The National Conservation Law

Saving Cayman or stalling the economy?

The National Conservation Law is finally slated for review at the Legislative Assembly this September, after a protracted battle to get this vital framework for environmental conservation enshrined in Cayman Islands Law and is up for public consultation until 16 July. Much public debate has already been generated by this perceived controversial piece of legislation, with some developers and real estate professionals deeply concerned that it will add extra layers of bureaucracy to an already over-burdened system.

Business Editor Lindsey Turnbull assesses how the authors of the proposed legislation intend that the framework will protect and conserve Cayman’s natural flora and fauna not just for now but for generations to come, while at the same time appreciating the concerns voiced by developers against the Bill.
 
The Department of Environment, under whose auspices the protection and conservation of Cayman’s natural environment lies, has over the years developed their own operational framework within which they work. Much of this framework has not, however, up until this point been written in law, save for the Marine Conservation Law and some species and area protection elements within the Animals Law, two outdated pieces of legislation that have undergone many subsequent revisions since the original laws were written in the 70s. The very existence of the department itself is not defined legally and thus, they say, this makes for an inadequate weak system, which can be manipulated and manhandled to suit any specific cause.
 
Since the existing legislation was first written, the UK has signed up to several international treaties relating to environmental conservation, of which the Cayman Islands has specifically requested that it, too, be a party, such as the Rio Convention on Biological Diversity (1992), the UN Framework Convention on Climate Change and the Kyoto Protocol (2007) and the Ramsar Convention on the Conservation of Wetlands (1975). As there is no conservation law in place for the Cayman Islands there is not, subsequently, a mechanism by which the jurisdiction can actively take part in the treaties to which it has signed up.
 
DoE Director Gina Ebanks-Petrie emphasises the importance of Cayman adopting a proper environmental legal framework by stating that legislation that Cayman has in place gives “inadequate protection for habitats and species”. “There are no legal requirements for environmental issues to be taken into consideration when it comes to the planning process.
 
“We currently have to “wiggle” our way into the process and often environmental advice is only sought via a “gentleman’s agreement” with agencies such as the Planning Department. There is nothing in law to ensure that this consultation takes place,” she says.
 
Highlighting the urgent need for action, Ebanks-Petrie says: “We are working within a whole new environment than when the first laws were passed in the 70s. For example, when the Marine Conservation Laws were first passed, the Eden Rock dive site in George Town had around 70 per cent live coral. This has now dwindled down to between 12 and 15 per cent. When the Animals Law was passed the only species protected were birds and iguanas. Now we know of a lot more animals that are in need of management.”
 
She says that Cayman has experienced a tremendous rate of growth over the last few decades, which has made the country extremely successful and made Cayman a wonderful place to live and raise a family.
 
“We now have to provide government with the relevant tools to protect the environment and give it the mechanics to take measures to ensure that we do not deplete our national environmental capital at such a rate that our children suffer with an altered quality of life,” she comments.

The concerns
Administration

The proposed law will be administered by a newly created National Conservation Council, which will be responsible for the day-to-day operations as they relate to the new law. The NCC will be comprised of eleven voting members, including the chief officer for the Ministry of Environment, the directors of the departments of Environment Planning and Agriculture, the deputy director of research at the DoE, five members of the public appointed by Cabinet and a representative from the National Trust.
 
Ebanks-Petrie says that the NCC may delegate responsibilities where necessary to sub committees or the DoE in particular where the department already has procedures for dealing with such issues.
 
At a time when government coffers are bare, Ritz-Carlton and Dragon Bay developer Michael Ryan says that adding this extra layer of bureaucracy will just add more pressure to a beleaguered economy and will empty rather than fill government coffers.
 
“I’m extremely disappointed by the proposed National Conservation Law,” he says. “The law does not accomplish its intended goal, i.e. to protect and preserve the environment; instead it produces more departments, more complexity, more costs and more of a burden on government before any development can move forward.”
 
Jeremy Hurst, president of the Cayman Islands Real Estate Brokers Association says that while CIREBA is very much in favour of protecting the environment and is sensitive to the benefits protecting the environment bring to the country, he believes a sensible and pragmatic approach is required which does not create additional levels of bureaucracy and extra levels of red tape.
 
Kim Lund, Re/Max owner and broker, has a positive viewpoint: “There is no question, this will entail delays, expense, and extra bureaucracy for large developers and possibly some of the smaller developers in more environmental sensitive areas.  However, if the law is enacted, then developers will have the full disclosure of the law detailing what they are required to do. This will be much better than right now, where there are no clear guidelines for them to follow. Initially, it will likely cause some confusion. However, over the long term, this law will both improve development and property values and be good for the Cayman Islands.”
 
Ryan would instead like to see certain responsibilities with regard to the environment devolved from the DoE to the Central Planning Authority, the sensible place, he says, in which to centre environmental issues relating to development, such as the requirement for an Environmental Impact Assessment prior to development takes place.
 
