A Response to Wayne Munroe on Blackbeard's Cay

by Leandra Esfakis

The Tribune published an interview with lawyer Wayne Munroe on September 23, on the Blackbeard’s Cay matter. Blackbeard's Cay is a small resort island off Cable Beach, which keeps eight captive dolphins as a tourist attraction. It is operated by a company called Blue Illusions Ltd, which is Mr Munroe's client.

When Prime Minister Perry Christie, and his Minister of Agriculture V Alfred Gray, decided to issue approvals to Blackbeard’s Cay without observing the legal process, they broke the laws.
 
They did what they did, for reasons best known to themselves. Certainly, those reasons were not known to the public, which under our laws, had a right to a public meeting; had a right to raise questions and get answers. This meeting was never held. Correspondence on the topic was ignored – for years. The government, throughout this process, has shown contempt for the law and disregard for the public.   

In July 2014, the Supreme Court found that the prime minister and the minister of agriculture failed to comply with our laws. The approvals they granted for the Blackbeard’s Cay re-development, did not meet legal requirements. The court quashed those approvals. This means the approvals and permits are not in effect.  

Blue Illusions, the operator of Blackbeard’s Cay, was at all times aware of these proceedings. It had lawyers attending the proceedings; it had opportunity to intervene in the proceedings; it had opportunity to be heard. But did nothing. 

Instead, Wayne Munroe’s client sat on its hands. It let the government spend the Bahamian public’s money, fighting this action, in an attempt to defend the interests of a private enterprise.  

That attempt failed. The court decided against the government.  Now Blue Illusions says it is unhappy with the consequences. It stood by and watched the litigation for almost two years, and did nothing. To complain now that enforcement of the court order would be in breach of its constitutional rights, is mischievous at best.

Let’s consider our constitutional democracy. It mandates that we have a rule of law; that no man is above the law; that all are equal before the law; that breaches of the law bring consequences. 

The government broke the law when it allowed Blue Illusions to proceed with an illegal development.  Blue Illusions broke the law by proceeding with an illegal development. But Mr Munroe claims it is "not cricket” to enforce the law.  

Here’s where we would ask ourselves: 

When the parties to the development, and these proceedings, (being prime minister, minister of agriculture, the director of town planning, international businessmen, developers and financiers), set out on a path which avoided compliance with our laws, did they not contemplate the potential consequences? 

To add to the issues, Blue Illusion’s attorney indicates that it may sue the government if Blackbeard’s Cay has to return to its permitted use. Mr Munroe says the company’s claim would cost the Bahamian people $12 million in damages and 60-100 Bahamians would lose their jobs. Whether Mr Munroe’s client has a valid claim is a discussion for another place.  

Before we are alarmed by these numbers let’s ask ourselves: 

If our government cared about liability to the Bahamian people, why did it allow the Bank of the Bahamas to mismanage $100 million of people’s money? And why has it put $200 million more of the people’s NIB money, into a bank that is rocked by corruption? 

If the government truly cares about Bahamian jobs, why has it forced Baha Mar into a chronic and probably fatal liquidation process, with the potential loss of about 2,500 Bahamian jobs? 

But the fundamental question here is: Does the government care about good governance? 

The government did not do right in the first place - by Blackbeard’s Cay - when it broke the law. It is not doing right in the second place, by ignoring the court order. This amounts to contempt of court. Court orders can be enforced by committal proceedings. 

Justice Stephen Isaacs’ ruling on Blackbeard’s Cay requires the prime minister and his minister of agriculture, to act within the limits of our laws. This is how an independent and impartial judiciary in a democracy is supposed to function: it prevents the misuse and abuse of power, or corrects it. 

And here’s where the PM could brilliantly lead by example - comply with the court orders, and uphold the law of the land. It would set the gold standard this nation so very much needs to follow.

It’s an historic moment in our development as a nation.  It’s an historic decision, and not just for dolphins. It’s about our democracy, and administration of the rule of law: without prejudice, without fear or favour, without corruption.  It’s about prudent government, with vision. It’s about us, and what we want for our country. It’s about making it better in the Bahamas

Let’s take a look at the short list of government issues so far: BAMSI; Bank of the Bahamas; Baha Mar; Bahamasair; BTC; BEC; crime; education; carnival accounts; Urban Renewal accounts - and now Blackbeard’s Cay. 

