Published On: Tue, Feb 20th, 2018

Departure policy rules could void long lease contracts

By Hilbert Haar

PHILIPSBURG –There is a distinct possibility that the land former VROMI-Minister Christophe Emmanuel granted in long lease to some of his close associates will be taken back by the government. The actions of the former minister have all the hallmarks of departure policy.

The Common Court of Justice ruled already 15 years ago on a similar case – Court-Yard versus the Island Territory of St. Maarten. In a ruling dated March 1, 2002, the court considered as follows.

“That shortly before a change of government substantively questionable or insufficiently prepared decisions are taken or promises are made, with as knowable motive to confront the next government, of which one assumes that it would decide differently, with a fait accompli, with all its consequences for the scarce public goods and resources, is an abuse that takes place in this country regularly (….) One speaks in this context of a departure policy. Considering the small scale of a community like St. Maarten this means that in some cases, in the general interest, a judicial control on the correctness of purpose deserves additional emphasis.”

The Court in first Instance quoted from this verdict in a much more recent case: the decision by then VROMI-Minister Claret Connor in 2015 to give a piece of land on Kim Sha Beach in long lease to Tesi NV, a project developer that is part of the Port de Plaisance Group. In exchange, the government would receive a piece of land near the causeway bridge for the construction of a sewage plant.

The Port de Plaisance Group approached the government in writing in 2006, 2007, 2008 and 2015 with a request for the land at Kim Sha Beach for the construction of a five-star hotel and casino. The VROMI-department gave a negative advice about the request in 2015.

But Connor went ahead and agreed with a deal with the developer. “On behalf of the people of St. Maarten I wish you much success,” Connor wrote in a letter dated November 18, 2015. On the same date the rights of long lease were issued to Tesi NV, against a canon of 25,722 guilders per year.

Connor’s actions flew in the face of a motion the Parliament approved on October 28, 2015. The Gumbs-cabinet had been hit with a motion of no confidence on September 30 and the motion ordered the caretaker government  not to take any decisions that would bind the government. The motion specifically mentions the land swap with Port de Plaisance and its project developer Tesi.

VROMI’s Secretary General Louis Brown informed the notary on December 10 that he “is not in a positon to sign the transfer deed.”

Six days later Angel Meyers, Connor’s successor, informed Tesi NV that he considered the issuance of the land in long lease “null and void.”

That resulted in a court case; the Court in First Instance ruled on the matter on May 31, 2017.

Its conclusion was clear: Connor’s actions fall under the definition of departure policy.

“The court does not understand how Minister Connor could write in his letter (of November 18, 2015) ‘on behalf of the people of St. Maarten.’ The Parliament has been democratically elected by the people of St. Maarten and the majority of the members of Parliament was against the land swap.”

To cut a long story short: the court dismissed the demand by Tesi NV and Port de Plaisance to uphold Connor’s decision to agree with the land swap.

The recipients of the parcels of land on the Pondfill, so generously issued by former Minister Christophe Emmanuel, will most likely face a similar fate if Minister Giterson declares the long lease agreements null and void.