Balancing the conflicts between private rights and the broader public interest is a highly debated and crucial aspect of any legal system. This complex exercise not only sparks intense arguments within the legal realm but also carries profound socio-political and economic implications, making it a matter of utmost legal significance. The outcome of prioritizing one interest over the other can result in drastically different sociological realities. Mauritius, a small and densely populated African island-State faces such a balancing challenge to manage one of its invaluable assets: its pristine coastlands.
What makes this private-public conflict challenging in Mauritius is the country’s need to attract foreign investments in its coastal areas, leveraging the inherent allure of the “Sun Belt effect” due to the absence of natural resources on the island. However, it must also respect the public’s right to access the coastland. Unfortunately, the Mauritian experience reveals how an originally “public interest” minded legal framework can be transformed into a tool serving private interests, merely paying lip service to the underlying public rights to the coastline.
The Mauritian Coastline: An Essential Backbone
It is undisputed that coastal land and beaches are an essential backbone of the Mauritian economy. Indeed, not only are revenues derived from coastal land tourism and foreign direct investments a vital pillar to the State’s finances, but it also is responsible for employing almost 15-20% of working age adults. Coasts also play an important role in the socio-religious life of many Mauritians. The beach is not only the location of several activities from religious rites like the Ganga Snan, but also provides one of the rare destination for affordable recreational activities.
There is also a racial lens to this debate. Most of Mauritian land is owned by the white Euro-Mauritian minority who make up about 2% of the population. These lands have become the main target of the Property Development Scheme, which aims to boost foreign direct investment by allowing companies, many belonging to these minorities, to convert mostly coastal land into luxurious villas and resorts. At the same time, some coastal areas have been historically occupied by the creole population, who are some of the most economically deprived groups of the population. With the inflow of capital in coastal areas, the situation shows resemblance with a neo-colonial form of gentrification.
The Regime: Pas Géométriques and Public Beaches
The legal regime governing coastal areas in Mauritius is partially a remnant of the island’s French colonial legacy, which was maintained following British accession and the signing of the Treaty of Paris of 1814. Introduced under the administration of Général Decaen, the Arrêté of 5 May 1807 mandated reserved lands along the seacoast to constitute part of the domaine public and be “inalienable and imprescriptible”. This instrument was retained by the British colonial administration and re-enacted in the form of the Pas Géométriques Act 1874, which remains inforce today.
Coastal land is additionally governed by the Beach Authority Act 2002, which was adopted to provide maximum inland leisure and recreational space for Mauritian citizens and to ensure access to the beach to the whole population. It replaced a previously decentralized beach governed by individual local government authorities by a centralised entity, the Beach Authority, with the role of ensuring proper control and management of public beaches in Mauritius.
This is especially relevant, given that public beaches not only comprise of specific coastal sites that have been declared as public beaches, but also the space between the low water mark and the high-water mark, and the surrounding waters up to a distance of 100 meters covering the entirety of the island’s coastline.
Attack on Broader Coastland: Fallacies of the Pas Géométriques Act
The Pas Géométriques Act has gone through dramatic changes from the times of Decaen’s decree, having been transformed into a privatization mechanism. For instance, the Act now allows the government of the day free reign in leasing what constitutes an “inalienable and imprescriptible” resource up to 60 years. (Interestingly, Mauritius itself has been independent for only 55 years at the time of writing). This policy was replicated in the amended State Lands Act 1874 which contains an even more expansive leasing possibility, whereby “large investment projects” identified by the relevant Minister of the day as being in the “economic interest” to Mauritius could be subject to a lower annual rental rate than those allocated to other leases and are further subject to a maximum lease period of 99 years.
While the leasing system is not inherently dubious, it is responsible for a drastic reduction in public-accessible coast land. Further, the lease system is accompanied by a sustained state policy inclined to almost always renew any long-term leases awarded, which are mostly limited to property development ventures. This has created a system where a lessee obtains quasi-ownership of what has traditionally been a public resource. Add rising overpopulation, stagnant wages and income inequality to the mix, and the situation is evolving into a toxic cocktail.
The current practice of increasingly expansive leases for most of Mauritian coastland therefore easily allows a political entity to undermine broader public interest, popular opinion and superior law that asserts the right of the population to enjoy beach land, in the name of economic interests based on foreign investment and foreign ownership of coastal property.
This power is also free of any robust procedural safeguards: for instance, there are little judicial avenues open for inhabitants or organizations opposing these projects and no expertise or cost-benefit analysis is mandated for a project to be deemed of economic interest. The discretion of the minister is not only wide, it is also open to abuse. It is therefore not surprising that the Mauritian coastline has gradually been occupied more and more by private infrastructure to the detriment of local access to it.
