Invaders’ Bay – Appeal Court ruling

ttjudiciary

REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. P-200 of 2014
Between

THE MINISTER OF PLANNING AND SUSTAINABLE DEVELOPMENT

Appellants

And

THE JOINT CONSULTATIVE COUNCIL FOR THE CONSTRUCTION INDUSTRY

Respondents

PRESS RELEASE

Today the Appeal Court delivered its majority ruling upholding the decision of Justice Frank Seepersad on 14th July 2014 to order publication of the legal opinions on which the Ministry had been relying.

This case began in 2013, when the JCC sought a judicial review of the refusal of the Ministry of Planning & Sustainable Development to publish legal opinions which the Ministry claimed supported its Request for Proposals (RFP) process in the proposed development of Invaders’ Bay. The JCC contended that the RFP process was being conducted in breach of the Central Tenders Board Act, but the Ministry claimed to have legal advice that its actions conformed to the CTB Act. It was that advice which the Ministry refused to publish.

Today’s Appeal Court ruling was a significant one in that it gave greater weight to the mandatory ‘Public Interest Test’ under the Freedom of Information Act, as against the Ministry’s reasons for its refusal on the grounds of legal professional privilege. The previous practice allowed the State to have discretion as to whether legal advice can be released. Had that practice been upheld at the Appeal we would have been facing a future in which any questionable project or policy could be concealed behind the screen of legal professional privilege. This ruling therefore significantly fortifies the Public Interest.

I now expect swift publication of the formal instructions and legal opinions on which the Ministry was relying in this highly-questionable matter. What is more, substantial sums of Public Money were spent in efforts to conceal these details and I am therefore taking the opportunity to ask for the details of those payments of legal fees to now be published – How much Public Money was spent on legal fees and to exactly whom did those monies go?

Another important aspect of this matter is that the Ministry’s official reason for its refusal to publish was changed during the litigation to legal professional privilege, but in this ruling the Court did not condone that change.

<–END RELEASE–>

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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.
Continue reading “Property Matters – Invaders’ Bay Reboot”

Facing the Facts on Invader’s Bay: INVADER’s BAY Corrective

JCC President Afra Raymond issues a corrective to the lead story in the Sunday Guardian of 9th August 2015. This ‘Letter to the Editor‘ was published in the T&T Guardian on Tuesday 11th August 2015.

The Editor,

guardian-story-invaders-bayThe cover story in Sunday’s Guardian on the Invader’s Bay development requires a response to dispel some of the carefully cultivated confusion around this important set of proposals.

The Public Property known as ‘Invader’s Bay’ comprises 70 acres of reclaimed land at the waterfront in west POS and it is proposed to be the largest development in our capital city in living memory. It is unacceptable that this large-scale development could be proceeding without any public consultation and in the seriously improper manner against which the JCC has protested. It is sobering that the very Ministry of Planning & Sustainable Development (MPSD) has been leading this process for the last four years without seeking to engage in public consultation.

The Request for Proposals (RFP) process used in August 2011 by MPSD was improper and voidable, since, according to Minister Tewarie himself, the Assessment rules were published one month after the closing date. Any reputable organisation running a competition or tender would accept that the rules must be given to all the competitors at the same time and well in advance of the competition itself. That basic and inescapable breach has been pointed-out to MPSD several times by the JCC, but we are yet to see any response on that point.

After JCC specified its concerns that the RFP was in breach of the Central Tenders Board Act, the Minister repeatedly stated that the legal advice was that MPSD was in conformity with the law. Despite our several requests, that advice was never published, so the JCC sued under the Freedom of Information Act. The High Court ruled that the requested information be published and MPSD appealed. One can only wonder at this reluctance by politicians to publish legal advice which supposedly supports their actions. This type of official reticence is a first, so on this count at least, the Invader’s Bay project has a significant element of innovation.

The JCC has enquired as to the cost of the High Court case and the subsequent appeal, but that too has remained undisclosed, for whatever reason.

According to Ms Jearlean John of UDECOTT, a tender has been awarded for design of infrastructure on this 70-acre site, but we also know from MPSD that no planning applications have been made for these developments. That raises the serious question as to how an infrastructure layout can be designed in the absence of either public consultation or relevant approvals.

The carefully cultivated confusion can be seen in three glaring examples – firstly, the question of official responsibility – with Minister Tewarie referring detailed queries to UDECOTT, whose chairman refers those queries back to that Minister. Secondly, according to MPSD, the 10.2 acre parcel allocated to Derek Chin was valued at $204.5M, yet Chin is reported as saying that “…the price is $130M…”. Finally, the entire property is 70 acres and 23.2 acres have been allocated, so it seems that 46.8 acres are to be left undeveloped at this stage. So, how can UDECOTT be responsible for only 51 acres, with Minister Tewarie saying that “…there are about 40 acres of land at Invader’s Bay still open for development…”?

