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The Royal Gazette
2nd July, 2012

Call for Premier to respond to Ombudsman’s concerns

By Owain Johnston-Barnes

The One Bermuda Alliance has called on Premier Paula Cox to respond to claims by the Ombudsman that she was pressured during high-level conversations.

Shadow Attorney General Trevor Moniz said in a statement yesterday: “Good governance needs strong leadership “Without it, there is little chance for the change Bermuda needs, little chance for civil servants to work for the best interests of Bermuda.”

Last year, Ms Brock launched an ‘own motion’ investigation into the handling of the Tucker’s Point Special Development Order (SDO).

The resulting special report, issued in May, claimed Government had acted illegally by failing to conduct an Environmental Impact Assessment before granting the SDO, in accordance to the UK Environmental Charter, signed by Government in 2001.

Minister for Planning, Environment and Infrastructure Strategy Marc Bean denied that Government acted illegally, saying the Charter was not legally binding and only “aspirational.”

He further called Ms Brock’s decision to launch an ‘own motion’ inquiry unusual, and questioned if the Ombudsman was biased.

In a report tabled on Friday in the House of Assembly, Ombudsman Arlene Brock said she felt the Government reaction to the report was ‘inadequate,’ in particular claims that the Environmental Charter signed by Government was not legally binding.

She further stated that she was pressured not to carry out the investigation.

“After announcing the investigation in April 2011, I endured six high-level conversations with three different persons over a four week period, during which I was asked, advised, cajoled and urged not to conduct it.”

She did not state who those people are, or what bodies they represented.

Responding to the story yesterday, Mr Moniz said that Bermuda should be very concerned about the Ombudsman’s statement, and that the issue underscored the fact that more than legislation is required for good governance.

“For good governance to succeed, it requires people in positions of power to honour and respect those whose job it is to keep us honest and in check,” Mr Moniz said.

“The Premier has made a big deal about pushing forward good governance measures to make sure ‘abuses will be a thing of the past,’ but we continue to see indications that questionable behaviours continue, regardless of her declaration that there will be ‘zero tolerance for behaviour and practices that do not accord with the highest standards of good governance.’

“We urge the Premier to address Ms Brock’s comments. People would like to know where she stands on the matter.”


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The Royal Gazette
30th June, 2012

Watchdogs should be left alone

By Tim Smith

Ombudsman Arlene Brock warned Government not to interfere with her future decisions as she lamented the pressure she faced over her Tucker’s Point SDO probe.

Ms Brock said she was asked, advised, cajoled and urged to scrap her investigation during six high level conversations with three different people after she announced her concerns over the controversial Special Development Order in April 2011.

But the Ombudsman insisted such pressure only made her investigate twice as vigorously, eventually issuing a scathing report criticising Government’s failure to conduct an environmental impact assessment (EIA) before granting the SDO.

And in a hard-hitting annual report tabled yesterday, Ms Brock noted the Auditor General came under similar pressure after suggesting public officials have not been held to account over the Kyril Burrows and Delcina Bean-Burrows scandal.

Both independent watchdogs should be left alone to do their jobs without fear of Government interference, said Ms Brock.

Fourteen months ago, Ms Brock launched an ‘own motion’ investigation into Government’s granting of an SDO for the Rosewood Tucker’s Point development, which protesters claimed intruded on an environmentally sensitive piece of land.

This May, she issued a special report concluding Government acted unlawfully by failing to carry out an EIA, a condition of the UK Environment Charter, which it signed in 2001.

Government reacted angrily, with Environment Minister Marc Bean questioning whether she was biased, arguing the Charter was not legally binding, and saying Ms Brock’s decision to launch an ‘own motion’ inquiry was peculiar.

In her Ombudsman’s message in yesterday’s report, Ms Brock said: “I found the Government’s response to our report to be inadequate. In particular, the denial that the Charter is a legally binding agreement flies in the face of: basic principles of international law; actual intentions during drafting of the Charter; statements made by Government itself in 2001 to 2003; and subsequent UK actions taken to implement and monitor the Charter’s commitments.

“In May 2012, I tabled a brief special report detailing these irrefutable truths.

“Now that the SDO reports are finalised, I can inform the Parliament and public that — if not for the protection of Bermuda’s 1968 Constitution — this investigation might not have been conducted at all.

“After announcing the investigation in April 2011, I endured six high level conversations with three different persons over a four-week period during which I was asked, advised, cajoled and urged not to conduct it.

“Finally, I was told ‘there is no value to this investigation’. A seventh conversation with three additional persons did not constitute pressure as it was merely to clarify that I did not intend to investigate the actual decision to grant the Tucker’s Point SDO.

“My jurisdiction to launch the investigation was and continues to be challenged despite an independent legal opinion from the UK supporting my jurisdiction.”

