Public Participation, Good Environmental Governance and Fulfilment of Environmental Rights
A du Plessis*
Men being ………… by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties and a greater security against any that are not of it.1
Good governance depends on mutual trust and reciprocal relations between government and people. This must be based on the fulfilment of constitutional, legislative and executive obligations and the acceptance of authority, responsibility, transparency and accountability.2
Increased awareness of the notion of human rights and the inter-disciplinary analyses and interpretation of these globally accompanies a particular focus on environmental rights. Since the 1970s, global environmental calamities and augmented consciousness of the state of the environment resulted in a particular awareness of peoples’ environmental rights. Today, these rights feature in a number of state constitutions and international law instruments. Environmental rights generally require respect and protection by state governments as well as positive action on the part of organs of state towards its fulfilment.
Some fundamental rights may be worthless when not guaranteeing a means of formal participation by right-holders in their implementation.3 Public participation in environmental decision-making relates to the notion of participatory democracy and environmental justice and often comes to the fore in academic analyses of environmental rights. It has been observed that a ‘participation explosion’ has been occurring throughout the world over the last four decades and that by whatever name (public participation, citizen involvement, indigenous peoples’ rights, local community consultation, et cetera), the idea that the governed should engage in their own governance is “gaining ground and rapidly expanding in both law and practice“.4
This article succinctly, albeit critically, assesses with reference to some international developments the role that public participation is expected to play in state governments’ fulfilment of citizens’ environmental rights. Based on a survey of literature and jurisprudence, the article considers substantive environmental rights as human rights and the notion of public participation generally. It also puts forward some ideas on the relation between public participation and the fulfilment of environmental rights and how this may feed into good environmental governance. The article does not aim to contribute to the discourse on good governance or good environmental governance per se. Instead, it introduces the presumed role of public participation processes in an environmental rights context what may be but a facet of good governance and/or good environmental governance. The article is limited to the attention generally devoted to public participation processes in an environmental rights context – analysis of its real-life successes or failures falls beyond the scope of this contribution. Where applicable, the South African context is employed to illustrate and reinforce observations and/or viewpoints.
Environmental rights as human rights
To critique on the role of public participation in the fulfilment of environmental rights, it is important to address a number of foundational questions. What are environmental rights and where do we find it? What is embraced by the ‘environment’ as contained in the notion of ‘environmental rights’? The answers to these questions depend on context and location but it is possible to derive from international jurisprudence and writings a generically applicable response.
At the superficial level and in a collective sense environmental rights refer to the basic rights contained in the environmental clauses of instruments such as the International Bill of Rights,5 regional human rights instruments,6 some international and regional environmental law instruments7 and domestic constitutions.8Environmental rights can be defined further as:
Basic rights to a qualified environment beneficial to human life and well-being that belong to members of existing and future generations. Environmental rights are rof action and rights of recipience that consider: the state of the environment; the relation and interaction between people and their environment; as well as the dependency of human life on the natural resource base.9
Environmental rights are human rights that epitomise in holistic fashion and in legal terms the integrated interrelationship between humans and the environment and the claim of people to an environment of a particular quality.10 The scope of these rights generally extends beyond peoples’ natural environment also to include aspects such as cultural heritage, human habitat and health.11 With little exception environmental rights constitute both rights of action and rights of recipience. Whereas rights of action emphasise what people as right-holders are entitled to do, rights of recipience emphasise what people as right-holders are entitled to expect or receive. As far as this article is concerned with the role of public participation in the fulfilment of environmental rights, particular attention is paid to environmental rights as autonomous substantive rights of recipience that may require public involvement in their implementation.
The notion of public participation
Leaving environmental rights beside for a moment, the questions arise as to what is meant by public participation generally, and why public participation is important in the processes of decision-making, often by democratically elected governors and developers at different levels. Picolotti12 defines participation as the real involvement of all social actors in social and political decision-making processes that potentially affect the communities in which they live and work. Public participation also has been described as:
All interaction between government and civil society… including the process by which government and civil society open dialogue, establish partnerships, share information, and otherwise interact to design, implement, and evaluate development policies, projects and programs.13
Public participation, in laymen’s terms, boils down to the communication (through different means) of views/concerns on public issues by those concerned and/or affected.14 Public participation of communities in decision-making is regarded also as a spin-off to decentralisation as a contemporary trend in local governance.15 The modalities of participation are determined in different countries by its particular laws and public authorities as well as by traditions and culture. This means that in similar cases different patterns may be followed and different instruments, tools, procedures or mechanisms may be used to facilitate public participation. In South Africa, for example, explicit provision is made for public participation by means of, inter alia, ward committees in local government, public meetings, public comment following press notices and integrated development planning in a range of different laws and policies discussed below.
