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Govt acted ‘unlawfully’ by not seeking environmental impact study

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Green campaigners have welcomed a finding from the Ombudsman that Government “acted unlawfully” by not conducting a required assessment of the environmental impact of developing Tucker’s Point resort.

Arlene Brock tabled a report in Parliament yesterday which said the study should have been done before legislators were asked to decide whether to grant a special development order (SDO) for the controversial hotel expansion on “one of Bermuda’s most environmentally sensitive pieces of land”.

The independent government watchdog said the lack of such an assessment meant there wasn’t a “robust and open information gathering process” and MPs approved the order without having all the information they needed.

Environment Minister Marc Bean hit back at the report last night, suggesting the Ombudsman may not have been entitled to launch her inquiry, describing her decision to do so as “somewhat peculiar” and questioning whether her conclusions were “without bias”.

But those who objected to the Tucker’s Point SDO said they were heartened and relieved by the review and its outcome.

Stuart Hayward, of Bermuda Environmental and Sustainability Taskforce (BEST), said: “The Ombudsman has put into unmistakable language and with irrefutable logic the reasons why inadequate information will most likely lead to a flawed decision.”

Jennifer Gray, executive director of Bermuda National Trust, said the Trust welcomed the report and its contents and commended Ms Brock for “providing Bermuda the opportunity to scrutinise the process of issuing special development orders”.

Ms Brock explained in her report that Bermuda was legally obliged to conduct an Environmental Impact Assessment (EIA) before approving any major development, since it signed up more than a decade ago to the UK Environment Charter.

She said such a study ensured “a thorough analysis of the risks posed” but legislators dealing with the Tucker’s Point SDO did not have the comprehensive information they needed to make an informed decision.

Her 88-page report, Today’s Choice: Tomorrow’s Costs, recommends a review of international obligations that bind Bermuda and EIAs for all major developments.

It describes a “collective failure of due diligence” on the part of civil servants, who didn’t review the applicable law and didn’t seek to apply international best practices.

Ms Brock added yesterday: “I am empowered, through the Ombudsman Act 2004, to investigate only the actions of the Civil Service. I cannot investigate Cabinet decisions or the decisions of the MPs or Senators who, in this case, approved the SDO.

“This report focused on the information gathering process of the civil servants. They must be empowered and resourced to provide Ministers and legislators with advice that is based on a firm foundation of fact.”

She said: “In this investigation, it was hard to say that only one or two persons were responsible for the maladministration. Therefore, I think it is sufficient to illuminate the problem and hope that everyone will apply the lessons going forward.”

The Tucker’s Point SDO was tabled in the House of Assembly a year ago, sparking outrage from environmental and historical groups, who objected to the hotel’s plan to build an additional 78 private residents and 70 hotel rooms.

Despite public protests, the order was approved by MPs in March. But when it went to the Senate, Government halted the debate after nearly four hours, ensuring a vote could not be taken.

A revised SDO, reducing the area of proposed development, was approved later the same month.

Mr Bean said in a statement last night that Government would respond fully to the Ombudsman by the required May 1 deadline.

He added: “As the Ombudsman will be aware, Government has most recently placed the matter of SDOs fully in the public domain by requiring an SDO to be approved by the Legislature, rather than allowing the responsibility to rest solely on the Minister responsible for Planning.

“Furthermore, national interest considerations, such as SDOs, are the purview of Ministers, the Cabinet and the Legislature, which is the highest policy-making body of all of Bermuda’s democratic institutions.

“It is somewhat peculiar, therefore, that an Ombudsman would seek to enter into what is essentially a political process that has a proven track record of resolving issues of national concern within a democratic framework.”

He said there were “numerous assessments” done before the submission of the Tucker’s Point SDO to Parliament and conservation officers were comfortable that the additional conditions in the order were “sufficient to protect the environment and mitigate any adverse impact”.

The Ombudsman launched her investigation into SDOs last April due to the “public outcry and unsubstantiated allegations” about the Tucker’s Point proposal.

She said she was able to do so on her “own motion” without a complaint from the public if she deemed it in the public interest.

Ms Brock said yesterday she hoped Government would carefully consider “two existential questions for Bermuda: Is our word our bond? Do we wish to be in the 21st century of good governance?”.

Mr Bean said: “As the investigation was based upon an ‘own motion’ rationale, for which there are no guidelines in Bermuda law, it is left in doubt whether the outcome is without bias.

“Around the world, own motion investigations by Ombudsmen are rare. It is important to point out that an SDO is an administrative action taken by a Minister in conjunction with the Cabinet.

“The Ombudsman Act 2004, in clause two of the schedule to the Act, precludes the investigation of an administrative action taken by the Cabinet, a Minister, or a junior Minister.

“It is rather unfortunate that the Ombudsman would use the narrow basis of an own motion investigation, that was subject to an inherent flaw, to question Government’s commitment to good governance and in honouring its commitments.”

PLP backbencher Walter Roban, who was Environment Minister when the SDO was tabled and approved, didn’t answer a question yesterday about why no EIA was conducted. “All questions should be put to the Minister and Ministry responsible,” he said.

Rosewood Hotels and Resorts took over the management of five-star Tucker’s Point in April. Last November, then managing director Brian Young said the potential expansion of the hotel was still under “very serious consideration” but “won’t happen in the next few years”.

James Masters, the executive director and chairman of Tucker’s Point, said in a statement last night that the hotel couldn’t comment on government processes for the granting of SDOs but respected the Ombudsman’s role and cooperated fully with her investigation.

“Tucker’s Point provided information requested by Government and the many interested parties during the SDO process,” he added.

“Tucker’s Point emphasised during the process that final planning approval would be subject to various studies and assessments aimed at assuring the Department of Planning and the public that environment concerns and issues would be addressed prior to the start of any development.”

Mr Hayward said BEST was “relieved and encouraged” by the Ombudsman’s conclusion that Government acted unlawfully.

“For years we have been raising the issue of the Environment Charter that our Government signed onto in 2001. Our concerns have been bypassed by the Bermuda and UK governments, though neither should have required reminders on a treaty both signed on to.”

Ms Gray added: “The Ombudsman’s confirmation that Environmental Impact Assessments are obliged to be conducted prior to approval in principle for development proposals that are ‘major’ or ‘likely’ to have an adverse effect on the environment, such as the development at Tucker’s Point, is heartening.

“We hope that going forward this will be the case for all major developments and look forward to the submission of an EIA for the Tucker’s Point SDO.”

Useful website: www.ombudsman.bm.

Government should have carried out an environmental impact study before allowing a Special Development Order at the Tucker?s Point resort.
Government should have carried out an environmental impact study before allowing a Special Development Order at the Tucker?s Point resort.
Government should have carried out an environmental impact study before allowing a Special Development Order at the Tucker?s Point resort.

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Published February 11, 2012 at 7:36 am (Updated February 11, 2012 at 7:35 am)

Govt acted ‘unlawfully’ by not seeking environmental impact study

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