Malfunction

System malfunction?  Overseas Report has a very interesting article by Benito Wheatley on the British Virgin Islands political culture.  Everything he says is applicable to Anguilla.  I urge you to read it for yourself.  His point is that the people of the BVI are discontented with the political system of that Overseas Territory.  He ascribes this discontent to the political culture of the Territory. 

In the BVI, as in Anguilla, recent governments can claim to have improved the territory’s progress and development.  Yet, some areas of society are worse off than previously.  Something is undermining government’s effectiveness.  He believes that the blame lies in certain political practices that have been adopted.  It is not that the politicians are particularly corrupt, it is that the system they have inherited and have continued to cultivate seems almost designed to cause suspicion and disquiet. 

The first corrupt practice he refers to is post-election patronage.  The culture of Anguilla, as in the BVI, and no doubt of every British Overseas Territory in the West Indies, is that the first thing a new government does is to dissolve the various Boards, Commissions and Committees established by the previous administration, and appoint their own political supporters in their place, no matter how inappropriate and incompetent they are.  They say it is expected of them, and they are only considering the expectations of their followers.  There is nothing further from the truth.  This is a system of British Foreign Office encouraged victimisation that has existed in our Leeward Islands since the earliest colonial times.  Political victimisation is designed to muzzle a segment of the population and to inhibit free speech in order to give the administration free reign.  It makes life easier for the Foreign Office as well as for the local administration.  It is an evil system that the British themselves have now done away with.  No politician in that country can appoint a single person to a Board or a Committee without that person being vetted by an independent body established for the purpose of ensuring that ability and merit outweighs political patronage.

He calls the second problem with our governments the “headstrong” approach to governance.  We in Anguilla well know what he means.  This is the system whereby Ministers are encouraged to believe that only they know best.  There is no need for real consultation with the people on certain matters.  They have been appointed “to rescue the people from themselves”.  Ministers, by their election to the House and appointment by the Governor, believe they have been empowered to take decisions, even when they are contrary to the opinion and advice of technical experts.  There is no need to give specific examples from Anguilla.  Every one of the public works projects, awards of licences, and granting of permits over the last ten years have proceeded under this system.  It is facilitated through the agency of compliant permanent secretaries.  The inevitable result of this style is that public confidence in the integrity of government leaches away.  The public becomes more and more disenchanted with the system of governance.  Their only pathetically inadequate remedy is the quinquennial return to the polls.  It is inadequate because the flaw lies in the system that each administration functions under, not with the individuals who happen to have been elected.

Tied to this problem of the headstrong approach to governance is the lack of transparency.  Contracts are awarded under a veil of secrecy.  Villagers wake up in the morning to find that a public road has been bulldozed through their midst in the night.  The Chief Surveyor approves the alteration of boundary marks when the affected neighbours have not been notified of the proposed change.  The public works tendering process is neither constitutionally mandated nor otherwise protected from political interference.  On the contrary, public works contracts are viewed as a political opportunity to keep contractors happy and in the right camp.  Worse, many contracts are awarded to political favourites without any consideration of the public interest in having the work done at a reasonable cost and to an adequate standard.  The standard argument in support of this approach is that if government had to consult the public on every issue nothing would get done.  Our governments fail to accept that a proper functioning democracy depends on a consistent and dependable consultative process.  People who are affected by public works decisions must be given a chance to make their input, even if it slows the pace of government.

His final criticism is the corrupting influence of the constituency system.  We in Anguilla all know about that.  The politician with the means to buy off the majority of his voters is almost guaranteed to win his seat in the House.  When most elections are won by majorities of less than one hundred, it helps if you have more relatives in your village or district than the other candidate.  We expect our politicians to favour the constituency from which they were elected.  We demand the right to approach the Minister and ask for his help with a personal problem, even if it means corrupting the system designed for the protection of the public.  Planning permission objections are overruled, work permits are granted, and residence permits are awarded, depending on who is the individual applying.  This is so routine that Ministers tout it as proof of their concern for the interests of the little man, a source of popularity.  It is not recognised for the corruption that it is.

