What the Law Says

The storm of the debate is around whether the Barbuda Land Act should be repealed or not. Relevant features of the law include:

• Whether they reside in Barbuda or not, those born Barbudan share common title to the land (section 2). Rights of occupation and use descend from this common title, much as is the way in other community-based ownership systems around the world today. Specifically, each Barbudan has a right to a plot for a house, a plot to farm, and a plot for commercial enterprise. Many Barbudans work outside the island out of necessity. The loss of these land rights could, in effect, jeopardize their return. Barbudans may also convert their right of occupancy into renewable leaseholds, which are more attractive to lessors. In addition, as co-owners, Barbudans have the right to graze animals and to use other resources of the island in ways the community approves.
• The elected Barbuda Council^[4] may lease land with the approval of the Cabinet (based in Antigua) and when it has ‘obtained the consent of a majority of the people of Barbuda’ (s. 6 & 17). The government’s right is limited to ‘major developments.’ While an amendment in 2016 raised the definition of ‘major developments’ from $5.4 million to $40 million, the maximum lease period was also amended from 50- to 99-year leaseholds.^[5] However, amendments to the Act require local Council approval prior to coming into force, and it is not clear whether the Council has given this approval.
• The Council is in turn required to secure popular consent. This is obtained through a meeting or a publicly inclusive vote (s. 18).^[6] It is especially unclear that this vote was held.
• Finally, the Barbuda Council has zoning and land use authority including defining commercial development zones and national parks (s. 12). It is not clear that a Land Registry has been devolved to Barbuda as intended by the Act (s. 25) although a long history of purchases and sales of residences exists.^[7]

Barbuda’s Community-Based Tenure

Barbuda’s modern occupation began in 1632 with the settlement of an English slave trader and plantation developer, Christopher Codrington. He was granted a lease by the British Crown in 1685.^[8] When it came to organizing their survival, while serving the slave-owner or later overseers until the 20^th century, practical norms of issuing rights for living and farming evolved. Porter (forthcoming) cites literature showing that livestock grazing and shifting cultivation, as well as fishing were critical livelihood activities through the 17^th to 20^th centuries.^[9] While agriculture plays a limited role in livelihoods today,^[10] Barbudans consider this irrelevant to their land ownership. Claims vary as to how much Barbudans resisted orders in the slave and post-slave forced labour system, which was followed by direct British rule and semi-autonomy in the 20^th century.^[11] A history of proud possession of the island is undisputed. Although not made the case for Antigua, the 1904 Barbuda Ordinance vested Barbuda in the British Crown (s. 10-11) and to enable local occupancy and use rights to be retained. ^[12]

 

The Government in Antigua has not hidden its wish to repeal the Barbuda Land Act. Hurricane Irma in September 2017 brought a new angle for politicians to promote the repeal of the Barbuda Land Act.

 

One Barbudan writes:

“This right to use the land and to self-determination for Barbudans has been established since the end of slavery when the Barbudan slaves refused to be moved off Barbuda to Antigua, and more recently in 1981 this unique history was central to the establishment of a separate and independent Barbuda Council at the Antigua and Barbuda Independence talks in the UK.” ^[13]

Relations with Antigua and national leaders have always been tense:

“The freedom to use the whole island for fishing, hunting and agriculture has sustained the small population through difficult times but there has been limited economic development when it is not in the interest of central government in Antigua. This might be because … Antiguans are not entitled to free land here … since the bad old days … ministers (are seeking land) for their own financial benefit. The Land Act is being challenged.” ^[14]

At two percent of the population of the State of Antigua and Barbuda, and with only one guaranteed seat in Parliament, Barbudans have little say. Local internet sites such as cited above mention numerous cases of attempts to “mislead or bribe people to give their land away,” and in partnership with foreign investors, target compliant Councillors on the island.^[15] Porter (op cit.) confirms there are documented efforts since the 1970s to change Barbudan practices to the fee simple tenure regime operating on the main island. He also notes failed efforts by lessors to curtail local collective use of Barbuda in the name of economic development going back to the 17^th and 18^th centuries.

