Local businessman and economist John Hartley will have to pay out close to $15million after a Florida court handed down a judgment against him on Wednesday September 12th, 2012.
The judgment, which was handed down in the United States District Court Southern District of Florida by judge James Cohn, was brought by multi-millionaire Edward Burger as trustee of the 2009 Hubbard Family and some other investors, as a result of Hartley’s involvement in a scam in which he and some of his friends were sued for selling elite shares in an electric-car company that they didn’t actually own.
The businessman and investors sued Hartley under Section 10(b) of the Securities and Exchange Act to recover substantial damages from Hartley related to $4.525 million which they invested to acquire shares in a company called Praetorian and/or G. Power, based on false representations that such interests would provide indirect ownership of Series A Preferred shares in Fisker Automotive Inc.
After making the investment, the businessmen never received the closing documents reflecting their shares in Praetorian. According to a copy of the court judgment which was obtained by The SUN, the complaint alleges that Mr. Hartley was a founding partner and member of Praetorian Fund, and that along with other defendants
Mattera, van Siclen, G. Power, and Praetorian Fund, “caused various documents to be prepared to promote the sale of shares in the LLC entity which would own the Fisker shares.”
The investors allege that a Private Placement Memorandum and subscription documents provided to them prior to their investments “represented that G. Power already owned $20 million in shares of Fisker.” They contend that as a director of Defendant Praetorian Fund, Mr.Hartley made misrepresentations contained in these documents and he participated in the scheme to deceive them.
Furthermore, the Amended Complaint contends that in early January 2011, Mr. Hartley and van Siclen met with a trustee of the Plaintiff 2009 Hubbard Family Trust, and discussed the investment, representing what a great investment it was. The investors allege that Mr. Hartley continued to cover up the fact that G. Power did not own any shares in Fisker.
Mr. Hartley opposed the Motion for Summary Judgment and has cross-moved to dismiss the Amended Complaint. However, the judge stressed that the undisputed facts before the Court establish that Mr. Hartley, in conjunction with Mattera and van Siclen, conspired to solicit investors to invest in various G. Power entities to capitalize The Praetorian Global Fund.
The judge said: “The uncontroverted testimony of van Siclen is that Mr. Hartley participated in the drafting of the Private Placement Memorandum and subscription documents that were provided to the Plaintiffs which contained the false statements regarding the Fisker shares. Mr. Hartley, along with van Siclen, personally met with a representative of the Plaintiff 2009 Hubbard Family Trust in January 2011, a meeting wherein Mr. Hartley affirmed his partnership with van Siclen and Mattera, promoted
what a great investment it was, and represented that the closing had yet to take place.
Mr. Hartley also responded to email inquiries from the Plaintiffs regarding the status of the closings. Thus, the Court finds that Plaintiffs have established the existence of a conspiracy amongst the Defendants and that Mr. Hartley may be held jointly and severally liable for the actions of the Defendants.”
The judge said he agrees with the investors that they have established Mr. Hartley’s liability for his own fraudulent misrepresentations, adding that the undisputed record before the Court reflects that Mr. Hartley participated in drafting the Private Placement Memorandum and other subscription documents which misrepresented that G. Power II already owned $20 million Fisker Shares, when it did not in fact own any shares.
The judge continued: “In his Motion to Dismiss, Mr. Hartley ignores that Plaintiffs, in part, base their fraud claims on his own conduct. In an attempt to minimize his own actions, Mr. Hartley argues that he cannot be held liable based on the January 2011 dinner because “it took place, at its highest, in a social context, and at its lowest, in a haze of alcohol.”
The judge also noted that even if the allegations of the Amended Complaint are insufficient to establish that Mr. Hartley himself operated a business or himself caused tortious conduct within Florida, the Court still has personal jurisdiction over him based on Plaintiffs’ well-plead allegations that he participated in a conspiracy with other defendants who did commit tortious acts within Florida.
“Even if the Court does not have personal jurisdiction over Mr. Hartley via the Florida Long Arm Statute, the Court still has personal jurisdiction by virtue of Federal Rule of Civil Procedure 4(k)(2). Mr. Hartley is also alleged to have been a founding partner and director of Defendant Praetorian Fund. Id. After at least one Plaintiff wired funds to the escrow agent, located in Florida, Mr. Hartley, along with van Siclen, is alleged to have met with a co-trustee of the 2009 Hubbard Family Trust wherein he emphasized what a wonderful investment it was. Mr. Hartley is also alleged to have made repeated representations to the Plaintiffs that the
Fisker shares were owned by G. Power. Id. These specific allegations coupled with the allegations of conspiracy regarding Mr. Hartley and the other Defendants is sufficient for the Court to conclude that Mr. Hartley has sufficient minimum contacts with the United States as a whole to justify personal jurisdiction.
Accordingly, the Court rejects any assertion by Mr. Hartley that the Court is without jurisdiction over him. Accordingly, the court finds that Mr. Hartley has failed to demonstrate good cause to have the admissions withdrawn or amended pursuant to Federal Rule of Civil Procedure.”
Ironically, Hartley is one of the directors of the Conch Farm who are trying to sue the Turks and Caicos Islands Government for US$50million. His wife Monique Allen, is the lawyer who filed the case against TCIG.
By Hayden Boyce: Publisher & Editor-in-Chief ,SUN TCI
Prominent businessman and Queen’s Counsel Clive Stanbrook is spearheading a team of businesspersons from the Turks and Caicos Islands who are sending a “clear warning” to Britain’s Finance Minister George Osborne that the imposition of a Valued Added Tax (VAT) would be inappropriate and undesirable in this British Overseas Territory.
In a press statement issued from London on behalf of the newly-formed Turks and Caicos Independent Business Council (TCIBC), Stanbrook, who is the group’s chairman, stated: “We are sending a clear message to the British Government. It is the view of virtually the entire business community in the Turks and Caicos that a VAT tax is inappropriate, costly, cumbersome and unnecessary at this stage in the development of these Islands. In the short term it is clear that the existing taxation systems can be relied upon to raise such extra revenue as may be needed. ”
The press release said that the British Government “has a major battle on its hands over the proposed implementation of VAT in The Turks and Caicos islands”, following the formation of TCIBC by a broad group of concerned individuals from all sectors of the economy and business community throughout the TCI.
Stanbrook, is the owner of IGA Graceway, the largest supermarket chain in the Turks and Caicos Islands, and a former partner in the prestigious law firms Misick and Stanbrook. An anti-VAT online petition, (www.ipetitions.com/petition/just-say-no-to-vat) was started on May 29, 2012. Its first signatory was a Fleur Stanbrook, the name of one of Stanbrook’s daughters.
Meantime, the press release quoted a TCIBC spokesman as saying: “We have a common purpose in that we are all unified in our opposition to the introduction of VAT in the Turks and Caicos Islands. We send a clear warning to Chancellor George Osborne that we represent the interests of all the leading businesses in the country and indeed it can be said that our views are representative of virtually every business concern. We are deeply concerned about the expected negative effects of the hasty introduction of VAT into the island’s tax structure. As business professionals we do not have a problem with taxation and recognize the need to fund government.”
The TCIBC said it has a major problem with this particular type of tax and its inappropriate nature for the Turks and Caicos Islands and its unique economy at this time and at this specific point in its young development.
“We believe that the recent gains in economic sustainability will be lost with the imposition of this “boiler plate”, cookie cutter, tax system,” the TCIBC added. “This new VAT tax is not driven by a “grass roots” initiative, but is a politically driven tax imposed upon us by distant bureaucrats based in Europe without effective due process and regard to our specific economy and its future development. One size does not fit all. It is our intention to continue the debate on VAT through wider public education and dissemination of information and to oppose and resist its introduction through whatever legal mechanisms are open to us. This will include public consultations and education through the press, TV and radio.”
The TCIBC noted that this task has already begun with over 3000 people having already signed an on-line petition opposing VAT, adding that many more are joining us daily.
“This is not a done deal as many think. No government or administration can impose any policy upon a community if that community refuses to accept the policy,” the TCIB added.
Discussion on the implementation of Value Added Tax (VAT) in the Turks and Caicos Islands has reached the House of Commons in England.
On June 18th, MP Andrew Rosindell asked the Secretary of State for Foreign and Commonwealth Affairs what is his policy on the introduction of VAT in the Turks and Caicos Islands; and if he will make a statement.
Mr Henry Bellingham, who was recently in the Turks and Caicos Islands to announce that elections will be on November 9th, 2012, replied: “The introduction of VAT is a decision for the Turks and Caicos Islands Government. Their decision was based on thorough research and an assessment that VAT would offer a simpler, equitable and stable revenue source. A decision to introduce VAT was announced in the 2011-12 budget statement. A Green Paper on VAT implementation was published in May and consultation is under way on this.”
Chief Financial Officer Hugh McGarel-Groves in response to a local anti-VAT campaign, said last week that introducing VAT in the Turks and Caicos Islands offers the opportunity to further strengthen the country’s fragile recovery by introducing a simpler, equitable and stable source of Government revenue.
He said: “As the community of the TCI continues to discuss the implementation of VAT, critical questions must continue to be asked of both of the Government but also of the anti-VAT campaigners: what are their alternatives to the benefits of VAT to a renewed TCI; is opposition to VAT borne from a desire to continue not to pay tax at all in some business sectors?
“Given the difficulties endured by the TCI economy since the collapse of the last Government, it is in the best interests of the entire community to ensure that Government finances are secure and that it can continue to develop expenditure plans in line with local peoples’ priorities – a process already begun in this year’s Budget. VAT is a proven system across the Caribbean. It is straightforward to administer and is beneficial here in that this single form of taxation replaces five different sets of ordinances that both Government and business need to keep abreast of.”
They are a lot of discussions regarding recovery of Joe Grant first through SIPT in Turks and Caicos Islands 6 months ago and now the statement of Governor Todd,that through recovery of Joe Grant they will cover the UK Loan about 200,0 MIO USD???
Nobody would like to wait the court decisions.
Is it possible to cover the SIPT costs and fundings through recovery of Joe Grant?Is it true or is it only a story to get the people of TCI calm about the costs and fundings of SIPT?
Or is it an international Scandal?
This Cay is one of the less known cays, and its story came up to the attention of the TCIlanders because of bribe allegations in Turks and Caicos. Dr Kinay, What is Joe Grant Cay?
Joe Grant’s Cay is a beautiful but remote, uninhabited 712 acres cay located in a remote section of the archipelago between Middle Caicos and Easy Caicos. It is accessible only by sea. The last time I took a boat to visit it, it took me 2 hours from Providenciales to get there. This Cay has no dock, no road, no electricity, no water neither any form of other infrastructure. It is inhabited like East Caicos. The cay is composed mainly of consolidated rock with the ocean frontages consisting of either sand or “iron shore”. The elevation is low and the shallow water depths at some parts of the island for do not allow visitors to access other areas. These difficulties do not discourage us, as at the end, when properly developed, this Cay is a beauty.
