The bid being made by the Save Guana Cay Association to block the multimillion-dollar Baker’s Bay development was yesterday adjourned to Monday due the illness of the presiding judge, Norris Carroll.
Justice Carroll earlier denied a request made by the Association’s president, Frederick Smith, to cross-examine various persons, including the developers and government officials who filed affidavits prior to the case.
On Tuesday, Judge Carroll denied a second request by Mr. Smith to allow cross-examination.
The judge again denied a third attempt after Mr. Smith said the information revealed during cross-examination would be valuable to the case and would also assist the officers of the court.
Mr. Smith also made a second application for an injunction to stop work on the Baker’s Bay project.
He said that the original injunction included only two of the companies listed in the heads of agreement – Passerine Abaco Ltd and Passerine Holdings – but it doesn’t include Baker’s Bay HOA Ltd, Baker’s Bay Foundation, Baker’s Bay Club Ltd, Baker’s or Bay Marina Ltd.
Mr. Smith said he wanted to be sure that there was no way for the developers to cite any of the companies not included in the original injunction as a way to continue the work on the cay.
Judge Carroll asked Michael Barnett, the lawyer for the developers, whether there was an attempt to “trick the court”.
Mr. Barnett assured the court that he is known for his integrity (sic) and would not participate in underhanded tactics.
Judge Carroll said he didn’t mean to imply that Mr. Barnett was one to do that, but said he knew of lawyers who tried “guerrilla lawfare” to intentionally mislead the court.
Mr. Smith during his submissions spoke about the alleged failure of the government to consider the interest of those living and working on Guana Cay.
He said that though three meetings were held on the island, the residents did not receive any details about the development plan.
“The government has consistently been aware of the need and desire for consultation,” Mr. Smith said. “From the moment they became aware, they have rejected [the residents].”
Mr. Smith said that letters voicing concerns about the development were sent weeks before the signing of the heads of agreement to various government officials, and none was answered.
He said he sent one letter dated February 18, 2005 to the attention of the prime minister, along with a petition signed by residents rejecting the development.
Pointing to the heads of agreement, Mr. Smith said the document confers authority to Cabinet Secretary Wendal Major and the government, giving “carte blanche” authority to the developers without proper approvals.
He further said the developers admitted to spending $700,000 a month on “geo-technical preparatory work” although they admit the heads of agreement represented an agreement in principle.
Mr. Smith said with no permits in hand the developers started work under the project management company, American Bridge Company, “with the assumption that all licenses and permits would be pursued.”
He said the heads of agreement purports to approve the entire 10-year plan of the developers before necessary approvals were granted.
Mr. Smith also alleged the government gave permission for the 150 acres of Crown and Treasury Land to be used by the developers prior to entering into the terms of the agreement.
He said contrary to the Ministry of Finance Act which mandates such land to be used for public interest, the government allowed the developers to use the land for private profit.
Mr. Smith questioned why the developers would proceed to clear land and buy materials without proper permits, if they thought the heads of agreement was an agreement only in principle.
Calling the work that has already been done on Guana Cay a breach of contract, Mr. Smith referred to the affidavit submitted by the Director of the Discovery Land Company Joseph Arenson.
During the attorney’s examination of the heads of agreement, he referred often to expressions used, many of which the judge indicated were subject to interpretation.
Justice Carroll took exception to the high level of scrutiny Mr. Smith paid to the language, saying the writers did not expect it to be analyzed so carefully.
By: Daphne McIntosh, The Bahama Journal
