Conservation and Environmental Management Act, 2014 (No. 17 of 2014)

MONTSERRAT CHAPTER 12.03 CONSERVATION AND ENVIRONMENTAL MANAGEMENT ACT and Subsidiary Legislation Revised Edition showing the law as at 1 January 2019 This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act. This edition contains a consolidation of the following laws— Page CONSERVATION AND ENVIRONMENTAL MANAGEMENT ACT 3 Act 17 of 2014 .. in force 1 September 20141(S.R.O. 67/2014) Amended by Act 5 of 2017 .... in force 11 July 2017 1 Section 93(1)(b) is not in forcc (S.R.O. 67/2014). MONTSERRAT CHAPTER 12.03 CONSERVATION AND ENVIRONMENTAL MANAGEMENT ACT and Subsidiary Legislation Revised Edition showing the law as at 1 January 2019 This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act. This edition contains a consolidation of the following laws— Page CONSERVATION AND ENVIRONMENTAL MANAGEMENT ACT 3 Act 17 of 2014 .. in force 1 September 20142(S.R.O. 67/2014) Amended by Act 5 of 2017 .... in force 11 July 2017 2 Section 93(1)(b) is not in forcc (S.R.O. 67/2014). LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 3 Revision Date: 1 Jan 2019 CHAPTER 12.03 CONSERVATION AND ENVIRONMENTAL MANAGEMENT ACT ARRANGEMENT OF SECTIONS PART 1 PRELIMINARY SECTION 1. Short title 2. Interpretation 3. Purpose 4. Principles PART 2 ADMINISTRATION: ESTABLISHMENT AND ROLE OF THE NATIONAL CONSERVATION AND ENVIRONMENTAL ADVISORY COUNCIL AND THE DEPARTMENT OF ENVIRONMENT 5. Powers and duties of the Minister 6. Establishment of the Council 7. Functions of the Council 8. Standing Committees of the Council 9. Functions of Standing Committee 10. The Director of Environment 11. Responsibilities of Director of Environment 12. Signature and delegation of Director 13. Implementation and enforcement of this Act PART 3 ENVIRONMENTAL MANAGEMENT 14. National Environmental Management Strategy 15. National Environmental Information System 16. Annual stewardship report PART 4 CERTIFICATE OF ENVIRONMENTAL APPROVAL 17. Certificate of environmental approval LAWS OF MONTSERRAT Conservation and 4 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 18. Issue of Certificate 19. Monitoring compliance 20. Requirement for further information or an environmental impact assessment 21. Approvals from other governmental entities PART 5 CONSERVATION OF BIOLOGICAL DIVERSITY 22. National Strategy for the Conservation of Biological Diversity 23. Identification and monitoring 24. Protected fauna 25. Protected flora 26. Partially protected fauna 27. Partially protected flora 28. Unprotected species of fauna and flora 29. Actions against protected and partially protected species of fauna and flora 30. Preservation order PART 6 TRADE OF SPECIMENS 31. Permit required for trade 32. Permission required for scientific research PART 7 PROTECTED AREAS 33. Protected areas 34. Preparation of Protected Areas Systems Plan 35. Designation of protected area 36. Notice of intention to designate a protected area 37. Temporary protected area 38. Demarcation of boundaries 39. Responsibility for management of protected areas 40. Private land in protected areas 41. Vesting of Crown land in protected areas in trustees 42. Agreement to manage private land as protected area 43. Activities in buffer zones 44. Restrictions on disposal of Crown land in protected areas 45. Restrictions on development in protected areas LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 5 Revision Date: 1 Jan 2019 46. Operations by governmental entities in protected areas 47. Management plan for protected forest areas consistent with PAS Plan and NEMS 48. Felling, extraction or removal of timber from protected areas PART 8 FORESTS AND FIRES 49. Forestry operations 50. Silviculture, agro-forestry and tree planting 51. Forested private lands 52. Fire prevention PART 9 POLLUTION CONTROL 53. Registration of releases of pollutant 54. Pollution permits 55. Director to monitor compliance 56. Performance standards PART 10 SPILLS, ACCIDENTAL RELEASES AND ENVIRONMENTAL RESTORATION 57. Spills and accidental releases 58. Environmental restoration order PART 11 ENVIRONMENTAL AUDIT AND MONITORING 59. Environmental auditing 60. Environmental management plan 61. Environmental monitoring 62. Powers of entry, search and seizure 63. Sampling and testing PART 12 ADMINISTRATIVE PROCEEDINGS 64. Notice of violation 65. Issue of administrative order 66. Administrative order LAWS OF MONTSERRAT Conservation and 6 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 67. Administrative civil assessment 68. Application for determination of administrative civil assessment 69. Other actions by the Director PART 13 PRIVATE CIVIL ACTIONS 70. Private civil actions PART 14 PHYSICAL PLANNING AND ENVIRONMENTAL (APPEALS) TRIBUNAL 71. Composition of Tribunal 72. Jurisdiction of the Tribunal 73. Powers of the Tribunal 74. Procedure of Tribunal PART 15 OFFENCES 75. Penalty for breach of regulations 76. Offence for protected species 77. Obstruction of an authorised officer 78. Criminal offence for knowing or reckless endangerment 61 79. Scientific evidence 80. Prosecutions and penalties under other Acts not precluded 81. Administrative and criminal actions PART 16 LIABILITY OF PUBLIC AND PRIVATE OFFICIALS 82. Liability of officials PART 17 MISCELLANEOUS 83. Funding for environmental management 84. Regulations 85. Amendment of Schedules 86. Fees 87. Forms 88. Service of documents LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 7 Revision Date: 1 Jan 2019 89. Intervention by the Attorney General 90. Ethical standards and prohibitions 91. Acts done in good faith 92. Reservation of civil remedies 93. Savings and transitional provisions 94. Act binds the Crown SCHEDULE 1: Activities requiring a certificate of environmental approval SCHEDULE 2: Protected species SCHEDULE 3: Partially protected species SCHEDULE 4: Designated protected areas LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 9 Revision Date: 1 Jan 2019 CHAPTER 12.03 CONSERVATION AND ENVIRONMENTAL MANAGEMENT ACT (Acts 17 of 2014 and 5 of 2017) AN ACT TO PROVIDE FOR THE ADMINISTRATION, CONSERVATION AND PROPER SUSTAINABLE USE OF BIOLOGICAL DIVERSITY, NATURAL RESOURCES AND THE NATURAL HERITAGE OF MONTSERRAT; THE DESIGNATION AND MANAGEMENT OF PROTECTED AREAS, POLLUTION CONTROL; THE REGULATION OF ACTIVITIES; THE INCORPORATION OF INTERNATIONAL OBLIGATIONS WITH RESPECT TO THE ENVIRONMENT INTO NATIONAL LAW; AND RELATED MATTERS. Commencement [1 September 2014] PART 1 PRELIMINARY Short title 1. This Act may be cited as the Conservation and Environmental Management Act. Interpretation 2. In this Act— “activity” means an event that has or may have an adverse effect on human health or the environment and includes a process, project, construction, operation, dismantling, abandonment of physical works or any other event in the natural surroundings or landscape including those involving the extraction of natural resources or an activity listed in Schedule 1 and includes modification of an activity; “agro-forestry” means the growing of timber or other forest produce in combination with either the growing of crops or the rearing of livestock or both; “authorised officer” means a public officer designated as such under section 13; “biological diversity” means the variability among living organisms from all sources including, among other things, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are LAWS OF MONTSERRAT Conservation and 10 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 part; and includes diversity within species, between species and of ecosystems; “buffer zone” means an area that is adjacent to a protected area, or is adjacent to an area where an activity is carried out, and that performs the function of mitigating the direct impacts of an activity on a protected area or the impact of an activity on the surrounding environment; “Certificate” means a Certificate of environmental approval issued under section 18; “Chief Fisheries Officer” means the Chief Fisheries Officer under the Fisheries Act; “closed season” means a period during which the hunting of a partially protected species of fauna, or the harvesting of a partially protected species of flora, is prohibited; “competent body” means a competent body designated under section 39(2); “conservation area” means a protected area managed mainly for conservation and includes an area of Crown or private land or water or both land and water that is subject to active intervention by the Department or a competent body for management purposes so as to ensure the maintenance of habitats and to meet the requirements of specific species; “Council” means the National Conservation and Environmental Advisory Council established by section 6; “Crown lands” means all lands vested in the Government whether by forfeiture, escheat, purchase or exchange, and all unclaimed land; “cultural heritage” includes— (a) monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; (b) groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; and (c) sites: works of man or the combined works of nature and of man and areas, including archaeological sites, that are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view; “Department” means the Department of Environment; LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 11 Revision Date: 1 Jan 2019 “Director” means the Director of Environment referred to in section 10; “domesticated or cultivated species” means species in which the evolutionary process has been influenced by humans to meet their needs and includes species that have been genetically modified or bioengineered; “ecosystem” means a dynamic complex of plant, animal and micro organism communities interacting as a functional unit within their physical (natural and non-natural) environment; “effect” includes any direct and indirect, secondary, cumulative, short, medium and long term, permanent, temporary, positive, negative and synergistic effect; “endemic species” are species of fauna and flora, or their populations, whose distribution is restricted to Montserrat; “environment” means the components of the earth, including— (a) air, land and water (freshwater and marine areas being the territorial waters of Montserrat); (b) all layers of the atmosphere; (c) all organic and inorganic matter and living organisms; and (d) the interacting natural systems that include components referred to in paragraphs (a) to (c); “environmental audit” means a systematic evaluation of environmental information about an organisation or premises to verify whether and to what extent it conforms to specified audit criteria; “environmental impact assessment” means an examination, analysis and assessment of activities with a view to ensuring environmentally sound and sustainable development; “environmental requirement” means a requirement for a person to— (a) apply for and obtain a permit required under this Act; (b) comply with terms and conditions in a permit issued under this Act; (c) apply for and obtain a Certificate; (d) comply with the terms and conditions in a Certificate; (e) comply with a request to prepare a secondary environmental impact assessment; (f) comply with permitting requirements established for the hunting or possession of a partially protected species of fauna; LAWS OF MONTSERRAT Conservation and 12 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (g) comply with permitting requirements established for the harvesting or possession of a partially protected species of flora; (h) comply with the terms and conditions set out in a stop notice; (i) comply with a rule, regulation or management plan established for a protected area; (j) comply with the terms and conditions set out in an environmental restoration order; (k) comply with the terms and conditions of permission granted by the Director for scientific research and the educational use of species of fauna and flora and associated ecosystem; (l) apply for and receive permission for the conduct of scientific research; (m) comply with a management plan prepared under section 39 or buffer zone management plan prepared under section 43; (n) comply with the procedures for the registration of sources from which a substance, thing or manmade phenomenon, which in a specified quantity, concentration or condition, falls within a prescribed range, is released into the environment; (o) comply with standards, procedures or permitting requirements established for the release of pollutants into the environment; (p) comply with procedures and standards with respect to the periodic or continual monitoring of pollution or releases of pollutants or conditions as required under this Act; (q) comply with performance standards for home and garden appliances; (r) notify the Principal Environmental Health Officer of an intention to handle a non-hazardous waste not contemplated by the compulsory standards for disposal of municipal waste; (s) comply with guidelines, standards, procedures or permitting requirements established for hazardous substances; (t) comply with guidelines, standards, procedures or permitting requirements established for waste; (u) comply with standards established for municipal waste; (v) comply with regulations made under this Act; (w) provide in a timely manner complete and accurate information in a required submission to or communication with the LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 13 Revision Date: 1 Jan 2019 Director or in response to an inspection or request for information by the Director; or (x) comply with conditions, procedures, payment of fees payable under this Act; “fauna” means a species included in the animal kingdom whether native, or naturalised, but does not include man; “flora” means all plant life, especially naturally occurring or indigenous plant life; “forest” means land at least ten percent stocked by trees of a size or formerly having such tree cover and not currently built up or developed for agricultural use; “forest produce” includes— (a) timber, firewood, charcoal, bark and extracts of bark; (b) latex, gums, resins, flowers, fruit, seeds, nuts, leaves, fibres, turpentine, spices, tan-stuffs, dye-stuffs, moulds, fungi, drugs, fodder and thatching material derived from wild- growing trees or plants; (c) wild-growing trees and plants (dead or alive) and all parts and produce of the trees and plants, bamboo and other grasses; and (d) water from run-off and springs; “governmental entity” means— (a) a department of government; (b) a statutory body; and (c) any enterprise or institution which, in whole or in part, is publicly funded or owned by the government; “habitat” means the place or type of site where an organism or population of a species of fauna or flora naturally occurs; “handling” in relation to a hazardous substance or waste means manu facturing, importing, exporting, transferring, processing, treating, packaging, storing, transporting, using, re-using, recycling, collecting, disposing or other related activities; “harvest” means to pick, cut, take or destroy, and any attempt to do, or the giving of assistance in doing, any of these things; “hazardous substance” means a substance which by reason of its chemical or physical properties, and based on technical, scientific and medical evidence, is determined to cause, or likely to cause through its handling, harm to human health or the environment; LAWS OF MONTSERRAT Conservation and 14 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 “heritage site” means a protected area managed mainly for the conservation of specific natural or cultural heritage features, and includes an area of Crown land or private land or water, or both land and water, that contains specific natural or cultural features and that is of outstanding or unique value because of the inherent rarity, representative or aesthetic qualities or cultural significance of those features; “home and garden appliances” includes but is not limited to electricity generators, refrigeration equipment, water-pumps, air-conditioning units, security alarms, brush-cutters and lawn-mowers; “hunt” means to kill, wound, pursue, capture, take, trap, injure, shoot at, wilfully disturb or molest, and any attempt to do, or the giving of assistance in doing, any of these things; “migratory species” means the entire population or a geographically separate part of the population of a species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries; “Minister” means the Minister with responsibility for the environment; “modification” with respect to an activity means a change or alteration that may or may not result in a significant adverse effect on the environment; “Montserrat National Trust” means the membership organisation incorporated by the Montserrat National Trust Act; “Montserrat Utilities Limited” means the company of that name incorporated under the Companies Act; “multilateral environmental agreement” means an agreement between three or more States governing the management of aspects of natural resources or the environment; “municipal waste” means waste generated by a household, including a single or multifamily residence, and includes waste generated from other premises to the extent that the waste is essentially the same in composition as waste that is normally generated by a household and that is collected and disposed of with other municipal solid waste as part of normal municipal solid waste collection services; “national park” means a protected area managed mainly for ecosystem protection and recreation and includes an area of Crown or private land or water or both land and water designated to— (a) protect the ecological integrity of one or more ecosystems for present and future generations; (b) exclude exploitation or occupation inimical to the purposes of designation of the area; and LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 15 Revision Date: 1 Jan 2019 (c) provide a foundation for spiritual, scientific, educational or recreational opportunities, each of which must be environmentally and culturally compatible; “natural heritage” includes— (a) natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic, scientific