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Smith Challenge To Shanty Town Action

The extensive damage and destruction to The Mudd from Hurricane Dorian. Photo: Gonzalo Gaudenzi/AP

The extensive damage and destruction to The Mudd from Hurricane Dorian. Photo: Gonzalo Gaudenzi/AP

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Attorney Fred Smith QC

By KHRISNA RUSSELL

Deputy Chief Reporter

krussell@tribunemedia.net

ATTORNEY Fred Smith, QC, believes the government is acting outside of the limits of its powers through several measures designed to hammer down on shanty towns in Abaco, adding that in some respects, it has acted unlawfully.

In the days following Hurricane Dorian’s passage, the government issued a prohibition to build order for The Mud, Sand Banks, Farm and Pigeon Peas. Prime Minister Dr Hubert Minnis later announced a plan to compulsorily acquire these portions of land.

The government has also started to clean the areas, including bulldozing a few existing structures in Sand Banks, in Treasure Cay after the prime minister gave an order to do so.

However, according to Mr Smith these actions go against an existing injunction and do not conform to the Acquisition of Land Act. The prohibition order is also void and illegal, he maintained.

He accused Dr Minnis of heeding the cry of the “lynch mob” instead of rising above the fray to demonstrate respect for the rule of law and compassion for fellow Christians that have just suffered a terrible disaster.

In a 12-page strongly worded letter, he said the law was not a one-way street and should be respected by the government as the same is required by citizens.

Regarding the standing injunction, Mr Smith said it covers not only New Providence shanty towns, but those in Abaco. Last year Supreme Court Justice Cheryl Grant-Thompson granted the interlocutory injunction blocking evictions and service disconnections in those unregulated communities.

Mr Smith’s letter was delivered to the Attorney General’s Office on Monday night by Callenders & Co and signed by Martin Lundy for Mr Smith who is outside the country recuperating after a near fatal accident. 

“Accordingly the injunction covers all shanty town land in New Providence as well as such land on Abaco as is occupied by specific applicants who are residents of shanty towns in Abaco,” the letter read. “We stress that recent events do not change the terms of the injunction, which remains in full force and effect unless and until varied by the court.

“Hurricane Dorian has not magically swept away their rights, as are being determined by this action.

“…Nor can the injunction be overridden or side-stepped by the use of other executive powers, which are alarmingly being vocally expressed, in very draconian and terrifying terms, to our clients, by the executive. The use of such powers for that purpose would be improper. The injunction must be obeyed.”

Mr Smith also shot down the validity of the government’s building ban.

The six-month prohibition order was issued last month by the Ministry of Housing under the Planning and Subdivision Act.

He said all zoning orders, including prohibition to build orders, must be made in conformity with a land use plan (LUP), which is mandated under Section 16 of the Act.

“To our knowledge, no LUP under the (Planning and Subdivision Act) has been created or published for Abaco. Accordingly the prohibition order is void, illegal and of no effect as there is no LUP for Abaco for it to be in conformity with.”

When contacted for comment, Attorney General Carl Bethel said the minister has six months to create the LUP. He said in the meantime the restriction on construction remained.

He did not respond to further questions on Mr Smith’s argument. 

“The director of physical planning under the PSA, has had nine years, since 2010, to engage in consultations and develop an LUP for Abaco and has failed to do so,” Mr Smith said. 

He also said: “We put you on notice that to that extent it is likely unlawful and liable to be quashed in a judicial review.

“We note with extreme concern the continued link that this government seeks to make between so-called ‘illegal’ migration as is apparent from, for example the article ‘PM orders acquisition of shanty town land’ published in The Tribune on October 3, 2019 and the occupation of the shanty towns in large part by those of Haitian ethnic origin.

“We remind you that the purposes of the PSA are listed in Section 3 of that Act and do not extend to anything that could remotely be considered relevant or connected to controlling or dealing with perceived illegal immigration to the Bahamas.

