Review of National Legislations Related to Czm

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REVIEWOF NATIONAL LEGISLATIONS RELATED

TO COASTAL ZONE MANAGEMENTINTHE

ENGLISH

-SPEAKING

CARIBBEAN

June, 2003


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REVIEWOF NATIONAL LEGISLATIONS RELATED

TO COASTAL ZONE MANAGEMENTINTHE

ENGLISH

-SPEAKING

CARIBBEAN

June, 2003

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ACKNOWLEDGEMENT

The United Nations Environment Programme gratefully acknowledges the financial contributionof the Government of Belgium for enabling UNEP/GPA Coordination Office to undertake thisreview study and produce this report under the Programme Physical Alteration and Destructionof Habitat. The UNEP/GPA Coordination Office also wishes to thank Dr. Winston Anderson of

the Faculty of Law, University of the West Indies for undertaking this research.

2003 UNEP United Nations Envronment Programme

Disclaimer

The designations employed and the presentation of the materials in this document do not implythe expressions of any opinion whatsoever on the part of UNEP concerning the legal status of

any state, territory, city or area, or its authorities, or concerning the delimitation of their frontiersor boundaries. The document contains the views expressed by the author(s) acting in theirindividual capacity and may not necessarily reflect the views of UNEP. The UNEP/GPACoordination Office does not guarantee the accuracy of the data included in this publication andaccepts no responsibility whatsoever for any consequences of their use.

This publication may be reproduced in whole or in part and in any form for educational purposesand non-profit purposes without special permission from the copyright holder, provided thatacknowledgement of the source is made. UNEP would appreciate a copy of any publication thatuses this material, or part thereof, as a source.

No use of this publication may be made for the resale or for any other commercial purposes

whatsoever without the prior permission in writing of UNEP.

Layout and cover design: Jeannette Haenel

For additional information contact:

The Global Programme of Action for the Protection of theMarine Environment from Land-based Activities, GPA Coordination OfficeKortenaerkade 12518 AX The HagueThe NetherlandsTel: +31 70 311 4460 Email: [email protected]

Fax: +31 70 345 6648 Website: www.gpa.unep.org

For bibliography purposes this document may be cited as: UNEP/GPA 2003. Review ofnational legislation related to coastal and marine resources management and theadequacy/inadequacy of the institutional arrangements under which this takes place. Reportprepared by Dr. Winston Anderson.

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TABLE OF CONTENTS

Executive Summary 6

Part One: Introduction 8

Part Two: Profile of Traditional Conservation Laws 9

Part Three: The International Dimension 11

Part Four: Legislative and Programmatic Requirements 15

Part Five: Country Reports 17

A Barbados 18

B Belize 22

C Jamaica 25

D Trinidad and Tobago 33

Part Six: Conclusions and Recommendations for Law Reform 39

Bibliography 41

LIST OF TABLES

TABLE 1 Global Marine Protection Areas related Conventions 13TABLE 2 Regional Marine Protection Areas related Conventions 14TABLE 3 Range of Institutions and CZM Functions 28

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EXECUTIVE SUMMARY

Traditionally, the central problem of ensuring coastal protection in the Commonwealth

Caribbean was the fragmentation in the regulatory and institutional framework. As a rule, eachstatute that regulated a problem in the coastal areas tended to create its own separate institutionor administration. Mechanisms for coordination between and among the institutions and theregulatory regimes were weak or non-existent.

An important development in catalyzing an improvement in the legal arrangements has been theglobal movement for the protection of the environment, which has generated a number of globaland regional multilateral environmental policy documents and binding agreements of directrelevance to the coastal zone. Acceptance of these legal norms should be, and in many cases hasbeen, the primary motivation for the coastal protection. In particular Caribbean states acceptedthe need to provide unique protection for the coastal zone and for coastal resources at the 1994

United Nations Conference on Sustainable Development in Small Island States.

A critical step in protecting coastal resources is the establishment of sound legislative andinstitutional frameworks supported by adequate policy frameworks and the designation of legallyprotected areas. Regulatory and policy arrangements may not by themselves be sufficient toensure protection but such arrangements are often a necessary starting point in the process.

At present regulation of the coastal zone is undertaken by a variety of methods. Some countries,notably, Barbados and Belize, have adopted a dedicated coastal zone management regime withdefined jurisdictional competence, which was premised upon the development and enactment of

separate coastal zone management legislation. This arrangement facilitates capacity building andthe development of specialist expertise, although detractors have pointed to the difficultiesinherent in defining the coastal zone in small ecologically integrated Island states.

A second approach, followed in Jamaica, is the pursuit of coastal zone management under broadenvironmental legislation but with specific institutional arrangements targeted at protectingcoastal resources. Here, much of the substantive regulation and institutional arrangements forcoastal zone management may be consolidated in framework legislation for generalenvironmental management. Such legislation may repeal and incorporate the substantive provisions in the existing sectoral statutes (e.g., pertaining to beach control, wild-birdsprotection, forestry), whilst undertaking specific and discrete regulation of coastal resources as acomponent within the broad management spectrum. Correspondingly, the institutions created bythe legislation will have general environmental management functions with a specific segmentrelating to the coastal zone and coastal resources.

The third way is most reminiscent of the tradition of ad hoc legislation. A sectoral approach toregulatory and institutional management is deliberately retained. Dedicated coastal zonemanagement legislation and institutions may in fact explicitly be resisted on the basis that thereare no sound ecological reasons for distinguishing coastal from terrestrial zones in small island

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states. Broadly speaking, this is the strategy adopted in Trinidad and Tobago, and by thoseIslands in the Eastern Caribbean that accept that Island System Management regime.

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As a rule, it is true to say that the English speaking countries of the Caribbean have accepted theneed to develop management systems to deal effectively with growing problems of coastaldeterioration. Degradation has been caused by rapidly expanding levels of beach tourism,growing urbanization of coastal lands, coastal sand mining, and the risk of maritime oil pollution.There are also emergent issues to do with sea level rise. Correspondingly, there is general

agreement on the requirement for legislative reform that addresses fragmentation inadministrative and legal structures and which brings a sharper focus to management of coastalissues.

Legislative initiatives in some countries of the region provide useful options as precedents forreform. There are also opportunities for collaboration with international organizations and treatyregimes. Adaptation to global warming and sea level rise cannot be accomplished entirely by thesmall island states of the region, especially by those with narrow and vulnerable resource bases.Already, several international agencies and conventions have committed resources to assist inareas to do with the regulatory and institutional control.

Whilst the response of the Commonwealth Caribbean has not been uniformed it is the case thatsignificant progress is being made. What remains critical is the convincing of individual states totake the desired measures in accordance with international commitments given by them. And along-term challenge will be to ensure continuing monitoring and upgrading of the legislativestructures. A particularly difficult task will be to ensure that the conservation and management ofthe coastal zone is not compromised in favor of the continued expansion of the critical tourismindustry.

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PART 1:

INTRODUCTON

A ) Caribbean Commitment to Integrated Coastal Zone Management

The Island States of the English-Speaking (or Commonwealth) Caribbean are committed to theconcept of Integrated Coastal Zone Management (ICZM). The clearest indication of thiscommitment was given in the Global Conference on the Sustainable Development of SmallIsland Developing States (GCSIDS), held in Bridgetown Barbados in 1994. At the conference,these states agreed to "establish and/or strengthen, where appropriate, institutional,administrative, and legislative arrangements for developing and implementing integrated coastalzone management plans and strategies for coastal watersheds and exclusive economic zones,including integrating them within national development plans."

B) Objectives of the Study

The present Study has been undertaken in order to facilitate evaluation of the extent to whichthese commitments have been translated into action on the ground, to point out strengths andweaknesses of the actions taken to date, and to make recommendations on the way forward.

