The Tribune

• Activists seek Privy Council go-ahead to fight $250k security

• Smith: Outcome 'pivotal' to battle 'deep pocketed developers'

• Filings say constitutional rights to access courts being denied

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A prominent QC yesterday charged "there's no sense in having the rule of law if you have to pay to play" as he seeks the Privy Council's go-ahead for an appeal involving an Abaco marina project.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business the outcome of his approach to the highest court in the Bahamian judicial system was "pivotal" for the ability of Family Island activists to challenge "deep-pocketed developers" and the Government.

Speaking out as his client, Responsible Development for Abaco (RDA), seeks the Privy Council's permission to appeal a Court of Appeal verdict requiring it to pay $250,000 as "security for costs" to the Government and the Abaco Club, Mr Smith said success was critical to enabling "grassroots organisations to have their day in court".

Arguing that the future conduct of such public interest litigation in The Bahamas was at stake, he added of the case: "This is of pivotal importance to grassroots organisations that are simply insisting on being consulted before Cabinet secretly enters into agreements with foreign developers at the expense of local communities.

"I wish I could drill it into the heads of the people in Nassau that the Family Islands are not colonies of Nassau, and that we must respect the locals. Every island is different, and it is disrespectful for Cabinet and the National Economic Council (NEC) to continue to impose development on Family Island communities without consultation.

"This is important because if we're successful it will prevent the deep financial pockets of the developer from denying Family Island grassroots organisations their day in court. There's no sense in having rule of law if you have to pay to play. It's far too expensive for Family Island communities to fight both the Government and the rich foreign developer."

RDA's submissions seeking the Privy Council's permission to bring its appeal, which have been seen by Tribune Business, argue that the $250,000 it must find to cover the Abaco Club and government's legal costs are "of such magnitude they would stifle its claim and, thereby, breach the appellant’s constitutional rights of access to the court, to a fair trial and to fair and equal access to the courts".

It added that its financial resources were "very modest", and its Privy Council papers argue that "there was simply no basis for the Court of Appeal purporting to find that the claim was '...being funded by the persons who claim that they would be adversely affected by the proposed development and could be expected to provide the security required to pursue the claim'".

RDA is also alleging that the costs demand was made late, and it is "readily apparent that the combined security for costs orders would stifle the claim. Two hundred and fifty thousand dollars was five times the total fundraising that the appellant had hoped to raise - but by December 2016 still had not yet realised - to run the entire case from start to finish".

"The Court of Appeal’s orders disproportionately impede its right of access to the courts," RDA's papers argue. "In the Bahamas there is no legal aid and conditional fee agreements are unlawful.... Nevertheless, the Bahamian courts appear to deny the constitutional right of access to the court".

It is aiming to overturn a Court of Appeal judgment written earlier this year by its president, Sir Michael Barnett, who declined to grant “leave to appeal” to the Privy Council on the basis that the case raised no issues of legal or general public importance.

While “security for costs” is often demanded in legal actions alleged to be frivolous, or have a small chance of success, the Government has increasingly employed this tactic when facing Judicial Review challenges to permits and approvals granted to developers.

Some, including Mr Smith, view it as a tactic designed to knock-out such litigation at an early stage, and avoid a trial on the substantive issue, given expectations that those bringing Judicial Review actions lack the financial means to sustain them. In the present proceedings, RDA is currently required to pay $150,000 to the Abaco Club, and $100,000 to the Government.

RDA had previously launched Judicial Review proceedings opposing The Abaco Club’s plans to construct a 44-slip dock at Little Harbour, along with a supplies shop, private restaurant, 6,000 square foot covered car park, generator, desalination plant and waste treatment facility.

The proposed development will measure 320 feet across the outside piers, 210 feet between the two parallel main piers, and will extend 270 feet into Little Harbour, with the intent for it to accommodate boats up to 60 feet.

However, RDA fears if the project goes ahead it will completely change the environment and character of Little Harbour, a 50-home community that runs entirely off solar power.

Besides its environmental concerns, RDA is alleging that the government decided not to carry out any proper consultation with local residents and affected stakeholders before making decisions concerning the grants, permits and approvals required before the development can be constructed.

It is also claiming that the Government has withheld information so as to deprive the group of its statutory rights and/or legitimate expectations to contribute to any consultation process.

RDA, in its Privy Council submissions, said the Winding Bay-based Abaco Club, which is owned by Southworth Developments and a group of its homeowners, view the Little Harbour project as critical to ending the absence of a marina that would prove a further attraction to attract new home and lot buyers.

"Little Harbour is a small, shallow harbour approximately three miles from the club. It is rugged and unspoilt. It is a unique solar-only residential community of 60 homes which collect their own rainwater, private docks, moorings for guest boaters, a pub and art gallery," RDA added. "Access to Little Harbour is through a narrow, and shallow channel.

"If, as is proposed, a commercial marina for the accommodation of boats up to 60 feet is constructed in Little Harbour, regular dredging of the existing channel will be required and to a greater depth than the current channel. The environment and ecological costs will be very significant indeed. There is much local concern about the development."

The Abaco Club, though, told the Court of Appeal in May 2020 that it has not moved to progress the project in line with previous undertakings that no work will be done until the court challenge is resolved.