The blame for this must be put where it belongs.  The political system, the Westminster Model, does not function efficiently in Anguilla.  We need to put more checks and balances in place.  Structural change is needed in the way we do government in Anguilla.  A course of re-education for all our senior officials in the principles and practices of transparency and accountability is urgently needed.  A legally enforceable and mandatory tendering process for all contracts above a certain level is essential.  Transparency in the award of contracts would be a first step.  The granting of permits and licences on the basis of merit only, is universally demanded.  The vetting of political appointees requires no great change in the law, only a commitment to transparency and accountability.  Island-wide elections must be provided for in the new Constitution.  These reforms are needed by all the Territory governments of the West Indies.

Surveys

More on the forum last Tuesday.  Last Tuesday, I took the opportunity to bring up for discussion a common problem attended to at the Anguilla Legal Aid Clinic:  Surveying methods in Anguilla.  I explained that one of the most common complaints in the Legal Aid Clinic had already been mentioned by Dame Bernice.  That was the practice of the Planning Department, with the compliance of the surveyors, to insert provision for a public road into every subdivision.  This was done without informing the landowner of his rights, or the implications of what was being done.  The public road reserve was often inserted into the survey without the road connecting to an existing road at either end.  The road provision was stuck in with no justification or rationale, merely in the hope that one day it might be extended over the adjoining parcels.  No compensation was offered or even discussed.  This amounted to a fraud, in my opinion, on families that were subdividing inherited land.

I told the audience that a second problem that arose in the Anguilla Legal Aid Clinic also involved surveys.  I explained that in most West Indian islands, there were rules that required surveyors to notify neighbours whenever a new boundary was going to be put down.  Surveyors should be required to get the consent of all affected landowners before the Chief Surveyor permitted any survey to be registered.  It appeared that the contrary was done in Anguilla.  Surveyors here are not guided by any written standards.  Here, surveyors are encouraged not to speak to neighbouring landowners, but to present a fait accompli in the hope that any dissatisfaction would be mute and helpless. 

There had also been complaints that the Planning Department sometimes required a road provision to be made alongside a boundary without any discussion with the neighbouring landowner who might have been willing to contribute one half of the road provision.  The result was that persons who were desperate to have their land sub-divided were being compelled to provide a road for all the neighbours without the neighbours contributing.

A lively discussion followed the two presentations.

Land

The Legal Aid Clinic is celebrating its third birthday this month.  Part of the celebrations is a series of four forums being held in the Valley on problems that commonly arise in the clinic.  Last Tuesday, attorney at law Dame Dr Bernice V Lake QC, and Legal Aid Clinic legal adviser Don Mitchell CBE QC, made presentations on land issues in Anguilla to a small but appreciative audience.

Dame Bernice explained that the principal problems in the registered land system in Anguilla arise when there is a devolution of title.  There are difficulties when assertions are made as to ownership of rights in people’s lands.  These mainly spring from claims to rights of way.  The principles that govern such claims are rooted in the common law, or customary law, and exist outside of the registered land system.  Too many people believe that because they have been permitted to pass over somebody else’s land for a period, that vests in them a right to claim ownership of a right of way. 

She also commented on the practice in the Planning Department of requiring persons who apply for planning permission to subdivide their land to put in a public road to be owned by government as a condition of the subdivision.  They do this without informing the owner what they are doing, and without any offer of compensation.  Planning has a right to insist on access, but a private right of access is not the same thing as a public road.  The problem that has arisen is that when government finds a track over your land, they now claim an established public road that they can expand into a 32 foot highway without payment of compensation.  It took a case brought by Rev John Gumbs that went all the way to the Privy Council to correct that error. 

She also remarked on the mistaken belief held in some quarters that all Anguillians have a right of access over private land to any beach.  She explained that the public has the right to use the public beach, but if there is no registered right of way over private land to get to the beach, then access must be by boat.  The public beach is that strip of sand between the sea bed and the high water mark, it does not extend any further back into private land.  

Suspension

A sad day for the British Overseas Territories. It is a sad day for all of us when the UK has to suspend the constitution of a British Overseas Territory such as Anguilla is. The Minister announced she was doing just that for the Turks and Caicos Islands in a written statement in Parliament yesterday. And, this modern constitution is barely two years old.

