United Nations Speech on Great Guana Cay
Presentation by Frederick Smith
On behalf of the Save Guana Cay Reef Association,
An NGO from the Abacos in The Bahamas
In conjunction with
An NGO from Bimini in The Bahamas
Legal and Policy Challenges faced in Protecting Mangroves
In the context of
Environmental Protection, Land and Marina Developments
At The United Nations
May 8, 2007
Mangroves are critical ecosystems for shore protection and fisheries. They are essential to a healthy coastal environment; yet they are being destroyed worldwide at an accelerating pace. They represent an international environmental resource that is little understood or appreciated.
In The Bahamas, vast areas of mangroves are being destroyed by foreign development speculators to create all-inclusive tourist resorts and exclusive real estate, golf and marina developments. In Bimini and in Guana Cay the devastation has been catastrophic and continues.
The Government of The Bahamas, in particular the former recent PLP administration of Prime Minister Perry Christie, which was last week voted out in general elections after five years in power, has encouraged and promoted this at the altar of “Development” at all costs! Despite paying lip service to “Environmental Protection”, there is no environmental protection act.
This presentation is part of a group presentation on behalf of the Save Guana Cay Reef Association, an NGO from the Abacos in The Bahamas in conjunction with the Mangrove Action Project, an NGO from Bimini on the legal and policy challenges faced in protecting mangroves, and by extension the environment in The Bahamas. This paper addresses issues relating to environmental protection, tourism, land and marina developments and land use in The Bahamas.
These are issues which present challenging social, economic, and political considerations, not only for The Bahamas, but also for neighboring Caribbean nations and coastal communities worldwide, especially those that are being “discovered” by developers, precisely because they are beautiful, pristine and secluded environments, away from the hustle and bustle of large towns and cities and therefore ripe for glossy development plans and marketing to affluent second home buyers, golfers and mega yacht owners looking for offshore berths.
Leaders in coastal communities are challenged to become educated, debate and develop rational approaches to these challenges. Although there are many similarities in the impact on the environments of coastal communities, their cultures and rights are often affected in unique local ways.
This paper will focus on The Bahamas, and in particular, Great Guana Cay, a small island in the northern Bahamas Island chain known as The Abacos. Although localized, the story of Guana Cay represents a microcosm of what is happening throughout The Bahamas, and elsewhere in coastal communities. It is a story that is still unfolding politically and in the courts.
This paper also generally refers to “coastal communities” as opposed to “Nations”, because often, the rights and environments of local coastal communities are sacrificed by centralized national governments, often in complete ignorance of local rights and environments, but more often than not, in pursuit of deliberate centralized policies of “national development” that override local rights and environments.
In The Bahamas, the PLP administration had a name for this national development policy. It was called “Anchor Projects”,
The aim was to create economic development zones in many of the isolated and undeveloped islands of the Bahamas. The Bahamas is an archipelago of 700 islands and cays, the beauty of which is that much of it has remained virtually untouched. Nassau is the capital, and the rest of the islands are called the “Family Islands”. With a population of 360,000, less than 100,000 populate the Family Islands. The natural beauty of many of these islands, unfortunately, has been the lure to development exploitations, particularly on the doorstep of the State of Florida whose economy has been booming particularly in home, marina, golf course and tourism sectors. Developers, especially from the United States, have been mesmerized by the Bahamian sun, sand and sea….but more importantly by the opportunities for mega tax free profits and lack of government regulatory regimes.
There is also a very close relationship between local human and economic rights and protection of the environment. For the purpose of this paper, references to “environment” include land and marine environments.
As The Bahamas is a part of the Caribbean, this paper will also speak to issues within such context, although the paper doubtless has application to coastal communities worldwide. The quality of life of the citizens of the Caribbean is fundamentally and dramatically impacted by the approach adopted by each Caribbean nation with respect to local rights, the environment, development, tourism and land use. In this paper, use of the word “development” includes marina, golf course, real estate projects in all forms and tourism projects.
Throughout the Caribbean there has been a political and economic imperative for development and investment to create jobs and opportunities. Unfortunately, the paradigm for development is awkwardly disconnected from respect and protection of the environment and local rights of coastal communities. So much so that, for instance, in the case of Guana Cay (which is discussed later), the Office of the then Prime Minister Mr. Perry Christie entered into a secret commercial agreement called a Heads of Agreement which provided that, until such time as the Office of the Prime Minister had completely approved all aspects of the Discovery Bay land company’s ten year $500Million Anchor Project for Guana Cay, there was to be no consultation with the 300 or so local Island residents and fishermen of Guana Cay.
This was despite the fact that even the Discovery Land developer’s Environmental Impact Assessment recognized the local residents as stakeholders who needed to be consulted as part of the Environmental Impact Assessment and development process. The approach adopted by then Prime Minister Christie and his Cabinet was similar to the approach adopted by many other Caribbean centralized governments; that is to ignore local rights and to provide omnibus centralized government approval of development projects purportedly cutting through the “red tape”; particularly the nuisance of having to consult local governments or indeed for the developers to obtain licences or permits at the local government level for different aspects of their proposed developments.
Caribbean communities share a community of interest in protecting and preserving their cultures and environments, which have historically been rapaciously consumed and abused by former Colonial economic interests and now by “developers”. There is a desperate itch throughout the Caribbean, for development opportunities in tourism, foreign second home ownership, marina and recreational developments, and in particular, exclusive private foreign golfing residential communities, most of which are rarely affordable by the local people.
This development profile has potentially huge detrimental consequences for the marine and terrestrial environments and the cultures of Caribbean communities. There is a great challenge in attempting to balance the political mandate for economic growth through tourism, real estate and marina developments with the physical and marine environment and, more importantly, local, indigenous and grassroots’ rights which attempt to protect and preserve cultures, quality of life, patrimony and heritage.
In addition to the negative impacts of the developments themselves, the homogenization and pasteurization of the tourism and development product threatens to overrun and destroy the uniqueness, not only of the physical and cultural environments that each Caribbean community is blessed with, but also the uniqueness of different physical and cultural environments within each Caribbean nation.
This paper will explore some of the particular challenges faced in The Bahamas.
It will review the approach that the PLP administration of The Bahamas has adopted in dealing with these challenges. General elections were held last week, and a different administration, the FNM, is now in power. The FNM have promised to pass environmental protection legislation and to strengthen local government institutions, thereby empowering local communities.
The paper will consider the results of the PLP policies adopted in the context of Great Guana Cay. It will review the litigation over Great Guana Cay.
This paper is intended to share with the United Nations Commission on Sustainable Development the challenges facing local communities and the environment in the Bahamas. It will ultimately make some suggestions to legislators and policy makers in the Bahamas and attempt to educate and sensitize the public to the issues addressed.
The Bahamas faces a particular challenge. It has small land masses. All developments have huge impacts on its fragile, varying and unique eco-systems. In addition, the waves of settlement in the past have also created different cultures and ethnic groups on different islands with different visions for their communities. Regrettably, there is no national and/or local coherent land or marine use policy. Neither is there any environmental protection legislation. This paper will also set out what is the current environmental regulatory regime in the Bahamas.
Marine resources are abused by illegal poaching and over-fishing by Cubans, Dominicans, Americans and regrettably even Bahamians. The Bahamas has limited marine policing resources.
Deforestation and development have not only caused destruction to much of the land environment but huge collateral damage to marine habitats and reefs. Successive Government administrations have paid lip service to the environment.
The Bahamas has become a playground for affluent foreign second home owners, resort developers, all inclusive tourism resorts, golfing communities and marinas for mega yachts. With little available beachfront land for development in South Florida, the pristine and cheap beachfront land in the Bahamas is at a premium.
