Access to Environmental Justice: a Comparative Study [1 ed.] 9789047420453, 9789004157835

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Access to Environmental Justice A Comparative Study

London-Leiden Series on Law, Administration and Development VOLUME 11

Access to Environmental Justice A Comparative Study

Edited by

Andrew Harding

LEIDEN • BOSTON 2007

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN 978 90 04 15783 5 © 2007 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorisation to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

CONTENTS

The Contributors

Chapter 1 Access to Environmental Justice: Some Introductory Perspectives Andrew Harding

xv

1

I. ORIGINS II. SOAS/A2EJ: AN OUTLINE III. SOAS/A2EJ: THE FINDINGS IV. THE CONTRIBUTIONS TO THIS BOOK (a) Ghana (Accra) (b) India (Bangalore) (c) Indonesia (d) Malaysia (Kuala Lumpur) (e) Nepal (f) Pakistan (Karachi) (g) People’s Republic of China (h) South West Pacific (i) Thailand (j) United Kingdom (k) United States V. FINALLY …

1 3 7 11 11 11 12 13 14 15 16 16 17 18 18 19

Chapter 2 Access to Environmental Justice in Ghana (Accra) James S. Read

21

I. INTRODUCTION: GENERAL BACKGROUND (a) Accra: the growth of the city and its people (b) Accra: its economy in the national context (c) Environmental law in Ghana in historical perspective (d) Accra: an environmental crisis

21 23 24 25 26

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Access to Environmental Justice: A Comparative Study

II. CONTEXT: GENERAL ‘PARTICIPATION ENDOWMENTS’ (a) Policy framework for citizen participation (b) The constitutional foundation for participation III. STRUCTURES FOR ENVIRONMENTAL DECISION-MAKING (a) National agencies and procedures (i) Ministry for Environment, Science and Technology (ii) National Development Planning (iii) Environmental Protection Agency (iv) Environmental Impact Assessment (v) Planning law (vi) Other legislation (vii) Judicial remedies (viii) Commission on Human Rights and Administrative Justice (b) Local agencies (i) Local government: structure and powers (ii) Local government in Accra (iii) Traditional authorities, local customary laws and indigenous culture (iv) Strengthening community management IV. THE ROLE OF NON-GOVERNMENTAL ORGANISATIONS (a) CENCOSAD (b) La Mansaamo Kpee (c) Association of Vegetable Growers (d) Accra Sustainable Programme V. GATEWAYS TO PUBLIC PARTICIPATION: RIGHTS, DECISIONMAKING AND PROCESS (a) Water (b) Air (c) Land (i) Land tenure in Ghana (ii) Access to land in Accra (iii) Access to land: self-help as a gateway to law reform (d) Waste disposal VI. CONCLUSION Chapter 3 Access to Environmental Justice in India’s Garden City (Bangalore) Amanda Perry-Kessaris I. AN ANATOMY … OF PUBLIC RESPONSIBILITY (a) Municipal Corporation (b) Development Authority (c) Industrial Areas Development Board vi

27 27 27 30 30 30 30 31 32 34 35 36 38 39 39 40 41 43

44 44 45 45 46 47 47 49 50 51 52 54 55 57

59 60 60 60 61

Contents

(d) Specialist agencies

62

II. … OF LEGAL GATEWAYS (a) Criminal (b) Civil (c) Public III. … OF OBSTACLES TO ENVIRONMENTAL JUSTICE (a) Morale and motivation (b) Scepticism (c) Democratic deficit IV. ‘THE POLITICS OF BANGLAORE IS THE POLITICS OF REAL ESTATE’ (a) Land use law and practice (i) Building and conversion of land use (ii) Compulsory acquisition of land for private companies (b) The Bangalore-Mysore Infrastructure Corridor saga (i) Environmental clearances and public input (ii) Acquisition of land (iii) NICE as real estate agent (iv) Concessions (v) Challenging the notification process in the courts (vi) The future V. CONCLUSION

