Archive for December, 2013
Noland grab clause in NCL
(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 oncosts,” 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.
Court to hear WB Road case
(CNS): The civil action brought by four West Bay ladies questioning the legality of the deal between government, the National Roads Authority and Dart Realty, which resulted in the closure of the West Bay Road, opens in Grand Court today. Alice Mae Coe, Annie Multon, Ezmie Smith and Betty Ebanks have said that they believe their case has merit and werelooking forward to pressing their case in the trial. The writ was filed by the woman in February last year, and the women say that the governor, who is the first defendant, the attorney general, the minister of finance and the National Roads Authority acted unlawfully, as the deal they are all party to is unconstitutional.
Although the suit was filed against the previous administration, thePPM government has continued in the defence of the case even though it has not only questioned the deal but is currently struggling to renegotiate aspects of it. The NRA deal forms part of what was originally a much broader development partnership between the islands’ biggest developer and the former UDP government, known as the ForCayman Investment Alliance.
The NRA deal focused on the West Bay Road area and, among other things, required the closure of some 4,000 feet of the West Bay Road to turn land bought by Dart into beach front property to enable the redevelopment of the former Courtyard Marriott site into a new five-star oceanfront resort.
Part of the road has already been closed and buried under a significant amount of sand. However, the four women, who are part of what was a much wider campaign to keep the West Bay Road open, believe that the closure of the road, which has been in use for over 100 years, is unlawful and unconstitutional for a number of reasons and government did not follow due process.
Using the Bill of Rights and the Constitution to make their case, they claim that the governor, the attorney general, the minister with responsibility for roads and the National Roads Authority breached the National Roads Law, the Crown Lands Law and the recent amendments to the Public Management and Finance Law.
The controversial NRA agreement was originally signed in December 2011. Efforts were made to reach a final agreement by the UDP government and the minority administration that took office following the fall of former premier McKeeva Bush, as well as the current government, but the deal has not yet been formally re-agreed.
In their statement of claim the four West Bay women point to a number of issues they believe make the NRA agreement unlawful. They claim the governor and government failed to follow the requirements of the Crown Lands Law, the easement rights regarding the West Bay Road, which has been in use as a public thoroughfare for more than 100 years, government has failed to demonstrate value for money and that the deal has been shrouded in secrecy.
The women say that the former Cabinet circumvented proper lawful processes and that the NRA was never in a lawful position to sign the deal in the first place. The also say that the country’s parliament, and by inference the people of the Cayman Islands, have never been fully informed of the details of the agreement to close the road and have it absorbed as part of Darts beachfront property.
They also claim that under section 19 of the Constitution, “the first defendant, third defendant and fourth defendants have not acted lawfully, have acted irrationally and have not been procedurally fair in agreeing to” the road closure and giving the land to Dart and “have abdicated their statutory and constitutional duty in doing so".
The women are hoping for a declaration from the courts that the agreement as a stand-alone contract is flawed and beyond the powers of those involved to make.
Since filling the claim, the Dart Group has been joined in the case and will also play a part in the proceedings, which are open to the public and begin at 11am Monday before Justice Alex Henderson in Court 4 and is expected to last the week.
C4C attacks conservation law
(CNS): Some 48 hours before the National Conservation Law goes before the members of the Legislative Assembly, the Coalition for Cayman has issued a statement attacking the bill. Although the group, which has always claimed it is not a political party, had campaigned during the election for a national conservation law, it seems that the ‘advocacy group’ does not like the law that government will be bringing to the House on Wednesday. The group suggests it will stifle development and claims that the government should establish a sustainable development policy before it passes the conservation law. Despite the attack by the C4C, the three candidates which the group endorsed during the election will be supporting the legislation.
Tara Rivers is bound by the collective responsibility of Cabinet, which has already approved the legislation. Meanwhile, backbenchers Winston Connolly and Roy McTaggart, who works with the environment minister on the financial services side of that ministry’s portfolio, are both understood to be backing the law.
Although its members of the LA will be getting behind the new law, the coalition has issued a press statement which attacks the law and asks for twelve more months to re-write it and consult further on legislation that has been dubbed the “national conversation law” by Environment Minister Wayne Panton. The minister coined the phrase during the election campaign, referring to the incredible amount of public discussion and consultation that has surrounding the formation of the legislation.
In their statement to the media C4C states, “The worst option in our view would be to try to ram through a Conservation Law … which may result in unintended consequences that create more problems than solutions. This is one instance where getting it done right is more important than just getting it done.”
