COMMONWEALTH OF THE BAHAMAS
                  
IN THE SUPREME COURT  

Public Law Division     
                                                          
In the Matter of an application for Judicial Review

B E T W E E N: 

THE QUEEN

and

WENDELL MAJOR
As Secretary to the National Economic Council

The First Respondent

- and -

THE MINISTER RESPONSIBLE FOR CROWN LANDS
In the person of the Honourable Mr Perry Gladstone Christie
Prime Minister of the Commonwealth of the Bahamas
The Second Respondent
- and -

THE TREASURER OF THE BAHAMAS
The Third Respondent
-and-

PASSERINE AT ABACO LIMITED
The Fourth Respondent
-and-

PASSERINE AT ABACO HOLDINGS LIMITED
The Fifth Respondent
-and-

BAKERS BAY LIMITED
The Sixth Respondent
-and-

BAKERS BAY HOA LIMITED
The Seventh Respondent
-and-

BAKERS BAY MARINA LIMITED
The Eighth Respondent
-and-

BAKERS BAY FOUNDATION LIMITED
The Ninth Respondent

Ex parte

SAVE GUANA CAY REEF ASSOCIATION LTD.
The First Applicant
- and -
AUBREY CLARKE
The Second Applicant

AFFIDAVIT

I, TROY ALBURY, of the Settlement of Guana Cay on the Island of Abaco one of the Islands of the Commonwealth of the Bahamas, make oath and say as follows, that:

1. I swear this Affidavit in support of the Applicants’ application for Leave to Apply for Committal of those persons set out in the Statement supporting an application for an order of Committal upon which the Applicants also rely. This Affidavit is also sworn in support of a further injunction application being made to the Supreme Court.

1. That I depose hereto from my personal knowledge unless otherwise stated and from information derived from the papers and files in my possession relating to the matter, the contents of which I verily believe to be true. There is now produced and shown to me marked Exhibits TA 1- TA19 and TAZ. TA1 – TA19 & TAZ has a number of exhibits numerically tabbed for ease of reference to which I shall periodically refer in this affidavit.

1. I was present in the Court of Appeal on February 22nd, 2006 when the Court of Appeal directed, Frederick R.M. Smith that the Court of Appeal had no jurisdiction to entertain an application for leave to commit as a court of first instance; and that although the undertaking hereafter referred to was made to the Court of Appeal the undertaking was generally in relation to the entire matter and that the Court of Appeal could not hear such application and the Applicants were directed to make the application to the Supreme Court in the first instance, hence the present application 

Background

1. I have been closely involved in preparing and pursuing this action on behalf of the Applicants and therefore the present state of the action and the developments in the proceedings are within my own knowledge.

1.  I am a land owner and a resident of Guana Cay. I live there with my wife and 2 children. I own a scuba, snorkelling and boating business called Dive Guana, located on the south shore of Guana Cay. I have operated it for almost 7 years.  I operate daily dives and excursions to the reefs, beaches and other marine attractions around Guana Cay. Like many other residents and land owners in Guana Cay, such as fishermen, boaters, sailors, second home owners, bed and breakfasts, and tourist business owners, we rely on the cleanliness and beauty of the land and marine environment for our livelihood. It is also a matter of quality of life for us. It is part of our local culture and heritage that we live a simple, calm, quiet, crime-free life on a small island that has preserved its unique heritage, culture, environment and way of life by slow; sustained and almost imperceptible growth which has given prosperity and jobs to many of the residents of Guana Cay.  There is virtually 100% employment on the island. The Development hereinafter described, threatens to completely change and disrupt the quality of life which we have all enjoyed and benefited from.

1. This action concerns a proposed development by Passerine at Abaco Holdings Ltd. and Passerine at Abaco Ltd of a major hotel, condominium, golf course and marina project at Guana Cay, Abaco (“the Development”). On the application of the Applicants, this Court has ordered that the Sixth to Ninth parties be added as Respondents and are referred to hereafter as “the Developers”. I refer to TA1 which refers to copies of the latest Annual Return of the Fourth Respondent and the Seventh to Ninth Respondents. On or around 1st March 2005 the Developers entered into a document entitled “Heads of Agreement” signed by the First Respondent purportedly on behalf of the Government of the Bahamas under which approval in principle for the Development was purportedly given and a number of rights and privileges purportedly granted to the Developers. These included an agreement to grant leases to the developers of certain Crown Lands which are controlled by the Second and Third Respondents. The Heads of Agreement is exhibited at TA16.