or recreational point of view; (b) geological and physiological formations and areas which constitute the habitat of threatened species of animals and plants of outstanding universal value; and (c) natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty; “NEIS” means the National Environmental Information System established under section 15; “NEMS” means the National Environmental Management Strategy referred to in section 14; “non-hazardous” means waste not designated as hazardous under this Act; “Notice” means a written Notice of violation served under section 64; “open season” means a period during which the hunting of a partially protected species of fauna is permitted; “partially protected fauna” means species of fauna designated as such under section 26; “partially protected flora” means species of flora designated as such under section 27; “PAS Plan” means the Protected Areas Systems Plan referred to in section 34; “Permanent Secretary” means the Permanent Secretary of the Ministry to which responsibility for the environment is assigned; “person” includes an individual and, however constituted, a body corporate, a company, a partnership, a firm, a business, an enterprise, a trust, a joint venture, an unincorporated association and a governmental entity; “Planning and Development Authority” means the Planning and Development Authority established by section 3 of the Physical Planning Act; LAWS OF MONTSERRAT Conservation and 16 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 “pollutant” means a substance, thing or man-made phenomenon (including energy, noise, light, vibration, electro-magnetic or ionizing radiation, odour or temperature variation) designated as a pollutant under this Act; “pollution” includes the release or deposit of a pollutant or waste onto land or into the air or water, including the sea, so as to cause a direct or indirect alteration of the physical, thermal, chemical, biological or radioactive properties of a part of the environment which, based on technical, scientific or medical evidence, is likely to cause harm to human health, whether physical or psychological, or the environment; “premises” means a location within the environment, including a facility, development, vehicle, vessel, or natural or manmade structure at such location, from or on which pollutants may be released into the environment or where waste or hazardous substances may be handled; “prescribed” means prescribed by regulations made under this Act; “protected area” means a geographically defined area which is designated under section 33 or 35(1) and listed in Schedule 4; “protected fauna” means species of fauna designated as such under section 24; “protected flora” means species of flora designated as such under section 25; “protected forest area” means a protected area managed for the conservation of forests and includes an area of Crown or private land or water or both land and water designated for any of the following purposes— (a) the prevention of deforestation and soil erosion; (b) the prevention of wastage of timber resources; (c) securing the proper management of land upon which trees are growing and which is not under permanent agricultural cultivation; (d) the maintenance of water supplies; (e) the preservation of health; (f) the sustained yield of timber or other forest produce; (g) the storage and collection of water for human consumption and other purposes; (h) the protection of wildlife and flora; (i) recreation and scenic beauty; (j) scientific research; LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 17 Revision Date: 1 Jan 2019 “public officer” has the meaning assigned to it under section 107(1) of the Constitution; “release” means to spill, discharge, dispose of, spray, inject, inoculate, abandon, deposit, leak, seep, pour, emit, empty, throw, dump, place, drain, pump or exhaust a pollutant from any premises; “scientific research” means the use of rigorous, systematic, and objective methodologies to obtain reliable valid knowledge, which includes basic research, applied research, and evaluation research in which the rationale, design, and interpretation are developed in accordance with the following principles— (a) development of a logical, evidence-based chain of reasoning; (b) methods appropriate to the questions posed; (c) observational or experimental designs and instruments that provide reliable findings capable of being generalized; (d) data and analysis adequate to support findings; (e) explication of procedures and results clearly and in detail, including specification of the population to which the findings can be generalized; (f) adherence to professional norms of peer review; (g) dissemination of findings to contribute to scientific knowledge; (h) access to data for re-analysis, replication, and the opportunity to build on findings; “significant” means, with respect to an environmental effect, an adverse effect that occurs or could occur as a result of any of the following— (a) the magnitude of the effect; (b) the geographic extent of the effect; (c) the duration of the effect; (d) the frequency of the effect; (e) the degree of reversibility of the effect; (f) the possibility of occurrence of the effect; “special fund” means the special fund established under the Public Finance (Management and Accountability) Act for the purpose of environmental management; “specimen”, in relation to a species of fauna or flora, means— LAWS OF MONTSERRAT Conservation and 18 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (a) means an individual of a species of fauna or flora (whether alive or dead), any part of such individual (including a shell, skin, plumage, nest or eggs) or anything derived from such individual (whether or not processed by man); and (b) includes goods which, from an accompanying document, packaging, mark or label or from other circumstances, appear to be an individual, or part of an individual, of a species of fauna or flora or to be derived from such individual; “St. George’s Declaration” means the St. George’s Declaration of Principles for Environmental Sustainability in the Organisation of Eastern Caribbean States signed by the Organisation of Eastern Caribbean States Ministers responsible for the Environment at St. George’s, Grenada in April 2001; “statutory body” means an organisation or agency authorised by an Act to construct and maintain public roads, drains or other infrastructure works, or carry on an undertaking for the supply of electricity, water, telecommunications services or other public utility; “strict nature reserve” means a protected area managed mainly for scientific purposes and includes an area of Crown or private land or water or both land and water possessing some outstanding or representative ecosystems, geological or physiological features or species, available primarily for scientific research or environmental monitoring; “sustainable use” means the use of natural resources in a way and at a rate that does not lead to the long term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations; “temporary protected area” means the designation of a protected area for the immediate protection of species of fauna and flora or a geographically defined area and includes an area of Crown or private land or water or both land and water designated in the national interest; “threatened species” means species or subspecies of fauna and flora, or their populations— (a) that are likely to become endangered within the foreseeable future throughout all or part of their range if the factors causing numerical decline or habitat degradation continue to operate; or (b) that are rare because they are usually localised within restricted geographical areas or habitats or are thinly scattered over a more extensive range, and that are potentially or actually subject to decline and possible endangerment or extinction; LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 19 Revision Date: 1 Jan 2019 “Trade in Endangered Species Act” means the Trade in Endangered Species Act, 2016 (No. 10 of 2016); (Inserted by Act 5 of 2017) “Tribunal” means the Physical Planning and Environmental (Appeals) Tribunal appointed under section 55 of the Physical Planning Act; “waste” includes hazardous or non-hazardous material discarded or intended to be discarded whether or not capable of further use and which constitutes rubbish, slime tailings, effluent, sewage, garbage, refuse, scrap, discarded articles, bottles, cans or any other waste products of any kind and includes any substance whether gaseous, liquid or solid that— (a) is foreign to or in excess of the natural constituents of the environment; or (b) affects the natural, physical, chemical or biological quality of the environment; “watershed management area” means a protected area for the management of watersheds, soil and water resources and includes an area of Crown or private land or water, or both land and water designated for any of the following purposes— (a) establishing controls to prevent or limit sedimentation, pollution or erosion in order to maintain a clean and reliable supply of water for domestic, industrial and commercial use or hydroelectricity production; (b) establishing controls to maintain the soil or water resources in a productive state for agricultural development and the productivity or stability of surrounding areas; (c) managing an area that is in a dangerous or unstable state above or below roadsides, along stream or river banks, or near residential or industrial areas; (d) managing, control and protect the water resources of the area that are in a polluted condition which may be injurious to human health, animals or plants; “wetlands” means areas of herbaceous or mangrove swamp and land covered by water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. LAWS OF MONTSERRAT Conservation and 20 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Purpose 3. The purpose of this Act is to provide for— (a) the allocation and coordination of administrative responsibilities for conservation and environmental management within Montserrat; (b) the conservation and sustainable use of biological diversity, natural resources and the natural heritage of Montserrat; (c) the prevention and mitigation of pollution of the environment for the purposes of protecting human health and maintaining the quality of the environment; (d) the implementation of obligations to which Montserrat is subject under multilateral environmental agreements by facilitating their incorporation into national law; and (e) the provision of stable, adequate, secure and sustainable funding to finance the management of the environment in Montserrat. Principles 4. (1) The principles in this section apply in Montserrat to the actions of all persons and— (a) serve as the general framework within which environmental conservation and management strategies and plans must be formulated; (b) serve as guidelines which a governmental entity must consider and follow when exercising a function which results in or is likely to result in adverse environmental effects; and (c) guide the interpretation, administration and implementation of this Act and any other enactment concerned with the protection or management of the environment. (2) Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably. (3) Development must be socially, environmentally and economi cally sustainable. (4) Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people within that environment by pursuing the selection of the best practicable environmental option. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 21 Revision Date: 1 Jan 2019 (5) Environmental justice must be pursued so that adverse environmental effects shall not be distributed in a manner as to unfairly discriminate against any person, particularly, vulnerable and disadvantaged persons. (6) The participation of all persons in environmental governance must be promoted and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured. (7) The social, economic and environmental effects of activities, including disadvantages and benefits, must be considered, assessed and evaluated and decisions must be appropriate in the light of such consideration and assessment. (8) Global and international responsibilities relating to the environment must be discharged in the national interest. (9) The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be borne for by those responsible for harming the environment. (10) If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (11) Decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law. PART 2 ADMINISTRATION: ESTABLISHMENT AND ROLE OF THE NATIONAL CONSERVATION AND ENVIRONMENTAL ADVISORY COUNCIL AND THE DEPARTMENT OF ENVIRONMENT Powers and duties of the Minister 5. It is the duty of the Minister under this Act to— (a) collaborate with other Ministers to secure consistency and continuity in the implementation of this Act and any other enactment related to the conservation and management of the environment, natural resources and sustainable development; (b) protect and promote the interests of Montserrat with respect to the application of multilateral environmental agreements to Montserrat and ensure that Montserrat meets its inter-national obligations with respect to the environment; LAWS OF MONTSERRAT Conservation and 22 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (c) facilitate the enactment of and promotion of policy, strategies, guidelines, standards, objectives and regulations for the protection and management of the environment so as to ensure the integration of environmental concerns into national decision-making at all levels; and (d) encourage and facilitate the participation of private persons, communities, civil society organisations and other key stakeholders in environmental management. Establishment of the Council 6. (1) The National Conservation and Environmental Advisory Council is established. (2) The Council, established by subsection (1), consists of— (a) the following public officers, as ex officio members— (i) the Permanent Secretary, who is the Chairperson; (ii) the Director of Environment; (iii) the Director of Agriculture; (iv) the Chief Physical Planner; (v) the Director of Public Works; (vi) the Director of Disaster Management Coordination Agency; (vii) the Principal Environmental Health Officer; and (viii) the Director Policy and Planning of the Office of the Premier; (b) the Director of Tourism; (c) the Managing Director of Montserrat Utilities Limited; (d) a representative of the Montserrat National Trust, nominated by the Montserrat National Trust and appointed by the Governor; (e) four persons appointed by the Governor acting on the advice of Cabinet from civil society organisations or the private sector, who have knowledge or experience with respect to matters relevant to the functions of the Council; and (f) a recording secretary assigned from the Department by the Permanent Secretary after consultation with the Deputy Governor. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 23 Revision Date: 1 Jan 2019 (3) The members of the Council appointed under subsection (2)(d) and (e) may be appointed for a period of three years and are eligible for reappointment. (4) The Governor shall, by Notice, publish in the Gazette the names of the members of the Council appointed under subsection 2(d) and (e). (5) The members of the Council, other than public officers, shall hold office on conditions with respect to remuneration and allowances that the Governor acting on the advice of Cabinet may determine. (6) The validity of proceedings of the Council is not affected by a vacancy in its membership or by a defect in the appointment of any of its members. (7) The Council may appoint, from among its members, committees of a general or special nature to carry out any of its functions which in the opinion of the Council would be better managed by means of committees. (8) The Council or a committee of the Council, including a standing committee appointed under section 8, may co-opt a person to assist it in dealing with a matter, if it is satisfied that the person’s qualifications or experience may help the Council or a committee of the Council. (9) A person co-opted under subsection (8) is entitled to take part in the deliberations of the Council or a committee of the Council regarding the matter for which he is co-opted, but may not vote and must take no part in any other proceedings of the Council or a committee of the Council. (10) The Council shall meet at least twice in every calendar year and may regulate its own procedure. (11) All expenses incurred by the Council in the discharge of its functions, unless otherwise provided for, are to be defrayed from the special fund. Functions of the Council 7. (1) The Council shall perform the functions and duties imposed on it by this Act and any other duty consistent with those functions as the Minister may direct. (2) Without prejudice to the generality of subsection (1), the functions of the Council are to— (a) advise on, review and assist in the formulation and development of policy, strategies, guidelines, standards, objectives and regulations for the protection and management of the environment; and (b) advise, assist and make recommendations to the Minister on matters relating to the implementation of any policy, LAWS OF MONTSERRAT Conservation and 24 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 regulations, programmes, strategies, plans or standards made under this Act. Standing Committees of the Council 8. (1) Without prejudice to section 6(7), the Council shall appoint the following standing committees— (a) the Forestry, Wildlife and Protected Areas Standing Committee, consisting of— (i) the Director; (ii) the Director of Agriculture; (iii) the Director of Tourism; (iv) the Chief Fisheries Officer; (v) a representative of the Montserrat National Trust; and (vi) the Chief Forest Officer; and (b) the Pollution Control Standing Committee, consisting of— (i) the Director; (ii) the Chief Physical Planner; and (iii) the Principal Environmental Health Officer. (2) A standing committee shall meet as necessary to perform its functions under section 9. (3) The Director shall serve as Chairperson to the Standing Committees and shall assign a person from the Department to be the recording secretary after consultation with the Deputy Governor. Functions of Standing Committee 9. The functions of a standing committee are— (a) to advise the Council on matters pertaining to policy, strategies, guidelines, standards, objectives and regulations for the protection and management of the environment; (b) to review and revise policy, strategies, guidelines, standards, objectives and regulations for the protection and management of the environment and transmitting these to the Council; and (c) to advise the Council on specific environmental matters that may be referred to the Standing Committees by the Council. