Save Guana Cay Reef attourney Fred Smith faces the press in undated photograph. Photo SGCR.
"The people of Guana Cay are dancing and celebrating in the streets"
For two years, the local Bahamian population of Great Guana Cay has been embroiled in a bitter battle with an American golf course developer, Discovery Land Company, whose plan to build a mega-development is opposed by most Bahamians and a consensus of coral reef scientists around the world. The fight has been centered around an 18-hole golf course, 500 residential units and a marina for mega-yachts, to be dynamited out of mangroves.
Since 2004, the residents of Great Guana Cay have been stating that such a development would invariably destroy their coral reef, eliminate their mangroves and alter the environmental relationship between their island’s unique terrestrial ecosystem and the nearshore environment.
The battle has taken many turns, especially in the Bahamian Supreme Court system. But just now, the locals of Great Guana Cay have secured an amazing battle victory; a victory in a war that is expected to last years, and the outcome of which has been deemed by environmentalists to be crucial to the future of coral reef and mangrove conservation in the Caribbean.
In November 2005, after consulting with their 10-man legal team, Discovery Land Company voluntarily decided to halt construction on their development until the Supreme Court case against them and the Prime Minister was decided. The hope was to avoid a court injunction. But since the Bahamian Judge has been deliberating for months and no decision is expected any time soon, Discovery Land Company appealed successfully to the Bahamian court system to be released from their voluntary work stop on May 8 th.
Construction Equipment is photographed on July 29 on the Atlantic-facing beaches, despite a work stop order
from the Privy Council in England. This area is an important sea turtle nesting site, and such construction equipment is strictly forbidden on such beaches. All 7 species of sea turtles
are endangered. 5 of them visit these waters, and at least 2 species nest on this beach. Photo SGCR.
Starting work at Bakers Bay Club, of course, meant further destruction to Great Guana Cay, and so mangrove destruction and further threats to the coral reef began at a blistering pace.
But today, Fred Smith, a bright Bahamian attorney with a singular devotion to this tiny cay, successfully urged the Privy Council to halt all work at the Bakers Bay Club until the Supreme Court Case has been decided.
(read the full Submissions)
The Bahamas is a small country, and in such a political closed-circle, corruption and influence come easily. This is especially possible with regards to the Great Guana Cay issue, because the Prime Minister himself, whose administration are defendants in this case, are basing their administration’s success on the idea of planting ‘anchor developments’ in each of the Bahamas’ out-islands, rolling through red tape and local opposition in the hopes of quickly creating employment.
But an outlet exists for corruption in the Bahamas court system: The Bahamas is part of Great Britain’s loose confederation of independent states, the so-called ‘Commonwealth.’
Above their own Supreme Courts, each member of the Commonwealth has an outlet to the ‘Privy Council’, a Commonwealth-wide Supreme Court that serves to keep small-countries’ own court systems in check. Notes from the Road interviewed Attourney Fred Smith shortly after his victory. We asked him why a Privy Council is necessary. Smith says, “It’s our lifeline to a more enlightened jurisprudence, and it insulates our jurisprudence from nationalism, insularity, myopia, subconscious political interference, and sometimes lack of intellect.”
Marina construction was occuring at a rapid pace. Photo SGCR.
Fred Smith argued to the Privy Council that the relationship between Discovey Land Company’s Bakers Bay Club and the Prime Minister of the Bahamas was in fact not legal, and that the ‘Heads of Agreement’ document that was designed between the two entities should be thrown out. Smith has argued that the proper permits for the development were never authorized, that development went ahead without the involvement of the local community and local regulatory obligations, that crown land cannot be given away to foreigners, etc.
The Bakers Bay Club, which had been thrilled to be able to work through the months of June and July are now certainly holed up in their Northeastern Guana camp, angry, confused. The swearwords eminating from that place must be horrendous.
Opposition to Bakers Bay Club is everpresent on Guana Cay. Photo W. Schubert.
The anger shows. In recent months, as the developer appears to lose more and more ground in the public eye, in the international press and with conservation NGO's, they have begun to act increasingly belligerant towards those opposed to their development.
A recent interview on the Bahamas' most popular radio show featured Livingston Marshall, the Environmental and Community Affairs officer for the developer, and Steve Adelson, one of the development's general managers. In the interview, Marshall exclaimed that the opposition to their development hardly existed, and that only a few tired souls continued to persist.
Use of silt curtains was irregular.
This statement is one that Marshall exclaims over and over again. In an email, he writes, "Name me just two people who are against us?" The Bahamian press, which at its worst is too lazy to edit the developer's press releases, will print these releases in their entirety.
