Concerns over the distribution and usage of commonage land in North Eleuthera have taken center stage as complaints of slow Harbour Island Commonage Committee decisions, and the size of land grants for some commoners over others, have arisen.
A commoner who spoke on condition of anonymity explained that some commoners have been concerned that at a green boutique hotel called The Other Side was built on commonage land. He explained that illegal settlements have also sprung up on commonage land, as well as homes that have not undergone the proper permitting.
He added that when he received his letter granting him commonage land, it strictly stated that the land was to be used for cultivation purposes only.
The Commonage Act speaks repeatedly to the cultivation of commonage land and never speaks specifically to its use outside of cultivation.
Words from the 1842 description of commonage land states: “The said grantees and their descendants so long as they respectively may be domiciled within the Parish of St. John, use and cultivate the said tract of land in the same and like manner as the inhabitants of the said parish have heretofore been accustomed to use and cultivate.”
Commoner Colin Moss, who served as a committee member several years ago and explained to Guardian Business what he knows of commonage law, said that every registered commoner is obligated to equal access to commonage land, which is distributed to registered commoners by the Harbour Island Commonage Committee. He added that the Commonage Act states that commonage land should not be used for commercial activities, only dwellings and cultivation.
However, owner of The Other Side and Harbour Island Commonage Committee Assistant Treasurer Ben Simmons told Guardian Business yesterday that commonage land has, for a long time, been used for commercial activity and that it is permissible.
According to Simmons, the committee has ratified changes to commonage statutes that would allow for those kinds of activities to take place. He said there are three layers of commonage law that allow the committee to make changes to the way commonage land is used.
In a presentation Simmons made recently he pointed out that in regards to the 1842 grant purchased directly from the Crown, the first of the three levels, “allows full ownership rights to descendants of grantees of the Land, including the exclusive right to profit, use and cultivate by the grantees; stipulates that no part of the land be alienated from whole; and requires that those able to use the land be domiciled in the Parish of St John”.
The second, the 1896 Commonage Act, “was established to provide a regulatory system for the more beneficial use of lands held in common; protects the rights of commoners by forbidding any non-commoner to hold interest in the land; allows commoners to make rules that allow for more beneficial use of the land; and requires the minister to approve any subsidiary rules”.
And the third, the 1938 subsidiary legislation, “provides the legal framework to accommodate commonage rules; states that no non-commoner can work in the land; and is currently outdated and does not enable to commonage to navigate or benefit fully in the current legal and commercial environment”.
The Commonage Act does speak to the allowance for commoners to make rules for any of the following purposes: “For the proper laying out of such lands; for securing the fair use of such lands by the commoners amongst themselves; for securing and maintaining a fresh water supply, and the fair use and distribution of any fresh water supply which can be obtained; for preventing the commoners injuring or taking the produce grown by other commoners; generally for securing the full and beneficial use of such lands for the commoners, and for protecting the industry of the commoners against trespassers and all persons improperly damaging any such land or the produce grown thereon.”
Simmons also explained that the committee has presented proposed changes to the Commonage Act to the attorney general’s office in an attempt to have the government update antiquated rules which may have caused issues over the years.
But he said in 15 years of trying to make the changes, the government has not made a move to update the act.
In 2016, Free National Movement (FNM) Shadow Attorney General Richard Lightbourn said addressing the question of title to commonage land would be a priority of the next FNM government.
He pointed out then that there are “substantial” areas of commonage land throughout The Bahamas, but principally in Eleuthera and several of the Family Islands. The properties were granted for the benefit of persons residing in or connected with several islands or towns, but the grants were limited for specific use and in most instances are being utilized in breach of the terms under which the property was granted.
“It is imperative that the management and ownership of commonage properties is addressed, so as to enable the property to be developed in a proper manner and persons are able to receive title to the property on which they can construct their residences. Addressing the question of title to commonage land will be a priority of the next FNM Government,” he said then.
Moss explained that the Harbor Island Commonage includes Upper and Lower Bogue, Current Island, The Bluff and Harbour Island, and that it has had its challenges over the years. Moss said he personally wants to see more equity from the committee when dealing with commoners.
Moss, who also referenced the Commonage Act as it relates to persons being employed on commonage land, said it allows for only Bahamians to work on commonage land. He said some commoners have in the past sought to break that rule.
“No person who is not a registered commoner shall be allowed to work in or cultivate any land of the commonage upon shares or at all,” part of the Commonage Act explains.
Both Moss and Simmons explained that the government has continually taken possession of commonage land for its own use, but paid nothing to commoners for the use of that land.
According to Simmons, the Harbour Island Commonage Committee has been trying to protect commonage land that has been usurped by the government for use in the building of the North Eleuthera Airport, well fields and North Eleuthera’s ever-expanding dump. He also explained that the committee has been working to get the government to pay for the use of the land.
Simmons contended that many commoners do not understand the work of the committee, which he says has to vet hundreds of applications from people attempting to claim commonage land – including from foreigners in the U.K. and Canada – as well as act as the last line of defense to protect the land from the government, in order to protect commonage land for future commoners.
“They don’t understand what we have to go through,” said Simmons. “Also, to stand up to the government which has been taking more land each year.”