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An Aarhus for the Americas?

By David Heller (Posted: March 11, 2009) 

The efforts of more than a hundred civil society organizations â€“ including members of the TAI network – representing some thirty different countries in the Americas, have earned access principles a place on the agenda of this April’s fifth Summit of the Americas meeting in Trinidad and Tobago. But civil society’s intended role of influencing government officials there has been challenging, as the participation process has not been clear, and transparent and revised documents have not been released.

Civil society has met four times since October to draft a series of recommendations that will be presented to the more than thirty heads of state in Trinidad. Linda Shaffer, Project Manager for TAI Global Secretariat, has been involved with this process, and advocated for an explicit reference to the access principles in the recommendations.

Because of her and other TAI partners’ work, heads of state will have the opportunity to put words into action with respect to the access principles. In their current draft, the relevant sections of the recommendations read:

Paragraph 44 of the Declaration of the Port of Spain

We call upon governments to establish binding guidelines. We ask each country to prepare a report by 2010 that identifies specifically the steps the governments have taken to address issues of access to information. We call upon countries to accede to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

We will also work towards promoting sound environmental governance by strengthening national environmental laws and building institutional capacity for the democratic management of natural resources, guaranteeing citizens access to environmental information, to participation in decision-making processes, and to mechanisms for environmental justice. In addition, the governments commit to developing a system of environmental indicators geared toward monitoring environmental information and justice, in coordination with civil society.

Importantly, the presidents and prime ministers – if they choose to approve these recommendations – will take action to seek entry into the Aarhus Convention, which would be an incredible development for TAI and the global promotion of access principles.

But originally, civil society was not so bold in its call for governments to protect the access principles.

It was not until civil society’s second preparatory meeting, in El Salvador, that the term “principle 10” was inserted in the recommendations. Then a few months later, in Lima, the access principles were explicitly referred to, but still there was no mention of Aarhus, a global manifestation of Principle 10.

Shaffer said that in the final and most recent civil society meeting in DC, she was given the opportunity to press for stronger language. Reactions were supportive, however she had to disabuse many members of the notion that Aarhus was strictly a European affair.

TAI’s success in including this ambitious language in the recommendations is more impressive considering that civil society was faced with far from perfect support from the Organization of American States, convener of the Summit of the Americas.

To begin, the latest drafts of the document (called “Draft Declaration of Commitment” and available here) that civil society was actually recommending alterations to, were not distributed to them for comment. Instead, they had to work off of copies made last July, before alterations were made.

In order for civil society’s oversight role to be effectively exercised, they need to be presented with the most up to date information about the documents they are intending to alter.

Additionally, there was concern among civil society members about the lack of information they’d received about the civil society forum to be convened at a separate site in Trinidad alongside the Summit. It’s during this forum that civil society will have prolonged and direct access to the heads of state, and also when the recommendations will be presented to these leaders.

More information about their role in Trinidad must be offered to civil society. This will enable organizations to effectively prepare for leveraging their influence and pressuring heads of state into approving the recommendations.

This neglect of civil society is especially troubling given the commitment the Summit of the Americas says it has to including this important sector in its affairs. According to its website,

the Summit of the Americas process is structured to consider ideas and proposals from civil society organisations and the private sector as well. In the days leading up to the main event, representatives of these groups will meet to debate the issues and offer their own perspectives on the challenges facing the region.

Let’s hope that the more than 30 heads of state present during the Summit will do more than “consider” the recommendations presented to them. Despite setbacks, civil society has drafted an ambitious set of recommendations, including membership into Aarhus, that the heads of state ought to act on.

See also: The Access Initiative in the V Summit of the Americas

La Iniciativa de Acceso en el proceso de la V Cumbre de las AmĂ©ricas / The Access Initiative in the V Summit of the Americas…

By Daniel Barragan (Posted: March 9, 2009) 

Del 17 al 19 de abril de 2009 se realizará la V Cumbre de las AmĂ©ricas en Puerto España, Trinidad y Tobago, enfocada a “Asegurar el futuro de nuestros ciudadanos promoviendo la prosperidad humana, la seguridad energĂ©tica y la sostenibilidad ambiental”.