In prosecuting these objectives theStudy will examine the present status ofthe legal and institutional framework forcoastal zone management in the Englishspeaking Caribbean. It will explainrecent trends and achievements in legaland institutional developments, and juxtapose the role of international

agreements in the process. Precedentsthat have been adopted in somecountries will be examined in somedetail with a view to providing a kind ofroad map that other states may considerin developing their own uniqueresponse to coastal zone management.

C) Terms of Reference

The Terms of Reference of this Study are to provide a representative report on coastal zonemanagement in the English speaking countries of the Caribbean, explaining unique and varying

characteristics and well as common elements or problems. In order to carry out this objective theconsultant has conducted field visits to some of the countries concerned and has supplementedthis activity with telephonic communications. The bulk of the work has, however, relied upondocumentary research available in the Library of the Faculty of Law, University of the WestIndies, and upon previous related activities conducted by the consultant. The terms of referencefor this study are reproduced in Annex 1.

D) Geographical Scope

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This segment of the Study is confined to the English-speaking Caribbean. The countries includedhave a common heritage of the British legal system and in particular of the English common lawand parliamentary legislation. Legislation supersedes and is frequently used to change andmodify the common law. A similar exercise is being undertaken in non-English speakingcountries of the wider Caribbean. It is anticipated that comparative analysis may add to the storeof knowledge in this area and provide additional tools and options for policy makers in all the

countries of the wider Caribbean region.

E) Sections

Part 1 of this Report considers introductory matters. Part 2 gives a profile of the traditionalconservation laws related to the coastal zone. Part 3 provides consideration of the internationaldimension that has led to the call for and development of specialized coastal zone managementregimes. Part 4 examines the legislative and programmatic requirements for implementation ofrelevant international obligations and commitments. Part 5 is concerned with the situation inselected countries. As a preface to the country reports, an explanation for the selection of thefour countries is given. Detailed examination is then conducted of the regime existent in thesecountries and the examination is placed within the context of certain typologies of regulatory

approaches. Finally Part 6 draws certain conclusions and the case made for reform. A selectedBibliography is then presented as Annex 2.

PART 2:

PROFILE OF TRADITIONAL CONSERVATION LAWS

The notion of traditional conservation laws is used to describe legislation that provides for theprotection or conservation of specific coastal components within coastal areas but which does

not attempt to preserve the coastal zone as a whole, or as a specific resource.

A) Beach Protection Act or Beach Control Act

The Beach Control ActorBeach Protection Act, which first appeared within Caribbean legalsystems in the late 19th century, is an obvious example of traditional conservation laws. In itsoriginal form the Act prohibits the digging and removal of sand, stones, shingles and gravel fromthe foreshore, and the fouling of the foreshore by deposit of offal, garbage, or other waste. Thisprovided the basic legal foundation for protection of marine areas that properly fall within thedefinition of beaches.

A recent illustration of the statute's continuing utility is provided by the case ofNEPA v HalfMoon Bay Ltd. decided in the Montego Bay Resident Magistrates Court, Jamaica, in 2002.Thedefendant hotel was found guilty of breaching the Beach Control Act on two counts whoseparticulars included digging and dredging sand from the foreshore and the floor of the sea andalso dumping of large small boulders on the foreshore of the sea. A six-month prison sentence,suspended for one year, was handed down to the Company's Financial Controller, and theCompany was admonished.

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B) Town and Country Planning Act

The Town and Country Planning Act, prevalent throughout the region, provides the secondexample. This Act provides a framework for the granting of permission for the development ofland and for exercising other powers of control over the use of land. An important consideration

is that planning authorities may make provisions for nature reserves and for sanctuaries forwildlife in the development plan.

Where such provisions are made in respect of marine protection areas, Caribbean authoritiessuggest that development may still be permitted within these areas, provided only in coming tothis conclusion, the planning officials considered the provisions of the development plan and allother material considerations. In some jurisdictions (such as Barbados) the 'land' falling underthe jurisdiction of the planning office includes all of the submarine areas beneath the territorialsea of the state.

C) Fisheries Act

A popular basis for the regulatoryframework of marine areascontinues to be the Fisheries Act.The primary purpose of thislegislation is the sustainableutilization of fishery resources.Pursuant to this objective, itauthorizes the creation of marinereserves. These reserves aregenerally to facilitate the protectionof fauna and flora, natural breedinggrounds and habitat of aquatic life.

The natural regeneration of life, the promotion of scientific study andresearch, and the preservation andenhancement of natural beauty, areother relevant considerations.

The severity of the penalties for infractions vary in relation to the time when the Act was passedor revised but the range includes fines, custodial sentences, and forfeiture of property used in,connected to, or resulting from the infractions.

Although several marine protected areas - and therefore areas within the coastal zone - were infact established under the Fisheries Act, it is arguable that the measures that may lawfully betaken in such a marine reserve must be made to relate back to the purposes and objectives of theAct. Otherwise such regulations may be vulnerable to the charge of being ultra vires the statute.At minimum, the sectoral nature of the parent legislation normally constitutes a significantpsychological hurdle to be surmounted before holistic protection can be achieved.

D) National Parks and Protected Areas Act

With the National Parks and Protected Areas Act the evolution of traditional conservation lawsreaches its zenith. The Act specifically provides for the creation and operation of protected areas

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for general purposes. Several Marine Protected Areas were established under National Parks andProtected Areas Act, but these Acts do not generally make any special mention of marine parksor coastal zone protected areas. The original and continuing area of primary interest is clearly aterrestrial parks protection system, and this can compromise the vitality of the legal base itgenerates for protection for coastal areas.

As regards traditional resource conservation legislation, an analysis by regional expertspublished in 1992 had this to say:

Much of the resource legislation in the Commonwealth Caribbean region lacks adequateenvironmental and institutional focus. Such environmental-related legislation as exists,is, more often than not, inherited from the British, and is often fragmented and dispersedover several enactments. Responsibility for administering applicable legislation islikewise distributed among several government departments, unsupported by appropriateinstitutional arrangements to coordinate and direct relevant initiatives.1

PART 3:

THE INTERNATIONAL DIMENSION

As in many other developing countries, Caribbean environmental protection legislation is driven primarily by developments in international law and policy. It has been suggested that theancestor to virtually every recent piece of environmental legislation has been the acceptance of amultilateral environmental agreement.2 It follows that the international dimension is an importantstarting point for understanding the modern Caribbean legislative and policy framework for themanagement of coastal areas.

A) Caribbean Commitment to Integrated Coastal Zone Management

The Island States of the Commonwealth Caribbean are required to adopt the concept ofIntegrated Coastal Zone Management (ICZM). These States participated in and endorsed theProgramme of Action (POA) for Small Island Developing States (SIDS), which was an output ofthe Global Conference on the Sustainable Development of Small Island Developing States(GCSIDS), held in Bridgetown Barbados in 1994. SIDS-POA calls on states to "establish and/orstrengthen, where appropriate, institutional, administrative, and legislative arrangements fordeveloping and implementing integrated coastal zone management plans and strategies forcoastal watersheds and exclusive economic zones, including integrating them within nationaldevelopment plans."

Since 1994, Caribbean commitment to ICZM has sustained a high degree of governmentalactivity at the policy-making, administrative, and project-oriented levels. Critically, the

Declaration and Plan of Action for Sustainable Development of The Americas, adopted at theBoliva Summit in Santa Cruz, in December 1996 by OAS member states called for the:

promotion, development or strengthening, as appropriate, of institutional capabilitiesat the national level or, where specific agreements exist, at the subregional level,especially in coastal zone management, coastal engineering This should be

1 Caribbean Law Institute, The Environmental Laws of the Commonwealth Caribbean (1992), at 1.2 Winston Anderson, Implementing MEAs in the Caribbean: Hard Lessons from Seafood and Ting (2001)Vol. 10 (2)Review of European Community and International Environmental Law 227.