The Minister wrote in part:

I wish to inform the House that on 16 March 2009 the Governor of the Turks and Caicos Islands (TCI) published the interim report of the Commissioner, the right hon. Sir Robin Auld (http://www.tci-inquiry.org/interim_report.html).

The Commissioner states that the written information obtained in the first six months of the Commission’s inquiries, when coupled with the evidence in the public hearings in TCI earlier this year, have provided information in abundance pointing to a high probability of systemic corruption or serious dishonesty. In his view this, together with “clear signs of political amorality and immaturity and of general administrative incompetence, have demonstrated a need for urgent suspension in whole or in part of the constitution and for other legislative and administrative reforms”, and change in other related matters.

In light of the accumulation of evidence in relation to TCI in the last year or so, and fortified by the Commissioner’s interim report, the Government have formed the view that parts of the constitution will need to be suspended and have decided to take steps to enable it to do so. I am today making available on the Foreign and Commonwealth Office (FCO) website a draft Order in Council prepared by the FCO which would suspend parts of the constitution, including those relating to ministerial Government and the House of Assembly, initially for two years, although this period could be extended or shortened. The draft order will be submitted to Her Majesty in Council at a meeting on 18 March. If made, the order will be laid before Parliament on 25 March. Unless the Commissioner’s final report significantly changes our current assessment of the situation, the order will be brought into force after the final report is received. However, the order could be brought into force sooner if circumstances arose in the territory prior to that date which justified suspending relevant parts of the constitution. This intervention is for an interim period only.

We in Anguilla have to be thankful that there is no evidence here of the sort of widespread corruption that Sir Robin Auld uncovered in TCI. The principal difference between our two countries is that in Anguilla government has little or no Crown land to dispose of at personal profit to Ministers. In TCI, by comparison, most of the territory appears to have been made up of Crown land. They ploughed fertile furrows through the islands. The transcript of the evidence taken reveals the multitude of devices TCI politicians used to make money from dealing in the public’s land. Who knows where we in Anguilla would be today if we too had had large tracts of Crown land waiting to be disposed of?

What is it, by comparison, if our Ministers occasionally overrule the Planning Department and permit a favoured individual to build a restaurant or a beach bar on the public beach? They overrule the Planning Department for favourites in much more fundamental ways every week. They call it “being sensitive to the needs of the poor Anguillians”, and they get away with it in the eyes of trusting and gullible Anguillians.

What if the Minister is charmed by the young, attractive Dominicana into writing a personal letter addressed to one of the more vulnerable restaurateurs on the island, requesting him to give her a job without the work permit she so obviously requires? That is the Minister being sympathetic to the needs of poor Anguillians, isn’t it? Although, as one restaurant owner complained to me, “Why is it he never sends me young men, only young girls?” Anyway, as one Immigration official told me, “We stopped him doing that.”

What if the Ministers pad out the Boards of statutory corporations with political supporters and hangers on? They all need a job, don’t they? This is being sensitive to the needs of poor Anguillians. As if turning the Board of the Health Authority of Anguilla into a virtual sub-committee of the local Masonic Lodge is somehow a shining example of transparency and accountability! In my opinion, it is exactly the opposite to being sensitive to the needs of poor Anguillians.

So what if there is no binding Code of Conduct for Ministers. They had one in the TCI, and, as it was purely voluntary, it did not help one bit.

So what if we in Anguilla have no Integrity Commission. They had one in the TCI, and, as it had no teeth, it did not help one bit.

So what if the Chief Auditor has given our public accounts a failing grade year after year? Not even the Opposition in the House of Assembly has ever asked a single question about the misspending revealed.

Inappropriate interference in and by-passing of statutory regulatory bodies has, over the years, become the norm. The granting of exemptions, waivers and discounts in the areas of aliens landholding licence fees, customs duties, Environmental Impact Assessments, permanent residence certificates, and belongerships, are counted by all politicians in Anguilla as essential perquisites of power. The unconstrained freedom, without reference to any principle or policy, to decide when to grant and when to revoke work permits, licences, public works contracts, and franchises and monopoly concessions, adds the icing to the cake. As my Dominican friend likes to tell me, “In Anguilla, once you have the right godfather, you can do anything.”

