Thu | Sep 21, 2017

Peter Knight | Jamaica’s beaches: access and rights

Published:Sunday | January 22, 2017 | 1:00 AMPeter Knight

We write in response to two articles appearing in The Gleaner over the past week under the byline of Professor Carolyn Cooper ('No beach for local tourist' and Diana McCaulay ('The problem of beach exclusion'). Both articles highlighted a real resource-management challenge Jamaica has faced over the past 50 years, wherein access to, and use of, a seemingly common and freely available natural resource, the beach, is increasingly being denied to a wide number of Jamaicans.

It is unquestionable that the beaches are of great value to Jamaica in social, environmental, and economic terms. The enjoyment of the beach and beach facilities must be an integral part of the life of the citizens of Jamaica. The coastline of Jamaica is approximately 795km (494 miles) long, with approximately 30 per cent (238.5km) being characterised as sandy beach.

In recent years, there has been significant development of Jamaica's coastal areas related to the tourism industry. Discussions surrounding the issues of public access to beaches are usually focused on the sense of exclusion from some beaches, particularly beaches associated with hotels. The hotel beaches are also purportedly the better beaches, and in this regard, it is also felt that there are not enough operational public beaches available as an alternative.

In Jamaica, there is no statute that conveys any general rights over the foreshore or the floor of the sea save and except those provisions contained in the Beach Control Act, 1956.

The legal definition of a beach is the foreshore and floor of the sea. These are defined as follows:

The foreshore is "that portion of land adjacent to the sea that lies between the ordinary high water and low water marks, being alternately covered and uncovered as the tide ebbs and flows".

The floor of the sea is "the soil and subsoil off the coast of the island between low water mark and the outer limits of the territorial sea of the island and shall be deemed to include the water column and superadjacent to the floor of the sea and the natural resources therein and the Exclusive Economic Zone".

Ownership of the foreshore is vested in the Crown, except where rights are acquired under or by virtue of the Registration of Titles Act or any express grant or licence from the Crown subsisting immediately before 1956. The portion of the beach above the foreshore may be private or public property. The Beach Control Act did not seek to convey general rights to the public to gain access to and use the foreshore or the floor of the sea. Section 3 vests ownership in the Crown and declares that no person shall be deemed to have any rights in or over the foreshore or the floor of the sea, except such rights acquired under the act. These rights include any rights enjoyed by fishermen engaged in fishing as a trade, where such rights existed immediately before June 1, 1956.

Rights of fishing and bathing may, however, be acquired by custom, that is, prescriptive rights, and such customary rights are addressed in Section 14 of the Beach Control Act and Sections 4 and 9 of the Prescription Act, 1882. In common law, the public has no general rights of access to the foreshore or the floor of the sea or to beaches. There are no general common-law rights over the foreshore except to pass over it for the purpose of navigation or fishing.

Privileges to bathe may be enjoyed within a licensed beach subject to the rights of the licensee. These beaches are subject to the Beach Control (Hotel, Commercial and Public Recreational Beaches) Regulations 1978 and the Beach Control (Licensing) Regulations, 1956.

 

BEACH ACCESS IN CARIBBEAN ISLANDS

 

Rights and entitlements to the beach and the extent of land holdings along the coast are expressively different in former French and British territories. In St Lucia, which has a French colonial history, the land adjacent to the beach forms the Queen's Chain and is owned by the government. As a general policy, land within the Chain cannot be purchased, only leased. Haiti, which also had a French colonial past, has a similar pattern of coastal land ownership as St Lucia, where no private interest can own land within 16m of high water mark.

In many of the islands once under British control, as is the case in Jamaica, private ownership of coastal lands extends to the high water mark. In cases of coastline change, and unless there is specific legislation, British common law provides for a seaward or landward change in the property boundary only if the change is of a gradual nature. A sudden change of the property boundary such as because of reclamation or a new sea defence structure does not change the boundary.

In Barbados, the beach is considered public property since the foreshore is public land. The ownership of the area of beach land between the high water mark and a structure such as a property fence or a building is often unstated. This area, however, is typically viewed as public land, and, therefore, available for the use and enjoyment of the public at large. In St Vincent and the Grenadines, owners of beachfront lands must ensure that there is public access to the beach. Permanent structures must be at least 12m from the high water mark, and permits are required from the Physical Planning and Development Board.