In almost every release, the developer states that that the opposition to their development is financially-motivated, or the realm of foreigners, or is almost non-existant. All of these notions have been thoroughly debunked over a year ago, but in the Bahamas, truth can be coated with sugar and money. It's ironic that a widely unpopular foreign developer, led by a board of pasty white buffoons, is able to tell native Bahamians that they don't exist, and that they are not Bahamian, all at the same time.
But if you’ve ever read the advertorials in magazines like Executive Golfer, which fawn over the successes and alleged handsome qualities of the Discovery Land Company’s CEO, it makes sense that the Discovery Land Company sees truth as something you can buy.
Fred Smith called the radio show and responded by saying that it simply wasn't true, and Dr. Marshall knew it. That the shares of 'Save Guana Cay Reef' were distributed among hundreds of residents of the island, none of which had given up on the cause.
Not only are the majority of Guana residents opposed to the development, but the Bakers Bay Club is voraciously opposed throughout the Abaco Island chain.
|Although the Abaco Message Board, which is the de facto means of communication for Abaco residents, maintains a strictly non-political atmosphere, it defers political talk to the Save Guana Cay message board; another indication that the guana Cay's opposition to bakers bay club is central to Abaco culture.
The talk show host asked Marshall to respond, after these short commercial messages. When Marshall and Adelson came back on the program, they quickly changed the subject.
According to locals, on Bahamian Independence Day a few weeks ago, an American general manager for the Bakers Bay Club was enraged to find a Bahamian family celebrating their independence with a barbecue on the public beach, as was customary in the Bahamas. The general manager allegedly ordered Bakers Bay Club guards to have them removed, but the family refused. When the police told general manager Carter Redd to lay off, the family was allowed to cook their hot dogs on the beach, as is allowed in Bahamian law.
A few days before the Privy Council case was announced, the Bakers Bay Club announced they were creating a foundation called the Fig Tree Foundation, which would help locals of the island in a number of ways, including offering them multi-million dollar lots at the Bakers Bay Club for $50,000. It was clear that Discovery Land Company was trying to buy out opposition to their development. The developer's press release printed in The Nassau Guardian states, “Bakers Bay CEO, Mike Meldman said the mission of the Fig Tree Foundation Ltd. is to protect the Great Guana Cay community and enhance the quality of life for all people living on Great Guana Cay. The Foundation will accomplish this mission by raising funds which will be dedicated to all facets of the Great Guana Cay society and directed toward the community's educational, environmental, medical and general social needs.”
The developer continues to state, “With the guidance of key members of the community who will help direct resources, the Fig Tree Foundation Ltd. aspires to strengthen individuals, institutions, the environment, and services on Great Guana Cay.”
But there are no key members of the Guana Cay community in the Fig Tree Foundation. The Foundation is run by members of Discovery Land Company, and an American couple who work for the developer. Notes from the Road kept in touch with this couple for months after receiving an anonymous threat message from what turned out to be the wife of a senior Bakers Bay Club employee, whose husband and Discovery Land Company employee is central to the creation of the Fig Tree Foundation.
The Employees wife apologized for her anonymous threat message, citing stress. She then opted to pour her heart out to me, which helped give Notes from the Road an inside look at the confused portrait of the short list of people who favored the development. In fact, some consider her an unofficial spokesperson for the developer. The employees wife, we'll call her Ninny sent dozens of emails. Ninny's emails conveyed a strange sense of guilt, denial and a commitment to attempt to prove to me that she was indeed a good person, and that she was involved in good things. She did this by painting Guana Cay as itself a place without community or soul; a place she described in lieu of engaging my questions about the environmental concerns posed by the developer's plan. After reading her long emails, it seemed as if when she described Guana Cay, she was describing herself.
Everything she said seemed to contradict itself, especially because the Guana Cay that she painted, one without community or soul, could never have risen to become one of the most successful and united Caribbean examples of opposition to government-backed mega-developments.
She then offered to allow me to take a tour, courtesy of her husband. I told her that I couldn’t do that, but would he be willing to answer a few questions for me? She said, of course, bring on the questions, he'll be happy to answer anything.
So I told her to forward the following questions to her husband. She wrote back, "Bruce would love to answer your questions regarding the waste treatment plant. He is very technically oriented. In fact, he was in charge of a tour just today for all the National Trust people."
I then asked him the following questions:
“1. What are the water quality standards for the waste water effluent to be used on the golf course, the nitrogen levels in particular (i.e. parts per million or whatever units are used).
