The Access Initiative

Sectors: Land

Protecting Forests with an Unexpected Legal Tool: Freedom of Information Laws

This blog, written by Jessica Webb, Carole Excell and Rachael Petersen,  originally appeared on Insights, World Resources Institute’s blog

Every year the world loses 13 million hectares (32 million acres) of forests, an area about the size of Greece. A critical way to stem this forest loss is to make concessions data about commercial activities that drive over 60 percent of global deforestation more transparent. Without data transparency, it is virtually impossible to tell how well companies are complying with concessions agreements, distinguish between legal and illegal deforestation, and bring those responsible for illegal deforestation to account.

Unfortunately, getting this kind of information in many countries is not easy, as a new study from WRI shows: countries with over half the world’s forests lack comprehensive, accessible information on concessions. Concessions for commercial activities, such as mining, logging and agriculture, are typically allocated to private companies by authorized government entities on lands legally owned or held in trust by the state. This information is critical to enforcing agreements that protect forests.

A recent example is Indonesia, which has some of the world’s richest rainforests and some of its highest deforestation rates. But figuring out the details of Indonesian forest exploitation can be as challenging as it is essential, as a recent Supreme Court decision indicates. In response to a civil society group’s information request, the high court determined that the Ministry of Land and Spatial Planning must hand over detailed maps of the land on which oil palm companies have been licensed to operate. This ruling is a huge step toward greater transparency in the management of Indonesia’s expansive natural resources. It gives journalists, civil society groups and the public the information they need to hold the government and the private sector accountable for deforestation.

Laws that protect citizens’ rights to access information and promote transparency may be a key to protecting and sustainably managing the world’s forests. The WRI study, Logging, Mining and Agricultural Data Transparency: A Survey of 14 Forested Countries, finds that not only are Freedom of Information (FOI) laws effective in getting access to forest information, but countries with FOI laws tend to disclose concession data more proactively than countries without them.

3 Ways to Provide Concessions Data

The study surveyed concessions information for mining, logging and agriculture, noting the different ways this information was made available: proactively, such as through an online data portal; reactively, through an FOI request, or through ad hoc or informal means. Proactively available data is most desirable, as this means it is publicly accessible without the need for requests. Information requests can be an important mechanism to get concessions data if there is no proactive disclosure, and are preferable to no access at all.

Of the 14 heavily forested countries surveyed, eight have FOI laws: Brazil, Canada, Colombia, Indonesia, Liberia, Mexico, Russia and Peru. Researchers tested how these laws were implemented by submitting FOI requests for concessions data, including contracts, maps, lists of permits, ownership information and spatial data. These requests were at least partially successful in all countries where FOI laws were tested.

Researchers were most successful gaining full access to mining data. Four countries provided partial access to both logging and mining data. Agricultural concessions were the most difficult to access in all surveyed countries, where only two of six requests were partially granted (in Indonesia and Liberia). While cost can sometimes be a barrier to accessing official government documents, most information requests in this study did not charge a fee. 

In addition to the relative effectiveness of information requests, the study found that governments in countries with FOI laws release concessions data more proactively than do countries without such laws. For example, the governments of Brazil, Canada and Peru proactively provide data for all sectors for which they grant concessions and have an FOI law, and Mexico, Colombia, and Indonesia, provide proactive data for at least some concessions data. On the other hand, Madagascar, Myanmar, Cambodia and Malaysia lack FOI laws and provide no data proactively.

Though FOI requests can be an important way to get information, larger issues remain. There is still a lack of comprehensive information about where land investments are being made for logging, mining and agriculture in all countries. The study highlights the need for:

  • Adoption of comprehensive FOI laws in countries that lack them now;
  • Civil society to increase use of FOI laws to obtain documents as part of the strategy to monitor and protect forests;
  • Governments to facilitate greater proactive access to concession data by increasing coordination across ministries and between federal and local governments;
  • Donors to invest in building capacity for governments to collate, digitize and share concessions information proactively through online portals and information requests;
  • Voluntary partnership agreements and relevant transparency initiatives should encourage the disclosure of spatial concessions data and ensure standardization across countries.

Even though the Supreme Court decision in Indonesia is a promising move, there is more work to do. It’s time for countries with concessions on forested lands to expand access to concession data and make it priority for immediate action to support enhanced forest monitoring and land use planning, to reduce conflict and to send a message of transparency and accountability to international investors, donors and advocacy groups.

 

Strengthening the Right to Information for People and the Environment

STRIPE is an important resource in countries all over the world which do not have mandatory environmental disclosure regimes that require companies to disclose the types of pollutants that are being released into air, water, and land. Currently STRIPE is being utilized in Indonesia to help local Serang communities address the water pollution from the IKPP Pulp and Paper mill in the Ciujung River. It is also being utilized in Mongolia where partners are working with two communities concerned about water pollution in the Tuul River caused by mining and poor waste water treatment. STRIPE uses the following steps to achieve its goals:

  • Assess the challenges facing local communities concerned about air and/or water pollution released from local facilities
  • Evaluate the legal framework of the country including the laws governing the pollution control, the public release of environmental information, as well as basic freedom of information laws
  • Analyze the information that is available proactively – information that should be publically available without being formally requested
  • File information requests with government agencies to obtain any further information needed on pollution emissions and permitting abd track the results
  • Utilize the information gained from the above processes to develop advocacy messages and strategies that address community concerns.

Greenwatch Uganda Champions Information Rights

By Lalanath de Silva (Posted: March 4, 2008)

Laws alone are not enough to ensure environmental protection. Civil society organizations often play a critical role in bringing those laws to life. In Uganda, Greenwatch has done exactly that for the country’s laws on access to environmental information, the first of which passed in 1998.