These are a few of the real concerns with this proposed Invaders’ Bay development.

Afra Raymond
JCCPresident

http://www.jcc.org.tt

AUDIO: The Breakfast Round Table interview on Sky 99.5FM – 10 Aug 2015

sky995fmAfra Raymond is interviewed on the ‘The Breakfast Round Table‘ show on Sky 99.5 FM by Eddisson Carr, Jessie May Ventour, Dr Wayne Haywood about the current flare-up by developer Derek Chin regarding his continuation in the controversial and contested Invaders’ Bay project. 10 August 2015. Audio courtesy Sky 99.5 FM

  • Programme Date: Monday, 10 August 2015
  • Programme Length: 32:42

Invader’s Bay – Suspicious Motives

invadersbay-bwThe proposed development of Invader’s Bay will be the largest in our Capital City in living memory. The entire process is tainted by fundamental irregularities, any one of which ought to be enough to stop the development.

Some of those irregularities at Invader’s Bay include an improper and voidable tendering process; failure or refusal to hold Public Consultations; breach of the Central Tenders’ Board (CTB) Act and most recently, a wrong-sided policy on legal advice.

The State has appealed the High Court decision of Justice Frank Seepersad on 14 July 2014 to order publication of the legal opinions on which they had been relying thus far.  That hearing is now set for Wednesday 28 January 2015 at the Appeal Court in POS. At the preliminary hearing on Thursday 20 November, the State was represented by a seven-member team of attorneys, led by Russell Martineau SC.

Tender rules

Procurement_NoticMinister Tewarie has repeatedly told the public that the Appraisal rules for the Invader’s Bay development were first announced in his speech to the Annual Dinner of the T&T Contractors’ Association on Saturday 5 November 2011. That is true, I was there and heard the Minister do just as he said.  The issue here is that the closing-date stipulated in the Invader’s Bay Request for Proposals (RFP) was 4 October 2011, which was over one month before the rules were published.  Given that fact, the proposers would not have known the rules of the competition and it is fair to say there was no competition at all.  None.  Just imagine the rules for a Calypso competition being distributed the week after the singers had performed.  The RFP process for Invader’s Bay was therefore improper, voidable and illegal.

The most disturbing aspect of this nonsense, is that it raises disturbing questions as to what is fast becoming a new normal in our society.  To my mind, there are two possibilities.

The first is that the Minister was simply unaware that he was describing improper and unlawful acts.  If that is the case, one has to wonder at the quality of advice available to our Cabinet.  Are we now to accept that this is the proper way to proceed?

The second possibility is that the Minister was properly-briefed that the late publication of those rules was improper and that the entire RFP process was therefore voidable, but chose to act as if the whole process was ‘above-board’.  That Minister continues to insist that there is nothing improper taking place at Invader’s Bay and so on.  I tell you. Continue reading “Invader’s Bay – Suspicious Motives”

Public Secrets?

It seems to me that we are entering a sustained and hard-fought Information War, global in extent, but with local flavour. The main features of this are the attempted redefinition of Privacy as a defunct notion, right alongside the State’s duty to know all about us, but tell us as little as possible of their own operations. That is the name of the game, so these issues are going to be challenged strongly as we go forward.

Dr. Bhoendradatt Tewarie
Sen. Dr. Bhoendradatt Tewarie, Minister of Planning & Sustainable Development

The High Court ruled on 14 July 2014 that the Minister of Planning & Sustainable Development must provide the legal advice which was said to have justified the development process at Invader’s Bay. This case was brought by the JCC after the Ministry refused to publish the legal advice obtained in response to our challenge that the Invader’s Bay development process was in breach of the Central Tenders’ Board Act. Given the repeated statements that the legal opinions supported the State’s actions in relation to the CTB Act, the obvious question is ‘Why the secrecy and refusal to publish those opinions?

The JCC requested the legal opinions and the letters of instructions under the Freedom of Information Act and the judge applied the ‘Public Interest Test’ in deciding that the public right to that information eclipsed the accepted point as to the existence of ‘legal professional privilege’. There have been many comments on what has been described as a landmark ruling and it appears that the question of just what is an official secret is once again up for discussion.

We are now being told that the right of the client to maintain the confidentiality of legal advice is now under threat, so the State is reportedly considering an appeal of that High Court ruling. Continue reading “Public Secrets?”