The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamas Bar Association’s president yesterday accused a political and economic elite of thwarting land reform for more than half-a-century, in a bid to safeguard their own interests.

Elsworth Johnson, emphasising that he was speaking for himself and not the Bar, said that ever since Bahamian independence, successive governments had campaigned on promises of reform, only for these to inevitably “fall by the wayside”.

He told Tribune Business that “the only reasonable conclusion” to be derived was that the parking of reform efforts was “deliberate”, given that a political, legal and economic elite continue to benefit from the existing system at the expense of ordinary Bahamians.

Rather than empower persons, Mr Johnson said governments too often used land - especially Crown Land - as a political tool, particularly during the run-up to general elections.

He emphasised that it was “no longer the Bay Street Boys or our former colonial masters” who were responsible for thwarting much-needed reform, but Bahamians who were “doing it to ourselves”.

And the Bar president suggested that the millions of dollars spent on Junkanoo Carnival would be put to better use financing land reform, as this would potentially benefit thousands of Bahamians.

Mr Johnson spoke out after Tribune Business revealed how Appeal Court justice, Stella Maureen Scott-Crane, had warned that the Bahamian court system was susceptible to being “an unwitting pawn” in the commission of land thefts/frauds.

She added that the Quieting Titles Act, in particular, was effectively being employed as a tool to steal land, given that “material facts” relating to title applications were often hidden from the courts.

Ruling on a family-related land dispute in Exuma, Justice Crane-Scott wrote that the case “exemplifies the kinds of egregious abuses - ranging from the fraudulent concealment of material facts to the deliberate manipulation of the statutory requirements of the Quieting Titles Act - which can occur in the course of quieting proceedings........

“Where material facts, such as the existence of adverse claimants, are deliberately suppressed and concealed, and where additionally, the petitioner knowingly represents to the court - as required in section 5 - that ‘full and fair disclosure’ has been made, the court may nonetheless unwittingly become a pawn in a fraud and deception...”

Mr Johnson told Tribune Business that the Appeal Justice was delivering “a message directly to Parliament to do something about it in terms of land reform”.

Praising Justice Crane-Scott for “lamenting... the sad state of affairs with regard to our land regime”, the Bar president said her ruling showed how the courts - intended to be “the fountain of justice, preserving the rights of everyone” - could be manipulated by unscrupulous title claimants and their attorneys.

Mr Johnson said the long history of failed land reform efforts could be traced back to pre-independence, when the Progressive Liberal Party (PLP) campaigned on introducing a Land Registration Act but never did so.

Turning to the present, he recalled how Byron Woodside, then a minister of state in the last Ingraham administration, led efforts to develop a three-strong package of Bills that would have overhauled the existing system.

These Bills - the Land Adjudication Bill, the Registered Land Bill and the Law of Property Bill - would have created a Land Registry in the Bahamas, and given commercial and residential real estate buyers greater certainty that they had good title to their properties.

A Land Registry would contain all information relating to a specific parcel of land in one database, including its location, dimensions, ownership interests and all encumbrances, such as mortgages and other liens/charges.

Moving to a such a system - and registration system - would remove the need for attorneys to conduct expensive, time consuming title searches that were sometimes prone to error, and move the Bahamian real estate market away from being based on “first to record” title deeds.

However, even though the current Christie administration committed in its 2012 election manifesto to moving towards a Land Registry system in the Bahamas, describing this as “a must”, nothing has been heard of these Bills since.

Mr Johnson said they had “fallen by the wayside”, with no continuing the effort. As a result, the land regime’s existing weaknesses persist, with abuses such as those of the Quieting Titles Act continuing to run rampant.

“The time is long past,” he told Tribune Business of the need for wide-ranging reform. “There was a case from in the 1960s where the Privy Council identified the current regime as one that facilitated the theft of land.

“Any number of decisions have been made by the courts, and absolutely nothing has been done. The only reasonable conclusion one can come to is that the non-registration of land is deliberate.

“To my mind, the present circumstances allow a select few to make a lot of money,” he added. “It’s beneficial to preserve the present regime, allowing successive governments to use land as a pawn in terms of negotiating with the people.”

Mr Johnson said the biggest losers from the preservation of the existing land regime were the majority of Bahamian society.

“It has taken power directly from the people,” he told Tribune Business. “A registered land system would divulge the number of frauds that cause people to be dispossessed of their land. It would also reduce the amount attorneys are able to charge [for real estate transactions].

“What we see at the end of the day is a regime that inures to the benefit of a select few. The only conclusion you can come to is that if Mr Woodside, for instance, was serious about empowering people, liberalising the land and ending this mischief identified by the Supreme Court, Court of Appeal and Privy Council he would have done something about it.”

Mr Johnson said the solution lay in educating the Bahamian people about the land “frauds pulled on them for many years”, so that they were better aware of their rights and more able to protect themselves.

Calling on wider society to demand reform, Mr Johnson acknowledged that most Bahamians lacked the financial resources - such as the $20,000-$60,000 required just to retain an attorney - to properly defend their land interests.

Describing the present system as “archaic”, Mr Johnson said a Land Registry would enable Bahamians to check who owned specific real estate parcels without requiring help from an attorney.

He added that Governments too often adopted the attitude of “the spoils go to the victor” in the aftermath of general elections, rather than using land to empower Bahamians, along generate numerous economic, social and spin-off benefits.

“While we can find millions of dollars to whine down Bay Street at Carnival, people will be much more grateful, and benefit more, by investing that in land reform,” Mr Johnson told Tribune Business.