No party when in opposition wants to change the political culture. They only want to be the ones enjoying the privileges and perks of power. No one cares that all this is equally evidence of our political amorality and immaturity, and of our general administrative incompetence.

So long as our people permit our leaders to continue to exercise power over us, with no checks or balances other than the vote every five years, things can only go from bad to worse.

Long Bay

Long Bay is beckoning us to come and have a swim. Long Bay is another access problem waiting to explode. One public access to the beach used to be the road that now leads to Oliver’s Restaurant.

I remember 35 years ago we used to drive down it to the beach next to Howard Clark’s house. That road was given away by Hubert years ago to Oliver. The road has been diverted from where it once ran and now ends in Oliver's car park. With his permission, you may be able to staircase to get onto the beach.

All the other roads off this road appear to be private roads.

Another traditional public access to the beach lay further to the west. It has been effectively closed off by Geoff Fieger. It used to run directly to the beach from just east of Lucy’s restaurant. It seems that Mr Fieger wanted this road to come to his house directly. No doubt with the permission of the Planning Department, he built his house directly in the path of the road. In exchange, he gave the public an alternative access to the west of his property.

However, he has fenced in the last 50 feet of it before the beach. The result is that anyone driving up will think they are trespassing on private property, and will not use it to access the beach. To help you to make up your mind, there is a sign on a column. It proclaims the gravel path “Fieger Villa beach access”.

Additionally, the access is now squeezed between concrete monuments, both lying down and standing. Some helpful person has even left a pile of sand and stones lying in the way. It appears that the idea of this further obstruction is to suggest very strongly that the use of the path is limited to the guests of the Fieger Villa.

There used to be a third road that led to Long Bay beach. A little further to the east of Howard Clark’s road was the access that ran down to the beach to the west of Long Bay Pond.

The Planning Department permitted Robert FX Sillerman to enclose the end of it where it approached the beach. He has included it in his high wall.

Mr Sillerman’s wall reaches upto the pond, so that it is now impossible to get from the road to the beach without wading through the pond.

God alone knows who permitted this abortion. Ministers have apologised to the people of West End and have promised to rebuild this public access to the beach. That was three years ago, and nothing up to this time has happened. In any event, that would involve filling in part of the pond, an important wetland habitat with nesting birds. Another abortion of a solution.

There is no public right of way to drive your car up to Long Bay beach. This is not the fault of any of the persons mentioned in this post. They have no responsibility to protect public access to the beach. That is the duty and responsibility of our Planning Department and our Surveys Department. They are expected to ensure there are signs at every public access saying “Beach access”. We expect them to be alert to notice when there is any infringement of a public right of way. Individual members of the public have no legal right to enforce a public right of way. That is what the Attorney-General’s Chambers are there for.

The Surveys Department know from their records where the public accesses in Anguilla are. These public rights of way are not noted on the Land Registers, due to a defect in the relevant law. Public rights of way will not be apparent to someone who searches the public Registers. The government records kept in the Survey Department are not part of the Land Registry records. Even if the persons mentioned above had searched the public Land Registers for a record of public rights over their lands, they would not have found them mentioned.

The Anguillian public expects public rights of way to appear on the publicly available Land Registers. It is pure negligence and cowardice why they do not. We now have no way of knowing how many of the three roads described above were public rights of way. If they ever were, they are now inaccessible to the public.

If you want to swim at Long Bay beach now, better hire a boat. There is public access by sea from Road Bay.

I feel bad for the children. They will never be able to enjoy what we once had.

Rendezvous

How to destroy the tourism sector and go back to raising goats. Rendezvous Bay has a limited amount of public access to the beach. Most roads go as far as a hotel, and then you must access the beach by foot through the hotel grounds. Not that that little encumbrance will stop the most enterprising of our entrepreneurs from getting their stock and trade onto the public beach when they want to do some hustling.

My attention was caught by a recent post on the Anguilla Guide Forum.

