Save Guana Cay Reef Association

Press Release 

Government Back pedals on Heads of Agreement.

Files Affidavit saying it needs to go to Parliament

National Economic Council hoodwinks investors!

7.2.06

Parliamentary Approval needed!

In an Affidavit filed in the upcoming trial in the Guana Cay matter, Mrs. Deborah Fraser, Director of Legal Affairs in the Attorney General’s Office, has confirmed that

“None of the leases of either Crown or Treasury Land agreed to be granted in the Heads of Agreement between the Government…and the Developers in respect of the proposed development at Great Guana Cay…have been executed”.

She also said that she was aware of the

“Ministry of Finance Act…requires a resolution of both Houses of Parliament with respect to the disposition…of Crown Land, and for the prior approval of the Governor General with respect to leases or licences exceeding 3 years”.

Duping Investors

Mr. Smith, Counsel for the Save Guana Cay Reef lobby said

“At Clause 6 of the Heads of Agreement, the National Economic Council (which does not exist as a legal entity), says that it “agrees to grant to the Developers” the leases of the Crown and Treasury Lands. First of all, it is an agreement with an entity that does not exist and, secondly, it did not tell the Developers that Parliament needed to approve this. The Government, through the National Economic Council, hoodwinked the investors.” 

Mr. Smith further said

“In effect the Government is now back pedalling. How can investors have any confidence in entering into Agreements with the Government if, as soon as they are challenged, the Government takes a two-faced approach and says that the Agreements are worthless and of no effect in that Parliament needs to approve them, Ministries need to exercise their statutory powers, and Local Government District Councils are the ones which decide who gets licences. This is extremely hypocritical to investors and casts a terrible light on good faith negotiations between the Government and Developers be they Bahamian or non-Bahamian”.

Mr. Smith continued

“Investors need to have confidence in the integrity of the process and need to know that the Rule of Law is respected in the Bahamas. On the one hand the Government pretends to agree to give away Crown Land, Treasury Land and make all kinds of tax concessions and waivers when, in effect, it does not have the power to do so through the Heads of Agreement. Pulling the wool over investors’ eyes is a hypocritical way of doing business. It will result in foreign investors, in particular, regarding the Bahamas as a crooked little Banana Republic where anything goes as long as it is expedient for the Cabinet of the day”.

Mr. Smith concluded by saying

 “How can any investor have any confidence and feel secure about their investment in the Bahamas when even the Government does not respect the law?”

He further said,

“These Heads of Agreement are just jokey pieces of paper. They are shams used to entice investors but in reality giving no legal rights.  Based upon that, investors feel that they have a right to go ahead with projects and spend their money. What it leads to is this a kind of unnecessary war waged between the citizens of Guana Cay, the Government and the Developers. It would be so simple just to do it right the first time”.

Environmental Destruction

Mr. Troy Albury, the President of the Save Guana Cay Reef Association, said

“If Parliament has not agreed to give the Crown Leases and Treasury Land, then how can the developers have torn down and destroyed the forests and mangroves in Guana Cay? They have burnt the forests, cut roads and started dredging. So far, they have not even produced any permits.

And now the Government says that they have not even given them a lease of the Crown Land or Treasury Land.

The people of Guana Cay want to know is why isn’t our Government protecting our Crown Land? Why is it letting this foreign company rape and pillage our heritage and our children’s heritage? We are taxpayers, citizens and voters and our Attorney General and our Government should be prosecuting, and not defending, the developers if they are acting illegally!”

Attached to this Press Release are photographs which show the recent pillage and destruction of the Crown Land areas despite the fact that no conveyances or leases have been given.

Mr. Smith said that

“The destruction to the environment is devastating”.

 It is shocking that the Developers have been given carte blanche to destroy the environment. This is particularly extraordinary in the face of another Affidavit filed by Dr. Donald Cooper, the Undersecretary in the Ministry of Health and Environment, with responsibility for the management for the BEST Commission. He says at paragraph 10 of his Affidavit filed on January 30, 2006, that

“The BEST Commission still awaits receipt of a final design for the proposed Golf Course that would minimize or eliminate any ecological risk associated with the current design, and a revised EMP”.

Mr. Smith said that

“What is so shocking is that, at Clause 2.2 of the Heads of Agreement, the Developers agreed that they would only proceed once an Environmental Management Plan had been approved by the BEST. Section 2.2 says that the EIA and Environmental Management Plan should be completed prior to commencement of construction. Any work undertaken by the Developers in violation of the EIA and EMP without the approval of BEST shall be stopped”.

Mr. Smith continued

The people of Guana Cay want to know, if the very agreement which the Developers had with the Government says that an EMP needs to be completed “prior to commencement of construction” and Dr. Donald Cooper says that the BEST still awaits an EMP, how can our Bahamian Government be allowing the Developers to rape, pillage and ruin the environment with impunity.”

 
Mr. Smith said

“I call upon the Commissioner of Police and the Attorney General to do their duty and to immediately investigate and enforce the laws of the land and to prosecute the Developers if they have breached any laws!”.

Current Status of Action

On Friday, February 3, 2006, the Attorneys for Save Guana Cay Reef Association, Frederick Smith, and George Missick, appeared before Justice  Norris Carroll in Freeport. It was a Chambers application for an injunction to restrain the Developers and the Government from proceeding any further with the Development, alleging that the Developers had breached the undertaking to the Court of Appeal by continuing the works.

The Government flew in from Jamaica noted Constitutional Attorney, Dr. Lloyd Barnett, and also had 3 further lawyers from the Attorney General’s Office.

The Developers also appeared  with Mr. Michael Barnett and several lawyers from Graham Thompson & Co., along with Messrs. Marshall and Arenson of the Developers.

A contingent of citizens from Guana Cay, including Aubrey Clarke, the new Applicant and Mr. Troy Albury were also present along with Anthony Roberts.

Save Guana Cay also applied for an order that the Developers and the Government make discovery of Cabinet papers, minutes of meetings, permits or approvals which may have been granted, or applications being considered.

Save Guana Cay also applied for an order that the Developers and the Government witnesses who swore affidavits, including Mr. Wendell Major, appeared for cross examination.

The hearing concluded Friday evening and the Judge adjourned his decision to February 13.

The trial is said to begin on February 13 and the Court has set aside 3 days to hear the matter on an expedited basis.

Also attached to this Press Release are copies of  the Affidavits of Deborah Fraser and Donald Cooper filed January 30, 2006, and the photographs.

Frederick R. M. Smith