Conservation Bill: Concerns emerge from the fine print

The National Conservation Bill is anti-business, anti-development and most importantly, anti-Caymanian. In a perverse way, it is also anti-environment since it excludes 94 percent of all Grand Cayman property if one gives credence to Environment Minister Wayne Panton’s assertion that the bill protects only Crown land.

If the bill were limited to protecting only Crown land, we would likely join forces with the National Trust in supporting it.
It is not the protection of Crown land but the erosion of private property rights – the ability of Caymanian landowners to do what they wish with their own land without government interference – that concerns us.

Despite protestations by supporters that the bill does not infringe on private property rights, virtually every attorney the Compass has consulted believes the opposite, namely that the bill threatens every local landowner including farmers.

The legislation enables the appointed National Conservation Council to stymie any proposed development if it will directly or indirectly harm a “critical habitat” for a protected species, regardless of whether the land is owned by the Crown, a foreigner or an eighth-generation Caymanian.

The “critical habitat” would be identified in a species management plan created and approved by the Council and Cabinet.

Here are two “specific pitfalls” of the bill pertaining to international agreements and the issuance of permits and licenses:

First, Cayman Islanders should be concerned with the bill’s language on the automatic acceptance of future provisions of international agreements. The interests of the Cayman Islands do not always align perfectly with the policies and objectives of other international organizations (note the recent controversies surrounding green sea turtles and the Cayman Turtle Farm).

Second, the Council can force a private landowner to provide a performance bond or an escrow account – in any amount in connection with a mandatory environmental impact assessment before the property is developed. If the Council wishes to stop a project altogether, it can set the bond or escrow amount higher than the development value of the property. The cost of the environmental impact assessment, which must be borne by the landowner, can itself be so exorbitant that it could render the project financially unviable.

While supporters say the new law will contain proper checks to balance the interests of environmentalists and developers, those restraints do not appear in the bill.

Additionally, as any attorney experienced in such matters will tell you, the way any new law will work in practice will be detailed in the all-important supporting regulations, which, in this case apparently have not been drafted. Certainly they have not been made public.

No examination of this legislation or “public consultation” can be considered complete until these regulations have been subjected to public
scrutiny.

The Cayman Islands people deserve to know exactly what their lawmakers are proposing BEFORE they slam down their rubber stamp and crush the most important “critical habitat” of all – our country.

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4 COMMENTS

  1. Unwilling landowners will not have critical habitat designation forced on their land and their ability to develop their land will not be restricted.

    If a critical habitat is identified on private land and the landowners are unwilling to sell the land to the Crown for conservation purposes, unwilling to enter in to a management agreement and object to critical habitat designation on their property, it is highly unlikely that Cabinet will approve the proposed critical habitat designation.

    The provisions within the NCL are meant to protect existing Crown land that is environmentally important and to also allow private landowners who wish to participate in the conservation of the Island to VOLUNTARILY sell or lease or otherwise agree to the conservation of their land.

    As Carla Reid of the National Trust explained earlier this week:
    With a better understanding of the bill, the editor would have been able to accurately report that the bill does not impose any restrictions on private land owners nor does it grant the government any power to interfere with land held privately. On the contrary, the bill is designed to protect environmentally significant Crown land. In fact, under the bill, any participation by private land owners to conserve their land is completely voluntary and not an obligation.

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  2. Environmental Impact Assessments (EIA) will only be required for large scale developments – many of which already voluntarily undertake EIAs recognising that this is the responsible way to proceed with a development.

    In this way the NCL creates a level playing field for developers.

    ‘An environmental assessment is a measure aimed at major works with the potential to cause significant environmental, social and economic impact. As is currently the case, small scale proposals such as building a home, will continue to be reviewed by relevant government departments, including the Department of Environment. These reviews may contain recommendations aimed at mitigating the impacts of a proposal.’ – DoE’s NCL 2010 Your Questions Answered

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  3. The Compass today returns to its defense of property rights as the central tenet of its weeklong campaign against the National Conservation bill. A suppositiously noble crusade that unfortunately fails to acknowledge a somewhat crucial factor. Reality.

    From the Development and Planning Law to the Water Authority Law to the National Roads Authority Law and many more, private property rights here in the Cayman Islands are already restricted, limited, infringed and qualified for a bewildering number of disparate interests and concerns. Researched by a Compass reader and posted as an online comment to Thursday’s Editorial, the mother of all these is the Land Acquisition Law which details Government’s power to expropriate private land in the dreaded, public interest.

    In apparent desperation, the Compass also today cites the lack of the accompanying regulations as another reason to oppose the bill since it is incomplete. Unfortunately, as the Compass well knows, passing a law and then adding the regulations afterward is nothing new or unique to governance here in the Cayman Islands. It is, and I will side with the Compass that this is a problem, a function of our legislative system. But it is at best misguided and I submit illogical to oppose a specific bill because one disagrees with the system under which it is legislated. One must oppose all bills without accompanying regulations if this is the reason and advocate change to the system. Something I don’t believe the Compass has done.

    While the Compass fancies itself the righteous defender of farmers, developers, landowners and Caymanians, the facts suggest that it is ultimately tilting at windmills when it comes to property rights and an evaluation of the National Conservation Bill deserves cool headed, carefully considered and wise deliberation to arrive at an authoritative opinion given the precedent already set by the body of laws of this land.

    I’m still undecided about the bill. I am certain however that I will not consider the Compass’ opinion as part of my deliberations.

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