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promoted by (model) national legislation that would provide an integrated andsustainable approach to the management of coastal and marine resources. Such modellegislation should be consistent with relevant international treaties to which states areparty and enhance the effectiveness of government policies and programs.

B) Caribbean acceptance of relevant international agreements

Vigorous participation in multi-lateral environmental agreements (MEA) is, from anenvironmental viewpoint, a strategy with certain well-documented advantages, including thefollowing:3

Compelling changes in domestic laws and institutions to deal with environmentalproblems in accordance with the MEA obligations;

Gaining access to funding through the treaty regime, such as funding from the GlobalEnvironmental Facility (GEF) or other related international funding organizations,such as the World Bank or the Caribbean Development Bank, to carry out the treatypurpose;

Gaining access to technical and scientific resources, information, technologies, and

training; Education of governments and the general public concerning environmental

problems, thus assisting with the task of enforcement of rules regardingenvironmental management;

Provision of the opportunity for the deepening of participatory democracy; and

Creating mechanisms that allow for global or regional responses to environmentalproblems which cannot be dealt with unilaterally.

Most of the relevant international agreements have been negotiated and concluded at the globallevel. These include but are not restricted to:

The United Nations Convention on Biological Diversity, 1992 (CBD)

Convention on International Trade in Endangered Species of Wild Fauna and Flora,1973 (CITES)

Convention on the Transboundary Movement of Hazardous Wastes and TheirDisposal, 1989 (BASEL)

Convention for the Protection of the Ozone Layer, 1985 and Montreal Protocol onSubstances that Deplete the Ozone Layer, 1987 (OZONE)

United Nations Framework Convention on Climate Change, 1992 (FCCC)

United Nations Convention to Combat Desertification in those CountriesExperiencing Serious Drought and/or Desertification, Particularly in Africa, 1994(CCD)

The Convention on Wetlands of International Importance, 1971 (RAMSAR)

Convention Concerning the Protection of the World Cultural and Natural Heritage1972 (HERITAGE)

United Nations Convention on the Law of the Sea, 1982 (LOS)

Convention on the Prevention of Marine Pollution From Ships, 1973, 1978(MARPOL)

3 Winston Anderson, MEAs: Facilitating Negotiation and Compliance Options For Reform (Report forthe Organization of Eastern Caribbean States, Natural Resources Management Unit (OECS/NRMU)), 2001.

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Table 1 details the acceptance by the Caribbean of these global conventions.

TABLE 1:

GLOBAL MARINE PROTECTION AREAS RELATED CONVENTIONS4

STATE CBD CITES BASEL OZONE FCCC CCDRAM-

SAR

HERI-

TAGELOS MAR-POL

Ant & Bar * * * * * * * * *Bahamas * * * * * * * *Barbados * * * * * * * * *Belize * * * * * * *Dominica * * * * * * * *

Grenada * * * * * * *

Guyana * * * * *Jamaica * * * * * * * * * *St. K & N * * * * * * * * *St. Lucia * * * * * * * *

St. V & G * * * * * * * *T & T * * * * * * *

Legend:STATES

A & B = Antigua and Barbuda

Bahamas

Barbados

Belize

Dominica

Grenada

Guyana

Jamaica

St. K & N = St. Kitts and Nevis

St. Lucia

St. V & G = St. Vincent and the Grenadines

T & T = Trinidad and Tobago

CONVENTIONS

CBD = United Nations Convention on Biological Diversity, 1992

CITES = Convention on International Trade in Endangered Species of Wild Fauna

and Flora, 1973

BASEL = Convention on the Transboundary Movements of Hazardous Wastes and

their Disposal, 1989 especially as Waterfowl Habitat, 1971

OZONE = Convention for the Protection of the Ozone Layer, 1985, and Protocol on Substances that

Deplete the Ozone Layer, 1987

FCC = United Nations Framework Convention on Climate Change, 1992

CCD = United Nations Convention to Combat Desertification in those Countries Experiencing

Serious Drought and/or Desertification, Particularly in Africa, 1994

RAMSAR = Convention on Wetlands of International Importance

HERITAGE = UNESCO Convention Concerning the Protection of the World Cultural and Natural

Heritage 1972LOS = United Nations Convention on the Law of the Sea, 1982

MARPOL = Convention on the Prevention of Marine Pollution from Ships, 1973, 1978

C) Regional Agreements

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There are four regional multilateral environmental agreements that have been adopted under theCaribbean Environmental Programme of UNEP (CEP/UNEP), and which have significance forthe protection of coastal areas.5

The Convention for the Protection and Development of the Marine Environment ofthe Wider Caribbean Region, 1983 (CARTAGENA).

Protocol Concerning Co-operation in Combating Oil Spills in the Wider CaribbeanRegion, 1983 (OILSPILL).

Protocol Concerning Specially Protected Areas and Wildlife of the MarineEnvironment of the Wider Caribbean Region, 1990 (SPAW).

Protocol Concerning Pollution from Land-Based Sources and Activities, 1999(LBSMP). Not yet in force.

The record of acceptance of regional multilateral agreements of particular significance to marineprotection areas is presented in Table 2.

TABLE 2:

REGIONAL MARINE PROTECTION AREAS RELATED CONVENTIONS6

CARTAGENAOILSPILL SPAW LBSMPP

Antigua &

Barbuda

S&R R S

Bahamas

Barbados S&R S&R

Belize R R

Dominica R R

Grenada S&R S&R

Guyana

Jamaica S&R S&R S

St. Kitts & Nevis

St. Lucia S&R S&R S

St. Vin &

Grenada

R R S&R

Trinidad &

Tobago

R R S&R

PART 4:

LEGISLATIVE AND PROGRAMMATIC REQUIREMENTS

5 See generally, Winston Anderson,Law of Caribbean Marine Pollution, (Kluwer Law International, 1997).

6Legend

S = signedR = ratified

CARTAGENA = Convention for the Protection and Development of the Marine Environment of the Wider CaribbeanRegion, 1983

OILSPILL = Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region, 1983SPAW = Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region, 1990LBSMP = Land-Based Sources of Marine Pollution Protocol, 1999

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Caribbean legislation protective of the environment in general, and of coastal areas in particularis, largely, a response to obligations undertaken in various multilateral environmentalagreements. At the same time, there is no invariable correspondence between treaty acceptanceand development of appropriate legislative and policy frameworks. The establishment of suitableregulatory structures and processes for MEA implementation is multi-faceted and multi-layered,but at a minimum requires development of effective implementing mechanisms. Included here

may be adoption of implementing legislation, identification of a national implementing agencyand focal point for implementing activity, and the availability of resources and stimulation of project-based implementing activity. In the context of the present project, discussion ofimplementing legislation and associated policies is especially germane.

The law of the Caribbean for the most part knows nothing, generally speaking, of self-executingtreaties: the operating assumption is that legislation is required to give the force of law toenvironmental treaty obligations. This is the basis for the decision given, for example, by theCourt of Appeal of Jamaica in the Natural Resources Conservation Authority v. Sea Food andTing (1999) in respect of the Convention on International Trade in Endangered Species of Floraand Fauna (CITES).7

Given that treaty law generally has no force in Caribbean law without implementing legislation,it might be expected that when a Caribbean State takes the solemn decision to become a party toa treaty, implementing legislation would follow as a matter of course. This logic was notreflected in British practice, which is replete with treaties that have not been followed byenacting legislation, or followed only after a long hiatus.