The Government in Antigua has not hidden its wish to repeal the Barbuda Land Act. This contention became pronounced from 2014 with a proposal that a company (which represented Australian billionaire James Packer and the actor Robert De Niro) obtain a 99-year renewable leasehold to develop a major resort. A referendum narrowly approved this. This was challenged as unlawful, given that non-Barbudans voted.^[16] The requirement for local consent to commercial developments and issue of leases to investors is irksome to Antiguans: “To say that you have to get the consent of the people, Barbuda would remain stagnant for a long time… Nibbs said in a new law, he would require the people to be consulted, but not for them to give their consent.”^[17] The issue was bypassed by the enactment of the Paradise Found (Project) Act, 2015. This exempts the Packer-De Niro project from time limits on development, limited terms (with a leasehold of 198 years and the right to freehold tenure should this eventuate on the island), payments of tax on corporate income, dividends, stamp duty, property – or any need for the consent of the people of Barbuda, or indeed its Council.^[18] Parliament then amended the Barbuda Land Act to allow Government to issue leaseholds over the heads of the Barbuda Council. “Barbudans have been silenced,” reported the Antigua Observer.^[19] As observed above, this is not the end of the matter, even in legal terms.

Meantime, Barbudans now aware of the amendment must be pondering the justifications. There is no evidence that they resist all private investments. On the contrary, there was almost unanimous support for a $250 million tourism project in November 2016.^[20]

Nevertheless, Hurricane Irma in September 2017 brought a new angle for politicians to promote the repeal of the Barbuda Land Act. Prime Minister Gaston Browne announced that with the repeal of the law, Barbudans would get freehold titles for their house plots. “When you give a Barbudan a freehold, they can go to into the bank, they can borrow monies, they can get a mortgage, they can build. They can get a loan for student purposes, to do businesses, it’s a form of empowerment,” said Browne.^[21] Moreover, this would only cost them a dollar each. “We are trying to build an ownership class in Barbuda,” he added. As the Washington Post reported on 30 September 2017, some Barbudans smelt a rat: a land grab that could lead to large-scale development.^[22]

Unpacking the Problem

First, does freehold title lead to bank loans? Classical property economics in developed countries suggest yes – with a strong proviso: lenders do not lend on the basis of title but on the basis of proof of a steady income to repay the loan. Stable salaries employment is not the majority reality in non-advanced economies. Yet obtaining mortgages on the basis of a title deed has been heavily sold on all continents since the 1950s, and adopted as the cornerstone of The World Bank Land Policy in the 1970s.^[23] The thesis got a shot in the arm at the turn of the century with Hernando de Soto’s ‘The Mystery of Capital’ (2000) through which he became ‘the darling of the global elite’.

But not for long: as collateralization failed to materialize even in his own project in downtown Lima, and distress sales rocketed as dwellers with papers became easy pickings for developers from Colombia to Cambodia, Istanbul to Johannesburg, selling privatization on this basis began to be recognized as often no more than a device for developers to secure cheap land.^[24]

 

Repeal of the Barbuda Land Act would free up most of the island for allocation to investors. Overall, it is difficult to see this move as other than a classical land grab by the stronger elite, and the end result of which could well turn the island principally into foreign-owned resorts.

 

More immediately pertinent to Barbuda, this transformation of tenure is not necessarily any more the will of Barbudans than for populations before them who have similarly been sold the line – although there is a good chance that some Barbudan Council members find this acceptable, as have some other local leaders before them in other circumstances.

Third, the issue of freehold strongly implies the cancellation of collective ownership of the island. This would revert to the issuing state on behalf of the Crown, and through this Barbudans would lose their ownership.

Fourth, they would also lose most of the land. This must be of grave concern to poorer islanders who depend upon the communal resources of the island, as well as to all Barbudans and their descendants who will cease to hold rights to build, farm, or establish enterprises. House, farm, and commercial plots constitute the minority of the island.

