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COMMONWEALTH of the BAHAMAS in the COURT of APPEAL Sccivapp

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COMMONWEALTH of the BAHAMAS in the COURT of APPEAL Sccivapp COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL SCCivApp. No. 70 of 2006 B E T W E E N SAVE GUANA CAY REEF ASSOCIATION LTD. 1st Appellant -and- AUBREY CLARKE 2nd Appellant Ex parte THE QUEEN - V - WENDELL MAJOR As Secretary to the National Economic Council 1st Respondent - and - THE MINISTER RESPONSIBLE FOR CROWN LANDS In the person of the Honourable Mr. Perry Gladstone Christie Prime Minister of the Commonwealth of The Bahamas 2nd Respondent - and – THE TREASURER OF THE BAHAMAS 3rd Respondent - and - PASSERINE AT ABACO LIMITED 4th Respondent - and - PASSERINE AT ABACO HOLDINGS LIMITED 5th Respondent -and- BAKER’S BAY LIMITED 6th Respondent -and- BAKER’S BAY HOA LIMITED 7th Respondent -and- BAKER’S BAY MARINA LIMITED 8th Respondent -and- BAKER’S BAY FOUNDATION LIMITED 9th Respondent Before: The Rt. Hon. Dame Sawyer, President The Hon. Mr. Justice Ganpatsingh, J.A. The Hon. Mr. Justice Osadebay, J.A. Appearances: Mr. Fred Smith with Mrs. Kendra Barr Whittaker and Mr. Damien Gomez for the appellants Mr. Lloyd Barnett with Mr. Leif Farquharson, Loren Klein and Sophia Williams for the first to third respondents Mr. Michael Barnett with Mr. Robert Adams for the fourth to ninth respondents Date: 25th April, 2007, 17th May, 2007, 18th February, 2008 2 Osadebay J.A. 1. Passerine at Abaco Holdings Ltd., Passerine at Abaco Limited, Baker’s Bay Club Limited, Baker’s Bay HOA Limited, Baker’s Bay Foundation Limited and Baker’s Bay Marina Limited are a group of companies incorporated under the laws of The Commonwealth of The Bahamas whose shares are beneficially owned by non-Bahamian investors. Together they form an investment partnership and in these proceedings are together referred to as “the Developers”. 2. The Developers are the owners of contiguous pieces, parcels and tracts of land together containing approximately four hundred and fifty one (451) acres more or less (the property) which comprises a portion of the northwestern end of the island of Great Guana Cay, on the Abaco chain of Cays in the north of The Commonwealth of The Bahamas. The property was acquired by the Developers pursuant to a permit granted by the Investment Board of The Bahamas on the 11th February, 2005, under the International Persons Landholdings Act, 1993. 3. It is the desire of the Developers to develop and construct on the property an intimate resort and residential community with a golf and marina club with the highest environmental standards and management practices (the project). The project is expected by the Developers to create or generate a variety of jobs and employment both on site and in the Marsh Harbour area on the neighboring Abaco mainland. This venture was disclosed to the Investment Board by the Developers in their application for permission to acquire the property. 4. The project upon completion will feature among other things – (i) Approximately 400-500 residential units, golf villas and marina village homes. (ii) A championship – Caliber 18 hole golf course 3 (iii) A 240 slip marina (iv) Up to 75 rental villa – style rooms (v) A club house 5. The Developers also propose that the project will feature modern infrastructure and utility systems designed for the island’s ecological system. Land will be allocated for both conservation of natural areas as well as for island-wide logistical support for solid waste processing and transfer, community meetings facilities and public beach access. The project will have a centralized sewerage treatment plant with a solid waste transfer station and management system. To facilitate the project, more land is needed by the Developers and therefore the Developers, at the time of their application to the Investment Board for permission to purchase the property, also made an application to the Government of The Bahamas for the grant of some crown land adjacent to the property. While the Developers’ application to purchase the property was being considered by the Investment Board headed by the Prime Minister, the Developers’ application for the grant of the needed crown land was at the same time being investigated and considered by the government. 6. At the request of the government and to enable a proper consideration of the project and the application for the grant of crown land the Developers at their own expense commissioned and submitted to the government an Environmental Impact Assessment (“EIA”) in accordance with the requirements of the Bahamas Environment, Science and Technology Commission (BEST Commission) 7. The BEST Commission is a body established by the Government in 1994 comprising of a chairman and a number of board members from various governmental and non-governmental agencies with responsibility for environmental oversight in The Bahamas. Its functions include, inter alia, 4 advising the Government on the environmental impact of various development proposals submitted for the commission’s review. 