Ms Brock said this was the first time in six years she had experienced such pressure, and concluded it was a result of a fundamental misunderstanding or ignorance of the stature of independent oversight in a democratic society.

She continued: “Fortunately, the Constitution protects my independence to fulfill my statutory duties. Such pushback is an invitation to an Ombudsman to dig twice as broadly and twice as deeply.

“This experience provided assurance about the power of the Constitution to protect our Office when — to badly mix metaphors — the rubber meets the road and we hit a nerve.

“There is a lesson here: great care should be taken not to cross the line of interference with or direction to the independent oversight Officers of the Constitution, the Auditor General and the Ombudsman.

“It was troubling that the initial response to my draft report seemed intended to instruct me, ‘the better view may be to make recommendations without adverse findings.’”

In May, reflecting on a court case which showed Works and Engineering boss Kyril Burrows and his wife stole more than $500,000 over a period of five years, Auditor General Heather Matthews claimed civil servants would continue abusing public funds until Government officials finally start holding them accountable.

Yesterday, Ms Brock commented on Government’s response to that suggestion: “A recent public statement that, ‘Any concerns that the Auditor General might have would be best directed to the Financial Secretary or the Cabinet Secretary,’ was similarly out of order.

“The Constitution clearly states — with respect to both the Auditor General and the Ombudsman — that in the exercise of our functions, we ‘shall not be subject to the direction or control of any other person or authority’.

“There is a reason for this constitutional protection in the modern world of accountability. Oversight institutions must have absolute independence and capacity to shine a light where others may want to draw the blinds.”

Government was asked by this newspaper to comment on the Ombudsman’s remarks, but had not done so by press time last night.


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The Royal Gazette
20th February, 2012

Ombudsman’s independence


Ombudsman Arlene Brock has every right to launch investigations off her own bat if it is the public interest.

So Environment Minister Marc Bean was wrong to criticise her when he took her to task for her report on Government’s Special Development Orders last week.

Indeed, he looked desperate when he questioned her right, and when he suggested she could be biased.

The Minister, and this is a point all politicians should heed, would be better to focus on the merits of the debate and less on the personalities.

Indeed, Ms Brock has shown little sign of bias in her time as Ombudsman and the subjects she has tackled have been varied and that in itself suggests she does not carry a bias.

That she is not universally popular is neither here nor there; if she was, it would suggest she was not doing her job. It is a job where you make more enemies than friends.

Still, when an Ombudsman and other independent officials like the Auditor do decide to do a report on a subject of their own volition, it should be a serious matter.

Few would disagree that SDOs are a serious matter. Their widespread use in previous administrations led to the fear they were being abused.

The challenge, as has been pointed out in a letter today, is that the Ombudsman is not supposed to delve into areas of Ministerial discretion.

But Ms Brock is right to note that even though Bermuda’s planning rules do give Ministers wide discretion on both SDOs and planning appeals, Bermuda is also bound to the UK Environment Charter.

The Charter requires that an Environmental Impact Assessment be carried out when considering a major development, and there are also legal precedents for this.

There is an argument that Ms Brock should not be criticising civil servants for failing to ensure their Ministers were fully informed prior to making the decision,

Given the autonomy that Ministers had over SDOs, that may seem unfair. But in fact it gives civil servants a greater ability to carry out their responsibilities as independent and unbiased advisers, because they can now point not only to the need for EIAs under binding commitments made by the Bermuda Government, but also to the spectre of further criticism by the Ombudsman, a worrying thing for any politician.

In fact, SDOs are no longer able to be granted by the Minister alone acting at his or her discretion. They must now be approved by the House of Assembly, which is a welcome development.

But Ms Brock is right to say that this adds to the pressure on civil servants to ensure that legislators are fully informed before making a vote.

That Parliament must now approve the SDO is welcome, but in the House, such a decision will be a foregone conclusion if the governing party exercises the whip, as would be expected. On that basis the need for all MPs to be fully informed is even greater.

Ms Brock has done Bermuda a service by intervening in this case. Not only has she pointed out an omission in the Tucker’s Point SDO, but she has laid down a marker for the future.

It is not entirely clear what Ms Brock’s report means for the Tucker’s Point SDO. While she has stated she believes it was granted unlawfully and explained why, her report does not carry the force of law.

But it is open for concerned citizens to now challenge the decision in court. Given Tucker’s Point’s apparently parlous financial statute, that’s a risk in these recessionary times, but as a matter of principle, it would be worth seeing this point established in law.

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The Bermuda Sun
17th February, 2012

By Don Burgess

Ombudsman's office sets the standards

A representative of St Maarten’s Ombudsman’s office is visiting Bermuda’s Office for the Ombudsman for a week of training.

Bermuda Ombudsman Arlene Brock said:  “Patricia Phillips, the head of office for the new ombudsman office in St Maarten has come to our office to gain insight into our approach to our work.

