THIRD AFFIDAVIT OF TROY ALBURY

THIRD AFFIDAVIT OF TROY ALBURY

I, TROY ALBURY , of the Settlement of Guana Cay on the Island of Abaco one of the Islands of the Commonwealth of the Bahamas, make oath and say as follows, that:

I have sworn two previous Affidavits in these proceedings, dated 4 th April 2005 and 12 th May 2005. I swear this Affidavit in support of the Applicants’ application for an injunction and certain other relief as set out in the Summons dated 18 th January 2006 upon which the Applicants also rely. I further swear this Affidavit to update the Court on various developments in this action since the date of my earlier Affidavit. This Affidavit is also in support of the motion for relief herein.

The facts and matters stated by me in this Affidavit are either within my own knowledge and are true, or are known to me from the sources stated below and are believed by me to true for the reasons stated. There is now produced and shown to me marked exhibits “TA1 – TA 18” a bundle of documents to which I shall refer throughout the course of this affidavit.

Background

I have been closely involved in preparing and pursuing this action on behalf of the Applicants and therefore the present state of the action and the developments in the proceedings are within my own knowledge.

I am a land owner and a resident of Guana Cay. I live there with my wife and 2 children. I own a scuba, snorkelling and boating business called Dive Guana, located on the south shore of Guana Cay. I have operated it for almost 7 years. I operate daily dives and excursions to the reefs, beaches and other marine attractions around Guana Cay. Like many other residents and land owners in Guana Cay, such as fishermen, boaters, sailors, second home owners, bed and breakfasts, and tourist business owners, we rely on the cleanliness and beauty of the land and marine environment for our livelihood. It is also a matter of quality of life for us. It is part of our local culture and heritage that we live a simple, calm, quiet, crime-free life on a small island that has preserved its unique heritage, culture, environment and way of life by slow; sustained and almost imperceptible growth which has given prosperity and jobs to many of the residents of Guana Cay. There is virtually 100% employment on the island. The Development hereinafter described, threatens to completely change and disrupt the quality of life which we have all enjoyed and benefited from.

This action concerns a proposed development by Passerine at Abaco Holdings Ltd. and Passerine at Abaco Ltd (“the Developers”) of a major hotel, condominium, golf course and marina project at Guana Cay, Abaco (“the Development”). On or around 1 st March 2005 the Developers entered into a document entitled “Heads of Agreement” signed by the First Respondent purportedly on behalf of the Government of the Bahamas under which approval in principle for the Development was purportedly given and a number of rights and privileges purportedly granted to the Developers. These included an agreement to grant leases to the developers of certain Crown Lands which are controlled by the Second and Third Respondents.

The First Applicant is a company formed for the purpose of representing and protecting the interests of landowners and/or the residents of Guana Cay and those affected by the proposed Development, and protecting interests of the environment, our heritage, culture, quality of life and local rights. The full background to the company and its ownership structure is set out in the Affidavit of George Missick dated the 18 th day of January 2006.

The Second Applicant is Mr. Aubrey Clarke. He is a Bahamian and a resident of Guana Cay. He was born in Harbour Island on March 9, 1941. He has been a resident of Guana Cay for approximately 10 years. He has told me that he often went crabbing in the Bakers Bay area before it was closed off by the Developers and that he has fished in the surrounding waters off the northern point of Guana Cay where the Development is located. He resides at Front Street in Guana Cay. I have known Mr Clarke for 10 years, and can confirm that he resides at the stated address. Mr. Clarke has been a driving force from inception to the objections of the residents of Guana Cay to this Development. Leave was given to join the Second Applicant to these proceedings by the Court of Appeal by Order dated 23 rd November 2005 in circumstances which I shall set out more fully below.

The First Applicant brought judicial review proceedings challenging the Heads of Agreement and issued an application for Leave to bring the proceedings on 4 th April 2005. Although only named Respondents have been made parties to this action, the Developers have from an early stage been represented and produced evidence in these proceedings. They have made submissions through counsel at the hearings in the action. The Respondents and Developers have maintained a common position in resisting the proceedings. They Developers remain, however, a non-party.