Como parte del proceso de Cumbres, la Organización de Estados Americanos (OEA) ha venido promoviendo la participación de la sociedad civil de las Américas a través de una serie de foros subregionales en Puerto España (octubre 2008), San Salvador (diciembre 2008) y Lima (febrero 2009); y un foro hemisférico en Washington D.C.(marzo 2009).

Estos espacios de participación para la sociedad civil fueron muy importantes para poder analizar y debatir la propuesta de resolución que adoptarán los gobiernos del continente en abril próximo, y definir propuestas concretas para enriquecer esta declaración.Justamente en estos espacios ha sido relevante el rol de las organizaciones miembros de la Iniciativa de Acceso, que han logrado incidir en este proceso en dos vías:

(i) Centro Ecuatoriano de Derecho Ambiental (CEDA), AC Consorcio Desarrollo y Justicia y Corporación Participa, incidieron para incorporar en las recomendaciones del Foro Subregional de América del Sur (Lima), a los derechos de acceso, ya no como un reconocimiento expreso por parte de los gobiernos, sino como una garantía por parte de los Estados para su implementación. La propuesta insertada en el párrafo 44 del documento de recomendaciones dice:

“También trabajaremos en aras de promover una gobernabilidad ambiental sana, mediante el refuerzo de las leyes ambientales nacionales y creando capacidad institucional para la gestión democrática de los recursos naturales, garantizando el acceso de los ciudadanos a la información ambiental, a la participación en los procesos de toma de decisiones y a mecanismos de justicia ambiental. De igual forma, los gobiernos nos comprometemos a desarrollar un sistema de indicadores ambientales orientados a monitorear la información y justicia ambiental, en coordinación con la sociedad civil.”

De igual forma esta propuesta fue apoyada y promovida por los socios TAI presentes en el Foro HemisfĂ©rico (Washington D.C.) realizado el pasado 3 y 4 de marzo: World Resources Institute (Estados Unidos), CorporaciĂłn Participa(Chile), Centro Ecuatoriano de Derecho Ambiental (Ecuador), AC Consorcio Desarrollo y Justicia (Venezuela) y FUNPADEM (Costa Rica); logrando que conste en el documento de recomendaciones de este Foro.

(ii) Adicionalmente, la Iniciativa de Acceso estuvo presente en dos espacios en el Foro Hemisférico de la Sociedad Civil (Washington D.C.). El primer espacio estuvo dentro del panel de Seguridad energética y sostenibilidad ambiental, en el que Linda Shaffer difundió la Iniciativa de Acceso y habló sobre los fundamentos de la gobernabilidad ambiental que son el corazón de nuestro proceso.

El segundo espacio tuvo lugar en la SesiĂłn Especial de la ComisiĂłn de GestiĂłn de Cumbres Interamericanas y ParticipaciĂłn de la Sociedad Civil en las actividades de la OEA, en donde el Centro Ecuatoriano de Derecho Ambiental presentĂł a la Iniciativa de Acceso y el trabajo que desarrollamos como un mecanismo de apoyo al seguimiento de los mandatos de cumbres en los temas ambientales.

Fue muy importante la presencia de la Iniciativa de Acceso en estos espacios, a través de sus miembros presentes, no solo para reforzar nuestra presencia institucional y liderazgo en los procesos de gobernabilidad ambiental, sino para poder incidir en foros políticos y procesos de desarrollo de políticas públicas.

The Access Initiative in the V Summit of the Americas process

From April 17 to 19, 2009 will be held the V Summit of the Americas in Port of Spain, Trinidad and Tobago, aimed at “Securing Our Citizens’ Future by Promoting Human Prosperity, Energy Security and Environmental Sustainability”.

As part of the Summit, the Organization of American States (OAS) has been promoting the participation of civil society in the Americas through a series of subregional forums in Port of Spain (October 2008), San Salvador (December 2008) and Lima (February 2009) and a hemispheric forum in Washington DC (2009 March).

