Court dismisses challenge by Barbudans to new land ownership law

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Barbuda was left devastated by Hurricane Irma in September 2017

ST JOHN’S, Antigua — A High Court judge has dismissed an application by six people that sought a declaration that the Antigua and Barbuda government acted “unreasonably, contrary to the principles of natural justice and democracy” when it sought to enact the Barbuda Land Management (Amendment) Act.

In an eight-page ruling on Thursday, Justice Clare Henry dismissed the application filed by the six Barbudans against Prime Minister Gaston Browne and Attorney General Steadroy Benjamin, Antigua News Room reported.

The six had said they represent the views of Barbudans who are opposed to the legislation and sought leave to commence a judicial review as well as an interim injunction restraining Browne and members of the government “from promoting and/or proposing the adoption the Barbuda Land Management (Amendment) Act on the ground that there has been no consent given by the Barbuda Council or the people of Barbuda…”

The six Barbudans had also sought a declaration that the prime minister and members of the government in tabling the Barbuda Land Management (Amendment) Act 2017 as preparatory steps to enact the Bill into law have acted in breach of the Barbuda Land Act section 32 and in breach of the Constitution sections 3, 9 and 19.

They also sought a declaration that Browne and his government in tabling the legislation “have acted unreasonably, contrary to the principles of natural justice and democracy and have deprived the people of Barbuda a legitimate expectation to be consulted on matters affecting their rights to land under the Barbuda Land Act 2007 and section 3, 9 and 19 of the Constitution of Antigua and Barbuda 1981.”

In her ruling the judge ruled that this case does not assist the applicants, noting that the claim filed by the claimants was not one for pre-enactment intervention.

“The claimants utilized the primary method for challenging statutory provisions by filing a claim for declaration after the Act was passed. Further the claim for declarations failed in all three courts,” she said.

She said as in The Bahamas, the constitution of Antigua and Barbuda is the supreme law of the land.

“If any other law is inconsistent with the constitution, the constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Part 2 of the constitution provides that “Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Antigua and Barbuda.”

She said the approach to be taken by this court is that expressed by the Privy Council in cases which she cited in her ruling.

“This court can review the actions of Parliament however, pre-enactment relief will be granted only when, exceptionally, this is necessary to enable the courts to afford the protection intended to be provided by the Constitution.

“The applicants must show that there would be no effective remedy available to them once the legislative process is complete and that the resultant harm will be material and irreversible unless the court intervenes at an earlier stage. This is indeed a formidable burden,” Justice Henry added.

Justice Henry said regarding the application for leave to make a claim for judicial review and for interim relief, the court sees nothing in the excerpt referred to by counsel that evidences an arguable case of material and irreversible harm to the applicants if the court does not intervene at this pre-enactment stage. She said the plan referred to in the excerpt is for the Barbudans to be given freehold title and to arrange for mortgages for those who desire it.

“There is nothing to suggest that a post-enactment challenge could not provide relief,” Justice Henry said, noting “the court is of the view that the applicants have failed to present an arguable case for intervention at the pre-enactment stage.

“If the 2017 Bill is enacted, the court has the power to declare it void if it is shown to offend the Constitution. On the facts presented the applicants have failed to present an arguable case that there would be no effective remedy available to them once the legislative process is complete, or that material and irreversible loss will occur unless intervention is made at this stage.”

She said that the primary and normal remedy in respect of statutory provisions whose content or legislative process, it is alleged, contravenes the constitution therefore applies.

“The court can only reiterate the sentiments expressed by the Privy Council …that the courts should, as far as possible, avoid interfering with the pre-enactment legislative process,” Justice Henry added.

The Barbuda Land Management (Amendment) Act was passed in the Lower House this week and goes before the Senate next week.

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