Environmental Charter has force of law
Following the historic day on which the Bill of Rights became effective, it is worth reminding the country, and our legislators in particular, that the protection of the environment provided for in paragraph 18 of the Bill is already meant to be safeguarded by the commitments made by the government in the name of the people of these Islands in the Environmental Charter – Cayman Islands, signed by McKeeva Bush on 26 September 2001.
Lest Mr Bush, or anyone else, presume that the Charter is merely a list of nice intentions which can be conveniently ignored, the findings of the Bermuda Ombudsman in her report, Today's Choices – Tomorrow's Costs, Systemic Investigation into the Process and Scope ofAnalysis for Special Development Orders, February 2012 and the follow-up Special Report of 1 June 2012 (both available at www.ombudsman.bm) should leave no one in any doubt that the Cayman Islands Environmental Charter has the force of law.
Along with a number of other Overseas Territories, the Cayman Islands and Bermuda each entered into its own Environmental Charter with the UK in 2001. The charters are identical except for minor punctuation. The Bermuda Ombudsman's role is similar to that of our Complaints Commissioner. Like the Complaints Commissioner, the Ombudsman is authorised to launch investigations on her own motion in the public interest.
In her report into the conduct of the approval process for the Tucker Bay Development the Bermuda Ombudsman concluded that Bermuda is obliged to conduct Environmental Impact Assessments prior to approval in principle for development proposals that are major or likely to have adverseeffect on the environment.
She says: "This obligation is established by Bermuda's signature in 2001 to the UK Environmental Charter" and further, that the obligations arising out of the Charter are not discretionary. "The UK Charter is more than just a statement of good intentions. There is no enforcement mechanism, however, like the Tax Information Exchange Agreements [of] recent years, our signature on the UK Environmental Charter has the force of law. Our word must be our bond."
The Ombudsman did not reach this conclusion lightly but only after having examined the relevant principles of international law, common law laid down by the Privy Council and the UK courts that, though not binding, is persuasive in the Cayman Islands as it is in Bermuda, international best practices and standards for public consultation and data gathering and analysis and having consulted widely within and without Bermuda.
As a matter of law, international agreements are legally binding when they are (i) signed in writing, with specific commitments; (ii) entered into without coercion or duress; and (iii) there is no express written provision that the signatories do not intend to be bound. The agreement need not include enforcement mechanisms for non-compliance. As the Ombudsman said, "In such cases, the primary sanction for non-compliance is the risk to the reputations of signatory governments."
A reading of the detailed reports leads to the inevitable conclusion that the Ombudsman's statement that “Our signature [of the Charter] created a legitimate expectation that environmental impact assessments (“EIAs”) would be conducted prior to approval of certain developments” applies equally in the Cayman Islands, and in fact in respect of the entire Charter.
Mr Bush's signature on the Charter created a legitimate expectation that all commitments will be carried out. Of special concern are the Charter commitments couched in mandatory terms. These are:
The government of the Cayman Islands will:
Commitment 2 – Ensure the protection and restoration of key habitats, species and landscape features through legislation and appropriate management structures and mechanisms, including a protected areas policy, and attempt the control and eradication of invasive species.
Commitment 3 – Ensure that environmental considerations are integrated within social and economic planning processes, promote sustainable patterns of production and consumption within the Territory.
Commitment 4 – Ensure that EIAs are undertaken before approving major projects while developing our growth management strategy.
Commitment 5 – Commit to open and consultative decision-making on developments and plans which may affect the environment; ensure that EIAs include consultation with stakeholders.
Commitment 8 – Ensure that legislation and policies reflect the principle that the polluter should pay for preventionor remedies; establish effective monitoring and enforcement mechanisms.
Commitment 11 – Abide by the principles set out in the Rio Declaration of Environment and Development and work towards meeting International Development Targets on the environment. The principles of the Rio Declaration require that: (a) development and environmental protection must constitute an integral part of the development process, public consultation and access to information held by public authorities concerning the environment must be available; (b) prior to approval, and EIA shall be undertaken to provide the scientific evidence necessary for the determination, under the Precautionary Principle to do no harm, of whether proposals threaten serious or irreversible damage to the environment.
A review of the recent news headlines in the last month alone shows how abjectly the government has failed in this regard. For example:
Commitment 2. Minister Scotland has still not brought any form of the Conservation Bill (more than 10 years in the making) to the Legislative Assembly. Yesterday the Animals Law was amended to remove the only animal sanctuary designated within it for Cayman Brac. Even where restoration of habitat has taken place, it is taking further legal action to prevent its destruction for a second time in South Sound.
Commitments 3, 4, 5 and 11. The Eagle Assets Investments Ltd. Frank Sound development, by DoE calculations, represents cumulative applications of 535 acres of land. The Duck Pond proposals from Caymarl Ltd represent 416 acres of land. Together these amount to more than 2% of the entire Cayman Islands. No EIA’s are available. There are apparently no plans to conduct an EIA for the Shetty Hospital. Primary shrubland and forest on land owned by Mr Imparato in the vicinity of the hospital site has been razed to the ground with no apparent authority.