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 25 Revision Date: 1 Jan 2019 The Director of Environment 10. The Director of Environment is a public officer and shall perform the functions and duties imposed by this Act including any other duties consistent with those functions as the Permanent Secretary may direct. Responsibilities of Director of Environment 11. The responsibilities of the Director are to— (a) execute the responsibilities arising from or in connection with the administration and implementation of this Act; (b) investigate and monitor the state of the environment and collaborate with other persons or bodies carrying out similar surveys or investigations; (c) compile, analyse and disseminate environmental data and information; (d) provide information to the public about the quality and use of the environment; (e) prepare periodic or other reports that the Government is required to produce under multilateral environmental agreements to which Montserrat is a party or, if responsibility for preparing the reports is delegated or assigned to another entity under section 12 or 39, to ensure that the reports are prepared; (f) promote the sustainable use of biological diversity; (g) manage or co-ordinate the management of protected areas; (h) promote the sustainable use of forests, and conservation of soil and watersheds; (i) prevent and control environmental pollution; (j) support the activities of the Principal Environmental Health Officer in the management and regulation of waste; (k) manage and regulate the environmental effect of activities in collaboration with the Physical Planning Unit and any other governmental entity as it sees fit; (l) formulate, monitor and enforce environmental regulations and standards; (m) formulate policies, strategies and guidelines for the protection and management of the environment; (n) undertake enforcement procedures for breaches of environ mental requirements; LAWS OF MONTSERRAT Conservation and 26 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (o) institute proceedings against persons for the contravention of this Act; and (p) undertake anything incidental or conducive to the perfor mance of any of the foregoing functions or to this Act. Signature and delegation of Director 12. (1) The Director has the authority to sign on behalf of the Department all documentation required in the performance of the Director’s functions under this Act. (2) Unless otherwise provided, the Director may, by instrument in writing and subject to conditions, directions, reservations or restrictions as he or she thinks fit, delegate to any other public officer a power or duty conferred or imposed by this Act or any other enactment on the Director, other than this power of delegation. (Amended by Act 5 of 2017) Implementation and enforcement of this Act 13. (1) The Deputy Governor may designate a public officer, as an authorised officer, in order to implement and enforce this Act. (2) In addition to persons designated under subsection (1), the Director and any other personnel of the Department as the Director may designate in writing, the Chief Fisheries Officer, a police officer, a member of the defence force, an agricultural officer, a forest ranger, an environment officer, a litter warden, a customs officer, a public health inspector and a building inspector are ex officio authorised officers. (3) Despite the designation of a person as an authorised officer under subsection (1) and (2), that person shall require the approval of his supervisor and the Director, if it is reasonably possible to obtain that approval, before the exercise of the functions of an authorised officer. PART 3 ENVIRONMENTAL MANAGEMENT National Environmental Management Strategy 14. (1) The Director shall prepare a National Environmental Manage ment Strategy in accordance with this section. (2) A NEMS shall include— (a) a description of the environment in Montserrat; (b) an analysis of environmental issues of national significance; and LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 27 Revision Date: 1 Jan 2019 (c) the environmental management strategies that are proposed to address the issues set out in paragraph (b). (3) In preparing a NEMS, the Director shall seek and consider comments from stakeholders including governmental entities, civil society, non-governmental organisations and members of the public. (4) The Director shall submit the draft NEMS to the Council for review and the Council may revise the draft NEMS. (5) The Council shall, on completion of its review of the draft NEMS, submit it to the Minister, who shall submit it to Cabinet for approval. (6) After its approval by Cabinet, the Director shall publish the NEMS in the Gazette. (7) The Director shall review and revise the NEMS not less than three years or more than five years after its approval. (8) Despite subsection (7), the Minister may instruct the Director to conduct a review of the NEMS at any time he sees fit. National Environmental Information System 15. (1) The Director shall establish and maintain a National Environ mental Information System. (2) The Director shall place information in the NEIS including— (a) all documents relevant to the application for a grant of a Certificate including the completed application, further information, comments and representations received, the Certificate and monitoring reports in accordance with Part 4; (b) stewardship reports prepared under section 16; (c) monitoring data acquired under this Act; (d) permits and registration certificates issued under this Act; (e) policies, plans, guidelines, strategies and reports made under the Act; (f) registers of information made under the Act; (g) multilateral environmental agreements, conventions, inter national treaties in the field of the environment; and (h) notice of violations, administrative orders and other enforcement proceedings undertaken by the Director under this Act. (3) The information in the NEIS may be kept in documentary form or in an electronic data and retrieval system, or partly in documentary form and partly in an electronic data and retrieval system, as the Director thinks fit. LAWS OF MONTSERRAT Conservation and 28 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (4) The Director may make any information contained in the NEIS available to a person on payment of a fee based on the actual costs of providing the information. (5) The fees collected under subsection (4) shall be paid into the special fund. (6) A person having a direct and private interest in a document listed in subsection (2), may make an application in the prescribed form claiming that the information contained in the document is confidential business information or a trade secret and should be omitted from the NEIS. (7) The Director may reject the claim under subsection (6) for the reason that— (a) the person has not disclosed the basis for the claim; (b) the basis for the claim which is disclosed is invalid; or (c) the public interest in disclosing the information clearly outweighs any prejudice to the person having the direct and private interest. (8) If a claim for confidentiality is rejected by the Director under subsection (7), the applicant may appeal the decision to the Tribunal. (9) A document made available in the NEIS shall not be subject to a claim of copyright except where a prior claim of copyright had been vested in that document. Annual stewardship report 16. (1) The Director shall prepare and submit annually to the Minister a stewardship report which shall include— (a) a description of the environmental management activities undertaken by the Department during the period under review; (b) an assessment of the effectiveness of co-ordination between governmental entities; and (c) a list of any other reports prepared under this Act by the Department or any other entity during the period under review. (2) The Minister shall cause a copy of the stewardship report to be laid in the Legislative Assembly. (3) The Director shall make the stewardship report available for sale to the public at the prescribed fee. (4) The Director may request information from another governmental entity for the purpose of preparing the stewardship report. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 29 Revision Date: 1 Jan 2019 PART 4 CERTIFICATE OF ENVIRONMENTAL APPROVAL Certificate of environmental approval 17. (1) A person who proposes to carry out an activity shall, before commencing the activity, apply for and obtain a Certificate. (2) If the Director concludes, based on scientific and technical evidence, that an activity within a buffer zone is causing or is likely to cause significant adverse effects on a protected area, the Director may require the person who is carrying out the activity to apply for and obtain a Certificate. (3) A person who is required to apply for a Certificate in accordance with subsection (2) may appeal the exercise of the Director’s discretion to the Tribunal. (4) An application made under this section for a Certificate shall be in the prescribed form. (5) The Director, in considering an application under this section, may ask for further information. (6) A person who engages in an activity without obtaining a Certificate under this section is guilty of a breach of an environmental requirement. Issue of Certificate 18. (1) The Director may, after considering all relevant matters including the application for a Certificate, further information, comments or representations received, issue a Certificate of environmental approval on terms and conditions that the Director considers necessary, including a requirement to undertake mitigation measures necessary to facilitate sustainable development and sound environmental management. (2) If the Director refuses to issue a Certificate, he shall provide written reasons for the refusal to the applicant. (3) An applicant may appeal to the Tribunal a decision of the Director to refuse issuance of a Certificate or to issue a Certificate with terms and conditions. Monitoring compliance 19. The Director shall monitor the performance of an activity to ensure compliance with the terms and conditions in the Certificate and to confirm that the performance of the activity is consistent with— (a) the description provided in the application for the Certificate; and LAWS OF MONTSERRAT Conservation and 30 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (b) the information provided in the application, or any further information or data provided by the applicant. Requirement for further information or an environmental impact assessment 20. (1) If the Director is satisfied that an activity poses an environmental threat which could not have been reasonably foreseen at the time of the issuance of the Certificate or that the information or data provided by the holder of the Certificate in support of the application for a Certificate was false, inaccurate or intended to mislead, the Director may— (a) direct the holder of the Certificate to submit further information or data; or (b) recommend to the Planning and Development Authority that the holder of the Certificate be required to submit an environmental impact assessment. (2) The Planning and Development Authority may direct the holder of the Certificate to submit an environmental impact assessment in accordance with section 18 of the Physical Planning Act. (3) The holder of a Certificate who is required to submit further information, data or an environmental impact assessment shall do so at his own expense. (4) Upon receipt of information under subsection (1)(a) the Director may— (a) revoke, suspend or amend the Certificate with new terms and conditions; and (b) require the holder of the Certificate to submit an environmental management plan under section 60. (5) A person who fails, neglects or refuses to comply with a direction of the Director issued under subsection (1) is guilty of a breach of an environmental requirement. (6) A person may appeal to the Tribunal a decision of the Director to revoke, suspend or amend a Certificate under subsection (4). Approvals from other governmental entities 21. (1) If the approval of any other governmental entity is required under an enactment with respect to an activity for which a Certificate is required under this Act, the issue of a Certificate shall not affect the requirement to obtain that approval before the activity may proceed. (2) If the Director determines that a Certificate is required no other governmental entity shall, in granting a permit, or other documentary LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 31 Revision Date: 1 Jan 2019 authorisation with respect to the activity permit the commencement of the activity until a Certificate has been issued by the Director. PART 5 CONSERVATION OF BIOLOGICAL DIVERSITY National Strategy for the Conservation of Biological Diversity 22. (1) The Director shall prepare and submit to the Council for review, a National Strategy for the Conservation of Biological Diversity in accordance with the overall policy of the NEMS and the St. Georges Declaration. (2) The Director shall deposit a copy of the National Strategy for the Conservation of Biological Diversity in the NEIS. (3) The Director may amend the National Strategy for the Conservation of Biological Diversity as he considers necessary. Identification and monitoring 23. (1) The Director shall identify the components of biological diversity important for its conservation and sustainable use, including— (a) ecosystems and habitats that— (i) contain high diversity, or large numbers of endemic, endangered or threatened species; (ii) are required by migratory species; (iii) are of social, economic, cultural or scientific importance; or (iv) are representative of, unique to, or associated with, key evolutionary or other biological processes; (b) species or communities that are— (i) endangered or threatened, or that are wild relatives of domesticated or cultivated species; (ii) of medicinal, agricultural or other economic value; (iii) of social, scientific or cultural importance; or (iv) of importance for research into the conservation and sustainable use of biological diversity, such as indicator species; and (c) described genomes and genes of social, scientific or eco nomic importance. LAWS OF MONTSERRAT Conservation and 32 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (2) The Director shall monitor, through sampling, tagging and other techniques, the components of biological diversity identified under subsection (1), paying particular attention to those requiring urgent conservation measures and those which offer the greatest potential for sustainable use. (3) The Director shall identify processes and categories of activities that are likely to have significant adverse effects on the conservation and sustainable use of biological diversity and shall monitor those effects. (4) If the Director concludes, based on scientific and technical evidence, that an activity is likely to have significant adverse effects on the conservation and sustainable use of biological diversity, the Director may, in the exercise of his discretion under section 17(2), require the person carrying out the activity to apply for a Certificate. (5) The Director shall maintain and organise data derived from the identification and monitoring activities carried out under this section and shall make that data available in the NEIS. Protected fauna 24. (1) The species of fauna specified in Schedule 2 are designated as protected species of fauna. (2) The designation of a species of fish or other marine life as protected shall be done in consultation with the Chief Fisheries Officer and the Council. (3) It is an offence for a person to— (a) wilfully hunt or attempt to hunt a protected species of fauna; (b) knowingly disturb a protected species of fauna during the period of breeding, incubation, aestivation or migration or take, remove, damage, destroy or have possession of a nest or egg of a protected species of fauna; (c) expose for sale, or knowingly have in his possession, a specimen of a protected species of fauna, taken or killed in Montserrat; or (d) export or attempt to export a specimen of a protected species of fauna without a permit issued by the Director under section 31. (4) If proceedings are brought under subsection (3)(c), it is presumed that the protected species of fauna to which the charge relates was taken or killed in Montserrat unless the contrary is proved, the onus of proof of which lies on the defendant in the proceedings. