Environmental Audit CommitteeFurther written evidence submitted by the UK Overseas Territories Conservation Forum
Introduction
This document supplements the original written submission from the UK Overseas Territories Conservation Forum (UKOTCF) in November 2012 and the oral evidence given to the Committee on 17th April 2013. It arises from points in the oral evidence where UKOTCF offered to provide supplementary evidence and other points where relevant information has become available. These points are addressed in the sequence that they arose in the session on 17th April.
To minimise confusion in cross-referencing, we label the sections by letters following on from those used in our original written evidence. The sections in this supplement address:
I.
J.
K.
L.
M.
N.
O.
P.
If the Committee requires further clarification, then we would of course be happy to assist with such.
I. Environment Charters
I1. The reasoned and clear reports by the Ombudsman for Bermuda on the legally binding nature of Environment Charters have featured in our written and oral evidence. The Ombudsman for Bermuda issued a further report on this topic to the Bermuda Parliament on 17th May. The full report (Diligent Development—Getting it Right) is available at http://www.ombudsman.bm/systemic_reports.html. It is subtitled: Update on Legal Status of UK Environment Charter. Some key extracts from these reports are:
Last year, when I tabled Today”s Choices—Tomorrow”s Costs (“TC-TC”) regarding the Special Development Order process, I made a finding that the Civil Service had erred at law by not recognizing that Bermuda”s signature on the 2001 UK Environment Charter is a legal commitment.
In a press release dated 2 May 2012, the then Minister challenged the legality of my investigation of the procedure leading up to and informing decisions to grant SDOs. He also called into question my conclusion that the Charter sets out legal obligations: “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”.”
In June, I responded with a brief Special Report (“5.16 Report”) that demonstrated that the Privy Council agreed with the distinction I made between a decision and the procedure leading up to it. Therefore, as Ombudsman I was within the law to investigate the SDO procedure.
My S.16 Report also clarified and provided additional evidence that the Charter is a legal agreement. This included:
a decision of the International Court of Justice about what constitutes a legal agreement between two governments;
the rationale for the Charter set out in the 1999 White Paper;
contemporaneous statements of both the UK and Bermudian Governments regarding their intentions that the Charter commitments are to be implemented; and
subsequent evidence to the Environmental Audit Committee of the UK House of Commons by the Foreign and Commonwealth Office (FCO) affirming the commitments of the Charter.
Since then, I have received additional information, including the only judicial decision to date about the legal effect of the Charter. Accordingly, it is important and appropriate that the Legislature and public be informed about this. This report pulls together in one document the evidence already presented in TC-TC and the S.16 Report, along with an overview of the legal landscape.
Bermuda”s approach to development of its scarce land resources is at a turning point. For the sake of our children and grandchildren, it is time that Bermuda puts its words into action. The correct legal approach is clear and now is the time to act. With every decision made with blindfolds on, we fall further behind and do a disservice to our island and our future generations. We can do what is right today, or we can wait years for our courts, after costly litigation, to force us to do the right thing. The choice is ours. The choice is now.
Is Bermuda legally obliged to conduct Environmental Impact Assessments (“EIA”)—with a robust public consultation component—prior to approving developments that are major or likely to have significant adverse environmental effects?
Yes. By signing the UK Environment Charter in 2001 Bermuda legally bound itself to conduct EIAs before approving major projects. Bermuda”s obligations are further confirmed and reinforced by:
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From a practical perspective, Bermuda is obliged to conduct an EIA prior to approval in principle for development proposals that are either “major” or “likely to have significant adverse effect on the environment”.
I undertook, on the public”s behalf, a comprehensive investigation of the scope and quality of information analyzed and recommendations made by civil servants for the Tucker”s Point SDO [Special Development Order].
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. One purpose of an EIA is to identify risks, ways to mitigate risks, and alternatives to development proposals (such as site or design). Another purpose of an EIA is to ensure transparent public consultation, disclosure and input. The government is bound to follow the nearly universal EIA process as a result of the following:
commitments made when it signed the UK Environment Charter;
common law doctrine of legitimate expectation; and
international best practices.
The mandatory language and structure of the Charter is clear: it creates legally binding commitments. According to one of the drafters, the words were chosen carefully to designate the future obligations we were undertaking at the time. The Charter commitments are explicit and detailed. We, like other countries subject to identical Charters, must stick to our word. Having signed the Charter, Bermuda has an undisputed obligation to conduct EIAs prior to approving major developments or those likely to have significant adverse environmental effects. Implementation of the commitment to ensure EIAs does not require domestic legislation or government expenditure.
In 1992, the UK signed the Convention on Biological Diversity (“CBD”), an international legally binding treaty, which sets out responsibilities to conserve biological diversity and to ensure sustainable use of species and habitats. In ratifying the CBD, the UK assumed legal (as well as a moral) responsibility for its Overseas Territories (“OT”) with respect to biological diversity. For Bermuda, the responsibilities under the CBD remain with the UK.
The primary method by which the UK fulfils its own responsibilities under the CBD with respect to OTs is by way of the Environmental Charters.
The UK cannot unilaterally extend its multilateral environmental responsibilities to the OTs. The 1999 White Paper signalled that—as priority actions—the UK must (and the OTs were encouraged to) undertake certain responsibilities. Section 8.15 of that White Paper stated:
These responsibilities already exist, but the UK and its Overseas Territories have not always addressed these issues sufficiently consistently or systematically. Examples include damage to coral reefs and the effects of introduced species on native species and habitats. We intend bringing together the responsibilities, common objectives and cooperative approaches of the UK Government, Overseas Territory governments, the private sector, NGOs and local communities by drafting and agreeing an Environment Charter with the Overseas Territories. The Charter will clarify the roles and responsibilities of these stakeholders, set out in a shared vision which also takes account of the wide variety of circumstances and local resources in each territory. The exact form of the Charter and variations between territories will be determined in consultation with them.
In 2007, the FCO reaffirmed the commitments of the Charter in evidence before the Environmental Audit Committee of the UK House of Commons. The FCO asserted that the Charter is the basis to work with Overseas Territories” governments on implementation. The responsibility for doing so is a cross-UK government responsibility of the FCO, Department for Environment, Food & Rural Affairs (DEFRA) and Department for International Development.
As recently as January 2012, in a policy document, “The Environment in the United Kingdom”s Overseas Territories: UK Government and Civil Society Support”, DEFRA defined the Charter as a “formal individual agreement, listing commitments to develop and implement sound environmental management practices in the OTs”.
Based on the common law doctrine of legitimate expectations, the Government of Bermuda can be legally held by the courts to perform actions that it promised to do.
Legitimate expectations arise when the government makes it known that it will follow a specific course of action, including conduct set out in treaties. Government can depart from the expected course of action only where it has given proper notice and has given those affected an opportunity to be heard.
Once a legitimate expectation has been established, which is the case here, the onus shifts to the government to identify an overriding public interest to justify going back on its commitment. The onus therefore is on government, to follow what is literally, and legally, a legitimate expectation.
EIAS must be comprehensive, involve full disclosure, be done at the earliest possible time (but can be required at a later stage), involve proper public consultation, and provide adequate time. The source of the obligation to require an EIA can be legitimate expectations resulting from statements of government officials in recognition of the need to account for residents” concerns and wishes.
A recent case from the Eastern Caribbean Supreme Court is directly on point with the issues facing Bermuda: Webster et al v. Attorney General (Anguilla) and Dolphin Discovery. In that case, the Court reviewed the adequacy of EIAs and public consultation based on commitments under the UK Environment Charter for the construction of a Dolphinarium and shopping complex. The Court found that the Charter (singly or taken together with the government”s environmental strategy and action plan) established a policy and therefore created a legitimate expectation that the public would be consulted.
To some degree, Bermuda has acknowledged (but as discretionary only) its obligations arising from the UK Environmental Charter. Our Department of Planning issued Guidance Note 106 which explains the importance of EIAs and when they are required. GN 106 recites the Rio Declaration requirement for EIAs and sets out a comprehensive list of the purposes of EIAs. These purposes include:
to incorporate environmental information in development decision-making;
to examine alternative and superior options;
to identify positive and negative environmental impacts;
to recommend mitigation measures; and
to allow for full and early consultation with stakeholders.
The current SDO process fails to meet these purposes. In addition, it does not recognize our current legal obligations or modern planning standards, nor does it provide for adequate public consultation.
With no EIA, decisions are being made in the dark—Ministers and the Legislature do not have reliable and independent information and the public is not given the opportunity to be heard. Not only is there a lack of full environmental understanding, but there is also a lack of financial understanding and the true effect that the development proposals will have on our island. A combination of SDO conditions based on an ill-informed process and a hazy mishmash of studies are nowhere near the equivalent of a proper EIA. To suggest otherwise not only does a disservice to the people of Bermuda but also raises red flags as to the reasons why a universally accepted process is not being used in Bermuda for the development of our scarce land resources.
By having an EIA process, our government would be in the position to mute suspicions that information is deliberately being withheld and that the grant of SDOs benefits the interests of a few rather than Bermuda as a whole. It would also ultimately secure inter-generational justice through the principles and practices of sustainable development.