The speed of legislative response to the international obligation to enact enabling statutes couldbe a function of the typology of legislation adopted. In basic terms enabling legislation mayimplement a MEA by re-enactment; i.e., by repeating verbatim or by paraphrase, the substantiveprovisions of the treaty to which the State is party. The Act excludes those substantive treatyprovisions in respect of which the State entered a reservation. Implementation by re-enactment isthe traditional Caribbean approach and places a premium on State possession of legislative

drafting resources, familiarity with the nuisances of international treaty law, and sensitivity to thetranslation of "soft law" treaty obligations into "hard law" legislative rights and duties.

An alternative to the traditional implementation by re-enactment is the more modern approach ofincorporation by reference, a good example of which is provided by the National Conservationand Environment Protection (Amendment) Act, 1996 of St Christopher and Nevis.8 There aremany variations on incorporation by reference but the classic form comprises a short statutewhose central provision is that the treaties listed (and sometimes reproduced in a schedule) havethe force of law in the country concerned. Incorporation in this way represents an economy oflegislative competence and facilitates speedier Parliamentary response to the responsibility forlegislative action. Correspondingly, other difficulties may be presented in terms of actualimplementation and compliance.

Significant programmatic implementation of multilateral environmental agreements is evident inthe Caribbean. For example, important regional activity to protect biological diversity is carried onunder the Caribbean Environmental Programme, which forms the core of the UNEPs Regional SeasProgramme in the Caribbean. Conservation of biological resources falls within the objective of theSPAW Protocol and overlaps considerably with the CBD.

7 (1999) 58 W.I.R. 269.8No. 12 of 1996.

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Notwithstanding, UNEP has engaged in a number of activities designed to stimulate action towardsthe bio-diversity conservation. Most directly a Memorandum of Cooperation between CBD and theCartagena Convention and its Protocols was agreed in 1997. The Memorandum covers InstitutionalCooperation (Article 1); Exchange of Information and Experience (Article 2); Coordination ofProgrammes of Work (Article 3); Joint Conservation Action (Article 4); Consultation, Reportingand Further Guidance (Article5); and Review of the Agreement (Article 6). Whilst significant flaws

have been identified the Agreement is generally saluted as being an innovative step in therationalization of overlapping treaty requirements. CEP has the responsibility of identifyingappropriate mechanisms to initiate cooperation with CBD and UNEP/RCU has welcomed inputs andcomments from Government, NGOs and relevant organizations.

CEP encouragement for implementation of SPAW is based upon the SPAW sub-programmefocussing on protection of ecologically sensitive areas and wildlife that constitute a key resource forimportant economic activities such as tourism and fisheries. CEP activities have included a regionalworkshop designed to facilitate legislative implementation of the SPAW Protocol in theCommonwealth Caribbean countries of CEP.

The direct impact of these regional activities upon national implementing efforts may be

characterized as average. Traditional regulatory activities in such sectors as fisheries and forestryinvolving the taking of measures for the conservation of biological resources have evolved alongseparate lines. Admittedly, the widespread adoption of CBD and the increasing acceptance of theSPAW Protocol have encouraged a spate of recent activities. With GEF support virtually all of ourCaribbean countries have prepared or are preparing individual biodiversity strategies and actionplans and a related first report to Conference of Parties to the Biological Diversity Convention.

Funding from other external agencies sometimes demonstrate a preference for private sector-ledinitiatives. For example, the Montego Bay Marine Park Trust benefited from a US$25,000 grantfrom USAID. The Trust was the first local community group to be delegated authority for themanagement of park resources. The grant was used to establish basic administrative systems andequipment needed to strengthen the Trusts administrative capabilities as it prepared to assume the

official responsibility for the Marine Parks sustainable management.

Similarly, the private sector oriented BEST Commission in the Bahamas secured IADB funding forinstitutional review and strengthening. Also the National Wetlands Committee of Trinidad andTobago, a Cabinet appointed inter-sectoral committee, responsible for formulating a wetlands policythrough which the wise use the countrys wetlands can be achieved, has attracted external funding.Much of the policy formulated by the Committee was in compliance with the guidelines listed in theRAMSAR Convention but obviously also facilitate the conservation of biological resources.

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PART 5:

COUNTRY REPORTS

The Country Reports focus upon the coastal zone management regime operating in Barbados,Belize, Jamaica, and Trinidad and Tobago. It was not possible in a Study of this nature to

consider the situation in all seventeen states and territories of the region. Nor was this thoughtnecessary or desirable. The objective is to obtain a representative sample of the regulatoryapproaches with a view to comparing and contrasting with regime existent elsewhere.

The four states were chosen on geographical and juridical considerations. Barbados is thesmallest Island of those covered and is closely aligned to the Island States of the EasternCaribbean. In broad terms it is true to say that Barbados provides a basic guide to how thesmaller states in the sub-region could organized for coastal management. The Island also has ahistory of very strong attention to coastal zone management issues and is generally seen as aleader in this area.

Belize is the only continental state included in this study and is valuable from that standpointalone. An intriguing issue relates to whether this unique geographical circumstance necessarilyimpacts the kind of management system adopted. Moreover Belize has the second largest barrierreef in the world, now designated as a world heritage site, and has particular interest in ensuringits maintenance for eco-tourism purposes. In short the country's position in Central American andits heavy reliance upon preservation of coastal resources makes it indispensable for considerationin a study of this nature.

Jamaica is the largest of the English speaking Caribbean Islands and was the first to undertakecomprehensive legislative management of its natural resources. This was done under theambitious Natural Resources Conservation Authority Act (NRCA, 1991), which is an umbrellastatute intended to be filled in with regulations and policy directives targeted at coordinatedregulation of discrete environmental issues. Coastal Zone management has been undertakenunder this legislation and specific institutional arrangements have been organized around this

objective.

Trinidad and Tobago is the most industrialized of the countries in the region. In particular, its oiland petroleum industries present particular challenges. At the same time the resistance of stand-alone legislation concerned with the coastal zone has been most pronounced in the Twin IslandState. It is therefore fascinating to examine the strictures under which the practical problems inthe coastal areas are tackled.

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I. BARBADOS

A) Introduction

The central instrument for regulation of the coastal zone in Barbados is the Coastal ZoneManagement Act, 1998 (1998-39), which is worthy of detail examination.

B) Legislative background

The Coastal Zone Management Act 1998 (CZMA) was the outcome of Recommendations madein the 1992 Institutional Strengthening Report (ISPR) (Willms & Shier / Sedley et. al. (1992) and

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the land, water and living resources associated with the shoreline and marine areas ofBarbados, including beaches, shorecliffs, coral reefs, coral rubble, algal beds, sanddunes, wetlands and other ecosystems found along the shore together with the flora andfauna found in these areas.

A literal reading could compel the reader to view that all natural resources of Barbados qualify as

coastal resources given the interdependence and interactions of terrestrial and marineecosystems. This was clearly not the legislative intent (there are currently proposals fordevelopment of comprehensive environmental management structures) and operationalrationalization will have to be worked out. For example no intention to interfere with jurisdictionexercised by planning agencies, fisheries authorities or marine pollution control bodies appearsevident.

E) International Obligations

International obligations are not expressly addressed, although the substantive and institutionalarrangements are relevant to the implementation of such international treaties as: Convention onBiological Diversity, Framework Convention on Climate Change; SPAW Protocol to the

Cartagena Convention; and the Convention on Trade in Endangered Species.

F) Substantive regulation

The Act addresses substantive regulation of marine and beach areas. Particularly innovative isthe regime for coral reef protection. The legislative centerpiece is, however, the Coastal ZoneManagement Plan (CZMP), to be formulated by the Director of the Coastal Zone ManagementUnit, and which should comprise the policies, strategies and standards for the management andconservation of coastal resources. The CZMP is expected to address drafting of standards for:

1) Development and maintenance of coastal structures2) Environmental impact assessments for coastal projects

3) Water quality4) Public access to and through the beach and other natural areas in the coastal zone5) Dredging6) Removal of beachrock, coral rubble, seagrass7) Offshore sandmining8) Use of explosives9) Management of underwater parks and of restricted areas10) Designation of restricted beach areas for purpose of removing vegetation, sand,

stones, shingle or gravel.

