The Tribune

By NEIL HARTNELL

Tribune Business Editor

A LEADING QC has urged the newly-elected Christie administration to "behave more civilly, and less brutally and aggressively", towards Freeport than its FNM predecessor, adding that the latest Supreme Court ruling upholding Grand Bahama Port Authority (GBPA) licensees' rights emphasised the need to treat the city with "respect".

Fred Smith QC, the Callenders & Co attorney and partner, said the May 11, 2012, verdict won by his associate, Kenra Parris-Whittaker, and Jacy Whittaker - over the Road Traffic Department's refusal to licence and register a GBPA licencee's taxi cab - provided a "good introduction" for the new government in why it should respect the Hawksbill Creek Agreement.

Justice Estelle Gray-Evans, in finding for the Whittakers' client, G. B. Janiki Investments and its president, James Kemp, said the Road Traffic Department's inspector and controller acted "illegally, procedurally improperly and ultra vires" in refusing to licence his vehicle on the grounds that the company did not have a 'taxi cab' licence issued by the Government. (see lead article on Page 3B)

Tribune Business was subsequently told by Freeport private sector sources that GBPA licencees and bond holders were "quite excited about what this might mean", and were viewing the verdict as another "precedent set" on the Hawksbill Creek Agreement.

And Mr Smith called on the Government to "extend" Freeport's Business Licence and real property tax exemptions, which expire in 2015, and to "give the Hawksbill Creek Agreement life", rather than simply trying to extract "every ounce of tax flesh" as the Ingraham administration attempted to do.

However, the outspoken QC again expressed unhappiness about the length of time taken by the Bahamian court system to deal with a Judicial Review matter. The original Notice of Motion had been filed four-and-a-half years ago in August 2007, and Road Traffic's licence refusal had occurred in May 2006 - almost six years earlier.

Noting that Judicial Review cases were supposed to be heard quickly, Mr Smith told Tribune Business: "It's most distressing for our constitutional and administrative law development in the Bahamas that Judicial Review, not only in this case but in 99 per cent of the cases we have done, takes so many years to get tried, even at the initial stage.

"Here you have Mr Kemp, who has been deprived of his livelihood and, for years, has been deprived of any relief."

Praising Kenra Parris-Whittaker, and Jacy Whittaker for winning the case, Mr Smith added of the verdict's wider ramifications: "I think that this is a good introduction for the new PLP administration, by which the Supreme Court is reaffirming at the very start of their five-year term how important it is to respect the Hawksbill Creek Agreement.

"I do hope that the PLP will behave more civilly, and less brutally and aggressively, to Freeport's special jurisdictional needs than the FNM did.

"I look forward to the new PLP administration having sensible discussions with all of the stakeholders - the licencees of Freeport, the Port Authority - with a view to extending the provisions of the Hawksbill Creek Agreement and, indeed, empowering and adding flesh to the bones of the agreement, instead of continually trying to tear it down or strip it of its more purposeful expressions."

In particular, the former Ingraham administration attempted to clamp down on Freeport's over-the-counter 'bonded goods' regime, requiring GBPA licencees to first obtain a National Insurance Board (NIB) 'letter of good standing', then provide Customs with documentary evidence of all the previous year's bonded purchases, before their 'permit' was renewed for another year.

The former government and its agencies were forced to back down on both occasions following legal challenge. Another 'sore point' was the Utilities Regulation and Competition Authority (URCA), and the former government's stated intent for it to assume all regulatory responsibility for telecommunications in Freeport.

URCA was defeated in a case involving fees it was demanding from Cable Bahamas and its subsidiary, Cable Freeport, based on the latter's Internet earnings. However, the issue has not gone away, and URCA and its attorneys were understood to have been preparing a fresh legal challenge to the GBPA's powers to regulate telecoms - and all utilities - in the Freeport area.

The case is likely to be a direct challenge to the GBPA's powers under the Hawksbill Creek Agreement, but it remains to be seen whether the new government will continue with it. Its attitude towards URCA, certainly as contained in the PLP election manifesto, appears noticeably cooler.

Given early indications that the new government is adopting a more positive attitude towards Freeport, Mr Smith told Tribune Business: "In a very depressed economy, as Freeport has been for so long, I think it is incumbent on any sensible administration to be practical in doing whatever is necessary to grow the Freeport economy and give the Hawksbill Creek Agreement life.

"Extending its benefits and tax exemptions can only inure to the benefit of Freeport's growth. After all, that is what a government is supposed to be doing; promoting the interests of its constituents as opposed to simply extracting every ounce of tax flesh that it can jealously demand.

"Freeport is not just a tax trough for hungry governments to get their tax snouts into. It is an artificially created economy that needs careful nurturing and husbandry."

Mr Smith said the late GBPA co-chair, Edward St George, and former Bahamian prime ministers, including Mr Ingraham during his 1992-2002 period in office, understood this.

He added that renewing the Business Licence and real property tax exemptions set to expire in 2015 "would be a great, positive injection of encouragement to Freeport's growth, which is sorely needed at this stage".

"We do not have the critical mass to sustain and grow our economy in Freeport," Mr Smith told Tribune Business, again calling for a Social, Economic and Cultural Development Forum to be formed to chart the city's future development.