Property Matters – Invaders’ Bay Reboot

invadersbay-bw
Once again, controversial development proposals for Invaders’ Bay are back in the news. Those proposals of the Peoples Partnership government appeared to have stalled after the successful legal action taken by the JCC in 2012, but we are now hearing of substantial proposals from the PNM government. Some serious questions have to be answered so that the public can understand the situation.

Invaders’ Bay is a 70-acre parcel of State-owned reclaimed land south of the Movietowne/Pricesmart/Marriott complex near to the National Stadium in west POS. In August 2011, the Ministry of Planning and the Economy published a Request for Proposals (RFP) inviting offers to develop those lands by design, finance and construct proposals.

The entire RFP process was deeply flawed and strongly criticized by the JCC, the T&T Chamber of Commerce, the T&T Manufacturers’ Association and the T&T Transparency Institute, as well as the PNM, then in opposition. To make just one example, the RFP entries were judged in accordance with Assessment Criteria which were published a full month after the closing date. At the time, I labelled the entire scheme as possessing all the ingredients for corruption – see http://www.jcc.org.tt/invadersbay.htm – but most importantly, the RFP was issued in breach of the Central Tenders Board Act.

In response to the JCC’s challenge on the breach of the CTB Act, the Minister obtained legal advice which he claimed found that the RFP process conformed to the law. JCC requested that those legal opinions be published, but the Minister refused to do so.

The JCC then launched a Judicial Review of the Ministry’s refusal to publish the legal opinions, on 14th July 2014, the High Court ruled in favour of the JCC to order publication of the requested legal opinions and the letters of instructions. This was historic, since the Court had balanced the Ministry’s claims of ‘legal professional privilege’ against JCC’s claims that the publication of the requested documents was in the public interest.

The State appealed that High Court ruling and the arguments have been completed with judgement now scheduled to be delivered on June 30th 2016.

The Cabinet decided to lease two parcels of land at Invaders’ Bay –

  1. Dachin: 10.2 acres for a Commercial/Residential complex, a boutique hotel, a cultural focus area and three (3) main event entertainment areas comprising a Museum, Bowling Alley and Movie Theatres.
  2. Invader’s Bay Marina Group: Commercial Development on 13 acres for Hotel, Commercial Office Complex, Cruise Ship Complex; Gas Station; Residential Development and Light Industrial Development; a Marina.

The State also entered Memoranda of Understanding with those successful parties, but despite JCC requests, never disclosed the terms of those MoUs or indeed, the proposed terms of the leases for the land.

Given that 23.2 acres had been allocated by this process, there would have been a further 45 acres or so available for other uses.

The first official statement as to the development proposals of the present government was during the Mid-Year Budget Review on Friday 8th April 2016 by the Minister of Finance and the Economy, Colm Imbert –

“…Madam Speaker, in my October budget presentation I mentioned that our diversification strategy would center around international financial services, tourism and some related maritime activities. We have now begun discussions with some foreign investors on a set of integrated projects comprising an expanded international financial centre, a five star hotel and a convention centre, located in Invaders Bay…

The International Financial Centre could include one or more Chinese banks as anchor tenants, dedicated to servicing China’s considerable lending programmes in Latin America and the Caribbean. The presence of these Chinese institutions should also serve as a strong attraction for other international banks to the International Financial Centre. The existing TTIFC will continue to focus on back office operations, business processes, outsourcing and capital market activity…” (pgs 30-31)

Both the previously agreed proposals included hotels, so it is not at all clear if those have been stopped or whether all three sets of proposals will proceed. If it is the latter, we are seeing proposals for three new waterfront hotels in our capital city. These questions can only be properly answered if a more open, consultative development process is adopted, as per the 17th recommendation of the Uff Report

“…User groups and other interest groups should be properly consulted on decisions regarding public building projects, to ensure that relevant views can be expressed at the appropriate time and taken into account before decisions are made…” (emphasis is mine)

Some further details emerged in this newspaper ‘Chinese firm eyes T&T Financial Centre‘ on 16th June 2016. Former Central Bank Governor, Ewart Williams, who was reported to now be the adviser to Minister Imbert and a Director of the T&T International Financial Centre, gave these details during a formal speech –

“…the proposal envisages the construction of a new IFC tower, a convention centre, a five-star hotel and a free trade zone catering to Chinese and other international conglomerates…this is a unique proposal the Government is giving urgent consideration…talks between the state-owned Chinese company and the Trinidad & Tobago government on TTIFC’s expansion have been going on for the last few years…”

The final aspect for consideration is the question of how these proposals would work in the new legal framework created by the Public Procurement and Disposal of Public Property Act. That amended law was assented to by the President on Friday 17th June 2016 and the implementation process is now underway to put these critical laws into effect.

It is very important to understand the way in which the new law deals with transactions in public property. When the original act was assented to at the beginning of 2015, there were strong criticisms from the PNM that the Act did not properly control disposals of public property. The most notable of those prompted a JCC response of 14th March 2015 to then Senator Faris Al Rawi to clarify that the original law did cover transactions in Public Property. The JCC also acknowledged that the Act did have room for improvement, but urged early implementation.

