The Tribune

• Entrepreneur taking ‘legal steps’ on RCCL move

• Says his permission not needed on disputed acres

• Competing Crown Land leases led to Gov’t turmoil

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian entrepreneur yesterday said he is taking legal advice over fears Royal Caribbean will “run roughshod” over the disputed Paradise Island-based Crown Land that is subject to a legal dispute.

Toby Smith, the Paradise Island Lighthouse and Beach Club principal, told Tribune Business he plans to consult Wayne Munroe QC, also the PLP’s general election candidate for Freetown, on the “appropriate legal steps” he can take after the global cruise giant asserted in an e-mail that it did not need his permission to enter land that is involved in his court battle with the Government.

Jay Schneider, a Royal Caribbean executive, told Mr Smith on August 31: “Please note that Royal Caribbean possesses a valid Crown Land Lease in respect to the demised premises contained therein, which premises are subject to ongoing due diligence work.

“Royal Caribbean was not involved in your dealings with the Government and will continue to abide by the terms and conditions of its lease of the demised premises. Royal Caribbean does not require your consent to access the demised premises.”

He was responding after Mr Smith, in an August 25, 2021, e-mail voiced concerns that Royal Caribbean had hired Target Surveying and Engineering to conduct work on Paradise Island’s western end in the Colonial Beach area.

Their work will likely incorporate several Crown Land acres that are the subject of Mr Smith’s Supreme Court battle with the Bahamian government, where he is seeking a declaration that he already has a valid and binding lease agreement for some of the same seven to 10-acre parcel sought by Royal Caribbean.

The Paradise Island Lighthouse Club principal slammed Target’s surveying work as “a flagrant disregard for our Crown Land Lease and the litigation before the courts of The Bahamas”, and told Tribune Business yesterday: “They have provoked a fight.”

“They are running roughshod over me and trying to stampede over my boundaries, but time is longer than rope and if you don’t listen you will learn,” Mr Smith told this newspaper of Royal Caribbean proceeding with its $50m Royal Beach Club project.

“Royal Caribbean might think they’re royalty, and high and mighty, but ignoring what this Bahamian has achieved over the past 10 years smacks of arrogance and disregard for locals. They’ve met their match. It’s game on.”

Mr Smith has initiated a Supreme Court action against the Government alleging he was granted a valid Crown Land lease over two-acre and three-acre parcels, including the lighthouse and the area at Colonial Beach for his “beach break” destination, which is now legally binding.

A January 7, 2020, letter from Richard Hardy, acting director of Lands and Surveys, was headlined “approval for crown land lease” over the two tracts. Mr Smith previously told this newspaper he returned the lease, bearing his signature and other formalities, to the Government on January 9, 2020.

However, the Government has to-date failed to apply its signature and execute the lease. And, in its defence to Mr Smith’s claim, it describes the document issued by Mr Hardy as “a draft lease” despite the fact that the senior government official issued specific instructions on how the document should be signed, sealed, dated, witnessed and notarised.

Suggesting that the January 7 document was sent to enable Mr Smith “to sign and formalise his offer”, the Government’s defence alleged: “At no time did the minister responsible for lands [the Prime Minister] make an offer to the plaintiff for the lease of Crown Land. At no time was there an executed lease or an accepted lease agreement between the parties....

“The draft lease represented the ongoing negotiated position of the parties on the proposals put forward by the plaintiff for a lease, and was an invitation to treat and for the formal offer to be made by the plaintiff to the minister responsible for land. The plaintiff’s signed offer for a lease was subsequently not accepted by the minister responsible for land.”

Just five days before Mr Hardy wrote his letter, Candia Ferguson, the Bahamas Investment Authority’s (BIA) director, wrote to Royal Caribbean’s attorney, Campbell Cleare at McKinney, Bancroft & Hughes, confirming that the Government had approved granting it Crown Land “in the vicinity of Colonial Beach”. The January 2, 2020, letter said the exact area to be leased was to be determined and “subject to availability”.

New documents obtained by Tribune Business show frenetic February 2020 activity involving three government agencies - the Prime Minister’s Office, Attorney General’s Office and Department of Lands and Surveys - after it was seemingly discovered that the same Crown Land desired by Royal Caribbean was also involved in Mr Smith’s lease and may have effectively been ‘double dealt’.

A February 14, 2020, memorandum from Mr Hardy to David Davis, permanent secretary in the Prime Minister’s Office, in response to the latter’s request confirmed that 11.55 acres of Crown Land remained available on the western tip of Paradise Island.

The total Crown Land acreage in the area was 16.66 acres, but Mr Hardy said five acres were involved in the Paradise Island Lighthouse and Beach Club project lease that had been sent to the Prime Minister’s Office on January 13, 2020. And another 0.11 acres was subject to an annual renewable Crown Land licence held by Nassau Water Ferries Services, a company owned by ex-investments minister, Khaalis Rolle.

A subsequent memorandum from Mr Davis, dated February 25, 2020, referred to a conversation between Joshua Sears, Dr Hubert Minnis’ senior policy adviser, and then-acting surveyor general, Thomas Ferguson. Seemingly addressed to Mr Hardy, it said the National Economic Council (NEC) - meaning the Cabinet - had agreed that Royal Caribbean should have ten Crown Land acres to facilitate its project.

He also called for “the boundaries of land allocated to Khaalis Rolle and Paradise Island Lighthouse and Beach Club Company be adjusted to enable them to maintain the allocated three acres and the licence and beach access respectively”. Mr Davis added: “Please address this matter extremely urgently.”

One day later, Mr Sears, the Prime Minister’s senior policy advisor, told Royal Caribbean via Mr Cleare on February 26, 2020, that the NEC had approved the grant of ten acres of Crown Land to it subject to the results of a survey to confirm its availability given the competing interests of Mr Rolle and Mr Smith.

And, at the same time, an e-mail from Danya Wallace, deputy director of legal affairs, confirmed in a late February e-mail that the Attorney General’s Office had been asked to provide a legal opinion on Mr Smith’s Crown Land lease. She asked for a copy of the lease, whether Mr Smith had yet paid any money towards it, and if he had spent any money on his $2m project.

A February 28, 2020, reply from Martha Taylor, at the Department of Lands and Surveys, asserted that Mr Smith had paid no money yet towards either the lease or the project. She added that Mr Rolle’s last licence payment had been $600 to cover the period from February 11, 2019, to October 1, 2019, with the annual fee set at $75.

In the midst of all this, on February 27, 2020, Mr Smith met Carl Bethel QC, the attorney general, at the Bahamas Investment Authority (BIA), for a meeting during which he was asked to move his project to accommodate Royal Caribbean. He refused on the basis that it would shift his development to an inferior spot on the beach and make it unworkable.

These events also took place against the Government’s negotiations with Royal Caribbean over the Grand Lucayan deal, which has yet to close with a general election just two weeks away. Mr Smith yesterday said Dr Minnis “continues to ignore me” despite his offer to negotiate a “reconciliation” outside court.

“With an election around the corner, I will do my best endeavour that my message gets out as to how Dr Minnis treats Bahamians,” he added. “Take your foot off of our necks.”