What the Hawksbill Creek Agreement (HCA) is and What the Hawksbill Creek Agreement is not
THE HAWKSBILL CREEK AGREEMENT IS THE MOST SOPHISTICATED JURISPRUDENCE IN THE HISTORY OF THE AMERICAS
By Professor Gilbert Morris
Nassau, N.P., The Bahamas
There are things we must grasp: The Hawksbill Creek Agreement (HCA) is not some relic of the past to be scoffed at: it is the most sophisticated bit of Jurispudence in the Americas…it’s equivalents are the Vatican or the 900 year old city of London in the city of London (Yes. There are two Londons…one public and one private).
No government has the power to alter the Hawksbill Creek Agreement and neither does the Grand Bahama Port Authority. At the heart of the Agreement are the Licensees and they were supposed to form “The Licensee Association”, which under the agreement makes them “the parliament of Freeport”, just as the London Council governs the private city of London.
Over the decades, both the governments of The Bahamas and the Grand Bahama Port Authority did everything to stifle the Licensee Association. Why?
Because any decision by the GBPA can be overridden by 4/5ths of the Licensees. In this way, the Hawksbill Creek Agreement establishes a democracy within a democracy.
These facts which I’m sharing are not opinions: they are the conclusions of a Royal Commission of Inquiry in 1971, which concluded that the Hawkbill Creek Agreement is not a normal development contract…it is a sovereign grant that was signed in 1955, lasting until 2054, when it is to be turned over to a mayoralty of Freeport.
That means the Hawksbill Creek Agreement established a “future grant” and anyone licenseed under the agreement does so depending on that fact, and so the agreement can’t be altered without injuring the rights of Licensees.
In this arrangement, at common law, it also means the Hawksbill Creek Agreement establishes something rare on earth and in law: a Sovereign Trust…as Maurice O. Glinton KC has shown in a variety of Privy Council and Supreme Court cases.
At common law, The Bahamas government is the settlor, the GBPA are the trustees and the Licensees are the beneficiaries…which the agreement makes clear: it was established for the benefit of the Licensees.
This means - amongst other things - no member, employee or executive of the GBPA should compete or own business in the Port area or compete with the Licensees. That is basic law!
Some people have read the Agreement and say “I don’t see all that in the Agreement”. Listen: you can’t read the law like a stop sign!
You don’t get to just have a feeling about the most sophisticated legal entity in the history of the Americas!
Some things are explicit and some things are implicit in the way - the manner - the agreement is structured. The drafter - the brilliant Sir Stafford Sands - may not have intended for the HCA to be a sovereign trust.
But the way the law works is you can initiate a structure that makes an agreement more or different than you intended. This is part of the sophisticated Jurisprudence one must grasp, rather than some people reading or overhearing about the HCA and thinking their enfrowsing impressions - upon which they insist evangelically - can interpret the most sophisticated bit of law in all the Americas, which establishes a state-within-a-state!
The meaning and model of the HCA was determined by a Royal Commission as was mentioned, 3 Privy Council cases and 3 Bahamas Supreme Court cases and a review by Cornell University graduate school in 1960!
In the private city of London UK, the U.K. Parliament has no power. The Monarch must request permission to enter the city from its Lord Mayor; which is given once per year at the Lord Mayor’s banquet.
We mustn’t therefore think we can just understand the HCA without having a judicial imagination; unless we think everything amongst us is simple and can be hustled like jungliss!
An instance that proves the sophistication of the Hawksbill Creek Agreement occurred in 2016, when some of Sir Jack’s family sought to remove him and have the GBPA “wound up” under the laws of The Bahamas. The Supreme Court - consistent with the 1971 Royal Commission - ruled that the GBPA could not be wound up under the laws of The Bahamas…because it was a special entity, no subject to those laws in the manner of an ordinary company. So the issue was not a contract…because no contract can limit the sovereign power of The Bahamas government.
The fact is the Hawksbill Creek Agreement is not merely a development contract. It is a sovereign grant and that grant is not to the GBPA but to the Licensees and the future Mayoralty of Freeport. This also means, The Bahamas government cannot buy any asset of the GBPA lawfully, since these assets are owned already by the future municipality of Freeport in 2054.
To the degree that these assets have be “sold”, both the Licensees and the Mayoralty would be able to sue and clawback the value that was sold.
Does it mean that The Bahamas government can’t have a vision for Freeport? No!
Of course the government can! But it has to gain the consent of 4/5ths of the Licensees…to agree to the government’s vision.
If you’d like a bit of academic jurisprudence: this means that whilst The Bahamas is a representative democracy, the Hawksbill Creek Agreement established a “participatory democracy” at Freeport.
European philosophers like John Locke and Swiss philosopher Jean Jacques Rousseau argued about the benefits of each system. The U.S. is a representative democracy for its congress and senate and non-representative for its Presidency, determined by the Electoral College.
Meanwhile Switzerland is a participatory democracy in which the citizens make the decisions, rather than merely vote for representatives. Freeport is - supposed to be - a participatory democracy, in which the GBPA and the government submits their proposals to the Licensee Association which gives its consent.
So the Hawksbill Creek Agreement gave us an opportunity to create a novel model of government, and for the most part, we’ve reduced it to a petty row about power - like arguing whether a bar of gold is yellow or not…when the issue is the value of the gold.
