus directing the Respondents to prohibit the Developers from commencing construction or continuing construction before an Environmental Management Plan (EMP) pursuant to Clause 2.2 of the Heads of Agreement shall have been completed, which plan is to have been prepared only after the Applicants shall have been consulted and shall have had an informed opportunity to make contributions to the preparation and development of the EMP.

(9) costs.”

19. On 12th October, 2006, Carroll J. (Ag.) denied all the reliefs sought and dismissed the Applicants’ application. The question of costs was reserved. By a ruling made on 17th January, 2007, Carroll J. (Ag.) ruled that the Respondents were entitled to their costs. Costs for first, second and third

10 respondents AND fourth to ninth respondents certified as fit for two counsel. Costs of Respondents to be taxed if not agreed. 20. The appellants appeal against the judgment and order for costs.

THE APPEAL

21. The Appellants challenge the decision of Carroll J. on a number of grounds summarized as follows: “(1) The learned Judge erred in concluding that the First Respondent had power to enter into the Heads of Agreement contract dated 1st March 2005 (“the Agreement”) and confer the rights purportedly conferred pursuant to that Agreement:

(2) The learned Judge concluded that the entry into the Agreement by the Respondents was not irrational or unreasonable. The learned Judge erred in so doing:

(3) The learned Judge concluded that entry into the Agreement by the First Respondent (as agent for the Cabinet) did not constitute a fettering of the discretion of the Cabinet, whether collectively or as individual Ministers. The learned Judge erred in so doing:

(4) The learned Judge rightly concluded that the landowners and residents of Guana Cay had a right properly to be consulted in relation to the proposed Development as stakeholders in the issue. However, the learned Judge wrongly concluded that such proper consultation had taken place prior to the signing of the Agreement:

(5) Whilst no criticism is made of the learned Judge’s own personal integrity, the learned judge did not constitute an

11 independent and impartial tribunal as required by the Constitution both by reason of his being an Acting Justice and/or for the reasons set out in the judgment of Mr. Justice Lyons both dated November 6th, 2006 in Moss vs. Bahama Reef Condomiim Association and the Attorney General, the Queen vs. Pratt et al and Dated May 18, 2006 and Neymour vs. The Attorney General.

(6) The learned judge erred by order dated February 13, 2006, and throughout the trial in refusing to give certain orders relating to discovery as to the issues in dispute and refusing to allow cross examination of the deponents of the various Affidavits relied on by the Respondents at the trial of the matter.

(7) The learned judge erred in refusing to grant an injunction preventing any further work at the development pending the determination of the trial and the substantive judicial review application.

(8) The learned judge failed to take into account at all or properly take into account all of the relevant evidence.

(9) The learned judge misapplied the relevant law to the facts.”

22. Before dealing with the grounds of appeal it is important to note that The Commonwealth of The Bahamas is an independent sovereign state which gained its independence on 10th July, 1973, and it is a parliamentary democracy with an elected government. The Constitution of The Commonwealth of The Bahamas safeguards democracy and fundamental human rights. In my view the question whether a project or development such as intended by the Developers in this matter is, to borrow the

