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Chapter 7. Guidelines for legal and institutional change in matters related to agricultural land development

7.1. Required actions and general principles
7.2. Legal developments
7.3. Institutional development

7.1. Required actions and general principles

7.1.1. Required actions
7.1.2. General principles

7.1.1. Required actions

The analysis provided in Chapter 3 of the institutional and legal structure concerned with agricultural land development problems identified two major inadequacies:

a) Insufficient coverage of main problem areas, especially those of integrated natural resources management, originating from partial legal coverage of problem areas and technical manpower shortages in most institutions.

b) Fragmentation of decision-making capacity at different levels within the Government hierarchy, which, coupled with scarce technical backing and rigid vertical lines of command, results in uncoordinated Government actions.

These shortcomings configurate a situation in which the Government lacks legal and institutional structures to achieve its goals of agricultural development and land transformation.1 The removal of this short-term constraint will require early action. Coordination of actions is needed at both legal and institutional levels. Legislation to empower Government to regulate key areas of natural resources development, particularly agricultural land development, must be provided and institutional change must occur to ensure technical implementation of legislation.

1 Rojas, E., op. cit.

Broad areas to be covered by legal and institutional changes are natural resources management, land registration and agricultural land redistribution. Actions related to land registration have been initiated by Government in both the legal and the institutional areas (establishment of the appropriate operational unit in the Ministry of Agriculture and drafting of required legislation). In the following sections the actions mentioned above will be linked with concrete proposals for management of natural resources and agricultural land redistribution. The proposals include full consideration of the interdependent nature of the environment and the intricate linkages that exist between all forms of land development and the utilization of key natural resources (water, forest, beaches, areas of scenic interest and coastal ecosystems.)

7.1.2. General principles

To establish the changes required in the existing legal and institutional structure to regulate natural resources development, the following principles should be followed:

a) Attainment of a unified decision making capability within a basically multi-sectoral problem area.

b) Establishment of complete legal and institutional coverage of main issues concerning natural resource conservation and development and land registration and utilization.

c) Introduction of long-term planning capabilities within the decision making structure by means of proper utilization of the scarce technical manpower available and organization of decision making procedures which enable thorough review of planning proposals and technical advice. This should be coupled with clear differentiation between policy decisions (entrusted to a unified decision making structure) and routine implementation (entrusted to the various ministries and institutions within the framework of the legislation.)

d) Avoidance of disruption of ongoing bureaucratic and technical activities in the field by gradual introduction of the required changes.

The following sections contain specific guidelines for an institutional development process. The guidelines cannot be considered full-scale proposals for institutional rearrangements within the Saint Lucian Government structure but directives whose feasibility is worth being explored throughly. They are intended to convey the need for an integrated understanding of the problem and the defined priorities before specific changes are introduced.

7.2. Legal developments

7.2.1. Management of natural resources
7.2.2. Land registration
7.2.3. Land redistribution

7.2.1. Management of natural resources

Legal developments in natural resources management should enable the Government to protect key resources from improper use and to ensure the preservation in perpetuity of renewable resources. Accordingly, legislation should be developed to enable the Government to protect resources and regulate their utilization. A need for differentiation is implicit in the various types of actions included in these two activities. The protection activity normally concentrates on prevention of use of certain natural resources or on prohibition of uses that can damage the resources. Governmental action is required continuously when protection levels have been specified based upon determination of the known availability or scarcity of a resource. Regulation activities are different and require a flexible attitude on the part of the Government since the type and intensity of interventions may change according to the economic importance of the resource or the level of development reached by the whole economic system. Regulation requires permanent monitoring and evaluation to ensure its relevance to the changing development needs of the country and the preservation of the natural resources. Technical management plans and procedures are therefore required to give specific meaning to the broad definitions normally contained in legislation.

The main areas requiring conservation activities by the Government are forests, watersheds and watercourses, wildlife, marine ecosystems and areas of natural or historical interest. The natural resources where regulation of use is urgently needed are water, soil, beaches and areas of natural beauty, fisheries and harbours. Consequently, in the field of protection, it is suggested that, as a supplement to the existing Wildlife Protection Act (1980), the following legislation should be developed:

a) Forest protection
b) Watershed and watercourse protection
c) Marine ecosystems protection
d) Protection of areas of natural historical interest

The draft bill prepared by the Forestry Division can be used as a model, with minor amendments, for all aspects of protection.2 The technical results expected from the CIDA technical assistance project to the Forestry Division on forestry management, particularly the Forestry Boundary Survey and the Forest Management Plan, can supply the technical information required for legislation on forest, watershed, and watercourse protection.3

2 As was mentioned in Section 3.3, a major change has to be introduced in the institutional proposals of this Act. The powers proposed for a Forest, Watershed and Conservation Authority need to be merged with the Natural Resources Development Authority, as the decision making body in matters concerning the implementation of these Acts.

