Save Guana Cay Reef's legal case against Bakers Bay Golf & Ocean Club and the Bahamian government now moves to Privy Council, the highest court in commonwealth countries. This court acts as a 'Supreme Court' for commonwealth countries like the Bahamas.
Privy Council will hear the arguments between July 7 and July 9 in London.
Meanwhile, back on Great Guana Cay, details of the construction site reveal that many of the promises the developer boasted of are simply not being followed. And project deadlines are slipping off track.
The developer advertised that Bakers Bay Club was environmentally sound, in part, because the homes would be built far from the coastal dunes and that a strict coastal buffer zone would be enforced. The image above shows the first home site in construction. It is the only home being built as of June 16, 2009.
The EIA stated the existence of coastal buffer zones as if they were facts; but here, with the very first home site, the developer has already thrown out some of their simplest environmental promises. Read the EIA
Here is a screenshot of the developer's own EIA, criticizing development too close to the shore.
Coastal buffer zones are crucial for the health of nearshore environments, as construction adjacent to beaches creates erosion and pollutants. While the settlement in Guana Cay also has buildings built near the coast, this settlement has existed for 200 years, long before the age of environmental awareness; and it is the sheer size of Bakers Bay which makes coastal buffer zones critical. In addition, the Bakers Bay property is the only property adjacent to the largest and most important part of the coral reef.
This home is being constructed nearly hanging over the coastal dune, precisely in the area where endangered sea turtles are known to nest.
Here is some information on coastal setback distances according to the EIA. The home above is located on the Atlantic side, which is categorized by the EIA as "High Energy Beach and Dune System."
This image depicts erosion inside the marina.
This image shows that in order to build the marina channels, large sections of mangroves had to be removed.
Although the marina is now officially open, many details are incomplete. The marina opened six months late, in April 2009.
This image depicts unfinished golf course details adjacent to the marina.
An image of the marina village. Visitors have stated shock at the marina's lackluster visual appeal. One visitor writes, "I expected something luxurious, but Bakers Bay is ordinary...very ordinary. I never thought Treasure Cay Marina was all that exciting, but now that I see Bakers Bay, I am really disturbed. This is such a nice area, and they have turned it into that cookie-cutter look. What a shame! There are so many areas in the Abacos with class, and this is not one of them."
Detail from the marina.
August 12, 2008 | Legal Case
Guana Cay Granted Conditional Leave for Privy Council
According to the Tribune, Save Guana Cay Reef has been granted leave for the Privy Council. Fred Smith is quoted in the article, "We believe we have a very strong case, and have been denied due process. The issue of the ability of the Prime Minister to bind the country as to Heads of Agreement will be determined at the highest level...for the future development of the Bahamas, these are matters which are of fundamental importance."
March 20, 2008 | The Legal Case
Privy Council, At Last
Save Guana Cay Reef has applied to leave for Privy Council. You can read here. A more detailed explanation of Privy Council and current events will be appearing soon.
February 19,. 2008 | The legal case
Reef Defenders Lose Appeal
The next step for case #1, Privy Council. Photo courtesy SGCR.
Here is a note from Save Guana Cay Reef President to the Abaco out-island community after losing the appeal in court. You can read a Nassau Guardian article on the subject here.
As many of you have probably heard by now the judges in the court of appeal in Nassau ruled yesterday in our appeal. Unfortunately the news is not good. The judges ruled that the decision in Freeport will stand. Each one of the three judges gave an hour long ruling that went through all of our grounds of appeal and basically they sided with the trial judge below. They all admitted there were some gray areas but they quoted lots of laws that say that the government has the right through its legislative authority to do all the things it did . All of them hinted that they maybe did not agree with how it was done or it could have been done differently but the government did what they were statutorily required to do by law so there was no grounds for appeal.
Even though there are no environmental laws in the country they did consult with the BEST commission and according to law the judges cannot place another scientists view over the one provided by a government mandated organization.
We still believe both of those statements to be a matter of linguistics and interpretation but that is a matter for the lawyers to work out. Our lawyer is reviewing the judgement and we are considering our next move. Fred came out of court smiling and the first words out of his mouth are we are headed to the Privy so we will see over the next couple of days what our next course of action will be .
Judge Joan sawyer gave a tear jerking speech about the environment and how we all need to protect it but as far as the environment is concerned her hands are pretty much tied. There are no laws to enforce and this is partly what we are complaining about.
I tried to get out in the press and hopefully they can pick this up is that
1. we need environmental laws
2. we need a freedom of information act so these deals do not happen in secret
IF ( and that is a big IF ) we were to stop today we have accomplished a lot . The entire country is a lot more aware of the environment. The new PM has conceded that the way the heads of agreement are written are too liberal and vague. People everywhere are questioning the mega development philosophy and I am sure DLC has been forced to do a lot of things that they never would have dreamed of doing if we were not jumping all over their backs BUT the fact remains and they still have not answered this question....
