Bahamian Law Firm Lex Justis Applauds New ‘Executive Entities’ Legislation As An Innovative Cutting Edge Product For The Country’s Financial Service Industry.

On the 12th of December, 2011 the Bahamas witnessed the first step in making the proposed Executive Entities Bill, 2010 as members of the House of Assembly approved a series of Bills that will benefit the nation’s financial service sector. The new law, once passed by the Senate, will establish the foundation for the incorporation and legal recognition of the ‘Executive Entity’ a new financial service product that demonstrates the nation’s innovation and commitment to maintaining its standard in corporate governance values, according to legal representatives of Lex Justis, a Bahamian based law firm.

Within the first quarter of 2012, legal representatives of Lex Justis are eager to provide the incorporation of ‘Executive Entities’ as part of its catalog of corporate services. The provision of this new financial service product will be made possible by the passage of the new Executive Entities Bill, 2010 into law.

As stated in the Executive Entities Bill, 2010 the overall objective of this new legislation is to provide the basis for the establishment of the Executive Entity as a vehicle to carry out executive functions in wealth preservation structures such as Purpose Trusts, Foundations, and Private Trust Companies. Executive Entities are defined by the Bill as legal entities established by a Charter to perform only executive functions set out in its Articles and has its registered office within the Bahamian jurisdiction. All Executive Entities will be required to be registered in order to become a recognized legal entity as demonstrated by the provision of Certificate of Registration.

The Executive Entities Bill, 2010 also calls for the name of the Executive Entity to end with the words “Executive Entity” or the abbreviation “EE” or “E.E” as the last two words of the name. The Bill restricted from including the names of traditional structures such as “Bank”, “Co-operative”, “Building Society”, “Insurance”, “Stock Exchange”, “Foundation”, or “Trust” or the abbreviation thereof.

“Just like any other corporate entity, Executive Entities will be able to sue be sued in their own names,” according to Attorney Mario McCartney, Principal of LEX JUSTIS, Counsel & Attorneys -at- Law. “Those individuals or entities who serve as officers or council members will be able to enjoy the benefits of limited liability while overseeing the activities of the wealth management structure.”

According to Attorney McCartney, Executive Entities may be utilized for a number of primary or supplementary purposes, ranging from serving as a protector or enforcement arm of a trust, a shareholder or investment advisor of a private trust company, or other functions that are executive, administrative, fiduciary, or office holding in nature. Although similar to a Bahamian Foundation, Attorney McCartney also confirmed that the Executive Entity differs substantially in that it is designed specifically to carry out executive functions and not to profit beneficiaries or for other wider purposes such as charities or educational scholarship program Executive Entities have no beneficiaries and only hold such assets reasonably required to carry out its executive functions.

“The key advantage of this new vehicle is the ability of the client to get a steady grip on the administration and security of his wealth by establishing an Executive Entity as its Founder and can appoint himself as an officer or council member or other individuals whom he can depend on to watch over his interests,” says Attorney McCartney. “Clients can now enjoy the benefit of having those he can rely on, administer his wealth even after death, without the fear of family bickering or other personal conflicts derailing his final bestowment. The Executive Entity vehicle is as close as you can get to engaging in the affairs a traditional Purpose Trust structure or other wealth management vehicle without breaching its legal and fundamental principles.”

Attorney McCartney further stated that similar to the formation of a Foundation, Executive Entity Charter will be required to state information about its Founder, Officers or Council Members, its registered office and its purpose, and may also include other provisions such as the Founder’s reserved rights or powers, the appointment and authority of its officers, council members and auditors, and the establishment of Articles for the Executive Entity. Similar to most incorporated entities according to the Executive Entities Bill, 2010 the Executive Entity will also be required to hold at least one meeting per year, keep proper accounting records at the registered office, and to ensure that all government fees paid.

The Bill also calls for members of the Executive Entity to appoint an Executive Entity Agent, which may also serve as an officer or as a council member. The main function of the Executive Entity Agents will be to formally accept service of all documents pertaining to legal proceedings involving the Executive Agent or to receive any formal notices and will also hold the same powers and obligations as an officer or a council member of the Executive Entity if it also holds those positions. According to Attorney McCartney only individuals or entities duly licensed as financial and corporate service providers or as licensed trust companies are qualified to be an Executive Entity Agent and must provide written consent to his appointment.

“The Bill also establishes a statutory based standard of care by the Executive Entity Agent in which it is required to act honestly and in the best interest of the Executive Entity. Ultimately the involvement of a licensed Financial & Corporate Service Provider supplements the overall attempt of the upcoming legislation to incorporate standard corporate governance principles into the framework of the Executive Entity by ensuring that at least one participant of the entity is entrenched in the standards established by Bahamian Law.”

Attorney McCartney further states that once the Executive Entity Bill is officially adapted into the Bahamian legislation all government and supplemental fees required for registering an Executive Entity will be published by the Bahamas Government and LEX JUSTIS will offer incorporation services for the Executive Entity. “Overall this new wealth management structure promises to boosts the island nation’s presence in the global financial service sector,” said Attorney McCartney.

About LEX JUSTIS

LEX JUSTIS is a boutique law practice and licensed Financial and Corporate Service Provider offering traditional legal services, corporate services and private client services in The Bahamas. We are committed to finding efficient legal solutions to the needs of our local and international clients. Visit our website at http://www.lexjustis.com or call us at   (242)676-4208 for more information on the incorporation of an Executive Entity or other aspects of Bahamian law.

Share on Facebook

I like what Keod Smith said near the end of the show, “at some point our professional class is going to have to get in there, roll up our sleeves, and attack some of these problems.”  The context was the inner city, the grave poverty and the way things are being left to drift into chaos.  Rashad Cooper shared how Alfred Sears speaking at St. Augustine’s College had impacted his life so long ago and he never forgot it when Sears had shared to the student audience that Iran was a theocracy. Something quickened the young man’s mind when knowledge of great relevancy was imparted to him in a mentoring format.

How fascinating that when the two elder statesmen were at an impasse at the table in their ideas, and based on their own
past experiences, the younger man was able to bridge the divide by encapsulating both schools of thought, dissolving them into a soluble tonic of coherence for the purposes of the discussion at hand. This is why Brian Moree was able to say, in the end, that this new, young Bahamian is the hope for the future.  He is learned, he is well-travelled, has lived at home and abroad and can see the greater vision for The Bahamas which his forbearers had struggled to achieve, from the days of the sloop and lighthouse to the present age of the Blackberry.

No, their struggles have not been in vain but as Rashad Cooper reminded us, the ghettoes are the manifestation of the disenfranchised among us whose voices and faces we push to the side. We do not wish to be reminded of what their cheap labour means for what we have become in this country. My Christmas wish is that we might roll up our sleeves and all together now go in and save Over-the-Hill and cherish its light and shadow as the heart of where many of our freedoms were birthed.

*******

I pause now to tell an old story of Christmas which some of you may remember.  It is really a glimpse into another age, a reminder of the ideals which we once held in common in this country and which truly guided us as a Christian people. It is an excerpt from Little Women, written by the renowned Louisa May Alcott.

A bang of the door sent the girls to the table eager for breakfast.

“Merry Christmas, Marmee!  Lots of them! Thank you for our books; we read some, and mean to every day,” they cried, in chorus.

“Merry Christmas, little daughters! I’m glad you began at once, and hope you will keep on. But I want to say one word before we sit down.  Not far away from here lies a poor woman with a little newborn baby.  Six children are huddled into one bed to keep from freezing, for they have no fire.  There is nothing to eat over there; and the oldest boy came to tell me they were suffering hunger and cold. My girls, will you give them your breakfast as a Christmas present?”

They were all unusually hungry, having waited nearly an hour, and for a minute no one spoke; only a minute, for Jo exclaimed impetuously, – “I’m so glad you came before we began!”

Of course, the story goes on to tell how they relieved the wretched, impoverished family with their tangible act of kindness.  They, just like us Nassauvians, cared everything about appearances, “and, they went through back streets, so few people saw them, and no one laughed at the funny party.”

In so many ways, Nassau is still a Town; but it is trying so hard to grow up into a City (on other people’s terms, I might add!) with no coherent, locally-devised developmental plan of who we are and ‘from whence we came’.  This is the overriding issue that is tough to tackle.  It means we would all have to come together. What better time than Christmas and at what better place than Over-the-Hill, where the fight for social justice was spawned in the heart of the churches so long ago? I am calling on the pastors to unite the churches this Christmas.

I am calling on the women to disallow this new conservatism that is cropping up everywhere, taking our energies but disqualifying our ideas. The church needs to give the women free reign to tackle the ghettoes.  These issues are issues of sanitation, hygiene and all the old demons of poverty and squalor that it takes a woman to look in the face and destroy them!

The church is guilty of silence and therefore collusion.  Preaching Christ-crucified, Christ-crucified, Christ-crucified is not going to cut it.  Preaching Liberation Theology, Liberation Theology, Liberation Theology is not going to cut it. Preaching Kingdom Principles, Kingdom Principles, Kingdom Principles is not going to cut it. How about preaching Landlord and Tenant Act, Landlord and Tenant Act, Landlord and Tenant Act? How about preaching Health Regulations, Health Regulations, Health Regulations?  How about something real and tangible and relevant?I give the practical example often when discussing Nassau’s ghetto:  if you see outer walls blackened with mildew and mold (and they are in the open sunlight), God help you when you see the inner walls of that structure, especially the bathrooms and kitchens. The conditions under which the tenants are suffering cannot be ignored any longer.  Negligent landlords should be lined up and shot by firing squad for taking these people’s money and leaving them in these conditions.