“Our office is recognized as a leader especially in small jurisdiction ombudsmanship.

“We have advised other jurisdictions on how to set up small offices and the dynamics and pitfalls of working in small jurisdictions. Even in the large jurisdiction of South Africa, our Annual Reports have been used to train staff.”

“This will be the fourth time in just six years that a new Ombudsman or deputy from the Caribbean has come to Bermuda to be trained by us,” Ms Brock continued.

“In 2006, the Ombudsman for Turks and Caicos spent two weeks here; in 2009 the Deputy Ombudsman for British Virgin Islands and in 2010 the Ombudsman for Grenada each spent a week.

“Our office has developed a curriculum that gives each member of our small staff the opportunity to develop skills as trainers. Although tailored to the needs of each guest, the week generally covers statutory interpretation, complaint management, investigation and mediation skills, analysis, statistics, reports and ethics.

“In Ms. Philips’ case, we will also spend time on conference planning as next year St. Maarten will be hosting the Caribbean Ombudsman conference that Bermuda hosted in 2008.”

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The Royal Gazette
15th February, 2012

By Sam Strangeways

Brock: I was well within my rights to launch SDO probe

Ombudsman Arlene Brock has insisted she was entirely within her rights to launch an inquiry into special development orders (SDOs), despite Environment Minister Marc Bean describing her decision to do so as “peculiar”.

And she told The Royal Gazette it was widely recognised around the world that the power to launch “own motion” investigations was as an indicator of an independent ombudsman.

“When governments are upset, that does generally mean the Ombudsman is doing their job properly,” said Ms Brock.

The Ombudsman tabled a report in Parliament on her probe into SDOs on Friday.

A press release sent out by her office that day said Government “acted unlawfully” by failing to carry out an environmental impact study before the controversial Tucker’s Point SDO went before MPs.

Government must formally respond to the report, Today’s Choices: Tomorrow’s Costs, by May 1.

But Mr Bean issued a statement last Friday which said SDOs were the “purview of Ministers, the Cabinet and the Legislature” and it was “somewhat peculiar, therefore, that an Ombudsman would seek to enter into what is essentially a political process”.

Ms Brock said: “I don’t think I have sought to enter into a political process. I have looked into what the Civil Service does. That’s the law.”

She said her probe focused on the information gathered by civil servants before the Tucker’s Point SDO was tabled in Parliament.

Her conclusion was there was a collective failure on their part to ensure Bermuda met its international legal obligation to carry out an Environmental Impact Assessment (EIA).

The report details how Government challenged Ms Brock’s authority to “investigate the actions of civil servants that are intended to advise the Minister and Cabinet”.

But legal advice she obtained said information-gathering and analysis carried out by civil servants with a view to advising a Cabinet Minister was “not excluded from the Ombudsman’s jurisdiction”.

Ms Brock writes in her report: “An open, cogent EIA process would insulate civil servants from public criticism that they are bureaucratic and are intimidated by Ministers.”

She adds: “Given the nature of hierarchy, it would be all too human if a kind of ‘constructive intimidation’ is sometimes at work a civil servant may refrain from pressing a point that is contrary to what people more senior may appear to prefer.”

Mr Bean’s statement said “numerous assessments” were done prior to the SDO going to Parliament; Ms Brock said they were not given to her.

And the Minister said it was doubtful whether the results of the Ombudsman’s inquiry were “without bias” since it was based upon an ‘own-motion’ rationale, rather than a complaint from a member of the public.

Mr Bean said there were “no guidelines in Bermuda law” regarding such own motion inquiries.

Ms Brock responded: “There are no guidelines in any law for how the own-motion powers should be exercised anywhere in the world because the Ombudsman is supposed to be flexible and supposed to determine the process according to each case and as he or she sees fit.”

She cited the protection afforded her role as independent government watchdog in the Constitution, which states: “The Ombudsman shall not be subject to the direction or control of any other person or authority.”

Ms Brock was elected to the board of directors of the International Ombudsman Institute and is regional vice president for Latin America and the Caribbean.

“One of our tasks on that board is that we review applications for membership,” she said. “[To decide], we look at if it’s a constitutional appointment and we ask: does the Ombudsman have own-motion powers?

“That tells us that the Ombudsman is absolutely independent from political or any other interference. It’s becoming a good, modern tool but is also becoming key proof of independence.”

She has helped Ombudsman Ontario teach a course in other jurisdictions on how to conduct systemic investigations and said: “I think that speaks to a certain amount of respect for my capacity to understand these things.”

Ms Brock said she’d tried to ensure everyone in Bermuda understood her role, including by hosting meetings for overseas ombudsmen on the Island and ensuring the public had the opportunity to speak to them.

