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Pm Warned: $30m Nygard Lease Will Be 'Bad Precedent'

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Yellow line represents the 1984 Land and Sea Survey boundaries. The blue line is the current property boundaries.

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Prime Minister has been warned that leasing $30 million worth of Crown Land to Lyford Cay billionaire, Peter Nygard, would set a “dangerous precedent”, given doubts over whether the Government has ever issued approvals for its reclamation.

The newly-formed Coalition to Protect Clifton Bay told Mr Christie, in a March 25 letter, that any agreement to lease the reclaimed seabed at Nygard Cay to the Canadian fashion mogul risked legitimising construction activities that had never been permitted in the first place.

This, the non-profit organization warned, would encourage others to engage in similar behaviour, effectively undermining the rule of law and the Bahamian regulatory system.

The letter, written by Callender & Co.’s attorney and partner, Fred Smith, QC, questioned why the Attorney General’s Office appeared to be making no progress in efforts to overturn a default judgment Mr Nygard obtained from the Supreme Court over the seabed reclamation.

On the Coalition’s behalf, the well-known QC also queried why the Christie administration was not holding Mr Nygard to the requirements of a July 21, 2010, letter in which the Government demanded he return Nygard Cay’s seabed and coastline to the condition it was in when he bought the property in 1984.

And, in a separate letter sent directly to Mr Nygard and his Nygard Cay Resort, Mr Smith and the Coalition urged him to “cease and desist” from ongoing construction activities at his property. They also warned that any permits obtained from the Government would be subject to a Judicial Review challenge in the Bahamian courts.

Tracing the dispute’s history, Mr Smith said in his letter to the Prime Minister that “numerous letters” had been sent to Mr Nygard pre-2009, asserting the Government’s rights as owner of the foreshore and seabed surrounding Nygard Cay.

These letters, he added, detailed “various incidents of unauthorised dredging or works undertaken outside the authority granted for such works”, and required Mr Nygard to “cease and desist”.

Tex Turnquest, former director of lands and surveys, asked the billionaire to restore Nygard Cay’s coastline to its original 1984 boundary in January 2009. That December, the matter was referred to other government departments and ministries, resulting in a July 21, 2010, letter, from then-permanent secretary in the Prime Minister’s Office, David Davis, to Mr Nygard.

This, according to Mr Smith, required Mr Nygard “to remove all structures built by him on the wrongfully reclaimed land, and to remove the groynes built on the seabed, in order that the coastline be restored to the 1984 boundary”.

Mr Nygard allegedly wrote back on August 25, 2010, agreeing to comply with these terms. However, Mr Smith and the Coalition told Mr Christie: “Despite confirmation that Mr Nygard would comply with the clear and unambiguous government requests, Mr Nygard then instituted….. legal proceedings, and even proceeded to commence construction of a new groyne in 2012, without apparently seeking any fresh approval.

“We note that Mr Nygard entered a default judgment against the Crown, but the Attorney General has since applied to set aside the judgment. It appears, however, that the Attorney General’s application is not being progressed, and no other action has been taken to enforce the requirements of the letter of July 21, 2010.”

Reminding Mr Christie that he, as minister responsible for Crown lands, had the job of ensuring Mr Nygard complied with the July 21, 2010, letter, the Coalition expressed concern that the Government was now considering whether to grant the Canadian billionaire a lease of the reclaimed land.

This was something the former Ingraham administration had resolutely refused to do, and Mr Smith’s letter said: “The Coalition is concerned and surprised at this development, particularly in light of the Government’s position in the pending litigation that the reclamation activities by Mr Nygard have been executed without authorisation or, alternatively, authority granted and without any apparent regard for the environment.”

Pointing out that the law required Crown Land grants to be made in the Bahamas’ interests, Mr Smith asked the Prime Minister to explain how this was so with regard to Nygard Cay’s reclaimed land. This, the Coalition is alleging, has increased Nygard Cay’s size from 3.25 acres in 1984 to 6.1 acres today.

“The leasing of the reclaimed land to Mr Nygard would have the following effects,” Mr Smith alleged. “It would create an unfortunate precedent by appearing to publicly sanction (indeed, reward) Mr Nygard’s acts in reclaiming the reclaimed land in a manner detrimental to the marine environment of the Bahamas and without authorization.

“It would encourage such behaviour in the future in Mr Nygard and in others. On any view, therefore, the Coalition believes that the leasing of the reclaimed land cannot be described as being in the interest of the Bahamas……..

“The Coalition is particularly concerned that Mr Nygard appears to be determined to carry out construction work as he wishes, both on his land and on Crown Land that he does not even own, without following the statutory procedures and without any regard to the environment and marine life.”

The Coalition’s actions are likely to have several effects. A prolonged legal battle with Mr Nygard seems likely, and the Canadian billionaire and his advisers will probably view the matter as the latest salvo in his ongoing feud with fellow Lyford Cay billionaire, Louis Bacon.

As pointed out by Tribune Business yesterday, Mr Bacon – Mr Nygard’s Lyford Cay neighbour – is a member of the Coalition. Yet it has numerous other prominent members, including Kathleen Sullivan-Sealey, associate professor at the Department of Biology, University of Miami; Robert F. Kennedy Jr., founder and chairman of the Waterkeeper Alliance; Bennet Atkinson, Clifton Heritage Authority; Nicholas F. Brady, former US treasury secretary; Romauld Ferreira, environmental attorney, Ferreira & Co; and Craig Symonette, chairman, Bahamas Ferries.

The Coalition’s move, and likely public response, will probably thwart – at least for the time being – any Crown Land lease deal between the Government and Mr Nygard. It will also put Mr Christie where he least likes to be – between the proverbial rock and a hard place.

Mr Smith and the Coalition have also written to numerous other Cabinet ministers and government officials in a bid to determine what permits and approvals have been issued to Mr Nygard. They are trying to conclude whether the Planning and Subdivision Act, Building Regulations Act and Coastal Protection Act have been breached.

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