8. It appears from the record of these proceedings that on or about 19th February, 2004, a consultative town meeting with the community was held at Guana Cay All Age School, Great Guana Cay, Abaco. The meeting was attended by about 60 to 70 residents and property owners amongst whom were members of the local Council. The meeting was conducted by Mr. Alexander Williams, the Family Island Administrator responsible for the area who informed the people that he had been delegated by the government to bring to their attention the proposed project by the Developers and its possible impact on the surrounding wet lands and the community and to report back any concerns they might have. The project and its possible impact were thereafter explained and the community’s views and concerns recorded and submitted to the Bahamas Government. (see: the Affidavit evidence of Ms. Ruth Flowers at tab 36, Vol. 4 of the Record). 9. Again on 20th August, 2004, another consultative community meeting was held at Great Guana Cay School at Great Guana Cay in the Abaco Cays. The meeting was conducted by Sir. Baltron Bethell. The meeting was attended not only by Government representatives but also by representatives of the Developers and the members of the community at large. The project was again discussed and the comments and concerns of the community were discussed and noted. Those concerns were subsequently addressed by the Developers resulting in some further adjustments in the project and E.I.A. report. (See: Affidavit evidence of Mr. Kayus Fernander in Vol. 4 tab 32 of Record). 10. On or about 27th October, 2004 the BEST Commission received from the government the EIA submitted to it by the Developers in respect of the project. It had been prepared for the Developers by a team of environmental consultants, Dr. Kathleen Sullivan Sealey, Associate Professor, University of Miami, Coral Gables, Florida; Applied Technology Management, a marine, coastal, environmental and water resources engineering firm with offices in the United States of America; Bethell Environmental of Marsh Harbour, 5 Abaco, Bahamas; Moffit and Nickel Coastal Engineering Firm of Tampa, Florida, U.S.A., and others. 11. Upon consideration of the EIA the BEST Commission raised a number of concerns which were later addressed by the Developers. In response to those concerns and comments a number of modifications to the original design of the project were made by the Developers who provided additional material to the BEST Commission for review. In the end, the BEST Commission was satisfied that most of its concerns had been favorably addressed by the Developers. At the time that litigation commenced in this matter the BEST Commission still awaited 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 Environmental Management Plan. (see: Affidavit of Dr. Donald Cooper, dated 30th Jan, 2006, at tab. 34 vol. 4, Record of Appeal). 12. Finally the Government, being satisfied that the project will impact positively and significantly upon the economy of The Commonwealth of The Bahamas in general and the island of Abaco in particular approved in principle the project upon the terms and conditions stated in the Heads of Agreement entered into on the 1st day of March, 2005, between the Government of The Commonwealth of The Bahamas, represented by Wendell Major CMG, the Secretary to the National Economic Council, acting by and under the authority of the National Economic Council (The Government of The Bahamas) of the one part and the Developers of the other part. Also the Government approved the grant of a Conditional Purchase Lease of a total of one hundred and forty eight (148) acres of Crown Land and Treasury land to the Developers to facilitate the project. Simultaneously, by a permit dated 11th February, 2005 the Investments Board gave its approval to the Developers to go ahead through Passerine At Abaco Holdings Ltd, one of their companies, to purchase the property containing about 451 acres more or less for the project. The purchase was subsequently completed and title conveyed on the 1st March, 2005, the same date as the date of the Heads of Agreement. 6 13. By an Originating Notice of Motion filed on the 4th April, 2005, Save Guana Cay Reef Association Ltd, (1st Appellant) sought, and on the 5th April, 2005, obtained leave of the Supreme Court to apply for Judicial Review of the Heads of Agreement entered into between the Developers and the Government of The Bahamas. 1st Appellant also on the 5th April, 2005, obtained leave to amend the Notice of Motion
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