The Bermuda Environmental and Sustainability Taskforce
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Ombudsman's Report. BEST response #3
The following is the third in a series of commentaries by the Bermuda Environmental Sustainability Taskforce (BEST) on the Report. It looks at the depth of the Bermuda Government’s obligations regarding SDOs and touches on Judicial Review as a way of inducing greater accountability for the Government’s decision in 2011 to issue a Special Development Order for Tucker’s Point Club (TPC).
The Ombudsman in her 2012 special Report argues that the Bermuda Government entered into a commitment when signing the Environment Charter; that signing carries obligations that have the weight of law. She also argues that a Special Development Order (SDO) has the stature of legislation but, as subordinate legislation, it is subject to Judicial Review. These arguments raise two questions, “Should BEST or any other entity consider pursuing a Judicial Review of the Tucker’s Point SDO passed by Parliament in March 2011?” Further, “Should BEST or any other entity consider Judicial Review high on the list of responses to future SDOs as a way of encouraging a greater adherence to contractual and international principles?”
We agree with the Ombudsman that the UK Environmental Charter is more than just a statement of good intentions. It was the Bermuda Government’s first step — as part of a comprehensive obligation on behalf of the people of Bermuda — to fulfill the Environmental Charter’s stated principles. The Bermuda Government agreed that as part of that obligation IT WILL undertake several commitments. One of these commitments was to “ensure that environmental impact assessments are undertaken before approving major projects”. It was, and still is, the duty of the Bermuda Government to develop strategies and action plans to enable it to fulfill its obligation to carry out the EIA process, and the other commitments it agreed to.
The Environment Charter is more than a mere bilateral commitment between Bermuda and the UK. The UK is a signatory to the UN Convention on Biological Diversity 1972 and the Rio Declaration on Environment and Development. By signing on to that 1972
Convention, the UK Government has contracted to uphold the relevant international laws and, by extension, also committed its Overseas Territories (“OT”), of which Bermuda is part, to abide by the tenets of that Convention. It therefore seems fair to conclude that, by granting the TPC SDO in principle without conducting a credible EIA, the Bermuda Government not only failed to uphold its contractual obligation but also breached international law.
There is a further dimension. Beyond our obligation at international law, the Bermuda Government ought also to follow UK common law precedents that are relevant to Bermuda. For example, UK case law would undoubtedly be relevant in determining the nature and extent of obligations assumed by Bermuda as a signatory to the UK Charter. We are convinced that an overwhelming weight of local, UK and international law requires that, for a development application that is likely to have significant adverse impact on the environment, an EIA is to be conducted PRIOR TO the grant of an SDO. This is especially true in the case with the Tucker’s Point SDO (see p. 11 of the Ombudsman Report).
So what action should be taken? Governments, like individuals, must be held accountable for their actions, especially actions taken contrary to the principles and values to be upheld by international charters to which we are signatory or to which we are committed by the UK government.
We will not speculate on the reasons the Government chose not to fulfill the requirement to do an EIA before granting the TPC SDO. We do know that senior members of the Civil Service, Government Ministers and all Members of both Houses of the Legislature were made aware of the Minister’s decision to grant an SDO and of the impact of the development on the Island. We also know that the Legislature was diaried to proceed to a decision despite being so informed. In the interest of accountability, the decision to grant approval in principle to the Tucker’s Point Club via an SDO should be made the subject of a Judicial Review. BEST is giving this step serious consideration.
Ombudsman's Report. BEST response #4
This is the fourth in a series of commentaries by the Bermuda Environmental Sustainability Taskforce (BEST) on the special report by Bermuda’s Ombudsman titled “Today’s Choices, Tomorrow’s Cost — a Systemic Investigation into the Process and Scope of Analysis for Special Development Orders (SDOs).” One recurring theme in the Report is the Bermuda Government’s obligation to uphold its commitment as a signatory to the UK Environmental Charter and its relevant international laws.
