Published: 2005
To Environmental Information Participation and Justice in Latin America, 2004 – 2005
Over the course of 18 months, coalitions of civil society organizations from 10 different countries carried out local studies with a common methodology in order to evaluate the current state of access to information, participation,justice, and capacity building.
Posted by Lina Marcela Muñoz Posted: February 23, 2009
The Access Initiative Colombia in this guide presents a collection of tools for the right to information and participation in matters related to environment and natural resources. It is a contribution to progress in developing a participatory culture.
This guide aims to confront the challenges in the implementation of Principle 10 of the Rio Declaration (1992). The Guide provides the reader with a tool for approaching the issue of access to environmental information and participation from a legal point of view. It seeks to explain the importance of these issues in the context of national and international environmental issues.
The first part presents, in general terms, the most important aspects of access to environmental information, its legal nature, the principles that guide the national and international legal framework on the subject, the mechanisms for its effective implementation, the overview of the national Information system and agencies in the field. The following parts present different tools to access environmental information and to find out what information is available on the subject.
The second part of the document refers to participation in environmental decision-making, establishing not only the conceptual and regulatory framework, but the different forms and mechanisms for participation that exist in Colombia. The guide includes the formats to be used for general use and to exercise participatory rights under these mechanisms.
Convinced of the importance of information and social participation, the Access Initiative Colombia has atempted to contribute to achieve participatory democracy and a culture with regard to the environment, and has offered the reader a text which has been the result the joint work of academics and NGOs. Hopefully, this small effort effort will strengthen environmental management in Colombia.
Published: 2008
Este video muestra el proceso de fortalecimiento de capacidades que inició el Centro Ecuatoriano de Derecho Ambiental en el 2005, como resultado de la evaluación realizada por la Iniciativa de Acceso, donde se detectó que uno de los grandes vacíos existentes era justamente la falta capacidades en la ciudadanía y en los funcionarios gubernamentales respecto de los derechos de acceso.
Nuestro proceso de formación de capacidades aplica metodologías participativas apoyadas de materiales desarrollados con enfoque pedagógico, así como también con actividades de difusión y discusión de los temas de acceso en la agenda publica.
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.
By Ritwick Dutta (Posted: February 19, 2009)
In a significant victory with respect to Access to Justice, the Delhi High Court comprising of the Chief Justice A.P Shah and Justice Dr S Muralidhar, by its order dated 11.2.2009 has come down heavily on the Ministry of Environment and Forests for not fully constituting the National Environment Appellate Authority despite clear directions from the court more than three years back. The High Court also was critical of the manner of functioning of the National Environment Appellate Authority (NEAA) with in its 11 years of existence has dismissed all appeals filed. The Court observed that “given the fact that all petitions have been dismissed the NEAA, it is at present neither an effective nor an independent mechanism for redressing the grievance of the public in relation to the environment clearances granted by State or Central Government”. The High Court imposed a fine of Rs 20,000 on the Ministry of Environment and Forest for non compliance of its order to be given to the petitioner. The order came in response of the petition filed by Vimal Bhai of Matu People’s organization
The National Environment Appellate Authority is established through an Act of Parliament (The National Environment Appellate Authority Act, 1997) and provides a forum to challenge the decision of the Ministry of Environment and Forest granting environment clearance to various projects. A five member body, it consists of a Chairperson, a Vice Chairperson and three technical member. At present there is no Chairperson, Vice Chairperson but three ‘technical member’. The post of chairperson has been lying vacant for more than last eight years and that of vice chairperson for the last three years. The NEAA at present is hearing a number of Appeals against various projects such as the three dams in Uttarakhand (Kothlibhel Projects), Thermal power Plant by Reliance Energy in Maharashtra among others. Except one case concerning Polavaram Project in Andhra Pradesh, it has dismissed every single appeal in the last eleven years of its existence.