12 expressions of the Judicial Committee of the Privy Council in another matter, “a matter of national policy which a democratically elected government can decide.”: Belize Alliance of Conservation Non-Governmental Organization Vs. Department of the Environment, Privy Council Appeal No. 47 of 2003 decided on the 29th January, 2004 GROUNDS 1 AND 3 23. These two grounds can be dealt with together. 24. Under ground I the appellants contend that the learned judge erred in concluding that Mr. Wendell Major, the 1st Respondent, had power to enter into the Heads of Agreement dated 1st March, 2005. They argue that the Heads of Agreement is not an “Agreement in Principle” in that it purportedly conferred substantive rights on the Developers which directly engaged the interests of the applicants and the residents of Guana Cay, such rights which the Cabinet, whether collectively or as individual ministers, did not have power to confer. These rights included in particular, rights conferred by Parliament exclusively upon certain bodies, including particular ministers. 25. Under ground 3 the appellants contend that the learned judge erred when he concluded that the Heads of Agreement did not constitute a fettering of the discretion of the Cabinet, whether collectively or as individual ministers. They argue that the entry into the Agreement prevented the various persons in both central and local government from considering whether or not to grant licenses and permits with an open mind. 26. As I have already stated, The Commonwealth of The Bahamas is a parliamentary democracy with a Cabinet system of government and with Her Majesty, The Queen as the Head of State. The Executive power is vested in Her Majesty, The Queen, with the Cabinet as the primary vehicle for the exercise of the executive power. 27. Articles 71 and 72 of the Constitution of The Bahamas, so far as is relevant provide: “71. – (1) The executive authority of The Bahamas is vested in Her Majesty.

13 (2) Subject to the provisions of this Constitution, the executive authority of The Bahamas may be exercised on behalf of Her Majesty by the Governor-General, either directly or through officers subordinate to him. (3) --- 72. – (1) There shall be a Cabinet for The Bahamas which shall have the general direction and control of the government of The Bahamas and shall be collectively responsible therefore to Parliament. (2) The Cabinet shall consist of the Prime Minister and not less than eight other Ministers (of whom one shall be the Attorney-General), as may be appointed in accordance with the provisions of Article 73 of this Constitution.”

28. Although the appellants make a flagrant submission that the Cabinet has no power to enter into the Heads of Agreement with the Developers, they have not been able to show anything in the law to support that submission or to show that the executive power in this regard is limited. 29. In his affidavit evidence sworn to on the 30th January, 2006 and filed in these proceedings Mr. Wendell Major 1st Respondent, avers that at the material time, he was the duly appointed Secretary to the Cabinet of The Bahamas Government and thereby also served as the Secretary to the National Economic Council (NEC), another name under which the Cabinet operated, and was present at each meeting of the NEC or Cabinet when the project was considered and subsequently approved. 30. The Heads of Agreement which bears his signature states: ‘ THESE HEADS OF AGREEMENT are made the 1st day of March, 2005 BETWEEN THE GOVERNMENT OF THE COMMONWEALT OF THE BAHAMAS represented herein by Wendell Major CMG, the Secretary to the National Economic

14 Council acting by and under the authority of the National Economic Council (hereinafter called “the Government”), of the one part AND PASSERINE AT ABACO HOLDINGS LTD., PASSERINE AT ABACO LIMITED, BAKER’S BAY CLUB LIMITED, BAKER’S BAY HOA LIMITED, BAKER’S BAY FOUNDATION LIMITED and BAKER’S BAY MARINA LIMITED, each a Company incorporated under the laws of the said Commonwealth and having its registered office in the City of Nassau in the Island of New Providence, one of the in the said Commonwealth ( hereinafter, sometimes collectively referred to as “the Developers” and sometimes individually referred to as “Holdings”, “Passerine”, “the Club”, “the HOA”, “the Foundation” and “the Marina” as the case may be which expression shall include their successors in title and assigns), of the other part.’

31. Section 90 of the Evidence Act Chap. 65 provides: “When a person is proved to have done any act in any official or judicial capacity, the court shall presume until the contrary is shown, that all circumstances had happened and all conditions were fulfilled which were necessary to give validity to such act.” 32. In the signature provision in the Heads of Agreement, Mr. Wendell Major signs in his capacity as Secretary to the Cabinet and Secretary to the National Economic Council on behalf of The Government of The Commonwealth of The Bahamas. It is clear from the “parties” clause of the Agreement that Mr. Major signs as an agent of the Bahamas Government who is in fact a party to the Agreement. Nothing has been established to show that he did not act as such. 33. Mr. Wendell Major is not himself a party to the Heads of Agreement nor does he purport to have “the power to enter into the Heads of Agreement” or

15 “confer any rights purportedly” as alleged in ground 1 of the grounds of appeal. The trial judge never so concluded and in my view that ground is misconceived and Mr. Wendell Major ought not to have been named as a party to these proceedings.