These spaces for civil society were very important to analyze and discuss the proposed resolution to adopt the governments of the continent in April, and define concrete proposals to enhance this statement. Precisely in these areas has been relevant the role of TAI members, who influenced this process in two ways:

(i) Centro Ecuatoriano de Derecho Ambiental (CEDA), AC Consorcio Desarrollo y Justicia and CorporaciĂłn Participa influenced to incorporate in the recommendations of the Sub-Regional Forum of South America (Lima), the access rights, not as an explicit recognition by governments, but as a guarantee by the States for their implementation. The proposal inserted on paragraph 44 of the document reads:

“We will also work towards promoting sound environmental governance by strengthening national environmental laws and building institutional capacity for the democratic management of natural resources, guaranteeing citizens access to environmental information, to participation in decision-making processes, and to mechanisms for environmental justice. In addition, the governments commit to developing a system of environmental indicators geared toward monitoring environmental information and justice, in coordination with civil society.”

The proposal was also supported and promoted by TAI partners in the Hemispheric Forum (Washington DC) held on March 3 and 4: World Resources Institute (Estados Unidos), CorporaciĂłn Participa (Chile), Centro Ecuatoriano de Derecho Ambiental (Ecuador), AC Consorcio Desarrollo y Justicia (Venezuela) y FUNPADEM (Costa Rica); achieving the inclusion in the document of recommendations of this Forum.

(ii) Additionally, the Access Initiative was present at two spaces in the Civil Society Hemispheric Forum (Washington DC). The first space was on the panel on Energy security and environmental sustainability, in which Linda Shaffer introduced the Access Initiative and spoke about the foundations of environmental governance that are the heart of our process.

The second space was in the Special Session of the Committee on Inter-American Summits Management and Civil Society Participation in OAS Activities, in which the Ecuadorian Center of Environmental Law (Centro Ecuatoriano de Derecho Ambiental) presented the Access Initiative process and the work we develop as a support mechanism to follow the summits mandates on environmental issues.

It was very important the presence of the Access Initiative in these spaces, through its members present, not only to strengthen our institutional presence and leadership in environmental governance processes, but in order to influence policy forums and of public policy development processes.

Más información / more information:
http://www.civil-society.oas.org/Default.htm
http://fifthsummitoftheamericas.org/home/

Freedom of Association

Published: 2008

The objective of these memos is to provide helpful informational research to further populate the available materials on access rights issues.

The information memos are commissioned by the TAI Secretariat. They represent the ideas and thoughts of their respective authors and do not represent the official position of the Access Initiative or the TAI Secretariat. While the secretariat does its best to ensure the quality of these memos they are essentially the work of their respective authors who take full responsibility for their content. Please contact the TAI Secretariat if you have ideas for topics which are not covered in the current research.

TAI Global Gathering 2008

Published: 2008

This report is a detailed account of the objectives and outcomes from the second TAI Global Gathering, held in Sligo Ireland. At the gathering more then 50 TAI partners from 29 different countries met to discuss network activities and share access rights success stories.

More Transparent Than Glass

By Lalanath de Silva (Posted: February 17, 2009)

This is a video story about how the Environmental Foundation Ltd. (EFL), a public interest environmental law organization in Sri Lanka activated the Supreme Court of Sri Lanka and saved the only open ocean waterfront in the capital city of Colombo. The court also affirmed the right of the public to have access to information. If you cannot view the video from the video frame below you can do so by clicking here

The Galle Face Green had been dedicated to the public by an order of the colonial British Government in 1856. Since that time the Green had been used by the city’s public as a recreational area. The Urban Development Authority (UDA) had decided to hand over the public space to a private company to develop it as a built up amusement park. Although admission to the park would have been free, the amusements themselves would have to be paid for by the public.

The UDA had run an advertisement in a widely circulating national newspaper that the project was “More Transparent than Glass”. But when EFL asked the UDA for a copy of the agreement it had signed with the private company, it refused to give it a copy. EFL filed a human rights violation case in the Supreme Court. EFL argued that the freedom of speech and expression guaranteed in the Sri Lankan constitution included the right to seek and receive information from the Government. Ms. Ruana Rajapakse, legal counsel who represented EFL shares her thoughts on this video.