Fifth, it will prove difficult for future Barbudans to reacquire these rights market mechanisms. Repeal of the Barbuda Land Act would free up most of the island for allocation to investors, coming either from wealthier Antigua or beyond, promising jobs – although notably, this does not appear to be a provision of the Packer-de Niro Paradise Found deal. Overall, it is difficult to see Browne’s move as other than a classical land grab by the stronger elite, and the end result of which could well turn the island principally into foreign-owned resorts. Jobs and incomes could result, but local preference has for some time been expressed for community owned tourism and conservation developments in which islanders may take direct part.^[25]

Finally, of pervasive concern to Barbudans must also be the curtailment of long-fought for rights to govern their own land matters, and to hold onto their land at all costs. Many will indeed need substantial assistance to rebuild their homes, and to recover livelihoods on the island. However, the task of technical advisers seems better focused on finding ways to make this workable. This could include, for example, a community-based credit union, free to set its own terms and without the threat of dispossession in the process.

Misunderstanding Community-Based Tenure

Why does this case matter outside Barbuda? Those affected are, after all, less than 2,000 souls. The bottom line is a sign that devolutionary democracy and human rights are being opportunistically squeezed, and needlessly so. It is wishful thinking to imagine that the issue of freehold title for houses will deliver the bank loans promised, or be worth the costs of losing so many other rights. The more likely scenario would be that many Barbudans default and/or be forced to sell their parcels. It may also be asked if the State of Antigua and Barbuda has established a sufficiently robust disaster insurance scheme, such as one that enabled almost all New Zealanders in need to repair or rebuild their houses after the earthquake of 2011.^[26] This is the kind of discussion one would hope to see foreign governments engage all blighted Caribbean states to now consider.

From a property systems perspective, the stance of local politicians is also outdated, if possibly well-intentioned. It has been some time since enforced individualization has been understood or promoted as the inevitable path of property modernization or even necessarily helpful to securing lands in modern non-industrial economies. Securing property rights is itself even more urgently on the global agenda as several billion people struggle to make ends meet in rapidly changing circumstances and where livelihood and homes can be undone by displacement and conflict, with state supported large-scale investment as an increasingly prominent provocateur. Some companies themselves argue now for secure popular tenure and the right of owners to be direct lessors of the lands they need.^[27]

 

Securing property rights is itself even more urgently on the global agenda as several billion people struggle to make ends meet in rapidly changing circumstances and where livelihood and homes can be undone by displacement and conflict.

 

Devolving decisions as to inclusive property norms and their governance is more generally the single most common thread in new land legislation in the agrarian world. This world embraces the vast majority of modern states. It is ironic that while some Antiguans are promoting the end of collective tenure, a rising number of countries are contemporarily promoting its utility, and securing the very conditions for their people which the Barbuda Land Act secured for Barbudans in 2007. The community retains protective ultimate title in common, and assures its members secure lifetime rights, while also enabling them to dispose of those rights should they wish. This is described as customary tenure in many regions.^[28]

In other economies, such as in the case for the one million rural collectives in China, or burgeoning land cooperatives in other states, the solidarity attained by removing individualization as the only choice for real property is actively protecting millions of people (and hectares) from involuntary losses at scale. The revitalization of collective tenure in Europe as applicable for pastures and forests is also noteworthy, such as in new land laws in Portugal, Romania and Scotland. ^[29] After six or so years of inter-state dialogue, a global declaration on the rights of the world’s peasants and other rural communities is to be presented to the United Nations Assembly in 2018; this makes collective ownership and governance of land and resources a founding right of communities.^[30] It is difficult to see how many of the UN Sustainable Development Goals can be attained without such devolved and collective tenure.