Agreement in Principle 34. In as much as the Cabinet is charged with the general direction and control of government, the argument that it has no authority to enter into tentative Agreements in Principle with investors subject to the provisions of the laws of The Bahamas can hardly be sustained. 35. In Belize Alliance of Conservation Non- Governmental Organization Vs. Department of Environment and anor. the Privy Council considering the powers of the government of Belize to give approval to the construction of a dam to enable the generation of electricity for the benefit of the community over the objections of certain non-governmental Agencies said: “Despite these potential environmental losses, the government of Belize has decided to give its approval to the construction of the dam. It considers that the losses are outweighed by the advantages to the community in being able to generate more of its own electricity. That is a decision which the government is entitled to make. Belize is a sovereign state, having gained its independence from the United Kingdom in 1981. It has a constitution which safeguards democracy and human rights. But the question of whether or not the dam should be built raises no issue of human rights. It is a matter of national policy which a democratically elected government can decide. (at Paragraph 9 of the Judgment).

36. In spite of the fact that recital J. of the Heads of Agreement states that the government “has approved in principle the Development on the terms and

16 conditions hereinafter---” the appellants have maintained that the Agreement is not that which it says it is. The Agreement states that the government, subject to the terms and conditions expressed in the Agreement, approves the project and accedes to the grant of leases for additional acres of land required to facilitate the project. Those terms and conditions, as expressed, include the obtaining of permits and licenses and approvals from the respective Ministers and authorities as provided under the law. 37. In fact Mrs. Deborah E. Frazier, the Director of Legal Affairs in her sworn affidavit in these proceedings avers that at the commencement of these proceedings no leases for the additional acres of land needed by the Developers for the project have been executed either by the Minister responsible for Crown Land or by the Treasurer of The Bahamas. 38. I find no merit therefore in the appellants’ ground of appeal and submissions that the Heads of Agreement is not an Agreement in Principle and that the Cabinet has no power to enter into the Heads of Agreement. 39. Also, I find nothing in the appellants’ presentation before this court to lead me to the conclusion that the Heads of Agreement constitutes a fettering of the discretion of the Cabinet, whether collectively or as individual Ministers, or of the authorities to whom various duties have been assigned by statute. 40. Grounds 1 and 3 therefore fail.

GROUNDS 2 AND 4 41. These two grounds can be conveniently be dealt with together. 42. Under ground 2 of their grounds of appeal the appellants contend that the entry into the Heads of Agreement by the respondents was irrational or unreasonable. They argue firstly that the learned judge failed properly to consider the substantial evidence of the likely environmental impact of the proposed development. Secondly, they argue that the learned judge failed to consider the substantial evidence concerning the impact of the project upon the lives of the residents and users of Guana Cay. Thirdly, they argue that the learned judge failed properly to consider whether the proposed

17 development was consistent with the Government’s stated aims or policy in relation to financial development and environmental management. 43. Overall the appellants argue that the decision of the NEC to approve the project was one which no reasonable decision making body could reasonably have come to in the circumstances. 44. It is noteworthy that 451 acres of the land on which the Developers propose to locate the project is privately owned by the Developers. 45. It seems to me that the appellants’ understanding of the court’s duty in these proceedings of judicial review is misconceived. The appellants’ submission that the Government of The Bahamas acting through the Cabinet/National Economic Council does not have the power to approve or authorise the project and therefore has no power to enter into the Heads of Agreement with the Developers cannot be sustained. Still less can the court be asked to determine the merits of the decision or whether the right decision was made by the Government when it gave its blessing to the project. The Court’s jurisdiction in these proceedings is limited to determining whether the Government in arriving at its decision has followed the proper procedure required or prescribed by law to be observed before such decision could be made. 46. It is not in dispute between the parties that there is no law, as exists under some jurisdictions such as Canada, Australia and Belize, requiring anyone undertaking a project which may significantly affect the environment to cause an environmental impact assessment (EIA) to be carried out and submitted to the NEC or The Government. However to better enable it to make a decision in such an important matter the Government of The Bahamas in 1994 established the BEST Commission, made up of persons with expertise in environmental matters, on which it relies for advice and recommendations, and in practice the Government or NEC does require an EIA report from persons undertaking such a project. As the Privy Council states in Belize alliance of Conservation Non-Governmental Organizations Vs. The Department of the Environment and anor.-