To continue forward without the legally necessary due process of a proper EIA, without considering the impact, is like walking ahead blind without guidance—the legal equivalent of walking into barbed wire in the dark. Except here, the damage, once built: cannot be undone—we just cannot put the lava back in without being burned.
In the Throne Speech of 8 February 2013, the Government stated: The Government will build upon an earlier legislative amendment that ensured that Special Development Orders would be subject to Parliamentary scrutiny by implementing a protocol that is clearly articulated, tronsparent and fair. This protocol will guide the request for, consideration of and grant of SDOs.
No environmental expert consulted has been able to suggest what possible protocol Bermuda could create that would be better than an EIA. Most countries of the world, with the exception of a few countries such as Syria and Iran, require EIA for major developments. Does Bermuda really want to be in the company of these countries? Do we want to strike out on our own, defy the judgments of the highest courts, and ignore global best practices?
It is time for Bermuda to be realistic, join the 21st Century, and keep our promises. EIAs must be done prior to approval of major developments and all development proposals that may cause significant adverse impact on our fragile environment. The absence of EIAs is like producing a cookbook devoid of recipes.
In Save Guano Cay, the Privy Council adopted the statement of the President of the Court of Appeal: “The ecology of the Bahamas is said to be “fragile” and possible deaths of those [coral] reefs due to “global warming” coupled with environmental degradation may result from indiscriminate development of the islands, it is quite understandable that thinking persons would be concerned to protect, as far as humanly possible, their environment, not only for themselves, but also for their descendants who may have to inhabit these islands in the future.” All persons in Bermuda who have a stake in the well-being of the island that we leave for our children and grandchildren must be similarly concerned.
In conclusion, as Ombudsman, I am obliged to follow my own governing statute, the Ombudsman Act 2004. Section 2(1) of that Act obliges me to point out government “maladministration”, which is defined to include “inefficient, bad or improper administration and ... includes ... administrative action that was ... contrary to law ... based wholly or partly on a mistake of law or fact or irrelevant grounds ... related to the application of arbitrary or unreasonable procedures.” I would be derelict in my duty if I did not point out that our word must be our bond—not just because it is the law but also because it is the right thing to do—for now and for tomorrow.”
I2. UKOTCF notes that the procedure of agreement and relevant wording of Environment Charters signed with other UKOTs is similar to that between Bermuda and UK, and there is no reason why those Charters are any less binding than Bermuda”s.
J. Reluctance of some Parties to give Evidence to EAC
J1. During the oral session, RSPB mentioned that they know of at least one overseas territory NGO that wrote evidence for this Committee but then decided it would be wiser not to submit it as it was too fearful of local repercussions. UKOTCF can add that it knows of bodies from at least four UKOTs that similarly decided that they would not risk giving evidence, because of potential reprisals. It is difficult to appreciate in Britain how, in these small communities, there is little de facto freedom of speech.
J2. In this context, we must commend Dr Nikki Chapman and Mr Bryan Naqqi Manco for their courage in giving evidence and their organisations for allowing this. Subsequent to the giving of this evidence in March 2013, Mr Manco has been attacked in an anonymous article in the online newspaper TCI News Now (http://www.tcinewsnow.com/headline-Environmentalist-takes-on-local-authorities-6004.html), subsequently quoted widely. The article mixes partial reporting of the Committee”s proceedings with personal information about Mr Manco. Much of this information was not previously in the public domain (and has presumably been unlawfully released by someone with access to personnel files of a previous employment), and even more of it is erroneous. We understand that Mr Manco has written to correct some of the material but TCI News Now has not published a correction or apology for publishing erroneous personal information. It seems that some other local publications are also launching personal attacks, as has at least one contractor for TCI Government (see paras K27–28).
J3. This sort of unaccountable personal attack inhibits individuals from giving evidence on future occasions and their organisations from allowing them to. In this case, the Turks & Caicos Islands Department of Environment and Maritime Affairs and its overseeing Ministry of Environment and Home Affairs commendably authorised Mr Manco to give fair and balanced evidence including both successes and remaining challenges concerning environmentally related matters in TCI. It is unlikely that, with this experience, if the Committee were seeking witnesses now, any UKOT organisations or individuals would feel safe enough to give evidence.
J4. This situation recalls the experience of the House of Commons Foreign Affairs Committee in its 2007–08 inquiry on Overseas Territories. Its recommendations included:
13. We are concerned that witnesses from Overseas Territories cannot at present be guaranteed protection against legal action or even intimidation or other abuse arising as a consequence of their giving evidence to select committee inquiries in the UK. We recommend that the Government should introduce legislation to extend the Witnesses (Public Inquiries) Protection Act 1892 to Overseas Territories, or as an alternative, that it should urgently require Overseas Territories to introduce equivalent legislation as a matter of good governance.
J5. Recommendation 17, relating specifically to the Turks and Caicos Islands, included:
In such an environment, people will be afraid to publicly come forward with evidence. We conclude that the UK Government must find a way to assure people that a formal process with safeguards is underway and therefore recommend that it announces a Commission of Inquiry, with full protection for witnesses.
J6. This recommendation led to a Commission of Inquiry and eventually a three-year period of direct UK rule of TCI, from 2009 to 2012. It seems that the opportunity to change the culture of fear in deploying free speech has effectively been missed despite that three-year period of British direct rule.
K. Problems in HMG Governance in Respect of UK Overseas Territories
K1. As we noted in written and oral evidence, the problems in conservation legislation and enforcement seem also to be a problem in some cases when HMG is in direct control of a territory or certain aspects. This was evident also in the session with officials from UKOTs. We undertook to update our written evidence on this matter.
K2. Some proposed legislation in the Turks & Caicos Islands to implement international conventions was put on the back-burner by the interim FCO direct administration. Laws proposed after a major review in Montserrat seem to have been delayed for financial reasons, and local views in respect of planning appear to be overridden, while HMG is in charge of funding. There appear to be problems in St Helena—which are particularly concerning while major developments proceed.
ST HELENA
K3. HMG has a strong influence on the governing of St Helena, including the management of the environment. This is for two main reasons. First, the island depends on direct budgetary support from HMG. Second, the Air Access project is also HMG funded. These impact on almost every aspect of life in St Helena.
The Air Access Project
K4. This is not just about building an airport. What also matters for long-term sustainability are the related construction and land use activities to develop the infrastructure for—and make sure that Saints benefit from—the projected influx of visitors, who will be very different from those arriving after a long sea voyage. The operation of air services involves also contracts with carriers, importation of different types of goods and the related quarantine/biosafety considerations on an isolated island which is highly vulnerable to invasive species. A related issue is how sea freight will affect the island”s economy and family budgets after the subsidy for the RMS St Helena is withdrawn.
K5. There are two current environmental issues. The first is that changes to the configuration of the site made since the project was agreed have not been accompanied by sufficient attention to further adjustments to mitigation measures where there are unavoidable impacts on habitats of important flora and fauna. Catch-up work being done by the St Helena National Trust and by Buglife under a Darwin Initiative project may help, but it is a pity that the contractors did not seek specialist advice when starting to amend their plans. The recent milestone of 1 million cubic metres of fill at Dry Gut being reached while design changes are still not finalised show that the contractors and their government supervisors could surely have made it clear much earlier that work to supplement the original EIA should be undertaken.
K6. The second point is more general: that the Landscape and Ecology Mitigation Programme (LEMP) was to have been developed in parallel with completion of the original Environmental Impact Assessment (EIA) and refining design details. The initial deployment of the LEMP funding should have started at the start of the construction project, whereas it has only recently (see issue 28 of St Helena Airport News) got to the design and planning stage. (The LEMP funding of £870,000 is a rather niggardly sum for a project of this size in an area of known global ecological importance and sensitivity. Prosperous Bay Plain is widely recognised to be an evolutionary hotspot.)
K7. Both these features indicate that the powers that be on St Helena (essentially DFID and FCO) appear to have forgotten the discussions with conservationists at the start of the proposals. Then, various conservation bodies, including UKOTCF, indicated that, were the development on an area of similar significance in Britain (not that there are any), they would object. However, they recognised that, both for economic sustainability and, through that, conservation of a non-pristine environment, an airport was probably necessary—and there was no real choice as to where to put it. Accordingly, they agreed that they would not oppose it provided that environmental impact was minimised. It would seem that the last part of this agreement has been forgotten or otherwise disregarded.
Budgetary Support and Freedom of Information
K8. The second issue is that, on most aspects of life in St Helena, departments in London are in the driving seat. There are consultations and serious annual budgetary negotiations between DFID/FCO and locally elected councillors. However, the bottom line is that HMG calls the shots and that the Governor is appointed to a position where his authority is buttressed by legislation that remains colonial in nature. That is not surprising, since it is HMG which ultimately carries all the contingent risks associated with governing the territory.
K9. That is why it is especially important that decisions are reached as openly as possible; and, in a period of huge change, that civil society on the island is as fully engaged as possible in these changes. As environmentalists, UKOTCF and our associates, including those in St Helena, are keenly aware that good environmental management and good access to information go together. The principles have been widely appreciated in many international agreements to which the UK is a party; and they are reflected in the Guiding Principles and the specific Commitments from both HMG and the St Helena Government of the 2001 St Helena Environment Charter.