63 63 64 65 67 69 69 71 76 76 76 78 80 81 82 84 85 85 86 86

Chapter 4 Access to Environmental Justice in Indonesia Adriaan Bedner

89

I. INTRODUCTION (a) Environmental disputes in Indonesia (b) Environmental justice? II. LEGAL GATEWAYS TO ENVIRONMENTAL JUSTICE (a) Introduction (i) Principles (ii) The right to information (b) Civil litigation (i) Standing (ii) Limitation period (iii) The right to compensation (iv) Proving causation (v) Evidence of pollution or damage (vi) Strict liability (vii) Remedies (viii) Conclusion (b) Litigation against the state (i) Litigation in the Administrative Court

89 91 91 92 92 93 94 96 97 98 98 99 100 103 103 105 105 106 vii

Access to Environmental Justice: A Comparative Study

(ii) Litigation against the police or the Public Prosecutor’s Office

III. ALTERNATIVE DISPUTE RESOLUTION (a) Legal framework (b) Getting started (c) Getting an agreement (d) Implementing the agreement (e) Conclusion IV. ACCESS TO LITIGATION AND MEDIATION AND FACTORS SHAPING THEIR EFFECTIVENESS (a) Economic conditions (b) Liberalisation (c) Decentralisation and democratisation (d) State control (e) The role of NGOs (f) The image of the judiciary V. CONCLUSIONS

108

109 109 110 113 114 115 116 116 117 118 119 120 121 122

Chapter 5 Access to Environmental Justice in Malaysia (Kuala Lumpur) Andrew Harding and Azmi Sharom

125

I. INTRODUCTION II. ENVIRONMENTAL LAW IN HISTORICAL PERSPECTIVE III. STRUCTURE OF ENVIRONMENTAL DECISION-MAKING (a) Local Government (b) Planning and Development Control IV. THE JUDICIARY (a) Archaic rules of locus standi (standing) (b) Procedural barriers (c) Lack of development of planning law (d) Tort actions (i) Causation (ii) Limitation (iii) Expert evidence (iv) Costs and representation V. HUMAN RIGHTS VI. WATER POLLUTION VII. AIR POLLUTION VIII. SQUATTER COMMUNITIES (a) Land rights (b) Case study: Kampung Merbau Berdarah IX. LICENSING

125 127 128 130 131 135 136 137 137 138 139 140 140 140 141 143 144 145 146 148 149

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Contents

X. ENVIRONMENTAL IMPACT ASSESSMENT XI. GENERIC PROBLEMS XII. CONCLUSIONS Chapter 6 Access to Environmental Justice in a Politically Unstable Environment: A Case Study of Nepal Surya Subedi I. INTRODUCTION II. ENVIRONMENTAL IMPACT ASSESSMENT (a) An EIA for All Major Development Projects (b) EIAG 1993 (c) Environment Protection Act 1997 (d) Environmental Protection Regulations 1997 III. ACCESS TO JUSTICE (a) Constitutional remedies (b) Remedies under the Environmental Protection Act 1997 (c) The Civil Code (d) The case law (e) Individual right of access to environmental information IV. CONCLUSION Chapter 7 Access to Environmental Justice: Karachi’s Urban Poor and the Law Martin Lau I. INTRODUCTION: KARACHI AND ITS URBAN POOR (a) The setting (b) Master plans (c) The informal housing market (d) Case study: Rehmanabad (e) Regularisation II. THE LEGAL FRAMEWORK (a) Constitutional rights (b) Environmental laws (c) Environmental laws and the urban poor (d) Environmental litigation (e) Access to justice III. CONCLUSION

151 152 154

157 157 160 160 162 163 164 164 164 166 166 167 173 174

177 177 178 180 183 184 186 190 190 192 194 197 199 203

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Access to Environmental Justice: A Comparative Study

