The highly-publicized case involving the challenge to the multimillion-dollar Baker’s Bay development at Guana Cay wrapped up in the Freeport Supreme Court on Thursday with the attorney for the developers insisting that the government was well within its rights to enter into a heads of agreement with Discovery Land Company for the project.
Save Guana Cay Reef Association (SGCRA), the group that opposes the development, is asking the court to declare that the heads of agreement the developers have with the government is null and void, which would essentially block the project from proceeding.
On Thursday, Michael Barnett, the developers’ attorney, said it was not the function of the court to second-guess the government on what is essentially a policy decision.
“It is not the function of the court to substitute its own decision to that of the government,” Mr. Barnett said.
“The sole issue is whether any reasonable government could have entered into the heads of agreement.”
Mr. Barnett said the government itself determined that “the development would impact positively and significantly upon the economy of the said Commonwealth and the island of Abaco in particular.”
Mr. Barnett argued that the court in this case is not being asked to “police or enforce or to prevent a breach of the heads of agreement”.
He questioned whether the policy decision of the cabinet to enter into the heads of agreement “qualifies as a subject for judicial review.”
“We submit that the decision is not one that qualifies for judicial review at the instance of the applicants [SGCRA] because it is a pure policy decision of the cabinet and not a decision that affects any rights of the applicants,” Mr. Barnett said.
Fred Smith, SGCRA’s attorney, had argued during the case that the agreement was illegal and the result of an irrational decision.
Mr. Smith contended that the government abused its executive powers in granting leases and concessions, sidestepping the proper statutory bodies, and it failed to have proper public consultation prior to signing the agreement.
Dr. Lloyd Barnett, the government’s attorney, argued on Wednesday that the Baker’s Bay project was in the best interest of the Bahamian people.
Dr. Barnett said, “The government at the highest level of policy and decision-making came to the conclusion that the development project is in the best interest of the people of The Bahamas.”
He explained the extent of the project and its undertaking.
“The project is extensive, complex and expensive, and any developer wishing to enter into such a project must undertake considerable preparatory work, expensive preliminary investigations, engineer and design investigations,” he said.
Dr. Barnett said the ministers with responsibility to grant permits, licenses and concessions for the proposed development all participated in the decision-making.
“It is imminently sensible that a project of this standard should be studied and considered in a coordinated way by the various ministries who are operating in the examination of the proposals,” he added.
Dr. Barnett said Wendal Major, secretary of the cabinet and of the National Economic Council (NEC), was acting in his rightful capacity as a representative for the government despite allegations by Mr. Smith to the contrary.
Mr. Smith contended that Mr. Major has “no power to contract any agreement” nor to confer benefits as are stated in the heads of agreement.
Dr. Barnett said that it is clear throughout the heads of agreement document that it is the government who is the authority.
As secretary to the cabinet, the attorney said Mr. Major represents the cabinet collectively, as the ministers in the various capacities are in control of the government and form the foundation of executive action.
“In respect of this heads of agreement and this [Baker’s Bay development project], all relevant statutory powers are granted to ministries of government individually or collectively and are required to be exercised on the basis of policy considerations,” he said.
Dr. Barnet also noted that the project will provide significant employment opportunities.
“Not only has the government come to a conclusion that the project is of economic interest to the Commonwealth of The Bahamas, but it has gone through the trouble of providing a detailed and comprehensive provision to ensure a fair engagement of Bahamian labour,” he said.
Dr. Barnett noted that the heads of agreement says the hiring of “Bahamians is of paramount importance” binding the developers to “make every effort to fill all its positions with Bahamians”.
Dr. Barnett also responded to Mr. Smith’s allegations that the government was negligent and ignored the environmental issues the SGCA claims are associated with the project.
He said both the heads of agreement and the EIA have carefully provided for a monitoring system, which will measure the impact of the development on a continuous basis.
As all sides await an outcome, Mr. Smith has promised that the residents opposing the project will continue their fight.
“This is one case,” he said.
“The people of Guana Cay do not want the developers or the government or local government to think for one moment that they’re laying down their arms. This is going to be a fight until the bitter end.”
By: Daphne McIntosh, The Bahama Journal