In our last commentary we noted that as the Tucker’s Point SDO (TP SDO) decision fell short of that obligation, it should be made the subject of a Judicial Review. In this commentary, we will attempt to explain in layman’s terms just what a Judicial Review is and what it would accomplish:
The laws in every democracy are a set of legal principles governing the exercise of power by public bodies, like the Government of Bermuda. If a decision is made in breach of these principles then that decision may be challenged in the Courts[i]. Briefly, a decision may be unlawful if:
· the decision maker does not have the power to make the decision, or is using the power they have for an improper purpose;
· the decision is irrational;
· the procedure followed by the decision-maker was unfair or biased.
It is also unlawful for a public body NOT to do something it has a duty to do, such as in the case of the Tucker’s Point SDO where the government had a self-imposed duty to require an Environmental Impact Assessment prior to making a decision.
Decisions made or a failure to act by a public body can be challenged. These challenges can follow one or more paths:
1. One can make an official complaint using the public body’s Complaint Procedure, if available.
2. One can complain to an Ombudsman (one usually has to go through the Complaint Procedure first).
3. One can request that the public body participate in mediation or other form of 'alternative dispute resolution'.
4. In some contexts, there is a tribunal or statutory appeal process available.
5. One can ask a judge to examine the decisions using Court proceedings called 'Judicial Review' if there is no suitable alternative remedy.
Obviously, lawful societies provide for several reasons and pathways for challenging decisions made by a public body. We are grateful to the Ombudsman for bringing these to the public’s attention. However, in the case of the Tucker’s Point SDO, the Ombudsman’s main concern was about the way Members of both houses of our Legislature were led into an unduly hasty decision of granting the TP SDO without having all the pertinent information laid before them. As a signatory of international conventions, the Government of Bermuda had an obligation to carry out due diligence in establishing processes and procedure that support the decision making process. An Environmental Impact Assessment, as an integral part of the decision making process, must be carried out prior to granting, even in-principle, major development orders like the one granted to Tucker’s Point.
According to the Ombudsman’s analysis, while the principle legislation (the Development and Planning Act [Sect. 15]) cannot be reviewed by the Courts, the Special Development Order itself is subordinate legislation and is subject to review.
Were the TP SDO put to a Judicial Review, the Court could:
· Quash the Orders — the original decision is struck down and the public body (Government) has to take the decision again (lawfully, this time);
· Prohibiting Orders — the Government is forbidden from doing something unlawful in the future;
· Issue Mandatory Orders — the Government (public body) is ordered to do something specific which it has a duty to do, such as insisting that an EIA be carried out before granting the TP SDO;
· Issue a Declaration — for example, on the way to interpret the law in future, or a declaration that a legislative provision is incompatible with the DPA (the principle legislation);
· Issue an Injunction — this is usually a temporary remedy, halting the project until the full application for judicial review is heard;
· Award Damages — assign reparative or punitive costs. This is rare, but may be available in some cases, particularly where there has been a breach of an individual’s rights.
All of these remedies are discretionary — More than one can be applied for in any particular case but the judge does not have to order any remedy at all.
By its decision to grant the TP SDO the Bermuda Government back-pedaled on its duty, as signatory on behalf of the people of Bermuda, to uphold the principles and commitments of the UK Environmental Charter. That decision could well benefit from a test in the Courts.
Our next commentary will focus on the conditions attached to the TP SDO, and whether, as they were promoted at the time, they were an adequate substitute for an EIA.
[i] “What is Judicial Review.pdf?”. www.publiclawproject.org.uk/downloads/WhatIsJR.pdf. pp. 1, 4.
"Today's Choices, Tomorrow's Costs" A Report by the Bermuda Ombudsman February 2012
In February 2012, Bermuda’s Ombudsman released a special Report titled “Today’s Choices, Tomorrow’s Costs — a Systemic Investigation into the Process and Scope of Analysis for Special Development Orders (SDOs).” Among other things, this Report informs the public and policy-makers about the Bermuda Government’s contractual obligations that attend issuance of an SDO. A series of commentaries by the Bermuda Environmental Sustainability Taskforce (BEST) on the Report have been written.