“I’m perfectly happy for someone to say to one of our colleagues ‘our Ombudsman doesn’t have a clue what she’s doing’ because I actually do have a clue what I’m doing,” she said.

She added the reason she launched her probe last April should be obvious: the “public furore and the allegations all around and all sides” regarding the Tucker’s Point SDO.

“An Ombudsman is neutral with respect to gathering the information but not neutral in recommending justice and fairness and good governance. That’s our job.”


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The Royal Gazette
11th February, 2012

Government 'acted unlawfully' on Tucker's Point SDO

By Sam Strangeways

Green campaigners have welcomed a finding from the Ombudsman that Government “acted unlawfully” by not conducting a required assessment of the environmental impact of developing Tucker’s Point resort.

Arlene Brock tabled a report in Parliament yesterday which said the study should have been done before legislators were asked to decide whether to grant a special development order (SDO) for the controversial hotel expansion on “one of Bermuda’s most environmentally sensitive pieces of land”.

The independent government watchdog said the lack of such an assessment meant there wasn’t a “robust and open information gathering process” and MPs approved the order without having all the information they needed.

Environment Minister Marc Bean hit back at the report last night, suggesting the Ombudsman may not have been entitled to launch her inquiry, describing her decision to do so as “somewhat peculiar” and questioning whether her conclusions were “without bias”.

But those who objected to the Tucker’s Point SDO said they were heartened and relieved by the review and its outcome.

Stuart Hayward, of Bermuda Environmental and Sustainability Taskforce (BEST), said: “The Ombudsman has put into unmistakable language and with irrefutable logic the reasons why inadequate information will most likely lead to a flawed decision.”

Jennifer Gray, executive director of Bermuda National Trust, said the Trust welcomed the report and its contents and commended Ms Brock for “providing Bermuda the opportunity to scrutinise the process of issuing special development orders”.

Ms Brock explained in her report that Bermuda was legally obliged to conduct an Environmental Impact Assessment (EIA) before approving any major development, since it signed up more than a decade ago to the UK Environment Charter.

She said such a study ensured “a thorough analysis of the risks posed” but legislators dealing with the Tucker’s Point SDO did not have the comprehensive information they needed to make an informed decision.

Her 88-page report, Today’s Choice: Tomorrow’s Costs, recommends a review of international obligations that bind Bermuda and EIAs for all major developments.

It describes a “collective failure of due diligence” on the part of civil servants, who didn’t review the applicable law and didn’t seek to apply international best practices.

Ms Brock added yesterday: “I am empowered, through the Ombudsman Act 2004, to investigate only the actions of the Civil Service. I cannot investigate Cabinet decisions or the decisions of the MPs or Senators who, in this case, approved the SDO.

“This report focused on the information gathering process of the civil servants. They must be empowered and resourced to provide Ministers and legislators with advice that is based on a firm foundation of fact.”

She said: “In this investigation, it was hard to say that only one or two persons were responsible for the maladministration. Therefore, I think it is sufficient to illuminate the problem and hope that everyone will apply the lessons going forward.”

The Tucker’s Point SDO was tabled in the House of Assembly a year ago, sparking outrage from environmental and historical groups, who objected to the hotel’s plan to build an additional 78 private residents and 70 hotel rooms.

Despite public protests, the order was approved by MPs in March. But when it went to the Senate, Government halted the debate after nearly four hours, ensuring a vote could not be taken.

A revised SDO, reducing the area of proposed development, was approved later the same month.

Mr Bean said in a statement last night that Government would respond fully to the Ombudsman by the required May 1 deadline.

He added: “As the Ombudsman will be aware, Government has most recently placed the matter of SDOs fully in the public domain by requiring an SDO to be approved by the Legislature, rather than allowing the responsibility to rest solely on the Minister responsible for Planning.

“Furthermore, national interest considerations, such as SDOs, are the purview of Ministers, the Cabinet and the Legislature, which is the highest policy-making body of all of Bermuda’s democratic institutions.

“It is somewhat peculiar, therefore, that an Ombudsman would seek to enter into what is essentially a political process that has a proven track record of resolving issues of national concern within a democratic framework.”

He said there were “numerous assessments” done before the submission of the Tucker’s Point SDO to Parliament and conservation officers were comfortable that the additional conditions in the order were “sufficient to protect the environment and mitigate any adverse impact”.

The Ombudsman launched her investigation into SDOs last April due to the “public outcry and unsubstantiated allegations” about the Tucker’s Point proposal.

She said she was able to do so on her “own motion” without a complaint from the public if she deemed it in the public interest.

Ms Brock said yesterday she hoped Government would carefully consider “two existential questions for Bermuda: Is our word our bond? Do we wish to be in the 21st century of good governance?”.

Mr Bean said: “As the investigation was based upon an ‘own motion’ rationale, for which there are no guidelines in Bermuda law, it is left in doubt whether the outcome is without bias.

