Dr Win­ford James

To­bag­on­ian au­ton­o­my is back in the air and there are views aplen­ty on the mat­ter. One of my broth­ers, Max Al­bert, is among those who hold strong views on the theme gen­er­al­ly and, more specif­i­cal­ly, on the is­sue of town and coun­try plan­ning. We have had an ex­change of ideas and one re­sult is this col­umn, which is a col­lab­o­ra­tive ef­fort be­tween him and me. He is a for­mer Sec­re­tary in the As­sem­bly and, be­fore that, a PSA ac­tivist on cer­tain el­e­ments of the cur­rent THA Act (40 of 1996). He is still an ac­tivist, though not for the PSA.

The au­ton­o­my is­sue is no longer sim­ply an ad­min­is­tra­tive one; it is a con­sti­tu­tion­al one.

By the as­sent of the Pres­i­dent – Par­lia­ment in its fullest con­sti­tu­tion­al ex­pres­sion – the Fifth Sched­ule of the Act clear­ly iden­ti­fies town and coun­try plan­ning as a mat­ter for To­ba­go. That in­clu­sion was nei­ther sym­bol­ic nor ten­ta­tive. It was de­lib­er­ate. It was meant to set­tle, not pro­long, the ques­tion of To­ba­go’s au­thor­i­ty in its own de­vel­op­men­tal af­fairs.

Yet, in prac­tice, we are liv­ing with an ab­sur­di­ty.

Un­der cur­rent anachro­nis­tic and neo­colo­nial land sta­tus rules and poli­cies, To­ba­go process­es ap­pli­ca­tions and eval­u­ates land use. But the To­ba­go-based town and coun­try of­fi­cers are main­ly from Trinidad, and they ap­ply their judge­ment to the re­al­i­ties of To­ba­go’s ter­rain, com­mu­ni­ties, and tra­di­tions.

How­ev­er, when a de­ci­sion is made – par­tic­u­lar­ly a re­fusal – the mat­ter is ex­tract­ed from To­ba­go and placed be­fore a min­is­ter in Trinidad, who may con­firm or over­turn it. The Di­vi­sion (TCPD) in To­ba­go nev­er, from in­cep­tion, re­port­ed to any of­fice of the To­ba­go House of As­sem­bly, ex­cept when the NAR took over dur­ing the 1996 -2001 pe­ri­od un­der Ho­choy Charles, and then not a damn dog barked, not even Bas­deo Pan­day and Kam­la Per­sad-Bisses­sar.

Orville Lon­don prompt­ly hand­ed over/back the re­spon­si­bil­i­ty to Trinidad in 2001, and every House of As­sem­bly there­after nev­er both­ered about the item and its im­por­tance to To­ba­go’s au­thor­i­ty and its so­cioe­co­nom­ic de­vel­op­ment. The mat­ter goes to the root of our ex­is­tence, where a min­is­ter can de­ter­mine how we de­vel­op, or if at all, and at what pace; and it de­fines the broad­er re­la­tion­ship be­tween the two is­lands.

Thus, the ex­trac­tion of To­ba­go mat­ters to a min­is­ter in Trinidad can­not be au­ton­o­my. It is ad­min­is­tra­tive frag­men­ta­tion.

Par­lia­ment did not con­tem­plate a sys­tem where re­spon­si­bil­i­ty is di­vid­ed in such a dis­joint­ed man­ner – where To­ba­go is en­trust­ed with the front end of gov­er­nance, while Trinidad re­tains the fi­nal word. A func­tion, once as­signed un­der the Fifth Sched­ule, must be ex­er­cised in full – from ap­pli­ca­tion to fi­nal ap­peal. Any­thing less ren­ders the as­sign­ment in­com­plete and un­der­mines the very pur­pose of the leg­is­la­tion.

The struc­ture of Act 40 re­in­forces this point. Mat­ters re­served for the cen­tral Gov­ern­ment are set out in the Sixth Sched­ule. Mat­ters to be per­formed in To­ba­go on be­half of the State are ad­dressed un­der the Sev­enth Sched­ule. The Fifth Sched­ule stands apart. It is the do­main of To­ba­go’s own gov­er­nance. By that di­vi­sion alone, it is clear that Fifth Sched­ule func­tions are to be ex­er­cised with­out in­ter­fer­ence.

The grow­ing sug­ges­tion that this is­sue can be re­solved through a Mem­o­ran­dum of Un­der­stand­ing is, there­fore, deeply mis­guid­ed, es­pe­cial­ly when the pub­lic, who would be af­fect­ed by its pro­vi­sions, have not been con­sult­ed. It is not sim­ply an ad­min­is­tra­tive is­sue, as we shall see be­low.