Public participation is legislatively guaranteed (in the form of a public inquiry) in the formation,amendment and revision of the Plan, and the Act binds the Crown. The Act contains significantupward revision of the levels of fines that can be imposed for offences (to a maximum of$400,000 and/or five years imprisonment).

In the premises, the CZMP addresses virtually all of the substantive regulatory issues identifiedin the 1998 OAS/CLIC Report and the present Study as of interest to coastal zone regulation inCaribbean Island States.

Issues that appear outstanding, or not dealt with satisfactorily in the legislation include: (a) juridical extent of town and country planning jurisdiction; (b) permitting of development in

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scheme and Plan, the fisheries scheme shall prevail (s. 8 (2)). Fisheries schemes arenonetheless obliged to have regard to the CZMP.

1(ii) Relation to Planning Agencies

The Plan shall not be construed as authority for any development that is not permitted under the

Town and Country Planning Act or any other enactment (s. 8 (3)). Planning decisions arenonetheless obliged to have regard to the CZMP.

2(iii) Relation to other Institutions

The general provisions of the CZMA govern the relationship of other relevant agencies to theCZMP. Whilst it does not follow that these agencies are necessarily bound by the CZMP, it doesremain the case that the Director has crucial implementing functions under the CZMA in relationto other statutory provisions relating to coastal zone issues.

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L) Conclusion

The Coastal Zone Management Act 1998 of Barbados provides an extremely useful precedent forconsideration by other Island States of the Commonwealth Caribbean in addressing the majorityof regulatory and institutional issues at play in coastal zone management. Concerns forreconciliation with the ISM concept remain but are not insurmountable. Simply put, adoption of

the prototype CZMA of 1998 must be adapted to relate to the peculiar juridical, political, social,and economic framework obtaining in the respective Island State.

II. BELIZE

Belize experiences relatively few environmental problems, given the comparatively low levels ofstress the countrys small population exerts on its surroundings. But fishery resources suffer frombad harvesting habits, over exploitation and pollution. Increasing usage of marine areas, such asthe 260-km long barrier reef, as tourist attractions, has the potential to occasion significant injuryto the marine environment.

A) Legislative Background

Prior to 1992, Belize operated under the historically fragmented approach to environmentallegislation. In relation to the coastal zone, the following had some relevance:

The Dumping at Sea Act 1974, which was UK legislation implementing the LondonConvention, was applied to Belize before independence by the Dumping at Sea Act1974 (Overseas Territories) Order 1975.

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III. JAMAICA

A) Introduction

The concept of coastal zone management has assumed distinctiveness in the regulatory landscapeof Jamaica. In this regard the institutional aspects are the most advanced although the most pivotal institutions tend to lack legislative bases and frameworks. The legislative basis forinstitutional implementation of international treaty obligations concerning management ofenvironmental resources also requires strengthening. Substantive regulation is extremelyfragmented. It was reported that there are over thirty separate pieces of legislation having directimpact on management of coastal zone management.

B) Integrated Coastal Zone Management Act

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The Government has not yet articulated an intention to develop separate and distinct coastal zonemanagement legislation. A recent Report on "A Legislative Framework For DevelopingSustainable Management of the Environment in Jamaica" (June 30, 1998) did, indeed,recommend that a review and analysis be undertaken to ascertain if a broad-based Coastal ZoneManagement Act should be developed. This was based upon the relatively large size of the

Island, government policy in relation to delegating management of protected areas to non-governmental organizations, and certain institutional arrangements which have been put intoplace.

In relation to the latter, the Government has taken recent initiatives to deal specifically withcoastal zone problems and potentialities. The most visible institutions are the National Councilon Coastal Zone Management, the Maritime Authority of Jamaica, and the Marine and AviationAffairs Department of the Ministry of Foreign Affairs. The work of these agencies is furtherdetailed below. The Natural Resources Conservation Authority (NRCA), now an integral part ofthe National Environmental Planning Agency (NEPA) maintains general obligations ofenvironmental management. Under the auspices of these and other institutions a number ofproject-based activities have been developed. For example the NRCA/NEPA has developed a

number of policy documents essential to rational regulation of coastal zone resources. Also, since1995, an inventory of marine and coastal resources and conditions has been undertaken to provide preliminary baseline information for coastal zone management and developmentdecisions. A Coastal Zone Resource Atlas and a working computerized Geographic InformationSystem (GIS) database is being completed.

C) Definition of Coastal Zone

There is no legislative definition of "coastal zone" in the Laws of Jamaica. There is mentioned inseveral pieces of legislation of areas and resources found in those areas that would commonly beregarded as coastal but these tend to be statute-specific and even then incomplete. In this way itbecomes difficult to distinguish between marine, coastal and terrestrial resources and regulation.

D) International Obligatons

Jamaica has accepted a number of international environmental conventions relating toconservation and management of resources found in the coastal zone. In each case the GOJ hasthereby undertaken to carry out certain obligations in relation to coastal zone protection anddevelopment. Prime obligations concern the requirement to regulate the levels of exploration,exploitation, and general preservation and conservation of the living and non-living naturalresources within the defined parameters of the particular convention.

Some of the conventions of relevance in this area include:

International Plant Protection Convention, 1951; date of acceptance: November 24, 1969

Convention on the Territorial Sea and Contiguous Zone, 1958; date of acceptance: October8, 1965

Convention on the Continental Shelf, 1958; date of acceptance: October 8, 1965

Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958;date of acceptance: April 16, 1964 (Succession)

Convention concerning the Protection of the World Cultural and Natural Heritage, 1972;date of acceptance: June 14, 1983

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G) Coastline protection

There is no legislation providing for comprehensive protection of coastal areas, although isolatedinstances of the protection of specific public areas (mainly beaches) may be identified.

H) Specially Protected Areas

The Green Paper on Parks and Protected Areas unveils the policy of the GOJ to identify coastalareas that require special protection. The objective is to conserve, maintain, and restore in particular, representative habitats or coastal and marine ecosystems, habitats and associatedecosystems of adequate size to ensure their long term viability and to maintain biological andgenetic diversity. Over 150 areas have been identified as possible protected areas, many ofwhich are of a coastal nature. At present, five of the six areas that have been declared as protected areas or parks under the NRCA/NEPA Act, have coastal features. A system ofmanagement areas comprising the entire coastline has been suggested.

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Environmental Control Division [Ministry of

Health]

Development approvals regarding pollution

monitoring, sampling and enforcementParks and Markets entities Solid waste collection and disposalFisheries Division [Ministry of Agriculture] Fisheries managementMinistry of Agriculture Agricultural pollution, soil conservation

Ministry of Tourism Tourist facilitiesJamaica National Heritage Trust Creation of areas of protected heritageJamaica Constabulary Force and Coast Guard Policing and enforcement

Montego Bay Marine Park Trust

Caribbean Coastal Area management

Foundation (CCAMF)

Private NGOs to whom NRCA/NEPA has

delegated responsibility for management of

specific protected areas

Black River Drainage and Irrigation Board Example of institution created to deal ad hoc

with a specific issue: protecting designated

wetland.

For present purposes, it will suffice to highlight the role of the more important institutions.

J) National Council on Ocean and Coastal Zone Management

Cabinet established the National Council on Ocean and Coastal Zone Management in 1997 as aninter-agency mechanism to facilitate an integrated approach to the management of coastal andmarine areas. The Council is a high-level planning body, with a broad-based membership and amulti-disciplinary structure comprising senior representatives from agencies directly related tomarine and coastal affairs. The Council answers directly to Cabinet and has the authority toregulate and coordinate activities in the EEZ and coastal zone and is likely to be the lead agency,

which coordinates activities of all other agencies with jurisdiction in the coastal zone.

