The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

SUPREME Court Justice Cheryl Grant-Thompson yesterday gave attorneys representing the government in a judicial review centred on shanty town demolition 21 days to hand over all documents relating to the plans to eradicate the communities.

She also granted the shanty town residents’ request to have Labour Minister Dion Foulkes answer eight of the 12 questions they put forth in order to gain a full understanding of the government’s position.

Her instructions came after she ruled the respondents Prime Minister Dr Hubert Minnis; Works Minister Desmond Bannister; Attorney General Carl Bethel; Bahamas Power and Light; and the Water and Sewerage Corporation had not fully exercised their “duty of candour” during the proceedings.

The applicants — Respect Our Homes Ltd and Lumane Nonord, being 177 residents and occupants of shanty towns — had filed an application for discovery calling for the respondents to disclose all documents related to the establishment and work of the Shanty Town Action Task Force (STATF), as well as notes showing the “extent of the Crown’s interest in the land in question,” among other concerns.

Martin Lundy II, lead attorney for the applicants, said the requested documents were necessary because his clients were “in the dark” as it related to the creation of government policy concerning the eradication of shanty towns. He said this factor made it difficult for them to determine under what law the government sought to justify its actions.

Kayla Green Smith, on behalf of the Crown, said the “global discovery” would amount to nothing more than a “fishing” expedition that could further prolong the matter.

Yesterday, Justice Grant-Thompson granted four out of seven of the applicants’ document requests, after noting the respondents had a “duty” to assist the court by supplying “full and accurate explanations of the relevant information”.

She insisted in order to determine whether the authorities treated the applicants fairly, a clear understanding of the policies they relied on needed to be established.

In her ruling she stated: “In reaching its decision, the court performed a balancing act on the one hand ensuring that the duty of candour imposed on the respondents by law was fulfilled, and on the other hand, ensuring the applicants’ application for discovery was not used as a fishing exercise.

“… The court is satisfied that the duty of candour owed by the respondents has not been fully exercised and I hereby order that the respondents deliver to the applicants the following documents forthwith: All documents including notes, memoranda, meeting minutes, discussion papers, press releases, correspondence, consultations or other documents that relate to or evidence the formulation of the government’s apparent policy to eradicate or irretrievably eliminate shanty towns in The Bahamas; all documents relating to the establishment of the STATF including any documents evidencing its constitution, terms of reference, composition and authority; all documents evidencing the extent of the Crown’s title to and/or interest in the land in question in these proceedings including any title deeds, plans, grants, leases, licences, agreements, charges, easements, covenants, options, assignments or other documents; and the Building Assessment Report conducted by the Ministry of Works and referred to in a Bahamas Information Services press release.”

Justice Grant-Thompson said the court denied the remaining three categories because it believed they were “unnecessary” and would result in the applicants “conducting a fishing expedition”.

“This is my ruling,” she asserted. “I hereby order that the respondents deliver the requisite documents to the applicants within 21 days having regards to the conditions in the country relative to the global pandemic and the difficulty in accessing government offices and documents.”

In their application for interrogatories in the matter, the applicants sought to have Mr Foulkes answer questions relative to his May 2, 2019 affidavit, since he could provide the “principal evidence” in response to the leave to apply for judicial review.

The applicants said they were making the request because they were restricted in their ability to prepare their case adequately without “proper particulars of the decisions they seek to review”.

They argued that Mr Foulkes should know what the government’s policy is on the alleged eradication of shanty towns. As a result, they want him to state whether the government, a person or an organisation acting with its authority, decided to take possession of the land and disconnect utilities on it. They also want Mr Foulkes to state whether any policy of the government calls for the “irretrievable elimination” of shanty towns in the country.

In her ruling, Justice Grant-Thompson said she would allow interrogatories related to the “correct statement of the proper position of the government on its policy relative to the shanty towns” to give the applicants efficient time to prepare their case and “properly advise their clients in the interim to observe the law”.

She said for similar reasons, she would admit a formal set of questions related to the “propriety of the notices served in July, in order to confirm whether new streamlined notices would now be prepared and served containing further and better particulars relative to the houses which may be compliant with the BRA building code”.

Still, Justice Grant-Thompson said she would refuse the request for questions relating to the ownership and possession of the land, since she believed the discovery request for documents relative to the Crown’s title of the land would provide the necessary information the court would need to determine which land was Crown land from which was not.

A hearing to determine which party will cover the costs of both applications is scheduled for October 1.