UKPC 44
Privy Council Appeal No 0013 of 2009
Save Guana Cay Reef Association Ltd and others v
The Queen and others
From the Court of Appeal, Bahamas
JUDGMENT DELIVERED ON
17 November 2009
Heard on 7, 8, and 9 July 2009
(Instructed by Simons Muirhead & Burton)
James Dingemans QC
(Instructed by Charles Russell LLP)
Hugh Small QC
(Instructed by Latham & Watkins)
"The Bahamas is a country of 701 islands, cays and reefs which stretches in an arc from approximately 58 miles southeast of the east coast of Florida in the United States of America to just north of Hispaniola. It is separated from Florida by the Gulf Stream and from the Greater Antilles by the Old Bahama Channel. None of the islands is mountainous, the highest point being just over 200 ft above sea level, it has no rivers and its natural fresh water reserves consist of 'lenses' of fresh water which sit in the all pervasive salt water that surrounds and sometimes permeates the islands. Geologically, the islands are mainly composed of soft, porous limestone, the centuries-old accumulated result of minute coral. Overall, The Bahamas is approximately the size of the State of California in the United States with the difference that the greater part of this country consists of shallow waters and banks—the Great Bahama Bank and the Little Bahama Bank.
Within the larger archipelago that is The Bahamas, are other smaller archipelagos like Andros, Abaco, Exuma and Ragged Island to name just four. Abaco consists of approximately 265 islands and cays, among which is [the Cay] where the Developers decided to carry out some real estate developments in order to create a special kind of resort.
In most, if not all, of the islands in The Bahamas, there are barrier coral reefs ringing them; parts of those coral reefs, if undisturbed and unpolluted, eventually become islands with their own 'barrier' reefs."
"The ecology of The Bahamas is said to be 'fragile' and with the concerns regularly mentioned in the national and international press about the 'bleaching' and possible deaths of those reefs due to 'global warming' coupled with environmental degradation which may result from indiscriminate development of the islands, it is quite understandable that thinking persons would be concerned to protect, as far as humanly possible, their environment, not only for themselves, but also for their descendants who may have to inhabit these islands in the future.
Further, it is not unknown for damage to be done to coral reefs by the use of substances like chlorine bleach and other chemicals inimical to the plant life in the waters surrounding such islands which in turn may lead to the eventual destruction of the islands themselves—compare the south sea island that is sinking because the surrounding reef is 'dead'."
"Second, the Hope Town District was established as a Schedule Two District based on the Bahamian population numbers. Under the mandates for a Schedule Two District, the Councillors of this district are unable to appoint Boards, such as Town Planning, Port Authority, Licensing etc, therefore all of the oversight and responsibility for the functions of these Boards falls solely to the seven elected members of the District Council. May we respectfully remind you that the elected members of the District Council, are essentially serving in a volunteer, community service position. They all have full-time employment in addition to their District Council service and often find it difficult to make the time to fulfil all their assigned functions.
Third, the Townships of Hope Town, Man-O-War and Great Guana Cay are the fastest growing communities in the country and they are unique in their population demographics. They may be considered small with regard to the number of Bahamians, but in all three cases there are large numbers of foreign property owners. It has been said that they are non-Bahamians and therefore don't count. We must face the fact that they do count and their dollars are the primary fuel for the economy of these cays. Dealing with these foreign property owners and their interaction with the native Bahamian population presents a number of challenges which don't occur to such a degree throughout most of the rest of the country. This foreign segment of our population must be treated with respect and efficiently in a timely manner. If we do not recognise the importance of these people it will have a devastating effect upon the income of our local Bahamians who we are elected to represent.
Now after nearly six years of functioning as its own District, it is apparent that the Hope Town District as it exists today, is simply not working."
The Crown and Treasury lands
Statutory environmental protection
The NEC and the BEST Commission
"Its mandate was later broadened to include review of major economic proposals to determine their acceptability and their consistency with general economic and social objectives, to consider the desirability of sub-divisions of land throughout The Bahamas and to keep under constant review economic policies."
