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Misplaced hope and the quantum

EditorialMisplaced hope and the quantum

According to the Amandala, the Minister of Natural Resources, Hon. Cordel Hyde was greatly dismayed by a recent CCJ (Caribbean Court of Justice) judgment in a land matter that “puts the government on the hook for almost BZ$10 million” to Ms. Primrose Gabourel—that exorbitant amount including direct compensation of $4,545,325, $300,000 for lost landfill, and “interest to be paid from February 3, 2007.” This is another in a series of crushing losses for the government and people of Belize in cases where the government sought to acquire property or stopped a project, for the public good.

In the sequence of events that led to this most recent costly loss, Ms. Gabourel acquired a parcel near Seashore Drive in Belize City that was actually seabed, and when she and her son started filling the sea to make dry land, they were forced to stop after a gentleman, David Medina, Sr., cried foul. Medina reportedly has property on the seaside, and the reclaimed land would not only have deprived him of his view of the sea, but it would have considerably reduced the value of his holding. Later, the DOE (Department of The Environment), which doesn’t have the finances to be everywhere all the time, issued a stop order on the project because it lacked an Environmental Compliance Plan.

The Amandala said that on learning that government had repossessed the seabed property, Ms. Gabourel “sought damages for breach of her right not to be unlawfully deprived of property, special damages for loss of opportunity for a planned development of the property, loss of landfill, and legal fees.” Gabourel and her lawyers reportedly “submitted a figure of $12,855,700 for lost development value over a 10-year period.” The court ordered the government to pay Ms. Gabourel BZ$1,050,000 for the property, “$150,000 in nominal damages regarding lost development value, as well as $300,000 for lost landfill and interest.” This is the matter that the CCJ heard, and for which it dropped the hammer on our relatively meager treasury for about $10 million.

When we got full internal self-government in 1964, our leaders took full control of all the territory in the country that wasn’t under private ownership, to administer for the benefit of the nation. Much prized land had been given out during colonial rule, much of these privately owned parcels in strategic areas, areas where our new government “of the people, by the people, for the people” needed to put roads and bridges and schools and hospitals/clinics, and provide house lots and farm plots for our growing population. Government had to acquire these lands, and it did so through direct cash payments from the national treasury to the owners or through repossession in lieu of taxes owed.

At times Belize’s development has been haphazard. The only planned urban areas in the country are Corozal Town, which was rebuilt after being destroyed by Hurricane Janet in 1955, and Belmopan, the new capital, the construction of which began after Hurricane Hattie leveled Belize City and Dangriga in 1961. It is reasonable to say that our growth was stymied because of the not-so-well organized way we went about getting things done.

The distribution of parcels by government hasn’t always been efficient. All progressive governments steer land into the hands of citizens who can put it to its best use. For various reasons—insufficient foresight, lack of funds to carry out essential oversight, unfortunate mistakes, and yes, corruption—strategic parcels have ended up in the hands of individuals/companies who have no interest in developing them, or shouldn’t. When government has tried to correct its mistakes, invariably the cost is excessive because the government, to get back land it “gave away” at a developmental price, has to pay market price.

Looking at a couple costly losses that have been highlighted in recent news cycles, there is the case where a government took back a parcel on Turneffe that was sold for less than $30,000 by a previous government that had already received its last rites. The subsequent government was ordered to pay almost $6 million to get it back. There is the case where our government built a road for the people through a parcel that is communally owned, and now we have to fork up millions.

Staring the government and people in the face at this time is the case of a proposed development at Angel Fish Caye, which got environmental clearance from the DOE but has run into headwinds from fishers who use the area. For some reason, the fishers who are against the project didn’t make adequate representation when their opinions were sought; and if the project goes ahead, a private owner will get near monopoly control of a prized fishing area that they have used for generations.

The government could say “water under the bridge” and allow the project to go ahead. If the government decides to cancel the project, on the grounds that it is an injustice to too many fishers, it is likely the owners of the proposed Angel Fish Caye project will demand compensation well over the amount they paid for rights they had acquired in the area. The government will offer a reasonable price, and the project owners will counter with the market price. Based on past outcomes, the court in Belize will agree with the government, and the CCJ will rule as per the law that the latter price sticks.

Understandably, government acquiring land or putting a stay on development projects has to be an entirely transparent process. Understandably, the rights of feeble individuals have to be protected from the power of the mighty state. The case involving the seabed on Seashore Drive went through the courts, and all the government was asking for, “begging” for, was that the court would spare the injury of the full market price, after its error when it gave out the seabed.

When our government decided to switch from the Privy Council in London as our final appellate court, to the CCJ, a court in our region, our understanding was that the CCJ, knowing the injustices of the past, our impoverished state, our endemic weaknesses, all that was stacked against us, would be more understanding than the court in London.

The Right Honourable Sir Dennis Byron, President of the Caribbean Court of Justice, in a 2011 paper, “The CCJ and its Integral Role in Development of Caribbean Jurisprudence,” said “the CCJ affords the opportunity, by its judgments, more closely to align the trajectory of Caribbean jurisprudence with the mores, values, goals, needs and aspirations of Caribbean people…” Are the judgments of the CCJ in any way different from that of our former colonial rulers? We should be pardoned if we said it looks like we switched four shillings for an Esquivel dollar.

We would be fanciful if we expected CCJ rulings on core rights to differ from those of the Privy Council, both operating under the same laws. But we didn’t think we were fanciful to expect consideration for our impoverished state, our difficult history, and our endemic weaknesses. In respect to the quantum, it was our hope that the national good would have moved the law to compassion for the people. Extremely disappointingly, the verdicts from the court indicate that addressing the quantum, scaling back the amount of redress for errors, is not in its rigid purview.

The government could change the law as it relates to matters of property acquisition; however, that’s a very sticky slope, and with a hurdle: the many sacred cows that would be against it. Our hope was in the court. It was misplaced.

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