HOW WILL A GOLF COURSE 25 YARDS AWAY FROM A LIVING CORAL REEF NOT RAISE NITROGEN LEVELS AND CAUSE ALGAE TO SMOTHER THE LIVING CORAL ?????
We will keep you posted on our next move.
January 8, 2008 | Legal case
The following articles cover press from late last year on the Guana Cay court case.
12.07.07 | Legal Case
SGCR Vows to Fight Indefinitely
11.24.07 | Legal Case
Anti-Bakers Bay Group Launches Third Judicial Review
Save Guana Cay Reef will launch its third judicial review against the Bakers Bay Golf & Ocean Club.
This review centers around the Hope Town District Council, the local government council, and the way in which the council pushes forward permits opposed by the locals on the very island it affects.
On November 29, Save Guana Cay Reef will ask the court for a stop work order, putting an end to all work on the Bakers Bay Club site until the issues can be examined in court.
11.22.07 | Legal Case
Tribune on 2nd Guana Cay Case
This is an early October article from the Nassau Tribune on the 2nd legal case against the Bakers Bay Club. Anything by Neil Hartnell on the Great Guana Cay case is a great read - this one will help interested readers get caught up on current events on Great Guana Cay.
10.03.07 | Legal Case
Save Guana Cay Reef Issues New Case
Below is a press release from Save Guana Cay Reef announcing a second lawsuit against the Bakers Bay development.
On September 29 2007, the Freeport Supreme Court ordered that Save Guana Cay and Aubrey Clarke could issue a new Judicial Review case to sue the Government and Hope Town District Council, the local government district for Guana Cay and the Bakers Bay Developers.
This is the 2nd Judicial Review case launched against the Government and Developers. It is the 1st against the Hope Town District Council.
Save Guana Cay is an association of Bahamians and foreign residents dedicated to preserving their unique heritage and culture, the land and marine environment, promoting respect for locals to be responsible for their island and saving Crown Land for future generations of Bahamians.
Guana Cay is internationally recognized as a unique marine and land environment and boasts one of the most picturesque and pristine traditional old Bahamian communities in the Abacos.
Despite this, in February 2005 the PLP Cabinet, under the direction of PM Perry Christie, and after years of secret planning and negotiations with developers, and following its now disgraced Anchor Project policy, dictatorially and without consultation with the residents of Guana cay, signed a Heads of Agreement with Bakers Bay, a foreign real estate developer, to allow a tax free $500,000,000 hotel, residential, golfing and the largest marina project in the Bahamas.
Since then the residents of Guana Cay mounted and continue to fight for their rights. They believe that the golf course will destroy the rich marine reef life.
The exclusively affluent and foreign gated residential community will destroy one of the few remaining forests, containing a fabulous variety of flora and fauna, in the Northern Bahamas.
The marina dredging and silting will destroy Joe’s Creek, and the hundreds of ancient mangroves which protect against hurricane storm surges and are the nurseries for the marine life on which the fisherman on the island depend.
Their traditional crabbing and hunting grounds have been lost, as the former PM Perry Christie agreed to give it to the developers for $1 per acre or some other secret amount. Despite elections promises to the contrary, the FNM, according to the Developers, has issued the Crown Land Deed to the Developers of the last remaining 179 acres of Crown (public) Land left on the island. There will be no room for the local community to grow in the future. The 150 Bahamians will be surrounded by over 700 foreigners.
Perversely….the Developers, who only paid $1 per acre, have now offered to sell 1/3 of an acre of our Bahamian Crown land back to Bahamian citizens for $50,000 or $150,000 per acre, thereby making a swift profit of 149,999%. What were the PLP and what are FNM Cabinet ministers thinking?
The development will be completely out of scale with the small island community, dwarfing it in size. The construction of the development is expected to take 10 years, and will require hundreds of transient foreign laborers. The social, economic and environmental life of this old Bahamian community is being destroyed. The local citizens are becoming foreigners in their own land.
In Save Guana Cay Case number 1, the Association obtained an injunction (after several appeals in the courts in the Bahamas) from the Privy Council in London, stopping the development until the trial. In October 2006, at the trial, acting Justice Carroll, in the Supreme Court, ruled that the Heads of Agreement was valid and allowed the development to continue. Save Guana Cay appealed and is waiting for a Court of Appeal decision.