18 “What each system attempts in its own way to secure is that a decision to authorise a project likely to have significant environmental effects is preceded by public disclosure of as much relevant information about such effects as can reasonably be obtained and the opportunity for public discussion of the issues which are raised.” (at parag. 12 of Judgment)

47. The role of the BEST Commission is as an advisory body to the Cabinet or the NEC. 48. In the Canadian case of Bow Valley Naturalists Society V. Minister of Canadian Heritage [2001] 2 FC 461, 494 Linden JA reviewing the Canadian legislation on the subject said: “The Court must ensure that the steps in the Act are followed, but it must defer to the responsible authorities in their substantive determinations as to the scope of the project, the extent of the screening and the assessment of the cumulative effects in the light of the mitigating factors proposed. It is not for the judges to decide what projects are to be authorised but, as long as they follow the statutory process, it is for the responsible authorities.” 49. The Cabinet’s approval of such a project requires a balancing exercise of various conflicting rights and interests – the right of a private owner of land subject to the law to develop and carry on business of his choice on his land, which development and business will result in substantial benefit not only to him but also to the local economy of Guana Cay and the economy of The Bahamas in general through the creation of new job opportunities for Bahamians and the enhancement of revenue for the Public Treasury, the private interest of other property owners and residents of the local community, and considerations of the local ecology. 50. Evidence shows that upon reviewing the Developers’ application for the project the NEC caused a community town meeting to be held at Guana Cay

19 All Age School at Guana Cay, on 19th February, 2004 conducted by Mr. Alexander Williams, the Family Island Administrator for that area. At that meeting the project was discussed and concerns of the residents and property owners were recorded and forwarded to the NEC to be addressed. 51. Another community consultative meeting was held on the 20th August, 2004, The project and the concerns of the local community were again discussed. That meeting which was attended by members of the Guana Cay community was conducted by Sir. Baltron Bethell, Managing Director and Investment Consultant at the Hotel Corporation of The Bahamas. It was also attended by representatives of the Developers who took note of the community’s concerns. The concerns raised at that meeting were forwarded to the NEC to be addressed. Meetings were held between the Developers and the NEC to discuss and address the community concerns. As a result of those meetings and discussions adjustments were made to the project by the Developers to take care of some of those concerns. 52. On or about 27th October, 2004 the BEST Commission received from NEC the EIA report submitted by the Developers for their consideration, advice and recommendation. A team of its technical experts completed their review of the EIA after visiting Guana Cay. A number of concerns were raised by the commission which was later addressed by the Developers. 53. The BEST Commission, being satisfied that their concerns about the project have been satisfactorily addressed, issued its final recommendation to the NEC which subsequently approved the project. 54. The appellants second ground of appeal that the NEC’s approval of the project is irrational and unreasonable is primarily grounded on their submission that the project would have an adverse environmental impact on the island of Guana Cay. At the request of the Government the Developers commissioned and submitted to the Government at their expense an EIA prepared by a well known international engineering and consulting group based in the United States of America, but as pointed out earlier there is nothing in the law which requires the Developers to do so. The EIA was

