Legislative Regulation of the Environment
| Author | Winston Anderson |
| Pages | 83-110 |
Page 83
5. Legislative Regulation of the Environment
At the core of the problem with early envi-
ronmental law was the absence of strategic
techniques for env ironmental regulation.
Dominated by sectora l statutes, largely i nher-
ited from the British and unsupported by any
overarching policy-making institution, environ-
mental law then responded in a piecemeal and
ad hoc manner to environmental chal lenges
that betrayed a lack of modern reg ulatory tools.
ese defect s resulted in a lita ny of problems—of
which deciency of enforceable standards, insuf-
cient coordination with related legislation, lack
of policing and enforcement, and inadequate
penalties were among t he most prominent.1 e
multiplicity of admin istrative responsibility led to
problems of overlap, duplication, gaps, as well as
admini strative ghting over turf.2 e a bsence of
1. Consider, for ex ample, the early legislation on b each protec-
tion, oil pollutio n, wild bird conservation, a nd maritime
jurisdiction preval ent throughout the region. e spe cic
examples are drawn from Barbados. e Beac h Protectio n
Act 1890 (1 890-7) pro hibited t he digging and removal of
sand from the foreshore, but exempted the Crown and private
individuals min ing for domestic purpo ses. Contravention
was punishe d by a n e of $250, and there was no provision
for imprisonme nt. e Wild Birds Protect ion Act (cap. 398)
(1907-9) prohibited the killing or wounding of wild birds
on pain of a maximum ne of $250. e Oil in Navigable
Waters Act 1927 (1927-5) prohibited the discharge of oil into
Barbados’ then 3-mile territorial sea on the thre at of a ne of
$480. Apparent ly, discharges slightly further out to sea were
allowable, notw ithstanding the ocea nographic characteristi cs
of the Caribbean Sea, which tend to distribut e maritime pol-
lutants along coast lines. Moreover, the jurisdictional range o f
the legislation remained unchanged until 1994; there was no
integration i nto the Marine Boundaries and Jurisdi ction Act
(cap. 387) (1978-3) providing for jurisdiction ove r a 12-mile
territorial sea and a 200-mile exclusive economic zone. e
penalty structu re, similarly, remained unchanged. A sentence
of imprisonment was not available, and the maximum ne was
much too low to h ave any deterrent value.
2. e case of Barbados is again typical in this regard. Approximately
40 pieces of environmental legislation were distributed over at least
10 dierent ministries and 18 departments or authorities. e
institutionalization of environmental protection is characterized
by problems occasioned by the multiplicity of organizations that
an institutiona l focal point became synonymous
with fra gmentary regulat ion, ineective manage -
ment, and a lack of serious intent.
As we have seen, Caribbean commitment to the
internationa l environmental movement has given
political impetu s to the de velopment of com-
prehensive regul atory regimes and institutions.3
e rst step in institution-building was form-
ing ministries of the environment. e second,
and more importa nt, w as the legislative creation
of national institutions to overcome fragmenta-
tion in the ex isting regulatory framework. ese
new institutions gave unprecedented cent rality
and cohesion in national policy to objectives of
conservation, sustainable use, pollution control,
plannin g, and environmental impact assessment
(EIA). e agencies were given broad responsibi l-
ity for environmental management and an array
of administrative tools to ensure the adequate dis-
charge of their ma ndate.
Any enquiry into contemporary legislative
regulat ion of the environment must consider,
therefore, the nature and responsibilities of these
new institutional arran gements for env ironmen-
tal management. Some account must be given of
the principles to be applied by the environmen-
have various levels of jurisdiction. e matrix of administration
presents problems of overlapping jurisdiction between units of
one ministry, between units of one ministry and a statutory body,
and between one statutory body and another. For example, both
the Coastal Conservation Unit and the National Conservation
Commission exercise jurisdiction over the Beach Protection Act
1890 (1890). e Chief Town Planner has separate administra-
tive responsibilities under both the Town and Country Planning
Act (cap. 240) (1965) and the Trees (Preservation) Act (cap. 397)
(1981), and permission to proceed under one legislative regime
has created uncertainty regarding whether other related restrictions
are thereby waived; see generally C L I, T
E L C C
(1992).
3. For a more complete discussion of this subject, see chapter 1,
above.
Page 84 Principles of Caribbean Environmental Law
tal agencies, and there must also be an examina-
tion of the speci c techniques or tools available to
these agencies, and to others, for intervening in
environmenta l management. Command a nd con-
trol, administrative mea sures, economic instru-
ments, judicial review, and actions for nancial
compensation provide specic avenues for inter-
vention. Finally, the eect of legislative regulation
of the environment on the common law and par-
ticula rly on t he availability of compensatory civil
action must be canva ssed.
Before t hese matters a re tackled, and as a way
of setting the stage for their meaningful con-
sideration, it is necessary to outline the general
evolution in the use of legislation to ma nage the
environment. e role of the constitution in set-
ting the outer limits to environmental regulation
has already been considered.4
Evolution in Legislative Regulation
Several stages in the e volution of legislative envi-
ronmental regu lation can be identied. ese
range f rom regulation of areas of earliest environ-
mental concerns, through modern legislative devel-
opments, to current judicial construction of the
legislative regime.