The membership of the NEC coincides with membership of the Cabinet (although it is contemplated that the NEC might be reduced in numbers). Mr Major deposed that he signed the Heads of Agreement "in the dual capacity of Secretary to the Cabinet and Secretary to the NEC, on behalf of the Government of The Bahamas, recording the Government's agreement to the project."
Summary of the facts
The Heads of Agreement
"(J) The Government, being satisfied that the Development will impact positively and significantly upon the economy of the said Commonwealth and the Island of Abaco in particular, has approved in principle the development upon the terms and conditions hereinafter appearing and the entering into of [various leases]".
"The Government hereby agrees in principle with the Development described herein and set out in the General Development Plan attached hereto subject to the requisite approvals of the relevant government agencies and as herein provided."
"The Government will facilitate on an accelerated basis all necessary approvals, permits, agreements, licences and concessions hereinbefore and hereinafter requested and required by the Developers and each of them as may be appropriate in connection with the completion, operation and maintenance of the Development including (but not limited to) the following . . ."
There followed eight particular references and one general reference to approvals and licences from various bodies, including the Investments Boards, the Ministry of Public Works and "the applicable government agency with respect to the existence and location of the moorings, docks and marinas." The remaining provisions of the Heads of Agreement do not call for special mention.
The course of the litigation
Fundamental points bearing on the issues
"The inclusive and democratic procedure . . . in which the public, however misguided or wrong-headed its views may be, is given an opportunity to express its opinion on the environmental issues."
"It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council Ex p Gunning (1985) 84 LGR 168."
The issues: consultation
"The residents would like:
(1) One hundred and twelve feet of beach space and adequate access.(2) Joe's Creek as part of their heritage if dredged the residents will lose their heritage.(3) Proper garbage collection/disposal facilities.(4) The retention of Crown land.(5) Full Bahamian participation in the construction of this project.
Administrator's conclusion of the residents' main concerns:
(1) The issue of the Government divestment of the remaining Crown land and Government land.(2) The issue of the environmental impact that construction will have as a result of the marina construction.(3) The issue of the geological impact on the small piece of land.(4) The impact it will have because of fertilisation for the use of the golf course.(5) The social and moral impact as it relates to the infrastructure to accommodate persons coming to live and to work and all the other contingencies.
The general consensus was that of opposition to the project.Some were in favour of a scaled down version eliminating the marina."
"Mr Williams emphasised that the project was only at its infancy stage and that he had been asked by the Government to tell the people of Great Guana Cay about the project and to just get their views on it.
Administrator Williams explained that there would be further follow-up meetings in which the project would be detailed and opportunities provided to the residents of Great Guana Cay to give their input.
He also said that more information would be shared with them. He stated that the developers and governmental agencies would have follow-up meetings. He also emphasised that this meeting was just an introduction to tell the people that there was an intention to develop a project there in Great Guana Cay.
The conclusion of that meeting was that the Government and the Developers would be coming to Great Guana Cay to conduct dialogue and meetings with the public."
In particular, Mr William Sweeting deposed that the Minister of Financial Services and Investments, the Hon Allyson Maynard-Gibson, proposed to have a meeting with the District Council and a number of residents of the Cay.
"indicating that while he like many others would have wanted to see a less-developed and more pristine Great Guana Cay than what existed today, he also knew that the depressed economic state of the Cay had motivated many locals to move to New Providence in search of work. He recognised that with the proliferation of second homes came the impetus for repopulation of the Cay by Bahamians with historic roots."
Finally Dr Bethel referred to the EIA being reviewed by independent experts. The meeting occupied three hours.
The issues: the Heads of Agreement
The issues: irrationality and fettering
The issues: discovery and cross-examination
The issues: apparent bias
"Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time."
"The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility [, or a real danger, the two being the same,] that the tribunal was biased." (Brackets added)
Lord Hope's formulation (para 103) omitted the words in square brackets.