The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An outspoken QC has expressed joy over the Grand Bahama Port Authority (GBPA) agreeing with him that the Government’s consultation process over proposed Hawksbill Creek Agreement reforms was “fundamentally flawed”.

Fred Smith QC told Tribune Business that legal documents filed in support of the GBPA’s intervention in the Judicial Review action brought by himself and fellow Callenders & Co attorney, Carey Leonard, backed their position that the McKinsey report was the “edifice” upon which the Government’s effort was built (see other article on Page 3B).

Referring to an affidavit sworn by Karla McIntosh, the GBPA’s in-house attorney, Mr Smith said: “I was pleased to see that it reflected support for our position that the McKinsey report should be disclosed.

“Sarah St George [GBPA vice-chairman] wrote on three separate occasions asking for it to be disclosed.

“The entire edifice of the consultation process was predicated on the McKinsey report,” he added. “I’m so glad they agree that in the absence of that, it’s a fundamentally flawed process.

“They [the GBPA] agreed it formed an essential part of the consultation process, so that they could make an informed contribution, taking into account all relevant factors for the committee.”

The Callenders & Co duo’s Judicial Review challenge is founded on the premise that the process overseen by the Government-appointed Hawksbill Creek Agreement Review Committee is “flawed” because the Government has failed to release a report produced by McKinsey, the international consultants, to interested stakeholders.

The report is said to have analysed Freeport’s economic situation, and assessed both measures to spur growth and the impact of the city’s expiring Business Licence and real property tax investment incentives, which were subsequently extended to February 4, 2016.

The McKinsey report also influenced the committee’s ‘Terms of Reference’ and Government policy thinking, and Messrs Smith and Leonard are arguing that by keeping its contents secret, the Christie administration is preventing interested parties from being able to properly contribute to the debate on Freeport’s future.

The GBPA, via its intervention and/or ‘request to be heard’ on the matter before the Supreme Court, has sided with the Callenders & Co duo.

Ms McIntosh’s affidavit alleged that the GBPA’s four separate requests for a copy of the McKinsey report were either denied or ignored by a combination of the Government and its committee.

She described it as “a matter of substantial importance” that the Port Authority be provided with a copy of the report’s contents, suggesting that the refusal to do so had denied it “a fair opportunity” to participate in the Hawksbill Creek Agreement review consultation.

Tribune Business previously reported that sources close to the Hawksbill Creek Agreement consultation said the Government was withholding the McKinsey report precisely because it did not want to ‘reveal its hand’ to the GBPA before any negotiations occurred between the two sides over proposed amendments.

This newspaper was also told that the document was not disclosed because the Government, and its committee, did not want the contents to influence the feedback obtained from Freeport stakeholders.

Mr Smith, meanwhile, said he had filed ‘a ‘notice’ with the Supreme Court requiring the GBPA “to produce” the three letters written by Ms St George to the Government seeking a copy of the McKinsey report.

These developments came after a mixed day for Messrs Smith and Leonard in the Supreme Court on Friday.

For Justice Petra Hanna-Weekes refused their application for a stay and temporary injunction, saying she found it “inappropriate to interfere in the decision making process of the Cabinet at this time”.

The temporary injunction would have prevented the Prime Minister and his government from acting on the committee’s recommendations over Freeport’s expiring tax incentives until the full case is heard and decided.

They had also sought to ‘stay’ the “decision-making process regarding potential changes to the provisions of the Hawksbill Creek Agreement, and the economic and fiscal governance of Freeport”, stemming from the report produced by the committee. Costs were also ordered against Messrs Smith and Leonard.

Dr Doswell Coakley, the committee’s secretary, alleged in a September 24, 2015, affidavit that the Government’s extension of Freeport’s expiring investment incentives until February 4, 2016, made clear there was “room for further consultation”.

Still, while Justice Hanna-Weekes granted the GBPA permission to be heard in the case, following no opposition from the other parties, she is now seeking submissions on whether she should recuse herself from the matter.

This is because she once used to work for Graham, Thompson & Co in private practice - the same law firm that is representing the GBPA in this matter.

While the Callenders & Co duo and the GBPA had no objections to Justice Hanna-Weekes hearing the case, Loren Klein, acting for the Attorney General’s Office, said he needed to take further instructions.

As a result, the parties are back in court on October 5 on the recusal issue. And the trial on the substantive Judicial Review case has been pushed back.

In the substantive Judicial Review case, Messrs Smith and Leonard are ultimately seeking Supreme Court Orders that prevent any decisions being made on the basis of the committee’s report; that require the McKinsey report to be made publicly available; and require that a new consultation process be undertaken with Freeport stakeholders.