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, 2013, proposed for the Cayman Islands, in order to be enacted, has to pass a number of tests: (A) Constitution/Parliamentary democracy; (B) Protection of Private Property; (C) Affordability; (D) Economic Growth; and (E) Reasonableness. Unfortunately, in my opinion, the proposed Conservation Law, for the reasons which follow, fails all of these tests.
(A) CONSTITUTION/PARLIAMENTARY DEMOCRACY:
(i) Policy of the government on “Protection of the Environment” – Section 18 of the Constitution of the Cayman Islands states the policy of the government (Governor and the Cabinet) on “Protection of the Environment” as follows:
“(1) The Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is not harmful to the health or well-being of the present and future generations, while promoting justifiable economic and social development. (2) To this end government should adopt reasonable legislative and other measures to protect the heritage and wildlife and the land and sea biodiversity of the Cayman Islands that – (a) limit pollution and ecological degradation; (b) promote conservation and biodiversity; and (c) secure ecologically sustainable development and use of natural resources.”
Section 18 states two important things: (1) there must be a balance between protecting the environment and justifiable economic and social development; and (2) the measures adopted by the government to implement its policy must be reasonable (this is the “reasonableness test” which will be referred to later). It is interesting to note that the word “environment” is not defined in the Conservation Law and the definition of “natural resources,” in my opinion, is ridiculous.
(ii) Responsibilities and accountability of the Minister of Environment – Clause 54(1)(a) of the Constitution states that the governor shall charge a Minister with responsibility for the conduct of any business of government, including responsibility for the administration of any department of government.
It follows from this that the Director of the Department of Environment cannot be responsible for the administration of the Conservation Law on behalf of the Ministry, as clause 6(1)(a) of the Conservation Law currently states.
In addition, the Ministry cannot be responsible for the administration of the Conservation Law, as the definition of Ministry in section 2 currently says. Section 54(5) of the Constitution states that the Ministers, collectively, shall be responsible to the Legislative Assembly with respect to any matter for which a Minister is responsible under section 54 of the Constitution.
The following conclusions flow from section 54 of the Constitution: (1) it is only the Minister who can be responsible for the administration and enforcement of the Conservation Law and accountable to the Legislative Assembly for his performance; (2) the Minister can delegate the performance of the powers and duties connected with this responsibility to the Director; however, he cannot delegate his responsibility and accountability to the Legislative Assembly; (3) it is only the Minister who can assign powers and duties to the Director; a body such as the proposed National Conservation Council cannot, as is currently proposed in section 3(12) of the Conservation Law.
Strangely, the word Minister only appears in the definition section and in section 5 of the Conservation Law.
(iii) Director – All of the powers and duties of the Director stated in section 6 of the Conservation Law must be stated as the powers and duties of the Minister for the reasons stated above (section 54 of the Constitution). This can then be followed by a delegation section which states expressly that the Minister can delegate the performance of his powers and duties to the Director; and
(iv) National Conservation Council – Section 54(6) of the Constitution states that the Minister charged with responsibility for the conduct of any business of the government may be assisted in the discharge of that responsibility by a board, committee or other similar body: (a) consisting wholly or partly of persons who are not public officers; and (b) established by a law made under the Constitution or directions in writing given by the Minister concerned, such body to have such advisory, consultative and administrative functions as may be conferred on it by such law or directions, but, in exercising any such functions, the body shall be subject to the directions of the Minister concerned.
Contrast this with the Conservation Law which gives, in my opinion, unconstitutional and breath-taking powers and duties to the proposed Council, including the power to make laws (an example is contained in subsection 3(11) and the duty to formulate and issue directives to government entities with respect to their duties under the Conservation Law (section 41(2)). The directives to the Council in the Conservation Law do not come from the Minister, as is specified in section 54(6) of the Constitution, but from Cabinet.
The comment made above with respect to the Director of Environment also applies to the proposed National Conservation Council.
