The Marshalls Energy Company's fuel tank farm, foreground, was constructed on the reef using landfill in Majuro, the capital of the Marshall. A Supreme Court ruling declaring it government property is a key issue in a court case to invalidate a 2008 law that automatically makes reclaimed land property of private landowners. Photo: Marshall Islands Journal
The Attorney-General of the Marshall Islands is asking the country's High Court to invalidate an 18-year-old law that he and Nitijela (parliament) members say threatens to undermine the nation's ability to attract hundreds of millions of dollars for climate adaptation.
Bernard Adiniwin filed the petition against Speaker Brenson Wase in the High Court at the end of September. The Speaker is named solely because this relates to a Nitijela legislation issue.
Wase already told Nitijela in August this conflict between the law and the Marshall Islands Constitution would need to be solved by the courts.
At issue is Section 105 of the 2008 Public Lands and Resources Amendment Act. That provision states that any newly created landfill "automatically" becomes the property of the adjoining landowners.
But the country's Constitution Article II, Section 5 "authorises the Government to acquire land for public use, including by reclamation, provided such acquisition is consistent with law and the constitutional safeguards of just compensation," Adiniwin said.
Half of the Marshall Islands' 50,000-strong population live in the capital city of Majuro. Photo: Public domain
During the August session of parliament, Enewetak MP Jack Ading "identified the central issue as whether reclaimed lands are to be held by the government or vested in adjoining private landowners," Adiniwin said in the petition to the court.
"This question directly affects the Republic's ability to access donor funding for climate adaptation, as such funds are conditioned on projects serving a public purpose.
"However, Section 105 of the Amendment Act provides that newly reclaimed land through landfill belongs to adjoining landowners, thereby creating an apparent conflict between statutory provisions and constitutional mandates."
Hanging in the balance are potentially hundreds of millions of dollars in future donor funding for land reclamation and landfill projects to protect islands and people in the Republic of the Marshall Islands (RMI).
The government's National Adaptation Plan is seeking tens of billions of dollars to respond to rising sea levels - money that donors will not provide if newly created land becomes private property, government authorities say.
The conflict between this 2008 provision in the Nitijela law and the Constitution "has already impaired the Government's ability to plan and carry out reclamation projects, and its resolution is necessary to preserve the Republic's compliance with both constitutional and donor obligations," said Adiniwin.
"Unless this conflict is resolved, the government cannot responsibly utilise public funds or attract donor support for adaptation projects intended to serve a public purpose," Finance Minister David Paul recently told Nitijela.
Climate change in the Marshall Islands is a major issue as its made up of low-lying islands, its highly vulnerable to sea level rise and other impacts of climate change Photo: Supplied: Hall Contracting
The AG's Office has a Supreme Court ruling that helps its case to get the courts to invalidate the 2008 Nitijela law provision.
In 2012 the Supreme Court ruled that the submerged land created for the government-owned power utility's tank farm in Majuro is owned by government.
"The ruling is profoundly important," said Adiniwin. "It confirms that reclamation is a governmental act tied to public authority and not merely an extension of private land tenure."
However, he added Section 105 of the Nitijela law "undermines this by forcing automatic transfer of reclaimed land into private hands, even when created through government or donor expense."
"When the government is stripped of ownership of reclaimed land, it is deprived of the very means by which it can meet pressing public needs - whether through infrastructure, housing or development projects. Such a result undermines the constitutional vision of a government empowered to serve the people as trustee of the public interests, while at the same time safeguarding private rights within their proper sphere," Adiniwin said.
He asked the High Court to declare Section 105 of the 2008 law unconstitutional and void. He is also asking the court to confirm that "land created through government-funded or donor-funded landfill projects constitutes public land."
He asked the court to fast-track a hearing on the petition "in light of the ongoing donor-funded projects requiring legal clarity."
No hearing has yet been scheduled in the High Court.
