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Environmental Governance: A Comparative Analysis of Public Participation and Access to Justice (Article) [2005] JSPL 19; (2005) 9(2) Journal of South Pacific Law

ENVIRONMENTAL GOVERNANCE:
A COMPARATIVE ANALYSIS OF
PUBLIC PARTICIPATION AND ACCESS TO JUSTICE

MICHAEL I. JEFFERY QC*

INTRODUCTION: ENVIRONMENTAL GOVERNANCE

We now possess the knowledge that our actions do have a real impact on the environment. Ignorance is no excuse for inaction. With knowledge comes the moral responsibility to act carefully in regards to the environment, on a global, domestic, and local scale. The concept of environmental governance incorporates this ethic. The Earth Charter Initiative^[1] expresses this sense of environmental responsibility by stating that the improvement of democratic practices, transparency and accountability of government institutions, along with civil participation in decision making, are strongly related factors to the objectives of the protection of the environment and social and economic justice. This paper will deal with the broad concept and practice of environmental governance, with a focus on the controversial but prudent issue of intervenor funding; and the growing awareness and recognition of the special contribution to be made by indigenous communities in maintaining ecosystems and teaching us about the sustainable use of our natural resources.
The concept of environmental governance encompasses the relationships and interactions among government and non-government structures, procedures and conventions, where power and responsibility are exercised in making environmental decisions. It concerns how the decisions are made, with a particular emphasis on the need for citizens, interest groups, and communities generally, to participate and have their voices heard.^[2] Therefore, the concept does not apply to the province of government alone,^[3] and the term ‘governance’ must be distinguished from ‘government.’^[4] It is imperative that we study the actions of the government in terms of environmental policy and decision-making, but we must also observe how citizens take on their own responsibility and develop environmental initiatives.
As an extension of the concept of environmental governance, good environmental governance is measured by the effectiveness of strategies and initiatives implemented to achieve environmental goals. These goals may be capacity building, increased access to environmental information, participation and justice.^[5] International environmental law instruments, such as The Earth Charter Initiative, Agenda 21,^[6] and the World Conservation Union’s (IUCN) Draft International Covenant on Environment and Development,^[7] set out the framework for achieving environmental goals such as these.
The Aarhus Convention,^[8] although it presently applies primarily to the region of Europe, has global significance for the promotion of environmental governance. The Convention, which has the current status of 40 signatories and 35 parties who have ratified or acceded to it, focuses on the need for civil participation in environmental issues, as well as the importance of access to environmental information held by the government and its public authorities. Aarhus goes further than previous international conventions, in providing explicit linkages between environmental rights and human rights. Commencing with the preamble, it states in the 7th and 8th preambular paragraphs:

Recognising also that every person has the right to live in an environment adequate to his or health and well-being, and the duty, both individually, and in association with others, to protect and improve the environment for the benefit of present and future generations,’

‘Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights. ^[9]

The Convention also deals forcefully with governmental accountability, as it grants the public rights of access to information and imposes obligations on public authorities to provide this information. Access to environmental information leads to a well-informed public, who are more able to question the actions of the government. These factors can then lead to more accountable environmental decision-making and greater potential for environmental justice. Article 4 outlines when it is appropriate for access to information to be denied, these circumstances being when the public authority does not have the information requested;^[10] when it is unreasonable to provide the information;^[11] and when confidentiality is in the public interest,^[12] for example, with intelligence or national security information. Moreover, information can be refused if disclosure will adversely affect factors such as the course of justice^[13] and intellectual property rights.^[14] At the first Meeting of the Parties to the Convention,^[15] the Parties noted the revolution in electronic information technology as being very important to the promotion of environmental governance. The Meeting’s declaration called on parties to the Convention to make government environmental information progressively available electronically, yet for these services to be kept under frequent review.^[16] The Meeting of the Parties stressed that the Convention was largely about building partnerships between an empowered civil society and the government, and that the public had responsibility for sustainable development too. It was stated:

The engagement of the public is vital for creating an environmentally sustainable future. Governments alone cannot solve the major ecological problems of our time. Only through building partnerships within a well-informed and empowered civil society, within the framework of good governance and respect for human rights, can this challenge be met.^[17]

The Aarhus Convention is a clear advance in the area of environmental governance. It is an instrument that is being considered for its merits not only by European countries, but also by many countries around the world. The Aarhus Convention