The Tribune

By NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

The Bahamian entrepreneur battling to restore Paradise Island’s lighthouse yesterday asserted he has “fought the right fight” as his claim to have a valid, legally binding Crown Land lease hit the judicial system’s highest court.

Toby Smith told Tribune Business he has also “fought a clean fight” without financial support or other assistance from deep-pocketed supporters during the 14-year bid by himself and his Paradise Island Lighthouse and Beach Club company to lease five acres on the island’s western end for development into a beach break-type destination.

Speaking after attorneys representing himself and the Government yesterday battled before the London-based Privy Council, the highest court in the Bahamian judicial system, over whether there “was a binding agreement” based on a January 7, 2020, letter issued by the Department of Lands and Surveys’ acting director, he voiced optimism that a “very compelling argument” has been made to overturn previous Supreme Court and Court of Appeal verdicts.

Both lower courts, albeit with a split two:one majority in the Court of Appeal, ruled in the Government’s favour, but Mr Smith said he is “confident” following yesterday’s hearing that the Privy Council will buck this trend and allow the appeal by declaring the January 7, 2020, letter does represent “an agreement for lease” that is enforceable and binding on both parties.

And he suggested his efforts will “pave the way”, and encourage, other Bahamian entrepreneurs to stand up for their legal rights when pursuing their own ambitions and ventures. Mr Smith, accusing the Government of speaking out of both sides of its mouth, asserted that - while calling on more locals to develop and bring forward investment projects - it is also, at the same time, “keeping its foot on Bahamians’ necks” and forcing them to “stand aside” as foreigners receive “red carpet treatment”.

“I’m happy that, after more than 14 years of waiting, we have finally managed to have our day in court,” said Mr Smith, who was present in London for yesterday’s hearing. “I am pleased with how our legal team worked up to this day and presented in court a very compelling argument.”

Describing the hearing as “a huge day, one of the biggest of my life”, he added: “I appreciate all the support I have received from around the world, and we are confident that - within the next two to five months - we will receive a ruling in our favour.”

Should that occur, and the lease for both Paradise Island Crown Land parcels - one for three acres, the other two - be deemed valid, binding and enforceable, it would set up a potential scenario where Mr Smith and Paradise Island Lighthouse and Beach Club will become the immediate western neighbours for Royal Caribbean’s Royal Beach Club. The Bahamian entrepreneur and multinational cruise giant have clashed multiple times in the past on their sometimes-competing ambitions.

Mr Smith, meanwhile, yesterday said he has ridden “a whole roller coaster of feelings” during the 14-year struggle to revive Paradise Island’s historic lighthouse, which is now derelict and continues to fall into disrepair, and finance this through the small-scale, low density beach break destination that would target Bahamians and visitors alike.

“It has been 14 years where I have not taken any investor finances,” he told this newspaper. “I have fought the right fight, I believe, and patiently waited. Now it’s up to the five Law Lords as justices on the Privy Council who will decide. We appreciate their engagement, their interest, and ultimately, hopefully, a decision that favours ourselves.”

The Bahamian entrepreneur said he had been “guarded in celebrating throughout the experience”, and events had proven this to be right. “It took eight years to January 7, 202, to get the lease, only to be told a few weeks later on February 27, 2020, that my lease was not valid and now, more than six years fighting for the Government to honour what we agreed - an agreement for a lease.

“They approved me in 2018. Six years to get approved, then two years to get the lease. Six weeks to tell me we don’t have an agreement for a lease, and six years trying to honour an agreement for a lease.”

Voicing hope that has ordeal will nevertheless encourage others to not abandon their dreams, Mr Smith told Tribune Business: “Yes, I think it will help and pave the way for other Bahamian entrepreneurs wishing to bring quantity and quality to the market, and I would encourage them to never give up and keep pushing and holding the Government to account.

“While the Government, on one side of its mouth, publicly wishes to have more Bahamian entrepreneurs step forward and bring projects, their actions are to strangle and keep their foot on Bahamian necks while we stand aside and watch foreign investors receive the red carpet. I wish to change that urgently.

