ON APPEAL FROM THRE COURT OF APPEAL OF THE COMMONWEALTH OF THE BAHAMAS
SAVE GUANA CAY REEF
(2)THE MINISTER RESPONSIBLE FOR CROWN LANDS
(3)THE TREASURER OF THE BAHAMAS
Submissions by the Petitioner in support of an application for a stay of the Court of Appeal’s Judgment dated May 8, 2006 pending the hearing of Petition for Special Leave to Appeal to The Privy Council
This is a matter is of great public importance for the future of The Commonwealth of The Bahamas.
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.
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.
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.
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.
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.
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.
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?
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.
The Developers give a voluntary and unsolicited Undertaking not to develop pending determination of the case
The history of the action is set out in the Petition.
The intended Developers of Great Guana Cay (all of whom are described in the Petition, and who are not parties to this appeal but who have participated as interested parties throughout) undertook not to continue with the development of a $500 Million 10 year plan for an hotel, marina, condominium, real estate and golf course development on Great Guana Cay pending the determination of judicial review proceedings brought by the Petitioner reviewing the Heads of Agreement entered into between the Developers and the Respondents who purport to represent the government in relation to the development.
The undertaking was given and accepted by the Court of Appeal on 22nd November 2005 following the hearing of an appeal at which the Court of Appeal set aside an order by the Supreme Court dismissing the judicial review proceedings and ordered that those proceedings be heard on an expedited basis before the Supreme Court. Because the undertaking was given, the Petitioner did not press its appeal against the lower court’s refusal to grant the injunctive relief sought in the court below and in view of the undertaking the Court of Appeal did not determine that aspect of the appeal.
The judicial review proceedings were heard on an expedited basis and concluded 23rd February 2006. Judgment was reserved and is pending.
The undertaking was given because the Court of Appeal expressed a concern that there should be no irremediable damage to the environment and the Petitioner’s rights pending the determination of the judicial review proceedings: were there to be such damage, then the proceedings (whose object is, in large part, to prevent such damage ever occurring) would be rendered pointless.
The rationale behind the accepting of the undertaking remained as forceful at the time of Judgment as when the undertaking was accepted. Were the development to proceed there would be substantial irreparable damage to the Petitioner’s rights and the environment (Your Majesty is referred to the attached photographs showing the extent of destruction occurring since the Developers have been relieved of their undertaking). If the judicial review proceedings were to succeed, and the development and or the process declared unlawful, then this damage could not be reversed. In short, the proceedings would have been rendered pointless. In addition, the Petitioner’s would have been denied their right to have had their appeal properly determined by the Court of Appeal. Instead, because of the undertaking the Court did not proceed to judgment, or even make a determination against the Respondents on the merits of the appeal; rather it accepted the undertaking only from the Developers in an effort to preserve the status quo.
Had a determination of the appeal occurred, then a disaffected party could have appealed to the Privy Council and sought such intervening preservative relief as may have been appropriate. By proceeding to give the undertaking and now obtaining a judgment releasing them of it, the Court of Appeal have deprived the Petitioner of a fair hearing under Article 20 (8) of the Constitution and depriving the Petitioner of its right to have had its appeal properly disposed of.
The Petitioner respectfully submits that the Court of Appeal wrongly accepted the Developers’ argument that the position had changed because the resolution of the judicial review proceedings took longer than they anticipated. This argument is unsustainable:
17.1. The judicial review hearing took place within a short time of the intended date and the judgment (in what is an admittedly a matter of great public importance and interest and is a complex matter) has not taken an unexpectedly long time to be delivered,
17.2. The delay to the development pending the delivery of judgment is likely to be no more than a few months at most. If the development goes ahead in the meantime, the damage to the Crown and Treasury Lands, which the Developers do not even yet have title to, would take generations to repair, if indeed the wetlands and the forest could ever recover. The Developers asked the judge to deliver his ruling as soon as possible and the judge indicated that he would seek to do so.
