Report of the Caymanian Bar Association Subcommittee on the National Conservation Bill, 2013 (the “Bill“)

Executive Summary

The Cayman Islands have a history of enacting environmental protection legislation to various degrees and are already subscribed to a number of environmental treaties, conventions and agreements with and through the United Kingdom. However, with the passage of the 2009 Constitution (the “2009 Constitution“), the Government of the Cayman Islands is now required to have due regard to the need to foster and protect the environment in all decisions, and is directly answerable for any breach of that obligation to the people of the Cayman Islands.

The Bill reflects the Government’s attempt to provide a modern environmental law which: (i) fulfils its constitutional obligations to the people of the Cayman Islands; (ii) promulgates existing international agreements and obligations into local law; and (iii) enhances the protection and conservation of various endangered, threatened and endemic plants, habitats and wildlife in the Cayman Islands.

The Bill would establish a National Conservation Council (the “Council“) responsible for setting national policies for the conservation and sustainable use of natural resources, establishing and maintaining protected areas, conserving and restoring populations and critical habitat of protected species and promoting public awareness and education on the Bill and its conservation efforts. However, the Council would not be autonomous and, like other Government advisory bodies, would be subject to oversight by the responsible Ministry.

Almost half of the Council will be comprised of Government officials and the majority of the persons comprising the Council would not be required to have specific scientific or technical expertise. Given that the Bill obliges every Government entity to ensure its specific decisions are consistent with and does not jeopardise the protection and conservation of protected areas, protected species or their critical habitats, Government officials would likely be drawn from a wide cross-section of Government Ministries, departments, agencies and authorities. With such a wide pool to draw from, an opportunity is presented for a Council with a balanced composition that could provide an authoritative sounding board for environmental queries from Government entities which might otherwise have required expensive consultancy services and/or judicial direction.

The Bill also allows for the utilisation of an Environmental Protection Fund (the “Fund“) for the purposes set out in the Bill, which include the acquisition of land for the purposes of conservation. While the purpose for doing so would be new, the mechanism for such acquisition is already in place and in operation through existing legislation. The Council will not have absolute power over individual land owners, whose rights to peaceful enjoyment of their property under section 15 of the 2009 Constitution, subject to law and prescribed purposes, will remain undisturbed.  Nevertheless, the use of monies from the Fund would be subject to careful oversight and approval by Cabinet.

While not mandatory under the Bill, the use of environmental impact assessments (“EIAs“), which have become increasingly common with large scale developments within the Islands, are expected to become more prevalent. It is likely, however, that the extent of the use of EIAs will vary according to the size of the proposed development and the area to be developed. Whether the Bill will stifle or foster responsible development in the Cayman Islands will be dictated by the real estate and property development markets, which will change as always to meet legislative or natural change regardless, however, it is noted that regulation can solve problems that markets ignore. As such, speculation as to what impact the Bill may have until it has been enacted into legislation will remain just that.

It is outside of the scope of this forum to comment on the species of flora and fauna which would become protected under the Bill. What is clear is that the Bill would grant protection to a number of species, many of which may not be known to the general public. However, certain notoriously invasive species, such as the Lionfish and Green Iguana are not expressly mentioned within the list of species that can be either hunted or collected. Given, for example, the uncertainty surrounding the status of the green iguana in the past, the Government may wish to consider specifically identifying these species, ensuring that existing growth management programs remain on statutory footing. For the uninitiated, a companion guide to assist the public with the easy identification of those protected species under Part 1, as well as those species under Part II, would greatly assist with the prevention of unintended hunting and/or collecting.

It is impossible not to mention the considerable attention the Bill has received, since its inception so many years ago and recently. However, like any other proposed legislation, any legal analysis of the Bill will be both limited and theoretical until such time as it has been passed and fully implemented. No legislation is perfect and the legislative process of refinement and revision apply equally in the case of the Bill. Should similar attention be given to the monitoring and consultative process provided under the Bill, that legislative process would be enriched in a way seldom enjoyed by other legislation.

A full copy of the Subcommittee’s Report will be made available on the CBA’s website, www.caymanbar.org.ky

About the Caymanian Bar Association

The Caymanian Bar Association was established in 1988 after senior Caymanian attorneys perceived the need for an organisation to address issues of particular relevance to Caymanian attorneys and effectively to represent the views of Caymanian attorneys who were, and are, a minority in the profession in the Cayman Islands.  To that end, all Caymanians (as defined in the Immigration Law (2013 Revision)), who are admitted to practise as an attorney in the Cayman Islands and possess a current practising certificate, are eligible to be members of the CBA.  Most Caymanian attorneys that are eligible have joined the CBA, and today it represents the interests of more than 140 Caymanian attorneys.