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Coastal Infrastructure Design, Construction and Maintenance The University of the West Indies Organization of American States PROFESSIONAL DEVELOPMENT PROGRAMME: COASTAL INFRASTRUCTURE DESIGN, CONSTRUCTION AND MAINTENANCE A COURSE IN COASTAL ZONE/ISLAND SYSTEMS MANAGEMENT CHAPTER 12 LEGISLATIVE ENVIRONMENT AND POLICY By CHRISTINE TOPPIN-ALLAHAR Attorney at Law, and Part-Time Lecturer, Faculty of Engineering The University of the West Indies, St. Augustine Campus, Trinidad, West Indies Organized by Department of Civil Engineering, The University of the West Indies, in conjunction with Old Dominion University, Norfolk, VA, USA and Coastal Engineering Research Centre, US Army, Corps of Engineers, Vicksburg, MS , USA. Antigua, West Indies, June 18-22, 2001 Legislative Environment and Policy 12-1 By: Christine Toppin-Allahar Coastal Zone/Island Systems Management CDMC Professional Development Training Programme, 2001 1.0 INTRODUCTION Small island developing States (SIDS), such as the Organisation of Eastern Caribbean States (OECS) countries, were recognised in AGENDA 21, the action plan adopted by the international community at the United Nations Conference of Environment and Development (UNCED), the Earth Summit held in Rio de Janeiro in 1992, as “a special case both for environment and development”, and it was noted that SIDS “have all the environmental problems and challenges of the coastal zone concentrated in a limited land area.”1 This perspective was developed further in the Programme of Action for the Sustainable Development of Small Island Developing States (SIDS-POA), adopted at the post-UNCED Global SIDS Conference, held in Barbados in 1994, which states that “Sustainable development in small island developing States depends largely on coastal and marine resources. Their small land area means that these States are effectively coastal entities.”2 Consequently, in relation to SIDS, the expression Island Systems Management (ISM) is preferred by some analysts to the expression Coastal Zone Management (CZM). Principle 11 of the Rio Declaration on Environment and Development proclaims that “States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.” With specific reference to CZM/ISM the SIDS-POA provides that, at the national level, SIDS should “Establish and/or strengthen, where appropriate, institutional, administrative and legislative arrangements for the development of integrated coastal zone management plans and strategies for coastal watersheds and exclusive economic zones and their implementation, including integration within national development plans.”3 The issue to be examined in this lecture is the extent to which the situation in the OECS countries complies with these imperatives, with particular reference to the subjects to be covered in the other lectures in the programme. 1 Legislative Environment and Policy 12-2 By: Christine Toppin-Allahar Coastal Zone/Island Systems Management CDMC Professional Development Training Programme, 2001 2.0 EXISTING LEGISLATION 2.1 Land Use Planning All of the English-speaking countries and dependent territories in the Commonwealth Caribbean have legislation that deals with land use planning, based on British Town and Country Planning legislation.4 These enactments provide for the preparation of development plans, the implementation of such plans and their revision to ensure that they do not become obsolete. In varying degrees, they also make provision for public participation in the planning process. Additionally, they provide for development control, via the grant or refusal of permission for development projects, in accordance with the prescriptions of land use plans. This legislation has been in place in most of these countries for decades, however, it is evident that it has not produced the desired results. Land use plans have been prepared for all the OECS countries. However, planning has been described as an activity which has been marginalised in the region, as land use plans have played an insignificant role in the development process and the major developments which have taken place have been carried out without reference to the guidelines set out in these plans.5 Indeed, in many islands, it is difficult even to locate copies of the existing plans. Except in Barbados, in the cases where plans have been prepared, there has been a failure to ensure that land use plans are revised and remain relevant to contemporary needs. This is illustrated by the scant mention of the prescriptions of land use plans in legal cases relating to the enforcement of land use planning controls in the Caribbean.6 One of the reasons for this, in most of the OECS countries, has been the effective abandonment of the traditional Town and Country Planning legislation in favour of Land Development Control legislation, which is purely regulatory in nature. Under these enactments decision-making with respect to the control of development projects is placed in the hands of statutory boards, the membership of which includes persons from the private sector as well as from governmental agencies. In some cases, for example in Grenada, no provision was made for the continued administration of the Town and 2 Legislative Environment and Policy 12-3 By: Christine Toppin-Allahar Coastal Zone/Island Systems Management CDMC Professional Development Training Programme, 2001 Country Planning legislation after the introduction of the Land Development Control legislation, hence the land use planning legislation is de facto not in force although the legislation has not been repealed. In others, for example St. Lucia, express provision has been made for the Development Control Authority to continue to administer the pre- existing land use planning legislation, however, it has fallen into disuse nevertheless. In an era of dynamic change, the failure of planners to produce relevant and timely physical plans has done much to discredit the notion of physical planning. The causes of this failure are several, including a lack of institutional capacity and the mis-allocation of available resources between planning and development control activities, but is also due to a lack of political commitment to the process of land use planning in the region. For example, none of the plans that were prepared for the OECS countries in the mid-1970s were ever approved or explicitly endorsed by the political directorate.7 A significant effort to change this situation was launched in the 1990s via the United Nations Centre for Human Settlements (UNCHS) Environmentally Sustainable Land Use Planning and Sustainable Development Project. The project involved a programme of institutional strengthening in nine OECS countries,8 including the preparation of comprehensive model legislation and its adaptation to the needs of each jurisdiction, the strengthening of Physical Planning Units, by upgrading human resources and information systems, as well as technical assistance for the preparation of land use plans. The results of the UNCHS project varied between the OECS countries which received international assistance,9 however, the model legislation was customised for several jurisdictions, either by consultants employed under the project or by the beneficiary countries themselves. New land use planning legislation has subsequently been prepared for St. Lucia under the auspices of the United Nations Economic Commission for Latin America and the Caribbean (UNECLAC)10 and for Grenada on its own initiative.11 Although the strategy of simply customising the UNCHS model legislation has not been adopted in either 3 Legislative Environment and Policy 12-4 By: Christine Toppin-Allahar Coastal Zone/Island Systems Management CDMC Professional Development Training Programme, 2001 country, it served as one of the inputs to the legislative drafting process in both cases. The draft legislation in St. Lucia is the more innovative as it abandons the institutional arrangements which have become customary in OECS countries in favour of the placing responsibility for land use planning and development control in the hands of a line Ministry, as is the case in Barbados, whilst making provision for the democratisation of administration by means of the delegation of functions to branch offices to be served by advisory bodies representative of local interests. Enactment of the new legislation is said to be high on the Parliamentary agenda in both countries. 2.2 Environmental Impact Assessment (EIA) As defined in the major multilateral agreement on the subject, Environmental Impact Assessment (EIA) means “an examination, analysis and assessment of planned activities with a view to ensuring environmentally sound and sustainable development.”12 The regulatory framework for EIA at the national level exists against the background of hard and soft international laws relating to EIA. Notable amongst these is Principle 17 of the Rio Declaration on Environment and Development, which provides that “Environmental Impact Assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.” The SIDS-POA is replete with references to the need for EIAs to be undertaken, backed up by legislation, and for adequate
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