The judgment states: “the court cannot be expected to remain a mute witness to the unfortunate rendering of a statutory body ineffective by an unwilling executive. The present case tests the limit of the scope of Court’s power in exercise of its extraordinary jurisdiction under Article 226”.
“the Government of India has by its unwillingness to take effective steps, rendered the NEAA and ineffective body, thus defeating the very purpose of the NEAA Act… the Union of India is not at all serious about having an effective functioning NEAA. That the Government has been lackadaisical is obvious”.
“The headless NEAA has thus been rendered and ineffective by an act of omission of the government… The intention of Parliament in requiring the government to constitute an independent body for quick redressal of public grievances in relation to grant of environmental clearances has thus been defeated.”
The Court did not even spare the current members comprising and concluded that “We are not happy with the manner of appointment of Members of the NEAA as they do not fulfill the requirements of possessing technical expertise as per Section 5(2) of the NEAA Act. The Court also directed that after the retirement of these members, the Government of India should appoint persons with special technical knowledge in the area concerning the environment as members of NEAA as required in Section 5 (2) of NEAA Act and the appointment of retired bureaucrat is contradictory to the letter and spirit of the NEAA Act. It further held that “in the absence of a properly constituted NEAA, persons aggrieved by the grant of EIA clearances do not perceive it to be an effective mechanism.”
Delhi High Court in its judgment analyzed the issue from a point of view of access to justice. The Court stated that “the NEAA Act is an enactment intended to provide an effective and efficacious remedy for citizens aggrieved by what they perceive to be adverse decisions of the government granting EIA clearance for various projects. The challenge to such decisions would invariably on the ground that it would adversely affect the right to clean environment and health, which are but facets of the right to life itself. The NEAA Act was intended to ease the burden of the High Courts and the Supreme Court thus enabling them to take up other equally important issues affecting the lives of citizens……by rendering the NEAA ineffective, the government has denied the citizens the right of access to effective and efficacious justice in matters concerning the environment. This Court, being a constitutional court charged with the responsibility of protecting and enforcing fundamental rights cannot be expected to be a mute spectator and permit the continued apathy of the government. The plenitude of its powers under Article 226 of the Constitution require it to issue mandatory directions by way of corrective measures to prevent the continued denial of the right of access to effective justice in matters concerning the environment. This Court would, by issuing further mandatory directions, be ensuring the protection and enforcement of the fundamental rights of persons of access to justice guaranteed under Articles 14 and 21 of the Constitution”
The Petitioner were represented before the Delhi High Court by Ritwick Dutta and Rahul Choudhary, members of the TAI India Coalition. For more information email at ritwickdutta@gmail.com
By David Heller (Posted: February 6, 2009)
At the upcoming United Nations Environmental Program (UNEP) Governing Council meeting in Nairobi, Kenya, delegates will have the unprecedented opportunity to extend the adoption of important principles – a peoples’ right to access information, participate in their government’s decision making process, and seek redress in matters affecting the environment – to states around the world. But in preliminary negotiations, not all delegations were sanguine about committing to spread the codification of these principles globally.
In 2008, a select group of high-level external experts and judges, in consultation with the UNEP secretariat, was formed to draft principled guidelines that direct developing countries in the creation of national legislation protecting these access rights.
But alone, these guidelines can not compel state action. So the UNEP secretariat also drafted a complementary resolution, on how the Council should act upon the principles and work to ensure states reflect them in new law.
As it’s currently written, the draft resolution is that the Council:
Decides to adopt the guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters as set out in the [guidelines]… [Emphasis added]
Adoption of the guidelines by the Council would be a very positive, symbolic step for UNEP and the spread of the access principles. But, this language is not immune from alteration, and indeed, has already been compromised.
During preliminary discussions, several delegations, allegedly including the American contingent, expressed interest in replacing “adopt” with “take note of,”a subtle proposal with profound implications for the strength of UNEP’s commitment.
It is imperative that this change not occur.