Mem­o­ran­da of Un­der­stand­ing be­long to the log­ic of the Sixth and Sev­enth Sched­ules, where the State del­e­gates func­tions to To­ba­go for con­ve­nience. They have no place in the Fifth Sched­ule, where au­thor­i­ty is al­ready vest­ed. To pur­sue that route is to con­cede ground that has al­ready been won. It is to sub­ject con­sti­tu­tion­al au­thor­i­ty to ad­min­is­tra­tive per­mis­sion. It is, in ef­fect, to re­open the door to con­trol from Port-of-Spain un­der the guise of co­op­er­a­tion and per­haps “po­lit­i­cal friend­ship”.

That is a dan­ger­ous road. It in­vites a slow ero­sion of To­ba­go’s ju­ris­dic­tion, where func­tions are per­formed lo­cal­ly but con­trolled cen­tral­ly. It en­trench­es de­pen­den­cy where a cer­tain in­de­pen­dence was in­tend­ed. And it per­pet­u­ates a mod­el of gov­er­nance that can on­ly be de­scribed as mod­ern ad­min­is­tra­tive colo­nial­ism.

At this junc­ture of our his­to­ry, lead­er­ship in To­ba­go must be es­pe­cial­ly clear-eyed. The re­spon­si­bil­i­ty of the Chief Sec­re­tary is not mere­ly to man­age re­la­tion­ships with Port-of-Spain, but to give full and faith­ful ef­fect to the au­thor­i­ty al­ready vest­ed in To­ba­go by Par­lia­ment. Where that au­thor­i­ty is un­cer­tain in its ex­e­cu­tion, it must be as­sert­ed, clar­i­fied, and se­cured – not di­lut­ed through ad­min­is­tra­tive com­pro­mise or pro­ce­dur­al ac­com­mo­da­tion. Fail­ure to do so risks con­vert­ing con­sti­tu­tion­al au­thor­i­ty in­to ne­go­ti­at­ed dis­cre­tion, and, in that mo­ment, au­ton­o­my would not be pre­served but sur­ren­dered.

The so­lu­tion is nei­ther com­plex nor elu­sive. First, a sim­ple leg­isla­tive amend­ment—no more than a few lines—is re­quired, viz:

“Wher­ev­er the term ‘min­is­ter’ ap­pears in the Town and Coun­try Plan­ning frame­work as it ap­plies to To­ba­go, it should be read as re­fer­ring to the To­ba­go Ex­ec­u­tive Coun­cil or its des­ig­nat­ed au­thor­i­ty.”

This prin­ci­ple should in­cor­po­rate all Fifth Sched­ule mat­ters. The law must re­flect the con­sti­tu­tion­al re­al­i­ty.

Sec­ond, Par­lia­ment should or can adopt a clear “No Con­test” po­si­tion af­firm­ing To­ba­go’s full ex­er­cise of its au­thor­i­ty in these ar­eas. Not as a favour, but as a recog­ni­tion of what al­ready ex­ists in law.

And by next Fri­day, all of that can be done. A very few lines.

To­ba­go un­der­stands its land. Our set­tle­ment pat­terns – along ridges, slopes, and val­leys – are not ac­ci­dents; they are adap­ta­tions re­fined over gen­er­a­tions. Our peo­ple know the dif­fer­ence be­tween a sea­son­al wa­ter­course and a ma­jor riv­er. Our pro­fes­sion­als are ca­pa­ble of in­te­grat­ing mod­ern en­vi­ron­men­tal tech­nolo­gies with tra­di­tion­al knowl­edge to achieve sus­tain­able de­vel­op­ment.

What we re­quire is not over­sight, but au­thor­i­ty.

The time has come for the To­ba­go House of As­sem­bly to as­sert its full ju­ris­dic­tion over Town and Coun­try Plan­ning – not par­tial­ly, not con­di­tion­al­ly, but com­plete­ly. The peo­ple of To­ba­go de­serve a plan­ning sys­tem that is re­spon­sive, ef­fi­cient, and root­ed in the lived re­al­i­ties of the is­land.

Let us not ne­go­ti­ate away what Par­lia­ment has al­ready grant­ed. Let us not di­lute au­ton­o­my through ad­min­is­tra­tive com­pro­mise. To­ba­go must take back Town and Coun­try Plan­ning – ful­ly, fi­nal­ly, and with­out apol­o­gy.

In the mean­time, we will await the planned Con­sti­tu­tion­al re­forms, which in any event should be a few lines and we come back home, so to speak, and make our own com­plete set of laws suit­ed to our own re­al­i­ties.

Dr Win­ford James is a re­tired UWI lec­tur­er who has been analysing is­sues in ed­u­ca­tion, lan­guage, de­vel­op­ment and pol­i­tics in Trinidad and To­ba­go and the wider Caribbean on ra­dio and TV since the 1970s.

He has al­so writ­ten thou­sands of columns for all ma­jor news­pa­pers in the coun­try.