Chapter 3. Legal and institutional framework for natural resources conservation and development

3.1. Legal background of land development control and regulation
3.2. Legal background of natural resources conservation and development
3.3. Institutional structures for natural resources conservation and development

This chapter provides an analysis of the current legal and institutional framework for natural resource conservation and development, with emphasis on land resources and their critical importance to agricultural development. Specific proposals to deal with the problems detected are provided in Chapter 7.

3.1. Legal background of land development control and regulation

3.1.1. Land ownership and registration
3.1.2. Land use control and regulation

Land control legislation was introduced by the French Government when the laws of the Coutume de Paris were accepted as the basis for French colonial law in Saint Lucia. Additions to the law were made throughout the 18th century.¹ Initially the legislation addressed inheritance, land registration, and the demarcation of Crown Lands. Additions to this body of law concern taxation, some aspects of natural resource conservation, and urban land use control. The existing legal structure has grown through new legislation or by amendments to existing laws. A recent study evaluating the legal structure which addresses natural resource issues indicates that it can be considered incomplete in its coverage of issues and often insufficient in regard to current development needs.²

¹ "Arret en Règlement du Conseil Supérieur portant que la Coutume de Paris et les Ordonnances du Roi Seront suivies en cette Ile" (5 November 1681), St. Lucia Revised Ordinances; A.M. Lewis, Vol. I - VII; Castries: Voice Publishing Company, 1957.

For instance the "Ordre du Roi au sujet des cirquante pas du bord de mer" (6 août 1704) Saint Lucia Revised Ordinances, op.cit., Vol. VI, Appendix 11; p. 35

² Rojas, E., "Institutional and Legal Aspects of Agricultural Land Development Planning and Implementation in Saint Lucia," OAS Technical Report, Castries, November 1981.

3.1.1. Land ownership and registration

The Saint Lucia Civil Code allows freeholding of lands by individuals or companies.³ Aliens are required to obtain a license from the Cabinet to buy, lease or hold a mortgage on land in Saint Lucia.⁴ Enforcement of this law allowed nearly 30 percent of the agricultural lands to be acquired by foreigners during the 1960s and 1970s.⁵

³ "The Civil Code", Revised Ordinance, op. cit., Vol. IV, Cpt. 242.

⁴ The Aliens Act, 10/1973 (Landholding Regulation).

⁵ FAO, op. cit., p. 10.

FAO estimated that in 1973 the Government owned 26 798 acres of land, of which 16 385 acres were state forest (10 165 acres of protected forest and 6 220 acres of forest reserves); 6 395 acres were agricultural holdings; 2518 acres corresponded to the Queen's Chain and approximately 1 500 acres to public roads and buildings.⁶ In the same year, 70 777 acres were privately owned, of which 63 577 acres were in agricultural holdings, 5 900 acres were non-urban land not in agricultural holdings and 1 300 acres were urban land. At that time, 54 745 acres had uncertain ownership and tenure status (e.g., ungranted Crown Lands, unregistered Government Lands, etc).

⁶ Ibid, p. 16.

Legislation currently allows government to acquire lands, including agricultural land, compulsorily when necessary. The acquisition process may generate implementation difficulties in complex acquisition programs involving multiple owners because of the complicated statutory rules of assessment of compensation in the Land Acquisition Ordinance (section 19); these rules require determination of a free market price. The well-known distortions that occur in land markets coupled with the traditional low dynamism of the agricultural land market do not ensure that a fair value may be obtained through this procedure. These rules may need to be changed to allow for valuation procedures capable of accounting for the value of the land, capital and other productive factors.⁷

⁷ See, for example, Matthew, C., and J. Girard, "Report on the Valuation of Fond Estate", Ministry of Agriculture and Lands, June, 1973 (unpublished).

The acquisition of land by private individuals tends to be unduly complicated by the existing system of registration of rights. The introduction of a title registration system will facilitate the process, and the introduction of "a trust for sale" will help solve multiple ownership problems created by existing inheritance laws.⁸

⁸ Both are proposals made by the Saint Lucia Land Reform Commission in its "Interim Report" published in June 1980 (mimeo), and accepted by Government. Legislation in this connection has already been drafted and is being circulated for corrections.