1. The First Applicant is a company formed for the purpose of representing and protecting the interests of landowners and/or the residents of Guana Cay and those affected by the proposed Development, and protecting interests of the environment, our heritage, culture, quality of life and local rights. The members of the 1st Applicant are some of the “stakeholders” referred to in the EIA. The shares of the Applicant Company are directly and indirectly owned by hundreds of residents and landowners of Guana Cay. These persons have all signed a petition showing their resistance to the Development. I refer to TA2 which refers to copies of the petition and annual return and shares issued in the First Applicant to the said residents and landowners.

1. The community of Guana Cay has approximately 150 Bahamian residents, landowners and a further 150 non-citizen home owners and periodic residents. Of the Bahamians there are many fishermen. In fact Guana Cay traditionally has had a small fleet of fishing vessels and enterprises of approximately 15 vessels and approximately 30 fishermen. These vessels and the fishermen fish for lobster, conch and fish throughout the year during the relevant seasons for the catch. In addition, these fishermen are landowners and residents of Guana Cay, and they are also mechanics, craftsmen, carpenters, joiners and persons employed in the boat maintenance and fishing trade, in addition to the actual fishermen themselves. This continues to be an economy and traditional way of life in the community. Many of the families of the fishermen are involved in selling and marketing the catch.

1. In addition to the fishing industry, the community of Guana Cay is very heavily involved in the hosting of tourists, second home residents and visitors throughout the year. In this respect, the community of Guana Cay and the Bahamian residents and landowners have many homes and rental properties which are periodically rented as guest houses, bed and breakfasts or tourist facilities.

1. In addition, approximately 150 non Bahamian landowners have for many years owned and quietly and slowly developed homes, houses and guest houses for rental and sale in Guana Cay.

1. Most of the Bahamians who are residents in Guana Cay have almost full time employment in caretaking, fishing, maintenance of homes, restaurants, bars, dive shops, boat rentals and repairs, and other similar  activities.

1. A culture has developed on Great Guana Cay as between the Bahamian landowners and residents and the non-Bahamians of mutual respect, accommodation and cooperation in respect of almost all facets of our daily existence in the small community. Crime is almost non existent and happens rarely, if at all. For the most part we sleep with our windows open and doors unlocked. At times many homes are unattended for weeks and unlocked. I can personally say that I do not even know where the keys for my home are as they have never been used.

1. As a person whose business requires him to go into the water daily, I am able to say that the marine environment around Great Guana Cay is healthy and thriving.

1. The settlement, its economy and culture rely on a healthy surrounding marine environment. In fact, throughout the year, thousands of boaters visit the environs of Great Guana Cay where they sometimes live on their sail boats or yachts and interact cooperatively with the local residents. In this respect,   both local residents and visitors respect the marine environment and avoid over fishing or in any way directly harming the marine environment. This is not to say that there are no issues with respect to the environment, but the general approach of anyone who has been living or visiting Great Guana Cay is to try and maintain it so that it continues to provide an environment which attracts further visitors successfully. Residents and the fishermen rely on the pristine marine wetland, reef and water environment. That is why the local economy of Great Guana Cay has for decades continued to thrive. For instance, the local fishermen and visitors do not over fish the conch, lobster and fish stock in and around the Island and the fishing fleet generally travels great distances to other fishing grounds for any large commercial catch.  This has all resulted in a very attractive and desirable community , environment, and  sustained a marine and land resource on, in and around Guana Cay. I note that Recital (J) of the Heads of Agreement states that the Government was “satisfied that the Development will positively and significantly impact upon the economy of the said Commonwealth and the Island of Abaco in particular”. Noticeably it does not mention Great Guana Cay.

1. The wetlands, mangroves, bone fish flats, and other pristine national environments in and around the Crown and Treasury Land and private 450 acres which is intended to be developed by the Developers, is extremely important to maintain in a healthy environmental state so that the flora and fauna can continue to provide nature’s bounty for the residents and visitors of Great Guana Cay.

1. In the Crown and Treasury lands, the residents of Guana Cay have traditionally hunted for crabs, used the areas for recreation, picked fruits, accessed beaches and have otherwise used the lands for public purposes such as picnics and community retreats and parties. They have also traditionally fished as aforesaid

1. Sometime prior to October 2004, Dr. Kathleen Sullivan-Sealy, Associate Professor, University of Miami, Coral Gables, Florida, Applied Technology Management, a Marine Coastal Environmental and water response Engineering Firm, with offices in the United States, Bethell Environment of Marsh Harbour, Abaco and Moffit and Nickel Coastal Engineering Firm of Tampa Florida and others prepared “An Environmental Impact Assessment for Passerine at Abaco Resort community development for the Bahamas Environmental Science and Technology Commission”. The Developers hired the aforesaid persons to prepare the EIA for submission to the BEST Commission on their behalf. I am able to depose to the foregoing because the Affidavit of Dr. Donald Cooper sworn on January 30th, 2000 in this Court says the foregoing.