We have bought 200 Acres of this island on June 20, 2008 from the Crown through a transfer of title executed by the former Governor., Hon Richard Tauwaree and 5 months later on November 7, 2008, the former Governor, Hon. Whetherell has executed a Development Agreement with us for the development of the whole island.
What was the role of you in this project?
When I first came to Turks and Caicos Islands in 2005, I had already my development company O Property Collection in Austria. This company is where I, and my partner Oguz Serim offer our development advice to projects. O Property Collection has, from the first days of this project, ,is acting as “developer” bringing its expertise, in construction, sales, marketing. The center of any development is people. Community is very important. My company’s vision is to create design driven projects. God has already placed a beautiful design for Dellis Cay and Joe Grant Cay, it is now up to us, with respect, to treat these beauties with the best architecture and standards there is.
What do you want to develop on this island Joe Grant?
We wanted to develop the island with an environmentally friendly small Hotel and then Homes in the natural surroundings. We have retained top environmental engineers from Florida, and we started immediately the process of Environment Impact Assessment. We designed our project with a high-class architect from italy, and have signed a brand and management Indent with a very famous brand. The most important consideration though is that this will be a low density and green development.
When you first heard of Joe Grant Cay? How did you get involved?
I first got interested in Joe Grant Cay In December 2006 when I was informed that negotiations with some developers for a proposed project on Joe Grant’s Cay had run into difficulties and I was asked whether I could be interested to take this development further. The Government already had a price for sale on the Cay, US$5 million according to a formal offer that the former Government had placed before the previous developers in November 2006. My initial views for the Cay was that it was a remote location, no infrastructure and it involved Crown Land, and that meant the need of a Belonger Partner. I was not familiar with this process as my first investment Dellis Cay, is a private transaction and does not involve any Crown Land.
Did you know any of the previous developers?
I understand from the discussions in the past years that there were a number of developers who wanted to take this Cay prior to my involvement in early 2007. I do not know and have never done any business with the gentleman named at the discussions at the Commission of Inquiry,. whether in relation to Joe Grant’s Cay or otherwise.
Who is you local/belonger partner by Joe Grant?
I was already heavily engaged in our Dellis Cay project, and having regard to the Crown land policy (of which I was then aware), I thought it sensible to have a belonger partner in the development. In that respect, a company called Oceanic Development Ltd owned by Don Gardiner became my partner. I respected Don very much whom I already knew socially. As you may recall he was the President of the Turks and Caicos Islands Tourism Board. I understood that Don was involved in the development prospects of Joe Grant Cay with the previous developers so he was very familiar with it. We have executed a Joint Venture Agreement with Don’s company in January 2007, and became partners in a company called Caicos Platinum Ltd, a company that was the recipient of the first formal offer of US$5 million from the Government back in November 2006.
When did you buy Joe Grant Cay?
See, that has never happened. We did not buy Joe Grant Cay. We bought the freehold of the 200 acres of Joe Grant Cay, and the rest (512 acres) is provided to us by a Conditional Purchase Lease through a development Agreement. I am not sure whether you followed it, but this island was first offered at US$5 million to Caicos Platinum Ltd, when that company was owned by previous developers. Then, 200 Acres of it (approximately 30%) was offered to us at $2 million in early June 2008, by the decision of Cabinet, led by His Excellency the Governor Richard Tauwaree. At the specific instance of the Government (and with some reluctance on our part given the risk to which we were thus being exposed in advance of the conclusion of a development agreement), we were asked to close the purchase of the 200 acres hotel parcel on an urgent basis, apparently because of very low cash flow issues at Government level. Having agreed to do so, the Governor again changed its mind, obtained a new valuation by a third-party QS and informed us on June 19th, 2008 that the price of the hotel parcel had been increased to $3.2 million. We paid that price for 200 Acres and bought a portion of Joe Grant Cay on June 20th, 2008 on de day of Groundbreaking ceremonies of Dellis Cay.Governor Hon. Tauwaree came in the afternoon to this ceremonies,was very happy,that Joe Grant deal was finally closed after 1,5 years of negotiations.He congratulated me on the day,the funds of the transaction was in the account of government.
What about the Development Agreement?
You know, it took us almost 2 years from the first discussions, but 5 months after our acquisition of the 200 Acre parcel, in November 2008 to get a Development Agreement. I am not sure whether you re know but The Governor executes all major agreements on behalf of the Government. So, Governor HE Gordon Wetherell, and our CEO, Director, Michel Neutelings have met for the execution of the Development Agreement.
Dr, Is there anything special in the Agreement?
All development agreements in Turks and Caicos Islands, usually have more or less the same provisions. However, we have an additional obligation on our part to pay 15% on the gross amount on the sale of villa lots in the development to the Crown. I am not privy to all development agreements in TCI but I am not personally aware of any other development agreement which contains an obligation of that nature. From the standpoint of the public, it is clear that if my partners and I make a major investment on Joe Grant’s Cay such that the price which a buyer might pay for a villa lot is greatly enhanced, the Government receives a corresponding benefit without any of the business risks undertaken by the developer. Joe Grant Cay was going to be a new source of income for the TCI Government and TCI islanders. This remote and inhabited island was going to be the home for a new hospitality project providing new jobs and opportunities for everyone. I would imagine that most of the ex Middle Caicos residents would returned to their home from their present endeavors in Providenciales. In summary, this project had a very important social aspect. I have on many occasions discussed these aspects with both Honorable Governors Tauwahare and Whetherel.
There were discussions about the valuation? What you have to say on it?
Look, I am a developer, a businessmen. I got interested in this deal as the 712 Acres was available at US$5 million to a number of developers who apparently did not perform. I wanted to buy at this price. At the end, I have negotiated more than 18 months to get 30% of this cay at US$3.2 million. I took a significant risk by paying that price and closing that purchase without having a signed development agreement with TCIG, with no guarantee that we could carry out our development plan or acquire the rest of the Cay. I trusted to Governor Hon.Tauwahare and later on to Governor Hon.Whetherel.
Now coming to the valuations, I understand from the Inquiry that under the leadership of the HE Governor Tauwaree himself, the Cabinet has sought a number of conflicting valuations both from their own valuation department and from a private commercial appraiser on June 2008. They have as the Cabinet, together with HE the Governor, have decided to take the valuation of the commercial appraiser as it reflected the market value.
Now, the question is why did they not picked the high value but the low value?
My answer is that the valuation of the land is obviously a matter for the Crown and for experts in that field. That is why I have hired some of the leading experts in this field to assist me. What they say is simple: the Valuation officer has attempted to value this property by direct comparison to couple at Ambergris Cay, and sale listings from marketing brochures (and not actual transactions) at North Caicos Marina and Middle Caicos. I am told that those comparable do not come near being appropriate for the purposes of valuing Joe Grant Cay.
At Ambergris Cay, for example, lot sizes of between 0.32 – 1.85 acres each are compared to our project of 700 acres. In addition, Ambergris Cay forms part of an established luxury brand, and considerable expenditure has been undertaken on the extensive infrastructure. I do not know if you know but Ambergis Cay has all its utilities underground, electricity and water, It is the only island in this country which has an underground sewer system. Everything is self-generated on the island, water making, the treatment of the sewer system. It has even an uncompleted marina that is not completed but obviously a port facility) including the inclusion of the biggest private runway (6,000 feet) in the Caribbean. Overall Ambergis Cay it is a self-sufficient island that has all of the amenities and can function, unlike North and Middle Caicos which has to have power on the sea cable from Providenciales. North Caicos Yacht Club is also a developed property, so no parallels to undeveloped land neither. We also understand that the value r has used “sales brochure prices” in 2008. The Middle Caicos comparative is based on a sales listing as well, which was withdrawn from the market after 22 months listing period and not sold.
Now, that is what experts say. These will all come out soon. Now if you ask me what I personally think. To me, the real valuation is what I paid. Our company paid US$18 million to Dellis Cay, a 500 acres island, of which 200 Acre is private land. Dellis Cay is only 20 minutes from Leeward Highway, it had PPC Electricity cable in it, for plenty of electricity, and it is next to world-renowned Parrot Cay. I think that we have paid for the 200 Acres at Joe Grant Cay reflects the fair market price at its present state and that is “undeveloped” land at a remote location for commercial use. That is what it is.
Later on, we have asked both local and international professional valuation firms to conduct a fgull analysis and report an official valuation of this island. All these reports have confirmed the value that we have paid to Joe Grant Cay’s 200 acres and the lease agreements that we have entered with the TCI Government. In any case, after the World Economical Crisis starting in November 2008 and onwards land values have significantly eroded all around the world and especially the Caribbean.
But Dr Kinay what is the benefit of this Project to the TCIslanders? What do they get?
Look,the government did not simply sell a piece of land, they entered into a development agreement for the development of that land. If I can not develop it on time, and spend the money that the Government wants me to spend on it, than they will get back. It is in the Agreement. It is ours as long as we spend money on it. You know how much? My Development Agreement says I need to spend US$120 million on this cay in a fixed period of time. We estimated that the construction will take 2 years and create at least 150 new local jobs. Once the island is fully operational it will require at least 70 locals to manage it. As I have already mentioned, in addition to the purchase price of the land of the hotel site, we will pay 15% of our Villa sales on the 300 Acre Villa Lots and this goes straight to the Government’s budget. Not to mention, the usual development agreement obligations such as the Annual Scholarship payments, duties, work permit fees, the rents paid under the leases, stamp duty benefits accruing to TCIG arising out of sales in the development and the boost to the tourism economy of TCI.
Dr Kinay, you lost a court case concerning Joe Grant Cay June 2011? What will happen now?
I received the Turks and Caicos Islands Court’s judgment in June 2011 concerning Joe Grant Cay. I also received TCIG’s Press Release from July 2011. The judgement is grossly unfair and Joe Grant Cay development companies are currently appealing it. I could not afford lawyers as Turks and Caicos Islands Courts have frozen all my worldwide assets not allowing me to spend any funds towards my right to defend myself and my companies. Looking at the Judgment, in essence, His Hon. Justice G W Martin has concluded in connection with the political donation of $500,000 made by Dellis Cay’s parent company Turks Development LP (the Court states the donation was from ‘Dr Kinay’) to Michael Misick on 9 January 2007, the Judge found (paragraph 33) “there to be a very strong probability that the money was paid as a bribe in order to ensure that the Defendant companies obtained the benefit of the proposed development” disregarding the facts that the Defendant companies did not even exist at that time, and that the donation was made by Turks Development LP, a company developing Dellis Cay, not related in any way to Joe Grant Cay . His Hon Judge further observed (paragraph 41): “I emphasise that this judgment should not be treated as a conclusive finding that any individual has acted corruptly. Nobody should be declared corrupt if he has not had the opportunity to defend himself at trial, and that has not happened in this case.’ These statements did not make the Judgment just and fair, the basic principle of law.
