Do We Understand the Implementation of the Didam Arrest to Our Domain Lands Policy?

The Didam judgment is a judgment of 26 November 2021 of the Dutch Supreme Court on due diligence requirements surrounding the sale of real estate in Didam by the municipality of Montferland. In a broader sense, the judgment relates to the private-law issuance of immovable property by public bodies and administrative bodies, including Dutch municipalities.

The consequences are significant: many proceedings have been conducted before courts and the judgment has led to a national reflection on the selection procedures used by Dutch municipalities and other government bodies for the sale of immovable property. In addition to sales, the judgment applies to leasehold issues, leases, land exchanges and rights of use. The judgment states that governments must also follow the rules of public law in private-law transactions, including the principle of equality.

For example, private sales are not allowed if there are several suitable parties in the market. In all cases, criteria and considerations must be made public in advance. The judgment has retroactive validity, so that past transactions can be brought to court.

The above is a synopsis of what the case and judgement reflected, and I underlined many parts as “national reflection” is NOT kingdom reflection, nor are the public and private laws of the Netherlands equal to those of St. Maarten.

When you review the Didam arrest ruling of the Dutch High Courts, you will eventually reach the section in the ruling where, for example, land sales occurred that in the eyes of the law weren’t transparent enough, the equality rule didn’t apply or it wasn’t done by means of a public publication for all interested parties.

In such an event, anyone feeling that they weren’t given an equal and transparent chance to obtain said parcel of domain land can take the government to court. These seem to be the guidelines of good governance.

The aspect that’s disturbing, or better said lacks some serious clarity, is the aspect of retroactive validity and the timeframe in which such can happen. According to the present judicial verdict, that’s not specifically noted, at least that I could find.

For example, when a building permit is published locally in the National Gazette, you have 60 days to object, I believe. After that, the permit becomes irrevocable unless the courts find that it wasn’t done correctly.

Having stated the above, naturally many questions come to mind instantaneously regarding certain properties that were granted and/or sold in the past that might not meet the criteria set above nor be considered good governance.

1. Can interested parties take, for example, the government / the notary / Divi Hotel to court for purchasing the “Fort Amsterdam peninsula” without others being offered the same opportunity, and was it published?
2. Seeing this also works for rental agreements and domain leases, what does this mean for people who were granted domain land 5, 10, 15 or 50 years ago by a commissioner or, under today’s system, by a minister? Can this be brought to court and reversed, and could the country then be held liable for damages?
3. Does the country have a policy presently in place that handles the requirements of the Didam arrest, or are we waiting for a few court cases to screw the country and bankrupt it?
4. How does this work for water rights and filled waters in the lagoon or around the island and the businesses on such? There has NEVER been a policy in St. Maarten other than the domain lands laws/policy, where the minister presently, and the commissioner and Executive Council, including the Lt. Governor, signed off on these agreements in the past.

These are time-based questions as this judgement of the high courts allows you to go back in time. Wish we could apply that “no time frame” also for reparations, but I think I’m being too naïve with that thought.

But if we look deeper into what started this whole Didam arrest case, we quickly realize that the case was based on the sale of a parcel of land by the local government in the Dutch town called Didam to a private company without allowing other companies to also make an offer for said land. This naturally brings me immediately to the following questions and answers.