Traditional Legislative Concerns
Nascent concerns for environmenta l control may
be tra ced to the C ommonwealth Caribbean’s
earliest env ironmental legislation on record . e
veritable King’s Hill Enclosure Act 1791 of St.
Vincent and the Grenadines5 was enacted to pro-
tect “King’s Hill in the parish of Saint George and
[to preserve] the trees growing thereon in order to
attract clouds and rain.”6 A hundred years passed
before the mantle was again taken up with the
enactment of statutes designed to protect other
specic aspects of ora and fauna important to
colonial sensibilities. Legislation was enacted to
4. For a more complete discussion of this subject, see chapter 4,
above.
5. Hill Enclosure Act, cap.239 (1791) (St. Vincent). e act com-
menced on April 2, 1791, and remains in force to this day.
6. Proprietors of adjoining land are required to plant and maintain
in good order a hedge or fence of Galba between their lands, and
the act made it an oense punishable by ne and imprisonment
for any person to destroy any trees or brush on the hill.
protect beac hes,7 turt les and sh,8 forest,9 a nd
wild birds.10
An important development came with legisla-
tion for integrated conservation of fauna and ora.
Instead of separate legislation on birds, turtles,
and sh, for example, there emerged the classical
Wildlife Protection Act,11 which extended the basic
legislative regime to several categories of wildlife,
including birds and “other animals”. Integrated
conservation was a lso characterized by in situ pro-
tection of related fauna and ora as exemplied in
the quintessential Morant and Pedro Cays Act of
Jamaica,12 mak ing both cays protected sanctuaries
for wildlife within which specied harmful prac-
tices were prohibited. Similar symbiotic relation-
ships were recognized in the early legislation a nd
include legislative regulation of forests and wildlife;
preservation and enhancement of marine areas for
public enjoyment and scientic research; a nd for-
estry, soil, and water conservation.
Legislative focus shifted from resource usage
to environmental pollution with the emergence
of maritime transportation of large qua ntities of
7. See, e.g., Beach Control Act, cap. 45 (1958) (Ant. & Barb.), Beach
Protection Act, cap. 46 (1957) (Ant. & Barb.); Beach Protection
Act (1890) (Barb); Beach Protection Ordinance, cap. 233 (1985)
(Virgin Is.); Beach Control Act, ch. 42:04 (1996) (Dominica);
Beach Protection Act, cap. 29 (1979) (Gren.); Beach Control
Act, Laws 63 of 1955 et seq. (1955) (Jam.); Beach Protection
Act, cap. 6.04 (1984) (St. Lucia); Beach Protection Act, cap.
331 (1981) (St. Vincent).
8. See, e.g., Fisheries Act, cap. 173 (1983) (Ant. & Barb.); Fisheries
(Protection of Lobster) Regulations, S.R.O. 3 (1978) (Ant. &
Barb.); Fisheries Regulation Act of 1904 (1904) (Barb.); Fisher-
ies Act, ch. 61:60 (1987) (Dominica); Fisheries Act, cap. 71:08
(1956) (Guy.) repealed by Fisheries Act (2002) (Guy.); Fishing
Industry Act (1975) (Jam.); Fisheries Act, cap. 7.15 (1984) (St.
Lucia); Fisheries Act, ch. 67:51 (1916) (Trin. & Tobago).
9. See, e.g., Forestry Act, cap. 178 (1941) (Ant. & Barb.); Forests
Act, cap. 213 (2000) (Belize); Sage Mountain (Forestry Area
Declaration) Order, S.R.O. 8/1955 (Virgin Is.); Forests Act, ch.
60:01, Act 25 (1958), Forests Rules, S.R.O. 17/1972 (XXJURIS-
DICTIONXX); Forestry and Wildlife Act, ch. 60:02(1976)
(Dominica); Forests Act, cap. 67:01, Act 15 (1953), Guyana
Forestry Commission Act (1979) (Guy.); Forest Law, cap. 338,
Law 42 (1937) (Jam.); National Conservation and Environment
Protection Act (1987) (St. Kitts); Forest, Soil and Water Conser-
vation Act, cap. 7.09(1983) (St. Lucia);, Forest, Soil and Water
Conservation (crown Land Forest Produce) Rules S.I. 45/1946,
9/1951, and 11/1983 (St. Lucia);Protected Forests, Rules and
Declarations, S.I. 18/1951 (St. Lucia); Forests Act, cap. 58
(St. Vincent); Forests Act, ch. 66:01 (1915) (Trin. & Tobago).
10. Similar legislation appears to have been introduced into the
British Parliament as a private member’s bill sponsored by the
Royal Society for the Protection of Birds.
11. See e.g., Wild Birds Protection Act, cap. 472 (1913) (Ant. &
Barb.); Wildlife Protection Act, cap. 220,(1981) (Belize); Wild
Birds Protection Ordinance, cap. 96(1959) (Virgin Is.); Birds
and Other Wildlife Protection Act, cap. 34 (1957) (Gren.); Wild
Life Protection Act, cap. 413 (Jam.); Wildlife Protection Act,
cap. 6:03 (1980) (St. Lucia).
12. Cap. 255 (1975) (Jam.); see also Wild Animals and Birds Sanctu-
ary Act, cap. 339 (1990) (Gren.).
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