 

AVAILABILITY OF PUBLIC ACCESS BEACHES

 

It is acknowledged that more of the island's coastline and beach areas need to be accessible and available for public use and recreation. In fact, Section 12 of the Beach Control Act provides that "the Authority shall from time to time determine the needs and requirements of the public in relation to the use of any portion of land, ... the foreshore for, or in connection with, bathing or any other form of lawful recreation ... ."

Most of the pubic bathing beaches were established through the work of the Beach Control Authority starting from the mid-1950's through acquisition of lands, reservation of beach lots in subdivisions, negotiations with landowners, and access gained by prescriptive rights. Unfortunately, over the years, a significant number of these properties, because of limited public funding, have been left unattended, facilities have become derelict, some taken over by squatters, and others affected by coastal erosion.

A number of government agencies are in possession of these properties - traditionally referred to as public beaches. These agencies include the Natural Resources Conservation Authority (NRCA)/National Environment and Planning Agency, the Commissioner of Lands, parish councils, the Urban Development Corporation, the Petroleum Corporation of Jamaica, the Tourism Product Development Company, and the Fisheries Division.

On average, public beaches/access points are located approximately five miles apart. In the case of St Ann - the parish visited by Professor Carolyn Cooper on New Year's Day - there are eight such beach properties/beach access points. Four of these properties are operational and are licensed by the NRCA. Two of these properties are currently being upgraded.

As mentioned before, one of the challenges faced is the maintenance cost to operate the facilities. In the past, successive governments have endeavoured to pursue a free-access policy. However, with limited public funding, these properties have, by and large, succumbed to neglect. It is in this regard that Cabinet, in October 2014, agreed to the charge of a nominal entrance fee to these beaches to support maintenance and development activities.

It is acknowledged that the number of public access points/beach areas along the coast must be increased. However, as a priority, the existing beach properties in disrepair will need to be rehabilitated to the standard of a safe bathing beach, scenic vista, and/or seaside park as is suitable.

Another category of beaches available to the public are those privately owned properties that provide access to the public at a charge. These include, for example, James Bond and Bamboo/Reggae - St Mary; Waves - Hellshire, St Catherine; Shan Shay, Frenchman's, and San San Beaches in Portland. These are licensed by the NRCA as commercial recreational beaches.

 

POLICIES ON BEACH ACCESS

 

The main policy instrument for the management of beaches is the Beach Control Act. As referenced by Ms McCaulay, the enactment of the Beach Control Act in 1956 was itself a recommendation from a commission of enquiry set up in 1954 because of public agitation that fishermen were being "squeezed out" of beaches and the public could not find places to go. It was decided to develop comprehensive legislation to deal with the problem.

The most recent development orders prepared by the Town and Country Planning Authority have included policies on public access to the beach. For example, Policy CD 3 of the Town and Country Planning (Negril and Green Island Area) Confirmed Development Order, 2015, states, "The local planning authority will not grant permission for any development on land adjacent to the line of high water mark that would preclude general public access to, and along, the foreshore."

Policy SP C13 of the Town and Country Planning (Trelawny Parish) Confirmed Development Order, 2015, states that "the beaches listed in the appendix will be preserved for the purposes identified and no permission will be given for any development or activity that will conflict with their use in any way".

The Ministry of Economic Growth and Job Creation has completed work on a beach access and management policy that outlines a clear framework for the sustainable management of our beaches, with special emphasis on the important issue of public access.

It is expected that the this policy will be presented to Cabinet for approval as a Green Paper, together with further details of and updates on public bathing beaches early in 2017.

One of the key elements of the draft Beach Access and Management Policy is the development of the beach access programme, which will:

- Identify, reopen (where necessary), and preserve existing access ways;

- Monitor the provision of access to the beach at new coastal zone developments;

- Plan government acquisition of land for access ways;

- Negotiate easements to provide access to the foreshore in existing developments;

- Designate access points to the foreshore, taking into account safety considerations and the need for access by disabled persons, where possible; and

- Address the provision of adequate parking where appropriate.

The draft policy also recommends amendment of the Beach Control Act to define the term 'beach' and to give the public the right to passage along the foreshore and to bathe in the sea subject to the rights of licence holders and private property owners.

- Peter Knight is CEO of NEPA. Email feedback to columns@gleanerjm.com.