The private company filed a copy of the agreement in court. The court decision affirmed the right of the public to have access to information. The court inferred that right from the freedom of speech and expression guaranteed in the Constitution of Sri Lanka. It ruled that the freedom of expression included the right to seek and receive information from the Government in certain situations. The court also annulled the agreement saying that the UDA did not have the power to hand over the Green which had been dedicated to the public. Subsequently, the new Minister for Urban Development and Sacred Area development, the Hon. Dinesh Gunawardene (also featured on this video) decided to establish a national steering committee to examine transparency, accountability and inclusiveness in the urban sector and to introduce public participation into local government budgeting and decision-making processes.

Jackson Ushers in New Era of Transparency for U.S. EPA

By David Heller (Posted: January 30, 2009)

The Obama administration’s emphasis on transparency and public participation in government was echoed in a recent introductory memorandum that Lisa Jackson, the newly appointed administrator of the Environmental Protection Agency (EPA), circulated to her staff.

This commitment to access principles â€“ a clear deviation from recent EPA precedent – will face an immediate test.

In the memo, Jackson describes her vision of how EPA, under her leadership, will uphold transparency and public participation in its work. As she says,

Public trust in the Agency demands that we reach out to all stakeholders fairly and impartially… and that we fully disclose the information that forms the bases for our decisions. I pledge that we will carry out the work of the Agency in public view so that the door is open to all interested parties and that there is no doubt why we are acting and how we arrived at our decisions.

Of particular interest to Jackson is soliciting input from marginalized, impoverished, and minority populations, whom as she says, “have been historically underrepresented in EPA decision making.”

This interest in improving external transparency is complemented by a hope for more inclusiveness within the EPA itself.

“As I develop my agenda,” Jackson informed her staff, “I will be seeking your guidance on the tasks that are most urgent in protecting public health and the environment and on the strategies that EPA can adopt to maximize our effectiveness and the expertise of our talented employees.”

Jackson is not the only EPA administrator who has sought to introduce transparency and participation in the agency’s actions.

In 1983, then-EPA administrator William D. Ruckelshaus released a similar in-house memorandum that outlined many related concepts.

Ruckelshaus famously spoke of his desire to have EPA operate “in a fishbowl.” His influential memo went on to say,

EPA will provide, in all its programs, for the fullest possible public participation in decision-making. This requires not only that EPA employees remain open and accessible to those representing all points of view, but also that EPA employees responsible for decisions take affirmative steps to seek out the views of those who will be affected by the decisions. EPA will not accord privileged status to any special interest group, nor will it accept any recommendation without careful examination.

But these principles did not permeate through all forthcoming EPA administrations. Stephen Johnson, EPA’s leader under G.W. Bush, was accused of repeatedly ignoring the scientific findings of agency scientists and relaxing standards for polluters.

This legacy of partisanship, combined with a shrinking budget (over the past six years, EPA’s budget has fallen by $1.3 billion, or 15 percent) and diminished authority over regulatory matters, has led many to question EPA’s credibility and whether or not it’s capable of fulfilling its environmental protection mandate.

Russell Trail, EPA administrator during the Nixon and Ford eras, has gone so far as to say that, “EPA has become a nonentity.”

Likewise, during Jackson’s Senate confirmation hearing, Barbara Boxer, chair of the Senate Environment and Public Works Committee, told Jackson “The EPA needs to be awakened from a deep and nightmarish sleep.”

Consider the alarm sounded, to the tune of a massive spending package with clear environmental implications. Contained in the stimulus bill just passed in the U.S. House of Representatives is a $151 billion infrastructure component, consisting of large scale transportation and construction projects. It’s up to EPA to oversee the monitoring of environmental impacts and mitigations of these allocations, and to diligently enforce environmental standards when violations arise.