The vast tracts of public lands, called Crown Lands, are given away almost for free to promote foreign development and resold for millions of dollars by the developers. Successive Government administrations have traded away property, business, hotel, customs and stamp tax exemptions in exchange for political kudos in announcing mega Anchor Projects, and supposedly jobs.
The Prime Minister of the Commonwealth of The Bahamas and his Cabinet, with a non-existent entity called the National Economic Council (NEC), have exercised illegal dictatorial powers to override most laws, in particular local government laws, and give sweeping omnibus concessions and inducements through documents called “Heads of Agreements” to foreign developers. The PLP administration’s policy was to establish “Anchor Projects” throughout the Family Islands. This policy has become the subject of much criticism in the Bahamas. Similar criticisms have been leveled at similar projects in the Caribbean.
Ironically for the environment and local cultures, the Anchor Project policy focuses on the most pristine and culturally sensitive locations in the Family Islands to drop “Anchors”, which result in degradation of environments and cultures in those locations.
This quest for the Holy Grail of “Development” has resulted in wholesale abandonment of the rule of law, due process, abuses of human rights and terrible destruction of the marine and land environments. It has destroyed much local culture, society and heritage.
Most of the time locals in the Family Islands are not trying to stop development. They recognize the need for jobs and economic opportunities. Frequently however these Anchors have been dropped most inappropriately in areas that do not need them or cannot provide the necessary labour, skills or resources. In some instances, the locals simply want a legitimate role in participating and visioning the future of their communities, as stakeholders. They want a place at the negotiating table. They want to help to mitigate the extent of damage to the environment. They wish to reduce social and cultural disruption; make meaningful contributions to the national development debate and process, protect many of their local and traditional rights and try to achieve substantial and real local economic benefits.
The failure to observe laws in the rush to give omnibus approvals for developments has resulted in dramatic political clashes between locals and their communities and Central Government.
The locals feel that the dictatorial centralist powers exercised by Cabinet destroy their culture, society and heritage, and it takes away “their” Crown Land. More to the point, it makes most of the locals feel like foreigners and second class economic citizens in their own communities.
The Bahamas has a small population of three hundred and fifty thousand people. Most of the mega resorts which have been routinely announced by the PLP Government over the last five years are designed for affluent foreigners to enjoy as exclusive playgrounds. This creates a huge social chasm between Bahamians and foreigners, whites and blacks, rich and poor.
Ironically, the tax concessions deprive the Government of the necessary tax base to provide for the needs of the citizenry. The boast by the Government that all of these developments create job opportunities in the Bahamas is vacuous, especially in the Family Islands. There is one exception, and that is the City of Freeport on the island of Grand Bahama, where a statutory 99 year development agreement called the Hawksbill Creek Agreement with a private quasi governmental company called The Grand Bahama port Authority has had a measure of success. That is however a story unto itself.
Because of the fractured geographic nature of the Bahamas with its 700 islands and cays, internal immigration by Bahamians between islands is a challenge. Other than Freeport, the pristine physical cultural environments being given away for development do not have the necessary Bahamian tradesmen, labourers or businesses to support the billion dollar developments that are touted. The Bahamas has limited labour, trade, craft, vocational and professional expertise. The sizes and intended speed of these developments outpace any indigenous capacity to effect them. Thus the vaunted developments have the counterproductive effect of requiring the importation of vast numbers of skilled and unskilled labourers and craftsmen from Mexico, India, America, Canada, Germany and Haiti.
Building materials are imported directly form the USA. The majority of the developments use their own project managers, market sales abroad, and use foreign engineers, lawyers, surveyors and architects. There are rarely, if ever, Bahamian equity joint partners. Because taxes are waived, the Bahamian Treasury gets very little when compared to the vast fortunes to be derived by the developers from leveraging the land sales at the developments.
Because the investments target affluent foreigners and the developers are in the business of leveraging the land and marine resources for maximum profit, Bahamians are having difficulty in affording land in their own country in the areas of these developments, as prices have skyrocketed. In many of these developments Bahamians have become foreigners in their own local homelands.
Most Bahamians welcome investment opportunities. However, in the Family Islands there is great objection to the visionless and unimaginative way the central government politicians engage the relevant local issues; the wholesale and reckless give-away and destruction of local patrimony; the lack of transparency in decision-making; the fact that civil servants and politicians are outmatched in negotiations by the financial wizards and developer salesmen; the lack of meaningful participation and opportunities for Bahamians; and the unnecessary destruction of the environment which is the vary resource driving the investment fever.
Reaction of communities
The locals, either as communities, businesses or cultures, have been slowly rebelling. Many NGO’s have been created. Save Guana Cay has been the most vocal and resistant to abuse.
All of these communities of interest, cultures, society and environments are not necessarily against development. For the most part, they do not seek to stop development or progress. To the contrary, they welcome it but these communities of interest, these stakeholders, want to be consulted. In fact, they are by law for the most part entitled to be consulted. They want an opportunity to participate in visioning the future of their communities. They want to help to plan mitigation and extent of damage, if any, to the environment. They can make meaningful and effective contributions to the development debate. They want to protect their local rights, culture and heritage. They want local benefits to accrue to them.
They are angry that Government and developers conspire clandestinely to sidestep, override or ignore them. They are embracing opportunities to challenge through publicity, legal and political processes. However, it has proven difficult for them to challenge Central Government on the merits of the developments, the environment or socio economic impacts as there are no environmental protection laws by which all are required to abide.
The Courts shy away from apparent interference with political decision making or scientific analyse; although the Courts remain prepared to get involved when due process is affected, and that has been the focus of challenges for the most part.
These NGO’s have discovered that they are empowered as there is nothing which is feared more by developers and Government than negative publicity, delay and attention. It is the kiss of death. It demonstrates that the Central Government is not in control. The NGO’s have found that this is political cancer for the Government. It stagnates the development as the developers find it difficult to get financing, to sell, and to move on with their development.
The former PLP Government created a culture whereby every American developer which came to the Bahamas expected development carte blanche through a Heads of Agreement negotiated with the Cabinet office which boasts “Cutting through red tape” and “laying out the Red carpet”. What Cabinet is in fact doing is ignoring most laws, local government legislation, local rights and stakeholders, the environment and the basket of laws relating to town planning, licencing and building regulations. The short-term goal of the politician is generally to announce the project and gain political mileage. The goal for the developer is to get in and out with a profit as quickly as possible. The interests of the environment and the local citizens of the Bahamas are not represented at that bargaining table.
The irony is that in their own countries these same American developers abide (albeit grudgingly) by environmental laws and respect for local communities of interest (which in their much vaunted Environmental Impact Assessments are called “stakeholders”). They go through town, county, municipal, city, state and federal agencies; they pay taxes and they still do their developments and make a profit. But alas, as the PLP Government of the Bahamas had little respect for the environment, heritage and culture, the developers likewise adopted a similar mercenary and disrespectful approach. Simply put, money talks and, and most politicians come cheap!
Thankfully, NGO’s have become more persistent; patient; they have taken many-pronged approaches; they have achieved incremental and small successes; they educate constantly through the media. Importantly they fight for the sake of fighting the good fight and in doing so expose abuse and educate on issues. They appreciate that even if the battle is not won, they are fighting a war on many fronts. Merely even engaging in the battle causes policy makers, governments, and developers to take notice and maybe rethink the next development. It is an educational process. But, in the meantime, the environment is dying and local communities in the Bahamas are disappearing.
Bimini and Guana Cay are fighting to save what little is left, and there is hope, as this papers suggest at the end.
The Guana Cay Case
In April 2005, judicial review proceedings were brought by the Save Guana Cay Reef Association which was a company formed to represent the interests of the landowners and residents of Guana Cay.
