* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

As Barbudans are finally permitted to return to their home island, they find not water or electricity but the government constructing an international airport on their land, writes Liz Aden Wily

Five weeks ago the Thomson Reuters Foundation published "A land rights storm brewing in Barbuda". This told the sorry tale of the prime minister of Antigua and Barbuda seizing the catastrophic damage wrecked on the island by Hurricane Irma as the perfect excuse to finally get rid of the collective ownership Barbudans enjoy over their home island.

Instead, prime minister Gaston Browne said, households will be given freehold titles for their house plots, so they can access bank loans to rebuild their homes. The rest of the island, ran the unspoken implication, will be leased to lucrative foreign tourism ventures. Robert de Niro and Australian billionaire, James Packer, are already beneficiaries, given 99-year lease a special law made convertible to freehold, now bogged down in protest and litigation by Barbudans. Browne also announced that he would use $312 million from the United Arab Emirates “to build a green environment on Barbuda”.

All that Browne needs to lawfully see this plan through is to repeal the Barbuda Land Act 2007. This law confirms that Barbudans own the island in common. This was founded on acknowledgement of their sustained occupation and use of the island for 300 years, having been deposited there as slaves from the 1630s, and upon clear expression of their will.

However, Barbuda is the much smaller island in the state of Antigua and Barbuda, and guaranteed only one seat in the national parliament. One month ago, repeal of the law looked set to happen. Protests by Barbudans, caution urged by officials and donors, and negative publicity may have caused the plan to stall, and plans taken back to the drawing board. Or possibly not.

THREAT OF DISPOSSESSION MOVING CLOSER

Now as Barbudans are finally permitted to return to their home island, they find water and electricity have not been restored, nor schools or the hospital re-opened. Instead, they find the government constructing an international airport on their land. Who for? Browne admits this is to open up Barbuda to investors. No environmental impact assessment has been undertaken. Forest, wildlife and precious grazing lands have been destroyed for the runway.

A British Channel 4 programme on Nov 8 aired local concerns that the threatened land grab is happening before their eyes. Other journalists are asking questions. Barbudans are collecting affidavits to help challenge repeal of the law should this occur. Local groups have sent letters to Browne (15 November) asking him to respond to 29 questions within seven days, as to why even the most basic rehabilitation of their home island is being delayed, where known donated money for this has being spent, and why is the runway being constructed on their land without consultation? B

Browne’s Trump-like response furiously derided Barbudans as ‘imbeciles’. “I’m not running no giant welfare island over there” Brown spat out in an earlier interview. He and his colleagues, and supporters on Antigua, clearly believe they know what’s best for their brother Barbudans.

Some Barbudans concur with Browne that it is worth surrendering ownership in the hope of more jobs on the island. The majority appear to be much warier. As before, they encourage investment in their poor island economy, but insist more firmly than ever that this must be on their terms, including stringent environmental conditions to protect their pristine heritage.

Their council has approved one major proposal. Experiences with other hotel revenues and a destructive sand mining venture inform them that revenues flow in the end to Antigua, not to Barbuda. Most of all, they see no reason to surrender their hard-fought for communal ownership of the island to suit investor whims. There is no legal impediment to the community being the lessor of the lands and to set the terms. But this doesn’t suit officials, politicians and investors in Antigua and beyond with their eyes on as yet unspoilt Barbuda.

IS THE LAW ON THEIR SIDE?

A televised discussion by jurists on ABS Radio/Television saw the history of the Barbuda Land Act laid out, giving new grist to its terms. When brought to the island from Africa in the mid 17th century, the slaves were forced to extensively use land to keep themselves alive with a bit of crop growing and animal farming.

After the abolition of slavery, a century later (1834), ‘Barbudans’ refused to be evicted by the British slave owner from what had, for better or worse, become their home. Later on, they refused to pay him rent. The British Crown concurred. In 1901 the Crown formally recognized their rights, on the basis of long occupancy, and no doubt on humanitarian and social justice grounds.

Yet the matter was not fully resolved. Attempts to diminish these rights came in bouts until and after Independence in 1981. Barbudans went to court several times. When Gaston Browne’s political party fell out of power in 2004, the Barbuda Land Act was finally enacted. This confirmed that Barbuda belongs to Barbudans in common.

Browne among some others claim law is unconstitutional. They say it is unfair as Antiguans did not gain the same right to own land collectively and that there can only be one law for both Antigua and Barbuda. They also say that Barbudans only hold rights to the land, and do not own the soil itself, therefore they are only occupiers. Ultimate ownership is vested in the Crown on behalf of the right holders, as Antigua and Barbuda retaining Britain's Queen Elizabeth as head of state. Indeed, this is so.

As it also is in England and Wales, where the same Crown owns the soil, in symbolic trust for owners of rights to that soil; i.e. those who hold the property rights. These are allocated or traded in the form of freehold, leasehold or other entitlements, including mechanisms by which a community or other group may lawfully own land in common.

ARCHAIC PROPERTY SYSTEM

The case is similar in African and Asian countries which inherited the same English common law system. In this case, this is the situation for Barbudans. Purposeful misunderstanding of this admittedly archaic property system, cannot possibly move far among the highly educated court officials of Antigua and Barbuda and the Eastern Caribbean Court.

In any event, such legal arguments are not really what the issue is about. It is more prominently an issue of human rights and development strategy. Should already poor Barbudans be forced to surrender their homeland of 375 years for the sake of a somewhat dated and tarnished view of how economic transformation should proceed? Is such surrender even necessary?

Thousands of communities elsewhere in the world already enjoy legal rights to similarly control, regulate, and lease their shared properties if they wish, and only if they wish, and see this as a safe path to growth and development. Certainly, the Barbuda Land Act, 2007 needs attention. But not the kind that investors imagine.

Barbudans need legal assurance, from the courts if necessary, that their ownership of the island as stated in the act is intact and protected, and that only they, by majority will, can dissolve this. Antiguans might usefully take the chance to review the land law as specifically affecting their own island, a law which, in a rather colonial manner, deprived them of holding any of their lands in common. No doubt relevant estates are ‘government lands’ today, easy for government to dispose of at will.

Liz Alden Wily (lizaldenwily@gmail.com) is an independent international tenure specialist, principally resident in Kenya. She is an expert associate of Katiba Institute in Kenya and an affiliated fellow of the Van Vollenhoven Institute of Law, Development and Governance in the School of Law of Leiden University.