Insights

ACT XXV of 2016, being an amendment to the Civil Code, has just been enacted. This Act is more commonly known as the Public Domain Act due to the subject matter of the amendments. GANADO Advocates are proud to have been intimately involved in its drafting over the last few years.

This law brings in some very important clarifications on the law of property when it consists of the foreshore. It confirms the special treatment at law of property such as the foreshore and coastal perimeter, internal waters and the seas and the seabed and sub-soil but the extends special status to other property now included within the definition of public domain such as waterways, aqueducts, valleys, harbours and ports, public spaces, parks, the open countryside and others. These are now treated as property which is subject to fiduciary obligations burdening their owners, including the State, for their protection and the enjoyment of future generations. Private property rights have been reserved for these properties but the duties of private owners still emerge enhanced due to the nature of the property, which should therefore be preserved and not destroyed in view of its nature.

The law also contemplates grants of rights over such areas by the State, through private contracts and administrative concessions and indeed rationalises the nature of public property, as opposed to public domain, which is held under a different kind of state ownership with resulting fiduciary restrictions. The consequences on the ability of the State to deal in such property are important for the future preservation of public rights on such areas, such as the right of access. The State must ensure a proper balance between any grant of private rights with the public’s right of enjoyment of such areas. The law also introduces a Parliamentary process when public domain areas are to be converted to public property and vice versa.

One now expects parts of the State territories to be converted from public land, which is freely negotiable, to public domain which is not.

This is a law which finally gives legal status to such areas with the Maltese archipelago. Many laws address heritage and preservation but this is the first time where the nature of the property is recognised by the civil law itself.