At the Court of Appeal hearing the Government and Developers argued that even if the Heads of Agreement was invalid they had received all necessary permits from the necessary government departments, and were therefore not relying upon the Heads of Agreement as authority to proceed.
In their pre election promises, the FNM party promised freedom of information, promotion of local rights and preservation of Crown Land for Bahamians. Since the FNM became the government, Save Guana Cay have repeatedly asked the FNM to make full disclosure of all of the permits.
Despite their promises the FNM has failed and refused to give any information and Bakers Bay claims that the FNM government has given 150 acres of Crown Land to the developers.
The citizens of Guana Cay, trusting the FNM, are appalled by the FNM’s betrayal, even though 90% voted for the FNM in the general elections.
Now, after pressure from the Court of Appeal, the Developers, 2 years later, have provided copies of the permits they say were necessary to proceed with the development. For 2 years, the PLP and the FNM have kept the details of this development secret from their own Bahamian citizens, preferring instead to conspire illegally with the foreign developers, and permitting the rape and destruction of the environment, as they have done in Bimini and elsewhere.
Save Guana Cay case number 2 challenges all of these so called “permits”.
The defendants in this action are The Queen, the Director of Physical Planning, The Prime Minister, the Town Planning Committee, the Minister of Maritime Affairs and Labour, the Minister of Public Works and Transport, the Commissioner of Police, the Water and Sewerage Corporation, the Hope Town District Council, the Attorney General, and the Developers, Passerine at Abaco Limited, Passerine at Abaco Holdings Limited, Bakers Bay Limited, Bakers Bay HOA Limited, Bakers Bay Marina Limited, and Bakers Bay Foundation Limited.
Save Guana Cay claims that the defendants did not have lawful authority to give the permits; that contrary to law the citizens of Guana Cay were not consulted; and that in any event granting the permits was irrational and contrary to the Constitution because they discriminate against Bahamians and residents who have to pay customs duties while the Developers and their buyers invest and own tax free.
Save Guana Cay also claims that Crown and Treasury Land is only for public purposes and for Bahamians. It is not supposed to be given away to foreign developers, for their profit, tax free.
No agreement under the Hotels Encouragement Act was given by way of disclosure; so the citizens of Guana Cay ask this FNM government to make full disclosure and tell the public on what lawful basis Customs is allowing Bakers Bay to import materials customs duty-free?
The Association continues to ask for discovery and will shortly be seeking another injunction. We will go to the Privy Council again if necessary. The English seem to have a little more respect for local and environmental rights than our own country.
Bakers Bay is continuing to desecrate, destroy and ruin the environment. See the photos exhibited with the court papers.
The citizens of Guana Cay will continue to fight for their rights as against the PLP, the FNM, and these destructive foreign Developers who have taken away their environment, heritage and quaint, picturesque Family Island.
Troy Albury is the president of Save Guana Cay, and copies of the action and his affidavit are attached as well as a copy of the Court order.
This war will continue and the citizens of Guana Cay need funding to continue to fight for their rights. We invite the public to visit our website, contribute to our cause financially, and to give support by letters to the Editors, press statements, telephone calls to the FNM members of parliament and in any other way possible.
This is not just about Guana Cay! This is a fight for the future of the Bahamas! What is happening in Guana Cay is one of the more abusive examples of what is happening all over the Bahamas.
Save Guana Cay is a member of Save The Bahamas and supports all those other freedom and environmental fighters in Nassau, San Salvador, Bimini, Harbour Island, Mayaguana, Rum Cay, Exuma and elsewhere in the Bahamas, the Caribbean and the rest of the world, fighting to protect their homes, cultures and environments from ignorant and blind politicians and rapacious and destructive developers. The politicians care for nothing more than to win political brownie points by announcing some development and the developers to make a fast dollar!
Please help us to protect our children’s heritage and the future of the Bahamas!
Frederick R. M. Smith
Counsel to SGCRA
05.14.07 | Legal Case
Save Guana Cay Reef calls on the new FNM Government to bring Sunshine to Guana Cay
The Save Guana Cay Reef Association continues its fight to protect the rights of the Bahamians and residents of Guana Cay.
After having completed a very successful international exposure of their plight at the United Nations, the Association applauds the FNM Government’s commitment to freedom of information and, in particular, Prime Minister Ingraham’s speech in Abaco promising that the Ministries of Government will now make relevant information available to the public.
For 2 years, the Association has been trying to discover what permits, approvals, concessions and/or licenses may have been issued to the Bakers Bay Developers by the Hope Town District Council, Ministry of Works, BEST Commission, Ministry of Health and other Government organizations.
Disgracefully, for 2 years, they have been stonewalled and not one piece of information has been provided, other than by Captain Allens of the Docks Committee.
