(CMR) In a landmark case that saw two government agencies disputing power and roles, Justice Alistair Walters ruled in favor of the National Conservation Council. Justice Walters said the Central Planning Authority (CPA) acted unlawfully when it approved an application to rebuild a cabana and seawall at Block 5B parcel 162 on Boggy Sand Road in West Bay.
In a decision released on 23 August 2022, the Grand Court quashed this Planning approval, which was given contrary to direction from the NCC. The Court confirmed that the National Conservation Act (2013) provides the National Conservation Council (NCC) with the ability to direct government bodies in circumstances where actions could have an adverse effect on protected areas or species.
The 51-page decision confirms the NCC has the authority to direct any entity of the government – including ministries, departments, portfolios, statutory authorities, etc. – when the taking of any action by an entity would or would be likely to have an adverse effect directly or indirectly on a protected area or on the critical habitat of a protected species, where the adverse impact cannot be satisfactorily mitigated by conditions. In all other circumstances, the originating entity retains its decision-making authority.
The ruling also confirms the National Conservation Act provides the NCC with an express power of delegation, and that it is lawful for the NCC to delegate such powers to the Director of the Department of Environment (DoE), including the NCC's powers under section 41(5). These powers relate to the ability of the NCC to instruct an entity (including the CPA) to refuse any action that may give rise to an adverse effect on a protected area or the critical habitat of a protected species if the adverse effects cannot be mitigated by conditions of approval as specified by the DoE on behalf of the NCC.
Premier and Minister for Sustainability & Climate Resiliency, Hon. G. Wayne Panton, JP, MP, said the Grand Court's decision clarifies the important role the NCC plays in safeguarding protected areas and species in the Cayman Islands.
“Not only does this decision confirm the legal relationship between the National Conservation Council and the Central Planning Authority, but it also clarifies the implications for all other government entities, giving all parties greater certainty and clarity going forward. I would like to thank the Courts for their consideration of these important legal questions,” he said.
“As the ruling notes, the National Conservation Act is a bespoke piece of legislation, developed specifically to protect our invaluable, uniquely Caymanian marine and terrestrial habitats and species. A viable, functioning natural environment is foundational to a resilient economy and healthy communities,” he added.
The NCC sought the Court's consideration in 2021 after the CPA approved an application to rebuild a seawall and cabana on Boggy Sand Road in West Bay, counter to an NCC direction not to approve the project due to the potential for negative impacts on the surrounding marine protected area, namely the Seven Mile Beach Marine Reserve.
NCC Chairman McFarlane Conolly said the Council was pleased with the Court's ruling:
“This decision provides clarification on a fundamental difference of interpretation of the National Conservation Act between the NCC and CPA, which we tried many times to resolve before the NCC applied to the Court as a final recourse. The decision confirms the Council acted lawfully in its delegation of powers to the Director of the Department of Environment, and that we have acted in accordance with our legal mandate under the National Conservation Act,” he said.
Ministry of Sustainability & Climate Resiliency Chief Officer Jennifer Ahearn confirmed the decision to take the matter to the Grand Court was not taken lightly.
“We believe this ruling brings us closer to our constitutional mandate of ensuring the Cayman Islands Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is beneficial to the health and well-being of present and future generations. We look forward to the CPA and other entities continuing to work more collaboratively with the NCC in their considerations,” she said.
Department of Environment Director Gina Ebanks-Petrie said the DoE welcomed the Court's decision.
“This decision will ensure environmental concerns are factored into decision-making processes across the Cayman Islands Government, particularly where actions may or are likely to have an adverse effect on a protected area or protected species critical habitat,” she said.
An attorney who spoke to CMR, requesting anonymity, said the ruling was perverse and could be overturned in the Court of Appeal.
“It's a perverse decision which, if appealed, will be overturned by the CoA. It's the worst judgment I've ever seen. It basically gives the Director of Environment the ability to intervene into the decision-making process of any statutory authority and direct them to refuse permission to anyone, no matter how meritorious their application may be, on the sole basis that SHE believes that their application may likely have a potentially adverse effect on the environment,” the attorney stated.
“Giving that kind of authority to a single civil servant flies in the face of established universal good governance standards and is NOT in keeping with the concept of a modern democratic society. That kind of arbitrary power being enjoyed by a government employee is exactly what defines a banana republic,” he added.
A copy of the full decision can be accessed at: https://conservation.ky/jr-23aug22/