“Around the world, own motion investigations by Ombudsmen are rare. It is important to point out that an SDO is an administrative action taken by a Minister in conjunction with the Cabinet.

“The Ombudsman Act 2004, in clause two of the schedule to the Act, precludes the investigation of an administrative action taken by the Cabinet, a Minister, or a junior Minister.

“It is rather unfortunate that the Ombudsman would use the narrow basis of an own motion investigation, that was subject to an inherent flaw, to question Government’s commitment to good governance and in honouring its commitments.”

PLP backbencher Walter Roban, who was Environment Minister when the SDO was tabled and approved, didn’t answer a question yesterday about why no EIA was conducted. “All questions should be put to the Minister and Ministry responsible,” he said.

Rosewood Hotels and Resorts took over the management of five-star Tucker’s Point in April. Last November, then managing director Brian Young said the potential expansion of the hotel was still under “very serious consideration” but “won’t happen in the next few years”.

James Masters, the executive director and chairman of Tucker’s Point, said in a statement last night that the hotel couldn’t comment on government processes for the granting of SDOs but respected the Ombudsman’s role and cooperated fully with her investigation.

“Tucker’s Point provided information requested by Government and the many interested parties during the SDO process,” he added.

“Tucker’s Point emphasised during the process that final planning approval would be subject to various studies and assessments aimed at assuring the Department of Planning and the public that environment concerns and issues would be addressed prior to the start of any development.”

Mr Hayward said BEST was “relieved and encouraged” by the Ombudsman’s conclusion that Government acted unlawfully.

“For years we have been raising the issue of the Environment Charter that our Government signed onto in 2001. Our concerns have been bypassed by the Bermuda and UK governments, though neither should have required reminders on a treaty both signed on to.”

Ms Gray added: “The Ombudsman’s confirmation that Environmental Impact Assessments are obliged to be conducted prior to approval in principle for development proposals that are ‘major’ or ‘likely’ to have an adverse effect on the environment, such as the development at Tucker’s Point, is heartening.

“We hope that going forward this will be the case for all major developments and look forward to the submission of an EIA for the Tucker’s Point SDO.”

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The Bermuda Sun
10th February, 2012

Government 'acted unlawfully' on Tucker's Point SDO

The Ombudsman for Bermuda, Arlene Brock, has found that Government acted unlawfully by failing to require an Environmental Impact Assessment [EIA] prior to sending the draft Tuckers Point Special Development Order (“SDO”) to the Legislature.

Ms Brock delivered her 88 page report – Today’s Choices - Tomorrow’s Costs – to the House of Assembly today. In it she set out the findings of her systemic investigation of civil servants’ fact-gathering and analysis in the lead up to the Parliamentary approval of the SDO in (March 2011).

“In September 2001 Bermuda signed on to the UK Environment Charter. By so doing the Government committed to carrying out an EIA prior to approving any major development,” Ms Brock said. “The UK is responsible for Bermuda’s international affairs, and this Charter extends to Bermuda the UK’s international environmental obligations under the UN Convention on Biological Diversity 1972 and Rio Declaration on Environment and Development 1992.”

“EIAs ensure there is broad public disclosure and consultation prior to approving such developments. They produce a thorough analysis of the risks posed as well as methods of mitigating such risks,” she said. Ms Brock noted that there are Privy Council decisions binding on Bermuda that also lay out the requirements of EIAs.

“EIAs are vital procedural tools and Bermuda is required to carry them out for good reason. EIAs are internationally considered best practice for development proposals that are likely to have significant adverse impacts on the environment.”

“Beyond our legal obligations,” Ms Brock said, “Government did not pay heed to the fact that proper administration demanded a robust and open information gathering process. Ministers and legislators needed a full analysis of all the likely ramifications of developing such an environmentally important area of the Island. Further, the public controversy surrounding the Tucker’s Point SDOs alerted me to the dearth of good data and process in the lead up to the approving the SDO.”

 “In the case of the latest Tucker’s Point SDO, there was a collective failure of due diligence on the part of civil servants. This was not a question of whether or not tourism development should be encouraged. Rather, this was a case of whether development should be carried out on one of Bermuda’s most environmentally sensitive pieces of land. In such a case, decision makers must have comprehensive information and the best advice from their advisors – the civil service.”

Ms Brock said. “After carrying out a comprehensive investigation I concluded that senior civil servants failed to review the applicable law and did not seek to apply international best practices.” The report does not find fault with individual civil servants, emphasizing that this was a collective failure. 

“Some people may be disappointed that I have not taken the usual Ombudsman approach of naming, blaming and shaming specific individuals. In this investigation, it was hard to say that only one or two persons were responsible for the maladministration. Therefore I think it is sufficient to illuminate the problem and hope that everyone will apply the lessons going forward.”

