Sierra Club Amicus Curiae
April 11, 2010 | The Legal Case
Filed by Simons Muirhead & Burton, 8-9 Frith Street, London W1D 3JB
All references in this document in the form (p.xxx) are references to page numbers of the Environmental Impact Plan at pages 2461 to 2631 at Volume 5 in the Record.
The Sierra Club respectfully requests that the Lords of the Judicial Committee of the Privy Council accept this Amicus Curiae submission in support of the appeal on behalf of Save Guana Cay Reef Association Ltd. (SGCRA), Aubrey Clarke, and the concerned inhabitants of Great Guana (Appellants).
The Sierra Club, a California non-profit corporation with more than one million members, was founded in 1892. It has chapters in both the United States and Canada, and its environmental interests are international in scope. The Sierra Club’s International Committee, and its Coral Reef Working Group, have followed the Great Guana Cay issue since 2005, after being contacted by individuals from both Save Guana Cay Reef Association Ltd, and Discovery Land Company.
Guana Cay case is of more than local significance
We have submitted our amicus curiae brief because we believe the outcome of this case is of more than local significance. As this case illustrates, the courts serve as a last resort for ordinary citizens directly affected by decisions made by central governments striking bargains with faraway developers. It is crucial that the Privy Council affirms the rights of those who would be most affected by proposed developments to be fully informed of all aspects of such developments, including potential or likely environmental and social impacts, early enough in the process to affect decision making. The process followed at Guana Cay precluded the consideration of alternatives to the Development that would have been of a more appropriate scale, and pose less of a threat to its coral reefs.
Coral reef and related ecosystems are under threat worldwide
We are concerned over the rapid and well-documented decline in the health of coral reefs in recent years, including the reefs of Florida, parts of the Bahamas, and the Caribbean (e.g., 1). This decline can be attributed to a combination of factors, including mortality of reef organisms, ranging from the global increase in sea surface temperatures that can result in mass bleaching events (e.g., 2), to region-wide outbreaks of disease (e.g., 3), and local overfishing (e.g., 4) or pollution (e.g., 5). Impacts from global climate change will continue for at least the next 30-50 years even under the most optimistic climate scenarios and high temperatures may also facilitate disease outbreaks (e.g., 6), but communities can control the local impacts of overfishing and pollution.
Common land-based sources of pollution include sedimentation (e.g., 7) from dredging and earth moving operations, increases in nutrients (e.g., 5, 8), toxic chemicals like herbicides (e.g., 9), pesticides (e.g., 10) and heavy metals (e.g., 11) from sewage, golf courses and similar sources. Local sources of pollution from marina operations include boat bottom paints, (e.g., 12), heavy metals (e.g., 11), oil and fuel spills, and runoff from boat washing and maintenance activities (e.g., 13).
The Development at Guana Cay incorporates all the aforementioned types of local, pollution-related stressors that can deteriorate coastal water quality and degrade mangrove forests and seagrass meadows (e.g., 14) as well as coral reefs. The integrity of these ecosystems is important to the local residents who rely on their continued presence and health for storm protection, diving tourism revenues and seafood. Tropical marine ecosystems are part of a global natural heritage that is under severe siege. When even Belize’s Great Barrier Reef is added to the List of World Heritage for being in danger from the cutting of its mangroves and sale of mangrove islands (15), the natural resources at Guana Cay increase in importance, as does the need to assure that future developments in coastal areas avoid or minimize local sources of damage to these highly productive and biodiverse ecosystems (e.g., 16).
Local communities confront mega-developments backed by central governments
The Development at Guana Cay fits a pattern that has become all too familiar in lightly populated, undeveloped areas fortunate enough to have coral reefs. These have attracted “mega-developments” that typically involve removal of mangroves and dredging to create marinas, land forming to create golf courses, construction of resorts and vacation homes, and creation and maintenance of waste water treatment plants, generators, roads, and other required infrastructure. These developments occupy large tracts of land, and are often sited in areas where residents are few and not well organized.
The global trend toward mega-developments, and the threats posed by this trend, are well summarized in the following statements from Tourism Concern, a non-governmental organization based in London [Attachment A]:
“The global trend in developing luxury, large-scale resorts is leading to widespread alienation and displacement of people from their land, and is wreaking havoc with fragile ecosystems. Poor communities in developing countries, which depend heavily upon their natural resources for their livelihoods, are the hardest hit.
Huge tracts of public and privately owned land are being ‘grabbed’ and sold off to real estate developers by governments keen to expand tourism in pursuit of economic growth. In reality, little of the profit from internationally managed resorts stays in the local economy. The trickle down of tourism revenue to those who have lost their homes and livelihoods is minimal, particularly in the face of rising living costs associated with an influx of tourists and owners of expensive second homes. Cheap migrant labour is often drafted in from abroad to work on the developments, while opportunities for employment in the exclusive five-star resorts are limited to the most menial, poorly paid roles.