The deficiencies of the existing system of ownership registration, a bottleneck for all land transactions (the Registration of Deeds), affects agriculture by making it difficult for farmers with no clear title to obtain credit.⁹ The land market in Saint Lucia is very inactive, particularly for small holdings, where the difficulties created by the registration system are greater.¹⁰

⁹ The Mode of Registering Deeds Ordinance, Saint Lucia Ordinances, 1945. op. cit., (8/1961).

¹⁰ Rickman, R., Saint Lucian Land Market A Brief Survey, Technical Report, Ministry of Agriculture, Castries, December 1981 (mimeo).

The lack of a cadastral survey makes the taxation system incomplete. Lands taxes are used as a source of income for the Government (currently supplying less than 0.04 percent of the government's recurrent revenue);¹¹ an annual flat rate tax per acre is assessed according to property size (no tax for properties of less than 10 acres, 25 cents per acre for properties between 10-50 acres 50 cents for those of 50-100 acres, 75 cents for 100-500 acres and EC$1 per acre for properties of 500 acres and over).¹² A cadastral survey would fill an information gap which, in effect, is preventing land control and the utilization of taxes as a development tool to gradually reduce land ownership concentration and land underutilization.

¹¹ Land and House Tax Ordinance (11/1952), Amended by Ordinance 19/1965; 16/1966.

¹² Ministry of Finance, Inland Revenue Department.

3.1.2. Land use control and regulation

Legislation concerning land use regulation has evolved over time and concentrates on the control of urban land, the building situation and construction. Only minor pieces of legislation have been enacted for natural resource protection or management.

The Town and Country Planning Ordinance first established development control by creating a Central Housing and Planning Authority with powers to prepare or adopt schemes containing development proposals and to enforce compliance with these schemes.¹³

¹³ Town and Country Planning Ordinance, (10/1945), Saint Lucia Ordinances ... 1945, op. cit., pp. 7 and ff.

In 1971, the Central Housing and Planning Authority was dissolved by the enactment of the Land Development (Interim Control) Act, 1971, which established the Development Control Authority.¹⁴ This act was passed as a temporary measure while full planning legislation was put before the House of Assembly. To date, no new legislation has been passed and the 1971 Act remains the only urban planning legislation effective in Saint Lucia. Urban land development is also subject to the following enactments:

a) The Public Works and Roads Ordinance (1969) with regard to siting and access for any development proposals.

b) The Industrial and Commercial Buildings Act (1973).

c) The Public Health Act (1975) for sanitation, sewage treatment and other public health measures.

¹⁴ Saint Lucia, Land Development (Interim Control) Act 1971, No. 8 of 1971. The Development Control Authority is a board of seven members including the Technical Officer in charge of Housing, Public Works, and Health Services, with the Chief Technical Officer in charge of Town and Country Planning Development acting as Executive Secretary.

Although the development controls powers given to the Authority are ample in scope, they are restricted in where they can be applied: Section 9 and the First Schedule of the Act state that buildings and other works intended solely for agricultural purposes will be considered as permitted, hence not requiring permission from the Authority to be developed.¹⁵ Therefore, the development control powers of the Authority are confined to urban areas. Implementation of land use proposals and building regulations prepared by the Authority depends on the process of granting a planning permit for development. Two main problems have been encountered in implementing these proposals. First, not all developers apply for permission. Furthermore, the Authority lacks sufficient staff to prosecute all cases of illegal development, and the fines set by the 1971 Act are low, offering little disincentive to evasion, and second, decisions on major development proposals are made by the Cabinet (re: Hess Transhipment Terminal, Hotels, etc.), discouraging the Authority in the fulfillment of its tasks...

¹⁵ Section 9 also states that although no permission is required for buildings, or land use for agricultural purposes, such development shall be subject to any conditions and restrictions imposed by regulations made by the Cabinet with reference to the provisions of the Act. In fact, no regulations have been issued by the Cabinet.

The powers of the Authority were further reduced by the creation of the National Development Corporation.¹⁶ According to the legislation, this statutory body has powers to act as Development Control Authority within designated development areas. Special areas need to be designated by the Governor General and approved by the House of Assembly. Development areas have been designated in various sections of the Gros Islet - Castries urban corridor, Vieux Fort and Dennery giving NDC control over substantial sections of these urban areas. Currently, there are two development control authorities in Saint Lucia with powers to regulate development in nine urban areas.

¹⁶ The National Development Corporation Act (9/1971), sections 15 and 17.

