The Grand Bahama Port Authority (GBPA) operates as a private regulatory and administrative corporation under a specialized statutory treaty (the HCA) - the Hawksbill Creek Agreement
POLICY ADVICE NOTE: 307-2026: THE SUBTLE JURISPRUDENCE OF THE HAWKSBILL CREEK AGREEMENT - Part 2
By Professor Gilbert Morris
PART II:
That said…let’s consider the Royal Commission report which was precursor to the 1973 Constitution:
The Royal Commission was appointed on the recommendation of The Bahamas Government to review the Hawksbill Creek Agreement, chaired by Sir Hugh Wooding. Its report is cited as Royal Commission on the Hawksbill Creek Agreement (1971).
(It should be kept apart from the 1967 Commission of Inquiry into casino operations in Freeport and Nassau, which sat from 13 March 1967 and reported that November and is confused often as the same thing). The Wooding Commission began work on 19 September 1970 and reported in 1971. It treated the Agreement as a binding obligation which the Government had breached, and it found the Agreement still in force through three constitutional iterations.
Proof.
* Dates and mandate. Its terms asked it to weigh Freeport's arrangements against prevailing social and economic conditions, with particular reference to Government and Port Authority correspondence of August and September 1968. That correspondence concerned the Benguet transaction.
* Members. Wooding had been Chief Justice of Trinidad and Tobago and was a member of the Privy Council. The reprint credits Sir Fred Phillips, R. McAllister Lloyd and Malcolm Francis Lindsay alongside him.
* Characterisation. In paragraphs 174 to 176 (page 59), the Commission described the immigration dispute as a case in which a Government was alleged to have broken an a foundational obligation it had no power to vary in its own. It noted the gravity of that charge against a party that had just won the struggle for democracy. It also recorded that the Government first used executive power to direct the alleged breach, then legislative power to abrogate the Agreement's provisions and it resolved that the legislative power was void and of no effect where it failed the procedure of the Agreement itself. It was a usurpation!
* Final assessment of validity. On page 75 the Commission concluded that the Agreement subsists and continues to bind the Government, the Port Authority and the licensees, each entitled to expect the others to honour its terms…as set out in the Agreement.
The legislative step the Commission had in view is documented. The Immigration Act 1967, section 2(7)(a), originally saved special immigration provisions in agreements made under any Act, and section 3 of the Immigration Act 1970 repealed that saving. The Commission therefore saw an abrogation by statute while still holding the Agreement itself alive.
Its remedies followed from that view:
* No further attempts at amendment of the Agreement, given the difficulty of securing four-fifths of the licensees (page 74);
* Freeport integrated into the national community (page 74);
* No unilateral legislative solutions can gain validity (page 75), as Parliament is not sovereign…The Bahamas Constitution is sovereign and the Agreement is woven through it.
The verifiable characterisation is that of a Sovereign Trust, because of its grant of municipal powers and its binding. The verdict on validity is that the Agreement survived the Government's 1970 legislation as a subsisting obligation, though its immigration clauses had been statutorily overridden.
The Commission's phrasing makes the Agreement a triangular subjunctive obligation among Government, Port Authority and licensees. That three-party structure explains why it counselled against amendment: any revision required the consent of the licensees.
There is a deeper insight:
1. One reason that the Agreement cannot be altered at will, is because the Grand Bahama Port Authority DOES NOT BELONG to the principals of the Port. That is why the sale of the assets of the GBPA is open to question.
2. The Assets are part of a Sovereign Trust and under Trust law, the Trustees cannot be direct beneficiaries from trust assets, unless as provided by the Trust instrument; in this Case, the Hawksbill Creek Agreement…which does not provide for any dissipation or alienation of assets.
3. Those assets are to be returned to a municipality or a mayoralty of Freeport in 2054. That means the people of The Bahamas through a government entity - the municipality - ALREADY OWN the assets of the GBPA…and the Hawksbill Creek Agreements sovereign trust is a Build-Operate-Transfer (BOT) mechanism aimed at generating value from 1955 to 2054 for the sake and benefit of the Licensees.
This is a critical point to grasp because it creates and entitlement in property at 2054, and it’s why it can’t be disturbed arbitrarily…therefore it’s more profound that than the issues that caused a Royal Commission.
4. That means - and again this is not explicit or literal, it must be drawn from the proper reading: the Licensees constitute a "Parliament of Licensees" following the textual anchor here, on page 74.
5. This means the only valid pathway for the initiative announced by government - as brother Harold Williams shows - is the Licensee Association must be established officially as it should have been since 1955. And the four-fifths threshold also bears directly on the review the present government has announced.
The test of these propositions came in St George et al v Hayward et al (Common Law and Equity Division, FP 223A and 223B of 2006) found that the GBPA could not be wound up as an ordinary company. In Shangrila (1982) Ltd v Grand Bahama Port Authority Ltd, BS 1984 SC 23 (Adams J). The court called the Port Authority the sole licensing body for businesses under clause 2(23)(a). It also held that the 1968 Government and Port Authority correspondence never became a formal agreement, BECAUSE the 4/5ths licensee consent was never obtained.
Therefore - consistent with the constitutional jurisprudence of the Hawksbill Creek Agreement and the Privy Council Cases together with the Royal Commission Report: There can be No Sovereign Dissolution via Private Courts…which is to say, legally, the GBPA operates as a private regulatory and administrative corporation under a specialized statutory treaty (the HCA). The tribunals and concurrent court determinations have continuously upheld that the administrative status quo in Freeport remains intact and the entity itself cannot be arbitrarily liquidated or legislated out of existence.
Altogether, everything being done today and every company and institution established must be for the benefit of the licensees and both the GBPA and the Government must convince 4/5ths of the Licensees of their plans and they must accede and assent.
You know what other word describes this that does not appear in the Agreement or the Royal Commission report: DEMOCRACY! That’s what this is: it’s the highest form of democracy read from the Agreement in process.
It is not a stop sign.