Leave was originally granted by Issacs J on 5 April 2005 and the substantive hearing in the matter set down for trial commencing on 26 April 2005. However, shortly before the hearing on 26 April, the Respondents indicated that they would apply for an adjournment and the Developers sought to be joined. In response, the Appellant therefore indicated in submissions that if any adjournment was granted, it should be on terms that the Respondents should be enjoined from proceeding with the development under the Heads of Agreement in the meantime.

At the hearing on 26 April, Isaacs J granted an adjournment of the substantive application until 13 June 2005 and indicated that he would hear the Appellant’s application for injunctive relief on 4 May. In the event, the hearing of the application for injunctive relief was not effective on 4 May, but was adjourned until 18 May to allow evidence to be filed with respect to that application.

At the hearing on 18 May 2005 Isaacs J was asked by the Respondents and the Developers to address the issue of whether the Applicant had sufficient standing to bring these proceedings. The Respondents and Developers argued that the Applicant did not have locus standi, because it did not have any interest in the Development. On 18 May, Isaacs J heard the injunction application, and handed down his judgment on 26 May 2005.

In his Judgment of 26 May 2005 Isaacs J apparently accepted the submission put forward by the Developers and the Respondents that the Applicant had no locus standi and appears to have revoked the grant of leave to apply for judicial review on that basis, bringing the proceedings to a halt. He did not therefore address the issue of an injunction, the proceedings having come to a halt on the apparent basis that the Applicant had insufficient locus standi. The Applicant immediately sought to appeal the Judge’s ruling and issued a Notice of Appeal dated 31 st May 2005.

The appeal was heard by the Court of Appeal (the President, Ibrahim JA and Osadebay JA) on 22 nd and 23 rd November 2005. The Applicant was represented by its counsel, Mr Frederick Smith of Callenders & Co. The Respondents were represented by Mr Farqharson of the Attorney-General’s office. The Developers, who were also present and on whose behalf submissions were made, were represented by Mr. Barnett of Graham, Thompson & Co.

During the course of the hearing on 22 nd November 2005 a note of the hearing was taken by Mr George Missick of Callenders & Co., assisting Mr Smith. That Note is exhibited at “TA1”. I will make reference to the contents of that Note during the course of this Affidavit. Mr. Clarke and I were also present throughout the Court of Appeal proceedings except for the conclusion on November 23..

The decision of the Court of Appeal

As is apparent from the note of the proceedings before the Court of Appeal (and has been confirmed to me by Mr Smith) the Court of Appeal heard full submissions, both as to whether the grant of Leave should have been revoked, and whether an injunction should have been granted pending the final determination of the judicial review application, during the course of 22 nd November 2005. Before making any Order, the Court adjourned overnight to consider the matter and, in particular, the question of whether an injunction should be granted.

By letter dated 22 nd November 2005 Mr Barnett (as counsel for the Developers) wrote to Mr Smith offering a series of undertakings not to proceed with the development pending the hearing and determination of the substantive application for judicial review. This letter is exhibited at “TA2”. Mr Smith has confirmed to me that he received this letter and that it was received by him on the morning of 23 November , prior to the resumed hearing before the Court of Appeal.

The letter was placed before the Court of Appeal, which made its Order on 23 rd November 2005. A copy of the Order is exhibited at “TA3” The Court of Appeal overturned the Judgment of Isaacs J and restored the leave to apply for judicial review originally granted by the Judge.

In addition, the Court of Appeal made a number of supplementary orders. First, the Court accepted the undertakings contained in Mr Barnett’s letter of 22 nd November 2005. Second, the Court granted leave to join named landowners or residents of Guana Cay as applicants. This was in the hope that, in doing so, the question of locus standi could be avoided (since it is plain that a resident or landowner on Guana Cay has locus standi to bring the proceedings). The Second Applicant has been added as a party to the proceedings pursuant to that Order. Third, the matter was remitted to the Supreme Court to be heard on the merits before the 31 st January 2006, by a Court other than Isaacs J.

Attempts to fix a trial date

Immediately following the Court of Appeal’s Order, Callenders & Co. made telephone contact with the Supreme Court Registry in Freeport to arrange a date for the hearing of the substantive judicial review application prior to 31 st January 2005, as directed. I have spoken to Mrs Leslie Kincaid of Callenders & Co. who has confirmed that she made a number of telephone calls to seek to obtain such a date. She has further confirmed to me that an attempt was made to fix a hearing date before Mr Justice Carroll for the week of 23 rd to 31 st January 2006, but that regrettably it transpired that the Learned Judge was unable to accommodate the matter.

