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The Queen v. Gray Et Al

An environmental non-governmental organization challenged the construction and operation of a cruise passenger destination which included a captive marine mammal facility at Blackbeard’s Cay off the Northern Coast of New Providence. It claimed that the preliminary support of application for site plan approval in relation to the facility was procedurally unfair because, inter alia, an Environmental Impact Statement had not been submitted and no public hearing had been held before granting the preliminary support. In addition, the facility was not compliant with the marine mammal protection legislation and the importation of dolphins was unlawful. The developer was allowed to carry out the construction and operate the captive marine mammal facility without a Premises License. 

Destacados

[6] The issue of standing was also raised at the ex parte hearing and was also resolved in the applicant's favour. The judicial review arena is an ever expanding one, and in the instant case the applicant is one of few entities that have a direct interest in the welfare of dolphins. I adopt the view of Longley, J. on standing at paragraphs 150 through 154 in The Queen et al v. Responsible Development for Abaco (RDA) Ltd et al 2009/PUB/jrv/FP/00013.
[7] The case of Onus v. Alcoa of Australia Ltd. [1981] 149 C.L.R. 27 offered in support of the respondents' position on standing is obviously an action between a private person and a limited company brought on the basis that the company was breaking the law. There was no element of public law in that case, the parties had no relationship. In the instant case the public law element is glaring as issues of the use of public land and public seabed came into play as well as the permissions granted by the executive to a private company to deal with an endangered species of mammals, all of which affect private citizens. In the circumstances the instant case is distinguishable from Onus.
[39] In addition to the above the applicant has submitted that due to the nature of the development and its potential impact on the immediate environment Section 14 of the PSA requires an Environmental Impact Statement to be submitted to the Department as part of the development. Additionally section 14(3)(d) of the PSA provides that the Minister may make regulations providing for the procedures for public participation in the Environmental Impact Statement process. The section also requires the Environmental Impact Statement to be circulated to relevant referral agencies for review and comment (Section 14(4) PSA) and the Committee shall consider the Statement and comments thereon before issuing a Preliminary Support of Application (Section 14(5)).
[40] Further, section 37(1) of the PSA requires the Committee to hold public hearings to determine applications, inter alia, where a site plan approval is required under Section 36. There is also a process prescribed to organize the public hearing under Section 42(b) and (7) of the PSA. It does not appear from the documents disclosed or from the Affidavit evidence that a public hearing was ever contemplated by the TPC.

[48] There appears no evidence that a public discourse was encouraged, it seems rather that such a discourse was avoided.

Decisión

The court determined that neither the Premises License nor the Site Plan Approval could have been granted as there was no evidence that the conditions for their issuance were met. The dolphin import licences were revoked and the respondent was ordered to remove the dolphins from the facility to an appropriate location. The approval of the Preliminary Support of Application for Site Plan was quashed and the land was to be restored to its original use and condition.

País

Fecha de la sentencia

14/07/2014

Órgano resolutor

Supreme Court of the Bahamas