The post suggests that there is a beach bar built on the beach. That is illegal, as every Anguillian school child knows. It is illegal so long as the relevant government officers do their duty. Of course, with sufficient of an incentive they can always wink an eye and look the other way. Just to find out what was going on, I decided to take a drive down to Rendezvous Bay and find out for myself. This is what I found:

It was midday, but the Sunshine Shack was closed up. There was no one I could find to ask the most obvious questions. Who gave you permission to trespass on the public beach? Are you licensed? I could see they were selling drinks. There was a cooler and the post above said so. Their drinks were said to be very good. You are not allowed to sell any drinks at all unless you have a restaurant licence or a liquor licence. I could tell they were serving food. There was a grill securely chained to the beach chairs.

So, I turned around and looked about. Were my eyes deceiving me? Were those tyre tracks in the sand? That is a complete no-no. No one is permitted to drive a vehicle on the beaches of Anguilla. So, I enquired from passers by. Had they seen a vehicle driving by? Yes, they said. There is a white jeep that comes to the Sunshine Shack every day bringing supplies. Unbelievable! Where did it come from? It came onto the beach from the public road to the beach next to the Anguilla Great House, was the reply. So, I went to have a look.

Sure enough, I could see the tracks of a motor vehicle passing and re-passing in front of the hotel. You can see it for yourself. What in the world, I wondered, did Mr Fleming think about that assault on the sensitivities of his guests? I decided to come back to Sunshine Shack when there were people around.

On my way out, I discovered the road that must have originally led to the shack had been cut off by boulders. No wonder the entrepreneurs were using the public beach. But, who had given them the right to do so?

I decided to ask Vincent Proctor of the Physical Planning Department and Karim Hodge of the Environmental Department what they knew about this trespass. They are our guardians of our public beaches. We depend on them not to slack off. So, I wrote:

“A friend of mine sent me this link to the Anguilla Forum . . . It would be useful to know if the Anguilla Forum post is true that a shack has been permitted to be built on the public beach at Rendezvous Bay. It would also be useful to know, if it has planning permission, who gave it to them, if it has a restaurant licence, who gave it to them, if it has a business licence, who gave it to them, if it has public health permission to handle food, and who gave it to them, if they have access to the site along a right of way, and if so what kind of right of way it is.

We all want to encourage local business. But, not if it is illegal. I class operating a beach bar to serve food and liquor to the public without a liquor or restaurant licence in the same category of activity as selling cocaine. No doubt that is just my obsession with things being done legally.

Grateful to know if you knew about this, and what your position is on the question.”

Needless to say, after several days of waiting there has been no response, far less any explanation for this outrageous new development.

On Saturday 21 February, I finally caught up with the proprietors of the beach shack. Three fierce young men approached me. They were not at all happy that I was photographing their establishment.

I could see the liquor bottles on the shelves behind the bar counter. Then, I made out some sort of official-looking government licenses tacked to the wall behind. Somebody had evidently given them some kind of permission. I could not get close enough to the licences to see what they were for.

“You are not allowed to take photographs here!” That was all the encouragement I needed to high-tail it out of there. I guess that must have been one of the friendly proprietors, Garvey, Perry or Leon, speaking.

I do feel bad for the children. They will never be able to enjoy the rights that we once did.

Roads

The failure of successive governments to place on the register all public rights of access to our beaches is a ticking time bomb. There are a lot of unregistered public rights of way in Anguilla. Most public roads in Anguilla have never been declared to be public roads. When you drive on a road to the beach in Anguilla, you never know if it is a public or a private road. The public roads have, in many cases, not been registered as such in the Land Registry. Some of the signs, fences, and gates, that indicate a right of way is private are in fact not true. If you make a search in the Land Registry to discover if a particular road is private or public, you will, in most instances, get no assistance at all. It is as if there exist very few public roads in Anguilla, particularly those leading to the beach. Nothing could be further from the truth. They have just never been registered by the government as public roads. It was not for lack of opportunity or of the necessary tools.

There is a procedure in the Anguilla Roads Act to declare public roads.

There is a procedure in the Registered Land Act to register public roads for the avoidance of doubt.