Wilkinson identifies three general functional categories of public participation: education/information, review/reaction and interaction/dialogue.16 The author argues that each function is an integral part of planning and decision-making processes. Various participation mechanisms can be classified as performing one of these three functions, but the degree of participation involved in each mechanism is a function of the nature of both the mechanism itself and the given situation. Accordingly, no single participation mechanism can constitute a ‘public participation programme’ nor will any combination of mechanisms be appropriate in every case. Wilkinson holds that the trend in developing public participation progress should be toward a variety of mechanisms to perform each of the three functions and flexibility to meet the needs of a given situation.17
Representative democracy in itself is a form of public participation where decision-making officials or politicians are chosen by those who have been democratically elected. Still sometimes, more direct participation of citizens to supplement representative democracy is required.18 It is, for example, not a given that a decision-maker will be familiar under all circumstances with the socio-economic needs of all community members. Also, what should be avoided at all cost is that participation becomes limited at the important issue-formulation stage of decision-making processes. In many instances, the only information submitted to the public is a superficial outline of the final form of some project or development as per prior agreement by government bodies, developers and other decision-makers.19 This phenomenon misconstrues the idea of public participation and should be prevented in order for public participation to be a truly significant exercise from as early as issue-identification for decision-making.
A general lacuna is that often laws and policies of different countries incorporate and emphasise the need for public participation without an exposé of meaningful tools/methods or processes for the practical achievement of such participation. This implies that although the notion of public participation is widely advocated, few real-life guidelines exist on how to achieve community involvement. Some other generic dilemmas accompany public participation – especially with regard to the implementation thereof. Public participation is often viewed as hampering decision-making progress and as preventing swiftness in processes aimed at social and economic development.20 This is not unthinkable when taking into account peoples’ different value and cultural systems, different development priorities and needs as well as different levels of education. Another challenge lies in the fact that uneducated people or people with mala fide intentions often partake in public participation processes, which could affect the merits of their input. The effectiveness of public participation hence requires innovation and creativity on the part of governments’ decision-makers.
Implicit linkages between public participation and fulfilment of environmental rights
The importance of the role of public participation in democratic governance generally is not difficult to comprehend. It is, however, important to understand how and why public participation links with the fulfilment of environmental rights and with environmental governance. First of all, states are accountable to the international community in terms of international law, and to their own citizens in terms of international law and domestic constitutions. States have an internationally recognised obligation to “respect, protect and fulfil“ their citizens’ human rights, inclusive of environmental rights.21
No single international directory or ipso iure guideline exists of ways in which environmental rights should be implemented by states. It is up to each country to seek and develop appropriate means and methods to this effect.22 This is no straightforward mandate. However, the Limburg Principles on the Implementation of the International Convention on Social, Cultural and Economic Rights of 1987 (the Limburg Principles),23 the Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights of 1997 (the Maastricht Guidelines)24 and international law jurisprudence are aids that assist in clarifying the meaning and structural parts of the fulfilment of socio-economic rights, such as substantive environmental rights, generally.
From the Limburg Principles it is derived that the fulfilment of environmental rights requires, inter alia: states’ use of all appropriate means to this effect (including legislative, administrative, judicial, economic, social and educational measures);25 states’ equitable and effective use of available resources and the provision of access thereto;26 avoidance of discrimination27 and the furthering of well-being of people as a whole.28 States will violate environmental rights (fail to fulfil) when, for example: states refrain from taking steps that are expressly required in terms of such rights; fail to remove obstacles to the fulfilment of environmental rights; fail to implement the right if it is required to be implemented immediately; willfully fail to meet a generally accepted international minimum standard of achievement which is within their powers to meet, or deliberately and unjustifiably retards or halts the progressive realisation of these rights.29 The Maastricht Guidelines take the ideas around fulfilment slightly further. The fulfilment of environmental rights would require, inter alia, that: states take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realisation of environmental rights and that states comply with their obligations of conduct and obligations of result that require the achievement of specific targets to satisfy a detailed substantive standard.30 The Maastricht Guidelines also introduce states’ ‘margin of discretion’ in selecting the means for implementing their rights-obligations. As an aid, universal minimum standards may be derived from state practice and the application of legal norms to concrete cases and situations by international bodies as well as domestic courts.31 Considering for a moment what the latter international instruments require of governments in practice, it seems as if fulfilment of environmental rights inevitably will require public participation in decisions related to issues covered by these rights.
Judiciaries and adjudicating bodies often also strengthen the law by reflecting on veiled meanings of the law and rights and by construing directives. In the absence to date of an international environmental court, existing international tribunals and domestic courts remain to strengthen and interpret environmental rights. Recent years have marked a number of steering decisions by, inter alia, the United Nations Human Rights Committee, the European Court of Human Rights, the European Commission of Human Rights and the African Commission on Human and Peoples’ Rights. Four of the most pertinent cases which addressed the duties of governments arising from environmental rights or other rights implying environmental protection, are the Social and Economic Rights Action Centre for Economic and Social Rights (SERAC) v Nigeria, African Commission on Human and Peoples’ Rights (2001), the López Ostra v Spain (1994), Guerra and Others v Italy(1998) and Hatton and other v UK (2001) decisions.32 As far as the fulfilment of the environmental right and other related rights are concerned, international case-law to date highlighted amongst other aspects the need for public participation in environmental decision-making.