3.2. Legal background of natural resources conservation and development

3.2.1. Forest protection
3.2.2. Beach protection
3.2.3. Wildlife protection and areas of natural and historic interest
3.2.4. Natural resources use

3.2.1. Forest protection

The only legislation with a bearing on the control and regulation of rural land use is the Forest, Soil and Water Conservation Ordinance enacted in 1945. This Ordinance covers only a narrow aspect of natural resource conservation. The Ordinance delegates to the Chief Forest Officer the duties of managing all lands Crown Lands (Section 3), overseeing the timber industry and timber dealers in the country and preventing the unlawful removal of timber from Crown Lands (Sections 6 and 18). Provisions was made in the Ordinance for the establishment of forest reserves (Sections 19 and 20) and/or the declaration of protected forests on private lands, allowing the Chief Forest Officer to regulate its utilization "in order to protect covered areas of importance for protection against storms, prevention of soil erosion, the maintenance of water supplies in springs, rivers and reservoirs and the preservation of health."¹⁷

¹⁷ The Forest, Soil and Water Conservation Ordinance (6/1945).

The declaration of preserved and protected forests and their corresponding rules and provisions are the only aspects of the Ordinance dealing with the regulation of land use in rural areas. They address only the forestry-related aspects of soil and water conservation, without considering the agricultural land use aspects of environmental management.

3.2.2. Beach protection

The beaches are the only other natural resource partially protected by legislation in Saint Lucia. The Beach Protection Ordinance (21/1963) is very limited in scope, preventing digging and removal of sand, stones, shingle or gravel from the seashore. The Ordinance permits the Government to undertake such operations and authorises the Minister of Communications and Works to grant licenses to private citizens or companies to carry out any activities prohibited by the Ordinance. The definition of seashore given in the Ordinance is fairly broad (including the bed and shore of the sea, every channel, creek, bay or estuary and every river as far as the tide flows), and the Government owns all lands covered by the Ordinance (the Queen's Chain), but no legal provision exists in this legislation for the integrated protection of the delicate coastal ecosystems on which much of the tourism industry is based. These ecosystems are being permanently damaged by pollution and overexploitation.

3.2.3. Wildlife protection and areas of natural and historic interest

Two pieces of legislation important for the protection of the environment and the scenic beauty of Saint Lucia are the Wildlife Protection Act (9/1980) and the Saint Lucia National Trust Act (No. 16, 1975).¹⁸ The former was enacted specifically to protect various species of wildlife that are either unique to Saint Lucia or of ecological importance, and the latter to legally sanction an institution capable of preserving buildings and areas of architectural, historical or natural interest. While only the Wildlife Protection Act is regulatory in character, the National Trust is important regarding actions required for protecting natural resources.

¹⁸ The Saint Lucia National Trust Act, No. 16 of 1975.

3.2.4. Natural resources use

Other than the Forest Soil and Water Conservation Ordinance (6/1945), there is no legislation ruling on issues of land use and development in rural areas or on other natural resources use. Misuse of land, water, mangrove, swamps and other natural resources has proceeded unchecked in Saint Lucia for years.

They lack of water resource use legislation is particularly conspicuous. A scarcity of water is becoming evident, but no regulatory measures have been implemented. To use water resources properly, legislation addressing ownership and exploitation rights, the resolution of disputes and watershed protection must be passed. Some infrastructure may be necessary to increase water availability in certain watersheds.¹⁹

¹⁹ Oelsner, J., Saint Lucia, Water Resources; OAS Technical Report, Saint Lucia, May 1981 (mimeo).

3.3. Institutional structures for natural resources conservation and development

3.3.1. Institutional development and coverage of issues of natural resources development
3.3.2. Institutional coordination on natural resources conservation and development
3.3.3. Manpower resources for natural resources conservation and development
3.3.4. Recent trends in institutional development

3.3.1. Institutional development and coverage of issues of natural resources development

Currently there are eighteen different institutions concerned with natural resource development in Saint Lucia. Table 3-1 shows that no single institution is capable of dealing integrally with the complex and interdependent problems of natural resource development in the country. Each institution addresses specific or partial aspects of the issues. This is also reflected in the legislative coverage of the relevant problems. Table 3-2 shows the institutional and legal coverage of the main issues related to land development in Saint Lucia, distinguishing between partial and integral coverage and indicating where coverage actually exists, has been proposed, or does not exist at all. Most of the issues have not been addressed by institutional or legislative measures. There have been very few proposals related to land tenure and forestry aimed to improve the existing situation (see sections 3.1 and 3.2). In areas where legal and institutional coverage of an issue do exists, it is noticeably partial (for example, the Beach Protection Ordinance concerns only sand mining), not covering all the dimensions of the problem.

