The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Disney's Lighthouse Point rival says it may mount a Judicial Review-style legal challenge over the lack of proper consultation should the Government approve the cruise line's $400m project.

Shaun Ingraham, the One Eleuthera Foundation's (OEF) chief executive, told Tribune Business this was "obviously an option" for the Lighthouse Point Partners consortium given the perceived "injustice" in how the Government has treated their competing proposal.

The two sides are understood to have disputed this issue when they met on Friday, with Joshua Sears, the prime minister's senior policy advisor, insisting that last Wednesday's Town Hall meeting in South Eleuthera - attended by Dr Minnis - satisfied the requirement for the Government to conduct meaningful consultation with affected parties and local stakeholders.

This, though, was vehemently rejected by Lighthouse Point Partners' various members, some of whom said they "absolutely do not accept that meeting" amounted to the required consultation established by recent Bahamian court verdicts.

Eric Carey, executive director of the Bahamas National Trust (BNT), which is a member of the Partners consortium, told Tribune Business: "What we've asked for, as required by law and legal precedent with these developments, is that the Government is required to do public consultation. That hasn't happened yet.

"We absolutely do not accept that meeting as the required consultation; not according to what has been ruled on by the Privy Council in other cases. That was a discussion point in the meeting when Mr Sears insinuated that [Wednesday's meeting] was public consultation."

Mr Carey said "no agenda" was published for that meeting, and argued that many attendees thought it was part of Dr Minnis' series of Family Island meetings where all the community's issues - not just the proposed Disney project - were to be discussed.

"It was not a legally required public consultation to allow the Government to facilitate a process where our proposal was presented to the public to let them form their opinions and ask questions," the BNT executive director added.

Mr Ingraham, confirming what happened at Friday's meeting, said: "We had to remind the policy adviser that according to law we're due necessary time, and it's incumbent upon the Government to present the two plans before them to the public.

"That's public consultation. Disney had the privilege of the Government's support for the last couple of weeks to get their plan out. It seemed like a full-on government endorsement of their deal."

Asked whether Lighthouse Point Partners might initiate a Judicial Review challenge in the Bahamian courts over the public consultation issue, should the Government make a decision on whether to approve Disney's project tomorrow as promised, Mr Ingraham replied: "We've given it some thought. We see that as an option.

"We'll have to make that decision when the time comes, but obviously it's an option. They're [Disney] already in the first quarter, and we're just showing up at the stadium. Just give us a chance to present our proposal."

Numerous court rulings over developments such as Baker's Bay at Guana Cay, Abaco, and the Bahamas Electricity Corporation (BEC) power plant at Wilson City, have established as legal precedent the need to meaningfully consult with affected parties and stakeholders over such projects.

The Privy Council, in its ruling on Baker's Bay, found: "All the courts below accepted that the public had a legitimate expectation of consultation arising out of official statements recognising the need to take account of the residents' concerns and wishes." And, more importantly, it concluded: "If there is a legitimate expectation of consultation, it must be a proper consultation."

And former appeal court president, Dame Anita Allen, found in the Wilson City case that "there was no adequate and meaningful consultation relative to the location and construction" of BEC's Wilson City power plant, which was presented at a Town Hall meeting as "a fait accompli".

"It cannot be correct to say that [BEC and the Government] could delay consultation on the location and construction of the plant until it was too late for it to have any impact, and also say that there had been adequate and meaningful consultation," the Court of Appeal ruled. "There was no adequate and meaningful consultation relative to the location and construction of the plant."

The Government and BEC had therefore "breached" the public's expectations, the judgment added, given that "fairness" required them to consult and listen to those who would be impacted by Wilson City.

Many observers of last Wednesday's Town Meeting are concerned that a decision over the Disney project's approval is a similar "fait accompli", given the Prime Minister's remarks and the number of attendees wearing pro-Disney t-shirts.

When asked by Tribune Business whether the last ditch, 11th hour public relations offensive being mounted by Lighthouse Point Partners was too late, Mr Carey said the consortium was placing its trust in the Government and its stated campaign pledges.

"We do have faith that the Government represents the rule of law and due process, and that the Government will abide by its own outlined platform that people are part of the process," the BNT executive director replied.

"While there is concern from that meeting on Wednesday, and people have drawn conclusions that this is a foregone conclusion, we have to have faith and hope that the Government elected to represent the people's interests are going to follow the process enshrined in law to protect the people's interests."

Disney, though, holds one advantage over Lighthouse Point Partners, whose members include some of Eleuthera's most prominent institutions in the shape of the Leon Levy Foundation, Island School and Cape Eleuthera Institute, as well as the BNT and One Eleuthera Foundation OEF).

That is the sales agreement it has signed with the seller, The Related Group and Meritage Hospitality, to purchase the 700-acre Lighthouse Point site. The Government is likely to be concerned that should it reject the Disney proposal it will be perceived as interfering in a private commercial transaction.

And, given Disney's scale as a global conglomerate with one of the world's most recognised brand names, it may fear that The Bahamas' reputation as a safe foreign direct investment (FDI) destination could take a battering among the target market it wishes to attract.

Mr Ingraham, meanwhile, admitted that last Wednesday's Town Meeting had "caused us to panic", with the Lighthouse Point Partners group moving "frantically" following last Wednesday's meeting to ensure its proposal was distributed as widely as possible over the weekend.

When asked why the group had waited so long to reveal the extent of its rival $23m proposal for Lighthouse Point, the OEF chief executive said this was done "out of courtesy" to the Government to give it time to review the plans.

Lighthouse Point Partners' proposal was first submitted to the Minnis administration in March, but never received a reply. It was resubmitted in September, and then discussed again on Friday with the Government's technical advisers, who also included Candia Ferguson, director of investments at the Bahamas Investment Authority (BIA).

"The reason we did not go public with the plan was to give them [the Government] a chance to look at the proposal, and get back to us," Mr Ingraham said. Both he and Mr Carey said they were "disappointed but not surprised" that neither Dr Minnis nor any member of his Cabinet was present at the meeting, the OEF chief saying: "We didn't have our hopes up too high."

The Government officials are now writing a report, and recommendations, that they will submit to Cabinet on the issue. However, it is unclear how the merits of the Lighthouse Point Partners project can be fully analysed and considered in the short timeframe left before the Government's promised decision tomorrow.