3 CIDA, Forest Management Assistance, Saint Lucia, Plan of Operation, Project N°868/00702, October 1, 1981.

In the case of marine ecosystems (coral reefs, mangrove swamps, sea bed and fishing areas), there is little knowledge of protection requirements. The results of the project Conservation and Development Requirements for the Southeast Coast of Saint Lucia can be used to define the basic framework for legislation and implementation in this area.4

4 Research project being implemented by the Eastern Caribbean Natural Area Management Programme with the collaboration of the Saint Lucia National Trust and the coordination of the Central Planning Unit.

However, much more field research is required to fully ascertain conservation requirements.

In regard to the protection of areas of natural and historical interest, legislation is needed to define different levels of protection according to the nature and importance of the areas and to specify means of enforcement and procedures to determine when compensation or acquisition of land is necessary. The work done by the Saint Lucia National Trust supplies the necessary technical background to initiate meaningful work in this area.5

5 Saint Lucia National Trust, "Review of the Saint Lucia National Trust - 1979," Castries, 1979 (mimeo); "Recommendations to the Commission on Land Reform Concerning the Preservation and Promotion of the Natural and Cultural Resources of Saint Lucia," Castries, 1980 (unpublished); "Proposed Maria Island Nature Reserve," Project Proposal, Castries, 1978.

Regulation should also be developed to permit Government intervention in private sector activities in the following natural resource areas:

a) Regulation of water resources
b) Soil conservation and use
c) Utilization of beaches and areas of natural beauty
d) Exploitation of fisheries
e) Utilization of harbours

Regulation of water resources use is a critical problem that has not been integrally approached. Various interrelated actions are needed in this field, both legal and institutional, and there is a particularly urgent need for a water law to define ownership rights. Most modern water legislation declares water a national property and requires usage rights to be acquired by the private sector. Definition of public watercourses and utilization rights, use of water overspills, rights-of-way for infrastructure and the like, need legal definition in Saint Lucia.6 Long-term conservation of water resources is extremely dependent upon obtaining the expected results from the watershed protection activities. Coordination between ownership rights and water protection legislation is essential, as is coordination of institutions that will administer these laws.

6 Oelsner, J., "Water Resources," OAS, Department of Regional Development, Technical Cooperation Mission, 1980-1981, Technical Report, Castries, May 1980 (mimeo).

Soil conservation outside of protected forest and watershed areas is an activity that has to be carried out to avoid adverse effects of agriculture and urban development. Legislation in this field can play only a partial role in protecting soils. The bulk of the effort has to be focused upon promotion of sound land uses and agricultural practices. The Government must be legally empowered to intervene when gross misuse of soils occurs. Legislation should enable the Government to serve protection orders when necessary and to enforce compliance. Provisions enabling Government intervention on private lands to protect soil and prevent irreparable damage to the land should also be included in legislation.

Legislation regulating the use of the entire coastline of Saint Lucia should be directed at preservation of resources on which the tourism industry depends. Beaches and coastal areas are threatened by sand mining, obstructive buildings, clearing of mangroves, etc. The Government must claim its ownership rights over the Queen's Chain that covers most of the areas threatened and, as landowner, grant rights of use or construction subject to conditions defined by an environmental impact study of the proposal.

Currently, little knowledge exists about Saint Lucia's fisheries. Resources have not been quantified and the activities of fishermen have only recently been regulated and controlled by the Fisheries Division of the Ministry of Agriculture. A more active involvement of Government in regulation of these activities and more legal powers of prosecution and prevention of malpractices are required.

