WEDNESDAY, MAY 2: I have invited you here today to advise you, and through you, the public of Bermuda, that yesterday the Government of Bermuda submitted its formal response to the Ombudsman of Bermuda’s Own Motion Systemic Investigation into the Process and Scope of Analysis for Special Development Orders.
In our initial reaction to the February report, we claimed that she was acting with bias. Three days later, the Ombudsman was quoted as saying ‘“When governments are upset, that does generally mean the Ombudsman is doing their job properly.”
The role of the Ombudsman is not to be adversarial towards the Government, neither is it to be in comity with the Government. Its role is to be neither friend nor foe, with the modern term for this being “non-partiality”. To state that when Government is upset, is an indication of the Ombudsman’s effectiveness, reveals a clear bias, and a departure from the principle of non-partiality.
Also, in our initial response in February, we questioned the Ombudsman’s ability to conduct an “own motion” investigation. When one reads the Ombudsman Act 2004, it is clear that the “own motion” is one of the two mechanisms by which the Ombudsman may initiate an investigation. I would like to take this opportunity to issue a public apology to Madam Ombudsman and her Office, as it is clear that conducting an “own motion” investigationis her right.
I should note from the outset that after taking legal advice, it is our considered view that the Ombudsman erred in law by investigating an action of a Minister. Paragraph 2 of the Schedule to the Ombudsman Act 2004, Actions Not Subject to Investigation, clearly includes “Any administrative action taken by the Cabinet or by a Minister or a Junior Minister.” The grant of a Special Development Order is enabled by powers vested in the Minister under section 15 of the Development and Planning Act 1974. Clearly the grant of such orders is outside of the Ombudsman’s purview. The Ombudsman has stated that she was investigating the actions of the civil service, and not the actions of the Minister. In this regard, we disagree.
The Ombudsman has suggested that she was investigating the processes leading up to the grant of SDOs. However, it is clear from her report and from her findings that she actually investigated the grant of a SDO to the Tucker’s Point Club. Again, this was outside of the scope of activities subject to her review.
We also hold the position that the Ombudsman erred in law by finding maladministration in “The collective failure of due diligence to determine applicable law, international standards and best practice relevant to a decision of national priority…” The Ombudsman has based her finding on a misguided belief that the UK Environment Charter constitutes law. Again, we have taken advice from both the Attorney General’s office and the FCO via Government House, and conclude that the UK Environment Charter does not constitute law. It is unenforceable. Rather, the UK itself considers the Charter to be “aspirational”. If one reads the entire Charter, and not only pages 5 and 6 on which the Ombudsman relies, one will see that the Charter states that it is “for each territory to establish/develop the most suitable framework to develop action plans that link the shared principles of the OTs Environmental Charter to the needs of each territory.”
It is therefore important to set the record straight. The Government did not act unlawfully, as reported by the Ombudsman, and as a consequence reported by the media, and as championed by the Opposition.
Given that the Ombudsman was wrong to undertake the investigation of a Ministerial decision, and given that she was wrong in her finding of maladministration, the Government therefore is not obliged to respond in accordance with section 15 of the Ombudsman Act 2004 as indicated by the Ombudsman in her Report.
However, as a responsible Government, we believe it is in the public interest to respond to the recommendations posed by the Ombudsman in her report. Therefore, the response we submitted yesterday to the Ombudsman, within the timeframe requested in the report, is a voluntary response of the Government of Bermuda to the Ombudsman’s Special Report presented to the Speaker of the House of Assembly on 10th February 2012. We believe that it is in the public interest for all in Bermuda to be aware of the important environmental work which has already been done; is ongoing; and is planned to be done by the Department of Planning, Department of Conservation Services, Department of Sustainable Development and others in Bermuda, as set out in our Response.
It seems apparent that the Ombudsman was unaware of these many advances and as a consequence, the Report has given a false impression which needs to be corrected.
I would like to take this opportunity to provide you with some of the highlights of our response.
We have advised the Ombudsman that Bermuda regularly undertakes Reviews of relevant international obligations that bind us. Currently, annual reports are submitted to the Convention of Migratory Species. In addition, Bermuda has listed 7 sites under the Ramsar Convention on Wetlands, sites that are maintained by the Department of Conservation Services, with 3 potential sites now under consideration – Walsingham; Castle, Nonsuch and Cooper’s Islands; and Mangrove or Trott’s Pond.
Further, the Government works closely with the UK Department of Environment, Food and Rural Affairs (UK DEFRA) regarding our commitments to environmental agreements. Various departments participate in international and regional conferences, such as the Department of Environmental Protection in the International Convention for the Conservation of Atlantic Tuna ( ICCAT) and the Convention on Bio-Diversity (CBD), as needed and as of benefit to Bermuda.
A legislation gap analysis review was undertaken in 2003. As a result we have determined that with the passing of the Waste and Litter Act, the National Parks Amendment Act and The Protected Species Act, Bermuda is now eligible to apply to have the Convention on Biodiversity extended to us. The Department of Conservation Services (DCS) is investigating the advantages of such an extension.
Bermuda regularly makes application for funding through the Overseas Territories Environmental Programme. We are also aware of, and where appropriate would apply for, funding through the UK Government’s Darwin Initiative, Challenge Fund, Flagship Species Fund, and the Biodiversity and Ecosystem Services in Territories (BEST) scheme.
With regard to Environmental Impact Assessments (EIA), I am pleased to advice that the Department of Planning’s Guidance Note 106 already refers to the relevant extracts of the Rio Declaration on Environment and Development and the UK Environment Charter and therefore does not require amendment as recommended by the Ombudsman.
The Ombudsman made recommendations regarding public consultation on EIAs. Public consultation is an established process for us and the process includes the identification of the particular and general stakeholders of interest depending on the project. This is enshrined in the Department of Planning’s Guidance Note 106.
We agree with the Ombudsman that there is merit to assessing the financial feasibility of a project prior to the grant of an SDO. Such assessment should consider other proposed similar projects. However, we do not agree that this needs to be a part of an Environmental Impact Assessment. We also agree that there is merit to assessing a developer’s track record, prior compliance and third party compliance. However, again, this perhaps need not be a part of an Environmental Impact Assessment.
The Ombudsman made recommendations regarding the benefits to be had from a “joined-up” Civil Service. This is already in place.
She also recommended that the Government ensures that lands donated for conservation purposes cannot be re-zoned for development. Any land donated to the Government for conservation or amenity is added to the National Parks System and protected under the National Parks Act. The Bermuda Plan and therefore zoning must comply with this Act. In order to develop an area within the National Park System, it must be removed from the Parks Act through Affirmative Resolution and rezoned.
Finally, although not a specific recommendation, I should note that Government will soon consider a revised protocol and procedures for the grant of Special Development Orders. This revised protocol and procedures will set down formally the manner in which we believe such Orders will be considered by a Minister. It will not fetter the Minister’s discretion, but it will ensure that he has all the necessary information before him to ensure that he can make a well informed decision.
Clearly, although I have only discussed a sample of the Ombudsman’s recommendations, the Government takes its responsibilities for our environment seriously, and has already put in place mechanisms to address most if not all of the Ombudsman recommendations. While we might disagree on the legality of her investigation and of her findings, we do not disagree with the essence of her recommendations. On the issue of the protection of our environment, we are of one accord.