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Save Guana Cay Reef Association Ltd and Others v. the Queen and Others

An appeal was lodged before the Privy Council against the Court of Appeal of Bahamas upholding the approval by the Government of the Bahamas, in principle, of a proposed large-scale development in the north-west part of Great Guana Cay, both on land and in the sea, with far-reaching economic, social and environmental consequences. One of the main issues submitted for discussion was the lack of sufficient public participation with the residents of the Cay. Two public meetings were held. However, the claimants argued that a promise of holding further follow-up meetings had been made by authorities thereat and had not been met. Furthermore, the effect of the Heads Agreement entered into between the Government and the six project developers was questioned on the grounds of irrationality and fettering of discretion. 


[31] [...] obtaining an EIA for submission to the BEST Commission has become standard practice, but the primary purpose is to enable it to receive expert scrutiny by the Commission itself. The purpose is not (as with EIAs under European Union legislation, or the statutory provisions in force in Belize: see Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 38) to inform public consultation. It might be preferable if that were a statutory requirement, but it is not. At present it is the BEST Commission that is expected to act as a watchdog in the public interest. The law of the Bahamas does not at present require (in the well-known words of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 615), “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.”

[32] That is not to say that the residents of the Cay had no expectation of any sort of public consultation as to the multi-million dollar investment that was going to transform their island. All the courts below accepted that the public had a legitimate expectation of consultation arising out of official statements recognising the need to take account of the residents’ concerns and wishes. But taking their concerns and wishes into account does not of course mean that the plans for the development must necessarily be changed, if only because the residents’ views were by no means single-minded (Ganpatsingh JA mentioned in his judgment his perception that “the community is bitterly divided between those who do and those who do not oppose the development”).

[33] If there is a legitimate expectation of consultation, it must be a proper consultation. Both sides referred in argument to the well-known observations of Lord Woolf MR in R v North and East Devon Health Authority Ex p Coughlan [2001] QB 213, 258 [...]

[35] The courts below were unanimous that there was a legitimate expectation of consultation, but that it had been adequately satisfied, primarily by the two public meetings held at the schoolhouse at the Cay settlement on 9 February 2004 and 20 August 2004. Minutes were taken of both meetings and the minutes are in evidence.

[43] These points are not without some force. It is unfortunate that the Minister did not make good her promise of a meeting. There is also some force in the point about informed consultation, but by the time of the second meeting the public seems to have been given a reasonably full picture of what was proposed, with copies of documents being on offer, and the main author of the EIA being present at the meeting. In the event the objectors seem to have obtained a copy of the EIA through the assistance of Dr Robert Silk, who obtained it from Dr Sullivan-Sealey herself, and regarded it as a good piece of work. The failure to publish the EIA earlier would have been more serious had it been addressed primarily to the general public (as with the European model of an EIA) rather than to the BEST Commission as an expert body. No doubt the process of consultation (like almost any other consultation) could have been improved on, but their Lordships consider that these imperfections fall far short of what would be needed to lead them to differ from the unanimous view of the courts below, with their experience of local conditions.


The appeal was dismissed as the Council considered that the imperfections of the consultation process did not render it inadequate and that the public had been given a reasonably full picture of what was proposed. Moreover, the signing of the Heads Agreement did not amount to the excessive exercise of official powers by the Government and involved no improper fettering of discretion.