The Association celebrates the arrival of the Government in the sunshine and is now taking the FNM Government, its Manifesto, and the promises of the Prime Minister at face value.
Today, the Association has written to Mr. Hubert Ingraham, the Prime Minister, Mr. Zhivargo Laing, the Minister of State for Finance, Mr. Sidney Collie, the Minister of Lands and Local Government, Mr. Neko Grant, the Minister of Tourism, and Mr. Earl Deveaux, the Minister of Works requesting that Bahamian citizens at Great Guana Cay be provided with the normal information which citizens of a country, especially those on the local level, should be entitled to.
Attached are copies of all of the letters.
The citizens of Guana Cay continue to fight for their environment and in particular, for their rights under the Local Government Act, the visionary piece of legislation which the FNM enacted when they were in power in 1996.
In addition, the Association’s letters call upon Mr. Collie as the Minister responsible for Crown Lands to stop the trespass and destruction of the Crown Land at Guana Cay, especially since Ms. Deborah Fraser of the Attorney General’s office has given evidence that no Crown Grants had yet been issued to the Bakers Bay Developers. The rights of the citizens of Guana Cay have been savaged over the last 2 years by the PLP administration, their small community has been destroyed and their environment is being devastated.
The citizens of Great Guana Cay call upon the FNM Government to make good on its promises to protect the Bahamian people from abuse, protect Crown Lands for Bahamians, and make full and transparent disclosure about what the PLP Government has allowed the Bakers Bay Developers to do at Guana Cay.
Frederick R. M. Smith
05.21.07 | Legal Case
"Case May Rock Nation"
On May 17, the islanders of Great Guana Cay once again met with Discovery Land Company in court. As you know, the locals lost the case in the Supreme Court during the time that Perry Christie served as Prime Minister.
This image shows the guarded entrance to the crown and treasury land - now illegally in the hands of the developer. The appeals case looks at the illegality of giving crown and treasury land - similar to National Park land in the United States - to a foreign entity for a pittance.
Photo by Anonymous.
The appeal was extremely successful, and the appeals court judges asked very, very difficult questions of Discovery Land Company. Michael Barnett, lead attorney for Bakers Bay Club, was largely at a loss as judges asked very specific and very pointed questions.
The judges did not place an injunction on Bakers Bay Club; but they promised to have a decision within two months. Bahamians are very excited about the prospect of having the Supreme Court decision overturned, as the evidence that the developers and the now-out-of-office Central Administration together engaged in an illegal and unethical proposition that willfully hid crucial details from locals, and intentional stepped over legal bounds to make this monstrosity happen.
5.22.07 | Legal Case
What are they Hiding?
The following letter from Fred Smith to the attorney for Discovery Land Company/Bakers Bay Club and the Former Bahamian Prime Minister's administration steps up the requests to see documents that Discovery Land Company is trying very, very hard to keep hidden from public view. In the United States, these sorts of documents are public. But Discovery Land Company, and the former administration don't want the public to find out what they know, because if these documents are uncovered, we'll find out just how illegal the relationship and Heads of Agreement between the two entities really is.
Mr. Michael Barnett
Graham Thompson & Co.
Re: Save Guana Cay Reef Association – Your undertaking to immediately provide copies of Permits; discovery generally
Thank you for your letter of the 22nd instant.
I am surprised that your clients are resistant to the scope of documentation to be discovered.
I note your reference to the provision of “permits” relating to your clients “construction” on Guana Cay.
This is not what was undertaken.
You will recall considerable exchanges between the Court and Counsel for the parties relating to the basis upon which your clients were engaging in any activities on the Cay.
You represented to the Court that everything your clients were doing had all necessary approvals, permits, licenses, agreements as may have lawfully been necessary under the relevant statute, be it from some central government or local government authority, and hence your clients’ activities never did and do not rely on the Heads of Agreement as a basis for engaging in any activities.
In particular, in relation to the lawful basis upon which your clients were purporting to build anything, lay out roads, etc., or the basis upon which they were importing materials (for instance, under the Hotels Encouragement Act or the Heads of Agreement) and the basis upon which they were conducting extensive dredging, drainage, construction works, bulldozing, destruction of mangroves, tearing down and uprooting forests, taking away sand and blocking Joe’s Creek, and particularly any such works on the Crown and Treasury Lands and the basis upon which your clients purported to possess and occupy such lands.
You will recall that, as a result of such representation, the Court of Appeal denied the injunction because they held, if your clients had all lawful permits even if my clients won the appeal, your clients may still have been lawfully entitled to do what they had been doing.
Whilst my clients do not agree with that proposition it is nonetheless the basis upon which you undertook to provide the relevant documents and the basis upon which the Court refused the injunction.