The case concerns the proposed 600 acre development of a $500 Million private and exclusive foreign residential resort and club membership community at Guana Cay comprising hotel, private lots, a marina, and a golf course. The developers are a publicly traded company known as Discovery Land Developers Inc. from California which incorporated a group of local project companies known as Baker’s Bay, named disrespectfully, after the local traditional crabbing grounds.
The Developers acquired approximately 450 acres of privately owned land and about 150 acres of Crown (pristine government owned land) at Guana Cay to construct the Development. By the time court proceedings began, it was apparent that the Government and the Developers had been secretly engaged for some time in negotiations to purchase the government lands and for omnibus approval for the development. These negotiations resulted in the signing of a document entitled “Heads of Agreement” dated 1 March 2005 purportedly between the Government and the Developers.
Save Guana Cay Reef Association Limited and the Community of Great Guana Cay
The members the Save Guana Cay Reef Association are landowners and residents of Great Guana Cay. Troy Albury who has dedicated the last two years to this fight is the chairman of the Association. He is a Bahamian, and lives in Great Guana Cay with his wife and 2 children. He owns and has operated for seven years a scuba, snorkelling and boating business called Dive Guana, and operates daily dives and excursions to the reefs, beaches and other marine attractions around Great Guana Cay. He is therefore intimately familiar with and protective of the environment; it is not only his love but also his livelihood.
Like many other residents and land owners in Great Guana Cay, such as fishermen, boaters, sailors, second home owners, bed and breakfast owners and operators, and tourist business owners, the residents rely on the cleanliness and beauty of the land and marine environment for their livelihood. It is also a matter of quality of life for them. It is part of their local culture and heritage that they live a simple, calm, quiet, crime-free life on a small island that has preserved its unique heritage, culture, environment and way of life by slow, sustained and almost imperceptible growth which has given prosperity and jobs to many of the residents of Great Guana Cay. There is virtually 100% employment on the island. The Development threatens to completely change and disrupt the quality of life which they have all enjoyed and benefited from. In fact the residents of Guana Cay escaped from the hustle and bustle of cities and mega tourist resorts. It is ironic that their isolation has become their undoing.
In addition to Troy Albury and the Association, it is important to recognise Mr. Aubrey Clarke, who is also a Bahamian and a ten year resident of Great Guana Cay who is a co plaintiff with the Association and who has been a driving force from inception behind the objections of the residents of Great Guana Cay to the Development
The community of Great Guana Cay has approximately 150 Bahamian residents, landowners and a further 150 non-citizen home owners and periodic residents. Of the Bahamians there are many fishermen. Great Guana Cay traditionally has had a small fleet of fishing vessels and enterprises of approximately 15 vessels and approximately 30 fishermen. These vessels and the fishermen fish for lobster, conch and fish throughout the year during the relevant seasons for the catch.
In addition, these fishermen are landowners and residents of Great Guana Cay. They are also mechanics, craftsmen, carpenters, joiners and persons employed in the boat maintenance and fishing trade, in addition to the actual fishermen themselves. This continues to be an economy and traditional way of life in the community. Many of the families of the fishermen are involved in selling and marketing the catch.
In addition to the fishing industry, the community of Great Guana Cay is very heavily involved in the hosting of tourists, second home residents and visitors throughout the year. In this respect, the community of Great Guana Cay and the Bahamian residents and landowners have many homes and rental properties which are periodically rented as guest houses, bed and breakfasts or tourist facilities.
In addition, approximately 150 non Bahamian landowners have for many years owned and quietly and slowly developed homes, houses and guest houses for rental and sale in Great Guana Cay.
Most of the Bahamians who are residents in Great Guana Cay have almost full time employment in caretaking, fishing, maintenance of homes, restaurants, bars, the dive shop, boat rentals and repairs, and other similar activities.
A culture has developed on Great Guana Cay as between the Bahamian landowners and residents and the non-Bahamians of mutual respect, accommodation and cooperation in respect of almost all facets of their daily existence in the small community. Crime is almost non existent and happens rarely, if at all. For the most part they sleep with their windows open and doors unlocked. At times many homes are unattended for weeks and unlocked.
The marine environment around Great Guana Cay is healthy and thriving. The settlement, its economy and culture rely on a healthy surrounding marine environment. Throughout the year, thousands of boaters visit the environs of Great Guana Cay where they sometimes live on their sail boats or yachts and interact cooperatively with the local residents. In this respect, both local residents and visitors respect the marine environment and avoid over fishing or in any way directly harming the marine environment.
The settlement of Great Guana Cay represents successful environmentally sustainable development at a pace which the community has been able to accommodate without economic, social, cultural or environmental upheaval.
Residents and the fishermen rely on the pristine marine wetland, reef and water environment. That is why the local economy of Great Guana Cay has for decades continued to thrive. For instance, the local fishermen and visitors do not over fish the conch, lobster and fish stock in and around the Cay and the fishing fleet generally travels great distances to other fishing grounds for any large commercial catch. This has all resulted in a very attractive and desirable community, environment, and sustained a marine and land resource on, in and around Great Guana Cay.
Great Guana Cay, which is a small, isolated cay miles away from the mainland of The Abacos is only seven miles long and one mile wide. The wetlands, mangroves, bone fish flats, and other pristine natural terrestrial and marine environments in and around the Crown Land on Great Guana Cay and private 450 acres which is intended to be developed by the Developers, is extremely important to maintain in a healthy environmental state so that the marine environment and the flora and fauna can continue to provide nature’s bounty for the residents and visitors of Great Guana Cay.
The Association obtained notice of the fact that the Heads of Agreement had been signed, and a copy of that document, through sources other than the government in March 2005 and immediately issued an application for judicial review in the Supreme Court to obtain relief in respect of the Heads of Agreement.
The relief sought
The Association sought declarations that; the so called “National Economic Council” (NEC)_a committee of the Cabinet had no power or authority to enter into the Heads of Agreement and/or to bind the Government and was therefore void; the Heads of Agreement was ultra vires, and void; an injunction prohibiting the Government from selling the Crown land for the purposes of the Development; and an injunction prohibiting the Government from granting any of the rights, concessions and exemptions set out in the Heads of Agreement.
In the alternative , an order requiring the Government to conduct a process of full and proper public consultation prior to the sale of the Crown land or issuing any approvals, permits, rights, concessions and exemptions. It is important to note that for decades, the local residents had been trying to acquire the Crown lands as a local national park because of its very sensitive ecosystems.
Under the terms of the Heads of Agreement the Government purported to grant the following rights and privileges to the Developers.
Leases of Crown land to be used as part of the Development at a price which to this day has not been disclosed. Tax concessions under the Hotels Encouragement Act. The right to import and export all equipment required for the construction and operation of the Development, tax free. Water, sewerage, telecommunications and electricity development rights. Permission for roadways from the Development to the town of Guana Cay, although the Developers were also empowered to build a gate and prevent access to the Development by the local townsfolk. An agreement to facilitate on an accelerated basis the grant of all necessary approvals, permits, agreements, licenses and concessions required by the Developers in connection with the Development, including Investment Board approval, Immigration Act approval, approval for the lay out and development of the site from the Ministry of Public Works, hotel licence approval and approval under the provisions of the Conservation and Protection of the Physical Landscape of the Bahamas Act. Permission to extract and dredge, without charge sand necessary for the Development (the island being so small the Developers need the dredged sand and material to build the golf course). Approvals for the construction and operation of various elements of the infrastructure of the proposed Development, such as seaplane ramps, dredging, construction of docks and a marina, and such like.
