The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Two attorneys have filed an “urgent” appeal after the Supreme Court dismissed their Judicial Review challenge to the consultations over Freeport’s future, describing it as “premature”.

Justice Petra Hanna-Weekes, at a May 22, 2015, hearing where only Callenders & Co partners, Fred Smith QC and Carey Leonard, were represented, said she was “not satisfied” that the Government was obligated by law to publish the report by its consultants, McKinsey.

She also accepted the need for a short consultation period with Freeport stakeholders, given that the city’s Business Licence and real property tax exemptions are due to expire in just over two months on August 4.

And Justice Hanna-Weekes, in denying the attorneys’ application for permission to bring Judicial Review proceedings, found their action was “premature” because neither the Government, nor its consultative committee, had released their decisions/recommendations over both the expiring tax breaks and Freeport’s longer-term future.

Praising Mr Leonard’s “very smooth and full presentation”, Justice Hanna-Weekes said he and his fellow Callender’s & Co attorney had both an interest in the matter and followed the correct judicial procedures in bringing the Judicial Review motion.

However, in her oral ruling, the judge then said: “However, the court is not satisfied that the respondents or the committee were, or are, bound by law or policy to make the McKinsey report available to the public or the applicants, in particular.

“And although the period for consultation was short, there was a practical reason why this was the case. The concessions in question are about to expire.”

Then, getting to the crux of her decision, Justice Hanna-Weekes said: “The recommendations of the Hawksbill Creek Agreement Review Committee have not been released to the public, nor have any decisions by the respondents from the Government of the Bahamas been released to the public with respect to the concessions or in relation to any other matter under review by the committee or the respondents.

“To my mind, the application is premature. The application for leave is denied.”

Mr Smith, when contacted by Tribune Business, confined himself to saying he was “shocked” by Justice Hanna-Weekes’ decision.

He confirmed that both himself and Mr Leonard had filed an appeal with the Court of Appeal on May 28, in which they are seeking to overturn the Supreme Court’s ruling and obtain permission to bring the Judicial Review action.

In court papers seen by Tribune Business, the two Callender’s & Co attorneys are also asking the Court of Appeal to order that “a speedy trial” of the substantive Judicial Review issues be heard.

Finally, Messrs Smith and Leonard are seeking a court order requiring the Government-appointed consultation committee “to cease all its activities and hold in suspension the consultation exercise” that could ultimately amend the Hawksbill Creek Agreement and increase the sum of government revenue extracted from Freeport.

Time is now running out for the two attorneys, as Prime Minister Perry Christie last week said during the 2015-2016 Budget that the committee was expected to complete its report and recommendations within the next fortnight.

He told the House of Assembly that the committee “is expected to complete its report with recommendations to Government within the next two weeks.

“My Government will coalesce around strategies to propel the island [Grand Bahama] to a new stage of diverse domestic and FDI developments.”

The Government ‘respondents’ referred to by Justice Hanna-Weekes are Mr Christie and Dr Michael Darville, in their respective capacities as Prime Minister and minister for Grand Bahama.

The committee is chaired by former Cabinet minster, Dr Marcus Bethel, who has failed to return Tribune Business’s calls seeking comment on the matter.

Other committee members include ex-finance minister and Central Bank governor, James Smith; the Prime Minister’s senior policy advisor, Sir Baltron Bethel; and current and former Grand Bahama Chamber of Commerce presidents, Kevin Seymour and Doswell Coakley.

It is uncertain what the committee is likely to recommend, although most observers believe they will likely advocate extending Freeport’s expiring investment incentives in return for specific obligations being performed by the Grand Bahama Port Authority (GBPA) and Hutchison Whampoa.

But Mr Smith and Mr Leonard are arguing that the Government has failed to engage in “proper and meaningful consultation” with Freeport stakeholders due to the failure to provide the public with the McKinsey report.

They say that report, compiled at the Government’s behest, will be a vital influence on the Freeport policy decisions that it reaches. Yet by keeping this document secret, the Callenders & Co duo are arguing that Freeport stakeholders are unable to give meaningful feedback to the committee.

This, the duo claim, violates the need for the Government to engage in proper and meaningful consultation with all impacted parties - a principle they allege was set by the Court of Appeal in the case involving BEC’s Wilson City power plant.