The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government’s alleged failure to prevent “unauthorised development activities” at Clifton Bay by Peter Nygard and his attorney, Keod Smith, is to be challenged by Judicial Review.

The Coalition to Protect Clifton Bay, in Supreme Court filings that seek permission to bring the action, warned that “breach of their statutory duty” by the Prime Minister and other Cabinet Ministers - meaning their alleged failure to enforce the rules - was undermining “the rule of law” in the Bahamas.

The Judicial Review application, filed on May 17, 2013, focuses on the groyne construction and seabed dredging at Nygard Cay, plus the construction of a new dock and boulder placement at Jaws Beach that was allegedly directed by Mr Smith.

The Coalition is alleging that the activities at both locations are illegal, as they lack the required government permits and approvals. Apart from Mr Christie, Mr Nygard and Mr Smith, the other defendants include Deputy Prime Minister Philip Davis and Glenys Hanna-Martin, the minister of transport and aviation.

The Coalition appears to have had some initial success over the Jaws Beach situation, after “expressing dismay at the Government’s failure to act, and concern that this failure was unacceptable in a democratic society where the rule of law was supreme”.

Via a May 7, 2013, fax, which was received a week later, Craig Delancey, the Buildings Control Officer, confirmed that a ‘cease and desist’ letter was being prepared for Mr Smith over the Jaws Beach work.

The Coalition said the letter informed them “that there is no record of any building permit application in respect of the dock reconstruction, that an investigation has been carried out and a contravention letter has been prepared for issue to Mr Keod Smith in respect of ‘the illegal construction works’”.

Setting out the rationale for bringing its Judicial Review action, the Coalition said around 1,400 persons had signed its petition asking the Prime Minister to enforce the law, stop unregulated development and protect Crown Land and the seabed at Nygard Cay.

Noting that Nygard Cay lies at the northwestern tip of Clifton Bay, the Coalition said of the entire area: “Clifton Bay is critical for the local diving and snorkelling industry, and is home to coral reefs and conch populations.

“It is an ecologically sensitive and culturally important marine body adjacent to Clifton Heritage National Park.”

The Judicial Review application alleged 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, it added, had 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.

“It is understood that the Dredging Works are carried out throughout the year,” the Coalition alleged: “Mr Nygard employs the use of a floating dredger to dredge sand from the sea bed.

“The dredged sand is then pumped onshore to form an artificial beach. On average, the dredging takes place for a period of about one week out of every four.”

As for the groyne, the Coalition added: “The groyne is designed to interrupt the natural flow of the ocean water along the coastline and trap the sand being pumped onshore by the dredging.

“The groyne serves the purpose of preventing the artificially-created beach from being washed away by long-shore drift.....

“The groyne causes further silting upstream, thereby extending the artificial beach adjacent to Mr Nygard’s property at the expense of other beaches in the bay, including Jaws Beach. The depletion to these beaches is self-evident.”

Revealing that it had commissioned its own Environmental Impact Assessment (EIA) of the efrfects, the Coalition’s filing drew on previous reports by Kathleen Sullivan-Sealy.

One, dated 2005, said dredging at Nygard Cay had damaged 6,000 square metres of seabed grass beds, “with as much as 12,000 cubic metres of fill removed from West Bay”. Another, dated 2011, estimated that 84,000 square metres, equivalent to 8.4 hectares or 20.7 acres, had been impacted by the dredging and other activities.

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, the Coalition alleged 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.

Despite writing twice to various government ministers, ministries and agencies over Nygard Cay, the Coalition alleged that it received only two responses.

The first, from the Ministry of Transport and Aviation, said it had forwarded the Coalition’s letter to the Port Department for its “urgent comments”. The second, from the Ministry of Works, promised that all views would be taken into account on any Crown Land lease.

The crux of the Coalition’s case is that Messrs Nygard and Smith have breached the Planning and Subdivisions Act, the Buildings Regulation Act and Coast Protection Act, plus trespassed on Crown Land.

And, in turn, that the Government’s lack of response is a “breach of statutory duty” and “ultra vires and irrational”.

In the case of the Prime Minister, the Coalition is alleging: “Land which is vested in the Crown is held for the benefit of the islands of the Commonwealth of the Bahamas.

“It is therefore the PM’s duty as the Minister responsible for Crown Lands to ensure that Crown lands are maintained and protected for the benefit of the islands and Bahamians as a whole.

“The PM’s decisions not to require Mr Nygard and Mr Keod Smith to cease trespassing on Crown Land, damaging Crown Land, causing a nuisance adversely affecting Crown Land and/or committing offences on and in relation to Crown Land are therefore ultra vires.

“By failing to take action, the PM has wholly disregarded the interests of all Bahamians save Mr Nygard’s and Mr Keod Smith’s, and has therefore breached his implied duty under the Conveyancing and Law of Property Act to act in the interests of the Bahamas in relation to Crown Land.”

The Coalition is seeing Court Orders mandating that the relevant government ministers and agencies take the necessary action, and that the Nygard Cay and Jaws Beach works are illegal. It also wants Messrs Nygard and Smith to be prevented from carrying out further works until the Judicial Review action is heard.