On the campaign trail all eight of the candidates that ran on the C4C platform pointed to the urgent need for a conservation law and the management of Cayman’s natural resources. In the manifesto put out by the C4C, which they denied was a manifesto, and was referred to as a National Plan, the candidates collectively stated, “The natural resources of the Cayman Islands should be protected and managed responsibly to ensure that future generations inherit a healthy and viable environment.” They went on to state that they would pass a National Conservation Law if elected.
The Progressives, who were elected to office, also campaigned very specifically on this draft and promised it would bea priority. Once appointed as environment minister, Panton wasted no time and made it clear back in June that he would be steering the law through the LA before the end of the year, giving more than six months’ notice. He also announced that this final period of consultation will lead to some amendments before the bill is passed, including mandating provision for open government for the Environmental Council, which continues to be misunderstood, including by the C4C.
In their attack the C4C incorrectly suggests that the law allows environmental policy to be made by the council. However, it is Cabinet, the elected officials, who will make policy decisions based on the technical advice offered by the council. The decision by Panton to require the minutes of these meetings to be published by law and for meetings to be open to the public should go some way to proving that point once the law is implemented.
C4C also suggested that government could use the Compulsory Acquisitions Law to force the sale of land for conservation purposes. However, there is nothing at all in the law that will allow this to happen. As has been noted on numerous occasions by both the minister and Department of Environment Director Gina Ebanks-Petrie, if government wanted to compulsorily acquire land it could already do so without the NCL.
The NCL provides a way for government and land owners to choose to work together for conservation management while keeping land in landowners’ hands, but if they wish to sell, all purchases by government will be made at market value.
While the advocacy group acknowledges that the law has been under discussion for ten years, it suggests that “it has been the wrong discussion”, as they accuse the law of being about “limiting development” instead of facilitating development.
The group also called for policies covering recycling, reducing the reliance on fossil fuels and taking emergency steps to stop the dump leeching into the North Sound. However, the law, as the director of the environment has said during the most recent round of public discussion, is not a pollution law; it is a conservation law that is designed to protect indigenous and endemic species and at least some of the habitat on which they depend.
The C4C’s submission to government about a sustainable development policy sets out a desire to see much more and not less development, which it fears the law will curtail. It calls on government to offer incentives to developers for high-end resorts and niche market hotels, mixed used developments, entertainment in general, three golf courses, mega-yacht facilities and marinas, more sport facilities, including a 50-meter swimming pool and associated facilities, as well as sewage, electricity, water, IT, roads, airport, cruise pier and various unnamed infrastructural projects.
Conservation Bill critique
Conservation is an important and emotive subject. It tends to be polarizing and can cause people to passionately disagree without being willing to acknowledge and accept the sensible aspects of the other's view. One of the Coalition for Cayman's 10 founding principles reads: A belief that the natural environment and resources of the Cayman Islands should be used responsibly ensuring that future generations inherit an environment that is clean and safe.
We are therefore strong supporters of laws and regulations which protect Cayman's natural environment and resources for future generations.
Given the very limited space available in Cayman, we are also aware that this protection must be designed together with a national development and infrastructure plan so that we have a cohesive fit and balance for Caymanians to be able to own homes and have the opportunity to own a business as well as provide for the type of infrastructure that is needed to support a modern and expanding population.
This was the general thrust of the paper we prepared entitled "Sustainable Development" and delivered to the new government shortly after they were elected.
The main concerns passed on to us about the draft Bill relate to a lack of the appropriate balance with the country's needs and the concentration of power in such a small group of unelected individuals. Here, briefly, are some of those specific concerns:
1. Policy should be made by our elected representatives and then implemented by the non-elected Government employees. The Bill allows policy on all matters related to the environment to be made by a council which includes Members of the Department of Environment, the National Trust and other political appointees without any reference to the Minister in charge of policy making on behalf of the elected Government.
2. Out of proportion penalties of CI$500,000 apply to any and all offenses, whether intentional or accidental, covering a broad range of habitats of 225 species – plus more "which may be threatened".
3. A new government bureaucracy will be created at significant unnecessary expense, while the increased costs and lost time created by the new requirements will discourage development, thereby further reducing revenue (both to government and the private sector) and employment during difficult economic times.
4. The Compulsory Acquisition Law is already on the books. This new Bill, working in tandem with that, would allow compulsory acquisition of private properties which might be deemed "protected" because they were adjacent to protected Crown property. Land is also a financial resource in Cayman as it is passed down from generation to generation providing collateral for our children’s education, our first home, our own business, etc. For Caymanian landowners to potentially lose the use of their property or the property itself, and without proper compensation, is unthinkable.
