Sections 19-22 of the Land Acquisition Act of Dominica provide detailed procedure and considerations for assessment of fair compensation, which includes inter alia;
- Rules for assessment/valuation of compensation:
- Special rules for severance;
- Rate of interest on compensation from the date of acquisition; and
- Claims for reasonable costs for submission of a claim for compensation (not more than $500.00;
In a recent judgment of the ECSC of Appeal in the matter # HCVAP 2008/009 between the Attorney General of Dominica (the Appellant) and Ms. Jacqueline Theodore, the court considered the measure of compensation to be awarded for felled trees on lands on which the Respondent had a legal interest. The Court of Appeal noted that a claimant is not entitled to receive more than “fair compensation” i.e., the entitlement to compensation is limited to losses fairly attributable to the acquisition of his land, but not to any greater amount to include consideration of future use (which may mean the baby suckers of those plantain tress may not be compensable as most callers to the Q95 program seem to be suggesting).
The Courts established that the government’s duty is to address itself to restitution i.e., the measure of the award that would have put the claimant back in the position that the compulsory acquisition affected.- not potential future benefits.
Various international laws reflect the concern for the protection of land rights and the payment of compensation when people are displaced. Similarly, multilateral financial institutions such as the World Bank and IMF often link the provision of funding for large scale development projects to comply with principles that protect the rights of people, who may be displaced as a result of projects that they support. This requires governments to ensure that national legislation complies with human rights principles and that the government itself adhere to these principles. The decision of the Skerrit-led DLP government to finance the construction of the airport with CBI funds and not through funding from recognized international funding agencies may well have been influenced by this consideration coupled with the possible non-viability of the project as assessed by these institutions.
Sometimes, the operation of eminent domain is a straightforward matter. The government provides the landowner adequate, fair, and reasonable price and the landowner or occupier yields the property for the specified approved public use. At other times, however, the government and the landowner/occupier may disagree over whether an acquisition has actually occurred, whether the purpose is in fact for public use, and nature and quantum of compensation to be paid by the government.
According to the Food and Agricultural Organization (FAO), compensation should address both de facto (such as the equitable rights of a squatter) and de jure rights or legal rights of the property in an equitable and fair manner following the principle of equivalence. Even where the occupants of lands acquired by the government have no recognizable legal right or claim to the occupied land, the occupants are still entitled to resettlement assistance and/or adequate compensation for any property on the acquired land. This is rooted in both the moral and legal obligations of good, transparent, and accountable governance.
Therefore, it is imperative that some form of fair payment for the 2000 plus plantain trees of the squatting farmer of Wesley must be made. From a moral, legal, and human rights perspective, the DLP government must climb down from its high tree of arrogance and immediately engage in negotiations with the gentlemen to assist him- a father of 7 children, who has driven to informality in occupying the acquired lands out of necessity and with the encouragement and support of the government to cultivate the land in the first place. The DLP government must ensure that it deals with the entire issue of its compulsory acquisition of lands in the Wesley area in a transparent, unbiased, and equal manner with the constituents. Any negotiations with the people ought not to be secretive and must be based on an open exchange of information.
The negotiation and payment of compensation are critical components impacting the human rights of those affected in the process of compulsory acquisition of lands. A government that observes the rule of law and which cares for its people will feel obligated to ensure that it makes reasonable and timely payment to landowners and occupiers of the lands compulsorily acquired by the state, which includes the cultivation on squatted lands. Therefore, as far as possible, the government should, where appropriate design a resettlement program or provide for alternate lands to these squatters. The principle of equity and equivalence demands that the government must provide compensation that is no more or no less than the loss resulting from the compulsory acquisition of their land and ensure appropriate measures are in place to protect the best interest of those affected, particularly the weak, poor, vulnerable, and disadvantaged members of the society.
The expectation of the international human rights community of the Skerrit-led DLP Administration is to carefully balance the best interest of the state with the best interest of the affected citizens in a manner that respects and safeguards the rights of the citizens who are losing their possession, ownership, and the use, rights, and benefits of the land, while ensuring that the public interest is not unduly jeopardized. This requires a clear demonstration of professionalism, diplomacy, and flexibility of government officials in exercising their authority under the law, such that it allows for the determination of appropriate compensation in special cases- something that seems to be absent from the mind of the DisHon. Fidel Grant based on the horrendous tone of his correspondence.
The Skerrit-led Administration must ensure fairness and transparency in its negotiations with the affected individuals. All reasonable costs of the affected people, including support to the poor and illiterate in negotiations that should be based on an open exchange of information should be borne by the government as part of the compensation. The assessment of compensation should also recognize the taxation impacts and the taxation treatment by the State of any compensation payments. People who receive compensation should NOT be required to pay any tax on such compensation.
Finally, to the callers who are advocating violence against the operator of the bulldozer sent to destroy the farms in Wesley should take note Section 32 of the Land Acquisition ACT which provides, “Any person who;
- Assaults or obstructs or aids and abets any person in assaulting or obstructing the authorized officer or any of his agents, assistance or workmen in the exercise of his or their lawful duty under the Act or;
- Opposes or impedes the lawful occupation or taking of possession of any land under the Act is liable on summary conviction, to a fine of $3,000.00 or imprisonment for 3 months.
In summary, it is reiterated that the law of eminent domain gives the government power to act in the public interest, but sometimes the government may intrude on property rights without offering any or adequate compensation. In those cases, affected landowners/and occupiers may have the right to seek fair compensation. Any affected person who feels that he/she may have been unfairly treated and should benefit from compensation or restitution from the unlawful compulsory acquisition or indiscriminate destruction of property and needs assistance in protecting his/her property rights are encouraged to seek professional legal representation or a good-hearted attorney-at-law may wish to offer his/her services pro bono.