Public participation in environmental matters: Compendium, challenges and chances globally

Land Use Policy 52 (2016) 481–491

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Land Use Policy journal homepage: www.elsevier.com/locate/landusepol

Public participation in environmental matters: Compendium, challenges and chances globally Volker Mauerhofer a,b,∗ a b

Department of Botany and Biodiversity Research, Faculty of Life Sciences, University of Vienna, Rennweg 14, 1030 Vienna, Austria United Nations University Institute for the Advanced Study of Sustainability (UNU-IAS), 5–53–70 Jingumae, Shibuya-ku, Tokyo 150-8925, Japan

a r t i c l e

i n f o

Keywords: Environmental litigation Civil society Public authority Regional agreement Regulation NGO

a b s t r a c t This paper aims to provide a global and comparative overview of Public Participation in Environmental Matters in the sense of the Aarhus convention. The method applied is an in-depth literature review in particular of research papers, legal documents, policy papers, which was implemented by means of electronic databases (Web of Science, Scopus) as well as by internet research using terms such as public participation, access to information, participation in decision-making and access to justice in combination with continent names. The results were then analysed according to the five continents. They were then divided as well as discussed regarding general aspects, access to information, access to decision-making and access to justice. The results for the five continents show regionally and nationally within the three pillars, access to information, participation in decision-making and access to justice large differences. While access to information is widely legally established within all regions on all continents, access to justice is the one sector of the three mentioned in Principle 10 of the Rio Declaration which has obtained the least reflection in legislation and implementation so far. © 2015 Elsevier Ltd. All rights reserved.

Introduction: the global foundations of public participation Public Participation in Environmental Matters covers the public participation in environmental decision-making procedures as well as the access to environmental information, and to justice. In the particular context of this paper, it stands for the legally binding institutionalisation of rights for individuals and non-governmental organisations. The call for Public Participation in Environmental Matters was prominently expressed for the first time at the global level in Principle 10 of the Rio Declaration on Environment and Development (short ‘Rio Declaration’) in 19921 and further reiterated in Chapter 23 of the Earth Summit Agenda 21 (short

∗ Correspondence to: Department of Botany and Biodiversity Research, Faculty of Life Sciences, University of Vienna, Rennweg 14, 1030 Vienna, Austria. Tel.: +43 110165580. E-mail address: [email protected] URL: http://homepage.univie.ac.at/volker.mauerhofer/. 1 Principle 10 of the Rio Declaration states as follows “At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided” (Full http://dx.doi.org/10.1016/j.landusepol.2014.12.012 0264-8377/© 2015 Elsevier Ltd. All rights reserved.

‘Agenda 21’).2 Also, the United Nations Convention to Combat Desertification (UNCCD) drew a similar conclusion two years later and emphasised the need for Public Participation in degradation assessment and rehabilitation of land.3 Since then, Public Participation in Environmental Matters has been increasingly discussed and implemented worldwide. It culminated since then with the conclusion of the Convention on Access to Information, public participation in Decision-making and Access to Justice in Environmental Matters (the “Aarhus Convention”) in 1998 under the auspices of the United Nations Economic Commission for Europe – UNECE,4 the so-called Bali Guidelines

text at http://www.unep.org/Documents.Multilingual/Default.asp?documentid= 78&articleid=1163, accessed 29.04.14). 2 According to Agenda 21 – and therein especially 23.1 and 23.2. – there is a need for “new forms of participation” and the “. . . need of individuals, groups and organisations to participate in environmental impact assessment procedures and to know about and participate in decisions” (http://sustainabledevelopment.un.org/content/ documents/Agenda21.pdf, accessed 29.04.14). 3 See e.g. Articles 1 (b) i, 3 (a), 6 (d), 10 (2) f, 17 (1) f, 18 (2) a, 19 (1) a United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (http://www.unccd.int/Lists/ SiteDocumentLibrary/conventionText/conv-eng.pdf, accessed 29.04.14). 4 For the text see http://www.unece.org/environmental-policy/treaties/publicparticipation/aarhus-convention.html (accessed 29.04.14).

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from 20115 as well as in paragraphs 43–44 of the 2012 concluded Rio + 20 outcome document titled “The Future We Want”.6 Today, many regions in the world still look in particular towards a more effective implementation of these legal and political documents on the ground (see e.g. Bruch and Czerbiniak, 2002; Pallemaerts, 2006). This is especially valid for East Asia due to its huge environmental pressures and the vast number of people. The progressive implementation and enforcement of the abovementioned political and legal instruments through and within the European Union (EU) since 2005 can serve as an example on behalf of many other countries for the stronger binding inclusion of Public Participation in Environmental Matters (see the last chapter of this Special Issue). Similarly, the further use of the Aarhus Convention for an initial input for the development of general accountability principles in international organisations such as the World Bank has been proposed by Dalle (2006). A significant contribution to Public Participation in terms of substantial as well as procedural rights also emerges from the relationship of Human Rights and the environment (see recently e.g. United Nations Compound, 2013). In the following, a global and comparative overview of public participation in environmental matters in the sense of the Aarhus convention is provided. It is based upon an in-depth literature review, in particular of research papers, legal documents, policy papers, and implemented by means of electronic databases (Web of Science, Scopus) as well as by Internet research using terms such as public participation, access to information, access to participation in decision-making and access to justice in combination with continent names. The results are analysed according to the five continents and regarding general aspects, access to information, access to decision-making and access to justice. Finally, overall conclusions are presented. Regional developments in Europe Amongst different attempts on several continents, Europe shows the most progressed approach regarding the regional implementation of Public Participation in the sense of Principle 10 of the Rio Declaration. General Principle 10 of the Rio Declaration from 1992 constitutes one of the origins of the Aarhus Convention.7 The Convention has currently 47 Parties (46 States and the EU)8 and contains a provision for further accessions of any state that is member to the UN, upon approval by the Meeting of the Parties.9 The Aarhus Convention launched a new environmental contract between public authorities and the public in general. It obliged public authorities to provide and foster access to environmental information to the general