5. A comprehensive Conservation Bill should include provisions for Waste Management and Recycling.
We urge our Government to put the current Bill on hold and prepare a national development and infrastructure plan, which includes our conservation aims (what are we trying to protect) and the needs of a growing population (what areas are approved for future businesses, residential properties etc) including the related infrastructure requirements (location of future roads, airport, port, garbage disposal, sewerage treatment etc). The Bill can then be revised in light of these requirements.
This Bill may have been under discussion for 10 years, but it has been the wrong discussion. It should not have been about limiting development. It should be about permitting sustainable development whilst implementing green policies (recycling, reducing reliance on fossil fuels, taking emergency steps to stop the Dump leeching into the North Sound etc) that will make our Islands safe and clean in the future.
There is no resistance to a conservation law but there is real resistance to the drafts that have been put forward in isolation with serious inherent flaws and without any direction from the elected Government on its environmental and sustainable development policy. Based on all the feedback we have received from many concerned citizens, business owners, and residents, that appears to be the case once again.
Preparing a national development and infrastructure plan should not take long. We suspect much of this work has been done and is sitting on physical or electronic shelves within Government. There is no reason why a 12-month timeline would not be realistic for both the plan and a revised Bill to be brought to the LA. Our Government must first, and at the very least, agree on a Conservation and Sustainable Development Policy. To create a proper Bill you must have a policy in place that deals with 2 such important and intertwined issues.
The worst option in our view would be to try to ram through a Conservation Law (or any Law) which may result in unintended consequences that create more problems than solutions. This is one instance where getting it done right is more important than just getting it done.
Good governance goes beyond managing cash
(CNS): Good governance is not just about managing public finances, the governor said last week during Government Professional Development Week. Helen Kilpatrick was one of the presenters at the week-long event, organised by the government and the Cayman Islands Society of Professional Accountants, and she was also interviewed by Auditor General Alastair Swarbrick on the subject of public sector governance. Kilpatrick said the three priority areas in relation to good governance are core values and a good business ethos; having clear accountabilities and systems; and holding people accountable by measuring performance and outcomes.
“The foundation of an efficient and trusted public service is good governance,” she said during the Q&A with Swarbrick. "Without this bedrock we cannot have performance management, accountability or the trust and confidence of citizens or investors."
The governor said that in the modern civil service leaders should be focusing on influencing others to achieve positive outcomes as it is more satisfactory than issuing directives.
“It’s all about being proportionate and having good processes, structure, and regulation,” she added, pointing to the various performance measures, including those that come from the people using public services.
“It’s a huge mistake to think that ‘good governance’ only relates to finance, because everyone, including politicians and members of the public, have a role to play,” Kilpatrick stated.
During the week-long event in which the financial secretary, the finance minister and the chair of the Public Accounts Committee and a host of international speakers all spoke about issues relating to public finances and accountability. The workshops and presentations focused on ethics, risk management, technology, project management, and the role of chief financial officers.
Managerial staff from government departments and authorities as well as private sector employees attended the event
Man mugged by three robbers in GT street
(CNS): Police are on the lookout for three robbers after a local resident was mugged at knife point in the street during the early hours of Saturday morning. An RCIPS spokesperson said the incident happened at about 1:10am on 7 December when a 41-year old man was accosted in the vicinity of the NevLaw Building on Shedden Road, central George Town, by three men, who were all said to be armed with knives. A small amount of cash was stolen from the victim but he was not physically injured during the robbery. Witnesses or anyone with information that could assist the police with the investigation are asked to contact the investigating officer DC111 Taylor at 949-4222, the RCIPS tip-line 949-7777 or Crime Stoppers 800-8477(TIPS).
Manhole worker hit by car
(CNS): A 22-year-old man has been seriously injured after he was hit by a car as he was working down a man hole. A police spokesperson said that the man, who is currently in hospital suffering from multiple injuries, was struck sometime after 1:00pm on Friday afternoon as he was working in the manhole situated in South Church Street at the junction with Parsons Lane, George Town. A woman who was driving a Suzuki Vitara from Parsons Lane and turning onto South Church Street hit the man. He was taken to the Cayman Islands Hospital, George Town, after the accident where he remains and where his condition is described as serious.
Police have not made an arrest in the case but are asking anyone who witnessed the incident to contact George Town police station on 949-4222.
Woman guilty over fake cash
(CNS): A 30-year-old Bodden Town woman and mother of three was found guilty of four offences relating to counterfeit cash Friday by a jury. Shannon Ebanks was convicted of possessing and using a forged CI$10 bill in the Everglo Bar in Bodden Town and possessing more than 40 partially printed CI$25 bills and equipment that could be used in counterfeiting, such as paper, a copier, metallic pens, a counterfeit detection pen and the same types of metal strips used in CIMA currency, at her home, which she shared with her boyfriend. Ebanks had denied knowing the bill she used in the bar was forged or anything about the hidden cash, which police had found hidden in a magazine on a high shelf in the bathroom she and her partner shared.
