Court to rule on shantytown discovery application

NASSAU, BAHAMAS – Legal arguments in the ongoing shantytown matter got underway in the Supreme Court yesterday.

Attorneys representing 177 shantytown residents in an application for discovery, argued that the government has not fulfilled its duty of candor in the proceedings.

Martin Lundy, lead attorney for the applicants, said that discovery should be ordered to protect his client’s constitutional rights.

However, attorneys for the government objected to the discovery application, before Supreme Court Justice Cheryl Grant-Thompson.

The government gave shantytown residents of New Providence until August 10, 2018, to evacuate those communities, and residents of shantytowns in Abaco, until July 31, 2019 to leave.

However, days before the deadline an application for judicial review  on the government’s eradication program was filed.

The applicants are Respect Our Homes Ltd, and Lumane Nonord et al being 117 residents and or occupants of the shantytown in The Bahamas.

The respondents in the matter include Prime Minister Dr. Hubert Minnis, who has responsibility for lands; chair of the Shantytown Action Task Force; Minister of Public Works Desmond Bannister; Attorney General Carl Bethel; Bahamas Power and Light; and the Water and Sewerage Corporation.

On August 4, Grant-Thompson granted an injunction barring the government from moving forward with its plans.

Lundy said they need the policy documents of the Shantytown Action Task Force, along with other operational documents, reports and decision-making papers in order to move forward with their case.

He argued that the SATF was not a legislated body and thus had no real powers.

Kayla Green Smith, who represented the government, submitted that the discovery should only be granted “restrictively”.

Smith told the court that the applications are using the discovery as a “fishing exercise” in order to “remedy the effects of their claims”.

“Either you have a case or you don’t,” she said.

Smith pointed to several of the affidavits filed on behalf of the government in the matter, noting that included in those filings are the policies, reports, notices and rationale of the task force’s actions.

She insisted that her client’s duty of candor does not require general or unlimited disclosure on discovery.

She also furthered that that application for all documents in relation to the decision-making process of the policy is “very broad”, noting “it’s hard to determine what they are asking for”.

Smith also objected to the request on the grounds of crown privilege, in that some of the documents requested may included Cabinet papers and things discussed in Cabinet.

Smith said the request for general discovery should be denied on several basis with cost to the respondent, adding that it is simply a waste of time after nearly two years of dealing with the judicial review.

She submitted that there are no additional documents that the applications need because, “We have given them all the documents for the disposal of the matter.”

However, Lundy yesterday maintained that there has been no disclosure from the respondents except what was “selectively included” in the evidence.

He countered that the applicant’s request was not too broad because “In order to determine whether it was ultra vires, the courts need to know what the policy is”.

He said while the burden of proof may rely with the applicants, that does not mean the respondents won’t have the documents relevant to the matter, “otherwise discovery will never be ordered.”

Lundy added: “order the disclosure so the true position of the policy could come to light”.

He urged the court to accede to the discovery application, with cost to the applicant.

Grant-Thompson also heard interlocutory matters relating to the case.

It is expected that the she will rule on the discovery application on February, as well as a continuation of other interlocutory matters.

The court will also hear submissions on the variation of the injunction at that time.