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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 2222 (QB)
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHAGOS ISLANDERS
|- and -
|THE ATTORNEY GENERAL
HER MAJESTY'S BRITISH INDIAN OCEAN TERRITORY COMMISSIONER
John Howell QC, Rhodri Thompson QC & Kieron Beal (instructed by Treasury Solicitor) for the Defendants
Hearing dates : 31 Oct, 1-15, 19, 21, 25, 27-29 Nov, 2-9, 11-20 Dec, 6-10 Jan.
Crown Copyright ©
Mr Justice Ouseley:
i. that the Limitation Act 1980 had no application because for all or the vast majority of the Claimants, the Defendants' acts had denied them any real and substantive access to justice, and in any event, it would be unconscionable to permit the Defendants to rely on the Act;
ii. that the Foreign Limitation Periods Acts 1984 excluded or modified the operation of the Limitation Act 1980;
iii. that Article 3 of the BIOT Courts Ordinance 1983 required the time limits in the Limitation Act 1980 to be adjusted to meet the particular circumstances of these Claimants;
iv. that the Limitation Periods were not applicable to the continuing torts of unlawful exile and deceit which latter had only ended with the Bancoult litigation;
v. that the Claimants were disabled within the meaning of the Limitation Act because they had been outside the jurisdiction of the BIOT Courts and of the High Court of England and Wales as a result of the Defendants' actions, which had also caused them to be impoverished, ignorant, illiterate and physically separated from those Courts;
vi. that the action was based upon the fraud of the Defendants and deliberate concealment of relevant facts, in particular in concealing their citizenship removing the islanders, preventing their return and infringing other rights of theirs and failing to make adequate provision for them, accordingly section 32 of the Limitation Act 1980 meant that the actions were not statute barred; and
vii. that the actions were also actions for personal injury and it would be equitable pursuant to Section 33 of the Limitation Act 1980 to allow the actions to proceed. The injuries included diseases linked to poverty, poor living conditions, malnutrition and included such illnesses as malaria, gastro-intestinal infections, drug addictions and mental illnesses.
i. the factual evidence of compulsory removal of Claimants or the prevention of their return to the Chagos Archipelago and the lawfulness of such acts;
ii. in relation to the tort of misfeasance in public office, the prospects of it being shown that the Defendants acted unlawfully or if they did so, whether they knew or were reckless as to that unlawfulness;
iii. the existence of and legal requirements of the alleged tort of unlawful exile;
iv. whether the alleged duty of care arose;
v. the prospects of Claimants showing that they had any real property rights, in particular in the light of the acquisitions by the Crown, and the possible applicability of Mauritian law;
vi. the relevance of the Mauritian Constitution;
vii. the ingredients of the tort of deceit and the Claimants' prospects of showing that the tort had been committed;
viii. the prospects of any cause of action not being statute barred or property right not being extinguished;
ix. abuse of process in the light of the settlement of the Michel Vencatessen litigation and the later Bancoult litigation.
The Chagossians' Oral Evidence
The nature of the Vencatessen litigation
The organisation of the Chagossians
Misfeasance in Public Office
The Bancoult decision
1. The Law
The identification of individuals
The "framework" submissions
The components of the misfeasance claim: prevention of return
Components of misfeasance: a duty to consult
Components of misfeasance: removals
Components of misfeasance: land acquisition
Components of misfeasance: deceit and the UN
Components of misfeasance: deceit and citizenship
Components of misfeasance: overriding the islanders' interests
Property and rights under the Constitution of Mauritius
"Whenever the Commissioner is satisfied that it is necessary or expedient to acquire on behalf of the Crown any land in the Territory for any purpose which in the opinion of the Commissioner is a public purpose he may, if the owner or apparent owner agrees to sell such land at the price offered by the Commissioner, acquire such land in accordance with the provisions of this Ordinance."
" includes the provision of defence and other necessary facilities for or on behalf of the United Kingdom Government or for or on behalf of any Commonwealth or foreign Government with which the United Kingdom has agreed to the provision of such facilities."
"A declaration in the instrument of acquisition that it was necessary or expedient to acquire the land for a public purpose or that the purpose for which the land was acquired is or was a public purpose shall be conclusive proof of the matters stated herein."
"5. The land described in the Schedule of the instrument of acquisition shall vest absolutely and irrevocably in the Crown free from any mortgages, charges, interests or rights whatsoever of any interested party, except as may have been specially reserved in the aforesaid instrument.
6. (1) The rights, interests, charges or mortgages of any interested party in or over the land thus acquired shall, upon such land vesting in the Crown, be related to the price stated in the instrument of acquisition which shall be deemed for all purposes to be the price agreed upon between the Commissioner and the owner or apparent owner of the land so acquired."
"'Interested party' means any person being an owner or co-owner of land the subject of acquisition under this Ordinance or having any right, beneficial interest, charge or mortgage in or over such land.
'Owner' includes a lessee, a usufructuary or any other person having a beneficial interest in the land."
"Whereas all land in the Territory is Crown Land, the Compulsory Acquisition of Land for Public Purposes Ordinance 1967 and the Acquisition of Land for Public Purposes (Private Treaty) Ordinance 1967 are repealed, and it is hereby confirmed and declared that all land in the Territory is Crown Land."
"4. In the enacting of laws the Commissioner shall observe, so far as is practicable, the following rules:
(2) Matters having no proper relation to each other shall not be provided for by the same Ordinance: no Ordinance shall contain anything foreign to what the title of the Ordinance imports
(7) Any Ordinance of an extraordinary nature and importance whereby Our prerogative, or the rights of property of Our subjects not residing in the British Indian Ocean Territory, or the trade, transport or communications of any part of Our dominions or any territory under Our protection or any territory in which We may for the time being have jurisdiction may be prejudiced."
"No colonial law passed with the concurrence of or assented to by the governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof which may have been given to such governor by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorising such governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent or last-mentioned instrument."
"3. (1) Subject to and so far as it is not inconsistent with any specific law for the time being in force in the Territory and subject to subsections (3) and (4) of this section and to section 4, the law to be applied as part of the law of the Territory shall be the law of England as from time to time in force in England and the rules of equity as from time to time applied in England:
Provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary.
(3) Subject to subsection (4) of this section, no enactment, rule of law or any other part of the law of Mauritius or Seychelles shall form part of the laws of the Territory after the appointed day, except to the extent that any such enactment, rule of law or part of such law may have been applied to the Territory by a law made by the Commissioner after the appointed day under section 9 of the British Indian Ocean Territory Order 1976 or any corresponding provision superseding that section.
(4) In any proceedings commenced before the appointed day, the law to be applied shall be the law in force immediately before the appointed day, unless all the parties to the proceedings agree that the law to be applied shall be as in subsections (1) to (3) of this section.
"1. It is hereby recognised and declared that in Mauritius there have existed and shall continued to exist each and all of the following human rights and fundamental freedoms, namely
(c) the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation.
and the provisions of this Chapter shall have the effect for the purpose of affording protection to the said rights and freedoms subject ot such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.
5. No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.
6. (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say
(b) the necessity therefor is such as to afford reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and
(c) provision is made by a law applicable to that taking of possession or acquisition
(i) for the prompt payment of adequate compensation; and
(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation.
(5) Nothing in this section shall be construed as affecting the making or operation of any law for the compulsory taking of possession in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes in which no moneys have been invested other than moneys provided by the government of Mauritius.
7. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required
(a) in the interests of defence,
14. (1) Subject to the provisions of subsection (5) of this section, if any person alleges that any of the provisions of sections 1 to 13 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may also apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subjection (1) of this section."
"5. The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any other law and such other functions as Her Majesty may from time to time be pleased to assign to him, and subject to the provisions of this Order and any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him.
11. (1) The Commissioner may make laws for the peace, order and good government of the Territory, and such laws shall be published in such a manner as the Commissioner may direct.
15. (1) Except to the extent that they may be repealed, amended or modified by laws made under section 11 of this Order or by other lawful authority, the enactments and rules of law that are in force immediately before the date of this Order in any of the islands comprised in the Territory shall, on and after that date, continue in force therein but shall be applied with such adaptations, modifications and exceptions as are necessary to bring them into conformity with the provisions of this Order.
(2) In this section 'enactments' includes any instruments having the force of law."
Abuse of Process
i. it was an abuse of process for those who had signed renunciation forms (paragraph A642) and received Rs 8,000 in consequence from the ITFB, or for anyone claiming through such a person, to bring these proceedings; and
ii. a lesser, but related issue, arose as to the position of Michel Vencatessen and his heirs, in the light of the withdrawal of his action in 1982.
The effect of the Renunciation Forms
"Any future situation occurring in the course of or arising out of the consequences of what was done pursuant to BIOT or any such preclusion."
"All that I know whenever I go to a bank, even to get my pension, I have to sign in order to get a sum of money." (Mrs Alexis)
"What I understood was that I signed it and got my money, that was it." (Mr Ramdass)
"I thought I was signing for a sum of money." (Mr Bancoult)
"Wherever you go when you get money you have to sign."
"When I signed the paper I signed in order to get Rs 8,000." (Mrs Jaffar)
No copies were available to be taken away. There was no separate arrangement for minors other than that their parents had to sign for them. There were no arrangements for those under other disabilities and there was no evidence that there were any.
Limitation: the applicability of the Limitation Act 1980
The Limitation Act and unconscionability
The Foreign Limitation Periods Act 1984
"1 Application of foreign limitation law
(1) Subjection to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter -
a. the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings; and
b. except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.
(2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account."
"Exceptions to s 1
2 (1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.
(2) The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings."
"3. (1) Subject to and so far as it is not inconsistent with any specific law for the time being in force in the Territory and subject to subsections (3) and (4) of this section and to section 4, the law to be applied as part of the law of the Territory shall be the law of England as from time to time in force in England and the rules of equity as from time to time applied in England:
Provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary."
"13. The jurisdiction of the Supreme Court shall be exercised, as regards practice and procedure
(a) in civil matters, in accordance with rules of court made under section 14, and in default thereof, in substantial conformity with the practice and procedure for the time being observed in England by the High Court of Justice."
Limitation and continuing torts
Limitation and disability
"28 Extension of limitation period in case of disability
(1) Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired."
An action based on fraud
"(1) Subject to [subsections (3) and (4A)] below, where in the case of any action for which a period of limitation is prescribed by this Act, either
a. the action is based upon the fraud of the defendant; or
b. any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."
"(1) The Claimants were citizens of the United Kingdom and Colonies.
(2) The Claimants had rights to remain in the Chagos islands as belongers.
(3) The Defendants knew that the Claimants (or at least some of them) had rights to remain in the Chagos islands as belongers.
(4) The Defendants, their servant or agents, were responsible, directly or indirectly, for preventing the return to the Chagos islands of those who had lawfully left and wished to return between 1965 and 1973.
(5) The Defendants had no lawful power to order the Chagossians to leave the Chagos islands or to require them to be so ordered.
(6) The Defendants themselves had anticipated in numerous internal documents, the need to make adequate provision for the exiled Chagossians."
"(7) 'the fiction that there was no permanent population' (the main point); this appears to relate to (5) above, but does not appear to be the sole basis for (5), but rather a related but distinct point.
(8) in relation to misfeasance, the pleaded 'bad faith and illegality';
(9) in relation to unlawful exile, 'the fact that there had been no lawful authority for the exile' and 'the fact that there had been no pressing need for the exile in any event';
(10) in relation to negligence, certain facts relating to the calculation of £650,000, the fact that it was merely all that was left from an original budget which had been overspent and the fact the pig breeding scheme was impractical and underfunded;
(11) in relation to property rights, 'the fact that Chagos Agalega had been paid for its interests in the island' and that 'the UK Government had passed legislation which in its view overreached any subsidiary property rights onto the purchase price';
(12) in relation to constitutional and property rights, 'the fiction that there was no permanent population';
(13) in relation to deceit, the fact that the Government had deceived the UN in relation to the presence of a permanent population and that the Government had not given the Chagossians 'the choice to which they were entitled'. The 'nub' of these two alleged facts 'being that the Chagossians were entitled to stay on the islands'."
- The Claimants' UK citizenship: the desire on the part of the UK Government to avoid mentioning it to the Mauritius Government is not concealment from the Chagossians; the true position was in any event plain from the Mauritius Constitution and Independence Acts. Mr Allen's best point is the arguably implicit suggestion that they enjoyed no UK citizenship in the letter of 11th November 1974, (8/1374), emphasising that the UK Government could not intervene between the Mauritius Government and its citizens. But the evidence shows that whenever thereafter the direct question was raised, it was answered accurately by the UK Government eg by Mrs Chalker in 1981. It also shows that the Chagossians themselves actually knew of the position throughout eg Mr Vencatessen's case asserted it; lawyers such as Mr Duval knew of it. The publicity given to the breakdown of negotiations referred to it. All the lawyers advising in 1981 and 1982 knew of it; Mr Macdonald so advised the CIOF representatives in July 1981. Mrs Alexis' son, Mr Cherry, brought what was described as a test case in Mauritius, receiving widespread publicity in 1985 which confirmed their status. The CRG wrote many letters asserting their rights as UK citizens; Mr Bancoult's complaint was that he was not being given the fullness of the rights to which he thought he was entitled as a UK citizen. Bindmans advised on it again in the 1990s. All anyone who wished to know the position had to do was ask the UK Government or keep his eyes and ears open to events over the 1980s and 1990s, or ask any of the many lawyers who had been involved. Any Claimant could have discovered the position, if he did not already know it, at any time and well before 1998. This fact might be related to all the causes of action, in the sense required by section 31(1)(b).
- Rights to remain in Chagos as belongers: I do not regard this as a fact at all, even if it had been expressed as right to remain in BIOT rather than the Chagos. The existence of such rights is perfectly reasonably in dispute. The position of the islanders in BIOT based upon their period of residence there was at least as much within their own knowledge as that of the Defendants. If they wanted to know what legal rights that might arguably give rise to, it is again difficult to see what act of deliberate concealment can be relied on. In any event, their various organisations were asserting their available rights; Mr Vencatessen asserted it; some basis must have existed in their minds for the oft-repeated assertion in 1979 and subsequently in the 1980, 1981 and 1982 negotiations and in the ITFB that they would not renounce their rights to return to Chagos. That can only be based on some tie encapsulated by the concept of "belonging" there. The 1994 Common Declaration of the Ilois People, signed or thumbed by 812 people asserted their right to live where they were connected by birth, descent, and citizenship. The CRG made similar points in 1985. I accept Mr Howell's submission that the Claimants have not begun to discharge the onus of proof on them in relation to showing that any of them did not know this "fact" or could not have discovered it with reasonable diligence well before 1998. This "fact" again might however relate to all causes of action.
- The Defendants' knowledge of such rights: the evidence does not establish that such knowledge existed as a matter of fact. The Defendants clearly were uncertain as to whether there were belongers rights or whether such rights yet existed in the absence of legislative provision. But Mr Howell is right to point out that, if that knowledge were a fact, it is difficult to see that it was deliberately concealed for the purposes of the section. No-one asked either Defendant what it knew the position to be. It would be a basic act of diligence, reasonably to be undertaken, for someone to inquire what the Defendants thought about what to the Claimants was an important assertion. It is not an answer to say that the UK Government was pretending that there was no permanent population: the Newton report was disclosed in the Vencatessen case, and it shows a permanent population however much debate there may be over the numbers it shows. This fact might relate, as best I see it, to the misfeasance and deceit case.
- The fact that the Defendants were responsible for preventing Chagossians returning before the evacuations: the problem with the Claimants' argument is that, whether or not in fact the Defendants were directly or indirectly responsible for that, they believed the Defendants to be responsible, for the most part. Their evidence was that Rogers & Co told them that the islands had been sold. Even if it were believed by some that Mauritius was behind it, or even Moulinie & Co at the time when they were unable to return, it is impossible to accept that any of the relevant Claimants have any prospect of establishing that they did not realise that fact, if such it be, a very long while ago, no later than the 1981 or 1982 negotiations or that they could not have discovered it by then with reasonable diligence. No evidence was given to me to suggest that those who could not return thought that the Defendants were not involved, until 1998 or thereabouts eg Mrs Elyse or Mr Bancoult, Mrs Jaffar. Mrs Jeanette Alexis, who was an evacuee and not in the same category as those prevented from returning, said she did not realise that the Defendants were involved till recently in the evacuations. It is a surprising view for her to have had, but she struck me as generally an honest witness. But even so, given the visits of Mrs Charlesia Alexis to the Seychelles in 1980, who stayed with the family, the discussions about compensation and claims which must have taken place, the visits of other politicians such as Mr Berenger and Mr Michel, it is inconceivable that reasonable diligence eg a simple question to Mrs Charlesia Alexis or any Mauritian group, would not have put her right many, many years ago. Mr Macdonald thought the Defendants responsible, (15/121-2). This fact might go to all causes of action.
- The absence of lawful authority to require the Claimants to leave: this is not a fact, but a highly contentious issue of law. It is however an assertion plainly made in the Vencatessen litigation and was considered on a number of occasions. Reasonable diligence would have involved asking a lawyer. If section 11 of the BIOT Order is restricted as was concluded in the Bancoult Judicial Review, it is necessary only to juxtapose the legislative power granted with the legislation enacted to see that it was ultra vires. It had never been suggested that it was enacted to make provision for the sort of catastrophe which the Divisional Court thought might justify it. This arguably goes to all causes of action, save negligence.
- Anticipation of the need to make adequate resettlement provision: it is difficult to see how this "fact" relates to the negligence cause of action in the statutory sense, still less to the one arguable way in which such a case could be put, as I see it. There was no assumption of responsibility communicated to the Claimants. Insofar as it said to relate to it because it shows that it would be fair, just and reasonable to impose a duty and that it was then breached, the relevant facts are shown by the 1972 Agreement, and the payment, indeed by the 1982 Agreement. Neither were concealed.
- The fiction that there was no permanent population: in reality the fact alleged to have been deliberately concealed is the Defendants' knowledge that there was such a permanent population. Mr Allen says that this was "a massive cover up and fundamental lie". Yet the problem with this argument stems from the fact that the Claimants themselves knew the true position about their permanence. They were in a position to say, with the Newton Report albeit differing from its figures, that by the time it was disclosed in 1976 or thereabouts, the Defendants must have known that there had been some permanent population. Their legal advisors, notably Mr Macdonald, were seeking material to show that the description of "contract workers" to convey short-term residence was a myth. I find it impossible to accept that reasonable diligence, including asking the Moulinies what they had said to the Defendants or asking Mr Todd about his surveys, which the Moulinies could have told them about, could not have disclosed that the Defendants must have known that there was a permanent population, however sophisticated were their attempts to avoid actually having to say so. This fact goes arguably to all causes of action.
- The bad faith and illegality in the misfeasance pleading: this is an unsatisfactory way of alleging the deliberate concealment of facts. I do not see any new point not otherwise covered.
- The absence of lawful authority for the exile has already been covered above; the absence of pressing need is not a fact, or a relevant fact to a right of action. Diego Garcia was not evacuated until it was needed as a whole for defence purposes; it has only been the Claimants who say that the defence facilities and they can co-exist on Diego Garcia the Court cannot weigh the competing defence needs. As to the outer islands, the US wanted them cleared at some stage and there was a longer term UK interest in removing the population too. But it is not possible to say that there was a concealed fact that the US did not want them cleared, or only wanted them cleared because one US Defence Official got his distances significantly wrong.
- Negligence: the calculation of the £650,000 and various points about the resettlement scheme. Even if all those points are facts and correct, the negligence claim does not depend on those facts and they are irrelevant to section 32(1)(b). There is no evidence that anyone asked how the £650,000 was calculated or how much the Mauritius Government had asked for (though it was £650,000 and there was an Ilois number based calculation). Reasonable diligence would have involved asking the Mauritius Government or the Resettlement Committee, on which Ilois were represented. That would also have been a reasonable step to take in relation to any other matters about the adequacy of the sum, and the progress or wisdom of the pig breeding scheme. The Prosser Report was published in 1976. Documents dealing with reservations about the pig breeding scheme were among those disclosed in the Vencatessen litigation. Mr Macdonald, (15/124), advised that the adequacy of the £650,000 offer be investigated to see if it was made in good faith. There is no evidence to support the claim that a Claimant, if ignorant of any relevant fact, could not with reasonable diligence have discovered it.
- Property rights and the overreaching legislation: the legislation, the fact of purchase and the payment of the price were never concealed. There is no evidence of anyone asking or not being told the precise position. The purchase price was referred to in the press in 1975 and by Mr Macdonald in his advice. He too knew of the Property Ordinances, (15/119, 128). He also advised that property rights be investigated.
- Repeats (7) above in relation to constitutional and property rights.
- Deceit: the deceit of the UN and the Chagossians entitlement to stay. This adds nothing to what I have already dealt with. Certainly what the UK actually said would have been ascertainable with reasonable diligence.
Limitation and personal injury
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
a. the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and
b. any decision of the court under this subsection would prejudice the defendant or any person whom he represents;the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -
a. the length of, and the reasons for, the delay on the part of the plaintiff;
b. the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [, by section 11A] or (as the case may be) by section 12;
c. the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
d. the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
e. the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
f. the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."
"11 Special time limit for actions in respect of personal injuries
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from (a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
14 Definition of date of knowledge for purposes of sections 11 and 12(1) [Subject to subsection (1A) below,] in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -(a) that the injury in question was significant; and that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did nor did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
- I have already referred to the Claimants' pleadings in respect of the personal injuries and to some of their drawbacks when dealing with the negligence claim. It was accepted by the pleading that, for the purposes of sections 11 and 14, all of the Claimants who made a claim in respect of personal injuries knew of the statutorily relevant facts before the start of the three year period ending with the issue of these proceedings. No specific date or dates for such knowledge is pleaded, but reliance is placed for the purposes of section 33 on the disclosure of information in the Bancoult proceedings. It is indisputable but that the causes of action accrued many years ago. So the key issue is whether or not there is any reasonable prospect of time being extended under section 33. I use the expression "reasonable prospect", not solely because that is how the question was formulated, but also because although I recognise that, in principle, a decision on the application of section 33 can be made before trial, it may also be appropriate for that decision to await trial in certain circumstances, unless the answer to its application is already clear.
- The Claimants' pleadings and submissions on section 33 only partially follow the structure of section 33. So far as section 33(3) is concerned, the first submission is that the injuries will continue to occur until their previous "basic decent living conditions" are restored. I have already dealt with the unarguability of the general claim in negligence. If there is a continuing breach of duty leading to personal injuries in respect of those compelled to leave the Chagos by the sequence of decisions for which the Defendants were responsible, no individual has been identified nor his related circumstances so as to sustain such a case, and I do not see how it can be said that there is a continuing duty to them anyway, of the limited nature which I regard arguably as existing.
- The Claimants assert, without much elaboration, that the evidence of neither party would be made any less cogent by what delay (unspecified) there might have been. In support, they simply say that the evidence of the Defendants is "largely contained in official documents"; this suggests a very limited role for cross-examination and oral evidence from the Defendants. I consider that appraisal to be correct and such recollection as any witnesses had, would be almost wholly dependant on those documents, and even those documents could well fail to enable events accurately to be recalled; this was the nature of the evidence of Mr Sheridan, Mr Glasser, Mr Grosz and, to some extent, Mr Moulinie. But this assertion contradicts the Claimants' stance in relation to the continuance of the misfeasance proceedings, which posited that much of value could emerge from cross-examination of the Defendants' witnesses, whoever they might be. The evidence of what happened to the Chagossian community was said to be "still plain for all to see". But, to my mind, that can relate to current circumstances only; it cannot deal with the sequence of events or with causation, or the position in 1973, 1982-3, 1990 or at any other time. The pleading, so far as individual Claimants were concerned, was merely that what happened to individuals would be a matter of evidence in due course. As an attempt to deal with section 33(3), it provides nothing of value, and its very paucity suggests that there is little more to be said about the obvious difficulties which the Claimants face.
- The Claimants blame the Defendants' conduct in not providing information which might have allowed the Claimants to ascertain the facts relevant to this cause of action, until the Bancoult Judicial Review proceedings. The partial disclosure and subsequently required destruction of what was disclosed in the Vencatessen action is also referred to. The Defendants' conduct was simply to deny responsibility for the Claimants, it is pleaded.
- Next, it is asserted (without any being identified) that some had periods of disability as minors or through mental illness.
- It is then pleaded that the Claimants, I infer all of them, acted promptly and reasonably in the circumstances in bringing this case (not just the personal injury claim) in the light of the information disclosed in the Bancoult Judicial Review. This is not further particularised or elaborated. The Claimants also rely on the highly contentious pleading in paragraph 34(vi) about what access to legal advice was available to the vast majority of Chagossians.
- I accept Mr Howell's submission that the particulars of claim do not comply with the requirements of CPR 16 PD rule 4. This is because the relevant details are not available from the questionnaires as to injury, losses, or medical reports, if any are to be relied on. It is not clear if any of the suicides are alleged to be fatal accidents. Nonetheless, this deficiency is remediable and not a justification for summary judgment or strike out against the Claimants. But I propose to deal with these pleaded claims on their substantive merits, or lack of them. There is an interaction however; the vagueness and opacity of the pleadings, their rather uncertain approach to facts which ought to be set within a properly understood legal framework has resulted to an extent from or permitted the substantive problems to be overlooked, not wrestled with and thought through. Had that been done, the weaknesses of the case must have become clearer.
- I do not regard the Claimants as having any reasonable prospects of success in their limitation argument in relation to personal injuries. For these purposes, I accept that some Chagossians might have suffered personal injuries of the type asserted, that those might constitute personal injuries for the purpose of sections 11 and 33, and that some might have been caused by the negligence of the Defendants. But it is to be emphasised that it is only the material relevant to the requirements of sections 11, 14 and 33 which matters; ie non-disclosure, say, is only relevant to the extent that it bites upon the claim for personal injuries. The question of when knowledge arose of relevant facts and what advice was available, and when, are relevant for and conceded by the Claimants for the purposes of sections 11 and 14 but arise again under section 33.
- I accept that the burden of proving that the claim has been brought within the relevant period of limitation is on the Claimants; London Congregational Union Inc v Harriss and Harriss  1 All ER 15 CA at pp30, 34, 37. This also applies to the justifications for stopping time running and for extending it.
- The relevant causes of action for the purposes of a claim for damages for personal injuries obviously encompasses the negligence claim. It also covers a breach of duty; the duty which must be breached for these purposes is not the broad duty to avoid infringing the rights of others, a duty to avoid committing torts or breaches of contracts; it is a duty to take care to avoid personal injury; Stubbings v Webb  AC 498. So, the only relevant facts, knowledge, delay and legal advice for these purposes are those which relate to a negligence-based personal injuries claim. No other relevant duty has been pleaded.
- The issue which section 33 raises is whether the application of section 11 would prejudice either party. Thus, the Court has a discretionary power to direct that the section shall or shall not apply. This more general power to disapply the time limit may well reflect the shorter three year time limit applicable to personal injury cases. The statute lists, non-exhaustively, the relevant factors.
- It is self-evident that there is no prejudice from being unable to pursue an unarguable case. The personal injury claim is not unarguable but is not strong; at present it passes muster. Accordingly, the application of the three year limitation period does not prevent the Claimants putting forward a powerful claim, with good prospects of success.
- The prejudice to the Defendants in relation to any personal injury claim, which for these purposes is the claim that matters, is clear and serious. It relates to the cogency of the evidence which they can produce, and so I shall consider it later under that head.
- I now turn to the specific factors set out in of section 33(3) of the 1980 Act. First, the reasons for delay. In my judgment, the affected Claimants were in a position to bring proceedings for damages for personal injury when the asserted personal injury manifested itself in a significant way. These injuries, principally ill-health of one form or another, are relevant because they were supposedly unusual in Chagos. The conditions which led to them were evident; the change was evident. Even if a period is allowed for the realisation of what was happening, the establishment of trends, and the time taken for problems to manifest themselves, the first cases should have been started by the time of the 1982 Agreement. The Prosser Report, the slowness of resettlement, the submissions to the negotiations in 1981 and the experiences and claims of the Chagossians gave them the relevant knowledge. It is difficult to imagine any whose claims manifested themselves later than 1990, but again no such date with supporting justification are put forward in respect of any Claimant.
- Their argument appears to be that relevant facts were not disclosed. This is wrong. The Claimants knew of their injury, the change of conditions, who was responsible for that change, and that, save for the 1972 and 1982 Agreements, nothing had been done for them. They knew of the availability or lack of health care and what those who provided them with health care thought about the impact on their well-being of the change of circumstances in which they lived. If they did not, it was in any event an obvious question to ask. They could reasonably have been expected to inquire of medical experts and of lawyers as to their position. The section provides that it is irrelevant whether the Claimants knew that the acts or omissions of the Defendants amounted to negligence or a breach of duty of care.
- So, I conclude that the period of delay is between just under thirty years and a lesser period, unlikely to be less than ten years but varying from Claimant to Claimant, and in respect of which the Claimants have provided far too little material to sustain any argument that the delay is not of a very substantial scale, given the obvious starting point.
- The Claimants' reasons for any delay appear to be the Defendants' conduct in putting them in Mauritius and the Seychelles in the first place without proper provision, denying responsibility for them and not providing information. But these are inadequate reasons. The very existence of the cause of action is that they were displaced there without provision or adequate provision. They knew that all along. It is difficult to see what denial of responsibility or of information occurred which was relevant to this cause of action, or to delay.
- The only documents of any possible significance which were not disclosed were those which related to the concern that the resettlement scheme by way of pig breeding would be unattractive to the Chagossians. The Claimants appear in their amended Reply, however, to be making assertions related to the generality of their claims rather than focusing on the reasons for delay and any non-disclosure of documents relating specifically to a claim in negligence for personal injuries.
- Second, the reduction in the cogency of the Defendants' and Claimants' evidence by reference to the delay. I regard the Claimants' assertions as to the Defendants' evidence insofar as they relate to the personal injuries claim as wholly inadequate to justify any extension. The Defendants' evidence in relation to any duty of care or its breach may very well be confined to the written material in practice. But there are issues as to whether any Claimant suffered in fact the alleged personal injury eg was Claimant A depressed, did he or she suffer from stomach or respiratory disorders? The evidence of the Claimants was sufficiently unreliable to suggest that that itself would be a major issue. Yet how could that now be tested for a period of perhaps thirty years? Some of that may be a diagnosis unsupported by any medical evidence; if it is, there has been no disclosure of even one contemporaneous medical report to illustrate the point, nor of any hospital records. The Defendants' prospects of evidence challenging factual assertions as to past ill-health are obviously significantly and adversely affected.
