Premier is correct: sections 41 and 43 of National Conservation Law are ridiculous

Following an Aug. 24 Cayman News Service article (“Conservation Law ‘ridiculous’ says premier”), there was a great outpouring of venom on the part of persons hiding behind the “anonymous” label. Unfortunately, most of the comments did not understand that the subject of the Premier’s comment was not the entire National Conservation Law (Law) but only sections 41 and 43; in labelling the sections “ridiculous,” in my opinion, the Premier was correct. The reasons for my support of the Premier’s comments are as follows:

1. Subsection 41(1) of the Law imposes duties on all entities (any body of government and includes the Cabinet, any ministry, portfolio, statutory authority, government company or any other body which exercises a public function): (1) to comply with the Law; and (2) to ensure that its decisions, actions and undertakings are consistent with and do not jeopardise the protection and conservation of a protected area or any protected species or its critical habitat; the duties apply to the Cabinet as well as to other entities. As a general statement, subsection 41(1) is acceptable subject to the proviso that currently, we do not know where the critical habitats are of protected species.

2. Subsection 41(2) of the Law states that for the purposes of subsection 41(1), the National Conservation Council (Council) shall formulate and issue guidance notes to entities on their duties under the Law, and any action taken in full accordance with such guidance shall be deemed to be in compliance with the Law. There are two problems with subsection 41(2): (1) it is unusual for an entity like the Council to interpret the Law and tell other entities, including the Cabinet, what their duties are under the Law; and (2) if the Council’s interpretation of the Law is incorrect, full compliance with an incorrect interpretation is to be deemed compliance with the Law; this sets up an untenable situation.

3. Subsection 41(3) of the Law states that every entity (including the Cabinet), in accordance with guidance notes issued by the Council shall: (1) consult with the Council; and (2) take into account any views of the Council, before: (a) taking any action, including the grant of a permit or license; (b) the making of any decision; (c) the giving of any undertaking; or (d) the giving of any approval, that would or would be likely to have an adverse effect on the environment generally or on any natural resource. There are a number of problems with subsection 41(3); first, it binds the Cabinet; second, the definition of adverse effect is so broad that every action, grant, decision, undertaking and approval of an entity would be held up waiting for Council input. For example, the definition of adverse effect includes “alterations which may hinder or impede the movement or migration of wildlife” in a protected area, conservation area or an area of critical habitat. Third, because of the way adverse effect is defined in the Law, the use of the term with respect to natural resource is not appropriate. Fourth, the word environment is not defined in the Law. Fifth, and perhaps the most important, is that subsection 43(1) of the Law states that in consultations pursuant to subsection 41(3), the Council has the power to require an environmental impact assessment (EIA) to be carried out on the proposed action. There is no appeal from such a decision/requirement imposed by the Council; there may be an application to the Grand Court for judicial review, a long and costly process. Subsection 43(1) of the Law gives the Council the power to require that the Cabinet undertake an EIA on proposed action even though the duty imposed by subsection 41(3) of the Law is only to consult the Council and take its views into account. The mandatory scope of the EIA is stated in subsection 43(2) of the Law; however, the Council must approve the person carrying out the EIA and the person carrying out the EIA must comply with the directives issued by the Council. Directives are Law under the definition of Law. The cost of the EIA, which can be in the hundreds of thousands of dollars, is to be paid by the person who proposes the development (proposed action).

4. Subsection 41(4) of the Law imposes a duty on every entity, except the Cabinet, in accordance with guidance notes issued by the Council, to: (1) apply for; and (2) obtain the approval of the Council before (a) taking any action, including the grant of any permit or license; (b) the making of any decision; (c) the giving of any undertaking; or (d) the giving of any approval that would or would be likely to have an adverse effect, whether directly or indirectly, on a protected area or on the critical habitat of a protected species. Subsection 41(4), subject to a right of appeal against the Council’s decision to the Cabinet, gives the Council a veto power over the decisions of all entities except the Cabinet. Currently, there are a number of protected areas; however, the areas of land which are the critical habitat of protected species have not been defined. Currently, an applicant to the Central Planning Authority for permission to develop land does not know if his or her land is the critical habitat of a protected species. Subsection 43(1) of the Law gives the Council the power to require an EIA before the Council grants its approval to a proposed action.

5. The veto power granted the Council in subsection 41(4) is qualified in subsection 41(5) (a) to the extent that the Council a proposed action (development) subject to such conditions as it considers reasonable (regardless of whether they are reasonable in fact); in such a case, the entity in question shall ensure that the proposed action before the entity is made subject to such conditions. However, this qualification is itself qualified by the statement in subsection 41(5)(b) that if the Council considers that the adverse effect of the proposed action cannot be satisfactorily mitigated by conditions, the Council shall so direct the entity (originating authority) and the latter shall refuse to agree to or refuse to proceed with the proposed action.

If the foregoing seems very complex, it is because it is. However, the bottom line is the too much power is given to the Council which is a non-elected body and the Council is granted too much discretion to block or unduly interfere with decisions not only of the Cabinet but all other entities. Therefore, the provisions of sections 41 and 43, in my opinion, do not meet the test, mandated by the Constitution, of a reasonable balance between protecting the environment and development for the benefit of the Islands.

Paul Simon