The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE attorney representing the government in a judicial review centred on the demolition of shanty towns yesterday argued their plans to eradicate the unregulated communities do not breach the fundamental rights of residents.

It was also argued the action could be “justified” in view of the “overriding interest” to health and public safety.

Kayla Smith made the statement as she completed her submissions before Supreme Court Justice Cheryl Grant-Thompson in defence of the government’s demolition initiative.

“The applicants, in relation to their constitutional claim, have noted a number of grounds... these include the inhumane and grave treatment in breach of Article 17; invasion of home and property in breach of Article 21; prevention of freedom of movement in breach of Article 25; unlawful discrimination in breach of Article 26; (and) unlawful deprivation of property under Article 27,” she said.

“We submit there is no evidence before this court in relation to any inhumane or grave treatment, any invasion of home and property in breach of Article 21, any prevention of freedom of movement in breach of Article 25. There’s (also) no evidence of any unlawful discrimination in breach of Article 26 and there certainly is no evidence of unlawful deprivation of property under Article 27.”

Mrs Smith argued the evidence filed by Callenders & Co on behalf of the 177 residents and shanty town occupants “admitted” they did not own the property they occupied and were on the land illegally. She added that even if the court found that there was a breach of any of the fundamental human rights alleged by the applicants, those rights were “subject to limitations”.

“We maintain that there is no evidence of any deprivation of property in so far as we noted before, the applicants do not own the property and the respondents’ case does not relate to the taking of any property, but the enforcement of the laws of this country,” she said.

“We also say there is no ownership of property first of all and then there’s no evidence of taking any so-called property even though the constitution allows for it in relation to compulsory acquisition.”

Mrs Smith said it was also important to “look at the fact” that the country is a member of the international community.

“The Bahamas became a member state of the United Nations on September 18, 1973 (and) as a member, the country is obliged to fulfill in good faith the obligations assumed...thus, the Bahamas recognises the UN’s universal declaration on human rights and the resolutions that flow out of and affirm that declaration. And that includes a resolution adopted by the Human Rights Council and this is the human right to safe drinking water and sanitation. The resolution encourages states and developing partners to take a human rights approach when designing and implementing development programmes in support of national initiatives and action plans related to the enjoyment of access to safe drinking water and sanitation.”

Mrs Smith noted the country also became a member of the World Health Organisation (WHO) as well as its regional agency, the Pan American Health Organisation, in 1974.

She said WHO’s resolution on drinking water, sanitation and health encouraged “member states to develop and strengthen national public health strategies” to highlight the importance of these essentials, which she argued were not widespread in shanty town communities.

“In our submissions we have taken you through the affidavit of (Labour Minister) Dion Foulkes (which references) the Environmental Health Services Report,” she stated.

“In that report, we spoke about coliform being in the water in those shanty town communities and also in a more recent report coming from Craig Delancy in 2018, when he spoke to the challenges he saw in the septic and sewer system in relation to the water...And so as we indicate, when we talk about human rights, we also have to talk about our international obligations under the United Nations and WHO to ensure safe drinking water which is a basic human right.

“So, we say there is no breach of applicants’ fundamental rights in relation to any of the articles that they elect. But even if the court were to find that there was a breach, we say that it would be justified when we look at the overriding public interest in relation to health and public safety (and) in relation to the enforcement of the law. So even when we look at the proportionality...we say that there’s an overriding public interest in this particular case, where we have clear violations of the law and the risk to the health and existence of the applicants themselves in their various communities.”

As it relates to the applicants’ arguments on a lack of consultation from the government, Mrs Smith argued there were “a number of meetings” with representatives of the Haitian communities, including one with Rights Bahamas president Joseph Darville, who attended a meeting “on behalf of Frederick Smith, QC, who was away on business”.

Quoting the “relevant minutes” from the meeting, Mrs Smith stated: “The meeting began with the minister giving an overview of the government’s mandate to eliminate shanty towns and relocate the residents to more civilised and healthier communities. The reason for this decision was that shanty towns had become health hazards to the surrounding neighbourhoods and they were havens for criminal activity.

“Mr Darville interjected asking if the government would be subsidising the alternative housing for the residents. The minister explained that the government was in no position to subsidise this venture and even if they were able to, it would be a conflict of interest to assist these residents before the countless number of Bahamians who were still awaiting assistance as a result from the devastation of Hurricane Matthew. Mr Darville further shared that his only concern was the treatment of the villages during this project. He further advised that the verbiage of the project title should be changed from eliminating shanty towns to transforming shanty towns.”

Mrs Smith said during the meeting, Mr Darville was asked if his organisation “exclusively protected the rights of Haitians and Bahamians”. She said at the time, Mr Darville said the movement protected the rights of all Bahamian citizens and foreigners residing in the country. Still, she claimed he “emphasised” that they did not support any illegal activities and asserted the government had his “full support in this venture”.

“Here we have these human rights organisations giving support,” she stated. “The only issue Mr Darville indicated to the minister was his concern (over) the use of the term ‘elimination’ as opposed to maybe the term ‘transformation’. And this is also affirmed in his email communication to the minister, and all of this would have been a part of the consultation process.”

Mrs Smith was referring to an email Mr Darville sent Minister Foulkes, that was included in a recent affidavit filed by Mr Smith on behalf of the applicants.

Yesterday, Mr Smith said he believed the court document “closed the loop” on the exchange between himself, Minister Foulkes and Mr Darville.

Reading Mr Darville’s email in response to Minister Foulkes, Mr Smith stated: “Dear Dion, I too have been distraught by the continued official pronouncements related to shanty towns and the use of such terms as ‘demolition’, ‘elimination’ and such. This project should be seen in more enlightened terms such as transformation, sustainable and dignified rebuilding as was suggested at the meeting I attended.

“...You definitely have the right mindset and focus. However, you are a part of that system which lacks the true and respectful appreciation for these people. If I do see a change in public pronouncements coming forth from officialdom, then I may continue to be a part of this effort. My colleague, Fred, may be of like mind as well, if a more human approach in language is employed.”

Nevertheless, Mrs Smith contended the Crown’s evidence proved “sufficient consultation” was done through the various meetings held with the representatives, pastors and organisations of the people residing in the shanty town communities.

“Bearing in mind that there are large numbers of persons living in shanty town communities, the respondents did not have to speak with each and every individual resident living within the shanty town, nor the 177 applicants in this action in order to find that consultation did take place,” she stated.

As it relates to the applicants’ allegations of the “differential treatment” of shanty towns compared with the government’s white paper regeneration of the Over-the-Hill communities, she added: “There is no evidence before this court to draw or attribute any type of similarities between those two communities.

“The evidence of the building control officer (Craig) Delancy is that he carries out his duties in accordance with the BRA and his decisions are unfettered. There is clear evidence of BCO Delancy acting in accordance with the BRA in areas of Yellow Elder Gardens, Finlayson Street and other areas of New Providence such as Joe Farrington Road...and that evidence has not been controverted. So, throughout the entire Bahamas, whether it’s an Over-the-Hill community or whether it’s in parts of the Bahamas, the evidence before this court is that he carries out his duties in accordance with the BRA and there is no fettering of his discretion and there is no evidence of discrimination because the law requires that we all follow the law.”

The case continues on June 15.