The Malta Independent on Sunday
Planning Authority non-committal on Land Minister’s involvement in public domain de decisions, categorically rejects citizens’ prop
A counter-protest dated 14 September 2017, filed in court by the Executive Council of the Planning Authority (PA), has avoided a clear commitment that the Lands Minister will not be involved in the decision-making process for sites to be declared as public domain, despite there being no such powers granted to the Minister in the relevant law.
In sharp contrast, however, the PA has confirmed unequivocally that sites proposed by private citizens will not be considered by it in terms of the law.
The PA was replying to a judicial protest filed on 25 August by Noel Ciantar, who claimed that the involvement of the Lands Minister in the decision-making process would be illegal and abusive. Ciantar based his judicial protest on statements made in writing by the Executive Chairman of the PA to the Commissioner for Environment and Planning (CFEP) in the course of the investigation into a separate complaint that Ciantar had made about how the PA had ignored his own request for sites to be declared in the public domain. Ciantar’s judicial protest also addressed this failure.
PA indicates that Lands Minister will decide on public domain sites
In February 2017, acting in his capacity as a private citizen, Ciantar submitted a request to the PA for five sites to be declared as public domain. On 3 July 2017, the PA launched a public consultation on 24 sites, but Ciantar’s proposals were excluded. Meanwhile, Ciantar had remained without any communication from the PA about his request. He immediately sought the protection of the Office of the Ombudsman, and the CFEP launched an investigation into the PA’s communication failure and the reasons why Ciantar’s proposals had been discarded.
In a reply to the CFEP dated 31 July, Johann Buttigieg, the PA’s Executive Chairman, wrote that: “The decision of the Council only comes into effect when the Minister endorses the report as happens in any PC (public consultation). Therefore any decision on policy issue becomes effective only when the Minister endorses the report. In this case, the report has not yet been presented to the Minister. What if the Minister does not agree with the interpretation given by the council? Shall we retract back (sic) our correspondence? In our opinion the council at this stage can only collate the information. After which, we will give an opinion on all submission (sic) to the Minister. The Minister will have one month to review and corrections may be made before presenting the report to the Standing committee where all submissions will be discussed and the public are invited to make further oral submissions to the Committee. Following which the Minister will then decide on which sites should become public domain or otherwise.”
In another reply dated 2 August, Buttigieg wrote: “The Minister will have a comprehensive list of all submissions and the reasons why these were not included in this round of public consultation or hwy (sic) they are included together with the recommendation of the Executive council (sic) on each and every one of them... As we have already stated we can only provide a position once this is endorsed by the Minister...”
Judicial protest filed
But based on the law and following legal advice, Ciantar was of the view that the Lands Minister, who also happens to be the Minister for the PA, cannot involve himself in the decisionmaking, or any other interpretation or discretion, relating to public domain declarations. In his judicial protest, Ciantar challenged the Executive Council as not being knowledgeable about the legal provisions of the public domain law.
Public domain law entrusts decision making with Parliament
The public domain law, which consists of a number of amendments embedded in the Civil Code, puts the public domain declarations decision-making processes firmly in the hands of Parliament, although the early screening phases have been delegated to the PA and the Standing Committee on Environment and Development Planning, specifying clearly the limit of their decisional powers.
The PA is entrusted with receiving proposals, conducting a public consultation and preparing an annual report to Parlia- ment indicating those sites which it deems appropriate for public domain declaration. The Standing Committee is empowered to recommend sites for which resolutions will then be presented to Parliament.
The flow of responsibilities is regulated in the law, and the role of the Lands Minister is limited to making proposals, tabling the PA’s report in the House and preparing resolutions.
Public domain declarations are then made through Parliamentary approval of the resolutions for those sites recommended by the Standing Committee.
No decisional powers to Lands Minister on public domain
Whereas various other titles of the Civil Code grant various Ministers some powers to take certain decisions, the title on public domain allows no such discretion to the Lands Minister.
The involvement of the Lands Minister – or any other Minister for that matter – would politicise the public domain process and would undermine the purpose of the public consultation process because in effect the Minister’s decision could overrule, and undermine, the opinion of the public. Moreover, since the public domain law is mainly intended to protect things based on their nature as opposed to their ownership, the Lands Minister is not necessarily the competent authority to make such assessments.
The PA has skirted the issue of the Minister’s involvement, making no commitment
In its reply, the PA focused on why it has not conducted a public consultation on Ciantar’s proposals and skirted the issue of the Minister’s involvement, limiting itself to argue, substantially, that at the date of Ciantar’s judicial protest, namely 25 August, the stage of the involvement of the Lands Minister as described in the Executive Chairman’s replies to the CFEP had not been reached, and therefore was irrelevant to Ciantar’s interests and the PA did not deem it necessary to discuss its merits further.
However, this position of the PA is debatable, since the public consultation had been concluded on 11 August and the PA’s preparation of the report and its indication of those sites that are appropriate for public domain declaration would have been in full swing already by 25 August, when Ciantar filed his judicial protest. Moreover, since the PA’s reply is dated 14 September, which is only one day before the deadline of 15 September given in the law to the Lands Minister to table the PA’s report, then surely the matter would have been relevant at the date of the PA’s reply. Ciantar had no way of establishing the exact moment of the Minister’s involvement between 11 August and 15 September, and waiting until 15 September would have been too late.
The PA argued that it had not committed itself on the question of whether or not the Lands Minister had been involved in the decisions it had made, or in the process generally. Consequently, no one can be blamed for concluding that it is not clear whether or not the PA has reserved the right to involve the Lands Minister when the relevant stage is (or has been) reached, or whether the PA is merely avoiding having to admit that such an involvement on the part of the Lands Minister would be illegal and abusive.
White Paper clear that Minister has no powers over public domain
Although the PA’s reply leaves doubts regarding the PA’s view on the legitimacy of the Land Minister’s involvement in the decision-making process, the White Paper published in 20122013 with a draft of the public domain law stated: “It will not be within a Minister’s power to declare a particular area to be public domain or to give grants over public domain property. This is now only possible through an act of Parliament ensuring transparency and good governance.”
This statement appears to confirm Ciantar’s argument and the similar conclusion that can be reached from a scrutiny of the actual law.
PA categorical on its rejection of citizens’ proposals in terms of the law
On the other hand, in its reply, the PA has gone to great lengths to explain unambiguously why it will not accept site proposals by private citizens.
After opening with an expression of respect towards Ciantar, the PA explains why it cannot accept his proposals in terms of law. In essence, it states that proposals made by private individuals cannot be accepted for public consultation. It quotes the law to argue that proposals to be included in the PA’s report can “only” be made by the Lands Minister, Members of Parliament and NGOs, and claims that the PA has been given no discretion beyond those sources.
The PA also argues that: “There does not appear to be any plausible legal interpretation that makes one argue that the Executive Council should