Opposition presents Public Domain bill to safeguard environment

Public Domain Bill to protect land and heritage

The Nationalist Party has proposed a revolutionary public domain bill in a bid to protect Malta’s coastline and seabed, and sites of historical and ecological importance, by preventing their commercialisation.  

Similar laws protecting the public domain exist in countries like France and Italy.

The law, penned by shadow justice minister Jason Azzopardi, proposes that the first 15 metres of the coastline and the country’s seabed and subsoil, cannot be commercialised.  

It also enables NGOs to propose land parcels that should be declared as public domain. The government will have to reply to such requests within four months.  

But the proposed bill will not be retroactive and will not impact on concessions granted by governments in the past. Moreover the new law still allows parliament to commercialise these areas through a parliamentary resolution.

Opposition spokesperson Jason Azzopardi augured that the bill will be approved under this legislature but if the law is not approved, the opposition is committed to implement it if elected to government.

If the new law is approved by parliament the seabed and the first 15 metres of coastline will automatically be recognised as part of the public domain. The law will also enable the government to include other lands of historical, archaeological or ecological importance in the public domain through an act of parliament. 

The law will distinguish between what is public domain that cannot be ceded to private interests, and public property that can be subjected to a private contract. The proposed bill also sets the obligations of the government with regard to the upkeep and protection of land included in the public domain. These obligations are aimed at protecting future generations.

While the law stipulates that the public domain cannot be commercialised it allows concessions of a temporary nature which can be revoked by the government through a written notice.

The law includes a list of properties which can be declared as public domain. These include waterways, aqueducts, natural springs, valleys, public roads, public squares, woods, parks and any site of ecological and historical importance.

Even mobile property like art collections or libraries can be included in the public domain.

Declassification foreseen in draft law

The law would still enable the government to cede parts of the public domain through an act of parliament that would declassify the public domain. But this can only be done by a majority of MPs voting in favour of such declassification.  

No land can be declassified from the public domain before the expiry of a period of five years following its inclusion in the public domain through an Act of parliament. 

Moreover if the land is declassified it cannot be ceded for a period of more than 100 years.   

The law enshrines the principle that the duration of the declassification should be inversely proportionate to the extent to which the public is restricted access or use.  This means that the greater the extent given to the public, the longer the duration of the declassification.

The proposed law states that following declassification the land will still retain its nature as public domain and therefore must remain accessible to the public. But the same law ambiguously states that parliament may still “impose restrictions on continuing public enjoyment”.

And although the land has to be returned in its original state after the expiry of the declassification, the law also allows parliament to accept modifications as the “gain achieved by the public is clear and unambiguous”.

Following declassification any grant of the land to third parties must observe the provisions of the Disposal of Government Land Act which stipulates that land can only be transferred through a public tender, public auction or through a parliamentary resolution.

The proposed law only affects future ownership and does not impact contracts that have already been signed. 

The bill also lays down that whenever the declassification was “fruit of corruption”, any rights accruing to any person benefiting from it are annulled and the land is returned to the public domain.

Limits on land reclamation 

The law will also regulate land reclamation. Malta presently lacks any laws regulating the ownership of reclaimed land. Any area of the seabed proposed for land reclamation has to be declassified first because the seabed will automatically become part of the public domain. This means that there will be a public notice and debate on any project to reclaim land.  

Moreover the first 15 metres of reclaimed land must be recognised as part of the public domain even after land reclamation takes place. The law also sets a legal parameter for the ownership of parts of the seabed for fish farms, wind energy and other projects. But any such new development can only take place on parts of the seabed declassified from the public domain through an act of parliament.

No rights for squatters 

The proposed bill states that although existing property rights over land included in the public domain will be safeguarded, any such rights must be registered if they are to be preserves. 

This will ensure that squatters will not benefit from any title over land added to the public domain. If these interests are not registered the public domain will be presumed to be free from any such private right. This law will militate against any ownership claims by illegal lidos, boathouses and other structures, which have mushroomed along the coastline.

Protecting the coastline

The law automatically designates the first 15 metres of the coastline as part of the public domain. No parliamentary resolution is therefore required for including these areas as part of the public domain as they are considered to be so “by nature.” In the case of beaches the whole extent of the beach will be included in the public domain, not only the first 15 metres.  

Apart from beaches the new law will apply to cliffs and the entire shoreline except for structures in harbours, ports and yachting centres.  These areas can still be included in the public domain through an act of parliament.