2. What would be the mechanics for hooking up houses or resort complexes to the Bakers Bay Club waste water facility? What would be the diameter of piping used, what distances to the nearest hookups, and what type of pumping would be required to move waste water from offsite locations to the STP (sewage treatment plant)? Is there a practical limit to the distance from the STP, i.e. a point at which it would make more sense to have a second STP at the southern part of the island - assuming that major population expansion would occur as projected?
3. What about the webcam and other "safeguards" for third-party observations of construction site activities?”
Shortly after sending the questions, Nancy wrote back, explaining that her husband would be unable to answer my questions. Nancy writes, "Sooooo, (my husband) asks that you forward your worthy questions to Livingston Marshall, as Bruce is no longer involved in that aspect of the biz."
Failing to follow up words with deeds is no isolated incident with Discovery Land Company supporters. Dr. Marshall’s comments that “(Bakers Bay Club) will install web cams within the next several days/weeks such that additional external monitoring of the project can be had…” If you compare that statement with the words on Page 77 of the initial developer’s Environmental Impact Assessment, “THE MOST CRITICAL TECHNOLOGY TO BE USED ON THIS PROJECT IS ON-SITE “WEB-CAM”, USED TO MONITOR VARIOUS PHASES OF CONSTRUCTION. Real time web-cameras will help prevent problems from occurring as well as help guide restoration of “errors”.
Of course, none of these important considerations have yet to be implemented. If the “most critical technology” to be used for monitoring construction, has not been implemented, what about the rest of the prevention, mitigation, monitoring, and reporting actions which have been promised?
The Environmental Impact Assessment has been critically maligned by experts as being an unsubstantial document. Despite it being light on critical environmental elements, the developer continues to ignore its most essential recommendations.
It is so likely that the Fig Tree Foundation is being used as an attempt to divide and conquer the locals of Great Guana Cay that in the press release, this point is brought up:
“ In reference to Discovery's motive behind launching the Fig Tree Foundation, Mr. Meldman said, "We do this sort of thing everywhere our properties are located. This is not being done here at Great Guana Cay just because we want to quiet the previous situation.”
Notes from the Road has been looking into this claim. To date, we have found no evidence that foundations were set up at any of Discovery Land Company’s mainland U.S., Hawaii and Mexico golf courses.
Can you buy the truth?
Perhaps in the Bahamas, but with the intervention of the Privy Council, the watchful eye of NGO’s, a motivated and proud island and growing dissent throughout the Bahamas, Discovery Land Company is quickly learning that Great Guana Cay is no Executive Golfer Magazine.
Fred Smith’s submission to the Privy Council begins with these nine points:
1. This is a matter is of great public importance for the future of The Commonwealth of The Bahamas.
2. The Petitioner prays that pending the hearing of the Petition for Special leave to Appeal being heard in October 2006, Your Majesty in Council will see fit to order that judgment the Court of Appeal dated May 6, 2006, whereby the Developers (as described in the Petition) were relieved of their voluntary and unsolicited undertaking not to proceed with the physical works of a development on Great guana cay in The Abacos, will be stayed, thus preserving the status quo until final determination of this matter.
3. Although it is a matter which focuses on a small cay in one of the Family Islands of The Bahamas, Great Guana Cay in the Abacos, it affects the lives of many other communities throughout the Bahamas where identical challenges have arisen.
4. It concerns the lawful entitlement of local communities in the Family Islands to decide whether or not they would, through the provisions of the Local Government Act, grant licenses and permits for certain developments as opposed to the Respondents entering into secret agreements granting omnibus approvals to developments without regard to the many laws which ought to govern the process.
5. It concerns the attempt by local communities to save their pristine marine and land environments from massive destruction. It concerns the attempt by such communities to preserve their culture, heritage and traditional way of life in the face of foreign land speculation which involves the creation of exclusive mega yacht, residential and golfing hotels and communities from which the locals are effectively excluded.
6. It concerns respect for local rights; wholesale disregard by central government of local rights as set out in the Local Government Act; failure on the part of the Government, Respondents and developers to respect for the Rule of Law and due process; failure to respect legitimate expectations to consultation before the grant of licenses and or permits for development activities; the illegal collusion between central government and developers to permit massive and environmentally destructive developments without regard for the grant of lawfully required permits under various laws; the protection of Crown and Treasury lands (which are to be held in trust and for the benefit of Bahamian citizens) from illegal alienation by the Respondents to foreign land speculation developers for little or no consideration without Parliamentary approval as required by law.
7. The outcome of this matter ultimately affects how dozens of foreign developments in The Bahamas (representing billions of dollars of investments), where the Government of the Bahamas has entered into what have come to be known as “Heads of Agreements”, will be conducted.