The Government also agreed to expedite the issue of permits or approvals by any Minister, government or statutory body authorised by law to grant licences, permits or approvals that are delayed thus purporting to predetermine the applications and to deprive the statutory bodies of the exercise of discretion lawfully vested in them by Parliament and to thereby deny any interested parties in the applications due process and the opportunity to be heard.
The grounds on which the relief was sought
The grounds on which the relief is sought in the case may be divided into four broad areas.
Firstly, the Office of the Prime Minister and the NEC as the Government had no power or authority to enter into the Heads of Agreement, to grant the various approvals, permits, grants and concessions, and bind the various branches of the government of the Bahamas as it purported to do.
Secondly, even if, contrary to the above, the NEC did have such authority to enter into the Heads of Agreement, the decision to enter into the Heads Agreement was in all the circumstances irrational and therefore ultra vires and a nullity.
Thirdly, even if the NEC had the authority to enter into the Heads of Agreement , the entry into the Heads of Agreement in any event constitutes an improper fettering of the governments discretionary powers to grant the various approvals and permits referred to in the Heads of Agreement.
Fourthly, the Heads of Agreement was entered into without any, or any proper, public consultation and involvement in the process. There was a legitimate expectation of public consultation, in particular (but not only) on environmental issues that was not met. Thus, the entry into the Heads of Agreement in the absence of any public consultation was itself procedurally unfair and irrational.
Specific Environmental Issues complained of
The Crown land to be leased to the Developers was to be leased at a nugatory rate. Thus, very valuable and substantial assets were effectively to be given away for free. In fact as the Environmental Impact Assessment (“EIA”) prepared by the Developers own consultant, Kathleen Sullivan-Sealey, and which has allegedly had support from The University of Miami stated, at page 16
“The project is dependent on a transfer of almost 150 acres of Crown Land and Treasury land from the Government of the Bahamas”.
The Development is to be for “high end residential” and vacation use, with a clear intention that it will be marketed for foreign investors and users. The Development is expressed, in many respects, to be a gated and exclusive community cut off from the rest of the Bahamas, including the town of Guana Cay, except insofar as a Bahamian is a paying guest. The EIA noted that the mega development would completely change the community of Guana Cay.
Guana Cay is environmentally and ecologically unique. In particular, the Cay contains marine and reef life that is of global ecological importance. The proposed Development threatens to cause major environmental and ecological damage. In particular, the development of a golf course at the Cay, and the necessary chemicals to be used in tending such a golf course, will leech into the waters and kill the reef and marine life.
The EIA itself makes clear that the environmental impact of the Development will be very significant, negative and detrimental to the environment.
At page 6, under the rubric “Probable Adverse Impacts”, the EIA states
“Short-term and long term environmental impacts will occur with such a large-scale land conversions. The developers and the environmental management team have identified areas of concern:
Loss of local biological diversity and wildlife habitat
Degradation of habitats for some wildlife species
Loss of wetlands
Probability of chronic nutrification (“nutrification”) stress to near shore marine communities.
Some chance of small scale fuel spillage and seeps. “
At page 14, the EIA states that
…the main threats to small island environments from development stem from
Chronic eutrophication or nutrification of the island, leading to a loss of biological diversity and wildlife habitat degradation of the land and in the sea;
Loss of critical habitats for wildlife on and around the island in the land cover conversion; and
Increased sediment run-off and erosion due to large-scale vegetation loss in the construction phase of the development.”
At page 81 the EIA states that “loss and severe alteration of inland mangrove areas will occur with marina construction” and that “it is unlikely that a forest will ever recover from the golf course conversion” (page 90).
Further, and perhaps of even greater concern, it is evident from the terms of the EIA that the Developers regard the Development as something of an environmental experiment; the EIA itself admits (at page 1230 that “The project will be an experiment in sustainability for small island developments”. Page 124 of the EIA states
“It is often very difficult to document the real ecological costs of development until years after the developers have completed the job and left. The long term environmental impacts pose a significant financial burden to residents of the resort community. For example, resort development in the Florida Keys commonly underestimated the flushing rates of residential finger canal systems. Twenty to thirty years after the construction, residents are faced with very expensive mitigation options to improve near shore and canal water quality, with millions of dollars slated for advanced wastewater treatment plants, backfilling canals, and re-landscaping canal margins.”
It is evident that the Government chose to use the people of Guana Cay as guinea pigs in an experiment and as a “case study site for small island development” (p.117 of the EIA) secretly (because the developers were told not to consult before approval from the Office of the Prime Minister), without consultation or even their informed consent. And this is despite noting that
“The project will be an experiment in sustainability for small island developments. Clearly, local residents or Bahamians in general would not appreciate being the site of “experimental” approaches to development of their natural resources, but the aim of the experiment is to provide a truthful documentation of the real ecological costs”.
The decision to enter into the Heads of Agreement failed properly to take into account, that land in the Northern Abacos, in particular in the Cays, is an ever decreasing national, cultural and heritage resource and treasure. In fact, as the EIA itself makes clear, at page 7
“As land becomes increasingly scarce in Abacos (and all of The Bahamas), there needs to be an overall land use plan that sets aside natural areas for tourism, recreation, and conservation of the natural heritage of the country”.
And at page 47
“The rate at which islands are being developed in the Northern Bahamas makes all land conversions from natural vegetation communities significant”.
Further, at page 21 of the EIA the Developers acknowledge
“These smaller islands…are particularly vulnerable to environmental destruction.”
Indeed, at page 21, the EIA states
“Environmental Impacts from the proposed development will be largely a function of habitat loss and destruction inland”.
It goes on to say that, uniquely,
“The property represents the largest intact tract of broad evergreen coppice remaining in Northern Abaco”
At page 29 the EIA quotes sections from studies of the BEST Commission in 2002 on the Biological and Ecological Aspects of the coastal zones which dominate small island ecologies. It states
“The coastal zone dominates small island ecology. The coastal environment is the area where the land meets the sea. The coastal zone includes areas of dunes, beaches, rocks, low cliffs, wetlands, bays and coves, and often refers to both the marine and terrestrial habitats that occur near the shoreline. Because of the effects of current, waves, tidal changes, storms, and hurricanes, the coastal zone is a dynamic environment. The coastal zone includes many diverse and interconnected ecosystems and communities so that any impact on one ecosystem or community can directly affect all others that are connected to it through the life histories of species that travel between them (B.E.S.T. 2002). The coastal zone provides critical habitats and resources for many species, such as seabirds, sea turtles, and marine mammals. Additionally, coastal zones also provide people with benefits, which include hurricane buffer zones, tourist attractions, educational opportunities, and living resources (B.E.S.T. 2002).
Following on from these comments on the sensitivity of coastal zones, the EIA considers the effects of the development on terrestrial wildlife and fauna.
Page 41 of the EIA notes that both species of black and white crabs are found on Guana Cay and it is noted at page 42 of the EIA that
“..the white crab species is probably in decline throughout the country due to habitat loss, harvesting pressure and pollution impacts. Large migrations of crab during the breeding season were reported in the past and only rarely observed today”.
“Land crabs require high quality habitat, especially clean ground water. “Land crabs”, as an ecological group includes the “soldier crab” or “land hermit crab…”
“Since land crabs spend much of their time in burrows, any contaminants (especially anti-mosquito pesticides) can have devastating impacts on land crab populations”.
“Land crabs can serve as critical indicators of environmental quality throughout the project site.”
In commenting on marine fauna at page 43, the EIA notes that there is a mosaic of soft-bottom marine communities dominating the western side of the project site, including Bakers Bay and states that
“Dense to sparce seagrass beds provide critical habitat for finfish and invertebrates, as well as foraging areas for juvenile sea turtles”.
