What is important to appreciate is that no one – certainly not government – goes into a negotiation and signs an agreement without being surrounded by lawyers. There is no naiveté or misunderstanding when government puts pen to dotted line. Even agreements, later considered to be ill-advised or unpopular, are entered into with “eyes wide open.”
Put another way, government cannot alter or repudiate agreements they have signed after they have signed them (unless all parties agree to renegotiations).
Of course, there are varying degrees of commitment, the least-binding (but still important) being verbal assurances from someone with the appearance of authority to make them. Then there is something stronger called a memorandum of understanding (think of it as a letter of intent) and finally a legally binding contract.
Consider the following:
The Dart Group, which wanted to fix the George Town landfill, were encouraged by government and reportedly spent millions of dollars on research, aided by consultants, to put together their formal proposal; a long series of companies (including Dart) believed they had arrangements to upgrade Grand Cayman’s cruise and airport facilities; Jerome Begot of Cayman Helicopters has spent significant personal funds to expand his business on the waterfront but still doesn’t know if the plan will fly; and now thousands of work permit holders are adversely affected by changes to permanent residency standards after they had been abiding under a different set of rules.
Put simply, governments should not act this way.
Our leaders’ latest volte-face comes after the owners of the Alexander Hotel threatened to close the Cayman Brac resort if they could not get permission to dredge the adjacent “Stink Pond,” – or Salt Water Pond – also known as the Brac Duck Pond by defenders of the West Indian Whistling Ducks indigenous to the wetlands area.
In this case, we’re not prepared to judge the viability of the Brac hotel, with or without a marina, or to prescribe a solution for the smelly lagoon.
However, we must point out that Salt Water Pond was one of a smattering of areas previously protected under the Animals Law as a sanctuary for wildlife. That designation didn’t amount to so much as a speed bump for Cayman’s lawmakers, who summarily stripped the pond of its protected status by a quick show of hands in the Legislative Assembly in 2012.
Subsequent warnings from environmental officials that the necessary coastal works license had no chance of being approved, in turn, compelled the hotel to issue warnings of their own.
However, for those who blindly put their faith in government’s National Conservation Law (hastily passed last year but still not in effect), the government’s continuing vacillation on Salt Water Pond should be seen as evidence of betrayal, and a sign of future betrayals to come.
Here’s an interesting nugget in the government’s environmental legislation: The new National Conservation Law actually weakens – not strengthens – protections for designated conservation areas.
You see, as tenuous as Salt Water Pond’s protected status proved to be, at least back then it required a public vote of the full Legislative Assembly to take it away. Under the new conservation law, that will require only a decision – made behind closed doors – by Cabinet.
The principle underlying all of these examples (and many more we could have cited) is that if you can’t trust your government to adhere to its word, who can you trust?