Court considers stay on removal of NCC scientists

(CNS): A grand court judge is expected to make a decision tomorrow on whether or not the technical experts and scientists on the National Conservation Council who were fired by Cabinet will be able to keep their positions until a legal argument over the legality of that mass sacking is resolved. Stuart Mailer and Patricia Bradley have filed for a judicial review of their ousting, as they argue the government fired them unlawfully.

The minority UPM government fired the NCC members after it failed to get parliament’s support to change the National Conservation Act.

In a preliminary hearing on Monday, Chris Buttler KC, who is representing Mailer and Bradley, urged the presiding judge, Justice Marlene Carter, to stay the sacking of these members and their colleagues, allowing them to continue the NCC’s work until the main hearing on whether or not the government broke the law when it tried to replace them with political appointees without the relevant competency.

Buttler said that there were several reasons why the status quo should be allowed to continue until the bigger question of the legality is decided by the courts, not least because they had a very good chance of winning the case. He argued that the “nakedly political appointments designed to undermine the work of the National Conservation Council” could do serious harm to the environment in the time between now and the substantive hearing planned for May.

He pointed out that Cabinet had fired most of the technical and scientific experts on the council because they had followed the conservation law by operating in a politically neutral fashion, guided by science. But the government had made it clear it wanted to change the law because it wanted the NCC’s decisions to be political and not scientific.

But the minority government had failed to convince parliament to support its controversial amendment bill, so it had tried to circumvent the will of parliament by changing the people on the council so they would make the decisions that the government wanted them to make without them having to amend the law.

The government has battled with the NCC in court twice and lost both times. Buttler said it was precisely because of the development that government wanted the council to allow that the change in its members would likely result in decisions detrimental to the environment and not based on measured evidence.

He provided two examples of decisions that had been made to protect the environment: the emergency interim protection order the NCC had placed on blue iguana territory in East End in the face of unlawful road construction and clearing, and the order against granting planning permission for a Cabanna on the very edge of the beach in a marine park area on Boggy Sand Beach.

Buttler said that allowing a change in the membership before the court had weighed in on the lawful removal of the original members could result in irreparable harm to Cayman’s natural resources.

He reflected on the proposed members’ clear lack of scientific expertise and the anti-science position taken by some of them, who have even disputed publicly the accepted science on the importance of wetland eco-services, and their opposition to the concept of environmental impact assessments, one of the most fundamental requirements in the conservation act.

Naina Patel KC, from Blackstone Chambers, argued the government’s position that there should be no stay. The brief defense demonstrated what appears to be the UPM’s desire during the waning days of the administration not to see the NCC members they sacked do their work until the court case is decided.

Patal, representing the Attorney General’s Chambers, said it was too late for a stay. She said that the new appointments had already been made and the old members had been thanked for their service and terminated. She argued that if the court granted the stay, it would effectively be giving what the NCC members were seeking, albeit on a temporary basis, before the court decided.

Patel said there was no evidence before the court that the new members were about to allow environmental harm or that the NCC was even likely to meet between now and 12 May when the juridical review is expected to be heard.

The government attorney also disputed Butler’s claim that the NCC members had a prima facie case. She said the conflict between the Public Authorities Law and how that governs the appointment of the council members and the National Conservation Act would be critical in deciding whether or not they had a case.

Patel argued that if the government wins the case, then the court would have reappointed people who were lawfully fired and removed lawful Cabinet appointees who should have been allowed to carry out their functions.

Justice Marlene Carter said she would deliver a written decision relating to the stay on Tuesday.