“It would appear that that decision to make the order has been infected by such improper purposes because we note that the order purports to extend only to shanty town land and not all land that was devastated by Hurricane Dorian.”

The letter continued: “We draw the inference that the government has picked shanty town land to make an order in relation to because of its preoccupation with illegal immigration. To the extent that such a purpose was a factor in making the order it would be liable to be quashed in a judicial review.

“In addition, it is clearly discriminatory as it targets those persons on the grounds of their place of origin and ethnicity, and it is clearly unlawful under the constitution. To put it bluntly, it is nothing but rank, transparent, inhuman and degrading discrimination. In any event we put you on notice that a prohibition to build order is exactly that and nothing more.”

As for the compulsory acquisition of the shanty town land, this is not unfettered or an executive act that the prime minister is responsible for in his capacity, Mr Smith said. 

The attorney noted this mechanism under the Acquisition of Land Act 1913 is only engaged “whenever it appears to the minister responsible for the acquisition and disposition of lands that any particular land is needed for a public purpose.”

“The purpose of eradicating people from land based on their immigration status or ethnicity is plainly not a public purpose,” Mr Smith insisted yesterday, “nor is the purpose of defeating the injunction to the extent it applies in Abaco such a purpose.

“To the extent that the decision is based on or takes into account those purposes it would be unlawful and liable to be quashed in a judicial review.

“It is particularly concerning that the prime minister appears to have been motivated by, or took into account, what he is reported as describing as ‘noise about properties of shanty towns,’ which we take to mean vocal complaints about the towns and those who live there.

“The marketplace has been rabid with violent, racist, xenophobic, discriminatory, hateful diatribes and invective against the poor victims of Hurricane Dorian in the shanty towns in Abaco.

“It is distressing that the prime minister of the Bahamas heeds the cry of the lynch mob instead of rising above the fray demonstrating respect for the rule of law and compassion for fellow Christians that have just suffered a terrible disaster, and we respectfully encourage the prime minister to desist from further inflaming the fuels of violence in so many forms against our clients.

“Such considerations are plainly not relevant considerations and any decision based on it would be unlawful,” Mr Smith concluded.

Comments

joeblow 1 week ago

All Parliament has to do is change the law to address these and future concerns and this matter will be resolved. After all they changed laws to benefit the numbers boys and expunge the records!

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birdiestrachan 1 week ago

Carl Bethel's Master has spoken.

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sheeprunner12 1 week ago

Bahamians need to go and build a shanty town on Fred Smith's private property in Grand Bahama or wherever he owns land ............... seeing that he has no problem with persons building shanty towns on private property.

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hallmark 1 week ago

He can encourage these illegal activities because it is not on his (gated property) doorstep. However, if the Haitians were to start building a shanty town in the back of Smith's Point near hhis property I am sure that he would be singing another tune.

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stillwaters 1 week ago

What I want to say about this man will probably be removed from this blog.

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Well_mudda_take_sic 1 week ago

QC Smith has been known to openly say on more than one occasion that he can run circles around Minnis and Bethel, and the entire staff of the AG's Office. I suspect he's probably right about his ability to do just that. The calibre of the typical staff member (lawyer) within the AG's Office is unimpressive to say the least and this enables the AG's Office to be very easily overwhelmed. QC Smith is well aware of this and revels at how easy it is for him to tie our government up in legal knots that they should but can't easily free themselves from.

Just look at what happened in the Frank Smith corruption case and what is now happening in the Shameless Shane Gibson corruption case. Bethel and his legal staff at the AG's Office have gone nowhere fast since May 2017. Small wonder QC Smith is laughing heartily as he works against the interests of The Bahamas and all 'true' Bahamians.