1. At Chapter 8 of the EIA the Developers and their consultants identified a partial list of stakeholders. Included in that list are local Bahamian residents of the Guana Cay settlement, Bahamian residents of the northern Abacos, homeowners at Guana Cay and boaters and yachting tourists amongst others. The EIA acknowledges the importance of the aforesaid “stakeholders” in participating in the EIA.

1. Notably at page 48 of the EIA the Consultants indicate that “without an official approval of the Passerine at Abaco PRC development project from the Office of the Prime Minister, PPS has not been allowed to publicly present information about the development plans and solicit input from the community”.

1.  Further at Page 119 the EIA says ”public discussion of the project has been discouraged prior to final project approval through the Office of the Prime Minister”. Notwithstanding the foregoing the EIA says BMP “is committed to the thorough public consultation process outlined in this Chapter”. I understand from my researches that “BMP” stands for Bullock Manley Partners, one of the original project proposers which have now become the Developers.

1. Chapter 9 of the EIA also contains a section on an “Environment Management Plan” and again indicates the importance and recognizes the interest which “local communities” and “local persons and business leaders” have, in the project.

1. The EMP section of the EIA goes on at page 127 to highlight the need to conduct   outreach and education programmes to the “stakeholders” and to report and involve the community and stakeholders as “an integral part of the EMP”.

1. Page 129 says that although the development is unique in the Bahamas, it intends to document best practices in small Island developments and to record “an accurate account of biological diversity loss with large-scale conversion on a small island”. Part 2 of the EIA also contains Chapter 4 which deals with environmental impacts monitoring and community consultation.

1. Exhibited at TA17 are the aforesaid pages and chapters referred to. The entire EIA which was in the possession of the Applicants, is already exhibited as Tab 2 of my affidavit filed on April 4th, 2005. I also state that because there has been no discovery, the Applicants have been unable to evidence the final and complete EIA. As stated previously in my First Affidavit, Ms. Sealey provided the EIA exhibited to my First Affidavit to Dr. Risk.

1. The Second Applicant is Mr. Aubrey Clarke. He is a Bahamian and a resident of Guana Cay. He was born in Harbour Island on March 9, 1941. He has been a resident of Guana Cay for approximately 10 years. He has told me that he often went crabbing in the Bakers Bay area before it was closed off by the Developers and that he has fished in the surrounding waters off the northern point of Guana Cay where the Development is located. He resides at Front Street in Guana Cay.  I have known Mr Clarke for 10 years, and can confirm that he resides at the stated address. Mr. Clarke has been a driving force from inception to the objections of the residents of Guana Cay to this Development. Leave was given to join the Second Applicant to these proceedings by the Court of Appeal by Order dated 23rd November 2005 in circumstances which I shall set out more fully below.

1. The First Applicant brought judicial review proceedings challenging the Heads of Agreement and issued an application for Leave to bring the proceedings on 4th April 2005. Although only the 1st to 3rd Respondents were originally parties to this action, the Developers have from an early stage been represented and produced evidence in those proceedings.

1. Leave was originally granted by Isaacs J on 5 April 2005 and the substantive hearing in the matter set down for trial commencing on 26 April 2005. However, shortly before the hearing on 26 April, the Respondents indicated that they would apply for an adjournment and the Developers sought to be joined. In response, the Applicants therefore indicated in submissions that if any adjournment was granted, it should be on terms that the Respondents should be enjoined from proceeding with the development under the Heads of Agreement in the meantime.

1. At the hearing on 26 April, Isaacs J granted an adjournment of the substantive application until 13 June 2005 and indicated that he would hear the Appellant’s application for injunctive relief on 4 May. In the event, the hearing of the application for injunctive relief did not occur on 4 May, but was adjourned until 18 May to allow evidence to be filed with respect to that application.

1. At the hearing on 18 May 2005 Isaacs J was asked by the Respondents and the Developers to address the issue of whether the Applicant had sufficient standing to bring these proceedings. The Respondents and Developers argued that the Applicant did not have locus standi, because it did not have any interest in the Development. On 18 May, Isaacs J heard the injunction application, and handed down his judgment on 26 May 2005.

1. In his Judgment of 26 May 2005 Isaacs J apparently accepted the submission put forward by the Developers and the Respondents that the Applicant had no locus standi and appeared to have revoked the grant of leave to apply for judicial review on that basis, bringing the proceedings to a halt. He did not therefore address the issue of an injunction, the proceedings having come to a halt on the apparent basis that the Applicant had insufficient locus standi. The Applicant immediately sought to appeal the Judge’s ruling and issued a Notice of Appeal to the Court of Appeal on May 31st, 2005.