Preparatory work has begun at the proposed Dart landfill site in Bodden Town ahead of an EIA. Terms of reference were made public on the DoE website only on Monday.
If the people of the Cayman Islands are to have confidence that any approvals given for these projects are made by a "government [that] 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 present and future generations, while promoting justifiable economic and social development", as the Bill of Rights mandates, then it must ensure that appropriate legislation is passed, environmental impact assessments (EIA) are undertaken before approval is given and the public must have reasonable time for consultation.
Government must also train its staff in its obligations under all the laws of the Islands. It is no answer, as offered in the Eagle case, that the planning regulations do not permit the CPA to require a Planned Area Development application and EIA when it is abundantly clear that the proposed development, being drip fed in stages, is of a magnitude that requires such actions. The Charter mandates that you do it.
Category: Viewpoint
A little learning, access to Wikipedia and amateur enthusiasm are a dangerous combination. This article is misleading and overstates the status of the Charter as a matter of Cayman Islands law. The true position is as stated by Donald Duck below. Those interested in strengthening the importance of environmental rights in Cayman should seek domestication of these obligations.
"A little learning, access to Wikipedia and amateur enthusiasm are a dangerous combination"
Seems to me, with our adversarial system that statistically even learned lawyers must lose about half of the cases they argue? Even so, I agree with you, if only to add that the greatest danger is to the superiority and income of those that have traditionally had privilaged access to this information; lawyers, doctors. etc.
Is it unreasonable to expect senior members of government live up to their word? Oh, wait, perhaps the lawyers advised McKeeva that this "Charter" was not worth the paper it was written upon!
Where is the harm in this viewpoint, even if legally rebutted ? And which lawyer out there is so confident in their analysis that they are willing to GUARANTEE that their position will not be overturned in the future?
Congratulations to the author for stirring a pot in dire need of being stirred!
Cowitch
I'm very glad that you posted this viewpoint, i was unaware of this information. I am very curious as to why no one takes legal action against the government. Hopefully with the Bill of Rights we will be able to see some change. I'm very scared for the environmental habitat of this island.
The UK can, and should, require incorporation of these obligations into Cayman domestic law with wide standing to bring enforcement proceedings. Until then they are basically worthless pieces of paper.
The Premier's pretense at "caring about the environment", briefly stated early in his reign was perhaps most clearly unvailed at the West Bay meeting for the new Marine Parks Proposal, at which he ranted about his complete rejection of the new proposals made by our most experienced marine biologists, who advise that our reef fish population is in serious decline. Everyone who has fished or scuba dived here for more than 30 years knows that all will soon be lost unless we take serious measures now. What is proposed for the new parks is minimal and much more eventually really needs to be done, yet Mac carried on as if the proposal was intended to take away our heritage rather than preserve what little is left of it so that we might be able to catch a fish in the future. Our current reef fish population is but a shadow of what it once was. The human pressure is far greater than ever before. We must not continue to take reef fish at anywhere near the rate we are doing now. To fail now will surely result in desolate dying reefs. If he understands the marine environment so much better than the experts at DOE who have been studying our problem for 30 years now, perhaps he should run for re-election on the environmental ticket. When you hire (and pay) experts for 30 years and then summarily reject their advise because you don't like it, there is something very deeply wrong with your priorities, wisdom and discernment. Fire him and elect someone who truly cares about the future of Cayman, our heritage and our legacy rather than their own enrichment at our expense. Heritage means, what you inherit, not what you thoughtlessly dispose of. The best use of a heritage is to enjoy it sustainably and then pass it on to your heirs. We failed with the turtles, will we do it again with the reef fish? Ask our Cabinet to vote for the environment! Ask Mr. Bush to step aside (for yet another good reason).
Official Hansard Report, Friday, 11 January 2002 at page 1597 for the second reading of the THE MARINE CONSERVATION (AMENDMENT) BILL, 2001.
"Madam Speaker, the fact is that this country faces a difficult decision. Research indicates in certain instances, that certain species of marine life are being so rapidly depleted from Cayman waters that they are likely to be approaching critical mass. That is, a stage where the numbers may be too low to allow the species to recover. Our best efforts are required now to see that Cayman’s vulnerable marine life does not reach a similar point of no return. Either we act to conserve our precious and limited marine resources or we risk losing them altogether, losing them for a meal now and then.
"We must act as a country with prudence and wisdom although we realise in the short term that we may experience some inconvenience and even to an extent some hardship. We must make this sacrifice in the short term so that we may reap the benefits of our marine life in the longer term. By establishing limits and in some instances from outright bans, this Bill provides the necessary framework to allow for the continuation of healthy and abundant marine populations, which have come to be associated with the Cayman Islands. While I appreciate that marine conservation is a highly sensitive matter, I am also aware that corrective action must be taken sooner rather than later or the issue will be mute (sic). When one considers factors such as the growing resident population of the Cayman Islands and the increasing demand being placed on our Islands limited marine resources, it is evident that the strain on certain marine life has taken its toll over the years.