Explicit linkages between public participation and fulfilment of environmental rights
Public participation is two-sided: process-related where it is viewed as an end in itself33 and substantive where it contributes to some further important outcomes/achievements.34 Participation in environmental decision-making is an effective tool to establish environmental priorities, offer solutions to environmental challenges and prepare, execute and apply the most accurate decision possible.35 Public participation in environmental decision-making (and hence the furthering of environmental rights) is regarded as important for different reasons:
Affected persons likely to be otherwise unrepresented in, for example, environmental assessment and decision-making processes are provided an opportunity to present their views;
Communities may provide useful additional information to decision-makers – especially when cultural, social or environmental values are involved that cannot be quantified easily;
Accountability of political and administrative decision-makers is likely to be reinforced if environmentally relevant processes are open to public view. Openness puts pressure on administrators to follow, for example, a required procedure in all cases;
Without integrating the viewpoints of citizens, environmental policy runs the risk of being delayed early in the implementation phase. Public participation enhances community ownership of decisions and resultant outcomes because of the community being part of the wider decision-making process;36
Stakeholder engagement may result in partnerships or alliances between interested parties and local government;37 and
Public confidence in the reviewers and decision-makers is enhanced since citizens clearly can see in every case that all environmentally-relevant issues have been fully and carefully considered.
Motivated by the above, a number of international law instruments draw explicit linkages between the achievement of environmental law objectives and public participation.38 The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) of 1998, in particular, aims to reinforce the need for public participation in environmental decision-making.39 Among other things it requires of states to implement public involvement in decisions on an array of specific development activities. The Rio Declaration on Environment and Development of 1992 solemnly adopted principles on public participation40 and these are endorsed by Agenda 21.41 In fact, the effective implementation of Agenda 21’s objectives, policies and mechanisms requires ‘genuine involvement' of all social groups.42 It is reiterated in Agenda 21 that 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.43
Participation also closely relates to the notion of participatory democracy without which, according to the United Nations (Ksentini) Special Rapporteur’s Report on Human Rights and the Environment of 199444 and the Draft Declaration of Principles on Human Rights and the Environment of 1994 (annexed to the former report), the notion of sustainable development is without substance.45 International claims have been made that one of the fundamental prerequisites for the achievement of sustainable development (which is at the core of most environmental rights) is broad public participation in decision-making processes.46 It may be derived that environmental decision-making is expected to operate within a theoretical framework concerned with constitutional principles of fairness (inclusive of equality) and legitimacy.47 Verschuuren argues together with others that the right to participate in environmental decision-making is a procedural right that “can be seen as part of the fundamental right to environmental protection“.48
The explicit link between public participation and the fulfilment of environmental rights cannot be reviewed without mentioning the role of environmental information. Environmental information relates to the idea of publicare and accordingly compliments and supports public participation.49 From international law instruments and jurisprudence on environmental rights it is evident that environmental rights cannot be fulfilled by a state in the absence of the gathering and sharing of environmental information.50 Emanating from the right to the environment, the Aarhus Convention clearly outlines the need for and the content of the right to have access to environmental information. The Rio Declaration and chapter 23 of Agenda 21 furthermore explicitly call for access to information on the environment and development51 whilst principle 15 of the Draft Declaration of Principles on Human Rights and the Environment proposes that: “(a)ll persons have the right to information concerning the environment.“52
The catchphrases seem to be collection, dissemination and access whilst the right to environmental information may be said also to establish a subsidiary right to the autonomous environmental right that should be afforded to all people. Public participation increases the accountability of the decision-maker in a way that complements the accountability that can be imposed by courts, by a minister or even by periodic government elections. It acts as a check on the bureaucracy and possible temptation to disregard democratic values (also those underlying environmental rights).53
Environmental information sharing by the state depends on the availability of information, hence a need for research and data-collection. It is imperative for a state, via suitable organs of state and/or other institutions, to collect up-to-date and scientifically reliable information on, inter alia, the state of the environment, environmental impacts, conservation, pollution levels, discharges and emissions and other environmentally relevant activities.54 As a pillar for the fulfilment of environmental rights and as a complementary element of public participation, it is arguably expected of governments to disseminate environmental information on a regular basis amongst all stakeholders.55 Environmental information could for example also embrace information on permit conditions and regulatory standards.56 Such information may not be filtered only to reveal “what is good for people to know“ and should be factually correct and valid. It is argued that environmental information should be non-discriminatory at all times and that it is crucial for well-informed public participation in environmental matters and the development of environmental laws, policy and programmes.