Unless we have your confirmation by return that your clients will comply with the undertaking given to the Court and not in the narrow sense which you now suggest, we shall have no alternative but to take action upon the breach of your undertaking.
In addition, please provide the remaining items sought.
CALLENDERS & CO.
Frederick R. M. Smith
April 24, 2007 | Legal Case
SGCR Press Release: Their homes have been invaded, their lands have been stolen
SGCR Press Release: Their homes have been invaded, their lands have been stolen | 04.24.07
Save Guana Cay Reef Association alerts press to their ongoing battle for local and environmental rights in the Bahamas
In October of 2006, the Association appealed the Decision by Acting Justice Norris Carroll dismissing the judicial review against the Government and the Bakers Bay Developers.
The appeal is set for hearing on May 17, 2007. In the meantime, the Save Guana Cay Reef Association has applied for an injunction to restrain the Developers from continuing the desecration of the environment.
Since the Judgment the Developers have torn down many acres of forests, destroyed huge mangrove swamps and have been extremely busy dredging the marina basin.
In addition, the Developers have made applications to build but the Hope Town District Council, based on the objections from the Association, has deferred granting permits.
In addition, despite many requests from the Association to the District Council to let them know what permits have or have not been given, both the Attorney General and the District Council have failed to provide information to the residents of Guana Cay.
Thus, it can bee seen that the fight to protect local government rights and the environment in Guana Cay is also a fight for all Bahamians for freedom of information.
The Court of Appeal is set to hear the Association’s application for an injunction tomorrow, April 25, 2007, in the Court of Appeal in Nassau.
In addition, however, the Developers have demanded that the Association pay $100,000 by way of security for their costs.
The Association says this is another attempt by the Developers to block legitimate and reasoned challenges to the Government and other development activities.
Counsel to the Association, Frederick Smith, said
“The passionate freedom fighters from Guana Cay will not give up. Their homes have been invaded, their lands have been stolen, their peaceful, quiet and traditional way of life has been challenged by the quest for the almighty dollar.
The people of Guana Cay want the Government and the Developers to know that the Bahamas is not for sale. Our homeland is not for sale. It is not all about the money! People have rights. Local Government legislation gives the people of Guana Cay the right to say what should or should not happen on their island. Dictatorial Cabinet politicians and all for profit developers will remember that the people of Guana Cay are passionate about their local rights and are committed to protecting their environment. The fight will go on despite all the obstacles that the Government and the Developers may try to throw up!”
Foreigner-owned machinery, like tanks, stand ready to plow through Guana Cay's heritage. This photo from early 2006 depicts a part of Guana Cay that has already been destroyed.
In addition, the Save Guana Cay Reef Association is travelling to New York to attend and make a presentation on sustainable development in island locations.
The Association intends to make a presentation before hundreds of delegates at the United Nations. The Association intends to highlight the desecration of their homeland and environment on Guana Cay and to demonstrate that this is but one example of the shortsighted and destructive real estate and marina developments ongoing throughout the Caribbean and other coastal and other Island nations.
Mr. Smith also said
“What is happening in Guana Cay is but a microcosm of the challenges faced by so many other communities in small Island and coastal states and locations throughout the world. We hope that the freedom fighters in Guana Cay will help to educate the world about how important it is to preserve and protect local rights and the environment!”
Attached is a copy of the letter sent to the District Council requesting information which continues to remain unanswered.
Link to copy of unanswered letter
May 4, 2007 | Guana Cay and the Bahamas
Save Guana Cay Reef Secures Donations
Save Guana Cay Reef was recently ordered by the court to put up a $100,000 security bond after applying for an injunction to halt development at Bakers Bay Club. Read the article in The Nassau Guardian:
Article from The Nassau Guardian
November 21 , 2006 | The Legal Case
Supreme Court Decision Flawed, Likely Corrupt
Justice Carroll insults Abaco Sailing Community in illogical Argument
Justic Carroll's supreme court decision to have the local's case against the Bahamian government and the Discovery Land Company was made in a judgment that went on for over 200 pages. In all of those 200 pages, discussion of the environment was limited to just one paragraph. Before reading the paragraph, remember that the environmental arguments made by the locals of Guana Cay are supported by an international consensus of coral reef and conservation specialists, including top-level conservation NGO's. All Bahamian environmental NGO's support their position. Here is Justice Carrol's reasoning:
"It is to be observed that the Applicants do not appear to have anything against the coming of foreign second homeowners or even against foreign persons who come and live on their sailboats or yachts: Thousands of these latter are said to come year after year and the Applicants herein want the environment to be protected so that such persons can continue to come, year after year. They want these kinds of tourists, visitors,homeowners to come but not to the Developer's project! It is a known fact that sailboat owners and yachtsmen also find it necessary while anchored in our pristine waters to get rid of their domestic and personal waste and that for the most part it gets deposited into those pristine waters!"