********

I like the emphasis that Scripture gives to the fact that the Christians at Antioch decided to give help to the brothers living in Judea.  They didn’t just debate the issue (sometimes a subtle way of postponing matters); they decided it. One critic of Christianity has said: ‘The Christian Church is more at home in dialogue than in decision.’ Though this statement may not be entirely true, there is enough truth in it to sting.I would like to close by quoting from a devotional written by Selwyn Hughes (edited and updated by Mick Brooks) entitled, “A Caring Society.” [Every Day With Jesus Devotional July/August 2011], Scripture Reference is Romans 15:14-33.

Can we turn things around, as Keod Smith suggested, by rolling up our sleeves and getting into the ghettoes?  I believe so.  I believe it is obvious that we need to do so.  All hands on deck!

*******

I would like to announce to my readers that I will be running a twelve-part series, Lord willing, for the entire year 2012.  The topic:  Why the Bahamian Church Should Care About Police Brutality.   For now, Merry Christmas & A Very Prosperous, Peace-filled, Happy New Year!

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

Share on Facebook

Moors Island was first settled by Free Blacks, African Slaves, Black Slaves, Plantation Owners, beginning in 1817, crops that were produced at that time were cabbage, cassava, corn, grapefruit melon, orange, papayas, peas, potatoes, pumpkin and sugarcane. During the plantation economy – a system of minority rule – Free Blacks and Black Slaves had their rights restricted for a period of 21 years, until slaverywas officially abolished in 1838. The first settlers’ legacy is preserved in common family names on the island, such as Davis, Hield, Knowles, McBride, Simms, Stuart and Swain. Joseph Curry’s Plantation commonly known as “Teh Sinket” to the locals was a former orange plantation. In Hard Bargain a few yards from a shrubbery area where residents live there is a former plantation site now known as “Minangi Hill”. Another former plantation site commonly known as “Sun Ground” by local residents is located north of The Bight, north of the old well field.

The 1932 Bahamas Hurricane (Category 5) devastated Bluff Point, Abaco which caused persons to move to MoorsIsland. Some of settlers of Bluff Point, Abaco moved to Murphy Town in 1940. The 1932 Bahamas Hurricane legacy is preserved in common family names on the island, such as Davis, Swain, Curry, Dawkins, Knowles. The inhabitants of Bluff Point survived of fishing and sponging. The settlement of Bluff Point is located south of Sands Banks.

Moors Island traditional survived by living of the land and fishing. To this date there is a strong love for the sea and a respect for its bounty. Locals often traded what they caught or what they could farm with neighbouring islanders or visitors for water or other goods, which could not otherwise be obtained. Negotiators were often led into a “hard bargain”. Before the advent of modern stoves residents used rock ovens made from local stones. Potable water, naturally scarce on island was made readily available through the arrival of the water plant (condenser) before this residents traveled to Cay Gorda and collected water using 55 gallon drums (plastic and metal) originally used to store gasoline. These drums where imported from Nassau, BHS. Residents also relied on rain water catchments to supply the water needs by way of five(5) gallon buckets and the 55 gallon drums (plastic and metal) as well from the big well by the school. This was as late as to 1990s.

 St. Peters Church located was located nearby Rolle’s Dock and was the first church on the island built before c. 1939. Regular sea transport services between mainland Abaco Island and Moors Island began in 1951, initiated by Capt. Ernest Dean. The inauguration of the supply of electricity in Moors Island was made possible by the Bahamas Electricity Corporation (BEC) in 1991. The school was built before 1988. Students regularly swam in the big well by the school. Before 1963 there was no government medical clinic on island.

Short Stories:

Being in a cave during Huriricane Bethsy (cat 4 storm 1965), use to be fun. We [Moors Islanders] stayed in a cave during the storm. The only thing the cave had was an ocean hole (known to other parts of the Bahamas as a blue hole) and to keep the children away for falling into the ocean hole, the adults told terrible stories of mermaid pulling us [children] in. Moors Island has a lot of ocean holes, some of ocean holes are level with the ground.

Genealogy of Settlers:

The recorded genealogy of Moors Islanders traces back to the 1800s. Although there is no strict legal or formal definition of who is or is not a Moors Islander, the list includes different people who have settled on the island. To this date their descendants live on island. Moors Islanders can trace their ancestors for Andros Island, Crooked Island, Eleuthera Island, the Exuma Islands, Long Island, and the Turks and Caicos Islands.

The Moors Island Residents Committee is a group of Bahamian citizens who have dedicated their efforts to the preservation and promotion of the rich, unique heritage of Moors Island, the largest cay of the Abaco Islands. The primary ambitions of the Committee is to educate Bahamians on the island’s history while assisting in the organization and overall use of the island’s real property. Overall the Committee’s focus is on the improvement of the quality of life of its inhabitants.

For further information on the Moors Island Residents Committee please visit their facebook site at http://www.facebook.com/groups/171050552974820/

Share on Facebook

And ye, who have met with adversity’s blast,
And been bow’d to the earth by its fury;
To whom the twelve months, that have recently pass’d
Were as harsh as a prejudiced jury –
Still, fill to the Future! and join in our chime,
The regrets of remembrance to cozen,
And having obtained a New Trial of Time,
Shout in hopes of a kindlier dozen.

-    Thomas Hood

We would like to take this time to express our greatest appreciation for our loyal clients that have both patronized our professional services. We will continue to provide legal services to the highest degree of professionalism. We will continue to share and educate the world about the laws of this paradise. We will continue to fight the good fight.

Thank You.

Share on Facebook

Everyone knows of the ability of investigators to listen in on telephone conversations via wiretapping which is easily done by inserting listening devices into the telephone receiver or by installing similar technology into the landline’s mainframe. Needless to say these recent developments have demonstrated the notion that nothing should be deemed ‘private’. Any device used in the communication process, whether via email, text, or the old fashioned method of a sealed envelope can be accessed by the smooth and innovative ‘spy’.

The Bahamas, like most of its international neighbors, is not immune to this recent phenomenon. In fact, the average conspiracy theorist would probably indicate that communication piracy is an everyday occurrence, pointing alone to the wire tapping practices which local journalist have reported its use in criminal investigations on more than one occasion. Even local politicians are not immune to the use of surveillance tactics carried out by ‘political mercenaries’ whose main objective is to capitalize on information that can be used to uncover political strategies and to execute influential smear campaigns. Despite its longstanding existence, there lies a consistent failure of local legislation to properly address this complex endemic whose growth coincides with the developing pace of modern communications. Ultimately, there is no guarantee of confidentiality when it comes down to technology.

A Brief on the Inquiry Agents and Security Guards Act

In the Bahamas those engaged in the world of background checks, surveillance, and other forms of private investigation and security services are governed primarily by the Inquiry Agents and Security Guards Act. While the Act provides a general definition of a security guard (i.e. a person who, for hire or reward, guards or patrols for the purposes of protecting persons or property), Inquiry Agents are defined by the Act as “a person who for hire or reward searches for and furnishes information as to the personal character and actions of a person, or the character or kind of business or occupation of a person”. Furthermore The Act does not apply to:

• Counsel and attorneys in the practice of their profession, or to their employees while acting in the usual and regular scope of their employment;
• Persons who search for and furnish information (i) to the financial credit rating of persons, (ii)to employers as to the qualifications and suitability of their employees or prospective employees, and (iii) as to the qualifications and suitability of applicants for insurance and indemnity bonds, and who do not otherwise act as inquiry agents;
• The Royal Bahamas Police Force or any person acting under the authority of any Act;
• Insurance adjusters and their employees while acting in the usual and regular scope of their employment;
• Insurance companies lawfully carrying on business in The Bahamas and their employees while acting in the usual and regular scope of their employment;
• Inquiry agents and security guards who are permanently employed by one employer on or in the vicinity of that employer’s premises in a business or undertaking other than the business of providing inquiry agents or security guards and whose work is confined to the affairs of that employer;
• Any class of persons excepted by the regulations.

In accordance with the Act, only Bahamians are allowed to work as an Inquiry Agent or Security Guard or engage in the business thereof and must hold a license which is achievable by satisfying the licensing authority that the licensee has met the minimum requirements (i.e. no previous criminal convictions, satisfactory character and competence, and financially able). Inquiry Agents and Security Guards are required by law to carry the license and produce it for inspection at the request of any police officer or other person having reasonable grounds to make the request. Security Guards are also required to wear a badge while on duty. The Act also prohibits the furnishing of false information by an Inquiry Agent or the provision of statements, impersonation of, or conducting any act calculated falsely to suggest that he is an inquiry agent or security guard with the intent to deceive.

From the onset the Inquiry Agents and Security Guards Act required immediate legislative updates in order to properly regulate the practical nature of investigative and/or research techniques conducted by Inquiry Agents. Although the Act prohibits the provision of false information by Inquiry Agents, the Act fails to address the very methods in which information is obtained, although other legislation may address the legal consequences of unethical activities carried out by Inquiry Agents. Section 35(7) of the Telecommunications Act for example, penalizes telecommunication licensees or their employees for the disclosure or use of “content of any message, information or documents that relate to the content of any message or the private affairs or personal particulars of any person that comes into the licensees knowledge or possession in connection with its business or providing telecommunications services”.

In similar fashion the Data Protection (Privacy of Personal Information) Act provides some form of protection in the disclosure of personal data by placing statutory obligations on “data controllers” (who are defined as a person who, either alone or with others, determines the purposes for which and the manner in which any personal data are, or are to be, processed) and penalizing individuals that obtain and/or discloses personal data (or any information constituting such data) without prior authority of a data controller. Further aggressive and unethical behavior by agents while in the course of conducting surveillance based activities may be subject to the legal confines of the Domestic Violence (Protection Orders) Act which, as of 2008, provides a clear definition of harassment which includes various forms of intimidation, stalking, deprivation of property owned or used by an individual, and the indulgence or engagement “in a pattern of behavior by a person that would or likely have the effect of undermining the emotional or well being of another”.

