Outspoken Queen's Counsel Fred Smith yesterday welcomed "very constructive" progress in the ongoing legal disputes surrounding the government's consultations over proposed changes to the Hawksbill Creek Agreement (HCA), stating that the government could cut a "consultative Gordian Knot" by releasing the long-awaited McKinsey Report.
Attorneys representing the government and appellants Smith and Carey Leonard appeared before Justices Anita Allen, Jon Isaacs and Stella Crane-Scott on Wednesday over Smith and Leonard's injunction appeal seeking to restrain Prime Minister Perry Christie and Minister for Grand Bahama Dr. Michael Darville from making any decisions on Freeport's economic future based upon the findings of the Hawksbill Creek Agreement Review Committee (HCARC).
Dawson Malone represented Smith and Leonard, while Loren Klein served as Crown respondent. The court asked whether the government was prepared to disclose the findings of the report by consultancy McKinsey & Co., which is believed to be a driving force behind the government's planned economic reforms for Freeport. Klein stated that he would make recommendations to the government before providing the court with the government's decision this week.
Smith told Guardian Business that he and co-appellant Leonard could avoid further "interlocutory skirmishes" with the government in its application for judicial review over the government's HCA consultation process, if the government decides to release the report next week.
"The Court of Appeal appeared to get right down to the meat of the situation and identify that the whole case was really about getting a copy of the McKinsey Report... And so we remain keen for the report to be published.
"It would be very helpful to everybody concerned to cut through this consultative Gordian Knot and get right down to the essence of this, and that is to have a new consultative process embarked upon by the government, taking into account people's views after they have had an opportunity to consider all of the information that the committee and the government had," Smith stated.
The overarching judicial review application stems from the Christie administration's consultations over potential amendments to the tax concessions and incentives offered to Freeport licensees under the HCA. Smith and Leonard have insisted that public disclosure of the McKinsey reform is necessary for proper consultation.
"If we're to have a sensitive, constructive and meaningful discussion about tax issues in Freeport, the first thing is that the government must disclose what taxes it has earned, from what sources and over what period. The clock is ticking on this. The licensees and other stakeholders of Freeport are understandably anxious about their future," Smith said.
In September, Justice Petra Hanna-Weekes rejected the pair's initial injunction application ahead of Smith and Leonard's larger judicial review application. Justice Hanna-Weekes later recused herself from the judicial review matter over her past affiliation with Graham Thompson, the firm representing the Grand Bahama Port Authority in the judicial review action. Smith said yesterday that he hoped a new justice would be assigned by new week. The Court of Appeal is expected to hear the government's decision on whether it will disclose the report on November 19.
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