He says: “It would be much simpler and better for the environment, if we had clear specific guidelines for development based on best practices from other jurisdictions similar to ours and everyone knew them in advance. This is how it might work (and this is just an example for illustration): small projects with, say, less than 10 homes would fall under a straightforward category for environmental review by department officials, while larger projects such as those with perhaps over 10 homes and less than 100 foot from the sea would trigger the need for an Environmental Impact Assessment with prescribed terms of reference known in advance.”
 
John Bothwell, senior research officer with the DoE says that this is actually how they intend the new law to operate. “We will give planning the tools to make an informed decision with regard to when a possible development might trigger the need for an environmental assessment by the council,” he explains. “The onus will be on planning to make that decision as to whether the council needs to be advised of any projects that might possibly impact the environment.”
 
Bothwell says this system is already in place and will not add further pressure to the system. Instead, it will simply make it a legal requirement to include the environment in the decision-making process.
 
He goes on to explain that subsequent regulations under the new law will be quite clear as to when a full Environmental Impact Assessment might be required, with applications for major developments such as large scale residential developments, commercial developments, subdivisions of land, hotel and resort developments, etc:

“The new law requires that the council be consulted on a proposed development likely to significantly impact the environment. It might even be the case that a full-scale EIA will not be required and that we might simply recommend the developer retain certain vegetation on their land. But we need to be part of the process.”
 
Ryan says that he, as a developer, thinks it is wrong to say that the proposed Conservation Council would decide who would do the required EIAs, since they are paid for by the developer. He would like to have the ability to choose from a wide variety of firms, which would be pre-approved by planning,  which would undertake the EIA, stating that he was one of the first developers to undertake such a study for The Ritz-Carlton development back in 1997, not because it was required but because it was the right thing to do.
 
Ebanks-Petrie explains that that is how the law will work: “The developer would choose three firms who have the relevant expertise and with which they are comfortable producing the EIA on their behalf. To ensure independence the council, or a subcommittee of the council, would choose from the developer’s list the firm which will conduct the study.”
 
Bothwell adds that in most developed countries’ EIAs are a standard part of development and provide valuable information for developers because it shows them the best practices for their project, in conjunction with the needs of the environment.
 
Ebanks-Petrie adds that EIAs are also open to the public, thus giving the public the opportunity for further comment, a vital point because those residing close to the proposed land for development will bring their own unique perspective and information.
 
Lund believes there is protection built in to ensure the law’s fairness, stating: “The law appears to be sound, based on my interpretation from a layman’s standpoint. There seems to be safeguards in place, so for example, an abuse of power would be difficult to orchestrate due to the broad cross section of membership on the Council.  There are also provisions for appeal of any decisions. Overall, it does seem to be a fair law with flexibility for anyone who feels they have been victimised by any section of the law.”
 
Lund does have one reservation; however, “the only concern is that the current government at the time will appoint the five members from the public. If these appointments are made as a reward to friends of one particular political party versus to public members who are truly qualified, then politics could compromise good decision making, as we sometimes see in other politically appointed boards. While the law stipulates that these public members must have scientific or other relevant expertise, it is unclear as to who will enforce that or even if it can be properly enforced.  This seems to be a bit of a grey area.”
 
Ryan is particularly critical about the need to advise the National Conservation Council about any proposed developments.
 
“The new law complicates the issue rather than simplifies it,” he states. “Instead of clarity it brings confusion. The law is too broad. It states that the council needs to be advised and approve any action that would likely have an adverse effect, whether directly on indirectly. When you turn to the definition of adverse effect this is defined as an effect that may result in the physical destruction or detrimental alteration of a protected area, a conservation area, an area of critical habitat or the environment generally… and also if it were to impede the migration of any wildlife or may have any adverse effect or impact the salinity of any water. In short, this means that any action at all, from building a fence to dropping a bucket of water on the ground would fall under these provisions, meaning everything would technically need to go to the council.
 
“In particular we need transparency when it comes to which areas of Cayman will be designated protected land. We need to see a clear map that outlines these areas specifically before we can understand the real impact of this proposed law, we are told they exist but they have not been shared with the public who are supposed to comment before this becomes law.”
 
Ebanks-Petrie explains that the law requires Cabinet to approve the establishment of protected areas and provides that only Crown Land can be so designated after a significant public consultation process. It is therefore not possible to produce such a map at this time. It is also not likely that the country will not know where a protected area is once it is designated. She goes on to point out that it is only logical that the council should have authority over a Crown-owned protected area.
 
“We would simply have authority similar to that which the Water Authority has over developments likely to impact the water lens,” she concludes. 
 
“Bottom line is that this is a good start and over time, a substantial amount of land can be acquired for parks and nature preserves. This will only enhance the desirability of Cayman as a green destination for future generations and visitors to enjoy,” he comments.

