Attorney General Maneesh Gobin has opened a war of words over St.-Brandon, brandishing the threat of the Mauritian government pushing for exercising its sovereignty over the islands at the expense of Raphael Fishing. But is this a fight over sovereignty at all? And what are the options available to Port-Louis?
1) The fight in courts
The problem of the Taiwanese fishing ship Yu Feng no.67 off the coast of St.-Brandon has snowballed into a war of words between the government and Raphael Fishing Co. Ltd – whose main shareholder is businessman and mining magnate Jean-Raymond Boulle – that claims a permanent grant over 13 of the 28 islets making up St.-Brandon. Attorney General Maneesh Gobin has argued that the arrangement with this company, which pays one rupee annually to the state in return for running a fishing operation on the islets, is derisory and has brandished the threat of turning to parliament to allow Mauritius to exercise its sovereignty over St.-Brandon.
The islands were first discovered by Portuguese explorers and mapped in 1546. And the strategic value of the islands was soon evident; in 1742, the French governor of Mauritius Mahé de Labourdonnais outfitted an expedition to the islands fearing these could be used as a base by the British to harass and attack French shipping around Mauritius. In 1874, the colonial administration – now British – wanting to regularise land concessions in Mauritius and its outer islands passed an ordinance to transform land concessions into permanent leases. In October 1901, the islands of St.-Brandon were sold to St.-Brandon Fish and Manure Co. Ltd by concession-holders who had run the islands before.
The colonial administration approved the sale on condition that the all the guano – for phosphate mining – produced on the islands be sold to Mauritius and a royalty of Rs5 per ton found be paid to the Mauritian administration; all fish caught in the islands be delivered to Mauritius; and the company pay an annual one-rupee fee to the Mauritian administration on each October 2. The company soon floundered and went into liquidation, with Raphael Fishing buying the rights over 13 of the islands from the liquidators in 1928. The new owner has continued fishing in the waters since then – although the phosphate mining activities were shut down in the mid-20th century.
The status of these 13 islands of St.-Brandon really came into question in 1995 when Marie Louis Robert Talbot with two fishermen in tow landed on the islet of Lavocaire claiming that he now owned the islet after it was sold to him by Marie Anna Bétuel for Rs100,000. Signs that Talbot had put up were torn down by the Mauritian coast guard. The fight soon ended up in Mauritian courts and ended up entangling the government. In June 2003, the Supreme Court argued that since the Code Civil did not cater for ‘permanent leases’, and since the maximum lease period that the government can propose under Mauritian law is 99 years, the ‘lease’ of Raphael Fishing Co. Ltd over the 13 islets “should be considered to have been for a duration not exceeding 99 years”. In other words, according to the Supreme Court, the “lease of Raphael Fishing had ended in 2000”, and that it was “within the sole realm of the government as owner/lessor to decide on the fate of the St.-Brandon islands”.
By the time the case was taken by Raphael Fishing to the London-based Privy Council, the apex court in the Mauritian judicial system, the Council in July 2008 had a different view. First, it argued that it was irrelevant that the Code Civil did not contain anything called a ‘permanent lease’, and that the 1874 ordinance allowed the colonial administration to create new types of property rights. Secondly, that although the British administration made a mistake by calling the arrangement over St.-Brandon a lease, the fact that it was permanent meant that “it was in substance a permanent grant, and should be given effect as such”. What the Privy Council judgement did, says constitutional lawyer Milan Meetarbhan, “is that the end result was maintaining the status quo over St.-Brandon. The Privy Council rejected the argument of the Supreme Court of a 99-year lease limit under civil law”.
2) Mixed messages
There are a number of problems with the government painting what is a commercial/legal dispute as a sovereignty fight. “This is a mischaracterization of the issue, sovereignty disputes are governed by international law; here we are talking about the Mauritian government disputing a grant given to a Mauritian company. The legal issue is one of Mauritian, not international, law,” argues Meetarbhan. “This has nothing to do with sovereignty. St.-Brandon has always been part of Mauritius, it’s in the constitution,” says former foreign secretary Vijay Makhan, “we never ceded anything to anybody, and we are not trying to wrest sovereignty away from another state, this is a Mauritius-based company.” As far as the company is concerned, he adds: “It has come up with a communique saying that it does not dispute the rights of the Mauritian state at all.”