Mr Smith has informed me that on 12 th December 2005 he wrote to the Supreme Court Registrar in Freeport seeking a date prior to 31 st January 2006, and suggesting that a trial date during the week of 23 rd January would be suitable as this would allow time for interlocutory issues to be resolved before then. The office of the Attorney-General wrote to Mr Smith by letter dated 12 th December 2005 suggesting dates in the week of 23 rd January and also the 16 th – 18 th January. I am further informed by Mrs Kincaid that she telephoned the Supreme Court Registry a number of times to seek a response to the letter of 12 th December.

I am informed by Mr Smith that on 11 th January 2006 he received a response to his letter of 12 th December 2005 from the Freeport Supreme Court Registry. That letter stated that the Registry was unable to accede to the request for a trial date in the period 23 rd January to 31 st January 2006. It further stated that the earliest court date available that can be arranged is April 2006.

Mr Smith and Mrs Kincaid have also informed me that, in addition to attempting to obtain a trial date from the Freeport Registry, they have also sought to obtain a trial date from the Nassau registry. The Clerk in Mr. Smith’s Nassau Chambers, Ms. Darnell Curry, made a number of telephone calls to the Nassau registry, who informed her that they would not consider ascertaining whether a trial date was available before January 2006 unless and until the file was first transferred from Freeport to Nassau. I am informed by Mr. Smith that this is a time-consuming exercise. In addition, the file could not be transferred until it had been made clear by the Freeport registry that they were unable to provide a trial date prior to the end of January 2006. This was not confirmed until the letter of 11 th January 2006 from the Freeport Registry to which I have referred above. By this stage, it had become impossible to transfer the file to Nassau in order to obtain a trial date within the specified time.

Following the above correspondence, I have been informed by Mr George Missick of Mr Smith’s chambers that he was contacted by the Judge’s clerk in Freeport on January 17, 2006 and informed that the Judge had been able to make available one day to commence the hearing of this matter on 26 th January 2006. It is anticipated that the matter will be commenced on that day. However, the matter has a three to four day time estimate, and the matter will not be finished or determined prior to the end of January 2006. I understand from Mr Smith that it is intended to utilise the hearing on that day to resolve and determine the various interlocutory issues that have arisen in this case, and which I will refer to in more detail below. It appears, therefore, possible that the matter will not be finally heard and determined prior to perhaps April 2006.

The interlocutory issues

I have read a memorandum from Mr Smith to the attorneys for the Developers and the Respondents dated 5 th January 2006 and exhibited at “TA4” and which Mr Smith has informed me he sent on that date. As is clear from its terms, the memorandum seeks to resolve some of the interlocutory issues that remained outstanding following the Court of Appeal hearing. The issues addressed in the memorandum included the following:

(1) The joining of the Developers as parties to the proceedings. The first paragraph of Mr Smith’s memorandum recalls Mr Barnett’s having confirmed at the court of appeal that he would have his clients joined.

(2) Mr Smith also confirmed (in the third paragraph of the memorandum) that there was an additional “human” party to be added as plaintiff, for which leave had been given by the Court of Appeal. This was the Second Applicant.

(3) Mr Smith asked the Respondents and the Developers to make the deponents of certain Affidavits sworn on their behalves available for cross-examination at the trial.

(4) Mr Smith also indicated that he was continuing to make efforts to have the matter set down for trial before 31 st January 2006 but asked Mr Barnett if his clients, the Developers, would continue with their undertaking beyond that date if a trial could not be fixed before then.

(5) Mr Smith informed Mr Barnett, towards the end of the memorandum, that he had been informed by his clients that the Developers were breaching the undertaking, and indicated that he would be receiving details of this and would if necessary apply for an injunction if the undertaking was not being adhered to.

(6) Mr. Smith and Mr. Barnett had previously engaged in correspondence on November 30, 2005 in relation to allegations made at that time regarding a breach of the undertaking. The Developers denied any breach at that time. This correspondence and photographs from the Developers are exhibited at “TA5”.

