BARBADOS: EDITORIAL: Public beach and private property - EntornoInteligente

Barbados Advocate / Home Forms & Submissions e-Edition Search form Search Main menu Home News Business Sports Columns Contact Us EDITORIAL: Public beach and private property Sun, 04/01/2018 – 1:08am Barbados1 ..”beach” includes the land adjoining the foreshore of Barbados and extending not more than 33 metres beyond the landward limit of the foreshore – National Conservation Commission Act Cap. 383

The current dispute between the owners of the Crane Hotel and a number of locals engaged in the rental of beach chairs to visitors on the Crane beach owes much to the inevitable conflict that exists between the populist local notion of public ownership of the beach -“Da beach is mine”-, affirmed in the calypso, “Jack”, by the Mighty Gabby that is a corruption of the understanding that all local beaches are public, (itself a derivative of the fact that there are no private beaches) and the constitutionally guaranteed right not to be deprived by the State of one’s private property that is not the beach as defined.

The effect of this guarantee is that when one lawfully acquires property, he or she is not to be deprived of it except under certain clear restrictive conditions.

Clearly, the optics of the current situation do not favour the Hotel, whereby it might be simply perceived by the public that the hotel’s white expatriate owner is unfairly seeking to deprive poor black local businessmen of their daily bread. This perception might not accord with the legal reality however.

Of course, the claim to ownership of the beach by any individual is not based on any legal foundation but merely on the declaration of government policy that there should be no private beaches in Barbados. Hence it is a public good and any individual claim of a right beyond that of unrestricted access to and use of the beach for ordinary purposes would be dependent on him or her establishing that claim through the agency that has been accorded the statutory jurisdiction to regulate the public beach activity. According to the relevant law, this entity is the National Conservation Commission [NCC] that, under Cap 393, is accorded at section 5 (c) the function “to control, maintain and develop the public parks, public gardens and beaches of Barbados”. It is further empowered under subsection (d) “to maintain public access to…such of the beaches of Barbados as it thinks fit”.

Given the general maintenance-related nature of the mandated functions under section 5, any claim to a right by the NCC to license commercial activity such as the rental of beach chairs would have to be premised on its powers under the Act. There are two difficulties with such a claim however.

First, it is our understanding that the NCC claims the right to license the vendors’ activity based on its function at section 5 (c) to control, maintain and develop the beaches of Barbados. On the accepted principles of statutory construction, this claim may be contested since the other functions granted are in the nature of (b) removing any derelict object from the beach; (e) securing the observance of sanitary and cleanly conditions and practices and (f) maintaining existing beach facilities, inter alia. It is not immediately clear that in the context of such functions, “control” should extend beyond regulating the aesthetics of the beach to licensing commercial activity there.

In any event, there exists a presumption in statutory interpretation that the state does not intend to legislate in contravention of its Constitutional obligations. Since the right not to be deprived of one’s property is in the nature of such a right, this lends some force to the argument that “control” does not in law extend to licensing anyone to conduct business on the property of another.

The sole question then remaining would be whether the licensees are indeed encroaching on the private property of the Hotel. This should be easily discoverable, given the statutory distinction quoted above between the public and private parts of the beach.

BARBADOS: EDITORIAL: Public beach and private property

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