Most jurisdictions in North America have an environmental protection law to protect the natural environment from the overzealous activities of man. Such a law, including the National Conservation Law proposed for the Cayman Islands, in order to be enacted, has to pass a number of tests:
Unfortunately, in my opinion, the proposed Conservation Law, for the reasons which follow, fails all of these tests.
Parliamentary democracy – (i) Introduction – In a parliamentary democracy such as ours, a minister of the Crown has responsibility over a subject area, such as the environment and is accountable to the Crown and the Legislative Assembly for the performance of those duties, which accompany that responsibility. In the Environmental Protection Law of the Province of Ontario, as an example, the responsibility for the environment and the duties and powers that go along with that responsibility reside with the minister of the Environment for Ontario. Section 4(1) of the Ontario Law states, in part, the following: “The minister, for the purposes of administration and enforcement of this Act and the regulations, may…..”. Under the Ontario Law, the Minister of Environment may delegate the performance of any his powers to a Director; however, his duties and the ultimate responsibility for administration and enforcement of the Law cannot be delegated; (ii) Proposed Conservation Law – Director of Environment – Section 5(1)(a) of the proposed Conservation Law states that the Director of the Department of Environment (“Director of Environment”) shall “administer and enforce the provisions of this Law”; this cannot be, as it violates our system of Parliamentary democracy. It is the Minister of the Environment for the Cayman Islands who must be responsible and accountable for the protection of the environment and the performance of the powers and duties, which are stated in the proposed Conservation Law.
Unfortunately, the Minister of the Environment is not even mentioned in the proposed Conservation Law; and (iii) Proposed Conservation Law – National Conservation Council – The comment made above with respect to the director of Environment also applies to the proposed National Conservation Council. This proposed Council, to be made up of 11 voting members (five public officers and six civilians, with five to be appointed by the Cabinet and the other by the National Trust), would have power to:
Approve “management plans” for protected areas;
Approve “conservation plans” for protected and other species;
Grant a permit to a person exempting him from the provisions of the Conservation Law;
Requiring environmental assessments; and
Refuse to agree to a proposed action where the latter would be likely to have an adverse effect on a “protected area” or on the “critical habitat” of a “protected species”.
One wonders to whom the proposed Council is accountable for the performance of its duties and the exercise of its powers; the proposed Conservation Law does not answer this question. Without accountability to the Minister of Environment, the system will not work as it will lead to an abuse of power by the unaccountable Council and/or unsatisfactory performance (deadlock). There is a saying that a camel is a horse invented by a committee; this applies to the proposed Council. Quite apart from the accountability aspect, given its membership of 11 and the makeup of that membership, the powers and duties given to the proposed Council are so numerous and broad that, as a practical matter, it will be unable to function effectively, even if given the funds and people to do so, which, in the current economic environment, is unlikely at best.
Affordability – Affordability has two aspects:
The cost of the administrative machinery established by the proposed Conservation Law to administer and enforce its provisions;
The cost of the opportunities lost to the Islands, and its Government, to receive money from activities which will be caught by such administrative machinery while the Director of Environment, the proposed Council, land owners, developers, the Cabinet and the Grand Court wrestle with the challenges created by “protected areas”, “buffer zones”, “protected species” (225 and counting), “species” which may be threatened, the “critical habitats” of “protected species” and “species” which may be threatened, “permits”, “licences”, “management plans”, “conservation plans” (one for each “protected species”) and the Draconian penalty of CI$500,000 for the commission of an offence (every offence is said to be one of strict liability; that is, the words “knowingly” and “intentionally” are irrelevant to the commission of the offence). If the two costs referred to above have been quantified, the amount should be revealed to the public. If unknown, in the current economic climate, the Islands cannot afford to establish an administrative machinery, with unknown costs, in the proposed Conservation Law.
Economic growth – Given the current perilous state of the Cayman Islands economy, what the Islands need is economic growth and not inhibition of that growth. Given
The broad scope of the proposed Conservation Law;
The lack of a role for the Minister of Environment;
The powers given to and duties imposed on the proposed Council (given its membership structure) (even if such a body is assumed to be in line with our principles of Parliamentary democracy);
The Draconian penalty of CI$500,000 for a strict liability “offence” which probably will inhibit or paralyse decision-making by “entities” and “public officers” who, pursuant to section 35(4) of the proposed Conservation Law must consult with and obtain the approval of the proposed Council before making almost any decision (I find the wording of the proposed section 35(4) frightening and capable of prohibiting all future development: “Every entity and public officer shall, in accordance with any directives made by the Council, consult with the Council and take into account any views of the Council before taking any action including the making of any decision or the giving of any undertaking or approval that would or would be likely to have an adverse effect on the environment generally or on any natural resource.”); and The ability of any person or organisation anywhere in the world: (i) to propose to the Council that an area of land, whether Crown land or private land, be designated as a “protected area”; and (ii) to petition that a “species” be added to the list of “protected species” (already at 225 and each having a “critical habitat”), the inexorable conclusion is that future economic growth will be inhibited by the proposed Conservation Law and that private enterprise will be further shackled.
Reasonableness – It does not seem reasonable to me that we would:
Ignore the principles of Parliamentary democracy;
Bring into force the proposed Conservation Law without any idea of what the machinery to administer and enforce it will cost and without any idea of the cost of the money which will be foregone by the Islands and its Government as a result of the implementation of the proposed Law; and
Ignore the need for further economic growth leading to jobs for Caymanians. It does not seem reasonable to me that we could ever believe that giving powers and duties to an unaccountable proposed Council (never mind funds and people to do the job), could work in the real world.
Conclusion – Despite all of the above, Cayman needs a law to protect the environment, including wildlife. Such a law, however, must pass the tests of Parliamentary democracy, affordability, economic growth and reasonableness. The current proposed Conservation Law is not the law we need; not now, not ever. We need to go back to the drawing board and start again.