1. Can our government sell any land on its own? No, the government cannot sell any assets without the approval of Parliament as per our Constitution. A democratically elected Parliament, chosen by the people of the country, can now seemingly be told what to do by the courts. Where exactly does “Trias Politica” start and end in our country?
2. Does the 2nd Chamber of the Netherlands (Staten Generaal) need to approve the sale of land in a township or province? The answer is NO. According to me, that’s done by the council of the town or province.
3. Did the Didam Arrest also indicate that equal opportunity, transparency and fairness be part of the sale of the land in the Didam township? Yes, that’s what triggered the case and was the cornerstone of the Didam Judgement. I believe that those are fundamental rights for all citizens in our kingdom.
4. Does the Didam arrest allow the government, without a court verdict, to go back 5 or more years and take back domain property from persons who received such property in the past in conformity with the law, where the minister decided who got domain land based on an advice because no policy existed, but which in the present government’s eyes was not done transparently or fairly, or where equal opportunity wasn’t afforded to others? If yes, who would pay for the damages?
5. If someone had a land request in for many years, does he/she have the right to take the government to court for lands granted to others without allowing them to also get a fair opportunity to obtain a parcel of land?
6. If someone had a land request in for many years, does he/she lose that right and go into a pool with someone who just received Dutch rights through naturalization or just got off the KLM and registered in St. Maarten? Where’s the fairness in that matter?
7. How does the Didam arrest handle domain lands that are in offshore and/or foreign companies which have been sold to another party if that land is taken back? The government cannot just simply be held liable because a judgement based on a situation in the Netherlands becomes law for all through a high court judgement. Where’s the fairness towards the country in that?
8. When one speaks of transparency, how is it possible that after all listed above, the high court isn’t holding the “Kingdom government” nor the now nonexistent “Antillean government” responsible for these now seemingly illegal mishaps?
9. What was the role of the Lieutenant Governors prior to 10-10-10 on the islands, and who did they represent in the Executive Councils?
10. The Didam arrest also goes much further than just land sales and also includes land rentals, land leasing, land exchange, creation of a right of leasehold (erfpact besluit), establishment of a right of superficies and other private-law agreements concerning immovable property and rights such as establishment of duties of tolerance. The above makes one beg to ask which laws are prevalent for these matters: the national Dutch law on which this judgement was based or the St. Maarten laws and Constitution?

The Didam ruling of 2021 brought many legal uncertainties and on 15 November 2024, the Supreme Court clarified a number of uncertainties known as Didam II in legal circles.

1. First, there is no time limit to the obligation to apply the Didam rules.
2. Secondly, deviation from the Didam rules does not make a purchase agreement that has already been concluded null and void for that reason alone. However, this may be grounds for having to pay damages.
3. Third, a public body wishing to sell immovable property must always make that public announcement, even if it considers that there is objectively only one candidate who can satisfy the conditions attached to it.
4. It is also unclear whether public offering is necessary at the end of a lease, especially if it includes provisions for extension.

The site Building Blocks for Social published a list of 67 important judgments from 2022 to March 2024 that harked back to the Didam judgment and today are case law. Do we know what awaits us with this judgement?

In closing, there are many more things we can ask and continue to cry foul about, but let me ask a few simple questions that hopefully can be given honest answers.

1. Did the government of St. Maarten approve the hiring of a DUTCH CONSULTANT COMPANY to prepare a domain land policy for country St. Maarten that is steered by the Didam Arrest? If yes, who’s responsible for that policy?
2. Didn’t Parliament review a domain land policy that the VROMI ministry said was being prepared? If yes, what’s going to happen to that policy?
3. When we use High Court rulings for all countries within the Kingdom and apply good governance according to the Charter articles, we seem to forget a few situations like, for example:
4. Equality to be treated equally in the kingdom qua poverty relief, housing, climate protection (they just appealed the climate change protection ruling to protect the BES islands), etc.
5. When it comes to equality, we don’t apply it equally to our human rights of prisoners and seniors, especially with pensions, health care, equal opportunity to a good living, etc.
6. Why aren’t the basic human rights qua health, education and safety equally protected by the kingdom as the Charter states? 25 million Euro is given to the RST every year to combat undermining of the government while exploitation of humans is supported by the kingdom government, seeing the wages people work for while the cost to live is twice as high compared to what they earn. Poverty is increasing all over in the country every day and we aren’t doing anything.

I wrote this article as the first in a series of articles that I believe needs more attention than it’s getting. In the world of today, correct information is pivotal and many people are hurting badly and totally stressed out. Don’t just sit back and allow a law to become the detriment of the country.

Claudius Buncamper

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