Shanty town notices being handed out recently. Photo: Terrel W. Carey/Tribune Staff
By AVA TURNQUEST
Tribune Chief Reporter
aturnquest@tribunemedia.net
SHANTY town residents have filed a suit against the government over its plan to eradicate “unregulated” communities and have asked the Supreme Court for an injunction to block looming evictions or any form of interference until their case is heard in court.
The writ was filed by Callenders and Co on behalf of 177 shanty town residents from both New Providence and Abaco, and non-profit group Respect Our Homes Ltd.
They are seeking a judicial review of the decisions taken by the government, whom they contend have not established legal right or authority to the land, and as such, are both unlawful and unconstitutional.
Yesterday, human rights attorney Fred Smith said he was prepared to take the case all the way to Privy Council in his bid to protect the rights of his clients, whom he asserts are vulnerable and oppressed.
“Unregulated communities have emerged in the Bahamas over the last 40 years or so,” the lawsuit read.
“They stand on land that is predominantly, or is presumed to be, Crown land. An exhaustive determination of the legal title-holders to the land has not yet been possible, but the government respondents have been acting on the unproven footing that the land is Crown land to which they have an immediate right to possession.”
Prime Minister Dr Hubert Minnis, Minister of Labour Dion Foulkes, Minister of Public Works Desmond Bannister, and Attorney General Carl Bethel are named as respondents in the ex-parte application filed on Tuesday, and obtained by The Tribune.
Bahamas Power and Light and the Water and Sewerage Corporation are included as fifth and sixth respondents for the purpose of obtaining the injunction to block the disconnection of utilities.
The application is seeking a judgment on: the decision to issue notices to residents purportedly in accordance with the Building Regulations Act 1971; the decision to take possession of shanty town land occupied by residents; the decision to disconnect power, water, and other utilities; and the policy to eradicate or irretrievably eliminate shanty towns in the country.
Applicants are also seeking a declaration that each of those decisions were made unlawfully, and as such, are void and illegal; an order quashing each of the decisions; a declaration the notices are void and illegal; a declaration that the policy is unconstitutional and an order quashing the policy; a prohibition order restraining the government from causing the disconnection of utilities; damages and costs.
The applicants have also requested an interim injunction restraining the government from taking possession, interfering with, or demolishing any shanty town structures until the application is considered.
The application also makes a request for the government to provide for discovery of all relevant documents under their control concerning the Crown’s alleged title or interest in the land, and their decision-making as it relates to the policy.
It read: “This application is about the lawfulness of the decisions by which the government respondents are seeking to implement the policy and the constitutionality of the policy itself. In essence, they have presumed a right to take possession of land where no right has been established or lawfully exercised, and they have used unlawful threats to demolish buildings and disconnect utilities as a proxy for taking possession.
“More generally, the policy is unconstitutional because in applying only to the areas the government designated as ‘shanty towns’ it discriminates unlawfully against people of Haitian race and origin.”
The applicants contend their constitutional rights were breached, and set their challenge on five grounds: inhumane or degrading treatment; invasion of home and property; prevention of freedom of movement; unlawful discrimination; and unlawful deprivation of property.
The writ also sets out seven grounds for judicial review. They claim the possession of land and utilities decisions were ultra vires - not supported by any legislative or executive authority - and the government’s notices were unlawful because they were made for extraneous purposes, namely to obtain possession of the land, further government crackdown on undocumented immigrants, and to extend an apparent policy of “breaking up Haitian communities perceived to be ghettoes”.
They also claim the government failed to consider individual circumstances of the occupiers of individual buildings or parts of the land when it made a “blanket decision” to take possession of the land and demolish all buildings.
The application outlined failures to consider: the nature of the right by which residents occupied land, the nature of the building affected, and the effect that eviction would have on them and their families.
It read: “The decision was motivated by the irrelevant consideration of what apparent right the occupiers had to possess the land, as opposed to what right the government had to possession of the land. Further, it is to be inferred that the notices decision and the utilities decision purported to take into account legally irrelevant considerations, namely health and safety concerns, which are not grounds for exercise of the statutory powers relied upon.”
The writ makes a distinction between the notices posted in New Providence shanty towns in June, and a set of two notices disseminated in July. Both notices purported to remind people of the government’s intent to eliminate shanty towns throughout the country.
The writ contends the July notices issued to specific shanty towns were signed by a building control officer, when the Building Regulation Act outlines the minister as the only authorised individual to make such a decision.