Finally, the initiation of operations in the oil transshipment terminal at Cul de Sac and shipping activity in Saint Lucia's ports, increases the risk of pollution in harbours and on beaches generated by ships. Government action, both legislative and institutional should be at three different levels: prevention of pollution, control of accidents and compensation. At the preventive level, the Government should join the countries that have signed and enforce the provisions of the OILPOL Convention7 and the MARPOL Convention8 which will replace OILPOL. In the area of accident control the Government should join other Caribbean countries to establish a regional pollution control center, in conjunction with joining the INTERVENTION Convention, to ensure its right to act in international waters in case of an accident.9 In addition, the Government should request shippers to be members of the TOVALOP and CRISTAL agreements as a supplementary assurance of their capacity to meet their eventual liabilities.10 The Government should join the CLC Convention,11 to ensure compensation to persons suffering property damage from oil pollution, and the Supplementary Convention FUND,12 which provides compensation when CLC is inadequate and encourages shipowners to comply with safety measures.

7 International Convention for the Prevention of Pollution of the Sea by Oil adopted in 1975.

8 International Convention for the Prevention of Pollution from Ships, adopted in 1973 but not yet in force.

9 International Convention Relating to Intervention on the High Seas in Case of Oil Pollution Casualties, which was adopted in 1965 and entered into force in May 1975.

10 TOVALOP is the Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution, adopted in 1969. CRISTAL is the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution.

11 International Convention on Civil Liability for Oil Pollution Damage of 1969, which entered into force on June 19, 1975.

12 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 1971. The convention has not yet entered into force.

These guidelines reflect the tasks required to provide the country with a minimum of laws to protect its fragile ecology. Although legislation plays an important role, there is a concomitant need for efficient institutions to manage the use of natural resources in accordance with national development needs. Institutional changes complementary to legislative introductions will be discussed in Section 7.3.

7.2.2. Land registration

Implementation of a system of registration of title has already been started by the Government. Currently, draft legislation covering all the aspects of the land registration process is being circulated for comments. These drafts are:

a) Land Adjudication Act
b) Registered Land Act
c) Land Surveyors Act
d) Survey Regulations

The draft legislation is well suited to the needs of the Land Registration Programme, apart from the shortcomings using general boundaries in the cadastral survey and titling documents.13

13 Mae, Leslie B., "Registration of Title to Land, Proposals for a General Cadastre; Pilot Project Morne Panache," OAS Technical Report, Castries, November 1981 (mimeo).

7.2.3. Land redistribution

The legislation requirements of a land redistribution programme can vary according to the extent of the programme and the nature of the actions the Government attempts to implement in order to introduce changes in land distribution patterns. The implementation of the proposed short-term strategy for land redistribution will require some new legislation.

Of the three components of the strategy aimed at the national level, namely land taxation, financial instruments, and regulation of land development, only the last is covered by the suggested legislation reviewed in Section 7.2.1 Another instrumental, legal development needed in Saint Lucia is that related to subdivision. The Government must be empowered by legislation to control excessive subdivision of agricultural lands and ensure that every subdivision proposal is reviewed and approved by an authority. Subdivision regulation, including determination of minimum size of holdings, should be defined on the basis of analytical criteria specified by the Government. This information should be compiled and made available in a technical report which will serve as a basis for review of subdivision requests. Decisions on individual cases should be communicated in technical memorandum form.

Implementation of the land taxation proposals included in the proposed strategy will require modification of the existing land taxes14 in order to meet the following minimum criteria:

a) Differentiation of urban from agricultural land tax. Land has a different function in urban economies and taxation has to reflect this difference if it is to be used as a tool for Government intervention.

b) Maintenance of the progressive nature of the existing legislation, and threshold differentials in order to provide incentives for modification of redistribution of unused lands in very large holdings.

c) Definition of land valuation procedures according to the productive potential of the land.

d) Introduction of a system of increasing tax rates for under-utilized lands once a cadastre becomes available.

14 Land and House Tax Ordinance (11/1952) amended by Ordinances 19/1965 and 16/1966 and by Acts 20/1970 and 19/1971.

Finally, implementation of the financial instruments suggested in the strategy may not require enactment of new laws. All the land development functions of a land bank can be immediately assumed by the National Development Corporation, given its scope as defined by the legislation that created the Corporation.15 Currently, NDC is managing important amounts of agricultural lands acquired by or being transferred to the Government. Expansion of this institution into a land bank is basically a matter of staffing. The financial activities of a land bank (loans, management of mortgages, etc.) can be managed by the recently created National Commercial Bank or other financial institutions. As suggested in the strategy, seed money for implementing this proposal may be needed but the bulk of the financing should be provided by the new land tax.

