The Barbadian government's plan to acquire a particular piece of land has sparked a debate over the balance between government power and individual rights. While such acquisitions are vital for development, concerns arise regarding fair compensation, property rights, and transparency. In this article I attempt to address the issues of compensation as provided for in the Land Acquisition Act and its conflict with the fundamental constitutional safeguards.
08/17/2023
Graeme A.J. Brathwaite Attorney-at-Law
Introduction
The delicate balance between government power and individual rights in a democratic society is once again being tested as the Government of Barbados intends to compulsorily acquire a portion of land owned by businessman Allan Kinch at Bay Street Michael, popularly known as Savvy on the Bay. The Attorney General, Dale Marshall, made a public statement to the media on Wednesday, July 12, 2023, outlining the government's intentions. While government compulsory acquisitions are seen as necessary for infrastructure development and public projects, they also raise important questions about fair compensation, individual rights, and the limits of government intervention.
Compulsory acquisitions have long been a contentious issue in Barbados igniting passionate debates among policymakers and affected citizens. Advocates argue that such acquisitions are vital for urban development, public infrastructure, social welfare initiatives, and overall economic growth. On the other hand, critics express concerns about potential abuses of power and infringement upon property rights. They question the fairness of compensation for affected individuals and the transparency of the acquisition process. Achieving a balance between the public interest and the protection of individual rights is a complex and sensitive task for governments worldwide.
The government's authority to acquire land is rooted in the Land Acquisition Act CAP 228 (LAA),which grants them the power to seize private property for public development. However, many citizens have been left discontented with the government’s offer of compensation, as evidenced in a recent case involving a prominent businesswoman and another Bay Street St. Michael business. In its current form the LAA does not adequately consider the future development potential of the land, leading to disputes regarding compensation settlements.
Constitutional Dilemma
Section 11 of the LAA outlines the rules for assessing compensation for landowners. However, there are concerns that certain provisions of this section contradict the protective provisions of the Constitution, which safeguard against property deprivation. Specifically, Section11(2)(a) sets the value of land based on its current use in the open market, assuming it will be put to the same use in the future. Additionally, section11(2)(c)(i) presumes land to be used for agricultural purposes unless proven otherwise. This places the burden on landowners to provide evidence of a different use if they seek compensation accordingly.
Particularly section 11(2)(a) of the LAA states that
“The value of land shall, subject as hereinafter provided, be taken to be the amount which the land in its condition at the material time, might be expected to realise if sold at that time in the open market by a willing seller for the purpose of being put to the same use to which such land was being put at the material time”
Section 11(2)(c)(i) of the LAA States that
“Land shall be deemed to be used for agricultural purposes unless the party claiming compensation proves to the satisfaction of the judge that at the material time such land was being used for a purpose other than agricultural purposes (emphasis added)
Given these concerns, it is argued that the Land Acquisition Act (LAA) is vulnerable to constitutional challenge. Those who have been adversely affected by land acquisitions can contend that their constitutional rights to property enjoyment and protection from deprivation without compensation have been violated. Sections 11(b) and 16 of the Constitution safeguard fundamental rights and freedoms, including protection against property deprivation without compensation. Consequently, it is asserted that sections11(2)(a) and 11(2)(c)(i) of the LAA are inconsistent with the Constitution as they restrict the valuation of land for compensation and assume agricultural use when determining compensation.
Previously, there was a prevailing belief that the provisions of the LAA were immune to constitutional challenge due to the presence of the saving law clause in section 26 of the Constitution. However, this notion was dispelled by the ruling of the Caribbean Court of Justice (CCJ) in the case of Nervais v The Queen [2018] CCJ 19 (AJ).The CCJ clarified that in cases where an existing law contradicts a constitutional provision, the supremacy of the constitution must prevail, irrespective of the protections offered by section 26.
Critics contend that the provisions of the LAA unjustly limit an individual's entitlement to equitable compensation. I content that the term "compensation" ought to be interpreted as encompassing, just and reasonable remuneration. Legal literature lends support to the notion that "compensation" should be understood as a concept that necessitates fairness. Therefore, I submit that any compensation proposed should be commensurate with the fair market value of the land in question. Additionally, the prompt disbursement of fair compensation is equally considered a fundamental right for landowners.
Constitutional precedents in the Commonwealth Caribbean
Similar constitutional challenges have been successful in the Commonwealth Caribbean, as demonstrated in cases such as Attorney General of Anguilla & Ors v Bernice Lake, Q.C& Ors Civ App. No. 4 of 2004 and Loris James v The Attorney General of Saint Christopher and Nevis No. 2007 of 2015.
In the Bernice Lake case Saunders JA (Ag) concluded at paragraph 11that:
“...the constitutional right of a landowner to adequate compensation, I agree that it would not be proper for the legislature to place even the slightest fetter on that right. Accordingly, I agreeagree… that deeming land to be used for agricultural purposes should be regarded as infringing the right to adequate compensation. I would similarly regard the latter words in section 18(2), namely, “for purpose of being put to the same use to which such land was being out at the material time.”
Therefore, it is contended that any restriction, even the smallest placed by the LAA on a landowner’s right to adequate compensation is an infringement on his constitutional right.
Although challenging, preventing the government's compulsory acquisition of the land at Bay Street for tourism purposes may be difficult. However, the Constitution and recent legal precedents underscore the urgency for reform. These developments present an opportunity for affected landowners to pursue adequate compensation.
Conclusion
Government compulsory acquisitions remain a complex and emotionally charged issue, constantly scrutinizing the stability between public interest and individual rights. The weaknesses of the LAA and its constitutional compatibility ought to be thoroughly examined, emphasizing the crucial need for well-defined guidelines and legal frameworks that ensure fair compensation while minimizing conflicts.
As societies evolve and encounter new challenges, the ongoing discourse on striking a delicate balance between public interest and individual rights demands the continuous evaluation of government policies and the implementation of more equitable approaches to compensation for compulsorily acquired land.
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