The Court says: two wrongs do not make a right. So, follow the money. UDP presided over “hotbed of corruption”; now Senior Counsel is rewarded against PUP government’s attempt to undo the UDP’s “breach”. Is there any “moral guilt”?
BELIZE CITY, Thurs. Jan. 18, 2024
Earlier this month, High Court Justice, Geneviève Chabot ruled against the Minister of Natural Resources regarding his failure to approve the completion of the sale of four parcels of national land totaling 1,922.19 acres in the Duck Run 111 area of the Cayo District. One parcel in particular (Parcel E19560-B1) totals 1,850.42 acres. The full purchase price for the four pieces of land (a total of $266,894.50) was paid by Fowler Works Enterprises Ltd. on October 22, 2020, just days before the general elections of November 11, 2020.
The average Belizean knows only too well the high cost of a piece of land, even for a simple house lot, which is usually less than a quarter of an acre. The arithmetic above tells us that the buyer paid our government approximately $139.00 for each acre of that land in Duck Run. Belizean, would you like to buy some? Is it coincidental that this deal took place “just days before the general elections”?
The current PUP government was apparently trying to right the perceived UDP government wrong by refusing to proceed with the purchase on various grounds. But the court is saying that the government (UDP) did wrong and the damage is done, so they must face their commitments; only that it is now a PUP government that is facing that commitment; while – how sweet it is – it is the UDP attorney/former P.M. who wins again and comes out smelling like roses.
According to the judgment, the Minister of Natural Resources argued that the company failed to conduct an Environmental Impact Assessment (EIA) prior to its determination of its application for lease as required by the National Lands Act, and that the sale of more than 500 acres was never authorized by the National Assembly as required under the Finance and Audit (Reform) Act (FARA). He therefore affirmed that the sale agreements are not valid and are contrary to public policy. The Defense added that Fowler Works “cannot hide behind the veil of an assertion that FARA is a legislation which is concerned with the responsibility of the state. The onus is on both parties to an agreement to be certain that the scope of their agreement is legal.”
This argument was not accepted by the Judge, as section 22 (1) of the FARA states that “The Government shall, before disposing of any public assets with an aggregate value of or above two million dollars, obtain the approval of the National Assembly…” The Judge went on to extract from Section 22 (2) the following: “Provided that the sale or lease of any national land in excess of five hundred acres, or any caye of whatever size, by Government shall first be authorized by a resolution of the National Assembly [emphasis added].” Fowler Works is now seeking damages for the breach of the sale agreements dated August 6, 2020.
During the trial, Calvin Reimer, Manager of Fowler Works, testified that in 2018 he sought to develop a large-scale sustainable farming/homesteading project in Duck Run, and he and others then applied for permission to survey parts of the national land they had identified. Their application, filed in December 2018, was approved by the then minister in May 2019. That same year, Fowler Works was incorporated to proceed with the transactions. The company applied anew for permission to survey and was given the greenlight on June 24, 2020. According to the judgment, the survey was completed on July 16, 2020, and on August 6, 2020, four separate applications were submitted to purchase the surveyed parcels. However, after the November 2020 general elections, Reimer says the new Government refused to grant title for the land.
In the case of the EIA requirement for the large parcel, it was accepted that none was carried out, but the Court also determined that an EIA must be done BEFORE a lease application, and in the case of Parcel E19560-BI, while a lease was approved, no lease agreement was issued, only a sale agreement. The Judge notes that the latter does not carry the EIA requirement. She also declared that “there is no statutory requirement for an applicant for the purchase of national lands to first lease that land from the Government, and no such policy or requirement has been prescribed by the Minister.” Furthermore, she pointed out that the National Lands Act does not provide that a lease be invalidated if an EIA is not carried out. What it allows is for a cease order to be issued. Justice Chabot also made the observation that “The defendants failed to explain why Fowler Works’ application for a lease was granted in the face of an obvious failure to comply with section 9(4) of the NLA.”
Justice Chabot likewise found that Section 22(2) of the FARA was breached, as Parcel E19560-B1 required a resolution from the National Assembly. Nonetheless, she affirmed that “Control of the process and the decision whether to grant the sale of national land to Fowler Works was always in the hands of the Ministry. Failure to comply with the requirements was for the Minister and his officials to flag, and it was for the Minister to decide whether to proceed with the sale notwithstanding the omissions.” She therefore declared that the breach of the FARA was the defendant’s breach, and so the sale agreements should not be invalidated. She also took into consideration that the FARA does not specify a sanction for a breach of its provisions, and, making reference to a court case, she states in her judgment: “where Parliament intends a breach of the FARA to result in the invalidity of a contract, it specifically says so.” This is separate from the law providing for an offender potentially being criminally charged.
Of further note is that Justice Chabot also cited a Caribbean Court of Justice ruling in which she says it “took a strong stand against rewarding the Government for its own breaches of its legal obligations.” Damages must now be assessed, and legal costs were awarded to the claimant. The Government has not yet confirmed if it intends to appeal the judgment.
Fowler Works was represented by Senior Counsel Dean Barrow and Adler G. L. Waight, while the Government was represented by Imani Burgess, Israel Alpuche and Jhawn Graham.
Feature photo: Ministry of Natural Resources Headquarters, Belmopan