Archive for November 9th, 2012
Taiwanese no longer need visa to visit Cayman
(CNS): Taiwanese passport holders will now be able to enter the CaymanIslands without a visitor’s visa, following Cabinet approval of amendments to the Immigration Regulations. Officials said this was the “first phase of an enhanced bilateral visa-waiver agreement” between Taiwan and Cayman negotiated by the Taiwanese Representative in London, which has visa-waiver agreements with some 114 countries, including the UK and most of its Overseas Territories. The premier recently made an unofficial visit to Taiwan to discuss business opportunities between the two countries and said he hoped the agreement would enhance economic, political and cultural links.
“It is expected to augment tourism and business development possibilities, as Taiwanese business people conducting business regionally will now have ease of access to travel to the Cayman Islands,” McKeeva Bush stated in a release from his office. “The third benefit is for Caymanian and Taiwanese students, who will have an opportunity to participate in reciprocal exchange programmes and further enrich their cultural appreciation, which is more and more a requirement in our globalized environment.”
Currently, Caymanians who hold British passports already enjoy visa-waiver treatment for visiting Taiwan through the agreement between Taiwan and the UK. However, this agreement would afford persons who hold Caymanian passports easier access to this vibrant point of interest in the Far East, once the agreement is reciprocated by Taiwan, as is expected.
Speaking in the Legislative Assembly on Friday morning about the move Bush said it was also in keeping with the government’s “mandate to continually improve investor relations” and was and expected to bring benefits for both parties.
CAL shares may be for all
(CNS): Following speculation that the premier had entered into talks to sell a substantial share of Cayman Airways to a Filipino firm, McKeeva Bush admitted Friday that the airline was exploring the possibility of selling shares, but alongside the San Miguel Corporation, local companies and Caymanians would also have access to shares in the national flag carrier airline. In a statement to the Legislative Assembly Bush said that CAL had received a proposal from the Manila based company which owns Philippine Airlines (PAL) to “explore mutually beneficial ways of working together”, which included investment in the local airline code sharing, aircraft operations and other strategic areas.
“These explorations are very preliminary,” the premier stated, adding that while there may be “great speculation in the media as to what may ultimately be agreed,” nothing had yet been confirmed and talks were continuing between CAL and SMC.
However, a leaked document believed to be an outline of the terms of investment that SMC is interested in making suggests that the firm would be looking for a substantial chunk of preference shares, with an agreed dividend starting at 3% in the first year rising to 5% in the third year of its investment. It would then be seeking an option to convert the shares to ordinary ones, which could give the firm as much as 49% of the airline.
Bush pointed out that any agreement to sell shares would require the approval of Cabinet, the Legislative Assembly and, ultimately, the UK. He said the share sale was one of many possibilities that the airline has been exploring to raise capital.
“The introduction of preference shares as an additional class of shares is one of those considerations that could possibly be pursued to raise capital from any potential investors locally or otherwise,” Bush told legislators Friday. “These non-voting shares provide for a stated return to the holders and provide an equity source of funding for the airline.”
The premier acknowledged that under the Public Management and Finance Law and the Framework for Fiscal Responsibility the airline would need the FCO’s backing in order to issue preference shares .
“Considering the lengthy approval process, this too is only exploratory at this time,” Bush said. “Assuming the necessary approvals can be obtained, preliminary discussions with the San Miguel Corporation suggest that they may be interested in purchasing some of these preference shares in Cayman Airways. While this investment would be welcomed, the conceptual goal is also to offer the preference shares locally for purchase by Cayman residents and Cayman companies.”
Bush said that there was much going on “behind the scenes” to attract potential investors to Cayman in general, such as SMC, but CAL was also exploring the benefits that such an investor could bring.
“Many ideas and concepts are being explored and considered, but nothing is yet to the stage that could positively be released in the absence of any definitive agreed terms,” he said. “The MOU I signed with the San Miguel Corporation stated that we would explore potential ways to work together and that is exactly what we are doing.”