Government has specified the functions of the Council to include, among others, the following:

Development of an Action Plan for the management of Jamaica's exclusive economic zone,archipelagic waters, coastal zone and marine resources

Facilitating information sharing, policy formulation and functional coordination betweensectors, stakeholders and agencies that impact upon the marine sector

Co-ordinate legal and technical studies across a wide range of areas, to assist in decision-making for environmental and marine policy

Developing a programme of activities to sensitize the public to the importance of the marinesector to the sustainable development of Jamaica.

The Council is presently working on a green paper which will provide a definitive policyconcerning Jamaica's interest in marine and coastal matters and which will enable greatercoordination and integration of administrative and operational functions among various agenciesand departments. The national policy will be guided by the United Nations Conference onEnvironment and Development, particularly Agenda 21; Jamaica's rights and obligations underUNCLOS 1982, and other relevant international agreements, especially those sponsored by theInternational Maritime Organization. International rights and obligations have been incorporatedat the domestic level by, inter alia, the Exclusive Economic Zone Act, the Maritime Areas Act,

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and the Natural Resources Conservation Authority Act, 1991, as well as subsidiary regulations,rules and codes. The legislation provides the legislative framework for coordination of activities.

The existence and nature of the Council raise interesting questions in relation to specializedcoastal management. First, The Council's mandate includes but goes well beyond coastalresources management. Second, the Ministry of Foreign Affairs hosts the Council. The Maritime

Areas Act assigns responsibility for the exclusive economic zone to the Ministry of ForeignAffairs and Foreign Trade. Coastal areas within and landward of the territorial sea might nothave a natural home in Foreign Affairs. Third, the Council lacks a legislative base and this couldraise public law issues where directions are given to bodies discharging statutory functions.Fourth in instances where the Council does not issue binding policy directives, its existencemight simply mean an additional level of bureaucracy. Fifth, although representation on theCouncil is broad not all stakeholders are represented. Sixth, the Council is yet to finalize thepromised comprehensive coastal zone management policy document.

K) NRCA/NEPA

The NRCA/NEPA has broad responsibility for protecting and conserving the physical

environment of Jamaica. The Authority has exercised jurisdiction in relation to development ofprotected areas as well as in relation to permitting and licensing of development activities incoastal areas. There are statutory provisions requiring consultation and collaboration between theNRCA/NEPA and other agencies exercising related functions. Coordination is presently mostevident with Planning and Ministry of Agriculture officials. Management of protected areas bynon-governmental organizations takes place under NRCA/NEPA supervision.

The NRCA/NEPA created the Coastal Zone Management Unit to deal specifically with coastalzone management issues and the NRCA/NEPA is a critical member of the Council on CoastalZone Management.

NRCA/NEPA has prepared Guidelines for protected areas, dredging, marinas and small craft

harbours, benthic structures, coastal protection and enhancement structures, and underwaterpipelines and cables. Guidelines of specific relevance to coastal protection and conservationinclude:

1) Policy for Jamaica's System of Protected Areas2) Mangrove and Coastal Wetland Protection: Draft Policy and Regulation3) Guidelines for the Planning and Execution of Coastal and Estuarine

Dredging Works and Disposals of Dredged Materials4) Guidelines Pertaining to Marinas and Small Craft Harbours5) Guidelines for the Deployment of Benthic Structures6) Guidelines for the Planning and Execution of Coastal Protection and

Enhancement Structures

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7) Guidelines for Construction, Maintenance, and Monitoring of UnderwaterPipelines and Cables in the Coastal Zone

8) Manual for Integrated Coastal Planning and Management in Jamaica9) Coral Reef Protection and Preservation Policy and Regulation (Draft)10) Mariculture Policy and Regulations (Draft);

11) Beach Policy: A Policy for the Use of the Foreshore and the Floor of theSea(Draft).

These policy documents facilitate application of coastal zone management techniques byagencies and other stakeholders responsible for the exercise of governmental functions.

The NRCA/NEPA is also the implementing agency for several international conventions relevantto coastal zone management (see: Natural Resources Conservation Authority v. Seafood andTing((1999) Suit No. CL 1999/D-058 & CL 1999/S-134)).

NRCA/NEPA maintains relevant cooperative arrangements with international bodies and foreign

states. For example, the Coastal Water Improvement Project (CWIP) is a collaborative initiativebetween the GOJ through the NRCA/NEPA and USAID. CWIP calls for development of clearand enforceable policy and offers support for the newly formed Council on Oceans and CoastalZone Management as well as private sector initiatives relating to sustainable coastal resourcemanagement. The Jamaica and Swedish Governments have produced a Coastal Zone ResourceAtlas as well as a Manual on Integrated Coastal Zone Management for Jamaica.

L) Marine and Aviation Affairs Department

[Ministry of Foreign Affairs and Foreign Trade]

The Marine and Aviation Affairs Department is a department of the Ministry of Foreign Affairsand Trade. As the name implies the Department functions both in relation to coastal zone matters

as well as aviation affairs. The Department acts as Secretariat for the Council on Coastal ZoneManagement.

The Department plays a critical role in coastal zone management, both from a policy making andoperational management viewpoint. The policy focus includes coordination of the developmentof an integrated marine policy covering the Island's coastal and maritime zones, including theterritorial sea and exclusive economic zone. The Department is also responsible for formulatingpolicies for activities in relation to the Law of the Sea and management of the oceans; anddevelopment of an overall national strategy aimed at increasing international transportationservices.

The operational activities include the Department's work in relation to the Council as well asmatters relating to the establishment of the International Seabed Authority (ISA) in Kingston.The Department is responsible for negotiating and implementing maritime delimitation andfishing agreements; and monitoring implementation of the Maritime Cooperation Agreements forInterdiction of Drug Trafficking.

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M) Maritime Authority of Jamaica

The Maritime Authority of Jamaica (MAJ) was formed in 1998 and plays an important role incontributing to the development of policy for ocean and coastal zone management. The mainobjective of the MAJ is the timely and effective implementation of maritime conventions. The

MAJ functions both in relation to the safety of shipping and navigation routes as well as inrelation to vessel source marine pollution and civil liability for pollution damage. Relevantconventions include UNCLOS, STCW 78/95, MARPOL 73/78, London Convention,Intervention Convention, and Civil Liability and Fund Conventions. The MAJ operates under theShipping Act, which implements STCW and is lobbying for the early enactment of pollutionprevention and civil liability legislation to implement the remaining conventions.

The MAJ operates in relation to the entire marine areas of Jamaica. It also proposes that anintegrated approach to pollution prevention will be required for inland waters.

The MAJ is an important member of the National Council on Oceans and Coastal ZoneManagement and anticipates that the Councils will forestall any possible conflicts between

affected agencies and the MAJ though its inter-agency integrated marine policy initiatives.

N) Conclusion

The concept of integrated coastal zone management is gaining currency in Jamaica. Clearpolicies and guidelines are being established to ensure future viability of the coastal zone. Theinstitutional framework is largely in place although some institutions require more definitelegislative status.

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Dedicated coastal zone management legislation is resisted precisely because the managementfunction is seen as properly falling within the purview of several government agencies. The viewprevails that in island states, such as Trinidad and Tobago, no meaningful distinction can bedrawn between coastal, marine and terrestrial management. Activities in each area affect all otherareas and therefore require an integrated management approach. In a sense the entire island is

coastal and the isolated regulation of coastal zones, whatever applicability that notion may havein continental states, simply does not apply to small islands. For these reasons, the Institute forMarine Affairs (IMA) has eschewed any attempt to limit its mandate to coastal zone managementin favor of marine, coastal and terrestrial management.

