State Lands: Time to arrest the loot
Amongst our prime assets in Mauritius, it is hardly contested that State Lands, including the “Pas Géometriques” which are situated in very scenic areas are the most sought-after assets by both Mauritian citizens and foreigners alike. Before we delve into the issue of state lands and pas géométriques, it would be appropriate to set out the definition of those terms.
The State Lands Act defines “state lands” as follows:
“State land” includes defence lands, ‘pas géométriques’ and all lands belonging to or in possession of the State.
The Pas Géométriques Act defines “Pas Géométriques” as follows and sets out how they are to be measured in section 3 of the Act:
“2 Pas Géométriques
(1) The reserved lands along the sea coast commonly called the ‘Pas Géométriques’ and referred to in the Arrêté of Général Decaen of 5 May 1807, shall form part of the ‘domaine public’ and be inalienable and imprescriptible.
(2) Subsection (1) shall apply to such ‘Pas Géométriques’ as have reverted or may revert to the State by cession, surrender or otherwise.
3 Breadth of Pas Géométriques
(1) The breadth of the ‘Pas Géométriques’ shall be reckoned from the line of the seashore which is reached by high water at spring tide, and shall never be less than 81 metres and 21 centimetres.
(2) The boundary line of the ‘Pas Géométriques’ shall, as far as the locality admits, be parallel to the lines of the coast considered as a whole and without regard to its small irregularities.”
In the context of the importance of proper management and stewardship of our land resources, the Minister for Housing and Lands could hardly have been more pertinent than when he opened his second reading speech on the Cadastral Survey Bill with the following words:
“Mr Speaker, Sir, we all know that without land no life would be possible. Indeed this precious resource is limited worldwide. Mauritius being a small insular state and land being one of our few natural resources, it is therefore of fundamental importance. Thus, it is both crucial and imperative that the management of this resource be optimised to sustain economic development and above all to maintain social stability.
“Current land administration and management procedures can no longer meet the challenges brought by the impetus of our rapid economic development over the last decades. Those procedures are no longer able to respond to the needs of the day and are no more able to cope with the increasing demands being placed upon them, especially as regards the recording of changes in land ownership.”
During the debates on the same Bill, the Hon K Ramano made the following pertinent observations, which were important in the overall context of the optimum utilization of state lands and lands on Pas Géometriques but which were not strictly relevant to the Cadastral Survey Bill. We shall reproduce the relevant part of Hon Ramano’s speech on the issue as it neatly sums up the crucial issues Mauritius faces as regards the use of State Lands and lands on Pas Géometriques:
“Une informatisation de la gestion foncière à travers le digital cadastral database permet un accès à des informations, comme stipulé dans la section 4 du Bill. Mais cette liste est limitative et non pas exhaustive. Une gestion judicieuse des terrains de l’Etat passe par un accès à des informations. Je doute fort que cela soit prévu par la loi. Est-ce qu’un Parcel Identification Number des terrains est prévu pour les terrains de l’Etat ? L’Etat mauricien demeure le plus grand propriétaire foncier du territoire mauricien. Comment imaginer un système de cadastre sans des informations précises sur les State lands ? Les seules informations prévues sont the value of leasehold rights, qui n’a absolument rien à faire avec le loyer payé. On a bien prévu the name of the owners and the name of the lessees.
“Pourquoi pas les termes du bail ? Pourquoi ne pas donner des informations quant à l’existence des State lands ; des informations quant à leur étendu, leur vocation agricole, résidentielle, campement sites, etc ? Pourquoi ne pas donner des informations quant à la disponibilité des State lands ? Pourquoi autant d’opacité ? Ces informations sont aujourd’hui seulement à la disposition de quelques happy few.
“Autre opacité concernant les State lands, M. le président, c’est l’absence des bénéficiaires des jackpots de Statelands dans les cases hypothécaires au bureau de l’enregistrement. Les cases hypothécaires concernent aujourd’hui seulement les freehold land owners et non pas les heureux bénéficiaries des leasehold lands.”
The above begs the following questions:
(1) Is the Ministry of Housing and Lands doing all it can to protect our prime land resources?
(2) Is there an updated record of the list of all the beneficiaries of leases or State Lands, including Pas Géometriques?
(3) If paragraph (2) is in the affirmative, should this report not be tabled before the National Assembly so that Honourable Members from both sides of the House can scrutinize the utilization of our State Lands, including our Pas Géometriques?
(4) Lease agreements pertaining to State Lands contain a standard clause that the said lands may not be transferred without the authorisation of the Permanent Secretary. Is this essential safeguard always complied with? If not, why not? Do records prove that this condition is complied with or are transfers being made without the consent of the Permanent Secretary?
