Raymond Davis v The Premier of Bermuda E. David. G. Burt

• Jurisdiction: Bermuda
• Judge: David Hugh Southey
• Judgment Date: 05 August 2022
• Year: 2022
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION 2021: No. 29

In the Matter of an Application for Judicial Review and in the Matter of the Commisions of Inquiry Act 1935

Between:

(1) Raymond Davis

(2) Myron Adwin Piper

Applicants

and

(1) The Premier of Bermuda E. David. G. Burt

(2) Commission of Inquiry into Historic Losses of Land in Bermuda

Respondents

[2022] SC (Bda) 58 Civ

Before:

Assistant Justice David Hugh Southey QC

CIVIL JURISDICTION 2021: No. 29

In The Supreme Court of Bermuda

Appearances:

Mr. Raymond Davis & Mr. Myron Piper Applicants in person

Ms. Lauren Sadler-Best for the First Respondent

Mr. Delroy Duncan QC for the Second Respondent

Introduction

1 This application for judicial review raises issues about the scope of the Commission of Inquiry into Historic Land Losses in Bermuda (‘the Commission of Inquiry’). The Commission of Inquiry had been appointed under the Commissions of Inquiry Act 1935 (‘the 1935 Act’). Its terms of reference are set out below.

2 When hearing this case, it has been clear to me that land losses and the Commission of Inquiry are matters that significant numbers of Bermudans have strong views about. I hope that all who read this will understand that my role is a limited one. It is to determine the merits of arguments that are properly within the scope of this application for judicial review. As my concluding remarks should also make clear, it is not my role to express views regarding wider issues.

3 In Bermuda Emissions Control Ltd v The Premier of Bermuda [2016] SC (Bda) 82 Civ Kawaley CJ noted that:

I have attempted to balance the need for this Court to properly exercise its supervisory jurisdiction over the COI with the need to avoid the exercise of such supervisory jurisdiction being used to undermine the efficient and clearly lawful workings of the COI in their broadest canvass. The purpose of judicial review is to promote the interests of good public administration. The COI, within a narrower mandate, has a similar objective. [5]

4 In delivering this judgment I have sought to perform the balancing exercise described by Kawaley CJ.

5 As the judgment below may demonstrate, the issues raised by this application for judicial review are technical and complex. Many lawyers would have struggled to engage with them. Even though I have not accepted every submission made by the Applicants, I have appreciated their efforts to assist the Court. They have sought to engage in a positive manner despite the complexities of the issues. I have also found the submissions of counsel for the Respondents of great assistance. They were cogent and comprehensive. I thank all of the parties.

6 At times the Applicants' submissions went beyond the evidence filed by the parties. I make no criticism as I understand they are not professional lawyers. I tried to ensure that submissions focused on the evidence. In drafting this judgment I have sought to focus on the evidence. In any event, I do not believe that anything turned on the submissions that were not supported by the evidence.

Factual background

The establishment and work of the Commission

7 The Commission of Inquiry was appointed on 31 October 2019.

8 According to the Commission of Inquiry's report as well as its terms of reference, the impetus for its appointment was a motion of the Honourable House of Assembly (‘the HOA’) on 4 July 2014 regarding land expropriation and the need to investigate it. On that date the late C. Walton D. Brown, JP, MP, a member of the Progressive Labour Party which was then the Official Opposition, introduced the motion. The ensuing parliamentary debate revealed that there were particular concerns regarding 2 well-known expropriations in Bermuda, Tucker's Town and St. David's Island. However, there were also concerns regarding widespread injustices in dealing with losses of land in other areas across the island. For example, Mr Brown MP stated that:

We have an opportunity … to help correct some of the wrongs of the bad old days when justice was a fleeting illusion for many, and where the rich, the powerful and the connected acted with impunity. The theft of land, the dispossession of property, took place in this country on a wide scale and over a long period of time. The villains in these actions, Mr. Speaker, were oftentimes lawyers, real estate agents and politicians, but not exclusively so. The victims were at times the poor and the marginalised, but not always. What the victims shared though, Mr. Speaker, was an inability to secure a just outcome. … (Hansard 2014 p. 2603).

