After several losses before the courts, the Association plans to appeal to the Privy Council.
Its most recent loss came last month when the Court of Appeal ruled against its appeal against a decision handed down by Acting Supreme Court Justice Norris Carroll in favour of the developers.
In its notice of appeal, the Association claims the Court of Appeal erred in finding that the Association had not been able to show anything in law to support its submission that the Cabinet had no power to enter into the agreement with Discovery Land Company, the developers of the project at Baker’s Bay, Guana Cay.
SGCRA accused the court of ignoring its submissions in this regard.
"For example, the power to grant leases of treasury land vests in the treasurer and must not be exercised without approval of the governor general (pursuant to the Ministry of Finance Act), and the power to issue town planning permits vests in the district councils (pursuant to the Local Government Act)," the Association says in its notice of appeal.
In its appeal against Justice Carroll’s ruling, the Association had accused the judge of failing to address these legal submissions in his judgment.
"The Court of Appeal has not only failed to address this point, but itself has failed to take account of these submissions," SGCRA claimed.
It accused the Court of Appeal of misunderstanding this "ground of review" as a challenge to the Cabinet’s power to enter into an agreement with developers as opposed to a challenge to the Cabinet’s power to confer the rights and concessions granted and conferred pursuant to the company’s heads of agreement with the government.
"The Court of Appeal has simply repeated the error of the court below," the Association charged.
Further, the Association contends that the Court of Appeal erred in finding that SGCRA’s second ground of appeal was not made out. The Association had objected to Justice Carroll’s conclusion that entry into the heads of agreement was not irrational or unreasonable.
But the Court of Appeal did not side with SGCRA on this point either.
"[The Court of Appeal] erred in so finding because evidence to the effect that the development is patently disadvantageous to Bahamians and/or particularly to the residents of Guana Cay was not considered or taken into account by the learned judge at first instance and the Court of Appeal similarly failed to give proper consideration to it or to the [Association’s] submissions in relation thereto," SGCRA contends.
Additionally, the Association believes the Court of Appeal was in error when it failed to find that Justice Carroll wrongly concluded that the entry into the heads of agreement by Mr. Major – as Cabinet secretary – did not constitute a fettering of the discretion of any person or body.
SGCRA claimed, "[The Association’s] submissions in relation to this ground are not taken into account or addressed and no reasoning is provided."
And the Association is appealing on the ground that the Court of Appeal erred in failing to find that Justice Carroll was wrong to conclude that proper consultation had taken place prior to the signing of the heads of agreement between the government and the developers in 2005.
In its recent ruling, the Court of Appeal dismissed the Association’s complaint that it had not been given notification of all the requisite approvals, permits, leases etc.
"Discovery of this nature was patently essential to a fair trial of the issues in the judicial review application as illustrated by this finding by the Court of Appeal in relation to the proper consultation issue," the Association said.
SGCRA further contends that the Court of Appeal erred in finding that Justice Carroll, who was acting when he heard the case, was in all the circumstances an impartial and independent tribunal.
The Association said it will ask the Court of Appeal to suspend its order relating to costs until the Privy Council appeal is heard.