Ombudsman - Today's Choices, Tomorrow's Costs
The Ombudsman’s Report performs a valuable and much-needed service in helping the public and policy-makers to understand and appreciate the usefulness of Environmental Impact Assessments. The following is the second in a series of BEST commentaries on the Report intended to assist this understanding and appreciation, particularly as it applies to the Special Development Order (SDO) issued for Tucker’s Point Club (TPC).
The Ombudsman in her Report on Special Development Orders stated that “... it is a mistake in law not to conduct an Environmental Impact Assessment (EIA) prior to approval of development proposals that are major or likely to have significant adverse effect on the environment.” (see “Today’s Choices — Tomorrow’s Costs:” Exec Summary, pp. 9-10, 13). The Ombudsman is basing this in part on the commitment made by the Bermuda Government to the Environment Charter, which it signed onto on September 26th, 2001. In Clause 4 of the Charter, the Bermuda government commits to “Ensure that environmental impact assessments are undertaken before approving major projects. . .” [emphasis added].
An EIA is an assessment of the possible positive or negative impact — environmental, social and economic — that a proposed project may have on a community. Its purpose is to ensure that decision makers are fully informed of these impacts before deciding whether to proceed with a project.
In the Executive Summary of her Report, the Ombudsman reinforces that the purpose of an EIA is to gather information to identify risks, examine ways to mitigate them, as well as explore alternatives to development proposals. In addition to this, EIAs can bolster transparency, public consultation, disclosure and input.
A properly conducted EIA would accomplish the following:
• identify the true costs of economic activity today that could adversely affect the environment for generations to come;
• guard against approval of development that cannot realistically be carried out;
• promote transparency and public trust;
• mute suspicions that information is deliberately withheld and that the grant of SDOs benefits the interest of a few rather than Bermuda as a whole;
• ultimately secure inter-generational justice through the principles sustainable development (see Exec Summary of the Ombudsman’s Report).
During the public discussion that was taking place on the Tucker’s Point SDO Jan – Mar 2011, BEST continually raised the issue that the SDO was being granted in principle, by both houses of the legislature of Bermuda, without the benefit of an EIA process to support this decision. In doing so the legislature was forced by the government to act contrary to the agreed-upon guiding principles for the UK Government and Government of Bermuda (see pp. 5 of the Ombudsman’s Report). Once this had taken place, as the O points out in her Report, no matter how flawed the legislature’s decision was later found to have been, it would have then been awkward for the Development Applications Board (DAB) to overturn in-principle approval already granted by the legislature.
Had it insisted that an EIA be conducted before the granting of the TP SDO, the Bermuda Government would have upheld its commitment to the Environment Charter. It would have been seen as fulfilling its obligation under the Charter by beginning the additional steps to develop the process and standards in carrying out EIAs. Without the benefits of a timely EIA the legislature was deprived of information it needed to make an informed decision and, consequently, the public interests were poorly served.
Our next commentary will look at the remedies offered by the Ombudsman’s analysis of legislative SDO decisions in general and the TPC SDO in particular.
The Ombudsman Report
Today's Choices, Tomorrow's Costs - The Ombudsman Report , Friday February 10, 2012
BEST "relieved and encouraged" by the Ombudsman's Report "Today's Choices, Tomorrow's Costs" tabled in Parliament on Friday and reported on in The Royal Gazette on Saturday. "The Ombudsman has put into unmistakable language and with irrefutable logic the reason why inadequate information will most likely lead to a flawed decision." (Stuart Hayward)
Read the Report at http://www.ombudsman.bm/images/pdfs/systemicreports/BdaOmb.SDO.12.pdf