Though weakened, our nation’s official environmental steward must not claim defeat. Instead, amnesia would be more appropriate, as the time is ripe for EPA to reemerge as a vigilant enforcer of environmental standards. Jackson must prove that she can lead her agency in consonance with the principles outlined in her memo and not fall victim to the flaws of her predecessor. If she can manage to do this, then not only will EPA re-gain some of what it has lost, it can help guarantee that transparency and public participation in environmental policymaking will be here to stay. It’s a win-win situation that Jackson ought to take advantage of, and that Mother Earth will thank her for.

Stay tuned for updates on how well Jackson’s EPA is upholding its commitment to access principles, as money for the stimulus bill is doled out.

Struggle Over Information in Kenya

By David Heller (Posted: January 16, 2009)

The Kenyan government’s power to undermine the press’ essential role in providing and interpreting access to information has been reaffirmed and strengthened by President Mwai Kibaki, who rang in the New Year by codifying a series of amendments to the controversial 1998 Communications Bill.

“While Press Freedom is a cardinal pillar of democracy,” the President explained, “this is a right that carries with it special duties and responsibilities. Press freedom must therefore be counterbalanced with other freedoms and must at all times take into account the overriding interest and the safety of Kenyans.”

The original Communications Bill liberalized and regulated the fledgling Kenyan communications sector. An early balancing act, it also reflected an unwillingness to fully cede control over the media’s content to private entities.

Section 88, the target of much disdain, empowers the Minister responsible for Internal Security “to take temporary possession of any telecommunication apparatus or any radio communication station or apparatus within Kenya,” upon “the declaration of any public emergency or in the interest of public safety and tranquility.”

This section also grants Kenya’s government the power to intercept, detain, and dispose; any telephone call, email, or letter, being transmitted at such a time.

Since being passed, the government has not been hesitant to exercise this power and wrest control of credible media outlets.

As The Standard reported,

At the height of the chaotic 2007 general election, the government deployed paramilitary personnel at [a] KICC media centre who flushed out journalists, sealed off the facility then switched off live transmission feeds. The government also banned live coverage of violent chaos across the country immediately [after] President Kibaki was sworn in late in the evening.

The new amendments do little to prevent such events from recurring. While their stated purpose is to euphemistically “help streamline and introduce regulatory provisions in electronic transactions and broadcasting,” they utterly fail to address Section 88 and in fact erect additional barriers to the free flow of information. Now, the government can control the press’ output without requiring the pretense of emergency.

As International Freedom of Expression eXchange reported,

The amendments… grant the Information Minister sweeping powers to control what can be broadcast, when and in what form. The Minister will also appoint the government-dominated Communication Commission, which is charged with licensing broadcasters and ensuring the broadcasts are of “good taste.” Among other provisions, penalties for press offences – fines and jail time – have also increased.

President Kibaki justified codifying these restrictive measures by referring to the amendments’ goal of initiating economic growth.

“The enactment of the new law,” he says, “would enhance investor confidence and lead to more jobs and economic benefits especially for our youth.”

He also took some parting shots at the Kenyan media – who’ve recently been very critical of Members of Parliaments’ inflated salaries – saying that the press must “recognize that freedom must go hand in hand with responsibility.”

Despite his ostensible commitment to democratic principles, President Kibaki misunderstands the relationship between freedom and responsibility. It is the responsibility of the press is to report the truth. Kenya has stacked the deck against its media so much so that it has undermined the ability of the press to uphold this responsibility and report even innocuous truth. What good is the press’ freedom then when their ability to fulfill this purpose is being co-opted?

Furthermore, Kibaki underestimates the supreme value of truth for democracies. Citizens’ knowledge of their governments’ true actions – made possible through their access to information – is an ideal of fundamental importance. It ought to always trump a state’s fleeting and capricious desires for prosperity, happiness, and even security or so-called interests.

Implicit in the President’s remarks is his desire for a balance between the ideals of a secure state and his peoples’ right to a free press. While the oft legitimate tension between societal safety and freedom of information is at the heart of many struggles over media censorship, he would do well to take a step back and see just how unbalanced his new laws have made these competing goals become. As they say, the truth hurts. Let’s hope there are enough courageous journalists left in Kenya to make him feel its sting.