K10. How to apply these principles is another matter. On 12 January 2005, the St Helena Executive Council advised the Governor that the UK Freedom of Information Act was not suitable to local circumstances and should not apply to St Helena; but that consultation should be initiated over providing a suitable framework to apply the principles of Freedom of Information in St Helena. The Attorney General undertook to co-ordinate the consultation process. However, since then there has not been any sign of draft legislation being prepared. The demands on legal drafting skills in relation to St Helena are considerable, but this is an area where it is right for St Helena to be able to draw on FCO support, possibly through its Good Governance Fund.
K11. We believe that FoI legislation appropriate to St Helena”s circumstances is urgently needed and will have long-term benefits both for the Air Access project and for the development of greater participation in the island”s democratic life.
TURKS & CAICOS ISLANDS
K12. In the Turks and Caicos, the direct British Government rule for three years effectively abandoned the line previously promoted by HMG, for all the territories, of taking a long-term environmentally sustainable view in favour of short-term financial considerations, despite the resulting threat to the environment. At the request of local partners, UKOTCF raised some of these issues with FCO. In the following paragraphs, we list the issues raised with FCO and the responses received.
Conservation issues in FCO”s direct governing of Turks & Caicos Islands (TCI)
K13. A role which UKOTCF has always undertaken for its partners in territories is to raise issues of concern for them with FCO in London, especially when they appeal to us to do this, usually when they feel their voice is not being heard in territory. For many years UKOTCF was able to do this quite informally, through regular contact with FCO and, in many cases, such interventions helped achieve a satisfactory solution. UKOTCF is encouraged that, with the appointment of a new FCO Director Overseas Territories, correspondence about such issues has recommenced, and thanks his staff for taking the time to engage in this way, and for following matters up with Governors and others. As we express the concerns of mainly (but not solely) civil society in territories, we are inevitably not always going to be able to agree with one another. However, re-establishing a dialogue is a welcome step in conducting meaningful discussions, and it is important to be able to disagree on some points whilst keeping an open communication channel.
K14. UKOTCF has had for over 15 years, and still has, a very strong involvement in conservation issues in TCI. It has assisted both governmental bodies and local NGOs on many projects and issues and, at local request, led some of these. Local partners have drawn to UKOTCF”s attention several major issues relating to FCO”s period of direct rule of TCI from 2009 to November 2012, especially the latter part of that; they consider that these have set conservation in TCI back by many years. These are certainly having major negative impacts on TCI”s environment, and on HMG”s reputation there and elsewhere. However, some of them could still be corrected or alleviated.
K15. These are not criticisms of the taking of FCO”s decision to take direct control. However, the implementation of this in the recent case is contrasted with the earlier one. Twice in some 20 years, UK Government has had to take back direct responsibility for governing TCI. In the early 1990s, the then FCO direct government fulfilled the requests of local people by implementing protected area legislation and designating some such areas, as well as helping establish a non-governmental conservation body. A decade later, UK Government agreed with UKOTs the Environment Charters. These, and other UK Government actions, encouraged UKOT Governments and other stakeholders not simply to focus on short-term financial gain, but to look at sustainability and to protect the environment—because of its intrinsic importance, the ecosystem services that it provides, and the potential for long-term sustainable economic development, notably high-value, low-intensity tourism. What is concerning is that the recent direct FCO Government of TCI seems to have acted precisely in the opposite direction to FCO”s previous advice to UKOTs. This has both damaged and—unless there are changes—will continue to damage TCI”s environment, and has provided a bad example, undermining the Environment Charter process in other UKOTs also.
K16. UKOTCF cannot simply ignore matters raised with it by responsible local partners, but equally is anxious to give FCO the chance to comment. For this reason, UKOTCF tried to raise the matters initially with the TCI Governor, and then followed up through FCO at the kind invitation of the new Director Overseas Territories. We hoped that, on at least some issues, the FCO”s responses would enable us to convey a message of attempts by the disputants to find mutually agreeable approaches. We are still looking for this, despite the Governor”s understandably defensive statements. Nevertheless, UKOTCF is pleased that the Governor has now commented on the environmental issues raised by our local partner organisations, as his previous comment to UKOTCF that these matters were being used by political interests rather than being of environmental importance indicated that, because he perceived that there were political pressures, the environmental issues were somehow lessened.
K17. The particular points drawn by local partners to UKOTCF”s attention include the following (with responses by FCO and follow-up by UKOTCF added).
1. Caves Near Providenciales Airport
K18. The Remipede crustacean species Micropacter yagerae is the only member of its genus and of its family, Micropacteridae. It is known only from the caves by the international airport at Providenciales, TCI. These caves are important also for other wildlife. Plans have been approved to expand the airport car-park by destroying these caves. No Environmental Impact Assessment (EIA) has been done, thereby breaching the Environment Charter and UK”s international commitments. Local bodies had thought the caves were relatively safe due to private ownership; however, it turns out the government had arranged compulsory purchase of the area. The Planning Board ignored the request of the Director of the Environment not to hold its meeting while she was out of the country, and apparently wrongly advised members that the Environment Department (DEMA) did not object. The airport re-design could easily be modified to avoid expanding the car-park into this area, there being much space beyond (west of) the terminal buildings, but the airport authority did not draw the attention of the designer to the importance of the caves. The airport authority has since made unsupported statements that the work will not affect the caves. All the preparatory work for this, including compulsory purchase and the failure to undertake an EIA, was done under direct UK rule. The work, if it proceeds, could lead to the global extinction of a species, genus and family—and this could readily be prevented by relatively minor redesign, which could even be cheaper to implement. This unnecessary destruction of caves could still be stopped.
K19. FCO responded: I understand from the Governor”s office that the caves highlighted in your note as being under threat from the airport expansion actually lie outside the parcel of land that will be used for this development. This has been confirmed by an independent [a] surveyor”s report that was submitted to the Governor”s Office by the CEO of the TCI Airport Authority. I know that this issue was of particular concern to you and hopefully this reassurance will be welcome news to you and other environmental stakeholders in TCI.
K20. UKOTCF replied: It seems that the information supplied to the Governor and yourselves is somewhat incomplete—as, indeed was reflected in TCI evidence to the Environmental Audit Committee yesterday [19 March 2013]. I am advised that the situation is that the entrance to the cave lies outside the parcel of land that is now proposed for this development, but the situation of the caves themselves is far from clear. The caves spread widely from these entrances. No-one can say that the development will not impact the caves, although impacting seems likely. The reason that no-one can say this is that TCI Government (in breach of the Environment Charter) failed to require an adequate Environmental Impact Assessment from the developer. The purpose of EIAs is to avoid getting into such unsatisfactory situations where the impact of a development cannot be predicted. Because of this failure, conservationists in TCI are now attempting to enlist skilled volunteers to undertake rapidly the difficult task of mapping the underground and underwater caves. Such last-minute emergency efforts should not be necessary when environmental governance in a territory follows best practice.
K21. I am advised too that workers who undertook the recent expansion of the apron at the airport informed local conservationists that a bulldozer broke through to an underground cave during that work. However, the airport authorities apparently did not report this to the planning or environmental authorities. In addition to environmental considerations, questions of contingent liability to TCI and HMG could readily arise.
K22. We trust that, in line with the final sentence of your email, no work will start on the currently proposed phase of the airport development until completion of the cave surveys, and that it will not proceed unless the environmental bodies can confirm that the proposed construction work, servicing and operation will not be damaging to the biodiversity, given its international importance.
K23. FCO responded: our Governor”s Office has followed up with the TCIAA who have provided the below information.
K24. On the allegation of a bulldozer breaking through into a cave, the TCIAA have advised that this did not happen. In addition, they have informed us that there are currently no bulldozers on the site and that the caves are located on privately-held land that is not within the parameters of the airport development.
K25. Secondly, on the issue of whether an Environmental Impact Assessment was carried out: DEMA”s predecessor, the Department of Environment and Coastal Resources ([D]ECR), carried out a survey of the site at the request of the TCIAA. A walk-round of the site was conducted and, following this, plants considered of interest were removed for replanting. The DECR”s findings were submitted to the relevant planning authorities and full planning permission was duly granted. It was actually during this survey that the caves were initially discovered.
K26. UKOTCF replied: Thank you for following up in respect of the airport in your later email. However, we do have to suggest that the Governor be slightly more questioning of statements by the TCI Airport Authority. Their comment that the “walk-round” discovered the caves is demonstrably untrue. The caves and their importance have been well known for years. For example, UKOTCF personnel were escorted to the cave by a senior TCI government official (not in the environment department) in 2008. The caves had already been studied by TCI and US researchers, and some of the results, including the description of a new species (in a new genus, in a new family), published in the scientific literature. Any competent environmental impact assessment would have discovered this information, related it to the proposed development, and examined non-damaging options. It is to make such alternatives in a cost-effective way that is one purpose of EIAs. Another is to protect the positions of developer, authority and others. It is unfortunate that the Governor, as then government, chose to breach the Environment Charter, of which he indicates he was well aware, by not requiring an EIA. A walk-round does not constitute an EIA.