If the Council were to merely “take note of” the guidelines, then they would be sending the wrong message to member countries: that it would be sufficient for all to do the same. While “adoption” implies an unequivocal recognition that the guidelines are desirable and binding, “taking note of” is pleasantly ambiguous and leaves far too much room for them to be ignored. The Council, by “taking note” of the guidelines, would simply be recognizing that they exist; a far cry from guaranteeing that the guidelines serve their namesake’s purpose and direct future action: a small but far from trivial distinction.
This proposed change will not go unopposed. The Access Initiative (TAI) has been working hard to leverage its influence and keep the language unmolested. Attending the meeting in Nairobi and advocating on TAI’s behalf will be Mr. Augustine Njamnshi, TAI coordinator in Cameroon, and part of the official UNEP Cameroonian delegation.
TAI has also harnessed support from its allies in the Irish and Argentine delegations, who share its concern over the dilution of the original language and will be advocating for the Council to remain committed to adoption, as the initial draft explicitly recommends.
The American delegation’s alleged complicity to the proposed change was particularly alarming. Given the Obama administration’s newfound commitment to promoting transparency and public participation in its own government, it appears as though the sea change in U.S. politics has not yet filtered down to affect the composition nor stance of its Nairobi delegation. But surely they must have been briefed on their new boss’s priorities. It’s baffling as to why the State Department Officials, representing the new administration, might be willing to water down stronger language when they arrive at the negotiating table.
Not only would U.S. support of weak language be inconsistent with its existing commitments, the U.S. delegation should consider its snowballing effects. Other nations, particularly China, will be emboldened by any U.S. disapprobation of the existing recommendations, making efforts to spread access principles beyond parties to the Aarhus Convention that much more challenging.
If any change is to be made to the initial draft of the proposed action document, it should include language that commits delegates towards creating a proper convention in the future – similar to the existing Aarhus Convention, but global in scope. Because the Aarhus parties are strictly European and Central Asian in origin, creating a similar scheme in Nairobi, where both developed and developing countries will have a presence, would be a step towards globalizing access principles. And that is an ideal that all delegations ought to be striving towards.
Environmental Impact Assessment (EIA) has existed for 30 years. During its evolution, public involvement in the EIA process has become a key criterion that distinguishes EIA as a participatory decision support tool. Consequently, EIA is a suitable and appropriate platform from which to build participatory decision making approaches for the southern African region. Environmental Impact Assessment is one window through which the public has the opportunity to engage a government in decision-making.
However, in southern Africa, there is insufficient public access to information and there are inadequate or weak mechanisms for public participation in decision-making. The Southern African Institute for Environmental Assessment (SAIEA), through support provided by the World Bank TFESSD (Trust Fund for Environmentally and Socially Sustainable Development) and Canadian CIDA, undertook 2-year project to develop a process to enhance participation in decision-making in the SADC region Africa. Calabash was not designed to actually do public participation, but rather was structured so that regulators, private sector, practitioners and civil society had the capacity, knowledge and tools to better undertake respective public participation programs on individual projects and programmes.
Governance in its simplest forms describes the relationship among institutions, processes and ideas. It is about the exercise of power, accountability and relationships in pursuit of an organization’s mission or a nation’s goals. In Africa, achievement of a country’s goals are severely challenged due to such issues as resource degradation, HIV/AIDS, water scarcity and conflict. EIA of projects and Strategic Environmental Assessment (SEA) of policies plans and programmes, are evolving rapidly to address wider sustainability objectives beyond biophysical concerns. The evolution of these planning tools is recognizing that the public has a significant role to play in the EIA or SEA process to assist a government to achieve its objectives, while at the same time advancing democratic reform and good governance practices. How a respective government engages civil society with respect to decision-making is one measure of how a government is reforming its governance and democratic reform processes. The recent Commission for Africa report concluded that governance is one of the key issues to be addressed by Africa if poverty reduction is to occur.