“For the most part, this has been me solo with the support of family and friends. I have taken no investor dollars, and there has been no wrongdoing on my side. I’ve fought a clean fight - at least on my side.”

Mr Smith’s dispute with the Government centres on the 21-year lease that the then-Minnis administration allegedly granted him for the use of two Crown Land parcels - one two acres in size, the other three - on the western end of Paradise Island in the Colonial Beach area.

The initial application was made in 2012, and some six years later the Bahamas Investment Authority (BIA), via a May 23, 2018, letter informed Mr Smith that his $2m beach club project had been approved. However, rather than the 17 acres initially sought, the Crown Land lease was to cover just five.

Then, on January 7, 2020, Richard Hardy, acting director of the Department of Lands and Surveys, sent Mr Smith and his company a letter headlined “approval for Crown Land lease”. This covered a two and three-acre parcel, respectively, with the first adjacent to the lighthouse at Paradise Island’s western end and the other for the ‘beach break’ destination.

The letter contained instructions on how the attached lease documents were to be signed, dated, sealed and notarised, then returned to the Department of Lands and Surveys. Once the minister responsible for Crown Lands, who was then-prime minister Dr Hubert Minnis, signed a copy of the lease was to be returned to Toby Smith.

The Bahamian entrepreneur signed the lease forwarded by Mr Hardy, and returned it to the Government for execution two days later on January 9, 2020. Dr Minnis, though, did not sign the lease on the Government’s behalf as it emerged that Royal Caribbean had rival designs on the three-acre Crown Land parcel for its own Royal Beach Club project - although the cruise line later dropped this to extract itself from conflict with Mr Smith.

Mr Smith, aware of the competing cruise line interest, wrote to Dr Minnis on February 12, 2020, to voice growing concern over the situation. “As you are aware, I have been requesting a meeting with you for the past more than two years,” Mr Smith wrote. “Unfortunately, I have been reduced only being able to chat with you briefly on your way to the House of Assembly and Cabinet.

“I would appreciate to have a formal meeting with you as is afforded to others. In such a chats (sic), in the past and today, you advised me that the land that I am asking for in the Crown Land lease would not be compromised with ‘Carnival, Royal Caribbean Cruise Lines or any other cruise company’.”

Mr Smith added that Dr Minnis had referred him to Joshua Sears, his senior policy adviser, on “several occasions” but the latter had provied no update on the lease “other than it awaits your signature”. Clearly anxious, the entrepreneur requested that the Government provide him with a “comfort letter” to give certainty and confirm that all terms in the lease, as set out in Mr Hardy’s letter, “remain a binding agreement”.

“You mentioned today that my ‘land matter will be dealt with at the same time that you deal with Royal Caribbean Cruise Lines’ land matter on March 2, 2020,” Mr Smith told Dr Minnis.

“As you are aware, my application is almost eight years in the making. I have patiently waited for a favourable outcome so I am rather surprised that my lease is now somehow commingled with a foreign party’s expression of interest that is only recent.

“Further, I understand directly from Royal Caribbean Cruise Lines’ legal counsel that they have applied for the whole area of Crown Land situated on the western portion of Paradise Island, which wishes to encompass the land that I have applied for and contained within the Crown Land lease agreement. This has me deeply concerned......

“We are not about to be marginalised by a large cruise ship company when we have invested eight years and are a 100 percent Bahamian-owned and operated company.” However, Mr Smith met with then-attorney general Carl Bethel KC, Candia Ferguson, then director of investments at the BIA, and Mr Sears on February 27, 2020, to be told he had no binding Crown Land lease agreement. This triggered the current legal action that has now reached the Privy Council.

Mr Smith, in a statement yesterday, said: “Our project is to fully restore the Paradise “Hog” Island Lighthouse back to its original 1817 glory and have free beach access for all Bahamians to enjoy our great Bahamian Crown Land as a low impact, sustainable development, actively preserving of our culture and history with deep respect for our environment and fully honouring corporate and community responsibility……

“Each facet of this Bahamian advancement, to participate in the tourism offering, must be affirmed, through the litmus test: Is this best for The Bahamians and is this best for The Bahamas?”