Although it is clear that the various legislation exists to addresses the parameters in which unethical and illegal activities may be conducted by an Inquiry Agent, yet it is obvious that their existence alone may prove ill-equipped to adequately prosecute the acts committed. The Telecommunications Act, while covering the act of “wire tapping” limits prosecution methods by applying its authority to licensees or employees of licensees, while ignoring individuals or entities that are not licensed under the Telecommunications Act. Furthermore the Act imposes a monetary penalty of $5,000.00 which, in its limited authority fails to impose a mandatory prison term. Similar limited exists in the Data Communications Act which imposes a monetary fine rather than a prison sentence. The penalties imposed for such purposes do not match the standards of most countries in which illegal acts committed by Inquiry Agents impose harsher penalties that may deter unethical conduct. Individuals or other entities participating in the Inquiry Agent business should be held at a higher standard of practice not only for the sake of protecting the reputation of their clients, but for the sake of upholding social morality.

Further legislative updates are also desperately needed for Security Guards in order to further protect the interest of the client and society at large. Although applicants are required to be qualified and competent for a license, there is a dire need to ensure that security guards are properly and regularly trained in order to ensure that their activities are conducted within the confines of the law. The establishment of a code of conduct emphasizing on the use of force to deter the criminal element for both Security Guards and Inquiry Agents would serve as a strong starting point for this growing industry. The use of force, as addressed in section 107 in the Penal Code, should be implemented into the proposed code of conduct and should also be amended to address the legal use of new technologies, such as electronic tasers, pepper sprays, and firing rubber bullets in order to protect the property of their client.

The numerous problems with legislative reforms in The Bahamas are just as perplex as the political machinery responsible for its implementation. Although the country has proven to improve its efficiency in updating legislation for its primary industries (i.e. Financial Services) for the sake of maintaining an international standard, updating many statutory instruments are left struggling to find its place within an ever changing society. As the News of the World incident remains fresh in memory, the country must properly engage itself in preventing similar tragedies.

Mario L. McCartney [esq.], B.A [Hons], LLB [Hons.] practices as Founder and Principal of the Chambers of LEX JUSTIS, a boutique law practice in Nassau, New Providence, The Bahamas. While presently engaged in general legal practice, Mr. McCartney’s specialty lies in debt recovery and offshore financial and corporate services, and is currently registered as a Compliance and Anti-Money Laundering Reporting Officer (CMLRO) for his Chambers. Mr. McCartney is also the present editor and main contributor of LEX JUSTIS blog site and welcomes all opinions and comments to his articles.

For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

Share on Facebook

The formation of a corporate vehicle is perhaps the first step for individuals interested in having some form of commercial presence in the Bahamas. For non-residents who are interested in benefiting from the advantages offered by the Bahamas, the formation of an International Business Company (or IBC) is an ideal preference, popularly known for its efficient and convenient incorporation process and for its ability to obtain a bank account from a local financial institution.

General

Generally speaking an International Business Company is a legal entity incorporated and holding its registered office outside the residential jurisdiction of its beneficial owner. In normal circumstances an IBC is prohibited from conducting business within the jurisdiction in which it was incorporated, however the it may conduct business within the Bahamian jurisdiction once obtaining approval from the Bahamas Central Bank. Other features of an IBC include preservation of confidentiality of beneficial owners, wide corporate powers to engage in different businesses and activities, and its ability to enjoy substantial tax benefits provided its home jurisdiction. IBCs are commonly used to conduct various investment activities and for asset protection purposes ranging from the purchase and sale of goods and services, hold bank accounts and managing business entities. IBCs are also commonly used for the ownership of chattels (i.e. vehicles, equipment, artistic paintings, etc.) and real estate, for ownership of intellectual property, licensing and franchising, personal service by individuals working overseas, e-commerce activities, and other business activities.

IBC Activities

According to the International Business Companies Act, IBCs are permitted to carry on any activity anywhere that is not prohibited by statute or any other law in force in the Bahamas. The traditional activities of IBCs is to conduct business outside of the jurisdiction in which it is incorporated, however Bahamian IBCs may conduct business with persons residing in the Bahamian jurisdiction once it has obtained approval from the Bahamas Central Bank in accordance with the Exchange Control Regulations with respect to its planned operations.

Administrative Activities

For those IBCs which conduct its business primarily outside the Bahamian jurisdiction, local legislation allows for activities which are fundamental for the IBC’s administrative activities. Although no financial reporting requirements exist, an IBC must keep certain documents, such as share register, minutes of meetings, and resolutions at the company’s registered offices in The Bahamas. Generally speaking an IBC is not considered engaged in business with persons residing in the Bahamas if:

• Creating or maintaining deposits with a person carrying on business within the Bahamas.
• Creating or maintaining professional contact with counsel and attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers or similar persons carrying on business within The Bahamas.
• Prepares or maintains books and records within The Bahamas.
• Holds meetings of its directors and members within The Bahamas.
• Holds a lease of property for use as an office from which to communicate with members, or to prepare or maintain company books and records.
• Holds shares, debt obligations and other securities in an IBC or an ordinary company.
• Holds shares, debt obligations or other securities which are owned by any person, IBC or ordinary company resident in The Bahamas.

Traditional Activities

Bahamian IBCs have such powers as are permitted by law for the time being in force in The Bahamas, irrespective of corporate benefit, to perform all acts and engage in all activities necessary or conducive to the conduct, promotion or attainment of the object of the company. Traditional uses for Bahamas IBCs include:

• Owner of company shares or other legal entities;
• Holder of bank accounts, fixed deposits, and any other financial or commercial title;
• Borrowing or lending money, paying or receiving commissions, royalties or others;
• Owner of real estate and any other movable or immovable property or goods;
• Provision of, or obtaining Mortgages;
• Manager and promoter of international business transactions;
• International leasing of aircraft, vehicles, equipment and others;
• Marketing and promotion of products and services;
• Legal Rights of Inheritance;
• Asset Protection purposes;
• Emigration purposes;
• Other commercial and financial activities;

Prohibited Activities

In accordance with the IBC Act 2000, IBCs cannot be incorporated for the purposes of facilitating a criminal activity or activity which is prohibited by Bahamian law. Bahamian IBCs are not allowed to carry on banking, trust, or insurance business (save for the use of an IBC to conduct insurance activity under the External Insurance Act), nor are they allowed to act as Registered Agents/ provide a Registered Office for companies. According to the IBC Act 2000, only Bahamian licensed bank and trust companies and licensees under the Financial and Corporate Service Providers Act are permitted to act as Registered Agents for Bahamian IBCs. In addition Bahamian IBCs are prohibited to issue “bearer shares” and all bearer shares previously issued under the Bahamas International Business Companies Act 1989 are considered null and void and without effect for all legal purposes.

Registered Offices & Agents

As previously mentioned, only Bahamian licensed banks and trust companies and financial and corporate service providers licensed under the Bahamas Financial and Corporate Service Providers Act are permitted to act as Registered Agents of Bahamian IBCs in accordance with the IBC Act. At all times the IBC must maintain a Registered Agent and Registered Office within the Bahamas, the name and address of which must be submitted to the Registrar during the registration process. Should the Directors of the IBC decide to change its Registered Office/ Agent it is required by law to notify the Registrar within 14 days of the change and to provide the required information on the new Registered Office/Agent.

Resignation of Registered Agent

Should a Registered Agent decide to resign from representing the IBC and is unable to reach an agreement with the IBC regarding the Registered Agent’s replacement the Registered Agent may resign provided that the steps provided under Bahamian statute are followed. This involves the Registered Agent providing notice to the IBC’s Directors or Officers no less than 90 days to the IBC’s the last known address or to the individual responsible for the incorporation of the IBC, and providing written notice to the Registrar of the same. Should the IBC fail to provide the Registrar with information concerning the newly appointed Registered Agent the Registrar will publish a 30 day notice in the Gazette requesting that the IBC provide notice of the change of name and address of the Registered Agent and informing them of their intention to “strike off” the IBC from the Company Register.

If the IBC fail to provide the details of the newly appointed Registered Agent within 30 days, the Registrar will take the necessary actions to strike off the IBC from the Company Registry, unless there is reasonable cause to suspect that the a Registered Agent has died or has otherwise ceased to act or to qualify to act as a Registered Agent and the Bahamas company has not notified the Registrar of any change in the name or address of its registered agent, the Registrar shall serve on the company at its registered office a notice directing the Bahamian company to replace the registered agent.

IBC Share Capital

Shares in a Bahamas IBC may be issued for money, services rendered, personal property (including other shares, debt obligations or other securities in the company), an estate in real property, a promissory note or other binding obligation to contribute money or property, or any combination thereof. IBC shares may also be issued for such amount as may be determined from time to time by the directors, and in the absence of fraud, the decision of the directors as to the value of the consideration received by the company in respect of the shares is conclusive, unless a question of law is involved.

Ownership & Issuing IBC Shares

There is no minimum authorized capital for an Bahamian IBC or a minimum capitalization requirement. The standard authorized share capital is US$50,000.00, as this is the maximum authorized capital permitted for the minimum government license fee payment. The capital may be expressed in any currency. Subject to any limitations in its memorandum or articles of association or any other law for the time being in force in The Bahamas, a Bahamas IBC may issue:-

• registered shares but not shares issued to bearer;
• voting and non-voting shares;
• shares that may have more or less than one vote per share;
• shares that may be voted only on certain matters or only upon the occurrence of certain events;
• shares that may be voted only when held by persons who meet specified requirements;
• no par value shares;
• unnumbered, common, preferred, or redeemable shares; and
• shares that entitle participation only in certain assets.

IBCs may be partially or wholly owned by one or more persons or entities and Bahamian Residents may, on approved by The Central Bank of The Bahamas, act as shareholders. An IBC may also purchase, redeem or otherwise acquire and hold its own registered shares but only out of surplus or in exchange for newly issued shares.

