Enforcement required

A column by Anouk Balentina

The column was written in Dutch. Google translate is not always accurate, still the point comes across.

This is what our Minister of Nature reported in a press release on Earth Day 2022. “Our nature will soon have its right to exist anchored in our Constitution. Then every citizen can become a protector of nature.”

Unfortunately, Nature is nowhere to be found in the Aruba Constitution. What the minister intends to do with his initiative, is to include nature in the Constitution of Aruba, and provide citizens with a basis to go to court for violation of these new fundamental rights.

An incorporation into the Constitution is mainly cosmetic because every citizen can already invoke the European Convention on Human Rights, ECHR, directly, because the fundamental right to untouched nature has been fully recognized, based on a case in the European Court of Human Rights, ECtHR.

There is no question that Aruba also has regulations that protect its nature. Mention may be made of the Nature Conservation Ordinance, the General Police Ordinance (APV) and the Spatial Development Ordinance (LRO) linked to the Spatial Development Plan with Regulations 2021 (ROPV).

Damage to nature is punishable under various regulations. There is a possibility of enforcement action by various authorities, so that enforcement requires good mutual coordination. Making new laws regarding nature puts even more pressure on the authorities and increases the workload of enforcers further, and that is precisely the problem. There is therefore no point in continuing to write new legislation.

If we limit ourselves to the ROPV, this has a binding character; everyone has to abide by it. The ROPV indicates by means of the planning map, the destinations and the regulations where no buildings or activities, such as excavations, are permitted, for example because the emphasis in that area is on the conservation and/or protection of nature. It does not matter whether the plot is owned, rented or leased, it must be protection.

It is a fact that the ROPV infringes and may infringe on the property rights of citizens in the public interest. People in Aruba are not used to that.

All activities that have an impact on the physical space of Aruba must first be checked against the ROPV. An important question concerns existing situations that suddenly became illegal with the introduction of the ROPV. ROPV makes sure that no damage, or nuisance is caused to local residents or to natural and landscape values. The government must therefore stop any disturbance, it has a basic obligation to enforce.

Practice has taught us that the principle obligation to enforce the ROPV in Aruba is a myth; non-compliance goes unpunished, creating a discrepancy between the normative order of society and administrative practice. Enforcement takes place through supervision and sanctions. The Infrastructure and Planning Department (DIP) and the Public Prosecution Service (OM) are charged with the enforcement of the LRO, Spatial Development Ordinance, or the ROPV, Spatial Development Plan with Regulations 2021. DIP only has two supervisors who have their hands full with all kinds of other matters. Unfortunately, the Public Prosecution Service has also recently announced publicly that it will not act, even if it detects a criminal offense, because it wants to give the minister the opportunity to fulfill his responsibility.

Since 2006, efforts have been made to organize our limited island space as efficiently and effectively as possible. You can rightly say that regulations have so far, hardly helped. And that means that the government is mainly using its scarce time and resources to file complaints, file lawsuits and respond to bad publicity by environmentalists and the press regarding the ROPV, when that energy should have been used for the correct implementation of the ROPV.

Citizens count on the government to manage carefully and that all supervisors use their position, their powers, their time and resources for the intended purpose. It seems as if the residents’ groups and environmental activists have taken over the task of supervisor from the government by regularly sounding the alarm in the event of abuses, while the government has a basic duty to enforce. Enforcement is necessary to ensure legal certainty, and adherence to democracy.

The minister’s initiative will not solve the primary challenge: Lack of Enforcement.

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May 22, 2022
Rona Coster