The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government is being threatened with “ejection” from the North Eleuthera Airport and other assets unless it pays almost $26m in compensation for their use over a six-decade period.

Attorneys representing 3,000 “common” land owners, in a February 17, 2021, letter to the Prime Minister, warned their clients will initiate legal action over the Government’s alleged violation of their constitutional and property rights in taking their land without paying a single cent for it.

In a move that threatens to disrupt the $65m North Eleuthera Airport expansion, the Harbour Island Commonage Committee wants reimbursement not only for land that the present facility has occupied since 1959, but also the 450-acre and 30-acre sections that were taken for wellfields and the district dump in the mid-1990s.

Richette Percentie, of KLA Chambers, writing on behalf of the Committee and the 3,000 it represents, argued that in the circumstances the Government is “a willful trespasser” on their land and that her clients will seek its eviction via the courts unless their demands are “speedily” resolved.

Reiterating that the Committee and the commoners were “eager” to see the airport’s expansion “come to fruition” but aghast at how this is being done, Ms Percentie said her letter was “a final appeal” to the Government for it to alter course after all earlier pleas “went on deaf ears”.

She told the Prime Minister: “As you are are aware, the Government agencies - the Ministry of Transport and Aviation, Water & Sewerage Corporation and the Ministry of Works - have occupied various portions of the commonage land for decades.

“In particular, the Government has occupied land at the North Eleuthera Airport (150 acres) since 1959, and an additional 100 acres since 1986; land at the North Eleuthera Garbage Dumps (30 acres) since 1996, and the Water & Sewerage Corporation has occupied the water fields (450 acres) since 1994.

“However, none of those agencies are registered commoners, which is in clear breach of the Commonage Act. Additionally, the Government has unlawfully allowed persons and companies that are non-commoners to enter the airport to operate businesses at a profit. These are violations of the Commonage Act.”

Ms Percentie said the Act’s section ten prohibited non-commoners, such as the Government, from holding an interest in commonage land, while section 15 stipulates that any non-commoner using such land is a “willful trespasser” and can be “ejected” from such property.

“It is our clients’ position that as the Government of The Bahamas is not a registered commoner, it has no interest in the commonage land it occupies (North Eleuthera Airport, North Eleuthera Garbage Dumps and wellfields) and, accordingly, you are deemed a willful trespasser,” Ms Percentie told the Prime Minister.

The same, she added, applied to non-commoners with businesses at the existing airport, and she pointed out that the Government continued to collect fees from passengers, concession operators and fuel providers even though not a single cent from these revenue streams had passed on to the commoners as was promised in return for the facility’s original 1959 construction.

“It is our understanding that monies collected include those collected by the Airport Authority in the sum of $9 per passenger (incoming and outgoing) from each airline,” Ms Percentie wrote. “Additionally, we are advised that a royalty fee of $0.07 per gallon on fuel is being collected by the Government from White Crown.

“Yet our clients have received no compensation whatsoever. This is a violation of their constitutional rights, particularly Article 27, as well as it infringes the common law protection against deprivation of property rights without compensation.”

She added that the commoners’ efforts to resolve these issues “have been met with resistance by the Government, which has failed and/or refused to even hear their plea”. While voicing hope that the Government’s proposed compulsory acquisition of North Eleuthera Airport’s existing 250 acres, as well as an additional 408 acres for its planned expansion, would result in a “fair resolution” and price, Ms Percentie said her clients are demanding $25.889m in compensation for past use of their property.

This is broken down into $9.3m and $3.5m for the 150-acre and 100-acre tracts that comprise the North Eleuthera Airport, the latter of which was taken in 1986. The wellfields and dump site were priced at $12.339m and $750,000, respectively, while Ms Percentie said her clients will also seek “damages for the permanent scarring and abuse of the land” by those two facilities.

“Please be advised that my clients intend to enforce their legal rights to have the relevant trespassers ‘ejected’ unless a cordial agreement between the Government of The Bahamas and the Harbour Island Commonage is reached speedily,” she added, suggesting that the necessary land could be licensed by her clients at a rate of $750 per acre for a six-figure annual payment.

Urging that agreement be reached within seven days of receipt of her letter, Ms Percentie said failure to reach an acceptable deal would see the commoners initiate legal proceedings to recover the $25.889m and “an action for eviction”.

Sources close to the Committee told Tribune Business yesterday that a legal battle appears increasingly likely as neither the Prime Minister nor any other government official has responded to the concerns outlined in the February 17 letter.

However, Carl Bethel QC, the attorney general, said he had not been briefed on the situation, while Dionisio D’Aguilar, minister of tourism and aviation, had earlier referred this newspaper to the Attorney General’s Office.

Tribune Business previously revealed that talks over the airport expansion between the Harbour Island Commonage Committee and the Government, headed by Algernon Cargill as director of aviation, initially focused on establishing a partnership arrangement between the two sides. The then-plan was to develop and gazzette “rules” that would enable the commoners to licence the airport land to the Government.

However, the Minnis administration then reversed course in April/May 2020, when Mr Cargill revealed it will now acquire the 658 acres for the airport via the Acquisition of Land Act rather than the original partnership proposal.

Asked yesterday by this newspaper to explain the change in approach, Mr Cargill said owning the land - as opposed to licensing or leasing it from the commonage - would provide the Government with more security for a key public asset.

“When building an airport, a state-owned asset, you tend to build on land owned by the Government,” he explained. “If you are leasing the land, the same security is not in place. It’s just that we’re building a $65m investment, and prefer to build on land owned.

“It’s a more expedient way to move ahead with the project rather than negotiate with the commonage over their terms of preferred engagement.” Mr Cargill denied that the compulsory land acquisition, and extra 408 acres, were required to sweeten the deal and make the Family Island airport upgrades more attractive to private capital, $140m of which is to be arranged by local merchant bank, RF Holdings.

Voicing surprise at the threatened legal action, Mr Cargill said the Government had always negotiated with the commonage in good faith and “been entirely transparent at every step of the way” including the plan to use the Acquisition of Land Act.

One commoner, speaking on condition of anonymity, yesterday queried whether the North Eleuthera airport needed additional runway space given that it had accommodated what they said was a doubling of visitor arrivals from 30,000 to 60,000 between 2010 and 2018.

Acknowledging that the terminal needed upgrading, they added: “We’ve had this massive expansion accommodated without increasing the runway.” However, the Government’s airport land demands rose from an initial 450 total acres to 550 acres, and then finally to 658 acres, which Mr Cargill said was needed for security and perimeter fencing, plus further expansion in the future.

The commoners are thus seeking to leverage the airport expansion to obtain compensation for past use of their lands. Some observers might argue that the move is short-sighted, and akin to cutting off their nose to spite their face, given that they, too, as well as the entire area in theory stand to benefit from an expanded airport and improved tourist access post-COVID-19.