- Even more problematic would be issues as to causation. In view of the absence of sound illustration as to the nature of even one individual's case, how it might be supported by expert evidence, medical history and personal testimony, it is difficult to see how any evidence in response from the Defendants could be other than immensely reduced in cogency. They do not have the opportunity to test any history with anything approaching contemporaneity. Whatever wrongs the Defendants did in the past, they could not now fairly defend themselves on that score.
- The evidence which the Claimants themselves called was to my mind the clearest proof of why the cogency of the evidence of both Claimants and Defendants would be seriously adversely affected. The evidence as to what happened to individuals in terms of accommodation and social security was usually self-contradictory and incomplete; what they did with the money which they received was at times problematic. The general picture must yield for these purposes to the specific details provided by individuals to what happened to them. Evidence as to the availability and use made of medical care was unreliable and incomplete. Evidence about when individuals became ill, and what form that illness took was likewise unreliable eg Mrs Elyse's and Mr Bancoult's evidence about his father's condition. It was of a piece with a general lack of reliability over the detail of the Claimants' evidence and yet the detailed reliability of each individual's evidence matters here. There was no evidence suggesting that what they had to say on an individual basis could be reinforced by medical records, and to what degree.
- Section 33(3)(c) deals with the conduct of the Defendant. I have already dealt with this in part in relation to the reasons for delay. The relevant conduct is that which relates to the negligence claim for damages in personal injuries, rather than the other claims. Such acts as were identified do not relate to delay or concealment or any other act relating to whether it was equitable for this claim to proceed. Certainly, no request for information and no refusal by the Defendants to supply requested information was identified for the purposes of this particular claim. General references to non-disclosure in the Vencatessen litigation and to a failure to provide unspecified information, which it was never said had been requested anyway, simply do not begin to grapple with the statutory provisions which the Claimants seek to invoke. The problems with reliance on non-disclosure in the Vencatessen litigation have been dealt with already; the Claimants face both ways on its significance for this case: what was disclosed to one, was not disclosed to all, yet what was not disclosed to one, was concealed from all. That litigation did not fully test discovery because it was settled. No fact, relevant to this cause of action, has been said, or plausibly said, to have been deliberately concealed. The Claimants may not have been aware of what transpired between the UK and Mauritius Governments in 1972 and onwards, or of the advice which the former received about the poor prospects of the pig breeding scheme, but this cannot advance their case. As Mr Howell pointed out, this shows that no assumption of responsibility, had been communicated to the Claimants, which is the opposite of what they wish to prove. In any event, the relevant agreements and the slowness of payment under the 1972 Agreement was a matter of contemporaneous public knowledge or ready ascertainment. The condition of the Chagossians and their health was known to them; they knew of the involvement of the Defendants in their removal. There were no equivalent agreements with the Seychelles but I do not think it plausible that the Seychelles Chagossians did not know or could not readily have found out, quite simply, about the Defendants' involvement.
- As to "disability" in section 33(3)(d), if a narrow view is taken of its scope, it is correct that no "disabled" Claimant has been identified for this claim, still less the impact of any such disability after the accrual of the cause of action. If "disability" is given a wider interpretation than section 38 would provide, so as to encompass illiteracy, the arguments in relation to this particular claim do not change. The information in question was not unknown because unread; it was available from what the Claimants could see had happened, from any medical notes which they could see being written and from any inquiries which they could make in person, or through their organisations or representatives, whether in Mauritius or in the Seychelles. Poverty and ignorance of the law are not relevant disabilities.
- Section 33(3)(e) requires a Claimant who seeks to persuade the Court that it would be equitable to allow his action to proceed, to provide some evidence about the promptness and reasonableness of what he did, once he knew that what the Defendant did or did not do could justify a claim in damages. Mr Howell submitted that this provision had not been addressed by the Claimants. That is correct.
- The pleadings imply that the Claimants or almost all of them had no relevant knowledge until 1998. But it is plain that the generality of Claimants knew of their uprooting, that that had been caused by the Defendants' actions and had led to the poverty, malnutrition, unsanitary, housing and the consequent physical and mental illnesses. If any Claimant had not known that, there were many Chagossians who would have put them in the picture without any difficulty upon a simple inquiry. The Claimants likewise knew that this might be capable of giving rise to an action either by the time of the start of the Vencatessen action, or at the latest by the time of the 1982 Agreement and the well-publicised withdrawal of that action. The reality is that the Bancoult Judicial Review and its outcome have nothing to do with the personal injuries claim. The documents disclosed may assist in arguing that the Defendants were negligent but it is not arguable that those documents reveal the ingredients of a cause of action for damages for personal injury which was hitherto unsuspected.
- The Claimants identify no steps which they took promptly, because their argument is the untenable one that the starting point for an examination of what they did is 1998 or later. Hence they impliedly contend that these proceedings were started reasonably promptly (albeit more than three years after the relevant knowledge was obtained). Even on that basis, they have not acted promptly. But that is not the real point. The real point is that they did nothing after the 1982 Agreement.
- After 1982, the Claimants face this problem. If, as most of the witnesses asserted, there was no individually binding settlement and the renunciation forms were ineffective, there is no reason for them not to have started proceedings at any subsequent time. If, as others thought, the upshot of the Agreement and the payment of money by the ITFB, merely meant that they could not sue until 1985 or for five years, there is no reason for proceedings not to have been begun by the late 1980s.
- I do not believe that that is what they actually thought at the time. All their actions show that, whether or not the precise mechanism was fully understood, they knew that there was a full and final settlement and they could not have money from the ITFB and bring a claim against the Defendants. They started no proceedings, although legal advice was available; their organisations started no proceedings for personal injury whether before or after the late 1980s. They made claims on the US Government. They never asserted that damages became payable again. Yet they knew that they were still living in poverty and that they had concluded that the ITFB money was insufficient, and thus they had every incentive to sue again.
- However, taking the Claimants' evidence at face value, they thought that they could start proceedings after 1985 or five years from the Agreement. But they did not do so. Their reasons were difficult to follow in view of the poverty and harsh conditions in which they were still living. They said they had no leaders; yet they elected representatives to the ITFB; they had organisations whether solely Chagossian or not; they had political contacts; they could obtain legal advice as to their position. Some in fact did so. Some asserted that they had been deceived by Mauritians; yet the evidence of that was no more than that there had been some letters or petitions suggesting full and final compensation in return for the giving up of claims, including at times but not always the right to return to Chagos. There was some potential for a conflict between the desire for Mauritius sovereignty eventually and a right of return to Chagos immediately, but there was and is a strong common interest in the islands becoming Mauritian. But they set up their own organisations led by Chagossians in 1983 to 1985, notably the CRG, so the alleged malign influence of those who had wanted to assist them, would by then have been neutralised.
- Mr Gifford felt that the reason for inaction was that the Chagossians had called their best shot in the 1982 Agreement and had thought thereafter that there was nothing they could do until documents emerged in 1997 and 1998 making a re-examination of litigation, buoyed by the success of Olivier Bancoult, feasible. I am not sure that that fully reflects the seeking of advice in the 1990s but as a conclusion I felt that it indicated that the Claimants had reached a final agreement with the Defendants in 1982. In any event, I do not consider that the events of the late 1990s had any real bearing on the personal injury claim, which was advanced to assist the limitation argument.
- The Seychelles Chagossians knew the same relevant facts at the same time as their counterparts in Mauritius or could readily have ascertained them. Some would have had an awareness of the 1982 negotiations, and that lawyers had been involved. I do not consider it realistic to conclude other than that they knew by 1982 at the latest that a damages claim might be capable of arising from any illnesses from which they suffered as a result of their poverty in changed circumstances. The pleadings do not differentiate between the Chagossians in this context.
- I have regarded the Chagossians who have given evidence relevant to the limitation issues as in effect giving evidence which is of general relevance to the Claimants. The Claimants correctly submitted that their individual cases were not test cases. But the purpose of the applications being considered was quite clear; the Claimants selected the witnesses whom they thought appropriate in order to explain and illustrate, not just what they thought of their individual position, but what the Chagossians as a community had or had not known or done. When it became clear that relevant witnesses were not being called to deal with these issues, the Claimants were given a further opportunity to call other witnesses who were supposedly better able to deal with the issues.
- Finally, section 33(3)(f). It is in relation to the obtaining of medical and legal advice that the highly contentious pleading, in paragraph 34(vi) of the amended Reply, to which I have referred is presumably made. It does not actually refer to any steps which were taken; it refers to the reasons why no steps were taken, by the "very large majority" of Claimants. It is said that the advice and access was not "real"; I assume it is meant that the opportunities were theoretical and some of the lawyers not skilled in the relevant areas. There was no legal aid. But, the assertions in the pleadings are simply and obviously wrong.
- It is clear that the Chagossians, at least in Mauritius, had access to both Mauritian and English lawyers. A few used that access personally and very many did so through representatives. To the extent that any Chagossians were not represented by those groups, many more were aware of their activities.
- In sequence, an illiterate Chagossian, with the support of a group of largely illiterate Chagossians, was able by 1975 to start legally aided litigation in the UK, having been put in touch with a firm which prides itself on being one of the few willing and able to take on such work. Mr Vencatessen had been able to use a Mauritian lawyer-politician and his contacts to instruct Sheridans. That case raised many of the issues now raised. It was quickly seen as a test case and generally beneficial. The description of it as a personal or family case, by some Chagossian witnesses, begs the question: each could have done likewise. No-one suggested some personal peculiarity possessed exclusively by Mr Vencatessen which entitled him alone to bring proceedings.
- Sheridans instructed distinguished counsel who provided advice on causes of action, the conduct of litigation, prospects of success and the reasonableness of the settlement. If Mr Allen's point is that "real" advice cannot be given until disclosure is complete (including disclosure of that which is privileged), it is nonsense.
- Sheridans visited Mauritius on three occasions. In 1979, the visit of English lawyers was not a secret. It was deliberately publicised by Sheridans. Their presence and activities were widely known. Of course, it is right that the advice given was short, was not tailored to individuals and may well have been partially grasped at best. But it was clear that access to English lawyers was possible and practical. The JIC continued to instruct Sheridans and to receive advice. Mr Ramdass went to the 1981 and 1982 negotiations on behalf of Mr Vencatessen. This was agreed to at a public meeting at which his role in relation to the Vencatessen case was explained it was obvious that that case related to the ensuing negotiations.
- Another group, the CIOF, also claiming to be the most representative, instructed Bindmans. They also, through a circuitous route, were able to instruct one of the other of the firms which Mr Gifford regarded as able to do this type of case. Bindmans also instructed distinguished counsel. They advised the CIOF before, during and after the 1982 Agreement. They regarded themselves as advising the Chagossian community, because of the representative nature of the CIOF. Their presence and role was publicised.
- Bindmans were again instructed in 1990 and 1995 by the CIOF and then by the BIOT Social Committee. The advice given covered many areas of relevance to those proceedings including the effect of the renunciation forms and the problems of limitation.
- These bodies did not exist in a vacuum; representatives were elected to the ITFB, CIOF members brought an action against the ITFB in 1991 to obtain documents so that Bindmans could advise on them; the CIOF obtained 812 signatures in 1994 for the Common Declaration of the Ilois People and the BIOT Social Committee claimed to represent 1,000 people.
- There were other lawyers, in Mauritius, who provided advice or could have done, notably Mr Duval, Mr Ollivray and Mr Lassemillante. It is all very well Mr Bancoult saying that the latter was always talking about human rights but was ineffective. There was a real opportunity for advice. Chagossians could have sought advice about a personal injuries claim from a wider range of lawyers than might have been available for a misfeasance claim.
- There is no evidence that medical advice about the possible causes of the conditions from which they suffered was ever sought; perhaps it was regarded as obvious.
- I do not consider it reasonable to suppose that a Court might regard it as equitable to extend the time for bringing the personal injuries claim. As Mr Howell pointed out, it was inherent in the negotiations in 1982 that there might be a claim by Chagossians. If it was thought that it had then been settled, it cannot now be said that those who took that view, even if wrongly, should now be entitled to sue. Those who were not of that view, chose not to proceed with a personal injuries claim.
- The UK Government paid a substantial sum by way of settlement twenty years ago. The settlement was considered to be reasonable by two experienced firms of solicitors advised by leading English counsel. If the Claimants thought that there had been no effective settlement, they could have sought advice.
- The Seychelles Chagossians did not benefit from that settlement but there was sufficient knowledge among them that it had occurred and that the ITFB would distribute money, for them to have been put on inquiry as to whether they too should pursue an action as Mr Vencatessen had done. It would have been quite simple for them to be in touch with the CIOF, Mr Berenger, Mr Michel and Mrs Alexis to find out how matters had evolved. Mrs Alexis had been to the Seychelles in 1980 and, I am quite sure, did explain what was happening at least in broad terms. Seychelles Chagossians knew enough to attempt to make claims on the ITFB, albeit unsuccessfully. It would not have been difficult, at any stage, for contact between the two groups to have revealed the names of the solicitors and to pursue the claims.
- They may not have done so because of a fear of the Seychelles Government, which might not have welcomed a group of what it saw as Seychellois obtaining benefits which other Seychellois could not. This feeling may have been initially more intense at the time of the "Liberation Day" coup, but I have had no evidence which suggests that it was an abiding fear through till 1998 when, just coincidentally, Mauritian Chagossians instructed Mr Mardemootoo.
- Accordingly, I conclude that the Claimants have no reasonable prospects of persuading a Court that it would be equitable to direct that this action for damages for personal injuries be allowed to proceed.
- Section 17 of the Limitation Act operated so as to extinguish any title which the Claimants might have had in any property on the Chagos by say 1979 (twelve years from the acquisition from Chagos Agalega Company Limited) or 1983-1985 (twelve years from the removal of the Chagossians). No claim in relation to a breach of trust has been alleged. Mr Taylor submitted that the extinguishment of title left intact any other remedies which the Claimants might have in respect of their property. This is misconceived. If there is no title, they have no cause of action or rights to be enforced by remedies.
The Specific Issues
- There were fifteen issues which I ordered to be dealt with. Although the issues developed, as a result of the evidence and submissions, beyond the precise scope of the questions contained in the amended Schedule to my Order of 26th September 2002, it would, I feel, be useful to set out in one place, my conclusions on those defined issues.
- There are Claimants who arguably could show that they were compulsorily removed by the Defendants from Chagos. The compulsory removals were arguably unlawful. There are Claimants who were unable to return to the Chagos but those who arrived in Mauritius in 1967 and 1968 were not arguably prevented from returning by the Defendants. Nor were the Defendants under any arguable obligation to assist their return. After the evacuation of the Chagos, the Defendants have forbidden their return to any part (subject to scope for individual permits) until the 2000 Immigration Ordinance. It is arguable that any reliance on section 4 of the 1971 Immigration Ordinance to inhibit return to Chagos was unlawful.
- There is however no prospect of the Claimants showing that the Defendants enacted the 1971 Immigration Ordinance knowing or being reckless that it was unlawful, or that any removal or prevention of return whether before or after 1973 was unlawful.
- There is no arguable tort of unlawful exile.
- There is no arguable duty of care to take reasonable steps for the well-being of the Claimants, as pleaded in paragraph 87 of the Group Particulars of Claim. There is an arguable duty of care to take reasonable steps to avoid personal injury to those who were compulsorily removed from BIOT between 1971 and 1973 but it is not a continuing duty. It arose upon removal and accrued when personal injury resulted, subject to the effects of the Limitation Act.
- It is possible that some Claimants or their successors may be able to show that before 1967 they had real property interests in BIOT. The Crown acquired land in BIOT for a public purpose in 1967 by the agreement of 16th March 1967 pursuant to Ordinance No 2 of 1967. It is not arguable that any such rights were not thereby acquired and extinguished or extinguished by a later Ordinance even though it is arguable that that Ordinance of 1967 was ultra vires. If the Claimants had any surviving real property rights, it is arguable that the 1983 Courts Ordinance required those rights to be adapted from the Mauritius Civil Code into English law.
- The Constitution of Mauritius did not arguably apply to any part of BIOT after the creation of BIOT, and could not override any BIOT legislation. If it had done, its effect would arguably not have been removed by the 1983 Courts Ordinance.
- The matters pleaded in paragraph 96 of the Group Particulars do not constitute the tort of deceit. There is no real prospect of any Claimant showing that any false statement of existing fact was made to a Claimant by or on behalf of the Defendants, that it was intended that it should be acted on by that Claimant to his detriment or that any Claimant did so act. Although it is arguable that false statements of fact were made to third parties by the Defendants, it is not arguable that they were made so that the Claimants would act on them to their detriment. It is arguable that some third parties omitted in consequence to do what otherwise they would have done to support the Ilois or oppose the UK's defence policies or both, and that that was intended.
- The Claimants have no prospects of success of recovery in view of the Limitation Act and any title to land in BIOT was extinguished at the latest by 1985 by the operation of section 17 of the Limitation Act 1980.
- The present proceedings involve an abuse of process by the Claimants whom I have identified as a result of the signing of the renunciation forms. It may or may not be an abuse for other Claimants, which would have depended on their evidence. There are no other abuses involved.
- These questions do not specifically cover the claim for a declaration as to the right to return to Diego Garcia, to receive assistance in doing so and in achieving in the Chagos a certain lifestyle. It is however plain from the conclusions which I have expressed that I do not regard the claim for the latter declaration to be arguable. The former is unarguable on the basis pleaded, which does not involve an attack on the vires of the 2000 Immigration Ordinance, by reference to the relevance under Section 11 of the BIOT Order of UK and Colonies defence interests. Those conclusions were arrived at in the course of dealing with the specific issues, notably misfeasance and exile.
- I shall hear counsel on the precise form of Order, but the Defendants succeed on their application for summary judgment against the Claimants. Had I not been of that view, there are a few passages in the Claimants' pleadings, which I give leave to serve, which I would have struck out as vexatious. Principally, however, I would have stayed proceedings until a proper questionnaire, relevant to all the claims in question had been drafted and filed, and I would have required Particulars of Claim to identify by category which Claimants pursued which claims. I would have required the many deficiencies in the pleadings to be remedied thereafter.
APPENDIX TO JUDGMENT
1-55 The creation of BIOT
56-30 Events leading up to the evacuation of Diego Garcia
331-369 The evacuation of Diego Garcia
370-404 The closure of Salomon and the evacuation of Peros Banhos
405-437 Resettlement in Mauritius and the Seychelles
438-528 The Vencatessen litigation
529-567 The Vencatessen litigation
568-614 The 1982 Agreement
615-744 The implementation of the 1982 Agreement
745-795 The further claims of the Chagossians
Note: The asterisk marks a document relied on by the Claimants in the misfeasance claim; two asterisks mark one upon which they placed particular reliance. P, R, D, ND indicate from the Claimants' markings or omissions, as best I could interpret what was not always a consistently applied methodology, those documents upon which the Claimants here relied on for their misfeasance case but which were claimed by the Defendant in the Vencatessen case to be Privileged, or were supplied in a Redacted form, were Disclosed or were Not Disclosed on the list at all.
Events leading up to the creation of BIOT
- In 1962, the Chagos Agalega Company Limited acquired the freehold of the greater part of Diego Garcia, Peros Banhos, the Salomon Islands and Agalega from the Mauritian companies which owned them. It saw an opportunity for a profitable coconut based enterprise, reversing the steady economic, and population, decline of the islands.
- In February 1964, official discussions began in secret and in earnest between US and UK officials over their defence interests in the Indian Ocean. The US had no bases between the Mediterranean and the Philippines. Increasing influence and interest was being shown by the USSR in countries bordering the Indian Ocean. The US wished to be able to counter communist encroachment and to have a facility from which it could deal rapidly with situations developing in the countries around the Indian Ocean. It wanted to develop an island for a communications facility, anchorage, airfield and other related purposes. This was seen to be beneficial to UK foreign and defence interests, especially as its own presence east of Suez was diminishing. Diego Garcia was not the only island discussed but it was an important part of the discussion.
- This proposal was very sensitive because of the reaction expected from countries hostile to the UK and US, and from others who simply did not wish to see a US presence in the Indian Ocean, a hostility expected to be expressed at the United Nations.
- Mauritius and the Seychelles already enjoyed a considerable degree of local independence and some local politicians were feared likely to be hostile to such a development. The independence of Mauritius was imminent, and the independence of the Seychelles was at least anticipated. All of this meant that the defence facility could not be provided on an island or islands which might become subject to hostile political control. The islands which might be required therefore had to be separated from local control and detached from the colonies to which they were dependencies. That could only be done in consultation and in agreement with the Governments of the Seychelles and of Mauritius. Whatever the legal position, a variety of political reasons, including the assuaging of a hostile reaction at the UN and depriving the USSR of an argument with which to inflame hostilities, meant that such consent was necessary.
- The proposal was agreed: the US would provide the defence facilities, to be shared with the UK; the UK would provide land, and provide for population resettlement and any necessary compensation.
- An internal Foreign Office ('FO') minute of 11th May 1964, (4/03) shows an awareness of other risks at the UN. The partial disruption of a nation's territorial integrity was incompatible with the UN Charter. Article 73 of the Charter, to which the Claimants' submissions attached great weight, required "non-self-governing territories" to be administered according to the principle that the interests of the inhabitants were paramount. They had to be developed towards self-government with full regard for their culture, their economic and social advancement, and they had to be protected from abuse. Information about conditions in such territories had to be transmitted regularly to the UN Secretary-General.
- But the FO also said internally that fear of criticism should not prevent the UK pursuing "perfectly legitimate constitutional arrangements in support of genuine defence interests ".
- On 30th May 1964 a joint US/UK memorandum recorded agreement on the next political steps towards implementation of the proposal, with the aim of minimising adverse reaction at the UN: a survey of the islands (Chagos Archipelago, Agalega and Aldabra) to determine their suitability for defence purposes, administrative arrangements for the islands selected and "the repatriation or resettlement of persons currently living on the islands selected". This survey should be done "to attract the least attention and should have some logical cover ", (4/7).
- The memorandum reveals a concern that, if the intentions of the US/UK became known, the plans would be undermined by a campaign mounted by the USSR which Afro-Asian nations would feel obliged to support, but it was recognised that the third step involving "the transfer of populations no matter how few is a very sensitive issue at the UN." This should be undertaken on the basis that "the populations must be induced to leave voluntarily rather than forcibly transferred. This may necessitate a readiness to spend more funds and energy than might normally be expected." The need for discretion was emphasised by the fact that the UN Committee of 24, which dealt with non-self-governing territories was considering Mauritius and the Seychelles for the first time in May 1964.
- It was also recommended that if the survey could not be carried out without revealing the true intentions behind it and an announcement therefore had to be made as to what was going on, "the line taken with regard to those persons now living and working in the dependencies would relate to their exact status. If in fact they are only contract laborers rather than permanent residents, they would be evacuated with appropriate compensation and re-employment. If, on the other hand some of the persons now living and working on the islands could be considered permanent residents, ie their families have lived there for a number of generations, the political effects of their removal might be reduced if some element of choice could be introduced in their resettlement and compensation." No reference was made to the possibility of their remaining there.
- For the purposes of the first step, an Anglo-American survey team visited the islands from mid July to mid August 1964. The report of the survey was prepared by Mr Robert Newton of the Colonial Office *(4/12)(D); it is a long report but it is important for the reliance placed on it by the Defendants as showing the official state of knowledge as to the Chagos population before the creation of the British Indian Ocean Territory ('BIOT'). The report describes its purpose as being to "determine the implications for the civilian population of strategic planning, and especially to assess the problems likely to arise out of the acquisition of the islands of Diego Garcia and Coetivy for military purposes." The primary problem was the "practicability of providing continued and congenial employment and of evaluating the social and economic consequences of moving island communities". The only other island in which a strategic interest was said to be likely was Aldabra, (which was more noted for its turtles).
- The total population of Diego Garcia in 1964 was reported to comprise 483 people of whom 172 were Mauritians and 311 Seychellois. The population of Peros Banhos was 291 of whom 30 were Seychellois. The population of Salomon was 219 of whom the vast majority were Mauritians and the population of Agalega was 371, of whom about 90% were Seychellois. This made a total population including children of 1364, some 80 or so fewer than in 1960, though the population of Diego Garcia itself had gone up in that period. There were only 3 people unemployed on Diego Garcia and Peros Banhos and a further 7 unemployed on Agalega.
- The acquisition of the islands by Chagos Agalega Company Limited in 1962 was described. Mr Paul Moulinie's conclusion in March 1963 as to the scope for copra production in the islands was referred to: although Diego Garcia had been very badly neglected, it was capable of increasing its output considerably, and labour should be retained at its present level for the time being. A labour force of 80 was adequate for Peros Banhos and no increase in labour force was required for Salomon. The report commented that Mr Moulinie's appraisal was not objective but was rather a prospectus designed to raise speculative capital.
- Paragraph 24 of the report referred to the difficulty of recruiting labour for Diego Garcia and to the fact that it was recruited from Mauritius and the Seychelles. All the Seychellois labourers and 7 Mauritians were said to be under contract. The report continued:
"There is certainly little trace of the sense of a distinct Diego Garcian community described by Sir Robert Scott in his book 'Limuria'. Sir Robert Scott holds that 'physical characteristics of the island have made the Diego Garcians more down and hard headed than the residents in the other islands'. They are said to be 'more diligent in supplementing their basic rations and their cash resources than the other islanders'.
In the postscript to his book Sir Robert Scott discusses the impact of change and makes a plea 'for full understanding of the islanders' unique condition, in order to ensure that all that is wholesome and expansive in the island society is preserved'."
- Mr Newton reported that, judging by conversations with the manager, and with others on the island, most of the inhabitants of Diego Garcia would gladly work elsewhere if given the opportunity. Four fifths of the labour force were said to be Seychellois on short term contracts. He said that there were grounds for concluding that the evolution of life on Diego Garcia was fostered by the easy-going ways of the old company rather than by an attachment to the island itself.
- In paragraph 26, Mr Newton dealt with the population make-up:
"Of the total population of Diego Garcia, perhaps 42 men and 38 women with 154 children, might be accepted as Ileois. According to the manager 32 men and 29 women made relatively frequent visits to relatives in Mauritius and perhaps no more than 3 men and 17 women including a woman of 62 who had never left Diego Garcia, could really be regarded as having their permanent homes on the island. The problem of the Ileois and the extent to which they form a distinct community is one of some subtlety and is not within the grasp of the present manager of Diego Garcia. But it may be accepted as a basis for further planning that if it becomes necessary to transfer the whole population there will be no problem resembling, for instance, the Hebridean evictions. Alternative employment on a new domicile under suitable conditions elsewhere should be acceptable."
- In paragraph 35, Mr Newton said:
"HMG should therefore accept in principle responsibility for facilitating re-employment of the Mauritians and Seychellois on other islands and for the resettlement in Mauritius and the Seychelles of those unwilling or unable to accept re-employment. Settlement schemes would have the additional advantage of retaining the Diego Garcian labourers as a community subject to supervision and guidance. Very few are wholly ignorant of life in the main islands and the conditions of the Black River area of Mauritius might well be suitable for dispossessed Ileois. Even so, some guidance will be required. The cost will be relatively heavy."
- Mr Newton recognised that Mr Moulinie had plans for increasing his labour force especially on Agalega, albeit that some Ilois might be reluctant to move there. The report also dealt with the administrative arrangements on the island and the way in which they had evolved their own way of life and self discipline. He considered that the islands were being drawn more closely into the Seychelles sphere of influence, a pull likely to be increased with the advent of Chagos Agalega Company Limited. There was nothing remotely resembling life in modern Mauritius.
- In paragraph 67, he dealt with compensation for Mauritius.
"HMG should assume responsibility for Mauritians evicted from the islands and likely to lose their traditional livelihood. The cost of transfer to other islands and of the construction of houses should be borne by HMG as part of the disturbance element in compensation due to the Company. Otherwise the cost of resettlement in Mauritius should be met. Payments, of this nature however, are obligations towards private persons rather than to the Government of Mauritius."
- In his summary, Mr Newton considered that expenditure had to be directed towards the resettlement of dispossessed labour unable or unwilling to find work in other islands and pensions for islanders beyond active work. Although there should be no obstacle in principle to the transfer of labour and there was a plan to increase the labour force in Agalega, resettlement on Mauritius or the Seychelles was not thought likely to involve more than a small residue of the existing island population.
- It is this report, which on the material before me, appears to have been relied on at the time of the creation of BIOT, although on many subsequent occasions, Ministers sought further information as to the numbers and status of Ilois. Mr Allen said that it was "slanted" so as to advance defence interests; it did not strike me in that way rather it seemed to me reasonable for Ministers to take steps in reliance upon it.
- Mr Allen pointed out, perfectly correctly, that they also had available to them the book "Limuria" written in 1961 by a former Governor of Mauritius, Sir Robert Scott, about mid-50s Chagos, which described a "permanent" population of 1500. By this he meant "the islanders" who had been there for generations, many two or more, some for five or more. Mr Allen suggested that the Newton Report presented an atypical analysis, neither consistent with earlier material, of which "Limuria" was but an exemplar, nor with the FO's or BIOT's later surveys.
- That is not correct. Mr Beal produced a careful analysis of the census and other survey figures for Chagos from 1883 onwards. None contain a separate figure for Ilois. The total population figures though the 1950s for the three islands drop from about 1100 in the early 1950s to 900 by the late 1950s, to 747 in 1962. This is all consistent with the evidence of economic decline. It is the Scott figure, if any, which is out of line. Mr Newton's overall figure of 993 with 483 on Diego Garcia is not significantly out of line. The figures for the islands thereafter fluctuate: 793 (431 Ilois), 924 (487 Ilois), both in 1967, the latter reflecting the last major recruitment, to 807 (434) in 1968, 691 (422) and 652 (350) in two 1969 visits, 680 (343) in 1970 and 630 (387) in February 1971. It is the number of Ilois, which was neither a readily defined nor ascertained category, which gave rise to the greater fluctuation in assessment. But the Newton report adverts to that problem of assessment and Ministers continued to seek more refined information. Mr Gifford produced in the Bancoult Judicial review (13/301) figures for births and deaths on the three island groups over similar periods of about 70 years; the registrations, assuming them to be only of Ilois which is not clear, show neither birth rate, nor population, nor do they relate to the same individual. For Diego Garcia it suggests a crude average of 20 births a year, 14 for Peros Banhos and 9 for Salomon. This advances matters very little.
- Mrs Talate's portrayal of life on Diego Garcia in her witness statement was largely unchallenged for the purposes of these proceedings and was adopted by a number of Chagossians in their witness statements. It was plain, at the conclusion of her evidence, that her statement bore no resemblance to anything which she might have said in her own words, by its style, phraseology or language. But the general picture was supported by other evidence and I am content for these proceedings to accept it as a reasonably accurate picture of life in the 1960s on Chagos, though seen through longing eyes and a misty recollection, engendered by the passage of time in a fairly wretched life in Mauritius.
