The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Prime Minister’s assertion that Save the Bays’ Clifton campaign is “foolishness” has been slammed as “undignified and short-sighted”, a top QC questioning: “Is it Perry or Peter who is in charge?”

Speaking in his capacity as an officer and director of Save the Bays, Fred Smith QC openly queried what the Government would receive in return if it agreed to lease $25 million worth of Crown Land to fashion mogul Peter Nygard.

Mr Smith said both Mr Christie and Mr Nygard were effectively contradicting themselves in their public pronouncements on, respectively, Clifton Bay and construction work at Nygard Cay.

Mr Smith suggested the fact Mr Christie had commissioned an American firm to conduct an environmental assessment of Clifton Bay was hardly the action of someone who regarded the issues raised by Save the Bays as “foolishness”.

And he also queried why Mr Nygard was seeking a Crown Land lease for Nygard Cay’s expanded acreage if, as the fashion mogul has alleged, the land accreted naturally.

“I regret that so eminent a person as our Prime Minister should describe the issues surrounding Clifton Bay as foolishness,” Mr Smith told Tribune Business

“As Prime Minister, and a lawyer, I would have expected him to have more respect for the legitimate social, economic and environmental issues that are involved at Clifton Bay.”

Mr Smith and Save the Bays last month obtained permission to file a Judicial Review action in the Supreme Court challenging the Government’s alleged failure to prevent “unauthorised development activities” at Nygard Cay.

The application, filed on May 17, 2013, focuses on the groyne construction and seabed dredging at Nygard Cay. The Save the Bays coalition is alleging that these activities are illegal because they lack the required government permits and approvals.

“As I have repeatedly said, Clifton Bay is a microcosm of development issues throughout the Bahamas,” Mr Smith said.

“There are issues related to unregulated development, to preservation of the marine environment, to respect for and control of the Clifton Heritage site, to oil pollution from the industries, and the eco-tourism issues of that area.”

And he added: “I regret to say that I find Mr Christie’s comments to be undignified and short-sighted. I does not behoove his office or the man.

“It strikes me as very odd for the Prime Minister to say that he considers the issue of Clifton Bay to be foolishness, and yet on the other hand to spend our taxpayer monies to commission an environmental assessment.

“So he is contradicting himself. He obviously did not consider it foolishness because he has commissioned that report.”

Mr Smith called on Mr Christie to make that environmental assessment public as soon as it was completed “in the spirit of transparency and accountability”.

And he urged the Prime Minister to “bless the Bahamas with an environmental and democratic legacy” through passing an Environmental Protection Act and Freedom of Information Act.

The well-known QC also demanded that the Prime Minister and the other government defendants in Save the Bays’ Judicial Review action comply fully with the Supreme Court’s Order that they make “full and frank disclosure” of all dealings between the Government and Mr Nygard.

The Judicial Review application is alleging that since acquiring Simms Point/Nygard Cay in 1984, Mr Nygard had almost doubled it in size - from 3.25 acres to 6.1 acres, a 2.85-acre expansion - through the reclamation of Crown Land.

This land, it adds, has been reclaimed by unauthorised dredging of the seabed and dumping of sand to create an artificial beach; the construction of groynes and other underwater structures; and the use of heavy equipment and earth movers to move the sand around.

While Mr Nygard had applied for a formal Crown Land lease of the seabed in January 2009, the former Ingraham administration refused to grant it. Mr Nygard initially agreed in August 2010 to the then-government’s demands to remove all unauthorised structures on the reclaimed land, but then “reneged” on that pledge by launching two court actions.

The first, a Judicial Review challenge, was dropped, but the second - seeking a Supreme Court declaration that the reclaimed land is now part of Nygard Cay’s freehold and is owned by Mr Nygard - remains live.

While Mr Nygard obtained a default judgment in that action on May 30, 2012, the Attorney General subsequently applied to set that aside six days later, entering a draft defence and counterclaim.

However, Save the Bays is alleging that no further steps had been taken to progress that action. It noted that 13 days after the Attorney General’s filing, Mr Nygard met with the Bahamas Investment Authority over plans to invest $50 million to rebuild Nygard Cay and construct a stem cell research and treatment facility.

Apart from Mr Christie, the other government defendants include Deputy Prime Minister Philip Davis and Glenys Hanna-Martin in their capacities as minster of works, and minister of transport and aviation, respectively.

“I call on the Prime Minister and the other government respondents to comply with that Order,” Mr Smith told Tribune Business of the discovery. “I call on the Prime Minister to make discovery of all relevant information regarding the happenings at Nygard Cay.

“No doubt the Government will seek to detract from the merits of the action by applying to strike out the disclosure Order, but that will only delay the hearing on the merits and the ultimate obligation of the Government - to make full and frank disclosure to the public of what has gone on at Nygard Cay between the Government and Peter Nygard.”

And, referring to Save the Bays and its members, he added: “My client wants to know: Is there is an agreement to give Nygard a lease of the accreted land?

“What is the Government getting in exchange for $25 million worth of Crown Land? Why has the Government not pursued setting aside the default judgment Nygard obtained against the Crown?”

Posing further questions, Mr Smith asked: “If Nygard has a judgment stating the land accreted naturally and not because of his construction, why is he applying for a lease?

“Like the Prime Minister, Nygard is contradictory. I’d like to know who is in charge of the Bahamas: Perry or Peter.”

The last question will especially resonate following the events of last week, in which Bahamian politics has been dominated by claims and counter-claims over Mr Nygard’s alleged support for the governing Progressive Liberal Party (PLP) and multi-million dollar donations for the 2012 election campaign.

Dr Hubert Minnis, the Opposition leader, has also charged that the Government’s legislation to regulate the stem cell industry has been driven by Mr Nygard’s interest in this sector.

While the Christie administration has denied this, Mr Nygard’s comments last week that the $5 million he gave to the PLP was for stem cell research, not campaign financing, have only added further fuel to this fire.

Either way, the Save the Bays campaign - and the issues raised by it - appear to be heating up. The group is especially concerned that leasing the reclaimed land to Mr Nygard would set a bad precedent, since it would effectively legitimise construction activities that have never been permitted.

This, in turn, would send a bad message to other foreign and Bahamian landowners, encouraging them to engage in unregulated development with all the negative consequences that entail.

Save the Bays has designated Simms Point/Nygard Cay as one of its ‘priority issues’. However, Mr Nygard has said governments prior to the last Ingraham administration never had a problem with his reclamation/construction activities, even though ministers such as former deputy prime minister and then-minister of works, Frank Watson, were regular visitors at Nygard Cay.

He views the issue, and the Save the Bays coalition, as an extension of his battle with neighbour and fellow Lyford Cay multi-millionaire, Louis Bacon.

The hedge fund magnate and Mr Nygard have been involved in a very public feud that has escalated out of all proportion to their original dispute - an easement, or right of way, across Mr Bacon’s property to Nygard Cay.

Mr Bacon is also a member of the Save the Bays coalition. He has described the battle with Mr Nygard as an attempt by his neighbour to distract from the alleged unregulated development at Nygard Cay.