Many African countries have well written EIA statutes that require the involvement of the public or civil society in the project decisions that affect them. To date, the application and success of public involvement in EA has been most variable due to lack of capacity, information, knowledge and networks in many stakeholder groups. Regardless, EIA presents a very effective and practical tool for African governments to show to the international investment community and the African democratic review teams that democratic principles at the project/programme level are being applied. EIA is one big “window” through which democratic reform can be realized by more participation.
Furthermore, while democracy has been widely embraced by many African governments, regional bodies and international gatherings, it is difficult to assess the extent to which democratic practices have genuinely taken root One fact is clear – a county’s citizens rather than outsiders are best placed to undertake a comprehensive and critical identification of the challenges confronting their country on the path of democracy development and consolidation. And their participation in decision-making is key to democratic reform. Citizens, informed and active EIA can act as advocates for its use in decision-making processes affecting their lives to their political leaders who will then require it of regulatory bodies. Sustainable development can hardly be achieved without stakeholder involvement in the EIA process. EIA with public consultation is an essential part of the process and system needed to make sustainable development happen.
The Calabash project is one step of many to assist the SADC region to move forward on democratic reform by using EIA as a catalyst for participatory decision-making by providing appropriate tools, knowledge and networks to regulators, civil society, practitioners and industry of the SADC region.
By Kiril Ristovski (Posted: October 13, 2008)
The waters that are close to the mine have indicated pollution of a level-5 category, and the concentrations of lead have been above the allowed maximum level.
Presence of the heavy metals above the maximum allowed level can be found in the waters of Kriva Reka. This is a clear assessment of the results under the State Inspectorate Kumanovo, even though the assessment is late by a few months. The pollution is closest to the manufactured capacity and to the arid part of the ROC “Toranica,” according of the toxicological analysis that has been obtained from the Institute for Health Protection on the Initiative of the Fishery Organization, “Mrena” from Kriva Palanka. Measurements were taken from the location across the mine, the exact spot of the waters of Toranicka Reka.
The presence of lead was 144 000 mg,kg, which is 5 times over the maximum allowed concentrations of 30 000. These examples correspond with level-5 category of water quality. The measurements of the Kriva Reka around the arid place were showing classification on waters that belong to level-3 and level-4 water quality category .But there is one important missing part in this analysis, which is there have not been measurements of lead or zinc. The waters of Kriva Reka that are close to the pumps for drinking water are in correspondence with level-2 category of water quality.
The State Inspectorate for the Environment has announced information about results which were showing much higher presence of heavy metals on the river around the mine Toranica, but they did not give more detailed answers about the pollution. The company, “Indo minerali I metali,” will be supplied agreements, with directions about the methods and procedures regarding the regulation and taking sanctions on the pollution in that region. This was the last response directly from the State Inspectorate for the Environment.
This company has claimed that from the beginning of the pollution of the river, they had been working under regular ecological standards, taking care of the environment protection, and that their analysis has been regular. They also said that if anything goes wrong by cause of their work, they would take care of everything to protect the natural resources.
The Governmental Institutions have been inaccessible for information The residents have been reacting for three months, and they did not have adequate official information. Also, Florozon, the NGO from Skopje (under the project TAI assessment in Macedonia), has been conducting assessment for the impact of the biggest polluters of the environment in Macedonia, and ROC “Toranica” has been taken under examination through this project.
Their assessments were focused on the public access to information, public participation and access right to justice, national transparency and Government contribution regarding the environmental protection and peoples’ rights. This initiative is the biggest net in the entire world and has commitments for citizen’s insurance regarding their rights and opportunities for participations in the decision making processes related with environmental issues.
The State Inspectorate for the Environment did not respond on the official request letter regarding the results from the conducted measurement and results of the water quality of Kriva Reka. They did not act according to the law, and after one month, no one has managed to get information from the State Inspectorate for the Environment. This kind of non-compliance is not acceptable because Macedonia is party to the Aarhus Convention. This convention is based on the access right to information, public participation in the decision-making process regarding the environmental issues, according to Florozon.
