Noland grab clause in NCL

| 09/12/2013

(CNS): At a presentation on Cayman Brac Saturday on the proposed National Conservation Law, Environment Minister Wayne Panton and Department of Environment Director Gina Ebanks-Petrie addressed once again the lies and misinformation being spread about the NCL, and stressed that government will not be able to forcibly purchase land under the proposed law, nor will it give the Environment Council, which will be created under the law, power to dictate policy. The council’s role, they said, will be 95% advisory. Planning decisions will continue to be made by the Central Planning Authority (CPA) in Grand Cayman, the Development Control Board (DCB) in the Sister Islands, and Cabinet for coastal works licences.

The law simply states that these bodies must consider the advice of the council, along with all the other advisory bodies, such as the roads and water authorities, when weighing the pros and cons of a planning application, Ebanks-Petrie explained. The council, which will be a technical advisory board, will offer non-binding input on planning applications in the same way that the DoE does now. While the CPA, the DCB and Cabinet are not compelled to accept the advice of the council about environmental concerns, the new law does, for the first time, require them to consider it.

Only crown land can be designated as a “protected area” under the new law and the NCL does not include provisions for compulsory acquisition of private land. Government can offer to buy private land in order to protect it but thy owners can refuse, the DoE director told around 40 Brac residents at the meeting, noting that Compulsory Acquisition Law and the National Roads Authority Law already give government the power to forcibly buy land. The NCL will not make any difference to that, she pointed out.

“If the council or a private body suggests that a piece of land has environmental importance, and if the council decides that it’s worth it, it will advise Cabinet to buy the land,” the DoE director said. Negotiations to purchase the land at a fair market price will then begin, “but if the owners are not willing to sell, that is the end of it.”

Just because a protected species lives on private land does not mean that the land cannot be developed, Ebanks-Petrie stated. “That is not what the law says,” she said and explained that what it did mean is that after taking note of the Environmental Council’s advice, the decision-making bodies may add conditions to the planning approval in order to protect endangered species.

Some plants and animals are endemic to the Cayman Islands, which means that they live here and nowhere else on the planet, she said. Some of these species, but not all, require a specific area of land so that it does not become extinct, and this will be the critical habitat designation. However, the council will not have the power to impose this on any land, the DoE director explained. The proposal will be presented for public consultation and then go to Cabinet, which is the body that will make the decision.

The council, which in all other ways in entirely advisory, will have the authority to impose protection of species only in protected areas and critical habitat — both of which were designated by Cabinet — and the council’s decisions can be appealed to Cabinet.

Environmental impact assessments (EIAs) do not make the planning decisions, Ebanks-Petrie explained. They are another tool that the DCB, the CPA and Cabinet will use to ensure that they have all the necessary information to make their decisions.

“The current process is arbitrarily applied by the planning boards,” she said, noting that responsible developers find it “astonishing” that Cayman does not have set EIA regulations, which they are used to in other jurisdictions. The NCL will outline the EIA process for the first time and, far from deterring development, it will ensure the “clear, fair process” that is set out everywhere else, which is what developers want.

“Contrary to claims that this risks slowing development, good developers will be happy knowing that they will be treated the same as everyone else who walks in the door,” she said.

Deputy Premier Moses Kirkconnell, first elected MLA for the Sister Islands, who has responsibility for the cruise dock development, explained how, regarding that project, the EIA was one tool to be considered as they accumulated all the relevant information, including public reaction and input at the public meetings.

Nola Bodden, a businesswoman and land owner on the Brac, asked if the government could afford all the possible land purchases that may result from the enactment of the law. The Environmental Protection Fund, which is a departure tax on all visitors and residents, was created for this, Ebanks-Petrie explained. “We believe we have a good handle on costs,” she said. “We don’t think there will be any need to impose new fees.”

Tim Dilbert asked if the members of the council would be required to register their interests. This will be covered by the Standards in Public Life law which is currently in the process of public consultation, Minister Panton said, and will require this of all members of public boards and committees. 

Dilbert also asked for a provision in the law that the Sister Islands must have representation on the Environmental Council. This provision was included in an earlier draft of the law, Minister Panton said, but then all the other districts wanted the same consideration and it was decided that this would be difficult to enforce since the council is technical in nature and it may not be possible to find people from all districts with the right technical skills.

However, he pointed out that the ultimate decision-makers for Cayman Brac and Little Cayman planning applications were the members of the DCB, who were all from the Sister Islands, or Cabinet, where they were represented by the deputy premier. And, he added, he felt sure that Kirkconnell would make sure that one of the seven Cabinet-appointed members would be from the Sister Islands.

Asked about waste management in regards to the law, Panton pointed out that this was a separate issue and was being addressed by Minister Osbourne Bodden, who has responsibility for Environmental Health and has committed to finding a solution to the landfill problem.

“This law will not address all the environmental ills of this country but it’s a start,” Ebanks-Petrie said.

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  1. Anonymous says:

    Rabidly individualistic property rights are quite gauche and American.  This is British land we are talking about and it is just not right to be so selfish.  If people want to live the American dream they can buy land in North Dakota.  There is plenty of it.

  2. Justus T. Grumbleigh says:

    This is a disingenuous statement by the Minister, and is misleading. Of course the Conservation Bill itself does not allow a 'land grab' by the EnvironmentalCouncil but it does allow and specifically provide that the Council may recommend a protection area for designation by Cabinet following a Section 8(1) purpose determination, and that if it is not Crown land, it (or property adjoining Crown land) be acquired by Cabinet for that purpose.