- There was a house for each family with a garden or land around to provide vegetables or poultry or pigs to add to the variety of the diet yielded by the company's rations. Fishing added to its variety. Many types of work were available, though mostly in the copra industry; there was also domestic work for women, construction, administration and fishing or boat building for the men. The small population had a varied, healthy diet, with no unemployment. The educational system, on Diego Garcia a missionary school, provided no more than was necessary for such a lifestyle; values were taught. They rarely handled cash. Contract workers had to sign contracts but never Chagossians. (She was clearly wrong about that.) There was no "mad rush, we all lived according to our own rhythm", without fear, stress, hunger, poverty or misery.
- There was a community life, peculiar to the islands, which had their own food, drink, games and festivities. It was a religious, Roman Catholic community. The work, diet and life led to few diseases, but every so often, people would have to go to Mauritius for medical treatment. The climate was benign. From here, they were "forcefully removed"; there was no elaboration in the statement as to what "forcefully" meant, from violence, to threats, to an absence of choice. This vagueness was common and potentially misleading.
- In October 1964 a Colonial Office minute, *(4/38)(ND), to the Secretary of State recommended that the Chagos Islands be detached from Mauritius to enable the development of defence facilities on Diego Garcia, which was described as "a coconut island whose present population under 500 is largely contract labour from Seychelles". The Mauritius Prime Minister had reacted "not unfavourably" to the proposed detachment but compensation would clearly be required. The figures reflect the Newton report.
- In January 1965 the US Embassy wrote to the Foreign Office Permanent Under-Secretary's Department stating that the consequence of the survey group report was that they had concluded that it was Diego Garcia which had the most potential for US military requirements, (4/42). They anticipated starting construction work in 1966 and being operational by 1968. They asked for the entire Chagos Archipelago to be detached both in the interests of security and so as to have other sites available for future contingencies. They also asked for other islands to be detached from the colonies to which they were dependencies. The Foreign Office enquired of the US Embassy (4/44) as to whether the islands would need to be completely cleared of population and if so which and when and whether local labour could be used on the proposed facilities. The reply on 10th February 1965 (4/52) was that there was no reason to re-locate population prior to an island's coming into use for defence purposes, other than Diego Garcia's if Diego Garcia were needed. Practical problems were raised about the use of local labour for construction work. The Officer administering the Seychelles Government wrote to the Colonial Office ('CO') in June 1965, (23/39), saying, in the course of a letter dealing with land valuation and resettlement, that for costing he had assumed that all "locals" would be evacuated from the islands taken, but he would be delighted to be wrong.
- In a memo of 30th January 1965, **(4/45)(P), the Secretary of State for the Colonies told the Foreign Secretary that the islands had "few if any permanent inhabitants; contract labour works on them for limited period producing copra" but "substantial compensation payments both to dispossessed land owners and islanders and to the Mauritius and Seychelles governments would be involved. Resettlement problems might arise." By 25th February, the Foreign Office was estimating that clearance of the populations from all the Chagos group was not a likely eventuality. A resettlement cost for Diego Garcia, Peros Banhos and Salomon was put at approximately £350,000. A brief for a meeting between the Foreign Secretary and Dean Rusk, the US Secretary of State, in May 1965, **(4/56)(ND), said that it might be pointed out that "we were taking great care to see that the local inhabitants were fully protected" in the context of a unique opportunity to detach "the small and barely inhabited islands for strategic purposes". The references to the population reflect Mr Newton's report, paragraph 23.
- By June 1965, Chagos Agelaga Company Limited had become aware of rumours about defence facilities. It was recognised by the Treasury that, before the Mauritius and Seychelles Governments were approached which should be done soon, it was necessary to be clear on the compensation to be paid. The increasing cost of detachment, including compensation, led the US to agree to fund part of the cost by way of set-off from payments due to the US for Polaris submarines. The total cost of detachment was now estimated to be in the region of £10m.
- In July 1965 the United Kingdom Government opened negotiations on detachment with the Council of Ministers in Mauritius and the Executive Council in the Seychelles, (12/182). Negotiations with the Seychelles proceeded on the basis that compensation would include the costs of resettling displaced labour and that the use of local labour would be difficult for the Americans. The new civil airport for the Seychelles would generate significant employment and other economic benefits. The Mauritius Government was to be told that the US Government was insisting on complete constitutional and administrative detachment and that leasing or defence agreements with Seychelles or Mauritius were not possible, (19/76a). Compensation needed for the consent of the two Governments would include the resettlement costs of displaced labour. American use of local labour was unlikely. It was intended, according to a telegram from the FCO to the Governor of the Seychelles, *(19/76e and 4/77), that people from Diego Garcia should be resettled in the outer islands rather than in Mauritius or the Seychelles and that the resettlement of people from the other detached islands was to be avoided. As many Ilois as possible would be re-settled on Agelaga.
- High Commissions were briefed, *(4/67)(P), that the population of Diego Garcia was about 500, "almost all contract labour". The Canadian High Commissioner told, *(4/82)(ND), the Canadian Head of the Commonwealth Division, as part of the information given to some countries to enlist their help at the UN that the Chagos population was "mostly contract labour from Mauritius and the Seychelles", meaning that they were not permanent residents. But the Canadian Government had sought more information which the High Commissioner asked the Commonwealth Relations Office to provide. The same point was made to the UK Embassy in the Philippines, (9/1962). The information reflected the Newton report.
- A memo, **(19/68a), from an official in the PIOD of the FO dealing with the detachment of the Islands sought to respond to points raised by another official about its administrative implications. The legal means of detaching Chagos was dealt with. The High Commissioner's only initial administrative task would be "the evacuation of the population of Diego Garcia and their resettlement elsewhere". An important point had been raised about improving the administration in the islands, which "were managed by plantation owners by methods that are almost entirely feudal". The publicity which would be given to the "compulsory evacuation" of Diego Garcia, which was anticipated to be in the near future, would generate strong demands for improved administration in the dependencies of Mauritius and Seychelles, which in context means the islands which were to make up BIOT.
- Although this process had been carried out in secret, the UK Government had been aware that questions might well be asked about it at the UN, by the Committee of 24 and prepared its answers accordingly. They dealt with the anticipated status of the islands, their progress to self-government, and if there were no local inhabitants left, what arrangements would be made for the present inhabitants. The Colonial Office advised the UK Mission to the UN to say that the Government's understanding was that "the great majority" of the population were contract labourers on the copra plantations on the islands but that there were a small number of people who had been born there and in some cases their parents had been born there too. In a phrase on which the Claimants put weight, the memo of 28th July 1965, **(4/84)(ND), continued: "The intention is, however, that none of them should be regarded as being permanent inhabitants of the islands". The islands were to be evacuated as and when defence interests required. "Those who remain ... will be regarded as being there on a temporary basis and will continue to look either to Mauritius or to Seychelles as their home territory". The memo emphasised that "there will be no permanent inhabitants ... those remaining ... will have no separate national status". In the absence of permanent inhabitants, no question of their constitutional development could arise. Details of the arrangements had yet to be settled. The internal Colonial office advice was therefore that the facts were to be made to fit or presented as fitting the assumptions upon which BIOT had been created. But this was neither a final nor consistent position.
- In September 1965, during the constitutional conference at Lancaster House on the forthcoming independence of Mauritius, there was a meeting between the Prime Minister of Mauritius, Sir Seewoosagur Ramgoolam, and the Colonial Secretary at which the detachment of the Mauritian islands was discussed. The Mauritian Ministers present in London agreed to the detachment of the Chagos Islands in return for up to £3m in compensation, other benefits, the retention of mineral rights and the return of the islands once they were no longer required for defence purposes, (4/101). This was in addition to the payment of compensation to the landowners and the costs of resettling others affected from the Chagos. The possibility of a land resettlement scheme was touched upon and Mauritius agreed to produce some ideas. By October 1965, the agreement of the Mauritius Government and of its Prime Minister had been confirmed, (4/98). This was formalized in February 1966; the money was to be used in development projects which were to be agreed.
- There was no process of consultation with the islanders and no part of the Mauritian islands were included within any constituency for the Mauritius Legislative Assembly; there was a Seychelles MP within whose constituency the Seychelles islands fell, but all discussions at this stage were confidential.
- In a memo from Mr Greenwood, the Colonial Secretary to the Prime Minister dated 5th November 1965, *(4/109)(P), he summarised the agreements reached with the two colonial governments, the compensation and resettlement provisions, the political hostility which the new colony could generate at the UN "in an period of decolonisation", and the pressure which would be placed on Mauritius to withdraw its consent unless the creation of BIOT could be presented as a "fait accompli" according to a rapid timetable which was then set out. It was to be done before the UN Fourth Committee started discussing the Indian Ocean islands.
- On 8th November 1965, the BIOT Order in Council, SI 1965/1920, was made. It detached the islands of the Chagos Archipelago from Mauritius, and Aldabra, Farquhar and Desroches from the Seychelles; it created a new territory, BIOT. The Governor of the Seychelles was appointed to be its Commissioner. It provided for the continuation of Mauritian law in the islands detached from Mauritius and for the continuation of Seychelles law in the islands detached from Seychelles, subject in each case to any necessary modification.
- The detachment of the islands was effected under the Colonial Boundaries Act 1890, and the Constitution of BIOT within the same Order in Council was made under the Royal Prerogative. The Commissioner's powers effectively made him head of the Government of the Territory on behalf of the Crown, and also its legislature. He had power to make laws "for the peace, order and good government" of the territory, which had been created for the purpose of establishing defence facilities for an "indefinitely long period" according to the UK/US Agreement. There were Royal Instructions which prohibited the enactment of certain laws and regulated aspects of the manner in which enactments were framed.
- The Colonial Secretary announced the creation of BIOT in a written answer to the House of Commons on 10th November 1965, (4/103, 127); he referred to the agreements of the two governments to the detachment, to the intention that the islands would be available for UK and US defence facilities and to the population of the islands, approximately 1,000 in the Chagos Archipelago and rather smaller numbers in the others and recorded that "appropriate" compensation would be paid.
- On the same day, following discussions with the Colonial Office about how those populations should be described, the Governor of Mauritius released a press statement, (4/128), in the form of a more extended answer to the House of Commons than was in fact given to it. It referred to the £3m for expenditure on development projects to be agreed between the UK and Mauritius Governments. It said that the population of the Chagos Archipelago consisted "apart from civil servants and estate managers, of a labour force, together with their dependants, which is drawn from Mauritius and Seychelles and employed on the copra plantations". There were 638 Mauritians on the Archipelago of whom 176 were adult men employed on the plantations.
- The draft guidance from the FO and CO to embassies and High Commissions about the creation of BIOT referred to there being "virtually" no permanent inhabitants, *(4120)(D). The disadvantages of there being "virtually" no permanent inhabitants was that that implied that there were at least some, albeit small in number, who were permanent inhabitants of the Chagos with all that that might entail in terms of their rights under Article 73 of the UN Charter, and the inhibition which that might place upon their removal to make way for the defence facilities. The political hostility which could be fomented with so potent a weapon to hand was obvious. Part of the thinking behind the creation of BIOT in the first place had been to avoid the obligations towards an indigenous non-self-governing people which Article 73 imposed. In a foreshadowing of bitter comments which were to be made in 1982 by the Ilois, the existence of a small permanent population on the Falklands which the colonial power might wish to protect and whose rights it might wish to assert, was seen as a potential point of contrast which others could use against the UK. The memo of 9th November 1965, *(4/118)(P), from the UK Mission to the UN to the FO said that these difficulties would not arise if "we could say that there are (repeat are) no permanent inhabitants but the use of 'virtually' seems to preclude this". Further information about the numbers of "permanent" inhabitants was thought to be useful. The reply, *(4/125)(P), recognised the difficulties and that it could not be asserted that there were no permanent inhabitants, advantageous though that position would have been. It was advised that all references to "permanent inhabitants" be avoided. This advice underlay the formulations seen in the guidance for answers to the press. If questioned, the advice was to say that the Government had their interests very much in mind; many details had yet to be worked out. Similar advice was given to the Governor of Mauritius. This is internal advice to avoid saying what was untrue, without at the same time saying what the truth was.
- This problem about how to describe the inhabitants of the Chagos who were born there or whose parents had also been born there, without declaring them to be permanent inhabitants, continued to tax the FO and the CO, with intermittent requests for more information about them.
- On 12th November 1965, **(4/130)(ND), Mr Jerrom of the CO had also written to Sir Hilton Poynton, Permanent Under-Secretary at the Colonial Office, saying that there was one awkward point which the Secretary of State wished to know about. "It is: how can we avoid treating the new territory as a non-self-governing territory under Chapter XI of the Charter? The answer to this question depends on the status and treatment to be accorded to the civilian population who remain in, or go to the Islands". He said that in 1964 the understanding was that any population of the islands would be dealt with in such a way that they need not be regarded as "belongers", which would be reasonably straight forward if they were settled elsewhere or given citizenship rights elsewhere and then employed in the Islands under temporary residents' permits. He now understood however that only one of the islands would be taken and so the treatment of the civilian population in the other islands would require early consideration. This was recognised as an awkward problem and, because the inhabitants would not be removed from any of the islands until the islands were required for defence purposes, it would make it very difficult to avoid having to report on the new territory under Article 73 of the Charter. The matter was being discussed against the possibility that an awkward question would be asked in the House of Commons about this point. The hope was expressed by officials that it would be possible to avoid answering the question. One said: "I have no doubt that the right answer under the Charter is that we should [transmit information to the United Nations] for the territory is a non-self-governing territory and there is a civilian population even though it is small. In practice however I would advise a policy of "quiet disregard". Hence the recommendation that it would be advantageous from the UN point of view to put into effect a general resettlement programme. The question was raised for discussion and advice; the issue was to be ducked if possible.
- By a telegram dated 12th November 1965, (4/132), the Secretary of State for the Colonies to the Governor of the Seychelles said that the resettlement of populations would not be a serious problem, but that it was essential that contingency planning for the evacuation of the population from Diego Garcia should begin at once. The CO could not say, it told the Governor of Mauritius, that there were no permanent inhabitants, however advantageous that might have been, (4/134 and 136). However, because of a receding US interest in Diego Garcia for the time being, the plans, when prepared, were to remain contingency plans because there was no immediate need to evacuate anyone. The most urgent problem was to find a satisfactory basis for compensation. Mr Jerrom's memo of 18th November made it clear that his suggestions were given "very much as a first thought" and that legal advice would have to be taken on the local status of the persons and the nature of any UN Charter obligations, (4/116). One of the reasons why the issue of compensation had to be settled quickly was that Mr Paul Moulinie was complaining bitterly about what he saw as an intended forcible expropriation of his property; and his co-operation would be necessary if he was to be persuaded to take people from Diego Garcia to work on the Agalega plantations, if they were willing to go there and if the UK Government paid for the cost of housing there (4/138).
- In an exchange of memos between FO and CO officials on 18th and 19th November 1965, **(4/115-117)(ND), each continued to advise against references to permanent inhabitants; they could be referred to instead as Mauritians or Seychellois.
- Mr Jerrom's memo said that he thought it would be highly desirable from the UN point of view "to put into effect a general resettlement programme" which could tie up with arrangements for procuring the use of land on islands belonging to private citizens. "One idea which occurs to me, probably impracticable, is that people at present engaged in copra plantations on the islands might be given some sort of alternative either resettlement in Mauritius or Seychelles, or continued engagement under contract in the islands with a temporary residents permit". It would be necessary to think about their "belonger status" and their rights of representation in the legislative assemblies of Mauritius and Seychelles. "Subject to New York views I think that the best wicket for us to bat on in the United Nations would be that these people are Mauritians and Seychellois; that they were making a living on the basis of contract or day-to-day employment by the companies engaged in exploiting the islands ." They would be resettled in Mauritius or Seychelles when the defence facilities made those operations impossible and insofar as they could continue, they would do so with temporary residents' permits.
- This line was approved by Mr Hall in a minute to Mr MacKenzie quoting what Mr Robert Newton had said following his 1964 survey, namely that the people on the islands "could not be regarded as permanent inhabitants, but were in fact in the category of contract labour employed by the estate owners or commercial concerns. He stated that, as a matter of personal interest, he was anxious to try to find established communities on the islands . He failed to find any." (4/116). The labour force could be expected to return to their permanent homes in Seychelles and Mauritius in due course.
- Mr MacKenzie confirmed his agreement with Mr Hall's comments: "These people are essentially comparable to residents of Basutoland who go off to work in the Republic of South Africa or even to those Spaniards who go daily to work in Gibraltar rather than to the permanent inhabitants of either Gibraltar or the Falklands Islands". (4/117)
- On 16th December 1965 the UN General Assembly passed, too late, a resolution urging the UK not to dismember the territory of Mauritius or to violate its territorial integrity and viewed with deep concern any step by the UK to detach islands from Mauritius for the purpose of establishing a military base. (9/2072).
- This led Mr MacKenzie of the CO to write a minute, *(4/142)(ND), to the Cabinet Office saying, as had been said before, that even if no more than one island was to be cleared within the next few years, it might still be highly desirable from the UN point of view to put into effect a general resettlement programme; "this would help us maintain the argument that the present inhabitants are Mauritians and Seychellois; that they are making a living on the basis of contract or day-to-day employment but that they will remain 'belongers' of Mauritius or Seychelles".
- On 21st December 1965, Mr Gaeten Duval, a lawyer and Mauritian MP who was to become closely involved with representative groups of the Chagossians in the 1970's and 1980's, asked in the Mauritius Legislative Assembly whether the British Government had undertaken to meet the full cost of the resettlement of all Mauritians now living in Diego when re-settled in Mauritius. Mr Forget on behalf of the Premier and Minister of Finance said: "The British Government has undertaken to meet the full cost of the resettlement of Mauritians at present living in the Chagos Archipelago".(4/104).
- A Foreign Office minute to the Cabinet Office of 20th December 1965, *(4/147)(ND), stated that there was "an urgent need to take over the territory and evacuate its permanent inhabitants, so that it could be made clear that the islands were defence installations and not a new colony". This minute was but one view of the way to handle a problem which was to manifest itself on a number of occasions over the next five years, namely the need to continue commercial use of the territory until the construction of the defence facilities began, but on the other hand the desire for a formal evacuation to be completed as soon as possible. The minute advised that "The best arrangement would be for the formal evacuation of the Company to be completed as soon as possible and for a new lease to be granted them for as long as seemed prudent." The American Embassy said that they had no need for it at least during 1966 but nonetheless urged early acquisition of the land. The Permanent Under-Secretary's department at the FO agreed that an acquisition of title to the land throughout the territory followed by a leaseback at reasonably short notice would be an appropriate response. It was also recognised that it would be difficult to justify resettlement of the populations before there were any definitive plans for the use of the islands for defence purposes.
- Thus at the end of 1965 BIOT had been created; there was uncertainty as to when or indeed whether any of the islands would be required for defence purposes. This uncertainty was damaging to the commercial interests operating the copra plantations. There was a tension between the need to use the islands commercially until they were required for defence purposes and the political problems which would arise at an international level if there were to be a permanent population on the islands which had to be resettled. There was no evidence before me that the generality of inhabitants of the islands of the Chagos Archipelago were aware at this stage of the creation of BIOT or of the plans for defence use and their resettlement.
- It is also clear that before the creation of BIOT, some of those who are now Claimants had left the islands and that their departure had nothing whatever to do with its creation or the plans which underlay it.
Events leading up to the evacuation of Diego Garcia
- In January 1966, Mr Paul Moulinie was told by the Governor of Seychelles, the BIOT Commissioner, that the islands would not be needed for defence purposes in 1966, but that negotiations for the acquisition of the land interests would be undertaken and concluded during the year, (19/41(a)). The BIOT Administrator, who was also the Deputy Governor of the Seychelles, was told by the CO that a leaseback of the plantations was envisaged, although Paul Moulinie's position on this had yet to be ascertained, (19/156(a)). By February, the CO was envisaging negotiations backed up by compulsory purchase powers, but the Administrator complained to the Commissioner that the discussions which he had had with the CO were rather inconclusive, (19/161(a)). It would be necessary to ascertain what labour might be required on other islands, and what grants might be available for that purpose. The MoD were to negotiate the purchase and a specific BIOT Compulsory Purchase Ordinance was advised. The relevant legislation was not in fact enacted until 1967.
- Meanwhile, the status of the islanders continued to trouble officials from a variety of angles and a draft Immigration Ordinance began to be discussed. CO minute of 6th January 1966, **(4/153(ND), seeking advice, said that they wanted to convert all existing residents into short term, temporary residents by giving them temporary immigration permits, and asked whether the existing Mauritius and Seychelles immigration enactments provided the basis for that. It was suggested by one official that something "pretty rudimentary", was all that was required with permits and as few rights with as little formality as possible, would be appropriate, (4/168). Mr Jerrom, in a minute of 3rd February 1966, *(4/165-166)(ND), said that it was necessary to regularise the position of those who lived on the islands, dealing with their position as temporary residents, with their "belonger" status and citizenship rights in Mauritius or the Seychelles. He did not know exactly what had been agreed between the Governments but it was important to avoid giving the impression that "we are trying to get rid of these people". It was recognised that the two parts of the issue went together and that the question of their status in Mauritius would have to be raised with the Mauritius Government.
- The CO told the UK Mission to the UN in January 1966, *(4/154)(ND), that there was no alternative to developing the line that the people on the islands were Mauritians and Seychellois, would remain "belongers" to those countries, that no Article 73 obligations would be accepted, but that until it was certain that there were no permanent inhabitants it could not be said that there were none. The CO indicated its supporting arguments and the steps to be taken to strengthen them. They had not risked the assertion yet although Mr Newton thought that it was arguable. An interim line was set out. The UK Mission continued to express to the CO its concerns about the status of the islanders and the impact which that could have on the status of BIOT as a non-self-governing territory on which it had to report to the UN, **(4/157)(ND). It thought that some of the present inhabitants would remain and that presented the main difficulty; it was difficult to avoid the conclusion on the present information that BIOT was such a territory because it seemed to have "a more or less settled population, however small". A contemporaneous marginal note says "no". Various measures were proposed which would help what was nonetheless seen as a reasonable case, on the basis that the UK Government was doing its best for the few concerned. These measures dealt with clarifying the absence of property rights in the inhabitants and the availability of full political rights for them in Mauritius and the Seychelles in one of which they would enjoy citizenship. Mr MacKenzie, *(4/172)(ND), suggested that it would be best to recognise that defence interests were paramount rather than pretend that the interests of the inhabitants were, beguiling though the arguments were in favour of accepting Article 73 obligations. But there remained no agreed line. Ministers had not considered the matter. These exchanges between officials, with differing responsibilities, deal with the way in which the line might be developed. The UK Mission to the UN emphasises what it saw as the UN Charter position and the problems which might be faced there.
- On 14th February 1966, the Government of Mauritius agreed to accept £3m as full and final settlement for the transfer of the island; it was to be used for the Mauritius Development Programme which was to be agreed in due course. This was "without prejudice to direct compensation to landowners and to the cost of resettling others affected in the Chagos Islands". (4/171).
- It appears from a note prepared in connection with the Vencatessen litigation, (8/1516), that MV "Mauritius" had arrived in Port Louis on 26th June 1965 with 53 passengers from Diego Garcia, 38 from Peros Banhos and 40 from the Salomons. It arrived again on 20th February 1966 with 63 from Diego Garcia, 20 from Peros Banhos and 25 from Salomon and a further voyage arrived in August 1966 and again on 24th June 1967.
- In order to assist the development of an agreed line on the status of the inhabitants of the islands, Mr Jerrom concluded that their status should be clarified together with their position as belongers of Mauritius or the Seychelles, (4/175). A savingram, a communication in the name of superiors but not written by them, was sent by the Colonial Secretary to the BIOT Commissioner dated 25th February 1966, *(4/179)(P). It was particularly concerned with the arguments about the application of Article 73. As a provisional view which had yet to be presented to Ministers, it was pointed out that the Government could hardly accept that the interests of the inhabitants should be regarded as paramount, but that it had to be expected that such a stance would attract a good deal of criticism.
- It says:
"3. Our primary objective in dealing with the people who are at present in the Territory must be to deal with them in the way which will best meet our future administrative and military needs and will at the same time ensure that they are given fair and just treatment. If it is decided to take up the position that Article 73 of the Charter does not apply to the Territory our secondary objective will be to make arrangements which will put us in as strong a position as possible in defending this policy in the United Nations.4. With these objectives in view we propose to avoid any reference to 'permanent inhabitants', instead, to refer to the people in the islands as Mauritians and Seychellois. It would be helpful if we were soon in the position to say that the existing inhabitants were being resettled; as you know, however, this is unlikely.We are, however, taking steps to acquire ownership of the land on the islands and consider that it would be desirable, either at the same time or even earlier, for the inhabitants to be given some form of temporary residence permit.We could then more effectively take the line in discussion that these people are Mauritians and Seychellois; that they are temporarily resident in BIOT for the purpose of making a living on the basis of contract or day to day employment with the companies engaged in exploiting the islands; and that when the new use of the islands makes it impossible for these operations to continue on the old scale the people concerned will be resettled in Mauritius or Seychelles.5. We understand from a recent discussion with Mr Robert Newton that, in his opinion, the people on the islands cannot be regarded as permanent inhabitants but are in fact in the category of contract labour employed by the estate owners or commercial concerns. He said that as a matter of personal interest, he was anxious to try to find established communities on the islands, particularly people who have made their living by fishing or market gardening etc. He failed to find any. The labour force came from Seychelles and Mauritius and expected to return to their permanent homes in due course. He added that the estate managers on Diego Garcia would have welcomed local initiative on the part of the labour in fishing and market gardening, but the labour force had been content to be entirely dependent on the company for all their means and showed no interest in trying to establish themselves as individuals on the islands.6. Against this background we assume that there would be unlikely to be any undue difficulty with the inhabitants of BIOT themselves in moving over to a position in which they all held temporary residence permits on the basis of which their presence in the Territory would be allowed. For this to be a satisfactory arrangement however, it is essential that there should be no doubt that the individuals concerned are, and are accepted as being, belongers of Mauritius or Seychelles. . .7. Whatever arrangements are made to establish the status of the people in the BIOT as belongers of either Mauritius or Seychelles, there will in any case be a need for the enactment of appropriate immigration legislation for the Territory itself. In this regard we are advised that until you make a law under section 11 of the BIOT Order of 1965, labourers working in the new territory will fall under Mauritius or Seychelles law by virtue of section 15(1) of the Order."
- The Commissioner's views were sought on these points. Essentially, he agreed with the proposals, (4/187); he did not foresee serious problems with resettlement provided that this was not rushed and grants were available to assist Mr Moulinie in absorbing people from Diego Garcia on Agalega. In a later savingram of 28th March 1966, *(4/196)(P), the Commissioner added these comments to the Colonial Secretary, sent also to the Governor of Mauritius:
"2. On the subject of the non-Seychellois I speak without first-hand knowledge, for, in the absence of a ship at my disposal, I have not yet had an opportunity to visit Chagos. I note that Mr Newton considers that all the non-Seychellois there may legitimately be classed as Mauritians and it may be that the Governor of Mauritius will feel able to share this view. My own impression, based largely, I admit, on hearsay but also on some written evidence, is that there are in Diego Garcia some people who, by normal standards, would be classed as 'belongers' of the Territory. In paragraph 26 of his Report, Mr Newton puts the number of people who 'might be accepted as Ilois' at 80 adults and 154 children, and of these at least 20 adults (and presumably many of the children) had never left Diego and 'could really be regarded as having their permanent homes on the island'.
- It seems to me that the problem, if there is one, is created by the Ilois or at any rate the more insulated of them. I do not mean by this that there should be any serious difficulty about their resettlement. But, seeing that the object of the exercise is to avert criticism by the United Nations, is there not some risk that, if these permanent or semi-permanent residents are now treated as 'belongers' of Mauritius, we may fail to achieve our object, since the whole operation may take on the appearance of a sham?"
- The Commissioner suggested that a possible solution, although one which had its own disadvantages, would be to resettle all the Ilois on Agalega without waiting for further developments. He thought that the bulk of Ilois from Diego Garcia could be absorbed by Moulinie on Agalega without difficulty, (23/59). There was some discussion about whether Moulinie should be told that the Government would pay for transport and new houses on arrival for those resettled, a possible incentive to Moulinie to co-operate, (23/47 and 69/70). Nothing directly came of it and no such incentive was offered, but this might provide a context in which such matters were discussed orally with Paul Moulinie.
- The Ilois continued to trouble the FO and the UK Mission to the UN, said an FO Briefing for US/UK talks on BIOT and the UN, *(4/182)(P). It was thought preferable not to accept that Article 73 applied to BIOT, an approach which would be helped if there were no permanent inhabitants, although the present population included people who were born on the islands. But if they were not permanent inhabitants and were instead belongers of Mauritius or of Seychelles with full civil rights there, Article 73 would be irrelevant. Detail to support this line was required.
- No line had yet been decided when, on 18th March 1966, an official within the Defence Department of the FO, reviewed the line which the CO was contemplating taking in an internal minute, *(4/190)(ND), upon which the Claimants placed some weight. He recognised the problem which would arise at the UN under Article 73 and with the consequent attentions of the Committee of 24, if there were a permanent population whose rights had to be safeguarded. The whole of the defence aims in setting up BIOT would be jeopardised. Accordingly, the note continued; "It is therefore of particular importance that the decision taken by the Colonial Office should be that there are no permanent inhabitants in the BIOT". A full examination was necessary of the numbers of residents, whether they were born there and how long they had lived there; then it might be necessary to issue them with documents of temporary residence, whilst making clear that they were belongers of Mauritius or the Seychelles. This was seen as a rather transparent device. But it would be embarrassing to tell the Americans that the islands which had been proposed as being suitable for defence purposes were now within the purview of the Committee of 24.
- A respondent to the minute, *(4/193)(ND), said that, in effect until the position of the inhabitants had been established, the line which the CO was proposing to take was like cooking the books before their contents were known: all would be well if in fact there were no permanent inhabitants, but that if there were some, "we have a certain old-fashioned reluctance to tell a whopping fib, or even a little fib, depending on the number of permanent inhabitants". The information had to be established urgently. The 18th March 1966 minute cannot be regarded as establishing a line; it was a point for debate.