Altering IBC Capital

A Bahamian IBCs may, by a resolution of directors, amend its memorandum of association to increase or reduce its authorised capital and in connection therewith the company may in respect of any unissued shares increase or reduce the number of such shares, increase or reduce the par value of any of its shares or effect any combination of the foregoing. Further amendments can be made to the memorandum of association to divide the shares, including issued shares, of a class into a larger number of shares of the same class; or combine the shares, including issued shares, of a class into a smaller number of shares of the same class, provided, however, that where shares are divided or combined the aggregate par value of the new shares must be equal to the aggregate par value of the original shares.

The capital of an IBC may by a resolution of directors be increased by transferring an amount of the surplus of the company to capital and may be reduced by returning to members any amount received by the company upon the issuance of any of its shares, the amount being surplus to the company or by cancelling any capital that is lost or not represented by assets having a practicable value. IBC capital may also be altered by transferring capital to surplus for the purpose of purchasing, redeeming or otherwise acquiring shares that the directors have resolved to purchase, redeem or otherwise acquire. The IBC Act further outlines the circumstances in which an IBC’s capital is reduced to minimal amounts, and the practice in which the Directors of the IBC must undertake in order to satisfy any liabilities encountered as a result.

The Shareholder and Director Register

The Bahamas IBC holds a high degree of confidentiality due to its limited filing requirements. The IBC Act only requires the name of the Company, its Registered Agent’s name and address, the company’s Memorandum and Articles of Association along with an imprint of its common seal and any amendments to be filed with the Registrar. The Registered Office of the IBC is required to maintain one or more registers known as Share Registers containing the names and addresses of the persons who hold registered shares of the Bahamas company, the number of each class and series of registered shares held by each person, the date on which the name of each person was entered in the Share Register, and the date on which any person ceased to be a member.  The Share Register is not publicly filed with any government authority, however the register of members must be kept and maintained at the Registered Office but is not available for inspection by the public.

The Registered Office is also required to maintain a current copy of the Register of Directors and Officers which must be filed with the Registrar. The Register of Directors and Officers must contain the names and addresses of the persons who are directors and officers of the IBC, the date on which each person was appointed as a Director or Officer of the company, and the date on which each person as a director or officer ceased to be a director or officer.  Any changes must be filed within one year of such changes.

Officers & Directors of Bahamian IBCs

Subject to any limitations in its memorandum or articles of association or in any unanimous shareholder agreement, the business and affairs of a Bahamas company shall be managed by at least one director who may be an individual or a company.  Directors are usually appointed by the shareholders, however there is no Bahamian residency or share qualification requirements to be a director of an Bahamas IBC. The IBC Act, however requires that all corporate books, records and minutes of meetings must be kept at the Registered Office and copies at such other places as determined by the directors or the Articles of Association. Bahamian IBCs are not required to have an annual general meeting of the members.

There is no requirement to appoint any officers of a Bahamas IBC. The Register of Officers and Directors must be filed with the Registrar within 12-months of their appointment and the Registrar must be notified of any change in the directors or officers of the IBC within 12-months after the change occurs.

Indemnification of Directors, Officers and Liquidators

In accordance with the IBC Act and subject to any limitations in a Bahamas IBC’s memorandum and articles of association or in any unanimous shareholder agreement, a Bahamas IBC may only indemnify a director or officer against all expenses, including legal fees, and against all judgments, fines, amounts paid in settlement and reasonably incurred in connection with legal and administrative proceedings where such director or officer acted honestly and in good faith with a view to the best interests of the IBC. IBCs may purchase and maintain insurance in relation to any person who is or was a Director or an Officer against any liability asserted against the person and incurred by the person in that capacity, whether or not the IBC has or would have had the power to indemnify the person against any of the liability.

Dissolution & Striking-Off

Should the Registrar has reasonable cause to believe that a Bahamas company no longer satisfies the requirements prescribed for a Bahamas IBC the Registrar shall serve an Order for Compliance to the IBC. Once the IBC has complied with the requirements of the IBC Act the Registrar will issue a Declaration of Compliance at the request of the IBC. Failure to reply with 90 days immediately following the date of service of the Compliance Order, the Registrar will be required to strike the name of the Bahamas company off the Register unless the Bahamian company or any other person satisfies the Registrar that the Bahamas company should not be struck off. Once the IBC is struck off the Company Register the Registrar is required to publish a Notice of the striking off in the Gazette.

Fees & Penalties

IBC’s are required to pay registration fees upon incorporation and an annual licence fee of $350 to the government. License fees are payable before the 31st of January each year, beginning the year following the incorporation of the company. Penalties are due for late payment and the Registrar may strike IBC’s off the register for non-payment. The penalty rates are:

• 10% increase of the prescribed fee should an IBC fails to pay the prescribed registration fee to the Registrar by the 1st day of April in each year;
• 50% increase of the prescribed fee should an IBC company fail to pay the amount due by 31st October;
• If a Bahamian IBC fails to pay the registration fee by 31st December, the name of the Bahamas IBC will be struck off the Register from 1st January of the following year.

Exemptions

A Bahamas IBC is exempted from the Bahamas Exchange Control Regulations only if its operations are intended to be exclusively overseas, however Bahamian IBCs seeking to carry on business with persons resident in The Bahamas must first obtain exchange control approval from the Central Bank of The Bahamas with respect to its planned operations.  Exemptions are granted for a period of 20-years from the date of incorporation of a Bahamas company or from the date of its continuation under the IBC Act.

A Bahamas IBC or any member or shareholder is not subject to:-

• any business licence fees, income tax, corporation tax, capital gains tax or any other tax or income or distributions accruing to or derived from such company or in connection with any transaction to which that Bahamas company or shareholder, as the case may be, is a party;
• any estate, inheritance, succession or gift tax, rate, duty, levy or other charge payable in The Bahamas with respect to any shares, debt obligations or other securities of that company or shareholder;
• the payment of stamp duty on any transactions in respect of shares, debt obligations or the securities of a Bahamas company and any other transactions relating to the business of the Bahamas IBC; provided however, stamp duty is payable in relation to real property situated in The Bahamas which is owned by the Bahamas IBC, or which is owned by any company in which it holds shares or for which it holds a lease.

These exemptions do not apply to:-

• a person who is a “resident” of The Bahamas within the meaning of the Bahamas Exchange Control Regulations Act; or
• to a company incorporated or continued under the Bahamas IBC Act if a “resident” of The Bahamas is the beneficial or legal owner of any of the common or preferred shares issued or to be issued by such Bahamas company or acquires a legal or beneficial interest in any debt or other securities issued or to be issued by such Bahamas IBC or is otherwise directly or indirectly entitled to receive any dividends or distributions from such a Bahamas company.

Mario L. McCartney [esq.], B.A [Hons], LLB [Hons.] practices as Founder and Principal of the Chambers of LEX JUSTIS, a boutique law practice in Nassau, New Providence, The Bahamas. While presently engaged in general legal practice, Mr. McCartney’s specialty lies in debt recovery and offshore financial and corporate services, and is currently registered as a Compliance and Anti-Money Laundering Reporting Officer (CMLRO) for his Chambers. Mr. McCartney is also the present editor and main contributor of LEX JUSTIS blog site and welcomes all opinions and comments to his articles.

For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

Share on Facebook

And the fullness thereof

The world and they that dwell therein

For he founded it upon the seas

And established it upon the waters.

Psalms 

While countries such as Great Britain were being industrialized, the Church was being shaken to its foundation by the theory of evolution that threatened to topple the base doctrine of the creation of the earth by God.  Here was a world in which the average person had lived in awe and fear of the Almighty, isolated pockets lived in knowledge of earth remedies and deeply-rooted superstitions, so to topple the theory of Creation was to tip the dominoes lined along the theological table.

It would appear from artistic and written accounts dating from the 1800’s, that prior to industrialization most western societies lived in some commune with nature and the environment.  After all, why pollute a well with natural poison unless to kill the surrounding inhabitants?  If they died, and the local flora and fauna were poisoned, how did that possibly benefit anyone who wished to reside, profit, or partake from that area?  Simply put, it did not.  To pollute nature is to pollute oneself.  It was a form of both physical and spiritual suicide.  So to remove the mantle of Creationism from the spiritual psyche of the Church back then was as tantamount to us today as destroying the ozone layer.

I introduced Joel Brenner’s article because to go into the world he describes is a whole new adventure.  He described a Great Britain of 150 years ago when one could virtually hear the birds singing and the creeks babbling through his pages.  So pristine must have been the beauty of nature during those years before the onslaught of industrialization that the population from the top down was baffled as to how changes were handled.  Brenner takes the birds-eye view that environmental concerns and issues of public health were overshadowed by the protection of private property rights for landowners. There was a legal outlook applied when one individual sued another but the principle failed when a factory was brought before the court by an individual:-

While some if not all of the judges were ready to see that persons did not ruin their neighbors’ amenity in the name of convenience, they were not willing to extend a similar protection to persons suffering personal discomfort from industrial nuisances.  The dearth of reported nuisance actions against factories suggests that this dual standard has been long operating…

At the risk of oversimplifying what is an ornate legal discussion, I wish to abridge the conversation for the reader who is not necessarily deeply schooled in legal thought. Way back in the 1200’s and even as far as the 1600’s, the courts in Great Britain easily managed disputes between neighbor to neighbor.  Decisions were handed out (according to Brenner’s argument) in cursory fashion.  Joe Blow lives in “exclusive possession” on his land and his neighbor, John Smith, lets his cows loose by accident or design.  No excuse.  Pay Joe Blow something for his trouble.  That sort of judicial decision went on forever.  If Joe Blow was just visiting family and something happened to him on his sister’s property, he would hardly have the nerve to approach any court unless he had been virtually killed, severely injured or his personal property (like his horse) destroyed in a rash manner!  So this whole legal arena is what is considered the doctrine of private nuisance law.  Private because you have standing before the court as an individual, and in almost every case because either the land is yours or you have suffered personal damage.

