On the night of 6th September 2017 Hurricane Irma, the most powerful hurricane ever recorded over the Atlantic Ocean, an unprecedented Category 5, made landfall on the small Caribbean island of Barbuda. 185 miles-per-hour winds wreaked havoc. Land was flooded, homes were left without roofs and walls or completely flattened and the island’s road, energy and communications infrastructure destroyed. Two days later all of Barbuda’s 1,800 residents were forcibly evacuated, ferried to Antigua which only suffered minor damage.
Two and a half months later only a small number of islanders were allowed to return, for a few hours at a time. Efforts to rebuild houses were piecemeal. People were patching up roofs using plywood and corrugated iron salvaged from the wreckage. Hardly anything had been done to re-establish essential services. Water and electricity supplies had not yet been restored; returned residents relied on generators and desalinated water provided by humanitarian aid organizations. Schools and the hospital remained closed. But bulldozers had been working day and night for weeks, flattening land in preparation for construction of a new airport.
In a Channel 4 report Leslie Thomas QC said development of the airport is unlawful as it had not been approved by the Barbuda Council and consultation with the Barbudan people had not taken place. Work on the airport, which will have serious negative ecological impacts on the coral fringed island renowned for its seabird colonies, had commenced without the requisite Environmental Impact Assessment (EIA). Forest, wildlife habitats and land used for livestock grazing had been destroyed for the runway.
Eroding Barbudans' land rights
The chaotic after-effects of Hurricane Irma were exploited to attempt to erode Barbudans’ land rights. Within days of the disaster Prime Minister of Antigua and Barbuda Gaston Browne proposed that Barbudans returning to their homes buy freehold title deeds to their land for US$1, which could be used as collateral for bank loans to get mortgages to rebuild their homes, claiming that creating an “ownership class” would be “empowering”. Barbudans objected that this would force them to buy land they have owned collectively for nearly two centuries, since 1834, when Britain abolished slavery in its colonies.
Post-Irma disarray was being used to launch the latest in a series of attempts to undermine the 2007 Barbuda Land Act, which confirms that Barbudans share common title to the land and requires their consent for commercial development. The entire island is owned collectively and managed by an elected council. As co-owners citizens have rights to utilize the island’s resources, including for grazing animals, hunting and fishing. Individual citizens, whether resident on the island or not, have the right to a plot of land for a house, to farm and for commercial enterprise.
Liz Alden Wily, an independent land tenure specialist, refuted Browne’s insistence that individual, private land ownership is a precondition for post-Irma recovery and the only way for Barbudans to secure bank loans for reconstructing their houses. Collective title is not a barrier to securing a mortgage. Another option would be for the government to follow successful examples of establishing forms of credit, such as a credit union, which would not place people’s homes, often their main or only asset, at risk.
The privatization agenda being pushed by Browne’s government aims to enable developers to acquire land, in particular lucrative beach-front parcels, at low prices. In marked contrast with many Caribbean islands, including Antigua, where tourism revolves around all-inclusive beach resorts and cruise ship ports, tourism on Barbuda is small-scale. The vast majority of the coastline remains undeveloped, the beaches remain unspoiled. Residents have approved some tourism projects, maintaining a high degree of community ownership and control.
Weakening the Barbuda Land Act would enable land purchase by Antiguan and foreign interests, to establish privately owned resorts. Browne admits that the airport will open up Barbuda for investors and is pushing for a cruise ship port on the island as well as an airport, to support tourism growth.
On 12th December 2017, in a brazen attempt to subvert democracy, the first reading of the Barbuda Land (Amendment) Act took place in parliament. The Bill, seeking to repeal and replace the Barbuda Land Act and dismantle the communal tenure system, did not appear on parliament’s agenda until moments before its introduction under an accelerated review process. Leslie Thomas said the act was tabled with no consultation whatsoever. Many Barbudans – returners to the island, the diasapora, and their supporters – moved to resist the land grab enabling legislation. Dozens of people joined a picket outside parliament and a petition against the Act has garnered 3,580 signatures.
The House of Representatives passed the repeal bill on 3rd May 2018 and it was passed to the Senate. Human Rights watch urged the government to consult with the people of Barbuda to determine the impact of repealing communal land ownership on their human rights, and to fully respect and safeguard those rights. The Barbuda Silent No More movement was formed to strengthen islanders’ voices as they work to protect communal land rights, determine their own future and conserve Barbuda’s heritage, culture and environment.
John Mussington, a resident who refused to leave the island after Hurricane Irma struck because he suspected underhand motives for the evacuation, and filmed bulldozing of land for the new airport, reported that a huge area of land was being cleared and parceled up, saying it is clear that what is taking shape is not just an airport. He said the “attack on our land tenure system is unconscionable” and that the “powers that be” want Barbudans out of the way with the intention of a creating a “private island” for the enrichment of real estate speculators.