The amendments proposed by the PNM were approved in Senate on Tuesday 7th June 2016 and according to the Hansard for that Senate sitting, Minister Imbert, in explaining their relation to public property, stated –

“…So what we were trying to capture and what we will capture are the lands like the lands at Invaders Bay and so on, that do not fall within any existing legislation, and therefore, would allow a Minister to escape the framework of any existing law and dispose of state land whether by lease or by sale to the private sector. So we have put it in this way so that henceforth once this legislation is approved by this honourable Senate, that state lands, real property owned by the Government, state enterprises or statutory authorities will now fall within the ambit of the Office of the Procurement Regulator so that there will be proper oversight and no giveaways of state lands or irregularities in the disposal of state lands. So that is one of the first changes that we sought to make to the Act. We think this is very important…” (pgs 33 and 34)

I supported the proposed changes to this law in my formal submission to the Joint Select Committee established to examine those, with a serious reservation on its provisions for government to government agreements.

Government to Government Agreements (G2G) are covered in S. 7 (2), which contains a serious loophole in terms of the disposal of Public Property –

“7… (2) To the extent that this Act conflicts with an obligation of the State under or arising out of the following:…
(c) an agreement for technical or other cooperation between the Government of Trinidad and Tobago and the Government of a foreign State, the requirements of the treaty or agreement shall prevail except that the procurement of goods, works or services shall be governed by this Act and shall promote the socio-economic policies of Trinidad and Tobago and shall adhere to the objects of this Act…” (emphasis mine)

The Act would therefore only apply if the G2G were in relation to the procurement of goods, works or services. So public property could be disposed of under the terms of a government to government agreement without the complete oversight of The Act as intended and specified in its ‘objects clause’.

The provisions of S.7 (2) should therefore be extended to include ‘disposal of Public Property’, so as to properly safeguard our country’s assets.

That is not the first time this pointed critique has been made, but ultimately the Act has now been amended with the loophole intact and we are now learning, from Ewart Williams’ statements, that these negotiations have been underway for some years.

I would not be surprised if it emerged that our Invaders’ Bay lands are to form part of a new G2G. We need to be vigilant to protect our patrimony. I am calling on Minister Imbert to indicate whether these ambitious new proposals for Chinese investment at Invaders’ Bay are to be within the ambit of the new law.

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6 thoughts on “Property Matters – Invaders’ Bay Reboot

  1. The issues you’ve raised are important from the standpoint of public right v private right.
    Government in a society lol ours, regardless of which party forms it, defends private right as predominant.
    The FOI Act and Public Procurement policy are all consistent with this basic position against public right and in favour of monopoly right.
    Those who stand for the public interest must be always vigilant.
    Congratulations to you for taking up this issue and persisting.

    1. Hello Clyde,

      Thanks for your supportive comments, but I do not agree with you that the Freedom of Information Act or the new Public Procurement and Disposal of Public Property Act are against public rights and in favour of private rights…to be sure, there are areas in which improvements can be made, which is what this article is about, but the framework in both cases favours the public interest.

      To illustrate this point, consider that the High Court in the Invaders’ Bay case was able to carry out the Public Interest test as mandated at S.35 of the FoIA in order to weigh the ‘Legal Professional Privilege’ against the public interest in having those documents published…the FoIA exemptions in our law are specified at Ss24-34 and are all

        subject to the ‘Public Interest Test’ mandated at S.35. In the UK Act, the exemptions are ‘absolute’ which means that a public authority in the UK can mis-apply an exemption secure in the knowledge that their decision is never going to be scrutinised by the Court or any Tribunal…

        I am very interested in exactly how this latest Invaders’ Bay proposal unfolds…I think a new G2G Agreement is coming our way.

        Thanks

        Afra

  2. Afra,

    I agree with you that the FoI act and the procurement bills are supposed to favour the public interests but if the G2G arrangements can override these regulations and further if we foreclose on the G2G contracts then we are forced to foot significant bills and then attack the remnants of whatever was initiated. We can site from among several other NAPA-like issues, the 3.3 billion lost due to the World Gas to Liquids Project, see: http://www.newsday.co.tt/news/0,225602.html as another third world white elephant. Naipaul wrote similarly of Africa in A Bend in the River and part two of, Finding the Centre called, “The Crocodiles of Yamoussoukro” of the billions of taxpayers revenue given away in contracts, which tested their depths (debts) by plunging in with both feet. Perhaps this is what Mr Weatherhead meant.

    1. Yes, Chris, which is why I highlighted that gap in the law – it was clearly created and maintained for some purpose…

  3. Afra…just returned to see this. Like you I am concerned about what you wrote here::”We need to be vigilant to protect our patrimony. I am calling on Minister Imbert to indicate whether these ambitious new proposals for Chinese investment at Invaders’ Bay are to be within the ambit of the new law.” And as cited above we “Third Worlders” seem too vulnerable to G2G partnering at the expense of our tax payers and even our cultural integrity suffers. I speak here of the absence of ambiance in some of our new architecture. For example our Hyatt’s interior decor could be HYATT ANYWHERE if you catch my drift! Again thanks for being vigilant! RhonaB.

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