By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamian entrepreneur aiming to restore Paradise Island’s lighthouse yesterday said he feels “a lot more confident” of winning his lease battle with the Government after getting final Privy Council go-ahead.

Toby Smith, confirming to Tribune Business that the Court of Appeal has granted him “final leave” to take his Crown Land lease battle before the highest court in the Bahamian judicial system, also disclosed the decision was handed down almost 14 years to the day that he began pursuing his ambition to develop a beach break-type destination near Colonial Beach.

Appeal justice Stella Crane-Scott, in a short April 8, 2025, verdict, affirmed the Court of Appeal’s unanimous decision to permit Mr Smith and his Paradise Island Lighthouse and Beach Club Company vehicle to take their case to London after the Government, via the Attorney General’s Office, raised no objections to the move.

“Having regard to the matters set out in the affidavit of support, and having regard to the assurances of Mr Mackey that he has no objection to the motion being granted, the motion for final leave, dated February 17, 2025, is granted,” appeal justice Crane-Scott. Mr Mackey is Kirkland Mackey, the attorney representing the Attorney General’s Office.

“It’s wonderful news,” Mr Smith told this newspaper of the final go-ahead. “We are looking forward to what the future brings. We are confident we shall be successful with a favourable ruling from the Privy Council despite the Government fighting us every step of the way.

“I certainly have a lot more confidence about the outcome since Sir Michael Barnett’s ruling in the Court of Appeal, given his seasoned experience and calibre and simplification of the case. A deal was made, and the Government thought they could stick it to a Bahamian and walk away with it. Now they have met more than their match. This will be a good thing worth waiting for.”

Sir Michael, then-president of the Court of Appeal, in his March 14, 2024, verdict split the court with a dissenting ruling that he would order “specific performance of the lease” by the Government as Mr Smith had “a binding agreement” to lease five Crown Land acres - split into two separate parcels - for a beach break-type destination.

He also found that the then-Minnis administration did not sign the agreement with Mr Smith because it “determined that it had found a better deal” - namely Royal Caribbean Cruise Lines’ Royal Beach Club project, which itself wanted to lease three of the same acres sought by the Bahamian entrepreneur.

However, Sir Michael’s dissenting verdict did not prove decisive, as his two fellow justices on the three-strong Court of Appeal panel rendered the majority decision in favour of the Government by finding the reverse - that no valid, legally binding lease agreement was in place. This is the decision Mr Smith has now got permission to challenge at the Privy Council level.

Royal Caribbean subsequently reduced its Paradise Island Crown Land needs from seven acres to four, dropping the three-acre parcel disputed by Mr Smith in a bid to extricate itself from the latter’s legal battle with the Government. However, the Bahamian entrepreneur said there remain several unanswered questions regarding the cruise line’s move.

For he again challenged yesterday whether Royal Caribbean is still operating from the original seven-acre lease agreed by the Government, which included his disputed three-acre parcel, or is now using an amended or new lease. While the cruise line has indicated that it is indeed working from a new lease and reduced parcel, Mr Smith said he has yet to see sufficient documentary proof such as Registry of Records filings.

“No details have been provided. The facts of the new deal have not been released,” he argued. “I think my land may still be intertwined with their seven-acre lease, and they have not published anything to say anything different.”

Noting that the “final leave” granted by the Privy Council emerged on April 8, almost 14 years after he initially began pursuing his ambitions to transform the western tip of Paradise Island into a destination for both Bahamians and tourists on April 12, 2011, he noted the Prime Minister’s pledge at Monday’s Cotton Bay ground-breaking that “the days of Bahamians being observers to our own development are over”.

“The days of Bahamians being observers are over... What does he call what’s going on on Paradise Island,” Mr Smith told Tribune Business of his predicament. Philip Davis KC, speaking in the House of Assembly, has told Mr Smith to reapply for his project after losing the initial Supreme Court case while asserting that he did not have a valid, legally-binding Crown Land lease for his two and three-acre parcels.

“They told me a year ago to reapply,” he recalled. “I reaffirmed my position [that the lease and deal were valid] and got no response. I reaffirmed details of what the project was and provided proof of financing. I’ve shown the Government on four occasions over the last 14 years, every time they’ve requested proof of financing, they’ve provided it.

“The last time, I went with 250 percent more than the money I needed. I walked in with $7m for what was originally a $2m project.” Mr Smith, in a subsequent statement, thanked his attorneys Damian Gomez KC and Sidney Cambridge.

“Paradise Island Lighthouse and Beach Club Company is simply trying to bring to fruition a low impact, sustainable, cultural and historical hub for Bahamians and our guests to enjoy in a right-sized venue. Our mission has lead with ‘is this best for The Bahamas? and is this best for Bahamians?’, and all aspects have passed that litmus test,” he argued.

“Paradise Island Lighthouse & Beach Club Company has been ready since day one to fully restore the Paradise ‘Hog’ Island Lighthouse, built in 1817, back to its original glory at no cost to the Bahamian people, provide access to Bahamian Crown Land and access to our own beaches.”

Mr Smith, in his Privy Council grounds of appeal, is asserting that the real issue is whether a January 7, 2020, letter from Richard Hardy, then-acting director of the Department of Lands and Surveys, which contained the lease, “evidenced a binding agreement”.

He added that the Court of Appeal majority “asked themselves the wrong question” by focusing on whether the lease was “a valid agreement” in the absence of the signature of Dr Hubert Minnis, then minister responsible for Crown Lands. “The real question was whether the essential terms of an agreement for lease were present,” Mr Smith’s filings added.

“Had the learned justices of appeal not so misdirected themselves, they would have held, as Sir Michael Barnett did, that all the essential terms of an agreement for lease were present, there was nothing further to be negotiated or agreed, and that all that remained was for the respondent [the Attorney General and the Government] to sign and seal the lease as per the agreement.”

Appeal justice Gregory Smith, in the majority Court of Appeal verdict, sent Mr Smith and his company a letter headlined “approval for Crown Land lease”. This covered a two and three-acre parcel, respectively, with the first adjacent to the lighthouse at Paradise Island’s western end and the other for the ‘beach break’ destination.

The letter contained instructions on how the attached lease documents were to be signed, dated, sealed and notarised, then returned to the Department of Lands and Surveys. Once the minister responsible for Crown Lands, who was then Dr Minnis, signed a copy of the lease was to be returned to Mr Smith.

The Bahamian entrepreneur signed the lease forwarded by Mr Hardy, and returned it to the Government for execution two days later on January 9, 2020. Dr Minnis, though, did not sign the lease on the Government’s behalf as it emerged that Royal Caribbean had rival designs on the three-acre Crown Land parcel for its own Royal Beach Club project.

Sir Michael, though, disagreed and said he would have ordered “specific performance of the lease” by the Government. Describing Mr Hardy’s letter as being of “major importance”, the Court of Appeal president said the letter was headlined “approval for Crown lease” and did not say or suggest there were any matters left to be agreed between the parties.

“In my judgment, the critical question in this appeal is whether the letter of January 2020 evidenced a binding agreement between the appellant and the minister for the lease of five acres of land on Paradise Island,” Sir Michael wrote. “The Chief Justice formed the view that there was no concluded agreement.

“It is difficult to see how it can be said that there was no concluded agreement. The lease sent on January 7, 2020, had been prepared by the respondent’s [Attorney General’s] lawyers on the respondent’s instructions. There was nothing further to be negotiated and agreed....

“The document reflecting the terms of the agreement was sent by the respondent to the appellant for signature. All that was left was for the respondent to sign and seal the lease. He did not do so because the Government determined that it had found a better deal.”