Principals await decision in Save Guana Cay case

By LEDEDRA MARCHE

Senior FN Reporter

lededra@nasguard.com

With submissions now in from all three principals in the judicial action to Save Guana Cay, they now await Acting Justice Norris Carroll's judgement.

Attorney for the developers of Baker's Bay, Abaco, Michael Barnett, was the final respondent to be heard in the Judicial review. Yesterday, he submitted that the action was not against his clients, nor was it an application for any alleged breach of undertaking.

Government entered into a Heads of Agreement with the developers for the $500 million project to include a luxurious 75-room hotel, 350 homes, a golf-course and a 180-slip marina on 450 acres of private land and 150 acres of beach front Crown Land.

The applicants, the Save Guana Cay Reef Associ-ation, are challenging the Heads of Agreement, claiming, among other things, the move was illegal, the parties entered into it irrationally and failed to consult with the residents as promised.

In that vein, the association has filed a suit to block the multi-million dollar Abaco project and has named Prime Minister Perry Christie, Wendell Major, secretary to the National Economic Council, Eugenia Cart-wright, treasurer of The Bahamas, and the developers as respondents in the suit.

Fred Smith, attorney for the association, spent four days outlining his clients' reasons for applying for a judicial review.

He also drew references where his clients, a number of residents of Guana Cay, were challenged by Acting Justice Carroll's decision to refuse their applications to have the developers and government make discovery of Cabinet papers, minutes of meetings, permits or approvals.

The justice also declined the attorney's request for leave or a court adjournment on appeal.

The association maintains that the Baker's Bay project is harmful to the land and marine environment and was irrational for the government to enter into agreement with the developers.

On Wednesday, Dr. Lloyd Barnett, attorney for The Crown, answering allegations by Attorney Smith, submitted that the government concluded that the project was in the best interest of the people of The Bahamas.

He added that the project is extensively complex and expensive and any developer wishing to enter into such a project must undertake considerable preparatory work and the Environmental Impact Assessment (EIA), which the association claimed was incomplete, provides useful information but does not bind the decision made to any particular court.

The attorney pointed out that the EIA is not all negative as the applicants imply but convenes many positive features, including plans for ameliorating the impact of the development.

Dr. Barnett submitted that it was therefore impossible to categorize the government decision as irrational.

In Supreme Court Thursday, Mr. Barnett, attorney for the developers, noted that the court was not being asked to police or enforce or prevent a breach of the Heads of Agreement.

That, he said, is a matter between the parties to that agreement — the government and developers.

Mr. Barnett submitted that the Heads of Agreement is a written document and must be construed in accordance with its written terms.

In fact, the attorney for the developers submitted that an EIA was prepared, as is required by government, before they entered into the Heads of Agreement.

Furthermore, he pointed out that the BEST Commission described the impact of the development on the environment as "satisfactory."

And, he submitted that the affidavit of Dr. Michael Risk, the expert retained by the applicants, on the EIA called it a "first class" plan and stated that if the project was operated according to the standards outlined in the EIA, it should operate at the highest levels of environmental stewardship.

On the point of proper public consultation, Mr. Barnett also submitted that the government held a public meeting in August 2004 before entering into a Heads of Agreement and at that time the concerns of residents of Guana Cay were voiced.

Subsequently, he said, the plans of the developers were modified to take into account some of the concerns of the residents and the BEST Commission.

He argued that there is no statutory regime in The Bahamas which provides for the public to be consulted before government enters into a Heads of Agreement.

However, attorney Smith objected to the statement.

"Absolutely no evidence of an established practice," he continued, adding that the only evidence of expressed promise is that contained in the affidavit of Walter Sweeting.

That evidence refers to a telephone conversation he had with Minister Allyson Maynard-Gibson, Mr. Barnett submitted, noting that there is no other evidence of this or any expressed promise.

He said the fact that the applicants may not be satisfied with the decisions government made prior to the execution of the Heads of Agreement does not give them a right to have the agreement quashed.

Attorney Smith has until Monday to submit a written reply to the Supreme Court.

In receipt of that reply, Acting Justice Carroll will deliberate and deliver his judgement.

© 2006 The Freeport News