15 The National Development Corporation Act (9/1971.)

More direct interventions the Government may want to make in the land market will involve acquisition of private lands for redistribution. The existing Land Acquisition Ordinance (12/1945) is unsuitable for any meaningful and prompt action by Government when acquisition must be compulsory; the procedures are not expeditions enough to guarantee uninterrupted production throughout the acquisition process. Furthermore, the valuation procedures established by the Ordinance are unsuitable in circumstances of a fairly inactive and distorted agricultural land market. Valuation methods reflecting the potential productive capacity of the land and the value of the capital invested would be more realistic when considering prevailing condition in rural Saint Lucia.

7.3. Institutional development

7.3.1. Management of natural resources
7.3.2. Land registration
7.3.3. Land redistribution

Compensation for the inabilities of the existing institutional structure to deal with issues of management of natural resources and land registration and distribution, calls for major changes in the decision making structure and in the operational procedures of many institutions.16

16 Rojas, E., op. cit.

Relatively complex institutional changes are required to effectively manage the country's natural resources, which are affected by a multiplicity of socioeconomic activities. Because different institutions are responsible for specific activities, decisions of each institution must be highly coordinated with those of others. This is particularly true because of the confusion inherent in the dual management objective of conservation and regulation (Section 7.2.1)

Institutional development in relation to land registration is less complex, affecting only three institutions: the Lands Department, the Registrar, and the Judiciary System. Implementation of a Land Redistribution Programme at the level defined by the short-term strategy involves relatively minor changes in the existing institutional structure. Any other, more intensive programme that includes direct Government involvement in land redistribution and reconsolidation will require upgrading the operational capabilities in the Ministry of Agriculture to deal with the complex planning and implementation problems posed by such an undertaking.

7.3.1. Management of natural resources

Unification of top level decision making in matters of policy and long-term planning and the full utilization of scarce technical manpower are the most pressing issues regarding management of natural resources. Institutions must be reorganized so as to cope with both problems simultaneously, ensuring the involvement and interaction of three ministries and seven organizations which have different resource management responsibilities.

Given the many shortcomings of creating yet another ministry to deal with problems of coordination and management, it is advisable to place the top decision making level in an institutional structure distinct from the central Government structure.17 This institutional structure should be an authority, the National Resources Development Authority (NRDA). When dealing with long-term policy decisions its members will consult with other relevant institutions or organizations. The National Development Corporation, the Tourist Board, the Naturalist Society, the National Trust, commodity associations and the like can form an advisory body to the Authority.

17 Being located at the same level in the decision making hierarchy, new ministries dealing with the management of natural resources tend to fall into advisory positions for actions to be undertaken by other ministries. Transfer of the multiplicity of duties and power from other ministries is normally difficult and ends up creating difficulties in coordination.

To allow the Authority the widest possible sphere of decision making in resources management and avoid overloading it with routine decisions, a distinction must be made between 1) long-term policy decisions and surveillance of implementation, and 2) regulation of resource use and project implementation. The first will be the responsibility of the Authority and the second that of the relevant ministries.

Long-term planning, of recommendation policy to the Authority and preparation of environmental impact assessments are complex operations requiring interdisciplinary and technical capabilities. No single existing Government organization includes the variety of technical personnel required to perform planning and policy tasks to the extent necessary. The performance of these tasks is irregularly required and the creation of a permanent institution responsible for undertaking them is not appropriate. Instead, it is recommended that a Technical Secretariat be created with the function of drawing on technical capabilities from different agencies for specific endeavors with defined time frames. To supplement deficiencies in technical personnel, the Secretariat could obtain technical assistance from international agencies and be empowered to contract short-term consultants when necessary.

The resulting proposal for the institutional structure for management of natural resources is shown in Chart 7-1. The basic activities of each component of the structure are quoted on the left and below each institution. Indication is given of each institution's sphere of influence in relation to each type of activity undertaken. Full arrows specify dependency within the structure (in matters related to management of natural resources) between the institutions shown. These institutions do not lose their dependency on the internal chain of command of their own ministries in all other matters. Broken arrows show lines of advice (Technical Secretariat) or consultation (advisory body).