It pointed out that the minister was also the only individual with authority to exercise powers to disconnect utilities.
Other grounds for judicial review include: fettering of discretion, in which the applicants claim the decisions are unlawful because the government applied a rigid policy with no exception for the use of discretion; and there was a legitimate expectation the individual applicants would be allowed to stay on the land or would be consulted before being evicted or ordered to demolish buildings.
The application states the expectation stemmed from the permission or encouragement to use the land they have enjoyed for a significant period of time; the country’s obligations under international laws and treaties; and the government’s promise to conduct extensive consultations after the policy was announced earlier this year.
Of the individuals whose names are attached to the case only five percent are not of Haitian descent.
Their full status is as follows:
Citizens - 42 percent
Work permit holders 25 percent (90 percent of these for over 20 years)
Permanent resident - 20 percent
Resident spousal - six percent
Permit to reside - five percent
Bahamian-born pending citizenship - two percent.
Comments
TheMadHatter 6 years, 3 months ago
It would have been nice of Mr. Smith to have included language in the suit to make it more general and all encompassing.
Make it such that, if he wins, these abilities to move onto land, build without permits, and live peacefully free from government interference or otherwise - would apply to ALL vacant land or at least ALL VACANT CROWN LAND in the Bahamas.
At least then, while we would have to accept that Haitians are untouchable (which seems obvious every day) - at least WE Bahamians would also be able to lay claim to small tracts of Crown Land which have been kept from us ever since the "independence" lie was tossed on us in 1973.
It would be a fair trade to allow these Haitians to hold onto the land they have so boldly claimed, if Bahamians could also go out and claim one-quarter acre plots of Crown Land wherever it exists. Also have the Court make the government publish maps in the newspapers showing us all the places where our land is hidden.
This would be a good and fair ruling. Don't allow Bahamian Crown Land to be used only for the livelihood and welfare of Haitians, but include Bahamians also in this lawsuit and give us that which has been held hostage from us as well.
Haitians AND Bahamians enjoying the use of Bahamaland - what a concept !!!
rawbonrbahamian 6 years, 3 months ago
Cudos to you. Excellent insight and post
Giordano 6 years, 3 months ago
This is unconstitutional public policies only targeting shanty town determined by gov.as such,when we already have a lot of houses,much in worst condition,nearly,all over the place ,than those located in labeled shanty town by the gov.. There's no doubt that only Haitians national are being targeted abusively ,with the complicity of people poisoned with sick nationalism which some of them,by the way ,are also in the vissionless gov. immersing the whole society living in the valley ,into deepest poverty and frustration. All of this mess was created by the gov. itself for allowing those shanties towns to take place for so long. They need to solve the problem,respecting human dignity because innocent people also live there.
DDK 6 years, 3 months ago
"Work permit holders 25 percent (90 percent of these for over 20 years)"
Why have 90% of 25% work permit holders had such permits for over twenty years???? For whom do they work and why are there no Bahamians available to fill these positions as Bahamian unemployment stands on or about 10%.
BahamaPundit 6 years, 3 months ago
I refuse to get involved in this nonsense. This is the web shops situation all over again. The government ordered them shut after the referendum; then, they went to court and obtained a stay, because they had been operating for too long, which amounted to tacit consent. I just can't. The government will undoubtedly back down and the status quo will remain. The lawyer wins again. He always seems to win for non Bahamians. Imagine the good he could do, if he did as much for Bahamians. I'm crossing my fingers though; hopefully this time he will lose.
Well_mudda_take_sic 6 years, 3 months ago
For decades now our Courts have been giving illegal Haitian immigrants rights that we Bahamians were never intended to have under our very own Constitution. It is unconscionable that the politicians we elect and the judges they appoint, combined with corrupt senior immigration officials, have created and solidified the foundation upon which we Bahamians are destined to soon become second class citizens within our own country.
DDK 6 years, 3 months ago
Sickening. They claim they will stand strong and then wither away at the first puff of wind.....
hrysippus 6 years, 3 months ago
I am so happy that you have refused to get involved in this nonsense. Now, what is this you talking about? It surely cannot be this nonsense that you just refused to get involved it, Speak with forked tongue? Perhaps you should enter politics.