5 Guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters, Eleventh Special Session of the Governing Council/Global Ministerial Environment Forum, Bali (Indonesia) 24–26 February 2010, Governing Council of the United Nations Environment Programme, UNEP/GCSS.XI/11, 3 March 2010, Annex to decision SS.XI/5 A, which were based on Principle 10 and the Aarhus Convention, globally applicable and structured in terms of the three pillars such as the Aarhus Convention (http://www.unep.org/delc/Portals/119/Proceedings K1060433 final %2011SSGCGMEF.pdf, accessed 29.04.14). 6 Available at http://www.un.org/en/sustainablefuture/ (accessed 29.04.14). 7 For the text see http://www.unece.org/environmental-policy/treaties/publicparticipation/aarhus-convention.html (accessed 29.04.14). 8 For the full list of Parties see http://www.unece.org/environmental-policy/ treaties/public-participation/aarhus-convention.html (accessed 29.04.14). 9 See Article 19 (3) Aarhus Convention and also Decision IV/5, adopted at MOP4 of the Aarhus Convention (ECE/MP.PP/2011/CRP.3).

public, to involve the general public in decision-making processes on environmental issues, and to ensure access and opportunity to justice for individuals and NGOs to challenge decisions made on such issues. The European Union signed the Aarhus Convention together with several countries especially from Eastern Europe already in 1998 and the Convention formally entered into force in 2001 (Wates, 2005). In order to ratify this Convention, the legislation of the European Union had to be compatible with it. Thus, the EU began adapting its legislation to the Aarhus Convention in the late 90s (Donald, 2002; Lee and Abbot, 2003). Horizontally, concrete implementations steps followed for several aspects such as access to information with regards to EU-member states10 and the application of the provisions of the Aarhus Convention on Access to information, public participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies.11 The Aarhus Convention does not only address the national authorities of its Parties but also assigns responsibility to the main organisations of the European integration procedures such as the European Commission and the European Parliament (Rodenhoff, 2003; ECOSPHERE, 2006). Thematically, the EU has also introduced rights based on the Aarhus Conventions into several sectorial Directives such as the ones related to Water Policy,12 Environmental Impact Assessment13 (for the national implementation see e.g. Hartley and Wood (2005) regarding the UK) and the so-called IPPC-Directive.14 Worm (1997) showed by using the example of Denmark, that also prior to the conclusion of the Aarhus Convention a decentralised, legally prescribed system for horizontal and vertical integration of decision-making processes had existed for a long time and balanced – by means of negotiations – the different interests of users, environmental assessments and Public Participation with solutions that are not always optimal but are pragmatic compromises. Earlier than the Aarhus Convention, also the Convention on Environmental Impact Assessment in a Transboundary Context was adopted under the auspices of UNECE in 1991 in Espoo/Finland and provided also already for certain participatory rights reciprocally among countries (Knox, 2002). A Strategic Environmental Assessment Protocol (short “SEA Protocol”) augments that Convention by ensuring that individual Parties integrate environmental assessment into their plans and programmes at the earliest stages.15 Furthermore, Public Participation can also be found in scientific literature from other sectors, increasing attention on the European level including landscape protection (Conrad et al., 2011), forests (Elands, 2004; Higuero, 2005; Blicharska et al., 2011), land use- and energy policy regarding

10 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26). 11 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25/09/2006, p. 13–19). 12 Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (Water Framework Directive (WFD) (OJ L 327, 22/12/2000, p. 1–73). 13 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28/01/2012, p. 1–21). 14 Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), as amended by Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006 (OJ 2006 L 33, p. 1) and afterwards replaced by Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8). 15 Entered into force on 11 July 2010 (http://www.unece.org/env/eia/sea protocol. html, accessed 29.04.14).