    According to local lawyer Kate McClymont, the Land Acquisition Law provides very broad powers to public authorities to compulsorily acquire privately owned land. To effect the acquisition the acquiring body- in this instance, Cabinet for the Council- has merely to show that the land is needed for a public purpose, a Section 8(1) purpose. Landowners facing compulsory acquisition of their property have accordingly very little room, if any, to resist that acquisition.

    It would be more useful if the Minister and the Director concede that acquisition of land without the acquiescence of the landowner, is possible, now that the necessary 'public purpose' has been established under the Conservation Law, and to debate the issue accordingly.

    • Anonymous says:

      So what you're saying is that they could now use a law that already exists to take people's land but instead they're going around saying that they propose a law that does not have a compulsory aquisition section, which you agree it doesn't, but that somehow they're lying through their teeth?

  3. Anonymous says:

    I wonder in Moses and Wayne realize that the NCL contradicts what they are attempting to achieve with the redevelopment of the GT harbor pier project or will it not apply to GT and SMB?

  4. Anonymous says:

    Take the provision out of the law if there is no intention to acquire non-government owned property or protected areas

    • Anonymous says:

      EXACTLY!!!!!!! Why would it be in there if there is no intention- and why does "that's not our intention" matter at all? If there is a foreseeable possibility for mischief it needs to be redrafted!

    • Diogenes says:

      According to the article there is no provision in the law to compulsorially acquire – that right already exists under other law – so there is nothing to "take out".  Or put it another way – if they want your land they can take it anyway (subject to compensation)  irrespective of what the NCL law says. 

    • Truthseeker says:
      1. What Provision? 
    • Anonymous says:

      The point is there is NO SUCH PROVISION in the lbill…..

  5. Anonymous says:

    I question why our Director of Environment is so in favour of a whimsical "Law" where Cabinet can, with the wave of their hand, be free to subvert all recommendations of the Committee or infractions of the Law at their discretion?  The Cabinet decision making should be constrained by the Law, not the other way around.  Cabinet should not be free to turn laws off and on like a light switch.  The Law should be clear enough that no subjective interpretation by Cabinet or an expensive and redundant Committee is necessary – or even permissible.  As a Caymanian voter, I am deeply troubled by the angle of this entire conversation as it pertains to Cayman Law and Cabinet Policy.  

    • Anonymous says:

      Cabinet is made up of politicians, but the expertise lies within the Civil Service. However, we cannot have the tail wagging the dog. That said, sometimes the dog is a useless mutt with all the trademark tendencies of a dog. When that happens, we can only wait for the next period of election to remove him/her.

      We can only hope for a Civil Service that lays out the facts and gives unbiased opinions when call on, and a Cabinet that can come to an intelligent consensus after listening to all parties.

      • K9 says:

        I don’t know why you feel the need to insult dogs in this manner.

      • Anonymous says:

        I don't share your faith in Cabinet.  The port EIA data shows that it would violate a long list of NCL adverse effects, yet there is Cabinet support for both.  It doesn't make sense unless they have already decided to disregard the NCL regardless of whether it passes!  That's not good enough.

        • Anonymous says:

          You do know that the current Port EIA hasn't been done yet? That 'data' you're talking about are the Terms of Reference they're going to look in to.

      • Anonymous says:

        The proposed 13 member National Conservation Council is not necessarily comprised of technical experts, nor exclusively, authorities on environmental matters.  They will be tasked to convene to arrive at some important advisory opinion – with wholly uncertain effect on actual decision-making that applies to tens of millions of dollars and the future of Cayman.  In vitally important situations, such as the cruise port, Cabinet appears to have already decided to waive the NCL violations cataloged in the EIA.  Wouldn't it be more efficient if the NCL were clear, concise, and non-negotiable – ie. without the redundant 13 person interpretation committee and final coin toss loophole for Cabinet!?!  Are we satisfied that this overly complex apparatus is the optimal way to protect our environment?  Because that's what the blind backers are saying.  I'd prefer that if there truly is a 13 member expert Council, that their voice be final over any objection from Cabinet politicians.  

        • Anonymous says:

          More efficient perhaps. But that was rejected after the 2004 version was published.

          And remember, EIAs don't make decisions. They simply give information to make an informed decision with.

    • Anonymous says:

      I believe the Director of Environment had made it clear that the current Bill is a very watered-down version of the previous draft and while the Bill is not perfect itis better than nothing – which is what we have now. The Director does not make the laws – she works with what the political leaders and the people of the country give her. 

      • Anonymous says:

        Wrong!!  This Law was prepared on instructions of the Director of the Department of the Environment.  Michael Marsden, was hired by the Director to prepare this Law.  This was not something the political leaders or the people gave her.

    • Anonymous says:

      This Bill is watered down from the original and has been negotiated to the hilt over the 11 year period. It is not the best scenario, but it is a much needed starting point.


      Would you hold up paving a road because one gravel was sticking up?

      • Anonymous says:

        Are you that silly or simply a blind blogger? Cayman has a chance to get it right especially now that everybody is paying attention what will an extra three months of public discussion do to harm the bill and it's objectives?

        • Anonymous says:

          Let me get this straight, you believe that Cabinet will pass a law that makes someone else 'more powerful' than them? Ezzard is proposing that – that much of the Bill come through the LA instead fo being decided by Cabinet – and getting no traction. And you want them to bind themselves to recomendations made by a group, half of who work for them and half of whom they apointed?

          This is why the Bill has never passed. Someone always has a 'better idea' whch someone else doesn't like.

      • Anonymous says:

        What might be a gravel for you could be a bolder for others.

      • Anonymous says:

        You can't pave your road my friend, because you would inevitably be 'taking' or 'disturbing' some protected bug or bush.