Thus, the term coastal zone management is not used as such in Trinidad and Tobago legislation.There is no coastal zone management legislation and regulation of coastal resources is dividedamong a plethora of statutes. In some instances, coastal assets are protected by reference to ratherdubious legislative authority.

C) Reform

At the same time it is commonplace that regulation of coastal resources is in need ofimprovement and greater focus. Legislative reform was perceived as necessary in relation tofostering greater institutional/inter-agency collaboration. A common view is that obsoletelegislative provisions should be modernized and that substantive regulation should addresscoastal problems not now represented in legislation.

D) Definition of Coastal Zone

In line with current thinking, there is no comprehensive legislative definition of the term coastalzone in the laws of Trinidad and Tobago. The Institute of Marine Affairs Act 1976, as amended,speaks in terms of marine environment, the sea, marine resource marine and relatedresources coastal zones and their resources but does not define these terms. Similarly, the

Marine Areas (Preservation and Enhancement) Act 1970 does not provide comprehensivedefinition of these terms.

Legislation concerned with implementing jurisdictional provisions of the 1982 Law of the SeaConvention does define jurisdictional zones in terms permitted by the Convention. TheTerritorial Sea Act 1969 provides for a 12-mile territorial sea and general sovereignty but doesnot particularize for competence in matters of pollution. The Archipelagic Waters and ExclusiveEconomic Zone Act 1986 expressly defines new areas of marine space in terms of thearchipelagic waters; the 24-mile contiguous zone and the 200-mile EEZ. The nature and extent ofjurisdiction within these zones must be in accordance with [UNCLOS 1982]. The ContinentalShelf Act is mainly concerned to vest the continental shelf in the State.

Planning legislation is generally concerned with management of terrestrial assets. The Town andCountry Planning Act 1969 does state that provision may be made in Development Plans forallocation of land for the protection of marine life. Further, provision may be madeprohibiting, regulating, and controlling the deposit or disposal of waste materials and refuse, thedisposal of sewage.

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E) Internal Obligations

Trinidad and Tobago has undertaken international obligations in relation to management ofcoastal zone resources but implementation of international obligations is handicapped by theabsence of implementing legislation (e.g., Basel Convention). In some instances there is

insufficiently specific regulation (e.g., Cartagena Convention and Protocol). Focal points may beidentified for most but not all agreements (e.g., SOLAS 1974 and Collision RegulationConvention). A critical consideration is that Trinidad and Tobago has not accepted such pivotalconventions as MARPOL 73/78, Civil Liability Convention 1992, FUND Convention 1992, theLondon Convention 1972, 1996, the Intervention Convention and the OPRC Convention.Acceptance of these agreements awaits the passage of enabling legislation (the Shipping (MarinePollution) Bill1997).

F) Substantive Regulation

In the absence of dedicated legislation, environmental management of coastal resources isachieved primarily through the Environmental Management Act 1995, which provides, generally,

for the management of the environment within Trinidad and Tobago. The Act establishes anEnvironmental Management Authority (EMA) supported by an Environmental Trust Fund and anEnvironmental Commission.

The EMA has the obligation to make recommendations for a National Environmental Policy;develop and implement policies and programmes for the effective and wise use of theenvironment; and has responsibilities for the co-ordination and rationalization of allgovernmental entities performing environmental functions. In operational terms the EMA isrequired to monitor compliance with established standards, and to take appropriate action toprevent and control pollution. The EMA is authorized to take emergency measures whenever itreasonably believes that a release or threat of release of a pollutant or hazardous substancepresents danger to human health or the environment. Other management functions of relevance to

coastal zone regulation include:

the power to grant certificate of environmental clearance for developmental projects;

the power to request an environmental impact assessment (EIA);

designation of environmentally sensitive areas and species;

management of air and noise pollution;

management of water pollution;

waste management; and

identification and regulation of handling of hazardous substances.

The range of functions and powers of the Authority is wide enough to enable effective coastalzone management.

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G) Coastal development

Coastal development and coastal land utilization is regulated primarily through the Town andCountry Planning Act 1969. Such regulation is in furtherance of the broad purpose of the Act.But legitimate questions may be raised concerning the control of beach and marine activities that

will impact other aspects of the coastal zone. In particular there appears to be the urgentnecessity for the planning regime to address actual sea use as opposed to land use. Coastalerosion caused by marine and sand mining appears not to be specifically addressed. Neither isthere specific protection of coral reefs.One of the strongest pieces of legislation on coastal zone resources is the Marine Areas(Preservation and Enhancement) Act 1970. The Act enables the creation of marine parks andwildlife sanctuaries for the enjoyment of the public and enables restriction of entry into suchareas and removal of flora and fauna therefrom. The Ministry of the Environment administers theAct. The Minister may make regulations protecting special areas; regulations concerning thetaking of fish, turtles and other marine species are likely to overlap with jurisdiction exercisedunder such legislation as the Conservation of Wildlife Act.

The statutory powers are seldom used; designation of the Buccoo Reef off Tobago (some 1,000 ftfrom the coast) is reported to be the only case of application of power to designate special areasunder the Act of 1970. Indications are that enforcement of special environmental measures israther lax. No other coral reefs are protected under the Act. Further utilization of the powers ofdesignation and regulation is clearly indicated.

There are umbrella provisions in the Environmental Management Act of 1995 enabling EMAinvolvement in designation and management of environmentally sensitive areas and species, andrecently the Authority has adopted Regulations in this regard.

Sovereignty in respect of fisheries resources in the 12-mile territorial sea is established by the

Territorial Sea Act 1969 and sovereign rights over living resources within the 200-mile exclusiveeconomic zone is assured by the Archipelagic Waters and Exclusive Economic Zone Act.Substantive regulation over fisheries may be undertaken under the Fisheries Act, which regulatesfishing in the waters of Trinidad and Tobago.

Regulation of marine pollution lacks adequate legislation, a deficiency reflected in Trinidad andTobagos non-participation in such agreements as MARPOL 73/78, the London Convention,CLC 1992 and FUND Convention 1992. The proposed Shipping (Marine Pollution) Bill 1997 isexpected to modernize the law in this regard. There are umbrella provisions in the EnvironmentalManagement Act enabling EMA involvement in control and management of marine pollutionwithin the environment of Trinidad and Tobago but whether this jurisdiction extends beyond the12-mile territorial sea limit is open to question.

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H) Environmental Impact Assessment

Environmental impact assessment (EIA) of coastal developments is not regulated satisfactorily.The Environmental Management Act 1995 grants express power to the EMA to require an EIA.The EMA may issue a certificate of environmental clearance in order for certain proposals for

development to proceed. The Authority has yet to develop detailed specifications governingeither the EIA or certificate of environmental clearance process. In practice, responsibility formanaging the EIA process has been left to the Town and Country Planning Departmentnotwithstanding considerable shortage of technical and financial resources in that Department.The practice of the Department in enlisting the support and assistance of the IMA has greatlystrengthened the technical and management aspects of the process but this has led to charges ofconflict of interest on the part of IMA.

I) Institutional Management

Trinidad and Tobago has no formal inter-sectoral or interagency committee to deal specificallyand comprehensive with coastal zone matters. Nor is there any fixed body to manage and develop

coastal resources. Institutional responsibility is fragmented and dispersed over multipleinstitutions without overall coordination. The role of the more important institutions is describedbelow.

J) Environmental Management Authority

The Environmental Management Authority (EMA) was established by the EnvironmentalManagement Authority Act. The EMA has broad statutory responsibility for managing and protecting the environment of Trinidad and Tobago. This includes regulation of all coastalactivities, although in practice issues of coastal erosion and coastal reclamation projects aredevolved to the Lands and Surveys Department.

