FRIDAY, FEB. 10, 12:10PM: The Ombudsman for Bermuda, Arlene Brock, has found that Government acted unlawfully by failing to require an Environmental Impact Assessment [EIA] prior to sending the draft Tuckers Point Special Development Order (“SDO”) to the Legislature.
Ms Brock delivered her 88 page report – Today’s Choices - Tomorrow’s Costs – to the House of Assembly today. In it she set out the findings of her systemic investigation of civil servants’ fact-gathering and analysis in the lead up to the Parliamentary approval of the SDO in (March 2011).
“In September 2001 Bermuda signed on to the UK Environment Charter. By so doing the Government committed to carrying out an EIA prior to approving any major development,” Ms Brock said. “The UK is responsible for Bermuda’s international affairs, and this Charter extends to Bermuda the UK’s international environmental obligations under the UN Convention on Biological Diversity 1972 and Rio Declaration on Environment and Development 1992.”
“EIAs ensure there is broad public disclosure and consultation prior to approving such developments. They produce a thorough analysis of the risks posed as well as methods of mitigating such risks,” she said. Ms Brock noted that there are Privy Council decisions binding on Bermuda that also lay out the requirements of EIAs.
“EIAs are vital procedural tools and Bermuda is required to carry them out for good reason. EIAs are internationally considered best practice for development proposals that are likely to have significant adverse impacts on the environment.”
“Beyond our legal obligations,” Ms Brock said, “Government did not pay heed to the fact that proper administration demanded a robust and open information gathering process. Ministers and legislators needed a full analysis of all the likely ramifications of developing such an environmentally important area of the Island. Further, the public controversy surrounding the Tucker’s Point SDOs alerted me to the dearth of good data and process in the lead up to the approving the SDO.”
“In the case of the latest Tucker’s Point SDO, there was a collective failure of due diligence on the part of civil servants. This was not a question of whether or not tourism development should be encouraged. Rather, this was a case of whether development should be carried out on one of Bermuda’s most environmentally sensitive pieces of land. In such a case, decision makers must have comprehensive information and the best advice from their advisors – the civil service.”
Ms Brock said. “After carrying out a comprehensive investigation I concluded that senior civil servants failed to review the applicable law and did not seek to apply international best practices.” The report does not find fault with individual civil servants, emphasizing that this was a collective failure.
“Some people may be disappointed that I have not taken the usual Ombudsman approach of naming, blaming and shaming specific individuals. 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.”
Ms. Brock said: “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.”
The Ombudsman applauds the 2011 amendment to the Development and Planning Act 1974 that requires SDOs to be approved by the Legislature instead of a Minister. “This is an important improvement with respect to who makes the decision to grant SDOs,” she said. “However it is critical for us to understand that a less than optimal fact-gathering and evaluation process cannot be cured by an improved decision making procedure (the amendment to the DPA).”
“In reviewing the data that would have come to light in an EIA for the Tucker’s Point application, I was astounded to see how much time seems to have stood still. Almost exactly the same arguments for each issue and on all sides of the issues were raised in 1995 and 2001 that we heard in 2011.” Ms. Brock noted “The more things change, the more they seemed to stay the same.”
“Government officials have claimed that the conditions attached to the 2011 SDO were stringent enough to ensure a balance between development and protecting the Tucker’s Point site” Ms Brock said. “However, over the course of our investigation, several of the experts who I consulted questioned the adequacy of these conditions.”
“The reserved matters in the Tucker’s Point SDO – to be determined by the Development Applications Board [DAB] – provide no comfort that the full risks of the proposed development will be analyzed.” Ms Brock pointed out “The reserved matters deal with the kind of development that is allowed (design, engineering, landscaping, height, etc.). Information gathered at the reserved matters stage may be too late to inform the preliminary determination about whether development should take place at all. Should such information indicate that a proposal should not be approved, it would be awkward for the DAB to overturn ‘in principle’ approval already granted by the Legislature.”
Ms Brock noted that the 2011 debate over the merits of the SDO had been infused with fears that Bermuda would appear unfriendly to foreign investors and drive them to competing jurisdictions, especially in the Caribbean. “During our investigation we interviewed officials from the UN, the Organization of American States, CARICOM and several Caribbean governments. It was interesting to discover that there is a groundswell across the Caribbean for protection of the environment. Caribbean officials are extremely well aware of the value of conducting EIAs – for the benefit of investors, governments and the public.”
“As an UK Overseas Territory, Bermuda is not well integrated into the international vernacular and standards. We are in danger of lagging behind.” Ms. Brock added: “We also discovered that as an Associate Member of CARICOM, Bermuda has agreed to promote Sustainable Tourism in addition to conservation of forest and marine environments,” she said.
“Bermuda does have a Sustainable Development Strategy and Implementation Plan and a related department of Government,” she said. “However, the reach of the Strategy and Department has not yet permeated policy and operational decisions throughout the Government.” “The fact that ‘it costs money to be green’ should not deter our standards or creative thinking about how to develop the tourism product.”
The Ombudsman Act 2004 authorizes the Ombudsman to carry out an investigation on her motion (notwithstanding that no complaint has been made from the public) when she is satisfied it is in the public interest to investigate. “Public outcry and unsubstantiated allegations at the time of the 2011 SDO Parliamentary debates made it clear that we did not learn much from previous controversies over the Southlands and the Botanical Garden Hospital proposals. The evidence pointed to an absence of a process for sound and respectful discussion of the issues.”
“By fulfilling our obligation to require an EIA before a major development, Bermuda is not saying ‘No’ to development. Rather we are ensuring that decision makers and the Bermuda public are fully informed before approval is granted,” Ms Brock said.
Ms. Brock extended the statutory period for the Government to notify her of its response to the recommendations to May 1st, 2012. “I will not make further public comments until after receiving the response. I am hopeful that two existential questions for Bermuda arising out of the report will be carefully considered: Is our word our bond? Do we wish to be in the 21st Century of good governance?”