SQUATTERS VICTORYBy Andre Bagoo Monday, January 31 2011
WHILE for years it demolished thousands of squatters’ homes, the Land Settlement Agency (LSA) did not have the lawful authority to do so, a High Court judge declared on Friday in a landmark ruling that arguably scored a victory for squatters.
In the class-action lawsuit brought by present and former occupants of several parcels of land once owned by Caroni (1975) Limited, Justice Carol Gobin also held that the State may not have a common-law right to evict persons from State lands and must comply with the requirements set out by statute. She warned that the current legislative framework must be tightened to properly deal with the problem of squatting.
“The LSA has no jurisdiction to evict squatters,” the judge ruled. “This is because the State Land (Regularisation of Tenure) Act (SLRT) at Section 27(2) clearly recognises and preserves the jurisdiction of the Commissioner of State Lands.”
The judge found that under the current legislative framework, it is generally for the President–through the Commissioner of State Lands–to enforce the State’s rights in relation to its property. In relation to land that has been designated as settlements under statute, the Minister of Housing or the Tobago House of Assembly may issue orders for squatters to leave. However, if squatters fail to comply, it is for the Commissioner of State Lands–whose office falls under the Ministry of Food Production, Marine and Land Affairs–to seek to enforce such orders.
The Commissioner of State Lands is appointed under the State Lands Act. Section 6 (1) of the Act vests the management of all State Lands in the Commissioner and charges the office holder with the prevention of squatting.
The judge noted that Section 29 of the SLRT Act limits the scope of the work of the LSA and excludes the possibility of an “agency” relationship between the State and the LSA with regard to the issue of dealing with squatters on State lands.
“The LSA is a creature of statute,” Gobin said. “Its powers are prescribed by the SLRT Act. It can exercise its limited jurisdiction only in areas designated in accordance with that statute. It cannot through a claimed relationship of agency purport to lawfully exercise any powers other than those prescribed by Section 10 of the SLRT Act.”
Lawyers yesterday warned that the case now opens the door to claims for damages from thousands who may have been affected by the actions of the LSA prior to 2010. But in her judgement, Gobin was careful to clarify that her ruling did not affect the fundamental legal status of squatters.
“This decision gives the claimants no right in the lands they occupy,” she said. “It simply decides that the LSA in evicting some of them and in threatening to evict the remaining claimants, acted unlawfully, in that it purported to exercise a power that it did not have.”
The case, which dates back to 2008, was brought by a team of lawyers which included Kamla Persad-Bissessar who practised as an attorney before being elected to the post of Prime Minister. At the time of the case, in addition to being the Siparia MP, she was in private practice. After Persad-Bissessar took higher office, the case was continued by attorney Mark Seepersad.
The claimants in the court action were all occupants of several parcels of land formerly owned by Caroni 1975 Limited. By Act of Parliament in 2005, the former Caroni lands were vested in the State. The parcels of land involved in the case are all located at Windsor Park and Esperanza Village, California.
It was alleged that on July 17, 2008, officials of the LSA unlawfully entered lands occupied by ten of the claimants and demolished their homes. Other claimants were notified of impending eviction either by oral threats or in letters issued on the letterhead of the LSA and signed by its Chief Executive Officer, Ossley Francis.
In her ruling, Gobin also argued the State may not have a carte blanche common-law right to evict squatters. Instead, that right is regulated by statute and there are procedures that must be adhered to. She cited the State Lands Act (SLA).
“The SLA...regulates the conduct of the State. It provides for a civilized (if outdated) system to treat with squatters. It contemplates access to a judicial process,” the judge opined. “It would be entirely inconsistent with the philosophy of this legislation (now almost 100 years old) if some residue of prerogative power or if some alleged common-law right, allowed the State with all its might and under cloak of using necessary force to trample upon people (even squatters) and destroy their homes. A recognition of any such power would be retrograde.”
Government Chief Whip Dr Roodal Moonilal yesterday welcomed the ruling and said legislative amendments could be tabled in Parliament within a year to regularise the activities of the LSA.
As the Minister of Housing and the Environment, Moonilal is the line minister for the LSA.
“The ruling of the High Court judge has vindicated the vision of the Prime Minister who, when in Opposition and in private practice took up the plight of those helpless citizens whose rights have been undermined by the former PNM administration,” Moonilal said yesterday. “Kamla Persad- Bissessar has always maintained that the law did not provide for the LSA to destroy the structures and dwellings of citizens on state lands and Mrs Persdad-Bissessar fought long and hard in the Parliament, in the courts and in the local communities to preserve the rights of those helpless citizens.”
In her ruling, Gobin rejected the idea that a Cabinet Note of the last PNM administration gave the LSA the legal authority to take action to demolish homes.
“A Cabinet Note cannot authorise the usurpation of the power of the Commissioner of State Lands,” she said. She referred to a Cabinet note detailed in Cabinet Minute No. 1095 of May 11, 2006.
The minute set out the PNM’s policy decision to “visibly reduce and eradicate the incidence of squatting on all State lands” and to give the LSA greater powers to do this. However, Gobin noted, the Cabinet itself acknowledged that legislative amendments would be required.
Moonilal yesterday said the State will draft legislation to regularise the role of the LSA with regard to enforcement.
“The law needs amendment, specifically the SLRT, in order to allow the LSA the power to demolish structures that are illegally erected and this is a matter that is engaging the ministry and the ministry of the Attorney General. The PNM could not attend to this in eight years. We expect that in the first year we will bring such amendment to the Parliament,” he said.
Moonilal warned that the case brought against the LSA has cost taxpayers millions and further costs are anticipated from thousands of squatters who may have been evicted by the LSA for years under the PNM. “This could go into the millions,” he said.
“As Minister of Housing I am shocked that the LSA, under the former ministers Dr Keith Rowley and (former Senator) Dr Emily Gaynor Dick-Forde, was allowed to break the law and violate the Constitutional rights of citizens.” Rowley did not answer calls yesterday.
There are an estimated 300,000 squatters in Trinidad and Tobago.