(5) Is there a list of all civil servants, especially those working in the Ministry of Housing and Lands over the last 20 years, who have benefited, either personally or through companies or sociétés in which they have an interest, from leases of prime State Lands? If such a list is not available, should it not be compiled in the name of transparency and integrity? We understand that a number of former civil servants from the Ministry of Housing and Lands have benefited from prime state lands and the reasons for there having been no action against them is best known to those who are paid out of public funds to protect our interests. We also understand that some of those civil servants were merely told to resign or face the music? If that is the case, we would be in the unfortunate realm of “crime pays”!
(6) Is the current Minister of Housing and Lands willing to tread where none of his predecessors did and become an example of what a custodian of our prime land resources should be like?
(7) Is there a list of politicians and their relatives or political agents who have benefited from the State Lands through the means set out at paragraph (5) above?
Further to the issues raised above, it would appear that there is a magic formula, known to the “initiés”, to become very rich overnight in our country. Let us look at this scenario. A lease in relation to a state land is given to a person (the lease could be up to 99 years and would be as good as freehold, economists might argue). The ‘lucky’ lessee then sets up a company or forms a société, and then goes out to form a partnership with such person/s who will inject the capital for financing a particular project. The “apport” of the ‘lucky’ lessee will be the leased State land itself. The funds would be provided to the ‘lucky’ lessee through the acquisition of shares or “parts sociales” by the investor. This is how the lucky lessee of the State Land makes a very generous profit for himself, usually of several millions of rupees, on the strength an asset belonging to the State without the latter earning a penny from the transaction.
This situation is, unfortunately, not hypothetical. Our notaries are aware of how our State Lands are being looted by unscrupulous persons and even foreigners by such a colourable device in clear breach of the Non-Citizen (Property Restriction) Act. Certain transfers of shares are being made “sous seign privé” for the comfort of the investor and there is no record, pending the registration of the transfer of shares at the Registrar-General’s Office, as to the acquisition of an interest in our prime land resources by unscrupulous individuals. It is our understanding that in a particular resort area in the north of the island three ‘lucky’ persons have been allocated prime state lands and there is one who has recently hit the jackpot through the “apport” of an investor in his project to the tune of tens of millions of rupees!
In his reply to PQ/B/470, on 14 June 2011, the Prime Minister alluded to cases of non-citizens acquiring interests in property in Mauritius. He stated inter alia:
“Mr Speaker, Sir, in July 2009, the Government set up a Committee chaired by Hon Sayed-Hossen, Chairperson of the Commission for the Democratization of the Economy to look into cases of property development and sales thereof to non-citizens through mechanisms that might not be in accordance with the existing legislation, and that might also have allowed promoters of such developments to bypass certain fiscal obligations.
“The Committee held several meetings and had consultations with the Attorney General’s Office, the Board of Investment and the Financial Services Commission to identify the loopholes in the existing legislation as well as cases where non-citizens had purchased properties through the mechanism of a trust.
“The Committee has identified several cases where there may be an offence under existing legislation. On 09 November 2009, the Chairperson of the Committee reported cases of unlawful acquisition of property by several non-nationals to the Central Criminal Investigation Division. He also requested the Mauritius Revenue Authority to investigate cases identified by the Committee.”
To a supplementary question from Hon KC Li Kwong Wing as to whether land on “Pas Géometriques” were involved in the above investigations, the Prime Minister stated:
“I am not aware specifically that there have been cases of leasing. What they have done, Mr Speaker, Sir — to give an example to clarify the situation – is that they have found loopholes in different ways. For example, a local residential development company enters into a lease agreement with a different company, say, company X, but they enter into an agreement for a period which is less than twenty years. Then, because it is less than twenty years, it did not require authorisation. On expiry of the lease agreement, the company will enter into a new lease for another period of twenty years and so on. So, they find a way out because if it was sixty years, they would have had to have authorisation. That is one of the ways they are doing this. There are many other ways, but specifically whether they involve Pas Géométriques, I will have to look into it.”
The above issues have, as far as we know, not been sorted out, the simple reason being we have got the political class that we deserve. It would be naïve to believe Opposition MPs have the interest of the country at heart when it comes to the allocation of State Lands. We may only recall one much-publicized incident where a parcel of State Land was allegedly given by a former Minister of Housing and Lands to someone very close to his heart. Further, it is also the case that politicians on both sides of the House have consistently used the allocation of our prime land resources as a means for rewarding their agents, partisans and sometimes, themselves for the sterling work which, in their mind, they have done.
It is high time that a full-scale audit is carried out in the allocation of our prime land resources; no stone be left unturned to get to the bottom of this issue. Will the population see some concrete action from our political class, especially from those in government as they are the ones with the power to initiate concrete action? Will government backbenchers step in the absence of concrete action and assume their responsibility? Will the opposition do its job or are its members bound to remain silent lest the past ministerial decisions of some of their members come back to haunt them?