- In April 1966, the BIOT Commissioner, responding to a CO suggestion that no one knew the make-up of the islands' population but that there appeared to be an increasing preponderance of Seychellois, said that whilst HMG might find it convenient to regard everyone in BIOT as Mauritian or Seychellois, he had suggested that there might be a third class at least in Diego Garcia who could be regarded as belongers of BIOT, (19/197(b)).
- On 3rd May 1966, *(4/198)(ND), the CO minuted to the FO its suggestion that the UN position could be dealt with by removing the inhabitants earlier than intended so as to present the Chagos as "empty real estate" or by finding some other way. The Governor of Mauritius, to whom this had been sent, responded that so far as Mauritius was concerned, they had been regarded without distinction as Mauritians who would have to be resettled at the expense of the UK Government, (4/199). It minuted MoD Lands, at the end of May, (23/67), that as a fallback against Moulinie not co-operating over taking a lease back of the islands, alternative proposals for economic activity on Chagos should be sought or early resettlement.
- Mr Darwin of the FO in an internal minute of 24th May 1966, *(4/202)(ND), commented on this contemplated position in terms upon which again the Claimants put considerable reliance. It evidences the debate.
"This is really all fairly unsatisfactory. We detach these islands in itself a matter which is criticised. We then find, apart from the transients, up to 240 'Ilois', whom we propose either to resettle (with how much vigour of persuasion?) or to certify, more or less fraudulently, as belonging somewhere else. This all seems difficult to reconcile with the 'sacred trust' of Art 73, however convenient we or the US might find it from the viewpoint of defence. It is one thing to use 'empty real estate'; another to find squatters in it and to make it empty.
To certify the more or less permanent Diego Garcians as belongers of Mauritius seems to strengthen the case of those who criticise its separation from Mauritius, or whichever it was detached from."
- But even in June 1966, a note in reply from another official suggested that the most important point still was to establish their numbers and their transferability, (4/203).
- A letter from the Commonwealth Office (Mr Donohoe) to the UK Mission to the UN of 12th August 1966, *(4/215)(ND), continued the rather unproductive debate.
"6. The crux of our case must be the purely legal one that legally these people are Mauritians or Seychellois. So far as I understand it, there will never be citizens of the British Indian Ocean Territory. It helps us greatly in arguing this that all but about 100 of the present inhabitants are short-term contract labour: but it is again an untidy aspect of our case, that as far as can be ascertained about 100 or so were born there. Another untidy feature is that though these inhabitants are either Mauritians or Seychellois, neither have at present, while they remain in BIOT, an essential right of citizenship i.e. the right to vote in elections in their parent countries.7. But it is a long way from showing that our case is untidy to showing that it is untenable, and, as you point out, we are in for trouble in any case on this issue in the UN. Birth has not conferred more right to remain in BIOT to the 100 or so second-generation inhabitants than several generations of occupation might confer on the inhabitants of a village about to be inundated to build a dam; the scale in fact is somewhat less than usual. Voting rights were absent even before BIOT was created when its inhabitants were indubitably citizens either of Mauritius or Seychelles and it will be from their parent Governments, as it always has been for the new expatriated inhabitants to seek enfranchisement. Finally, though, it would not be a major administrative task to resettle 1,000 Mauritians or Seychellois back in their parent countries, there has so far been no practical need to do so and it would not be easy to do so while we are still coping with the essential preliminaries of setting up an administration in the Territory."
- This was a personal view, (4/216), and the line remained to be settled; it was hoped, *(4/219)(ND), that the issue would not be raised and a position would not have to be declared, just yet.
- However, this met with a blast from the Permanent Under-Secretary of the FO, **(4/221)(ND), which with the reply from Mr Greenhill presents the FO in a light which does it no credit, as the Defendants recognised. The former commented:
"We must surely be very tough about this. The object of the exercise was to get some rocks which will remain ours; there will be no indigenous populations except seagulls who have not yet got a Committee (the Status of Women Committee does not cover the rights of Birds).Unfortunately along with the Birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When this has been done I agree we must be very tough and a submission is being done accordingly."
- In a better tone, another official said that the CO had to get with clarifying the status of those on the islands as soon as possible, making their status as Ilois as justifiable and real as possible, (4/222).
- A CO memo to the Minister, Mr Stonehouse, dated 31st August 1966, *(4/224-5)(ND), advised that the UK should stand firm on the application of the UN Charter to BIOT. The islands had been selected not just for their strategic location but also because they were not permanently settled, being almost entirely contract labourers:
"4. though having their permanent homes there. We are not certain of the number of these and opinions as to whether any should be so regarded vary but not more than about 100 or so are involved."
- The Minister in September 1966 approved a Brief for the UN Mission, *(4/228)(ND), prepared by the FO in conjunction with the CO and MoD, but it was secret and only prepared as a contingency document. This Brief reflected what had been discussed over the past months: the population was entirely or almost entirely contract labour with no interest in the islands other than their jobs but there was a small number in Diego Garcia who could be regarded as having their permanent homes there; no immediate need to resettle the population existed but should military needs arise, evacuation could be done at six months notice. Evacuation should not present any insuperable difficulty; the relevant islands were wholly owned by the Chagos Agalega Company Limited. "From all accounts, none of the population would have a real interest in staying in the islands unless employers were to find them jobs there. In this sense there is no real community and the great majority should be happy with settled occupations elsewhere." If they were forced to make their position clear on Chapter XI, they should say that there were no "peoples" in BIOT and although people might stay for greater or lesser periods that did not alter their essential character as a migratory labour force. If pressed they should say that "genuinely" they did not have precise records of the length of stay of individual families, but if necessary could find out.
- During the second half of 1966, the CO, (which came under the Commonwealth Office in August), and the BIOT Commissioner discussed the acquisition of the land from Chagos Agalega Company Limited, the CO sought from MoD proposals for the maintenance of economic activity or resettlement in the event that Mr Moulinie was unwilling to cooperate during the period until the islands were required for defence purposes.
- The passenger list for the sailing of the MV "Mauritius" from Diego Garcia to Mauritius in August 1966 shows that a number of Claimants sailed on that voyage, who must subsequently have returned to Diego Garcia, (4/209). One of them was Michel Vencatessen, who upon his return from Mauritius in 1964 had signed a two year contract starting 1st April 1964, (4/02a).
- On 30th December 1966, the UK and US Governments exchanged Notes (Cmnd 3231) concerning the availability of BIOT for defence purposes. This was presented to Parliament in April 1967. It provided that the islands of BIOT should be made available for the defence needs of both Governments, "for an indefinitely long period", comprising fifty years initially, followed by a twenty year period unless notice had been given to terminate it towards the end of the fifty year period. The agreement refers to using workers from Mauritius and the Seychelles as far as practicable. It was for the UK to take what were described as "those administrative measures that may be necessary to enable any such defence requirement to be met", as the US might want. There was to be consultation with it over the time required for the taking of such measures provided that in the event of an emergency requirement, "measures to ensure the welfare of the inhabitants are taken to the satisfaction of the Commissioner of the territory". There are no other provisions which deal with the islands' inhabitants.
- A supplementary minute of agreement between the UK and US Governments dated 30th December 1966 identified the administrative measures referred to in the Exchange of Notes, (4/247). These included terminating or modifying any economic activity and the resettlement of any inhabitants. The notice given by the US of its requirements was expected to be sufficient for the UK to give the lessee of any of the land required by the US that notice which the lease might require; this could be six months. There had been prior discussion within the FO as to the position of the BIOT inhabitants which reiterated that they were for the most part transients but that their well-being could not be prejudiced, (4/242).
- From mid-December 1966 onwards, discussions were afoot between the CO and the BIOT administration about a survey of the islands to examine their military potential. Aldabra had been surveyed, and a survey of Diego Garcia was planned for July 1967. Resettlement issues were discussed with the CO and FO; the anticipated UN concerns could be met by classifying all persons present in BIOT as either Mauritians or Seychellois, and by issuing travel documents to that effect which would be endorsed with phraseology which would enable the population to be moved on six months notice. It was pointed out that if the aim were to clear the BIOT islands as a whole, they could not be resettled on non-strategic islands. The BIOT administrator, Mr Todd, responded in January 1967 to the minute of those discussions by saying that it would not be possible to "regularise" the position of those present in BIOT by July, that the most which could be done by then would be a survey of the population "in order to see whether the suggestion that there should be no Ileois is capable of implementation", *(19/152a,b,249a).
- On 8th February 1967, the Earl of Oxford and Asquith, the Governor of the Seychelles and the BIOT Commissioner, enacted the BIOT Ordinance No 1 of 1967 which provided him with powers to acquire compulsorily on behalf of the Crown, land required for a public purpose. This was defined so as to include the defence purposes of the UK and other foreign governments with whom the UK had entered into an agreement.
- In March 1967, the Commissioner enacted the BIOT Ordinance No 2 of 1967, which empowered the acquisition of land for the same public purpose by agreement.
- On 2nd March 1967 the BIOT Commissioner reported to the CO, *(4/250)(R), on the possibilities of immigration legislation for BIOT. This was a response to a savingram of 25th August 1966. The Commissioner said that he had recently had the opportunity of visiting Chagos and provided figures showing the approximate population structure in November/December 1966. The tables which he presented are muddled but they showed a total population on the islands of Peros Banhos, Salomon and Diego Garcia of 793 of which 563 were Ilois and 155 Seychellois. 166 of the 345 people on Diego Garcia were Ilois and only 46 Mauritian, the rest being Seychellois. 247 of the 280 on Peros Banhos were Ilois and 150 of the 168 on Salomon. Of the 563 Ilois, 327 were children and 236 adults. By contrast for the non-Ilois, children represented less than a quarter of the total.
- The Commissioner commented that the figures did not represent the results of a close survey but were collected from the managers who might vary in their accuracy and their definition of "Ilois". He continued: "It was however interesting to note that individuals questioned never felt any doubt about their status and would answer unhesitatingly 'Mauritian', 'Seychellois' or 'Creole des Iles'". But whatever definition was placed on Ilois, it was apparent to him that there were a large number of children who appeared to be Ilois of at least a second generation.
"4. Although I do not claim a high degree of accuracy for the figures I have given, it is clear that, even allowing for a considerable margin of error they present a very different picture from that originally envisaged. Whether, for the purposes of the present draft legislation (in particular clause 11) this predominance of Ilois need cause us much concern, depends on whether or not the Ilois can be regarded as 'belonging' to Mauritius. I think it is arguable that they can, for although they have been in Chagos for a long time, they have lived there only on sufferance of owners of the islands and could at any time have been sent back to Mauritius if no longer wanted in connection with the estate. They have never in the past had any right to reside permanently in Chagos. It seems therefore that there may be nothing inappropriate in the way our law is framed."
- The Commissioner then suggested that this point would at some stage have to be cleared with the Mauritius Government to avoid there being embarrassment with the Mauritians and the UN. He suggested that if the maximum numbers of Ilois to be evacuated in the foreseeable future were the 166 (comprising the 88 workers and 78 children) now living on Diego Garcia, the bulk of those should be capable of absorption on Agalega if BIOT had reasonable notice. Agalega was not part of BIOT but was rather an island of coconut plantations operated by Moulinie & Co.
- It is plain that at this time there was already a draft Immigration Ordinance in existence, of which clause 11 dealt with the removal of persons from the Territory to the place whence they came or to any other place to which they consented to be removed with the consent of the Governor of that place.
- In a note to the Commissioner, *(4/257)(D), the CO referred to the discussions which it and other departments had had in London with Mr Todd, the BIOT Administrator, on the question of the status of the present inhabitants of BIOT. The note said that it had been explained to Mr Todd that:
"It has now been decided not to treat BIOT as a non-self-governing territory for the purpose of Article 73 (e) of the United Nations Charter. It is a matter therefore of some urgency to ensure that the status of all the present inhabitants of BIOT as belongers of either Mauritius of Seychelles is established. Although we have always realised that this would not be possible until the Administrator had been appointed and got around his enormous Parish."
It was recognised that Mr Todd had only recently arrived.
- The Administrator replied on 15th March 1967, (4/258), saying that it seemed certain that the question of "belongers" only applied to Chagos and he was proposing to carry out a census on Chagos in April which should provide the necessary details on which to make resettlement plans.
- March and April 1967 saw the acquisition of the land interests of Chagos Agalega Company Limited on behalf of the Crown and the lease back of the islands to that same company. Valuing the islands had been a contentious process both internally for the purchasers and in negotiations with the vendors; valuation presented unconventional problems. None of the documents suggest that anyone thought, the legally all-embracing language of the conveyances notwithstanding, that there were any interests or property rights of any sort enjoyed by Ilois. They featured as a resettlement cost or problem. On 16th March 1967 the BIOT Commissioner and Chagos Agalega Company Limited entered into an agreement whereby the company granted an option to the Crown to purchase for £660,000 all the company's rights in the islands with all buildings and other interests belonging to them. Those islands included Diego Garcia, Peros Banhos and the Salomon Islands. On the same day in March 1967 as the BIOT Ordinance No 2 was enacted, the BIOT Commissioner told the CO of its proposals for the acquisition of the various islands within BIOT. In brief terms, the negotiations were covered by an answer given by the Secretary State for Defence, Mr D Healey, in the House of Commons on 17th April 1967, (4/269).
- The islands were conveyed from Chagos Agalega Company Limited to the BIOT Commissioner on behalf of the Crown on 3rd April 1967. For the purposes of the conveyance the extent of the ownership within the islands of Chagos Agalega Company Limited was certified by the Conservator of Mortgages. It described the three "etablissements" on Diego Garcia owned by the company: these were "Pointe de L'Est, Mini Mini and Pointe Marianne". This is confirmed by the Domain Book (23/92). The conveyance also covered Agalega although it was not part of BIOT.
- There is a certificate of freehold title from the Books of the Conservator of Mortgages of Mauritius dated 22nd July 1966, (4/208a), showing Chagos Agalega Company Limited as owners of three groups of properties on Diego Garcia, the islands of Perhos Banhos, the Salomon and other islands including Agalega, together with buildings, boats, animals, trees and more besides and everything else as befits a real property document. It appears to be a summary of the conveyancing document in French of 26th May 1962 whereby that company purchased its interests in the islands.
- A note from the Attorney-General of the Seychelles dated March 1967, (19/249b), refers to the fact that the company did not appear to own six acres on and some small islands at the entrance to the bay of Diego Garcia which had been excluded from the 1962 sale because they belonged to the Government of Mauritius. It was thought that these properties had become vested in the Government of BIOT when it was created. The nature of the company's title was based on concessions made by the Crown in perpetuity, which was in practical terms a freehold.
- On 6th May 1967 (23/140), the procedures for the attribution of the purchase price were completed, the provisional scheme having been advertised for 2 weeks on the verandah of the Registry Supreme Court in Victoria, Mahe, Seychelles. This was the means whereby those who wished to assert a property interest, overreached into the purchase price, were able to claim a proportion of that money. None did and it went to Chagos Agalega Company Limited.
- On 15th April 1967 the Commissioner on behalf of the Crown leased back to Chagos Agalega Company Limited most of the islands of BIOT, including Diego Garcia, Peros Banhos and Salomon Islands. This lease covered the whole of the islands to which it related, with the exception of the meteorological station on Diego Garcia, and did not just extend to those parts of the islands owned formerly by Chagos Agalega Company Limited. The lease was to last for an unspecified period terminable by six calendar months notice in writing from either party, yielding a rent of 80% of the net income before taxation derived from the islands. The islands were to be cultivated beneficially in accordance with the principles of good husbandry.
- Mr Todd, the BIOT Administrator, visited the islands of Diego Garcia, Peros Banhos and Salomon in the early part of May 1967. He prepared a report on the condition of the islands, *(4/284)(P). On Diego Garcia he said that the plantation was generally in poor condition but that the labour force had been increased and a clearance programme had started; the plantation buildings were basically sound but in several cases required extensive maintenance. Labour relations appeared generally good; there were 15 quarters in the camp made from permanent materials and in good condition. Rations were supplied and there was a well stocked shop with prices appreciably less than on the Seychelles. The basic wage was Rs 25 per month for men and Rs 10 for women. He said:
"The male labour force consists of 16 artisans, 15 boys and 180 labourers, 7 women are employed as domestic servants and 5 in the hospital and crθche. Most of the other 87 women on the island are employed for one task per day on the plantation."
- He referred to a medical dresser and midwife at the 12-bed hospital. The manager's wife assisted in the hospital. The school was staffed by the manager's daughter and the dresser's daughter. Communications and the function of the Peace Officer were described. The Civil Status records were said to be untidily kept but there was no indication that they were incomplete. The population was checked from the manager's figures and arrangements were made to enable full details to be collected on a subsequent visit. Conditions on the other islands visited were described in a similar format and essentially with similar conclusions. On Salomon a new detachment of labour had recently arrived from the Seychelles.
- In his conclusions, Mr Todd said that the islands had been neglected for the past 18 months due to uncertainty as to their future but that on the basis of the present lease the company was increasing the labour force, and re-organising the management to increase the number of coconuts collected and their yield in areas at present neglected. He said that the company at present was experiencing no difficulty in recruiting especially from the Seychelles. He produced a table showing the number of workers and families taken by the MV "Mauritius" and the number returning during the present tour. These showed that of the Ilois (by their own definition and including those who had spent several contract periods on the islands), 24 men, 20 women and 50 children had arrived and 43 men, 39 women and 74 children had departed. 106 Seychellois men had arrived but with a much smaller number of women and children and only 3 had departed. The number of Mauritians arriving and departing was very low. In total 291 had arrived and 164 had departed. He recognised that the use of the MV "Mauritius" which had been run jointly by Rogers & Company, and the Mauritian Government, the former being one third shareholders in Chagos Agalega Company Limited, and the latter having responsibility for the islands, might no longer be possible with the change in ownership and responsibility and that other arrangements for communication by sea would have to be made. The administrative services run by the managers for the Government (as to legal and civil status) were generally satisfactory.
- The Administrator's figures also showed the population totals after the departure of the MV "Mauritius". On Diego Garcia there were 166 Ilois, 327 Seychellois and 10 Mauritians. Of the Ilois 35 were men, 38 women and 93 children. By contrast, the Seychellois comprised 172 men, only 53 women and 102 children. On Peros Banhos there were 181 Ilois of whom 36 were men, 41 women and 104 children. There were 70 Seychellois, more than half of whom were men and there were only 6 women. 140 Ilois were present on Salomon, 29 of whom were men, 34 women and 77 children; there were only 28 Seychellois and Mauritians there altogether. In total therefore 487 of the 924 population of the Chagos were Ilois, 100 were men, 113 women and 274 children. Children were defined as those up to and including 12 year olds; Ilois were classified on the basis of their own assessment and included Mauritians who had worked on the islands for long periods and wished to continue doing so. With some overlaps and imprecision, I see this as showing 100 or so Ilois families on Diego Garcia.
- The documents before me contained drafts of answers to Parliamentary questions about the status of BIOT and its population, ("almost entirely temporary mainly contract labour and their dependants from Mauritius and the Seychelles."), *(4/278)(D).
- It is convenient here to interject a little of the evidence given to me by Marcel Moulinie about events up to this point, as he understood them. It was in January 1966 that Marcel Moulinie told the people on Diego Garcia that BIOT had been created, that the Americans would put a base there and that they might be asked to leave; if there was any compensation they would get it, but he never promised anything. His uncle had been told that, he said, by Lord Oxford. His uncle and Mr Todd spoke to the islanders in May 1967 and compensation probably cropped up again; however, no-one spoke of the British Government paying compensation.
- In his Judicial Review statement for the Bancoult case, Mr Moulinie spoke of a meeting that had taken place before the May 1967 meeting, when the Ilois were addressed and were told they would have to leave, but that compensation would be paid. At the earlier meeting, he said that he remembered the shock of the announcement he made to 400 or 500 Ilois in the presence of Mr Mein. He was told by his uncle of the May 1967 meeting where both Mr Todd and his uncle had told the Ilois that there would be compensation.
- They had been shocked to learn that the British Indian Ocean Territory had been created and that the islands had been given to the Americans for military purposes and that they would eventually have to leave. He had advised them to stay as long as possible, that compensation would be paid unless they left voluntarily, and he said that because he truly believed the British Government was going to make proper arrangements for them to be housed and employed. He said that the islanders were very sad.
- Orally, he said that in mid-1967, which was shortly after the last major intake of labour, he went to Mauritius with his uncle; Mr Todd and Paul Moulinie went to a working lunch with the Governor. His uncle told him that he had suggested to Sir John Rennie and Mr Todd and others that either Crown land or housing compensation should be provided and a trust fund for the islanders should be set up, but had said that the reaction had been rather negative according to his uncle. There was discussion about Agalega and resettlement on other islands. He explained in his witness statement that his uncle and he had many discussions with Mr Todd about resettling the islanders over the next few years, but that nobody came forward from the Government with a sensible solution; this put a blight on the islands. There was no clarity to the Government's intentions and no answers to enquiries made of them. He complained in a statement, which was prepared for him in 1977, about the lack of communication between the BIOT Administration and the company about its intentions and its failure to exploit the islands properly. The advice given by the company to the Administration that proper compensation should be paid and that the Ilois should be properly looked after was not taken. They had never received any compensation other than small amounts given by the company.
- Returning to the documents, on 29th June 1967 Chagos Agalega Company Limited gave six months notice to the BIOT Commissioner terminating its lease of the Chagos Islands; it referred to its Mauritian partners experiencing certain technical difficulties, (4/283). Those difficulties related to the tax which Mauritius contemplated levying following the payment to the company of the purchase monies by the UK Government.
- Sir Hugh Norman-Walker, who was by now the BIOT Commissioner and Governor of the Seychelles, wrote to the CO explaining that the main difficulty in running the islands at a profit was the provision of transport with the "Mauritius" unlikely to continue, now that the Mauritius Government had no interest in subsidising its sailings as a means of communication between Mauritius and the islands. In the absence of shipping, Mr Moulinie would lose interest in the lease and no-one else would be able to solve the transportation difficulties either. A decision on a vessel for BIOT would be necessary soon so that the plantations would not be closed in the relatively near future, 4/336).
- On 10th July 1967, the CO prepared a background note on BIOT which repeated some of the points which had been made in other documents over the preceding few years: namely, that the present population of the islands was believed to be entirely or almost entirely composed of contract labour, employed by the present lessees and living in housing provided by their employers, that they had no interest in the islands other than in their jobs, for which they had short term contracts, that the pull of the islands had been solely the economic one of finding work there. It was followed by an interesting analysis of the origins of the population and its administration, *(4/331)(D). The migratory nature of the inhabitants was given as the reason why no details of the BIOT population had been given in reply by the CO to a UN housing questionnaire, (4/341)(ND).
- The July 1967 report to the CO from the BIOT Commissioner referred to the keen interest which there had been to join the island labour-force, which now exceeded the lessee's requirements, because it was thought that they would either have first chance of employment on a defence project, or alternatively of compensation should their contracts be terminated. It was said that there was no indication that the creation of BIOT was resented by the Ilois or that their co-operation in any resettlement scheme would be difficult to obtain. Indeed, the creation of BIOT had had little effect in the islands themselves.
- In August 1967, (23/147), the MoD wrote to Mr Aust, a legal advisor in the CO, saying they understood there to be virtually no indigenous population which could call for independence, although a survey would be carried out; the concept of establishing BIOT "was, to a large extent, influenced by that fact". Mr Aust responded that "small, seemingly insignificant islands have a nasty habit nowadays of asserting themselves"; although there was no substantial indigenous population at present, they had to look to the future, (23/149). On 15th August 1967, (23/153) dealing with whether title should be vested in MoD, a PIOD official wrote that so long as the Commissioner fully protected the "inhabitants" interests until they were cleared for defence use, who had title did not matter much.
- In September 1967, concern was further expressed by the CO to the Defence Department of the Foreign Office about the implications of the notice of termination of the lease of the Chagos Islands and Farquhar by Chagos Agalega Company Limited. It reported on the problem created for the profitability of the islands by the provision of suitable transport, but another issue was the question of what the Americans might decide to do in Diego Garcia and what effect that would have on the copra plantations. The CO was concerned about the possible resulting unemployment if the islands were abandoned, as some 100 Mauritian labourers and their families would have be repatriated and 200 Seychellois would be sent to the Seychelles. Defence Lands would lose the income which it expected from the rent on the plantations. The letter, *(4/344)(ND), continued:
"While of course these developments had already been envisaged if Diego Garcia should be required for defence purposes, we had not bargained for these difficulties occurring as a result of the lessee's uncertainty as to the future."
The letter sought information to try and reduce the uncertainty.
- On 18th September 1967, (4/346), the CO wrote to the Officer Administering the Government of Mauritius referring to the proposed Immigration Ordinance for BIOT; it set out the population structure in Chagos as at November-December 1966 which appears to be drawn from the March 1967 figures sent by the BIOT Commissioner to the CO, which are different in a number of respects from those reported on by the Administrator after his visit to the islands in May 1967. It was said that those figures did not represent a close or accurate survey, as indeed the March 1967 letter said. But it did say that it was apparent that there were a large number of children who appeared to be Ilois of at least the second generation and the question was whether or not the "so-called Ilois" can be regarded as belonging to Mauritius. The Commissioner felt that it was arguable that they could be so considered for "although they have been in Chagos for a long time, they have lived there only on sufferance of the owners, and could have been sent back to Mauritius if no longer wanted in connection with the estates. They have never in the past had any right to reside permanently in Chagos and it would appear that there may be nothing in appropriate in the way the law is framed". This note draws significantly on the letters and notes previously exchanged. Nonetheless, the views of the Officer Administering the Government of Mauritius were sought in relation to the proposed Immigration Ordinance. The views were sought on the assumption that reasonable notice would enable the bulk of the workers on Diego Garcia to be absorbed in Agalega, to which it was not thought the Mauritius Government would have any objection.
- However, that Officer replied, (4/348), on 29th September 1967 to the CO saying that the basic question of whether Ilois could be regarded as Mauritians was a legal question to which he could give no answer, and in respect of which legal advice should be taken. He said that he himself was not sure about the validity of the argument that the Ilois had lived in Chagos only on sufferance, since the question was whether they "belonged" in the national sense, rather than had rights of residence on private property. This thought was the precursor of some of the arguments which the Claimants were to raise before me.
- The BIOT Commissioner, on 2nd October 1967, wrote to the CO with reference to Mr Todd's figures derived from his visit in May which he considered were "pretty complete", although further details were being sought, (4/353). Although the details might be relevant, the Commissioner expressed the rather cynical view, as he described it, that the details would do nothing to stifle criticism from those who were hostile to the existence of BIOT and the defence proposal and, in any event, the position could very readily be misrepresented by them. He said:
"It is true to say that all those on Chagos (with the exception of the Mauritian Meteorological Station staff) are contract labour on contracts of from one to two years and their dependants. But how often and over what period and over how many generations you have to renew contracts before becoming a belonger is not something about which argument would produce any great profit. Nevertheless, we agree with you that we must have the facts "
And so a further visit by Mr Todd to Chagos was envisaged. His population figure, not separately identifying Ilois, was supplied to the UK Mission to the UN; it was not known how many would have to be removed if coconut production ceased, as the population fluctuated, *(4/363)(ND).
- At about the same time, discussions were under way between the BIOT Commissioner, the CO and Mr Paul Moulinie about the continued operation of the estates following the giving of notice to terminate the lease, which was to expire at the end of 1967. He had formed a new company, Moulinie & Company, which would manage Agalega on behalf of Chagos Agalega Company Limited, but which was not prepared to take the lease of Chagos but would probably be prepared to manage the BIOT islands on behalf of BIOT if a suitable agreement could be made. The two reasons why he was not prepared to continue with the lease were the transport difficulties and the cost of repairs to buildings and equipment. If these repairs were to be made under the present lease, they would be uneconomic for the company "should the lease be terminated in the near future". This was obviously the risk associated with a lease which, albeit for an indefinite period, was nonetheless terminable by the lessor at six months' notice; this was a necessity given the uncertainty over the timing and extent of any American defence requirements.
- The Commissioner pointed out to the CO that to abandon the islands would be to throw people out of work at a difficult time and would be a waste of an economic asset. To run the islands on a management basis might be less satisfactory, but on the other hand might turn out to be the only available solution and Mr Moulinie's attitude towards such a proposal had been sought. He was said to be arranging for one more voyage of the "Mauritius" in 1967, but would not be recruiting additional labour from Mauritius. Much of the Mauritian labour on the island was said to be due to return to Mauritius reducing the need for a regular shipping via an expensive vessel with Mauritius, but on the other hand an alternative shipping connection between the Seychelles and Chagos would have to be established. He needed to know whether the "Nordvaer" would be available because it was the only vessel capable of meeting the Chagos requirement, (4/350).
- Thereafter, in October and on until December, discussions continued between the BIOT administration and Mr Paul Moulinie as to the terms upon which he might be prepared to take over the management of the plantations on behalf of the Crown under a management agreement. In November 1967, Mr Moulinie, on behalf of Moulinie & Co (Seychelles) Limited, which was based in the Seychelles, said that it was prepared to accept a management agreement for a trial period of six months at 8% commission, based on the gross value of the produce. Mr Moulinie did not think that the basis upon which the Administration wanted the plantations run was in accord with his ideas of good husbandry, (4/362).
- On 21st December 1967, (4/365), the BIOT Administrator wrote to the CO about the negotiations with Mr Moulinie. He said that the new arrangements would involve the Administration more closely in the running the islands than it had wished. BIOT was to meet expenditure in relation to staff, to set maximum numbers of labourers which were not to be exceeded without permission, and no vessels were to be chartered without the agreement of the Administration. The company in return was to receive 8% of the gross sales. They were to set the wages for the labourers. The new management agreement was to run from 1st January 1968, even though at that stage it had not been prepared let alone signed; until that time Mr Moulinie said that he was prepared to continue co-operating.
- Indeed, no management agreement was ever signed, although it was prepared and the management of the islands appears in fact to have been undertaken in accordance with its provisions.
- Uncertainty, however, over the timing and extent of the American interest in Diego Garcia continued and that uncertainty was reflected in the notice periods in the management agreement and would necessarily affect the application of the principles of good husbandry. As the independence of Mauritius drew near, specific questions needed to be dealt with about who would be a Mauritian citizen or a citizen of the UK and Colonies, or both, on independence. In November 1967, an internal FO minute advised that there would be three categories: those who would remain solely citizens of the UK and Colonies which would normally be someone who was born in BIOT and whose father was also born there, but whose other parents and grandparents were born in Mauritius; those who would be of dual nationality, most commonly those born in BIOT whose fathers were born in Mauritius; and those who would become citizens of Mauritius and cease to be citizens of the UK and Colonies, who would normally be those who were born in Mauritius like their fathers and grandfathers before them, but who had lived in BIOT for many years, (4/360).