Shooting the messenger, whether it is ReEarth, or the Public Accounts Committee, is not the answer. The problems will still exist. 

But the beauty of the Blackbeard’s Cay case, is that these wrongs can be put right – the dolphins can be relocated to a suitable place, and the island can be restored to its legally permitted use - once the rule of law functions in our democracy.  

Justice Isaacs’ ruling in the Blackbeard’s Cay case, gives the prime minister, the minister of agriculture, and all of us, a window of opportunity to do the right thing. If we are truly proud to be Bahamian, we can make it happen. 

Leandra Esfakis is a daughter of the late Dr Andrew Esfakis. She is a lawyer practising with King & Co.

Comments

[george]

This is not America and there is no legislation in place which says that the government has to have town meetings before it an approve a project.

[Deron Isaacs]

Quite frankly, I never thought I'd see the day that anyine would rule against a sitting government! The fact that he has Isaacs as his surnane makes me proud! Secondly, I didn't think another attourney would draw attention to such an event without fear. This shows testucular fortitude beyond measure! That she happens to be my church sister, makes this a super proud day for me! Way to go Justice Jon Isaacs and Attorney Leandra Esfakis!

[larry smith]

George needs to read the provisions of the Planning and subdivision Act, 2011, and the judgment of Justice Stephen Isaacs in the Blackbeard's Cay case, and reconsider his comment.

http://www.bahamapundit.com/2010/09/new-planning-law-to-control-bahamas-development-takes-effect-in-january.html

[Joey]

George your comment clearly outlines the apathy on which the Government depends upon the Bahamian people to demonstrate. The Christie administration openly flaunts the law and lines their own pockets with complete arrogance and disregard for the law, the country and its citizens.

[Uncletiffy]

Will we ever learn?

[Abner Pinder]

Just a few thoughts on the above Article.
In all matters there are 3 sides, your side my side and the right side. Unfortunately the lawyers for the Re Earth group did not want the truth of this matter to be brought out in any Court.
In the beginning of this Suit, Blue Illusions was named as a Party to this Suit, however and for whatever reason they cleverly decide to drop Blue Illusions from the Suit because I believe they knew that if all of the FACTS were presented to any Court they would not have a leg to stand on. And they knew that Blue Illusions Lawyer would make a laughing stock of the whole procedure.
I am not a lawyer but I do not know of any case in the Bahamas where some one can defend themselves against a Suit if they are not a Party to it.
Unfortunately the Hon. Judge therefore was never made Privy to the True Facts so a decision was made based on what he saw.
This was the intention of the lawyers when they dropped Blue Illusions from the Suit.
Nothing was done at Black Beards Cay without the relevant Permits and Permission to do the same. If Mr. Smith was not afraid to face Blue Illusions lawyer in Court from the beginning why? were they dropped from the Original Suit.
Mrs. Esfakis is a good lawyer so if she would appraise herself of the Facts I believe she would have to admit to what I am saying.

[leandra esfakis]

In our system, a plaintiff cannot be forced to sue any particular defendant. It is entirely the plaintiff's choice who to sue. If the plaintiff sues the wrong party - and fails - he lives with the consequences of that choice.

If a person (or company) feels he will be effected by a legal action, he has a right to apply to intervene in the action and be heard. It is up to the individual (or company) who feels he is so affected to apply.

Blue Illusions had different lawyers over the years. Blue Illusions, with legal advice, made an informed choice not to intervene. It lives with the consequences of that choice.

It is true that a judge will decide on the facts that are before him. That is the purpose of a court action - to bring all the facts before the court. The judge's responsibility is to come to a decision only on the facts before him. That is the basis of our justice system.

If Blue Illusions did not want to spend its money as a party to the legal action, and if Blue Illusions had "True Facts", which could have altered the outcome of the case, then, in its own best interests, Blue Illusions could have, and would have helped the government, by providing Crown counsel with those facts.

Notwithstanding this, the government still did not present sufficient "True Facts"to the court to convince the court to rule in the government's favour.

The common element in each of ReEarth's applications regarding new developments is the government - not the individual developer. It is the government which sets the whole process in motion - the government that gives approvals. It is the government that, from the get-go, needs to observe the laws that the government in Parliament made. It is the government which needs to answer for its governance.

It makes sense to sue the government. We need more common sense.