SAVE GUANA CAY REEF ASSOCIATION LIMITED
PRESS RELEASE
26.1.06
Trial begins
Developers concede to be added as defendants; undertaking to stop works at
development continues
The trial between Save Guana Cay Association, Mr. Christie as Minister of Crown Lands, Mr. Wendell Major as Secretary to the National Economic Council and the Treasurer of the Bahamas, opened before Acting Justice Norris Carroll in the Supreme Court in Freeport today.
Representing Save Guana CayAssociation was Fred Smith, along with Mr. George Missick. The Respondents were represented by Mr. Leif Farquharson, Mr. Loren Klein and Ms. Kayla Greene. The Attorney General also brought in Dr. Lloyd Barnett from Jamaica.
The Developers were represented by Mr. Michael Barnett, Mr. Robert Adams and Mr. Randol Dorsett.
There was a large contingent of residents from Guana Cay including Mr. Aubrey Clarke who was added as a plaintiff.
Save Guana Cay applied for an injunction to restrain the Developers and Government from continuing the development. The Developers had given the Court, through their lawyer, a written undertaking that they would not continue any works but last week threatened to resume works on February 1st.
Mr. Smith applied to add the Developers as parties to require the Government and the Developers to make discovery of all relevant documents which the Government and the Developers had previously refused to do; for an Order that the Government and Developers’ witnesses be cross-examinedgiven the conflict in the Affidavits.
The Developers in their submissions conceded that they should now be joined as parties. The Developers confirmed that they “did not resist the application to join them as respondents”. As to the undertaking, the Developers stated that if they “wished to be released from the undertaking given to the Court of Appeal, it would have had to apply to the Court of Appeal to be released from its undertaking”.
The Developers emphasized that “the undertaking being in place, there is absolutely no need for an injunction in the identical terms of the undertaking”.
Justice Carroll asked Mr. Smith to introduce him to the case and Mr. Smith opened by giving the background.
Mr. Smith explained that the Heads of Agreement was signed in March 2005 and that as soon as the Plaintiff became aware, applied for judicial review seeking; (1)declarations that the National Economic Council did not exist in law, that the Heads of Agreement was therefore a nullity, void and ultra vires and not binding; (2) prohibition against the Prime Minister and the Treasurer to stop them from granting Leases of the Crown and Treasury Land and to stop the Government from granting any of the rights, concessions and tax exemptions under the Heads of Agreement.
The Judicial Review application also sought an order that the Government conduct a process of full and proper public consultation before the granting of any of the Crown or Treasury lands, approvals, permits, rights, concessions, exemptions or grants. Mr. Smith took the Court through the procedural history of the action explaining what had occurred before Justice Isaacs and emphasized that an injunction application was made at the very early stage of the proceedings in April 2005 but that all the parties were struck by a “bolt of judicial lightning” and surprised when Isaacs J. dismissed the action on the ground that the corporate entity of Save Guana Cay did not have sufficient interest.
Mr. Smith recounted the appearance before the Court of Appeal on the 22nd November when the Judgment of Justice Isaacs was set aside, leave was granted to add Aubrey Clarke as a resident of Guana Cay and an Order made for the matter to be heard on itsmerits. He said that it was not necessary at that stage for the Court of Appeal to issue an injunction against the Developers because they gave an undertaking in writing not to continue with work at the development “until the hearing and determination of the substantive action”.
Mr. Smith said that “the applicants are now obliged to seek an injunction because the undertaking had been breached and in any event no permits had been issued which would permit the Developers to lawfully undertake the extensive works which they had begun”.
Mr. Smith emphasized that, Mr. Barnett, on behalf of the Developers and as an Officer of the Court, represented to the Court of Appeal that they had only two weeks before received a permit from the Ministry of Works in Nassau, had received some form of approval from the BEST Commission but had received no permits from the District Council.
Mr. Smith invited Mr. Barnett to correct him if he was wrong. Mr. Barnett did not do so.
Justice Carroll indicated that there was a mountain of material to read and that he was not making any decisions today. The application for the injunction, cross-examination and discovery was adjourned, to be heard on Friday, February 3, 2006 at 2.30 p.m. and the trial of the substantive matter was scheduled to begin on Monday, February 13, 2006.
Mr. Aubrey Clarke, the “flesh and blood” plaintiff said “these developers promise you the world but they never produce anything. I know they got enough lawyers alright but I feel we got the upper hand”.
He further stated “We feel they’ve pulled quite a deal with the Government; and they’re spending all that money in Guana Cay but our Government can’t even spend the money to move the garbage off our dock in Guana Cay”.
Troy Albury the President of the Association stated at the conclusion of the hearing, “I am happy that someone is finally listening.
The Developers now realize that in the Bahamas even if the politicians make them promises, they can’t just do whatever they want to do! They have to go through the correct procedures just like everybody else!
Even though we live on an out island, we still have rights!”
Frederick R. M. Smith
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