20 requested by the Government to enable it to make a reasonable decision in the matter. 55. The appellants attack the EIA report on the basis that it was provided by the Developers and could not be relied on. In my view the fact that it was commissioned by the Developers is not by itself a reason to fault its contents. 56. In fact the affidavit evidence of Dr. Donald Cooper, the Under Secretary in the Ministry to Health and Environment, Agriculture and Fisheries filed in these proceedings shows that the EIA was carefully examined. In the affidavit Dr. Cooper states: “7. After a team of its technical officers completed a review of the said EIA and visited Guana Cay, the BEST Commission had the following initial concerns and comments about the EIA and the proposed development: (i) The lack of a landfill site or transfer station for the current residents of Great Guana Cay needed to be addressed as part of the development plan.

(ii) It needed to be clearly expressed to the Commission in writing who was to be responsible for the clean up of the hazardous waste and abandoned structures left on the proposed development site by Disney. (iii) The impact of the influx of 500 construction workers on Guana Cay, as well as 150 permanent workers, needed to be addressed, including the provisions that would be made to accommodate them.

(iv) A map needed to be provided showing the existing natural features of the proposed development site, including Gumelemi Cay, Joe’s Creek and adjacent wetlands, with an overlay of the features of the proposed development.

21 (v) The “No action” alternative, which is considered an integral part of all EIA documents, had not been explored therein.

(vi) The number of Figure 4.2 in the EIA did not correspond with the map in Appendix A, making referencing difficult.

(vii) Figures 4.5, 4.10 and the elevation map in the EIA were very difficult to read due to their small size.

(viii) Due to the impact of the proposed development on wetland areas, the EIA document needed to be reviewed by the Wetland Subcommittee of the Commission.

(ix) As part of its review of the EIA, the Commission needed to be supplied with reports from any public meetings that were held, which would be taken into account along with complaints that it had received from residents regarding the proposed development.

(x) The EIA gave no indication of the volumes of solid waste to be generated by the proposed development and needed to provide clarification on where the various types of wastes outlined in Table 4.8 of the EIA were to be removed to. The Department of Environmental Health Services also needed to advise if the volume and types of waste slated to be removed from the proposed development could be accommodated on mainland Abaco.

(xi) There was no Table 2 in the Appendix to the EIA, as stated therein.

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(xii) There was no indication in the EIA as to what mitigation measures, if any, would be utilized for large Casuarinas trees. (xiii) The EIA stated that “movement of fill from the marina basin will be used to create two islands with the marina for housing lots”. The Commission required more detailed information on the creation of these “islands”.

(xiv) The Commission questioned if the use of sediment curtains would offer sufficient mitigation for the large-scale dredging proposed for the project and asked the Developers to provide more detail on the methodology for mitigation during dredging.

(xv) If golf course management practices are found to decrease or cause severe negative impacts to groundwater, the Commission queried whether it would not then be too late to prevent groundwater contamination if the wells are contaminated.

(xvi) With respect to page 96 of the EIA, the Commission required provision of the setback distances from mean high tide for high energy beaches and dunes and high energy rocky shores.

(xvii) With respect to page 102 of the EIA, whilst leash confinement for dogs is given as a mitigation option for controlling pets on the island, the Commission required information as to what other confinement methods for pets, especially cats and dogs, would be mandated for residents of the proposed development.

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(xviii) The Commission queried whether each lot in the proposed development would have beach access and whether there would be common access points.

(xix) Whilst sufficient detail was provided on use of reef balls, the Commission required more detail on the mitigation option of replanting seagrasses and an indication of the Developers’ preference with respect to these two options

(xx) The completed Environment Management Plan (“EMP”) needed to be provided to the Commission for review and approval prior to any construction beginning.

(xxi) As the specifications for the proposed marina did not meet the Commission’s flushing requirements, it was recommended that the Developers consider design options that would enable the required flushing rate and present these to the Commission to review.

(xxii) As it was the Commission understands that mooring in the area previously used by Disney cruise ships was often not possible due to wind and current conditions at the site, it needed to know how these were to be overcome.