There was a long gap before the challenge of industrialization hovered on the horizon of the courts.  Brenner reveals, “while the black-letter law changed little, the field of its applicability became relatively narrower.”[2]  The population growth was phenomenal in the cities with factories so that “the pace of industrialization in England was by nineteenth-century standards extremely rapid and that an attendant consequence was the pollution of the air and water.”[3]  While it is very tempting for me to trail through the case law decisions, I will leave that to reader who is interested to review on their own.  What interests me most, though, is the parallels drawn forth by both Brenner and Sax where government involvement by means of statutory authorization of public and quasi-public enterprises operates to “bite the hand that feeds it.”  In other words, one arm of government is not carrying out a duty of care on behalf of the public when it passes Acts of Parliament omitting to protect public resources or drafting those acts so vaguely as to allow loopholes for developers to dive out of the legal mix when things get hot!  The other arm of government is meanwhile in the unenviable position of having to create doctrinal gymnastics in utilizing existence case law (if any exists at all!) to protect public resources.  And, lastly, the most muscled of all government arms (the executive) is often the culprit.

Sax and Brenner have both shed light on the role of the courts.  In the case of Sax, he takes the powerful Massachusetts court decision in the famous case, Gould v. Greylock Reservation Commn., 350 Mass. (1966), and attempts to show how groups in Maryland and Virginia applied the improved strength of the doctrine.  In any case, there were a few questions that the court had to ask in determining whether public resources were being whittled away in the interest of private development.  I have paraphrased these questions accordingly[4]:-

1. Is the profit turnover extremely high to the point of commercialistic?
2. Is the land being sold which was formerly for the enjoyment of the many to the commercial profit of the few?
3. Is an aquatic resource being converted to housing (which could be done elsewhere)?
4. Is the State unable to get an appropriate value on the resources it is selling to the private group?
5. Are State agencies in one corner of government filing objections that are being ignored by a more powerful State agency in another corner.

To put it plainly, these considerations are at the root of public trust doctrine.   And any attempt by the legislature to pass an Act, a Bill, or a Statute granting away public resources, should take these into consideration. The Massachusetts approach “could thrust the project back to the legislature where the project’s proponents would have to contend with wide public knowledge,”[5] and this of course means votes or no votes for politicians!

We have already looked rather closely in Part II at what happens when the public resources are actually granted via statute.  These scenarios paint a picture of what happens when the State is acting as trustee of public resources.  What Brenner attempts to do in his article, though, is to demonstrate the advantages of owning property where the courts are concerned with private or public nuisance law.  He explains the private nuisance cases where once you were in exclusive possession, you had standing.  In public nuisance cases, the wealthy landowners could afford to approach the court but even they lost most often to economic interests in the wider community because factory owners and their subsequent generation of wealth both monetary and physical, benefited society so greatly the courts were hesitant to put them out of business.  Whole towns and communities were employed at these places where the side effects of pollution were severely compromising basic environment standards of the air and water.  The reports of lakes, creeks, sewer systems and cities by Brenner’s evidence are grim, to put it mildly.

The British government finally sent out commissions to explore the environmental degradation and found itself having to address the problem by legislating very specifically, area by area.  Challenges to the legislation were often, again, the reality of employment in factory settings.  Administrative challenges to the executive were often the reality that statutes enacted in the past had to be updated and amended to suit the changing needs of society.   Statutes needed teeth to deal with emission levels, pollution testing, and so forth.  The overarching tendency was for private individual rights to pale in the face of big business.  Brenner argues that private property rights gave big business the rights to degrade, However, I argue that collectivism of “the greater good,” considerations of the need for employment and the production that factories brought, were themselves overshadowing the rights of the individual in the society of Great Britain.  The ‘small’ citizen did not easily factor into the equation.  Private individuals did not have an easy time establishing before the court an issue of standing in public nuisance cases.  Usually, it required a courageous, wealthy and educated landowner to agitate for an Attorney-General’s injunction, or as Sax describes it where Redwoods National Park was established and dam-building in the Grand Canyon was blocked:-

Sometimes, to be sure, the objectors in a community are alert and highly organized and make their views known very clearly.[6]

Everyone studying, or practicing, law knows that the most important case involving public nuisance is St. Helen’s Smelting Co. v. Tipping (1865). [7]  The relevance of this case to my discussion is on a level of private property, the rights of wealthy individuals and the tendency of the courts to lean towards a sort of collectivism where big business is allowed to overshadow small business, as it were.  The plaintiff was a landowner of some 1300 acres whose property (flora, fauna and water) were being decimated to the point that even government had been documenting the area around the Smelting Company.  This was before the slew of steady legislation had been created in Great Britain.  The court in a steady stream of decisions ruled that only if the value of the property was diminished, could Tipping have a chance to win his day in court.   All the legal discussion I have seen on this case demonstrates the court’s favoritism displayed for big business. I see the landowner as a representative of small business, however regardless of one’s outlook, it is agreed that this case dealt a blow to the local psyche, resulting in a decreased number of private persons approaching the court in actions for public nuisance:-

If a man of substance such as Tipping could not win in nuisance except for actual physical damage of his property, then a lesser man was unlikely to make out at all against an industrial opponent…[d]amage to the occupier’s health and comfort was no longer a property injury per se.[8]

Brenner goes on to describe the ongoing governmental attempt to document what was going on in these areas in order to handle any coherent approach to legislation.  What The Royal Commission on Noxious Vapours was discovering in 1878 was a paradox:  that in areas where pollution was highest, the land value was rising and tenant rents were steadily increasing![9]  It shows us that people will continue to struggle and live in places where they can make a salary even if their health is at risk and even if they have to pay enormous rents.  In fact, this urbanization phenomenon is occurring worldwide.   People live in high-stress areas where they can make cash rather than retreat to the countryside or rural communities where life is slower and tangible wealth not readily available.

This example of Mr. Tipping gives any caring government a lodestar to gaze forth and ponder: can protection of citizens’ environment be carefully crafted into statutes without destroying the economy?  Do repeated court decisions in favor of big government work to steadily destroy a strong, healthy middle class?  Do issues of health and environment eventually fall upon the government in any event when the middle class erodes and is unable to pay for dignified health care?  The swift rate of development in Great Britain in the 1850’s gives developing countries a nice model to explore in facing fast-paced development where the environment and public resources are at risk of being overlooked!

That is the consideration of government.  Where can the Church look for answers in a world where this is no God, no Creator, no Higher Source of justice and power recognized in the spheres of intelligentsia and global power? This is one big whammy!

I began to ask myself in reading Brenner’s piece, what on earth was the church doing in Great Britain at that time? I pulled out my favorite book, God’s Peoples, produced by Billy Graham Ministries and found something of a beginning in the story of Methodism:-

Eighteenth-century England was in the middle of the Industrial Revolution.  Men and women who had been driven off the land by the earlier Agricultural Revolution swarmed into the cities to compete for jobs.  Those who were fortunate enough to find work toiled from sunup until sundown, falling exhausted and filthy into their beds as soon as they got home to snatch a few hours of sleep before they had to get up for the next day’s work.  On Sundays, the only day they had off, they were too dirty and too poor to be comfortable in an Anglican church.  Wesley’s outdoor preaching reached and converted these people.  Revival swept England, churning out itinerant Methodist circuit preachers…who did have a burning zeal for Christ and the unsaved.[10]

Nearly 100 years later, Charles Darwin publishes Origin of the Species (1859) “which challenge[d] both the Christian view of humanity and the Enlightenment emphasis on human reason and individual dignity,[11]” through free choice rather than natural selection.   This work had a profound influence in academic spheres and has survived even to this day.

The church in Great Britain at this time “was ill-prepared for these changes…The Sunday school movement began as an effort to teach literacy to children who worked in factories the rest of the week; the Bible was the text.”[12]

It is around this time that Western Christians in Great Britain and America diverged into two paths:  the evangelicals and the liberals.   Both are Protestant arms.  To confuse them with either Catholicism or the Anglicans is a fatal intellectual error in discussing the modern church.

This is where, in my opinion, the church must explore our role in a discussion of environmental protection.  We must really dig for the ideas that set the stage for this fork in the road.  It is more than the Creation/Evolution divide, in my opinion.  However, as citizens of any democratic country, we must work within the constraints of the legal environment available to us.   That is why I have taken this path of unraveling my experience of studying public trust doctrine (U.S. law) and private and public nuisance doctrine (U.K. law). I feel they are cousins of the Commonwealth historical development and can be beautifully utilized in protection of the environment while taking economic considerations into account.

As for who “owns the world,” and the passage of the Psalms given at the very beginning of this article, maybe that will never be answered in academic circles, in lines of black and white.  But if you look outside your window, sit by the seaside hear a bird singing, or watch a dog curled up in the garden, remember that these beauties are gifts.

---

Brenner, Joel L., Nuisance Law and the Industrial Revolution, The Journal of Legal Studies, Vol. 3., No. 2, June 1974, pp. 403-433 at p. 412-413.

[2] Ibid., p. 408

[3] Ibid.

[4] Sax., Joseph L., “The Public Trust Doctrine,” Michigan Law Review. January 1970. Volume 68, pp. 470-566 at pp. 502-504.

[5] Ibid. 505

[6] Ibid. pg. 496

[7] 11 England Rep. 1483, 11 H.L. Cas.642, at 642-44, 4 B.&S. 608.

[8] Brenner, Joel L. at pp. 419-20.

[9] Ibid., 420.

[10] Spickard, Paul R., Cragg, Kevin M., God’s Peoples: A Social History of Christians.© 1994, Baker Books, (Contributing authors: G. William Carlson, Michael W. Holmes, James E. Johnson, Cornelius H. Lettinga and Roger E. Olson).

[11] Ibid. 349.

