Concerns that the proposed National Conservation Bill might be used to seize private property for reasons of environmental protection were renewed Monday at a public hearing in West Bay.
During the meeting, which was attended by fewer than 20 private citizens, attorney Sammy Jackson questioned whether the provisions of the bill would make environmental protection a “public purpose.”
“If it is a public purpose, if the government’s view is now that its policy position is that environmental protection is a public purpose, would you not agree that that would…allow you…to make compulsory acquisitions under the Land Acquisition Law?” Mr. Jackson asked.
Environment Minister Wayne Panton said it was his understanding that, had government wanted to take land under that law for environmental purposes in the past, it would have done so.
“There is no mechanism in this law which contemplates that,” Mr. Panton said. “No one’s land is going to be taken for this purpose through the Land Acquisition Law, whether you want to ask somebody whether it’s a public purpose or not, that’s the position. It is a commercial transaction. If the individual does not want to sell it, that’s where it is.”
“I beg to differ, sir,” Mr. Jackson said.
Mr. Jackson intimated that, while the current government’s position might be as Mr. Panton stated, the law itself could allow a government to seize private land for environmental protection purposes should it wish to do so.
“The way the Land Acquisition Law reads, this legislation would give the government – for the first time – the basis on which to make the decision that environmental protection is a public purpose,” Mr. Jackson said. “It is troubling. We need to have some assurance…to my mind, a simple provision in the current legislation…would probably put that to bed once and for all.”
Department of Environment officials said the phrase “public purpose” in the Land Acquisition Law was not defined, but in any case the department did not operate under that law and doubted it would be used in conjunction with the National Conservation Bill, if the bill is approved next week in the Legislative Assembly.
“The National Conservation Bill does not strengthen any attempt to acquire land through the Land Acquisition Law,” said John Bothwell, senior research officer at the Department of Environment. “Firstly, the bill makes no reference to the Land Acquisition Law.
“Secondly, after going through the process in the bill to make a piece of land a protected area, if the government and the landowner cannot come to an amicable agreement, it would seem that ‘taking’ the land via the Land Acquisition Law would then be harder to do because there would be a public record of failed negotiation.”
Mr. Jackson told Mr. Panton that, while he was not representing any specific developer in attending Monday’s meeting at West Bay’s Sir John Cumber Primary School, he was aware that a number of development interests were concerned about various provisions in the law and were simply too afraid to speak up for fear of raising the ire of government.
“You know how it goes in Cayman,” Mr. Jackson said, indicating that concerns about government land grabs could eventually drive down property values in the Cayman Islands.
Mr. Panton pointed out that Mr. Jackson, who has spent the majority of his career in Cayman representing developers before the Central Planning Authority, certainly had a vested interest in the issue.
However, Minister Panton also was unsure regarding the concerns the attorney raised over the Land Acquisition Law being used in conjunction with the proposed National Conservation Bill.
“I have not looked at the Land Acquisition Law,” Mr. Panton said, “so I cannot tell you now…whether that could be relevant. In principle, [Mr .Jackson’s concern] sounds like it could be relevant.”
The land law
According to the Land Acquisition Law (1995 Revision): “Whenever it appears to the governor that land in any locality is likely to be needed for any public purpose, a notification to that effect shall be gazetted and the governor [referring to governor in Cabinet] shall cause copies of such notification to be exhibited at suitable places in such locality.”
The law allows the declaration of the land acquisition to state where the property is located and the public purposes for its use.
“A declaration under this section shall be conclusive evidence that the land to which it relates is required for a public purpose,” the law states.
Cayman’s compulsory acquisitions process was the subject or harsh criticism during the building of the second phase of the extension for the Esterley Tibbetts Highway during the last decade.
In addition, some landowners who had to forfeit their property for the building of the East-West Arterial Highway in 2007 were still waiting for their money as late as 2012.
The government used its powers of compulsory acquisition of private property to build the road, but about 40 percent of compensation was not resolved for more than five years.
Landowners’ representatives said the delays amount to a severe injustice and the process is being prolonged to the government’s advantage. Government officials vehemently denied any implication they have behaved improperly, saying more complex cases take more time to resolve and that dragging out claims does not benefit anyone.
Mr. Jackson said local developers had expressed other concerns regarding the creation of the National Conservation Council under the bill, which will be used to establish an open environmental review process for development projects.
“It adds another layer, another decision-making process, so to speak, although it is more a consultative process,” Mr. Jackson said. “At the end of the day, the Central Planning Authority would make the decision.
“If the concern is that the Central Planning Authority isn’t making the right decisions vis-a-vis the environment, wouldn’t it make sense to deal with that by way of amendments to the Development and Planning law?”
Mr. Jackson said environmental impacts assessments on development projects can be costly and time consuming.
Minister Panton said the council, whose majority will be appointed by Cabinet, will be made an open and public agency in amendments the government intends to bring to the bill when it comes to the House next week.
“The National Conservation Council [will be] one of the first in this country to truly reflect open government, have its agenda published, have its minutes published and, as far as possible, have its meetings in public,” Mr. Panton said.