(xxiii) The Commission needed the identity of the employee who would be specifically responsible for management of wastes generated at the marina and their disposal. 8. In response to the above-mentioned concerns and comments, the Developers made a number of modifications to

24 the original design of the proposed development and provided additional material to the BEST Commission for review.

9. The modifications included, for instance: (i) changing the private access points to the beach so as to lessen coastal impact; (ii) changing the design of the proposed golf course so that all aspects of it would be no less than 50 feet from the mean high water mark; and (iii) altering the design of the marina so that a flushing- rate of 90% turn over within a 24 hour period could be achieved.

10. As a result of the various modifications to the original design of the proposed development and the additional material provided, the BEST Commission was satisfied that most of its concerns had been favorably addressed by the Developers---.” 57. There is no evidence that the EIA report in this matter is not comprehensive in its treatment of the subject matter or objective in its approach. Cripps J.in. the Land and Environment Court of New South Wales in Prineas Vs. Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417 states: “The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by the experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulation.” 58. In the Belize Alliance case, the Privy Council said that it is not necessary that an EIA should pursue investigations to resolve every issue. It is therefore wrong to approach an EIA as if it represented the last opportunity to exercise any control over a project which might damage the environment:

25 Belize Alliance of Conservation Non-Governmental Organization Vs. The Department of the Environment and anor Appeal No. 47 of 2003, Privy Council 29th January, 2004 at parags. 70 and 71. 59. The appellants’ submissions in support of their second ground of appeal were first made before the trial judge who rejected them. 60. After reviewing the evidence and the submissions of the appellants I am of the view that the Heads of Agreement with the Developers cannot be characterized as so unreasonable and irrational (under the Wednesbury’s sense) that no reasonable authority could ever have made such decision. I find no reason to reverse or interfere with the findings of the trial judge. 61. On ground 4 it is alleged by the appellants that had the learned judge considered the “important evidence produced by the appellants” he would have concluded that there had been no proper consultation in relation to the project. 62. As stated earlier the evidence of the respondents to the effect that two public consultative town meetings were held by the government at Guana Cay in which the project was discussed was not contradicted by the appellants. Those meetings took place in 2004 before government’s approval was given to the project and the Heads of Agreement entered into in 2005. The concerns of the people were recorded and consideration given to them by the government resulting in some cases in adjustments to the project being made by the Developers. 63. I find nothing on the record to lead me to the conclusion that the trial judge in arriving at his decision did not take into consideration all the evidence led by the appellants. The assessment of evidence is a matter of fact for the trial judge and with that; this court is reluctant to interfere without good reason in law. No good reason in law has been proffered by the appellants. This ground therefore fails.

GROUND 5 64. I now turn to ground 5 of the grounds of appeal. In this ground the appellants contend that the learned judge did not constitute an independent

26 and impartial tribunal as required by the Constitution both by reason of his being an Acting Justice and or for the reasons stated by Lyons J. in certain decisions referred to as by counsel for the appellants. It has not been suggested that there was anything about Justice Carrol’s words or conduct that gives rise to a suspicion that he lacked the qualities of independence and impartiality.

Acting Justice 65. The Constitution of The Bahamas makes provision for the appointment of Acting Justices of the Supreme Court. Articles 95 of the Constitution provides: “ 95. - (1) If the office of Chief Justice is vacant or if the Chief Justice is for any reason unable to perform the functions of his office, then, until a person has been appointed to that office and assumed its functions or, as the case may be, until the Chief Justice has resumed those functions, they shall be performed by such other person, qualified under paragraph (3) of Article 94 of this Constitution for appointment as Justice, as the Governor- General, acting in accordance with the advice of the Prime Minister may appoint for that purpose by instrument under the Public Seal.

