Privy Council Rules Against Walker, Frank over Paradise Found Act

The Judicial Committee of the Privy Council, has dismissed an appeal by Trevor Walker and McKenzie Frank, challenging the constitutionality of the Paradise Found Act of 2015.

The issues was whether the Appellants were, by virtue of the Paradise Found (Project) Act 2015, deprived of any right or interest in land which they enjoyed pursuant to the Barbuda Land Act 2007.The JCPC said the Board has given, the claimants have no realistic prospect of succeeding in their claim under section 9(1) of the Constitution so that the Court of Appeal was correct to strike out that claim. The Board will therefore humbly advise Her Majesty that the appeal should be dismissed

Back Ground

By section 3 of the Barbuda Land Act 2007 (the “Land Act”), all land in Barbuda is owned in common by the people of Barbuda, and title to that land vests in the Crown on their behalf. By section 7, the consent of Barbudans must be obtained for any major development.

The Government of Antigua and Barbuda entered into a lease agreement with Paradise Found LLC to lease land in Barbuda for the purpose of a tourism development project. The Paradise Found (Project) Act 2015 (the “2015 Act”) was passed to give effect to the lease agreement, and it provides that the Land Act does not apply to the leased land.

The Appellants are Barbudans. They filed a claim on 6 June 2016 in the High Court claiming constitutional relief and challenging the validity of the of the 2015 Act. They maintained, inter alia, that: (i) the 2015 Act constituted a compulsory acquisition of their interest in the land without compensation; (ii) the land was not acquired for public use; and (iii) the 2015 Act violated section 9 of the Constitution of Antigua and Barbuda, which protects against the deprivation of property.

On 13 September 2016, the Respondent filed an application to strike out the claim on the basis that it disclosed no cause of action against the Government under the Constitution and that it was an abuse of process.

The High Court dismissed the Respondent’s strike out application. Wilkinson J found that the claim raised issues that ought to be tried. She noted that the several sections of the 2015 Act “appear to ‘side-step’ or circumvent the requirement for the consent of the people of Barbuda for major development pursuant to the [Land Act]”. Wilkinson J also found that the Appellants had the necessary locus standi to pursue the claim on the basis that, as Barbudans, they held an interest in Barbudan land.

The Respondent’s appeal to the Court of Appeal was allowed. The Court found that the Appellants did not have a personal right of property in the leased land. Rather, the Land Act provided a scheme for the collective rights of Barbudan people as a class. Further, the Appellants lacked the necessary standing to pursue a claim for relief under section 9 of the Constitution: the rights accorded to Barbudans did not constitute interests in or rights over property for that purpose because they had no immediate entitlement to use their interest in such property without permission.

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