Outerbridge: We would have less power than Wedco
Mayor of Hamilton Graeme Outerbridge contends the Municipalities Act 2013 is nothing more than a legislative move to “shut down the municipality as an independent entity”.
Letters citing the City of Hamilton's “detailed concerns” were hand delivered to legislators and Governor George Fergusson yesterday before the debate.
According to the Mayor, the “two pieces of communication” outlines the council's position and concerns, including a document by the City's legal advisers for outlining 14 points for MPs to consider.
Noting that the history of the City since the original town was incorporated in 1793 “is not a perfect one”, he stressed that the Corporation of Hamilton has played a “leading and vital role in Bermuda's continued economic success”.
Ultimately he said: “The effect is to reduce the municipality to less authority to operate than Wedco which is an appointed board controlled entity or the Bermuda Hospitals Board which is a quango.”
On the one hand he said the bill “restores authority to charge wharfage and revives a number of Ordinances revoked by the Municipalities Reform Act 2010.
But on the other hand he said “the Bill then goes on to remove the authority of the Municipality in relation to the disposition of land and Corporation powers”.
On the disposition of land he stressed that the corporations of both municipalities “hold their land in freehold”.
Said Mr Outerbridge: “This section completely removes all authority the municipality has over its own property.
“This may turn out to be a contentious constitutional argument at some point thus creating more angst and legal wrangling.
“It appears that the amendment is toned as if the land in question is somehow public land when in truth the land belongs to a legal entity called the Corporation of Hamilton,” he said.
“Instead of oversight of area or terms, which does occur in other jurisdictions particularly pertaining to a national interest, here is a wholesale removal of rights and a series of processes to effectively remove any authority in the disposition of the land and whole subject to whims of the government of the day.
“On the surface this might seem somewhat draconian but at least the government of the day is not authorised to initiate a sale or lease of the city property.
“This however, is not true because later the amendment Act states that if the Minister deems it in the public interest the Government can assume stewardship of the Corporations infrastructure, function and service.
“This would then create the situation whereby the corporation is then under the direct stewardship of the Minister with Cabinet approval.
“This should raise concerns on multiple levels particularly since the corporation is a legal and independent entity and if its property can be virtually acquired in this manner what is to stop other similar entities befalling the same fate.”
Another area of concern is the retroactive approach to contracts and leases.
“While initially it appears that compensation might be possible in the instances of a retroactive invalidation there is nothing in the Amendment Act that compensates for an unfinished plan/dream/idea,” said Mr Outerbridge.
“The Acquisition of Land Act does not address compensation outside of the purchase of land.”
He noted that Ordinances are “required to manage the affairs of the municipality.
“Without them the Corporation cannot adjust to changing conditions with the city in a timely manner,” he said.
“The Amendment Act introduces a review by the Minister and Attorney General which does not cause a problem unless the review means it is on hold until approved.
“Then the Ordinance will be subject to either an affirmative resolution or negative resolution of the legislature depending on whether or not a fee or charge, tax or toll is being levied.”
He noted that the “former affirmative resolution was revived” prior to the Reform Act of 2010.
But he said: “The negative resolution is new and the effect of the legislative route is that the Corporation will no longer be able to attend to the needs of the city in a timely manner.
“This removes all possibility of the city being able to address the city priorities and thus the control of the management of the city at this level moves to the Minister and the legislature.”
He continued: “Voiding Ordinances that have been long established without a valid review and plan to transition will cause chaos and challenges particularly since the government does not recognise them on the online version of Bermuda Laws. So there is no knowledge of the scope and impact.”
“This appears to be unwise and seems attributable to the impasse attempted by some members of the civil service in blocking a number of Ordinances from both Municipalities by trying to introduce and ‘implied' process rather than the process followed for decades by both of the Municipalities.”
On the issue of good governance he said oversight by Government is “general a good thing to underpin public confidence”.
But he concluded: “There is a very significant difference between oversight to underpin confidence and direct ministerial control”.
“This amendment removes the authority of the municipality to meet its mandate by direct control of the Minister and by overburdening the financial and operational processes to effectively strangle the municipality to be completely effective.”