In dealing with the reef environment, the EIA states
“All reef habitats are critical habitats for fisheries target species such as groupers and lobsters”
Page 43 of the EIA notes that the
“Marine environments adjacent to the island provide abundant habitat for all 5…species” [of turtles] and “Nesting adults and hatchlings may potentially use these beaches throughout the year”.
The five species of turtles are Green Turtle, Hawksbill Turtle, Loggerhead Turtle, Kemp’s Ridley and Leatherback. Page 111 of the EIA states
“However, they are being pushed to the brink of extinction by human activities…”
“Human factors in turtle decline include:
Destroying nesting habitat, particularly beaches and dunes
“The Bahamas is a signator to the CITES (International Convention on the trade of endangered species), and thus, there are legal requirements to protect sea turtle habitat and protect turtles from exploitation. Interference with a nesting attempt may constitute a violation of the law, which protects all sea turtles from harm and harassment.”
The EIA concludes the section on marine habitat by saying
“Every effort should be made to protect remaining turtle habitat and near shore quality”.
As to birds, the EIA, at page 44 notes that “further development of the outer cays is of concern in general for protection of seabird habitat and forage areas.” It also notes that the “most endangered bird is the Audubon’s shearwater” which occurs in the Abacos; and notes that “Seabirds are suspected of undergoing a serious decline in populations in The Bahamas.”
The EIA comments on Marine Mammals at page 45. It states that “the Northern Abacos platform margin is an active foraging area for several species of marine mammals”. It notes that
“There are 11 species of whales and dolphins that can occur seasonally in the Great Guana Cay environs.” It further states that
“All coastal development poses a potential threat to whales and dolphins. Increased boat traffic, from recreation boat to barge and cargo ships, can threaten marine mammals. Humans also compete with some species (e.g. spotted and bottlenose dolphins) for fisheries resources.”
At page 58 the EIA, deals with water pollution issues.
“”Water also poses one of the most insidious environmental threats to the near shore marine environments and enclosed waterways of the marina.
“Near shore water quality and marina water quality are critical components of the site-monitoring plan.”
“Water quality is fundamental to both species and natural community distribution in the coastal zone environments, and the impact of water quality degradation is complex. Small islands such as Great Guana Cay place all the upland areas in close proximity to the ocean and mangrove wetlands. Changes in water quality parameters will occur with human alterations of coastal hydrology and runoff patterns.”
“Sewage and wastewater discharge are notorious for long-term changes in tropical marine environments. Human activities on land inevitably increase nutrient inputs to coastal waters from deforestation, wastewater, fertiliser and other sources.”
“We concede the fact that water quality degradation will occur with coastal development and land-cover change.”
“Islands have proven to be very desirable sites for development, but costly to acquire and manage in any protected area status.”
“Tropical islands present a particular challenge in balancing costal development needs and environmental protection for both cultural and ecological reasons. Development poses an especially difficult challenge in the oligotrophic, carbonate environment of the Bahamian archipelago. In the Bahamas, small islands are acutely impacted by development activities, particularly the reclamation of coastal wetlands and pollution discharge to coastal waters. Source activities on land have produced ecological changes in the coastal environment. The most significant changes include:
Changes in coastal species abundance and diversity (including local extirpation),
Changes in near shore natural community structure,
Changes in coastal water quality and
Changes associated with exotic species invasion.
Fragmentation and chronic eutrophication of tropical near shore marine environments. The smaller islands often post the greatest challenge to development, as there are cumulative impacts of the landscape-scale of the archipelago beyond the island itself.”
The EIA also deals with the Marina site. At page 82 it states
“The marina area is particularly sensitive ecologically because of the diversity of vegetation communities that are small in scale and clustered in this area of the island. “
“It is possible to inflict irreparable damage to the environment in very short order with careless practices.”
As to the golf course, the EIA states that it is “a keystone amenity” and at page 84 notes that
“The location of golf courses near the coastline causes concern about nonpoint source (NPS) pollution effects on the water quality of surrounding marine and wetland environments. Of particular interest is the impact of herbicides, fungicides and fertilisers on groundwater quality.”
As to general construction activity, page 86 of the EIA states
“Construction activities, by their nature, create many sources of potential pollutants, especially to near shore marine waters. Accelerated erosion and sedimentation caused by land disturbing activities is one of the major pollution problems caused by construction. Control measures and practices to limit sediment pollution are specified later.”
The EIA goes on to consider the effects of dredging at page 4 of Part 2
“Dredging is extremely destructive to near shore marine environments, and there is already dredging damage in Baker’s Bay associated with the Treasure Island Cruise Ship report. Dredging can damage and destroy seagrass beds, an important fish habitat as well as disrupt the near shore circulation and movement of sand. Dredging can potentially impact the beaches of Baker’s Bay, a critical natural resource to the development as well as local residents.”
The EIA also comments on Eco-Tomes as “unique habitats for both plants and animals” (page 19, Part 2) and at page 18 of Part 2 says
“Ecotomes are described as transitional vegetation communities on the “boundary” of one vegetation type to another. Ecotomes are often small in area, with variable environmental parameters, and provide unique habitats for plant and animal species. An important ecotome in the proposed marina environs is the area between mangrove wetlands and upland broadleaf evergreen forests. These areas are shown in Figures 3.2 and 3.3 and are often areas of high orchid and bromeliad density.”
The EIA also notes that the Ecotome where the proposed dredging is to occur for the Marina contains
(a) “The rare Bahamas dildo cactus…(which) thrives in the xeric ecotome between the inland mangrove wetlands and upland coppice”: and,
The dredging will destroy large areas of dense red mangroves of 13-17 feet (page 27 Part 2). There will be “loss and severe alteration of inland mangrove areas”. The destruction will be a “certainty…with marina construction”. The “changes will be permanent to the landscape” and mangrove will be “reduced in areas” and there will be changes to “adjacent wetland areas”. It goes on to say there will be “loss of habitat in coastal strand areas and broadleaf forest”. As these areas will be used in “waterways and entrance channel”, and there “is no doubt that there will be a loss of wetland and upland vegetation areas”.
Most importantly, at page 30 of Part 2 the EIA emphasises
“The most significant negative impacts from the marina construction would be the partial completion of the project. The overall impacts and positive aspects of the project are only realised with the project is completed and the marina operating. The Bahamas has a history of projects initiated then abandoned throughout the country. The initial environmental destruction of the initial dredging is devastating, with a loss of biological diversity and critical wildlife and fisheries habitats. The absolute “worst case” scenario of an abandoned project site needs to be dealt with in the initial agreements. This has not been previously addressed in the regulatory structure.”
There was no proper public consultation prior to the entering into of the Heads of Agreement
Administrative decisions are required not only to be rational, but also to be taken in a procedural fair manner. It was apparent from the manner in which the decision to enter the Heads of Agreement was taken that there was a complete failure properly to take into account matters which should have been taken into account.
There was no notice of any kind given to the Applicant or any of the landowners or residents of Guana Cay of the entry into the Heads of Agreement. No draft was ever circulated or proposal discussed. The Heads of Agreement were simply entered into without notice to any of the persons to be directly affected by the Development. As a consequence, there was no opportunity to make prior representations to the central government in relation to the proposed Heads of Agreement, nor was there any opportunity to hold a hearing or inquiry. Such conduct is plainly procedurally unfair, and renders the decision to enter into the Heads of Agreement unlawful.
In particular, there was a failure to take into account the views and interests of those living and working at Guana Cay and the surrounding area. The only process of “consultation” undertaken in relation to the proposed development was the holding of three meetings at Guana Cay. Each of these meetings was held with less than 24 hours notice, and the third and final meeting was in any event cancelled without any reason being given. Thus, no proper consultation process was engaged in by the Government, and no attempt was made to take into account the concerns of those most directly affected by the Development.
