Government’s failure to consult would dismantle centuries old communal land and constitutionally guaranteed rights.
On 20 December 2017 at 10:30 a.m. Eastern Caribbean Time, the Antigua and Barbuda High Court of Justice will hear an application for an emergency interim court injunction that seeks permission for judicial review of the government of Antigua and Barbuda’s attempt to expedite the introduction and approval of the so called Barbuda Land Management (Amendment) Act 2017 and declarations under the government’s constitution. The court action was filed last Friday by a group of Barbudans on behalf of Barbudans who are opposed to the Bill.
Leslie Thomas QC of Garden Court Chambers is acting for the group of Barbudans. He said:
“The law in Antigua and Barbuda specifically states that the Barbuda Land Act and the communal land rights it protects cannot be changed without the consent of the Barbudan people… What this monumental bill proposes is that if you’re a Barbudan, you will effectively be stripped of rights to the land of Barbuda as you and your ancestors have always known them. At the same time, the process the government has undertaken effectively silences these people from speaking up against these changes.”
The court injunction addresses the statutory duty to consult on the proposed legislation. The claim takes issue with the government’s failure to gather consent of the Barbuda Council and the Barbuda people regarding proposed amendments to the Barbuda Land Act, 2007, which was developed to protect Barbudans’ communal land rights on the island. The claim asserts that there has been “absolutely no consultation” by the government with the Council of Barbuda and the people of Barbuda, and that the government “has declared its intention not to consult with the people of Barbuda”.
The legislation seeks to repeal and replace the Barbuda Land Act by:
- Redefining the definition of a Barbudan
- Introducing the concept of freehold lands, effectively replacing the longstanding communal land system by removing the principle that no land can be sold
- Repealing section 31, removing the communal land rights provision, and adding a new provision that allows non Barbudans residents of Antigua and Barbuda to purchase land
- Requiring only Barbuda Council consent, with the approval of Cabinet, of proposed leaseholds, no longer requiring consent of the people of Barbuda.
“One must reasonably ask why Barbudans have been left completely out of the equation in the making of this bill,” said Leslie Thomas QC. It is our intention that this leave for judicial review will stop this unlawful legislation dead in its tracks so Barbudans can voice their intentions in any planning regarding their land and livelihoods.”
The claim declares that there are key areas where the duty to consult has not been met including a failure to consult at the formative stage of the proposed legislation, the failure to provide adequate information and time to respond to the proposal, and the government’s failure to give conscientious consideration to information gathered during a lawful consultation exercise.
On September 6, 2017, Barbuda was hit with a Category 5 hurricane (Hurricane Irma) which devastated the small island of approximately 1,700 residents. Barbudans continue to await the return of essential services on the island including running water, electricity, access to education, consistent medical services, and reliable telecommunications.
“This land is our birthright as Barbudans and our own government is trying to silence us during a very vulnerable time in our history as we recover from a devastating hurricane,” said John Mussington, co-founder of the Barbuda Silent No More movement. “This attack on the democratic process reflects a complete lack of basic human decency during a period when we should be coming together as a nation to recover our homeland and protect our heritage.”
In an emergency situation such as this, where the government is trying to push through unlawful legislation, the court has the power to grant an injunction restraining the government and parliament from enacting that legislation until the final hearing is heard.
The Barbuda (Land Management) Act 2017 did not appear on the official Parliamentary agenda until moments before its introduction under an accelerated review process on Tuesday, December 12. At that time, the member of Parliament representing Barbuda, Arthur Nibbs, recused himself from the process.