Patricia Barnett, Director of Tourism Concern says: “The development of mega-resorts and all the social and environmental problems that go with them is an issue facing communities from Scotland to Bulgaria, from Spain to the Bahamas, India to Thailand. Tourism has to be developed in a more sustainable, transparent and democratic way. That means listening to the needs of local people and the environment, and demands an abandonment of the ‘economic growth at all costs’ attitude that is seeing communities dispossessed of their homes and their means of earning a living the world over”
When communities are fully informed of potential social and environmental impacts from proposed large-scale developments, and have a meaningful opportunity to participate in the review and approval processes required for those developments, they reject the proposed development or choose lower scale alternatives.
The specific case of Guana Cay
While Sierra Club views the Guana Cay case as representative of a wider problem in the region, we are also concerned with the specifics of this case, including the applicable remedies. The environmental threats from the Development come from two main sources: construction and operations. The construction phase includes dredging, removal of mangroves and other vegetation, and portions of that phase have been completed. There is still time, however, to avoid the environmental risks of further construction activities, and the environmental risks of operations, especially those associated with the golf course and marina.
Environmental risks from golf course operations:
As the Risk Report (17) states in the Section titled “The Golf Course problem and the marine environment in general”:
“It is, however, impossible to grow grass without water, and impossible to grow golf course grass without fertilizer. No matter how well the use of these two is monitored, some will inevitably escape to the sea. The use of organic fertilizers will delay but not halt the nutrient release.”
In that Section, Dr. Risk reached the overall conclusion that:
“Because of the extraordinarily high porosity and permeability of the carbonate sands on the island, any runoff from the golf course will be transmitted rapidly down the length of the island. At the site of the proposed golf course, there are excellent reefs a few 10's of metres from the shore-this is a situation not found in many areas. Nutrient effects on reefs have been traced for more than 15 km. Runoff from the golf course will likely be a death sentence to the adjacent reefs, and a threat to reefs the length of the Cay”.
The golf course has not been completed, and is not in operation. Operation of the golf course poses environmental risks, as identified by Dr. Risk. The residents and landowners of Guana Cay therefore should be consulted to determine whether or not the proposed golf course is appropriate and whether or not it should be completed and allowed to operate.
Environmental risks from marina operations:
As we understand the factual situation, the marina has been opened and is currently in operation. Given the environmental risks associated with operation of the marina, the residents and landowners of Guana Cay should also be consulted on the matter of risks of its continuing operation. These risks potentially include the following: oil and hazardous waste spills; storm conditions causing the release of fuel, oil, chemicals and recyclables; fires; contaminated bilge water and discharges; incorrect oil/fuel mixtures for two-cycle outboard engines; improper fuel waste disposal; improper disposal of used oil and oil filters; improper boat washing materials and practices; introduction of invasive plant species attached to boat hulls; “prop dredging” from operating vessels in shallow waters; improper liquid and solid waste management; improper disposal of used batteries; chemicals from boat painting operations; toxic materials from sanding, sandblasting and hull scraping activities; engine repairs and maintenance (13).
Failure to provide results of environmental monitoring to stakeholders
The Environmental Impact Assessment (EIA) (18) correctly identifies numerous environmental risks from the proposed development, while also proposing (Chapter 6) various mitigation measures for addressing those risks. Further, Chapter 9 of the EIA states that an Environmental Management Plan (EMP) will be developed, to include monitoring programs consisting of three sections: (a) pre-construction, (b) during construction, and (c) post construction. Impact matrices and ‘score cards’ will be used to gauge and measure adherence to monitoring goals and objectives (p. 2590).
The EIA (p. 2593) states the following:
“Incident Management and Reporting
With the Great Guana Cay Foundation, the Environmental management team will work
to develop strategies and scope of work for implementing:
• Educational outreach programs and training programs
• Clear management and project communications and reporting
• Independent reporting and verification
The course of development, the results of the monitoring programs and any incidental occurrences will be documented on a regular basis. Information gained and processed will be reported directly to all necessary government agencies and stakeholders. A defined liaison will be identified with this responsibility”
Certainly the residents and landowners of Guana Cay qualify as “stakeholders” in the issue of the quality of their own environment, and as persons to be fully informed of the successes, and failures, of the mitigation measures proposed in the EIA. Yet, they have not received any reports of the results of the monitoring programs, or any documentation of incidental occurrences, as described above. Also, no such reports have been posted on the Great Guana Cay Foundation website, SaveGuanaCay.com, despite the following statement on the website: “This web site presents information on the Bakers Bay Environmental Impact Assessment and the Environmental Management Programme.” The website does contain a copy of the Bakers Bay EIA, but does not contain the EMP, or any monitoring or incidental occurrences reports.
