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QC slams ‘mockery’ of new Freeport consult

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The further month of consultation on proposed reforms to Freeport’s Hawksbill Creek Agreement has been rendered irrelevant by the “fait accompli” of the Government’s deal with the Grand Bahama Port Authority (GBPA), an outspoken QC argued yesterday.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business he was “puzzled” to receive notice that the Government was allowing a further one-month consultation period on the proposed reforms.

A June 30, 2016, letter from Dr Doswell Coakley, the secretary to the Hawksbill Creek Agreement Review Committee, informed him that it was “commencing consultations for a further period of one month” on its proposals.

That period, which started on July 1, is set to end on Tuesday, August 2, and Dr Coakley added: “This is to allow the general public and all interested parties time to fully acquaint themselves with the redacted McKinsey report, and thereby further contribute to the consultation process.”

The extra one-month consultation appears to be an effort by the Christie administration, and the Committee, to comply with the requirements of Justice Indra Charles’ May 5, 2016, ruling, which quashed the previous process - and any decisions flowing from it - as “fundamentally flawed”.

This was based on the Government’s failure to make the McKinsey report publicly available, and Justice Charles ordered that both it be released and the consultation extended for another month - the two subjects detailed in the Committee’s letter.

While satisfied that the McKinsey report had been made available online, Mr Smith questioned whether the further month’s consultation had been rendered pointless and irrelevant by the Government’s Memorandum of Understanding (MoU) with the GBPA.

That document, signed three weeks after Justice Charles delivered her ruling, appears to incorporate many of the Committee’s recommendations, leading Mr Smith to question whether further consultation was meaningless.

And, given the contents of Justice Charles’ ruling and the Government’s belated efforts to comply ‘after the fact’, the well-known QC questioned whether the MoU itself was “invalid”.

“I am puzzled by what is purporting to happen,”Mr Smith told Tribune Business. “By the time the judge gave her ruling, the Government and Port Authority had publicised the MoU they had entered into. I’m not quite sure what there is left to consult about.

“The cat is already out of the bag. The horse is already out of the stable. It really deprives the consultation of any role or effect. What are we being consulted about now? It’s a fait accompli.

“Are we now to give ideas on how to convert the MoU into legislation or an appropriate agreement? What is the objective of this consultation period? What are we being consulted about?”

Pointing out that the MoU was negotiated when the GBPA itself had joined the action before Justice Charles, Mr Smith added: “Quite frankly, I’m not sure the MoU itself can be valid.

“The court has declared that [consultation] process to be invalid and quashed any decision coming from it, and ordered a new consultation period before decisions are made.

“The MoU, in all likelihood, is ultra vires, illegal and of no effect, having been made in almost contempt of the court process,” he continued.

“I’m appalled that the Government and the Port Authority, being parties to my action, should have felt compelled to enter an agreement by usurping a court’s judgment. This repeated demonstration of contempt for the court system by the executive is systemic; not only by this government, but the FNM as well.”

Mr Smith hit out at the ‘twin track’ approach seemingly being pursued by the Government and the GBPA, who were secretly negotiating the MoU ‘in parallel’ to participating in the court action his companies had brought to challenge the Hawksbill Creek Agreement consultation.

Arguing that this undermined the ‘rule of law’, the Callenders & Co attorney and partner said he had to contend with similar government actions in previous Judicial Review actions, such as the one concerning the Baker’s Bay project on Great Guana Cay.

“If we don’t want to be downgraded to ‘junk’ bind status, if we don’t want advisories issued against us by the US and others, if we want to be regarded as a legitimate investment destination, if we want to be taken seriously as a democratic nation, we have to behave that way as well and respect substance over form,” Mr Smith said.

“We just need to damn well grow up, otherwise we will always be perceived as a banana republic jurisdiction of opportunistic pirates....

“What is this purported consultation about? It makes a mockery of the whole process. There is complete contempt and disrespect for any kind of legitimate consultation process.”

Comments

birdiestrachan 7 years, 9 months ago

According to the out spoken QC the Bahamas is a Banana Republic what is his problem now.?? and does he have another case before this same judge? He is one who will rejoice if the Bahamas is downgraded, the man from the wash house and Meyers with his all new formed group,.. So The out spoken QC was out skilled.??

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Economist 7 years, 9 months ago

Any outsider can see that the Government has acted in bad faith, That is why other islands are getting the investment and we are not.

The Governments behavior makes it clear to foreign investors that they cannot trust the Government to act responsibly.

Mr. Smith is correct.

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