(2) If the office of a Justice of the Supreme Court is vacant, or if any such Justice is appointed to act as Chief Justice or as a Justice of Appeal, or is for any reason Governor-General, acting on the advice of the Judicial and Legal Service Commission, may by instrument under the Public Seal appoint a person qualified under paragraph (3) of Article 94 of this Constitution for appointment as a Justice to act as a Justice of the Supreme Court, and any person so appointed shall, subject to the provisions of

27 paragraph (5) of Article 96 of this Constitution, continue to act for the period of his appointment or if no such period is specified, until his appointment is revoked by the Governor-General acting on the advice of the Judicial and Legal Service Commission.

(3) Any person appointed to act as a Justice under the provisions of this Article may, notwithstanding that the period of his appointment has expired or his appointment has been revoked, sit as a justice for the purpose of delivering judgment or doing any other thing in relation to proceedings which were commenced before him while he was so acting.” 66. It is not disputed that persons appointed as Acting Justices of the Supreme Court are eligible for appointment as permanent justices. It has never been the practice in The Bahamas for a person to be appointed as a Justice of the Supreme Court of The Bahamas in an “Acting” capacity if that person is not eligible for appointment as a permanent Justice of the Supreme Court. Appointment as a Justice of the Supreme Court of The Bahamas are made by His Excellency, The Governor General, acting on the advice of the Judicial and Legal Service Commission, a body established and appointed under the provisions of The Constitution. As far as I know, no assurance is given by anybody to a person invited to accept appointment as Acting justice that service in an Acting capacity will lead to a permanent appointment, but in practice a number of persons appointed as such have subsequently been appointed as permanent Judges of the Supreme Court. As an Acting Justice, the period of appointment is limited to the period referred to in the instrument of appointment. From the provisions of the constitution I would draw the inference or conclusion that the Acting Justice of the Supreme Court of The Bahamas enjoys security of tenure throughout the period of his appointment no less than that which a permanent appointment confers.

28 67. The appellants also contend that the learned judge did not constitute an independent and impartial tribunal based on pronouncement made by Lyons J. in his decisions: Moss Vs. Bahama Reef Condominium Association and anor FP.230/01 The Queen Vs Pratt and Ors. FP 86/8/2001, Braynen Vs. Attorney General and ors 2495/2002 and Neymour Vs The Attorney General CL574 of 2002. 68. I have read these decisions of Lyons J. and do not find them either helpful or relevant in this matter. 69. In my view the pronouncements of Lyons J. in the decisions to which we have been referred do not constitute decisions on the subject of the independence and impartiality of the judiciary in The Bahamas. The pronouncements were made, obiter, in matters before Lyons J. to the effect that the government’s non-compliance with or breach of the provisions of the Judges Remuneration and Pensions Act, Chap. 45 in his view were acts which tended to undermine the independence of the judiciary of The Bahamas. Those statements do not constitute authorities to the affect that the Judiciary of The Bahamas is not independent or that by reason of those breaches a person appointed as Justice of the Supreme Court of The Bahamas as Acting Justice does not constitute an independent and impartial tribunal. 70. This ground has no merit and therefore fails. 71. I find it difficult to resist commenting on the appellants’ challenge of the trial judge’s independence and impartiality at this stage. The appellants and their counsel when they appeared before the trial judge did not see fit to raise that issue. To seek now to challenge the judge’s independence and impartiality on a ground they could not have been unaware of at the trial and to seek now to overturn the whole trial amounts to a volte face and means that the appellants and their counsel waited to see whether the judge’s decision would or would not be in their favour and only sought to raise the issue when the judge’s decision became unfavourable. In my view that practice should be condemned as improper and unacceptable.

29 GROUND 6,7,8 AND 9 72. I find no merit in these grounds. They seem to have been thrown in as an after- thought. 73. I find nothing on the record and no evidence was adduced to the court to substantiate any of the grounds. 74. For the reasons given above I would dismiss the appeal. 75. I would invite the parties to address the court on costs.

______The Hon. Mr. Justice Osadebay, J.A.

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