At this juncture, the residents and landowners of Guana Cay deserve accurate and current information so they can be informed not only of any impacts that have occurred from construction activities to date, but also any impacts occurring from ongoing operations at the Development, including operation of the marina. The EIA promised such information, and the Respondents should be required to provide it.
Requirement for environmental mitigation measures
We request that the Privy Council’s ruling should require that the Respondents take necessary measures to prevent or mitigate any environmental harm that might arise from decisions to halt further development or otherwise alter activities currently underway at the Development.
In conclusion, we urge the Privy Council to rule in favor of the Appellants, thereby upholding their rights to full and informed participation in the decision making affecting their lives and the environment to which they are so closely linked. Such ruling will not only benefit the residents and landowners of Guana Cay, but also will provide an important precedent for protecting the rights of other residents and landowners throughout the Bahamas and the Caribbean. And we are confident that those residents and landowners will, when afforded the opportunities, choose development alternatives appropriate in scale to their environments, and protective of coral reefs and other natural resources that are part of the global heritage.
Chair, International Action Team
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2. Manzello, D.P., R. Berkelmans, J.C. Hendee. 2007. Coral bleaching indices and thresholds for the Florida Reef Tract, Bahamas and St. Croix, US Virgin Islands. Marine Pollution Bulletin 54: 1923-1931.
3. Weil, E. 2004. Coral Reef Disease in the Wider Caribbean. Pp. 35-68 in E. Rosenberg and Y. Loya (editors), Coral Health and Disease, Springer-Verlag, Berlin, Germany, 488 pp.
4. Newton, K., I.M. Côté, G.M. Pilling, S. Jennings, and N.K. Dulvy. 2007. Current and future sustainability of island coral reef fisheries. Current Biology 17: 655-658.
5. Dubinsky, Z. and N. Stambler. 1996. Marine pollution and coral reefs. Global Change Biology 2: 511-526.
6. Baker, A.C., P.W. Glynn, B. Riegl. 2008. Climate change and coral reef bleaching: An ecological assessment of long-term impacts, recovery trends and future outlook. Estuarine, Coastal and Shelf Science 80: 435-471; Riegl, B., A. Bruckner, S.L. Coles, P. Renaud, and R.E. Dodge. 2009. Coral Reefs-Threats and conservation in an era of global change. The Year in Ecology and Conservation Biology, 2009. Annuals of the New York Academy of Science. 1162: 136-186.
7. Rogers, C.S. 1990. Responses of coral reefs and reef organisms to sedimentation. Marine Ecology Progress Series 62: 185-202; Fabricius, K. 2005. Effects of terrestrial runoff on the ecology of corals and coral reefs: review and synthesis. Marine Pollution Bulletin 50: 125-146.
8. Weber, M., C. Lott and K.E. Fabricius. 2006. Sedimentation stress in a scleractinian coral exposed to terrestrial and marine sediments with contrasting physical, organic and geochemical properties. Journal of Experimental Marine Biology and Ecology 336: 18-32.
9. Negri, A.P., C. Vollhardt, C. Humphrey, A.J. Heyward, A.J., R. Jones, G. Eaglesham, and K.E. Fabricius. 2005. Effects of the herbicide diuron on the early life history stages of coral. Marine Pollution Bulletin 51: 370–383; Cantin, N.E., A.P. Negri, and B.L. Willis. 2007. Photoinhibition from chronic herbicide exposure reduces reproductive output of reef-building corals. Marine Ecology Progress Series 344: 81-93.
10. Glynn, P.d., A.M. Szmant, E.F. Corcoran, S.V. Cofer-Shabica. 1989. Condition of coral reef cnidarians from the northern Florida reef tract: Pesticides, heavy metals, and histopathological examination. Marine Pollution Bulletin 20: 568-576; Markey, K.L., A.H. Baird, C. Humphrey, and A.P. Negri. 2007. Insecticides and a fungicide affect multiple coral life stages. Marine Ecology Progress Series 330: 127–137.
11. Reichelt-Brushett, A. J. and P. Harrison. 2005. The effect of selected trace metals on the fertilization success of several scleractinian coral species. Coral Reefs 24: 524-534.
12. Negri, A. and A. Heyward. 2001. Inhibition of coral fertilization and larval metamorphosis by tributyltin and copper. Marine Environmental Research 51: 17-27; Owen, R., A. Knap, M. Toaspern, K. Carberry. 2002. Inhibition of coral photosynthesis by the antifouling herbicide Irgarol 1051. Marine Pollution Bulletin 45: 623-632.