8. Will the Respondents (who have no lawful authority to enter into the Heads of Agreements) be able to arbitrarily dictate what is to happen in the Family islands without reference to the relevant laws, or the wishes of the local islanders, or will the Government (the Respondents) be held accountable to respect the laws of The Bahamas?
9. In the meantime, until the matter is determined by the pending judicial proceedings, the Petitioners invite Her majesty in Council to preserve the status quo. If the destruction of the environment is permitted to continue, there will be nothing left to litigate about, as their heritage, culture and traditional way of life will have been irreversibly destroyed.
SAVE GUANA CAY REEF ASSOCIATION PRESS RELEASE
Anti-Bakers Bay Club signs dot the island. Photo Anonymous.
Victory at the Privy Council!
Privy Council issues injunction against Bakers Bay Developers
Privy Council orders Developers to continue to abide by November 2005 undertaking to stop work at Bakers Bay Development on Guana Cay
The Privy Council today ordered a stay of the Court of Appeal Ruling dated May 8, 2006 releasing the Developers at Bakers Bay in Guana Cay from their undertaking not to continue with any physical works at Guana Cay.
On Tuesday, July 25, 2006, the Save Guana Cay Reef Association filed its Petition for special leave to appeal to the Privy Council against the May 8 decision of the Bahamas Court of Appeal releasing the Developers of their November 2005 undertaking to stop work in Guana Cay.
In the application for special leave to appeal, the Association asked for a stay of the Court of Appeal’s decision and for the reinstatement of the undertaking by the Developers to stop work until the Supreme Court gave its judgment.
As a result of the May 8 decision of the Court of Appeal, the Developers were released of their undertaking if Justice Carroll in the Supreme Court in Freeport did not, by May 31 2006, deliver his ruling on the judicial review application.
Todate, Justice Carroll has not issued his Ruling in what is admittedly a very complex and complicated case for the Bahamas.
In June 2006, as a result of the Court of Appeal decision, the Bakers Bay Developers started working again; clearing forests, burning trees, dredging the beaches, dredging the mangroves, and destroying the physical and marine environments.
The Association had opposed the motion in the Court of Appeal by Bakers Bay to be released from their undertaking on the ground that it was causing irreparable damage to the environment. The Association also filed a motion in the Court of Appeal asking for an injunction in the event that the Developers were to be released of the undertaking.
The Association also sought an injunction against the Secretary to the Cabinet, the Prime Minister as the Minister responsible for Crown Lands and the Treasurer of the Bahamas.
The Association also applied to commit the Developers for breach of their undertaking.
A copy of the undertaking is attached.
In the May 8 decision, the Bahamas Court of Appeal ruled that there was no evidence to indicate breach of the undertaking and consequently did not order committal of the officers and directors of the Developers. There is still a committal action before the Supreme Court. The Court of Appeal said that they did not consider the undertaking should last indefinitely.
The Court of Appeal also said that they regarded the Association’s application for an injunction as misconceived, dismissing it and ordering the Association to pay the costs of the Government.
Subsequently, on June 28, 2006, the Association applied to the Bahamas Court of Appeal for permission to appeal the May 8 decision of the Court of Appeal to the Privy Council.
The Court of Appeal dismissed the Association’s motion for leave to appeal on the ground that the Court of Appeal did not have jurisdiction and also refused a second application for a stay of the Development pending an appeal to the Privy Council.
The Court of Appeal also ordered the Association to pay $8,000 in costs to the Government and $10,000 to the Developers.
Subsequently, on Tuesday, July 25, the Association filed its application for special leave to appeal in the Privy Council.
In view of the ongoing destruction of the environment, the Solicitor for the Association, Mr. Theo Solley of Muirhead and Co. and Counsel Ms. Ruth Jordon, were able to obtain an urgent hearing before the Privy Council today.
The Privy Council issued an injunction in the terms of the letter of November 22, 2005 from Graham Thompson & Co. until the Judgment of the Supreme Court or the Petition for Special Leave whichever is the earlier, with liberty to the Developers to apply to discharge the order by 48 hours notice.
The Board was Lord Scott, Lord Brown and Lady Hale.
Photographs showing the extent of the ongoing devastating and destructive work to the environment are attached to the next email which may be published.
Mr. Smith, Counsel to the Association, said:
“This appeal before the Privy Council comes in a long line of continuing applications being mounted by the people of Guana Cay through their Association to protect and preserve their rights and the environment.
The people of Guana Cay remain serious, committed and determined to fight for their rights and they anxiously await the decision of Justice Carroll on the merits of the judicial review application.
The people of Guana Cay vow to continue the fight.
The people of Guana Cay are dancing and celebrating in the streets”.
The submissions made before the Privy Council in support of the stay application follow in the next email as well as the actual Petition filed.