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 33 Revision Date: 1 Jan 2019 Protected flora 25. (1) The species of flora specified in Schedule 2 are designated as protected species of flora. (2) It is an offence for a person to— (a) harvest or attempt to harvest a protected species of flora; (b) expose for sale, or knowingly have in his possession, a specimen of a protected species of flora harvested in Montserrat; or (c) export or attempt to export a specimen of a protected species of flora, without a permit issued by the Director under section 31. (3) If proceedings are brought under subsection (2)(b), it is presumed that the protected species of flora to which the charge relates was harvested in Montserrat unless the contrary is proved, the onus of proof of which lies on the defendant in the proceedings. Partially protected fauna 26. (1) The species of fauna specified in Schedule 3 are designated as partially protected species of fauna which may be hunted or possessed during the open season. (2) The Governor acting on the advice of Cabinet shall designate the open season during which partially protected species may be hunted or possessed in accordance with this Act. (3) No person shall hunt or possess a partially protected species of fauna unless that person is in possession of a permit from the Director. (4) A person who hunts or possesses a partially protected species of fauna without a permit is in breach of an environmental requirement. (5) The Director may issue a permit under this section subject to terms and conditions which he considers necessary. (6) An applicant may appeal to the Tribunal a decision of the Director to refuse to issue a permit or to issue a permit with terms and conditions. (7) The designation of a species of fish or other marine life as partially protected under this section shall be done in consultation with the Chief Fisheries Officer and the Council. Partially protected flora 27. (1) Subject to subsection (2), the species of flora specified in Schedule 3 are designated as partially protected species of flora which may be harvested or possessed. LAWS OF MONTSERRAT Conservation and 34 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (2) No person shall harvest or possess a partially protected species of flora unless that person is in possession of a permit from the Director. (3) A person who harvests or possesses partially protected species of flora without a permit is in breach of an environmental requirement. (4) The Director may issue a permit under this section subject to terms and conditions which he considers necessary. (5) An applicant may appeal to the Tribunal a decision of the Director to refuse to issue a permit or to issue a permit with terms and conditions. Unprotected species of fauna and flora 28. (1) The Director may, if he reasonably believes that an unprotected species of fauna or flora is being threatened by the act or omission of a person that is contrary to the public interest and to the principles set out in section 4, issue a stop notice to that person. (2) If a person who receives a stop notice wishes to make representations to the Director regarding the matters specified in the stop notice, the person must do so within fourteen days after receipt of the notice. (3) If a matter specified in the stop notice is satisfactorily explained or otherwise resolved between the person and the Director, the Director may— (a) cancel the stop notice; or (b) enter into a consent agreement with that person, and allow the actions of the person to continue subject to terms and conditions that the Director considers necessary. (4) If a person fails to obey a stop notice, the Director may direct an authorised officer or any other person to take any action that may be reasonably necessary to impound, hunt, harvest or possess unprotected species of fauna and flora, including feral or loose livestock, found on Crown lands, protected areas or private lands. (5) A person found to be responsible for the control of an unprotected species that is impounded, hunted, harvested or possessed under subsection (4) is liable for the actual costs incurred by an authorised officer or other person in impounding, hunting, harvesting or possessing the unprotected species under that subsection. (6) If the Director is unable to identify the person responsible for the control of an unprotected species that has been impounded, hunted, harvested or possessed under subsection (4) by a person other than an authorised officer, the Director shall pay to that other person the prescribed fee. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 35 Revision Date: 1 Jan 2019 Actions against protected and partially protected species of fauna and flora 29. (1) If a protected or partially protected species of fauna or flora is alleged to be causing damage to crops on private property, the owner or occupier of that property, or any other person at their request or direction, may make a report to the Director who shall immediately take any action that may be reasonably necessary, including the granting of a permit to hunt, harvest or possess the protected or partially protected species of fauna and flora. (2) In the event of an emergency, national crisis or health crisis the Director may take any action that may be reasonably necessary to remedy a problem that may arise with respect to protected or partially protected species of fauna and flora including action which may be contrary to this Act. (3) The Director, in taking any action that may be reasonably necessary under subsections (1) and (2), shall seek to conserve and protect the species of fauna and flora. (4) Protected species and partially protected species of fauna and flora killed or destroyed under subsection (1) is the property of the Crown and shall be disposed of as authorised by the Director. Preservation order 30. (1) The Governor acting on the advice of Cabinet may make an order for the preservation of a particular species of fauna or flora on the information of the Director that it is in the national interest to do so. (2) Before an order is made under subsection (1), the Director shall prepare a draft which shall serve as a proposal for the preservation of the particular species of fauna or flora. (3) A proposal under this section shall— (a) specify the location of the particular species of fauna or flora; (b) be served on the owner or occupier of the land to which the proposal relates and on any person whose interests are likely to be affected by the enforcement of the proposal; and (c) invite representations from the public to be made with respect to the proposal within twenty eight days. (4) After considering representations made with respect to the proposal the Director may withdraw the proposal or forward it along with a summary of the representations received to the Governor for consideration under subsection (1). (5) A copy of the preservation order shall be served on the owner or occupier of the land to which the order relates. LAWS OF MONTSERRAT Conservation and 36 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 PART 6 TRADE OF SPECIMENS Permit required for trade 31. (1) No person shall import, export, re-export or possess a specimen of a species of fauna or flora or attempt to import, export, re-export or possess a specimen unless that person is in possession of a permit issued by the Director. (2) The Director may issue a permit under this section subject to terms and conditions that he considers necessary. (3) An applicant may appeal to the Tribunal a decision of the Director to refuse to issue a permit or to issue a permit with terms and conditions. (4) The Director shall collaborate with the Comptroller of Customs in order to implement and enforce this section. (5) A person who breaches subsection (1) is guilty of a breach of an environmental requirement. (6) For greater certainty, if there are other enactments applicable to the importation, exportation, re-exportation or possession of a specimen of a species of fauna or flora, a person seeking to import, export, re-export or possess a specimen of a species of fauna or flora is required to fulfil the requirements under those enactments. (7) Section 31 is an assigned matter within the meaning of section 2 of the Customs (Control and Management) Act. Permission required for scientific research 32. (1) A person wishing to engage in— (a) scientific research; (b) photographing and collecting information for financial gain; or (c) collecting information for the purpose of preparing a documentary, promoting tourism or preparing educational or research material, in respect of the fauna, flora and associated ecosystems within Montserrat, must apply in writing to the Director, for permission to do so. (2) Despite sections 24, 25, 26 and 27, the Director may grant permission for scientific research which involves the hunting, harvesting or possessing of specimens of species of fauna or flora. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 37 Revision Date: 1 Jan 2019 (3) A person applying for permission to carry out scientific research shall submit to the Director a plan for the proposed research, including a research protocol, and any information that the Director may require. (4) Permission granted under this section may be limited to one occasion or may cover a specified period of time. (5) Permission to undertake scientific research may only be granted to a person who satisfies the Director that the person— (a) has the scientific competence to undertake the research, as assured by a recognised learned society or institution of higher learning; and (b) has access to or a guarantee of sufficient funds to undertake the research in a satisfactory manner. (6) The Director may attach terms, conditions and limitations to permission granted under this section, as the Director considers appropriate in the public interest. (7) Without prejudice to subsection (6), the Director may attach to permission granted under this section for bio-prospecting operations terms, conditions and limitations concerning the ownership of intellectual property and sharing of financial returns from the commercialisation of products derived from the biological diversity of Montserrat as the Director considers appropriate in the public interest. (8) No person shall proceed with an activity under subsection (1) without first receiving the permission of the Director under this section despite the approval of any other governmental entity. (9) A person who proceeds with an activity under subsection (1) without first receiving the permission of the Director is in breach of an environmental requirement. (10) An applicant for permission under this section may, within twenty eight days after receipt of notice of a decision of the Director to refuse to grant permission or to grant permission with terms, conditions and limitations, appeal the decision to the Tribunal. PART 7 PROTECTED AREAS Protected areas 33. The areas listed in Schedule 4 are designated as protected areas. LAWS OF MONTSERRAT Conservation and 38 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Preparation of Protected Areas Systems Plan 34. (1) The Director shall prepare a draft Protected Areas Systems Plan for the establishment of a system of protected areas which— (a) is consistent with the NEMS; and (b) takes into consideration the National Physical Development Plan prepared in accordance with section 5 of the Physical Planning Act. (2) Without limiting the generality of subsection (1), the PAS Plan shall include— (a) a statement of national policy with respect to the establishment of national parks and other protected areas; (b) an assessment of the status of biological diversity and the natural and cultural resources of Montserrat, including— (i) ecosystems, including forests, wetlands and marine areas; (ii) fauna and flora, particularly endemic, endangered, threatened and rare species; (iii) soil and water resources; (iv) watersheds; and (v) archaeological and historical sites; (c) proposals for a system of protected areas to ensure the protection, conservation, development and management of the natural and cultural heritage of Montserrat; and (d) maps and descriptive matter as may be necessary to illustrate the proposals made in it with a degree of detail that is appropriate. (3) In preparing the PAS Plan, the Director shall seek and consider comments from persons including persons having an interest in a matter for which proposals may be made in the PAS Plan. (4) The Director shall submit the draft PAS Plan to the Council for review. (5) The Council shall forward the draft PAS Plan to the Forestry, Wildlife, and Protected Areas Standing Committee for its input. (6) The Council may amend the draft PAS Plan as it considers appropriate, after which the Council shall submit the draft PAS Plan to the Minister. (7) The Minister shall submit the draft PAS Plan to the Governor, who, acting on the advice of Cabinet, may approve it. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 39 Revision Date: 1 Jan 2019 (8) The PAS Plan made under this section shall be published in the Gazette and shall come into force on the date of publication. (9) The Director may at any time carry out a review of the approved PAS Plan and submit a report on that review, including proposals for its amendment to the Council. (10) Amendments proposed under subsection (9) shall follow the procedure set out in subsections (5) to (8) for the approval of a draft PAS Plan. (11) Despite subsection (9) the Minister may instruct the Director to review the PAS Plan. (12) The designation, conservation, development, management and use of a protected area shall, as far as is reasonably possible, be consistent with the PAS Plan. Designation of protected area 35. (1) Subject to section 36, the Governor acting on the advice of Cabinet may, after the approval of the PAS Plan and in order to conserve biodiversity and the natural and cultural heritage of Montserrat and to encourage ecologically sound and sustainable use, understanding and enjoyment of these areas, designate any land or marine area, or any combined land and marine area, to be included in Schedule 4 as a protected area in one or more of the following categories— (a) Strict Nature Reserve; (b) National Park; (c) Conservation Area; (d) Heritage Site; (e) Watershed Management Area; (f) Protected Forest Area; and (g) Temporary Protected Area. (2) Without limiting the generality of subsection (1), protected areas shall be established in order to conserve, maintain and restore, in particular— (a) representative types of ecosystems of adequate size to ensure their long term viability and to maintain biological and genetic diversity; (b) habitats and ecosystems critical to the survival of endemic, endangered or threatened, protected, partially protected or rare species of fauna and flora; LAWS OF MONTSERRAT Conservation and 40 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (c) the productivity of ecosystems and natural resources that provide economic or social benefits and on which the welfare of local inhabitants is dependant; (d) areas of special scientific, educational, cultural, historic, archaeological, recreational, aesthetic or economic value; and (e) representative types of ecosystems and species of fauna and flora that are part of the natural and cultural heritage of Montserrat and of scientific, educational, historic, archaeological, recreational, aesthetic, or economic value. Notice of intention to designate a protected area 36. Before an area is designated as a protected area under section 35(1), the Director shall publish a notice of intention to designate the protected area and submit the notice for public comment by stakeholders including governmental entities, private land owners, non-governmental organisations and the public in accordance with this Act. Temporary protected area 37. (1) Despite section 36, if it appears to the Director expedient in the national interest to protect a species of fauna or flora or the habitat of a species of fauna or flora or a geographically defined area, the Director, after consultation with the Council, may make an order designating an area to be a temporary protected area. (2) An order for the designation of a temporary protected area is valid for a period of 180 days from its publication. Demarcation of boundaries 38. (1) The Director shall, within two years of the designation of a protected area, have the protected area surveyed and a map of the protected area deposited with the Chief Surveyor. (2) The Chief Surveyor shall make the map of the protected area deposited with him under subsection (1), available to the public for inspection. (3) The Director shall have the boundaries of each protected area marked and defined making them clearly visible at all times. Responsibility for management of protected areas 39. (1) Despite subsection (2), the Director is responsible for overseeing the administration and monitoring of protected areas. (2) The Governor acting on the advice of Cabinet may, by order, designate a competent body with the responsibility for the management and LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 41 Revision Date: 1 Jan 2019 control of a protected area, and the competent body may include the Montserrat National Trust, or any other duly constituted non-governmental organisation with an interest in conservation and with the competence to manage a protected area. (3) The responsibilities of a competent body designated under subsection (2) include the powers and duties to— (a) prepare and implement the management plan for the protected area, approved in accordance with subsection (4), and make recommendations with respect to the modification of the approved management plan; (b) make recommendations to the Council with respect to the allocation of human, material and financial resources necessary for the proper management of the protected area; (c) advise the Council with respect to a variation of the boundaries, or change in the categorisation of the protected area, that appears necessary or expedient to better meet the purposes for which the protected area was established; and (d) undertake any other functions as may be assigned to it by the Council. (4) The Director or a competent body shall prepare a management plan for each protected area in accordance with this Act and submit the management plan to the Council for review and approval by the Minister. (5) In the preparation of a management plan the Director or a competent body shall submit the management plan for public comment from persons, including but not limited to occupiers and private land owners within