Great Guana Cay, at any one time, has about 20 visiting sailboats or yachts, most of which are visiting the main settlement harbour, a natural harbour which has been traditionally used for commerce and tourism since the earliest days of the cay. At any one time, about 8 of those 20 visiting boats, most of which are sailboats, can be seen moored in the pleasant Bakers Bay. Bakers Bay itself is one of the attractions that brings sailors to Guana Cay. The peaceful Bay's incredible beauty attracts perennial visitors.
Bakers Bay itself is a seagrass area, facing the Sea of Abaco. It is filled with turtle grass, starfish, and roaming nurse sharks. The environmental impact of about eight sailboats a day on these seagrass beds is next to nothing. These boats drop an anchor, probably leach some gasoline. To suggest that the Abaco sailing community dumps their personal and domestic waste in the seagrass shores of Bakers Bay is illogical and ignorant.
International regulations about disposal of waste are strict; and the sailing community, which itself is an environmentally responsible community, tends to follow these laws carefully. It is undoubtedly extremely unlikely that sailboats in Bakers Bay dump their waste in the bay, ever. Even the chance of being caught by fellow boaters would be enough to dissuade an isolated litterbug.
To compare these 8-boats-a-day to the dangerous megadevelopment being constructed by the Discovery Land Company is preposterous. The Bakers Bay Club will terraform the northern 2/5's of the island, dig out a giant 250 slip marina, build 500 buildings, a hotel, tennis courts, recreation facilities, and invite...yes invite the so-called megayachts - 100-300 foot super-yachts, into Bakers Bay. Their megadevelopment will destroy the coral reef, mangroves and important fisheries associated with the island's only estuary.
Instead of 8 small sailboats a day, there will be access for 250 yachts, plus 4 moorings for super-yachts staffed by armies. A single one of these megayachts weighs more than all the eight sailboats that enter the bay at any given time. And megayachts are not sailboats, either.
This irresponsible comment, the Judge;s sole environmental judgment in this case, indicates he did nothing to learn about the environmental issues in this case. In his 200 page judgment, he does not even mention the words 'coral' or 'reef' one time. 8 small sailboats in a giant bay simply do not, in any way, cause any environmental red flags whatsoever.
Recent news indicates this Judge's decision is not independent. Carroll, who is politically aligned with the PLP party, likely fell to the layers of corruption and deceit now being uncovered about this administration.
Updated November 21 , 2006
| The Legal Case
Justice Carroll Not Independent
Photo by Erik Gauger. The Guana Cay reef is in imminent danger,
according to several well known conservation groups.
A thunderstorm of press has gathered in the Bahamas over the latest of many twists and turns in the Bahamian court case against the Bahamian government and Michael Meldman's Discovery Land Company.
Justice John Lyons, in unrelated court cases, has determined that the Bahamian constitution has been severely compromised. Supreme Court justices must constitutionally have tenure to make Supreme Court decisions - but Justice Norris Carroll is not tenured, and is therefore influenced by the political atmosphere that keeps him employed.
This press release from the locals of Guana Cay comes out as Discovery Land Company asks them to pay for the billion-dollar project's legal fees. This move is another example of the developer's ill will toward the people of Great Guana Cay. While the developer admitted that the local's case against them has helped them change some of their most unsustainable components of their development, they still insist on crushing the local's right to defend their island. In this latest move, the locals also claim that Acting Justice Carroll is not independent of the politics and powers that be.
The allegations of corruption in the current Bahamian administration are making the rounds in the newspapers as it becomes clearer that these allegations of corruption are bringing down the administration. Here is the press release from Save Guana Cay Reef:
At a hearing before Justice Carroll in Freeport today the Save Guana Cay Reef Association took 2 preliminary objections as to the court’s jurisdiction to hear any aspect of the matter and in particular to deal with applications by the Government and the Bakers Bay Developers for an order that the Association pay 2 different sets of costs of the Developers’ and the Government, and asking for them each to be certified fit for 2 counsel each, i.e. 4 sets of counsel costs against the Association.
The Developers were represented by Robert Adams of Graham Thompson and Co, and Leif Farquharson represented the Government. Fred Smith appeared for the Association. No appeal has yet been filed by the Association on the Judicial Review ruling of Justice Carroll as the costs issue had yet to be ruled on.
