Over the last few weeks, the citizens of Dominica, particularly farmers from the north-western communities of Wesley and Woodford Hill, have been expressing tremendous concerns and airing grievances over the seemingly uncaring conduct of the Skerrit-led DLP Administration in executing its land acquisition authority ‘allegedly’ with the intention to construct an international airport ‘ostensibly’ to be funded by the corrupt Citizenship by Investment (CBI) program and the ‘assumed’ friendly government of China. As part of the debate, several issues of constitutional, real property, and human rights laws are raised for consideration including the right of the government to compulsory acquisition of land, the legal and equitable rights of land and property owners to compensation by the State, and the fundamental human rights of squatters on State lands or lands being acquired by the State.
Eminent Domain: Government’s right to compulsory acquisition
Our constitution guarantees the right to protection of property and from deprivation thereof without compensation subject to certain limitations. We are guaranteed that no property may be compulsorily acquired except for a public purpose on payment of compensation. This is based, in general, on the Universal Declaration of Human Rights (Article 17), which provides, “everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”.
The American Convention on Human Rights provides, “Everyone has the right to the use and enjoyment of his property” and the European Convention on Human Rights and Fundamental Freedoms, 1950, (Article 8) states; “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary for a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” This right is expanded by Article 1, “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. To that end, some form of Land Acquisition legislation is enacted in every Caribbean state providing for the exercise of the right of the Crown/State to compulsorily acquire private lands for public purposes, otherwise known as “the right of eminent domain,” i.e., the right of the sovereign as the ultimate owner of all real property, to recall private lands for public purposes. This right is an incident to sovereignty, inherent in and belonging to every sovereign state. The power of eminent domain is said to be a product of political necessity to allow the sovereign state to construct infrastructure such as highways, roads, airports, bridges, canals, sewers, waterlines, or any other public necessity that may arise, such as housing. Without the power of ’eminent domain,’ the hands of a government would be tied as it would be difficult for it to piece together enough voluntary transactions to complete a major project.
Although the power of eminent domain is a basic element of sovereignty, it is not without limitation to the extent that land acquisition legislation may not be in full conformity to the fundamental rights provisions of our Constitution, ensuring that the process is more transparent and efficient. Our legislation does not provide for independent assessment nor does it provide for prompt payment of compensation where appropriate with interest, computed at the prevailing commercial rate on outstanding payments from the date of acquisition until the date of payment. Moreover, the definition of terms like public purposes for which private land may be compulsorily acquired are not well defined and the payment of “just compensation,” is a fundamental limitation on the actions of the state.
The compulsory acquisition of land by the Government of Dominica is governed by the Land Acquisition Act, Chap. 53.02, Revised Laws of Dominica 1990- an act to authorize the acquisition of land for a public purpose. On the face of the legislation, the system is intended to be transparent and equitable. However, as is the case throughout the Commonwealth Caribbean, the compulsory acquisition of land has always been quite contentious. This is partly because of loopholes in our legislative framework, which result in abuses of the government apparatus.
The nature of the powers to enable the government to compulsorily acquire land for specific purposes and the ways in which they are used are invariably sensitive and have wide implications, including from the perspective of international agreements on human rights and their national expressions. By its very nature, compulsory acquisition of property is disruptive for those who are affected and whose lands are taken away or cultivations destroyed, especially when done unfairly, without adequate notice, and without any compensation. In such cases, this has a serious negative impact on the lives and livelihood of the people impacted. It is important, therefore, that satisfactory mechanisms are in place and effectively implemented to ensure that affected communities and people are placed in at least equivalent positions to those before the land acquisition.
As per our Land Acquisition Act, section 3 states;
(1) “If the Minister considers that any land should be acquired for a public purpose, he may cause a declaration to that effect to be made in the manner provided by this section and the declaration shall be conclusive evidence that the land to which it relates is required for the public purpose.”
(2) “Every declaration shall be published in two ordinary issues of the Gazette and a copy thereof, prior to the publication shall be served on the owner after diligent inquiry not be found within the State, it shall be posted on one of the building (if any) on the land or exhibited at suitable places in the locality in which the land is situated, and in the declaration shall be specified the following particulars to the land which is to be acquired”
Once the Government decides that a portion of land is likely to be acquired for any public purpose, the Minister responsible may make preliminary surveys or other investigations of the land including the lawful authorization of government agents, or workmen to take certain actions on the said land. Following the publication of the declaration, the government shall without delay, enter into negotiations for the acquisition of the land upon “reasonable” terms and conditions and by voluntary agreement with the owners of the lands to be acquired or with those occupying the land. Based on the above, it is clear that the acquisition of lands by the Skerrit Administration for alleged construction of an international airport is within the ambit of the laws of Dominica, albeit other issues in determining what is “reasonable” under the circumstances may arise for further consideration.