9 Mr Brown MP clearly was of the opinion that one group that was connected was those with a political connection. He stated that:

The “politically connected,” Mr. Speaker, refers to individuals with close ties to politicians but, perhaps more importantly, to people who have actually sat, served in this Honourable Chamber. A significant number of land grabs have their fingerprints and their signatures on paperwork marked for posterity. (Hansard 2014 p. 2603).

10 I will consider below the approach that I believe I should adopt to this material. However, it is important to note that the First Respondent's counsel made it clear in answer to a question being asked by me that she referenced these passages to demonstrate that terms of reference of the Commission of Inquiry drafted with intent of being broad. It appears to me that it is correct that these passages of Hansard demonstrate that at least Mr Brown MP was keen that the terms of reference should be broad.

11 The motion approved by the HOA following the debate was as follows:

…to take note of historic losses in Bermuda of citizens' property through theft of property, dispossession of property and adverse possession claims; AND BE IT RESOLVED that this Honourable House calls on His Excellency the Governor to establish a Commission of Inquiry into all such known claims and to determine, where possible, the viability of any such claims and make recommendations for any victims of wrongful action to receive compensation and justice. [Emphasis added]

12 The use of the word ‘all’ is significant as it suggests an intention that the Commission of Inquiry should be comprehensive.

13 There was then political debate about whether the motion should be acted upon. That debate appears to me to be irrelevant to what I need to determine. No party has relied upon it.

14 Following a failure to act on the 1 ^st motion, in 2017 the motion was again passed. This time it was acted upon by the Premier. A Commission was issued under the 1935 Act. This named the Honourable (Retired) Justice Norma Wade-Miller as the Chairman. The terms of reference set by the Premier (‘the terms of reference’) were said to be derived from the HOA motion and were as follows:

• 1. Inquire into historic losses of citizens' property in Bermuda through theft of property, dispossession of property, adverse possession claims and/or such other unlawful or irregular means by which land was lost in Bermuda;

• 2. Collect and collate any and all evidence and information available relating to the nature and extent of such historic losses of citizens' property;

• 3. Prepare a list of all land to which such historic losses relate;

• 4. Identify any persons, whether individuals or bodies corporate, responsible for such historic losses of citizens' property; and

• 5. To refer, as appropriate, matters to the Director of Public Prosecutions for such further action as may be determined necessary by that Office.

15 The Premier's commission also made it clear that findings should be submitted within 40 weeks or such longer period as the Premier might direct.

16 Mr Marc Telemaque, Secretary to the Cabinet, says in an affidavit that:

The Cabinet took the view that the establishment of a Commission was a matter of importance to the people of Bermuda, particularly those who considered themselves and their families to have suffered losses of land through theft of property, dispossession of property and adverse possession claims and through diverse other unlawful and irregular means over the past decades. The depth of feeling attached to these historic issues was evident in the protest of the then Governor's decision not to issue a commission of inquiry. The Cabinet determined that it was important to give a voice to as many of these people as possible. The breadth of cases suggested the need for an investigation that would be wide enough to allow such cases to be reported and heard. [Emphasis added]

17 The emphasised words are obviously consistent with my conclusions about the significance of the word ‘all’ in the resolution of the HOA.

18 On the first day of the Commission of Inquiry's open hearings, Mr Ivan Whitehall QC, senior counsel for the Commission stated that:

… once you take the context of the current order in counsel – particularly the context in which the words I've found – the word historic signifies both the temporary inquiry and as well as looking for a systemic injury and, therefore, the Commission should determine through the lens of the cases that have been filed before the Commission and based on the evidence it is about to hear, whether the evidence taken as a whole demonstrates a historical structural problem or systemic failure in identifying the lands where lands were historically lost by reason of theft, unlawful or irregular dispossession, unlawful or irregular adverse possession, or other unlawful or irregular means.

19 Senior Counsel's written submissions also stated that:

Given the context in which the words are found historic signifies both a temporal inquiry as well as a systemic inquiry and I would submit that this Commission should determine through the lens of the cases filed before the Commission and based on the evidence it is about to hear whether the evidence taken as a whole demonstrates a historical structural problem or systemic failure and identify...