K27. On 10 &11 May 2013, UKOTCF received an unsolicited email (and a correction to it) from the architect to the TCI Airport Authority:
Dear Dr. Pienkowski,
We write as the architects for the expansion of the existing air terminal. The purpose in writing is to set out the record of events leading up to the construction start a few weeks ago. We have become aware of various communications concerning the cave in relation to the air terminal works.
Some of the information conveyed to you and others borders, and I use the word reluctantly, on the hysterical. I do hope that the following helps not only to set the record straight, but also to reassure the relevant parties that the correct procedures have been followed.
The time line is as follows:
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The caves are located some 320ft. from the nearest point of the new car park—and a similar dimension to the cliff face of plot 14. It is not understood why DEMA are so concerned about the cutting into this cliff face. It was formed in 1999, when the current terminal was constructed. It may be that nutrient run-off, combined with weathering of the soft limestone, gives the impression that this is an older face.
In the event, this cliff face is staying as existing.
As a keen amateur student of the papers by Dr. Iliffe, I read the paper “Micropacteridae, a new family of Remipedia (Crustacea) from the Turks and Caicos Islands. Stefan Koenemanna,, Thomas M. Iliffe, Joris L. van der Ham. 2005”, and noted that
“The cave cave consists of a crescent-shaped fissure extending along the base of a larger sinkhole. A narrow ravine-like passage extends down for 20m to a tidal, anchialine pool in total darkness with a maximum depth of 14 m.”
It would appear that the cave may extend about 15m in a horizontal dimension. In an extract from a message to me from Prof. Iliffe, he refers to the small size of the cave:
“Hi Rolf”
I am quite concerned as to the fate of this cave since I have heard that an extension of the airport parking lot may threaten it. Although it is quite a small cave, it contains the only known site in the world where this particular type of remipede is found. Several other species of cave adapted fauna also inhabit this cave.”
Sincerely,
Tom Iliffe
Prof. Thomas M. Iliffe
Department of Marine Biology
Texas A&M University at Galveston
I was able to re-assure him that the works did not threaten the cave.
In the paper cited above, there are references to other diving expeditions to the cave—for example,, “Yager, J, Schram, F R, 1986. Lasionectes entrichoma, n. gen.,n. sp. (Crustacea, Remipedia) from anchialine caves in the Turks and Caicos, B.W.I. Proc. Biol. Soc. Wash.99, 65–70.”
My reason for mentioning this is that it indicates a long period of knowledge concerning the cave. It beggars belief that no steps appear to have been taken in all these long years to safeguard this unique habitat. Considering an extreme scenario, there seems to be nothing stopping the cave from being destroyed tomorrow. An appalling situation, which surely DEMA could put right immediately, under existing legislation.
TCIAA are very interested in the cave and I understand would welcome publicity for travellers—to the extent (if that can be achieved without damage)— and encouraging visits.
I also noted a reference to the excavation and filling in of a “cave” during the runway extension work. A small hole—too small to allow a person to pass through—was found on 10 November 2010. This was photographed by the consulting engineers. It has nothing to do with any cave.
The Islands are replete with such holes and a typical residential site of, say, half an acre might have around a dozen of them. If larger, as sink holes, they are preserved because they often contain trees. Otherwise, they are simply bulldozed if in the way of new houses/buildings or driveways.
TCI does have some serious environmental issues. Take the coral reefs for example: whilst reefs are extremely robust and have survived millions of years under extreme conditions and damage, there are issues of pollution in the TCI that appear to have received little attention.
Reef recovery can exhibit remarkable characteristics, including for example, even mechanical damage (such as in the Florida Keys). In the TCI, however, little attention appears to have been given to a much more serious cause—pollution. Turtle Cove Marina, for example, exhibits characteristics of sewage effluent from boats, despite stringent regulations. During high season this pollution is highly visible to the naked eye and outflow to the reefs ensures a steady supply of poisons—from which coral reefs have little chance of recovery until it is stopped.
On a final note: I do think when listening to witnesses concerning the TCI, it is important to check their background. A typical example are the presentations made on 18 March 2013 to the Environmental Audit Committee. The report by “TCI News Now” of 22 April 2013 makes sad reading.
Possibly also worthy of note is the fact that there seem to have been many instances where design firms have made application for and were granted permission to dredge and establish canals without proper if any hydrological studies or credible EIAs . Considering the potential impact of global warming, dividing the islands into roughly smaller islands would have serious consequences, from an environmental and hydrological stand point. Much work needs to be focused on this. One may only speculate why this is not a focus of the environmentalist.
Regards,
Rolf Rothermel
K28. UKOTCF replied on 12 May 2013:
Dear Mr Rothermel
Thank you for taking the trouble to write to UKOTCF about the expansion of the airport car park and concerns about the airport cave and its wildlife, including a unique species, genus and family of remipedes, found nowhere else in the world.
I do not know how much background you have been given about the UK Overseas Territories Conservation Forum (UKOTCF), but let me explain first that we are a non-Governmental not-for-profit organisation, and a federation of members and associate organisations and other stakeholders from both Britain and the UK Overseas Territories (UKOTs). The UKOTCF network is not opposed to built developments and has, indeed, worked in partnership with developers. It is, however, concerned that proper processes are followed. A key role we play, on behalf of our partners is to raise concerns which they have expressed to us. It is in this role that we raised concerns about some aspects of the expansion of the airport. In this particular case, UKOTCF was undertaking its role of bringing matters raised by our network partners to the attention of UK Government, because of its shared responsibility for environmental matters in the UKOTs generally, and its specific direct responsibility in the Turks and Caicos Islands (TCI).
I am surprised by your use of the word “hysterical.” I am not aware of any information that we have received or passed on that in any sense could reasonably be described in this way.
Thank you also for your time-line. There is no reference in this to an Environmental Impact Assessment (EIA), and I understand that none was undertaken. This failure puts the TCI Government (for part of the time until recently under direct UK Government control) at variance with the Environment Charter in not requiring this of a developer.
The Environment Charters, signed by UK and UKOT Governments in 2001 agreed certain commitments. The Ombudsman for Bermuda has determined that the Environment Charters are legally binding agreements, of similar standing to the anti-money-laundering agreements. Amongst the Commitments of the Government of the Turks and Caicos Islands relevant in the present case are that it will:
3.
4.
5.
11.
The 1992 Rio Declaration set targets (reaffirmed and further endorsed in both subsequent environment and development summits in 2002 and 2012) for safeguarding biodiversity and preventing loss, so the threat of loss of an endemic family is particularly pertinent here.
As I am sure you are aware, the purpose of having independent, thorough, and open EIAs prior to development work is to preclude just the sort of situation currently on the ground regarding the airport extension, by highlighting issues and reaching solutions before ground works begin, as well as protecting all the participants.
Regardless of the commitments made by TCI Government, I am surprised that, as a responsible professional, you did not yourself insist on an independent EIA being undertaken, both as normal practice throughout the world and to protect your own position. Indeed, I see that you have promoted such an approach in at least one publication in the past.
UKOTCF has, not unexpectedly, sought information as to whether an Environmental Impact Assessment was conducted for the airport development, and whether the designers and architects were made aware of the environmental sensitivities of this area.
UKOTCF is pleased that you personally have acquainted yourself with Dr Illiffe”s research work, and that of others. However, especially in the absence of an EIA, the basis of your re-assurance to Professor Iliffe is unclear. It may be related to some confusion in your email between the cave system and the entrance to the cave. This may also be the basis of your references to plot 14 and to 320 ft. The statements are invalid because of the lack of a proper EIA. Whilst the initially explored cave and the entrance to it are in plot 14, the cave system extends to unknown distances in all directions. This is typical of limestone areas, and you yourself allude to this. The fact that Prof. Illiffe cites the cave as small does not negate the need for a thorough survey of the true extent of the cave, and whether excavation works nearby will affect it. After all, the remipede is a very small animal, and can obviously navigate tiny passages which people cannot access. Even more importantly, the water systems which could be impacted at some distance could be the same system as at the cave entrance. At present, in the absence of a proper EAI, the extent of the cave”s tunnels and chambers is not known, and if this basic information is not available, then it is not possible to state that the airport extension works will not affect the caves.
There appears to be a similar misunderstanding on your part as to the concern about the cliff face. This is not about the face itself but the fact that pushing it further back could impact the unsurveyed cave system. The fact that it has already been cut into is not relevant to this concern.
There have been previous efforts by concerned local people to raise awareness that the airport caves were in need of protection. UKOTCF was made aware of such concerns in 2008. Any competent independent EIA would have made this information available to you and the others concerned with this development. Your plan could then have made use of some of the large area available instead of unnecessarily risking this important system and endangering the only place in the world supporting the species, genus and family mentioned.
Thank you for the information on the discovery of a hole during the runway extension. I am interested in your distinction between a “hole” and a “cave”; what definitions are you using in this classification, and what is the relevance of whether or not a person can pass through? As any caver could advise, the width of passages in cave systems is hugely variable. Assertions that they are not linked are worthless without proper survey.