1. The appeal was heard by the Court of Appeal (the President, Ibrahim JA and Osadebay JA) on 22nd and 23rd November 2005. The Applicant was represented by its counsel, Mr Frederick Smith of Callenders & Co. The Respondents were represented by Mr Farquharson of the Attorney-General’s office. The Developers, who were also present and on whose behalf submissions were made, were represented by Mr. Barnett of Graham, Thompson & Co.

1. During the course of the hearing on 22nd November 2005 a note of the hearing was taken by Mr George Missick of Callenders & Co., assisting Mr Smith. I am advised by my counsel Frederick Smith, that he has requested a transcript of the proceedings from the Court of Appeal on that date although a stenographer took copious notes of the proceedings before the Court of Appeal. The Registrar of the Court of Appeal has written to Mr. Smith and stated “that there is no transcript of the Court of Appeal which is disseminated to Counsel.” In the absence thereof I refer to George C. Missick’s note.  That Note and the letter dated 13th February, 2006 from the Registrar of the Court of Appeal is exhibited at TA3. I will make reference to the contents of that Note during the course of this Affidavit. Mr. Clarke and I were also present throughout the Court of Appeal proceedings except for the conclusion on November 23.

The decision of the Court of Appeal

1. As is apparent from the note of the proceedings before the Court of Appeal (and has been confirmed to me by Mr Smith) the Court of Appeal heard full submissions, both as to whether the grant of Leave should have been revoked, and whether an injunction should have been granted pending the final determination of the judicial review application, during the course of 22nd November 2005. Before making any Order, the Court adjourned overnight to consider the matter and, in particular, the question of whether an injunction should be granted.

1. By letter dated 22nd November 2005 Mr Barnett (as counsel for the Developers) wrote to Mr Smith offering a series of undertakings not to proceed with the development pending the hearing and determination of the substantive application for judicial review in this Court. This letter is exhibited at TA4. Mr Smith has confirmed to me that he received this letter on the morning of 23 November, prior to the resumed hearing before the Court of Appeal. In the Supreme Court on February 14, 2005, Mr. Barnett confirmed to this Court that the reference to the Developers in the letter was to all of the Development companies referred to in the Heads of Agreement all of whom are now parties to this action.

1. The letter was placed before the Court of Appeal, which made its Order on 23rd November 2005. A copy of the Order and Certificate  is exhibited at TA5. The Court of Appeal overturned the Judgment of Isaacs J and restored the leave to apply for judicial review originally granted by the Judge.

1. In addition, the Court of Appeal made a number of supplementary orders. First, the Court accepted the undertakings contained in Mr Barnett’s letter of 22nd November 2005. Second, the Court granted leave to join named landowners or residents of Guana Cay as applicants. This was in the hope that, in doing so, the question of locus standi could be avoided (since it is plain that a resident or landowner on Guana Cay has locus standi to bring the proceedings). The Second Applicant has been added as a party to the proceedings pursuant to that Order. Third, the matter was remitted to the Supreme Court to be heard on the merits before the 31st January 2006, by a Court other than Isaacs J.

1. I have read a memorandum from Mr Smith to the attorneys for the Developers and the Respondents dated 5th January 2006 and exhibited at TA6 and which Mr Smith has informed me he sent on that date. As is clear from its terms, the memorandum sought to resolve some of the interlocutory issues that remained outstanding following the Court of Appeal hearing. The issues addressed in the memorandum included the following:

1. Mr Smith indicated that he was continuing to make efforts to have the matter before the Supreme Court set down for trial before 31st January 2006 but asked Mr Barnett if his clients, the Developers, would continue with their undertaking beyond that date if a trial could not be fixed before then.

1. Mr Smith informed Mr Barnett, towards the end of the memorandum, that he had been informed by his clients that the Developers were breaching the undertaking, and indicated that he would be receiving details of this and would if necessary apply for an injunction if the undertaking was not being adhered to.

1. Mr. Smith and Mr. Barnett had previously engaged in correspondence on November 30, 2005 in relation to allegations made at that time regarding a breach of the undertaking. The Developers denied any breach at that time. This correspondence and photographs from the Developers are exhibited at TA7.