THE INDIGENOUS PEOPLES AND SMALL FISHERS OF SOUTHERN PALAWAN: A CASE OF LOCAL COMMUNITIESÂ’ EXCLUSION FROM THE MANAGEMENT AND UTILIZATION OF MUNICIPAL FISHERIES AND AQUATIC RESOURCES

Published: 2008

Locked up, hungry and confused, the two young men from the Molboc Tribe were finally released. They do not regret what they did. They will likely do it again if they have a chance to do so… just to put food on the table, as how their ancestors, as native fisherfolk in Balabac, Palawan, had done before.

For over two decades, members of the Molboc tribe, as well as local communities in the southern Palawan of town of Balabac, have had to endure harassment and ill-treatment from the security forces of a pearl farm corporation, which was prohibiting them, unjustly, and without any legal basis, from fishing in their traditional fishing grounds.

Calls for the local government unit (LGU) to mediate and facilitate a system for the peaceful co-existence of the pearl farm and the fisherfolks were ignored. Instead, in early 2005, the Municipality of Balabac enacted an ordinance declaring the entire municipal waters as a “Protected Eco-Region”, where fishing activities are prohibited but pearl farming is allowed.

The Ordinance came to pass notwithstanding the constitutional mandate of substantive and procedural due process, and the various legal provisions of guaranteeing citizen’s right to informed and meaningful participation in the formulation of policies concerning the management and conservation of their community’s natural resources.

In 2005, TAI – Philippines conducted a case study following the TAI Methodology that focused on (a) public access to information on the grounds for the Subject Policy, and (b) the opportunities for participation extended to the public in the enactment of the Subject Municipal Ordinance. Primarily, the actions of two government agencies – the LGU of Balabac and the Sangguniang Panlalawigan (Provincial Board) of Palawan, which reviewed and approved the Subject Municipal Ordinance – were evaluated. A total of 43 indicators (20 for access to information and 23 for opportunities for participation) were examined.

TAI – Philippines also conducted a re-assessment of the case focusing on access to justice as one of the pilot case using the Poverty Tool Kit. It was written from the point of view of the poor groups, small fishers and indigenous peoples in the Balabac case.

The importance of access to information and opportunities for participation cannot be overemphasized in this case. Given the affected communities’ history of disenfranchisement and repression, any environmental measure that would have the effect of depriving them of their traditional fishing grounds, or restricting their use of the same, requires intensive social preparation.

Widespread information dissemination and extensive community consultations must be undertaken not only to ensure that the proposed policy will be understood and well received by the individuals and communities affected, but also to make sure that substantive rights are not run over rough shod, and equity in access is ensured.

In this case, not only did the Municipality of Balabac fail to observe the foregoing processes, it also adopted a policy, purportedly for environmental protection purposes, that goes against international principles, Philippine statutory provision and established coastal resource management practices (i.e., it allowed pearl farming in a core or strict protection zone). The confluence of these circumstances has given rise to a public perception, whether rightly or wrongly, that the Subject Policy was adopted solely to accommodate Jewelmer’s Co. (the pearl farm) interests and to legitimize the prohibition that it has, for many years, foisted upon the affected communities without the sanction of law.

As things stand, it appears that the court case is the affected communities’ last remaining legal remedy. However, given the existing realities, resort to judicial action has not proven to be a speedy and adequate remedy. To date, the case remains pending, almost one year since its inception, and the Affected Communities continue to languish in poverty as they await its resolution.

It may be concluded that this predicament can be attributed to two main factors, namely: (a) gaps in existing laws; and (b) the failure of political will, the lack of a deep-seated orientation on, and capacity to implement, principles on access to information and opportunities for participation, on the part of the concerned government agencies.

It is hoped that policy reforms, enforcement actions and capability building measures, if implemented, will not only provide the affected communities with means for immediate relief, but will also prevent other IPs and fishing communities from being placed in a predicament similar to theirs, and render the processes involved less susceptible to manipulation to favor vested interests.

TAI – Philippines Case Study Writer: Atty. Jose Florante Pamfilo

See: TAI – Philippines Poverty Case Report
TAI – Philippines Case Study attached.