3.3.2. Institutional coordination on natural resources conservation and development

There are multiple relationships between the different institutions listed in Table 3-1, and these relationships (legal and financial dependency; different degrees of mutual control and regulation; complementary or conflicting spheres of influence; involvement of the same individuals in the management of different institutions, etc.) determine the possible degree of coordination in action and the levels of internal conflict within the system. A simplified analysis of these relationships shows the main features of the problem. Chart 3-1 illustrates the system of institutions concerned with natural resources. Only the basic relationships of legal and financial dependency are shown to illustrate certain structural characteristics of the system today. At least four inferences can be drawn from Chart 3-1.

First, relationships of direct dependency in the institutions of the Central Government are strictly vertical, without horizontal interdependence. When this type of structure is coupled with the specific area of concern of each institution, highly uncoordinated actions are to be expected from Government. The only possible level of coordinated decision making is the Cabinet level, a level that cannot cope with the specific technical aspects involved in coherent governmental action on natural resource (land development) management. Technical coordination is left in the hands of interagency coordination committees that at best have advisory powers. Under these circumstances, effective coordination is rarely achieved.

TABLE 3-1. INSTITUTIONS CONCERNED WITH NATURAL RESOURCES DEVELOPMENT IN SAINT LUCIA, 1981

TABLE 3-2. INSTITUTIONAL AND LEGAL COVERAGE OF THE MAIN ISSUES OF LAND DEVELOPMENT

CHART 3-1. Institutions Concerned With Natural Resources Development

Second, there are four institutional levels of Government involved in land development decision making. Given the fact that areas of competence are fairly specialized (ignoring conspicuous cases of duplication) and that implementation depends heavily on political commitment, sharp differences among institutions in their position in the decision making hierarchy prevents joint action when necessary. Institutions more strategically located in the hierarchy monopolize the resources allocated to the solution of a specific problem, to the detriment of other institutions. When these differences in position do not reflect the political and technical priorities of the solution to the problems that the institutions are addressing, distortions in the priorities for resource allocation can be expected.

Third, duplication of responsibility and effort (see Table 3-1) occurs in the structure of relations among institutions. Statutory bodies with ample capability for action in land development (e.g., The National Development Corporation) are often created to bypass decision making bottlenecks of the Central Government's bureaucracy. The flexible technical structure of this type of institution coupled with the more direct linkage between decision making and execution inherent in its structure makes coordination with agencies of the Central Government unlikely, especially when there is no financial or political dependence.

Fourth, fragmentation of decision making results from both the structure of relations (Chart 3-1) and the institutions' partial involvement in natural resources development (Table 3-2). Deficiencies in governmental actions are the result not only of a deficient legal and institutional structure, but of erroneous conceptualization of the problem. Institutions tend to develop their own perceptions, and definitions of concepts and solutions to problems in their specific area of interest. These conceptual definitions are often in conflict with those of other institutions directly or indirectly addressing the same problems. When the conceptual frame of reference is divergent, no coordination or complementary action can be expected from government agencies.

3.3.3. Manpower resources for natural resources conservation and development

The institutions of the Central Government whose manpower have expertise in resources management are the following:

a. The Land Department, Forestry Division, and the Agricultural Services including the Extension Division, Engineering Division, the Statistical Unit and other operational units, of the Ministry of Agriculture;

b. The Economic Section, Environmental Planning Section and Building Design Section of the Central Planning Unit of the Ministry of Finance; and

c. The Works Division of the Ministry of Communications and Works.

A total of 198 government posts, 4.6 percent of total Government personnel, are involved. These posts are separated into three broad groups in Table 3-3: managerial posts (involving top-level decision making within the civil service), technical posts (requiring a university degree or high level of training) and assistant posts (requiring specialized training). The data shown in the table represent the posts considered in the budget estimates, not necessarily actual manpower in different institutions. Lack of resources to meet the expenditures considered in the estimates, or lack of qualified personnel, prevents institutions from filling all positions.

Interpretation of Table 3-3 requires the consideration of factors that undermine the manpower capacity of the Government to deal with land development problems. Note that in the institutions evaluated, less than 20 percent of the manpower is of technical level, the level capable of undertaking complex tasks of planning and control. The overemphasis at the assistant level can be explained by the chronic scarcity of resources and trained manpower, but this cannot be endorsed as desirable in the long term.