Ms. Brock said: “I am empowered, through the Ombudsman Act 2004, to investigate only the actions of the Civil Service. I cannot investigate Cabinet decisions or the decisions of the MPs or Senators who, in this case, approved the SDO. This report focused on the information gathering process of the civil servants. They must be empowered and resourced to provide Ministers and Legislators with advice that is based on a firm foundation of fact.”

The Ombudsman applauds the 2011 amendment to the Development and Planning Act 1974 that requires SDOs to be approved by the Legislature instead of a Minister. “This is an important improvement with respect to who makes the decision to grant SDOs,” she said. “However it is critical for us to understand that a less than optimal fact-gathering and evaluation process cannot be cured by an improved decision making procedure (the amendment to the DPA).”

“In reviewing the data that would have come to light in an EIA for the Tucker’s Point application, I was astounded to see how much time seems to have stood still. Almost exactly the same arguments for each issue and on all sides of the issues were raised in 1995 and 2001 that we heard in 2011.” Ms. Brock noted “The more things change, the more they seemed to stay the same.”

“Government officials have claimed that the conditions attached to the 2011 SDO were stringent enough to ensure a balance between development and protecting the Tucker’s Point site” Ms Brock said. “However, over the course of our investigation, several of the experts who I consulted questioned the adequacy of these conditions.”

“The reserved matters in the Tucker’s Point SDO – to be determined by the Development Applications Board [DAB] – provide no comfort that the full risks of the proposed development will be analyzed.” Ms Brock pointed out  “The reserved matters deal with the kind of development that is allowed (design, engineering, landscaping, height, etc.). Information gathered at the reserved matters stage may be too late to inform the preliminary determination about whether development should take place at all. Should such information indicate that a proposal should not be approved, it would be awkward for the DAB to overturn ‘in principle’ approval already granted by the Legislature.”

Ms Brock noted that the 2011 debate over the merits of the SDO had been infused with fears that Bermuda would appear unfriendly to foreign investors and drive them to competing jurisdictions, especially in the Caribbean. “During our investigation we interviewed officials from the UN, the Organization of American States, CARICOM and several Caribbean governments. It was interesting to discover that there is a groundswell across the Caribbean for protection of the environment.  Caribbean officials are extremely well aware of the value of conducting EIAs – for the benefit of investors, governments and the public.”

“As an UK Overseas Territory, Bermuda is not well integrated into the international vernacular and standards. We are in danger of lagging behind.” Ms. Brock added: “We also discovered that as an Associate Member of CARICOM, Bermuda has agreed to promote Sustainable Tourism in addition to conservation of forest and marine environments,” she said.

“Bermuda does have a Sustainable Development Strategy and Implementation Plan and a related department of Government,” she said. “However, the reach of the Strategy and Department has not yet permeated policy and operational decisions throughout the Government.” “The fact that ‘it costs money to be green’ should not deter our standards or creative thinking about how to develop the tourism product.”

The Ombudsman Act 2004 authorizes the Ombudsman to carry out an investigation on her motion (notwithstanding that no complaint has been made from the public) when she is satisfied it is in the public interest to investigate. “Public outcry and unsubstantiated allegations at the time of the 2011 SDO Parliamentary debates made it clear that we did not learn much from previous controversies over the Southlands and the Botanical Garden Hospital proposals. The evidence pointed to an absence of a process for sound and respectful discussion of the issues.”

“By fulfilling our obligation to require an EIA before a major development, Bermuda is not saying ‘No’ to development. Rather we are ensuring that decision makers and the Bermuda public are fully informed before approval is granted,” Ms Brock said.

Ms. Brock extended the statutory period for the Government to notify her of its response to the recommendations to May 1st, 2012. I will not make further public comments until after receiving the response. I am hopeful that two existential questions for Bermuda arising out of the report will be carefully considered: Is our word our bond? Do we wish to be in the 21st Century of good governance?”

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The Royal Gazette
10th February, 2012

Govt acted unlawfully over Tucker's Point SDO, Ombudsman

The Minister of Environment, Planning and Infrastructure Strategy the Hon. Marc A. Bean JP MP issued the following interim response to Ombudsman Arlene Brock's report Today's Choices - Tomorrow's Costs which she delivered to the House of Assembly today.

Government will reply more fully to the Ombudsman in accordance with the Act by the given deadline of May 1st 2012.

As the Ombudsman will be aware, Government has most recently placed the matter of SDOs fully in the public domain by requiring an SDO to be approved by the Legislature, rather than allowing the responsibility to rest solely on the Minister responsible for Planning.

Furthermore, national interest considerations, such as SDOs, are the purview of Ministers, the Cabinet and the Legislature which is the highest policy making body of all of Bermuda's democratic institutions.

It is somewhat peculiar therefore that an Ombudsman would seek to enter into what is essentially a political process that has a proven track record of resolving issues of national concern within a democratic framework.

