Court told of “abysmal failure” to consult on Yntegra project

Fred Smith, KC, says public kept in dark as developerstried to gain a “foothold” on East Sampson Cay before the full resort was approved.

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The government is guilty of an “abysmal failure” to put key environmental documents before the public, leaving those affected by the Yntegra Rosewood Exuma project unable to comment on what was planned, the Supreme Court heard.

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Fred Smith, KC, for neighbouring property Turtlegrass, told Justice Leif Farquharson that the Department of Environmental Planning and Protection (DEPP) and developers Yntegra had withheld document after document as the project evolved.

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“There was an abysmal failure on the part of the developersand the DEPP to make available to the public by way of original consultation, re-consultation, or further consultation, as there were iterations developed onthe relevant documentation,” he said. “There was a host of fundamental and relevant documentation which the DEPP and the developers should have made available to the public for consultation.”

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In a move which he earlier said “rode roughshod” overenvironmental laws, Mr Smith listed ten documents he said were never disclosed to Turtlegrass, neighbouring Over Yonder Cay or the public during consultationon the Rosewood-branded project. Among them were the second revision of the environmental impact assessment (EIA), the original environmental management plan (EMP) and its revision, and the enabling works statement by consultants, BRON. The list also included Certificates of Environmental Clearance (CECs)2400 and 2400A and the public consultation report.

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Consultation, he said, is not necessarily a single event. “The consultation doesn’t only have to occur once,” he said. “If important documents or revisions to plans are produced to the regulator, the regulator has a duty to provide these to the public for consultation.”

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The EMP, he said, was an even more important document than the EIA, yet those who should have been consulted - including the public and other key stakeholders -  never had a chance to view it. The EIA eventually shared with the public, he said, contained “no real analysis” of adverse effects of the project.

Consultation, Mr Smith said, “is so fundamental to ademocratic process to allow persons who are affected by a proposed developmentto make informed representations.” Citing the UK Supreme Court’s Finch ruling, he quoted Lord Leggatt: “Public participation is necessary to increase the democratic legitimacy of decisions which affect the environment.”

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“Consultation is not a formality or a hindrance,” he said.“It’s not just a formality, it’s not lip service. It’s a real process. And it is one that should be conducted with full transparency, honesty and full disclosure.”

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Mr Smith contrasted the case with the Guana Cay litigation, which occurred before major environmental laws were passed in The Bahamas, in which a town meeting where plans were put up on a board was found to be adequate consultation. “This is not Guana Cay,” he said. “We have the protection of the EPPA (Environmental Protection and Planning Act), the regulations and the PSA (Planning and Subdivision Act) and the common law.” That case, he said, “would have been decided very differently” had the Environmental Planning and Protection Act and its regulations been in force.

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Recalling Dame Joan Sawyer’s words in Guana Cay on the uniqueness of the Bahamian archipelago, Mr Smith said the environment was“effectively a party to this action.” The Director of Environmental Planning and Protection, he said, “is supposed to be the steward of the environment, not to allow the environment in the Exumas to be sacrificed on the altar of the almighty dollar for short-term profit by developers who will sell it off quickly, leave The Bahamas and have no more regard for the environment.”

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“The EPPA seeks to protect the environment of The Bahamas for the heritage of us, our children and grandchildren,” he said. “It is our patrimony, and it should not be lightly treated.”

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Mr Smith said it was important to appreciate “how subtly and unbelievably” the developers “were trying to sneak in all the work contemplated by” three smaller CECs granted before the main resort approval.

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The application for CEC 2894, the June 2025 certificate covering the East Sampson Cay resort, did not mention their controversial plans for the North Bay at all, he said, and the certificates referred only to a“service dock.” “But my Lord, it’s not simply a service dock,” he said. Theworks included a sewage plant “on the doorstep of Over Yonder and Turtlegrass”and “huge diesel power plants” to supply East Sampson Cay. They also included fuel tanks, dredging for a roll-on/roll-off operation, a reverse osmosis plant, facilities for 150 employees, and a jetty extending 390 feet from the dock.

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“Search high and low,” he said. “Neither the public nor the court today will find an application for any of those works in the North Bay on East Sampson Cay.” The words “service dock,” he said, were “a Trojan horse for all of these works.”

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He took the court through the few passing references to the dock in the first revision of the EIA, including a table entry labelled only “BOH.” “And how is the public supposed to know what that is unless you’re ane xpert at this?” he asked. “Doesn’t talk about a jetty. Doesn’t talk about fuel depot. Doesn’t talk about waste sewage.”

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He also pointed to the 32 geotechnical boreholes mapped inthe BRON report, “very strategically placed to require the roadways for the entire master plan to be laid out and excavated.” Geotechnical investigation, he said, “is a paradigm of preparatory work which might indicate an intention to make the land ready for any type of development. It has no purpose except to enable designing and constructing.”

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Had the court not granted an injunction earlier this year barring dredging in North Bay, Mr Smith said, the damage would have been irreversible. The developers would then have argued they needed the dock for workers, fuel and waste. “That’s the foot in the door which your Lordship thankfully stopped until the determination of this trial,” he said. “But that is the whole point: they were sneaking in all of these works under those CECsin order to get ahead of the game. And there was no consultation on any of that during the consultation period.”

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Had the smaller certificates stood but CEC 2894 been refused, he said, the developers “would have ravaged the land, ravaged the North Bay” and still not had approval for the whole project.

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The DEPP wrote to the developers on August 11, 2026, telling them to stop, but they kept arguing “that they could do it without any other permits.” By then, he said, they had bulldozed acres on the southern tip of East Sampson Cay “with no regard for the protected trees as required by the forestry permit.”

Mr Smith said the three smaller CECs, granted without consultation, were “an attempt to get a foot in the door so that the baseline would have been changed” for the consideration of CEC 2894.

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“They were getting a foothold on Normandy Beach on East Sampson Cay,” he said. “And they have been told to stop and they finally have stopped.”

Peter Village, also for Turtlegrass, had earlier set out why the smaller certificates mattered. Because it was “by no means a foregone conclusion” that CEC 2894 would be granted, he said, “there was a real advantage in getting those under their belt” – “unless of course, heavenforfend, the Director of DEPP had closed her mind to the issue.”

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“Those works were in the ground. That land had been cleared. Those roadways had been effectively made up,” he said. “And that change to the baseline would have made a real difference to further applications.”

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Mr Village said the same pattern was repeating with aproposed 22-acre solar farm on the northwest tip of Big Sampson Cay. In a September 22 affidavit, the developers said the solar farm was not part of the project when the earlier applications were made, and was added after publiccalls for more renewable energy. It needed its own CEC application, filed in May 2026.

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Mr Village said it was “almost certainly the case” that the decision was taken before CEC 2894 was issued in June 2025. That would have obliged the developers to tell the Director and consult on a revised EIA. “If the decision had in fact been that the solar farm only came within the lightbulb in their minds after June 2025, they would have said just that in this affidavit,” he said. “But they didn’t.”

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Mr Smith said CEC 2894 was now being used as the baseline for the solar farm. The argument would be, he said: “How can you not approve it given that you’ve approved the entire East Sampson Cay development and we need power?”

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