- A set of internal minutes recording a debate within the FCO concerning citizenship in March 1968 includes a note from a legal advisor, (5/370). It advised that the effect of the Mauritius Constitution as proposed would be to give automatic citizenship of Mauritius on independence to persons in the Mauritius section of BIOT except for people born there whose fathers were born in the Seychelles or the Seychelles section of BIOT. But automatic Mauritius citizenship would not deprive them of their citizenship of the UK and Colonies and their entitlement to British passports, though that would not give them a right of entry to the UK. The matter now came up for discussion because it had recently been proposed by Mauritius Ministers that the relevant constitutional provision should be changed so that those born in the Mauritius section of BIOT would only acquire Mauritian citizenship if their fathers or paternal grandfathers were born in Mauritius. However, the FCO foresaw that the evacuation of the islands would involve the population having somewhere else to go, and that they would have no right of entry to Mauritius unless they became Mauritian citizens. Otherwise, they could be in the same position as the Kenya-Asians. Accordingly, there was a concern about those who might retain citizenship of the UK and Colonies, but more importantly that there were some who might only have citizenship of the UK and Colonies. This memo was commented on by others, (5/374).
- On 8th March 1968, Miss Terry of the FO, to whom the minute had been addressed amongst others, said that the automatic citizenship which those on BIOT would obtain upon Mauritius' independence would enable them to have a right of entry to Mauritius in the event of evacuation of islands, the position of which the Mauritius Government was aware.
- Another official took the line that it had been arranged that those born in the Mauritius section of BIOT would be Mauritius citizens automatically with no retained UK and Colonies citizenship, so that if evacuated they could all go to Mauritius. Yet another commented that a person who automatically became a Mauritius citizen on its independence would cease to be a citizen of the UK and Colonies except for those categories specifically set out in the Mauritius Independence Act which included those born in BIOT. That official added that he did not see how citizenship could be taken away from someone born in what was still a colony, even though he acquired another citizenship. Anxiety was expressed by another as to the position if Mauritius, at some future date, legislated to deprive those persons of their Mauritian citizenship leaving the United Kingdom with responsibility for them. "Fortunately, there are not many", he ended, (5/371).
- On 12th March 1968, Mauritius became independent and had a new constitution. Independence was granted by the Mauritius Independence Act 1968. Section 2 of that Act provided that, in general, any person who immediately before 12th March 1968 was a citizen of the UK and Colonies should from then on cease to be a citizen of UK and Colonies if he became on that day a citizen of Mauritius. By section 3, however, that did not apply to a citizen of the UK and Colonies if he or his father or his father's father had been born in a colony, which expression was defined in such a way as to include BIOT but not Mauritius. In effect, the Ilois retained their citizenship of the UK and Colonies and gained Mauritian citizenship.
- Sections 2 and 3 of the Mauritius Independence Act were later to be repealed by the British Nationality Act 1981, section 52(8) and schedule 9.
- From the point at which Moulinie & Co took over the management of the islands on the basis of the unsigned agreement, the question of labour recruitment reared its head. It appears that the Mauritius Government was insisting that some 75 persons of Ilois origin be re-employed in Chagos and should travel back on the "Mauritius" which was due to sail for the islands on 5th March 1968. The matter was raised between the BIOT Commissioner and the CO. The Commissioner said that it seemed probable that among the 75 were a number whose contracts were terminated as they were unsatisfactory labourers. It commented that, in any event, Moulinie had no need for the 75 additional labourers. The Commissioner questioned whether the pressure to re-employ these persons on Chagos came from Mauritius officials who were unaware of the citizenship position set out in the Independence Act. Moreover, the labour recruitment from Mauritius was likely to reduce as shipping would be centred on voyages between the Seychelles and Chagos, (5/373). The Commissioner said to the CO, in a passage relied on by the Claimants as showing the role which the Commissioner and CO had in recruiting or managing labour on the islands:
"Unless you have any objections, I therefore wish to inform Moulinie that they should only recruit such labour as they need for efficient running of the Islands and that sources of recruitment and decision which individuals should be employed rests with them."
- On the previous day, Moulinie had sent a telegram to Rogers & Co in Port Louis, *(5/372)(ND), saying that the islands were fully manned and that he regretted that BIOT was not in favour of further labour intakes for the time being, until negotiations with the Ministry of Defence had concluded. It was contended by the Defendants that there were no negotiations with the MoD at that time, and that the message had not been sent on the Defendants' instructions, (10/49), but this does not entirely support the point. Other documents of the same time were relied on as showing the relationship between Moulinie & Co and the BIOT Administrator, (5/373)(P), limiting recruitment to what was necessary for the efficient running of the islands. Approval was sought for a detailed list of merchandise and goods required by the managers for the islands; ranging from specific quantities of various sorts of spices, to writing paper, onions, fish hooks and the like. Approval was sought because it was the Administrator who would be bearing the costs under the management agreement. Moulinie & Co also obtained the Administrator's approval for the employment of a manager on one of the BIOT islands. The Administrator approved the itinerary for the voyage of the "Isle of Farquhar" from Seychelles to the Chagos and revealed its intention to open postal services making the manager postal agent on a commission basis. A police presence was thought appropriate because of difficulties in Chagos "with labourers demanding passages and a report of illegal tapping of toddy". Again, the Administrator's approval was sought for the engagement or non-engagement of named persons from Mauritius as dressers and midwives, though it was left for decision by Moulinie & Co.
- Mr Allen placed weight for the same theme of control by the Defendants on an internal memorandum of May 1968, (23/171-5). He suggested that volume 23 evidenced the potential for undisclosed documentation helpful to his case to exist, notwithstanding the volumes already produced. He said also that it showed the BIOT Government's use of recruitment policy to regulate the number of Ilois within Chagos. It refers to the Ilois population who had recently requested passage to Mauritius; "How many will return depends on our recruitment policy" and the communication with Mauritius maintained after the arrival of the "Nordvaer". The Ilois population would be left at its current level on Diego Garcia "by adjusting our recruitment and posting of Ilois between the three atolls". Various resettlement options were examined including resettlement of Diego Garcian Ilois on Agalega, which was seen as "helping to prove our point that they have no right to permanent residence in BIOT". They would also not have to be resettled if the whole of Chagos had to be cleared. This internal discussion document was followed up in 5/388 and 5/396; although it preceded the US requirement for Diego Garcia in July 1968, and in a sense can be seen as contingency planning, at a time when there was no management agreement, it contemplates control of recruitment as an aid to resettlement planning.
- On 10th May 1968 Paul Moulinie wrote to the BIOT Administrator dealing with the sailing of the "Isle of Farquhar" from Seychelles to Diego and back to collect a load of copra, saying "since we consider that there are already enough labourers on the island, we are not engaging any more to send there this trip". (10/49). Amongst the matters raised at the end of February in relation to the requirement for goods was that there was a rice shortage, that rice was unobtainable, that in consequence rations would be changed to ½ flour and ½ rice and flour should be sent as a replacement for the unobtainable rice. This exchange is relevant because of suggestions that there was a deliberate running down of provisions on the islands to encourage departure. Mr Marcel Moulinie disagreed with Mrs Talate's evidence of a severe ration shortage he said there were enough basic rations, but an occasional shortage of cigarettes. This applied up to the evacuation.
- Meanwhile, the shipping records show the arrival of the "Mauritius" in Port Louis on 30th March 1968, (5/377). The 142 steerage class passengers included a number of Claimants among whom were the 4 year old Olivier Bancoult and Rita Marie Elyse. They are listed as coming from Peros Banhos. The Bancoult family had gone to Mauritius to be with their daughter Noelie who had suffered a serious accident and needed medical treatment which only Mauritius could provide. Sadly she died a few months later. Some of the passengers off this boat, as with those who arrived in 1967, were among those who later tried unsuccessfully to return to the islands in circumstances which were crucial to a number of issues in the case.
- The issue of resettling the Ilois was a constant pre-occupation at various levels in the UK Government. In April 1968, a CO official circulated a memo, *(5/382)(ND), to various Government departments including MoD and the Treasury concerning the costs so far of setting up BIOT and how the costs of the new Seychelles airport were to be met from the £10m budget set for the UK side of establishing the defence facilities on BIOT. £4.1m had been spent and the airport was estimated now to cost £5.7m. The uncertainty over whether and when that commitment to the Seychelles could be met needed to be resolved. To that end, the CO official proposed that the costs of resettling Ilois from Chagos should be met from CO funds for aid; thus the uncertainty as to how much they would amount to would no longer hold up the Seychelles airport. But the thinking behind the willingness of the CO to take on this financial responsibility was that there were very few permanent inhabitants who would require resettlement, and even those might well be accommodated upon other coconut islands in BIOT or Agalega. It was regarded as very questionable whether a defence facility would ever proceed and it would not be for some years anyway.
- The reply from the Seychelles agreed that Ilois could be transferred as a resident labour force to other BIOT islands or to Agalega and that there was no need to pursue the suggestion once made by Robert Newton that they be resettled as smallholders; they would retain their "present status as labourers resident on private property". This reply was also sent to the MoD, (5/385).
- The BIOT Commissioner followed this up on 3rd June, (5/388), with a detailed analysis of various resettlement schemes for those on Diego Garcia: resettlement on Peros Banhos and Salomon, or on Agalega or on one of the uninhabited islands of the Chagos archipelago such as Egmont or Three Brothers which had been used for coconut plantations in the past. Thought was also given to the possibility that the other Chagos islands might also have to be evacuated; Agalega was seen as the likely place for resettlement in that eventuality. Apart from that eventuality, however, the Commissioner thought that resettlement on one of the currently uninhabited Chagos islands was the best option.
- The next day, he sent another despatch to the CO, **(5/396)(D). It showed the total Ilois on the three inhabited islands of BIOT to number 434 in March 1968. This figure was said to derive from an objective assessment of where individuals were born, which was contrasted with the earlier and higher assessments of November 1966 (563) and May 1967(487), which was based on how people classified themselves. There were 128 on Diego Garcia and 40 more on Peros Banhos. Of the 128 Ilois on Diego Garcia, there were 57 adults and 71 children. There were in addition on Diego Garcia 230 Seychellois, mostly adults and predominantly male, with a further 22 Mauritians. What then follows is important to the Claimants' case.
"4. The definition used for Ilois, (ie persons born in Chagos or Mauritius whose father, or in the case of illegitimate children whose mother was born in Chagos), means that all those shown under this heading are at least second generation Ilois, and that 354 of these are at least third generation Ilois. No attempt has been made to go further back, but the figures show 434 persons whose roots are firmly established in Chagos and who would not normally be thought of as temporary inhabitants. To this must be added an unknown number of people at present living in Mauritius who are also of Ilois origin.
- If we are to maintain that there are no permanent inhabitants, it is therefore apparent that we shall have to find some other basis than birth to support our claim ."
- He referred to the fact that a number of Ilois have taken holidays in Mauritius, or paid other visits there, but said:
"5. The length of their absence varies, but we cannot on this basis alone deny their more than temporary connection with the islands.6. We must now turn to the question of the status of the Ilois on the islands, and it is here that we can find some justification for denying them the status of permanent inhabitants. As far as we are aware, the islands have been either leased or in private occupation ever since they were inhabited and the inhabitants have been on the island only because they were employed by the owners or lessees or were members of the family of persons so employed. None of the inhabitants owns any land on the islands and the houses in which they live are the property of the owners. Neither do they have the permanent right to use any land on the islands. The position therefore seems to be that the owners or lessees of the islands have a legal right to remove any person from any of the Chagos islands provided that in doing so they do not break the terms that persons' contract and equally that they have the right to refuse to allow any person to return to the islands. The fact that the islands are owned by the Crown and either leased or managed on behalf of the Crown does not change this position and we may therefore contend that as no-one has any right to reside permanently on the islands, there can be no permanent inhabitants.7. It seems to be accepted by the labourers that the owners have the right to transfer them to other islands and that, if their work or conduct is unsatisfactory, they may be dismissed and returned to Mauritius. Such cases do occur, although they are not numerous. On the other hand, we had in February the case of 70 Ilois in Mauritius, apparently claiming the right to return to work in Chagos and being supported in this by the Mauritius Immigration and Labour Authorities therefore, if we do have to remove Ilois from the islands, we shall have to expect some opposition from the people themselves and possibly from the Mauritius Government. When making resettlement plans, we can attempt to overcome the first problem by making the transfer advantageous to those moved (eg by providing better accommodation) and we shall have to attempt to forestall any objections by the Mauritius Government by securing their admission that the Ilois are Mauritians ."
- On 19th June 1968, the Commissioner sent to the CO a draft Immigration Ordinance, *(5/402)(P),: he said that as the Ilois were Mauritians with no right to permanent residence in Chagos, then all persons living in Chagos could be required to hold a pass allowing them to live there. He did recognise however that he was not an expert on the difficult question of domicile. The draft which he enclosed was not noticeably different from what had been previously discussed.
- On 24th June 1968, in an internal CO minute, Mr Seller of the CO said to Mr Jerrom, (5/411):
"As you know, the prime objective of the BIOT exercise was that the Mauritian and Seychelles islands hived off into the new territory should be under the greatest possible degree of United Kingdom control."
- He referred to the purchases of the freeholds in Chagos, using part of the £10,000,000 earmarked for the BIOT operation. He said that only Aldabra did not belong lock, stock and barrel to HMG. Defence Lands, on whose behalf the former owners were managing the plantations, had expressed themselves to be not entirely happy to have responsibility for the plantations to which they had no access and over which they could not exercise any real control. Defence Lands wanted responsibility for the management and administrative arrangements to be placed upon the Commissioner of BIOT. This memo also appears to initiate an intricate minuet between Defence Lands and the CO as to whether the title to the islands vested in the Commissioner should continue to be vested in him or the MoD on behalf of the Crown. Part of the problems about what to do with the islands is reflected in two letters from the BIOT Commissioner to the CO on 6th June 1968, (23/178 and 180). These reflect his belief that with capital investment and a quick decision, the islands could be made to pay their way and be profitable within 3 to 4 years. This was at a time when the timescale of the American requirement was unknown but there was obviously a desire to make the most of the capital laid out on the purchase in the interim, as is clear from other documents. But it was to be affected by the unwillingness of the Americans to say that no other islands were to be required. It suggests that, absent US requirement, the islands could have been profitable but I do not accept Mr Allen's suggestion that it itself shows that Peros Banhos and Salomon alone could have been profitable and disproves the Defendant's contention that economic conditions caused the evacuation of Peros Banhos. But it points to the Chagos as a whole as having had the potential, on certain assumptions as to costs and investment, to be profitable over time.
- On 2nd July 1968, Moulinie & Co wrote to the BIOT Administrator, referring to the temporary agreement under which it managed the islands, and sought confirmation that the agreement would be renewed under the same conditions as outlined in the November 1967 correspondence until the end of 1968, (5/412).
- However, an important development occurred on 5th July 1968, when the US informed the FO that it had decided to go ahead with a facility on Diego Garcia described as an austere communications facility with runway, storage and anchorage. However, Congressional approval had yet to be obtained but it was hoped that that would be forthcoming within the next 12 months. This seemingly reduced uncertainties, but hastened the need to consider resettlement, but the timetable was to be stretched as time went by, (5/414).
- The FO explained to the MoD the difficulties which would arise at the UN if BIOT were found to have a resident population, as the aim had been to find a territory without one, and pointed out that there were advantages in postponing the announcement of the project until 1969. It suggested that these difficulties should, however, not be spelt out to Ministers on the assumption that it was more important to facilitate the project at Diego Garcia than to provide a water-tight case at the UN. The minute of 18th July **(5/421)(P), excused the FO's position by stating that when BIOT had been established "we then had no precise idea of the degree of permanency of the inhabitants, although we knew that there were a few Ilois ie people born in the islands of parents who were also born in the islands". It was now aware of the March 1968 census showing that on Diego Garcia, 128 out of 380 were at least second generation inhabitants, and acknowledged that it would be very difficult to assert "that normal objections to moving a population and the normal requirement to consult them do not apply".
- A draft submission to the PM was prepared and comments requested. One of the comments from the FO related to the passage in the draft which said that there was no indigenous or permanent population. It commented that it would be advisable to establish, in advance if possible, what the "shifting population " of the islands consisted of and how they would be affected as this was seen as a key point for potential criticism, *(5-420)(ND).
- On 24th July, the CO commented, *(5/428)(P), on the draft submission to the Prime Minister, dealing with the resettlement of the existing population and the employment of local labour. It acknowledged that resettlement would be complicated, but said that it did not need to be examined in detail at this stage. The Ilois were entitled to Mauritian citizenship, but the Mauritian Government's reaction was not yet clear over the recognition of that citizenship. It was recognised that the position in the United Nations could be difficult, but in the light of the fact that the islands were occupied "largely by migrant workers, and that it could be said that there was no indigenous population", it would be possible, if necessary, to deny the competence of the United Nations to concern itself with that territory. However, the object had to be:
"(a) to demonstrate that we are dealing fairly and humanely with them, and (b) to do this in a way which does not weaken our case for saying, if necessary, that the United Nations has no competence to concern itself with this territory. Clearly the Ilois present the main difficulty here."
- The Foreign Secretary sent a minute to the Prime Minister dated 25th July 1968 seeking approval for the UK response to the US decision to proceed with the defence facility on Diego Garcia, *(5/434)(P). Approval appears to have been given. The Defendants rely strongly on this. It was accompanied by an annex on the position of the inhabitants. The minute deals with the origin of the proposal, acknowledging that it was one of the reasons for the inclusion of the island in BIOT. Political concerns over the position of the Indian Government were touched on and then the position of the inhabitants was dealt with in these terms:
"It must be expected that the argument will be put forward in the General Assembly that the interests of the local population are being ignored, and this may receive appreciable support; but we have been able to resist such arguments by pointing out that the inhabitants consist mostly of migrant workers from Mauritius and Seychelles. We have not yet completed arrangements for resettlement of the inhabitants of Diego Garcia or for showing that they remain Mauritian or Seychellois, nor have we consulted the Mauritius Government. Resettlement will involve some small expenses, but it is not expected that there will be any financial difficulty in this. When the arrangements are complete, and they may be complicated by a recently completed survey which found that 128 individuals (about 34% of the total population of 389) are now second generation inhabitants of Diego Garcia, we would propose, as agreed at the time of the creation of the British Indian Ocean Territory, to deny, if necessary, the competence of the United Nations to concern itself with a territory which has no indigenous population." [An official has written beside that last sentence that it was difficult to square the beginning of it with its end.]
- The annex on the position of the inhabitants said that there were at present 380 people living on Diego Garcia, of which 22 were Mauritians, 230 Seychellois and the remaining 128 were described as Ilois, who had some connection by descent with the Chagos Archipelago, "eg some of them are now second-generation inhabitants of the Archipelago". The annex said that it had been understood when BIOT was set up that the people living on islands required for defence purposes would probably have to be moved and that the majority in the UN might well protest against the movement of people from the islands. It had been agreed, however, that in the light of the fact "that the islands were occupied largely by migrant workers, and that it could be said that there was no indigenous population" it would be possible, if necessary, to deny the competence of the United Nations to concern itself with such a territory. The note repeated what had been said elsewhere, (5/449):
"It can be said that the Mauritians and Seychellois are temporary residents on Diego Garcia. From the point of view of descent, most of the Ilois will be able to establish more than a temporary connexion with the Chagos Archipelago and some of them with Diego Garcia itself. But, as far as we are aware, the islands have been either leased or in private occupation ever since they were inhabited, and the inhabitants have been there only because they were employed by the owners or lessees or were dependants of persons so employed. None of them owns any land and the houses in which they live are the property of the owners. The position seems to be that the owners or lessees of the islands have legal right to remove any person from any of the islands (provided they do not break the terms of that person's contract of employment) and equally that they have the right to refuse to allow any person to return to the islands. In this sense, it can be contended that as no-one has any right to reside permanently on the islands, there can be no permanent inhabitants; and it seems to be accepted by the labourers that the owners of the islands (now the Crown) have the right to transfer them to other islands".
- The Commonwealth Secretary also sent a minute to the Prime Minister in which he expressed his special concern about the resettlement of the 380 people living on Diego Garcia, none of whom could be classed as permanent inhabitants. He said that further information was required as to whether other islands would be required and whether the Americans would wish to keep some of the present inhabitants on the island of Diego Garcia, *(5/451)(P,R).
- As from around this time, resettlement plans began to be looked at in more detail, but there remained uncertainty over the timing of the US requirement on Diego Garcia, the extent of the displacement of its inhabitants which that would require and over the question of whether the US would require, for defence purposes, any other islands in the Chagos upon which otherwise the inhabitants of Diego Garcia might settle.
- On 16th July 1968, the BIOT Administrator, Mr Todd, sent a letter to Mr Seller at the CO requesting advance details of the resettlement proposals and in particular details of whether plantations on islands other than Diego Garcia were to be maintained. He said that it would be a great help if Moulinie & Co could be taken into their confidence because of the resettlement plans which needed to be made, (5/418).
- The BIOT Commissioner followed this up in a despatch to the CO on 1st August 1968 in which he raised the question of whether it would be possible to continue running some of the cultivated areas on Diego Garcia even with the US facility. He saw there as being a difficulty in relation to security and a difficulty in relation to the existence of a permanent population. This he saw as capable of being met by removing the Ilois and resettling them elsewhere and running the plantation with contract labour. Although he saw the advantages of being able to use Mauritian and Seychelles labour on construction projects associated with the facility, he said: (4/454)
"If the Ilois are to be resettled, I consider we should remove them as family units and not leave the men behind to work on the defence project."
- He referred to the fact that on Diego Garcia male Seychellois outnumbered other labourers by three to one. He also assumed that the other islands would continue to be operated as coconut plantations.
- A CO minute of 31st July 1968 raised, in the context of the uncertainty over the US requirement, the interests of the inhabitants of Diego Garcia and all the other BIOT islands, saying that those interests had to take first place in any "exercise" which might be undertaken by way of resettlement, *(5/453)(R). (This links in with the correspondence about moving as family units and Seychellois outnumbering others 3-1.) A number of measures were proposed to deal with methods of resettlement and resolving these uncertainties. One matter in respect of which agreement was said to be necessary, at least between the CO and the FO, was "on the form of words to be used in future regarding the limited status of the people in the islands from the point of view of permanency of tenure (ie we try the line of argument put forward by the Commissioner on the lawyers) and work out with them a formulation which can be used when necessary", *(5/458)(P). But it also sought agreement from the US that BIOT could use the other islands of the Chagos for the resettlement of the inhabitants of Diego Garcia and that was a feature of subsequent official discussions in August.
- Officials met on 12th August 1968, (5/463)(P). It was generally agreed to be best that Diego Garcia be cleared of its population, from all points of view including presentation at the UN. Those concerned with the UN pointed out the need to maintain the stance that the population was "merely a bunch of migrant labourers" and that it was necessary to show that all those living on Diego Garcia were nationals of either Mauritius or the Seychelles and had no rights other than those of dismissed employees. This, in practical terms, made it desirable that there be a suitable nationality and immigration law and there be no treatment of the Ilois suggesting that their resettlement outside Diego Garcia was "in some way contrary to their natural rights". The wrong impression might be given if they were resettled within Chagos, particularly if this were done with compensation, ie that UK had "some moral obligation to maintain the Ilois in this area because it was their natural home", **(5/463)(P). The representatives of the Foreign Office department concerned with the islands pointed out the difficulties which might arise if the islanders were settled outside the Chagos Archipelago and were offered opportunities for resettlement on a Mauritius dependency or in the Seychelles. The Americans had to give clear reasons if they wanted to clear any other islands of their inhabitants or prevent settlement on uninhabited islands. There was no definitive answer as to the US position and it was possible that they would not insist on the evacuation of the whole Archipelago. The minute records that the meeting came to no very firm conclusions, but that from all points of view it would be best to clear Diego Garcia of all plantation activity. The proposals for resettlement put forward by the Governor presented problems, some of which might be resolved if the US position were made clearer.
- A minute by the CO, (5/466), to its legal adviser dealing with Ilois tenure and citizenship raised doubts about whether the Commissioner's view that the Ilois could be treated as Mauritians in the way in which he had described was right, and legal advice was sought. But Mr Jerrom expressed his own view that the peculiar system of property tenure did not justify the actions suggested by the Commissioner and confirmed that it would have to be accepted that the Ilois staying in BIOT would continue to possess dual nationality of Mauritius and of the UK and Colonies. These were, however, seen as only a small number and Article 73 could not apply either to the Mauritians or Seychellois migrant workers or just to a small section of population with dual citizenship. The legal adviser's response, *(5/478)(P), on 26th August was to the effect that it would not be right to compel inhabitants of BIOT, who were citizens of the United Kingdom and Colonies, to leave BIOT without giving them the option of settling either in some other UK dependency or in the UK itself or of going to some other country to the citizenship of which they were entitled or the Government of which was willing to admit them. It said that it should be possible to persuade them that it was in their best interests to leave voluntarily rather than to be deported. Although there was a need to take account of UN obligations, there was no objection in principle to immigration controls, including a system of revocable passes for all inhabitants. He took the view that it should be possible to meet the criticisms which might arise in the UN based on Article 73, on the grounds that BIOT had no indigenous population and that the interests of the inhabitants required their resettlement elsewhere. He concluded, however, that Clause 11 of the draft Immigration Ordinance was objectionable.
- The aim, as expressed by one official, (5/482), was to establish "a situation where there were no individuals with claims on BIOT or without claims on either Mauritius or Seychelles" but that was still a matter for discussion within Whitehall.
- In August 1968, UK Ministers approved the US proposal for the development of the defence facility on Diego Garcia and recognised the need for consequent negotiations with them about a range of issues. The CO said to the BIOT Commissioner that the UK had to give the Ilois "special consideration (both on presentational and humanitarian grounds) but without broadcasting this aspect of our policy or acting in a way calculated to build up their existence as a separate community. It seems to us that it would be helpful from this point of view if some measure of choice for separate families could be included in resettlement planning", **(5/477)(P,R). This choice could consist of other Chagos islands or Agalega or even possibly the Seychelles for a few.
- On 2nd September 1968, however, the BIOT Commissioner had written to the CO saying that if Diego Garcia had to be resettled, there were only 30 Ilois families, but if all the Chagos Ilois had to be resettled, there would be some 90 families and it was doubtful whether Agalega could accept all of those people. If only Diego Garcia were to be resettled, it was agreed by the Commissioner that a choice of elsewhere in the Chagos or Agalega should be offered as far as possible, (5/483).
- An internal minute from the UN Political Department of the FO expressed surprise that the PIOD of the FO was said now to be coming to the view that the UK might have to resign itself to having a permanent population in BIOT. "Since BIOT was created at great expense and some international criticism to avoid having a permanent population, I think Ministers would wish to be aware of the situation." This was said to be rather a different position from that presented by the Foreign Secretary to the Prime Minister on 25th July, (5/486).
- The issue raised by Mr Donohoe in the minute of 3rd September was echoed in a further minute from Mr Lambert to Mr Jerrom on 4th September 1968 **(5/492)(P), within the CO. It started by referring to the legal advisers minutes which suggested that "rather more radical difficulties stand in the way of our originally agreed objective than those of which we advised the Foreign Secretary when he minuted to the Prime Minister on 25th July". He referred to the inter-departmentally agreed objective of establishing "a situation where there were no individuals with claims on BIOT or without claims on either Mauritius or Seychelles". The purpose of this was to "avoid acknowledging charter obligations towards these people". Hence the public argument that the inhabitants are "migratory labourers". The note continued, in paragraph 3:
"We advised the Foreign Secretary that the latter argument might be difficult to sustain in view of the recent discovery that the numbers of second-generation 'Ilois' were much greater than originally anticipated. However, it then seemed to us possible, by the legislation proposed by the Commissioner to require the inhabitants to have documents showing either that they were citizens of Mauritius or could be identified as coming from the Seychelles."
- The fact that 500 from the Chagos, including the Ilois, had Mauritian citizenship and that the Governor of Seychelles had said that his Government would issue certificates of nationality in respect of the remaining 300 in Chagos underlay what had been written by the Foreign Secretary to the Prime Minister on 25th July. But he then pointed out:
"We did not then know that by virtue of Section 3(1), (2) and (3) of the Mauritius Independence Act, those inhabitants of BIOT which had acquired Mauritian citizenship when Mauritius became independent did not cease to be citizens of the UK and Colonies ."
- As Mr Aust, a legal adviser at the FCO, noted on the minute, that only applied to certain BIOT inhabitants. This is described as a "revelation" by the author, who then set out the situation as he understands it:
"All the inhabitants of BIOT are citizens of the UK and Colonies and they are all entitled to a UK passport with the Colonial endorsement;
In the case of Seychellois living in BIOT, no doubt the Governor of Seychelles could ensue that the colonial endorsement would record the fact that they belonged to Seychelles ; these form the majority of persons living in BIOT, but are unlikely to exceed 1,000 [of the estimated population of under 1,500];
Some 500 others (including the 434 second-generation 'Ilois') have dual nationality. If they applied for a UK passport, presumably the Colonial endorsement could only reveal that they belong to BIOT since there was no other British Colony to which they could belong. This would create difficulties for our public assertion that BIOT had no permanent population. On the other hand, if they applied for and got a Mauritian passport they would not automatically lose their UK citizenship, unless they formally renounced it. If they went to live in Mauritius, however, they could presumably be refused re-entry into BIOT. This latter point is worth bearing in mind.
If my analysis is correct, it clearly contains the seeds of a serious problem; viz. the original purpose of creating a territory without a permanent population is unlikely to be fulfilled unless something radical is done about it."
- Mr Aust appears to have made some comments dissenting from parts of this analysis in handwriting. The author's suggested alternatives were leaving the inhabitants within BIOT, which would give rise to the problems of the Charter obligations which BIOT had been created to avoid, or the piecemeal removal of the inhabitants of BIOT as individual islands were required for military use, which, in the case of Diego Garcia, would be 380 people but up to 1,000 others could remain in BIOT; or the complete removal of the inhabitants elsewhere which would require a far bigger resettlement scheme, but would solve the problem "which the creation of BIOT was intended to solve, once and for all". It was recognised that this would face rather more criticism but that was inevitable anyway, and, from the point of view of justifying matters in the UN, he would prefer the latter course to be adopted. But he said that Ministers should be given the opportunity of choosing the alternatives and said "Had Ministers known that there was a serious prospect of retaining a permanent population in BIOT, I doubt very much whether they would have approved the expenditure of several million pounds to create the territory".