Application for judicial review
On 9th July 2018 a group of Barbudans, represented by Leslie Thomas QC, filed an application for leave for judicial review of the Government’s decision to construct the new airport, moving for immediate shut down of the development. The islanders sought to address failures by the government to meet critical requirements in development of the airport and failure to follow planning procedures. A strip of once virgin forest land at least 2,164 metres in length that had been used for grazing, farming and hunting and provided habitat for the rare red footed tortoise and the Barbudan Fallow Deer plus rare forest trees including the white sap tree, had been cleared. The following government departments were listed as defendants: Development Control Authority (DCA), Antigua and Barbuda Airports Authority (ABAA), The Attorney General of Antigua and Barbuda and the Barbuda Ministry of Justice and Legal Affairs. The legal action revealed that the Department of the Environment (DoE) warned the government of environmental risks including significant gaps in the Environmental Impact Assessment which failed to properly assess archaeology, biodiversity, hydro-geological and geological aspects .
The injunction was granted on 2nd August 2018. The High Court instructed that all construction on the new airport must cease immediately . Fears over the negative environmental impacts of the airport project were compounded by the abandonment of the initial area that was bulldozed after it was discovered that caves lay underneath . Aerial footage shows the land cleared on the initial site along with construction of the airport runway on a new site immediately to the south . The injunction was lifted on 11th September .
On 18 September 2018 - John Mussington And Jacklyn Frank, filed a second application in the High Court for an interim injunction restraining any further work being carried out on the airport development until the final hearing. The first interim injunction was set aside on procedural grounds hence the High Court could hear the matter. The case was heard and decided on the 7th of February 2020. The issue of whether the applicants had legal standing to bring the application for judicial review was raised and the Judge in the High Court held that they had legal standing which was founded on Section 25(2)(a) of the Physical Planning Act which requires the DCA to give considerations to any representations made by any person regarding a proposed development. The Court decided the balance of convenience was in not granting the interim injunction hence refused the injunction .
The applicants appealed to the Supreme Court against the decision refusing the injunction. The Antigua and Barbuda Airport Authority counter appealed challenging the Judges finding that the Applicants had legal standing to bring an application for judicial review of the DCA’s decision to approve the development. The matter was heard and decision passed on the 29 April 2021. The Judge in the Supreme Court decided that the applicants did not have legal standing as they were merely citizens and do not have the required ‘sufficient interest’ in the matter as required by the Civil Procedure Rules, 2000. The Judge also upheld the High Courts decision to refuse the interim injunction thereby allowing the airport project to continue. The applicants filed a request for permission to appeal the judgement of the Supreme Court before the Judicial Committee of the Privy Council. Permission to appeal was granted on the 19th of July 2022 and the matter is yet to be heard .
Concerns over Barbuda development strategy
Prime Minister Gaston Browne expressed dissatisfaction with the slow pace of construction work in October 2018. But Barbuda residents who had been travelling to and from the island said that, at this time, work had actually stopped, claims which were supported by photographic evidence . Following years of research in Barbuda through the Barbuda Research Complex, Rebecca Boger and Sophia Perdikaris wrote of their concerns over Prime Minister Gaston Browne attempts to ‘mirror Antigua’s development strategy in Barbuda’. After the hurricane the Antigua-based central government, which has jurisdiction over the Barbudan governing council, focused on tourism ventures rather than supporting local recovery. The new airport, constructed even though two existing airports remained functional after the storm, is intended to serve high-end tourist resorts. In addition to obliteration of forest, farming and hunting areas for the airport, mining for limestone used for airport construction resulted in destruction of a further 20 hectares of landscape and animal habitat .
GLAN supports the legal struggle
Global Legal Action Network (GLAN), an international non-profit organization that pursues innovative legal actions across borders, joined the fight against the new airport in March 2019. GLAN is supporting the legal struggle of the two Barbudans, John Mussington and Jacklyn Frank, who filed the injunction to halt the project, pending a judicial review, in 2018. Barbudans and their supporters have returned to court with new evidence and GLAN is seeking the public’s assistance with the case through public pledges . Barbudans are being represented on a pro-bono basis by leading barristers from Garden Court Chambers in the UK, who have expertise in environmental and human rights law, in association with Justice Chambers in Antigua, with GLAN providing legal and logistical support. GLAN launched a crowdfunder campaign to raise funds for what is expected to be ‘a long legal battle ahead’, pointing out that the case is ‘symptomatic of a global trend where vulnerable communities are dispossessed of their land to make way for large-scale private investments from which governments, multinational corporations and investors seek to profit’. The crowdfunder also mentions the climate change impacts of the new airport ‘to which Barbuda, a low-lying island, is particularly vulnerable’ .