Land loss commission KC quit after members ‘lost confidence’
A leading lawyer who was hired as senior counsel for the Commission of Inquiry into Historic Land Losses in Bermuda left the appointment after “at least some” of the panel lost confidence in him, according to e-mail contents released last week.
The resignation of Ivan Whitehall, KC, from the post in October 2020 — several weeks into a series of hearings that ultimately spanned nine months — was said at the time to be for “personal reasons”.
The Royal Gazette submitted a public access to information request in January 2021 that sought copies of correspondence between the counsel and the commission.
A heavily redacted copy of an e-mail from Mr Whitehall to Justice Norma Wade-Miller, the commission’s chairwoman, with the subject “Resignation”, was provided last week by the Cabinet Office — the public authority now responsible for records previously held by the CoI.
The only unobscured portion of the e-mail, dated October 23, 2020, said: “Clearly, at least some of the members of the commission have lost their confidence in me, which to a [sic] me as counsel demands that I resign.
“Commission counsel must have the confidence of all commissioners and absent that confidence, the way is clear.”
Mr Whitehall was asked last week to expand on the circumstances around his resignation but declined to comment.
Mrs Justice Wade-Miller also declined to comment.
During a hearing on October 23, 2020, the lawyer questioned the value of certain statements to the inquiry.
Evidence that day included testimony from Citizens Uprooting Racism in Bermuda.
Lynne Winfield, of Curb, read from a statement attributed to herself and fellow representative Cordell Riley.
She told the hearing: “In the Bermuda context, historical research clearly shows that laws and legislation were manipulated to achieve the personal and economic aims of the oligarchy throughout history and the 20th century, and even today the threat of economic intimidation still rears its head, with people not being hired because of their political beliefs and discrimination based on stereotypes and biases.
“The purposeful alienation of land from enslaved and free Black Bermudians up until 1834 is a major contributor to ongoing poverty in the community today.”
Ms Winfield said: “Stories of land loss in Bermuda are common, and it seems as if every Black family has a story to tell or know of someone’s experience.
“Sadly, in many cases one is told deeds have been stolen or lost by those entrusted with their care, oftentimes lawyers, banks and businessmen.
“Many Black Bermudians were uneducated around legal matters and being misled were an easy target.”
Mr Whitehall said at the time: “I have no difficulty with this being before the commission because, frankly, I think the commission wants to have it and even if I objected I would be overruled.
“Having regard to the kind of questions I’ve heard in the last few days, I have a fairly good sense of where the mind of the commission is.
“Having said that, if this commission is going to proceed on facts rather than unsubstantiated opinions, then the record should show that what we have is opinion evidence without the witness having been qualified as an expert.”
He added: “If we are going to have any regard for the rules of evidence, then clearly what we have heard today is inadmissible.”
Mrs Justice Wade-Miller, a retired judge, said then that she believed that the public would want to hear everything so that they could determine what they accepted or not.
She told the hearing: “I have heard it often said we need to have the dialogue, and I think this is part of the dialogue.”
Mrs Justice Wade-Miller highlighted that the panel was made up of well-educated individuals who knew how to separate fact from fiction.
Mr Whitehall said: “My role as commission counsel is to represent the public interest and the public interest in Bermuda includes both Black and other members of Bermuda.”
Mrs Justice Wade-Miller said it was inappropriate to suggest that the commissioners’ minds were made up and continued with the hearing.
A request was made by The Royal Gazette in January 2021 to the Commission of Inquiry for records of correspondence between the CoI and its former senior counsel Ivan Whitehall, KC.
It was denied under Section 4 of the Public Access to Information Act, which relates to the authorities or functions to which the legislation applies.
After due process, the Information Commissioner accepted an application for independent review of the decision. The Cabinet Office, in August 2021, became the public authority now responsible for records earlier held by the CoI, after the CoI’s appointment expired on July 31.