According to Florozon, the assessment for the access right to information, which have been obtained by Octa, Feni, Sasa and Pollution of Kamenicka Reka, has had a bad experience, so their final report that will be delivered to the European Institutions will contain negative values.
The next step after this assessment, according to Florozon, will be the implementation of the recommendations from the TAI assessment, with an aim for capacity building of the government and of the civil associations, in order for a strong national capacity to be built. The legal recommendations are directed toward changing the law’s articles and changing government practice.
Kiril Ristovski Skopje 02.10.2008
See Also:
Posted By Lalanath de Silva (October 2, 2008)
This is a story about how community leaders activated the Supreme Court of Sri Lanka to intervene and save a river the Deduru Oya. If you cannot view the video from the video frame below you can do so by clicking here
The Deduru Oya river bed had been mined for years for sand. Sand is used in buildings and road construction. Over exploitation of the river had lead to major environmental damage river bank erosion, lowering of the water table, salt water intrusion, poor water quality and habitat destruction.
The Supreme Court acted on a human rights case brought by community leaders. Led by Chief Justice Sarath N. Silva, the Court banned sand mining in the river and ordered the Geological Survey and Mines Bureau to stop issuing mining permits. The Court galvanized the Police to arrest and prosecutes illegal miners. The issue received wide publicity in the press.
Mining operations have been stopped for about two years now. As a result natural recovery has begun. Additionally the community leaders have been able to obtain funds through the UNDP and commence rehabilitation of the river bank in two critical areas.
The case was made possible through financial and legal aid given to community leaders by the Green Movement of Sri Lanka. The green Movement is part of The Access Initiative Coalition of Sri Lanka.
Posted by Monika Kerdeman
The Yunnan coalition started their TAI assessment process during a training workshop from Jan 13-15, 2008, led byTAI core team partner Thailand Environment Institute. The coalition of civil society groups includes Eco-Watch, Yunnan Academy of Social Science (YASS), Yunnan Institute of Environmental Science (YIES), Yunnan Environmental Science Society (YESS) and Centre for Mountain Ecosystem Studies ICRAF-China, the coalition’s lead organization.
At the workshop, coalition members were trained on the TAI Assessment Toolkit. Since the training, the Yunnan TAI coalition translated the indicators in the TAI Assessment toolkit into Chinese, and gathered information and relevant documentation, laws, regulations and guidelines for review.
As part of their research, Yunnan coalition members met with the Provincial Water Bureau, Yunnan Provincial Environment Protection Bureau, Agricultural Bureau, Yunnan Provincial Forestry Department, Vegetative Protection Station, Air Quality Monitoring Station, local agricultural stations, environmental protection stations and other related sectors to acquire more information. Interviewees included experts, villagers, and consumers as well as local authority staff.
The Assessment in Yunnan examines eight case studies on access to information. These studies are on various environmental issues including; the state of environment report of Yunnan Province, air quality monitoring in Kunming city, accidental explosion at a sulfur depot and vitriol factory of the Sanhuan chemical company, noise quality monitoring in Kunming city, environmental information of Yuntianhua International Chemical Company in Yunnan, monitoring of drinking water quality in Songhuaba reservoir in Kunming, GMO information monitoring in Yunnan, and paraquat herbicide accidents in Yunnan.
Five case studies on public participation are: public participation in environment protection decisions in eco-tourism policy in Diqing prefecture, public participation in the urban agglomeration development plan in south of Yunnan, public participation in the extension project of the 2nd hospital of Kunming, public participation in the water saving regulatory of Kunming city, public participation in decision-making of Provincial Forestry Development Strategy and public participation in the environmental impact assessment of the construction of Honghe Steel Factory..
The research also looks at access to justice. The access to justice case studies are on pesticide residue information in food – claimed by people to the people’s congress, public’s claim on the dam building on Salween River, local residents’ collective claim on old trees felled by a company in Baiyu Village, Xishan District of Kunming, and the claim on the pollution accident of Longma Phosphorous Chemical Company in Xundian, Yunnan.