Under Ugandan environmental law, the public has several opportunities to make its voice heard about new development projects. Projects that might affect the environment of Uganda have to be approved by the National Environment Management Authority (NEMA). Before such projects are approved the developer must perform an Environmental Impact Assessment(EIA), which studies the environmental impacts and examines environmentally friendly alternatives. The law requires that the press announce that the assessment has been performed and that the written results are made available to the public for comment. If comment shows that a project is controversial, NEMA must hold a public hearing.

The public can also challenge NEMA decisions in the Ugandan courts, and that’s where the civil society organization Greenwatch, Uganda (Greenwatch) has distinguished itself. As early as 1999, the organization began suing the government to honor the regulations requiring the assessments.

Although the court refused to stop the signing of the agreement, Greenwatch and other advocates of greater public participation consider the case a partial victory: for the first time, a Ugandan court recognized that concerned advocates could bring a case to vindicate environmental laws. Justice Richard Okumu Wengi of the High Court of Uganda also declared that an assessment and NEMA approval were required before the project could go forward.Greenwatch’s first court challenge of a NEMA decision was to a hydro-electric project funded by the International Finance Corporation and other banks. A utility company – AES Nile Power – was attempting to sign a power purchasing agreement with the Government of Uganda, but the company had not performed an assessment nor had it obtained NEMA approval.

(Citation: NAPE VS AES Nile Power Ltd High Court Misc. cause No. 26 of 1999)

AES Nile Power then proceeded to perform an EIA, and NEMA approved the project. Yet when Greenwatch requested information on the project and the power purchase agreement, the Ugandan Government refused. Review of the power purchase agreement would tell the public if the electricity produced would be affordable and would ease the burden on the environment. Greenwatch sued the Attorney General of Uganda to obtain the document. The court decided that the power purchase agreement and all connected documents were both public documents and therefore ought to be made available to the public.
(Citation: Greenwatch Vs AG & UETCL)

A recent UN report concludes that while Uganda has made remarkable progress in the application of EIA procedures, there is a need to improve key aspects of its application. The report states that there is a “need to further develop approaches to ensure effective public participation in EIA, as well as need to create and strengthen regional and sub-regional EIA networks to complement national efforts for promotion of EIA.”

Greenwatch has also successfully used the space provided for public participation at EIA public hearings to stop the spraying of herbicides on Lake Victoria – the second largest lake in the world and the largest in Africa. Greenwatch produced convincing evidence to show the dangers of pesticide spraying. Greenwatch also showed that the entire operation might not be financially viable because the Ugandan company’s parent company in the U.S.A was bankrupt.

Greenwatch continues to advocate in the public interest today. Most recently, it obtained an interim order against Warid Telecom (U) Ltd., stopping the construction of a telecommunication tower in a residential area. The company had failed to perform an EIA and the residents had fears of a cancerous gas affecting them and the construction noise creating a nuisance. Warid Telecom has challenged these allegations saying that there is no scientific basis for any of them. The application for a temporary injunction will be heard soon.

Greenwatch has been closely associated with The Access Initiative coalition in Uganda and has blazed a trail championing citizen rights of access to information, public participation and access to justice (“access rights”) in environmental matters. It also works closely with the Government of Uganda to train public officers and judges in environmental law.

“Every person has a right to information under the Ugandan Constitution,” says Kenneth Kakuru, the Director of Greenwatch, Uganda. “An Environmental Impact Assessment is a public document.”

Resources and Legal Citations:

Full Judgments and more information can be obtained from the Greenwatch website, www.greenwatch.or.ug.

Soybean Boom Forcing Paraguay to Examine Pesticide Use

By Joseph Foti (Posted: February 7, 2008)

Once isolated Paraguay has changed radically due to a boom in soybean exports, which has brought changes in land and pesticide use.

Weak government regulation and poor public education about pesticide use highlight the need for better environmental governance. Access Initiative (TAI) partners, Instituto de Derecho y Economía Ambiental (Environmental Law and Economics Institute, IDEA) are working to build government capacity to make sure that the growing soybean trade is good for the environment and for workers.

National Public Radio recently interviewed Sheila Abed, the founder and now Executive Director of IDEA. She spoke about the problems surrounding glyphosate, a pesticide widely used in soybean farming. (Glyphosate was formerly known as “Roundup” when it was under a now-expired patent by Monsanto.) The weed-killer is generally considered safe for workers and widely used in the other countries, including the United States. But without proper handling procedures, glyphosate and its typical additives can pose potentially serious health effects.

This occupational hazard does not represent poor science or a weakness in the law as much as a weakness in environmental governance more generally. “Environmental governance” includes important “access rights” like access to information, public participation, and access to justice. In order to fulfill these rights, governments must have the capacity to provide these rights and the public must have the capacity to use them.

The case of Paraguayan soy boom highlights the need for both access to information and capacity-building for the government officials to ensure worker education and monitoring safe agricultural practice. In order for workers to know the difference between safe and unsafe handling, they must have access to information on potential health effects and how to avoid those health effects. Many countries address these needs through occupational safety hazard laws that mandate education programs and information dissemination programs for workers. To ensure that workers are receiving this vital information, governments must have the capacity to regulate employers. As the NPR story points out, some of the best ways of ensuring compliance is through partnerships with NGOs, including, in this case, labor unions and environmental NGOs.

We at WRI, the TAI secretariat, were lucky to have Ms. Abed stop by to lend us insight into the process that led up to involvement in governance issues around soybeans and eventually to the NPR interview. In the audio file below, you can hear her talk about IDEA’s work with The Access Initiative network as well as how the issue of soybeans reflects problems of weak enforcement and corruption in environmental issues more generally.