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.