(7) Finally, Mr Smith asked the Respondents and Developers to give discovery of any permits or approvals that had been obtained, or applied for, in relation to the Development.

Mr Barnett, on behalf of the Developers, replied to Mr. Smith’s memorandum by letter dated 9 th January 2006, which Mr Smith has confirmed to me was received by him. This letter is exhibited at “TA6 As can be seen from that letter, Mr Barnett made clear that the Developers would not consent to being joined as a party to the proceedings. Further, he refused to undertake to have the Developers’ deponents attend for cross examination. He also stated that the discovery requests were unwarranted and that they would be resisted. He denied that his clients were breaching their undertaking. Finally, he made clear that his clients would not continue with their undertaking after 31 st January 2006.

It is in part as a result of the position adopted by the Developers and communicated through Mr. Barnett’s letter that the Applicants have been forced to make the present application. I now turn to set out my evidence in relation to each of the different strands of the application.

The application to join the Developers as a party to the action

In his letter of 9 th January 2006 (exhibited at “TA6) Mr Barnett, on behalf of the Developers, made the following comment concerning the possibility of the Developers being joined as parties to the proceedings:

“The primary relief sought in the Originating Notice of Motion is a Declaration that the Heads of Agreement entered into between the Government of the Bahamas and my client be made null and void. No doubt it would have been appropriate for your clients to have joined the Developers as a party and to do so at your client’s risks as to costs.” [emphasis added]

To my own knowledge from my involvement in this case, and through knowledge I have acquired in discussion with Mr Smith, the reality is that the Developers have since the outset of these proceedings been acting as if they were a party to them. Thus, they have served evidence (in the form of two Affidavits of Joseph Arenson dated 2 nd and 3 rd May 2005, a director of the Developers). They have served extensive written submissions, both in the Supreme Court and before the Court of Appeal. They have been represented by counsel, who has made oral submissions on their behalf both before the Supreme Court and Court of Appeal. They have given an undertaking to the Court. The Developers have, in short, acted in exactly the manner of a party to these proceedings.

At present the Applicants are prejudiced in that, whilst they have availed themselves of all the benefits of being a party to the proceedings (serving evidence, making submissions), the Developers have faced none of the disadvantages of being such a party and, in particular, are not on the face of it exposed to any risk as to costs. It is this prejudice that the Applicants now seek to correct by seeking an Order that the Developers be added as a party.

The application for discovery

The Applicants seek discovery from the Developers concerning such permits, licenses and approvals as they have obtained from local and national government in relation to the Development.

As I have mentioned above, in his memorandum of 5 th January 2006 Mr Smith asked the Developers to confirm and produce whatever permits they had applied for or obtained. I am informed by Mr Smith, and I recall, that this request arose in the following way.

During the course of the hearing before the Court of Appeal the Court asked Mr Barnett during the course of his submissions whether the Developers had applied for or obtained any of the necessary permits or approvals. Mr Barnett replied stating that the Developers had obtained permission from BEST (the Bahamas Environment, Science and Technology Commission) and obtained some form of permit from the Ministry of Works. Mr Barnett did not mention any other approvals or permits having been obtained by the Developers in response to the Court of Appeal’s question. Mr Barnett also stated that these two permits had been obtained in the two weeks preceding the hearing before the Court of Appeal. The President of the Court of Appeal thereupon stated her surprise and dismay that such approvals had been considered and granted pending the determination of the appeal. The above events before the Court of Appeal are recorded in Mr Missick’s Note of the hearing (at page 29), and have been confirmed to me by Mr Smith.

During the course of the hearing before the Court of Appeal the issue arose as to whether the necessary permits had been obtained from the District Council in Abaco in relation to the Development. Indeed, the President made clear the importance of obtaining such permits for the Development to proceed. Following the hearing the Applicants made contact with Mr Walter Sweeting, the Chief Councillor of the Hope Town District Council from at least 2000 until June 2005. The Development is within the Hope Town District.

Mr Sweeting has sworn an Affidavit in this matter in which he sets out his involvement with this matter. The Affidavit was sworn on 26 th May 2005, the same day as the hearing before Isaacs J in which he revoked leave to pursue the judicial review application. The Applicants did not have the opportunity of filing the Affidavit before that hearing, but have subsequently filed it on 5 th January 2006.

