Burying Rick’s Zombie

THERE are a few persons who have turned what we now call the Grynberg issue as a bee in their bonnet. Perhaps, none more so than Rick Wayne. They have used the issue to tar and feather both Kenny Davis Anthony (KDA) and the SLP. Rick, however, has been either very smart or very careful, never stating that KDA engaged in any corruption in issuing/signing the licence/contract.

In fact, Rick’s involvement is quite interesting. We all know that Rick is driven by ego, plain and simple. He hates KDA for firing him from the Senate and worsened by the obvious ignoring of Rick by KDA. Now that hurts! This is Rick, after all. So, first Rochamel, now Grynberg. The same Rick that has up to now never said anything about Daher Mall, Black Bay Lands, Canelles lands, Dolphin Park, OJO Labs, the Range Development and, of course, his famous comments to Dr. Ernest Hilaire that he has never read the DHS Agreement. Mindboggling!

Rick, or any other commentator, has never cited any clause in the licence/contract which they found to be egregious or worked against the national interest. They have, however, seized upon the notion, as an article of faith or a very narrow reading of the Minerals (Vesting) Act, that KDA was not authorised to sign the licence/contract. The signing of such a contract, they insist, was to be done by Her Excellency, Governor General Dame Pearlette Louisy.

That their raising Cain about the issue did not cause KDA to cower or condescend to their level, they also howled that it was costing the government and people of Saint Lucia millions of dollars to defend a suit against GSM, as if it was improper for the State to pay for legal defence of its interest. Recognising the rickety premise of such an argument, they threw in an emotional firecracker and suggested that the Saint Lucian state does not have access to its seabed.

There are issues about the signing of the agreement over which we may quibble, and these are more managerial related to the policy process than it has to do with misfeasance or breach of public trust or any other nefarious reasons. The previously cited bases for the seeming indictments of KDA are very flimsy as the following will demonstrate.

Saint Lucia’s political system operates under the Westminster system inherited from Britain. It fuses a monarchic and a parliamentary system. Our Head of State is Her Majesty Queen Elizabeth II, who is represented by the Governor General, though being fired by Prime Minister Allen Chastanet, is Dame Pearlette Louisy. In the absence of the sovereign (i.e. on a day-to-day basis) the Governor General fulfils the role of Saint Lucian Head of State. This contention finds its authority in Section 19 of the Saint Lucia Constitution Order 1978, S.I. 1901, which states:

“There shall be a Governor General of Saint Lucia who shall be a citizen appointed by Her Majesty and shall hold office during Her Majesty’s pleasure and who shall be Her Majesty’s representative in Saint Lucia.”
We all understand the principle or doctrine of the separation of powers in government, and as such do not need further explication. Section 59 (1) of our Constitution vests executive authority in Her Majesty, and proceeds to state:

(2) Subject to the provisions of this Constitution, the executive authority of Saint Lucia may be exercised on behalf of Her Majesty by the Governor General either directly or through officers subordinate to him or her. (my emphasis)

(3) Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the Governor General.

It is the meaning of the above which riles Republicans who believe that the Queen should not remain our official Head of State. In effect, the above Section says that whatever official state business is conducted in Saint Lucia, it is always done on behalf of the Queen! It is either done by the Governor General or through subordinate officers like the Prime Minister and Ministers. It is a subtle, though not practical statement, that the Queen truly owns our land.

Therefore, it is important for us to understand that the practical role performed by the Head of State is separate from the “business” of government; this is reserved for subordinate officers. We shall return to this later, but that’s why the Governor General is regarded as the Head of State and the Prime Minister is the Head of Government.

So what is the role of the Head of State? The Governor General has three overlapping roles – the constitutional, the ceremonial and the community.

The Governor General’s constitutional role is to maintain the legitimacy and continuity of government. She does this by, for example, dissolving Parliament before a general election is held; issuing the writ directing the holding of a general election; formally appointing the Prime Minister and assenting to the enactment of legislation. Section 64 of the Constitution defines the specific functions which the Governor General is to perform.

The Governor General takes part in public ceremonies as the individual who represents the State. This role includes opening new sessions of Parliament, holding honours investitures, welcoming visiting Heads of State and receiving credentials of foreign diplomats.