There is a procedure in the Land Acquisition Act for government to take over private land and make it a public road even against the wishes of the landowner, paying compensation as is usual.

There was a procedure that existed in 1974, under the now-abolished Land Adjudication Act, for government to claim the public roads and accesses. Back then, government could have had all existing public rights of way registered under the land adjudication process that was under way at the time. Instead, they took the cowardly way, and ducked their responsibility. The government was afraid that it would become unpopular if it claimed public roads or footpaths over otherwise private land. So, they decided only to claim the most obvious public roads, not those that might be controversial. Ninety percent of the public rights of way in Anguilla were ignored by the registration process. They were left for some future government to sort out.

That is the situation that the public users of the beaches of Anguilla find themselves in now. We are being increasingly barred from accessing the public beaches. All because of the neglect and cowardice of every government back to the time of Ronald Webster. As a result, unnecessary problems are being stored up for future generations of Anguillians.

I feel bad for the children. They will never be able to enjoy the rights that we once had.

Baccarat

What Happened to Baccarat Anguilla? Andrew Calvo has a US commercial real estate developer’s take on the latest developments at Flag in Anguilla. Anguillian readers may be interested in what he has to say. He writes on his blog today:

“I’ve been noticing an uptick over the past 30 days from visitors who have viewed my blog while searching for information on the Baccarat Hotel located within the Temanos Anguilla development project. Normally a story that I wrote months ago wouldn’t receive much interest day after day like this one has. It got me thinking though - what is going on with this project?

Originally announced in January of 2008, it was supposed to be the hotel component of Flag Luxury Properties Temenos Anguilla resort property. Originally to be branded as a St Regis (when the project was announced in 2004) it apparently ended up being changed to a Baccarat Hotel & Residences location. The hotel was supposed to be finished by the end of the year - but from what I’ve heard from a few locals who have emailed me, it’s nowhere near being finished (can someone update me on that fact?).

Once the initial announcement was made a website immediately went live - www.baccaratanguilla.com, and I expected to see over time additional components added to it - pictures, descriptions, condo layouts - but instead the website went completely inactive over the summer. Additionally, the BaccaratHotels.com page redirected to the main Temanos Anguilla website rather than the BaccaratAnguilla.com site. Now, the BaccaratHotels.com site doesn’t even link to or mention anything about Baccarat Anguilla. The Temanos Anguilla website now has no mention of the Baccarat branded hotel, all references to it have been removed.

What happened?

Barry Sternlicht and Robert FX Sillerman - the principal behind Flag Luxury Properties have a history of working together on projects. Barry was still a part of Starwood Hotels when the St Regis was initially announced for the Anguilla project, and they are both principals in Riv Acquisition Holdings - the company that owns a portion of and is trying to take over the Riveria Casino in Las Vegas, so its not like Baccarat and Flag Luxury had a relationship like most other developers/hotel companies.

I was all set to just write this off to another casualty of the problems with getting credit - Starwood Capital isn’t exactly going gangbusters opening up their new brands like they were initially expected too - but then I came across a comment posted to my blog earlier today which inferred that the project has financial difficulties - with the management some how misleading the property owners about some aspect of the project. (Maybe that the centerpiece component a Baccarat Hotel will no longer be a part of the development?)

So it still could be a simple issue due to the credit crisis, or it could be a more underlying issue with the way business is being conducted at the property (which I hope is not the case - since Flag Luxury is a reputable company).

No matter what the real reason is - it sounds like Baccarat is permanently out of the equation for the Anguilla property, and the actual completion of the property will not occur as scheduled for late 2008. As for why I’ve been getting so many visits related to the Baccarat Anguilla post - its could be related to the lack of news on a project that property owners have already made deposits for.

We’ll see what the future holds for this property.”

Little does he know what a disaster it all is. And, it all happened long before the present downturn in the economy. It has to do with bad planning, the bane of all development in Anguilla today. Bad planning in every sense of the word. Bad management follows closely on the heels of bad planning in explaining what happened at Flag.

We shall see if this project has any future at all.

Meanwhile, the bush is rapidly growing back over the recently abandoned golf course.