A bold step in the right direction

The public domain bill proposed by the Nationalist Party is revolutionary on many counts.

Similar laws exist in countries like France and Italy, to protect sites of historical and ecological importance from commercialisation. In Malta, however, there is not only no comparable legislation, but the overwhelming tendency to date has always been to move in the clean opposite direction. 

Even if it comes late in the day, it is welcome news if Parliament takes the step to debate a policy for the protection of public land – especially the coastline – after so much of Malta’s scenic and ecologically valuable space has already been exploited by excessive commercialisation.

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. In the case of beaches, the whole extent of the beach will be included in the public domain, not just 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 marinas. However, these areas can still be included in the public domain through an act of parliament.

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

Even more radically, the new law removes some (but by no means all) of the decision-making process from Parliament itself, and places it in the hands of civil society. The public domain bill permits NGOs to propose land parcels that should be declared as public domain. The government will have to reply to such requests within four months. 

Properties that can be declared as public domain 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.

Perhaps the most positive aspect of the new law is its implications for the illegal occupation of public land. 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 preserved. 

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 that have mushroomed along the coastline.

But the proposed bill might not go far enough to achieve in its declared aims. It will not be retroactive, and will therefore 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.

On closer scrutiny, there are plenty of escape clauses to justify such ‘exceptions’. The law allows for public domain land to be declassified, permitting a certain extent of commercialisation. Restrictions still apply even to declassified land; but the same law ambiguously states that parliament may still “impose restrictions on continuing public enjoyment”.

And while the intentions seem honest enough, there is also the faint whiff of political opportunism in the timing of the bill. The new law will also regulate land reclamation: an area that forms a key part of Prime Minister Joseph Muscat’s electoral programme for his first term. 

Malta presently lacks any laws regulating the ownership of reclaimed land. As the seabed will automatically become part of the public domain, any land reclamation project will have to be accompanied by a public notice and debate. 

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 legal parameters 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.

This is all entirely in keeping with the declared objective to safeguard the natural environment, and there is nothing objectionable about suggesting safeguards and limitations to land reclamation projects. But it also creates an additional layer of bureaucracy that might trip government up when it comes to embarking on Muscat’s promised reclamation schemes. As such it can be interpreted as a means of deliberately attempting to delay projects.

All the same, the thrust of the bill is very clearly aimed in the right direction. One is inclined to agree with Din l-Art Helwa that it represents “a first step towards bringing government’s management of the environment in line with the Constitution’s Article 9, which determines that the State will protect the nation’s artistic, cultural legacy and the landscape: so far a very much ignored requirement by all governments in the last five decades.”