On the matter of Joe Grant Cay’s valuation, His Hon Justice completely ignored the Government’s valuation report obtained from BCQS, an independent commercial appraiser who valued 200 acres of Joe Grant Cay, at USD 3.2 million for commercial use, exactly the amount of money asked by the Government in June 2008, which the development companies have paid in full. His Hon Judge ruled (Para 36, The Judgement) ‘When instructing BCQS to give an alternative valuation, McAllister Hanchell did not tell them of the proposed development, so that their valuation made no allowance for the intended use of the land.’. The Learned Chief Justice has failed to recognize that BCQS valuation report specifically stated on Page 7 Item 3.5 ‘It is assumed that planning permission is available for the subdivision of the land for residential plots or for a commercial use.’ By ignoring BCQS’s clear statement specifying that Joe Grant Cay valuation report is prepared for “commercial use”, The Hon. Chief Justice presented an unbalanced approach for the benefit of the Plaintiff. The Court’s omission of BCQS’s written representations in their valuation report is not something that I can live with and we will be pursuing the reasons for this material error.
First, the Commission of Inquiry’s publication of unredacted Final Report despite the TCI Supreme Court’s Order not to publish the unredacted Final Report cost Dellis Cay its business and caused the funders to pull their finances, now Joe Grant Cay Development companies are striped of their rightfully obtained assets.
It is clear to me that there is a set political agenda which is geared to restructure the political landscape at the Turks and Caicos Islands and we are chosen as the main victims.
I repeat categorically that I reject all accusations, and state that we are innocent
For those who doubt that the Development of Joe Grant Cay is not innocent, I have only one question:
Had the alleged privileges, favors or better conditions been present in the acquisition of 200 acres of this island, or in the Development Agreement, why both Hon. Governor Tauwhare, and the present Hon. Governor Whetherell would have executed these on behalf of the Crown?
Both Hon Governors are experienced public officials, with history of making land transactions, and executing Development Agreements on behalf of the Crown. Why did they approve these transactions if the preferential treatment was all over the documents that they have signed?
All these contracts, and 200 acres land sale were approved by the Attorney General, TCI Invest, Ministers, the Premier, and executed by 2 Hon. Governors. The Government and both Hon. Governors had 2 years to conduct due diligence. Do you really believe that they were all ‘deceived’? and did not know what they were selling? That is the real question the Turks and Caicos Public must ask.
I have faith in the law, and I will look for justice until I find it.
What are your long-term goals in Turks and Caicos Islands?
Now a new Governor is appointed as you know.His Excellency Hon.Todd is a very positive person and has a new approach for TCI.I will explain him following:
I did not come to Turks and Caicos Islands, to do few projects and go back to anywhere. I will stay and work here for many years. When Dellis Cay and Joe Grant Cay will one time open, my children, together with the young generation of Turks and Caicos Islands, will be proud of having these developments, in remote locations and will have fun.TCI er will be proud about it too.
It is also not right,to tell TCI Islander,the government recovered Joe Grant.It is not true.We have still our appeal open and when we will again lose because of the pressure of Attorney General,SIPT,TCI Government etc,we will go to the international courts for this injustice.
PROVIDENCIALES, Turks and Caicos Islands — The Supreme Court of the Turks and Caicos Islands (TCI) granted an injunction on Friday, legally halting the effort by the Turks and Caicos Airport Authority (TCIAA) and Servisair SAS to begin ground handling services at Providenciales Airport with a new joint venture company called Servisair PLS.
While the injunction is in place, Servisair PLS must not start operations until the Supreme Court decides whether the joint venture is lawful.
The injunction comes on an application brought by Flight Support Ltd, represented by Misick and Stanbrook. The concerns centered on TCIAA acting as both the regulator and a competitor in ground handling services at Providenciales International Airport, thus creating unfair advantages for the joint venture company. The concern being that this could bankrupt any competitors because of a lack of a level playing field and creating a monopolistic position, which would be to the detriment of the traveling public.
Flight Support was joined in the complaint by Albray Butterfield of TCA Handling and Shaun Malcolm of SkyBlue Ltd as additional interested parties. TCA Handling provides ground handling services to American Airlines and SkyBlue was denied permission to enter the ground handling business by the TCIAA, whilst the Authority advanced their joint venture with Servisair.
In an oral ruling, the court acknowledged the application for judicial review raised serious concerns about the lawfulness of the joint venture. These concerns included the lack of proper investigation by the TCIAA into whether a joint venture was needed. Further concerns included the inherent conflict of interest in the regulator being involved in commercial competition with those that it regulates.
Documentation submitted for consideration included a joint venture agreement granting Servisair PLS Ltd free access to facilities and equipment and waiving import taxes, import fees, and work permit fees. These special considerations would be granted by the TCIAA, which would also serve to financially benefit them as a partner in the operation. The court agreed that there was a possibility of the joint venture having the effect of creating an eventual monopoly.
“We feel strongly it is highly irregular for TCIAA to be placed in the conflicting position of being both a regulator of Servisair and having a financial interest in its success,” said Lyndon Gardiner, founder and chairman of Flight Support. “This backdoor nationalizing of ground handling can only lead to higher prices and less service in the future. This joint venture was deeply flawed every step of the way.”
Albray Butterfield, Jr, of TCA Handling, also represented by Misick and Stanbrook, agreed with those sentiments. The end result, he says, will be a destruction of local companies and de facto nationalization of the sector, crucial to the country’s main industry of tourism.
InterIsland Aviation Services is the parent company of Flight Support Ltd, as well as Air Turks & Caicos, the flag carrier for Turks and Caicos. InterIsland Aviation is subject to regulation by the TCIAA.
On Monday, Governor Ric Todd released a comprehensivereport on the progress to April 2012 towards the required milestones imposed by Britain before elections will be resumed in the TCI.
Governor Ric Todd
Since 2009, Todd said, the interim administration has been working to stabilise the economic position of the Turks and Caicos Islands, update laws and legal safeguards to ensure impartial decision making in government, tackle the necessary changes in land and immigration matters, put in place robust public financial control and create a more efficient and effective public service. Progressively, as the changes identified are implemented, UK ministers will be in a more informed position to decide when the time is right to restore a locally elected administration.
Milestone 1 – Implementation of a new TCI Constitution Order
The preparation of a new Constitution was completed in July 2011 and the new Constitution is ready to be put into effect when progress has been made on the other milestones. It will be brought into force thirty days before elections, when a date is decided by ministers in London. Preparations required to be ready for an election were described by the Governor’s Office in October last year, since then they have been progressing steadily and require a few more months to be completed:
• A national census to provide a more accurate measure of the population of TCI began in late January. Enumeration finished in April and a summary of the enumeration exercise is expected to be published soon.
• An updated Elections Ordinance to tighten up the voting procedures, including the arrangements for conducting the ballot for the new ‘All Island’ candidates has been consulted upon widely and the text is completed. It is scheduled to become law in May.
• Drafting instructions for a new law on the conduct of political parties, as recommended by the Commission of Inquiry report, are with a legislative drafter. These define the intention to establish acceptable sources of political funding, campaign methods and accounting practices. Completion is intended for June 2012
• Electoral registration of voters by the Elections Office commenced in April, supported by a project led by the Ministry of Border Control and Labour to verify TCIslander status and issue secure documentary proof of status. This process will continue until 30 June 2012.
A provisional Register of Electors is expected to be published in July. Dependent upon the number of challenges to be resolved during July, a final Register of Electors will be published in August or September. An Electoral Boundaries Commission, scheduled for July, will define the ten new electoral districts and a new Boundaries Ordinance will be prepared in August. Election information and poll worker training is in preparation and will be ready for implementation in the summer.
Milestone 2 – Introduction of new ordinances
Several improvements to the laws of the TCI were identified by the Commission of Inquiry and, subsequently, others were found to be necessary. The programme of drafting new ordinances started eighteen months ago and, in conjunction with a team of legislative drafters funded by the European Union, several further ordinances are in preparation. This ‘ordinances’ milestone mentions requirements for new laws on specific topics:
• The Integrity Commission (Amendment) Ordinance came into force in March. It widens the number of public office holders in TCIG, the statutory bodies, uniformed services and future elected leadership who are required to give personal and financial data about their interests to the Integrity Commission. Information from individuals is assessed against its standards and those in compliance are granted a Certificate of Compliance. This certificate is a necessary requirement to hold public office. The ordinance also reinforces the independence of the Commission from government influence.
• A second, and complementary, ordinance is being prepared by the EU-funded drafters to confer increased powers upon the Integrity Commission for its investigations into suspected fraud and corruption.
• Considerable progress has been made in completing new public financial responsibility ordinances. The Public Financial Management (PFM) and National Audit Office (NAO) Ordinances were put into force on 1 April. The PFM Ordinance defines the new financial management and control procedures to be followed by all public servants in ministries, statutory bodies and any service receiving public funds and creates new criminal and civil penalties for failures in administration. The NAO Ordinance creates a strengthened, independent audit and investigation function over public finances, with direct reporting to the Governor
• A further financial management ordinance is in preparation to define the role of the Chief Financial Officer within the restructured TCIG civil service. This position is a requirement of the UK government loan guarantee and is specified in the 2011 Constitution Order. Completion of this ordinance following consultation is expected in June.
Milestone 3 – Establishment of robust and transparent public financial management processes
Emphasis under this milestone has focused on continued implementation of existing financial controls and the additional requirements in recent legislation:
The new PFM Ordinance came into force on 1 April 2012 and introduced a wide ranging set of verifiable accounting and compliance requirements. In particular, it sets out a clear mechanism for budget control and specifies the delegation of financial responsibilities within ministries. It also addresses financial management within statutory bodies. Public resources are only allocated to statutory bodies through a formal Letter of Sponsorship from a sponsoring ministry and these bodies must now conform to the same financial regulations as government ministries and departments. There has been wide consultation on the new law and further training and in depth briefings should be completed by the end of June
The Audit Department in TCIG is also being reformed into two distinct bodies: the National Audit Office, a statutory body that will operate outside ministerial control, and the Chief Internal Audit Department, which will focus on internal government controls, risk management and governance processes across TCIG. The National Audit Office (NAO) is mandated by the NAO Ordinance approved and scheduled to come into force on 1 September 2012. The operations of the new Chief Internal Audit Office are described in the PFM Ordinance
The TCIG Budget for 2012/13 will be approved on 23 May. Additional time was allowed for new Permanent Secretaries, who took up their posts on 1 April, to carry out a review of their new ministries and submit pragmatic budget bids for their revised areas of responsibility
The PFM Ordinance conferred an Accounting Officer role on all Permanent Secretaries from 1 April 2012. Permanent Secretaries are now legally responsible for the proper use and accounting of public funds by all departments within their ministry, as well as statutory bodies that fall under their remit. In the case of statutory bodies, financial powers are delegated to Directors/CEOs who are held at the same standards as a Permanent Secretary/Accounting Officer
Work is in progress to improve the speed and quality procurement and contracting processes used by TCIG by reform of the present central procurement model, development of a central contracting unit and introduction, where appropriate, of other forms of contract management such as category management, pricing and market testing, framework contracts and proactive management of existing contracts to ensure the public get good value for money.