The Minister of Environment, Planning and Infrastructure Strategy the Hon. Marc A. Bean JP MP said: “Our Government was praised in this report for its amendment to the Development and Planning Act to require SDO's to be approved by the legislature. This is one of MANY steps that our Government has taken to enhance governance and transparency in Bermuda. Regarding this SDO, there were numerous assessments done prior to the submission of the SDO to parliament, and conservation officers were comfortable that the additional conditions contained in the SDO were sufficient to protect the environment and mitigate any adverse impact.”

Minister Bean continued: “Our Government is, and will always be, committed to the environment. We have taken numerous steps to protect land from future development. The public should also not forget that the people of Bermuda received 15 Acres of protected land as part of this SDO. This land will be conveyed to the Government so that it is protected and never developed.”

As the investigation was based upon an ‘own motion' rationale, for which there are no guidelines in Bermuda law, it is left in doubt whether the outcome is without bias. Around the world, own motion investigations by Ombudsmen are rare.

It is important to point out that an SDO is an administrative action taken by a Minister in conjunction with the Cabinet.

The Ombudsman Act 2004 in Clause 2 of the Schedule to the Act precludes the investigation of an administrative action taken by the Cabinet, a Minister, or a Junior Minister.
It is rather unfortunate that the Ombudsman would use the narrow basis of an own motion investigation that was subject to an inherent flaw to question Government's commitment to good governance and in honoring its commitments.

Furthermore, it should be noted that in the Ombudsman's report, there isn't a single reference to the word “unlawful”.  Rather, she found maladministration in “the collective failure of due diligence to determine applicable law, international standards and best practice relevant to a decision of national priority”.
The principles of the UK Environment Charter are embraced by the Bermuda Development Plan.

Minister Bean concluded
“The office of the Ombudsman was created by the PLP Government. Though we may differ on interpretation, I'm proud that this government has created mechanisms to scrutinise our decisions, and recommend improvements.”

The Ombudsman, Arlene Brock, has found that Government acted unlawfully by failing to require an Environmental Impact Assessment [EIA] prior to sending the draft Tuckers Point Special Development Order to the Legislature.

Ms Brock delivered her 88 page report ‘Today's Choices Tomorrow's Costs' to the House of Assembly today. In it she set out the findings of her systemic investigation of civil servants' fact-gathering and analysis in the lead up to the Parliamentary approval of the SDO in March 2011.

“In September 2001 Bermuda signed on to the UK Environment Charter. By so doing the Government committed to carrying out an EIA prior to approving any major development,” Ms Brock said. “The UK is responsible for Bermuda's international affairs, and this Charter extends to Bermuda the UK's international environmental obligations under the UN Convention on Biological Diversity 1972 and Rio Declaration on Environment and Development 1992.

“EIAs ensure there is broad public disclosure and consultation prior to approving such developments. They produce a thorough analysis of the risks posed as well as methods of mitigating such risks.”

Ms Brock noted that there are Privy Council decisions binding on Bermuda that also lay out the requirements of EIAs.

“EIAs are vital procedural tools and Bermuda is required to carry them out for good reason. EIAs are internationally considered best practice for development proposals that are likely to have significant adverse impacts on the environment.”

Ms Brock added: “Beyond our legal obligations, Government did not pay heed to the fact that proper administration demanded a robust and open information gathering process. Ministers and legislators needed a full analysis of all the likely ramifications of developing such an environmentally important area of the Island. Further, the public controversy surrounding the Tucker's Point SDOs alerted me to the dearth of good data and process in the lead up to the approving the SDO.

“In the case of the latest Tucker's Point SDO, there was a collective failure of due diligence on the part of civil servants. This was not a question of whether or not tourism development should be encouraged. Rather, this was a case of whether development should be carried out on one of Bermuda's most environmentally sensitive pieces of land. In such a case, decision makers must have comprehensive information and the best advice from their advisers the civil service.”

Ms Brock said. “After carrying out a comprehensive investigation I concluded that senior civil servants failed to review the applicable law and did not seek to apply international best practices.” The report does not find fault with individual civil servants, emphasising that this was a collective failure.

“Some people may be disappointed that I have not taken the usual Ombudsman approach of naming, blaming and shaming specific individuals. In this investigation, it was hard to say that only one or two persons were responsible for the maladministration. Therefore I think it is sufficient to illuminate the problem and hope that everyone will apply the lessons going forward.”

Ms. Brock said: “I am empowered, through the Ombudsman Act 2004, to investigate only the actions of the Civil Service. I cannot investigate Cabinet decisions or the decisions of the MPs or Senators who, in this case, approved the SDO. This report focused on the information gathering process of the civil servants. They must be empowered and resourced to provide Ministers and Legislators with advice that is based on a firm foundation of fact.”