You are correct in noting that TCI does have some serious environmental issues, such as the coral reefs and marine pollution. However, your assumption that UKOTCF and others have not addressed these is quite wrong. UKOTCF, on behalf of its partners, has raised concerns about these, for over 15 years, and recently drew attention to at least six others in TCI (as well as others in other UKOTs). The serious problems caused by the dredging of Leeward Channel in 2007–08, without any hydrological studies or EIAs, have been publicised by many concerned TCI persons. In fact, a consortium of local stakeholders took legal action, and stopped this illegal dredging.
However, each case of potentially environmentally damaging actions has to be highlighted as an issue, and because in the past some environmentally damaging actions were not able to be challenged does not provide an argument against challenging current and future potentially environmentally damaging actions. We think that there is little value in your implicit argument that, if others have damaged the environment, TCIAA has the right to do so as well.
We thank you for taking the time to send this communication, but must also express disquiet at your citing of the article in TCI News Now about the evidence given by a TCI representative to the UK Parliament”s Environmental Audit Committee”s Inquiry into Environmental Sustainability in the UK Overseas Territories. We are concerned that this article was written anonymously, inaccurately reported the evidence given to the committee, and contained irrelevant and erroneous personal information on the witness. It seems that this could only have been obtained improperly from a previous employer. The “newspaper” concerned did not check facts with the person they were attacking and has not published the corrections he supplied. I advise you that your case is not supported by citing such scurrilous sources. I would prefer to place confidence in the fact that the witness is held in high regard in TCI and internationally, as one of the most knowledgeable ecologists on the TCI environment. Last month, he was the recipient of a prestigious international award from a UK Government agency in honour of the quality of his conservation work in TCI and commitment to the environment. If you have not yet done so, you could benefit from watching the video of the oral evidence session (on UK Parliament website).
2. Dolphinaria
K29. For reasons which are not readily understood, the Governor, late during the period of his direct rule, changed TCI law to allow the keeping of marine mammals in captivity, thereby enabling establishment of dolphinaria. This runs counter to widespread modern practice and to HMG”s previous attitude towards dolphinaria in UKOTs. There was little local support for the change, and much local opposition. As a consequence, there is a current proposal for a dolphinarium on Providenciales (by Jamaican interests) and apparently another on Grand Turk (by US interests). There are strong local objections to these on both animal-welfare and environmental grounds. The Governor commented that the decision is no longer his (which is technically correct, but his previous personal actions made the proposed developments possible). He commented also that the objections received are on animal-welfare, rather than environmental, grounds. We can only suppose that he has been misinformed, as some environmental objections that had been made have since been copied to us.
K30. FCO responded: the Governor amended the regulations in order to allow marine mammals to be kept in captivity with a licence. This was not contrary to UK policy on the Overseas Territory because the issue is a matter for the elected governments of the Territories, not for HMG (there are dolphinariums for example on Cayman). A balance had to be made between those demanding the interim administration allow a decision on the proposal before the elections and those wanting it definitely stopped before the elections. Amendment to the regulation meant that the application could be considered under the planning process by the elected Government of TCI. It is also not the case that there is little local support for this change. All objections, whether environmental or on the basis of animal-welfare, should be raised in the normal way through the TCIG”s planning application process.
K31. UKOTCF replied: With regard to the Governor”s comments, we note that research commissioned by the UK Government in the 1980s meant that not even the very well funded dolphinaria in UK could meet the environmental and welfare standards necessary, and all such facilities have been closed down. HMG has since discouraged the introduction of dolphinaria in UKOTs, although—as you point out—it is a local decision. This makes it all the more surprising that the Governor, while in direct control of TCI, chose personally to change the previously existing law which made the keeping of marine mammals illegal, rather than leaving this to the elected Government—and without consultation, in breach of the Environment Charter.
K32. UKOTCF notes also the evidence on this topic (and others) given to EAC on 19 March 2013 by Bryan Naqqi Manco, of TCI Department of Environment and Maritime Affairs.
3. Deep Dredging
K33. A few years ago, during the corrupt previous administration, deep dredging was allowed through a channel in a protected area, causing severe damage to the coral reefs and a commercial conch farm, and severe erosion and destruction of a popular nature trail on a nearby island nature reserve. The development was of dubious legality and was to provide access to a similarly dubious mega-yacht port which went into bankruptcy with only one yacht ever using it. Ownership of the facility has now passed into a company seemingly run by a British legislator, and consideration is being given to further deep dredging, despite the partial recovery from the earlier devastation. It appears that again, in breach of the Environment Charters and UK”s international commitments, there is no EIA, and the development was encouraged by the FCO direct government. The applications for planning permission were made in October 2012, during the direct UK administration, but (in common with TCI procedurally flawed practice) were not posted at the site (and then on posts requiring boat access) until January 2013, with the deadline for objection being indicated on the posts as in November 2012—over two months before the notices were posted.
K34. FCO responded: there has been no encouragement for the dredging application by the Interim Administration or the UK Government; indeed neither has been involved in it in any way. An application for planning permission to dredge in order to maintain an existing channel has been made in the normal way and is being considered under the TCIG”s planning process.
K35. UKOTCF notes that it is slightly puzzling that the Governor”s office indicates that it has not been involved in any way, since the process started during the period of direct UK rule by that office. It is not clear either why that office did not enforce proper process.
4. Joe Grant”s Cay
K36. Through work of the civil recovery team and the Special Investigation and Prosecution Team, land at Joe Grant”s Cay has been recovered after illegal sale by the previous government. Bizarrely, the direct FCO government put this unspoilt area up for sale for built development, rather than turning it into a nature reserve. An overseas benefactor would be prepared to fund the nature management of this and other areas if TCI Government would set it aside as a nature reserve, it already being the basis of considerable low-intensity, high-value nature tourism—which would be lost by built development.
K37. FCO responded: Joe Grant Cay was recovered by the civil recovery team (not the SIPT). However, 200 acres of Joe Grant Cay were not recovered because it was subject to a charge to, and is thus effectively owned by, a bank. The bank is entitled to sell the land to get its money and the land is now for sale. The only way the Interim Administration or Elected Government could stop this is by spending three million dollars to buy the land from the bank. The Interim Government did not have money to do so. It is the decision of the Elected Government whether it wants to do so.
K38. UKOTCF notes that it is unclear why a bank is allowed to benefit from its acquisition of what was effectively stolen property.
5. High-rise Developments
K39. In contrast to previous policies, the direct FCO government has encouraged high-rise developments.
K40. FCO responded: the Interim Administration has not encouraged high rise development. The Interim Administration did say it would take no decision on a proposal for a 28 storey development and would leave this to be handled by the Elected Government.
K41. UKOTCF notes the evidence to EAC on 19 March 2013 by Bryan Naqqi Manco, of TCI Department of Environment and Maritime Affairs. It is not clear why the UK Interim Direct Government allowed the developers to pursue the loaded questions in the so-called consultation exercises.
6. The Conservation Fund
K42. The direct FCO Government abolished the Conservation Fund. This was a rare example of a popular tax, based on an ear-marked element of taxes on tourists and other visitors. It was originally introduced by TCI Government over a decade ago as a condition of UK grant-aid. Whilst there was some mis-use of the fund during the period of the corrupt government, the basic concept was sound, and widely applauded in other countries and territories. Clearly, some changes would be necessary with the switch to VAT, but the different methods of tax-collection do not present an insuperable problem.
K43. FCO: Conservation Fund: this was not a popular tax. Rather it was a hypothecation of part of Accommodation Tax. As part of the rationalisation of public finances, which the Interim Administration undertook, a number of “funds” were abolished, many of which (like the Conservation Fund) either had no real money or were badly run, or both. It is down to the Government—either Interim Administration or Elected Government—how much money they want to spend on conservation and allocate it properly during the budget process. The existence of all sorts of funds was simply unhelpful and led to bad government. The view of the Governor and CFO is that the “basic concept” is not sound.
K44. UKOTCF notes the unexplained reversal of HMG policy from requiring TCI Government to introduce the Conservation Fund, based on a publicly announced hypothecated increase in accommodation tax, to a cancellation of this while HMG was in direct control of TCI. UKOTCF notes also that, whilst there was much discussion before the introduction of the Conservation Fund and its supporting tax, there was effectively none before the cancellation of the Fund by two unelected officials. There was some prior consultation by the Direct Interim Government”s tourism advisory commission—but this was on the indicated basis that it was envisaged that the Conservation Fund and its tax base would continue. This constitutes yet another breach of the Environment Charter by HMG while running TCI”s Government. The importance of the Conservation Fund was summarised eloquently for EAC on 19 March 2013 by Bryan Naqqi Manco, of TCI Department of Environment and Maritime Affairs. The tax on accommodation for tourists was increased from 10% to 11%, explicitly to contribute the extra one percentage-point to the Conservation Fund. The accommodation tax has recently been increased to 12%, so it even more unclear why the contribution to the Conservation Fund has been cancelled (and not subject to as prominent consultation and announcement as its introduction).