"Madam Speaker, when I was a boy, as no doubt others did growing up in these Islands, I went out on the ironshore on the Bay and threw out a line. I could catch all the fish I wanted. If you went swimming or diving around the ironshore or inner reefs the ornamental fish were in schools. Today, you can go fishing all day and you might not catch one and you go swimming in some areas you might see small schools or three or four here and there, but nothing like the previous abundance. It is obvious that we have to take some measures. Ornamental fish today are being destroyed by spear guns, fish-traps and s-traps that were never used by the population here. Things I see being speared today—whether by spear gun, Hawaiian sling or some other home-made spear—were never troubled when I was growing up.
"If we do not take bold action now, in time these creatures may not be available locally for any of us to enjoy—Caymanians, residents and visitors alike. This could have a far longer and devastating impact on the Caymanian way of life and the appeal of our tourism product."
The legal opinion of Bermuda's ombudsman has little weight elsewhere.
Especially because if the conclusion was as indicated by the title of the Viewpoint it would be wrong. I have my doubts the ombudsman ever came to that specific conclusion.
Maybe so, however, were the Cayman Islands Complaints Commissioner to choose to undertake a similar enquiry she would be obliged to evaluate and have regard to the same underlying legal principles and case law. The conclusion might well be that we are under no obligation to keep our word. Is that something to be proud of?
You seem to have mistaken the Cayman Islands as a monist jurisdiction. It is not. It is a dualist jurisdiction. International agreements may assist the construction of local law or may be relevant to determinations of reasonableness or proportionality in a judicial review but do not form part of the enforceable rights domestically. There is arguably a slightly different approach to human rights treaties which provide individuals with a specifc right of private enforcement but that is not the issue in the piece.
Slam dunk. Case closed.
In answer to Donald, yes, the Bangalore Principles did start to push open that door.
I believe the Ombudsman was applying the principles if international law by which parties conclude treaties to the manner in which the Charters were entered into. The Environmental Charter is not actually an international treaty however, if for no other reason than the Overseas Territories are not separate legal entities from the UK for that purpose. Agreements such as the Charter are, according to the view of FCO legal advisors, capable of being a contract binding upon the parties under domestic law.
Consider also the ruling by Jones, J. in Gong v. CDH China Management Company Limited in the Grand Court and reported in 2011 (1) CILR 57:
"The Cayman Islands is party to the Convention (ie the European Convention for the Protection of Human Rights and Fundamental Freedoms made in Rome on November 4th, 1950) but the Legislative Assembly has not enacted any statute by which the rights contained in the Convention are specifically incorporated into our domestic law, with the result that this court has no power directly to enforce Convention rights as such. However, since February 23rd, 2006, persons alleging they are victims of breaches of the Convention, whether by the Legislative Assembly, the executive, the judiciary or any other public authority of the Cayman Islands, have had the right to complain by presenting an individual petition to the European Court of Human Rights.
"[Therefore,][f]irst, I cannot properly exercise any of this court’s discretionary powers for a purposewhich would be contrary to the public policy of the Cayman Islands. Secondly, I think that the principles set out in the Convention must reflect the public policy of the Cayman Islands. If they did not, the Cayman Islands would not be party to the Convention, or it would have become a party subject to a reservation in respect of whatever aspect of the Convention is thought to be inconsistent with our public policy. I am in no doubt that the general principles contained in arts. 6 and 14 of the Convention do no more that re-state what was hitherto regarded as the public policy of this country."
The Cayman Islands is a party to the Convention on Biological Diversity ("CBD") (by ratification 3 June 1994). As the Legislative Assembly has not enacted any statute by which the rights and obligations contained in the CBD are specifically incorporated into our domestic law, presumably the courts of the Cayman Islands would take the same view, that they have no power directly to enforce CBD rights or obligations as such. But, would the court have no regard for the fact that on 26 September 2001 the Cayman Islands signed the Environmental Charter with the United Kingdom agreeing commitments, several in mandatory terms, to implement the CBD?
For example, article 14.1 (a) of the CBD “Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimising such effects, and where appropriate allow for public participation in such procedures.”
Respectfully, the Department of the Environment needs the rest of government to step up to the plate instead of undermining its work.
But as has been already pointed out the Human Rights Charters are different and it was the right of individual petition that allowed different treatment of such treaties in the UK case law relied upon in Gong.
The Bangalore Principles have nothing to do with this issue.
Slam dunk, Case closed? What a well-reasoned legal argument. You must work for the AG's office!
It may be difficult to enforce compliance with such agreements but:
a) As the Ombudsman said, "In such cases, the primary sanction for non-compliance is the risk to the reputations of signatory governments." – Quite significant, don't you think, given McKeeva's recent tirades about the UK being potentially responsible for damaging Cayman's international reputation
b) I seem to recall a fairly recent instance where the UK took a rather dim view of McKeeva treating an agreement that he signed with them as non-binding. Does your interpretation of monistic versus dualist jurisdictions stand up when one of the parties to the agreement is a colony of the other?
c) So, if you are right, would that characterize all of McKeeva's much-touted international MOU's as nothing more than flamboyant posturing?
Just asking.