[12]Ibid. 284.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

Share on Facebook

++++++++++++

The greatest problem in today’s world is the excessive exercise of control by the State.  Therefore, any discussion about balancing the ‘public need’ with the needs of the ‘private interest’ held by developers or ordinary citizens have become so incomprehensibly blurred.   In the times when Joseph Sax wrote his essential article on the Public Trust Doctrine, the United States of America was dominated by an individualist ideology that was as imperturbable as the walls of a great fortress.  I was born in October of that very same year that his article was published, born into a world of lush trees and grey rocky outcroppings along the shorelines of the islands of New Providence and Great Abaco stretching as far as the eye could see!

Imagine the vast plains of the great continents that lay untouched in the northerly world of Joseph Sax, the great acreages of land that he saw being swallowed up by development.  Indeed, this is what must have driven him to research in such great detail.  All around the United States wealth resulted in land development but some communities were better than others in holding up a cautionary hand and saying to the State, “pause here, please.”  These communities were probably comprised of relatively educated people who enjoyed a great balance between nature, modernity and wealth.  They perhaps wanted the best of both worlds believing that it would be ideal to streamline the cities with concrete, metal and technology while leaving the towns and countryside more pristine, gently handled, as untouched as possible without losing the advantages of modern amenities.

What would Joseph Sax have had to say to Ayn Rand?  Probably very little.  Perhaps he would have been polite and thought, “best she keeps to city life which is so very lush and luxurious compared to Soviet Russia—frigid, barren, wasteland!”  Sax and Rand straddled the wide girth of modern America thinking that they had not yet become greedy.  Wealthy and successful it was, but greedy, no.  It was a land of hard-working, up-by-your-bootstraps people who exercised generosity to the less fortunate and were known to rebuild whole communities for developing and third world countries around the world.  Sax watched a disappearing environment while Rand was anxious to protect the individualistic outlook that had made America great from its very beginnings (minus a few troubling institutions such as genocide and slavery).

I believe 1970’s America had a good-sized middle class, fairly well-educated but largely liberalized and falling away from stringent Christian values in the cities while still conservative in the town culture.  However, the power of media had begun to shape fashion, music and outlook in waves that were coming faster and faster onshore. The undergirding foundation of 1970 American ideology was drastically changing.  You could talk about what you wanted or didn’t want, but you couldn’t talk about State interference with a straight face.  The fact is that back then, the State held the reigns of fiscal control in American life.   Budgets for government representation had grown, and numbers of state employees continued to burgeon.

The status quo of American life became a culture of law suits and taking matters before the court.  As legal opinions proliferated through the States, so did State power to make more laws and to enact them.  Enforcing them required more and more police power, therefore establishing increasing power to the Executive, or as some might say, the Figurehead.  And so it is the paradox of Ayn Rand’s doctrine that she sat in favor before the very elite that continued to swell on the crest of the great wave called State Power.   She preached the doctrine of the Individualist but the only individual rising in power in her America was the State.  This was the crushing truth of her period.

Not only did the power of the executive become great in Rand’s America, but so did the power of the judiciary whose ranks and its subsequent supporting bodies swelled.   All of this required further personnel and most certainly an increasing budget whose requirements gave the State more incentive to tax its citizens.  It goes without saying that the legislature grew in the States as population growth and wealth perpetuated more and more needs which required the State’s maintenance via the public purse.  Go back in time to the 1920s and 1930s and you will venture to the towns and cities where many services were performed pro bono by the citizens (who also rose in power and influence on a private level).  However, by the end of the Second World War Sax and Rand confronted a liberalized America where the needs of its society were complex minutiae being handled by the many-arms of the State machinery.  In all fairness to Rand and her successor, Leonard Peikhoff, they attempted to warn their readers that the State machinery was leaning heavily towards a new sort of fascism. It is the powerful influence of Rand and Peikhoff that has made Nazism a discussion of every pundit having overdone on paltry issues while omitted on issues where it is needed most. In other words, the pundits band the Nazi discussion mostly in the absence of an opposing voice.  As the true face of Nazism is most dangerous where there is an undefended minority among us, no one has had the courage to address the blank Face of the State.

In Nazi Germany, the laws were painstakingly carved in stone over at least a twelve-year period, an exacting science of pushing out the Jews, the intellectuals and even the Gypsies.  The State worked as a machine to drill every one into line without crushing big business.  Ring any bells? Joseph Sax heard the bell toll for a way of life that was fast-disappearing.  He attempted to demonstrate that case after case the story line was the same:  the absence of agreement underlying the use of land held in the public interest.

Eastern view from the top of the Hotel Montague (now demolished).

Let’s take an example in modern New Providence that would be just perfect:  the public park at Montague, its prime value rest on the eastern tip of a bulging city just opposite one of the greatest pleasure islands in the world.   Fort Montague sits like a craggy warrior existing from a time when Nassau people would have given their inside guts just to have a cold soda on a hot day, so underdeveloped and stark was life then!  As a child, we would drive to the Fort, climb out of the car and run up to climb its rocky, cool mildewed walls and stare down eastward at the mounds of seaweed clinging to the sand at the abutment where seagulls screamed and squawked like a scene from the movie “The Birds.”   It was unthinkable that we should swim there (just yards from where the men cleaned the fish and conch and “threw the guts back into the water,” as my aunt put it).  We watched as the poor families swam and frolicked at Montague Beach, probably having no car to drive to a better beach or perhaps they never tasted the sweet heaven of a white, clean beach in the Western District.  I recall watching the people for hours and wondering what could possess someone to take their leg out of the car and place it in the water at Montague.  Yes, baptisms were done there on Easter Sundays or public holidays and you could tolerate that thought because they were just dipped and would not stay to swim.  The beach was clammy clay and the stench from the fish and conch vendors unthinkable.  I would hear other people say that when Hotel Montague was there, the beach was better before the dredging. At that time Hotel Montague had not yet been torn down and it looked upon Montague with tantalizing memories of Errol Flynn and the swashbuckling days of Nassau. Before it was torn down, we went up there and took pictures which I still hold to this day.

The author and her sister, Joy Sweeting at the top of the Hotel Montague (now demolished).

Now the Montague Park has been adopted by benefactors.  Only a year ago, the restaurant that had been there all of my life burned down, some say not by accident.  The men still sit out there to play dominoes, the seagulls still squawk like nobody’s business, and the poor families still bring their children to swim not because they don’t have a car or because they don’t know the sweet taste of a blisteringly white beach out west, but because they can’t afford the gas or can’t find a spot on the crowded beaches elsewhere.   The park has no public bathrooms and the rats run out like buck-teethed sentries, aggressive enough to approach the children as they climb the big tree in the center of the park.  People continue to drop garbage while some of us pick it up.  There are no wardens in Nassau so drug loonies drift in and out of the park staring glazy-eyed at the children or forage for dried coconuts that have fallen from the trees.  The park will sit there in this state until the government does something about it in conjunction with the body proper which represents the benefactors.

Friends and siblings exploring the Hotel Montague (now demolished)

When I was a child, there was space for us all.  We didn’t have to cramp up here and there because there were countless places to swim along the coastline of New Providence.  Fort Montague and its corresponding park and beach sites represent a reminder of how the vast wealth of a country can be siphoned off for so many things but can easily not reach those who need it most.   There is space at Montague for public facilities.  There is room in the budget for wardens to ensure that people don’t leave their garbage and that lunatics leave their pitbulls home, away from mothers with children. To ensure that families can take their children to the bathroom, to ensure that something like the restaurant that had been there for at least forty years is remembered in the upcoming design and to remember the poor and disenfranchised among us at a time when the disparity of wealth seems to be most pronounced.  There is room in the government budget to ensure that the memory of the people is protected and sacred in what is considered for the years ahead.

++++++++++++

I brought up the budget for a reason.  It hearkens back to my first sentence in this article:  The greatest problem today in the world is that there is too much State control.   The simplest thing that should be done is often at an impasse because the people making the decisions sit in the labyrinth of the government system:  bureaucracy enforced by authority chiseled into the psyche of the collective over a long period of time.  That is the meaning of government and bureaucracy today in my humble opinion.  It was certainly not the definition of government in the 1920’s and 1930’s.  You may ask why I keep going back 100 years.  That is a good question and a valid one.  I go back 100 years because the power brokers of the world today are riding on the back of a horse whose saddle, reins, sturrups and bit are crafted from economic and democratic ideals of a 100 years worth and more.

When we beg the question of what role is to be played by representatives of the State when handling the changing needs of the public, this is where government workers tend to get on the defensive.  On one hand, the civil servant is working in an already-bureaucratic pigeonhole within the government system.  A answers to B answers to C who answers to Committee D or Tribunal E if the public’s ire is aroused.  A answers to B answers to C who answers to Politician D who is cutting a deal with Celebrity or Developer E on some great new thing that’s going to fill in some much-needed government revenue to build School F.  This is the labyrinth and everyone knows about it.  I wish to make five major points here that the Joseph Sax article enriches so immensely and then to close by introducing the reader to a wonderful article written in 1974 discussing another angle of the protection of precious land and environs for the greater good.

• PUBLIC LAND USE IS OFTEN NOT STAGNANT – This is actually an understatement.  The greatest challenge of government agencies is to consider when a resource use cries out for reconsideration:-

“As an example of the latter view, San Francisco Bay might be said to have a trust imposed upon it so that it may be used for only water-related commercial or amenity uses.  A dock or marina might be an appropriate use, but it would be inappropriate to fill the bay for trash disposal or for a housing project.”

• TACTICS ARE OFTEN USED TO SLIP DEVELOPMENTS THROUGH.

The arms of government move notoriously slow. Sax accumulated data on a number of devices that ran through the cases. It appeared that efforts had not been made to alert the local community to a proposed change of use of resource.