Mr. Smith objected to the hearing on 2 points. Mr. Smith submitted that,
- based upon the reasoning in the recent rulings by Justice Lyons in Neymour vs. Attorney General, The Queen vs. Pratt and others, and Moss vs. Bahama Reef and Attorney General, Justice Carroll was not an independent judge of the Supreme Court as required by the Constitution and as such Mr. Aubrey Clarke and the Association were being deprived of a fair hearing by an independent and impartial court in breach of their Article 20 (8) fundamental right and freedom guaranteed by the Constitution and that therefore Justice Carroll did not have jurisdiction to hear the Guana Cay costs application; and,
- because Justice Carroll was only an acting judge, he did not enjoy security of tenure as required by the Constitution for a Supreme Court judge, and therefore SGCR was being denied, once again a fair trial by an independent and impartial court. Mr. Smith said he did not have to raise the point earlier at trial because a person could not waive a Constitutional right.
Justice Carroll ruled against SGCR and continued with the hearing of the costs application. The Developers and the Government submitted that costs are normally paid by the loser and this case should not be an exception.
Mr. Smith argued that this was a case of major and general public importance and that his clients should not be penalized in costs. He said;
“The Association is comprised of citizens who were simply standing up for their local rights. The courts are not there just for the rich or powerful. If the Court orders the Association and Mr. Clarke to pay costs it will send a chilling message to people in the Bahamas.”
“It will mean that there is a big huge gate at the entrance to the halls of justice, and you can only unlock the gate with money. If you do not have money, or if you are not big and powerful, stay away because you will not be able to afford justice.”
“This is unconstitutional. People will thereby be deprived of their right of access to the courts for determination of their rights. What’s the sense in having fancy laws and courts if you cannot enjoy their protection…if you get chased away because you cannot afford them? If you cannot afford to get through the gate because you cannot afford the membership fees?”
Mr. Smith also submitted;
“The Developers have already put into evidence that Mr. Clarke and the Association have no assets, so why bother to ask for costs? I’ll tell you why! Because, once the court orders costs, they will put in big fat huge bills, get their certificates and demand payment; then they will hound Mr. Clarke and the Associations into bankruptcy. Then we will not be able to appeal, or if we do huge security for costs will be sought which will again be another roadblock to justice.”
Mr. Adams and Mr. Farquharson submitted that justice should be blind; “The court should not take into account whether you are rich or poor”
Justice Carroll adjourned to make his decision. In the meantime he invited the Developers and the Government to consider being “gracious” to their neighbors and citizens.
In the meantime, Mr. Smith asked for leave to appeal to the Court of Appeal on the 2 objections to jurisdiction.
If Mr. Smith is correct in his second objection as to Justice Carroll not being institutionally independent because he does not have security of tenure, it will mean that the Judicial Review application will have to be heard again by a new judge.
In addition however, if Justice Lyons is correct, and the independence of the judiciary has been compromised by Cabinet’s failure to comply with the provisions of the Judges Remuneration and Pensions Act, there may be no judges with jurisdiction to hear the retrial of the Judicial Review Application. Indeed, the Court of Appeal judges may suffer from the same constitutional infirmity.
“That is the conundrum. That highlights the constitutional crisis” said Mr. Smith. “Until this issue is finally determined by the Privy Council any litigant from 2003 onwards may be able to challenge any ruling or judgment of the Supreme Court on this issue of judicial independence. That is why we must get this determined as soon as possible so that the people of the Bahamas know where we stand.”
“We cannot continue in this Constitutional limbo land!”
November 24, 2006 | The Legal Case
Guana Cay Files its Notice of Appeal
From the Press Release dated November 24, 2006: The Save Guana Cay Reef Association has filed its Notice of Appeal against the Judicial Review judgment of Acting Justice Norris Carroll.
The Association intends to pursue its appeal as soon as the Court of Appeal can hear it. In the meantime, the Association is battling a claim by the Government and its developers for payment of their costs in the Supreme Court trial.
Justice Carroll refused to recuse himself on the costs application. That too will soon be dealt with by the Association.
The Association remains steadfast in its commitment to resist this abusive and inappropriate mega development to which the pristine natural environment of Great Guana Cay has been subjected.
The developers have commenced extensive civil works again.
The Association is now considering other actions and the possibility of an application for an injunction to restrain the developers from continuing with the works in the meantime.
Attached is a copy of the Notice of Appeal and the recent order by Justice Carroll.
October 19, 2006 | The Legal Case
Guana Cay Locals' Supreme Court Case Thrown Out
As widely expected, Justice Norris Carrol threw out the local's Supreme Court case. Construction has restarted at Bakers Bay. The court's decision was based on the notion that the federal government has ultimate authority over the economic direction of the country. The environmental issues, at the heart of this debate, have been addressed by the developer, and were also not addressed in the lengthy ruling.