Milestone 4 – Implementation of budget measures to put the TCI government on track to achieve a fiscal surplus in the financial year ending March 2013
This is a milestone that will continue to demand vigilance. Public expenditure overall for the last financial year (up to 31 March 2012) was lower than the previous one, although unplanned events pushed the final total off-track. This was due in part to the need to tackle the NHIB funding shortfall for the hospital contract and to cover more unpaid bills from the past that surfaced during the year, such as disputed medical treatment expenses with overseas providers and accumulated electricity charges and debts.
An intense and challenging budgeting round has been held since January alongside the slimming down of the number of ministries to five. The new budget is expected to confirm it is possible to achieve and sustain a financial surplus in TCIG’s current (checking) account.
Creating a surplus in TCIG’s annual accounts, where more money is received than expended, can be used to invest wisely in replacing key elements of the national infrastructure, as well as paying off part of the national debt. It is absolutely essential to rebuild the country’s creditworthiness in the eyes of the international community. Over time, restoring an acceptable credit rating for TCI will permit the country to refinance the remainder of its debt at an affordable interest rate when the UK loan guarantee expires in 2016.
Whilst government revenues have improved and public expenditure has fallen, the ability to produce a financial surplus in TCIG’s annual accounts requires vigilance to recognise and mitigate possible external economic shocks, for example major unplanned expenditures or changes in the costs of imported fuel and goods. During the last quarter:
• Considerable effort has been made within TCIG to contain the public sector budget into the future. A voluntary severance scheme was largely completed at the end of March when over 400 people left the civil service. This exercise has reduced the size of the civil service to its 2004 level
• Revenue income has been improved by more rigorous enforcement of existing charges. Further work in this area should tackle the apparent 40% drop-out rate in business licence renewals and gather in payments to TCIG required under Development Agreements
• There are still too many statutory bodies and several have salary levels and terms and conditions that are more generous than their sponsor ministries. Around $10m was spent in the last financial year on running these bodies and for most little or no assessment of their value for money has been undertaken. In January there were 37 bodies in existence. Whilst some are essential or required by the Constitution, they still need to prove their worth alongside the others. By the end of April three bodies were wound up: TC Invest, the Business Licensing Committee and the Business Licensing Appeal Tribunal. Their functions where still necessary have been reabsorbed into TCIG or ways have been found to provide them in a more efficient manner. As a precursor, the Ministry of Finance has placed the same requirement on statutory bodies as for ministries to reduce operational costs in 2012/13 by a further ~25% compared to the last financial year. It is expected this should be achieved by improving operational efficiencies and cutting out unnecessary expenditure. For example, the NIB and NHIB have been asked to combine their separate and duplicative contributions collection operations. Both schemes require payments to be made from salaries and other incomes so a practical plan for joint working should be possible
• Permanent Secretaries now have to sponsor each statutory body and they have been asked to identify if further bodies should be considered for closure, merger or transfer to the not-for-profit sector. Where changes have been identified they will be taken forward by ministries in the coming months and for those that will continue, very close scrutiny of individual business cases will be given to those that require their boards to be renewed on 31 May
• During this quarter, following intensive work by the Ministry of Finance, the compilation of the national accounts for the years of 2008/09 and 2009/10 were completed, alongside the better evidenced accounts for 2010/11 and 2011/12. TCIG is eager to publish these to demonstrate the trend in financial improvement and will do so once they have completed external audit. This audit step is under way for some time but the number of weeks it will take to complete is outside the of the control of TCIG
• A VAT Green Paper was published in March that lays out steps to be taken up to April 2013 to reform the tax system by introducing this change. It also informs the commercial sector of the preparations they will be required to undertake
• The TCIG’s economic planning team have been brought into the core of government and delivered two important tasks since January. First, they organised and led a meticulous and comprehensive national census and are now busy compiling and analysing the data. Second, work has begun on a medium term economic plan. Whilst this work requires further data to be collected from within TCIG and key business sectors, it is expected a report will be available for wider review and consultation from June. An economic development plan is an important step for TCI to show to the international community it has a sound view on what it seeks to achieve in maintaining and growing the economy over the next five years.
Milestone 5 – Implementation of a transparent and fair process for acquisition of Turks and Caicos Islander status
The nationwide consultation exercise led by the Consultative Forum ended in February. Over 140 email submissions were received, many of which represented a number of people. One submission, from The Men of Grand Turk, was signed by 387 Islanders. Hundreds of people attended a series of public meetings held on all of the islands. The high level of public engagement with this exercise was very welcome. In mid-March, the Consultative Forum met to confirm the messages received in response to the consultation. These messages are now being built into the preparation of a new ordinance to meet the milestone.
A transparent and fair process requires more than new law: it needs to be supported by clear policies and procedures and administered consistently by capable staff. The Ministry of Border Control and Labour is continuing to implement its comprehensive change programme, launched last year, to institute clear policies and consistent, lawful practice at every stage in the system. The aim is stronger borders, targeted and prioritised enforcement, effective employment services, and accurate and secure services for citizenship, civil registration and permanent status.
Achievements in the first quarter of 2012 include:
• Clearance of the long-standing backlogs of PRC and nationality cases
• Apprehension and removal of some high-harm individuals from TCI
• Significant progress towards putting the coastal radar system into operation. The mast and base facilities are being renovated and a recruitment exercise for radar operators is under way. A contract was let for the installation of radar equipment and work is planned for May and June.
Milestone 6 – Significant progress with the civil and criminal process recommended by the Commission of Inquiry, and implementation of measures to enable these to continue unimpeded
Thirteen people have been charged with criminal offences by the Special Investigation and Prosecution Team since late 2011. It is understood a number of lines of inquiry are still under investigation.
• In April sufficiency hearings before a judge were held for eleven of the defendants. Four defendants conceded there was sufficient evidence against them to stand trial and for the remainder the judge found there were sufficient grounds for all counts to be taken forward for trial. A further sufficiency hearing is scheduled for May for the other defendants and a plea and directions hearing, at which trial dates are expected to be set, is fixed for July
• The FCO announced a grant of £3.8 million at the end of April to reimburse costs by the SIPT investigations in 2011/12. A further grant of £745 000 was also made by the UK to cover construction costs to rehabilitate the court facilities on Providenciales
• The pursuit of civil recovery cases has continued actively throughout the last quarter. This work is detailed and the prospect of further recoveries remain strong
• Work has continued since late 2011 to prepare three new ordinances: Crimes Ordinance, Criminal Procedures Ordinance and a Legal Professions Ordinance. Initial drafting has been completed and it is expected these will be published by the AG’s Chambers in draft form for consultation in May or June 2012.
Milestone 7 – Implementation of a new Crown land policy
This milestone was completed when the Crown Land Ordinance came into force in March. To ensure the new arrangements for Crown land are implemented successfully various reforms are in place:
• The management of Crown Land, land valuation and land surveying has been moved to the management and control of the Attorney General
• A new Commissioner of Lands has been appointed and is answerable to the Attorney General
• The final approval for the sale of Crown Land in the future will be signed off by the Governor’s Office.
An outstanding matter is the recruitment of a permanent Land Registrar. The UK has agreed to fund further temporary assistance until the summer to provide a further opportunity for a suitable person to be found.
Milestone 8 – Substantial progress in the reform of the Public Service
This reform is not simply a matter of re-sizing departments or moving people from one team to another. It involves changing attitudes in the workplace, innovating new methods of working and reorientation of activities to provide the general public with a more welcoming and friendly service. This milestone involves creating the conditions for impartial policy-making, establishing sensible boundaries to ministerial influence in the internal affairs of a ministry, adjusting the number and structure of ministries and units, and improvements in the volume and quality of services delivered:
• Nine ministries and 13 permanent secretaries were reduced to five each on 1 April
• Following the voluntary release scheme the civil service has returned in size to its 2004 level. No further major rationalisation is expected but the recruitment freeze will continue, except in justifiable cases, and remuneration arrangements will be unaltered
• Further performance management, service quality and policy-making training for the new PSs, managers and key officials in TCIG will be undertaken during 2012
• A new Directorate for Human Resources has been created to replace OPSM
• A new Public Service Ordinance is being prepared by the EU-funded legislation team, together with a rewritten set of General Orders. One intention of this work is to return the determination of staff discipline and performance management to line managers within ministries and give a new, strategic role to the Public Service Commission. These changes are expected to be completed in the next quarter
• A separate project began in April to identify efficiencies and opportunities to pool effort, amongst four, small statutory bodies whose roles are defined in the Constitution, whilst maintaining their individual identities: Public Services Commission, Human Rights Commission, Integrity Commission and Complaints Commission
• New terms and conditions, more similar to the civil service, have been drawn up and will be applied to new board level appointees on statutory bodies. Many of the remaining statutory bodies will have to conform to the new terms and conditions when the boards are renewed at the end of May.
Whilst not specifically part of this milestone, it is pleasing to report:
• Police reform is progressing smoothly and the subject of separate progress reporting to the Governor and Advisory Council
• Prison reform has led to many changes in the regime at HM Prison Grand Turk and the creation of work training and activity programmes for prisoners. For example, the expansion of the prison farm into poultry and eggs has been reported recently in the media. Sentence management for prisoners has been implemented and interventions targeted to assist offenders for life after prison, such as Anger Management and ‘Just Think’ cognitive therapy. Work continues on court video links and plans for a remand centre on Providenciales. These should reduce the need to transport prisoners to court by plane from Grand Turk, with savings in cost and improvements in convenience for all concerned.
DFID has stepped up its assistance to TCIG in April with the establishment of a staffed Programme Office working with Chief Executive Officer. Its role is to identify improvements and maintain momentum in the reform and restructuring under way across every ministry and with the statutory bodies. This will be an active and intensive area of work during the next quarter. Ultimately, the desire is to build up within the civil service a culture of continuous improvement. Incentives and rewards for improvement in service, as well as for outstanding work, are one part of this culture change and these will be reviewed as part of the reform of General Orders.
