Premier: Report Of COI Into Historic Land Losses

The full Report of the Commission of Inquiry [COI] into Historic Land Losses has been released — the 500+ page document can be read online here — and Premier David Burt provided an overview of the matter in the House of Assembly today [Dec 10].

The Premier said the COI “received a total of 53 claims: 18 were heard, 15 were denied, 10 were withdrawn and 10 were closed by Commissioners for jurisdiction reasons.”

“The Report makes a considerable number of recommendations. These apply to each of the various cases considered and are divided into actions to be taken by the Legislature, private individuals and other entities,” the Premier said, adding that the Government “will examine the recommendations in detail and determine what can be done to address them.”

“I would highlight for Honourable Members that the recommendations include:

• The Government considers establishing a permanent mechanism of state machinery to review claims concerning the historic loss of properties. The mechanism should be fully resourced with human and financial resources to address all claims and concerns post this COI, ultimately with a view of having a legal framework in place to facilitate remedies and/or an award of compensation.

• Government ensures that the history of the Tucker’s Town and St. David’s Island expropriations are memorialized suitably by mandating its inclusion in Bermuda history taught in our schools, its placement in libraries and other repositories and by erection of a suitable physical monument ideally situated in both Tucker’s Town and St. David’s Island.

• Government establishes an independent Land Tribunal to deal with all outstanding legacy issues involving historic losses of land in Bermuda and to make recommendations based on the findings of the COI and any others that may emerge.

The Premier’s full statement follows below:

Mr. Speaker, progress in any society can be achieved in several ways. The history of many nations and peoples has shown that the past, no matter how painful or controversial, must be openly and fearlessly addressed. There is no requirement for people to agree a common history as shared experiences are often differently perceived and recalled. However, too much of history has been whispered or unrecorded. The Commission of Inquiry into Historic Land Losses has afforded an opportunity to those whose voices had either been silenced or ignored to openly tell their story and to be heard.

Mr. Speaker, Honourable Members will recall that it was during the proceedings of this Honourable House on 4th July 2014, the late Honourable Member, C. Walton D. Brown Jr., a member of the Progressive Labour Party, then the Official Opposition, introduced the Motion which ultimately led to the establishment of the COI. Aggrieved at community reports of land stolen from citizens of Bermuda, he characterized his vision for pursuing historic losses of land in Tucker’s Town in this way:

“We have an opportunity, Mr. Speaker, 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 marginalized, but not always. What the victims shared though, Mr. Speaker, was an inability to secure a just outcome.” [Hansard 2014 p. 2603]

The parliamentary debate that followed revealed that not only were there particular concerns regarding the two most well-known expropriations in Bermuda, Tucker’s Town and St. David’s Island, but also concerns regarding widespread injustices in dealing with losses of land in other areas across the Island. The Motion approved by this House 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.”

Honourable Members will likewise recall that the then Governor Mr. George G Fergusson refused to issue an Order establishing a Commission of Inquiry, stating in a letter read to the House of Assembly: “I have concluded that these concerns are neither so clear nor so urgent as to justify my taking the still unusual step of commissioning an inquiry under the 1935 Act.”.

Mr. Speaker, the Legislature in its wisdom approved amendments to the relevant legislation and as such pursuant to Section 1A of the Commissions of Inquiry Act 1935, I, with the support of the Cabinet, determined to appoint a Commission for this purpose on 19th June 2019 and caused public notification in the Official Gazette of 1st November 2019.

Mr. Speaker, Honourable Members will no doubt recall that the COI’s Terms of Reference were to:

• [i] 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;

• [ii] Collect and collate any and all evidence and information available relating to the nature and extent of such historic losses of citizens’ property;

• [iii] Prepare a list of all land to which such historic losses relate;

• [iv] Identify any persons, whether individuals or bodies corporate, responsible for such historic losses of citizens’ property; and

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

Mr. Speaker, in advance of the receipt of the final Report the Cabinet took note of an Executive Summary which set out the procedures adopted as well as the COI’s recommendations.

Mr. Speaker, the members appointed were:

Chairman: The Hon. Justice [Ret.] Norma Wade-Miller, OBE, retired Puisne Judge of the Bermuda Supreme Court

Deputy Chairman: The Hon. Wayne Perinchief, CPM, retired Assistant Commissioner of Police, former Minister for National Security, Minister of Culture and Human Affairs and Minister responsible for the National Drug Commission

Mrs. Maxine Binns, LL.B, Barrister and Attorney, Former Consultant Legal Counsel with Business Development and Retired Legislative Assistant with the Business Development Unit

Mrs. Frederica Forth, JP, Former Vice President of a local bank and experienced realtor

Mrs. Lynda Milligan-Whyte, LL.B, JP, Senior Legal Counsel practising at the Bermuda Bar, former Minister of Legislative Affairs and Women’s Issues

Mr. Jonathan Starling, Economic and Cooperative Development Officer, Bermuda Economic Development Corporation

Mr. Quinton Stovell, Professional Land Surveyor

I am grateful to these Commissioners for their service and the incredibly detailed and diligent manner in which they approached the mammoth task.

