The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

ATTORNEY Fred Smith accused the government of using the Building Regulations Act for reasons that are contrary to the intention and purpose of the law – namely, to repossess shanty town land.

Mr Smith said parliament has never passed a law that would allow the government to eradicate communities like shanty towns so officials wrongfully relied on Section 4(3) of the Building Regulations Act to accomplish their goal.

He was speaking during a judicial review hearing on Friday before Supreme Court Justice Cheryl Grant-Thompson concerning the government’s plans to demolish shanty town communities throughout the Bahamas.

Mr Smith represents 177 residents and shanty town occupants in the case.

The government announced plans for an initiative to remove unregulated and unsafe buildings in shanty towns in January 2018.

The Shanty Town Action Task Force was formed as an inter-ministerial committee to execute the plans.

The task force released a report and established timelines for taking action against the unregulated communities.

Mr Smith said notices the task force issued in 2018 for occupants to leave shanty town areas were used “for extraneous purposes,” that is, “to obtain possession of the land to further the government’s policy of cracking down on undocumented migrants.”

“If a power is granted for one purpose by Parliament, it can’t be validly exercised for another purpose,” he said.

“Where the minister has a power to demolish or require the demolition of houses for one purpose, which is set out in the Building Regulations Act, he can’t exercise and use that power for a different purpose.

“The Building Regulations Act is only for the purpose of regulating construction, alteration and repair of buildings to provide for the reinstatement or removal of dangerous or dilapidated buildings to authorise the publication of the building code and for such purposes connected therewith.”

Mr Smith argued that despite the expressed purposes of the Building Regulations Act, the government used the law to carry out three extraneous purposes and “to do indirectly what they couldn’t do directly.”

These reasons, he said, include trying to take possession of the land, trying to enforce a crackdown on illegal immigration and trying to use “unconstitutional means” to break up “communities ethnically of Haitian origin.”

He said: “We say the stated objective of the policy was to ‘eliminate and eradicate shantytowns’ which obviously entails removing the occupiers from the land, that’s a consequence.”

“Secondly, the taskforce obviously did not understand the difference between Section 4(3) which on a reading clearly simply requires buildings to be demolished as opposed to vacating the land. The one does not follow the other. The occupier of a building may demolish the building without vacating the land. That would have been the effect of the demolition, but it was not the necessary incident of the demolition.”

“Nevertheless, it is quite clear that the task force wanted to and did seek to use Section 4(3) to get the occupiers of the land. The proposition can be tested in the following way. The notices gave the recipients the option to demolish the structures themselves. If they had done so, by what right would the government claim they still had to move?”

“Thirdly, the preponderance of the evidence, we say beyond a reasonable doubt, never mind on a balance of probabilities, is that vacating the land and the Crown correspondingly taking the land is what the task force wanted to achieve. That’s why they were using the notices. “

Mr Smith said the normal procedure for issuing a notice under Section 4(3) was not followed.

The normal procedure, he said, involves identifying “the particular offending structure,” followed by a notice giving particulars of the offence to the owner.

“You can’t just make a blanket accusation against everybody,” he said. “That is the clearest possible evidence that the notices were not directed to the problems arising from particular structures but was an effort to obtain possession of the land. This was a shortcut exercise because the other means of attempting to evict the occupiers were too hard or didn’t exist.”

“The task force had no parliamentary mandate, no enabling legislation, so it has no power on its own to seek possession of any land. The Crown cannot and still to date by evidence does not establish a right to possession of any of the land. So the Crown couldn’t successfully mount even in court an action for trespass. If it did it might well have met sound claims of adverse possession by the current occupiers, some of them being in their homes for nearly 40 years, 30 years, 20 years, 10 years.”

“The only other option is to compulsorily acquire the land which is always an option to the Crown. There is a Compulsory Acquisition of Property Act and if the Crown wants to take back all that property that they call shanty town, parliament has passed legislation for them to attempt to do so, but you don’t take the shortcut and try to evict people and disposes them of their property and their homes and all their belongings for ulterior purposes. You use the tools provided by parliament and you act within the rule of law and the constitutional rights which people enjoy.”

“We don’t, thank God, live in a dictatorship like Haiti and that is why it’s so important for the court to protect and defend and uphold the rule of law in the Bahamas so we do not degenerate into that kind of society of arbitrary power being welded on innocent people. That is why these cases and this one in particular are so important and that is why I do not flee from my accusation of discrimination, of ethnic cleansing, of using arbitrary power and trying to achieve something indirectly which they cannot do directly.”

Mr Smith also argued that his clients were not properly consulted.

“In this case we say the applicants had a substantive, legitimate expectation of being offered alternative accommodation or alternatively, a procedural legislative expectation of being consulted before being issued with the notices,” he said.

“I note in passing that the respondents’ submission deals at length with consultation….They seem to fail to appreciate how woefully inadequate and how non-existent there was consultation, no consultation with the most people affected, which is what the very authority they relied on said they are supposed to do.”

Lawyers representing the government will argue their side when the trial resumes in April.