As is shown in Chart 7-1, the top decision making is left to the Authority. As a corporate body, representative of a wide variety of concerns, it would concentrate the capacity to give overall guidance and surveillance of implementation. Implementation of policies and plans is left to institutions more suited to cope with each problem. The denominations given to each are as close as possible to existing names but the need to have all these institutions at the same level of the command hierarchy within the ministries is stressed by the use of the name "division" for all of them. A division, the third level of decision making in the structure of the ministries, is considered the most suitable for implementation purposes. Institutions not at division level currently (i.e., Environmental Planning Section of CPU) should be upgraded to this level.

The duties of the different divisions remain the same but include expanded capacity of intervention to be provided to Government by the development of proposed legislation (see Section 7.2.1). Aditionally, the divisions would be asked to place technical manpower at the disposal of the Technical Secretariat to undertake the long-term planning, policy preparation and impact assessment tasks required by the Authority. The Technical Secretariat would have only a small core of permanent staff (the technical secretary and a few clerical workers) required to support the routine activities of the Authority. This staff will be expanded by the means already described, when necessary.

CHART 7-1. Proposed Institutional Structure for Natural Resources Management

Source: Rojas, E., 'Institutional and Legal Aspects of Agricultural Land Development Planning and Implementation in Saint Lucia,' op, cit.

The powers of the Authority should be ample but controlled by the Cabinet, once a decision is adopted the Authority will have to have the financial and administrative powers for implementating it.

7.3.2. Land registration

Given the importance of agricultural land as the main natural resource of Saint Lucia, and the key role of the Land Registration Programme in future distribution and utilization of agricultural lands, it seems desirable to put the Land Registration Programme under the direction of the National Resources Development Authority. As is shown in Chart 7-2, the land registration activities entrusted to the judiciary system were also included within the sphere of control of the Authority. This control is confined to the definition of the spatial priorities for the land registration process and by no means should be construed as central Government interference with the judiciary system.

In the proposed institutional structure, both the Ministry of Agriculture and the Ministry of Finance carry out socioeconomic research within rural and urban areas, respectively, in order to supply the Technical Secretariat with information to recommend priorities. Once priorities have been set by the Authority and approved by the Cabinet the land adjudication process can be initiated by the adjudicator, the cadastral survey compiled by the Lands Department, and titles registered by the Registrar.

7.3.3. Land redistribution

Implementation of the proposed short-term strategy for land redistribution does not require major legal developments because its implementation is possible with only minor changes required in the existing legal structure. The same is true for the institutional aspects where most of the actions can be implemented by existing institutions.

The land development aspects of the financial instruments can be implemented by the National Development Corporation and the financial aspects by the National Commercial Bank (section 7.2.3). Although no changes in the institutional structure are required, it is necessary to point out that the institutions to be used to implement the policy should follow the guidelines and options prepared by the Natural Resources Development Authority. This is to ensure coordination with the other aspects of land development and avoid conflict with other Governmental actions in the field. Reinforcement of the staff of both institutions seems to be the only institutional change required at this stage.

Reinforcement of the Inland Revenue Department and modification of land valuation and tax collection procedures seem to be the main institutional development activities required to implement the land taxation proposals of the short-term strategy.

CHART 7-2. Proposed Institutional Structure for Land Registration

Source: Rojas, E., 'Institutional and Legal Aspects of Agricultural Land Development Planning and Implementation in Saint Lucia,' op. cit.

Finally, implementation of the regulation of land development activity outlined in the strategy corresponds with activities of the Natural Resources Development Authority. Therefore, all the institutional changes mentioned in Section 7.3.1 are advisable. The preparation of impact assessments of projects involving drastic changes in land use patterns and the control of subdivision of agricultural lands (key aspects of regulation of land development) will fall within the decision making sphere of the Authority. The Technical Secretariat will advise the Authority on assessments and related regulation will be implemented by the Extension Division of the Ministry of Agriculture and the Registrar.

Implementation of the proposed short-term strategy for land redistribution does not require major institutional changes. However, if the Government adopts a policy of direct acquisition and redistribution of land, more institutional changes will be necessary. Should such a policy be pursued, it is recommended that the Land Reform Management Unit of the Ministry of Agriculture be upgraded to the level of division in order to execute Cabinet-approved policies and plans adopted by the Authority. Plans and policies should be drawn from alternatives prepared by the Technical Secretariat.

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