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windparks (Ohl and Eichhorn, 2010), urban planning and development (Vajdovichvisy, 1993; Cohen-Blankshtain and Nijkamp, 2004; Curwell et al., 2005; Gil et al., 2011), privatisation (Ebbesson, 2011), protected area management (Heritier, 2010; Buono et al., 2012), inshore fisheries (Pita et al., 2010), the release of Genetically Modified Organisms – GMOs (Mayer and Stirling, 2002; Frewer et al., 2004; Rouchier and Thoyer, 2006; Gottweis, 2008) and climate change (Wilson, 2010). The following outline indicates mainly for the European Union some particular aspects regarding the three pillars of the Aarhus Convention.16 Access to information and public participation in decision-making EU law and Aarhus Conventions have already shown since the negotiations about the first drafts of this Convention reciprocal influence (Hallo, 2011) and similar mutual effects have been already pointed out in particular with regard to public participation in decision making (Jendro´ska, 2011). Nationally, certain drawbacks in the relevant legal framework (such as missing encouragement therein) can cause a lack in public participation during the procedures that design and formulate policy proposals such as Baba et al. (2009) indicate for parts of Romania. Almer and Koontz (2004), in their exploration of three cases of public hearings held for EIA projects in Bulgaria, found that public participation and public hearings in particular have similar problems related to legal, administrative and representation issues such as have been observed also in other countries (including the United States and Canada), but also can indicate – besides participation in hearings – important indirect benefits such as the potential to contribute to the capacity for democratic governance and an active civil society. Access to justice Since the 1972 U.N. Conference on the Human Environment, an unprecedented period of environmental law making has emerged, while the enforcement of this law also through the jurisdiction has only come much later into the general public eye (Robinson, 2003). The Aarhus Convention on its own on one hand provides procedural rights and on the other hand supports through these rights the enforcement of substantial environmental laws of each thematic sector, in particular on behalf of environmental NGOs (Crossen and Niessen, 2007). The implementation of the rights granted by the Aarhus Convention lies primarily with the Parties to the convention. Secondarily, the Aarhus Convention Compliance Committee (ACCC) is also responsible. This regional compliance mechanism established under the Aarhus Convention was adopted at the First Meeting of the Parties to the Convention in Lucca, Italy, in 2002.17 It is rather unique in comparison to the compliance mechanism of other Multilateral Environmental Agreements due to several new procedural roles that can be performed by non-State, non-Party actors, including the nomination of members of the Committee and the ability to request further information on matters under its consideration from the Parties under these norms (Kravchenko, 2005; Koester, 2007; Pitea, 2009). The practical results of the decided recommendations of the ACCC can be far reaching and due to lack of proper public consultation in advance, could even halt the construction of a nuclear power

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plant until a new Environmental Impact Assessment has been carried out if EU-law is applicable (Haverkamp, 2011; UNECE, 2011; European Commission, 2011). Besides the ACCC, Cichowski (2006) also found in a social science based analysis of decisions by the European Court of Human Rights (ECHR) a change of democratic opportunities for individuals at both the domestic and supranational levels regarding democratic participation. Regional developments in Africa Public Participation is an issue of growing interest in Africa. This is valid for the national as well as several regional levels of that continent. General Numerous initiatives exist in Africa to promote Public Participation for the whole continent, in specific regions such as East Africa, particular countries such as Nigeria and particular issues in combination with a geographical limitation such as for Access to Information in East Africa (Environmental Law Institute, 2012). However, the number of already existing binding legal instruments appears to be rather limited, despite the African Union’s African Convention on the Conservation of Nature and Natural Resources adopted in 2003 and requiring African countries to adopt legal measures guaranteeing rights related to all three pillars.18 Approaches already in force usually have a regional or national focus and rarely cover all the three pillars of Public Participation (in the sense of the Aarhus Convention). Despite this, Africa has some history in Public Participation in Development planning (Garcia-Zamor, 1985; Odote and Makoloo, 2002), apart from the specific situation in South Africa where no formal structure existed regarding Public Participation in water management (van Veelen and van Zyl, 1995; Maaren and Dent, 1995) and where local economic development strategies included Public Participation only due to emerging democratic movements (Maharaj and Ramballi, 1998). In general, an interactive and incremental developmental approach to sustainable development with – inter alia – the requirement of broad Public Participation has already been proposed for southern Africa (van Jaarsveld et al., 1996). In Africa, substantive environmental rights are expressed at the regional level and also in national constitutions in several cases and strengthened by subsequent laws, while the procedural rights allowing for the implementation of the substantive rights are not always sufficiently developed (Du Plessis, 2008; Calland and Nakhooda, 2012). For example, Du Plessis (2008) concludes for South Africa, that the “law framework serves to show how an environmental right and the implied right of all to participate in environmental decisionmaking may be strengthened by subsequent legal developments” while “the provisions for public participation in the enforceable legal instruments . . .. prove itself to be ambiguous regarding appropriate or required tools, mechanisms and procedures” (p. 23). Apart from a lack of such foreseeable statutory opportunities, numerous non-statutory barriers and incentives for private stakeholder participation exist which have been classed as economic, situational, developmental and socio-cultural in nature (Neysmith and Dent, 2010). And even if foreseeable statutory opportunities exist, it should be ensured that they have been shaped by Public Participation and not by adjustments beforehand (Everatt et al., 2010).

16

For more and additional aspects please see the last chapter of this Special Issue. Decision I/7 ‘Review of Compliance’ adopted at the first meeting of the Parties held in Lucca, Italy, on 21–23 October 2002 (http://www.unece.org/fileadmin/ DAM/env/pp/documents/mop1/ece.mp.pp.2.add.8.e.pdf, accessed 09.05.14). 17

18 To be found at http://www.au.int/en/sites/default/files/AFRICAN CONVENTION CONSERVATION NATURE NATURAL RESOURCES.pdf (accessed 17.05.14).