a protected area, non-governmental organisations and governmental entities. (6) The Director or a competent body shall implement the approved management plan for the protected area under its control. (7) If a competent body is designated with responsibility for the management of a protected area, that competent body shall report to the Director when required and act on the directions of the Director in the exercise of its powers and duties. (8) Despite subsection (6), the Director is responsible for the monitoring and enforcement of management plans for protected areas. (9) If the Director believes that a competent body is acting contrary to its powers and duties under this Part, the Director may advise the Council and the Council may recommend to the Governor that the designation of the competent body be revoked. LAWS OF MONTSERRAT Conservation and 42 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (10) On receiving a recommendation under subsection (9), the Governor acting on the advice of Cabinet may, by order, revoke the designation of the competent body. Private land in protected areas 40. (1) The owner of private land within a protected area who complies with the management plan for that protected area is entitled to a remission of property tax payable in respect of that land, in addition to any other incentive that the Governor acting on the advice of Cabinet may grant for that purpose. (2) The owner of private land within a protected area is not liable except where the owner has been negligent, for personal injury, loss of life or property sustained by a person using a public road, right of way or footpath over that land, or by a user of the protected area entering on the private land with the permission of, or under a licence granted by, the competent body for the protected area or a governmental entity, whether the permission or licence is granted gratuitously or on payment of a fee. (3) If the Governor acting on the advice of Cabinet determines that, having regard to the category of the protected area and the purposes for which it has been designated, it is necessary or desirable that the Crown should acquire any private land within the protected area, or any rights over or interest in the private land, the Crown may acquire the land or a right over or interest in the land, either by agreement with the owner of the land or compulsorily in accordance with the Land Acquisition Act, as being land needed for a public purpose within the meaning of that Act. (4) If the Crown acquires private land under subsection (3), the owner of the land may, by mutual agreement, be compensated wholly or in part by exchange of land with the Crown, instead of compensation in money. (5) For greater certainty, an owner of land may donate, exchange, transfer or otherwise dedicate any land or interest in land to the Crown for use as a protected area. Vesting of Crown land in protected areas in trustees 41. (1) The Governor acting on the advice of Cabinet may, by order published in the Gazette, vest Crown land within a protected area in the competent body for that protected area. (2) A competent body in which Crown land within a protected area is vested under subsection (1) holds that land in trust for the benefit of the people of Montserrat and shall take necessary measures for the proper control and management of that land to prevent any waste or damage or injury to that land. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 43 Revision Date: 1 Jan 2019 Agreement to manage private land as protected area 42. (1) Despite anything to the contrary, the Minister may, with the approval of the Governor acting on the advice of Cabinet, enter into a co management agreement with the owner of private land within a protected area for the management and control of that land as a protected area. (2) Land which is the subject of a co-management agreement under subsection (1) shall be placed under the control of the Director or a competent body for the purpose of managing and maintaining the specific purpose for which the protected area was established. (3) A co-management agreement made under subsection (1) shall be in writing and signed by the owner of the land or by a person having authority to sign on behalf of the owner and by the Minister on behalf of the Government, and shall contain— (a) a description of the land including a description of its boundaries; (b) the reason for designation of the land as a protected area; and (c) measures designed to further the specific purposes for which the protected area was established. Activities in buffer zones 43. (1) The Director, in consultation with the competent body with responsibility for the management and control of a protected area, may establish a buffer zone adjacent to the protected area. (2) If a buffer zone is established under subsection (1), the Director or the competent body under the direction of the Director shall prepare a buffer zone management plan for the management of activities in the buffer zone. (3) The draft buffer zone management plan prepared under subsection (2) shall before it is finalized be submitted for public comment from persons, including occupiers and private land owners, within the buffer zone, non governmental organisations and appropriate governmental entities. (4) The Director or the competent body shall collaborate with the Chief Physical Planner, the Director of Agriculture and other governmental entities to ensure that activities permitted or carried out in a buffer zone are compatible with achieving the purposes of the protected area. (5) A competent body for a protected area shall collaborate with the Director to ensure that activities permitted or carried out in a buffer zone are compatible with achieving the purposes of the protected area. (6) The Director may enter into a co-management agreement with a lawful occupier or private land owner with regard to activities being undertaken within the buffer zone. LAWS OF MONTSERRAT Conservation and 44 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (7) If an activity within a buffer zone is not listed in Schedule 1, the Director, in the exercise of his discretion under section 17(2), may require the person to obtain a Certificate. Restrictions on disposal of Crown land in protected areas 44. (1) Except where the Governor acting on the advice of Cabinet considers it expedient in the national interest or to further the purposes for which the protected area was designated, no Crown land in a protected area may be granted, sold or otherwise disposed of and no person may be permitted to occupy Crown land in a protected area. (2) The Governor acting on the advice of Cabinet may lease Crown land or buildings in a protected area for the purpose of providing a public amenity, in accordance with the approved management plan for that protected area. (3) Despite anything to the contrary in any other enactment, no right, title or interest in, to or over Crown land in a protected area may be acquired by a person by prescription. Restrictions on development in protected areas 45. The Planning and Development Authority shall not approve or give permission for the development of Crown or private land within a protected area, under the Physical Planning Act, unless the applicant holds a Certificate with regard to any activity associated with the development. Operations by governmental entities in protected areas 46. (1) A governmental entity may continue to operate, manage and maintain any existing work or undertaking situated in a protected area which has been authorised by an enactment before the commencement of this Act. (2) A governmental entity may continue to exercise its statutory duties, powers and functions in a protected area but in the exercise of those duties, powers and functions it shall comply with any directions given by the Director or the competent body for the protected area, for the purposes of conserving and managing the protected area. Management plan for protected forest areas consistent with PAS Plan and NEMS 47. A management plan developed for a protected forest area shall be in accordance with sustainable tropical forestry principles, guidelines and practices and consistent with the PAS Plan and the NEMS. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 45 Revision Date: 1 Jan 2019 Felling, extraction or removal of timber from protected areas 48. (1) The Director may, as part of a management plan for a protected area, issue a permit to fell, extract or remove timber or other forest produce from a protected area, subject to terms and conditions that the Director considers necessary. (2) A permit granted under subsection (1) is valid for the period stated therein and is not transferable except with the written permission of the Director. (3) A person who fells, extracts or removes timber from a protected area without a permit is in breach of an environmental requirement. (4) An applicant may appeal to the Tribunal a decision of the Director to refuse to issue a permit or to issue a permit with terms and conditions. PART 8 FORESTS AND FIRES Forestry operations 49. (1) The Director shall manage forests on unallocated Crown lands outside protected areas as a permanent forest estate, in accordance with sustainable tropical forestry principles, guidelines and practices. (2) The Director may issue a permit to fell, extract or remove timber or other forest produce from unallocated Crown lands outside a protected area subject to terms and conditions that the Director considers necessary. (3) A permit granted under subsection (2) is valid for the period stated therein and is transferable only with the written permission of the Director. (4) A person who fells, extracts or removes timber from unallocated Crown lands without a permit is in breach of an environmental requirement. (5) An applicant may appeal to the Tribunal a decision of the Director to refuse to issue a permit or to issue a permit with terms and conditions. Silviculture, agro-forestry and tree planting 50. (1) The Director shall promote the practice of silviculture. (2) The Director shall, in collaboration with the Director of Agriculture, on marginal lands owned or leased by the Crown for agriculture that are outside protected areas and that are not more suitable for grazing or cultivation, promote the practice of agro-forestry. (3) The Director may plant and maintain trees in public places. LAWS OF MONTSERRAT Conservation and 46 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Forested private lands 51. (1) The Governor, acting on the advice of Cabinet, may make regulations and grant incentives to the owners of forested private lands outside protected areas for the purpose of ensuring that those lands are managed in accordance with sustainable tropical forestry principles, guidelines and practices. (2) The Minister may, with the approval of the Governor acting on the advice of Cabinet, enter into agreements with the owners of forested private lands outside protected areas for the management and control of the forests on those lands by the Director. Fire prevention 52. (1) The Director, in collaboration with the Chief Fire Officer, shall implement measures to prevent and suppress the occurrence of fires in forested areas and protected areas. (2) No person shall engage in the production of charcoal in a forested area or protected area except in accordance with a permit issued by the Director. (3) No person shall start a fire in a forested area or protected area except in accordance with a permit issued by the Chief Fire Officer. (4) The Chief Fire Officer shall not issue a permit under this section without prior consultation with the Director. (5) A person who starts a fire in a forested area or protected area without a permit issued in accordance with subsection (2) or (3) is in breach of an environmental requirement. (6) An applicant may appeal to the Tribunal a decision of the Director or the Chief Fire Officer to refuse to issue a permit or to issue a permit with terms and conditions. PART 9 POLLUTION CONTROL Registration of releases of pollutant 53. (1) A person who intends to release a pollutant from any premises in a quantity or concentration or condition that falls outside a prescribed range shall register with the Director. (2) The Director shall issue a certificate of registration to a person who is required to register under subsection (1), subject to terms and conditions that the Director consider necessary. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 47 Revision Date: 1 Jan 2019 (3) A person who fails to register with the Director under subsection (1) is in breach of an environmental requirement. (4) An applicant may appeal to the Tribunal a decision of the Director to refuse to issue a permit or to issue a permit with terms and conditions. Pollution permits 54. (1) Despite any enactment to the contrary, at the expiration of 180 days from the designation of a pollutant, no person may release that pollutant from any premises without first applying to the Director for a permit. (2) The Director may issue a permit, with or without conditions, authorising the release of a pollutant from any premises. (3) A person who releases a pollutant from any premises without having a permit under subsection (1) is in breach of an environmental requirement. (4) An applicant may appeal the decision of the Director to refuse to issue a permit or to issue a permit with conditions, to the Tribunal. Director to monitor compliance 55. The Director shall monitor the performance of a person to whom a permit has been issued under this Part to ensure compliance with the permit and to confirm that the performance complies with the information and description provided in the application for the permit. Performance standards 56. (1) The Governor acting on the advice of Cabinet may prescribe performance standards with respect to the generation and release into the environment of pollutants from home and garden appliances. (2) Performance standards prescribed under subsection (1) shall not come into force until one year after they are prescribed, or until such other period as may be prescribed, in order to accommodate the upgrading or depreciation and replacement of existing home and garden appliances. (3) A person who imports into Montserrat home and garden appliances that do not comply with the prescribed performance standards is in breach of an environmental requirement. LAWS OF MONTSERRAT Conservation and 48 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 PART 10 SPILLS, ACCIDENTAL RELEASES AND ENVIRONMENTAL RESTORATION Spills and accidental releases 57. (1) The Director may require a person who owns or controls any premises on which a pollutant or hazardous substance or hazardous waste is handled, to prepare a contingency plan to deal with a spill or accidental release of that pollutant or hazardous substance or hazardous waste. (2) A contingency plan prepared under subsection (1) shall set out the counter measures to be adopted in the event of a spill or accidental release of a pollutant or hazardous substance or hazardous waste and the steps to be taken to clean-up the environment afterwards. (3) A person who prepares a plan under subsection (1), shall submit it to the Principal Environmental Health Officer. (4) The Principal Environmental Health Officer may approve a plan after consultation with the Director, the Director of the Disaster Manage ment Coordination Agency and any other persons as the Principal Environmental Health Officer thinks fit. (5) When a spill or accidental release of a pollutant or hazardous substance or hazardous waste occurs, the person who owns or controls the premises on which the incident takes place must as soon as is reasonably practicable— (a) notify the Director, the Principal Environmental Health Officer and the Director of the Disaster Management Coordination Agency of the incident; (b) implement the approved contingency plan; and (c) take measures that are necessary or expedient to minimise any resulting threat to human health or the environment. (6) After a spill or accidental release of a pollutant or hazardous substance or hazardous waste, the Principal Environmental Health Officer may undertake emergency response measures as he thinks necessary or expedient to protect human health and the environment, either directly or by coordinating the activities of governmental entities and non-governmental organisations or by employing contractors. (7) If the Principal Environmental Health Officer acts under subsection (6) he may, under section 67(1)(c), recover the actual costs incurred in so acting from the person who owns or controls the premises from where the spill or accidental release of a pollutant or hazardous substance or hazardous waste originated. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 49 Revision Date: 1 Jan 2019 Environmental restoration order 58. (1) Subject to any other provisions of this Act, the Director may issue and serve an order (hereinafter called an “environmental restoration order”) on a person in respect of a matter relating to the management of the environment. (2) An environmental restoration order issued under subsection (1) shall— (a) require the person on whom it is served to restore the environment as near as possible to the state that it was in before the taking of the action which is the subject of the order; (b) prevent the person on whom it is served from taking any action that would, or is reasonably likely to, cause harm to the environment; and (c) award compensation to a person whose environment, property or livelihood has been harmed by the action which is the subject of the order. (3) An environmental restoration order may contain terms and conditions and impose obligations on the persons on whom it is served which, in the opinion of the Director, enable implementation of the order. (4) If a person served with an environmental restoration order fails to comply with the terms and conditions of the order, the Director may undertake actions stipulated in the environmental restoration order. (5) If the Director acts in accordance with subsection (4) he may recover from the person under section 67(1)(e) all actual costs incurred by the Director or a governmental entity or private person to restore the environment. (6) A person who has been served with an environmental restoration order may appeal to the Tribunal. PART 11 ENVIRONMENTAL AUDIT AND MONITORING Environmental auditing 59. The Governor acting on the advice of Cabinet may make regulations— (a) establishing appropriate standards and procedures for the carrying out of an environmental audit; LAWS OF MONTSERRAT Conservation and 50 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (b) setting out the circumstances in or under which an environmental audit shall be carried out on any premises; (c) setting out the qualifications of persons by whom an environmental audit may be carried out; and (d) establishing the measures that the Director may take with respect to the findings of an environmental audit. Environmental management plan 60. (1) Without prejudice to the requirement in Part 4 for a person to apply for and obtain a Certificate, the Director may require a person who proposes to carry out an activity, or who is carrying out an activity, to submit for approval by the Director an environmental management plan to manage the environmental impacts of the activity. (2) An environmental management plan shall be consistent with the principles set out in section 4. (3) A copy of the approved environmental management plan referred to in subsection (1) shall form part of the NEIS. Environmental monitoring 61. (1) The Director may, after consultation with the relevant standing committee established under section 8(1) and other governmental entities, monitor— (a) environmental phenomena with a view to making an assessment of any possible changes in the environment and their possible impacts; and (b) the operation of any activity with a view to determining its immediate and long-term effects on the environment. (2) The Director may undertake compliance monitoring and enforcement of an environmental appraisal, environmental impact assessment or environmental management plan. Powers of entry, search and seizure 62. (1) Subject to section 13(3), an authorised officer may at any reasonable time, with the permission of the owner or occupier of the premises, enter those premises for the purpose of monitoring the effects on the environment of an activity carried out or to effect compliance with a provision or requirement of this Act. (2) A person authorised under subsection (1) to enter any premises shall produce evidence of his authority to the owner or occupier of the premises before entering. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 51 Revision Date: 1 Jan 2019 (3) If the Director, has reason to believe that a contravention of the Act has occurred or is about to occur, and the circumstances are such that seeking permission to enter, in accordance with subsection (1) would defeat the purpose for which entry is sought, the Director may apply to a magistrate for a warrant authorising an authorised officer to enter those premises. (4) In the course of any entry under this section, an authorised officer may— (a) carry out any inspection; (b) survey or seize any equipment or article being used in the commission of an offence or breach of an environmental requirement; (c) review and copy any documents or other records; (d) take photographs or other audio or visual recordings; and (e) take samples of air, water, soil or other material found on or in the premises. Sampling and testing 63. (1) When a sample is taken under section 62(4), the person taking the sample shall— (a) notify the person in charge of the premises from which the sample was obtained of his intention to submit the sample for analysis or examination; (b) divide the quantity into three parts, causing each part to be marked and sealed in a manner as the nature of the sample permits; (c) deliver one of the parts to the person in charge of the premises from which the sample was obtained; (d) retain one of the parts for future comparison or verification; and (e) submit the third part for analysis or examination as soon as may be practicable. (2) A sample taken in accordance with subsection (1) shall be submitted to a scientific laboratory designated under section 79 for analysis or examination in accordance with internationally accepted forensic procedures. LAWS OF MONTSERRAT Conservation and 52 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 PART 12 ADMINISTRATIVE PROCEEDINGS Notice of violation 64. (1) If the Director believes that a person is in violation of an environmental requirement, the Director shall serve a written Notice of the violation on that person which shall include— (a) details of the violation of the environmental requirement; (b) an invitation to the person to make representations to the Director concerning the matters specified in the Notice within a specified time; and (c) any other matter that the Director believes is necessary for the protection of the environment. (2) If a matter specified in the Notice is satisfactorily explained or resolved between the person and the Director within twenty eight days of service of the Notice— (a) the Director may withdraw the Notice; or (b) an agreed resolution may be reduced to writing in a consent agreement which may include an administrative civil assessment under section 67. (3) The Director may where reasonably necessary extend time for the resolution of a Notice as contemplated by subsection (2). Issue of administrative order 65. The Director may issue and serve an administrative order on a person if the person— (a) fails to make representations to the Director within the time specified in the Notice; or (b) is unable to resolve with the Director the matters specified in the Notice. Administrative order 66. (1) An administrative order issued by the Director shall, as appropriate— (a) specify details of the violation of the environmental requirement; (b) direct the person to immediately cease and desist from the violation or specify a date for coming into compliance; LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 53 Revision Date: 1 Jan 2019 (c) direct the person to immediately remedy an environmental condition or damage to the environment arising out of the violation or specify a date by which remedial activity shall be completed; (d) direct the person to undertake an investigation regarding any environmental circumstances or conditions within that person’s responsibility or control, including an investigation into a release of a pollutant into the environment or the handling of any hazardous substance or waste; (e) direct the person to perform any monitoring or recordkeeping activities; (f) include a proposed administrative civil assessment made by the Director; and (g) direct a person to comply with any other requirement under this Act. (2) A person who is served with an administrative order shall, within twenty eight days of being served with the order, either— (a) negotiate a consent agreement with the Director; or (b) appeal the order to the Tribunal. (3) If a person served with an administrative order under subsection (1) fails to appeal that order or to negotiate a consent agreement under subsection (2), the administrative order shall be final and conclusive. (4) In the event a person served with an administrative order is engaged in negotiation of a consent agreement and the twenty eight day period stipulated in subsection (2) is about to expire, that person at least two days before the date of expiration, may apply to the Director for an extension of time to facilitate further negotiations to arrive at a consent agreement, and the Director may extend time for a further period not exceeding twenty one days. (5) Despite subsection (3), where a person served with an administrative order is unable to reach a consent agreement with the Director before the expiry of the twenty eight day period contemplated by subsection (2) or the extension period granted under subsection (4), that person has a right to appeal the administrative order to the Tribunal within fourteen days of the date of expiration of the period of twenty eight days or any extension period granted under subsection (4), as the case may be. (6) If a person served with an administrative order fails to appeal the administrative order in accordance with subsection (5), the administrative order shall be final and conclusive. LAWS OF MONTSERRAT Conservation and 54 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Administrative civil assessment 67. (1) The Director or the Tribunal may make an administrative civil assessment of— (a) compensation for actual costs incurred by the Director to respond to environmental conditions or other circumstances arising out of a violation referenced in an administrative order or a Notice; (b) compensation for damages to the environment associated with public lands or holdings which arise out of a violation referenced in an administrative order or a Notice; (c) compensation for actual costs incurred by the Director in responding to a spill or accidental release of a pollutant or hazardous substance or hazardous waste; (d) compensation to be paid by a person served with an environmental restoration order to another person whose environment, property or livelihood has been harmed by the action which is the subject of the order; (e) compensation for actual costs incurred by the Director or a governmental entity or private person to restore the environment after the failure of a person served with an environmental restoration order to comply with its terms and conditions; (f) compensation for actual costs incurred by an authorised officer on behalf of the Director or person in seizing, removing, impounding or hunting unprotected species on Crown lands, protected area or any other private land; (g) damages for an economic benefit or amount saved by a person through failure to comply with environmental requirements; (h) damages for losses suffered by a third party through failure of a person to comply with environmental requirements; and (i) damages for the failure of a person to comply with environmental requirements. (2) In determining the amount of any damages to be assessed under subsections (1)(g), (h) and (i), the Director or the Tribunal shall take into account— (a) the nature, circumstances, extent and gravity of the violation; (b) any history of prior violations; and LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 55 Revision Date: 1 Jan 2019 (c) the degree of wilfulness or culpability in committing the violation and any good faith efforts to co-operate with the Director. (3) The total amount of damages under subsection (1)(i), shall not exceed— (a) for an individual, $3,000 for each violation and, in the case of a continuing or recurrent violation, $500 per day for each instance until the violation is remedied or abated; or (b) for a person other than an individual, $5,000 for each violation and, in the case of a continuing or recurrent violation, $750 per day for each instance until the violation is remedied or abated. Application for determination of administrative civil assessment 68. (1) If an administrative order or consent agreement contains a proposed administrative civil assessment and the person receiving the administrative order or negotiating the consent agreement has agreed to all the terms of the administrative order or the consent agreement except for the amount of the proposed administrative civil assessment, the Tribunal shall, on the application of the Director or the person subject to the administrative order or party to the consent agreement, determine the amount of the assessment. (2) An application for the determination of the amount of an administrative civil assessment under subsection (1) shall be made within fourteen days from the date all the terms of the administrative order or consent agreement, except for the amount of the assessment, were agreed between the parties. Other actions by the Director 69. If the Director reasonably believes that a person is currently in violation of an environmental requirement, or is engaged in an activity which is likely to result in a violation of an environmental requirement, the Director may in addition to, or instead of, other actions authorised under this Act— (a) seek a restraining order or other injunctive or equitable relief to prohibit the continued violation of an environmental requirement or prevent the activity which may likely lead to a violation of an environmental requirement; (b) seek an order for the closure of any premises or a prohibition against the continuation of an activity in order to halt or prevent a violation of an environmental requirement; or (c) pursue any other remedy which may be provided by law. LAWS OF MONTSERRAT Conservation and 56 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 PART 13 PRIVATE CIVIL ACTIONS Private civil actions 70. (1) A person who alleges that a violation of an environmental requirement has occurred must give notice to the Director of the violation within ninety days of the violation first occurring. (2) Despite subsection (1), a person may apply to the Tribunal for an order to extend the period of ninety days to give notice of a violation if it was not reasonable for the person to have actual or presumed knowledge of the violation within the period of ninety days. (3) The Director may commence enforcement action under Part 12 within sixty days of the Director receiving a notice of a violation under subsection (1) or (2). (4) If the Director fails to commence enforcement action in accordance with subsection (3), the person who gave notice of the violation under subsection (1) may, within twenty eight days of the expiration of the period of sixty days referred to in subsection (3), commence a civil action before the Tribunal against the person alleged to be responsible for the violation. (5) A person who commences a civil action under subsection (4) shall, within seven days of commencing the action, serve notice of the civil action on the Director, the Attorney General and the person alleged to be responsible for the violation that is the subject of the action. (6) The Director may commence enforcement action under Part 12 within twenty eight days of being served under subsection (5) with notice of a civil action. (7) If the Director commences enforcement action in accordance with subsection (6), he shall file notice of the commencement of enforcement action with the Tribunal. (8) A civil action shall not be heard or determined by the Tribunal until the expiration of twenty eight days from the service of notice of the action on the Director under subsection (5), unless the Director has notified the Tribunal before the expiration of the twenty eight day period that he does not intend to file a notice of commencement of enforcement action under subsection (7). (9) If the Director has commenced enforcement action in accordance with subsection (6) after being served with notice of a civil action, the person who commenced the civil action shall discontinue the action and the Tribunal may at its discretion make an order as to costs against the Director. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 57 Revision Date: 1 Jan 2019 (10) For the purposes of this section, an individual or group of individuals expressing a general interest in the environment or a specific concern with respect to an alleged violation of any environmental requirements shall have standing to bring a civil action under subsection (4). (11) In a civil action under this section, the burden of proof is on the person who commenced the action. (12) In a civil action under this section, the Attorney General or the Director may intervene at any time as a matter of right. (13) Despite anything to the contrary, if there is a threat of serious or irreversible damage to human health or the environment resulting from an alleged violation of an environmental requirement, a person may seek special leave of the Tribunal to commence and expedite a civil action brought under subsection (4) and dispense with any of the time requirements provided in this section. PART 14 PHYSICAL PLANNING AND ENVIRONMENTAL (APPEALS) TRIBUNAL Composition of Tribunal 71. (1) In the sitting of the Tribunal to hear and determine a matter referred to in section 72 the Tribunal shall consist of the Chairman and two other members of the Tribunal having experience in environmental management matters. (2) The decision of the Tribunal shall be that of the majority of the members present, but the opinion of the Chairman shall prevail on a matter arising in the course of any proceedings which, in his opinion, is a question of law. (3) A member of the Tribunal, including the Chairman, who has a direct interest in a matter which is the subject of the proceedings before the Tribunal shall not take part in those proceedings. (4) If a member cannot take part in proceedings under subsection (3), the Governor acting on the advice of Cabinet shall appoint a person with the requisite qualifications to act instead of the member for the purpose of those proceedings. Jurisdiction of the Tribunal 72. (1) The Tribunal has jurisdiction to hear and determine— (a) a civil action brought by a person under section 70; LAWS OF MONTSERRAT Conservation and 58 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (b) an application to enforce the terms and conditions of a consent agreement or an administrative order that is final and conclusive; (c) an appeal of an administrative civil assessment proposed by the Director except an administrative civil assessment that is included in an administrative order that, under section 66(3) or (6), is final and conclusive; (d) an application for the approval and enforcement of an administrative civil assessment contained in an administrative order or consent agreement; (e) an appeal of the requirement to apply for and obtain a permit which is in the discretion of the Director under this Act; (f) an application to extend time to give notice of a violation of an environmental requirement under section 70(2); (g) an appeal of the imposition of a term, condition, limitation or restriction in a permit or permission under this Act; (h) an appeal of a decision to issue or grant, or refuse to issue or grant, a permit or permission under this Act; (i) an appeal of a decision to transfer or refuse to transfer a permit or permission under this Act; (j) an appeal of the revocation or suspension of a permit or permission under this Act; (k) an appeal of the variation of a permit or permission or refusal to vary a permit or permission under this Act; (l) an appeal of a decision to renew a permit or permission or to refuse to renew a permit or permission under this Act; (m) an appeal of the issuance of an environmental restoration order under section 58; (n) an appeal of the issuance of a stop notice by the Director under section 28; (o) an appeal of the acceptance or refusal of a claim for confidentiality made under section 15; and (p) an appeal with respect to any administrative decision made or action taken by the Director under this Act. (2) Except as otherwise provided in this Act, a matter referred to in subsection (1) may be brought by a person who is personally aggrieved by the matter or who has a sufficient interest in the matter. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 59 Revision Date: 1 Jan 2019 (3) Despite subsection (2), the Tribunal may allow a matter to be brought if it is satisfied that the matter is justifiable in the public interest, whether or not the person bringing the matter has a sufficient interest in the matter. Powers of the Tribunal 73. The Tribunal, may, in determining a matter brought before it— (a) dismiss it; (b) allow it and make an order as it considers just and as the circumstances warrant; (c) issue an administrative civil assessment; (d) award damages payable by a party other than the Director; (e) issue a restraining order or grant any other injunctive or equitable relief as may be required in the circumstances; or (f) if an order as to costs including an order as to costs in favour of a person bringing a civil action where the civil action has been discontinued because of the decision of the Director to initiate enforcement proceedings under Part 12. Procedure of Tribunal 74. (1) The Tribunal shall sit at a time and in a place as it may appoint. (2) The Tribunal may, subject to the approval of the Governor acting on the advice of Cabinet, make rules governing the carrying on of its business and the practice and procedure and the cost of proceedings before the Tribunal. (3) The proceedings of the Tribunal shall be open to the public except where the Tribunal, for good cause, otherwise directs. (4) A person may appear before the Tribunal in person or may be represented by an attorney at law. (5) The Tribunal shall encourage and promote alternative dispute resolution, being a mechanism for resolving disputes other than by way of litigation. (6) If in any proceedings before the Tribunal a person so conducts himself that had he been in proceedings before the High Court, he would have been held in contempt, the Tribunal may make application to the High Court for an order of committal. (7) The Tribunal, with respect to— (a) the attendance and examination of witnesses; LAWS OF MONTSERRAT Conservation and 60 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (b) the production and inspection of documents; (c) the entry on and inspection of property; (d) the enforcement of its decisions and judgements; and (e) other matters necessary or proper for the due exercise of its jurisdiction, has all powers, rights and privileges as are vested in the High Court. (8) Unless rules made under subsection (2) otherwise provide, the Chairman shall determine the procedure to be followed in any proceeding before the Tribunal. (9) All proceedings before the Tribunal shall be initiated in writing using the forms prescribed by the Tribunal. (10) Except for section 70 or as otherwise provided in this Act, a person shall initiate all proceedings arising before the Tribunal within forty five days from when the grounds for the proceedings first arose. (11) Despite subsection (10), any proceeding before the Tribunal may be instituted out of time if the Tribunal is satisfied that there was reasonable cause for the delay and that the proceeding was filed without unreasonable delay. (12) The decision of the Tribunal on a question of fact and the amount of an administrative civil assessment under sections 66 and 68 is final. (13) Despite subsection (12), an appeal shall lie on a question of law to the Court of Appeal on entry of a final judgment by the Tribunal. (14) In actions involving the Director, there is a presumption of regularity with regard to findings of fact by the Director, and the findings shall not be reversed unless the party to the action affirmatively demonstrates that on a balance of probabilities there is no evidence supporting the findings of fact. PART 15 OFFENCES Penalty for breach of regulations 75. Regulations made under this Act may prescribe offences and a person who commits a prescribed offence is liable on summary conviction to a fine of $1,000 and, if the offence is a continuing offence, to a further fine of $50 for each day during which the offence continues or three months’ imprisonment or both. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 61 Revision Date: 1 Jan 2019 Offence for protected species 76. (1) A person who contravenes section 24(3) commits a summary offence and is liable to— (a) a fine of $5,000 or six months’ imprisonment or both; or (b) a fine of $10,000 or one year imprisonment or both, for a second or further offence. (2) A person who contravenes section 25(2) commits a summary offence and is liable to— (a) a fine of $5,000 or three months’ imprisonment or both; or (b) a fine of $10,000 or six months’ imprisonment or both, for a second or further offence. Obstruction of an authorised officer 77. A person who obstructs an authorised officer acting in the exercise of a power under section 62 commits a summary offence and is liable to— (a) a fine of $3,000 or three months’ imprisonment or both; or (b) a fine of $5,000 or six months’ imprisonment or both, for a second or further offence. Criminal offence for knowing or reckless endangerment 78. (1) A person who, through the release or handling of a pollutant or hazardous substance or waste, or the arrangement for another person through a contract or other agreement to release or handle a pollutant or hazardous substance or waste, knowingly or recklessly endangers human life or health or the environment, commits an indictable offence, and is liable to— (a) a fine of $25,000 or one year imprisonment or both; or (b) a fine of $50,000 or two years’ imprisonment or both, for a second or further offence. (2) A person who knowingly or recklessly undertakes or conspires to allow an activity in a protected area which may have an adverse impact on the fauna or flora in that protected area commits an indictable offence and is liable to— (a) a fine of $10,000 or six months’ imprisonment or both; or (b) a fine of $25,000 or one year imprisonment or both, for a second or further offence. (3) A complaint for an offence under this section shall be made within three years from the time when an action giving rise to the offence is first discovered by the Director. LAWS OF MONTSERRAT Conservation and 62 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (4) For the purposes of this section, “endangerment of human life or health” means placing one or more persons in danger of death or serious bodily injury, including unconsciousness, extreme pain, or physical or mental impairment. Scientific evidence 79. (1) The Governor acting on the advice of Cabinet shall by order appoint at least one scientific laboratory, in Montserrat or abroad, as a designated scientific laboratory for the purposes of this Act and the Trade in Endangered Species Act. (2) A certificate signed by the person in charge of a designated scientific laboratory appointed under subsection (1), stating that an object specimen, or substance has been analysed or examined and stating the results of the analysis or examination, is admissible in any proceeding under this Act and the Trade in Endangered Species Act as sufficient evidence of the matters in the certificate and of the correctness of the results of the analysis or examination. (Amended by Act 5 of 2017) (3) A certificate shall not be admitted into evidence under subsection (2) in any proceedings for an offence under this Act and the Trade in Endangered Species Act unless the opposing party to the action has been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings. (4) In any proceedings for an offence under this Act and the Trade in Endangered Species Act, the defendant cannot adduce evidence in rebuttal of a certificate issued by a designated scientific laboratory in relation to a matter of which the certificate is evidence unless, within fourteen days after a copy of the certificate being given to the defendant in accordance with subsection (3), or such further time as the court may allow, the defendant gives to the prosecutor notice in writing of the intention to adduce the rebuttal evidence. (Amended by Act 5 of 2017) Prosecutions and penalties under other Acts not precluded 80. (1) Nothing in this Act shall be construed to prevent a person from being prosecuted under another enactment for an act or omission that constitutes an offence or breach of an environmental requirement under this Act, or from being liable under another enactment to a higher punishment or penalty than is provided by this Act, provided that no one shall be prosecuted or punished twice for the same offence or breach of environmental requirement. (2) The Director shall not undertake any criminal proceedings for the prosecution of a person under this Act without the prior approval of the Director of Public Prosecutions. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 63 Revision Date: 1 Jan 2019 Administrative and criminal actions 81. For greater certainty, the initiation of criminal proceedings under this Part does not preclude other action from being taken by the Director under this Act. PART 16 LIABILITY OF PUBLIC AND PRIVATE OFFICIALS Liability of officials 82. If a breach of an environmental requirement or commission of an offence under this Act has been committed by a person other than an individual, an individual who at the time was a director, manager, supervisor, partner or other similar responsible officer of that person or who was purporting to act in that capacity, may together with that person be found liable for the breach or offence, if, having regard to the nature of his functions in that capacity, the resources within his control or discretion, and his reasonable ability to prevent the violation— (a) the violation was committed with his direct consent or connivance; or (b) the individual, with knowledge, did not exercise reasonable diligence to prevent the commission of the violation. PART 17 MISCELLANEOUS Funding for environmental management 83. Funding for environmental management shall be provided under the special fund established under the Public Finance (Management and Accountability) Act for that purpose. Regulations 84. (1) The Governor acting on the advice of Cabinet may make regulations for giving effect to this Act. (2) Without prejudice to the generality of subsection (1), the Governor acting on the advice of Cabinet may make regulations for— LAWS OF MONTSERRAT Conservation and 64 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (a) the payment of any compensation payable to persons other than the Crown under this Act and the manner of applying for the compensation; (b) the designation, management and enforcement of activities that require a Certificate of environmental approval; (c) the designation, protection, management and control of protected species of fauna and flora; (d) the designation, protection, management and control of partially protected species of fauna and flora; (e) the designation, protection, management, use and control of protected areas; (f) the protection of unprotected species of fauna and flora; (g) the regulation of trade in and the transit, import, export or re export of specimens of fauna and flora; (h) the designation, management and control of protected and unprotected species of fish and other marine life; (i) the issue, grant, administration and enforcement of permits to fell, extract or remove timber or other forest produce; (j) harvesting of timber or other forest produce from forested private lands outside protected areas; (k) the designation of pollutants and criteria, procedures and protocols for measuring and monitoring pollutants; (l) the issue, grant, administration and enforcement of permits for the release of pollutants; (m) the designation and registration of existing sources that release any substance, thing or man-made phenomenon; (n) prescribing performance standards and management of home and garden appliances; (o) the issue, grant, administration and enforcement of environ mental restoration orders; (p) the conduct and reporting of environmental audits; (q) compliance monitoring and enforcement of an environmental appraisal, environmental impact assessment or environ mental management plan; (r) the implementation of multilateral environmental agreements relating to any matter governed by this Act to which Montserrat is a party; and LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 65 Revision Date: 1 Jan 2019 (s) prescribing anything that is required or authorised to be prescribed under this Act. (3) Regulations made under this Act shall take into account the purpose and principles set out in sections 3 and 4 respectively. Amendment of Schedules 85. The Governor acting on the advice of Cabinet may, by order, amend a Schedule. Fees 86. (1) The Governor acting on the advice of Cabinet may by Order prescribe fees to be paid under this Act. (2) Fees payable under this Act are to be paid into the special fund. Forms 87. Except where otherwise provided for in this Act, the Director shall prescribe by rules the form of an application, notice or other document required to be made, issued or served under this Act. Service of documents 88. (1) Service of a document on the Director shall be effected by delivering it to the Director at the office of the Director, or by sending it by registered post addressed to the Director at the office of the Director. (2) Subject to this section, any document required or authorised to be served on a person other than the Director, may be served— (a) in the case of an individual— (i) by delivering it directly to the person on whom it is to be served; (ii) if an address for service has been provided by the person on whom it is to be served, by delivering it or sending it by registered mail to that person at that address; or (iii) by any method of alternative service that is provided for in the Eastern Caribbean Supreme Court Civil Procedure Rules 2000; and (b) in the case of a person other than an individual, by serving it in accordance with the process for effecting service on such persons that is provided for in the Eastern Caribbean Supreme Court Civil Procedure Rules 2000. LAWS OF MONTSERRAT Conservation and 66 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 (3) If a document is required or authorised to be served on a person as having an interest in land, and the name of that person cannot be ascertained after reasonable enquiry, or as an owner or occupier of premises, the document is deemed to be duly served if, being addressed to “the owner” or “the occupier” of the premises, it is— (a) delivered or sent to the premises by registered mail and is not returned to the sender; or (b) affixed conspicuously to some building or fixed object on those premises. (4) If a document is required or authorised to be served on more than one person, the fact that it was not served on any one of those persons does not invalidate any action or other proceedings against any person on whom the document was served. Intervention by the Attorney General 89. (1) The Attorney General may intervene in any proceedings before the Tribunal as the official representative of the Government. (2) If the Director is a party in a case in which the Attorney General intervenes as authorised in subsection (1), the Director may continue to be represented by his own counsel. Ethical standards and prohibitions 90. (1) If a representative of the Department, including the Director, employee of the Department or authorised officer, directly or indirectly demands or accepts a fee, perquisite, bribe, gratuity, recompense or reward, whether pecuniary or otherwise, from a person on account of anything done or to be done (or omitted or to be omitted) by the representative in any way relating to his office or employment, or if a representative attempts to make a collusive agreement to neglect his duty or to conceal or connive at any act whereby a provision of the Act or any other enactment may be evaded or violated, that representative commits a summary offence and is liable to a fine of $5,000 and six months’ imprisonment. (2) A person who offers or provides to a representative of the Department, including the Director, employee of the Department or authorised officer, any fee, perquisite, bribe, gratuity, recompense or reward, whether pecuniary or otherwise, on account of anything done or to be done, omitted or to be omitted, by the representative in any way relating to his office or employment, or attempts to make a collusive agreement for the representative to neglect his duty or to conceal or connive at any act whereby a provision of this Act or any other enactment may be evaded or violated, commits a summary offence and is liable to a fine of $5,000 and six months’ imprisonment. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 67 Revision Date: 1 Jan 2019 Acts done in good faith 91. A person who is authorised by or under this Act to carry out a function or exercise a power or perform a duty shall not be held personally liable in a court for or in respect of an act or matter done or omitted to be done in good faith in the exercise or discharge of that function, power or duty. Reservation of civil remedies 92. Nothing in this Act takes away or interferes with the right of the Crown or any other person to sue for and recover, at common law or otherwise, compensation for or in respect of damage or injury caused by an offence or breach of an environmental requirement under this Act. Savings and transitional provisions 93.3 (1) In so far as anything done under an Act repealed and replaced by this Act could have been done under this Act, it is not invalidated but has effect as if done under this Act. (2) Where an enactment or document refers expressly or by implication to an Act repealed and replaced by this Act, the reference shall be construed, except where the context otherwise requires, as a reference to the corresponding provision of this Act. (3) Every proceeding in respect of a breach of an Act repealed and replaced by this Act or an offence committed against such an Act may be continued and completed— (a) if the proceeding has been partly or wholly heard, as if those Acts were still in force; and (b) in all other cases, as if the proceeding had been commenced under this Act. Act binds the Crown 94. This Act binds the Crown. 3 Act 17 of 2014 repeals the Forestry, Wildlife, National Parks and Protected Areas Act (Act 3 of 1996) and the Endangered Animals and Plants Act (Cap. 12.01) and replaces them with this Act, but the repeal of the Endangered Animals and Plants Act is not in force (S.R.O. 67/2014). LAWS OF MONTSERRAT Conservation and 68 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 SCHEDULE 1 (Section 17) ACTIVITIES REQUIRING A CERTIFICATE OF ENVIRONMENTAL APPROVAL No. Activity Definition 1. Development in a designated protected area. Development on crown or private land within a protected area. 2. Development in an area of natural, scientific (life or earth science) or cultural significance. Activities in an area containing landscapes, wildlife or features of cultural or heritage importance that would be threatened by unregulated development. 3. Storage, transport and disposal of soil. (a) The establishment, modifi cation, expansion, decom missioning or abandonment (inclusive of associated works) of soil storage areas exceeding 100 cubic yards; (b) Movement of soil exceeding thirty cubic yards for the purpose of filling; (c) Movement of soil from one location to another for disposal. 4. Timber cultivation, felling and extraction of logs. (a) The establishment of a timber plantation of more than one acre or the expansion of an existing plantation by more than two acres; (b) Logging or extraction (inclusive of associated works) of timber in a timber plantation or forested area exceeding 2.5 acres during a five year period; (c) The establishment, modifi cation, decommissioning or abandonment of a sawmill. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 69 Revision Date: 1 Jan 2019 No. Activity Definition 5. Coastal or offshore construction or modification. The establishment, modification, expansion, decommissioning or abandonment (inclusive of associated works) of— (a) beach and dune works; (b) ponded pastures for aquaculture and mariculture; (c) moorings; (d) artificial reefs or other offshore structures; (e) cutting or modification of coastal or marine areas. 6. Mining of beach sand. The removal, (inclusive of associated works) of— (a) beach sand in quantities greater than sixty cubic yards in a thirty day period; (b) sand from beaches known to be nesting sites of marine turtles. 7. (a) The clearing, excavation, grading or land filling of an area of more than 0.5 acre in a buffer zone; (b) The clearing, excavation, grading or land filling of an area containing distinctive landscapes or wildlife inclusive of land outside designated protected areas that would be threatened by unregulated development; (c) The clearing, excavation, grading or land filling of any area with a slope gradient of ≥ 20%. LAWS OF MONTSERRAT Conservation and 70 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 No. Activity Definition 8. Poultry, pig, cattle or other animal husbandry and production. The establishment, modification, expansion, decommissioning or abandonment (inclusive of associated works) and other activities (including disposal of waste) of— (a) a poultry, cattle, pig or other livestock farm in a buffer zone; (b) a facility for the hatching, breeding or slaughtering of poultry, cattle, pig or other livestock in a buffer zone. 9. Establishment and maintenance of infrastructure for land transportation. (a) The clearing, removal, trim ming of vegetation and excavation of verge works adjacent to designated pro tected areas and buffer zones; (b) The alteration of land or vegetation established for mitigation against erosion. 10. Establishment and maintenance of utilities for water, electricity, sewage and telecommunications. (a) The establishment of cables, ducts, pipes, trenches, poles, substations, switches, fences and other associated works in protected areas, buffer zones, ghauts or on steep slopes; (b) The clearing of land or the removal or trimming of vegetation; trees, brush and branches from utility installations in a buffer zone or areas containing landscapes and, wildlife or features of cultural or heritage and aesthetic importance that would be threatened by unregulated activity. LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 71 Revision Date: 1 Jan 2019 SCHEDULE 2 (Sections 24 and.25) PROTECTED SPECIES Part I—Fauna Local Name Common Name Scientific Name Status Amphibians Mountain Chicken Mountain Chicken Leptodactylus fallax Critically endangered Baby crapaud Tree frog Eleutherodactylus johnstonei Common widespread Reptiles Green/Tree Lizard Anole Anolis lividus Endemic Snake Black snake Alsophis antillensis manselli Endemic Coffin Borer Blind snake (Tropical Worm Snake) Typhlops monastus geotomus Widespread regional endemic Legless Lizard Galliwasp Diploglossus montisserrati Critically endangered Gecko Dwarf Gecko Sphaerodactylus fantasticus ligniservulus Restricted Range Woodslave Giant Woodslave Turnip Tail Thecadactylus rapicauda Widespread common Ground lizard Ground lizard Ameiva pluvianotata pluvianotata Endemic Skink Slipperyback Skink Mabuya mabouya mabouya Common in Caribbean LAWS OF MONTSERRAT Conservation and 72 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status Birds Blackbird Ani, Smooth-billed Crotophaga ani Common resident Yellow Breast Bananaquit Coereba flaveola Common resident Booby Booby, Brown Sula leucogaster Common visitor White Booby Booby, Red-footed Sula sula Common visitor Robin Bullfinch, Lesser Antillean Loxigilla noctis Common resident Coo-coo Cuckoo, Mangrove Coccyzus minor Uncommon resident Cattle Bird Egret, Cattle Bubulcus ibis Common resident White Gaulin Egret, Snowy Egretta thula Uncommon visitor Pee-whistler Elaenia, Caribbean Elaenia martinica Uncommon resident Euphonia Euphonia, Antillean Euphonia musica Uncommon resident Man o’ War Frigatebird, Magnificent Fregata magnificens Common resident Tyer Bird Grackle, Carib Quiscalus lugubris Uncommon resident Chipsa, Chitty Bird Grassquit, Black-faced Tiaris bicolor Common resident Ground Dove Ground-dove, Common Columbina passerina Common resident LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 73 Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status n.a. Gulls Family Laridae Resident n.a. Terns Family Sternidae Resident Little Gaulin, Bagga Heron, Green-backed Butorides virescens Common resident Crab Gaulin Heron, Yellow crowned Night Nyctanassa violacea Common resident Sparrow Hummingbird, Antillean Crested Orthorhynchus cristatus Common resident Dr. Carcoo Hummingbird, Green throated Carib Eulampis holosericeus Common resident Dr. Carcoo Hummingbird, Purple throated Carib Eulampis jugularis Restricted range Killy Hawk Kestrel, American Falco sparverius Common resident Swallow Martin, Caribbean Progne dominicensis Common resident Coot Moorhen, Common Gallinula chloropus Uncommon resident Nighthawk Nighthawk, Lesser Antillean Chordeilies gundlachii Uncommon resident Brown Noddy Noddy, Brown Anous stolidus Uncommon resident Oriole Oriole, Montserrat Icterus oberi Critically endangered Pelican Pelican, Brown Pelecanus occidentalis Common resident Partridge Quail-dove, Bridled Geotrygon mystacea Uncommon resident LAWS OF MONTSERRAT Conservation and 74 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status Rainy Bird Swallow, Barn Hirundo rustica Uncommon resident Trush Thrasher, Scaly breasted Margarops fuscus Common resident Tannia Bird Thrush, Forest Cichlherminia lherminieri Vulnerable Trembling Trush Trembler, Brown Cinclocerthia ruficauda Uncommon resident Tropic Tropicbird, Red-billed Phaethon aethereus Common visitor Black whiskered Vireo Vireo, Black whiskered Vireo altiloquus Common visitor Yellow Bird Warbler, Yellow Dendroica petechia Restricted range n.a. Blackbirds, Migratory Family Emberizidae Migrant Bobolink Bobolink Dolichonyx oryzivorus Migrant Indigo Bunting Bunting, Indigo Passerina cyanea Migrant Coot Coot, Caribbean Fulica caribaea Migrant n.a. Ducks, Migratory Family Anatidae Migrant Dunlin Dunlin Calidris alpina Migrant White Gaulin Egret, Great Ardea alba Migrant Gaulin Egret, Reddish Egretta rufescens Migrant n.a. Falcons, Migratory Family Falconidae Migrant Lesser Antillean Flycatcher Flycatcher, Lesser Antillean Myiarchus oberi Migrant LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 75 Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status Duck Grebe, Least Tachybaptus dominicus Migrant Duck Grebe, Pied-billed Podilymbus podiceps Migrant n.a. Hawks, Migratory Family Accipitridae Migrant Grey Gaulin Heron, Great Blue Ardea herodias Migrant Grey Heron Heron, Grey Ardea cinerea Migrant Blue Gaulin Heron, Little Blue Egretta caerulea Migrant Tricoloured Heron Heron, Tricoloured Egretta tricolor Migrant Kingfisher Kingfisher, Belted Ceryle alcyon Migrant n.a. Ospreys, Migratory Family Pandionidae Migrant Oven Bird Oven Bird Seiurus aurocapillus Migrant Northern Pintail Pintail, Northern Anas acuta Migrant n.a. Plovers, etc., Migratory Family Charadriidae Migrant American Redstart Redstart, American Setophaga ruticilla Migrant Sanderling Sanderling Calidris alba Migrant n.a. Sandpipers, etc., Migratory Family Scolopacidae Migrant Lesser Scaup Scaup, Lesser Aythya affinis Migrant Audubon's Shearwater Shearwater, Audubon's Puffinus lherminieri Migrant LAWS OF MONTSERRAT Conservation and 76 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status Common Snipe Snipe, Common Gallinago gallinago Migrant Rail Sora Porzana carolina Migrant Doctor Bird Stilt, Black-necked Himantopus mexicanus Migrant n.a. Swallows, Migratory Family Hirundinidae Migrant n.a. Swifts, Migratory Family Apodidae Migrant n.a. Tanagers, Migratory Family Emberizidae Migrant Ruddy Turnstone Turnstone, Ruddy Arenaria interpres Migrant Red-eyed Vireo Vireo, Red-eyed Vireo olivaceus Migrant Louisiana Waterthrush Waterthrush, Louisiana Seiurus motacilla Migrant Cedar Waxwing Waxwing, Cedar Bombycilla cedrorum Migrant n.a. Wood Warblers, Migratory Family Emberizidae Migrant Loggerhead, Chewpit Willy Kingbird, Grey Tyrannus dominicensis Common resident Mammals Bat Brazilian free-tailed bat Tadarida brasiliensis antillularum Restricted range Bat Jamaican fruit bat/ Common fruit bat Artibeus jamaicensis jamaicensis Common resident LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 77 Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status Bat Fisherman bat/ Bulldog bat Noctilio leporinus Uncommon resident Bat Funnel-eared bat Natalus stramineus stramineus Restricted range Bat Long-tongued bat Monophyllus plethodon luciae Common resident Bat Pig-faced fruit bat/ Lesser Antillean fruit bat/ Brachyphylla cavernerum cavernerum Common resident Bat Tree bat Ardops nichollsi montserratensis Common resident Bat Velvety house bat/ Velvety free-tailed bat Molossus molossus debilis Common resident Bat White-lined bat Chiroderma improvisum Uncommon resident Bat Yellow-shouldered bat Sturnira thomasi vulcanensis Uncommon resident/ restricted range LAWS OF MONTSERRAT Conservation and 78 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Part II—Flora Common Name Scientific Name Family Name None Justicia eustachiana Acanthaceae Century Plant, Maypole, Dagger Agave dussiana synonym montserratensis Agavaceae Century Plant, Dagger Agave karatto Agavaceae Female Karata, Dagger Furcraea tuberosa Agavaceae White Elder Schefflera attenuata Araliaceae None Marsdenia macroglossa Apocynaceae Black Mangrove Avicennia germinans Avicenniaceae Begonia, Mountain Manna Begonia retusa Begoniaceae None Cordia reticulata Boraginaceae None Aechmea smithiorum Bromeliaceae None Glomeropitcairnia penduliflora Bromeliaceae None Tillandsia antillana Bromeliaceae None Werauhia guadelupensis Bromeliaceae White Mangrove Laguncularia racemosa Combretaceae None Chromolaena dussii Asteraceae LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 79 Revision Date: 1 Jan 2019 Common Name Scientific Name Family Name None Eupatorium integrifolium Asteraceae None Eupatorium trigonocarpum Asteraceae None Mikania latifolia Asteraceae Tree Fern Cyathea muricata Cyatheaceae Tree Fern Cyathea grandifolia Cyatheaceae None Asplundia insignis Cyclanthaceae Burrwood Sloanea dentata Elaeocarpaceae Burrwood, Bullet Tree, Ironwood Sloanea massoni Elaeocarpaceae Bitter Bark, Iron Bark Phyllanthus mimosoides Phyllanthaceae Poison Tree, Bird Lime Sapium caribaeum Euphorbiaceae Measle Bush Xylosma serratum Salicaceae Wild Frangipani Gesneria ventricosa Gesneriaceae Heliconia, Wild Banana Heliconia bihai Heliconiaceae Heliconia, Lobster Claw Heliconia caribaea Heliconiaceae Fern Hymenophyllum hirsutum var. gratum Hymenophyllaceae LAWS OF MONTSERRAT Conservation and 80 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Common Name Scientific Name Family Name None Nectandra dominicana Lauraceae None Ocotea martinicensis Lauraceae Sweetwood Persea urbaniana Lauraceae None Galactia rubra Leguminosae-pap None Lobelia digitalifolia Campanulaceae None Wercklea tulipiflora Malvaceae None Marcgravia umbellata Marcgraviaceae Aralie Rose Blakea pulverulenta Melastomataceae None Charianthus nodosus Melastomataceae Wassard Charianthus purpureus Melastomataceae Wild Hogwood Clidemia umbrosa Melastomataceae None Henriettea lateriflora Melastomataceae None Miconia coriacea Melastomataceae None Miconia cornifolia Melastomataceae None Miconia globuliflora var. dominicae Melastomataceae None Miconia globuliflora var. globuliflora Melastomataceae Candle Wood Miconia striata Melastomataceae LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 81 Revision Date: 1 Jan 2019 Common Name Scientific Name Family Name None Tibouchina ornata Melastomataceae None Passiflora rotundifolia Passifloraceae Red Rock Balsam Peperomia myrtifolia Piperaceae Tree Balsam Peperomia trifolia Piperaceae None Piper dussii Piperaceae Climbing Fern Blechnum binervatum Blechnaceae Fern Blechnum ryanii Blechnaceae Fern Elaphoglossum impressum Lomariopsidaceae Fern Ctenitis meridionalis Dryopteridaceae Maiden Fern Thelypteris clypeolutata Thelypteridaceae Fern Grammitis eggersii Grammitidaceae Red Mangrove Rhizophora mangle Rhizophoraceae None Psychotria urbaniana Rubiaceae None Spermacoce berteroana Rubiaceae None Paullinia vespertilio Sapindaceae Mahoe Sterculia caribaea Sterculiaceae Crump Wood Styrax glaber Styracaceae LAWS OF MONTSERRAT Conservation and 82 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Common Name Scientific Name Family Name Mountain Mahogany, Pigeonberry Freziera undulata Theaceae None Ternstroemia elliptica Theaceae SCHEDULE 3 (Sections 26 and 27) PARTIALLY PROTECTED SPECIES Part I—Fauna Local Name Common Name Scientific Name Status Crustaceans Crab Land crab, Blue Gegarcinus ruricola Common Crab Land crab, White Gardisoma guanahumi Restricted range Soldier crab Soldier crab Coenobita clypeatus Common Reptiles Guana Iguana Iguana iguana Common widespread Woodslave Common slave Hemidactylus mabouia Common widespread Birds Mountain Dove Dove, Zenaida Zenaida aurita Common resident LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 83 Revision Date: 1 Jan 2019 Local Name Common Name Scientific Name Status Mountain Pigeon Pigeon, Scaly naped Columba squamosa Common resident Trush Thrasher, Pearly eyed Margarops fuscatus Common resident/restricted range Mammals Mountain rabbit, Wild rabbit Agouti Dasyprocta antillensis Common Part II—Flora Common Name Scientific Name Family Name Puerto Rico Cinnamon, Ant Wood Licaria salicifolia Lauraceae Red Cedar, Spanish Cedar Cedrela odorata Meliaceae West Indian Mahogany Swietenia mahagoni Meliaceae Big Leaf or Honduras Mahogany Swietenia macrophylla Meliaceae White Cedar Tabebuia pallida Bignoniaceae Hairy-Lip Epidendrum Coilostylis ciliaris Orchidaceae Montserrat Epidendrum Epidendrum montserratense Orchidaceae LAWS OF MONTSERRAT Conservation and 84 CAP. 12.03 Environmental Management Revision Date: 1 Jan 2019 Common Name Scientific Name Family Name Pale Flowered Epidendrum Epidendrum pallidiflorum Orchidaceae Umbelled or Different Epidendrum Epidendrum difforme Orchidaceae Pine Cone Epidendrum Epidendrum strobiliferum Orchidaceae Umbrella Epidendrum Epidendrum umbellatum Orchidaceae The Extremely High Oncidium Oncidium altissimum Orchidaceae Yellow Dancing Lady Oncidium urophyllum Orchidaceae Overtop Palm, Moca Palm Syagrus amara Arecaceae Pribby Rondeletia buxifolia Rubiaceae Lignum vitae Guaiacum officinale Zygophyllaceae LAWS OF MONTSERRAT Conservation and Environmental Management CAP. 12.03 85 Revision Date: 1 Jan 2019 SCHEDULE 4 (Section 33) DESIGNATED PROTECTED AREAS The area set out in the map below is designated as a protected area–