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Special report out now
Michael DeSilva, the Ombudsman for Bermuda, has submitted a Special Report to the Speaker of the House of Assembly. The report, entitled "Between a Dock and a Hard Place: An Investigation into Marine and Ports' Failure to Implement a Planning Condition for a Mooring Registration", follows an investigation into a complaint made by the children of a local fisherman who had moored his boat in a cove for over six decades.
The report concerns the Department of Marine and Ports Services' failure to implement key recommendations addressing a decades-long administrative error that has left a local fishing family without access to their mooring. The Special Report was tabled in the House of Assembly this morning, and it is now available to the public.
The dispute centres on a 2001 decision by the Development Applications Board (DAB) that explicitly required mooring piles to be registered to the fisherman (referred in the report as “Mr. Fisher” to protect the family’s privacy) as part of an arrangement to resolve conflicts with a private company's floating dock installation nearby. Despite this clear directive, the Department incorrectly registered the piles to the company while registering the mooring to Mr. Fisher – an error that remained uncorrected for over 20 years.
The situation escalated in 2020 when Mr. Fisher's children discovered that unauthorised boats had been placed on their mooring during a COVID-19 shelter-in-place period, and their mooring buoys had been unlawfully removed. Despite providing the Department with copies of the 2001 DAB decision, the Department failed to take appropriate enforcement action.
Following Mr. Fisher's death in 2020, the Department initially agreed to implement the original DAB decision but then reversed its position, citing technical grounds and effectively changing its policies retroactively that further disadvantaged the Fisher family.
The Ombudsman's investigation identified five instances of maladministration, including the Department's fundamental failure to implement the DAB's condition, inadequate resolution of Privileged Communication registration issues, communication failures, failure to use proper complaint procedures, and inconsistent application of policies.
"The core issue remains unresolved: the Department failed to implement the clear condition set by the DAB in 2001 that the mooring piles should be registered to Mr. Fisher, and it has not taken appropriate steps to remedy this longstanding administrative error," said Mr. DeSilva.
The Ombudsman made specific recommendations to address the identified maladministration, including properly registering the piles as part of the mooring, and transferring the mooring registration to Mr. Fisher's children. However, the Department's response, delivered through legal counsel rather than directly by the Department, rejected most recommendations and challenged the Ombudsman's jurisdiction.
"The Department's response was not provided by the Department directly, but by Crown Counsel acting as legal representative for the Department," noted Mr. DeSilva. "This legalistic approach undermines the purpose of the Ombudsman process, which is intended to be an informal dispute resolution process that is free from the legal constraints of a Court."
Under the provisions of section 24 of the Ombudsman Act 2004, the Ombudsman may prepare a special report where no action, or in his opinion no adequate action, has been taken by an authority in respect of recommendations made following an investigation of a complaint.
The report invites Members of Parliament to consider the implications of this case for good public administration and confidence in government services, and to take appropriate action to address the maladministration identified.
"To return the Complainants to the position they would have been in before the maladministration occurred is to register the mooring in their names, and to clarify that the nearby piles are for exclusive use with the mooring. There is no other reasonable and fair way to interpret this case," emphasised Mr. DeSilva.
The Ombudsman's recommendations include establishing clear written policies for mooring registrations, improving communication channels with the DAB, and ensuring that responses to Ombudsman investigations address the substance of issues rather than relying on technical grounds to avoid addressing legitimate grievances.
Kindly refer to the download section below to access the special report.
Source: The Office of the Ombudsman for Bermuda