1. Mr Barnett, on behalf of the Developers, replied to Mr. Smith’s memorandum by letter dated 9th January 2006, which Mr Smith has confirmed to me was received by him. This letter is exhibited at TA8 As can be seen from that letter, Mr Barnett made clear that the Developers would not consent to being joined as a party to the proceedings. Further, he refused to undertake to have the Developers’ deponents attend for cross examination. He also stated that the discovery requests were unwarranted and that they would be resisted. He denied that his clients were breaching their undertaking. Finally, he made clear that his clients would not continue with their undertaking after 31st January 2006. Mr. Barnett, on behalf of the Developers has never written to resile from this position although in submissions filed before the Supreme Court for trial on January 29th, 2005, he said that “if the Developers wished to be released from their undertaking given to the Court of Appeal, it would have had to apply to the Court of Appeal to be released from its undertaking”. These submissions are exhibited at TA9

1. It is in part as a result of the position adopted by the Developers and communicated through Mr. Barnett’s letter that the Applicants made an application for an injunction in this Court. I refer to TA10 which is the Summons filed in support of the injunction, discovery and cross examination applications. On Monday February 13, 2006 the Acting Justice Norris Carroll gave leave to join the 4th and 5th Developers but refused the application for an injunction, cross examination and discovery. The Learned Judge gave no reasons.  He had indicated that he would deliver them in due course. On February 14, Justice Carroll gave further leave to join the remaining Developer Companies being the Sixth to Ninth Respondents. The Applicants also applied for leave to appeal The Learned Judge refused leave and also refused the Applicants application for an adjournment and a stay of the proceedings pending an application to be made to the Court of Appeal for leave to appeal the Learned Judge’s ruling. The Applicants applied for leave to appeal and a stay of the trial pending the hearing of the application for leave to appeal the discovery and cross examination matters and the hearing of the appeal against the refusal to grant the injunction. The Court of Appeal on February 20th, 2005 refused the applications for leave and a stay. The trial resumed before the Learned judge on February 21st, 2005.  

The Application for Committal for Contempt of Court

1. The terms of the undertaking given by the Developers are set out, as mentioned above, in the letter of 22nd November 2005. These terms were accepted by the Court of Appeal. The letter is exhibited at TA4.

1. There is no specific reference to any time-scale for the continuation of the undertaking in the letter. The letter simply states that “the Developers are prepared to give an undertaking to the Plaintiffs pending the hearing and determination of the substantive application for judicial review herein upon the following terms” and then sets out what it is the Developers undertake not to do. It is the Applicants understanding that, on the wording of the undertaking, the undertaking ought to remain in place until the hearing and determination of the substantive application for judicial review. I am informed by Mr Smith, and believe, that this was the basis on which he was prepared (on behalf of the Applicants) to accept the undertaking and not pursue the application for an injunction further before the Court of Appeal.

1. Three developments have taken place since the undertaking was given which have caused the Applicants concern in relation to the undertaking and lead to the present Application for leave to apply for an Order of Committal. First, this Court has refused to give the injunction, order discovery or cross examination. Second, the Developers have (through Mr Barnett, their counsel) indicated that they will not continue to abide by their undertaking after 31st January 2006. As mentioned above, the undertaking contains no such time limit, but states clearly that it is given and will remain in place until the hearing and determination of the substantive application for judicial review. The Developers have, therefore, threatened to breach their undertaking. Despite the submissions previously referred to, the Defendants have not written to say so.

1. The third and more serious development is that to my knowledge and belief the Developers have in fact breached their undertaking since the date it was given and accepted by the Court of Appeal in November 2005.

1. Separately, I have been told by Mr. Wayne Hall, the new Chief Councillor of the Hope Town District Council that two permits were issued by the District Council for a $6 million dock and a small building. I made enquiries of Mr. Glen Laing, the Guana Cay District Council member, as to whether he was aware of any meeting at which permit applications were considered and/or permits issued. He said he was not aware of any such application or permits. Both he and I have subsequently requested details of the applications and/or permits from Mr. Hall and he has not provided them.

1.  In addition, on Monday February 13, 2005 Mr. Hall was present at the trial in Freeport and he told me that he was flown to Freeport at the Developers’ expense to attend the trial. Further, within the last two weeks the Developers have imported dredging equipment, concrete mixers, a dredging barge and other heavy equipment. These events and those described in this Affidavit and the secrecy surrounding them have caused the Applicants grave concern.

1.  Following various breaches of the undertaking by the Developers, I have taken a number of photographs at the site of the Development which showed works continuing there. There is now produced and shown to me marked Exhibit TA11 a number of photographs of various activities of the Development. I have taken all of these photographs myself in the circumstances which I will describe below. My belief in this respect is derived from the following evidence:

(1)     There is an area used for storage of machinery and equipment on a parcel of land next to a property known as the “Old Figi Property”. At the date of the undertaking there was only a parcel of land cleared away. One week later, after the undertaking was given, a series of poles were erected around that parcel of land. A week after that a chain link fence had been constructed some 8 foot high and around 300 feet or more in length which completely encloses a large cleared area which houses construction equipment, various trailers, steel, construction materials and 20’ containers. It is now guarded by a security guard on Crown Land. It is on Crown land.  On December 6, 2005, I took a photo of the work area which did not show any poles or fencing; see page 1 of TA11. Subsequently on December 13, 2005, I took further photos which showed the fence. These are at page 2 exhibited at TA11. I believe that this is a breach of the undertaking “not to erect any further structures on the land.”
         