The Governor General provides non-partisan leadership in the community. Our Governors General are always the patrons of many charitable, service, sporting and cultural organisations. The patronage of the Governor General signals that an organisation is worthy of wide support. Many of the Governor General’s community functions also have a ceremonial dimension, such as attendance at the official openings of buildings, addresses to open conferences, or launching special events and appeals. The Governor General’s community role is by far the busiest.

So when legislation refers to the Governor General engaging in activities which are rightfully the business of government, what exactly is meant?

Let us look to the Interpretation Act, which makes provision with respect to the operation, interpretation and citation of enactments and for related purposes. At Section 40, which provides definitions for official purposes when used in enactments, the Governor General, we are told, means the “Governor General of Saint Lucia and shall include any person or persons administering the Government”.

Let us look further at Section 42 of the Interpretation Act.
Signification of Governor General

(1) Where a function of the Governor General under an enactment is to be exercised in accordance with the advice of Cabinet, any instrument required to be issued in the exercise of that function, other than a Proclamation, warrant or instrument to be issued under the Public Seal, may be signified under the hand of the Secretary to the Cabinet, and such signification is sufficient for all purposes.

(2) Where a function of the Governor General under any enactment is to be exercised in accordance with the advice of a Minister acting under the general authority of the Cabinet, any instrument required to be issued in the exercise of that function, other than a Proclamation, warrant, or instrument to be issued under the Public Seal may be signified under the hand of the Minister acting under the general authority of the Cabinet, and such signification is sufficient for all purposes.

This is important if we are to understand that reference to the Governor General does not mean the person occupying the post personally.

Now to the provisions and operations of the Minerals (Vesting) Act Cap. 5.08.

The Minerals (Vesting) Act is an act to vest in the Crown all minerals in the island and to make provision for connected matters. Section 4(1) of the Act states:

A person shall not prospect for or mine for any mineral except by authority of a licence granted by the Governor General and in accordance with the terms and conditions specified in the licence.

Thus, when you compare the provisions of Section 40 and 42 of the Interpretation Act and the reference to the GG in Section 4(1) of the Minerals (Vesting) Act, clearly this is not a specific reference to Dame Pearlette Louisy.

Now this is the clause in the Act which KDA supposedly violated, and for which some would wish to excoriate him. But was the action of KDA ultra vires the act, or are his critics misreading the provision of the section?

Am I being convenient in broadening the definition of Governor General applicable in the Minerals Act? Absolutely not. A simple look at Section 8 of the same Act will put to rest such a notion. It states:

The Governor General may make regulations with respect to any matter which may be prescribed under this Act, including the forms of licence to prospect for minerals or to mine minerals and the fees to be paid.

Now since we know that the making of regulations speaks to the “business” of government and not Head of State activity, and that the Governor General NEVER makes Regulations, we can correctly conclude that the reference to the Governor General in that Act was not pointing to the person with the formal title or our Head of State. Thus, the issuance of a licence/contract to explore or mine is an executive action, which could be effected indirectly, through officers subordinate to her.

Having established the legal authority for the action of KDA, let’s apply common sense and logic and expose the other baseless, ignorant or mischievous arguments for what they are.

If you still choose to be wilfully blind or stubborn, and cling to the argument that KDA was not duly authorised to sign or issue licence/contract for mining exploration, then you would have to conclude that any such contract/licence issued by KDA was null and void. A person who is not duly authorised to sign a contract, cannot contract. Hence any purported contract to which they are a party is void. Thus, there can be no valid contract or licence issued to Grynberg which is enforceable.

If there is no enforceable contract, then the argument and fearmongering that we shall or that we have lost the Saint Lucian seabed is further exposed and falls flat on its face. Allen Chastnet and Rick Wayne can say that there was no contract in the first place. Why have they not done so?

For those who still wish to castigate and challenge KDA’s authority for signing or issuing a contract to Grynberg, let them not forget that Stephenson King signed or issued a similar contract/licence to Grynberg, albeit that he (King) recalled the contract. (Earl Huntley, acting as agent for RSM, received the contract from King.

Huntley was later asked to return the contract). King recalled the signed contract neither because he discovered, believed or realised that he nor KDA had the requisite authority to issue the contract/licence. That was never his concern. King recalled the contract because his then Minister for Economic Development, Ausbert d’Auvergne, convinced him that he had another developer that could conduct the exploration of our seabed for its energy-generating potential.