Up in arms
Ryan is also concerned with the section in the law that deals with enforcement and penalties, believing that the new law gives far too broad and far reaching powers to enforcement officers who are permitted to be armed with firearms, batons, handcuffs and pepper spray, with the powers and immunities of constables and the ability to act with reasonable suspicion rather than a warrant, meaning that they can enter anyone’s property, house, business, car etc armed and without any warrant at any time.
 
“I am told that not even the police have these rights except under very specific provisions in the drug law. This type of provision, along with the many other extremely broad provisions, seems more focused on the powers of a new government entity rather than the environment,” he states.
 
Hurst concurs with this viewpoint saying: “The new law enables rigid enforcement with wide-ranging powers. In my view the objectives should be carried out in a fair and balanced manner to conserve and protect the environment, while at the same time ensuring that development can continue in the best interests of the community as a whole.”
 
Ebanks-Petrie says: “Our officers will need to be duly authorised to carry the tools necessary to enforce the law. They cannot carry handcuffs, batons or pepper spray without prior permission and that request must be granted by Cabinet. The word firearms is to be removed from the standard definition of arms used in this law as it was never the intention to issue officers with firearms.
 
“Our officers are fighting a rearguard action. The poaching of protected species continues to be a significant problem and current legislation provides inadequate powers of enforcement. We looked at the powers of enforcement of other government entities such as the immigration department and customs and wrote the law to ensure that our officers have similar powers.
 
“Clearly DoE officers will have to continue to exercise good judgment and restraint, even with proper enforcement powers, if they are to retain the trust and respect of the public and the judiciary. Abuse of this authority will undermine the effectiveness of all of our conservation activities.”

Too much power
Within the proposed law there is a section that defines the role of the director of the Department of Environment. This section includes aspects of the director’s role with regard to administering the new law, carrying out research and compiling inventories, identifying conservation areas and keep the government up-to-date.
Ryan wonders why these duties need to be identified in the new law.
 
Ebanks-Petrie counters: “When we were drafting the new law it became apparent that for legal reasons certain responsibilities under the law needed to be assigned to an individual post rather than an entire department. Thus the role of the director had to be clearly stated in law because there is no legal definition of a director for the Department of Environment. In the same way, the Animals Law refers to the post of the chief agricultural and veterinary officer (now director of agriculture), the Immigration Law refers to the chief immigration officer and the Customs Law refers to the collector of customs.”
 
Ryan suggests that we take this opportunity, when everyone is focused on the need to do something about the environment, to make positive change by splitting the roles and responsibilities, giving one half of the department’s responsibilities to dedicated environment officers in planning and combining the other half with the Department of Environmental Health, to deal with what he terms “the giant elephant in the room which everyone is ignoring – the dump.”
 
Ebanks-Petrie pointed out that this demonstrates a lack of understanding of the role and functions of the DoE, which has a complement of staff whose qualifications and expertise are uniquely suited to the DoE’s areas of responsibility. Neither the Planning Department nor the DEH has staff qualified in these areas. Additionally, as in other developed countries, it is crucial that regulatory and oversight functions are separated from operational activities. The National Conservation Law is not a universal “fix-it” for all of Cayman’s environmental problems, including solid waste management. Its focus is on conservation of our unique species and habitats. That this sometimes requires the Department of Environment to engage in environmental assessments is very much in keeping with best practices of environmental management departments worldwide.
 
Lund worries that the DoE may have created too much power for itself and says that it will be a challenge for the department to implement all the various aspects of the law.  “Providing they are able to recruit and retain competent, quality professionals, then the task will be manageable, just like it would be for any private business branching out into a new market.  As long as the government of the day is supportive, then the Department should be able to rise to the challenge,” he says.

The big debate
At the end of the day Ryan and Hurst both believe that there needs to be proper debate on the subject of the new law.
 
“It does not have to always be framed as us vs. them,” Ryan says. “We all know that there is a big issue here that needs to be properly dealt with, we all want to see the environment protected in a sustainable way but I don’t believe this law is the way to get it done.”
 
Lund is positive about the law, stating: “Unless, we as a country, are prepared to take the steps necessary to protect our environment and natural resources, we will continue to lose small pieces of Cayman that can never be brought back. A picture in a book of some Cayman species, that used to be alive and prospering in the Cayman Islands, is a far cry from protecting this species now, while we have the opportunity to do so and save it for ourselves and future generations to enjoy.”
 
Hurst calls for a far more holistic approach: “I think there is a lack of balance and balance is what we should be looking to achieve between environmental protection and continued development which has long been and will remain the lifeblood of the country.”
 
Bothwell says that the DoE believes that it has got the balance just about right.
 
“During our public debate sessions people have voiced their opinions that the law does not go far enough, but we have to strike a middle ground. This law is about conservation and will not solve people’s longstanding issues with planning, pollution and other areas. It has been an incredibly long process to get the law this far and we firmly believe that the draft National Conservation Law represents a reasonable and practical compromise for the protection and conservation of Cayman’s natural environment for generations to come.”

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Director, Department of Environment Gina Ebanks-Petrie

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