(2)     Two weeks following the giving of the undertaking on November 22, 2005, I observed a number of tractors moving dirt and constructing a road next to the Old Figi Property. I took a photograph of myself holding a newspaper article about the work having been stopped following the Court of Appeal hearing, and showing the works in fact continuing in the background. The photos are at pages 3 to 11 exhibited at TA11 show in one series, the newspaper in focus with the works out of focus and another series, show the works in focus with the newspaper out of focus as it proved impossible to focus on both items together. This work continued for over one and a half weeks after I took the photos. I believe that this is a breach of the undertaking not to construct or pave any further roads.

(3)     Since the date of the undertaking I have on a number of occasions observed a number of surveyors, equipped with cutlasses, surveying the land for the Development. I believe that the surveyors use their cutlasses to remove trees and vegetation in order to carry out their surveying. I further believe that this is a breach of the undertaking not to cut tear down or remove any vegetation or trees. I also exhibit a series of photographs marked at pages 12 to 23 exhibited at TA11 taken on January 10, 2006 which show people which I infer were surveyors because they appear to be using surveying equipment and they were planting survey posts, markers and signs indicating lot numbers. The Court will also note from the photos that the vegetation has been cut back and areas cleared for the purpose of delineating the lot numbers. The photographs also show piles of digging tools and posts which the Developers have continued to place on the property.

(4)     I have observed an incinerator, set up by the Developers at the site, which has to my knowledge been in operation 24 hours a day since the date of the undertaking. I infer from this that vegetation and trees have been removed and that it is this that is being burnt. These are at page 24 to 26 exhibited at TA11.

(5)     On January 10, 2006, I observed a large John Deere tractor towing a flatbed trailer loaded down with freshly cut brush going along the seaside toward where the burn pit area is located. I took a series of photographs. These are at pages 27 to 30 exhibited at TA11. I observed that these were freshly cut branches of trees because the leaves were green thus indicating to me that they were not simply debris which had been picked up as a result of being cut down before November 22, 2005.

(6)     On December 6, 2005, which was two weeks after the date of the undertaking, I observed that work was continuing at the burning pit site. It appears that the Developers had placed a forced air ventilation machine over a pit in order to speed up the combustion of the material being burnt. Trees and shrubs were still burning at that time. Although I recall the Developers saying to the Court of Appeal there was still some material which had already been cut down and which was to be burnt, the extent and volume of the continuing burning suggests to me that it is not just residual burning that is occurring.  I refer to the photograph 24 at TA11 taken on December 6, 2005 showing the forced air ventilation machine. On January 10, 2006, I took a further series of photographs which show the same area where the fire pit is located, continuing to burn. The Court can observe the smoke coming from the burning pit. This is approximately 6 weeks after the undertaking and there is still material being burnt. These photographs are the ones I previously referred to at pages 25 to 26 exhibited at TA11.

(7)     On December 6, 2005, I took photographs from the boat of a three storey blue green building left from the Disney development; these are shown at pages 33 and 34. I took further photos on January 10, 2006 of the same area, and I invite the Court to note that the building is no longer there. It was demolished. These photographs are at pages 35 to 36 exhibited at TA11.

1. I also refer to photographs showing the creation of a large pile of mulch which was not previously there.  Photo number 37 was taken by me on November 17 or 18, 2005. It shows a small mulch pile. The Developers appear to be continuing to mulch trees because of the dramatic increase in the size of the piles. No doubt the Developers will say that the mulch results from trees cut down before the undertaking was given. I say that they ought not to have been cutting down trees in the first place without permits. The increased piles are shown at  38 to 41 exhibited at TA11.

1. On January 10, 2006, I took a photograph of the location where the old Disney buildings were located. I am familiar with the old Disney site as my family and I and many of the residents from Guana Cay have used the beach in that area and played around the site for picnics.  The Developers have built a small building on that location. I have circled the new building on the photos. These photos are at pages 42 to 43 exhibited as TA11.