Moreover, affected persons are hardly a small constituency; people sustaining the right to land and resources through community-based regimes such as on Barbuda number 2.5 to 3 billion people. Their lands embrace more than half the planet’s land area, notably including vulnerable forests, water lands, and rangelands.^[31] Recognition that these ‘naturally collective’ lands can be as well and even better protected by communities empowered to own and manage these estates, is leading a rising number of jurisdictions to make community owner-conservator protected areas as their growth point.^[32]

Constitutions and land laws are changing accordingly; to use Africa as example, at least 14 countries in 2017 acknowledge community-based tenure as a lawful property regime, equal in legal force and effect with statutory tenure.^[33] In most of these cases, this is to be upheld with or without formal registration of those rights, also provided for in new laws. Kenya is but the last in this line of reformers, enacting a new Constitution and land laws that aim to see two thirds of the country area brought under community title. In turn, each community will issue descendant rights to use and transfer family parcels, the community retaining the remainder as a collective asset, leasable as relevant, in ways through which community may obtain income or sustain off-farm resource utilization.^[34]

Liberia and South Africa are in the process of debating comparable laws, and at least five other states have bills under draft. Various micro, mini, and other forms of credit that do not risk the families’ only capital are expected to thrive alongside opportunities for land and resource based developments, private investors directed increasingly strongly on benefit-sharing requirements with community-based lessors.  This leaves development specialists outside Barbuda wondering what is driving determination to needlessly dispossess the poor of that small blighted island of their land.  To imply this is necessary for post-disaster recovery is particularly spurious.

About the author: Liz Alden Wily is an independent land tenure specialist and a Fellow at the Van Vollenhoven Institute, Leiden School of Law, as well as a Fellow at the Katiba Institute in Nairobi. She can be reached at lizaldenwily [at] gmail.com.

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*Originally published by Rights and Resources Initiative 

(Photo: Ryan Whisner via Flickr Creative Commons)

[1] See: https://www.washingtonpost.com/news/worldviews/wp/2017/09/08/hurricane-jose-threatens-a-second-blow-to-caribbean-islands-devastated-by-irma/?utm_term=.c6de0d0ee09b

[2] The census figures for 2011 were 1,638 Barbudans.

[3] See law at http://extwprlegs1.fao.org/docs/pdf/ant78070.pdf

[4] Established by the Barbuda Local Government Act, 1976 (at: https://laws.gov.ag/acts/chapters/cap-44.pdf) protected by the Constitution of Antigua and Barbuda in 1981 (Article 123), as the principal organ of local government on Barbuda (at: https://aceproject.org/ero-en/regions/americas/AG/Antigua%20and%20Barbuda%20-%20Constitution/view)

[5] The Barbuda Land (Amendment) Act, No. 12 of 2016 at: http://extwprlegs1.fao.org/docs/pdf/ant78070.pdf.

[6] Elaborated in The Barbuda Land Regulations, No. 17 of 2010: see: http://extwprlegs1.fao.org/docs/pdf/ant102993.pdf

[7] Personal communication with Read Porter, 20 Sept. 2017.

[8] At an annual cost of one sheep, ‘if demanded’; at https://www.barbudaful.net/barbudaful-history.html

[9] Read Porter (forthcoming) Post-Irma Disaster Recovery and Land Tenure Reform on Barbuda: A Pretext for Undermining Local Autonomy (under consideration for publication).

[10] Allan Williams, 2003, ‘Antigua & Barbuda Country Experience in Land Issues’, Land Tenure Center, Wisconsin at pp. 345-360 at: http://www.terrainstitute.org/carib_workshop/pdf/landbook.pdf

[11] See: https://www.barbudaful.net/barbudaful-history.html. Also see Read Porter, supra.

[12] See: https://antiguaobserver.com/member-of-parliament-hilbourne-frank-sues-to-establish-barbudas-rights/

[13] See: https://www.barbudaful.net/natural-barbuda/issues/the-land-issue.html. Note that Barbudans sought independence or to remain a British colony, in part based on the island’s uniquely collective land tenure system (Porter, op cit.).

[14] Ibid.

[15] Ibid.