Mr. Speaker, the COI decided that it should call for and examine evidence and then determine whether such evidence, taken as a whole, demonstrated a structural problem which was either historic in nature and/or which demonstrated systemic failure. Each case filed before the COI was examined with the COI then determining whether the particular case represented an instance of a historic loss of land by a citizen of Bermuda through “theft or dispossession of property, adverse possession claims or other unlawful or irregular means by which land was lost in Bermuda”.

To ensure that the work of the COI was known within the community a website was created. The website contained basic information about the background and composition of the COI as well as its operational rules and procedures. To attract further the attention of members of the community who might wish to make claims, the COI placed newspaper advertisements inviting persons to apply for standing or, if they did not wish to have standing, to share information with the COI. To broaden the COI’s reach, social media notifications about upcoming hearings were posted and periodic press statements were issued to the traditional media.

Mr. Speaker, I would invite Honourable Members to take note that the COI:

• from April through July 2021, met with numerous experts for assistance in clarifying outstanding queries and giving historical context to practices that might have occurred in the past.

• adhered to all COVID- 19 restrictions in place. Arrangements were made to accommodate those who could not appear in person, including Commissioners themselves on occasion. Video conferencing software was used throughout all COI Hearings.

• held a total of 74 Hearings variously at Grotto Bay Beach Resort, Hamilton Parish; Willowbank Resort & Conference Centre, Sandys; and the Royal Bermuda Regiment, Warwick Camp, Warwick.

The COI received a total of 53 Claims: 18 were heard, 15 were denied, 10 were withdrawn and 10 were closed by Commissioners for jurisdiction reasons.

Mr. Speaker, Honourable Members will note that the Report makes a considerable number of recommendations. These apply to each of the various cases considered and are divided into actions to be taken by the Legislature, private individuals and other entities. Mr. Speaker, the Government now seized of the Report will examine the recommendations in detail and determine what can be done to address them.

I would highlight for Honourable Members that the recommendations include:

• The Government considers establishing a permanent mechanism of state machinery to review claims concerning the historic loss of properties. The mechanism should be fully resourced with human and financial resources to address all claims and concerns post this COI, ultimately with a view of having a legal framework in place to facilitate remedies and/or an award of compensation.

• Government ensures that the history of the Tucker’s Town and St. David’s Island expropriations are memorialized suitably by mandating its inclusion in Bermuda history taught in our schools, its placement in libraries and other repositories and by erection of a suitable physical monument ideally situated in both Tucker’s Town and St. David’s Island.

• Government establishes an independent Land Tribunal to deal with all outstanding legacy issues involving historic losses of land in Bermuda and to make recommendations based on the findings of the COI and any others that may emerge.

Mr. Speaker, the work of the Commission was greatly enhanced by a team of administrative staff, legal counsel, researchers and investigators. The final editing of the Report was done by former Permanent Secretary Mr. Robert K. Horton and his oversight has proven invaluable to producing this final product.

Mr. Speaker, Honourable Members will recall that in fiscal 19/20 $723,000.00 was budgeted for the work of the Commission. With the advent of the pandemic and the inability of the Commission to meet, hear evidence and perform its functions as intended, the time within which the work was to be done had to be extended. Additionally, Mr. Speaker, as the Report indicates and as will be supported by eventual release of the appendices, this is among the most detailed and painstaking tasks undertaken by an independent body. There can be no doubt that the work of the Commission was an exercise in determining the truth of painful histories and giving voice to claims that others rejected or refused to hear.

Mr. Speaker, the Cabinet Office determined to fund the ongoing work of the Commission which unexpectedly carried on into this fiscal year and has done so from savings realized in the overall budget for Head 9. No new money was requested or required and I can advise Honourable Members that there will be no requirement for supplementary funding in this fiscal year. Whilst the final costs are not yet available, I will revert to this House with those costs once the final Report is printed, the website upgraded and the appendices uploaded and the final service provider costs paid.

Mr. Speaker, this will make difficult reading for some. For others it will represent the last mile of a race they have run for decades. History is a delicate thing, Mr. Speaker. It must be handled with care and treasured as it is in a fulsome understanding of history that we create a stronger present and a better vision for the future.

I will invite this Honourable House to consider this Report by a Motion to be introduced for that purpose.

Mr. Speaker, in closing I would refer this Honourable House to the statement I made in June 2019. The words frame all that the Commission represents and the Government’s intention in addressing this issue:

“..truth can be uncomfortable. Unearthing historic wrongs may be inconvenient for some. It may well be that some of those who were victims and those who committed wrongdoing have since passed on.

But…it is never too late for justice. That justice can take many forms. For some it may simply be the opportunity to be heard and have their claims acknowledged, while for others it may confirm the legal standing they have long asserted. The process of providing justice starts with a step towards truth.”

Thank you, Mr. Speaker.

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