In addition to swearing his Affidavit, Mr Sweeting has subsequently provided the Applicant with three letters he sent as Chief Councillor concerning the Development in April and May 2005. These letters are exhibited at “TA7”. It appears clear from those letters and from Mr Sweeting’s Affidavit that no permits had been issued by the District Council in respect of the Development. I have spoken to Mr Sweeting, who informs me that indeed no such permits had been issued by the time he left office in June 2005. In addition, to the best of my knowledge as a resident of Guana Cay, no further meetings on Guana Cay have taken place concerning the Development since the last one mentioned in Mr Sweeting’s Affidavit. I have also made enquiries of Mr. Wayne Hall, the current Chief Councillor and was told by him that no permits have been issued by the District Council to the Developers. I have also been told by Mr. Glen Laing, another Councillor, the elected representative for Guana Cay, that no permits have been considered or issued.

I therefore believe, to the best of my knowledge, that the District Council has issued no permits in respect of the Development to date. This accords with the statement made by Mr Barnett to the Court of Appeal, where he referred to only two approvals (from BEST and the Ministry of Works) having been obtained by the Developers.

I believe that the question of what permits have been issued in relation to the Development is highly pertinent to the action, as the Court of Appeal observed. In particular, if such permits have not been obtained then I am advised the continuation of the Development would be illegal.

The application for an injunction

The terms of the undertaking given by the Developers are set out, as mentioned above, in the letter of 22 nd November 2005. These terms were accepted by the Court of Appeal. The letter is exhibited at TA2 .

There is no specific reference to any time-scale for the continuation of the undertaking in the letter. The letter simply states that “the Developers are prepared to give an undertaking to the Plaintiffs pending the hearing and determination of the substantive application for judicial review herein upon the following terms” and then sets out what it is the Developers undertake not to do. It is the Applicants understanding that, on the wording of the undertaking, the undertaking remains in place until the hearing and determination of the substantive application for judicial review. I am informed by Mr Smith, and believe, that this was the basis on which he was prepared (on behalf of the Applicants) to accept the undertaking and not pursue the application for an injunction further before the Court of Appeal.

Two developments have taken place since the undertaking was given which have caused the Applicants concern in relation to the undertaking and lead to the present application for an injunction. First, the Developers have (through Mr Barnett, their counsel) indicated that they will not continue to abide by their undertaking after 31 st January 2006. As mentioned above, the undertaking contains no such time limit, but states clearly that it is given and will remain in place until the hearing and determination of the substantive application for judicial review. The Developers are, therefore, it appears threatening to breach their undertaking.

The second and more serious development is that to my knowledge and belief the Developers have in fact breached their undertaking since the date is was given and accepted by the Court of Appeal in November 2005. My belief in this respect is derived from the following evidence:

(1) There is an area used for storage of machinery and equipment on a parcel of land next to a property known as the “Old Figi Property”. At the date of the undertaking there was only a parcel of land cleared away. One week later, after the undertaking was given, a series of poles were erected around that parcel of land. A week after that a chain link fence had been constructed some 8 foot high and around 300 feet or more in length. On December 6, 2005, I took a photo of the work area which did not show any poles or fencing. Subsequently on December 13, 2005, I took further photos which showed the fence. These are exhibited at TA8 I believe that this is a breach of the undertaking “not to erect any further structures on the land.”

(2) Two weeks following the giving of the undertaking on November 22, 2005, I observed a number of tractors moving dirt and constructing a road next to the Old Figi Property. I took a photograph of myself holding a newspaper article about the work having been stopped following the Court of Appeal hearing, and showing the works in fact continuing in the background. The photos exhibited at TA9 show in one series, the newspaper in focus with the works out of focus and another series, show the works in focus with the newspaper out of focus as it proved impossible to focus on both items together. This work continued for over one and a half weeks after I took the photos. I believe that this is a breach of the undertaking not to construct or pave any further roads.