[16] See The Guardian Newspaper, 27 November 2015 at https://www.theguardian.com/world/2015/nov/27/robert-de-niro-barbuda-island-resort-controversy#img-2 Also see: https://www.forbes.com/sites/jimdobson/2016/08/05/robert-de-niro-and-billionaire-james-packer-will-transform-barbuda-with-luxury-overwater-resort/#77862f001ed4  and: http://nationalpost.com/news/world/locals-fight-robert-de-niros-resort-plans-on-barbuda-an-island-well-loved-by-princess-diana

[17] See https://antiguaobserver.com/barbuda-mp-says-change-land-act/

[18] See https://laws.gov.ag/acts/2015/a2015-21.pdf

[19] See: https://antiguaobserver.com/amendments-of-barbuda-land-act-silence-locals/

[20] See: https://antiguaobserver.com/yes-vote-for-turbidy-dejoria-project-near-unanimous

[21] See: https://antiguaobserver.com/barbudans-to-get-title-ownerships-of-lands-they-occupy/; https://time.com/4937000/hurricanes-antigua-and-barbuda-gaston-browne/; https://antiguanewsroom.com/paradise-lost-pm-gaston-browne-says-full-evacuation-of-barbuda-might-be-necessary/

[22] See: https://www.washingtonpost.com/sf/national/2017/09/30/stormislands1001/?tid=a_classic-iphone&utm_term=.63fce65069d4

[23] See the East African Royal Commission Report 1953-1955 at: http://kenyalaw.org/kl/fileadmin/CommissionReports/E-A-Royal-Commission-1953-1955.pdf; , John Bruce & Shem Migot-Adholla (eds.), 1994 at: https://documents.worldbank.org/curated/en/630121468742824113/pdf/2804310paper.pdf; The World Bank 1975 at: https://documents.worldbank.org/curated/en/911161468153545471/pdf/PUB4400PUB0Lan00Box365739B00PUBLIC0.pdf; The World Bank, 1999 at: http://siteresources.worldbank.org/DEC/Resources/wbro99.pdf and The World Bank, 2003 at: https://documents.worldbank.org/curated/en/485171468309336484/pdf/multi0page.pdf

[24] For example, see John Gravios at: http://www.slate.com/articles/news_and_politics/hey_wait_a_minute/2005/01/the_de_soto_delusion.html; Sebastian Galiani at: https://voxdev.org/topic/infrastructure-urbanisation/property-rights-and-poverty-reduction-effects-land-titling-argentina-s-urban-poor; The Economist at: http://www.economist.com/node/7830252#; Celestine Musembi at: https://www.tandfonline.com/doi/abs/10.1080/01436590701637334?scroll=top&needAccess=true&journalCode=ctwq20; and DBSA: https://www.dbsa.org/EN/AboutUs/Publications/Documents/De%20Soto%20Colloquium%20FINAL

[25] See: https://www.barbudaful.net/natural-barbuda/issues/the-land-issue.html

[26] See: https://www.eqc.govt.nz/what-we-do/eqc-insurance

[27] See: https://www.devex.com/news/in-fight-for-secure-land-rights-corporations-and-communities-find-common-ground-90592

[28] Liz Alden Wily, 2017a Customary Tenure: Remaking Property for the 21^st Century. In Michele Graziadei and Lionel Smith (eds.) Comparative Property Law: Global Perspectives, Edgar Elgar, UK (2017) pages 458-478; at https://www.e-elgar.com/shop/eep/preview/book/isbn/9781785369162/

[29] Liz Alden Wily & Fabrice Dubertret, 2017 https://landportal.info/blog-post/2017/08/what-happens-community-lands-millennium-look-europe

[30] See: https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/News/Bauern_und_Baeuerinnen/G1705160.pdf

[31] Oxfam, RRI & ILC 2016 at: https://oi-files-d8-prod.s3.eu-west-2.amazonaws.com/s3fs-public/file_attachments/bp-common-ground-land-rights-020316-en_0.pdf. For maps of customary/community lands and legal analyses of 120 land laws, see: https://www.landmarkmap.org/

[32] FAO 2016 at: https://www.fao.org/forestry/participatory/67628/en/

[33] See footnote 28 above.

[34] Liz Alden Wily 2016 at: ‘The Community Land Act: Now it’s up to communities’ The Star, at: https://www.the-star.co.ke/news/2016/09/17/the-community-land-act-now-its-up-to-communities_c1420295