Further, it is evident that this failure of consultation was a deliberate policy. The EIA at page 48 states:
“without an official approval of the (project) from the Office of the Prime Minister, PPS has not been allowed to publicly present information about the development plans and solicit input from the community”.
And at page 119 of the EIA, it states
“At the time of EIA preparation, [the Developers] have not had the opportunity to begin a public consultation process. Public discussion of the project has been discouraged prior to final project approval through the Office of the Prime Minister.”
In any event, at the few meetings that were held (when very little information was shared or left by the Developers) with those desiring to have the benefit thereof, there was total disapproval of the entire project by those attending the meeting. Thus, notwithstanding that it was evident that those most closely affected by the Development were against it, there was no further attempt at consultation or negotiation to meet those concerns. Rather, the Government has simply entered into the Heads of Agreement without any, or any proper, attempt at consultation.
The PLP Government of Prime Minister Christie deliberately sought to avoid any form of consultation with its own citizenry about the Development and ignored the wishes and concerns of the residents and property owners of Guana Cay.
The Heads of Agreement constituted an improper fettering of discretion
Lastly, the case complained that even if the NEC did have authority to enter into the Heads of Agreement, and confer the various benefits conferred on the Developers under it, in so doing the NEC improperly fettered the discretion of the various Ministers upon whom parliament conferred the discretion to grant the various permits, grants and concessions. The Heads of Agreement therefore constituted an improper fetter on the exercise of those discretions.
The Local Government Aspects of the case
Many of the approvals and permissions purportedly granted by the NEC or the Government under the Heads of Agreement were vested in the District Council or local government boards, and by the heads of Agreement local decision making about what developments do or do not happen in local communities has been usurped by central government. These include the following.
Town Planning permits. Under s. 14(1)(iii) of the Local Government Act, (“the LGA”), the District Council (through appointed boards) exercises the functions of a Town Planning Committee under the provisions of the Town Planning Act, (“the TPA”). These functions include considering, approving or rejecting applications for the erection on, alteration of or change of use of any building or land (s. 7 of the TPA). Thus, the purported grant of the approval to build roads and change the land use contained in the Heads of Agreement was not lawfully given.
Building Permits. Under s. 14 (1)(b) of the LGA, the District Council has and exercises in relation to its district the powers of the Building Control Officer to grant building permits under the provisions of the Buildings Regulations Act (“the BRA”). These functions include the granting or withholding of building permits in respect of all building operations, and under s.4(1) of the BRA, no person is permitted to carry on any building operation save in accordance with a valid building permit granted in this way.
Port Authority Permits. Under s. 14(1)(iii) of the LGA the District Council (through appointed boards) is assigned the powers exercisable by a port authority under the Port Authorities Act, (“the PAA”). This includes the power to define the limits of the harbours and anchorages within its local port area, and various ancillary powers, under s. 13 of the PAA. Thus, the purported grant of approval for a marina and dredging contained in the Heads of Agreement was unlawful.
Hotel Licenses. The District Council also has the powers of the Hotel Licensing Board to grant or refuse hotel licenses under the Hotels Act (see s. 14(1)(a)(iv) of the LGA). Thus, the purported grant of the various tax concessions and exemptions under the HEA in the Heads of Agreement was unlawful.
Current disposition of the case.
The case started in April 2005 against the Government with the Developers also becoming parties. By May 2005, the Supreme Court refused to issue an injunction to stop the destructive physical works that had started the moment the Heads of Agreement had been signed, and on the application of the Developers and the Government, the Supreme Court dismissed the case on the ground that the Association did not have legal standing to be a plaintiff. This was appealed and by November 2005, the Court of Appeal of the Bahamas had reversed the Supreme Court and remitted it back to be tried on its merits and also gave permission to add Mr. Clarke as a plaintiff so that the technical issue of standing did not delay the further determination of the issues. Anxious that the Court of Appeal would issue an injunction to restrain continuing works, the Developers gave an undertaking instead not to engage in any further physical works until judgment had been delivered in the Supreme Court.
By February 2006 the trial had been concluded, but by May 2006, the judge had not yet delivered his ruling, and the Developers applied successfully to the Court of Appeal to be relieved of their undertaking. The Court of Appeal did relieve the Developers and they started work again with a 24/7 vengeance, trying to do as much damage in the shortest possible time so that the courts would be faced with a fait accompli. The Court of Appeal refused the Association leave to appeal to the Privy Council in London and ordered the Association to pay $10,000 in costs to the Developers. The Developers threatened to liquidate the Association if they did not pay the costs.
The Association appealed directly to the Privy Council in London which issued an injunction stopping the Developers from continuing with their physical destruction in cutting down the forests, burning the forests, bulldozing roads, dredging the marina and construction. This remained in place until October 2006 when judgment was finally delivered.
The Supreme Court dismissed the case entirely and ordered the Association to pay the Government and Developers costs for four lawyers. The Association has appealed that decision and has also applied for an injunction from the Court of Appeal.
In the meantime, in a bid to block the appeal, the Developers applied and the Court of Appeal ordered the Association to pay $100,000 by way of securing the Developers’ costs of the appeal. The appeal is set to be heard on May 17, 2007, but will be dismissed if the $100,000 is not paid before then. In the meantime, the Association is desperately soliciting funds. This security for costs procedure effectively means that in the Bahamas, access to justice is only available if a litigant has money. This will also be appealed to the Privy Council as unconstitutional.
Overview of the Environmental Regulatory Regime in the Bahamas
The main statutory vehicle for the regulation of environmental matters in the Bahamas currently in place is the Environmental Health Services Act (“the EHS Act”). However, it has been the government’s policy over the last 15 years to use an advisory board called the Bahamas Environmental Science and Technology Commission (BEST) as a de facto regulator, and this is now the main mechanism through which the Government seeks to regulate environmental matters.
This paper will explain the legal role and position of the BEST Commission and the extent of its powers. It will then go on to set out the provisions of the EHS Act.
The BEST Commission’s legal status
“ to serve as The Bahamas national focal point and official point of contact for all international organizations on matters relating to the environment, science and technology;
to coordinate matters relating to International Convention Treaties, Protocols and agreements relating to the environment to which The Bahamas is, or will become, a signatory;
to coordinate the national effort:
i. To protect, conserve and responsibly manage the environmental resources of The Bahamas;
ii. To develop a National Conservation Sustainable Development Strategy and related Action Plans;
iii. To identify suitable scientific and technological advances that can contribute to the development of The Bahamas;
iv. To propose legislation to enforce the provisions of the National Conservation Plan environmental policies;
v. To identify and make application for technical assistance and financial grants to meet the Commission's responsibilities.
to represent the Government of the Commonwealth of The Bahamas in discussions and negotiations with representatives of regional and international organizations and foreign governments, where appropriate, on matters relating to the environment, science or technology;
to serve as a forum which will encourage open dialogue, thereby facilitating the exchange of information and improved communication among the Government agencies and private sector entities responsible for, or actively with matters relating to the environment, science and technology:
to process administrative arrangements relative to The Bahamas' representation at international meetings and training seminars;
to keep Government informed of the progress of the Commission's work progress and the outcome of its deliberations with International Organizations;
to explain and publicize the policies and activities of The Bahamas Government in the areas of the environment, science and technology;
to advise Government in a timely fashion on the environmental impact of various development proposals submitted for the Commission's review;
to prepare papers on various issues to assist in national policy formation.
to conduct site visits for projects under EIA review.”
It is important to emphasize that the BEST Commission has no formal legal standing under Bahamian law at all. There is no statutory provision which contemplates the functioning of the Commission; although there has been for over ten years a draft Environmental Planning and Protection Bill which envisages such a body operating. Successive Bahamian Government administrations, both PLP and FNM have failed, refused and or neglected to bring the Bill into law. Further, there has been no formal exercise of executive power to confer any legal authority on the Commission.
