By FARRAH JOHNSON
Tribune Staff Reporter
THE government is seeking leave to appeal an interim injunction that barred it from destroying shanty town structures across Abaco until a Supreme Court judge delivers her decision on a judicial review on the demolition of the unregulated communities.
The Office of the Attorney General is also asking the court to make an order to ensure all “further proceedings” concerning the injunction ruling “be stayed” pending the determination of their appeal.
Attorney Kayla Green-Smith made the submissions on behalf of the Crown while presenting the prospective grounds of appeal they will take to the Appellate Court, if Justice Cheryl-Grant Thompson grants them leave.
In June, the judge ordered her standing injunction, which prohibits the government from evicting shanty town residents and disconnecting services in their communities, be extended to include all unregulated communities in Abaco.
She also ordered the government to “cease and desist” from “any further interference” with the respective communities until the outcome of the pending judicial review and also admonished officials for moving to demolish the structures without first getting approval from the court.
Yesterday, Mrs Green Smith argued that there were “several errors” in the court’s decision.
“First, the judge’s reasoning paid no regard in our humble view and is irreconcilable with the fact that the grounds of the judicial review relate to three alleged decisions and that’s the possession decision, the utilities decision and the notices decision,” she said.
“Each of these alleged decisions is said to have been taken by one or more of the respondents in the period between January and August of 2018. In our humble view, the resolution of completed issues will not therefore determine or affect the legality of the actions of the government taken following Hurricane Dorian.”
Mrs Green Smith said this fact proved there was “no proper legal or factual basis” for an injunction that restrained the government’s activities until the determination of the substantive issues.
She said Justice Grant-Thompson was wrong to “balance the rights of persons living in the shanty towns with the change of circumstances,” because the rights of the people residing in the shanty towns post-Dorian will not be determined by the judicial review.
She said this meant there was “no logical or rational basis for seeking to balance those historic rights that are in the judicial review with the change of circumstances, which by definition was not in issue.
“The learned judge also erred in considering that it was appropriate to restrain the exercise of powers under the 2019 Act, misunderstood the meaning and operation of the Act and overstepped the court’s proper constitutional bounds in ruling that the powers under the Act could not be exercised without the sanction of a court,” Mrs Green Smith continued.
“In that regard, the learned judge failed to recognise that after a disaster zone has been declared under the 2019 Act, it is the Disaster Reconstruction Authority which exercises powers under that Act. The DRA is a separate and independent legal entity from the government and is not a party to the judicial review proceedings.”
Mrs Green Smith said in view of this fact, it appeared that the judge “misunderstood the operation of the 2019 Act in a fundamental way.” She contended it was also wrong for the judge to rule the court could decide when powers under the DRA could be exercised.
“The grounds of appeal set out are arguable grounds with realistic prospects of success and we also submit it is an issue of great public interest for the court to examine,” Mrs Green Smith said. “And on these grounds, we say the Court of Appeal should allow our appeal and reverse the ruling of the learned judge.”
Fred Smith, QC, the lead counsel, Martin Lundy II, and others represent the applicants in the matter.
While responding to the Crown’s submission yesterday, Mr Smith insisted the court should be “astute” in managing the resources of the judiciary both at the Supreme Court and Court of Appeal levels to “avoid abusive, frivolous (and) unmeritorious appeals which have no prospect of success on the appeal.”
He added: “In respect of the stay application, my friend rightly pointed out that one of the issues your ladyship must consider is injustice. Now the only people upon whom injustice will be visited are the poor, potentially homeless people who still have some meagre roof over their heads.
And If the stay is granted, hundreds of human beings will be banished to the bush when the tractors roll in again to demolish what is left of their homes post Dorian.”
Mr Smith insisted the government’s application for leave to appeal was “nothing more than an abuse of the process of the court.” He also contended that the action was “premature” as judgment was currently being written by the court.
“Indeed your ladyship’s judgment on the trial of this matter may very well be delivered before the hearing of the appeal,” he stated. “This appeal may, therefore, be academic and it is going to be an extremely costly appeal for the government itself, for the appellant and for the time of the judge and the Court of Appeal.
“... What more abusive use of the courts precious judicial resources than to persist (and) for what? There is no reason to pursue this application for leave at this stage because there is no crisis. There is no irrevocable harm that is going to befall the entire government of the Bahamas if it simply waits for your ladyship’s ruling which will be coming in due course.”
Mr Smith said whether the Crown had good grounds for appeal, or whether it was a matter of public interest or not, did not change the fact that there was an “overriding discretion” which the court should exercise to prevent “what could be an academic” and what he believed was “certainly at this stage, a frivolous appeal.”
Referring to the Crown’s argument concerning the DRA, Mr Smith noted the body did not exist when the FNM government “drove their bulldozers” through the Mud and Pigeon Pea shanty towns despite the fact there was an injunction.
“It’s shocking that that administration did this and I’m surprised that this application for leave to appeal is frankly being pursued,” he said. “This ruling that the respondents seek to appeal relates to the variation of the injunction. And we say, since the order is only interim until determination of the action and the action has now been concluded except for the judgment, we contend that any appeal would likely be heard and determined only after the judgment and effectively be moot, as the injunction would have expired by that date.”
Mr Smith argued the fact that Hurricane Dorian took place did not provide the “statutory power or authority” for the executive branch of government to take the action that it did. He also insisted the deadly storm did not “give the government licence” to go to the shanty towns in Abaco and “tear up everybody’s homes” and argued it should have been a reason for them to “act more humanely” rather than “contribute to the humanitarian crises.”
“In conclusion, it is easier to get forgiveness than permission,” Mr Smith stated. “That is why the respondents took the actions they did immediately after Dorian without asking the court first. And that is also why the court must rightfully, absolutely refuse the application to vary and grant the application to extend, because the government respondents have already shown their true colours despite the injunction that existed.”
After listening to arguments from both sides, Justice Grant Thompson said she would reserve her decision and contact both parties once her ruling was ready.