The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A well-known QC has slammed the Government’s “regrettable” decision to proceed with approving the GB Power buy-out despite knowing his legal challenge was already filed.

Fred Smith, the Callenders & Co attorney and partner, expressed his displeasure to the Attorney General and other Cabinet ministers and regulators in a February 1, 2018, letter and demanded that the final approval and supporting rationale be released for his Judicial Review.

He also told Tribune Business that the Minnis administration’s approval for Emera’s buy-out of all Bahamian shareholders, despite knowing his Judicial Review was pending, would undermine both local and foreign investor confidence in this nation.

Mr Smith told Carl Bethel QC, the Attorney General: “It is apparent that on or about 2 January, 2018, whilst the court was considering my client’s application for leave, which had been filed prior to that date and which had been before the court (as you were aware from publications in the newspapers) the Government published” a release giving its final approval for the deal.

“It is regrettable that the Government of the Bahamas saw fit to grant this final approval notwithstanding that it was aware that my client’s application for leave to apply for Judicial Review was pending before the courts, and without consulting my client,” the letter added.

Mr Smith subsequently told this newspaper that the Government’s decision to forge ahead and grant Emera final approval showed a lack of respect for the Bahamian judicial system and its processes.

Arguing that negative consequences may result, Mr Smith told Tribune Business: “I am very disappointed that they [the Government] have such little respect for the judicial process.

“If they wish to inspire business confidence, both domestic and international, they ought to demonstrate how respectful they are of the judicial process so people can have confidence in doing business in the Bahamas.

“Their continued side-stepping of the courts to achieve a momentary advantage will only cause investors to be afraid of doing business in the Bahamas because they must have faith in governance that is bound by the rule of law, not political one-upmanship. That’s how I feel.” Mr Smith’s Judicial Review, filed on behalf of SeSaChe Ltd, holder of $300,000 worth of shares in ICD Utilities, the former holding vehicle for a 50 per cent equity stake in GB Power, seeks to overturn the approvals for the now-completed buy-out.

ICD Utilities’ equity stake has been assumed by Emera, with the Canadian utility giant now GB Power’s 100 per cent owner, although 50 per cent of former Bahamian shareholders have retained an interest via the latter’s Depository Receipts (DRs).

The Callenders & Co attorney and partner, though, is persisting with a challenge that argues the Bahamas Investment Authority (BIA) and Central Bank approvals are “ultra vires, irrational and procedurally unfair”.

It is also arguing that since the BIA is not created by law it has “no authority over the personal shares owned by Bahamian citizens”, and thus had “no power” to approve Emera’s purchase of SeSaChe’s shares.

Mr Smith’s February 1 letter reminds the Government that the Supreme Court Order, accompanying the permission granted for the Judicial Review to proceed, requires it to produce both the BIA and Central Bank approvals by February 12.

And he warned that the scope of discovery will now be expanded to include the final government approval that was issued on January 2, 2018.

“That is going to be very important if, in fact, there has been a legitimate approval by the relevant legal authorities,” Mr Smith said of that final approval. “Once again, this is mired in secrecy. Neither Emera nor the Government have seen fit to publish the approval documents. Once again, the public is being held hostage by this secrecy.”

He suggested that obtaining copies of the final approval would pose no problem despite not being included in the Supreme Court’s initial Order, as Judicial Review actions obligated the Government to provide full disclosure.

“We’d like to understand it,” Mr Smith said of the early January approval, “because the court is going to have to decide whether these approvals are rationale given the Government’s commitment to Bahamian ownership in the energy sector and the comments by the Attorney General and Deputy Prime Minister in the newspapers saying they’re considering this.

“They ought to have at least consulted with businesses such as my client’s. When we got leave, by the time this January approval was published by the Government, the court was already considering our application. This is something that happened afterwards, and why we’re now asking for this information.”

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