The Commission is, thus, merely an ad hoc body with no formal legal standing, the function of which is merely to advise the various governmental bodies which do have responsibility over environmental matters. Although the government is entitled to ask the Commission to assist it through the giving of advice as regards environmental matters, to the extent that any branch of the executive in effect confers actual decision-making authority on the Commission, the conferral of such authority would be open to challenge as a breach of the executive’s public duties not improperly to delegate authority, or fetter its discretion.
In summary, then, the Commission has no formal legal standing under Bahamian law, and has no legal authority to make or enforce environmental decision making. Yet the Office of the Prime Minister, the NEC and Cabinet perpetuate a pretence of its existence and regulatory role by including it as an oversight body in Heads of Agreements. Whilst the government has in recent years seemed eager to place the Commission at the centre of its environmental regulatory regime, the Commission’s position is (and unless and until the law is changed, can only be) an informal one.
What, then, is the applicable environmental regulatory regime in the Bahamas? As mentioned above, it is primarily contained in the EHS Act.
The Environmental Health Services Act
The present environmental regulatory regime in the Bahamas centres on the Environmental Health Services Act, (the “EHS Act”). This Act recognizes the existence of the Department of Environmental Health Services (not the BEST Commission) and the role of the Minister of Health in supervising environmental regulation. It is the primary mechanism presently in force in Bahamian law for ensuring compliance with environmental health standards.
The responsibilities of the Minister are set out at s. 3 of the Act as follows:
“3. (1) The Minister is charged with the responsibility of promoting and protecting the public health and providing for and ensuring the conservation and maintenance of the environment.
(2) In particular, it is the responsibility of the Minister to regulate, monitor and control the actual and likely contamination or pollution of the environment from any source, ensure compliance in all matters and activities relating thereto and establish minimum standards required for a clean, healthy and aesthetically pleasing environment.”
As can be seen from this provision, the focus of the EHS Act is primarily on the prevention of contamination and pollution to the environment and, as the title to the Act itself suggests, the primary purpose of the EHS Act is to guard against risks to environmental health, rather than to set out a comprehensive code for the regulation of all activities that might impact on the environment. Thus the scope of the EHS Act is substantially narrower than that of the proposed Environmental Planning and Protection Act.
The EHS Act contemplates (at s. 4) that the Minister will be assisted in the discharge of his duties under the Act by the Department of Environmental Health, which shall have a Director “and such other officers as may be necessary for the efficient working of the Department.” The Minister is empowered by s. 4(8) to delegate his functions under the Act to the Department, other than his power to make regulations under s. 9. The functions of the Department are set out in detail at s. 5 of the EHS Act, and include the monitoring of environmental health issues, the conduct of research, and the investigation of environmental health problems and institution of remedies to prevent environmental pollution.
Section 6 of the EHS Act establishes an Environmental Health Board, which is to be responsible for advising the Minister as to any matters which the Minister refers to the Board relating to environmental health. Again, this is not to be confused with the BEST Commission, which is nowhere mentioned in the Act.
The remainder of the EHS Act may be divided into two areas. The first (contained in Part III of the Act) sets out a number of matters detrimental to environmental health which are prohibited, and in part provides for the licensing of activities which give rise to a risk of such matters occurring. The second area (contained in Part IV of the Act) allows the Minister to make a series of regulations “for giving effect to and carrying out the purpose, intention and provisions of” the Act.
Turning first to the prohibitions contained in Part III of the Act, that Part prohibits the following activities: the discharge into the environment of any contaminant or pollutant, other than in accordance with the Act (s. 7); the keeping of unsanitary premises, or the allowing of any nuisance to emanate from any premises (s. 9); the sheltering of animals in a manner other than as prescribed in regulations (s. 10); the handling of food and drink in a manner other than in accordance with regulations (s. 11); the dealing with solid or liquid waste other than in accordance with regulations (s. 12); and the carrying on of offensive trades or businesses other than in accordance with regulations (s. 13).
The Act also imposes a requirement on businesses where the emission of a pollutant is a possibility to obtain regulatory approval from the Minister for certain of their operations. These requirements are set out in s. 8 of the Act, as follows:
“8. (1) No person shall-
(a) construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may emit or discharge, or from which may be emitted or discharged, a contaminant or pollutant into any part of the environment; or
(b) carry on or alter a process or rate of production with the result that a contaminant or pollutant may be emitted or discharged into any part of the environment; or
(c) carry on or alter a process or rate of production with the result that the rate, or manner of emission or discharge of a contaminant or pollutant into any part of the environment may be altered, unless he has first obtained a certificate of approval issued in accordance with this section by the Director [of Environmental Health Services] approving the methods or devices or both to be employed to control or prevent the emission or discharge of any contaminant or pollutant into any part of the environment.”
The words “contaminant or pollutant” are defined in s. 2(1) of the EHS Act as follows:
"contaminant or pollutant" means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from the activities of man which may-
(i) impair the quality of the natural environment for any use that can be made of it;
(ii) cause injury or damage to property or to plant or animal life;
(iii) cause harm or material discomfort to any person;
(iv) adversely affect the health or impair the safety of any person; or
(v) render any property or plant or animal life unfit for use by man;”
The mechanism of obtaining such a certificate is set out in further detail in s.8(2) onwards of the EHS Act as follows:
“ (2) The Director may require an applicant for a certificate of approval under subsection (1) to submit such plans, specifications and other information as may be prescribed and to carry out and report on any tests or experiments relating to the plant, structure, equipment, apparatus, mechanism or thing or to the process, rate of production, methods and devices to be employed to control or prevent the emission or discharge of any contaminant or pollutant into any part of the environment.
(3) The Director shall, on being satisfied that the methods or devices or both to be used to control or prevent the emission or discharge of any contaminant or pollutant into any part of the environment are adequate to prevent or control such emissions or discharges, grant a certificate of approval or if not so satisfied, shall refuse to grant the certificate.
(4) A certificate of approval shall be subject to such conditions as the Director may impose.
(5) The Director may from time to time vary in such manner as he deems fit the conditions contained in a certificate of approval.
(6) Where it appears to the Director that the holder of a certificate of approval has failed to comply with the conditions subject to which the certificate was granted he may revoke the certificate.
(7) A person who is dissatisfied with-
(a) the refusal of the Director to issue a certificate of approval; or
(b) the terms and conditions attached to a certificate of approval; or
(c) the variation of any terms and conditions contained in a certificate of approval; or
(d) the revocation of a certificate of approval, may appeal to the Minister within fourteen days of being notified of such decision.”
Thus, the Director is mandated by s. 8(3) to grant a certificate of approval upon being satisfied that “the methods or devices or both to be used to control or prevent the emission or discharge of any contaminant or pollutant into any part of the environment are adequate to prevent or control such emissions or discharges”.
The Act also contains certain provisions (at s. 14) requiring the notification of the Director of Environmental Health in the event that the emission of a pollutant occurs. The Director is also given certain powers to intervene to prevent the emission of pollutants and such like (s. 15), and to require a potential polluter to maintain equipment to alleviate any possible emission (s.16).
Turning now to the provisions allowing for regulations, these are contained in s. 17 of the EHS Act. The range of matters upon which the Act provides the Minister may lawfully make regulations is broad, and includes such things as “the definition, prevention and abatement of nuisances on any premises” (s. 17. (1)(a)), “the regulation of the keeping of animals and poultry” (s17 (1)(b)), “the prevention of the sale or distribution of any item of food or drink which is unwholesome or otherwise unfit for human consumption” (s. 17(1)(d)), and “the setting of standards for and the regulation and control of public and private liquid waste disposal systems and works” (s. 17(1)(f)).