In conclusion
Sustained and impressive progress has been made in the first quarter of 2012. It is to the credit of all involved in modernising the public service, governance processes and financial management of TCI that step by step the necessary improvements established by the milestones are being fulfilled.
In order to fully understand the concept of The Presidency, one has first to understand what the events were leading up to this period in our history. From 1764 – 1848, the TCI experienced the years with The Bahamas. There were two critical problems as it relates to the relationship between The Bahamas and the TCI: (a) economic and (b) political.
Dr Carlton Mills is a graduate of Excelsior Community College and the University of the West Indies where he pursued his training in teacher education and Bachelors in History respectively. He is also a graduate of the University of London, Bristol and Sheffield where he pursued his Master’s and Doctorate in Education respectively. Dr Mills was appointed as Minister of Education in 2007 where he served until February 2009. Following the suspension of the TCI Constitution, he was invited by the governor to serve on the Advisory Council. He served for six months before resigning. Dr Mills is currently the chairman of the board of Governors of the TCI Community College. He is also the main editor of the recently published book “The History of the Turks and Caicos Islands”. He has written several articles for journals and chapters in other books and presented papers at various conferences in the region and in the UK.
The TCI was a salt producing economy. The Bahamas accrued tremendous financial gains from this relationship. The main contact that the TCI had with the Bahamas was on the occasion when the tax collectors came down annually to collect taxes on the salt that was produced in the salt ponds. The islands experienced high levels of taxation on salt exports, which they strongly resented. There was further resentment when the Bahamian government imposed legislation to enforce these measures.
In 1799, the Bahamas Assembly passed an act giving The Bahamas the power to tax the TCI, placing the islands within the political and geographical domain of The Bahamas. This Act of Parliament allowed one salt island representative to sit in the Assembly in Nassau. In 1835, the number was increased to three.
The distance between the TCI and The Bahamas, along with the lack of telecommunications, limited their attendance and involvement in the decision making that affected their lives in the TCI. On several occasions, by the time the representatives from the TCI reached the Bahamas, the Assembly had already met.
They had also made decisions that affected life in the TCI without any input from the local representatives. This helped to further aggravate the political situation between the TCI and The Bahamas.
The tax collector visited the TCI once per year while the mail boat made four visits per year. There were boats operating more frequently between Jamaica and the TCI than with The Bahamas. The islanders therefore felt more closely associated with Jamaica rather than The Bahamas.
On December 25, 1848, the TCI was separated from The Bahamas with the passing of The Separation Act. One of the main clauses of this Act was the setting up of a Presidency with a Council to assist him with the day to day administration of the government.
What was the Presidency?
The Presidency was a period of government in the TCI following Bahamas rule. It lasted from 1848 – 1873, approximately 25 years. The Act provided for the nomination of a President assisted by a Council supervised by the Governor of Jamaica. During the 25 years of the Presidency, there were a total of four presidents. I will briefly highlight the issues, problems and challenges faced by each president.
The first President was Captain Henry Alexander Forth (1848 – 54).
Initiatives
President Forth started schemes to increase salt production, which was the mainstay of the economy. This was done in South Caicos and salt production was also developed on West Caicos for the first time. He also declared West Caicos a port of entry to facilitate the salt trade. Under his watch, the Grand Turk Lighthouse was established in 1852. President Forth also started The Forth Masonic Lodge, The Royal Standard and Gazette weekly newspapers, which were used as propaganda machines for the government.
He also contemplated the establishment of a public bank and a public market but they did not materialize during his tenure. He also established the first Board of Education a demonstration of his commitment to education. He successfully paid off the remaining debt owed to The Bahamas by the TCI.
Other Challenges
President Forth had a poor relationship with most senior staff and also with Judge Duncombe. This was further aggravated when he suspended the Police Magistrate Williams Hamilton and the Stipendiary Magistrate Francis Ellis. These individuals were later reinstated by the Secretary of State. Many also felt that President Forth was abusing his powers. This gave rise to questions about his integrity resulting in a petition for his removal. This was overruled by the Secretary of State.
President Forth had previously served in Tasmania and was described as being of the ‘old colonial school’ of public administration. Yet he was sent to the TCI to run the political affairs of the country.
Second President William Robert Inglis (1854 – 62) replaced President Forth. He was a former Stipendiary Magistrate in The Bahamas. He faced unprecedented resentment from the Bermudian settlers, who were totally opposed to anyone who had previous connections with the TCI separation from The Bahamas. As a result he was not well received. He actually started on a very bad note by attempting to regulate the salt industry, which previously was a very sore issue.
He brought further resentment when, in 1859, he imposed a law to enforce order at Council meetings. Members who were brought to order twice by the chairman were fined $10. This resulted in mass resignations of members. President Inglis also had serious problems maintaining law and order. He did not think twice to use force to bring stability to situations he felt could get out of hand. As a result of his abuse of power, the Colonial Secretary concluded that the president contributed significantly to the moral, social and intellectual decay of the TCI. This resulted in his departure in December 1862.
Third President: Alexander Wilson Moir (1862 – 69)
He took up office on November 14, 1862. He also had some immediate successes. He opened the short lived Public Bank in 1864 as well as the Public Market on Grand Turk. He also expanded agriculture in the Caicos Islands and realized that salt alone could not sustain the TCI economy. This was done in an attempt to diversify the economy and to reduce the high cost of food importation.
President Moir also changed the traditional leasehold system that characterized the salt industry to a new freehold tenure of ownership. He felt that this old system stagnated the growth of the industry. His new approach saw the islands experiencing a brief period of prosperity where annual exports of salt reached a record $124,000 in 1865.
President Moir was also on the verge of becoming the most popular president but disaster struck. The hurricane of 1866 devastated the salt industry, destroyed homes and caused loss of lives in Grand Turk. The economic base of the country was wrecked. President Moir left in 1869 to take up an appointment in the Virgin Islands.
Fourth President
The fourth president was Captain Melfort Campbell (1869 – 73). He came on the heels of an economic downturn in the country. Unfortunately his first order of business was retrenchment. This was a very unpopular move, particularly following the recent hurricane. The country was experiencing serious cash flow difficulties. As a result, payment of salaries to civil servants was usually three month in arrears.
Several civil servants survived by discounting promissory notes to local merchants. On top of this, the price for salt on the global market had declined. Although the Crown had provided some assistance and the Public Bank had provided loans, this did not better the situation. The country continued to drift into debt. Revenue collection was down. The islands had to survive on revenue from taxation. This was not sustainable.
The situation in the TCI led the Governor in Chief, Sir J.P. Grand from Jamaica to make two assessment visits to the islands, one in 1872 and another in 1873. During his second visit, the Legislature took the decision to beseech the British government to annex the islands to Jamaica. By Order in Council, this was done on January 1, 1874.
Lessons
There are several lessons that we can learn from the Presidency. Firstly, there was failure on the part of the Presidency to consult with the local population on issues that could impact their lives. As a result, the local population generally felt that they were at a distance. Another drawback was the fact that all of the appointments were done from the outside. This caused further resentment. These appointments were paybacks by HMG for what they termed outstanding service.
The Presidents had no training in public administration and thus generally ruled as if they were totally in charge. It gave the impression that, because the TCI was viewed as a small colony, anyone could run its political affairs. Other than the attempt by President Moir, little attempt was made to diversify the economy. We still face a similar situation today. With the collapse of the salt industry after the hurricane of 1866, the collapse of the Presidency followed closely. The economy was in dire need of a stimulus package, which was not readily available at the time.
These 25 years under the Presidency provided the opportunity for the TCI to set the stage to become one of the most prosperous countries at the time. The TCI was on the verge of becoming a country of global significance and influence. This did not materialize because of poor leadership, high level corruption in government, bribery, dishonesty, deceit and political patronage.
Little attempt was made to empower the local population. Furthermore, the local population resented the installation of leaders from the outside who were given autonomy over them. Little was done during the period to improve the infrastructural development, educational and health facilities. These important essential services were critical to the continued growth and sustainability of the Presidency.
With the regional and international trade relations that we had going on at the time, we lost the opportunity to form strong economic partnerships that could have provided more meaningful benefits to the TCI. We lost an opportunity to use our salt to become an economic hub and an economic bargaining power, thus attracting other global partners to our shores. This could have resulted in more diversification of our economy.
We lost an opportunity to form global political networking despite the limited technology that was available at the time. We lost an opportunity to unite the TCI so that it could become a ‘country’ rather than a group of individual islands still considered to be separated in one instance by ocean and in another by banks.
Finally, the Presidency was an opportunity missed because, during those 25 years, we had the opportunity to begin our quest for self-determination. Unfortunately, no thought was even given to this critical issue. The financial gains that were derived from the salt trade in particular created a hunger for power and wealth, leading to widespread corruption, greed, dishonesty and the eventual demise of the Presidency.
History has repeated itself in 1986 and again in 2009. This is true of the TCI because of our failure to understand the importance of our own history. We will continue to make these same mistakes over and over again if we do not take time out to learn the lessons that history continues to teach us.