Well_mudda_take_sic 6 years, 3 months ago
Obviously you would rather attack a fellow blogger than express your views on the real issues at hand involving our pathetically incompetent government.
licks2 6 years, 3 months ago
Yall relax. . .Smith een making no sense. . .no body can come in this nation and get better treatment than Bahamian!! The only "real" point in that writ is . . .proving that government owns the land that will be the consideration of the court. . .crown land is owned by the queen! Hence the term crown land! All of that other stuff said by Smith is just that. . .stuff. . .nothing more!! Smith is going to the queen and tell her that his country men came to the Bahamas and build illegally on her land and now refused to vacate her land!! That argument was tried before in the Turks and Caicos Islands. That case ended in all land owned by the crown was vacated. . .with Haitians homes built to code bulldozed and the land returned to the crown. Smith just tallking and filed to buy time to keep making the government blink!! I will be surprise if a judge will waste the court time to prove ownership of the lands in question. . .we already know who owns them. . .HRM Queen Elizabeth II!
DDK 6 years, 3 months ago
Hope you be right!
Sickened 6 years, 3 months ago
History proves otherwise.
bogart 6 years, 3 months ago
WORK PERMIT HOLDERS 25% (90% OF THESE FOR OVER 20 YEARS)........ More questions needs to be asked how are these workers being here so long on work permits living in shantytown conditons....??...havent been able to move out...??....are there travel documents being withheld by dere employers...??....what type of wages are dey earning...to not be able to do better....??....do dey gets paid vacations...medical insurance...what benefits...pay increase.. 20 years....?? It should be illegal if dese persons have been coerced or forced....to be under these deplorable conditions....the govt needs to jav comversation wid da rich who hires dem....cause it aint da pore Bahamians who hav dem under dese conditions.....
Cas0072 6 years, 3 months ago
I knew that this FNM administration was up to no good from the moment they presented that bogus Shanty town census. They started off already sparing 28 shanty towns and countless illegals and their offspring. Now they will continue to dial back so that the status quo remains the same. I am not surprised at all.
BahamaPundit 6 years, 3 months ago
I'm not worried about Smith; I'm worried that this piss poor Government will just back down again, like they did with prosecuting "all" the corrupt PLP MPs (BOB much). The problem is the FNM don't really believe in anything (just like the PLP weren't strongly against numbers), other than stuffing their pockets and saving face. Smith believes and that is why he often wins. Now, the FNM does believe in buying broke hotels with borrowed money. That they do believe!
Gotoutintime 6 years, 3 months ago
I wish Fred would sue the Power company for me so they won't cut off my power if I don't pay the bill!!
mandela 6 years, 3 months ago
if one person is allowed to build a, or have a private dwelling home on crown land free, then all persons should be allowed the same with Bahamian having first preference
DDK 6 years, 3 months ago
It's all too hilarious. Fodder for a Bahama sitcom, a laugh a minute! Dibs on royalties!
SP 6 years, 3 months ago
Total, absolute malarkey, balderdash, and steaming horse manure!
voiceofthepeople 6 years, 3 months ago
Well the bottom line is "These shanty towns are unsafe" the fires in them have claimed lives .
TalRussell 6 years, 3 months ago
Ma Comrades, the arithmetic must be fictitious for why else we knowingly be renewing foreigners Work Permits for 20 years to live in Shantytowns? How broken is we immigration system that we would actually import foreigner Workers, Permanent Residents, Resident Spousal, and others reside here to go live with their family members in a Shantytown? { Just can't make up this shi# }. Minister Dion is not fresh face Shantytowns - him having before ministerial served under Papa Hubert's red shirts regime. And, if the arithmetic is not flawed - some in current and former governing administrations - had to have have betrayed Trust their colony of islands and their day should come be punished by a jury selection their Peers - while standing before the Judge.
TheMadHatter 6 years, 3 months ago
Tal....you got it on point my man. Excellent. We gah soon know if this govt serious or if they lookin to get troe out long before time.
bogart 6 years, 3 months ago
In all fairness Minister Dion Foulkes must be given highest commendation dats in the past decades of continuous Shanty town growth and functioning.....he is the one single govt Minister in decades to have walked through dem shantytowns. analyses dere functioning that has ......reached epic proportions to have affected the normal functioning of Bahamian society............hhuge sums money for defence boats...labour issues cheap illegal sancturoes to accomodate dem to flourish....unknown amounts of populations of another nationality residing dere...he must be given credit an Roc wid Doc fer having da will and endeavour best in finally after decades....doing someting bout it...whichin way anyone chooses to look at it... Make da Bahamas better again...!!!!.
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