Part V of the EHS Act contains provisions allowing for the enforcement of the Act and regulations made under it, including conferring upon the Director of Environmental Health and other authorized persons the power to enter premises for the purpose of enforcing compliance to the Act. Part VI establishes that a breach of the provisions of the Act is an offence, and sets out the penalties to be imposed in respect thereof. Section 21 provides that “where an offence under this Act or the regulations has been committed by a body corporate and is proved to have been with the consent or connivance of, or to be attributable to any neglect or default on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, such director, manager, secretary or other officer as well as the body corporate is guilty of that offence and is liable to the penalty prescribed by this Act for that offence.”
The EHS Act thus sets out a fairly substantial regulatory regime as regards environmental health matters in the Bahamas, and allows for that regime to be substantially expanded through the lawful making of regulations by the Minister. It is likely to have a bearing on any industrial activity in the Bahamas, and a substantial range of non-industrial commercial activities as well. Unfortunately it is not used as a regulatory agency in respect of developments, particularly those under the Heads of Agreements.
The Way Forward
The quality of life for Bahamians and generations to come, and the marketability of the Bahamas as a tourist or indeed an eco tourist destination is at issue.
Just as real estate, coastal, marina and tourism developments are a fact of future life economically in The Bahamas; so too must there be a recognition that the ability to leverage and capitalize on such opportunities rests upon preserving and protecting the cultures, heritage , land and marine environments in the Family Islands. It must also benefit both the citizens of the Bahamas and the developers at every stage.
When a development occurs in Florida it is good all round. Development occurs within a development paradigm. With each large development the county receives taxes; the residents get new schools, fire stations rescue and medical facilities. Parks and recreation grounds, new public infrastructure, shops, bars, restaurants and churches spring up. Utility service is expanded to meet the increased demand. It is a fabric of growth. It builds communities. In the Bahamas it is the opposite.
The Anchor Projects are relieved of all taxes. They are secluded and do not tie into any community. They are exclusive. They are gated. Huge berms are built to exclude the “natives”. They are owned and managed by foreigners that have no immigration status (because of a counterproductive immigration policy that militates against involvement and “buy in” by foreigners thus preventing them from being stakeholder in the communities). These developers and eventual “homeowners” live in splendid isolation. Thus they do not care whether the schools are good or bad, whether there is or is not a local fire station, whether the postal facilities do or do not work, and whether or not the hospital is properly staffed and equipped. Thousands of “investors” fly or boat in and out of the Bahamas without an inkling of the social discrimination and economic prejudice which these Anchor Projects are causing.
It is imperative for Bahamian legislators, policy makers and the Bahamian people to develop a national, political, educational, social and cultural commitment to jealously guarding, preserving, protecting and improving the environment and ensuring that the new development paradigm for the Bahamas benefits Bahamian communities and that developers help to contribute to the natural growth of communities in the Bahamas, not create separate enclaves where Bahamians are not welcome, cannot afford to be there and are relegated to maids and yard boys.
Protecting and promoting the environment and integration of foreign developer and homeowners as persons who have a stake in the community because they “belong” and are not “separate” will provide resources and a social and economic fabric for future generations of Bahamians and their guests and invited citizens to enjoy environmentally sustainable developments and to provide a quality of life which so many Bahamians see slipping away, as, one by one, the unique Family Island cultures evaporate, coastlands are cannibalized; wetlands, mangroves and marshes are dredged away and forests bulldozed or cut down, burned or shredded into pulpwood.
The Bahamas is in desperate of a national cultural and environmental preservation ethic.
It is imperative that the new FNM Government should not simply talk about environmental legislation. It must fulfill its pre election promise to enact environmental protection legislation for the land, air and marine environments, and create an environmental protection agency with teeth; with environmental marshals and an environmental court. It should have policing duties and obligations to take action and protect the environment.
The Local Government Act should be strengthened to ensure that local rights in the Family Islands are protected and that local communities do have an effective role to play in visioning their communities.
Further, local communities which are subjected to or wish to embrace environmentally sustainable development should be able to devise plans with developers which ensure benefits to the local communities. They are stakeholders and should be treated as such.
The challenge of developments starting but never finishing may also perhaps be addressed by setting up performance bonds or decommissioning guarantees before one stone is turned.
Decentralization of assumed central government powers is essential so that Cabinet does not dictate interference in commerce and impose developments on unsuspecting Family Island communities through Heads of Agreements.
Nassau, the capital needs to recognize that all of the Islands form the Commonwealth of The Bahamas, and that the Family Islands are not mere colonial appendages to be consumed.
There is a great outcry against the great giveaway for no apparent benefit, of Crown Land. Preference ought to be given to local communities to capitalize on such lands, not give it away to foreign developments for little return. Joint ventures between Bahamians and the developer should be mandated.
As the Bahamas becomes more and more of a playground for the rich and famous and 5 million plus tourists (which itself has horrible environmental impacts), the Government should stop giving away such comprehensive tax concessions and develop national and local land use development plans. This will in fact make it easier for development to occur, and provide desperately needed taxes for properly governing the country.
The Immigration laws should be reformed to be a positive development tool. The policy should encourage, cause, or indeed require, developers and foreign purchasers of land and homes in the Bahamas, and their families to invest in the Bahamian economy by being part of it, investing in the culture, being part of a local community, caring about the environment, investing in the society and contributing to its long term growth. Bahamians and the environment will benefit from this, because it will encourage investors who will care, and not simply investors who are here to use abuse and take away because they are not allowed to be part of the community. The economy will grow. There will be more opportunities for Bahamians. The more the developers and their buyers invest and integrate into the communities and permanently invest in our Nation, the more social mutual social respect will develop and the more opportunities there will be for Bahamians.
The sad truth is that in Great Guana Cay, this has been going on for decades, at a comfortable pace. Now, with a $500 Million Anchor Project, the quaint, idyllic little Family Island community is disappearing with hundreds of imported workers from abroad and large construction and dredging companies such as American bridge invading with their fast paced hustle and bustle to quickly build a hotel, golf course, marina, condominiums and houses. Instant, exclusive community!!!! Oh what a dream…..or nightmare to the people and environment of that little paradise which once was.
Thankfully however, there is hope. It is within the power of the new FNM government that has traditionally been more protective of the environment and promotive of local rights to put a halt to further devastation at Bimini and Guana Cay.
It is also fortunate that most of the other Anchor Projects that have been announced over the last few years by the former PLP administration have not yet broken ground and the FNM administration can prevent further destruction.
Indeed as the property boom in the United States has slowed down, the FNM administration may find that the many promises made by developers to the PLP administration to “invest” billions of dollars simply evaporates. The irony is that without exception the boast of billions of dollars of investments was ethereal smoke and mirrors anyway, as the developers usually only planned or had the capacity to invest seed money to start and would have relied heavily on leveraging Bahamian land for sale.
It is likely that many of the Anchor projects will not materialize. And therein lays the mischief in granting omnibus Heads of Agreements where the developers, no sooner than the ink is dry on the paper, crank up their bulldozers, scrap every piece of vegetation off the land, and dredge out all the mangroves. As has happened many times in foreign developments in the Bahamas; they start and rarely finish, and the locals are left with desecrated environments and eyesores of dilapidated developments.
Developers should be required to post performance bonds and developments should only be permitted incrementally and proportionately to what the community can handle and keep pace with in local human resources. Quality instead of quantity should be the mantra. Bigger is rarely better!
Lastly, the environment, investment and concession laws should apply equally to Bahamians and foreigners and thereby get rid of the awful reality of rank discrimination in so many fields which infects the Bahamas.