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geostorm 1 week ago

@ Fred Smth, just shut your mouth and try to get well. Wishing you a speedy recovery but please, ain't no one listening to you this time around! You are part of the reason why those poor Haitian souls were lost in that devastating storm. We the people are no longer going to accept your antics. Illegals do not belong on that land period and if the government has decided to acquire the land for whatever purpose, it has every right to do so! Mr. PM and team, do what is necessary to return the rule of law back to our land!

We the people, support you!

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Well_mudda_take_sic 6 days, 23 hours ago

You just don't get it my friend. The Duckin' N Dodgin' Doc is only prepared to give lip service to the invasion of our country by many thousands of Haitian nationals who are here illegally. Make no mistake about it, PM Minnis is the biggest part of the problem.

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SP 6 days, 20 hours ago

I still cannot begin to fathom how the PLP and FNM allowed Haitians to overrun our country, take the lions share of blue-collar jobs, leaving taxpaying Bahamians standing in soup kitchen lines begging for food every day!

The number of Haitians seen working everywhere compared to the numbers of Bahamians seen unemployed is absolutely mind-boggling. I don't know of any other country where a government allowed a foreign nationality to displace locals so disproportionately.

Hubert Ingraham, Perry Christie, and Fred Smith have done outstanding jobs of destroying Bahamians and lifting up Haitians.

Bahamians should be demanding the dismantling of the PLP and FNM and rioting in the streets like Hong Kong citizens!

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Well_mudda_take_sic 6 days, 7 hours ago

The vast majority of Bahamians have been brainwashed by our corrupt elitist politicians into believing that the Haitians are needed to provide our economy with low-paying manual labour because Bahamians refuse to take such jobs. But that's nothing but a load of self-serving hogwash dished up by our corrupt political elite for three primary reasons:

1) To provide the very greedy and most wealthy Bahamian business owners in our country with a pool of slave labour that they can unconscionably abuse to fuel the profits of their businesses......and It is not by coincidence that many of these greedy and unconscionable business owners are among the political elite.

2) To benefit those engaged in the ruthless and highly profitable illicit business of human trafficking, including corrupt senior immigration officials and undoubtedly some among our most distasteful political elite.....this of course creates a study stream of great income for those who fraudulently 'sell' visas, work and residency permits, birth certificates, citizenship papers, passports, etc. to the illegal aliens who are willing to pay huge sums for such documents.

3) To create an immense pool of economically down trodden 'Haitian-Bahamians' voters who (up until Dorian) could be all too easily manipulated and persuaded to vote for the worst kind of politicians our society has to offer as political candidates.

As a result of 1) through 3) above, young Bahamian men have been deprived of many types of jobs in businesses connected to construction, agriculture, hospitality, restaurants, gas stations, etc., that would otherwise be much better paying and thereby provide a vital source of self-esteem under the fundamental principle that a fair day's work should command a fair day's pay.

The illegal Haitian aliens need to be sent back to Haiti and that alone will go a long ways towards ensuring the very greedy and corrupt among us can no longer profit off of human trafficking and slave labour. Only then will decent paying jobs exist for our many young Bahamian men who have been sidelined in our society with no hope or self-esteem, and great vulnerability to becoming criminals out of desperation.

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jackbnimble 6 days, 16 hours ago

And this from his sick bed. Imagine when he gets well. LOL

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My2centz 6 days, 8 hours ago

Mr Smith's grip on reality and the "rule of law" would have us believe that a 47 year old Hatian national who doesn't speak a lick of English - lost her passport in the hurricane and should be granted citizenship on that basis. Unfortunately, not many, not even the AG will present a reasonable challenge on QC Smith's intentional misinterpretation of the law. He knows they will aceept what he says unchallenged because they are not well versed in the law.

Only Fred Mitchell it seems, was confident enough to challenge his illogical spin on the constitition. The government, if they want to present a serious case, will need to bring in foreign counsel. This is the only way the classic "xenophobia" defense when all else fails...won't contiminate law enforcement. Emotion, and personal agendas, should not be the driving force in determining when to apply the law.

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