(3) Since the date of the undertaking I have on a number of occasions observed a number of surveyors, equipped with cutlasses, surveying the land for the Development. I believe that the surveyors use their cutlasses to remove trees and vegetation in order to carry out their surveying. I further believe that this is a breach of the undertaking not to cut tear down or remove any vegetation or trees. I also exhibit a series of photographs marked TA10 taken on January 10, 2006 which show people which I infer were surveyors because they appear to be using surveying equipment and they were planting survey posts, markers and signs indicating lot numbers. The Court will also note from the photos that the vegetation has been cut back and areas cleared for the purpose of delineating the lot numbers. The photographs also show piles of digging tools and posts which the Developers have continued to place on the property.

(4) I have observed an incinerator, set up by the Developers at the site, which has to my knowledge been in operation 24 hours a day since the date of the undertaking. I infer from this that vegetation and trees have been removed and that it is this that is being burnt.

(5) On January 10, 2006, I observed a large John Deere tractor towing a flatbed trailer loaded down with freshly cut brush going along the seaside toward where the burn pit area is located. I took a series of photographs. These are exhibited at “TA11”. I observed that these were freshly cut branches of trees because the leaves were green thus indicating to me that they were not simply debris which had been picked up as a result of being cut down before November 22, 2005.

On December 6, 2005, which was two weeks after the date of the undertaking, I observed that work was continuing at the burning pit site. It appears that the Developers had placed a forced air ventilation machine over a pit in order to speed up the combustion of the material being burnt. Trees and shrubs were still burning at that time. I exhibit hereto a photo taken on December 6, 2005 showing the forced air ventilation machine. On January 10, 2006, I took a further series of photographs which show the same area where the fire pit is located, continuing to burn. The Court can observe the smoke coming from the burning pit. This is approximately 6 weeks after the undertaking and there is still material being burnt. These photographs are exhibited at TA12.

(7)On December 6, 2005, I took photographs from the boat of a three storey blue green building left from the Disney development. I took another photo on January 10, 2006 of the same area and I invite the Court to note that the building is no longer there. It was demolished and the remains shipped to Marsh Harbour on different occasions. These photographs are exhibited at TA13.

(8)I also refer to photographs showing the creation of a large pile of mulch which was not previously there. The Developers are continuing to mulch trees. No doubt the Developers will say that the mulch results from trees cut down before the undertaking was given. I say that they ought not to have been cutting down trees in the first place without permits. These photographs are exhibited at “TA14”.

On January 10, 2006, I took a photograph of the location where the old Disney buildings were located. I am familiar with the old Disney site as my family and I and many of the residents from Guana Cay have used the beach in that area and played around the site for picnics. The Developers have built a small building on that location. I have circled the new building on the photos. This photo is exhibited as “TA15”

(10) On January 10, 2006 I took a photo of a road which has been widened since November 22, 2005. This was previously a trail that led from one side of the island to another and was a mere 2 feet wide. It has now been widened and the brush is piled up on one side making it passable for a vehicle about 12 feet wide. I should also mention that this pathway led from the bay side to the ocean side of the Development site and has been used for many, many years by the residents of Guana Cay including myself, so that residents could anchor their boats on the south side of Abaco when the ocean was too rough on the north side thereby accessing the ocean from the bayside. These photographs are exhibited at TA16.

My family, and many other residents of Guana Cay, have, since the establishment of fences and barriers along the perimeter of the property, been prevented entry thereto and also because there are security officers patrolling the perimeters we have been periodically refused entry and have been unable even to walk along the coastline to access the beaches, traditional crabbing grounds and other areas where we have crabbed, picked fruits such as coca plum and seagrapes and otherwise used the areas both below and above high water mark traditionally.

The Developers have also placed a buoy line along the length of the beach where they have also built what appear to be almost permanent tent-like structures. These buoy lines have prevented many residents, who have traditionally accessed those public beach areas by boat, from accessing them. It appears that the Developers are doing everything which they can, not only to prevent access to what may be their perceived property, but also to Treasury Land, Crown Land and beaches to which we have always traditionally had access.

As I stated earlier, the Developers have also constructed approximately 7 tent-like structures which appear to be almost permanent in nature. Observing from a boat, near the beach, it appeared to me that these facilities are used as offices, meeting rooms, cafeterias, toilet facilities and otherwise generally for the Developers, their employees, workmen and guests. In addition, on a daily basis, 2 or 3 ferries ply between Treasure Cay and Marsh Harbour and the Developers site. It is in those ferries daily that I see around 100 workers being transported to and from the site.