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However, organisational progress has been made in South Africa as for example, during the establishment of the first 8 of 19 proposed public Catchment Management Agencies (CMA) based on water law, stakeholder participation (including individuals) has been considered challenging but largely successful, although the process of establishment has been too slow and further delayed by a review process (Karar et al., 2011). In general, Public Participation is considered a key issue throughout Africa in integrated water resource management (Dungumaro and Madulu, 2003; Jovanovic, 2008; Muro and Jeffrey, 2012). This was emphasised in particular in the context of climate change, regarding West Africa’s implementation of adaptation measures dealing with water supply and demand (Ojo et al., 2003) and for agricultural decision-making connected to Climate Change in Uganda (Peterson et al., 2010). Also for the effects of drought on rangeland in the Sahel, Twumasi et al. (2003) emphasised that the most important policy recommendation on rangelands is that governments should advocate and plan for Public Participation in solving the problem. In the case of Tanzania and Kenia fostering stronger Public Participation in local governments and empowering civil society at the level of local village government has been identified as one means to strengthen governance at sub-national level in order to overcome omnipresent monopolistic state power (Tarrósy, 2010). Furthermore, Public Participation is attracting increasing attention on the African continent regarding research about issues such as ecoregional conservation and restoration planning (Dzerefos and Witkowski, 2001; Younge and Fowkes, 2003; Armstrong, 2008; Olukoye and Kinyamario, 2009), eradication and use of invasive plant species (De Lange et al., 2012), land degradation assessment and rehabilitation (Stringer et al., 2007), agro-forestry extension (Reed, 2007), urban planning and development (van Horen, 2000; Lund and Skinner, 2004) and the release of GMOs (Jaffe, 2004).

Access to information Access to information is already on a general level a widely expressed practice at least in some African regions and countries. For example, Article 9 of the African Charter on Human and Peoples’ Rights adopted by the Organisation of African Unity (OAU) on 27 June 1981 provides that, “Every individual shall have the right to receive information” (OAU, 1981). At the national level, Article 41 of Uganda’s national Constitution from 1995 grants every citizen the right to access information in the possession of the state or its agencies and this is further enshrined in the Access to Information Act (2005) and in the National Environment Act (Gowa, 2009).19 The necessity for these rights has been pointed out and more engagement might be necessary to develop an appropriate set of rules or subsidiary legislation specifically governing environment information and a more innovative approach to the production and dissemination of public information has been recommended (Gowa, 2009). Even subsidiary legislation enacted might be insufficient in light of access to information such as Murombo (2008) indicated. This author criticised South Africa’s EIA regulations promulgated under the National Environmental Management Act 107 of 1998 as these provisions do not create a framework for informed public participation due to a lack of legal clarity.

19 In particular latter constitutes the access to environmental information as a pillar of the participatory system, to be clearly distinguished from the access to environmental information within the frame of public participation in environmental decision-making.

Public participation in decision-making Public participation in decision-making takes place amongst various thematic and cross-thematic fields in Africa. Quite abundant within the literature are more recent processes with regard to water management, in particular from South Africa. Also, strategic environmental assessment (SEA) procedures – which are commonly applied for activities in a prior state than the project level – contain public participation as a significant element as shown in the planned enlargement of the town Pietermaritzburg in South Africa (Nicolson, 2010) where the SEA was done regarding the planning of a river catchment. A similar correlation between SEA procedures and public participation has also been found by Retief (2007) with regard to water management in the South African Mhlathuze Catchment. Also for the procedures regarding Environmental Impact Assessment (EIA) which usually addressed projects, public participation is considered an important issue in Africa. Alemagi (2007) proposes as a solution for the negative impacts of the oil industry along the Atlantic coast of Cameroon that cleaner production requires a more comprehensive legislation enabling a robust public participation in environmental impact assessment. Similarly, Glavovic (2000, 2006) proposes a solution for minimising coastal conflict that promotes meaningful public participation, as exemplified by the Integrated Coastal Management in South Africa. Such a proposal is supported by experiences from Tanzania on the proposed Fiji delta prawn farming project where one of the tools for the solution of the coastal conflict was also improved public participation (Masalu, 2003). Specifically, South African EIA laws were considered to be ineffective as tools to promote sustainable development as they leave much discretion to environmental assessment practitioners (EAPs) regarding the form in which public participation could assume (Murombo, 2008). The inclusion of social input into in permit-issuing procedures of – examined by Social Impact Assessments (SIA) – shows ambiguous results for South Africa. Thus, Scott (1999) for a SIA regarding marine waste disposal in southern Kwazulu-Natal, found there to be a much stronger participatory process, though lengthy and costly, and that it can provide the basis for sustainable environmental management. While du Pisani and Sandham (2006) assessed the performance of SIA in the EIA context and concluded that it is neglected, that the practice of SIA in South Africa is not yet fundamentally sound, and that it does not receive sufficient professional attention in relation to the enormous social challenges associated with it. Sometimes, the perceptions with regard to public participation in decision-making differ significantly such as found in Zimbabwe by Bland (2011), who concluded that citizen involvement is actually quite weak while local officials believe that public participation in decision-making is strong. Access to justice Article XVI para. 1 litera d of the African Convention on Nature and Natural Resources from 2003 mentioned already above requires African countries to introduce in their legal systems also timely and appropriate access to justice. Despite this, access to justice in environmental matters appears to be throughout Africa the pillar of Public Participation that is least developed. Though, regional conventions and national constitutions contain substantive environmental rights on behalf of the citizens which should be procedurally enforceable based on access to justice. Some exemptions exist such as Du Plessis (2008) refers in his work to “at least two environmentally relevant decisions of South African courts to date addressed issues of public participation” (p. 22). However this low number indicates rather that access to justice in environment even in South Africa still has a high potential for