Four institutions for which information was available were evaluated to determine how many positions considered in the estimates were filled; Table 3-4 shows that almost 30 percent of the positions are not filled (in one institution, 50 percent). Although this information cannot be extrapolated to the whole civil service of Saint Lucia, first-hand information indicated that the situation in other departments is not better but probably worse.

Managerial positions are always filled, out of necessity, with vacant positions found only at the technical and assistant levels. The total absence of manpower at the technical level (i.e., Forestry Division) or chronic shortage, has been partially alleviated by foreign technical assistance, mainly British, brought to the country to fill the more important gaps (i.e., the agrarian economist in the Ministry of Agriculture, economic planners at CPU, etc.) until positions can be occupied by Saint Lucians.

There are qualified and complementary staff capable of dealing with natural resource and land development issues in all the previously mentioned institutions. Rationalization of the use of these manpower resources is essential if meaningful action is to be expected from Government in the short term. This rationalization necessarily involves a reshaping of the relationships that currently exist between the institutions that employ these manpower resources.

TABLE 3-3. MANPOWER AVAILABILITY IN CENTRAL GOVERNMENT INSTITUTIONS CONCERNED WITH LAND DEVELOPMENT, 1981-82

Source: Government of Saint Lucia, 1981-82 Estimates, Government Printing Office, Castries: 1981.

TABLE 3-4. MANPOWER AVAILABILITY IN FOUR SELECTED INSTITUTIONS: COMPARISON OF BUDGET ESTIMATE POSTS AND ACTUAL PERSONNEL, 1981

Since the institution building effort of the early seventies - creation of the National Development Corporation, the Housing and Urban Development Corporation, the Town and Country Planning Department, which is now the Environmental Planning Section of CPU, the Development Control Authority, the Saint Lucia National Trust, etc. - no major changes have been introduced in the institutional structure of the Saint Lucia Government. Awareness of the need for change has encouraged proposals for institutional development, which will nevertheless reproduce the problems of the existing institutional structure. For example, the Environmental Planning Section of CPU has been studying a new Land Development and Building Act that attempts to solve some of the drawbacks of the existing Land Development (Interim Control) Act of 1971.²⁰ In doing so, it reshapes the composition of the Development Control Authority and unifies the urban development control powers currently split between the Authority and the National Development Corporation. Although the draft introduces many improvements in the existing situation for the control of urban development, it fails to consider the intimate relationship that exists between different aspects of land development. The provisions of the act are applicable to urban areas without reference to rural land use and coastal ecosystems that are affected by development. The draft follows the existing trend towards fragmented decision making by reinforcing the Authority's power only within urban areas.

²⁰ Ministry of Finance, Central Planning Unit, Environmental Planning and Building Control Section, "Land Development Control Act" (draft bill, unpublished).

The problem of fragmented decision making is further aggravated by other proposals like the draft of the Forest, Watershed and Soil Conservation Act which has been promoted for a number of years by the Forestry Division of the Ministry of Agriculture. The creation of a Forest, Watershed and Conservation Authority as the senior decision making body for these subjects is proposed in the draft.²¹ The act gives the Authority the power to protect forest and important watersheds and to carry out necessary works. Both the definition of the Authority's responsibilities and its powers of intervention are confined to these topics without considering that forest invasion and damage to the watershed and soil originated in existing agricultural practices and the overall macro-economy of agriculture and land distribution.

²¹ Ministry of Agriculture, Forestry Division, "Forest, Watershed and Soil Conservation Act" (draft bill, unpublished).

Other actions undertaken by the Ministry of Agriculture provide a third example. To implement the recommendations made by the Saint Lucia Land Reform Commission in its interim report, the Ministry of Agriculture has set up a new section, the Land Reform Management Unit, which is responsible for implementation of these proposals in collaboration with the Lands Department. The Lands Department is concerned with problems of land registration and distribution, aspects directly related to the sphere of influence of the Forest, Watershed and Conservation Authority.

The above is illustrative of the persistent tendency within the public sector to view problems in isolation and of the institutions' attempt to separately find legal, administrative and financial solutions. Modification of this negative trend is imperative to bring about a unified view of the natural resources conservation development efforts. Certainly such a change will imply unification of decision making capacity and rationalization in the use of available manpower at the technical level to parallel the required changes in the legal structure.