7. Lack of Briefing on the Environment Charter Commitments by HMG of its TCI Officials
K45. It seems that officers sent from UK to run TCI during direct government were not briefed by FCO about the existence or content of the Environment Charter, in place as an agreement between UK and TCI Governments. This may account for some of the problems. However, the omission is difficult to account for. In 2002–03, TCI had been the pilot UKOT to develop (in line with the first Commitment of the Charter) a strategy for Charter implementation. And, in 2009, just before direct rule, UKOTCF produced the second review of progress in implementation of the Charters in all UKOTs. This was a major element of the UKOT conservation conference in Cayman that year, supported by HMG and in which FCO, DFID and DEFRA officials and a DEFRA minister participated. It was not an obscure topic!
K46. FCO responded: Environment Charter: It would be helpful to know on what basis you feel that officers sent from UK to run TCI during direct government were not briefed on the existence or content of the Environment Charter? The Governor”s Office in TCI is well aware of the Charter and the principles set out within it.
K47. UKOTCF replied: One of the conversations about the lack of awareness of the Environment Charter amongst the Governor”s staff took place in the Governor”s office in his presence, and he did not comment when his personnel indicated both that they had not seen the Environment Charter before and how useful it would have been had they done so.
L. Gibraltar Fisheries and Marine Conservation
L1. When UKOTCF representatives gave oral evidence to the EAC, we had anticipated that the Report dealing with fisheries, and wider issues, would have been available; this unfortunately was not the case. This followed from UKOTCF”s written evidence in which we made reference to the work being undertaken on marine living resources around Gibraltar. That being the case, we were somewhat limited in what could be said to the Committee. This work has now been largely completed and the report “The Management of Marine Living Resources in the Waters around Gibraltar” was published on 4th June. It can be downloaded from the Gibraltar Department of the Environment website www.gibraltar.gov.gi/images/stories/PDF/environment/Management_of_marine_living_resources_in_the_waters_around_Gibraltar.pdf and is also available in hard copy from their offices. It was accompanied by a Ministerial Statement in the Parliament in Gibraltar www.gibraltar.gov.gi/images/stories/PDF/pressoffice/pressreleases/2013/376–2013.pdf which can also be downloaded. We would suggest that the Report is taken as additional evidence for the EAC enquiry. Given the recent publication date, it has not been possible to gauge with any accuracy any responses to the findings and recommendations of the report save those from the Government of Gibraltar, which are positive and leading to uptake of at least some of the recommendations in new Regulations.
L2. The authors of the report attempted to provide a technical report with a sound basis in science. However, as the Report points out, it is extremely difficult to separate management considerations based on science from the political considerations which often overlay any decision making process. That being the case, and given that it was impossible not to encounter wider policy, organisational and political processes (by and large not involving Spain) in the preparation of the Report, such additional information was collated and further information on these elements has been provided to the Government of Gibraltar in a separate form. It is clear, that while the Report provides significant background on fisheries and other environmental matters to enable management decisions to be made it will, on its own, not provide the solution to the overall problem, which lies in the territorial/sovereignty dispute with Spain coupled with the very difficult socio-economic issues pertaining in Spain. The latter is not of Gibraltar”s making. Indeed the neighbouring Spanish inhabitants would be considerably worse off without inter alia the employment opportunities in Gibraltar; and the responsibility for sovereignty and territorial waters resides entirely with HMG as they relate to foreign affairs and defence matters.
L3. Legislation already exists in Gibraltar—the Nature Protection Act 1991—to regulate activities adversely affecting the marine environment including those relating to fisheries. It is this legislation that prohibits the activities of Spanish boats in British Gibraltar Territorial Waters (BGTW) and for which enforcement has been found lacking—an issue we raised in our oral evidence. In 1999 when the Foreign Affairs Select Committee considered issues pertaining to Gibraltar, the then UK Government was of the opinion that a so-called “Understanding” derived by the then Government of Gibraltar which allowed for the Royal Gibraltar Police (RGP) to “turn a blind eye” to infractions by Spanish fishing boats was an effective solution. So effective in fact that the Minister at the time desired the Government of Gibraltar to repeal the Nature Protection Act so that Spanish boats could fish in BGTW. This does seem a rather bizarre way to interpret making of good law and its enforcement. In practical terms, enforcement is the major issue here. Spanish boats are encouraged by Spanish Ministers and the local governments in Andalusia to enter BGTW as they regard them as Spanish—thus promoting incursions by Spanish fishing boats. This is reinforced by armed Guardia Civil boats accompanying the fishing boats in what is clearly an infraction of BGTW and the sovereignty of Gibraltar—matters which it should be reinforced are the responsibility of HMG rather than the Government of Gibraltar. There have been some suggestions made by HMG that it is difficult to know whether a boat from the Guardia Civil is undertaking right of navigation under international maritime law when in BGTW rather than breaching sovereignty by undertaking activities in BGTW. This is somewhat disingenuous. If a Guardia Civil boat is circling Spanish fishing boats within BGTW in an attempt to keep (unarmed and considerably smaller) RGP boats away, it is fairly obviously not undertaking innocent right of passage. It is at the least very unusual for Royal Navy vessels to intercede. The explanation usually given is that the Royal Navy does not have a role in fisheries protection duties and only deals with breaches of sovereignty but in these cases does not regard these activities as such a breach.
L4. Following the oral evidence given by UKOTCF to the EAC a number of Parliamentary Questions were asked apparently, at least in part, to follow up on that evidence. They were:
Gibraltar
Andrew Rosindell: To ask the Secretary of State for Foreign and Commonwealth Affairs whether he has any plans to extend the UK”s claim to a territorial water surrounding Gibraltar from three to 12 nautical miles. [156092]
Mr Lidington: We have no plans at present to extend British Gibraltar Territorial Waters to 12 nautical miles but we retain the option to do so, as enshrined in the United Nations Convention on the Law of the Sea.
Jim Dobbin: To ask the Secretary of State for Foreign and Commonwealth Affairs how many incursions into British Gibraltar territorial waters there have been over the last six months. [156133]
Mr Lidington: There have been 176 unlawful incursions into British Gibraltar Territorial Waters by Spanish state vessels in the period from 1 November 2012 to 30 April 2013.
Jim Dobbin: To ask the Secretary of State for Foreign and Commonwealth Affairs what steps he has taken to deter illegal incursions into British Gibraltar territorial waters by Spanish Civil Guard boats. [156134]
20 May 2013: Column 511W
Mr Lidington: The Royal Navy challenges Guardia Civil vessels whenever they make unlawful incursions into British Gibraltar Territorial Waters (BGTW). We also make formal diplomatic protests to the Spanish Government about all such incursions. We will continue to do all that is necessary to uphold British sovereignty over BGTW.
Jim Dobbin: To ask the Secretary of State for Foreign and Commonwealth Affairs how many times the Spanish Ambassador has been summoned to the Foreign Office over the last 12 months in respect of Spanish incursions into British Gibraltar territorial waters. [156135]
Mr Lidington: The Spanish ambassador has been publicly summoned to the Foreign and Commonwealth Office once in the last 12 months in respect of unlawful incursions into British Gibraltar Territorial Waters by Spanish state vessels.
Jim Dobbin: To ask the Secretary of State for Foreign and Commonwealth Affairs what steps he is taking to ensure that Spain complies with its obligation under the Cordoba Agreements. [156136]
Mr Lidington: As part of regular diplomatic engagement, the UK Government continues to encourage Spain to comply with its commitments under the 2006 Cordoba Agreement, which represented a significant step forward in co-operation between the UK, Spain and Gibraltar. The UK Government continues to recognise the value of dialogue and supports a return to a trilateral process in which Gibraltar is actively involved. We make this position clear to the Spanish Government whenever it is appropriate to do so. We have also ensured that the European Commission is aware of the UK position.
Andrew Rosindell: To ask the Secretary of State for Foreign and Commonwealth Affairs whether the Chief Minister of Gibraltar has been put under pressure by his Department to allow Spanish fishermen to fish illegally in British Gibraltar territorial waters; and what assessment he has made of the recent evidence from Dr Tydeman to the Environmental Audit Committee on 17 April 2013 alleging that such pressure has been applied. [156142]
Mr Lidington: My Department has regular discussions with the Government of Gibraltar and has supported their efforts to find a solution to the fishing dispute, encouraging all parties to show restraint and cooperate with the Government of Gibraltar.
The UK Government has a single policy on Gibraltar, which is agreed across Whitehall Departments including the Ministry of Defence and discussed with the Governor.
I will write to the Chair of the Environmental Audit Committee about the Gibraltar related-issues raised in the oral evidence that the Committee has taken from Dr Tydeman.
L5. We would note the following in respect of the answers provided:
(a)
(b)
(c)
(d)
(e)
UKOTCF very much welcomes the statement that HMG supports the Government of Gibraltar and encouraging all parties to show restraint and cooperate with the Government of Gibraltar. UKOTCF looks forward to seeing the practical implementation of such aspirations.
As with other sections, if this supplementary evidence is insufficient or requires further clarification then we would of course be happy to assist with such.
M. Necessary Qualities for Effective Governors
M1. The Committee asked what we think should be included in the specifications for governors, and we indicated that we would amplify in writing our initial brief thoughts.