A widespread view is that the Authority is hampered by the absence of subsidiary or enablinglegislation (e.g. Regulations) specifying detailed obligations. A number of legislative initiativesare in draft form. These include legislation providing for certificate of environmental clearance,environmental impact assessment (EIA), protection of special or sensitive species, and regulationof coastal development. Many coastal issues are pollution oriented and the EMA is developingpollution control Regulations for the control of air and water pollution as well as solid and liquidwaste. The EMA also proposes to undertake elaborate monitoring and enforcement activities. AnEnvironmental Code is to be drafted by March 2000. The EMA Act requires development ofregulations on these matters.

EMA is the focal point for the implementation of several international conventions of relevanceto coastal zone management. These include CBD, SPAW, FCCC, and the Basel Convention. Inpractice the Authority forms sub-agencies to implement obligations under particular conventions.A general problem identified by interviewees was the absence of implementing legislation formany environmental treaties to which T&T had become and desired to become a contractingparty.

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The EMA performs an important coordinating role in relation to environmental management.There are some 28 agencies and two Ministries with which the Authority regularly deals in theexecution of its functions. Agencies thus coordinated include:

Town and Country Planning Agencies

Maritime Services Division Cabinet Committees (having direct responsibilities over coastal zone management

issues)

National Parks and Wildlife Authority

The Fisheries Department

The Forestry Department

K) Institute of Marine Affairs

The Institute of Marine Affairs (IMA) is established, incorporated and administered inaccordance with by the Institute of Marine Affairs Act 1976, as amended in 1990. The Institute isunder the purview of the Ministry of Planning and Development.

Research at the IMA presently relates to systematic investigations of coastal zones, inlandwaterways and rivers, near-shore waters, and the Exclusive Economic Zone. The fields ofactivity include marine fisheries, environmental impact assessment, marine geology, pollutionmonitoring, physical oceanography, taxonomy, satellite remote sensing, geographic informationsystems, marine environmental policy and law, environmental management planning, publiceducation, and information management.

The IMA carries out functions primarily in relation to issues affecting the marine and coastalareas. However the early thinking that the Institute should focus exclusively on coastal zonematters was resisted and was finally abandoned in 1988 when Trinidad and Tobago decided notto develop coastal zone management plans. As allowed under its parent statute, the Institute

performs advisory functions to Government and conducts research activities on a consultancybasis for both Government and private sector interests. The duality of functions has given rise toaccusations of conflict of interest. In order to meet these concerns, the Institute declines toreview outputs of projects on which it had unsuccessfully placed a bid or otherwise indicatedconsultancy interest. For similar reasons the IMA has declined invitations (e.g. from the EMA) toperform monitoring or enforcement functions.

The IMA performs a significant inter-agency function given the composition of the MarineAffairs Council. Included are representatives of the Ministry of Agriculture, Lands and Fisheries;Ministry of Petroleum and Mines; Ministry of Planning and Development; Trinidad and TobagoCoast Guard; Ministry of External Affairs; Ministry of the Attorney General and Ministry ofFinance.

The IMA stresses that its statutory mandate empowers research and advisory functions beyondTrinidad and Tobago and into the Caribbean and adjacent regions.

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L) Conclusions

Coastal zone regulation in Trinidad and Tobago requires sharper focus, treatment of issues notclearly represented in legislation, reform of antiquated provisions, particularly as relates to penal provisions, and comprehensive coastal zone institutional arrangements. In relation to the

institutional system, as well, there is the requirement for legislative frameworks and formalizedprocedures for inter-agency co-ordination.

Given the reticence to accept coastal zone management legislationper se, the model reflective ofthe legislative treatment of coastal matters within an integrated sustainable managementframework might be most appropriate. In this regard, the EMA presents a ready-made integrativeframework. Legislative provisions specific to coastal zone matters could be fed into theframework by way of amendment of the Act of 2000 or by the adoption by the EMA (pursuant toits plenary powers) of subsidiary regulation/management plans etc. implementing appropriateregulatory regimes.

PART 6:

CONCLUSIONS AND RECOMMENDATIONSFOR LAW REFORM

A) The Case for Reform

Caribbean coastal zone management is experiencing an era of unprecedented activity. Thetraditional approach of responding ad hoc to specific problems as they arose in coastal areas contextis increasingly being jettisoned in favor of comprehensive regulation of the coastal resource.

There is broad consensus on the need to develop management systems to deal effectively withgrowing problems of coastal deterioration caused by rapidly expanding levels of beach tourism,growing urbanization of coastal lands, coastal sand-mining, and the risk of maritime oilpollution. There are also emergent issues to do with sea level rise. Correspondingly, there isgeneral agreement on the requirement for legislative reform that addresses fragmentation inadministrative and legal structures and which brings a sharper focus to management of coastalissues.

The process of achieving legislative reform is, however, controversial; differing views have beenexpressed as to the nature and structure of most appropriate legislative and institutionalframework.

It is suggested that legislative initiatives in some countries of the region provide useful options as precedents for reform. Notable illustrations may be drawn from Barbados (Coastal ZoneManagement Act, 1998, (1998-39); Belize (Coastal Zone Management Act, 1998, (No. 5 of

1998)); and Jamaica (the Natural Resources Conservation Authority Act, 1991 (Act No. 9 of1991)).

Some of the pressing issues that would benefit from a review of the operation of coastal zonemanagement in these countries include the following:

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Definition of coastal zone

Incorporation of international standards embodied in conventions

Statement of objectives of coastal zone management

Development of coastal zone management plans

Application of planning regimes seaward of the high water mark

Clear provisions for environmental impact assessments

Substantive regulation of marine mining, sand mining, coastal works, protection ofespecially vulnerable areas and species, waste management, and control of maritimepollution.

Treatment of private interests

Public access

Control of government activities in the coastal zone

Effective arrangements for Co-management, including involvement of NGOs

It follows that a critical need in the region is for concerted improvements in the regulatory andinstitutional infrastructure dealing with coastal zone issues.

In this process, an overriding objective of law reform must be the establishment of systems toensure law enforcement and compliance. The most frequently voiced criticism of environmentallaw in general and coastal zone regulation in particular is the absence of any strong enforcementmechanism. One aspect of this problem relates to the types of enforcement options available.Historically heavy reliance was placed upon command and control methodologies but even thenfines were generally too low to act as a deterrent and custodial sentences were extremely rare. Inmore recent times the courts have been given far greater latitude in sentencing to include forexample, the possibility of imposing orders for community service, administrative assessments,offering of apologies, and the like. Greater emphasis needs to be placed upon these alternativesentence options and also upon the use of economic incentives and disincentives.

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BIBLIOGRAPHY

Legislation and conventions (as cited in the text)

Anderson, Winston Implementing MEAs in the Caribbean: Hard Lessons fromSeafood and Ting (2001) Vol. 10 (2) Review of EuropeanCommunity and International Environmental Law 227

Anderson, Winston MEAs: Facilitating Negotiation and Compliance Options ForReform (Report for the Organization of Eastern CaribbeanStates, Natural Resources Management Unit (OECS/NRMU)),2001.

Anderson, Winston MEA Implementation in the Caribbean: Report and

Guidelines (UNEP/ROLAC, 2000)

Anderson, Winston The Law of Caribbean Marine Pollution (Kluwer LawInternational, 1997)

Anderson, Rankin,

VanderZwaag, Strengthening Acceptance and Implementation of Maritime Treaties and International Law Obligations in OECSMember States (CIDA, 1999)

Caribbean Law Institute: The Environmental Laws of the Commonwealth Caribbean (CLI1992)

Willms & Shier: Institutional Strengthening Project: Coastal ConservationProject Unit Government of Barbados (1992)

Review of National Legislations Related to Czm

Documents

Transcript of Review of National Legislations Related to Czm