Bush spoke of “due diligence’ but said all the talks were exploratory. The airline needed to raise capital to, among other things, purchase the current fleet instead of leasing to reduce operational costs, he told the LA.
Bush also announced that, for the first time in many years, the airline made a small profit for the first quarter of this fiscal year. Although he did not say how small, the premier pointed out that any profit was better than the usual $2 million loss.
The announcement about SMC has raised some concerns, however, despite the exploratory nature of the talks. In particular is the mounting speculation about the real motivation of SMCto invest in an airline which is not usually profitable. North Side MLA Ezzard Miller noted that the parent company of PAL is and has been seeking ways to get around its own airline’s black-listing in Europe and category two status in the USA as a result of its home base of Manila and the shortcomings in regards to international aviation regulations.
“While I believe that if government is going to sell shares in CAL those shares should in the first instance be offered locally, if we are to seek overseas investors, we need to be very careful,” the independent MLA said. “It is very unlikely that SMG genuinely wishes to sink as much as $25 million into CAL for the dividend but because it may help it circumvent the problems it has with regulations in Europe and the United States which has prevented the airline from expanding its routes.”
Miller said he hoped that Bush had thoroughly explored the implications of attempting to assist an airline which could be an effort to by-pass, not only the British civil aviation regulations but the US Federal aviation regulations as well. “I am concerned that Cayman Airways could be punished as a result of this attempt to sidestep important international rules which are about airline safety,” he added.
See the terms which SMC are seeking for its investment in CAL and the premier’s full statement below.
CJ waits on UK court ruling on Cayman constitution
(CNS): The Cayman Islands top judge is waiting on a judgment from the UK’s Supreme Court over an application he has made about two sections of the Cayman Island Constitution 2009 dealing with the employment of judges past the age of 65 and the complaints that can be made about members of the judiciary. Chief Justice Anthony Smellie presented a petition in May of this year about section 96(1) and section 106(1) to the Judicial Committee of the Privy Council for advice and interpretation of these parts of the new constitution. However, the governor applied to block it, saying that the issues should be resolved in the local courts.
Officials from the UK top court said that the petition raised a point of general importance as to whether the Judicial Committee may decline to rule on issues raised in a petition referred to it by Her Majesty under the 1833 Act and, if so, the circumstances in which it would be appropriate for it to do so.
A hearing was held last month where Lord Falconer QC, argued for the chief justice while the governor and the Cayman’s judicial legal services commission were represented by Lord Pannick QC.
The UK’s Supreme Court will now hand down its decision on Thursday 15 November in a judgment to be streamed live on the web.
The chief justice made his application under section 4 of the Judicial Committee Act 33 18 (‘the 1833 Act’) querying the new constitutional position, which deals with the circumstance of when and how an extension of an appointment of a justice of the Grand Court for the Cayman Islands past the retirement age of 65 can be made and the publication of a Complaints Procedure in relation to Cayman judges
In response Cayman Islands Governor Duncan Taylor applied to the Judicial Committee to advise Her Majesty that it “would not be appropriate to give substantive advice on the merits of the two issues, primarily on the basis that these issues should be resolved, at any rate initially, in the Grand Court,” officials from London explained.
The Judicial Committee's decision will be given at 4pm UK Time on Thursday, and will be streamed live at http://news.sky.com/home/supreme-court
Protesters re-focus on tribunal in mangrove battle
CNS): Campaigners trying to protect the coastline in South Sound, including a mangrove replenishment project, from development and the reclamation of an old boundary say they are switching focus to the Planning Appeal Tribunal (PAT) and away from the courts. Without endless resources, the Protect South Sound Group said it could be more effective in preventing a precedent being set regarding costal boundaries with the tribunal rather than trying to fight in the courts for a temporary stay on the works. As a result, they have agreed to drop their legal action until the PAT in exchange for the developer agreeing not to begin construction of the seawall and to protect the mangroves until the hearing.
The campaign group believes that the PAT will convene before the end of the year and say winning the appeal is more important than trying to stop the developer from working in the short term. While the developer is still filling in lots, he has agreed to hold off on the seawall and protesters say he has also agreed to minimise damage to the mangrove replenishment project in the area.