M2. One previous governor described his job at the time as being “to fulfil the constitutional and representational duties of Governor, paying due regard to the interests and needs of both the territory and the UK Government.” His duties and responsibilities, with the approx proportion of time spent on each, were:
Presiding Officer of Cabinet 17%
Supervision of Ministries and [non-political] Portfolios; day-to-day government business 18%
Head of Public Service 15%
Reserved Powers (external affairs, internal security, police, drugs etc) 20%
Community and representational activities 25%
Leadership and management of Governor”s Office 5%
M3. The role and responsibilities of a Governor, and certainly the time spent on different aspects of them, will considerably depend on the extent of constitutional devolution to the elected local Overseas Territory Government or other officials. And each UKOT will present a variety of challenges at different times. However, the following personal qualities would all always be virtually essential:
self-reliance;
resilience;
strategic perspective;
sound judgment;
adaptability;
empathy;
ability, when necessary, to focus with palpable enthusiasm on the relatively trivial and/or ephemeral, never mind how many more important and/or urgent issues are lurking in the background;
teamwork skills and ability to influence;
communication skills (oral and written);
leadership;
resource management skills (staff and financial);
the calibre to demonstrate by actions, as well as words, support for the territory, its environment and people, without undermining HMG policies or priorities;
ability to seek good briefings on key issues (not necessarily just from official sources) and utilize them;
striving to act as if one would need to live the rest of one”s life in the territory (even though one will be there for only a few years)—with the consequences of one”s actions on the territory and UK;
enthusiasm to support aspects, such as environmental conservation, of long-term benefit to the territory but liable to be subordinated to short-term interests (a former governor has noted that even the minister with responsibility for the environment had other responsibilities—including commerce and tourism—where short-term political, financial/budgetary and economic interests repeatedly tended to override; so that, although responsibility for environmental conservation was essentially devolved to the local government, the governor”s was often the only voice in Cabinet prepared to question the environmental wisdom of a particular policy or decision);
an appreciation for the people of the territories and for different cultures;
knowing one”s way around the Whitehall machine and how to oil it; and
overall, honesty, integrity and readiness to be held to a higher standard, with a conscience about the environment and a general appreciation for different cultures.
M4. Fundamentally, it is essential that any Governor be able to take an independent and dispassionate strategic view of his territory”s economic, social and environmental interests and to represent that as necessary (even where constitutionally it is strictly not his business), not only to his elected government and the local public but also to the responsible authorities (not just FCO) in Whitehall and to members of the UK parliament.
M5. Conversely, the following undesirable qualities are to be avoided:
Unwillingness to ask for help in areas where he/she is inexperienced (eg auditing the budgets of government departments run by locally elected politicians; planning and environmental impact legislation)
Enjoying being treated with deference (developing an inflated sense of entitlement and self-importance)
Having a spouse or partner who tries to steer the job. This is a tricky point to express in politically acceptable terms, but it has undoubtedly been a significant factor with several unsuccessful past Governors. If there is a spouse or partner, this is a factor to be considered. Equally, supportive spouses, often with their own distinctive skills and experience to contribute both in support of the Governor and of local civil society and UKOT government organisations, have been a major factor with several outstandingly successful Governors/Administrators.
Having a tendency to ride personal hobby-horses, since this easily leads to unbalanced priorities, forfeiting local respect and frustrating staff in the Governor”s office
A weakness for extramarital sexual proclivities or alcohol. A Governor has a right to a private life, but should avoid overly amorous or excessively drink-influenced behaviour and inappropriate language in public situations. Sadly, this is not invariably the case.
A readiness to change, or not resist change to, laws with no regard for the island/territory, leaving the territory (and UK) to clean up after his/her departure.
M6. Relevant past experience is highly desirable. This could include roles such as:
a desk-officer or more senior FCO post in relation to UKOTs;
experience (in FCO, other departments or relevant outside bodies) in relevant specialist contexts, such as environment, legal, security/intelligence, support to Ministers and senior official committees;
experience as an Ambassador or High Commissioner (although a Governor, unlike a normal Head of Mission, has no resident EU, NATO or other peers with whom privately and urgently to discuss matters when crisis or disaster strikes).
M7. In the absence now of a Colonial Service, an appropriate mix of experience in the FCO is likely to be a good background for a Governor, not least because it is important that a Governor has enough experience of in-fighting within the FCO to be able to deal with the problems of liaising via inexperienced desk officers and sometimes being bullied or ignored by an unsympathetic Director or acting Director of Overseas Territories (and the equivalents in DfID for territories where it likes to call the shots). However, one should not consider this as the only background. There have been outstanding Governors who came from non-FCO backgrounds, as well as some Governors and Administrators with FCO backgrounds who have proved disastrous.
M8. Although a posting as Governor is sometimes appropriate for a senior FCO officer approaching retirement, it should never be a place to park someone who is known to be “difficult” to place (“I don”t want X to be Ambassador in any country that I”m dealing with from London!”). One problem in the senior management of FCO, and consequently of understanding at top policy level, is that direct experience of UKOTs is extremely rare. It seems that some appointments of younger governors in recent years may have been intended to overcome this; the governors might have gone on to top posts in their later appointments. However, these attempts do not so far seem to have achieved this end. The Governor”s role is so different from most FCO posts that it may be quite difficult for even a successful younger Governor to get back into the mainstream after leaving his/her UKOT. Indeed, there are some signs that doing the job well may have to cut across FCO norms so much that it then becomes less likely that such persons will reach top levels in FCO.
M9. Nevertheless, the personal qualities outlined in the earlier part of this section are key.
N. Some further Aspects on Funding
N1. As noted in earlier evidence, the different funding mechanisms by FCO, DFID and DEFRA have been combined in a new programme “Darwin Plus.” In our oral evidence, we mentioned that we do have some reservations about Darwin Plus, and noted the further move away from the constructive shared-responsibility approach that used to dominate the funding approach by HMG.
N2. In our earlier written evidence, we expressed concern also that funding was moving away from small projects (especially important for NGOs), despite their excellent track record. We now have further information which indicates that this concern was justified. The following tabulation shows the number of grants in a range of size-classes awarded for environmental projects from 2004 to 2013. The grants from 2004 to 2011 were by the FCO/DFID Overseas Territories Environment Programme (OTEP). (Data are not available for the 2005 round.) There was no invitation for bids for a round in 2012. 2013 was the first round of awards by Darwin Plus.
|
Grants |
Number of grants awarded in the size ranges (£k): |
|||||
|
awarded in: |
<25 |
25–75 |
75–125 |
125–175 |
175–225 |
>225 |
|
2004 |
7 |
4 |
6 |
1 |
0 |
1 |
|
2006 |
5 |
8 |
1 |
0 |
0 |
0 |
|
2007 |
6 |
22 |
4 |
0 |
0 |
0 |
|
2008 |
3 |
3 |
5 |
0 |
0 |
0 |
|
2009 |
2 |
7 |
6 |
0 |
0 |
0 |
|
2010 |
1 |
7 |
3 |
2 |
1 |
0 |
|
2011 |
2 |
7 |
2 |
4 |
1 |
1 |
|
2012 |
0 |
0 |
0 |
0 |
0 |
0 |
|
2013 |
2 |
2 |
5 |
2 |
3 |
5 |
N3. It is evident that there has been a decline over the years in grants of <£25k & £25k-75k, with very few being made by Darwin Plus.
N4. During the course of providing oral evidence, there were some questions in relation to financing biodiversity conservation and in particular the EU BEST initiative. We would like to go into a little more detail than was possible during the EAC meeting. There has been, and still appears to be, some confusion over BEST. Its origins lie in discussions between UKOTCF and its partner umbrella organisations in the Netherlands and France (linked as “Bioverseas”) with the European Commission about consideration of a voluntary scheme in the OCTs (Overseas Countries and Territories, including UKOTs) to match the system of Natura 2000 and related processes within the EU. This idea was later taken up by the Commission at a conference in Reunion in 2008 and subsequently promoted within the European Parliament by Maurice Ponga MEP and colleagues.
N5. This led to the release of an initial tranche of €2 million from the EDF for allocation by DG Environment for a preliminary exercise, which was called BEST. This had the intention of showing the need for such funding on a permanent and larger scale. Since then there has been a second tranche and a call has been made for a third tranche with a deadline of 9th September 2013. This, however, is not an open call for proposals as were the first two but through an open call for tender with 2 LOTs aiming at one or two service contracts for four years on “Measures towards sustaining the BEST Preparatory Action to promote the conservation and sustainable use of biodiversity and ecosystem services in EU Outermost Regions and Overseas Countries and Territories”. This has the stated aim of covering all ORs (Outermost Regions, ie remote parts of the Member State, rather than Territories) and OCTs with a need for partnerships, collaboration, solidarity and clever networking; synergy and complementarity with on-going initiatives.
