IN the wake of Hurricane Melissa there have been many discussions about safeguarding the personal safety and welfare of the Jamaican people in relation to a potential increase in the incidence of illnesses and other hazards arising from the destruction caused to many parts of our island. In relation to the destruction of property, there is a great deal of discussion on social media advising people not to sell their land or property. This article questions whether we should continue this discourse on how to treat property or allow individuals to rebuild their lives with the support of private sponsors (that is, neighbours, family, friends).

In Jamaica, the power to declare a disaster area rests with the prime minister, acting on the advice of the Office of Disaster Preparedness and Emergency Management and the minister of local government with jurisdiction over the area. A declaration of a disaster area is made under the Disaster Risk Management Act, 2015 (DRMA).

Under the DRMA, the prime minister may declare the entire island, or any part thereof, a disaster area if it is affected or threatened by a natural or technological hazard. This declaration empowers the Government to implement various emergency measures to protect life and property, for example:

• issuing compulsory evacuation orders for vulnerable communities.

• directing and enforcing specific measures for removing or guarding against the hazard.

A declaration of a disaster area under the DRMA primarily activates emergency powers to enable and support public safety, health, and relief efforts. While these emergency powers may include the power to issue compulsory evacuation orders, the formal acquisition of land for permanent use still falls under the Land Acquisition Act, 1974.

While a disaster area declaration grants the State broad emergency powers, the permanent acquisition of land for reconstruction, relocation, or infrastructure development would still require compliance with the procedures outlined in the Land Acquisition Act, ensuring the landowner is fairly compensated, even in areas of compulsory acquisition.

The Process

As stated, the compulsory acquisition process is governed by the Land Acquisition Act and involves the following specific legal steps:

1) Declaration of public purpose: The prime minister declares that the land is needed for a public purpose. This declaration is considered conclusive evidence that the land is necessary for that purpose and cannot be easily appealed on the grounds of necessity alone.

2) Notice and hearing: If a property owner does not agree to a sale by private treaty, they are served with a notice for a hearing before the Commissioner of Lands.

3) Independent valuation: The property owner is advised to obtain an independent valuation of the property at the date they receive the notice.

4) Compensation award: The commissioner makes an award of compensation. The law mandates that compensation should be fair and based on current market values.

5) Taking possession: The process ends with a notice published in the Jamaica Gazette, at which point the privately owned land vests in the Commissioner of Lands in trust for the Government of Jamaica from the date of possession.

6)Right to object: Property owners dissatisfied with the commissioner’s award of compensation can object to the amount, the survey, or other related matters. Any challenge to the compensation award must be made within 6 weeks of the commissioner’s award, and the court strictly enforces this time frame.

What happens after an area is declared a disaster area:

• Evacuation orders: The Government may then issue mandatory evacuation orders for residents in the declared area. Ignoring such an order can result in a criminal offence.

• Restricted access: Authorities may regulate and limit access to and from the disaster area.

• Governmental control and possession: Law enforcement and other national security/response agencies may assume control of the area and take temporary possession of any building or land for disaster management purposes.

• Regulation of essential services: The Government may regulate transport, communication, and the supply of necessities such as food, water, fuel, and power installations.

• Infrastructure management: Authorities can take urgent measures to repair essential basic infrastructure and restore essential services.

• Land use planning changes: Over time, declarations can form the basis for post-disaster recovery and urban planning to mitigate future risk in the area.

• Potential for acquisition: While not a direct and immediate consequence, the Government has the power to acquire land for public purposes, which might be utilised for reconstruction or relocation efforts after the disaster period, typically with compensation provided under a separate Land Acquisition Act.

• Penalties for non-compliance: Individuals who fail to comply with directives or orders made under the Land Acquisition Act (such as evacuation or providing false information about damages) may face fines or imprisonment.

A disaster declaration prioritises public safety and disaster recovery, granting the State temporary powers to override usual property rights and land-use freedoms to respond effectively. However, I believe that while this has its benefits, the lives and livelihoods of the people need to continue, or the rebuilding must start, and this declaration could hamper production and replacement. There must be a healthy balance between safety, recovery, and economic continuity in our efforts to rebuild and restore normality.

Venice Williams

Partner of Lewis, Smith, Williams & Co

E-mail: vwilliams@lswlegal.com