A spokesperson for the Protect South Sound Group explained that the campaigners decided to settle outside of the courtroom this week to allow them to concentrate all efforts, resources and manpower on the forthcoming appeal of RC Estates' original planning permission to the Planning Appeals Tribunal.
“The initial aim of the group to stop the dumping of aggregate beyond the disputed coastal boundary of South Sound was achieved and by taking the action we did we have allowed time for there to be a proper process up to that appeal,” a spokesperson said. “We have elicited concessions from the developer that will reduce environmental impacts should he restart his project before that appeal is heard.”
Hoping for an early date for the hearing, where all of the issues will be heard, including the critical argument over whether a sea boundary can be fixed, the campaigners said it was a difficult decision to abandon the court route to stop the fill from being poured into the ocean, but reversing the CPA’s August decision has to be the main battle. The group also expressed its disappointed that, despite requests from the DoE and local politicians, Attorney General Sam Bulgin has refused to take up the case when it could easily make an application to halt the work of the developer until the tribunal is heard.
“While this senseless and potentially unlawful destruction of the marine environment again reminds us of the desperate need for the National Conservation Law, in this case, with existing laws, the government is empowered to take action to prevent the destruction of Cayman's marine environment on what is very likely crown land,” the group said Thursday. “However the Attorney General has thus far failed to take action in response to requests from the DoE and MLAs to request an injunction to halt filling by RC Estates to allow time for the outstanding legal issues surrounding high water mark and fixed boundaries to be resolved.”
The campaigners are hopeful that their efforts with PAT are successful as the decision has far wider implications than this particular 2,000 foot stretch of local coastline. If the group fails to get the decision of the CPA overturned, the issue could open the floodgates (literally) as other developers and land owners dig into the history books for boundaries of old that they could justifiably claim again, despite their disappearance into the sea.
A spokesperson said the importance of this fight could not be underestimated as they pointed to the need for wide community support. “We have to focus on the bigger picture of having the decision overturned so that this cannot happen to other coastal areas in Cayman,” a group member added.
The campaigners also believe there is a flaw in Cayman’s Planning and Development Law which has left them in their current predicament. The appeals tribunal, and not the courts, has jurisdiction over CPA decisions and the local court system can only come into play after the appeal, and with a back log of more than six months, environments and eco-systems could be destroyed before those seeking to protect he country’s natural resources have a chance to redress disputed decisions.
National Conservation Law – never this version
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 proposed for the Cayman Islands, in order to be enacted, has to pass a number of tests: parliamentary democracy, affordability, economic growth, and reasonableness.
Unfortunately, in my opinion, the proposed conservation law, for the reasons which follow, fails all of these tests.
Parliamentary democracy:
In a Parliamentary democracy such as ours, a Minister of the Crown has responsibility over a subject area, such as the environment, and is accountable to the Crown and the Legislative Assembly for the performance of those duties which accompany that responsibility. In the Environmental Protection Law of the Province of Ontario (Ontario Law), as an example, the responsibility for the environment and the duties and powers which go along with that responsibility reside with the Minister of the Environment for Ontario. Section 4(1) of the Ontario Law states, in part, the following: “The Minister, for the purposes of administration and enforcement of this Act and the regulations, may …” Under the Ontario Law, the Minister of Environment may delegate the performance of any his powers to a Director; however, his duties and the ultimate responsibility for administration and enforcement of the Law cannot be delegated.
Director of Environment: Section 5(1)(a) of the proposed Conservation Law states that the Director of the Department of Environment shall “administer and enforce the provisions of this Law”. This cannot be, as it violates our system of Parliamentary democracy. It is the Minister of the Environment for the Cayman Islands who must be responsible and accountable for the protection of the environment and the performance of the powers and duties which are stated in the proposed Conservation Law. Unfortunately, the Minister of the Environment is not even mentioned in the proposed Conservation Law.