Queen’s Counsel Carlos Simons says if he becomes leader of the Progressive National Party (PNP) and Premier of the Turks and Caicos Islands, he will fire Special Prosecutor Helen Garlick and her Special Investigations and Prosecutions Team (SIPT). Speaking on Robert Hall’s Expressions call-in programme on Radio Turks and Caicos on Monday April 23rd, Simons said the SIPT was nothing more than a “gravy train” and that they should really be called the “Garlick Time and Money Team”. The prominent lawyer, who is running for leadership of the PNP at its upcoming convention, said: “Here we have a situation in which the British Government is forcing us to pay millions of dollars to Helen Garlick and their other lawyers to investigate so called crimes that were committed on their watch and to recover land, every acre of which was doled out over the signature of their Governor (Richard Tauwhare). At the same time as we are paying these millions of dollars to Helen Garlick and other British Government lawyers, public servants and others are being laid off and the people of Grand Turk have to line up at the public tank with buckets for water.Now just ask yourself, what is wrong with that picture? And the answer is everything.” Simons said that on the one hand the British are “terrorizing and traumatizing” the people of the Turks and Caicos Islands with their own money and on the other hand they are “driving the rest of us into poverty”. He added: “It is morally wrong. The only reason it is not legally wrong is because the British have made the laws. They call it the SIPT. But it’s really nothing more than a gravy train. Its name ought to be the GTMT- The Garlic Time and Money Team. But I promise you this- the day I take office is the day Helen Garlick gets laid off. That gravy train they’re riding will not just be stopped; it will be brought to a screeching halt. I will not spend on dime, no not one dime of TCI taxpayers’ money on Helen Garlic. The events they are investigating took place under the watchful eye of their Governor, the investigation was recommended by their Commissioner, it is being conducted by their lawyers, applying laws that they themselves have recently made. But it’s all being paid for with our money. That is not justice and I will see justice done or I will die in the process. So the day I take office, I will be saying to the British Government is relation to Helen Garlic, not in my name and not on my dime. You hired her, you pay her. Otherwise she can pack her bags and go home. I just don’t roll like that.” Simons also called on Governor Ric Todd to withdraw the international arrest warrant against former Premier of the Turks and Caicos Islands Michael Misick. “Imagine issuing an international police warrant with our money as though they’re hunting some kind of genocidal maniac and as though they had nothing to do with the circumstances. It is an affront to this country as a whole. I call upon the Governor to rescind that warrant today. If he does not I will the day I take office,” Simons added. Meantime, Simons said in a separate press release that he was “outraged” by the recent statement from the owner of Beaches TCI to the Jamaica Observer revealing plans to increase his Jamaican staff in the TCI by 150 workers. “I am similarly outraged that the Interim Government of Governor Todd could countenance such an arrangement. The quote attributed to Mr. Stewart in the Observer to the effect that he is happiest when he is in a position to provide jobs for Jamaicans who deserve to have employment so that they can take care of themselves and their family”, is at best insensitive and at worst offensive because the jobs he is referring to are being provided in the TCI at the expense of TCI workers, who equally need jobs to feed their families and who have a greater entitlement to those jobs,” Simons said. He said it is clear that the Interim Administration which ought to be protecting the TCI workforce has abandoned its responsibility to do so. “How else can you explain laying off hundreds of public servants but at the same time allowing a private sector employer to import hundreds of foreign workers without first offering those opportunities to the laid off public servants and other unemployed TCI workers? I call upon the Governor to release immediately the details of this scandalous arrangement so the public can see what his government is up to and to forthwith reverse the decision to allow this to happen,” the Queen’s Counsel added.
published in SUN,Turks and Caicos Islands ,25th of April 2012
PROVIDENCIALES, Turks and Caicos Islands — The appearance in the public domain of witness statements by former Turks and Caicos Islands MP Karen Delancy and former politician Shaun Malcolm has provided considerable insight into local political events of recent years.
The Delancy statement was recently reviewed here, with the benefit of access to a complete copy of the actual statement. In contrast, Malcolm’s statement is notable for its extensive blacked out redactions.
Nevertheless, it has been learned that former Peoples Democratic Movement (PDM) leader Floyd Seymour was angered when he saw the statement because, according to Seymour, much of it is fabricated and only reflects the disappointments experienced by Malcolm in his political career. Seymour declined comment but he did say that he wished Malcolm well and was praying for him.
The statement does, however, provide insight into the operations of the PDM and the Progressive National Party (PNP) from Malcolm’s perspective. In the last ten years, Malcolm has had a foothold in both camps and at one time attempted to orchestrate a takeover of the PDM, with a view to getting himself appointed to parliament and then to become a PDM candidate for office.
Malcolm was also a leading contributor to the TCI Journal weblog; however, the Journal has indicated that Malcolm has not submitted any articles for over a year.
What has brought Malcolm’s activities to light is the sudden appearance of his 16-page witness statement dated October 2010, apparently for the use of the special investigation and prosecution team (SIPT).
The source for the apparent leak of the statement has yet to be identified; however, attorney general Huw Shepheard has threatened to bring legal proceedings against those responsible for disclosing the documents to the media, effectively confirming that the documents in question are in fact genuine.
According to local sources, physical copies of both statements are reported to have first surfaced during a meeting at “Gillys Restaurant” at the Provo Airport, which is owned by former premier Galmo Williams.
In his statement, Malcolm claims to be a politician and also a “civic leader”, and goes on to describe how, as a member of a singing group that performed at political functions, he became acquainted with various politicians from both political parties in the TCI.
This, he says, caused him to choose to become active in the PNP in 1997, becoming chairman of the Provo Branch of the PNP until 1999, when he ran for office as a PNP candidate but was unsuccessful. Records indicate that, as a candidate, he received a minimal number of votes.
At that election, the Derek Taylor-led PDM government was returned to a second term, after having defeated the Washington Misick PNP administration, which served one term beginning in 1995.
Despite his defeat, Malcolm says he remained active as a PNP member until 2002. This was approximately one year before the 2003 election. In the Malcolm statement he reports that the reason for his leaving the PNP was the coming to power within the party of Michael Misick. Malcolm says he forecast Misick to be self serving political leader.
Malcolm goes on to say that the PDM (then led by Taylor) approached him in 2002, the same year he left the PNP, asking his advice on how to counter Michael Misick as the opposition leader. Malcolm says he then joined the PDM and was appointed by the Taylor-led party as national campaign manager for the 2003 election.
While the PDM party headed by Derek Taylor was based in Grand Turk, they did have a successful member of parliament at that time in Clarence Selver of North Caicos (Michael Misick’s home island) and former MP Sam Harvey of adjacent Middle Caicos.
In the 2003 election, the eight-year-old PDM administration lost, due to marginal wins and the reversal of two election districts during a by-election. The by-election resulted from witnesses saying they were offered bribes by a PDM operative for their votes.
Malcolm says in his statement that, during his tenure as campaign manager, one campaign donation alone from Jack Civre of Seven Stars resort amounted to $400,000. It has long been held maintained by then PDM leader Derek Taylor that the witnesses who claimed they were offered bribes were themselves bribed by the PNP to give false testimony. However, they were never investigated or charged with perjury and it is not known why Taylor maintains this position.
Malcolm continues his statement saying he became the Provo Branch chairman of the PDM in 2003 and PDM national chairman in 2004 serving until the June 2008 convention. During this period, the Taylor-led opposition, despite allegations of corrupt activities within the PNP government, was unable to unseat Michael Misick.
By 2006, the PDM opposition was being led by Floyd Seymour.
Malcolm then refers to a November 2007 trip to London taken by the PDM executive group, which called on the British Foreign Affairs Committee (FAC), carrying evidence to support their claim that the Misick-led government was not operating according to well established policies, was breaking the law and engaging in corrupt practices.
In a public announcement, the FAC in late 2007 indicated they had received more information complaining about the PNP led administration than the other 13 overseas territories combined.
In 2007, the FAC undertook its ten-year review of the governance of all 14 British overseas territories.
In fact, the evidence received when the announcement was made in November 2007 was arriving so fast and in such a quantity that the FAC extended the deadline for submitting more evidence until January 31, 2008. Normally the deadline would have been December 2007.
In the Malcolm statement he suggests the PDM group was shunned by the FAC, “We were told to go away.”
Malcolm goes on to say the FAC wanted the information formalized and this assignment fell on then leader Floyd Seymour, who as leader would have headed the mission to London.
According to law, the opposition leader Seymour (a CPA and financial planner as well as a real estate agent) headed the Public Accounts Committee, which reviews all the invoicing and payments made by the incumbent (PNP) government. While serving in this capacity, Seymour called 33 meetings, summoning the PNP administrators to bring their records for review. A number of these meetings ended up being canceled due to non-attendance by members of the PNP government. However the majority of the meetings went forward and Seymour was in a position to use the records as evidence of malfeasance in office.
All of the meetings were recorded on audio tape and submitted to the then parliamentary clerk Ruth Blackman for transcription to writing. Blackman, who failed to perform this assignment, is now retired and has been announced to replace Robert Hall as the host of the radio show Expressions. However, the audio tapes remain to document the meetings.
At the June 2008 PDM convention, Seymour presented to approximately 100 delegates a copy of the massive bound report of his findings, which he had sent to the FAC months earlier.
The Malcolm statement then reports that while visiting London in May on other business, he became aware that the evidence had not reached the FAC from Seymour at that late date.
Malcolm claims that further evidence of Seymour alleged failing to submit the formalized evidence was when FAC members Sir John Stanley, accompanied by British MPs Greg Pope and Paul Keetch, visited TCI in March 2008 on the heels of a visit days just earlier by Labour MP and Overseas Territories Minister Meg Munn and then Director of Overseas Territories Leigh Turner. However, the way events played out it appears the opposite is true.
At that earlier meeting Munn met with then governor Richard Tauwhare and premier Michael Misick. The Munn report coming out of the meeting was “no findings of serious corruption.” This appears to have been one reason behind the FAC official visit, which happened shortly thereafter. In fact, after a very brief visit and before leaving TCI, Stanley told the media that his information varied widely from Munn’s report.
It has always been assumed that it was the evidence sent to the FAC months earlier, joined with the Seymour evidence, would have brought both the visit and the results of the Stanley visit. Numerous people, including Seymour, had reported that when they attempted to send evidence to Munn she shunned the submissions with the message to direct the information to then Governor Tauwhare.
Within days of returning to London, during a public hearing the FAC had the FCO on the spot for the FCO failure to recognize what was going on in the TCI. Shortly after this hearing in April 2008, Munn was replaced as overseas territories minister and Turner was reassigned to the Ukraine.
Shortly after the PDM convention that confirmed Seymour’s leadership, Governor Tauwhare stunned the TCI with an announcement that he himself had called for a Commission of Inquiry shortly after his arrival in 2006. However, Tauwhare himself allowed the Misick government to lease him an upscale condo in Provo for the balance of his tenure (until July 1, 2008). Tauwhare asked the FCO to have his tenure extended but was refused.
According to local sources, this portion of the Malcolm statement appears to be a fabrication. In fact, in May and June 2008, when Malcolm was planning to attempt a move from national chairman to leader of the PDM, he visited several convention delegates, telling an entirely different story.
At that time, he reportedly told the delegates that the singular purpose of his May 2008 trip was to deliver copies of the evidence collected and compiled (apparently by Seymour). Malcolm told the delegates in face to face meetings that he received a “message from God to travel to London for this purpose.”
The Malcolm story was delivered during a campaign around the islands by Malcolm, accompanied by attorney Finbar Grant.
Malcolm and Grant announced they were planning to contest the party’s leadership and deputy leadership at the June 2008 convention which was then only weeks away. The pair nominated each other at the convention but only received three votes each. Seymour was reconfirmed as leader at this convention.
In fact, on page six of his October 2010 witness statement, Malcolm claims that he has never seen a formal copy of the Seymour report. This, of course, cannot be true because the report was brought to the June 2008 convention by Seymour and presented for review by the approximately 100 people in attendance, including Malcolm himself.
Malcolm’s statement claims that he was nominated to return to the post of national chairman but he refused the nomination. He fails to mention the nomination came from his associate Finbar Grant.