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further development. This indication is supported by Murombo’s (2008) conclusion regarding the South African EIA law according to which the judiciary sector also has to aid in the EIA process by contributing content to the legal provisions on Public Participation to make them fully effective. Patel (2009) in this context points to evidence indicating that the poor and the natural environment continue to be marginalised in decision-making, despite constitutional commitments to environmental justice in South Africa, and calls for broader strategic and political debates in order to bring outcomes of quality instead of procedures back into the centre of decision-making towards environmental justice. Regional developments in America The situation of Public Participation in environmental matters appears quite diverse in the Americas given the huge socio-cultural variety ranging from Canada in the North to Argentina in the South creating different challenges associated with ongoing crossnational activities. General Public Participation was introduced in the North American Agreement on Environmental Cooperation – NAAEC in 2003 (Malgosia, 2003), where it remains a central component. In a more thematically narrow way, North American countries have also adopted regional agreements that provide for transboundary EIA; furthermore, domestic law on EIA has shown parallel already detailed procedural obligations and provided important avenues for Public Participation, despite the scope of the EIA laws being considered to be limited and lacking substantive prohibitions (Knox, 2002). Ochs (1998) discussed the potential of Public Participation for minimising conflicts by using the example of transnational drainage construction disputes in North America. Also, large donor organisation that finance big projects such as the Inter-American Development Bank started some years ago to promote Public Participation in the design and execution of programmes that it finances in order to minimise their environmental impact and to prevent potential conflict situations (Keipi, 1995). Organisationally, new mutually acting cooperative measures have been created to resolve such problems in a precautionary way, such as demonstrated by Duda (1994) on the transboundary pollution prevention needs in the Great Lakes/St. Lawrence River basin in North America addressed by the joint institutions for the Great Lakes clean-up utilised under the auspices of the International Joint Commission (U.S. and Canada). In this case, some of the main lessons learned were the political advantages of employing such joint institutions to foster Public Participation and to establish trust and credibility among the stakeholders through joint fact-finding (Duda, 1994). Benson et al. (2012) assessed the question of learning exchange between the EU (with its Public Participation approach based on the Aarhus Convention) and the US and concluded – at least in theory – mutual learning opportunities regarding different applications of funding mechanisms and legal embeddedness of multi-levelled water governance. Recently, around the Rio + 20 conference 2012 a substantial boost for Public Participation took place in Latin America through several new initiatives such as in particular the 2012 Declaration on the Application of Principle 10 of the Rio Declaration on Environment and Development in Latin America and the Caribbean (UN-ECLAC, 2012; World Resources Institute and The Access Initiative, 2011). Wider regional commitments already existed for a longer time, such as the 1999 Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development (ISP) in the Organisation of American States

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– OAS (OAS, 2013). However, a recent workshop that related this Strategy to the Aarhus Convention indicated that most Latin American and Caribbean (LAC) countries have neither fully implemented this Strategy nor Principle 10 of the Rio Declaration (IISD, 2011). In a comparative analysis of five Andean countries: Bolivia, Peru, Ecuador, Colombia, and Venezuela, Coutinho (2006) pointed out a new state model where tension exists between democracy and economic limitations, combined with endogenous institutional problems, that allows for Public Participation and dissent, but largely transfers the responses to the increasingly globalised market, where meeting social demands experiences difficulties. Throughout Latin America, the issue of water services is closely linked with Public Participation as shown in the Brazilian examples of improved water and sanitation services (Kauark-Leite et al., 2008) and in agricultural decision-making in the context of climate change (Peterson et al., 2010). In the close-by sector of alternative energies and its policies, Smit (2012) related the European experience of the contribution of Public Participation to the formulation and further implementation to the political and social situation in Mexico. Furthermore, Public Participation in scientific literature also gets from other sectors increasing attention in one or more countries on the American continent including pest control in forests (Hudak, 1991; Schulz et al., 2012), community forests (Duinker et al., 1994), “citizen science” involvement and education of private stakeholders in ecological research (Einsiedel, 2008; Bonney et al., 2009; Dickinson et al., 2012; Miller-Rushing et al., 2012), wildfire mitigation (McGee, 2011), waste management (Yates and Gutberlet, 2011), the interface between ecosystems and human health (de Freitas et al., 2007), marine protected area planning (Sayce et al., 2013) and transport politics (Lacasana-Navarro et al., 1999). Access to information Access to information is widespread in the northern countries of the Americas, namely Canada and the US. This has been highlighted in the example of US governmental digital cartographic data by Mulcahy and Clarke (1994) who reasoned that the distribution of such data on the basis of the marginal dissemination costs without copyright if the data has been generated using public funds is something that should be encouraged. The access to information regarding toxic industrial emissions has been for example accomplished in the US already by early reporting duties laid down in the Toxics Release Inventory (TRI) established in 1986 by the federal Emergency Planning and Community Right-to-Know Act (EPCRA, 1986; Weeks, 1998). In comparison, for the Southern parts of the Americas relevant environmental information is often missing or hardly available. For example, Munoz et al. (2003) hold the lack of adequate legal tools responsible for the numerous problems related to coastal management in Argentina and advocate for domestically integrated ways towards the development of specific research, education, training and information generation and more. Similarly, Yamaguchi et al. (2004) recommend in their action plan for the San Juan River basin, shared by Costa Rica and Nicaragua in Central America, improved mechanisms for information transparency, amongst other things. Public participation in decision-making and access to justice Public participation takes place in North America by a variety of decision-making procedures. For example, US agencies making toxic site clean-up decisions increasingly rely on Community Advisory Boards (CABs) to facilitate long-term participation through informing and consulting the public as well as integrating

