BEST may sue to force Govt ‘to do right thing’
Green campaigners have warned they may take Government to court to force it to carry out an assessment of the environmental impact of developing the Rosewood Tucker’s Point resort.Stuart Hayward, of Bermuda Environmental and Sustainability Taskforce (BEST), told The Royal Gazette the Government’s alleged failure to recognise its obligations in law meant court could be the only option.“We are approaching the point where there may be no choice but to ask the courts once again to assist the Government to do the right thing,” he said.Mr Hayward spoke out following the Ombudsman’s latest assessment of the legal requirements Government accepted when it signed up more than a decade ago to the UK Environment Charter.Arlene Brock concluded in last year’s ‘Today’s Choices: Tomorrow’s Costs’ report that Government should have conducted an Environmental Impact Assessment (EIA) before legislators were asked whether to grant a special development order (SDO) to Tucker’s Point for a controversial hotel expansion on “one of Bermuda’s most environmentally sensitive pieces of land”.And her recently released ‘Diligent Development’ special report contained further evidence to back up her belief that Government was legally obliged to carry out an EIA, despite its claims to the contrary.“We at BEST are pleased that the Ombudsman has given her attention to special development orders and the Tucker’s Point SDO in particular,” Mr Hayward said.“We were aware back in 2011, when Tucker’s Point acquired a special development order from the Government, that there were some serious issues about the process that needed attention.“In the same way that the Tax Information Exchange Agreements (TIEAs) being signed by Bermuda in country after country commits the signatory Governments to sharing tax-related information ... the Environment Charter that the Government signed in 2001 expresses a commitment on behalf of the people of Bermuda to the tenets of that charter.“The Ombudsman’s [latest] important report reaffirms the very thing we were saying then and that the Government cannot renege upon now: the Tucker’s Point applications for subdivision and development cannot go forward without an Environmental Impact Assessment.”‘Diligent Development’, released in May, cites the only judicial decision to date about the legal effect of the charter, involving a dolphin attraction and shopping complex in Anguilla.The Eastern Caribbean Supreme Court found in that case that the charter established a policy, and therefore created a legitimate expectation that the public would be consulted on its construction.Ms Brock writes in her 2012 annual report: “The truth counts. My independent investigation confirmed that the current SDO process is inadequate: an EIA, coupled with a proper process for public consultation, was required to lift the conservation protection and to approve the SDO.”She adds: “The mandatory language and structure of the Charter is clear: it creates legally binding commitments.”Mr Hayward said yesterday: “We have tried to encourage the developer, the regulators in the Department of Planning, the Environment Minister and the Legislature to have them do the right thing.“At each stage from the first time we heard about the Government’s intention to have the Tucker’s Point SDO debated in Parliament, to the debates of the first SDO and then the modified SDO, to the latest applications by Tucker’s Point for a series of subdivisions, we have pushed for a comprehensive EIA to be conducted.“We have attempted with our latest submission to the Development Applications Board to impress upon them the need for an EIA to be done even at this stage.“The Ombudsman’s report lays out clearly and unmistakably that the Government has an obligation, supported by legal precedent, to conduct a comprehensive Environmental Impact Assessment. There can be no shortcut.”The Environment Ministry has not responded to ‘Diligent Development’ and did not reply to a question from this newspaper about whether it intended to.Ms Brock said: “There is no statutory requirement to respond because I did not make recommendations, It was an update. [But] it would be helpful for them to respond.“If the Government has got legal reasoning why the Eastern Caribbean Court is incorrect, then they should say so.”No one from Rosewood Tucker’s Point could be reached for comment yesterday.Useful websites: www.ombudsman.bm and www.best.org.bm.
Ombudsman Arlene Brock’s reports on the controversial special development order granted for Tucker’s Point and the legally binding nature of environment charters have been shared with a British parliamentary select committee.The UK Overseas Territories Conservation Forum (UKOTCF) submitted extracts from her most recent special report on the topic ‘Diligent Development — Getting it Right’ as evidence to the Environmental Audit select committee of the House of Commons, along with extracts from last year’s ‘Today’s Choices: Tomorrow’s Costs’.Both reports found that Government had a duty in law to carry out an assessment of the environmental impact of a hotel expansion at the Rosewood Tucker’s Point resort on environmentally sensitive land, because it signed up to the UK Environment Charter in 2001.The forum described the reports as “reasoned and clear” and said Ms Brock’s conclusion about the legally binding nature of environment charters could apply to other British Overseas Territories.“UKOTCF notes that the procedure of agreement and relevant wording of environment charters signed with other UKOTs is similar to that between Bermuda and the UK, and there is no reason why those charters are any less binding than Bermuda’s.”According to its website, the UKOTCF “promotes the coordinated conservation of the diverse and increasingly threatened plant and animal species and natural habitats of the UK Territories Overseas.“It aims to do this by providing assistance in the form of expertise, information and liaison between non-governmental organisations and governments, both in the UK and in the Territories themselves.”The forum gave its written and oral evidence to the Environmental Audit committee as part of an inquiry into sustainability in the Territories.
