Unveiling the Shortcomings: The Public Domain Act

The Public Domain Act, enacted into the Civil Code by virtue of Act XXV of 2016, was hailed as a ‘quantum leap’ and a ‘paradigm shift’ in the protection of Maltese cultural, historical and natural heritage.

Property belonging to the public domain is sensitive by its nature and has a public function that must be protected to safeguard the inherent public utility deriving from special areas such as the foreshore and the sea. This law crystallised the property belonging to the public domain and clarified the rights and obligations flowing from such public domain property.

For centuries, these areas could not be owned at all, and were therefore extra commercium. In 2016, this changed – the State became the owner or is presumed to be the owner of such land (saving third party rights) as a fiduciary of the public. Therefore, the government now has an enhanced legal responsibility to protect these areas of a sensitive nature consistently with their preservation and the maximisation of public utility.

This law was expected to be revolutionary because it tackles the protection of national heritage from the very grassroots, and therefore by conferring ownership rights onto the government which however does not have the right to commercialise such public domain property. In fact, the government may not grant any real rights over property belonging to the public domain, meaning it may not grant any concessions which are not of mere sufferance unless it proceeds to declassify the property from the public domain – a parliamentary mechanism which the law contemplates.

From a legal perspective, the law was indeed a paradigm shift or a quantum leap as the legislators have described it.

Unfortunately, however, there are various shortcomings in the implementation of the law that veer it far from being successful. The author notes that despite being enacted over seven years ago, there is no public domain department within any public authority and there is yet to be a single declaration of property designated as public domain which indicates an incompatibility between the current political agenda and the operation of public domain law. In fact, in 2017, a total of 24 sites had been recommended for declaration into the public domain – neither of which materialised.

Ironically, the first administrative and parliamentary use of the law was in 2023 – to declassify three areas of land in Qawra and Sliema on the foreshore from the public domain to be able to grant emphyteutical concessions over such land.

An analysis of proceedings before the local courts leads the author to conclude that there is a general misunderstanding and misapplication of public domain law both by professional legal practitioners and by the judiciary itself. This indicates the need for the exploration of knowledge into this novel field of public domain law within Maltese civil law.

This leads the author to conclude that the legal quantum leap or paradigm shift described in 2016 was delivered on paper but not in practice leaving Maltese cultural, natural, and historical heritage at a loss.