Attack on Beaches: How the Beach Authority Act Has Failed to Live up to its Promise
Like the Pas Géométriques Act, the Beach Authority Act has similarly failed to meet its initial pro-public vision. As a starting point, the Act seemingly provides the Minister of Local Government with a broad, authoritative power over the board of the Beach Authority, allowing him to force the board to comply with general directions deemed necessary in the public interest – something which can be defined by the political and economic interests of whatever regime is in power.
In addition, the Act contains no provision for consultation either with civil society or the broader public. In other words, there is no public participation regarding a good that falls within the scope of the domaine public and is collectively owned by the inhabitants. The Authority is accountable only through the defunct parliamentary mechanism of ministerial responsibility, with the public excluded from the decision-making process. This, combined with the absence of any requirement to give reasons for decisions taken by the Beach Authority, gives the impression that the Beach Authority is authorized to act as an owner and not as someone having “la garde”, i.e. trusteeship of properties for someone else (i.e. the public).
Public beaches, being part of state lands, can always be transformed into privately-managed land, leased by the state for a long duration, and subject to the whims of the Minister of Housing and Land use, with limited judicial control through broad judicial review. Neither the local authority nor the Beach Authority have the power to challenge the decision of a government in power to transform a public beach to a private property.
The Act has therefore not only assisted in the erosion of public access to coastland, but it has also been responsible for the gradual encroachment of private property developments in former public beaches. The new amendments to the Act permitting the Beach Authority to engage in the construction and leasing of commercial premises in public beach land appears to strengthen this construction spree that has pervaded the coastline. When considered in combination with a lack of willingness by authorities to intervene to protect the public right to access, the developments have forced individuals to litigate their right to access beach land.
Limited Judicial Relief
These litigation efforts are not guaranteed success, however. While Mauritian Courts, and the Supreme Court in particular, have generally been responsive in acknowledging the rights of individual litigants to access public beaches, such acknowledgement has not been unconditional.
A progressive line of the Court could be noted in Grand Bay Cruise Ltd v Ocean Blue Island Company Ltd. Certain tour operators had sought an injunction to prevent the leaseholder of the coastal land of Ilot Gabriel from denying them and the broader public access to the “beach” of the Islet, which was part of the domaine public. The leaseholder meanwhile claimed that he was not denying access to tourists and that the latter were given access to the island after paying a fee, having had prior approval of the State to do so.
Judge A. Hamuth in his decision granted the injunction by first affirming the standing of the litigants by virtue of their profession and as part of the Mauritian public holding rights to the domaine public, i.e. the beach. He also affirmed that “the greatest area of the shore covered and uncovered by the sea, including high spring tide, (but excluding exceptional events like cyclones) constitutes the beach and cannot normally be excluded from the use by the public, free of charge and without any hindrance.”
There are also contrary positions present, especially in relation to construction projects in the coastline. This phenomenon can be best illustrated by the Supreme Court’s decision in Force Vive de Grande Rivière Noire v Dolphin Coast Marina Estates Ltd, which concerned an application for an injunction against construction works undertaken by the Respondent, a hotel project, due to reasons of environmental degradation and blocked access to individuals in the public beach section of the coastline.
Here, the Supreme Court was much more dismissive of the alleged environmental damage and claims of restricted access to the public beach section of the coastline caused by the works of the hotel, despite the litigants having justified their challenge with an expert report of a respected environmental engineer and oceanographer who had highlighted serious concerns of the negative impact caused to the environment and right to access by the project.
Despite his lack of expertise on the nature of the works and its impact, the judge refused to grant an injunction on the basis that the legal representative of the developers, who did not submit any expert evidence, were “more convincing” on their arguments on access and that based on the locus in quo, the applicants could not show that there was a “serious question to even be tried in an eventual Court case”.
With increasing attempts to restrict the standing of litigants regarding challenges brought against coastal developments, it is difficult to see the situation improving through litigation or judicial activity. More and more avenues to protect access to coastland appear to be gradually closing.
What the future might hold in relation to access to public beaches
Public beaches are under threat in Mauritius. With rising sea levels and public beaches being converted into lucrative resorts and properties that are limited to the economic elite and foreign investors, the right of Mauritians to access their coasts is threatened in a manner and at a level never seen before.
With an essential public right at stake, an unresponsive government and an uncertain case law, a clear solution to the threat faced by the public right to access the beach is not easy. Although non-legal remedies, such as political lobbying and some pressure groups have succeeded in obtaining some minor concessions, the current situation is untenable and shall remain so until proper reflection is given to the real priorities and interests of the population.
Posted by Vishwanath Petkar (Candidate, International Dispute Resolution LL.M. at Humboldt-Universität zu Berlin) and Thomas Perroud (Professor of public law at Panthéon-Assas University and Humboldt Fellow at Humboldt University (Berlin)).
Suggested citation: V Petkar and T Perroud, “Free the Coasts in Mauritius: Privatization, Race and Class?”, BACL blog, available at https://wp.me/p80U0W-1yF.
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