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citizens’ input in clean-up decisions (Laurian, 2005). In South America, Brazil’s Sao Paulo municipal government addresses substandard settlements through a handful of measures such as new legislation, financial instruments and partnerships with the private sector, and public participation in all decision-making and implementation processes (Budds et al., 2005). The management improvements regarding urban water conflicts in this city indicates as similar positive outcome with the implementation of effective public participation (Braga, 2000). On the other hand, Mauro et al. (2009) indicate that certain local stakeholders are continuously excluded from decision-making procedures that are relevant to them. These authors pointed out that the expertise of farmers continues to be overlooked regarding the issue of GMOs release by decision-makers and regulators across North America, although farmers are highly knowledgeable regarding genetically modified wheat (Roundup Ready wheat) and arguably all forms of agricultural technology. Similarly, Yamaguchi et al. (2004) recommended in their action plan for the San Juan River basin, shared by Costa Rica and Nicaragua in Central America, improved instruments also for the promotion of public participation in decision-making. Munoz et al. (2003) hold the lack of adequate legal tools responsible for the numerous problems related to coastal management in Argentina and promote nationally integrated solutions, interinstitutional coordination and public participation in the decision-making process. Public participation in decision-making also has a preventative function. This was for example pointed out by Haque (2000) on the example of the catastrophic 1997 floods of the Red River Valley, (Manitoba, Canada), where among other things, a reluctance to implement up-to-date regulations and minimal public participation in the emergency decision-making process have all contributed to the difficulties experienced by floodplain inhabitants, despite preparatory measures taken. Environmental coalitions resulting from organisation and communication amongst environmental interest groups can, in conjunction with governmental support for increased public participation, develop immense influence during permission procedures even leading to the rejection of proposed projects, such as shown by Hood (1995) on the example of the Canadian Windy Craggy Mining project. Regional developments in Asia The situation of Public Participation in Asia is multifaceted. A wide variety of political systems and socio-cultural backgrounds in geographical and demographical terms exist, presenting a whole new set of challenges to be dealt with. General Initiatives to promote Public Participation have been in particular set within Asia and also under the political framework of the Asia-Europe Meeting – ASEM (Furman et al., 2002; Nicro et al., 2002; Heng, 2002; ASEM, 2013). At least four quite different types of countries have to be distinguished whereby only in those belonging to the first one the Aarhus Convention entered into force. First to mention are countries of Central Asia such as Kazakhstan, Kyrgyzstan and Tajikistan which have ratified the Aarhus Convention as party members. These countries are also supported by the Organisation for Security and Co-operation in Europe (OSCE) through the establishment and activities of Aarhus Centres and most of these countries have reported progress in creating a general legislative framework for the implementation of the Aarhus Convention, as demonstrated during an independent evaluation of these centres in 2008 (OSCE, 2009).