Last night, January 17, 2006, I attended a “Friends of the Environment” meeting at Man-o-War Cay another cay near to Guana Cay. At the meeting, there were many fishermen and residents of Man-o-War Cay. A number of them protested and complained that they have been denied access to traditional crabbing grounds in the development site. Since the Development has begun, they have periodically attempted to land on the beach and/or to walk inland in order to access the crabbing area. The crabbing area is located in that part of the Development which comprises, for the most part, Crown Land and/or Treasury Land. Even though this land does not belong to the Developers, they have posted security guards which patrol the area and those guards do not allow them to enter the property. As with the people from Man-o-War Cay, many of the residents of Guana Cay have likewise been denied access.

I should emphasize that it has otherwise proved extremely difficult to observe the site of the Development since the date of the undertaking. This is because security guards are posted around the site, who have not allowed access to the site. I have however, in addition to the above specific breaches, observed cranes on the site operating continuously since the date of the injunction and heard the noise of tractors and other equipment from the site since that date. I have also observed that around 100 workers have been shipped to the site each day since the date of the undertaking from Marsh Harbour. I infer from this that there is considerable activity still going on at the site, notwithstanding the undertaking.

The Applicants, at this time, have chosen not to bring contempt proceedings in respect of the above breaches of the undertaking at this stage. However, the Applicants believe that unless restrained by an injunction the Developers will simply ignore their undertaking in the future, causing irreparable harm should the judicial review application succeed.

Before the undertaking was given considerable works had been undertaken at the site of the Development. I have observed from my visits to the perimeter of the site that roads have been cut throughout the site and land prepared for the construction of buildings on the site. As part of this process, vegetation has been chopped down and removed, including substantial numbers of trees and other shrubs. It is evident that the use of the land has changed. From my experience having visited and observed the area prior to the development commencing, it is clear that the site was used as open land and was undeveloped. Now is evident that the land is being used to develop a major tourist and residential complex as envisaged in the Heads of Agreement. I refer the Court to the 3 photographs exhibited at TA5 which show that, despite no permits from the District Council, extensive roadworks, burning, clearing and other works have been conducted by the Developers’ own admission up to November 18, 2005.

On or about January 13, 2006, I observed Mr. Carter Redd, the General Manager of the Developers, driving an unlicensed vehicle through Guana Cay. It was marked Bakers Bay Cart No. 10. I took photos at the time and I have made a written formal complaint to the Police. These photographs are exhibited at TA17. As a resident of Guana Cay, I am required by law to obtain a road traffic license plate, inspection and insurance to drive my vehicle in Guana Cay. I infer from this observation that the Developers do not appear to consider that the Road Traffic Laws apply to them. I have also observed many other vehicles driven by different staff members of the Developers driving through Guana Cay. None of those vehicles have Road Traffic plates on the vehicles. As a resident of Guana Cay I am anxious about vehicles being driven without proper registration, inspection, and insurance because an accident may occur, for instance, with a child and there may be no insurance coverage to provide for medical or personal injury claims. Indeed, on New Years Eve an employee at Bakers Bay had an accident which resulted in property damage to a business on Front Street and the driver left the scene of the accident.

I exhibit at TA18 a series of photographs which were taken on November 17 and 18, 2005 which show extensive works being conducted by the Developers without permission up to that time. It shows extensive destruction and removal of trees and brush along the shoreline and the planting of survey markers. It shows mulching and destruction of trees, vegetation and work being conduced by barges.

As stated I believe that no permits have been obtained by the Developers from the District Council in respect of the Development, and that (irrespective of the possible breach of the undertaking) any continuing works at the site would be illegal in the absence of such a permit.

Further, by letter dated January 11, 2006, the Office of the Attorney General wrote to Mr. Smith on behalf of the 1 st to 3 rd Respondents refusing to produce their affiants for cross examination and refusing to make discovery. The letter is exhibited at TA19. Further, no undertaking has been offered by the 1st to 3 rd Respondents not to put into effect the terms of the Heads of Agreement pending the determination of this matter.

In the premises, I invite the Court to grant the relief sought by the Motion and to grant the injunction and other interlocutory relief sought.

SWORN TO at Freeport, Grand Bahama )

This day of January, 2006 )_________________________

Before me,

Notary Public