- On 3rd September 1968, the FO informed the US of its approval to the US proposal. The letter conveying this, **(5/487-8)(P), reiterated that there were no permanent inhabitants on Diego Garcia and none owned land or houses, but that an early decision was necessary on which other islands, if any, would be required for the purposes of resettling any displaced people, an issue which could give rise to difficulties at the UN. An announcement was best left till after the end of the session of the UN General Assembly. But the problems facing the UK Government in making plans for resettlement or for the continued operation of the plantations were compounded by a letter from the US dated 19th October 1968 in which it was advised that the project was undergoing a review by the US military and a decision on budgetary implications could not be taken until the new administration had approved them in the new year and detailed discussions would have to wait until then; for public consumption the consideration of defence facilities was under review as it had been since 1966. Nonetheless the UK Government continued to press for answers to the questions which it had raised because of the resettlement problems which it anticipated.
- The BIOT Administrator made a further visit to the Chagos islands in the first two weeks of September 1968. He went with Mr Marcel Moulinie, who was representing Moulinie & Co (Seychelles) Limited. He reported, (4/293), that the plantations on Diego Garcia were generally in poor condition and that much clearing remained to be done. "The number of labourers on the island has decreased, as many of the Ilois have returned to Mauritius and it has not proved possible to replace them from Seychelles. This is the main reason for the drop in production for the first seven months ." There were pigs and cattle on the island and the labourers were noted as keeping hens and ducks. On Peros Banhos there had been a reduction in production, despite an increase in the number of labourers, although on Salomon the labour-force had remained the same. The Administrator's general comment was that the plantations were all producing less than could be produced, due to the uncertainty as to their future. If production were to be improved, a short-term increase in labour-force was necessary, but that depended upon the availability of labour and housing. Seychelles labour was not at present available in large numbers because of the airport project; Mauritius labour was available but it was more economic to reduce communications between the islands and Mauritius because the "Nordvaer" plied between the Seychelles and Chagos, but it should be possible, he thought, to increase the labour force to fill the housing. The general standard of that housing was low and unoccupied houses rapidly fell into disrepair. For the longer term, considerably more investment would be required in a number of ways, which would be unlikely with the prospect of the islands having to be abandoned at short notice.
- The Administrator described the general standard of quarters on Chagos as poor, except for the new type of quarters on Diego Garcia. In general, the standard was lower than that on the average Seychelles outlying island. The camps were generally clean, but ration supplies suffered from periodic shortages because they were now being ordered on a three-monthly rather than a six-monthly basis by the management company so as to reduce the capital outlay on those items and to reduce the period over which they had to obtain a return. He commented that the physical conditions of the labourers were acceptable but there was no provision for their social welfare. Medical provisions were good and the schools were run rather in the way they had been before, but attendance was irregular. The civil status records were in good order, but he referred to the high degree of mobility between families, reflected in the percentage of illegitimate births which would add to the problems of resettlement should that become necessary. He concluded overall that the islands were suffering from uncertainty as to their future, and that whilst this uncertainty lasted there was little that could be done to increase production except in the case of Diego Garcia where the present labour-force could be more economically used. In general, the condition of the islands was as good as could be expected with the present limitation on exploitation. There does not appear to have been a separate population count done for this visit but it lists a total of 232 people in employment on Diego Garcia, of which 175 were male and 57 female. 181 of the 232 were labourers, and 20 more are listed as "Boys". The remainder include managers, clerical staff, the teacher and 13 artisans and 6 overseers. There were 99 employed on Peros Banhos and 91 employed on Salomon.
- The Administrator and the Commissioner of BIOT paid a visit to the islands in November 1968, again accompanied by Mr Marcel Moulinie. The notes of the visit maintain the position that the labour-force on Diego Garcia was too small to run the islands efficiently "or even to maintain the present position". The ration supplies and shops on the islands were adequate, with the exception of that on Diego Garcia. The general conclusion was again that the Chagos islands functioned as coconut plantations "but with a gradually declining population and an almost complete lack of capital investment, they are reaching the point where they are becoming uneconomic and the condition of the plantations and buildings is steadily deteriorating".(4/308).
- It was after Mr Todd's return from his September visit to the Chagos that the BIOT Commissioner contemplated recommending an increase in the recruitment of Seychellois for Peros Banhos and Salomon, but proposed to delay that if Diego Garcia were to be evacuated because the Ilois could be recruited instead. But in the absence of an increase in the labour-force, there would be decreased production and economic loss so a decision soon was to be desired. A decision was sought before the beginning of November when Moulinie was expected to begin recruitment of additional Seychellois for Peros Banhos and Salomon. The PIOD suggested to Mr Jerrom that until the position of the Americans as to the clearance of the whole of the Chagos was known, the BIOT Commissioner could be advised "to instruct Moulinie to cease recruitment of further labour". He suggested as a possible solution to the resettlement problem that action should be taken quickly before the American proposal became public when it was submitted to Congress, and that to "preserve the image that these people [on Diego Garcia] are being offered alternative employment on other islands, or their contracts terminated resulting from the decision by management to terminate the lease, we have until say the end of 1969 to complete the operation. I would imagine this could be done gradually with not more than slight opposition by perhaps some of the plantation workers", **(5/503) (R).
- In another memo of 20th September 1968, the same official raised the question of whether, with the new management company on Chagos, Diego Garcia should not be allowed to run down leaving the management to gradually dispense with labour as contracts expired, whilst simultaneously offering jobs as they arose in the other Chagos islands and in Agalega. It was thought that if the management company could be taken into their confidence over the resettlement problem, they could divert the Ilois to Agalega and the Seychellois to other Chagos islands and thus dispose of the Diego Garcia problem. But it was said that: (5/505)
"As time appears to be all important if a smooth and economical exercise is to be carried out with the minimum of publicity, it is for consideration whether a plan of this nature might resolve the situation well before the Diego Garcia project is presented to Congress and becomes public knowledge.In summary, the recognition by the management that copra production in Chagos is not a sufficiently economic proposition for them to wish to continue with the lease, leaves the way open for us to abandon the plantation on this score, leaving the commercial management to gradually run down the plantation under guidance from the Commissioner."Advantages were seen in removing as many Ilois as possible from Deigo Garcia before the US announcement.
- The issue of citizenship continued to vex the CO's legal advisors and, in a note Mr Aust said, on 9th October 1968, *(5/518)(P,R) that the only place to which UK citizens living in BIOT could "belong" if they did not belong to another colony would be the UK itself. He said that he imagined that this was not wanted but then continued that he could not see how "we could therefore refuse such a person the right to re-enter BIOT even if he were also a Mauritian citizen". Entry to BIOT could not be refused unless, someone added, they were given rights to enter some other colony eg Seychelles, to which the legal adviser, Mr Rushford, added "no". I doubt that this simply declines an invitation to a meeting.
- The problems created in running the plantations by the uncertainty over their future was reflected in the accounts for the year ending 31st December 1967 submitted by Chagos Agalega Company Limited and which the BIOT Commissioner transmitted to the CO. It was noted that although it would be preferable to run the islands on a lease, because any such lease would require a provision enabling it to be terminated on six-months notice, such a basis would make it impossible to develop the islands because the necessary capital investment would not be forthcoming. Indeed, so long as the islands were run on a care and maintenance basis, the profit made in 1967 was expected to decrease year by year. He pointed out that there was no choice but to accept the management agreement proposed as long ago as December 1967, unless the politically unacceptable choice were made of not running the islands at all, (5/522).
- The uncertainty created by the American proposal again featured in the BIOT Commissioner's dealings with the CO in October 1968. He pointed out that although the labour-force in the other islands had increased between May 1967 and March 1968 it had fallen in respect of Diego Garcia. The reduction in labour-force on Diego Garcia, said the BIOT Commissioner, "undoubtedly results from uncertainty of the position". The regular change-overs in the labour intakes could only be at a reduced rate dictated by the present position, *(5/536)(R). "You will understand even Ilois return regularly to Mauritius." He thought that references to negotiations with the Ministry of Defence might relate to discussions over the management agreement.
- Apart from the problems created by the uncertainty over the future of the other islands, and the timing of the US requirement on Diego Garcia, which in turn was counter-balanced by the desire of the UK Government to see some form of commercial exploitation of the coconut plantations for as long as possible, the physical arrangements for the accommodation of any Ilois displaced from Diego Garcia on the other islands was identified. Because there was insufficient housing for an increased labour-force on Peros Banhos or Salomon, either there would have to be a return of Seychellois to Seychelles or Diego Garcia, or an increase in housing. To move the Seychellois would cause adverse comment if they went to the Seychelles, or if to Diego Garcia, that would make it "impossible to disguise the move of the Ilois from Diego Garcia as a commercial operation", *(5/537), Seychelles Governor to CO, 12th October 1968. In any event, the Ilois needed some incentive to move and that could not be provided if they had to move to inferior quality houses on the other islands. Hence, there had to be suitable pre-fabricated buildings brought in from South Africa and to proceed on that basis would take six months.
- Discussion over BIOT immigration continued within the FCO. Mr Aust set out a note on 23rd October 1968, (5/555) *(P), explaining the position in some detail as he saw it. He urged that there be a definite policy with regard to the future of the inhabitants decided upon by the various departments before any decision could be taken in relation to passports or immigration. He added:
"Whilst the details of that policy are not my concern, I should make the point that the legal position of the inhabitants would be greatly simplified from our point of view (though not necessarily from theirs) if we decide to treat them as a floating population without real ties to BIOT".
- Mr Aust next dealt with the term "Belonger". He said this was seldom used in legislation and was a much misunderstood concept. The term was found in non-statutory administrative rules where a decision had to be made as to whether a person had a sufficient connection with a particular territory to justify that territory issuing him with a passport. It had a more general use in a loose analytical way to describe a person with certain tangible connections with a particular country. I consider this analysis to be obvious and correct. But a person could be a "Belonger" for passport, but not for immigration, purposes. He added:
"With the present problem, we should be careful not to be misled into thinking that, because some of the inhabitants of BIOT were born there or have lived there for some years, they have thus acquired a 'Belonger' status which gives them a legal or moral right to remain there. By treating them so, we shall be tying our own hands when at present there is no reason why we should do so."
- He then turned to immigration. He identified the problem that arose from the application of Seychelles immigration law to part of BIOT and of Mauritian law to the rest of it. He then said:
"6. There is nothing wrong in law or in principle to enacting an immigration law which enables the Commissioner to deport inhabitants of BIOT. Even in international law, there is no established rule that a citizen has a right to enter or remain in his country of origin/birth/nationality etc. A provision to this effect is contained in Protocol No 4 to the European Convention on Human Rights, but that Protocol has not been ratified by us and thus we do not regard the UK as bound by such a rule. In this respect, we are able to make the rules up as we go along and treat the inhabitants of BIOT as not 'belonging' to it in any sense. If, however, the inhabitants of BIOT become an established community in the future, then to take powers to deport them would have obvious political and moral objections. We may even ratify Protocol No 4."
- Mr Aust then turned to passports, and said that subject to the odd exception, all the inhabitants of BIOT were citizens of the UK and Colonies and that many were also citizens of Mauritius whether or not they held Mauritian passports. He said that if a UK citizen asked for a passport, he would almost certainly be granted one, although that was a matter of prerogative and not entitlement. He then finished by saying that citizenship was only relevant to the question of whether a person was eligible for a passport. Both Claimants and Defendants relied on various passages in that note for their cases.
- It was apparent from other internal memos that there had been as yet no policy agreed on the removal of citizenship of the UK and Colonies from someone born in a colony.
- Discussion over the proposed BIOT Immigration Ordinance continued with a telegram from the FCO to the Commissioner and Administrator of BIOT on 25th October 1968 *(5/564 and 568)(ND). The FCO said that the difficulty in dealing with this subject "has arisen from the fact that it was not appreciated at the time that the grant of Mauritius citizenship to many of the Ilois would not affect their rights as citizens of the UK and Colonies". He then said that it was recognised that persons born in BIOT with automatic Mauritian citizenship would not be deprived of their UK and Colonies citizenship and could be granted UK passports, though without an unrestricted right of entry into the UK. It would not have been justified to take away citizenship of the UK and Colonies from a person born in the colony even if he had acquired another citizenship, but the point was not considered very far at the time. Retention of that citizenship put in question any action to prevent their return to Chagos particularly if they could not be settled elsewhere. The FCO then referred to the legal advice which had been given that it was not right to compel BIOT inhabitants who were CUKC to leave without options and that draft section 11 was objectionable. The FCO continued that as it was now clear that not all inhabitants of BIOT were either solely Mauritian nationals or citizens of the UK and Colonies entitled to a Seychelles passport, it was necessary to consider how to deal with any citizens of the UK and Colonies "who may, by prolonged residence in BIOT, be able to claim 'Belonger' status in BIOT". If a UK passport were issued by the Commissioner of BIOT to those persons "it seems to be inevitable that this would be regarded or interpreted as establishing 'Belonger' rights in the immigration sense, and we should rapidly reach a position where it was not possible to maintain that there were no persons with claims to permanent residence in BIOT". The only other course would be for citizens of the UK and Colonies who derived that status from being born in BIOT to be allowed unrestricted entry to the Seychelles and to be eligible for UK passports issued by that colonial government.
- On 19th July 1968, the Mauritius Government, through its Ministry of Social Security, raised with the British High Commissioner in Mauritius the problem of people who had been working in BIOT who, in May 1967, had come to Mauritius to spend their leave and when they wanted to go back had found out in March 1968, from Messrs Rogers & Co "who had taken up the matter with their Principals in that territory that they would not be recruited for further employment. A further batch of persons arrived in Mauritius from that territory on 30th March 1968." (5/425). The Ministry pointed out that it had decided to give these people assistance on a temporary basis as they were destitute, that there were 120 persons, exclusive of children, who received assistance and that it had been decided that no further assistance should be given and the question of compensation should be raised with the British. In support of that, reference was made to the agreement between the British and Mauritius Governments in 1965 under which the British Government had undertaken to meet the full cost of the resettlement of Mauritians at present living in Chagos. The CO considered this matter and in a minute of 10th September 1968, *(5/496)(ND), said that this problem did not appear to arise from the question of possible future removal of workers and:
" it appears, from the facts available, to be a matter between employer and employee in which BIOT would not be directly involved, and the persons would appear to have no right to further employment in BIOT.It would seem advisable not to go beyond this on the evidence available, but there could possibly be some further complication if it was proved that some of the party concerned could be described as Ilois and have some connexion by descent with Chagos Archipelago. Without arising suspicion, could the HC discreetly obtain further information on the party concerned are they Mauritians or could they claim a connexion by descent?"
- This was the line taken in the CO's advice to the High Commissioner in Mauritius; the problem was one between employer and employee and could not stem from any defence proposals, *(5/498)(ND).
- However, the matter did not end there because on 17th September 1968, (5/499), the Prime Minister's Office in Mauritius wrote to the British High Commission stating that there were 55 persons born in BIOT now in Mauritius who had asked to be repatriated with their families "to their native island, where most have them have left their personal belongings". A list of names was attached. It said that the people had been employed by Chagos Agalega Company Limited but that, on expiry of their contract signed in Mauritius before a Magistrate, they had been returned to Mauritius on 19th May 1967 by the employers through Messrs Rogers & Co. (Some of those involved are among the Claimants.) The Prime Minister's Office said that it was understood that their contract had not been renewed "because the BIOT was not in favour of further labour intakes and that the Chagos-Agalega Limited have started negotiations with the British Ministry of Defence on this question". (This appears to be a reference to the telegram from Moulinie to Rogers.) In addition, it was said that there were 84 adults and 56 children from the Chagos who had arrived in Mauritius on 30th March 1968 and were also "stranded here". Relief provision had now been stopped. The Mauritius Government wanted proposals from the British Government for their resettlement.
- The High Commissioner followed up this matter by asking his official to call on the Chairman of Rogers & Co to see if he "could throw any additional light on the problem of 'displaced persons' from Diego Garcia and the Chagos and Salomon groups of islands". The official reported to the High Commissioner that Rogers & Co claimed to know nothing about the actual recruitment of workers, merely providing passages for them on instruction from the Chagos Agalega Company Limited. He said that he could well understand that with the cessation of operations by that company, the majority of workers had little option but to leave the islands. The High Commissioner did not accept that because the departures preceded the development on Diego Garcia that they stemmed primarily from an employer/employee dispute, and indeed thought that subsequent information suggested the contrary, (5/513-4).
- However, in reply on 9th October 1968, the CO said to the High Commissioner in Mauritius and to the BIOT Commissioner that there had been no formal written agreement between the two Governments on the cost of resettling Mauritians formerly living on the Chagos Archipelago but there had been a verbal acceptance in principle of payment to the Mauritius Government of the cost of resettling others in the Chagos islands who were affected. It emphasised that the phrase "others affected" referred to persons "necessarily removed from one or other of the islands because of the development of defence facilities thereon. Obviously there are not yet 'any persons affected' in this context. It is difficult to see how HMG can be held in any way responsible for action taken by Rogers & Co in 1967 in deciding against re-employment of these Mauritians". This was suggested to be the basis of a reply to the Mauritius Government, *(5/515; 19/52(a))(ND). The removal of all Ilois from Diego Garcia to Peros Banhos and Salomon in November was suggested by the CO.
- The BIOT Administrator, writing to the CO on 17th October 1968 and dealing in particular with the Ilois in respect of whom the Mauritius Government had been making representations, said that the employment of additional labour on the Chagos and the consequent acceptance of responsibility for their resettlement was an expensive commitment which could not be justified economically unless it were decided to develop the islands. He expressed sympathy with those displaced Ilois who had been, by their own standards, among the most fortunate of labourers in that they had had almost guaranteed employment. But now, for defence reasons, the guarantee had gone and they now found themselves in Mauritius, a country with an acute unemployment problem and as Mauritius had virtually no copra industry, with no opportunity to use the skills they possessed. He recognised that the relief provided for them by the Mauritius Government had been cut off. He recognised the advantages, however, of re-employing the Ilois before any announcement was made of the Diego Garcia project as a matter of a moral obligation but that doing so would place the Government in an economically very disadvantageous position as against the political advantage. He referred to Moulinie & Co's desire to recruit 100 extra labourers and expressed the view that the families thus recruited from the displaced Ilois on Mauritius could be resettled on Peros Banhos and Salomon because of its needs for labour should Diego Garcia have to be evacuated. The risk of a loss would only arise if the whole of the Chagos had to be evacuated. Hence the advantage of obtaining agreement from the Americans and then securing the agreement to the development of Peros Banhos and Salomon. The development of such an idea would require Moulinie & Co to be taken into their confidence as well as a certain future for Peros Banhos and Salomon, (5/541).
- By this stage, it had become apparent as what, on 17th October 1968, had become the FCO, minuted to the BIOT Commissioner that it was not worth waiting for an American response any more. The FCO told the High Commissioner in Mauritius that the decision to curtail further labour intakes did not stem from the BIOT authorities, (5/550). But it did agree, *(5/551)(P), that it would be very ill-advised to have any Mauritians back on Diego Garcia or any BIOT island. In connection with the Ilois on Mauritius, the FCO suggested to the BIOT Commissioner and High Commissioner of Mauritius, (5/553), that the obvious course was to avoid any reinforcement of labour-force in the islands until American plans were clearer, but that a strictly limited recruitment of labour in Mauritius could take place if a refusal to recruit any labour would lead to a serious political outcry there. It was obviously desirable not to increase the possible future resettlement problem.
- The prospect of recruiting some of those who were the subject matter of these exchanges was raised in October 1968 as Moulinie & Co were looking for further recruitment. An FCO paper of 24th October 1968, *(5/558)(P), said that any question of resettlement in Mauritius of former residents of Chagos could presumably only arise when plans for the development of Chagos were announced; this had not yet occurred. However, the present position appeared to be that Moulinie & Co wished to recruit more Ilois from Mauritius in order to increase its labour-force on Diego Garcia. This appeared to suggest that their cutbacks, if any, in their labour-force had not been because of the suggestions for defence facilities on Diego Garcia. The note continued:
"Nevertheless, from our point of view this might raise longer term problems if any future labour intakes have eventually to be resettled elsewhere. The possibility is at present being explored confining any labour intakes to a limited number of persons only."
- The note also said that the BIOT Commissioner had been consulted by the FO who had told them "that the decision to curtail labour intakes did not stem from the BIOT authorities as the Mauritians later suggested. Moreover, no negotiations had taken place, as the Mauritians also suggested, between the Chagos-Agalega Company and the Ministry of Defence."
- The BIOT Commissioner said to the FCO in a telegram of 28th October 1968 dealing with various aspects of the resettlement of the Ilois that, so far as those currently in Mauritius were concerned, that even though many would be acceptable to Moulinie, any selective recruitment would give rise to intensified pressure for the remainder to be taken back and that a one-year contract could lead to greater future embarrassment. Refusals of extensions to contracts "and possible subsequent forcible removal to Mauritius would presumably cause acute embarrassment and I consider that if we accept any returning Ilois, we must also accept responsibility for their ultimate resettlement," *(5/578)(DR). This was in line with FCO advice of 28th October that it would be very ill-advised to have any Mauritians back on Diego Garcia or any BIOT island.
- On 30th October 1968, Mr Johnston of the FCO reported on discussions which he had had with the US Administration in which he had explained why "we were authorising Moulinie to recruit a limited amount of extra labour for Chagos, and also our intention of continuing to develop the copra industry on Peros Banhos and Salomon", (5/585). The purpose was to explain how the UK needed to take decisions and wished to know whether the Americans really intended that Peros Banhos and Salomon be cleared of its population. He sent a minute dated 31st October 1968, (51/586), to the Minister in which the problem was raised, in these terms:
"Whether we should permit some 100 labourers who left Diego Garcia and other islands in the Chagos Archipelago over the past two years to return there from Mauritius on 6th November with their wives and families who may number up to two hundred and fifty."
- In favour of allowing their return was the fact that they were mostly born in the Chagos, and could claim to be "Belongers" of BIOT itself. Mr Moulinie wished to bring them back from Mauritius, and such a decision would avoid further friction with the Mauritius Government which was urging that the UK was financially responsible for the resettlement of these people who were, at present, unemployed and destitute. A refusal to allow them to return would lead the Government of India to assume that "we are planning to use Diego Garcia for defence purposes". The alternative argument was that the "British Indian Ocean Territory was established for Defence purposes, and we have agreed that the Americans may establish an 'austere Naval facility' on Diego Garcia". That island would probably have to be evacuated and Peros Banhos and Salomon, which could take those evacuated from Diego Garcia, and the extra labour proposed from Mauritius, might nonetheless also be evacuated at the Americans request.
- The issue was put as whether "our long term aim is to 'sterilise' the Territory by resettling elsewhere the whole of the existing population (and thus avoid our United Nations Charter obligations to a 'people'); or whether we should try to run those parts of the Territory, not required for Defence purposes at any given time, as an economic unit". Ultimately, authority was given to Moulinie & Co for him to recruit the labour on one year contracts.
- Eventually, because Moulinie wished to ship 100 Ilois and families from Mauritius for BIOT on 6th November 1968 with a survey party on a one-year contract of employment, it was decided at a meeting on 29th October 1968 that he would be told that 100 Ilois would be readmitted on this occasion on one-year contracts only but that no commitment could be made about the renewal of these contracts at this stage or about similar entry permits for others. Nonetheless, none of the officials in the FCO or MoD liked the position but yielded to that course to avoid a row with the Mauritius Government and the risk of early exposure of the plans for Diego Garcia. Those objections did not apply to a medium-term expansion of the population on other islands in the Chagos group, in respect of which the Americans were to be asked to make their position clear quickly. It was now agreed that the Commissioner of BIOT could authorise Moulinie to employ the displaced Ilois which he could do profitably, as soon as he received authorisation, he would authorise Moulinie to recruit and ship the labour to BIOT. On 1st November, those instructions were given by the FCO to the Seychelles with the associated restrictions. It was suggested to the BIOT Commissioner, however, that although it was a matter for him how he handled it, it might be put to Mr Moulinie that in view of the uncertainty about the future working of the plantations, the arrangements had been limited to a one-year contract and that that would act as a warning against future recruitment, (5/594).
- The BIOT Commissioner sent a telegram to the FCO on 5th November 1968, (5/601), saying that Moulinie & Co were today requesting Rogers & Co to recruit up to 100 men if passage could be obtained. It said that Moulinie's have accepted the terms which were imposed (one year contracts limited to Ilois and maximum 100 men) and that that had been accepted "as normal commercial operation, without our needing to give further explanation".
- After all of that, on 5th November 1968 the Commissioner of BIOT informed the FCO that Mr Moulinie had told him that the "Mauritius" was now unable to carry labourers as she was carrying petroleum products and no proposals were made for any other ship to carry the labourers and their families. The availability of any other ships is unknown and it appears that there had been no further voyages after that one by the "Mauritius" to Chagos by May 1969. Accordingly, the Ilois who had arrived in Mauritius in 1967 and 1968 remained there. The focus of shipping connections had changed as well, with the arrival in July 1968 of the "Nordvaer" in the Seychelles.
- The BIOT Commissioner responded to the FCO on 28th October 1968 dealing with the resettlement of the Ilois currently on Mauritius. Once again, the problem of recruitment of such labourers in relation to resettlement was raised, particularly as the Americans had not decided whether outer islands would need to be cleared, (5/578).
- Evidence was given to me by some Chagossians affected by these events who had gone to Mauritius in 1966 and 1968. Mrs Elyse said that after the death of her daughter, Noellie, she had gone to Rogers & Co, the shipping agent, to book their return passage but had been told that there were no more sailings, the islands or Diego Garcia had been sold to the Amercians, and it would not be safe to return to Peros Banhos because of bombs kept on Diego Garcia. When her husband had heard that the islands had been sold he became ill as if paralysed and just sat there doing nothing for two to three days. He then with his hand and leg paralysed lay on the bed until he died in about maybe 1976. He was suffering from "congestion" which means a stroke and its after-effects. She said that her husband fell down and became paralysed when she told them the news that they could not go back to Peros Banhos. Her son, in his statement, said that from 1971 onwards his father, distressed at the loss of his home and way of life, had had heart problems and died of a heart attack in May 1976. Mrs Elyse said that after they had tried to return to Chagos in 1968 they were living in one room with just one mattress, paying Rs 150 rent, but eventually they could not pay even that. They had left with all their savings which were Rs 10,000. While they were in the island they got lots of rice and foodstuffs given to them. All their personal possessions were left behind there. After one month and a half they went to live in another house, and she found domestic work and paid Rs 200 a month. She described the severe difficulties of life on Mauritius. She went to stay with her mother for about six years because she could no longer afford the rent. Mrs Elyse then said that when she left Peros Banhos for Mauritius she had gone to stay with her mother, who had come for a stomach operation before her, and she had stayed with her for two to three months before taking a house. When she had said that she had stayed six years with her mother, her head had been spinning. She had gone to stay with her mother first then to a family where she had to pay Rs 150 a month. She had got money from her brother, who worked in the docks, when she first arrived. Although her statement said that after she had seen Rogers & Co they found a small plot of land and squatted on it, building a small shelter with tin and wood and lived there for twenty years, she had said in her evidence how they rented houses. She said the reason for the contradiction was because her head was turning and she was distressed. They were now living in a house made by a South African company with four rooms and a drainage system, and had been for 14 years; previously she had bought land but the accommodation had been very bad. She was still working as a maid, because the pension was insufficient. If she got ill, she got free healthcare at the hospital but she had to pay to get there if someone could not take her. Although her statement said that she had no "effective access" to healthcare in Mauritius, she agreed that she had said that she had been to hospital recently, but she said that she had no right to free transport and free medicine, but she goes to hospital when she has the money. She received treatment for dizziness and mental health, her eyes and stomach.
- Mrs Jaffar said she had gone to Mauritius in 1966. She and her mother were told (it appears in 1967) by Rogers & Co that the islands had been sold by Mauritius, she did not say to whom, in return for independence. Their personal possessions also were left on Salomon. When they were told that they could not go back to Salomon they were staying with a neighbour and she had to leave school and abandon her education in order to find a job. Her mother had been unable to find work in Mauritius because she had become mad by that time; her witness statement said that her mother had been able to get a job after two years. They had had to rent a house made of corrugated iron with no running water or toilet facilities.
- She said that her step-father whom she called Sinevessel, but is clearly Seeneevassen, stayed behind on Salomon until 1973, which drove her mother mad because he came with another woman. This was in a response to documents suggesting that her step-father (Seeneevassen) returned from Salomon in 1967 to live nearby and that another gentleman was actually living with them, in Cassis, (7/1247, 1260 and following which is a list of those displaced by December 1971 who received pension, outdoor relief or family allowance.) She denied that she had mentioned her step-father in her statement, although paragraph 11 refers to him. Various documents were put to her (relating to Ilois listed by the Mauritius Government as having been stranded when contracts were not renewed and for whom relief payments had stopped) which suggested that her step-father (Seeneevassen), his "concubine", as they put it, and four children had arrived from Salomon by October 1968 but she denied that that was possible and said that it showed that the British and Mauritian Governments did something false, (5-521, 499, 469 and following). She was not the child referred to because she was already married by March 1968 and her daughter had been born then. This material supports the basic point that her family was stranded when she was about 14 (she was born in 1952), but not the detail of the circumstances as she variously described it. It is quite plain that some Ilois received some public assistance, which the witness statements do not address.
- Marcel Moulinie, according to the unsigned 1977 statement, had been asked in 1968 by the Deputy Colonial Secretary to produce a five-year plan for all of the Chagos Islands within one week. He thought he could do it in a month and was extremely optimistic about the economic fuure of the Chagos Islands based on the quality of the coconuts and guano. He said he received no serious response to the plan from BIOT administrators. He recalled the period between 1967 and 1970 as a period of increasing labour requirements. He was unable to recruit the labour he required because a limit of 250 was put on at the end of 1967 or 1968. In fact, the workforce was depleting because some who left did not return and houses were lying unexpectedly empty. He had to reduce the labour on the outlying areas; John Todd had refused him further labour intakes in about February.