The powers of the Council include the power to: (a) approve “management plans” for “protected areas”; (b) approve “conservation plans” for “protected” and “endangered” or “threatened” species; (c) grant a permit to a person exempting him from the provisions of the Conservation Law; (d) requiring environmental assessments; and (e) 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, 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 when a committee tried to invent a horse, the result was a camel; this applies to the proposed Council.
Quite apart from the accountability aspect, given its membership of 13 voting members 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. Estate lawyers have a saying – let’s not fritter away the assets of this estate on the beneficiaries. In my opinion, with respect to the Council, the saying should be changed to – let’s not fritter away the assets of the Fund on the environment.
(B) PROTECTION OF PRIVATE PROPERTY
Although there has been a lot of discussion about the threat to private property from the concept of the “protected area,” with each one requiring a “management plan,” in my opinion, the greater threat to private property is the concept of “protected species.”
If my count is correct, there are 248 “protected species” listed in Parts 1 and 2 of Schedule 1 to the Conservation Law. Each of these “protected species” has to have a “conservation plan” which will state where the “critical habitat” of the “protected species” is located.
The Director is the person under the Conservation Law who identifies the “critical habitat” not only of “protected species” but also “endangered” or “threatened species” and also develops “conservation plans.” Assuming that a parcel of private land has been identified as the “critical habitat,” or one of them, of a “species” referred to above, all activities on the “critical habitat” can be
prohibited or severely curtailed.
Affordability has two aspects: (1) the cost of the administrative machinery established by the proposed Conservation Law to administer and enforce its provisions; and (2) 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 Council, land owners, developers, the Cabinet and the Grand Court wrestle with the challenges created by “protected areas,” “buffer zones,” “protected species” (248 and counting), “species” which may be threatened, the “critical habitats” of “protected species” and “species” which may be “endangered or threatened,” “permits,” “licences,” “management plans” (one for each “protected area”), “conservation plans” (one for each “protected species”) and the Draconian penalty of $500,000 for the commission of an offense (every offense is said to be one of strict liability; that is, the words “knowingly” and “intentionally” are irrelevant to the commission of the offense).
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, even with the Fund, cannot afford to establish an administrative machinery, with unknown costs.
(D) 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 (1) the breath-taking scope of the proposed Conservation Law; (2) the lack of a role for the Minister of Environment; (3) 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); (4) the Draconian penalty of $500,000 for a strict liability “offense” which probably will inhibit or paralyze decision-making by “entities” and “public officers;” the former, pursuant to section 41(4) of the proposed Conservation Law must consult with and obtain the approval of the proposed Council before making almost any decision (Given the definition of “adverse effect” in section 2 of the Conservation Law, I find the wording of the proposed section 41(4) frightening and capable of prohibiting all future development: “Every entity in accordance with any directives issued by the Council and regulations made under this Law, shall apply for and obtain the approval of the Council before taking any action including the grant of any permit or license and the making of any decision or the giving of any undertaking or approval that would or would be likely to have an adverse effect, whether directly or indirectly on a proposed area or on the critical habitat of a protected species.”); and (5) the ability of any person or organization anywhere in the world: (a) to propose to the Council that an area of land, whether Crown land or private land, be designated as a “protected area;” and (b) to petition that a “species” be added to the list of “protected species” (already at 248 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.
As pointed out above, section 18 of our Constitution requires that there be a balance between protecting the environment and the promotion of justifiable economic and social development; the Conservation Law does not strike a proper balance.
The test of reasonableness is stated in subsection 18(2) of the Constitution, quoted above. It does not seem reasonable to me that we would: (1) ignore the Constitution and the principles of Parliamentary democracy; (2) 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 as a result of the implementation of the proposed Law; (3) ignore the balance required by section 18 of the Constitution between protecting the environment and promoting justifiable economic and social development, (4) ignore the need for further economic growth leading to jobs for Caymanians; (5) give powers and duties to an unaccountable Council; and (6) think that a Council of 13 voting members with the powers and duties given to this Council, including the power to make laws, could ever 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 stated above. 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.