N6. Much of the confusion is in what purpose lies behind the funding which has been exacerbated by imprecise language from the European Commission, the personnel of which persistently referred to BEST as an active process when in fact it was a preliminary exercise (a sort of pre-BEST) to promote the establishment of BEST. Sadly, both tranches of funding, aside from that to IUCN to promote the need for BEST, were allocated to one-off projects and not to those that would provide sustainable outcomes. Also the first tranche was the subject of much criticism when all the awards relevant to specific territories were allocated to proposals led by French outermost regions or OCTs—in what the European Commission described as a fair and balanced outcome (and two other projects led by international bodies with no on-the-ground involvement). Many, including UK interests most certainly did not see it as “fair and balanced”. It should be noted also that several of those projects funded were in territories eligible for other EU funds to which UKOTs are not. A review of the outcomes showed some ongoing issues and a very fundamental difference in the way BEST was considered within DG Environment. The main issues were:
Despite this supposedly being a simplified application procedure, it took a huge amount of time to prepare and ended up with an application which, in paper form, was the size of a London telephone directory.
It was clear that those territories that dealt with the Commission on a regular basis had far greater knowledge of the processes and procedures in form-filling and making applications. By and large the outermost regions also had considerably great capacity than others especially including the UKOTs.
There was, and continues to be, a lack of transparency in the decision making process on BEST applications, decisions being apparently made in-house by officials with little knowledge of OCTs.
Although these early tranches were initially perceived to be precursors to a much larger and bigger funded process, it became clear that DG Environment personnel were not interested in running such a scheme as they did not consider themselves fund managers. Instead, they promoted the idea of BEST as being some sort of coordinating mechanism for existing funds, such as Regional funds. This means that pre-BEST would become converted into a virtual BEST. As UKOTCF has pointed out to the Commission, this would be of no use to the UKOTs as they are not eligible for such funds.
N7. This put more pressure on proposals, also apparently resisted within the Commission, to expand LIFE + funding to encompass the OCTs. While this would be worthwhile as any additional funding for environmental projects in the UKOTs would be welcome, it should not take the place of a BEST equivalent. Also, as it would be open to competition from countries much nearer to home, it would be unlikely to provide very significant funding. Current proposals would provide 0.3% of the EU budget while NGOs have proposed that 1% is required as a minimum. Further, the proposals place new restrictions on elements available to applicants, further limiting their usefulness.
N8. We would like to draw attention also to the differences in scale with respect to funding. As regards financial support for biodiversity conservation, ORs are eligible to receive funding within the overall EU financing framework established to support conservation and sustainable use of biodiversity within the Community. During the current funding period (2007–13), a number of Community funds, including the EU funds for rural and regional development, (eg the European Structural Funds (European Regional Development Fund (ERDF) and the European Social Fund (ESF)), the Cohesion Fund, the European Agricultural Fund for Rural Development (EAFRD) and the European Fisheries Fund (EFF)) provide possibilities to support the protection of biodiversity. The implementation of the EU policy on cohesion and regional development is supported by a number of Community funds, namely the EU Structural funds (ie, the ERDF and the ESF) and the Cohesion Fund. Among other things, these funds also provide possibilities for financing initiatives and projects aimed at implementing the EU Biodiversity Action Plan, including the Natura 2000 Network. In addition, the ORs are entitled also to receive funding from the LIFE+ fund that specifically supports environmental and nature conservation projects within the EU. As for the OCTs, funding for biodiversity conservation can be provided as a part of the general EU framework for development cooperation (EDF) and financial assistance to these countries. The current EDF funding period covers years 2008–13 and provides an overall budget of EUR 22,682 million. Of this, EUR 286 million is earmarked for cooperation with the OCTs. Under the 11th EDF, OCTs have a budget of €343.4 million. This is allocated against a plan which can have only one sectoral priority and that is rarely the environment. The Outermost Regions will receive €7.8 billion in Community investment over the period 2007–13 with €4.5 billion coming from the European Regional Development Fund. Clearly, not all of this is available for environmental projects but the amount does show the scale of differences in what is available, by comparison to the OCTs (including the UKOTs). In the proposed budget for 2014–20, €0.9 billion has been allocated from the structural funds for outermost regions. By contrast, the amount available for BEST has been three tranches of €2million with the future not looking optimistic. Also by contrast is the allocation of ERDF funds of €3.37 million in 2011 to “Redevelopment of Capelinhos Lighthouse—Interpretation Centre” project, which aimed to develop the site as an historical, environmental and sustainable tourist attraction.
N9. It is worth recalling also the difficulties and costs of securing grants from even those EU budgets available to UKOTs. Many UKOT partners need help in making the complex applications. For example, UKOTCF (at the request of territories and FCO) co-ordinated an application for the current MPASSE project on Management of Protected Areas to Support Sustainable Economies (MPASSE). This part-supports work in the Cayman Islands, the British Virgin Islands, and the Turks & Caicos Islands on conservation and interpretation. This took 7 years of unpaid work by UKOTCF while the European Commission considered the application, appointed consultants to help in that assessment (but did not penalise these for making mistakes which caused major problems and unnecessary costs to the applicants), and finally issued contracts. A further error by the Commission reduced the grants available to the territory partners and especially UKOTCF. The Commission also noted that its own procedures were so complex that it insisted on diverting much of the original budget to employ further consultants to deal with these (in addition to the administrative work covered by UKOTCF and the territory partners). The costs of the administrative consultant (not including the costs of at least three other consultants employed by the Commission in respect of this relatively small project) proved to be more than the grant for conservation work by each of the partners.
O. Raising Awareness in Britain of the Importance of its Overseas Territories
O1. All UKOTs are different, but one can use a common framework, citing individual UKOTs, when seeking to spread awareness of the territories within the UK. UKOTCF has experience of this in working with different territories, for example in its conferences and regional working groups, as well as in facilitating strategy development.
O2. If the Ministry of Education were interested in being joined-up, it would be possible to include Overseas Territories in the National Curriculum—not to pack this further, but to use, for example, in biodiversity issues, as well as in human social diversity aspects.
P. Some reasons for UK Taxpayers to Support Environmental Conservation in UK Overseas Territories
P1. In the oral session on 17th April, we supplied some reasons why National Lottery funds should be available in practice, as well as in law, to work in support of conservation in UK Overseas Territories, but lack of time prevented our giving further reasons why UK taxpayers should support environmental conservation in these distant places. We committed to supplying supplementary evidence on this point.
P2. It is very important to note that the UK territories are not eligible for international aid (as they would be if they were independent). The international community assumes that UK supports its citizens in its sovereign territory—as do other nations (such as Denmark, France, the Netherlands, and the USA) with territories. For the same reason, the UKOTs cannot even access Global Environment Facility funds, to which UK taxpayers contribute in a major way. Why should UK taxpayers pay less to conservation in its own Overseas Territories than, say, to Indonesia?
P3. UK taxpayers already support DfID”s work in developing countries—why should UK citizens in UKOTs miss out?
P4. Are we a United Kingdom or not? A former colleague from the Outer Hebrides, who has worked in conservation in her islands, in England, and in UK Overseas Territories has said: “We in the Outer Hebrides know that we are subsidised in the Scottish and UK budgets, and you guys don”t seem to mind because of what we contribute to conservation etc. Why is it so different if the UK citizens live in UK islands a bit further away?”
P5. It is not really the case that UKOT people make no contribution to UK taxes. As they are British citizens, it is not surprising that, at any one time, substantial proportions of UKOT people are living and working in UK, paying taxes and contributing in other ways. Whilst the proportion is low from some territories, for others it reaches about 40% of the total population.
P6. As noted earlier, UKOTs are effectively excluded from grants from the National Lottery—unlike the Dutch territories, which receive grants from the Dutch Postcode Lotterij.
P7. By far the greatest biodiversity for which UK is responsible globally is in the Overseas Territories. UK answers internationally for its territories. It has accepted responsibility for this biodiversity. As this Committee and the Foreign Affairs Committee have previously recognised, it is beyond the financial capacity of the small communities in the territories to cover the relevant costs. It would be ridiculous to expect the 42 Pitcairn Islanders to provide the resources and human skills for the management of the Henderson Island World Heritage Site; similarly for the 250 Tristan Islanders to be expected to fund the Gough and Inaccessible WHS, containing possibly the world”s most important seabird colonies. The same point applies, in varying degrees, to other UKOTs.
P8. The economies of many UKOTs depend on their special environments—fishing, tourism, storm protection, etc. So, if UK supports sustainable development and conservation, this assists the UKOTs to become less reliant on central UK support—their economies can become stronger through establishing sustainable fisheries, increased sustainable ecotourism (a growing and high-value component of the tourist industry), and more resilience to severe weather damage, so decreasing the amount needing to be spent on eg after-hurricane recovery.
P9. The heritages of the UKOTs are closely intertwined with Britain”s heritage. Just a few of many examples are:
Explorers from Cook to Shackleton and South Georgia and the South Sandwich Islands;
The East Indies trade & Napoleon (as well as architecture) on St Helena;
Shakespeare”s The Tempest and Bermuda;
The Bounty and Pitcairn;
Gibraltar”s long military and naval history for Britain;
Pirates, Loyalists, and 100 years ago the best salt in the world, in the Turks & Caicos Islands;
Plantations to pop music recording in Montserrat.
8 June 2013