Malcolm left that convention after being soundly defeated for party leader and says in his statement he never returned to party functions.
Malcolm then takes up the issue of a 2007 election candidacy, which he claims was changed. Cheryl Astwood Tull had been selected as a PDM candidate for the February 2007 election. According to Malcolm’s statement, as national chairman, he was asked to offer a bribe to Tull to step down so he could run. Other sources in the PDM confirm that Tull did indeed step down from her candidacy because now treasurer of the PDM Dwayne Taylor had the desire to run in Tull’s assigned district, Provo’s Cheshire Hall.
The payment to Tull is said to have been compensation for campaign paraphernalia, tee shirts, banners, advertisements and the like, for which Tull presented invoices. Dwayne Taylor did run in Cheshire Hall and lost the seat for PDM. Dwayne Taylor’s former seat in West Road (Grand Turk) was also lost to the PDM, being captured by Samuel Been, former husband of Lillian Boyce. Only Seymour and Arthur Robinson won seats in the 2007 Michael Misick landslide victory
Malcolm, then PDM national chairman, claims in his statement that he did not know where the money came from to satisfy Tull’s claims. He then states he was told by Arthur Robinson the contribution in the 2007 election coming from Jack Civre was only $20,000. Malcolm contends he was told by another it was $100,000. A recent review of the PDM accounts by then treasurer Sharlene Gardiner reveals that the donation was in actuality $25,000 not $100,000.
Further, Shaun Malcolm claims that Tull and himself were both slated by the PDM executive to be the party’s appointed member of parliament after the PDM lost the 2007 election in the PNP landslide victory. Malcolm bemoans the fact that Douglas Parnell, then president of the Provo Chamber of Commerce, eventually received the appointment. Such appointments are controlled by the party
According to the delegate from North Caicos that actually nominated Parnell as the PDM’s appointed member, Parnell was known to be a lifetime supporter of the PDM, and he hailed from North Caicos, which would provide some balance, as the other elected PDM members of parliament held seats in Grand Turk.
The Malcolm statement then turns back to the PNP, where he complains that, after being awarded Crown land in the Chalk Sound area, his lease was not upheld and it was given to a PNP supporter.
Two pages from a document headed “Witness Statement of Shaun David Malcolm”
By Caribbean News Now contributor
PROVIDENCIALES, Turks and Caicos Islands — In an incident reminiscent of the infamous Watergate break-in of the 1970s in Washington, a number of documents claimed to be from the files of the special investigation and prosecution team (SIPT) have apparently been leaked in mysterious circumstances and copies are now being widely circulated among members of the Turks and Caicos Islands public at large.
Those in possession of the documents have claimed they were leaked from the SIPT but the images seen appear to be more than hurriedly copied pages. It is thought, therefore, that if they were sourced from the SIPT they had to have been physically removed. It has been suggested that the claim that they were leaked or removed from SIPT offices may be a ruse to cover the true source(s).
One of the documents appears to be a witness statement by former Progressive National Party (PNP) backbench member of parliament, Karen DeLancy, which reportedly includes evidence, likely furnished under oath, by the former MP regarding questionable activities of ministers and possibly others related to the administration of her own party.
DeLancy’s name has been circulating as a potential repeat candidate for the PNP in the upcoming election. The appearance of this document might, sources say, affect her chances of being named a PNP candidate.
The other document is a 16-page document described as “Witness Statement of Shaun David Malcolm”, whose signature is said in the document itself to have been witnessed by Alan Hedley.
Years ago, Malcolm was associated with the PNP and had hoped for a candidacy for that party. Refused, he later left the PNP after Michael Misick took control of the party. Malcolm then began to support the Peoples Democratic Movement (PDM) and eventually became chairman.
The Malcolm document is dated October 2010, during former Governor Gordon Wetherell’s term of office, when Malcolm was often seen with Wetherell. The copies now circulating have had portions redacted by means of blacked out sentences and words. In that the documents are said to have come from the secure files of the SIPT, questions have been raised as to the purpose of blacking out these presumably sensitive portions.
On one page, a third party witness’s name has been blacked out, preventing verification of the information sworn to by Malcolm. It is thought locally that the original document, presumably in the possession of the SIPT, would not be redacted in any way.
One portion of the Malcolm document claims that the former PDM government, then headed by Derek Taylor, in preparing for the 2003 election accepted a donation from a named major developer of $400,000. The PDM won that election by a narrow margin but subsequently lost control of the government when a by-election switched two seats over to the Misick-led PNP.
In a section of the document headed “Jak Civre and the Seven Stars Resort,” Malcolm said, “On an occasion leading up to the election of January 2007, I was riding in a car with Arthur Robinson and Floyd Seymour [then PDM leader] when we passed the Seven Stars Resort on Providenciales. I was aware that prior to the election of 2003 Jak Civre, the owner of Seven Stars, had made a huge donation of somewhere in the region of $400,000 to the PDM, so I thought to ask how much he had donated to the PDM for the 2007 election. Arthur Robinson said it was $20,000. However, I later discovered through a person who spoke to me in confidence that the actual amount was $100,000.”
Another portion of Malcolm’s statement is said to be given over to what is referred to locally as “sour grapes”. Malcolm claims in the document that he was slated to be the appointed member for the 2007 PDM opposition but a late party caucus appointed then Chamber of Commerce president and later elected leader of the PDM, Douglas Parnell. Cheryl Astwood Tull was also reportedly slated for that position after she retreated as an election candidate, having spent a large amount of her personal funds campaigning.
“Cheryl Astwood Tull was very upset that the second part of her Election Agreement had not been fulfilled and thereby had not become the Nominated Member of the Turks and Caicos Legislature on behalf of the PDM. In retribution she attempted to sue the PDM for not honouring the agreement. She contacted Conrad Griffiths of the law firm Misick and Stanbrook and tried to force those that had entered into the agreement with her to complete the transaction. However, after researching the situation Mr Griffiths advised her that the agreement was not enforceable,” Malcolm said in his statement.
In 2008, Malcolm was known to be the co-founder and a leading contributor of the TCI Journal weblog, which targeted the allegedly corrupt activities of the PNP and Michael Misick in particular.
In the lead up to the Commission of Inquiry, the TCI Journal also began to run articles claiming there were unethical dealings within the PDM. These articles did not disclose the author.
published on 12th March 2012 in Caribbean News Now
They are a lot of discussions regarding recovery of Joe Grant through SIPT in Turks and Caicos Islands.
Nobody would like to wait the court decisions.
Is it possible to cover the SIPT costs and fundings through recovery of Joe Grant?Is it true or is it only a story to get the people of TCI calm about the costs and fundings of SIPT?
Or is it an international Scandal?
This Cay is one of the less known cays, and its story came up to the attention of the TCIlanders because of bribe allegations in Turks and Caicos. Dr Kinay, What is Joe Grant Cay?
Joe Grant’s Cay is a beautiful but remote, uninhabited 712 acres cay located in a remote section of the archipelago between Middle Caicos and Easy Caicos. It is accessible only by sea. The last time I took a boat to visit it, it took me 2 hours from Providenciales to get there. This Cay has no dock, no road, no electricity, no water neither any form of other infrastructure. It is inhabited like East Caicos. The cay is composed mainly of consolidated rock with the ocean frontages consisting of either sand or “iron shore”. The elevation is low and the shallow water depths at some parts of the island for do not allow visitors to access other areas. These difficulties do not discourage us, as at the end, when properly developed, this Cay is a beauty.
We have bought 200 Acres of this island on June 20, 2008 from the Crown through a transfer of title executed by the former Governor., Hon Richard Tauwaree and 5 months later on November 7, 2008, the former Governor, Hon. Whetherell has executed a Development Agreement with us for the development of the whole island.
What was the role of you in this project?
When I first came to Turks and Caicos Islands in 2005, I had already my development company O Property Collection in Austria. This company is where I, and my partner Oguz Serim offer our development advice to projects. O Property Collection has, from the first days of this project, ,is acting as “developer” bringing its expertise, in construction, sales, marketing. The center of any development is people. Community is very important. My company’s vision is to create design driven projects. God has already placed a beautiful design for Dellis Cay and Joe Grant Cay, it is now up to us, with respect, to treat these beauties with the best architecture and standards there is.
What do you want to develop on this island Joe Grant?
We wanted to develop the island with an environmentally friendly small Hotel and then Homes in the natural surroundings. We have retained top environmental engineers from Florida, and we started immediately the process of Environment Impact Assessment. We designed our project with a high-class architect from italy, and have signed a brand and management Indent with a very famous brand. The most important consideration though is that this will be a low density and green development.
When you first heard of Joe Grant Cay? How did you get involved?
I first got interested in Joe Grant Cay In December 2006 when I was informed that negotiations with some developers for a proposed project on Joe Grant’s Cay had run into difficulties and I was asked whether I could be interested to take this development further. The Government already had a price for sale on the Cay, US$5 million according to a formal offer that the former Government had placed before the previous developers in November 2006. My initial views for the Cay was that it was a remote location, no infrastructure and it involved Crown Land, and that meant the need of a Belonger Partner. I was not familiar with this process as my first investment Dellis Cay, is a private transaction and does not involve any Crown Land.
Did you know any of the previous developers?
I understand from the discussions in the past years that there were a number of developers who wanted to take this Cay prior to my involvement in early 2007. I do not know and have never done any business with the gentleman named at the discussions at the Commission of Inquiry,. whether in relation to Joe Grant’s Cay or otherwise.
Who is you local/belonger partner by Joe Grant?
I was already heavily engaged in our Dellis Cay project, and having regard to the Crown land policy (of which I was then aware), I thought it sensible to have a belonger partner in the development. In that respect, a company called Oceanic Development Ltd owned by Don Gardiner became my partner. I respected Don very much whom I already knew socially. As you may recall he was the President of the Turks and Caicos Islands Tourism Board. I understood that Don was involved in the development prospects of Joe Grant Cay with the previous developers so he was very familiar with it. We have executed a Joint Venture Agreement with Don’s company in January 2007, and became partners in a company called Caicos Platinum Ltd, a company that was the recipient of the first formal offer of US$5 million from the Government back in November 2006.
When did you buy Joe Grant Cay?