13. Florida Clean Marina Program, 2003. Florida Department of Environmental Protection, 3900 Commonwealth Blvd, Tallahassee, FL 32399-3000.
14. Duke, N.C. A.M. Bell, D.K. Pederson, C.M. Roelfsema, S. Bengston Nash. 2005. Herbicides implicated as the cause of severe mangrove dieback in the Mackay region, NE Australia: consequences for marine plant habitats of the GBR World Heritage Area. Marine Pollution Bulletin 51: 308-324; Orth R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck Jr., A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, S.L. Williams. 2006. A global crisis for seagrass ecosystems. Bioscience 56: 987-996.
15. IUCN, 2009. World Heritage in Danger. See: http://www.iucn.org/?3450/Belize-barrier-reef-and-Los-Katios-park-in-danger.
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17. Risk, M.J. 2004. Report on Proposed Development, Guana Cay, Bahamas. 16 unnumbered pp.
18. Environmental Impact Plan, pp. 2461-2631 at Volume 5 in the Record of Proceedings Appeal No. 74 of 2006.
Press Release: TOURISM CONCERN CALLS FOR HALT ON CONSTRUCTION OF MEGA-RESORTS 03/09/09
”Campaigning organization Tourism Concern is calling for a halt to the construction of tourism mega-resorts, claiming that they are destroying communities and are environmentally unsustainable.
The global trend in developing luxury, large-scale resorts is leading to widespread alienation and displacement of people from their land, and is wreaking havoc with fragile ecosystems. Poor communities in developing countries, which depend heavily upon their natural resources for their livelihoods, are the hardest hit.
Huge tracts of public and privately owned land are being ‘grabbed’ and sold off to real estate developers by governments keen to expand tourism in pursuit of economic growth. In reality, little of the profit from internationally managed resorts stays in the local economy. The trickle down of tourism revenue to those who have lost their homes and livelihoods is minimal, particularly in the face of rising living costs associated with an influx of tourists and owners of expensive second homes. Cheap migrant labour is often drafted in from abroad to work on the developments, while opportunities for employment in the exclusive five-star resorts are limited to the most menial, poorly paid roles.Patricia Barnett, Director of Tourism Concern says: “The development of mega-resorts and all the social and environmental problems that go with them is an issue facing communities from Scotland to Bulgaria, from Spain to the Bahamas, India to Thailand. Tourism has to be developed in a more sustainable, transparent and democratic way. That means listening to the needs of local people and the environment, and demands an abandonment of the ‘economic growth at all costs’ attitude that is seeing communities dispossessed of their homes and their means of earning a living the world over”. For example, despite fierce public opposition, the development of the sprawling Bimini Bay Resort on the tiny island of North Bimini in the Bahamas has caused irreparable damage to the marine ecosystem, which local people depend upon for their livelihoods. A scandal is now raging in Mexico, where migrant workers brought in to work on the resort’s construction claim that they were underpaid, poorly treated and had their passports confiscated to prevent them from leaving. On the West Indian island of Grenada, the government has sold off state land for a luxury development spanning 400 acres and including 170 private villas, a private island, a golf course and marina. The resort will also incorporate part of the Mount Hartman National Park, despite it being a protected area and the last remaining habitat of the rare Grenada dove. Local people are angry about the lack of public consultation and say that no compensation has been paid to the rightful owners of the land. The appropriation of agricultural land and marine areas for tourism in developing countries is also a causing alarm amongst local people. Here, entrenched poverty means that many face hunger on a daily basis. Efforts to alleviate this are being undermined by the conversion of agricultural land and loss of access to the sea to facilitate the construction of resorts, second homes and golf courses. Climate change is placing a further, unprecedented strain on natural resources, particularly fresh water for drinking and agriculture. “The needs and rights of local communities are being pitched directly against those of mega-resorts, with the resorts winning out almost every time. Golf courses, landscaped gardens, swimming pools and showers all consume vast quantities of water, much more than the local communities, who often have to walk a considerable distance to fetch water that is barely drinkable”, says Barnett. Governments and developers regularly espouse ‘responsible tourism’ policies, covering issues such as sustainability, community participation and damage to the environment. However, all too often this amounts to little more than a marketing tool to win popular support and attract tourists. Tourism Concern has joined with campaigning groups from all over the world to call for a moratorium on the construction of mega-resorts and in support the ‘Declaration of Belém’. Issued at the World Social Forum in Belém do Pará, Brazil, the Declaration presents an alternative vision of the future of global tourism, and urges for more just and sustainable practices on the part of industry and governments.”