During the week long trial Ebanks' defense attorney, John Furniss, had argued that there was no forensic evidence such as DNA or prints on the fake notes found at home to link her to them and anyone of a number of people who were staying and visiting the house could have hidden the fake notes. Ebanks also took the stand and denied knowing anything about the partially printed fakenotes or that the money she claimed had been given to her in change was forged. In addition, her boyfriend, Shane Bodden, gave evidence on her behalf and admitted that the silver strips were his, having come from old notes that he said had been washed by mistake.
However, crown counsel Kenneth Ferguson argued that Ebanks did have knowledge that the money she used in the bar was fake as a result of the totality of the evidence. He pointed to the coincidence of her using forged money in a bar which she claimed had been given to her at Foster's Supermarket, and yet a few months later forged cash was also found hidden in her home, along with equipment used to make counterfeit currency.
The judge directed the jury on Friday morning that the key issue in the case was whether or not Ebanks knew the cash she used in the bar was fake, whether she had knowledge of the fake notes hidden in her home and that the paper, metal strips and pens, etc, were being used to make forged money. He said they could only find Ebanks guilty if they were sure she had that knowledge.
Following the discharge of one member of the jury as a result of illness, it took the remaining three men and three women three hours to return their guilty verdict. Ebanks was bailed to appear for sentencing in February.
Driver arrested after morning crash in Lower Valley
(CNS): One man was injured, having been trapped inside his car, and another man arrested on suspicion of dangerous driving after a collision shortly after 9:00 this morning on Discovery Drive, Lower Valley in Bodden Town. Police say that a Chevy TrailBlazer was seen travelling at high speed, heading east. When it reached the vicinity of the Discovery Drive entrance, the driver attempted to turn into the road when he lost control and collided with a Hyundai H10, which was at the entrance of Discovery Drive waiting to exit onto Shamrock Road. The impact caused the Hyundai to be pushed in the bushes and male occupant trapped inside. He was freed by fire officers using the jaws of life and transported to the Cayman Islands Hospital by ambulance.
The driver of the TrailBlazer was arrested at the scene on suspicion of dangerous driving at a speed.
Anyone who may have witnessed this collision are asked to please contact Bodden Town Police Station or any of the police stations or crime stoppers at 800TIPS (8477)
Hospital faces challenges
(CNS): Getting patients to Health City Cayman Islands will not be easy to begin with, local partner Gene Thompson admitted Thursday during an update on the development, the brainchild of world-renowned Indian heart surgeon, Dr Devi Shetty, which, it is hoped, will launch Cayman’s medical tourism product. The North American market is still a target area, Thompson said, but initially patients will be coming from the Caribbean. However, with few direct flights between Cayman and other islands in the region, getting the patients here will prove challenging. Thompson said that the team is in talks with Cayman Airways, other airlines including BlueSky and Cayman’s latest airline, Exec Jets, as well as government, but in the beginning travel will be “a huge challenge”. (Left: ICU almost complete)
However, the massive difference in the cost of the procedures would go some way to offsetting the travel costs and difficulties that patients from the Caribbean would face, Thompson maintained.
The Caribbean was identified as the first area where patients would come from, he said, because it would take the hospital around six months from its opening to gain the necessary Joint Commission International (JCI) accreditation before it can accept American patients. Thompson said that it would “be great to have” the American market, “but we don’t need it,” he added, as he pointed to the 38 million people in this region.
When Shetty first proposed his idea, his target market was the US because of the Cayman Islands proximity, its western standards and quality of life, as well as the cost of care and limited access to it in the region.
With eyes now on the Caribbean, Thompson said the hospital would not see large numbers in the first few weeks but within four to five months there would be a much higher flow of patients from around the region at the facility.
Despite being a high cost jurisdiction, the model would still work here, Thompson said, noting that they were in discussions with health insurance providers. The Health City Cayman Islands was not about running a business but about “executing a vision”, he said, pointing to Dr Shetty’s desire to change the way that healthcare is provided the world over.
Thompson said that there were many people in the Caribbean without access to healthcare in the region and the group had already identified blocks of patients that were in dire need of affordable healthcare. He pointed out that there are many people in need of health care that have no coverage at all and Dr Shetty would be providing 100 children from around the Caribbean with free heart surgery when the facility opens next year.
The grand opening date is on schedule for 25 February and the hospital is expected to welcome its first patients some ten days or so later.