See, that has never happened. We did not buy Joe Grant Cay. We bought the freehold of the 200 acres of Joe Grant Cay, and the rest (512 acres) is provided to us by a Conditional Purchase Lease through a development Agreement. I am not sure whether you followed it, but this island was first offered at US$5 million to Caicos Platinum Ltd, when that company was owned by previous developers. Then, 200 Acres of it (approximately 30%) was offered to us at $2 million in early June 2008, by the decision of Cabinet, led by His Excellency the Governor Richard Tauwaree. At the specific instance of the Government (and with some reluctance on our part given the risk to which we were thus being exposed in advance of the conclusion of a development agreement), we were asked to close the purchase of the 200 acres hotel parcel on an urgent basis, apparently because of very low cash flow issues at Government level. Having agreed to do so, the Governor again changed its mind, obtained a new valuation by a third-party QS and informed us on June 19th, 2008 that the price of the hotel parcel had been increased to $3.2 million. We paid that price for 200 Acres and bought a portion of Joe Grant Cay on June 20th, 2008 on de day of Groundbreaking ceremonies of Dellis Cay.Governor Hon. Tauwaree came in the afternoon to this ceremonies,was very happy,that Joe Grant deal was finally closed after 1,5 years of negotiations.He congratulated me on the day,the funds of the transaction was in the account of government.
What about the Development Agreement?
You know, it took us almost 2 years from the first discussions, but 5 months after our acquisition of the 200 Acre parcel, in November 2008 to get a Development Agreement. I am not sure whether you re know but The Governor executes all major agreements on behalf of the Government. So, Governor HE Gordon Wetherell, and our CEO, Director, Michel Neutelings have met for the execution of the Development Agreement.
Dr, Is there anything special in the Agreement?
All development agreements in Turks and Caicos Islands, usually have more or less the same provisions. However, we have an additional obligation on our part to pay 15% on the gross amount on the sale of villa lots in the development to the Crown. I am not privy to all development agreements in TCI but I am not personally aware of any other development agreement which contains an obligation of that nature. From the standpoint of the public, it is clear that if my partners and I make a major investment on Joe Grant’s Cay such that the price which a buyer might pay for a villa lot is greatly enhanced, the Government receives a corresponding benefit without any of the business risks undertaken by the developer. Joe Grant Cay was going to be a new source of income for the TCI Government and TCI islanders. This remote and inhabited island was going to be the home for a new hospitality project providing new jobs and opportunities for everyone. I would imagine that most of the ex Middle Caicos residents would returned to their home from their present endeavors in Providenciales. In summary, this project had a very important social aspect. I have on many occasions discussed these aspects with both Honorable Governors Tauwahare and Whetherel.
There were discussions about the valuation? What you have to say on it?
Look, I am a developer, a businessmen. I got interested in this deal as the 712 Acres was available at US$5 million to a number of developers who apparently did not perform. I wanted to buy at this price. At the end, I have negotiated more than 18 months to get 30% of this cay at US$3.2 million. I took a significant risk by paying that price and closing that purchase without having a signed development agreement with TCIG, with no guarantee that we could carry out our development plan or acquire the rest of the Cay. I trusted to Governor Hon.Tauwahare and later on to Governor Hon.Whetherel.
Now coming to the valuations, I understand from the Inquiry that under the leadership of the HE Governor Tauwaree himself, the Cabinet has sought a number of conflicting valuations both from their own valuation department and from a private commercial appraiser on June 2008. They have as the Cabinet, together with HE the Governor, have decided to take the valuation of the commercial appraiser as it reflected the market value.
Now, the question is why did they not picked the high value but the low value?
My answer is that the valuation of the land is obviously a matter for the Crown and for experts in that field. That is why I have hired some of the leading experts in this field to assist me. What they say is simple: the Valuation officer has attempted to value this property by direct comparison to couple at Ambergris Cay, and sale listings from marketing brochures (and not actual transactions) at North Caicos Marina and Middle Caicos. I am told that those comparable do not come near being appropriate for the purposes of valuing Joe Grant Cay.
At Ambergris Cay, for example, lot sizes of between 0.32 – 1.85 acres each are compared to our project of 700 acres. In addition, Ambergris Cay forms part of an established luxury brand, and considerable expenditure has been undertaken on the extensive infrastructure. I do not know if you know but Ambergis Cay has all its utilities underground, electricity and water, It is the only island in this country which has an underground sewer system. Everything is self-generated on the island, water making, the treatment of the sewer system. It has even an uncompleted marina that is not completed but obviously a port facility) including the inclusion of the biggest private runway (6,000 feet) in the Caribbean. Overall Ambergis Cay it is a self-sufficient island that has all of the amenities and can function, unlike North and Middle Caicos which has to have power on the sea cable from Providenciales. North Caicos Yacht Club is also a developed property, so no parallels to undeveloped land neither. We also understand that the value r has used “sales brochure prices” in 2008. The Middle Caicos comparative is based on a sales listing as well, which was withdrawn from the market after 22 months listing period and not sold.
Now, that is what experts say. These will all come out soon. Now if you ask me what I personally think. To me, the real valuation is what I paid. Our company paid US$18 million to Dellis Cay, a 500 acres island, of which 200 Acre is private land. Dellis Cay is only 20 minutes from Leeward Highway, it had PPC Electricity cable in it, for plenty of electricity, and it is next to world-renowned Parrot Cay. I think that we have paid for the 200 Acres at Joe Grant Cay reflects the fair market price at its present state and that is “undeveloped” land at a remote location for commercial use. That is what it is.
Later on, we have asked both local and international professional valuation firms to conduct a fgull analysis and report an official valuation of this island. All these reports have confirmed the value that we have paid to Joe Grant Cay’s 200 acres and the lease agreements that we have entered with the TCI Government. In any case, after the World Economical Crisis starting in November 2008 and onwards land values have significantly eroded all around the world and especially the Caribbean.
But Dr Kinay what is the benefit of this Project to the TCIslanders? What do they get?
Look,the government did not simply sell a piece of land, they entered into a development agreement for the development of that land. If I can not develop it on time, and spend the money that the Government wants me to spend on it, than they will get back. It is in the Agreement. It is ours as long as we spend money on it. You know how much? My Development Agreement says I need to spend US$120 million on this cay in a fixed period of time. We estimated that the construction will take 2 years and create at least 150 new local jobs. Once the island is fully operational it will require at least 70 locals to manage it. As I have already mentioned, in addition to the purchase price of the land of the hotel site, we will pay 15% of our Villa sales on the 300 Acre Villa Lots and this goes straight to the Government’s budget. Not to mention, the usual development agreement obligations such as the Annual Scholarship payments, duties, work permit fees, the rents paid under the leases, stamp duty benefits accruing to TCIG arising out of sales in the development and the boost to the tourism economy of TCI.
Dr Kinay, you lost a court case concerning Joe Grant Cay June 2011? What will happen now?
I received the Turks and Caicos Islands Court’s judgment in June 2011 concerning Joe Grant Cay. I also received TCIG’s Press Release from July 2011. The judgement is grossly unfair and Joe Grant Cay development companies are currently appealing it. I could not afford lawyers as Turks and Caicos Islands Courts have frozen all my worldwide assets not allowing me to spend any funds towards my right to defend myself and my companies. Looking at the Judgment, in essence, His Hon. Justice G W Martin has concluded in connection with the political donation of $500,000 made by Dellis Cay’s parent company Turks Development LP (the Court states the donation was from ‘Dr Kinay’) to Michael Misick on 9 January 2007, the Judge found (paragraph 33) “there to be a very strong probability that the money was paid as a bribe in order to ensure that the Defendant companies obtained the benefit of the proposed development” disregarding the facts that the Defendant companies did not even exist at that time, and that the donation was made by Turks Development LP, a company developing Dellis Cay, not related in any way to Joe Grant Cay . His Hon Judge further observed (paragraph 41): “I emphasise that this judgment should not be treated as a conclusive finding that any individual has acted corruptly. Nobody should be declared corrupt if he has not had the opportunity to defend himself at trial, and that has not happened in this case.’ These statements did not make the Judgment just and fair, the basic principle of law.
On the matter of Joe Grant Cay’s valuation, His Hon Justice completely ignored the Government’s valuation report obtained from BCQS, an independent commercial appraiser who valued 200 acres of Joe Grant Cay, at USD 3.2 million for commercial use, exactly the amount of money asked by the Government in June 2008, which the development companies have paid in full. His Hon Judge ruled (Para 36, The Judgement) ‘When instructing BCQS to give an alternative valuation, McAllister Hanchell did not tell them of the proposed development, so that their valuation made no allowance for the intended use of the land.’. The Learned Chief Justice has failed to recognize that BCQS valuation report specifically stated on Page 7 Item 3.5 ‘It is assumed that planning permission is available for the subdivision of the land for residential plots or for a commercial use.’ By ignoring BCQS’s clear statement specifying that Joe Grant Cay valuation report is prepared for “commercial use”, The Hon. Chief Justice presented an unbalanced approach for the benefit of the Plaintiff. The Court’s omission of BCQS’s written representations in their valuation report is not something that I can live with and we will be pursuing the reasons for this material error.
First, the Commission of Inquiry’s publication of unredacted Final Report despite the TCI Supreme Court’s Order not to publish the unredacted Final Report cost Dellis Cay its business and caused the funders to pull their finances, now Joe Grant Cay Development companies are striped of their rightfully obtained assets.
It is clear to me that there is a set political agenda which is geared to restructure the political landscape at the Turks and Caicos Islands and we are chosen as the main victims.
I repeat categorically that I reject all accusations, and state that we are innocent
For those who doubt that the Development of Joe Grant Cay is not innocent, I have only one question:
Had the alleged privileges, favors or better conditions been present in the acquisition of 200 acres of this island, or in the Development Agreement, why both Hon. Governor Tauwhare, and the present Hon. Governor Whetherell would have executed these on behalf of the Crown?
Both Hon Governors are experienced public officials, with history of making land transactions, and executing Development Agreements on behalf of the Crown. Why did they approve these transactions if the preferential treatment was all over the documents that they have signed?
All these contracts, and 200 acres land sale were approved by the Attorney General, TCI Invest, Ministers, the Premier, and executed by 2 Hon. Governors. The Government and both Hon. Governors had 2 years to conduct due diligence. Do you really believe that they were all ‘deceived’? and did not know what they were selling? That is the real question the Turks and Caicos Public must ask.
I have faith in the law, and I will look for justice until I find it.
What are your long-term goals in Turks and Caicos Islands?
Now a new Governor is appointed as you know.His Excellency Hon.Todd is a very positive person and has a new approach for TCI.I will explain him following:
I did not come to Turks and Caicos Islands, to do few projects and go back to anywhere. I will stay and work here for many years. When Dellis Cay and Joe Grant Cay will one time open, my children, together with the young generation of Turks and Caicos Islands, will be proud of having these developments, in remote locations and will have fun.TCI er will be proud about it too.
It is also not right,to tell TCI Islander,the government recovered Joe Grant.It is not true.We have still our appeal open and when we will again lose because of the pressure of Attorney General,SIPT,TCI Government etc,we will go to the international courts for this injustice.