- He agreed orally, however, that, in March 1968, the population of Chagos appeared to be 138 male adults, (15/396 and 5/400), so that the limit of 250 did not look as though it was close to being exceeded. Moulinie & Co's letter of 10th May 1968 to BIOT Administrator, (10-49), saying that the company was not going to recruit more, because there were enough already, accordingly appeared not to relate to the limit of 250 as opposed to the needs of the island plantations. He said on two or three occasions, when questioned about this, that everything was very uncertain and they did not really know what was going on in this period. The 250 limit on the number of labourers was for male labourers on Diego Garcia because the British were going to pick up the bill for expenditure under the draft management agreement as it operated, and so they were concerned about the number of labourers, but who was employed within those figures was left to the company. Mr Moulinie denied that any instructions had been given by him to Rogers & Co not to allow back people who had left the islands. His uncle had never told him so to instruct Rogers & Co and had never said that Mr Todd had told him to instruct Rogers & Co, nor was he aware of any instruction from Mr Todd to Rogers not to let people back. He was uncertain in his evidence about the evolution of the population and the reduction in Ilois families in the early 1970s. Over 1967 to 1968 there were a gradual reduction in the numbers of workers and it was difficult to get them back, probably because the islands were being evacuated. He thought requests for labour might have been refused but could point to no occasion when that happened. His perspective was clearly that of the plantation manager. He had heard in 1969 of people not being allowed back, but Rogers & Co had never told them that they had got instructions not to allow people back. He had never heard of the cases spoken of by the individual Chagossian witnesses of people never being allowed back. He did notice that people had left and never came back. Their notebook with the cash would be sent back to the Seychelles by the Head Office. When asked whether islanders could communicate with those who had left, he said they used the Met Office for communication, even those who could not read or write; there were BIOT stamps and a post office but he did not know how many islanders sent letters. He was unable to shed any light on the request for 100 additional workers in November 1968. He said it was because of the oil fuel that the Captain of the "Mauritius" refused to take 100 people.
- On 1st November 1968, the FCO wrote to the BIOT Commissioner, (5/596), classifying the BIOT inhabitants for the purposes of the proposed legislation on immigration and citizenship, pointing out that it was the citizens of the United Kingdom and Colonies or those who held dual citizenship of the United Kingdom and Colonies and Mauritius who really concerned the FCO and on which further information was required, particularly as to their numbers.
- Meanwhile, the uncertainty as to the American position continued as the then Administration in Washington came to an end. The US position was that it hoped that no decision would be taken to redeploy workers from Diego Garcia to the other two islands in case one day the Americans wished to use those other islands for defence purposes and people then had to be moved on a second time, but on the other hand it was not necessary to clear those other islands at this stage.
- The debate within the FCO about the legal status of the inhabitants of BIOT continued with a response to Mr Aust's note from Miss Hawson of the Nationality and Treaty Department of the FCO. Issue was taken in it with the definition of a "Belonger": a "Belonger" had to have an unrestricted right of entry to that territory. The concept of being a "Belonger" was more relevant to immigration than to passport purposes. Passports were not relevant to rights of entry into the UK and Colonies, (19/606(a)). Mr Aust riposted, (19/606C), on 7th November 1968 saying that he found it very hard to comment on Miss Hawson's minute "which, quite frankly, I found muddled". Her views were dissected at length. "Belonger" status was irrelevant to the law of immigration into the United Kingdom. He dealt with the issues which might arise under the Commonwealth Immigrants Acts 1962 to 1968 and the grounds upon which citizens of the UK and Colonies might be subject to immigration control. As if to end the debate, he said that his minute had been approved by the legal advisers to the Passport Office and to the Migration and Visa Department.
- On 8th November 1968, the FCO prepared a chronological summary of events relating to the establishment of BIOT, which is an interesting summary of events between 1962 and 1968 and gives some insight into what were the international political concerns of the US and UK Governments, (5/608). In its introduction, it says that in creating the new territory of BIOT, the intention had been to make available for defence purposes "islands with few or no permanent inhabitants, under direct British administration". This would ensure maximum security of tenure and freedom from political pressures. Those pressures from hostile governments and governments concerned about US defence facilities in the Indian Ocean are set out in the subsequent history. A series of largely handwritten notes, dating between November 1968 and April 1971, contain internal minutes passing between members of the BIOT Administration, including the Commissioner, the Seychelles Attorney General and the BIOT Administrator, (19/368(b)). On 8th November 1968, the Attorney General for the Seychelles stated that "I agree there is no need for an immigration law to solve the resettlement problem. Yet there is a need to have some immigration law on the statute book to control entry into BIOT". On 17th December 1968, Mr Todd, recognising that the Ilois had rights as citizens of the UK and Colonies, stated: (19/368(c))
"This right, however, seems to be modified by their right to enter private property, which still remains the status of the BIOT islands except for Nelson. In these circumstances, it would seem better to continue to exercise immigration control through contracts than to risk difficulties which could arise over the issue of travel documents."
- On 23rd November 1968, the BIOT Commissioner wrote to the FCO following his visit in November 1968 with the Administrator to the Chagos islands and the continuing uncertainty as to the US long-term requirements for islands other than Diego Garcia. The Commissioner said that the islands were slowly running down for the lack of labour and lack of reinvestment. He maintained his previous preferences over the alternatives and said that it would be "folly , to reinvest or to increase labour-force (other than by re-importation of approximately 100 Ilois now in Mauritius) until comparatively long-term defence requirements are known". The present labour-force on Peros and Salamon was only half that needed for care and maintenance and a break-even operation, and only one third of that necessary for a profitable operation. The alternatives were to clear the whole Archipelago which would be a "culpable waste of a fine asset, and wholly untimely by any standards of which we are aware", or to clear Diego Garcia and fully redevelop the other islands which would mean trebling labour on those islands but with only a small increase over the Archipelago as a whole, a further alternative was to forget the defence facility and to exploit in full "what could be a small goldmine", *(5/643)(DR). The BIOT Commissioner two days later pressed for an early decision in order "to facilitate resettlement plans". He sent a further dispatch on 28th November 1968, *(5/646)(D). He identified two overlapping problems: how to make the best use of Chagos as an economic asset and how to fit the resettlement of the Ilois into the necessary overall plan for Chagos. Even the full development of Peros Banhos and Salomon alone would require an increase in labour force which would absorb not merely the Ilois on Diego Garcia but those in Mauritius. Because the present labour force was insufficient to maintain the islands, he estimated that a further 530 men would be required if the maximum use were to be made of all three islands, and some 310 on Salmon and Peros Banhos. He set out a tentative estimate of the investment costs required but concluded that the yield "is so good as to demand further action". He was convinced that the islands "could be made a paying proposition" and urged that Moulinie & Co be asked to give preliminary estimates for the cost of developing the islands to the point where the future policy could be decided upon as soon as the American intentions were clear. He said that if useful plans were to be made "we cannot afford to wait for their decision on the use of the Chagos islands before beginning work on the detailed planning". The FCO agreed to the Commissioner approaching Moulinie & Co. in that way but said that the working assumption had to be that the Americans wished Diego Garcia to be cleared. Indeed on 19th December 1968 following a discussion between the FCO and the UK Embassy in Washington that working assumption was confirmed. But it was recognised that the deteriorating condition of the plantations meant that planning meanwhile had to go ahead on investment, (5/651, 652).
- The year ended with a further despatch of 23rd December 1968 from the BIOT Commissioner to the FCO on BIOT citizenship and immigration control, **(5/655)(D). He said that it seemed that everyone at present in BIOT "with the exception of a few children born of Ilois stock since the creation of BIOT" can claim a right to enter either Mauritius or Seychelles. A number might also be able to claim on citizenship grounds the right to enter BIOT. He continued:
"But the BIOT islands until 1967 were either privately owned or leased and no-one had a right to be on the islands other than by virtue of his employment by the owner or lessee. Although the islands have now been acquired by the Crown, the position has not fundamentally changed. The islands are in private ownership of the Crown, run as coconut plantations and there is no public land in the sense of land to which the public has an absolute right of access. The right to reside on the islands has, therefore, I assume, remained dependant on employment on the island and I am advised that a refusal to employee a person would over-ride his right of entry based on citizenship."
- This meant he said "that no-one has an absolute right either to enter or remain in BIOT". He continued:
"4. We have never envisaged difficulties with settlement except in the case of the Ilois and it was with the intention of ensuring their right of re-entry to Mauritius that we drafted the immigration legislation."
- Although it had been intended that the Ilois should all be in possession of Mauritius travel documents "it now seems that many of them could instead ask to be issued with a BIOT travel document". This would further complicate the issue and accordingly he recommended that it would be better for the time being "to continue to control entry to BIOT by means of the labour contracts, rather than introduce separate permits and require everyone to have a travel document".
- The Commissioner recognised that if the Chagos or indeed only Peros Banhos and Salomon were worked as plantations, the Ilois in Mauritius could be re-employed without difficulty, but that if the whole of Chagos were abandoned there would only be 2,000 acres of coconut plantation within BIOT on Farquhar and Des Roches plus the virtually uninhabitable island of Aldabra. The point has some importance.
"In these circumstances employment would not be available for the Ilois and a documentary right of re-entry would become valueless unless they were to be supported on these islands as permanent Government pensioners."
- Again it was a question of a decision needing to be taken on the future of Chagos in order that the problem could be tackled, but till then nothing should be done to "embarrass the position" and the issue of BIOT travel documents would do just that. Accordingly he recommended against immigration control on the lines proposed so far as labour was concerned, although it might be necessary to have some means of controlling casual visitors. Accordingly the immigration legislation should have provisions enabling the plantation employees to be exempted. He pointed out that the manner of the creation of BIOT and the "individual sociological pattern of the islands", and the situation generally was likely to remain unique. The debate therefore continued; no line had been laid down, no final decision taken about the role of immigration legislation.
- On 7th January 1969 the BIOT Administrator asked Mr Moulinie to prepare development plans for each of the main island groups ie Diego Garcia, Peros Banhos and Salomon in order that a decision could be made on what development was to be undertaken as soon as a decision on Diego Garcia was taken, (6/667). However, at the same time the Commissioner wrote to the FCO enclosing population tables accurate for employed persons but less accurate so far as children were concerned. The working population for Diego Garcia including 12 children and 87 women was 247, (6/672).
- On 3rd February 1969 the US Embassy wrote to the Defence Department of the FCO informing it that the Diego Garcia project had been included in the budget request presented to Congress but that it would not be considered by Congress until March or April; many matters could not be answered until the hearings were completed, (6/676). The author of the letter said "as indicated in my letter of November 22, we have no plans for the use of Peros Banhos and Salomon islands, with the proviso that the absence of current plans does not preclude consideration of using other islands in the Chagos Archipelago should this become desirable at some later time". There was no objection to Moulinie being asked to draw up plans for expanded development on those two islands but that was subject to the understanding that consideration of the use of those islands had not been precluded. It was estimated that all migrant labourers would need to be removed from Diego Garcia on six months notice. The US agreed that it would be politically unwise to re-locate Diego workers on Mauritius where it was acknowledged that there were serious unemployment problems and stated that therefore the US agreed to the use of Peros Banhos and Salomon islands to re-locate them. He expressed concern about the proposal, of which nothing had come, to transport 50 Chagos born labourers on Mauritius to Diego Garcia.
- The UK mission to the UN urged the FCO to speed up the arrangements under which all Ilois would be accepted as Mauritian or Seychellois for the purposes of presenting its case, should it prove necessary to do so, at the UN, *(6/682)(P). The FCO responded to the US letter on 6th February 1969, (6/689). It referred to the two solutions to the problem posed by the US requirement that Diego Garcia be evacuated. The first solution would involve the transfer of the population to Peros Banhos and Salomon followed by the abandonment of the Diego Garcia coconut plantations and the development of those on Peros Banhos and Salomon to employ not only the Diego workers but the Ilois in Mauritius. But in order for Moulinie & Co, to be persuaded to continue to manage those plantations "they would have to be sure of sufficient security of tenure to make the work and investment worthwhile". This was estimated by the BIOT Commissioner to be about 20 years' tenure with some provisions for compensation if earlier repossession for defence purposes was required. The US were asked to agree that those two islands could be exploited economically for a period of 20 years. The alternative solution would be to clear the whole population of the Chagos and to re-locate in the Seychelles and Mauritius:
"In UN terms, this would be the ideal solution since we could argue that there are no 'inhabitants' anywhere on BIOT: this is of cardinal importance since the only legitimate way in which BIOT could be raised would be in the context of Art 73 and our obligation to the inhabitants. On the other hand, we could have considerable difficulty in persuading the Mauritian Government to take the ex-Mauritian Ilois and we could also be criticized in humanitarian terms for uprooting people from the Chagos and depriving them of a livelihood there. We must bear in mind that these people are expert only in Copra production and that there is no outlet for their skills in Mauritius."
- Mr Aust commented on the BIOT Commissioner's despatch dealing with the Immigration Ordinance of 23rd December 1968, *(6/693)(ND); in general, he said it analysed the problem correctly. It also identified the problem as "how to avoid making BIOT a 'non-self-governing territory' within the meaning of Article 73 of the UN Charter". If it were not decided to remove all the inhabitants "certain legal measures will have to be taken so that we can present a reasonable argument based on the proposition that the inhabitants of BIOT are merely a floating population". He referred to three measures which were essential: first, to retain the system of yearly contracts and to avoid the creation of any permanent settlements so that the labour force and their families could "truly be said to be migratory labour"; second, that all inhabitants including contract labour should be brought under immigration control under a new Immigration Ordinance to be enacted as soon as possible; labourers should not be exempt; third, should any inhabitant of BIOT who is a UK citizen apply for a passport the BIOT Government should not issue it; it should be issued either by the Seychelles Government on its behalf or the High Commissioner in Mauritius on behalf of the Government of Seychelles.
- He identified a longer term problem presented by children born in BIOT after 8th November 1965 but born before the date of Mauritius independence on 12th March 1968. Some of those and even some born after that date would be dual UK and Mauritius citizens. But most would be only UK citizens. After those children reached adulthood and ceased to be dependent on their fathers they would lose the right to enter Seychelles or Mauritius. "Thus in about 14 years a new class of persons will emerge who will have no automatic right of entry to either Mauritius or Seychelles. They would be able to legitimately claim to be 'belongers' to BIOT in the sense that they have no unrestricted right of entry elsewhere (not even to the United Kingdom)." He suggested three solutions: total evacuation now or in the near future, or amendment to Seychelles immigration law or assurances, about the movement of such persons from the Seychelles Government. The last two would not be enforceable once Seychelles had become independent.
- The UK mission to the UN did not agree with the analysis of the problem set out in the 6th February 1969 memo from the FCO to the US Embassy, *(6/695)(P). It thought that it would be possible to maintain that the territory had no settled population and that the small number of people living there were for the most part transients, and that argument could continue to be used even if the Ilois moved to Peros Banhos and Salomon. It pointed out that BIOT had been referred to in the Committee of 24 every year since 1966 and the Committee had declined to recognize the separate existence of the territory.
- The position taken by the FCO on 14th February 1969 to the BIOT Commissioner was that Diego Garcia's evacuation would be required but the evacuation of Peros Banhos and Salomon would not be. The two alternatives being studied were the re-location of labour to Peros Banhos and Salomon or the evacuation of the whole of Chagos. Further information was required was required for a decision to be made: a report from Moulinie in relation to Peros Banhos and Salomon, and information from the High Commissioner in Mauritius for the latter, (6/697).
- In order to make progress in considering the latter alternative, the FCO asked the High Commissioner about the likely reaction of the Mauritius Government to the removal of all Ilois to Mauritius and the likely resettlement costs there. It was presumed that the Mauritius Government would expect the UK Government to accept some responsibility for the Ilois already in Mauritius and sought information about whether they had been able to find employment, (6/698).
- On 20th February 1969 Mr Moulinie sent to the BIOT Administrator what appeared to be some very skimpy calculations covering a five-year period which were then passed to the FCO, (6/699). On 20th February 1969 the UN political department of the FCO wrote to the Defence Policy Department of the FCO dealing with the comments on the letter of 6th February to the US Embassy. It said "We in this Department are concerned that the picture being put forward of a possible return of the Ilois to Mauritius is one involving the dumping of unemployables in the heavily over-populated island of Mauritius against the protest of an indignant Mauritius Government - not to mention the Ilois themselves". It suggested that Agalega which was outside BIOT but within the control of Mr Moulinie be investigated as a place for resettlement on coconut plantations. Agalalega was under Mauritian jurisdiction.
- On 21st February 1969 the FCO responded to the UK mission to the UN, **(6/702)(ND). It agreed that there was a prospect that the ignorance and confused thinking prevailing in international circles on this island "could enable us to dodge the real issues" in the first instance when the Diego project was announced. But the lack of publicity and interest so far could not be taken as a lasting cause for complacency. Future hostility could be anticipated from Afro-Asian countries. It said:
"5. It is now extremely doubtful whether it is still open to us to use the formula that the inhabitants are essentially a migratory force."This followed the discovery in 1968 that nearly half the BIOT population were at least second generation inhabitants, "the so-called 'Ilois'". There were 434 of them. He said that in 1966 "we thought that there were many fewer second generation inhabitants than this and in any case we had hoped to dispose of the Ilois problem while Mauritius was still a Colony".Percipiently, the author commented that neither in the longer nor the shorter term could the possibility be excluded:"That this semi-permanent population will find themselves in the international limelight If attention were drawn to them, we should find it difficult to assert that BIOT is not a 'non-self-governing territory' and that we had no obligations in respect of it under Chapter XI of the Charter. In particular, we should find it extremely difficult to deny that we had sufficiently honoured or are now honouring our Charter obligation 'to ensure ' their political, economic, social and educational advancement".A contrast was drawn between the case presented in respect of Gibraltar and the residents of this dependency. There were distinctions which could be drawn by reference to their Mauritian citizenship, but nonetheless UK legislation had accorded them citizenship of the UK and Colonies as well and there would be some who were only citizens of the UK and Colonies. It was said "our strongest card is the fact that the Ilois are still contract labourers with Mauritian citizenship, but until we can judge whether there is any prospect of returning them to a Mauritian island, it could be unwise to refer to them as essentially migratory". This, however, represented preliminary thinking.
- On 22nd February 1969, the potential development of Peros Banhos or Salomon for a twenty year period was rejected by the US, which stated that such a proposal would seriously derogate from the principles underlying the 1966 agreements which the US interpreted as authorising the transfer of local workers elsewhere, the curtailment or closure of economic activity including copra plantations, and making the UK Government responsible for relocation costs. The US, therefore, did not wish to enter into a twenty year self-denying commitment, (6/708). Their acquiescence to the resettlement of Chagos copra workers on Peros Banhos and Salomon was with a caveat that it should not prejudice the use of those islands ultimately for defence purposes. That remained the US position, even though such use and exclusion of workers from those islands was not at present foreseen. Movement of workers, however, from Diego Garcia was seen as premature in advance of a Congressional decision on the proposal.
- The other strand in the resettlement options was dealt with by the High Commissioner to Mauritius in a telegram to the FCO on 25th February 1969, (6/710). It said that the Mauritius Government would be unlikely to welcome the return of some 250 families "except on generous compensation terms" because of the already high unemployment rate of 20%. A calculation of the lowest resettlement costs which could be envisaged was presented: it covered low-cost housing, relief work payments and family allowance for three years, totalling per family 7,700 Rupees or £600 sterling. It cautioned that three years' payments might not be regarded as "generous or indeed adequate in light of near impossibility of finding suitable employment". There was no copra industry and there would be an increased pressure on educational and health facilities, social and community services. It was unlikely that many of those already in Mauritius from BIOT had found employment and the Mauritius Government would almost certainly expect them to receive the same treatment as those who might later be displaced.
- The UK Mission to the UN responded to the letter of 21st February 1969 on 26th February 1969 (6/711). It noted that the Ilois were very much in the majority on Peros Banhos and Salomon, but made up only one third of the total population of 380 on Diego Garcia. This would still enable the Mission to maintain, at least in relation to Diego Garcia, that the small number of people were for the most part transients. However, it was recognised that the position based on the character of the population of the Chagos as a whole was much less tenable than had previously been thought, and "that it would certainly be difficult to maintain the defensive position suggested in respect of Diego Garcia, if Peros Banhos and Salomon were also at issue". The strongest card was said to be that the Ilois are resident in the islands by virtue of contract arrangements and are entitled to Mauritian citizenship.
- Internal FCO minutes *(6/712)(ND) referred to increasing interest in offering Ilois the opportunity to go to Agalega when their contracts expired in BIOT. It commented "there is, of course, no raison d'κtre for the Ilois in BIOT without employment, since their housing & everything else is provided by their employer. In the past they have commuted between contracts to & from Mauritius". There was not thought to be a human rights objection to the removal of migratory workers if they wished to move. But there was a risk over the question of nationality. An official advised "We must be very careful not to let it appear that our object in moving the Ilois out of BIOT altogether is to prevent there being an 'indigenous population' who would be British citizens and not citizens of Mauritius".
- In March 1969, the PIOD of the FCO, which at this time had responsibility for BIOT, produced a draft working paper on the relocation of the plantation workers from Diego Garcia on to Peros Banhos and Salomon, (6/713). This also involved looking at the position of the Ilois families already living in Mauritius. The development plan prepared by Moulinie over a period of five years was described, together with its labour-force requirements, and the sum of £61,250 capital expenditure on housing and social services in addition to the investment required on the plantations of £126,000. It was recognised that, if the plantations were to be successfully developed, a long-term basis would be required, say fifteen years, in order to justify the substantial capital expenditure required over the first five years. Indeed, it was only after the first five years that there would be a return sufficient to begin to offset the investment. No commercial operator would be likely to risk the capital involved without certainty of tenure including a compensation clause for termination of the agreement. The alternative would be for HMG to provide the capital and run the plantations through a manager who would receive a fee. Taking account of the average price of copra, the Commissioner's view had been that the plantations on Peros Banhos and Salomon could be run at a profit but could not be regarded as an enterprise capable of earning really substantial profits, or weather in a serious recession in the copra market. Although the adults from Diego Garcia could be accommodated, there were a number of growing children who would require employment and a yet longer-term problem of population increase, although the movement out of Chagos would offset that if contacts with Mauritius were maintained.
- Mr Aust returned to the Immigration Ordinance in a note of 5th March 1969, *(6/717)(ND), to Mr Jerrom. He said that immigration legislation would be needed, whether there was total evacuation of the whole of Chagos or permanent resettlement on Peros Banhos and Salomon, or temporary resettlement on Peros Banhos and Salomon. He described the provisions of the draft Ordinance which required anybody entering or remaining in the territory to be in possession of a pass, the issue of which would be at the entire discretion of the immigration officer, whose decision would be appealable only to the BIOT Commissioner. It would be unlawful for somebody who needed a pass to enter or remain without one. Provisions for removal for those whose presence was unlawful were included. Mr Aust commented that if there were to be permanent resettlement on Peros Banhos or Salomon, these provisions would obviously be too severe because a permanent resident should not be required to apply every four years for a pass to remain in the colony. If there were to be temporary settlement of the Ilois from Diego Garcia on Peros Banhos or Salomon, or if the Chagos as a whole were to be totally evacuated, Mr Aust advised that very rigorous controls would be needed. If the Chagos were to be totally evacuated "there must be no permanent population", and if the resettlement were temporary "until a final decision is taken, we must continue to treat the inhabitants as a floating population" otherwise total evacuation "would be politically very difficult". The power of removal, to which objection had previously been raised, was acceptable in view of the discretionary power which it gave to the Commissioner as to whether to make an Order removing somebody. It was to be assumed that the Commissioner would act properly and not deport a person who could not get entry elsewhere.
- A draft submission for Ministers to make to the Prime Minister was circulated amongst officials for comment on 1st April 1969, *(6/724)(P). It would deal with the arrangements for the future of the population of Diego Garcia and the other islands in the Chagos group within BIOT. A recommendation was made that the Foreign Secretary should send a minute to the Prime Minister seeking approval for the evacuation of the Chagos, which had been cleared at official level with other relevant departments. The background to the submission referred to the problem of the population as being "highly complex and difficult" and one which had been actively and comprehensively considered within the Foreign Office and with the Treasury and Ministry of Defence for many months. They had now reached an agreed view "and the Treasury in particular have made it clear that they would be strongly opposed to any alternative solution which would entail open-ended, long-term financial responsibility for the population of the Chagos". A note at the bottom of the draft submission, regretting its length, said that as islands had a habit of causing troubles "it seems important that Ministers should have access to the full facts".
- It appears that "Paper No 3 The problem of the people living in the Chagos Archipelago" was attached to the draft submission, but it is not clear whether ultimately it was attached to the minute sent to the Prime Minister. The paper referred to it being understood, as a general proposition, "that the cost of resettling elsewhere the people who could no longer make a living in the Chagos Archipelago because of the construction of defence facilities there would be met by the British Government", (6/726). There had been no precise definition of who would be entitled to resettlement or what resettlement would cover. The Ilois were said to be those who can claim to have their main roots in Chagos. Mr Allen relied strongly upon a comment in the paper that since the creation of BIOT and the purchase of the islands by the Crown in 1967:
"The relationship of the United Kingdom Government with the people in Chagos has been a dual one:-(a) That between the government of a colony and the people living in it, either on a fairly temporary basis or those who could claim, as in the case of the Ilois, a substantial connexion with a colony (including eg 'Belonger' rights so far as entry is concerned);(b) The relationship between a landowner and employees/tenants who make a livelihood on his land.It was said that in 1965, when BIOT was established 'our information' was that the population of the Chagos consisted almost entirely of contract labourers and their dependants from Mauritius or Seychelles, employed by the then lessees of the land and living in housing provided by their employers. It was thought that almost all of them were relatively short-term inhabitants on contracts, which they might or might not renew. It was, however, known that there were 'a small number' of Ilois (in one estimate not more than 200) who could be regarded as having their permanent homes in Chagos."
- The intention had been that although BIOT was a colony, it was not to fall within the scope of Chapter XI of the UN Charter. The object of its creation was to obtain unrestricted use of the islands. It continued:
"7. The long-term expectation was that when defence needs arose, the inhabitants of the islands would be 'resettled' outside of BIOT, the cost being met by HMG. In the short-term, it was hoped to establish that the inhabitants were all either 'Belongers' to Mauritius or to Seychelles having unrestricted rights of entry to one or the other territory. This would have allowed us to issue them with only temporary residence permits to stay in BIOT. At the time it was envisaged that we should then have established a situation in which there were no individuals with claims on BIOT or without claims on either Mauritius or Seychelles."
- A formula had been worked out for use at the UN in 1966 which referred to the essential character of the labour as a migratory labour-force.
- The paper continued, however, that between 1966 and 1968 it had become clear that the number of people who could claim to be Ilois was greater than estimated and that although the number was still small they "present a more awkward problem of status than had been foreseen". They were included among those who automatically became Mauritian citizens on independence and it was said that after independence "they no doubt continued to regard themselves as Mauritians and they are probably so regarded by the Government of Mauritius". But a right to citizenship of the UK and Colonies could not be taken away, nor could the possibility be removed that some might claim to regard themselves as people of Chagos. The total Ilois population of 128 on Diego Garcia and 434 on the total Chagos was set out. Paragraph 13 of the paper said:
"The Ilois, island born, clearly have a more substantial connexion with Chagos. Although as noted above they still regard themselves as Mauritians, they also look on themselves as Chagos islanders. They have some experience of movement between the atolls. Some are second generation, a few third. The men are contract labourers and they go to Mauritius, where many have family connexions, from time to time. These visits to Mauritius have an element of leave about them and for many years it has been normal for them to be re-engaged, although some have been refused on grounds of bad conduct. In summary, while being accepted as Mauritians they can be regarded as having their main roots in Chagos, although their continued presence in Chagos has always depended on their being employed there."
- There were no accepted rules of international law regarded the responsibilities of States to permit the entry of their own citizens when those citizens are also citizens of another state. The argument that they should be permanently resettled in Mauritius despite their citizenship of the UK and Colonies might rebound if the Ilois regarded Chagos as their home. The paper said:
"Whilst it is legally possible for us to enact legislation which could permanently exclude them from BIOT, we could not of course administer such a legislation in such a way as to deprive them of any right of entry anywhere: for example, if Mauritius were to change its immigration legislation, which at the moment gives all Mauritius citizens (including dual citizens) an unrestricted right of entry to Mauritius. As we have done this in the case of our own citizens (Kenya Asians) it is theoretically possible that Mauritius might do the same."
- The draft Immigration Ordinance would be necessary, it was said, were Chagos to be evacuated and during any interim period prior to a final decision being taken. The Commissioner would have a discretion to allow a person whose presence in BIOT was unlawful to stay, if that person could not lawfully enter any other country or his entry to a particular country would cause trouble. The problem of the children of those Ilois who were born in the Chagos part of BIOT after Mauritian independence on 12th March 1968, who would only be citizens of the UK and Colonies, was referred to as a problem for fourteen to fifteen years hence, and they could truly claim to be "Belongers" of BIOT unless the Ilois were removed outside BIOT.
- The continued occupation of Peros Banhos and Salomon, although a partial solution to resettlement, would not solve the problem of national status and indeed would make the problem worse as time went on. The problem of resettlement would merely have been postponed if the atolls were to be evacuated later, and if not there would be continuing financial commitment and an increasing political commitment. On the other hand, evacuation of the whole of the Chagos and resettlement would be intended to remove the difficulties of national status once and for all. It would require the co-operation of the Mauritian Government and the acquiescence of the people concerned. However, in that event, resettlement, while it would not deprive the dual citizens of their UK and Colonies citizenship, would put the UK Government on much stronger ground in refusing them entry to Chagos. The Ilois were described as "simple islanders, not versed in the obscure problems of their national status touched on above . The Commissioner feels that there is a probability that they would prefer to stay in Chagos rather than to be resettled elsewhere; but no doubt much will depend on the arrangements which can be made for them, especially for housing and employment".
- A fifth BIOT working paper of April 1969, on evacuation and resettlement, gave the total Ilois population of the Chagos as 434, of whom 128 were on Diego Garcia, (6/739). That figure included men, women and children. There were also 56 Mauritians and 317 Seychellois on the Chagos, of whom respectively 22 and 230 were on Diego Garcia. The existence of the 370 Ilois on Mauritius already, thought to be awaiting re-employment on Chagos, was referred to and it was assumed that any public statement on resettlement would lead some of them to apply to be treated on the same basis as the Ilois in the Chagos. The main object of evacuation and resettlement was seen to be the provision of a solution once and for all to the latent political problem of the continuing presence of the Ilois in Chagos. Although the whole of the Archipelago was being considered for evacuation, a different timescale could apply as between Diego Garcia and Peros Banhos and Salomon. The high unemployment rate in Mauritius itself and the difficulties and expense of finding suitable employment for any families returning from the Chagos meant that a more satisfactory solution might be to negotiate resettlement of the Mauritian citizens from Chagos on Agalega as the only coconut producing island within Mauritian territory. It was said that this had been the original intention when BIOT was established. The unemployment rate of 27.5% in the Seychelles was even worse than on Mauritius but there were hopes with the new airport of economic development. The Ilois were identified as presenting the main problem because they had traditionally worked and lived in Chagos and had no skills other than those of coconut plantation workers. The movement of this class therefore "would involve not only uprooting them from their traditional homes and settling them elsewhere, but also providing them with a new livelihood, unless they can be resettled in an area where a copra industry exists". There was no such industry on Mauritius. An approach to the Mauritius Government was necessary and it was pointed out that that Government could be expected to negotiate for the best possible terms of resettlement in which humanitarian considerations, as well as the need to avoid adverse publicity would be factors. The continued use of Peros Banhos and Salomon after the evacuation of Diego Garcia, then envisaged for early 1970, could provide some valuable breathing space. There was also attached a paper on Agalega.