1. On January 10, 2006 I took a photo of a road which has been widened since November 22, 2005. This was previously a trail that led from one side of the island to another and was a mere 2 feet wide and was used by me and most of the other residents and their ancestors. I refer to photograph 100 which is a photograph of the trail as it existed before the Developers widened it. It is a right of way which the residents of Guana Cay own and in respect of which action will be brought. It has now been widened and the brush is piled up on one side making it passable for a vehicle about 12 feet wide. I should also mention that this pathway led from the bay side to the ocean side of the Development site and has been used for many, many years by the residents of Guana Cay including myself, so that residents could anchor their boats on the south side of Abaco when the ocean was too rough on the north side thereby accessing the ocean from the bayside. It has also been constantly used for many other purposes which will be explained in the action.  These photographs are at pages 14 to 16 exhibited at TA11 and are circled.

1. At pages 44 to 53 of Exhibit TA11 there are photographs which I took in late January and early February of pipes being laid at the site of the Development. This is on the Crown Land. I witnessed these pipes being laid, joined together, moved by the tractor and placed in position on the ground myself. I should also add that the area in which these pipes are being laid has been cleared since the undertaking.

1. Pages 44 to 53 also show the cleared area. These photos, especially 45, 47, and 48, show tremendous mangrove destruction. They are circled for ease of reference.

1. At page 54 of exhibit TA11 is a colour photo of the site taken before the undertaking dated November 22, 2005. It is an aerial photo provided by the Developers which they said was taken on November 18, 2005. The trees and vegetation in the circle marked 1 have been chopped down since the undertaking. Similarly the trees in circle 2 along the perimeter of the burn pit. As can be seen, that area used to have vegetation, which has now been cleared.

1. Further, circles 1 and 2 of photo 54 are also circled on photo number 87.

1. Photos 54 and 87 are aerial photos.

1. Photo 87 also shows a house with a white roof circled 3.

1. I  Invite the Court to look at photo 25 which is a view looking from the burn pit shown in photo number 25 as well as shown on photos 54 and 87, which shows the white roof house. It is circled 3 on photo 25 and is circled 3 on photos 54 and 87. The Court will note that the vegetation circled as numbers 1 and 2 on photos 54 and 87 are no longer there.

1. Similarly a reference to photo 99 shows the white roof house and the complete scarification and decimation of all trees and vegetation.

1. Further, in photos 54 and 87, taken on November 18, 2005 the Court will note that the land is brown and black soil and in photo 99 taken in February 2006, it has been completely removed to limestone rock.

1. At pages 55 to 58 of Exhibit TA11 there are photographs which I took of dredging works being carried out at the site of the Development. I took these photographs on the 2nd February 2006.

1. At pages 59 to 62 and 35 top 39 of Exhibit TA11 there are photographs showing continuing mulching works at the site of the Development.  The photos at 59 to 62 were taken in January 2006. At photo 59, 61 and 62, the Court can clearly observe freshly cut trees and foliage which I have circled.

1. At pages 63 to 65 of Exhibit TA11 there are photographs of vegetation which was cleared at the site.

1. These series of photographs were taken on November 17 and 18, 2005 which show extensive works being conducted by the Developers without apparent permission up to that time. It shows extensive destruction and removal of trees and brush along the shoreline and the planting of survey markers. It shows mulching and destruction of trees, vegetation and work being conducted by barges.

1. At pages 66 to 69 of exhibit TA11 there are photographs showing mangrove having been cut and cleared. These photos were taken by me in early February 2006. This cutting and clearing did, I believe, take place after the undertaking was given because the mangrove shown on pages 68 to 70 appears freshly cut. The works at the side of the road and the widening of the road also appear new.  This has, to my knowledge, all occurred since the undertaking was given.

1. At pages 70 to 75 of Exhibit TA11 there are photographs showing materials, equipment and workers still being shipped to the site of the Development in late January or early February 2006. At pages 72 to 74 of Exhibit TA11 there is a photograph which shows new timber which has arrived and at page 76 of Exhibit TA11 there is a photograph which shows workers at the site at the end of the day being shipped from the site. This, again, has all occurred since the date of the undertaking.

1. Access to the site has been severely restricted. At pages 77 to 78 of Exhibit TA11 there are photographs of some buoys which were placed at the only deep water access point to the beach at the northwestern beach of the development site. There are no buoys anywhere else in place on the beach. This is because where the buoys are positioned is the only deep water place on the beach at which it is possible to access the beach by boat which the residents of Guana Cay used to do and can no longer do.

1. At pages 79 to 80 of Exhibit TA11 there are photographs taken in late January or early February, which show signs which have been erected at the site stating that work is in progress. These photographs show signs on the Crown Land in respect of which no lease has been given to the Developers.