“There are a variety of other ways in which agencies minimize public participation in their deliberations.  For example, the duty to hold a public hearing may technically be satisfied by holding a hearing which is ‘announced’ to the public by posting a notice on an obscure bulletin board.”[2]

• THERE IS DIFFICULTY IN THE DUAL ROLE OF GOVERNMENT AS PUBLIC TRUSTEE DISPENSING, OR PUBLIC PROTECTOR OF, RESOURCES IN CASES OF CHANGING USE.

“These traditional cases suggest the extremes of the legal constraints upon the states: no grant may be made to a private party if that grant is of such amplitude that the state will effectively have given up its authority to govern, but a grant is not illegal solely because it diminishes to some degree the quantum of traditional public uses.”[3]

• PUBLIC LAND RESOURCES CAN BE SOLD OFF BY CAMOUFLAGED LEGAL JARGON WHEN PRIVATE INTERESTS & TITLE ARE TO BENEFIT.

The most important case given by Sax is that of Hunting Creek in Alexandria, Virginia circa 1964.  Certain parties owned land near the creek and in order to deflect public attention from the parties’ intention to purchase the public interest in order to fill in the creek, someone in government was persuaded to package the sale in Bill form, selling the ‘riparian’ rights of the creek (as though it was only just land near the creek); in this Bill form, it was attempted to allow certain public officials to ‘convey’ all the Commonwealth interests of the public, and the Bill initially slipped through in language as though a tiresome title defect was being mitigated. This case bears scrutiny by those interested in the public trust doctrine.

Sax takes particular care to present the obstacles to public attention on the matter:-

• Bill was passed unanimously in the Virginia House on a day when there were 100 bills considered and zipped through the Senate on a day when 59 other bills came up.[4]
• Bill’s language was so restrictive that “even the most alert legislator would probably not have realized the extent of the private benefit that the legislature was bestowing.”[5]
• Bill does not purport to deal with a public benefit at all “and appears as if it is nothing more than authority for a quitclaim conveyance to clear up a technically troublesome title problem…”[6]
• Bill is hardly dealing in good faith with query over private vs. public ownership because such complex legal issue would have been passed up higher to the Attorney General’s Office.[7]

Sax goes quite deep into this maze of where the legal responsibility falls.  He blames no one in particular, rather presents the labyrinth of bureaucracy in all its fullness, and the challenges faced in utilizing the breadth of the public trust doctrine in the interest of the wider community who is set to be most-often disadvantaged by certain types of development.  Certainly, few would dispute that the notion of filling in a creek for a landfill is not the best use of aquatic resources!

• THERE IS A PUBLIC PERCEPTION THAT PUBLIC TRUST CASES FALL INTO TORT OF PUBLIC NUISANCE LAW BUT CASES CAN FAIL BEFORE THE COURT IF THERE IS CARELESS PREPARATION.

“Public nuisance law is the only likely doctrinal competitor. That approach, however, is encrusted with the rule that permits lawsuits to be initiated only by the state attorney general, and not by private citizens.  It also has an unfortunate historical association with abatement of brothels, gambling dens, and similar institutions, and the case law is therefore not easily transferable to natural resource problems.[8]

There is a beautiful and deeply moving article by Joel Franklin Brenner published in The Journal of Legal Studies in June 1974 and entitled Nuisance Law and the Industrial Revolution.  I was studying an article on tort (or civil action through the courts where there is blame or ‘culpability’).  This man’s carefully extracted research of the period was flawless.  Furthermore, he credited Dr. William Letwin and Professor W.R. Cornish of the London School of Economics for their “advice, learning and good sense.”[9]  He also did not hoard the glory where the unlayering of nineteenth century common law and unearthing of relevant statutes were undertaken by a female contemporary:-

I am also deeply indebted to Miss Betty R. Masters, Deputy Keeper of the Records for the Corporation of London for her kindness in researching on my behalf both the statutes relating to nuisances within the City of London and the records of two City magistrates courts.[10]

When land is being used for a public purpose and a private entity is to benefit from that land, the public trust doctrine kicks in.  When public land is encroached upon by private corporations or individuals whose actions cause grave environmental damage to the air, the water, the earth and the residents, the State is obliged to utilize the law of Public Nuisance.  However, it is a very complex legal circus in both cases unless State agencies are acting in the public interest or unless private aggrieved individuals can get decent legal representation to approach the State agencies where the issue of standing is appropriate.

In today’s world, very little legal doctrine is upheld without the State or its agencies.  In the case of the public trust doctrine, legislators must be bound by the noble idea that they read proposed development through the lens of protecting land and waters and resources generally held in the public interest.  When it comes to nuisance law in the interest of these public resources, the legal scope is quite confined by what laws have been written to protect the resources.  Mostly, an action has to be brought on behalf of private persons by the Office of the Attorney General.  And where government agencies have actually created damage to the environment through public works, too often government has unwittingly protected them either in too-broad statutory protections or omissions.  As the Biblical adage goes, “a house divided against itself cannot stand.”  So overall, government’s hands are tied against itself unless it upholds the doctrine of the separation of powers.  The challenges to this latter doctrine are manifold:  the cautious judiciary, the vote-happy legislature and the development-needy executive.

---

Sax, Joseph L., The Public Trust Doctrine,” in the Michigan Law Review. January 1970. Volume 68, pp. 470-566 at page 477.

[2] Ibid, footnote 76 on page 497.

[3] Ibid, page 488.

[4] Ibid., 506.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid., quoting from Footnote No. 45, Sax.

[9] Brenner, Joel F., “Nuisance Law and the Industrial Revolution,” The Journal of Legal Studies Vol. 3., No. 2, June 1974, pp. 403-433 at 403.

[10]Ibid.  Footnote 49 at page 421.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

Share on Facebook

Share on Facebook

He wasn’t sure if he could put the alien philosophy into words. ‘It’s as if they don’t feel the land should be used the way white men use it.  They seem to hold it in some kind of trust for the next generation.  I think it’s a kind of religion to them…they do worship nature—the sun, the moon, the earth, the water, the buffalo…’

[From Beloved Outcast by Pat Tracy, also author of Saddle the Wind and Winter Fire, ©1996 Harlequin Historicals, p.104]

++++++++++++

An allied principle holds that certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace.  From this concept came the laws of New England reserving ‘great ponds’ of any consequence for general use and assuring everyone free and equal access.

[From the seminal article by Joseph L. Sax, “The Public Trust Doctrine,” in the Michigan Law Review. January 1970. Volume 68, pp. 470-566.]

++++++++++++

In 1974 a pending timber sale threatened old-growth trees.  Three grandmother elders, or yayas, appeared at a tribal council meeting.  ‘They straightened their scarves, spoke of their concern for generations to come, and refused to leave until the council banned logging,’ said a witness.  It did.

[From National Geographic, “Restoring Tribal Lands,” by Charles Bowden, Photographs by Jack Dykinga, on page 93, Issue August 2010. {for a stunning accompanying photo, please go to NGM.com and see pages 92-93}]

++++++++++++

I have chosen to write on the subject of the Public Trust Doctrine and adapt it to the needs I see around me in Bahamian life.  Specifically, in this article, I will touch upon the controversy brewing down south in St. Barth’s.   As I write, noted legal voices are beginning to call for reform of the Land Laws in The Bahamas.  Dexter Johnson is calling for the government to enact superior laws:  to more closely touch the needs of the people.  Sharon Wilson former Senator of the Bahamas Government asks the to pause on the Subdivision Act and to focus instead on cleaning up the registry system of land, sifting through title issues that clog the process.  Clement Chigbo, a fellow attorney and columnist at Lex Justis is espousing the Canadian system: it brings title realities and electronic technology together effectively.  These are legal voices from on high, so to speak, in the realm of ideals, in the realm of policy realities that affect the professional class.  Lesser-known intellectual voices are cautioning the Bahamas Government in letters to the editor to beware of selling Crown land in such developments such as the Baha Mar project on Cable Beach.   The government is not listening.

But what is happening on the ground in The Bahamas that calls for my commentary?  The needs are so numerous that I have decided to address them gradually, integrating the public trust doctrine.  Nothing that I say is meant to attack any one class or sphere of Bahamians, legal residents, permanent residents, illegal squatters or our gracious repeat visitors.   Rather it is a cautioning message that something special is slipping away and has virtually been lost in the rush for development in The Bahamas.  It is a warning to ease up before things go too far.

It is chiefly designed to inform the reader of my own perceptions as one who has lived in The Bahamas almost all of my life (with four years spent in Canada).  I can boast 36 solid years of experience in The Bahamas.  This experience, I believe, makes me qualified to speak confidently on the subject.  There may be those planning to invest in The Bahamas who are reading this article.  There may be those who have already put down roots in The Bahamas and have perspectives of their own as to what might benefit The Bahamas based on their own travels and experiences abroad.  The quote above regarding the yayas is designed to lay the groundwork on my perspective namely, that when you come to a country, there, you meet its people with their own needs, their own memories, their own lives.

Harmony flows from a meeting of both worlds that is mutually beneficial.   Sometimes it is not always easy to work out the kinks, but it can certainly be done if both sides are true to themselves and willing to speak with candor.  However, in The Bahamas today there is often the scenario of the larger-than-life investor who comes into a very small community.  The question must be asked as to whether the playing field is level.  Can the community with its dependence on foreign investment come up to the microphone in the town meeting and really speak its truth?  Do not answer this question rashly.

A recent article reveals the plight of the islander in the face of large development.  I was deeply moved by a casual reading of such a scenario in “The Storming of St. Barth’s,” so beautifully written by Vicky Ward, featured in the January 2011 issue of Vanity Fair.  The article begins by describing this Mecca of the rich and famous, how it’s a favored place for the elite to hang-out, relax and hold parties.   The money it takes for the elite to travel there alone, dine and dress for one season is what the average person would spend years saving to say, get a down-payment on a home, or, say, send one of their children to college.  Such is the disparity of wealth as the world turns.

