Grand Court Judge Marlene Carter will deliver a ruling Tuesday morning on whether the National Conservation Council can meet in advance of a court judgment on a Cabinet decision to change the council membership.
Lawyers acting for Stuart Mailer and Patricia Bradley – two council members who were removed by Cabinet in February, to be replaced by, among others, former MPs Arden McLean and Ezzard Miller – argued that the new members were political appointees with no relevant technical or scientific expertise.
Chris Buttler, KC, who along with Kate McClymont is representing Mailer and Bradley, has applied to the court for a temporary injunction to prevent the 13-member council from meeting or, alternatively, to order it not to make any substantive decisions, until the judge ruled on whether the new appointments should be quashed.
The council had been scheduled to hold a working group meeting at 3pm on Monday, but that meeting was cancelled, the court heard.
After several hours of hearing submissions from legal counsel on both sides Monday, Carter told the lawyers to expect her ruling on the stay, or injunction, on Tuesday morning. The full hearing into the legality of Cabinet dismissing the former members and appointing the new ones will be heard in May.
Six council members replaced by seven new appointees
On 12 Feb., Cabinet revoked the appointments of National Conservation Council chairman Mailer, ornithologist Bradley, climate policy expert Lisa-Ann Hurlston-McKenzie, Ocean Frontiers founder Steve Broadbelt, Lucille Seymour and Pierre Foster.
They were replaced with Miller, McLean, and Kenny Ryan – as ‘technical’ members – and other former lawmakers Captain Eugene Ebanks and Gilbert McLean, as well as Paula Tathum and Steve McField. Ebanks, Tathum and McField were appointed as district representatives, while Gilbert McLean is the new chairman.
During Monday’s hearing, Buttler read out a letter from council member Ian Kirkham, that had been sent to the new chairman over the weekend. In it, Kirkham said he intended to resign if Monday’s meeting went ahead with the new members, who, he said, lacked the “requisite scientific depth of experience to adequately address the complex ecological challenges facing the Cayman Islands”.
Kirkham, who has a background in terrestrial ecology, was the only Cabinet-appointed expert whose membership had not been revoked in February.
Buttler argued that the appointment of the new members was unlawful under the Public Authorities Act, which requires board members to be “politically neutral”.
Naina Patel, KC, acting for Cabinet – the respondent – countered that the National Conservation Council did not meet the criteria to be considered a statutory authority and, therefore, the Public Authorities Act does not apply in this case.
‘Lacking technical and scientific expertise’
Describing some of the new council members as lacking in relevant expertise and experience and “avowedly anti-conservation and anti-science”, Buttler told the court that shortly before the Cabinet of Juliana O’Connor-Connolly’s minority government made the appointments, an effort to push through controversial amendments to the National Conservation Act had been voted down by MPs on 31 Jan. One of those proposed amendments was revoking a requirement for members of the council to have technical or scientific knowledge, he said.
“The Cabinet wanted the NCC to take decisions in line with political priorities, rather than in line with science,” he told Carter.
He added, “Having failed to persuade Parliament, the Cabinet then tried to achieve similar ends by taking the decision that’s now under challenge in this case.”
During the hearing, Buttler read excepts from the official parliamentary record, or Hansard, in which Arden McLean is reported as saying, “I am not a conservationist. I am no tree hugger.”
Patel, however, responded that Buttler had been selective in what he had quoted, and that the Hansard record of McLean’s speech in the House went on to say, “I understand very well that extinction is forever… there are many of us in here who toiled the soil… the concept of conservation in our country was instilled in us”.
In that speech, she said, McLean had also stated, “We have protected, we have respected the environment around us.”
Buttler also told the court that Miller, the former MP for North Side, had publicly opposed environmental impact assessments of infrastructure projects; had described the Central Mangrove Wetland as “swamp that should be drained to allow development”; and called the National Trust and the Department of Environment “zealous environmentalists”.
Patel later referred to those statements by Miller, saying at the same meetings at which he had said them, he had also commented on the flow of runoff of brackish water after heavy rains, and the likely impact of moving the proposed route of the East-West Arterial on local farmland.
She urged the judge to consider that the argument about the expertise of Arden McLean and Miller was “more nuanced” than Buttler implied. “These are not individuals who have no concern about the land or about the natural environment,” she said.
However, Buttler told the judge it appeared the recent “nakedly political appointments” had been made to undermine the work of the National Conservation Council.
Buttler noted that there had never been any indication that the individuals whose council memberships were revoked had acted improperly in any way, and none of the conditions under which a board member can be terminated, as laid out in the Public Authorities Act, had been met. Those members’ appointments had been cut short by several months, as they had been appointed in August 2023 to serve for for two years.
Buttler raised the spectre of the revamped council making decisions that could be detrimental to the environment, stating that if a stay was not put in place, and the court later determined that the make-up of the council was unlawful, then it was possible that irreparable damage could be done in the interim period.
No meetings scheduled
Patel, in her submission to the court, noted that no meetings of the council were scheduled for any date before the court has its full hearing in May, and, therefore, there is no need for an interim injunction to prevent such a meeting taking place.
With no meetings on the cards, there was “no risk of irremediable harm” between now and the date of the court hearing in May, she said.
She pointed out to the judge that a stay on convening the council under its new membership would have the effect of temporarily quashing Cabinet’s decision to appoint new members, and retaining the membership appointed in August 2023.
She added that the order sought by Buttler “on a temporary basis restores those that, at the present time, the Cabinet has lawfully removed, and removes those that, at the present time, the Cabinet has lawfully appointed”.
Patel noted that the council can meet with a quorum of seven appointed and non-appointed members, so could convene without the presence of the three newly appointed ‘technical’ members – Ezzard Miller, Kenny Ryan and Arden McLean.
She told the judge, “Therefore, that may mean that Your Ladyship might consider that there is merit in considering whether the NCC should continue to meet, but not necessarily that Your Ladyship would consider that it would be appropriate to reinstate people who have been dismissed.”
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