In a 2008, Food and Agriculture Organization (FAO) study on the compulsory acquisition of land and compensation noted that the delicate nature of the compulsory acquisition of land, particularly in the context of rapid growth and changes in land use and the increasing pressure on governments to deliver public services in the face of an already high and growing demand for scarce land. As expected, such forced acquisition of property is filled with tension. From the perspective of the government and other economic actors, the often conflictual and inefficient aspects of the process of compulsory acquisition of land are seen as a constraint to economic growth and rational development. The process also brings tension for people who are threatened with dispossession, especially when government policies are unclear, non-transparent and the government lacks the trust of the citizenry.
The compulsory acquisition of land for development purposes may ultimately bring benefits to the society but at a huge disruptive cost to people, whose land is acquired or to the communities in which such acquisition is executed. Compulsory seizure of private property displaces families from their homes, farmers from their fields, and businesses from their neighborhoods. It may separate family members, destroy the way of life, interfere with livelihoods deprive communities of important religious or cultural sites, and destroy networks of social relations. Where the compulsory acquisition is done poorly and without adequate planning as appears to be the case in Wesley/Woodford Hill currently, it may leave some residents homeless and farmers landless, with no way of earning a livelihood, without access to necessary resources or community support, and with the feeling that they have suffered a grave injustice. If, on the other hand, the government were carry out its compulsory acquisition satisfactorily, the affected communities and people will be left in an equivalent situation, while at the same time facilitating the efficient provision of the intended benefits to society or the country at large.
We cannot over-emphasize, as is clearly the case under the Skerrit Administration that the power of compulsory acquisition of property can be abused. Land could said to be compulsorily acquired for the construction of an international airport, whereas the true intent might be to provide an outlet for CBI money laundering funds on both the housing replacement and settlement expenditure related to prolonged promises of constructing an international airport.
As stated above, the inequitable compensation the loss incurred by the citizens can reduce land tenure security, increase tensions between the government and citizens, and reduce public confidence in the rule of law. This is further worsened where the Political Representative of the people are arrogant in dismissing the concerns of the people, who distrust a government known to be engaged in corruption, bad governance, and functions without transparency and accountability. In such an environment, unclear, unpredictable and unenforceable procedures enhance opportunities for further corruption. The trust of the citizenry can only be obtained where there is good governance, which is necessary to provide a balance between the need of the government to acquire land compulsorily, and the need to protect the rights of people whose lands are being acquired. Conflict will inevitably arise where government policies are not clearly defined and the specific purpose(s) for which the government intends to utilize the acquired lands are shady, non-transparent, seemingly influenced by partisan considerations and most of all compensation is unreasonable, insufficient inequitable or is unduly delayed.
Common to all Caribbean states are the complaints that in practice, the Crown/State does not pay the open market value for land and that there are lengthy delays before the compensation payable is assessed and payment is actually made. Exacerbating these problems is the lack of provision for the payment of commercial rates of interest on the amount of the compensation payable from the date of acquisition until the date of payment. This results in considerable financial hardship for landowners from whom land is compulsorily acquired. Additionally, our statutes are also relatively silent with respect to what constitutes actually “public purpose” for which private land may be compulsorily acquired and the checks on the potential for abuse of power by the government with regard to land acquisition is minimal and ineffective. Therefore, questions are often raised about the use to which the compulsorily acquired lands can be put if the public purpose for which it was acquired in the first place is abandoned as is the case of the Londonderry Estate acquired by the United Workers Party Administration between 1995-2000 for the construction of an international airport, which is now being used by the DLP Skerrit Administration for the placement of CBI sponsored housing project. This also raised questions about the rights of the former landowner(s) to such lands, now that the purpose of the compulsory acquisition has changed to the provision of free housing primarily to private citizens, who are supporters of the government.
According to FAO’s land tenure study, ‘Good governance in land tenure and administration,’ the effective and fair compulsory acquisition cannot exist without good governance and adherence to the rule of law, which amplifies the current difficulties from the lack of trust in the actions and intent of the DLP Administration. Generally, a private landowner is compensated for the loss suffered to him, not the benefit or potential benefits to be gained by the government, which highlights the importance of legislative provision to ensure fair processes in determining the valuation and compensation for acquired lands, the cultivation thereon including the property of those squatting on the said lands. While the government must ensure that the public interest is satisfied in keeping acquisition costs as low as possible, this concern should not deprive people who have been dispossessed of their properties reasonably compensation so that they can re-establish their lives after their loss.
IN part II of this article, we shall examine the issue of squatters’ rights as a human right and the need to provide reasonable compensation to those who have experienced loss as part of the compulsory acquisition process. We shall explore the need for a caring and law-abiding government to ensure that when calculating the reasonability of compensation, the value of the land, improvements to the land, cultivation on the land, and any related costs are duly considered.