The Ombudsman said she applauded the 2011 amendment to the Development and Planning Act 1974 that requires SDOs to be approved by the Legislature instead of a Minister.

“This is an important improvement with respect to who makes the decision to grant SDOs,” she said. “However it is critical for us to understand that a less than optimal fact-gathering and evaluation process cannot be cured by an improved decision making procedure (the amendment to the DPA).

“In reviewing the data that would have come to light in an EIA for the Tucker's Point application, I was astounded to see how much time seems to have stood still. Almost exactly the same arguments for each issue and on all sides of the issues were raised in 1995 and 2001 that we heard in 2011.” Ms. Brock noted: “The more things change, the more they seemed to stay the same.

“Government officials have claimed that the conditions attached to the 2011 SDO were stringent enough to ensure a balance between development and protecting the Tucker's Point site,” Ms Brock said. “However, over the course of our investigation, several of the experts who I consulted questioned the adequacy of these conditions.

“The reserved matters in the Tucker's Point SDO to be determined by the Development Applications Board [DAB] provide no comfort that the full risks of the proposed development will be analysed.”

Ms Brock pointed out: “The reserved matters deal with the kind of development that is allowed (design, engineering, landscaping, height, etc.). Information gathered at the reserved matters stage may be too late to inform the preliminary determination about whether development should take place at all. Should such information indicate that a proposal should not be approved, it would be awkward for the DAB to overturn ‘in principle' approval already granted by the Legislature.”

Ms Brock noted that the 2011 debate over the merits of the SDO had been infused with fears that Bermuda would appear unfriendly to foreign investors and drive them to competing jurisdictions, especially in the Caribbean.

“During our investigation we interviewed officials from the UN, the Organisation of American States, CARICOM and several Caribbean governments. It was interesting to discover that there is a groundswell across the Caribbean for protection of the environment. Caribbean officials are extremely well aware of the value of conducting EIAs for the benefit of investors, governments and the public.

“As an UK Overseas Territory, Bermuda is not well integrated into the international vernacular and standards. We are in danger of lagging behind.”

Ms. Brock added: “We also discovered that as an Associate Member of CARICOM, Bermuda has agreed to promote Sustainable Tourism in addition to conservation of forest and marine environments.

“Bermuda does have a Sustainable Development Strategy and Implementation Plan and a related department of Government,” she said. “However, the reach of the Strategy and Department has not yet permeated policy and operational decisions throughout the Government.” “The fact that ‘it costs money to be green' should not deter our standards or creative thinking about how to develop the tourism product.”

The Ombudsman Act 2004 authorises the Ombudsman to carry out an investigation on her motion (notwithstanding that no complaint has been made from the public) when she is satisfied it is in the public interest to investigate. “Public outcry and unsubstantiated allegations at the time of the 2011 SDO Parliamentary debates made it clear that we did not learn much from previous controversies over the Southlands and the Botanical Garden Hospital proposals. The evidence pointed to an absence of a process for sound and respectful discussion of the issues.”

“By fulfilling our obligation to require an EIA before a major development, Bermuda is not saying ‘No' to development. Rather we are ensuring that decision makers and the Bermuda public are fully informed before approval is granted,” Ms Brock said.

Ms Brock extended the statutory period for the Government to notify her of its response to the recommendations to May 1, 2012. “I will not make further public comments until after receiving the response. I am hopeful that two existential questions for Bermuda arising out of the report will be carefully considered: Is our word our bond? Do we wish to be in the 21st Century of good governance?”

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The Royal Gazette
10th February, 2012

Govt acted unlawfully over Tucker's Point SDO, Ombudsman

By Tim Smith

Ombudsman Arlene Brock is reaching out to “less assertive” people who may be afraid to pursue their right to make a complaint.

Ms Brock said her fifth report indicated the confidence with which people pursue their rights can be affected by differences in language, culture and education.

“Bermuda is becoming increasingly diverse. Many people come from countries where it can be intimidating to deal with people in authority,” said the Ombudsman in a statement. “It is therefore important that our own office be proactive as well.”

Ms Brock is setting up a public access group to provide input to her office on public outreach, diversity, social media and complainant feedback.

“Last year, we had a record number of complainants, most of whom were quite assertive about their grievances,” she stated. “We want to make sure that people who are less assertive also feel comfortable to use our services.”

She said the public access group will have nine volunteers representing a diverse cross-section of the public.

Each will serve for one- or two-year terms and meet quarterly, beginning in January 2012.

Ms Brock added: “The Ombudsman world is constantly evolving. With six years under our belt, we are reflecting on how to keep up with international standards in order to be more effective.

“A structured way for public input will help to ensure that we are accessible to all.”

Anyone interested in joining the public access group should submit expressions of interest by Monday, November 14, to info@ombudsman.bm. Telephone: 296-6541.


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