The Tribune

• Sixty year-old grievance behind Eleuthera dispute

• Govt increases land buy goal from 450 to 658 acres

• Landholders: ‘Sit at table and find common ground’

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The government’s repeated failure to settle a 60 year-old grievance has put the planned North Eleuthera airport expansion in peril from potential legal action by over 3,000 “common” land owners.

Attorneys acting for the Harbour Island Commonage Committee, the owners’ representative, last night told Tribune Business their clients will use multiple legal channels to recover what they believe is due to them after failing to receive a single cent from the government for the decades-long use of up to 730 acres of their land.

Richette Percentie, of KLA Chambers, urged the Minnis administration to “sit at the table and reach common ground” with the committee rather than provoke a legal battle that could delay airport infrastructure expansion deemed vital to North Eleuthera’s growth as a tourism destination.

She added that the commoners wanted the government “to give consideration to a public-private partnership (PPP) with them”, as it had initially seemed willing to do, only to reverse course after several months of negotiations and instead move to a compulsory acquisition of the entire 658-acre North Eleuthera Airport site via the Acquisition of Land Act.

This purchase, which if approved by Parliament would see the government acquire the existing airport- estimated at between 200 and 250 acres - plus a further 400 acres, would take its use of the commoners’ land to more than 1,138 acres. The latter figure includes the 450-acre wellfield site, plus the 30-acre Harbour Island garbage dump, neither of which the government has paid a cent for.

Documents seen by Tribune Business reveal that the controversy’s roots date back to the pre-colonial era of the 1950s, when the decision was made to construct North Eleuthera’s airport on a portion of 6,000 acres that were subject to a Crown commonage grant on July 1, 1842.

Foster Clarke, the then-MP, wrote a 1956 letter to RE A Sweetnam, a crown lands officer, warning that “the preliminary question of granting title to the land should be settled before constructing the airstrip or the road” given “very strong opposition” by some Harbour Island/Dunmore Town residents who felt their property rights were being violated.

His warning went unheeded, and the North Eleuthera Airport’s construction proceeded in 1959 amid alleged government promises that the commoners would be compensated via a portion of the aircraft landing fees collected.

That, though, never happened even though the airport was expanded by an estimated 150 acres in the 1970s to take it to 250 acres. The Government then came back for more land in the mid-1990s via the 450-acre wellfield and, again, in the late 1990s and early 2000s for the 30-acre Harbour Island garbage dump.

Sources familiar with events, speaking on condition of anonymity, said the commoners received “not a cent” for the Government’s use of their land, which ultimately resulted in a 1996 legal action against the Government on the Harbour Island Commonage Committee’s behalf that was brought by former minister of state for legal affairs, Damian Gomez.

The statement of claim, which has been seen by Tribune Business, alleged that the “licence” which purportedly allowed the Government to construct and operate the North Eleuthera Airport was “unlawful” and breached the 1842 Crown Grant as well as The Commonage Act. The same allegations were repeated in relation to the wellfields and garbage dump.

This newspaper was informed that the legal action petered out as the Committee’s membership changed, and letters seeking compensation that were sent to Allyson Maynard-Gibson and Glenys Hanna-Martin, then attorney general and minister of transport and aviation, respectively, in the last Christie administration received no response.

The matter, though, has come to the forefront again due to the planned $65m expansion of North Eleuthera Airport as a part of a series of Family Island airport upgrades. Tribune Business has seen documents revealing that then Government’s land needs increased from an initial 450 acres (including the existing 250 acres) to 550 acres and then to the final 658 acres.

Talks between the Harbour Island Commonage Committee and the Government, headed by Algernon Cargill as director of aviation, on establishing a partnership arrangement between the two sides began in early 2019. The then-plan was to develop and gazzette “rules” that would enable the commoners to licence the airport land to the Government.

The 1896 Commonage Act permits at least 20 persons to hold a right in non-partitioned land with others, and have these rights protected. Only registered commoners are allowed to work on or possess this land, meaning that all others - including the Government - who encroach on it can technically be treated as trespassers.

Mr Cargill, in a January 23, 2019, e-mail after meeting with the Committee, issued them with a proposed site plan for the expanded North Eleuthera Airport and wrote: “The quantity required is approximately 550 acres and not 450 acres as previously advised. The additional land is required to ensure we provide for proper perimeter security and to also provide for any future expansion of the airport.

“We are excited about the opportunity to continue these discussions with the Commonage and, in this regard, anxiously await your feedback as we continue with our planning efforts. Please note that we will consider every alternative you have provided as we recognise, as we are certain that you do, the importance of this airport to the North Eleuthera and extended communities.”

In a follow-up e-mail two days later, he added that the Government was “anxious to continue discussions with the Commonage about the availability of the land required to accelerate our plans for the building of a new airport for the benefit of all of Eleuthera.

“We cannot move these plans to the next level until we have an agreement with the Commonage to make this land available and the considerations expected in return.”

Following a further meeting between the two sides in March 2019, Ms Percentie wrote of her clients: “They are in full support of the expansion of the North Eleuthera Airport and are willing to secure an arrangement with the Government for the property outlined on the plan submitted to you at the last meeting held on 19 February, 2019.

“However, as was stressed, the Committee is unable to proceed until the rules are first gazetted. I suggest that we all work together towards an expeditious resolution regarding the rules. I am reviewing the draft rules that we have, and expect to have those finalised by the end of the week.

“I believe that once the gazetting process is in motion and the Committee is satisfied that the matter is being given priority, we can begin to formulate an agreement between the parties. This ensures that further time is not lost back and forth and that, once the gazetting process is finalised, the Government can move forward with its plans.”

In a July 2019 e-mail to Ryan Sands, a government attorney, Ms Percentie reiterated her clients’ desire for “an amicable settlement”. She wrote: “To facilitate the airport expansion, the rules must be codified into law. This I am advised is the main focus of the Committee as they realize that time is of the essence.

“The rules do make provision for the creation of a license agreement between the Committee and non-commoners. For clarification, non-commoners are not descendants of registered commoners or grantees but, rather, persons who do not fall in the category and therefore have no interest in the commonage land.

“This category of persons includes the Government of the Bahamas, hence the reason for the inclusion in the rules of some sort of agreement.” However, the Government then went silent until April/May 2020 when Mr Cargill revealed that it had reversed course and will now acquire 658 acres via the Acquisition of Land Act rather than the original partnership proposal.

Ms Percentie, in a December 4, 2020, letter to the Prime Minister said the move had come as “a complete surprise” to her clients “and without any explanation”, as they thought they were in “fruitful discussions” that would “lead to an agreement that would be beneficial for all involved”.

She last night told Tribune Business that a court hearing will take place on February 22 in a bid to force the Government to “gazzette” the rules discussed. The Committee, which is pursuing multiple legal tracks, also plans to seek the monies the commoners are allegedly owed dating back six decades while also putting the Government on notice it could be evicted for trespass.