Secondly, countries such as Japan, Singapore and South Korea form a group of highly developed entities with very progressive legal systems. Thirdly, emerging countries such as India, China and the Philippines with vast territories and high populations which – in their own unique manner – have shown considerable progress with regard to particular pillars of Public Participation (Rajamani, 2008; Sheikh and Rao, 2007; Forsyth, 2005). Fourthly, the remaining majority of countries of Asia are on the edge of or moving forward towards an initial democratic system of active participation of private stakeholders, but are struggling with basic economic supply and organisational as well as institutional stability of their governmental organisation and legal system in their respective territories. Public Participation has also been seen as a means to overcome authoritarian structures (Novy and Hammer, 2007). It has yet to be proven if this still holds valid for East Asian region and in Southeast Asia, as notably shown in the example where if there are revivals of authoritarian regimes – unattractive as that might be – these authoritarian countries would be considered to be potentially more capable to deal with the complex political and environmental pressures in that region than several of its democracies (Beeson, 2010; Heng, 2002). In terms of urbanisation, East Asia and South East Asia are global front-runners (Sorensen, 2000; Ooi, 2007). In this connection, the view of Bai et al. (2010) can be reminded, according to which regional and global environmental issues should be addressed in urban policy by enhanced governance processes such as increased Public Participation and networking and learning across cities. Central Asia could find a potential blueprint in the South Eastern Europe’s engagement of the Environment and Security Initiative (ENVSEC) which as a unique partnership between the UN and other international organisations – thus guaranteeing a wide-stakeholder participation – and serves to meet security and environmental concerns with the view of integrating the principle of sustainable development into national policies (ENVSEC, 2013; Sandei, 2009). Some first steps have already been taken earlier than the establishment of ENVSEC in this direction such as exemplified by a bilateral Agreement on utilisation of the water facilities on two transboundary rivers Chu and Talas signed in 2000 between the Governments of the Republic of Kazakhstan and the Kyrgyz Republic that entered into force in February 2002 and was implemented with significant benefits in mind for all participants by means of internationally broadly supported projects that involved Public Participation as one of its important components (Bure, 2008). In China, despite diverse promises in the wording of the laws and some success stories of projects, politicians rejected a meaningful institutional framework to allow Public Participation, even in the area of environmental protection as the government is often driven by demand (Li et al., 2012) articulated by people or companies. For the area of nuclear energy no participation of the public, media and NGOs exists at all (He et al., 2013). Access to information The Aarhus Convention has significantly transformed environmental activism and domestic law in Central Asia by coupling domestic law with an international convention. It achieves most notably access to information for NGO’s not only in domestic cases but also with regard to international donor-installed complaint procedures such as within the World Bank/IFC regarding environmentally harmful activities co-financed by these organisations (Weinthal and Watters, 2010). For China, Li and Li (2012) showed regarding access to information in environmental matters a rather ambiguous

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picture when pointing out that on one hand there has been substantial progress on granting and enforcing public right to environmental information while on the other hand, there is a lack of local commitment and less than optimal institutional capacity. For Asia in general and the ASEAN region in particular, the disclosure of information on the environment is considered to be limited in comparison with European and Latin American countries, and a regional collaboration in developing a policy towards this disclosure has already been recommended several times (Kobayashi and Mori, 2005; Kobayashi, 2012).

Public participation in decision-making and access to justice Public participation has recently being considered by Gunchinmaa and Yakubov (2010) also as one of the core issues of Integrated Water Resource Management (IWRM) water users associations (WUAs) throughout post-Soviet Central Asia. Additionally, besides creating water users associations (WUAs), transferring irrigation management to them and introducing irrigation service fees, there are also other crucial challenges such as size of the farms, overall viability of agriculture and a wider economic context which significantly determine overall irrigation effectiveness (Gunchinmaa and Yakubov, 2010). Public participation in Trans-boundary Environmental Impact Assessment (TEIA) for larger countries – who tend to have separated jurisdictions in comparison to smaller countries – can become a two-fold issue in a domestic as well as bilateral sense. This was pointed out for China by Marsden (2010), who recommended a more widespread application of TEIAs as well as the introduction of new governance structures and amendments of China’s domestic EIA Law. Other types of more informal processes in China have already shown notable results regarding the implementation of a process involving local resident participation such as shown by Yuan et al. (2003) in their case study regarding the development of sustainability indicators by communities in Chongming County. The big urbanisation challenge in China through rapid economic growth and inefficient use of natural resources has led to excessive pollution and rapid resource scarcity and depletion but also led within Chinese society to initial experiments with the organisation of public hearings on environmental issues (Enserink and Koppenjan, 2007). What exist more formally, are explicit rights of the public such as expressed in the 1987 Philippine Constitution20 wherein Section 16, Article II states that “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature” (for an early overview in South Asia see Razzaque, 2004). These substantial rights are further supported by procedural provisions named “Rules of Procedure for Environmental Cases” which contains a concept such as strategic law suits against public participation (Supreme Court of the Republic of the Philippines, 2010). Also, the 1997 Constitution of Thailand recognises the rights of local communities to participate in local natural resources planning and management (Sinclair et al., 2013). India has shown considerable progress in terms of access to justice, especially through innovative interpretations by the Supreme Court of India (Rajamani, 2008), with some of the most remarkable cases of public interest environmental litigation around the world.

20 See http://www.gov.ph/the-philippine-constitutions/the-1987-constitution-ofthe-republic-of-the-philippines/ (accessed 13.03.13).