Although the news is a blow to local rights, tourism and the Bahamas environment, the appeals process, and, if necessary, the Privy Council, come next. Guana Cay locals are energized to end the siege of their island.
A quote from the ruling:
"It appears obvious from the evidence that the Government, in considering this matter, was more concerned with the larger interests of Bahamians as a whole rather than with the obviously strongly felt (and understandable) apprehensions of the residents/landowners. It appears that the Government, whose call it was, was more concerned with more Bahamians in general getting some of the benefits promised by the Development than with the fears and apprehensions of
applicants which the Government obviously does not share and believe are not well founded, looked at objectively."
August 09 , 2006 | The Legal Case
Injunction Upheld against Bakers Bay Club
Privy Council votes to maintain injunction against work at Great Guana Cay site. No construction at Bakers Bay in the foreseeable future. Time and credibility are running out for beleageured developer. Read pre-trial press here
Construction in the marina after the injunction was lifted from May to July (construction has now been halted again) was irresponsible, shifting the nutrient levels dangerously close to the coral reef. Bakers Bay Club will now have to await the decision of the Bahamas Supreme Court in order to continue environment-altering construction.
August 02 , 2006 | Bakers Bay Club
Bakers Bay Club using Intimidation Tactics
|One week after the Privy Council announced construction at the Bakers Bay Club site must be halted, American Bridge (the developer's construction company) appears to be leaving the island. Amidst the noise and the dust and the barges cranes swinging back and forth, Discovery Land Company makes an unusual move.
I am attaching a press release from Save Guana Cay Reef which explains Discovery's latest move. You can also read about it in The Nassau Guardian.
American Bridge workers remove the silt curtain, which was hapharzardly used to minimize silting into the nearshore environment during dredging and construction. It appears that American Bridge is packing up to go, for the time being anyways.
Workers are holed up at the Northeastern end of Great Guana Cay. Living conditions here are harsh, and there are whispers of massive worker backlash against the developer. Now, it appears work is stopping almost entirely.
SAVE GUANA CAY REEF ASSOCIATION
Bakers Bay Developers bring pressure on Association
Make statutory demand before applying to liquidate
Save Guana Cay Reef Association Limited
August 1, 2006
The Association announces that it has been served with a Statutory Demand by the Bakers Bay Developers in respect of costs of $10,000 ordered to be paid by the Court of Appeal on June 28, 2006.
The Statutory Demand is signed by Mr. Joey Arenson, who is a Director of Passerine at Abaco Ltd. and Passerine at Abaco Holdings Ltd.
The Association views this Statutory Demand as a prelude by the Bakers Bay Developers to try to kill the Save Guana Cay Reef Association.
If the $10,000 costs are not paid then the Bakers Bay Developers can petition the Supreme Court to liquidate and wind up Save Guana Cay Reef Association Ltd.
This is another example of the vindictive approach by the Bakers Bay Developers in dealing with the people of Guana Cay.
The President of the Association, Mr. Troy Albury said
“This Demand and threat by the Bakers Bay Developers demonstrates their lack of respect for the people of Guana Cay.
The people of Guana Cay are fighting to protect their culture, tradition and environment. Instead of recognizing the legitimacy of our position, and recognising that we do speak for the people of Guana Cay, Bakers Bay are trying to use this demand for the payment of costs to muzzle and suffocate us to death.
Our Association speaks for the hundreds of Bahamians in Guana Cay who are desperately fighting to preserve our way of life.
It is a disgrace for the Bakers Bay Development Company, even though it is entitled to costs, to use this as a means of trying to kill our Association.”
Mr. Smith, Counsel for the Association, said
“This is highly unusual. The Association, the Government and the Bakers Bay Developers are in the thick of legal battles. We are all waiting for a decision from the Supreme Court.
Usually parties wait until all the legal battles are over and the dust has settled to claim costs that have been awarded and to set off awards of costs that have been made throughout the different stages and levels of the fight .
The attempt by Bakers Bay to collect this $10,000 is simply an attempt to bring pressure to bear on the people of Guana Cay to stop their fight for justice.
The people of Guana Cay will not be intimidated”.
The Association has appealed the decision of the Court of Appeal awarding the costs against the Association and if Bakers Bay Developers move to liquidate and wind up the Association, they will have to apply for a stay pending the outcome of the Privy Council Appeal.
A copy of the Statutory Demand is attached hereto. Section 188 of the Companies Act 1992 Chapter 308 provides that if the debt is not paid within 21 days of service the Developers are entitled to present a winding up petition in the Supreme Court against the Association.
July 27, 2006 | The Legal Case
Massive Court Victory for Guana Cay Islanders
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.