St. Barth’s is a yachting culture too, the article explains, so imagine scenes from movies such as the hilarious romance movie “Fool’s Gold.” featuring Kate Hudson, Donald Sutherland and Matt McConaughey.  Added to this yachting culture, we learn that there are about 10 powerful families that run things there in St. Barth’s  (sounds like just about every other country in the world, doesn’t it?).  And more pronounced it becomes in small island states where the locals are not only ruled by the powerful families, not only led by the bit by the powerful families; but they also have the dubious fate of being dragged behind whoever is leading the powerful families by the bit:-

Jean-Pierre Hennequet, who owns an art and antiques gallery in Gustavia, the island’s capital, says that council meetings often approach farce: ‘You should see them.  They arrive, they have a list of what they have to vote on, and they discover the documents when they arrive—hundreds of pages—and they have to say yes or no.’ p.75

Eventually we learn of the local activist, Hélène Bernier, a citizen of St. Barth’s, of long-standing history with her island.  Just before we learn more about her though, there is an important statement made by Ward to the effect that new development being proposed to de-naturalize a pristine, saline beach could turn this paradise into another cement and stone pavilion on earth.  Ward notes the advancing march of development but she makes an important observation:-

…[w]ill [Saline] be paved  and built over into oblivion, thereby alienating the wealthy and famous visitors who are drawn to it each winter and who fund much of the local economy? Ibid…

Now, I believe, we are touching upon the reality of the issue:  the development of St. Barth’s important sanctuary beach is as much a tragedy for the rich and famous who have helped to develop the local economy as it is for the handful of activists and nationalists who wish to see their habitat preserved for future generations.  Somewhere on the opposing side are the old families and entrenched business interests of St. Barth’s who will profit heavily on any and every development that comes to St. Barth’s as they skim the heaviest cream from the top of the urn.  Then they will share their profits with whatever local henchmen push the policy through and with whatever small-town characters go along as they really must.

++++++++++++

Eventually, we are introduced to the person who is fighting the new development and who has the scars to show for it already, this early into the battle. Hélène Bernier.  We learn that some of the local people wanted to sign her petition, but they said that they would be victimized in the spheres where they live and breathe and have their being.  Hence my earlier question: can the local community really step up to the microphone in the allegorical, and real, sense of meeting the foreign investor in small island states?  Bernier is also said to “have a vested interest in seeing that Saline is not developed.”  And this very same outlook that Bernier’s natural birthright should have to be defended is another basic brick in the wall of outlook that separates the islander mentality from that of the person who is coming in with huge capital to develop some business interest and make a tidy profit.

Doesn’t it go without saying that the hotelier, André Balazs, would be aiming, expecting and planning for a profit in his development?  Mon dieu!!  This is the plain truth of the uneven playing field.  Small island states enjoy a sleepy pace compared to their industrial counterparts in the wider world.  However, the outlook of the local citizen is not a sleepy outlook.  Often, the islander cherishes a slower pace of life, very similar to the ‘townie’ up North or the countryperson in rural France!  It is an insult to ask for a disclaimer from Bernier.  She is in her land.  It is her birthright to defend.  Can she uproot and work anywhere in the world with the same ease?  Certainly not!

This is where the initial conversation of the public trust will one day have to fork off of the beaten track and get into the related discussion of responsibility within the globalization context. What is possible in the very end of it all? My answer:  the extinction of species, of cultures, of languages and of religions.  We would like to believe that the necessity for this ‘smaller conversation’ is far off but it is not, my friends.

How can I, you may ask, bring up the issue of responsibility within globalization in this issue of St. Barth’s.  I can do so because the doctrine of the public trust permits me to do so with great confidence.   The doctrine of the public trust is built-up over many generations of ideas and has taken root in the handling of lands, parks, wilderness and reservations in a world power, the United States.  Similar doctrines exist, no doubt, in other jurisdictions where land is handled and zoned for the enjoyment of the people.  Developers from the highly industrialized world must bring with them the best of their culture and leave the worst back home.  After all, the rich and famous are leaving their own countries and flocking to St. Barth’s to enjoy a world apart, so to speak, not more of the same.

Vicky Ward does a good job describing the attempts by Balazs to respond sensitively to Bernier’s petition through a variety of means: Powerpoint presentations online to demonstrate his eco-friendly plans, a local town meeting staged in St. Barth’s to hear the view of the populace, and taking a small group out to dinner to discuss species protection on the island.  In fact, he is not the only one proposing something that has the islanders up in arms.  They sound as though they have come to a saturation point where development has expanded enough and it is going past the locals’ comfort zone.

In fact, this is what has happened in the capital, New Providence, within The Bahamas.  Everyone agrees that we need development.  Our chief industry, tourism, pivots on foreign capital injections and it is a running joke on the radio talk shows that “no Bahamian owns a hotel.”  It is a source of self-derision on the Bahamian psyche.  The political landscape is divided into two sharply divided camps: on the left, there’s a grudging acknowledgement of the need for foreign capital but a strong stance on the protection of the workers and the importance of the unions to enforce labour rights.  On the right, there’s a remarkable ease with which capital projects materialize, as though an invisible wand appears with foreign capital whenever the right-wing party is elected; and accompanying this is the mocking reminder by the right that the former leader of the left had brainwashed his people against being mere “drawers of water and hewers of wood.”  Both sides thrive on ignoring the nuances of what the country desperately needs:  land reform, landlord and tenant laws modernized and enforced, proper zoning and a protection of the beaches for the public.  To this need the public trust doctrine will answer the cry.

In all fairness, it may be asked how such a social issue has anything to do with a general legal blog.   I would respond by pointing to the proverbial sack full of cases in the States building up the weight of the doctrine.  The sack grew case by case, state by state, jurisdiction by jurisdiction, sphere by sphere:  I think there is a gift there for every child, so to speak.

The children in need of such a gift are future generations of Bahamians who, if matters continue apace, will not be able to find a beach to swim on unimpeded for the six months of sweltering heat that make up life in this archipelago of 700 islands and cays.  With electricity costs skyrocketing year after year, it will be more and more difficult for families to enjoy any quality of life from Easter weekend to the end of October when the weather cools off again.  With no quality control in place to regularize the public transit system, thereby reducing the number of vehicles on our small capital island, New Providence, the quality of life will continue to deteriorate, gasoline prices also skyrocketing and making comfort of driving in summer months that much more difficult to attain.  With the world economy in turmoil, the cost of updating basic infrastructural needs to meet not just the needs of the local Bahamians but the growing expatriate community buying, selling and building second, third and fourth homes here in The Bahamas, the quality of life for the disappearing middle class can be expected to worsen rapidly.

In order to adjourn the discussion on the issue of the local islander standing up to the microphone with real candour, there is an important angle to share about the St. Barth’s story.  It comes from the so-called ‘mayor’ of St. Barth’s, who is painted somewhat as the villain in the story, despite the fact that strings may be pulling him from above:-

…[he] says that St. Barth’s is a ‘free country’ and that he and the Territorial Council can do little to prevent anyone from buying land or building on it, especially if he goes to court, which he says is an option for Balazs.

Here is where the public trust doctrine and the doctrine of unwanted, gluttonous development must part ways (possibly as friends, but not probably), like Pigling Bland (in the Beatrix Potter animation series) and his brother.  Pigling Bland is cautious and knows that he must leave his food parcel given by his mother for the latter part of the journey; but his brother eats his parcel greedily and even loses his traveling permit in the process.  In the end, the brother is dragged home by the constable:  tired, petulant and hungry!  He has saved nothing for the future.  Pigling Bland struggles and lives to triumph in the tale, escaping to the next county with his pretty Piggy girlfriend whom he has rescued from the farmer.

In the public trust doctrine, we learn from Joseph L. Sax, there are nuances most profound to be considered when facing the spectacle of unbridled development of areas of importance to the public:-

While it will seldom be true that a particular governmental act can be termed corrupt, it will often be the case that the whole of the public interest has not been adequately considered by the legislative or administrative officials whose conduct has been brought into question….[t]he concessions desired by those interests are often of limited visibility to the general public so that public sentiment is not aroused; p.495

Mr. Sax then goes on to specifically enlighten that the Massachusetts reform process hammered out one important step following the famous case of Gould v Greylock Reservation Commission. [350 Mass. 410, 215 N.E.2d. 114 (1966)].  The court did not want to second-guess “an act of the legislature on the sole ground that it involved a modification of the use of public trust land.  Instead, the court devised a legal rule which imposed a presumption that the state does not ordinarily intend to divert trust properties in such a manner as to lessen public uses.” Sax, P.494

The St. Barth’s movement will have to identify what portion of saline represents that which is owned by the public, that which is in trust for the public.  It needs to be brought before the court in an action of some kind relevant to due process in that jurisdiction.  Issues such as the high water mark, easements and road reservations to the coastline would be a helpful start in any case.  However, the movement will have to demonstrate that the new development will take an existing public use and restrict it to something considerably less than that enjoyed presently by the public.

In the final analysis, it will still require cohesion amongst the activists and whatever lesser mortals comprise the movements.  Surely the ‘powerful families’ are not without members of conscience.  Not everyone can be grabbing for the cookie jar, certainly!   The ‘mayor’, the families and Balazs will need to meet more than just Bernier alone on her quest to save her livelihood, rather a group who can meet them on equal footing.  After all, fair is fair.

What is at stake, though, is a way of life.  St. Barth’s way of life, as I said, represents just as much the quiet main street of Norman Rockwell’s America as it does the stark drive of the Waltons in their truck through Walton’s Mountain.  It represents those words at the funeral of an old man who lived all his life in one of our islands and his nephew, memorializing him, wrote “he’ll go no more through the fields of corn and hold his arm out and feel the soft caress of the ears as they grow and stretch towards the sun.”

Beware, the public trust doctrine quietly beckons, before all we love in this old world slips away and is lost.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

Share on Facebook