RDA is elated at the Judgment by the Court of Appeal. This Ruling vindicates the Guana Cay battle cry “respect the locals”. Hence, from now on, no Central Government authority, Office of the Prime Minister, Nassau public authorities, Town Council, District Council or other public authority can make any decisions affecting residents without taking into account how it might affect a local resident. This Ruling emphasizes that people have rights and they must be respected as part of the process by public authorities in making decisions.
This case between RDA and BEC is part of a continuing series of cases which first started with Save Guana Cay against Bakers Bay in which challenges are continuing to be made against Central Government planning which does not take into account local issues
This case is particularly important for the Abacos which consists of many different islands, with many different communities which have different circumstances applying to them. In addition, this case gives a death blow to the unfortunate “anchor project policy” of the PLP commenced years ago. It also spells the “death knell” to the FNM’s dictatorial Office of the Prime Minister approach to telling the Out Islands paternalistically what is or is not good for them.
This case began when Matt McCoy started his YouTube videos of the potential harmful environmental effects of BEC building a power plant using Bunker C oil at the doorstep of National Parks and intended National Parks. It gained momentum with the creation of “Responsible Development for Abaco” in which concerned local citizens banded together and started a petition to stop the power plant using Bunker C oil.
Unfortunately, by the time the FNM Government made public the location of the power plant, it was impossible to stop it because construction had already secretly started in Wilson City.
The next step was RDA suing BEC and all public authorities involved to try and stop the ongoing construction of the power plant until they had been given an opportunity to be heard by all public authorities on issues such as safety, health, environment, emissions control and other matters which affected local residents. RDA, Friends of the Environment, Matt McCoy and others made extensive representations to various Government authorities and a petition was launched and signed by thousands of Abaconians expressing their outrage at the construction of the plant in an environmentally sensitive area and the archaic use of Bunker C fuel at a new power plant instead of looking at more sustainable generators of power, such as wind, wave action, solar panels, or less toxic fuel than Bunker C.
RDA and Matt McCoy launched this action which unfortunately took some time to be heard. It was eventually tried by Senior Justice Longley in Freeport who dismissed the case on the basis that Matt McCoy and RDA were too late in bringing their challenge because, by a technicality of law, a challenge must be brought within six months of the public authority’s decision and the Judge decided that the relevant decision was made in December 2007 which was the date that BEC had entered into the contract with a German company called Man Diesel Canada Ltd. to build the power plant. This was frustrating to RDA since it was not publicly known that BEC had entered into the contract.
This fact was not disclosed until the trial in December 2010. In fact, it was not until the historic town meeting in Marsh Harbor in September 10, 2009 that Fred Gottlieb disclosed to the residents of Abaco that a “decision” had been made in 2005 by the FNM following on the footsteps of a decision by the PLP to build a power plant in Abaco originally near Snake Cay but subsequently changed by the FNM to Wilson City to accommodate private, foreign real estate development.
In fact, although Friends of the Environment had originally opposed Snake Cay when the decision was made to change to Wilson City, Friends of the Environment and others then vigorously opposed Wilson City because of its more environmentally sensitive location and suggested that since the Government was going to build a waste disposal plant, a large dock and other potential industrial developments in the Snake Cay area it was probably more sensible to have the power plant built at Snake Cay rather than at Wilson City but alas, no one would listen and the FNM steamrollered into Wilson City bulldozing old mahogany forests, caving in sensitive and environmentally unique blue holes, tearing down huge swathes of forest all the way down along the water’s edge to building a docking facility to barge in fuel boats through the National Park and destroying coral reefs.
RDA and Matt McCoy sued to try and stop the continuing destruction of Wilson City, to stop the use of Bunker C and to set aside all the permits which had been given by the Building Department, the Docks Committee, the Office of the Prime Minister, the District Council and other authorities. These permits were retroactively applied for in September 2009 and even though the public had expressed outrage at not being consulted at the town meeting the Government and BEC applied for and issued the permits and then proudly announced that they were continuing with the construction because they now had the permits, working on the basis that “might is right” and letting the Abaco public know that Central Government did not give a damn about the views of anyone in Abaco.
During the court hearings, BEC abandoned Bunker C fuel and the decision to build a docking facility and said they were going to use a higher grade of diesel and that they would truck the fuel in from Marsh Harbour. They said to the Judge that these changes were not a result of RDA’s Supreme Court case and tried to downplay the huge public rebellion at their outrageous decision making.
After losing the case in the Supreme Court, McCoy and RDA appealed to the Court of Appeal which on Monday issued a Judgment which completely vindicated their claims.
The Court of Appeal said that local people have rights. All Government authorities, whether local or central, must operate transparently.
In considering applications for any kind of development Environmental Impact Assessments were necessary. Further, people potentially affected by any development had the right to be consulted before a decision was made.
The Court of Appeal held that it was too late to stop the power plant at Wilson City but that, in all future operations, in any changes to the plant, in any provisional permits issued, and in operation generally, all public authorities and BEC were legally obliged to consult with people affected and to take their views into consideration before making a decision.
This Judgment follows the arguments advanced in the Guana Cay cases to demand that all Government authorities respect the rights of locals before they make decisions and to take their views into consideration.
The Court also ordered that BEC, and all the public authorities sued, pay 75% of McCoy and RDA’s costs at the Supreme Court and Court of Appeal.