- Lord Shepherd, *(JR/3/256)(ND), agreeing with the submission to the Prime Minister, said that although the numbers involved in the evacuation was small, they presented a serious difficulty because of the severe unemployment problems in both the Seychelles and Mauritius and "we must insist on these people being properly resettled and with reasonable prospects for their future".
- On 21st April 1969, the Foreign Secretary sent a minute to the Prime Minister seeking his approval for the clearance of all the Chagos islands of their inhabitants, *(6/745)(P). He asked his colleagues to agree that "we should aim at the return of the inhabitants of the whole Chagos Archipelago to the Seychelles and Mauritius and should enter negotiations with the Mauritian Government to that end". The minute set out the background and referred to the need to consider immediately what should become of the contract labourers at present working on Diego Garcia and pointing out that that also called for a decision on the future of Peros Banhos and Salomon, as the only other inhabited atolls of the Chagos Archipelago. It was said:
"4. The problem of the future of these people exists independently of American plans, but the decision to proceed with a communication facility on Diego Garcia, which will necessitate evacuating that atoll, has brought it to a head.5. There is no ideal solution. It has always been envisaged that the population should be resettled outside the BIOT as and when the islands become needed for defence purposes. Our aim must be to ensure the welfare of the people concerned, but at the same time we must seek to limit the financial burden falling on Her Majesty's Government, as well as follow a course which is defensible in the United Nations and which does not store us up greater trouble for the future. I agree with the conclusion reached in the paper that, on balance, the best plan will be to try to arrange for these people, all of whom are citizens of the United Kingdom and Colonies or of Mauritius or both, to return to the Seychelles or Mauritius. The people with whom we are concerned are working the Chagos under contract and own no property or other fixed assets there. However, some of them have established roots in Chagos and I should naturally have wished to consult at least these in advance of any decisions about their future, if this had been possible. Officials have examined closely the possibility of giving them some element of choice, but have advised that this would seem wholly impracticable. We are not able, at this stage, in advance of talks with Mauritius, to offer resettlement there as an option; and even if we could, these workers might express a preference to stay in Chagos. This would have severe drawbacks from our own point of view."
- The minute pointed out that the UK Government had undertaken to meet the cost of resettlement of displaced labour, but further information was needed in order to make a realistic estimate for that cost. The particular problem was seen in persuading the Mauritian Government to accept the return of dual citizens there on reasonable terms. Negotiations to that end were proposed with the Mauritius Government. The Foreign Secretary continued:
"We should not seek agreement at any price, and it may later transpire that we are unable to make fair and satisfactory arrangements with the Mauritians for these people's welfare at a reasonable cost to ourselves. It would then still be open to us to fall back on less satisfactory solutions such as the resettlement of some of the population of Diego Garcia on Peros Banhos and Salomon and the development of these two atolls by Her Majesty's Government. This latter alternative is, however, one which we should try to avoid, since it might later involve moving people a second time for defence reasons. It might also prove expensive in that continuing development and budgetary aid might be required."
- Attached as Annex A to the minute from the Foreign Secretary to the Prime Minister was a paper which reflected much that was in the working papers to which reference has already been made, (JR/3/264). This referred to the small but growing number of workers and children who were establishing claims to belong to the Chagos which could cause considerable problems in the future, and some of whom might one day claim a right to remain in BIOT by virtue of their citizenship of the UK and Colonies. The plantations were run down because it had not been possible to develop them properly, pending decisions on defence use of the islands. When BIOT was created, it was not envisaged there would be any permanent inhabitants and the problem of the Ilois was, at present, not widely known. If, however, they remained within BIOT, whether resettled from one island to another, the risk of being forced to acknowledge UN Charter responsibilities arose and it would be helpful if any move could be presented as a change of employment for contract workers. The advantages of a short-term solution involving removal from Diego Garcia to Peros Banhos and Salomon were outweighed by the long-term disadvantages and there was an option of relocating them to other islands in the Archipelago. The population of the Archipelago was a maximum of 800 and the 434 Ilois were dual nationals. A relocation solution to another island within Chagos might not be in their long-term interests.
- On 26th April, the Prime Minister signified his agreement to the proposal of the Foreign Secretary that the Government should aim at the return of the inhabitants of the whole Chagos Archipelago to the Seychelles and Mauritius and should enter negotiations with the Mauritian Government to that end, (6/752). The Chancellor of the Exchequer and the Secretary of State for Defence also agreed, (6/753, 754).
- The problem of those Ilois who had returned to Mauritius in 1967 and 1968 and who had not been re-engaged by Moulinie & Co was raised again in May 1969. But the FCO minute of 7th May 1969 appears to accept that nothing should be done at that stage about it, and it does not suggest that the UK Government should do anything to help, (6/755). It refers to the Ilois being left in Mauritius because Moulinie would not re-engage them "owing to doubts about the future of the plantations". It was unlikely that the numbers had changed because there had been no sailings of the "Mauritius" from Mauritius to Chagos. However, the "Nordvaer" was due to leave for the Chagos from Seychelles in early June 1969 and Seychellois would eventually be leaving Diego Garcia on it. Moulinie would wish to replace those who left "unless instructed otherwise". The BIOT Commissioner sent a telegram to the FCO saying "on grounds of administrative convenience, I should prefer to instruct Moulinie not to recruit replacements, giving as reason that the whole question of future commercial exploitation is under consideration Moulinie will begin recruitment later this month", (6/760). The pros and cons of this course of action were considered, there being a conflict between the need to keep the plantations viable as a fallback for resettlement of Ilois from Diego Garcia, but uncertainty over the whole problem of resettlement from the other islands in the Chagos which could be made more difficult with increased recruitment. The advice from the FCO to the BIOT Commissioner was that although there was no ideal way of dealing with the situation "further recruitment should be avoided on this occasion unless you consider it feasible to limit further contract to six months", (6/766). Mr Moulinie should be told that, pending a decision on the question of commercial development, it would be preferable not to contract further labour at this stage. It would be helpful, said the FCO, if information could be obtained about the number of persons and of what category whose contracts would expire in the coming twelve months.
- Mr Todd suggested, towards the end of May, that the proposed immigration legislation be kept in cold storage, pending the commencement of the US defence works and that contract labourers be exempt from such immigration control and be dealt with through their employment contracts, (6/763).
- On 2nd June 1969, the FCO authorised the Mauritius High Commission to approach the Prime Minister of Mauritius to give him advance notice on a confidential basis that, under the 1966 agreement, the UK Government had approved in principle a US facility on Diego Garcia subject to Congressional approval, in respect of which the secret hearings were about to start, (6/768). The Prime Minister should also be told that the UK Government would wish to enter into confidential discussions with it later in the summer about arrangements for resettlement and employment in Mauritius of the Mauritian citizens in Chagos and of those who were already in Mauritius but had been workers on the copra plantations. Some 30 Seychellois families were sent to Diego Garcia on the "Nordvaer's" next voyage, (6/770). Information was provided that all Ilois contracts would expire within the next six sailings, but that the great majority would probably stay on as had been the practice in the past. The present labour force was already below the minimum required and if six months passed without the replacement of labour, that would be equivalent to commercial abandonment and would probably lead to Moulinie not continuing his management, according to the dispatch from the BIOT Commissioner to the FCO.
- Internally it was recognised that the resettlement discussions would also include those Mauritians "who were Ilois already 'on the beach' in Mauritius", (6/771). The FCO said to the BIOT Commissioner what was set out in the Foreign Secretary's minute to the Prime Minister to the effect that agreement was not to be sought on compensation at any price, (6/772). There were other, albeit less satisfactory, options. Advice was also sought on whether the Seychelles would seek assistance with any cost of resettlement or compensation. The present understanding was that there would be unlikely to be any political outcry. The Seychelles Governor replied to the effect that the effect of the Diego Garcia project would be to make 150 Seychellois labourers redundant in Chagos but that there were projects, including the airport, which would potentially provide them with employment opportunities, particularly if they returned on a phased basis. Their position was seen as being better than that of the Ilois because of their being more likely to be able to find work to which they were accustomed and they, in any event, had no possible claim to a right to stay in Chagos, (6/775).
- The FCO Defence Policy Department, writing to the UK Embassy in Washington, described a meeting that had taken place in London with the US Embassy, *(6/778)(ND). Agalega had been discussed and Ministers needed to be satisfied that Ilois returned to Mauritius "would not merely languish there unemployed for the rest of their lives". The problem was that they were only skilled in copra and as there was some copra industry on Agalega, there were advantages in their being re-employed there. He wished to emphasise the importance of a confidential advocation to the Government of Mauritius of the secret Congressional hearings and American contacts in Washington and London were asked to be careful about divulging inadvertently that certain Mauritians, that is to say the Ilois, might have "a special claim on us". This was said to be of "cardinal importance".
- The Claimants put some weight on the briefing of 24th June 1969, *(6/787)(P), from the FCO to certain foreign missions on the Diego Garcia defence proposal. A number of lines to take in response to leaks or to questions following a public announcement were set out. The briefing note said:
"We are anxious that no publicity should be given to the problem of these contract labourers. If asked about their future, you would merely say that there would be detailed talks between Her Majesty's Government and the United States Government about the administrative aspects of the Diego facility. all the people on Diego Garcia are Mauritian and Seychellois labourers working on contract on the copra plantation and that the future of the plantations will naturally be discussed at these talks."
- The reason for this formula was so that it would apply equally to the Ilois "since we are particularly anxious to avoid distinguishing between them and the purely migratory labourers". It pointed out that neither the Ilois nor the Mauritian Government may have realised that they were entitled to dual citizenship. The use of Agalega to absorb some of the displaced labour continued to interest the BIOT Commissioner who, on 1st July 1969, told the FCO of the way in which Moulinie & Co had been impressed by progress on the island and were interested in further development, (6/787A). There was some potential for increased labour. The FCO briefed the Foreign Secretary for his meeting with the Prime Minister of Mauritius that the US would wish the contract labourers from Diego Garcia to be resettled elsewhere. The fact that some might have dual nationality was not to be admitted to thePrime Minister of Mauritius, *(6/789) (D). The FCO was anxious, even after the meeting, that no distinction between mono-Mauritians and Ilois should be drawn in the eyes of the Mauritius Government, *(6/804).
- The BIOT Administrator presented up-to-date population figures for June 1969 in Chagos, (6/794). There were 129 Ilois on Diego Garcia out of a total population of 330. 189 were Seychellois and 12 Mauritians. Of the 129 Ilois, 27 were men, 30 women, and 57 children, ie 30 Ilois families. A similar breakdown was provided for Peros Banhos, where 140 of the total population of 164 were Ilois, and on Salomon 153 of the total population of 197 were Ilois. A table of resettlement of the population of Chagos indicated that the 129 Ilois from Diego Garcia were to be sent to Peros Banhos and Salomon in the first instance. There would be a gradual removal of population from those two island groups later to be resettled in Agalega and Mauritius. When the Foreign Secretary and the Prime Minister of Mauritius met on 4th July 1969 and the question of the resettlement of the Ilois was raised, the notes record Dr Ramgoolam saying that this point had been taken care of in 1965 under the Defence Agreement, (6/800).
- The question of whether and when immigration legislation should be introduced into BIOT, which had been raised again between Mr Whitnall and Mr Aust in June, was dealt with on 8th July 1969 in a note from the FCO to the BIOT Administrator, *(6/803)(ND), saying that it had been decided to postpone doing anything until the US proposals for the development of Diego Garcia were definite. It did, however, comment that it might be better to use the word "permit" rather than "pass" in the legislation because the latter had South African military connotations. If there were to be an exemption for Ilois, it would have to be on the basis that they were contract labourers as Mr Aust had previously advised and this had to be stated expressly in the Ordinance.
- The Administrator of BIOT, together with Mr Marcel Moulinie, paid a further visit to the Chagos in the latter part of July 1969. They found that the plantation on Diego Garcia was gradually becoming more overgrown as the number of workers on the island was insufficient, (6/805). They were less overgrown on the other islands. There had been a decrease in the population since 1967 of 155 and the main decrease had been in the number of Mauritians and Ilois because the communications with the island were now being confined to the Seychelles. But it had also been difficult to obtain Seychellois for the Chagos and their numbers had also declined. The report followed a similar pattern and its general conclusion was that the islands continued to be run satisfactorily on a care and maintenance basis and that the conditions of life on the islands remained acceptable, which was as much as could be expected under the current restrictions. The total population of Diego Garcia following this visit was put at 319, of which 93 were Ilois, comprising 27 men, 21 women and 45 children. There were 121 Ilois on Peros Banhos, comprising 22 men, 26 women, and 73 children. On Salomon there were 136 Ilois out of a total population of 182 (151 total on Peros Banhos) made up of 26 men, 28 women and 82 children.
- There had been some discussion about the resettlement table prepared by Mr Todd when he enclosed the June population figures for Chagos. But it was said by Mr Whitnall of the PIOD of the FCO that he recalled Mr Todd mentioning "that the labour-force is unlikely to be disturbed by change of location, providing there was no deterioration in their living standards". (6/816).
- In August, the BIOT Administrator agreed that the Immigration Ordinance could be put back into cold storage, (19/817(a)). The approach adopted by Mr Todd to the resettlement of the Ilois had occasioned debate because of the distinction which he seemed to draw between those who were Ilois and those who had only Mauritian nationality. The FCO pointed out to Mr Todd that it was anxious to maintain the position that no such distinction should be drawn, that the Mauritius Government had not drawn any distinction itself and accordingly it would be better if all Ilois and "mono-Mauritians" went from Diego Garcia to Peros Banhos and Salomon, *(6/818)(P). The BIOT Administrator accepted that point. He also supplied a list of names of Ilois and Mauritians who had left Chagos between January and July 1968. There are some 90 names on the list and there were children as well, not separately named. The vast majority were Ilois, (6/820).
- On 23rd August 1969, the BIOT Commissioner notified the FCO that Mr Moulinie was asking Rogers & Co to recruit 50 families from Mauritius to go to Agalega on a sailing due that week, but he had been successful in recruiting only 14 families, who were probably Ilois, (6/826, 827). The FCO replied, suggesting that if this were to take place it would be of some assistance if Ilois were recruited,(6/826(a)). It would be hoped, and the making of a distinction between Ilois and "mono-Mauritians" was not something which in other contexts they wished to make, that the numbers could be drawn from those who had recently returned from Chagos to Mauritius. There was, it was hoped, time to discuss that with Moulinie. Mr Todd wrote to the FCO on 28th August 1969 expressing his surprise that, in view of the previous anxiety of the Ilois in Mauritius to return to Chagos and their apparent destitution, the response had been so poor to Moulinie's recruiting effort, (6/827). He wondered whether there was a resistance amongst Chagos Ilois to going to Agalega, which, after all, was not a Chagos island. It was some 1,000 miles away. The FCO suggested that this failure of recruitment was probably due to the relatively short notice which the Ilois had and to the fact that they might to some extent have dispersed within Mauritius.
- There is a handwritten note on the list of names, (5/470), supplied by the Mauritius Government to the United Kingdom Government of Ilois left behind in Mauritius in 1967 and 1968, which indicates those who appear to have been recruited to work on Agalega in August 1969. There are five families so marked.
- In November 1969, an official in the FCO's Defence Policy Department, dealing with the proposed timetable for construction of the defence facility and the removal of the labourers from Diego Garcia, commented that it was highly unlikely that within six months they would have agreed satisfactory arrangements with the Mauritius Government for resettlement on either Mauritius or Agalega of the contract labourers with Mauritian citizenship. If only six months' notice were given, it would be necessary to contemplate the fall-back position of temporary relocation of some contract labourers to Peros Banhos and Salomon, however undesirable in other contexts that might be. There would be less of a problem with Seychellois labour, which could be phased back into that labour market within twelve to eighteen months, (6/830).
- On 21st November 1969, the BIOT Administrator produced his proposals for the removal of the population, (6/832). The "Nordvaer" would be leaving the Seychelles for the Chagos on 30th December and it was hoped that the project would by then no longer be secret. The voyage had to take place then in order to collect the copra for a profitable contract. He could see no difficulty in clearing Diego Garcia by June 1970, but not both Peros Banhos and Salomon as well. Negotiations with the Mauritius Government and with Moulinie, if Agalega were to be used, would take some time. A two-phased plan was necessary. The first phase dealing with Diego Garcia, the second phase with the other two islands. It was suggested that some Seychellois and mono-Mauritians could be removed from Peros Banhos and Salomon to make way for Diego Garcian Ilois in the first instance to go there. Accommodation would have to be improved for them. Seychellois and Mauritians were entitled to more than one month's notice and to payment for the unexpired portion of their contract. The plan was thus: that in April 1970, Ilois should be removed from Diego Garcia by the "Nordvaer" and Seychellois and Mauritians from Peros Banhos and Salomon; second, that mono-Mauritians and some Seychellois should be removed from Diego Garcia by a non-commercial voyage; and thirdly, that in June 1970, the remaining Seychellois should be removed from Diego Garcia and there would be an undated subsequent removal from Peros Banhos and Salomon. The BIOT Commissioner sought the permission of the FCO to take Moulinie into his confidence about the proposal because his co-operation would make resettlement much easier.
- 1970 began with the refusal of the US Congress to approve the Diego Garcia facility and it was cut out of the Appropriations Bill. This would delay the Administration's timetable for the facility by at least seven months, and possibly more, and compelled the UK to take another look at the state of play on resettlement according to the Defence Policy Department's minute of 5th January 1970, (6/838). There was a choice between continuing to defer action until the outcome of the consideration by Congress of the 1971 US Budget, which would involve a probable delay of a year, or of taking steps now on resettlement in any event. The advantage of the former was that it reduced the leakage of information about the proposed US facility. The argument in favour of the latter was that the problem of the contract labourers in the Chagos existed independently of Diego Garcia plans. The Treasury was getting restive. The Mauritian Government might renew its pressure for compensation for those Ilois already in Mauritius which had been expected to be covered in the talks on resettlement which Dr Ramgoolam had expected to start in the summer of 1969 or thereabouts. Moreover, if the plan were begun now, it would be possible to avoid the two-stage resettlement plan. The key to the success of that plan would be the reaction of Mr Moulinie to the BIOT Commissioner's approach and his ability to keep the Government's intentions secret from the labourers. His co-operation was important, not merely because he managed Chagos but because he also leased Agalega from the Mauritius Government. The risk of a leak if he were informed, and provided the Americans agreed, had to be accepted "in view of the stultifying inaction that must persist unless he is brought into our confidence".
- An impending visit by Dr Ramgoolam would be an opportunity to bring him up-to-date and it was recognised that the Mauritius Government had to be given an indication that the UK Government was prepared to assist with the resettlement of the Ilois who had been "on the beach" in Mauritius for up to two years now. The key to the resettlement problem was seen as Agalega. If most of the Ilois could not be sent there, negotiations for resettling the remainder in Mauritius were thought likely to be difficult and protracted.
- The new year was just over two weeks old when the draft Immigration Ordinance was brought out of cold storage for further discussion by Mr Aust, who had been asked to advise on whether it should be enacted and, if so, when. He set out the purpose of the Immigration Ordinance, *(6/842)(P):
"(a) To provide legal power to deport people who will not leave voluntarily;(b) To prevent people entering;(c) To maintain the fiction that the inhabitants of Chagos are not a permanent or semi-permanent population."
- He dealt with the power to deport in this way:
"3. The question has been asked whether the Government of BIOT needs this power. The Chagos Archipelago is, I understand, wholly Crown land, the private interests having been bought out when BIOT was established. it would therefore be possible for the Government to exercise its rights as landowners to turn people off the islands in the Archipelago. If people refused to go when asked, they would be trespassers and could be ejected with reasonable force. People who might refuse could be contract labourers, whose contracts had been terminated, or the pensioners who have stayed in Chagos. But forcible removal of such persons on the grounds that they were trespassers might be less attractive than forcible removal on the grounds that their presence was unlawful under the Immigration Ordinance; it also has a serious legal disadvantage in that the Government would have no power to say where they must go to. They could get on a boat and go to another island.4. However, the Administrator of BIOT and the Attorney General of Seychelles should be asked for their opinions on which method they would prefer to be used. I do not think that the fact that a majority of those affected, the Ilois, are citizens of the United Kingdom (as well as citizens of Mauritius) affects the decision which method to use. If we are criticised for the deportation of citizens of the United Kingdom, it does not really matter whether the Government of BIOT is wearing its governmental or landowner hat. Either way, it will be 'the Government' which is pushing them out. The real test is which method is the most practical and convenient. It may be that both methods will have to be used . On balance, we would prefer to have an Immigration Ordinance in force in case it was needed.
6. Maintaining the fiction.
As long as only part of BIOT is evacuated, the British Government will have to continue to argue that the local people are only a floating population. This may be easier in the case of the non-Chagos part of BIOT however, the longer that such a population remains, and perhaps increases, the greater the risk of our being accused of setting up a mini-colony, about which we would have to report to the United Nations under Article 73 of the Charter. Therefore, strict immigration legislation, giving such labourers and their families very restricted rights of residence would bolster our arguments that the territory has no indigenous or settled population."
- He then turned to timing, which he regarded as a matter for local advice. It could create trouble if introduced now, unless it was made clear that contract labourers and their families would not be required to have a pass for the duration of their contracts. Pensioners could be assured they would be allowed to remain so long as defence requirements permitted. Mr Aust then turned to the evacuation of the whole of BIOT. His advice on the need for an Immigration Ordinance in relation to this had been specifically sought. He said this: the evacuation of the whole of BIOT was the most desirable solution to the BIOT problem from at least a legal, financial and UN point of view. An Immigration Ordinance would be necessary in those circumstances to stop people entering BIOT. "Whether it would be needed in order to evacuate people from the non-Chagos part is more doubtful, as most are Seychellois and the numbers are much smaller", *(6/844)(P).
- On 22nd January, Mr Knight of the FCO's PIOD sent a memo, *(6/846)(P), to Mr Lee dealing with the resettlement of the inhabitants of BIOT. He referred to an earlier note of Mr Sykes of 5th January urging that resettlement of the inhabitants of Chagos should be now considered rather than waiting for the Diego Garcia project to get underway, and to his discussions with Mr Aust. Mr Knight had previously had discussions with Mr Thomas of the Defence Policy Department which was clearly under the impression that the contracts with the labourers, plus the fact that the Crown owned all the land in BIOT, gave it sufficient powers to effect the resettlement of the inhabitants; but that did not appear to be the advice of Mr Aust, with whom he had subsequently discussed matters and who had felt that, on balance, an Immigration Ordinance was needed prior to any resettlement programme. Mr Aust had pointed out that one advantage of the Ordinance over the use of landowner rights was that the Commissioner would have power to direct a person to leave BIOT altogether, and indeed to send that person to the country to which he belonged, which would prevent a person island-hopping within BIOT.
- On 27th January 1970, the FCO Defence Policy Department was asked for its views about the general problem of progress towards depopulating the territory. It was suggested that hitherto it had been the accepted view that the Archipelago should be depopulated whether the Americans went ahead with their plans or not, and because of the lack of certainty for many months, the view was expressed within the FCO that a start should be made now on depopulation, notwithstanding the difficulties which that would cause. Depopulation could take place over a longer time and the financial position on the plantations would worsen considerably the longer matters were left.
- The BIOT Administrator thought it appropriate to distinguish between the Seychelles and Mauritian parts of BIOT, (6/852). The Chagos islands had an uncertain future, but considerable economic potential; if they were abandoned now, and the Diego Garcia project did not proceed, it would be probably too expensive later to resurrect them. The administrative advantages of relocating the population were seen by the Administrator as being the last consideration. It would be better to relocate the population over a period of two to three years. But no revocable decision should be made until Congress had reached a view later on in 1970. The BIOT Administrator thought that it would be unjustifiable economically and administratively to depopulate Farquhar and Desroche which were both profitable plantations and among the most productive of the islands of the Seychelles group, the abandonment of which would cause an uproar in the Seychelles. (It is to be noted that, the Immigration Ordinance notwithstanding, BIOT was not depopulated.)
- The PIOD of the FCO disagreed, *(6/855)(P). It was of the view that, in the circumstances, steps should be taken now to resettle contract labourers in the Chagos because of the risk that the longer the wait, the greater the danger of acquiescence, the continued existence of a settled population and of being held accountable to the UN for them, an ever-increasing financial commitment for islands which could never be economically viable and in relation to which the Treasury had shown impatience, and lastly, the Americans could be understandably vexed with the UK's dilatoriness after all the time which it had had to make a start on depopulation. Mr Carter of the PIOD was not just in favour of the evacuation of the Chagos Archipelago but of the whole of BIOT. The whole objective behind the acquisition of BIOT was defence purposes and "the sooner we clear the islands with that objective in view, the better." He was emphatic that, in order to prevent people entering and to clear the islands, the legal means of enforcement were necessary. To that end, he called on the advice of Mr Aust to the effect that an Immigration Ordinance was required to back up the Crown's rights as a landowner. The development potential of Agalega had to be established.
- Mr Le Tocq of the East African Department commented on Mr Carter's minute, which had been sent to the FCO's Defence Policy Department, *(6/856)(P). He was of the view that clearances should start without waiting for an Immigration Ordinance. He thought it unlikely that more than a very few Ilois would wish to remain in the islands if their contracts were terminated and they were deprived of their livelihoods. The presence of the Ilois in Mauritius and the need to deal with the Mauritius Government over them added urgency to his point. The US fears of leaks would be reduced if it was said that the islands were being cleared because the plantations were becoming uneconomic, *(6/856)(P).
- The FCO sent a telegram to the Seychelles on 18th February 1970, copied to many others. The memo identified the FCO's present thinking which was that a complete evacuation of the whole of Chagos was preferable to a two-stage operation to avoid undue attention being focussed on the Ilois and to avoid time for Ilois opposition to their resettlement on Mauritian territory to gain momentum. A US Congressional decision should not be awaited any longer and Moulinie, if it were safe to take him into Government confidence, should be asked to produce a development plan for Agalega to absorb as many as possible of the Chagos contract labourers. After receipt of that report, talks should begin with the Mauritius Government about resettlement of the Chagos contract labourers. Before those talks were concluded, it might be necessary to send an independent expert to Agalega to ensure that the new community would be established in decent conditions and a viable economy set up and maintained. Prior to resettlement, the BIOT Immigration Ordinance would be necessary. The resettlement of labourers from the former Seychelles islands of BIOT could not be deferred indefinitely. The Agalega plantations might be able to absorb them as well, (6/857).
- The US agreed that Moulinie could be put in the picture to some extent by Mr Todd, who would put the proposal for closure of the plantations to him in the context of their declining viability and the Government's unwillingness to provide capital for their development. He should not refer to US intentions, but Mr Todd could confirm there was still a possibility that a facility might be established on Diego Garcia. It was necessary to put the approach to Moulinie straight away because of pressure from the Mauritius Government about those Ilois already there. The FCO told the Washington Embassy that even if there were no US proposal for Diego Garcia, *(6/858)(R):
"We would still wish to close down the copra plantations on Chagos:(a) on economic grounds because they cannot be kept going as a profitable concern without the investment of new capital, and(b) because we do not want a mini-colony whose inhabitants could, as time goes by, claim a right to remain in the BIOT by virtue of their citizenship of the UK and Colonies and who would have no right of entry to either Mauritius or the Seychelles when the latter achieves independence "
- Failure to get things moving now could also delay the eventual US timetable for construction of their facility on Diego Garcia, particularly as after production by Paul Moulinie of his plan, an independent expert would be needed to vet it and construction of houses on Agalega could still take between nine and twelve months, and it was desired to avoid a two-stage resettlement process.
- On 24th March 1970, the BIOT Administrator wrote to the FCO PIOD referring to a visit which one of the partners of Moulinie & Co had paid to him. He said that it seemed that Agalega had been struck by two cyclones and had had a bad season. Production had almost stopped. It would take two to three years to come back to full production. This was seen as having an adverse effect on resettlement plans because of the reduced need for labour and the reduced availability of money for investment. It was still, however, proposed to proceed with a request to Mr Moulinie to provide a development plan for Agalega, (6/860).
- The United States agreed to Mr Moulinie being informed of the UK Government's intention to close the Chagos copra plantations and to him being asked to produce a development plan for Agalega to absorb as many as possible of the Chagos contract labourers and the Ilois already in Mauritius, (6/861). The declining viability of the plantations could be stressed and the fact of pressure from the Mauritius Government on resettlement help for those already in Mauritius could be alluded to. He was to be asked to stop recruiting Seychellois contract labourers and not to renew existing contracts with them.
- Contingency press guidance, *(6/874)(ND), was prepared by the FCO in case there was a leak about the Government's intentions to close the copra plantations in Chagos. It was to be said, if necessary, that they had been run down to the point at which it was uneconomic to continue their operation, that the people living on BIOT were contract labourers, engaged to work on the copra plantations, that the Government owned all the land and that the labourers owned no property or fixed assets and that except for some fishing, perhaps, and the meteorological station, the copra plantations were the sole means of livelihood for those resident on Chagos. They were all either from Mauritius or the Seychelles and possessed no land or houses on the island. The plantations were owned by the British Government and managed on their behalf. It was sent to the UK embassy in Washington.
- In May 1970, the internal minutes in BIOT dealt with how Mr Paul Moulinie had reacted to being told by Mr Todd, the BIOT Administrator, that the operation of the plantations was not economically viable and the Chagos were to be closed down, (19/837(a)). Moulinie had agreed that there was no economic justification for continuing the operation unless capital could be made available, and that it would be best to close the plantations. Problems arose, however, when the question of Agalega was raised. The cyclones meant that the labour force now was sufficient to enable them to continue their planting programme and would be sufficient for the normal running of the plantation until some eight years hence when the newly planted areas were in production. The Commissioner therefore had to tell the FCO that the creation of extra jobs on Agalega would not happen as had been expected. It would not be popular to replace the Seychellois with Ilois because of problems which that would create in the Seychelles, and Moulinie regarded the Seychellois as the better workers. There would be local opposition to any resettlement on Seychelles or ex-Seychelles BIOT islands. The question originally raised by Robert Newton in his report in 1964 that islanders might be given plots of land and settled on them, which had hitherto been thought of as too gen