17.3 The entire matter in the Supreme Court was argued and dealt with by the judge on the basis that the undertaking was in place and would be until he delivered his ruling. Indeed the judge even declined to grant injunctive relief applied for by the plaintiffs below because the undertaking was in place, and in particular because the Developers argued that the undertaking was as good as the injunction and added nothing more. Further, although the Petitioner had a right of appeal on such refusal it did not appeal because the trial was basically over and the ruling was soon forthcoming, and in any event the Developers by then (end of February 2006) seemed to be respecting the undertaking, which they had not been hitherto doing. Relieving them of the undertaking would be unjust in such circumstances.
17.4 The Developers cannot in any event continue with the development in the meantime even if the undertaking was lifted. The Heads of Agreement provides that before the any construction at the development can commence an Environmental Management Plan has to be approved (at clause 2.2).
17.5 In addition, there is no evidence that the Developers have obtained the necessary, or any permits for any part of the development. The following permits (amongst others) are required:
(a) Town Planning permits. Under s. 14(1)(iii) of the Local Government Act, Chp. 37 (“the LGA”), the District Council (through appointed boards) exercises the functions of a Town Planning Committee under the provisions of the Town Planning Act, Chp 255 (“the TPA”). These functions include considering, approving or rejecting applications for the erection on, alteration of or change of use of any building or land (s. 7 of the TPA). No person is permitted to erect a building on or change the use of any land without first obtaining approval in this way (s. 7(1) of the TPA). No Town Planning Permits have been obtained for the development, and thus any erection or alteration of buildings or change in the use of the land upon which the development is intended to occur would be unlawful.
(b) Building Permits. Under s. 14 (1)(b) of the LGA, the District Council has and exercises in relation to its district the powers of the Building Control Officer to grant building permits under the provisions of the Buildings Regulations Act (“the BRA”). These functions include the granting or withholding of building permits in respect of all building operations, and under s.4(1) of the BRA, no person is permitted to carry on any building operation save in accordance with a valid building permit granted in this way. No Building Permits have been granted in respect of the Development and thus any building works would be unlawful.
18 In light of the above the Developers’ contention that they would suffer prejudice were the undertaking to remain in force for the short time it would take prior to the judicial review proceedings being determined is unsustainable. This is a 10 year development plan. In the circumstances, the application to withdraw the undertaking should have been refused.
The injunction, stay and or conservatory order sought from the Court of Appeal and further submissions why it should now be granted
19. The Petitioner originally sought an injunction against the Respondents in terms similar to the motion now filed by the Appellant. The injunction application was originally dismissed and renewed on appeal before the Court of Appeal at the same time as the rest of the appeal in November 2005. Upon the Developers proffering their undertaking, the original injunction appeal was not proceeded with.
20. In view of the motion by the Developers to be relieved of their undertaking, the Petitioner sought an injunction from the Court of Appeal, or a stay and or conservatory order pending any appeal to Your Majesty in Council. Having decided to release the Developers of their undertaking, the Court of Appeal was wrong to refuse to grant the injunction, stay or conservatory order for the reasons set out hereunder. The Petitioner further relies on such reasons in further support of why a stay should now be granted.
21. If the undertaking is withdrawn, there needs to be in place protection to ensure that there is no irreparable harm to the Petitioner’s rights and the environment pending the determination of the judicial review proceedings. The prejudice arising from the absence of such an injunction were the proceedings to succeed would be immense: irreversible environmental damage. There would be no prejudice to the Developers in not continuing with the development pending the determination of the proceedings. This Development is not, for instance the construction of a dam, or power plant or other urgently needed public infrastructure for the benefit of the general public. It is nothing more than a real estate development for private, not public benefit. The government and thereby the people of the Bahamas get very little if any taxes, in view of the concessions intended to be given, and more to the point, the areas where the development has commenced, where the Developers have begun dredging and where they have torn down much of the forests are Crown and Treasury lands in respect of which no approval for leasing has been sought or given by Parliament as required by statute.
