By SAM SMITH, Guardian Staff Reporter

samsmith@nasguard.com

The case to stop construction on the small Abaco island of Guana Cay is more than a line in the sand from environmentalists; it is a direct challenge to the very Constitutionality of Opposition leader and former-Prime Minister Perry Christie's anchor project initiative and their heads of agreement contracts.

Before the Court of Appeal yesterday, the Save Guana Cay Reef Association hinged much of its two-year-old arguments against the government of The Bahamas on their belief that the Christie Cabinet overstepped its legal powers in offering to "facilitate" permits and sign leases on Crown Land.

The detailed questioning, for which Court of Appeal President Dame Joan Sawyer has earned a reputation among attorneys, ran for nearly eight hours in the crowded courtroom, the issues that arose moving the Case of Save Guana Cay Reef Association v. Bakers Bay and the government of The Bahamas into a area of Cabinet's power under the laws of The Bahamas. No ruling came from the court yesterday, Dame Joan promising to "get back to you as soon as we can." For the time being, construction will continue on the $500 million project, the five months between acting Grand Bahama Justice Norris Carroll's ruling and the Guana Cay Reef Association's motion for appeal being the first item cited by Justice Lorris Ganpatsingh in refusing to issue a cease-and-desist injunction against all work on the small island. Successful negotiations with potential developers typically resulted in the penning of novel-length heads of agreement contracts, which outline both general agreements and specific concessions for both parties and were signed by Wendall Major, secretary to the Cabinet, on behalf of the government of The Bahamas.

In the case of Guana Cay, the heads of agreement was written to be "a fait accompli," argued lead council for Guana Cay, Fred Smith, citing a line from the document, which stated that Cabinet "shall cause approvals to be granted to the developers." Smith claimed this language suggests Cabinet's willingness to override local authority and the various ministries responsible for accepting applications and permits.

At least two elected officials on Abaco have quit over the Bakers Bay project because they felt their power was usurped when requesting material from the

Churchill Building, Smith said yesterday, alleging they have been replaced by government appointees to rubber stamp applications.

While questioning Smith about the issuance of construction permits, apparently against the wishes of local residents of Guana Cay who are protesting the

matter in court, Justice Sawyer said, "Certainly they (Cabinet) did not have the authority to bind the town planning in that jurisdiction."

Referring to Council for the government of The Bahamas, the Attorney General's office, claimed that the actions of Cabinet were legal and "preauthorized" by Parliament through various incentives acts, such as Hotel Encouragement and Out Island Development. "This is not a case in which there is no authority

to grant approval," said the Crown.

The court president opened the possibility that a challenge of Guana Cay is a challenge to the legality of all the heads of agreement contracts signed by

Cabinet.

As it related to this case, Smith argued in plain language that for Cabinet to assume the "The entire process that has been adopted by the 'Government' is extra-legal. It is arbitrary. The agreement purports to give omnibus approval for a private ten-year legal real estate development plan, which requires approximately 140 acres of Crown and Treasury Land. There is no statutory provision for such an approach to governance in The Bahamas," Smith wrote in his submission to the court.

Attorney for Baker's Bay, Michael Barnett, did not dispute that the heads of agreement contract was the heart of matter at hand.

"The sole issue is whether Wendall Major, the Secretary to the Cabinet, has the authority to sign an agreement on behalf of the Government of The

Bahamas," Barnett wrote in his submission to the court.