The Law of Conservation

By the end of the year, Cayman Islands legislators might finally get around to discussing the long-promised National Conservation Bill. If it had been enacted already, the law may have given clarity to several situations involving projects that have sparked environmental concerns.

The Conservation Bill has languished in draft form for a decade, stymied by fears that a draconian measure will cripple development or, alternatively, that a weak law will legitimise disregard for local plants and animals. In late September, Minister of Environment Mark Scotland said he hoped to bring a “toned down” version of the bill to the Legislative Assembly in December.

Whether this newest promise comes true remains to be seen. However, a conservation law similar to the draft circulated among the public in 2010 would have a direct impact on recent development proposals across the Islands.

Passing a conservation law has been on the lawmakers’ agenda since 2002, when Premier McKeeva Bush tabled a White Paper on the legislation. In 2007, then-Minister of Tourism Charles Clifford tabled draft legislation in the form of a White Paper as well.

Protections

The 2010 version of the bill consolidates the relevant sections of the Animals Law and Marine Conservation Law and also puts in place provisions of international agreements, including on biological diversity, climate change, wetlands, marine life and migratory species.

The bill creates a National Conservation Council with 11 voting members, including two from the Department of Environment. The council will have the power to issue permits that exempt specific individuals from certain sections of the law (for example to capture and keep protected animals as part of a rescue programme), and also to issue licences to grant qualified individuals to perform certain activities covered by the law (for example to hunt with spear guns).

The council can recommend that Cabinet designate certain areas of Crown land as protected zones and recommend that Cabinet grant protected status to certain species. The bill itself contains a list of protected plants and animals, including species protected under existing law or under international measures, or that are endemic to the Islands. While many marine animals and some land animals are protected, Cayman does not offer any protections for plants.

Funding

The law does not contain any provisions for compulsory acquisition of land for conservation purposes. The money for the purchase of private lands would come from a new Conservation Fund, which could only be used to purchase and manage protected areas. The Conservation Fund is distinct from the existing $43 million Environmental Protection Fund, which gains several million dollars per year through taxes on travellers’ departures – though lawmakers could choose to feed the Conservation Fund from the Environmental Protection Fund, which is currently sitting unused in order to help government meet its cash reserves quota.

Landowners who do not wish to sell their land to the government but would like to see it protected can enter into a conservation agreement directly with Cabinet. The conservation agreement would essentially be a government-financed lease agreement that could be permanent or for a specified period of time.

Powers

The bill would empower Department of Environment conservation officers to enforce the legislation and would empower the Department of Environment director to issue cease-and-desist orders to stop unlawful activity, breaches of permits or licences, or who fails to submit or comply with the conditions of an environmental assessment.

The council has the authority to insist on an environmental assessment being done to assist other government bodies – such as Cabinet, Central Planning Authority and Building Control Unit – in making decisions on whether or not to allow certain significant developments. The environmental assessment is meant to determine the impacts that a proposed project would have on the nearby environment, public health and living conditions. The assessment would have to be paid for by the project applicant and would be performed by a person approved by the council. The results of the assessment would help inform the government’s decision on whether to allow the project to proceed and under what conditions.

Each of those designations and powers in the law, if it were in force, would have an effect on projects that are currently pending or in the works.

Species

Under the Animals Law, the only land animals that are protected in Cayman are the Blue Iguana and Rock Iguana, in addition to all non-domestic birds other than game birds (such as white-winged dove). No law protects any plant species, including Ironwood trees, Silver Thatch palms or Ghost Orchids.

Giving Ironwood trees and orchids protected status would have a direct impact on the gazetted extension of the Linford Pierson Highway to Walkers Road (passing through the Ironwood Forest). That project has been stymied by popular opposition; however, on the other side of Grand Cayman, there is a gazetted extension of the East-West Arterial that would cut across the Mastic Trail.

In Little Cayman, a UK-based developer has been clearing roads for subdivisions in order to market lots to overseas buyers. One such subdivision raised concerns about the destruction of the habitat of the land snail Cerion nanus, which would be specifically protected as a critically endangered endemic species under the proposed law.

Land

This summer, a developer announced a $300 million proposal to build a golf course-centred development in the Frank Sound area. The Department of Environment and National Trust have expressed concern about the development’s proximity to the Queen Elizabeth II Botanic Park. The department warned that a residential development could bring dogs and cats that could threaten free-roaming Blue Iguanas and recommended that the Environmental Protection Fund be used to purchase some of the developer’s lots to create a buffer zone between the development and the park.

Under the proposed law, the developer would, for example, have the option of choosing to sell land to the government or retaining ownership and entering into a conservation agreement with government, with financing coming from the dedicated Conservation Fund. The law would also provide ways for the development of the land while mitigating potential damage to the park.


Environmental assessment

A separate golf course development has recently been proposed in the Bodden Town District east of North Sound Estates. The development would involve the excavation of lakes and a canal system that would lead to North Sound. The Central Planning Authority reserved its determination on the project until Cabinet decides on the developer’s licence for associated coastal works.

The environmental department and Water Authority each shared concerns about the development’s effect on the surrounding area. The Department of Environment recommended that an environmental impact assessment be done, while the Water Authority said it would require an environmental impact assessment before it could approve any excavation.

Under the proposed law, the Conservation Council would have the power to make the developer perform an environmental assessment as part of the planning process.

Dart’s example

One example of how planning for a major development may function under a conservation law is the Dart Group’s proposal to site a waste management facility in the district of Bodden Town. In February, the Water Authority and Department of Environment suggested that an Environmental Advisory Board be formed, as established under the draft of the Conservation Bill.

The board is chaired by the Department of Environment and includes representatives from the National Roads Authority, Department of Environmental Health, Planning Department and Water Authority.

With the Department of Environment’s blessing, an independent firm from the US is conducting the environmental assessment of the proposed facility. As part of the process, there will be two opportunities for the public to weigh in on the terms of reference of the assessment and when the draft of the assessment is complete.
 

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