National Conservation Council: The comment made above with respect to the Director of Environment also applies to the proposed National Conservation Council. This proposed Council, to be made up of 11 voting members (5 public officers and 6 civilians, with 5 to be appointed by the Cabinet and the other by the National Trust), would have power to: (a) approve “management plans” for protected areas; (b) approve “conservation plans” for protected and other 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 of Environment, 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 a camel is a horse invented by a committee; this applies to the proposed Council. Quite apart from the accountability aspect, given its membership of 11 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, even if given the funds and people to do so, which, in the current economic environment, is unlikely at best.
Affordability:
Affordability has two aspects: (a) the cost of the administrative machinery established by the proposed Conservation Law to administer and enforce its provisions; and (b) 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 proposed Council, land owners, developers, the Cabinet and the Grand Court wrestle with the challenges created by “protected areas”, “buffer zones”, “protected species” (225 and counting), “species” which may be threatened, the “critical habitats” of “protectedspecies” and “species” which may be threatened, “permits”, “licences”, “management plans”, “conservation plans” (one for each “protected species”) and the draconian penalty of CI $ 500,000 for the commission of an offence (every offence is said to be one of strict liability; that is, the words “knowingly” and “intentionally” are irrelevant to the commission of the offence).
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 cannot afford to establish an administrative machinery, with unknown costs, in the proposed Conservation Law.
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 (a) the broad scope of the proposed Conservation Law; (b) the lack of a role for the Ministerof Environment; (c) 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; (d) the draconian penalty of CI $500,000 for a strict liability “offence” which probably will inhibit or paralyze decision-making by “entities” and “public officers” who, pursuant to section 35(4) of the proposed Conservation Law must consult with and obtain the approval of the proposed Council before making almost any decision (I find the wording of the proposed section 35(4) frightening and capable of prohibiting all future development: “Every entity and public officer shall, in accordance with any directives made by the Council, consult with the Council and take into account any views of the Council before taking any action including the making of any decision or the giving of any undertaking or approval that would or would be likely to have an adverse effect on the environment generally or on any natural resource.”); and (e) the ability of any person or organization anywhere in the world: (i) to propose to the Council that an area of land, whether Crown land or private land, be designated as a “protected area”; and (ii) to petition that a “species” be added to the list of “protected species” (already at 225 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.
Reasonableness:
It does not seem reasonable to me that we would: (a) ignore the principles of Parliamentary democracy; (b) 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 and its Government as a result of the implementation of the proposed Law; and (c) ignore the need for further economic growth leading to jobs for Caymanians. It does not seem reasonable to me that we could ever believe that giving powers and duties to an unaccountable proposed Council (never mind funds and people to do the job), could 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 of parliamentary democracy, affordability, economic growth and reasonableness. 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.
Cubans return to Cayman on cruise ship
(CNS): A group of Cuban refugees who passedthrough East End on Wednesday returned on a cruise ship Thursday evening after three of their number became unwell. Immigration is now processing the 22 men and three women who were aboard the fibreglass vessel, which was headed for Swan Island, Honduras. Officials said that the Carnival Legend picked up the migrants after they had headed back towards Grand Cayman to seek medical attention and then ran low on fuel. The refugees were forced to abandon their own vessel, which contained most of their property, when they were picked up by the cruise ship. The Marine Unit then looked for the boat that was sent adrift.
Officials said the migrants will remain at the detention centre until they are processed by officials; and the Immigration Department, the Deputy Governor’s Office, the British Embassy in Havana and the Cuban Government will work together to confirm the identities of each person. They also acknowledged that the refugees have the right to request asylum from the Cayman Islands Government.
“Such claims are assessed on a case-by-case basis, using the United Nations High Commissioner for Refugees (UNHCRs) Handbook for Determining Refugee Status. Any unsuccessful asylum seeker, or those who choose not to request asylum, are repatriated to Cuba,” officials stated.
While they remain in DoI custody, it is responsible for the welfare of the migrants, including their general health and well-being. As a result, the Red Cross has provided cots for the group, and the Department of Children and Family Services (DCFS) has been asked to secure clothing and food items.