It was because Stephenson King attempted to renege on the contract, after accepting its terms, that GSM initiated proceedings against the GOSL. It must be pointed out, a little-known fact, that the firm which the GOSL is accused of paying all those millions of dollars to, Freshfield, Bruckhaus & Derringer, was first contracted in 2010 by the Stephenson King-led administration to represent Saint Lucia’s interest in arbitration on the matter. Such a high-powered legal firm would certainly have pointed out to King, if KDA had inappropriately, or even for that matter, whether he King had inappropriately signed the contract/licence.

That the GOSL as a contracting party was brought before the International Centre for Settlement of Investment Disputes (ICSID), it meant that the State must pay for its share of the cost in getting the matter heard. Surely, if we can pay nearly $1million for witch hunt on St. Jude or $1million to IFC for reneging on the HIA Redevelopment, we could and should pay $3 million to defend the interests of the State.

But where was the money obtained to pay for the case before the ICSID? The UWP Cabinet decided to use proceeds from a sundry account to pay all the legal bills incurred in defending Saint Lucia’s interest before the ICSID. So much for the license payments being made personally to KDA.

In December 2013, ICSID ruled in favour of Saint Lucia, deciding that GSM is to pay all cost advances during the pendency of the arbitration process, and to refund Saint Lucia US$100,000. The panel also decided that RSM was to post security costs in the form of an irrevocable bank guarantee in the sum of US$750,000, and the matter adjourned until May 2014.

In April 2015, ICSID panels vacated or set aside a decision as to the next hearing date. The panel also agreed that the vacation would be lifted if within 6 months RSM had posted the US$750,000 in security costs that had been imposed on them in 2014. The panel also agreed that should GSM not post the security cost by the stipulated deadline, the GOSL could apply for dismissal of the case. (GSM never posted the security cost).

During all the stages of the arbitration to date, the ICSID has yet to make a ruling adverse to Saint Lucia. Our seabed has not, nor was it ever sold. And neither is it lost. There is nothing, save caution preventing Saint Lucia, from engaging any party in exploring our seabed for potential energy sources.

As to KDA not notifying the Governor General about the signed Agreement. Admittedly, she has indicated that she knew nothing of the issuance of the contract. That she did so in response to a letter from the then Leader of the Opposition, Stephenson King, is evidence of the mischief or mockery we make of our august institutions when we cheapen them with political games.

Stephenson King, who signed the contract as Prime Minister, did not brief the GG of his actions. He certainly knew the terms of the Agreement, and was not seeking answers that he did not already know. He was behaving in a manner some think too typical of him, always prostrate, willing to be used as a prop in their show.

Allen Chastanet, like a programmed show-horse, attempts to distract from his dismal performance to date, trots out a tired meme, claiming that KDA did not inform the GG of his signing of the contract with RSM. Section 65 of our Constitution states that:

The Prime Minister shall keep the Governor General fully informed concerning the general conduct of the government of Saint Lucia and shall furnish the Governor General with such information as he or she may request with respect to any particular matter relating to the government of Saint Lucia.

Can Allen Chastanet honestly tell the nation that he has informed the Governor General of the terms and issues surrounding DSH, the Dolphin Park, the completion of the St. Jude Hospital, HIA Redevelopment or the CIP?

For all those who continue to fling the name Grynberg as shorthand to attack KDA and the SLP, none are yet to point out any clause in the contract/licence that they find abhorrent and adverse to Saint Lucia’s patrimony. Can they say the same for the DSH Agreement and the Dolphin Park?

It is amazing that some would want the nation to accept DSH on its promise or potential, even after not seeing, at least officially, the terms of the DSH Agreement, yet they are seemingly unwilling to have extended the same privilege to KDA and his intention when he signed the agreement.

Without having to comment on the temperament of either Jack Grynberg or Teo Ah Khing, I invite all Saint Lucians to examine both the DSH Agreement and the Oil Exploration Agreement and to objectively comment on their relative merits.

It’s truly time to bury the zombie arguments about Grynberg and KDA.
Are there offending clauses? No.
Did we sell our seabed? No.
Did we win the hearing? Yes.
Can we focus on DSH, Dolphin Park, HIA Redevelopment and CIP, please?