Responding to a request from the Information Commissioner’s Office to provide records processed for the original Pati request and withheld, the Cabinet Office provided more than 300 records to the ICO in September 2021.
In a decision notice published in February this year, Gitanjali Gutierrez, the Information Commissioner, wrote: “Due to the ICO’s backlog of cases and nature of the records, this case was not progressed until 2023.”
It explained: “The records provided by the Cabinet Office appeared to include far more records than those actually wanted by the applicant, and no previous consultation had occurred between the applicant and the CoI concerning what the applicant was seeking.”
The notice said that the ICO was able to narrow the number of records in question to four.
In January this year, the decision said, the Cabinet Office confirmed it relied only on Section 35 (1) — exemption on the grounds of legal professional privilege — to withhold the records and abandoned reliance on other provisions within the Act.
The decision noted: “The Information Commissioner is satisfied that the Cabinet Office was justified in relying on the exemption in Section 35 (1) because the records would be exempt from disclosure in legal proceedings on the ground of legal professional privilege, except for parts of record 323.
“The Information Commissioner is further satisfied that the balance of the public interest favours non-disclosure of the records, including the parts of Record 323 that contained legally privileged communications.”
On her own accord, she considered whether the remaining elements of Record 323 — the record that was eventually released but heavily redacted — were exempt under Section 23 of the Act, which relates to personal information.
The decision said: “Considering the importance of the CoI’s terms of reference for the Bermuda public and the critical role played by the senior counsel in advising the CoI as it fulfilled its mandate, the public has a strong interest in knowing as much as possible about the conclusion of the relationship between the CoI and its senior counsel prior to the conclusion of the CoI’s work, and within the bounds of the provisions of the Pati Act.”
It summarised: “The Information Commissioner finds that the Cabinet Office was justified in relying on Section 35 (1) of the Public Access to Information Act 2010 to refuse access to the records 179, 320 and 321 in full and record 323 in part.
“The Information Commissioner also finds that Section 23 (1) applies to the remaining part of Record 323 but that the public interest requires disclosure of Record 323 in part.
“In accordance with Section 48 of the Pati Act, the Information Commissioner varies the Cabinet Office’s decision to deny access to records 179, 320 and 321 and part of 323 under Section 35 (1) and orders the Cabinet Office to grant access to Record 323 in part …”
The Information Commissioner required the Cabinet Office to disclose the relevant part of Record 323 by April 11, 2024. It was received by the Gazette on that date.
The commission secretariat confirmed on October 27, 2020 that Mr Whitehall “resigned for personal reasons”.
Dirk Harrison, from Jamaica, took over the role in November that year.
A biography of Mr Whitehall online said he was part of an “elite circle of litigators” and served as the Chief General Counsel of the Canadian Department of Justice from 1989 to 2003.
It added: "He has been repeatedly named as Canada’s best lawyers in litigation involving First Nations.“
The biography said: “Mr Whitehall was once again recognised as one of the best lawyers in Canada in 2017 for his work in international arbitration and Aboriginal law.
“Mr Whitehall retired as a lawyer effective December 31, 2021. However, he continues to act an arbitrator.”
The CoI into historical land losses was announced by David Burt in June 2019.
Hearings held intermittently from September 2020 to May 2021 inquired 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”.
A total of 56 recommendations were contained in a report by the commission published in December 2021.
They included that a legal mechanism should be created to allow an official government apology to be made to victims of land loss; and that consideration should be given to the creation of a public agency to look at historical land loss claims with a view to remedy or compensation.
A government spokeswoman said on Friday: “The report of the Commission of Inquiry must be considered by the legislature.
“A motion for this purpose was tabled but several parties have mounted legal challenges against the commission and as such the report cannot be considered by the legislature as the matter is sub-judice.”
Asked whether comment could be provided on Mr Whitehall’s assertion that confidence in him was lost, the government spokeswoman highlighted that once appointed, the commission was “independent in every aspect of its operations”.
• To see the redacted copy of the resignation e-mail, see Related Media
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