22. The Court of Appeal should have granted an injunction, stay or conservatory order against the Respondents and the Developers pending the final determination of this matter. Again, this would have ensured that no irremediable prejudice would have occurred that could not be reversed following final determination of the judicial review application by the Supreme Court. In particular, it was sought to enjoin the Respondents from granting the various leases and permits envisaged in the Heads of Agreement. It is feared that, as with the environmental destruction, the granting of such leases and permits prior to the determination of the lawfulness of the Heads of Agreement would be irreversible. The Developers have no colour of title to be on the Crown or Treasury land in any event.
23. It is submitted that there can be no prejudice to the Respondents or Developers as a result of such an injunction, stay or conservatory order, since the development cannot in any event lawfully continue pending the determination of the proceedings (for the reasons set out above).
24. Furthermore, it would be quite extraordinary if officers of the Crown were to continue to permit the development whilst its lawfulness was in question before the Courts, and when there is absolutely no evidence of any permits having been issued by any statutory or ministerial authority whatsoever and when there has been no lease or grant of Crown or Treasury land and most of the devastation has been occurring and is threatened to occur thereon, and despite no colour of title, the Developers began to conduct extensive civil works on the Crown and Treasury Land.
25. In circumstances where there have been no permits and no Crown Grant or Treasury Leases there should be no reason not to stay the Development pending the ruling in the court below.
26. It must follow that since the Developers, unsolicited, gave the undertaking, and did not even ask for an undertaking in damages they themselves perceived that there would be no irreparable harm to them or damage in offering to abide the outcome of the trial.
27. Having given an undertaking to abide the outcome of the trial, there was no logical reason why they should have been released of it.
28. Given the facts in this matter; i.e. the time when the challenge first arose; the extent of the works thus far; this is not a matter of critical national, social, political and economic importance; little economic benefit is accruing top the Bahamas as most taxes have been waived under the Heads of Agreement and therefore the Treasurer is not being deprived of taxes if the development does not proceed; Parliament has not even been moved to resolve to give the lease or grants of Crown Land; there are no public works to be conducted; this is a 10 year development plan; there is no evidence of any permits having been issued to conduct any works; no EMP has been provided by the Developers; there is no unemployment being remedied at Great Guana Cay as they are already 100% employed; there is no crisis of economic adversity which can be caused by a stay, and in any event, despite the undertaking, almost 100 Bahamians have remained employed to do works for the Developers unconnected to the matters in respect of which relief is sought; the development is really only about a private, foreign, commercial real estate venture, and simply put, there is no crisis, it would have been appropriate to maintain the staus quo and issue the injunction.
29. Any claims by the Developers that the delay is causing irreparable harm, financial damage or profit loss, is untenable because they should not have been doing the works that they had already done up to the date of the preferment of the undertaking.
30. The Court of Appeal erred in failing to take into account that there was critical and imminent danger of further irreparable harm to the physical environment, and the Appellant’s private and public law rights.
31. Further, the Court of Appeal erred in failing to take into account that there has already been extensive use, destruction and devastation of Crown and Treasury lands with no colour of title and in the absence of evidence of any grant or lease.
32. Further, the Court of Appeal erred in failing to take into account that the photos and evidence show the Developers are poised to launch into further extensive works.
33. Further, the Court of Appeal erred in failing to take into account that there is no compelling public interest to drive the Development forward.
34. Further, the Court of Appeal erred in failing to take into account that neither the Developers nor the Respondents gave any evidence of any overall lawful omnibus permit or specific right to do anything which they have done so far; thus the relief sought by the Petitioner would not be stopping the Developers from doing anything which they have lawful authority to do.
35. The Court of Appeal ought to have found that since the Developers rely on the validity of the Heads of Agreement (HOA), and since the HOA, as they and the Respondents allege, does not give them lawful authority to do anything without permits, the interim relief sought in preventing them from doing the things outlined in the HOA would cause them no harm, a fortiori, in the absence of evidence of statutorily required permits, they should not be proceeding in any event.
July 25, 2006.
Frederick Smith Counsel and Attorney for The Petitioner