Over the last three weeks I have agonized over how to get involved in the Cap Juluca debate mainly because of the delicate nature of the negotiations and my desire to make sure that nothing I would have to say would in anyway impede Government’s ability to bring some resolution to the issues involved. I am also aware that the Chief Minister has openly declared that members of the Opposition cannot offer anything to assist with these challenges and that, in fact, he is more qualified than all the members of the AUF combined. It is therefore pointless to extend the olive branch, with the hope of developing a national response, whenthe Chief Minister has gone so far as to suggest that members of the past Government should be forced into exile for their complicity in the situation at Cap Juluca today. These are not statements to be taken lightly in desperate times when frustration levels are getting higher among those affected by the uncertainties at Cap Juluca. But that is a matter for discussion of a more juridical nature on which some course of action must be determined.
I am therefore extremely grateful for the role played by Bishop Errol Brooks, Rev. Dr. H. Clifton Niles and Mr. Sutcliffe Hodge as voluntary arbitrators in the process, and having the courage of their convictions to present a report on their findings that was critical of the way Government is handling the matter. Their findings, as our Party (AUF) noted in its September 11th Press Statement, “are both instructive and revealing and their recommendations seem sensible in the context of the information made available to them and the public at this time”. While this Civil Society Group pointed to specific issues that must be considered, perhaps the overarching issue that appears to concern most persons in the wider community is the lack of transparency on this matter. This lack of transparency is not in keeping with the Chief Minister’s pledge during his election campaign and upon ascending to Office. And I therefore feel duty bound to make some comments.
First of all, there was a big rush to take a resolution to the House of Assembly to begin the process of compulsory acquisition before any public consultations took place – and before the legal opinion that was commissioned was received. Secondly, the members of the Parliamentary Opposition have not yet received critical documents that they requested to assist them to participate meaningfully in this debate. Thirdly, it is our understanding that the legal opinion has been received but not yet circulated within Government. And finally, no indicative financing plan for the compulsory acquisition process has been released even as the Chief Minister and his Permanent Secretary are in theUKto discuss borrowing for this purpose with the British Government.
But the main focus of this article is to establish briefly the difference between what is happening in the Cap Juluca situation today – as opposed to six years ago when the past AUF Government, of which I was a part, decided that we should pursue a number of options for Cap Juluca including forfeiture of the lease for breaches of covenant and compulsory acquisition for a public purpose. My reason for doing so is that a number of political pundits have been suggesting that there is a lack of consistency between the AUF’s present position on Cap Juluca as opposed to 2006-2007. But the truth is that the AUF Governmentalways proceeded very cautiously with this matter – beginning by commissioning two independent legal opinions: one by Daniel Brantley and Associates dated June 1, 2006 and another by Anthony W. Astaphan S.C. dated March 10, 2007. We also took a Resolution to the Anguilla House of Assembly calling on Government to immediately explore the feasibility of acquiring Cap Juluca for a public purpose, under the Land Acquisition Act. That Resolution passed by an overwhelming majority in the House of Assembly with one dissenting voice. The passage of that Resolution made way for a process agreed in EXCO which paid attention to the following:-
1. Favourable and unfavourable legal factors in acquiring Cap Juluca;
2. Potential legal challenges by the owner Charles Hickox;
3. Potential legal costs;
4. The risk and probability thatGoAcould be prevented from taking possession of Cap Juluca following the passage of the vesting instrument by legal action by the owner;
5. The principles on which compensation in the case of compulsory acquisition, especially in the face of hostility from the owner and major creditor, is likely to be based with particular reference to the issues on which the judges will base their judgments;
6. Estimates of the value of Cap Juluca for the purpose of paying compensation to the owner based on the various principles and considerations to be applied in arriving at valid valuations for the property;
7. An assessment of the current physical condition of the Cap Juluca property and an estimate of the cost to refurbish it;
8. An indicative acquisition budget, sources, means of and strategy for funding the acquisition budget; and
9. Estimated length of time likely to be required to complete the legal process.
The Government of Anguilla may very well be pursuing a similar course of action, and raising similar issues, but to date none of these have become part of the public discussion not even to the Civil Society Group. All we continue to hear about is the dispute between the Hickox and the Brilla Group. In 2005, the AUF Government had sent a very clear message to both Hickox and Friedlandinforming them that, if they did not come to decision to handle their differences, it would become proactive in appointing a Special Task Force to bring about a solution in the best interest of Anguilla. That solution included Mr. Friedland – as the beneficial owner – putting his interest in the property up for sale to make way for new ownership. This was made to stick with the threat of forfeiture based on a number of serious breaches under the lease. That action led to several international commercial entities expressing interests in Cap Juluca, including a consortium of Anguillian business interests. These entities were all operating in a financial environment where considerable funding was available.
Today, we are seeking to compulsorily acquire Cap Juluca in an environment where the case for compulsory acquisition may be more difficult to make. First of all, Cap Juluca is already providing a public purpose. It has until recently been one of the primary hotel resorts in theCaribbean. It is going through tough times but so are many other resorts inAnguilla, e.g. Malliouhana. However, the point is that it is still in operation and providing a public service. Why, for example, isGoAnot talking about compulsorily acquiring Malliouhana? Being closed the resort is not currently providing a public service. It seems, from a layman’s standpoint, that if Government were to decide to compulsorily acquire Malliouhana all it would need to do is pay prompt and adequate compensation.And there are no fractured ownership issues with Malliouhana — just one owner.
It is also common knowledge that theGoA’s financial situation is not good given the world economic situation. HMG is threatening that if we are unable to balance our budget they may consider more direct financial management of our budget — an apparent euphemism for “higher supervision”. The Chief Minister’s trip toLondonto get permission for borrowing, conservatively more than half of our current debt burden, would seem to be a recipe for stricter fiscal measures, to wit, higher taxes. And unlike 2006/7 there is limited capacity for funding participation from the local private sector.
In 2006/7 there was approximately US$1 billion in foreign direct investment circulating inAnguilla. Today, foreign investors have becomemuch more cautious because of the global economic situation, and will become increasingly more so as we begin to adopt solutions that create uncertainty in the environment. Obviously, Government does not want to be in the hotel management business — in a period when many tourist destinations are going through challenging times. And furthermore there are few, if any, examples in our region that we can draw on where public acquisitions in the tourism sector have resulted in positive outcomes. In fact, the successful case was the public acquisition of Half Moon Bay Resort by the Government of Antigua andBarbuda. But the Resort still remains an albatross around the neck of that Government almost twelve years later.
I have no question regarding the constitutional right of the Government of Anguilla to pursue compulsory acquisition for a public purpose — the law and precedents seem clear on this issue from every opinion I have read. The question to which many of us are searching to find a satisfactory answer is simply this: “Do we have our ducks in a row?” Because based on the conditions that may lead to success — we seem to be “swimming against the tide?”
