Government and your land-1 | You and the Law

By Dr. William Para Riviere

April 15, 2014

The Land Acquisition Act, Chap. 53:02 gives the Government of the day authority to acquire your land compulsorily, that is to say, without your consent. To do so, two main conditions must be met. One is that the land must be used for a "public purpose". The other is that the person deprived of the land must be paid "adequate" compensation "within a reasonable time".

Building a public road would most probably be held to be a "public purpose." So, too, would construction of a school or college or a hospital, or clinic, or a market-place or library or sports facility or a Government housing scheme for the poor. But, as to what purposes are to be treated as "public" under the law, the Act is strangely silent. Instead, it makes the Minister responsible for lands the sole arbiter. He or she alone, and nobody else, decides what purpose is public and what is not. Section 3 (1) provides as follows: "If the Minister considers that land should be acquired for a public purpose he may cause a declaration to that effect to be made…and the declaration shall be conclusive evidence that the land to which it relates is required for a public purpose".

But the words "public purpose" may apply not just to the interests or well-being of the Dominican people. They may include, as well, what serves the interest of a foreign country. Section 2(2) of the Act gives us reason to believe so. It stipulates that "for the avoidance of doubt it is hereby declared that the expression "public purpose" in this Act includes the purpose of fulfilling any obligation of the Government under any treaty or agreement by the Government with the Government of any other country, territory or place, and any purpose pertaining or ancillary thereto."

Hence, the construction of a foreign military installation, in repayment of a debt owed by the Government of the Commonwealth of Dominica to that foreign country, may well be held to be a "public purpose". And the category "public purpose" may include the ownership of local lands by a foreign country or, for that matter, by its designated citizens. In fact, given our current preference for overseas loans and gifts, rather than exploitation of our natural resources, as the engine of our development thrust, it is not so far-fetched that our lands may one day be compulsorily acquired to serve the interests of Venezuela, the People's Republic of China, or any of our foreign creditors.

For completeness, it should be noted that Section 2(2) which provides for these possibilities was not part of the original Act when it took effect in June 1946. Neither is it of recent origin. The Section represents an amendment made in 1986 by the Government of the day.

Now, how does Government go about acquiring your land compulsorily? As stated earlier, the Minister makes a determination that this or that parcel of land is required for a "public purpose". A declaration to acquire the land is prepared. We would assume that any such declaration is made following deliberations in Cabinet. The declaration in writing is then served on the owner or occupier of the land in question. Where practicable, this is generally done on the owner or occupier in person. But where the party "after diligent inquiry" is not found inside the country, the declaration is served by posting it up on a building on the land or, if there is none, by exhibiting it at "suitable places" in the area where the land is located. Finally, the declaration is published in two ordinary issues of the Gazette. And, upon the second such publication, the land passes from the owner or occupier and rests absolutely in the Commonwealth of Dominica.

You need to pay attention to two important points. One is that Government has authority to enter on the land to be acquired before a declaration of acquisition is made, served and published. Under Section 4 of the Act it can enter the land, first of all, to satisfy itself by way of investigation, including a preliminary survey, that the land is, in fact, suitable for the purpose considered by the Minister. In that case, Notice of such intended entry must be published in the Gazette. Government also has power, by virtue of Section 5, to enter the land before it formally passes to the State. This power may be exercised only after publication of the Notice referred to earlier. And this may be done only in a situation where the Minister is of the opinion that acquisition is urgently required but that, "for any reason", it is not possible to make an immediate declaration to that effect. Where such advanced entry occurs, the State is required to pay compensation to owners or occupiers who suffer loss and damage thereby.

The other point to be noted is that your land may be compulsorily acquired today, but returned to you tomorrow. This may take place where the acquisition is declared to be abandoned. Two such situations arise. The first is where Government enters the land to conduct preliminary investigations, including a survey. If three months pass after such entry has been made, and the land has neither been acquired nor abandoned, an owner or occupier of the land in question or an adjacent owner or occupier who has been affected by the acquisition may serve Notice on Government to either complete or abandon the acquisition. And, if within one month neither is done, the acquisition will be deemed to have been abandoned. Further, Section 10 (1) of the Act confers authority on the Minister "at any time before the land has been acquired compulsory" to declare the intended acquisition to be abandoned. Where the Minister does so, the owner or occupier is entitled to some compensation for loss or damage suffered as a result of Government's initial acquisition and, then, abandonment. Thus, it is only where acquisition by Government is completed that the landowner is entitled to full compensation.

(Dr. William Para Riviere is an Attorney-at-Law)