1. The effect of all of the continuing works at the site has been devastating to the local environment and our traditional rights of usage. At pages 81 to 83 of Exhibit TA11 there are photographs taken in late January or early February, showing some of this devastation. These photographs were also taken after the date of the undertaking. The photographs show erosion to the beach following the removal by the Developers of the vegetation which joined the beach. The location of where the trees were is circled. In photo 84 the Court can clearly observe the remaining root systems, which are circled. Photo 84 is of the same area as photos 81 to 83. The photographs at pages 84 to 86 at exhibit TA11 show a golf cart being driven along the beach and are useful because they illustrate the extent of the erosion. This erosion of the beach has been massive and in my many years as a resident of Guana Cay, I have never before seen such erosion.

1. The photos numbered 3 to 11, 44 to 54, 87 to 89 and 99 show the Treasury and Crown land which the Developers are in occupation, use and possession of which they have despoiled even though they have no lease from the Crown or Treasurer. The construction and fenced in site shown on photos 72 to 75 are also in the Crown or Treasury land. I have also circled on the aerial view of photo 87 the aforesaid construction and fenced in site. I also point out to the Court that on November 18, 2005, the construction area does not show any fence.

1.  My family, and many other residents of Guana Cay, have, since the establishment of fences and barriers along the perimeter of the Crown or Treasury land, been prevented entry thereto and also because there are security officers patrolling the perimeters we have been periodically refused entry and  have been unable even to  walk along the coastline to access the beaches, traditional crabbing grounds and other areas where we have crabbed, picked fruits such as coca plum and seagrapes and otherwise used the areas both below and above high water mark traditionally. I have recently accessed the Crown Land after complaints from our Attorney to the Developers and was able to take many of the recent photos.

1. The Developers have also placed a buoy line along the length of the beach where they have also built what appear to be almost permanent tent-like structures which are circled on the first photo of the 3 photos in  TA7. Mr. Walter Sweeting has told me that no permits were issued by the Hope Town District Council up to his demission of office in June of 2005. As to the structures, I subsequently asked Mr. Wayne Hall, the current Chief Councillor, if his administration had given permits for those buildings. He said no, that they had been built before his tenure.

1.  The buoy lines have prevented many residents, who have traditionally accessed those public beach areas by boat, from accessing them. It appears that the Developers are doing everything which they can, not only to prevent access to what may be their perceived property, but also to Treasury Land, Crown Land and beaches to which we have always traditionally had access.

1. As I stated earlier, the Developers have also constructed approximately 8 tent-like structures which appear to be permanent in nature. Also, I am told by Karon Rolle a former employee of the Developers, that the buildings are used as offices, meeting rooms, cafeterias, toilet facilities and otherwise generally for the Developers, their employees, workmen and guests.  In addition, I have observed on a daily basis, 2 or 3 ferries ply between Treasure Cay and Marsh Harbour and the Developers site. It is in those ferries daily that I see around 100 workers being transported to and from the site.

1. On January 17, 2006, I attended a “Friends of the Environment” meeting at Man-o-War Cay another cay near to Guana Cay. At the meeting, there were many fishermen and residents of Man-o-War Cay. A number of them protested and complained that they have been denied access to traditional crabbing grounds in the development site.  They said that since the Development has begun, they have periodically attempted to land on the beach and/or to walk inland in order to access the crabbing area. The crabbing area is located in that part of the Development which comprises, for the most part, Crown Land and/or Treasury Land. Even though this land does not belong to the Developers, they have posted security guards which patrol the area and those guards do not allow them to enter the property. As with the people from Man-o-War Cay, I am aware that many of the residents of Guana Cay have likewise been denied access. I exhibit at Tab TA15 a letter from Heather Gill, a regular visitor to Great Guana Cay, also evidencing her encounter with an employee of the Developers. The employee told Heather Gill that she could not walk down the beach and attempted to deny her access to what she thought was a public beach.

1. I should emphasize that it has otherwise proved extremely difficult to observe the site of the Development since the date of the undertaking. This is because security guards are posted throughout the site, who have not allowed access to the site. I have however, in addition to the above specific breaches, observed cranes on the site operating continuously since the date of the injunction and heard the noise of tractors and other equipment from the site since that date. I have also observed that around 100 workers have been shipped to the site each day since the date of the undertaking from Marsh Harbour. I infer from this that there is considerable activity still going on at the site, notwithstanding the undertaking.

1. The Applicants, at this time, have chosen to bring contempt proceedings in respect of the above breaches of the undertaking at this stage. The Applicants will also continue to pursue an injunction because the Applicants believe that unless restrained by committal and otherwise,  the Developers will simply continue to ignore their undertaking in the future, causing irreparable harm to the environment and the rights of the applicants should the judicial review application succeed.