The second issue is that the Mauritian state in the recent past has itself come up with mixed messages on the status of this company in St.-Brandon. As recently as June 2021, the government was in talks with Raphael Fishing to rent a building for the meteorological services in St.-Brandon, shifting it out of a building that dated back to 1947. Labour disputes concerning the company have been heard in Mauritian courts, as in 2013. Even before that, in a written reply in parliament on April 3, 2018, the fisheries and shipping minister stated that the question of renewing the lease of Raphael Fishing over 13 of the islets, “does not arise inasmuch as the lease is a permanent one. This has been confirmed in a judgement of the Judicial Committee of the Privy Council”.
However, another arm of the government, the Outer Islands Development Corporation (OIDC) that manages the other 15 islets still states that “the lease of the other remaining 13 islets came to an end on October 2000, and the agreement has not been renewed. However, the former Lessee, Raphael Fishing, has been authorised to continue its activities pending further negotiations”. While the fisheries ministry insists that the matter has been settled by the Privy Council, the OIDC seems to still be insisting on what the Supreme Court said, ignoring the Privy Council’s verdict in 2008.
The third issue is that in the past, the presence of the company has not stopped the Mauritian state from coming up with plans of its own for St.-Brandon. In 1974, the government announced that it was entertaining proposals by the Soviet Union to set up a fishing base on St.-Brandon. The assumption was that such announcements were being made to “prod Texaco into action” to prospect for oil in Mauritian waters. When Texaco did send its drillship the Douglas Carver to look for oil, three supply vessels and a helicopter for the expedition came via St.-Brandon. When Texaco did not find anything by 1977, the Mauritian government announced it would set up a monitoring station on St.-Brandon to combat alleged illegal fishing by Russian and Korean ships. That did not happen either. But the arrangement on St.-Brandon was not seen as an impediment to those plans.
3) What can the Mauritian government do?
If the Attorney General is arguing that the arrangement with Raphael Fishing should now be revisited because it does not benefit the population of Mauritius, there is some precedent for this. Consider the fate of the Chagos-Agalega Co. Ltd, founded in Seychelles in 1962 to produce copra in the Chagos islands and Agalega. In 1967, its holdings in the Chagos islands were handed over to the UK government in return for £660,000 to make way for a US military base on Diego Garcia and the subsequent depopulation of the Chagos islands.
The company’s holdings in Agalega continued until 1975 when Paul Moulinie who operated the company there reported he had been approached by the Soviet Union to sell them the island to set up a base there. A few months later, in October 1975, the Mauritian state took over the islands from the Chagos-Agalega Co. Ltd via compulsory acquisition to manage it directly to prevent any lingering confusion in Washington D.C. “If there is a problem with Raphael Fishing in St. Brandon, it’s for the government’s lawyers to set down with the company’s lawyers to renegotiate a new agreement. It’s abhorrent that a company is paying only one rupee for a lease,” says Makhan.
So, what can the government do? The first is the route proposed by the Attorney General; a constitutional amendment to get around the Privy Council judgement. This would put Mauritius onto legally uncertain terrain. The last time that a government had contemplated this was in 1995 in response to the question of the inclusion of oriental languages in ranking for CPE exams. The then-government headed by Sir Anerood Jugnauth backed the plan but the decision was ruled as unconstitutional by the Supreme Court. To try to get around that decision which he called “a direct attack on oriental languages”, Jugnauth proposed amending the constitution, but did not have the support of the opposition parties to muster the 3/4ths majority needed.
Another tack is section 4A(a) of the Constitution that was inserted in 1983 that reads: “No law relating to the compulsory acquisition or taking possession of any property shall be called into question in any court if it has been supported at the final voting in the Assembly by the votes of no less than three-quarters of all members of the assembly.” Going this route, argues Meetarbhan, “would be easier and would not raise questions about the separation of powers, though ouster clauses are not generally well viewed by the courts; given that this is in the constitution itself, this is on a different level”. The question to ask is why the government is now revisiting the question of St.-Brandon? “It’s hard to see why, except that somebody else has shown interest,” says Makhan.
What is important to remember is that this war of words is taking place just as Mauritius’ outlying islands have become strategically valuable real estate; just last year, the government announced setting up a new network of coastal radars – supplied by India and funded by Japanese grants – one of which will replace a radar placed on St.-Brandon back in 2011 in line with a 2009 plan by New Delhi to dot the Indian Ocean islands with radars. Since then, New Delhi has invested heavily in setting up such radars in Mauritius, Maldives and Seychelles to feed real-time maritime intelligence to the Indian Navy’s Information Fusion Centre in Gurugram set up in 2018. Whether this is a purely commercial dispute with a company or a strategic demand can only be gauged by the way in which this fight between the government and Raphael Fishing evolves.