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Regional developments in Oceania The situation in Oceania regarding Public Participation in Environmental Matter appears to be quite progressed although differences between several regions are apparent. General Australia shows the involvement of citizens in consultations on the making of strategic public policy (Manwaring, 2010) as well as in specific themes. Thus, it provides for a progressed system of laws and rules that emphasizes Public Participation particularly in the areas of water governance, both coastal and inshore (Hurlimann and Dolnicar, 2010; Smiley et al., 2010; McKay, 2003; Harrington et al., 2008; Clarke, 2008), forestry decision-making (Dare et al., 2012; Ananda and Herath, 2008), urban issues (Hopkins, 2010), conservation planning (Voyer et al., 2012; Kelly and Mercer, 2005) and wind farm planning (Anderson, 2013). The use of public participation in decision-making about the regulation of GMOs has become increasingly important in politics in Australia as well as in New Zealand (Hindmarsh and Du Plessis, 2008). In geographic terms, legally established Public Participation approaches vary considerably among the Australian states (Tan, 2006 a,b). The question of learning exchanges between the EU (with its Public Participation approach based on the Aarhus Convention) and Australia has been already assessed in a variety of ways and outcomes, namely mutually (Benson et al., 2012) and unilaterally (Lambropoulos, 2010). Access to information Benson et al. (2012) describe the Access to Information system related to water catchment as a more business oriented one in comparison to the EU-system based on the Aarhus Convention from which – according to these authors – the EU could learn a lot. Because initiatives that plan projects have to show how they will distribute information to and raise awareness of the public in order to receive public funding for their project while in the EU Public Participation is said to be based on a more top-down approach. On the other hand, Benson et al. (2012) do not indicate the (minimum) extent of Public Participation if the project planning organisation does not seek financial support and do not sufficiently reflect on the potential bias of such self-developed information. Paraiso et al. (2013) found during their review of several countries’ (incl. New Zealand’s) permission procedures of the importation and release of entomophagous biological control agents (BCAs) inter alia as barriers for an efficient process a lack of credibility and objectivity of information sources. Public participation in decision-making and access to justice For the relicensing of water dam infrastructure also in Australia, an improved procedure overseen by an independent regulatory agency that would make decisions in the public interest through a transparent process involving public participation has already been proposed (Pittock and Hartmann, 2011). Also in this connection, the ethnographic perception of communities and diverse cultures are said to play an important role when it comes to the design of public participation in decision-making procedures through the government, as pointed out for Australia by Eversole (2011) and Moran (2010). In addition to public participation, Social Impact Assessment has also been recently proposed by Voyer et al. (2012) in order to more strategically and formally overcome shortcomings in the establishment of internationally requested Marine Protected Areas because currently social aspect are often rather loosely and ad-hoc reported within MPA planning procedures in Australia.

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Table 1 Level on which public participation issues are legally addressed on different continents and regions therein (⊗ widely addressed; Ø essentially addressed; O basically addressed; – almost not addressed). Access to

Info/regional Dec.mak/regional Justice/regional Info/national Dec.mak/national Justice/national

Europe

America

Africa

Asia

Oceania

EU

Non-EU

North

Latin

West

East

South

West

East

South-East

⊗ ⊗ ⊗ ⊗ ⊗ ⊗

⊗ ⊗ ⊗ ⊗ ⊗ ⊗

⊗ O – ⊗ ⊗ ⊗

Ø O – Ø Ø Ø

O O – O O O

Ø O – O O O

O O – Ø Ø Ø

Ø Ø Ø Ø Ø Ø

O O – Ø Ø Ø

O O – Ø Ø Ø

Similarly, Wouters et al. (2011) evaluated the effectiveness of public participation in the New Zealand Department of Conservation’s (DOC’s) statutory planning processes regarding potential constraints of effective participation and areas that could be improved. They pointed out the “lengthiness of the review processes, lack of feedback provided to participants, underrepresentation of certain interest groups and the general public, and unclear definition of objectives for involving the public in each review.” (Wouters et al., 2011: 5) For the state of Victoria/Australia, independent statutory bodies have since 1970 played a major role during strategic environmental assessment (SEA) processes in mediating environmental conflict over public land use, and have significantly contributed to the increased size and coverage of Victoria’s protected area system (Coffey et al., 2011). Furthermore, specialised development of environmental jurisprudence has been established in Australia regarding for example, the Land and Environment Court of New South Wales since 1979 that deals with both civil and criminal cases. It may make declarations and injunctions and impose criminal sanctions in the area of public participation in environmental protection and the decisions-making process (Pearlman, 2000).

Conclusions The global situation of Public Participation in Environmental Matters appears at first glance, as diverse as the continents and their countries. In general, the issue has been found during the past decades in all regions of the world (Table 1). Despite this, general patterns can be established such as attempted in Table 1, though each of the rough classification criteria combines both, quantitative and qualitative aspects. “Developed” countries show a rather strong progress in all the three pillars of Public Participation where European countries mainly have taken the lead due to the Aarhus Convention. But exceptions exist in both directions. Countries such as Japan and South Africa recently show rather significant efforts towards Public Participation. While countries with a “developing” status in central Asia, influenced by the ratification of the Aarhus Convention (Toth, 2010), as well as countries such as India and the Philippines show already a welldeveloped legal system, in particular with regard to the rights to information and access to justice, However, within the three pillars, Access to Information, Participation in Administrative Procedures and the Access to Justice harbour large differences. While access to information is widely legally granted within all regions on all continents, access to justice is that sector of the three mentioned in Principle 10 of the Rio Declaration which has obtained the least practical implementation so far. But this general statement has to be taken with caution as countries such as India and the Philippines show – along with several more “developed” regions of the world such as Europe and Northern America – a considerable amount of participation in judicial review procedures. In any way, a high extent of Public Participation in Environmental Matters within a certain region or country cannot be automatically associated with

– – – ⊗ ⊗ ⊗

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