Chapter 8 Towards a Greener China? Accessing Environmental Justice in the People’s Republic of China Michael Palmer I. INTRODUCTION II. THE LEGISLATIVE FRAMEWORK FOR ENVIRONMENTAL PROTECTION III. INSTITUTIONAL FRAMEWORK IV. SEEKING ENVIRONMENTAL JUSTICE (a) Avoidance and force (b) Negotiation and mediation (c) Umpiring – administrative penalties (d) Umpiring – going to court (e) Umpiring – criminal justice V. CONCLUSIONS References Chapter 9 Access to Environmental Justice in the South West Pacific Nicola Pain I. INTRODUCTION II. THE SOUTH WEST PACIFIC (a) Regional environmental organisations (b) Environmental rights and customary ownership III. ACCESS TO JUSTICE: PROCEDURAL ASPECTS OF PARTICIPATION (a) Constitutional provisions (b) Procedural rights in national legal systems (c) NGO participation at the national level IV. PUBLIC INTEREST ENVIRONMENTAL LITIGATION (a) The nature of environmental court action at the national and local levels (b) Hurdles to public interest litigation (c) Environmental litigation in developing countries V. CASE STUDY: MINING IN PAPUA NEW GUINEA (a) The Constitution (b) Large-scale mining activity and environmental protection (i) Panguna (ii) Ok Tedi (c) Access to legal representation

x

205 205 207 211 215 216 218 223 226 231 233 235

237 237 238 240 241 243 244 245 245 247 247 250 251

253 253 255 256 257 260

Contents

VI. CASE STUDY: FORESTRY IN THE SOLOMON ISLANDS (a) Constitution (b) Environmental protection and sustainable development (c) Managing natural resources: local v national interest (d) Access to the law VII. CONCLUSION Chapter 10 Access to Environmental Justice and Public Participation in Thailand Thawilwadee Bureekul I. INTRODUCTION II. PUBLIC PARTICIPATION (a) Enhancement and Conservation of National Environmental Quality Act 1992 (b) Official Information Act 1997 (c) The Constitution (i) The Government (ii) Local government organisations (iii) Traditional communities (iv) Non-governmental organisations (v) Citizens (d) Public Hearing Regulation 1996 IV. CASE STUDY: HIN KRUD POWER PLANT (a) The project (b) Public hearing activity (c) Conclusion V. MAJOR FACTORS AFFECTING PUBLIC PARTICIPATION (a) Legislative factors (b) Government policy commitment (c) Culture (i) Problem awareness (ii) Compromise orientation and trust (iii) Public participation factors (iv) Access to Information VI. CONCLUSION AND RECOMMENDATIONS Appendix: Chronology of the Hin Krud Project

260 261 262 263 267 268

271 271 273 274 274 275 275 275 276 276 276 276

278 278 279 282 282 282 283 283 283 284 285 285 285 287

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Access to Environmental Justice: A Comparative Study

Chapter 11 Access to Environmental Justice in United Kingdom Law Jean-Jacques Paradissis and Michael Purdue I. ACCESS TO ENVIRONMENTAL INFORMATION (a) Public registers of environmental information (b) EC Directives 90/313 and 2003/4 and the Environmental Information Regulations 2004 (c) Freedom of Information Act 2000 II. LEGAL RIGHTS OF PUBLIC TO PARTICIPATION IN ENVIRONMENTAL DECISION-MAKING (a) Public participation in environmental impact assessment (b) General rights of public participation in environmental decisionmaking (c) Public participation in policy and plan-making (d) Strategic environmental assessment (e) Public participation in the preparation of legislation III. ACCESS TO THE COURTS (a) Who can apply to the courts (b) The costs of legal proceedings (c) The substantive law and the need for an environmental court or tribunal IV. CONCLUSIONS Chapter 12 Access to Environmental Justice in the United States: Embracing Environmental and Social Concerns to Achieve Environmental Justice J. Mijin Cha I. THE BEGINNINGS OF ENVIRONMENTAL JUSTICE II. LOOKING TO STATUTES AND THE COURT FOR RELIEF III. STANDING REQUIREMENTS IN BRIEF (a) Article III Standing Requirements (b) Prudential Standing Requirements (c) Administrative Agency Action IV. EXECUTIVE ORDER 12898 V. FEDERAL SUBSTANTIVE ENVIRONMENTAL LAWS (a) Clean Air Act (b) Clean Water Act (c) Citizen Suit Provisions (d) National Environmental Protection Act (e) Title VI, Civil Rights Act of 1964

xii

289 289 290 294 297

298 299 300 305 307 308

309 309 312 315

315

317 319 322 323 324 324 325 327 329 331 332 334 334 336

Contents

(f) 42 USC 1983 (i) South Camden Citizens in Action v New Jersey Department of Environmental Protection (ii) District Court’s Initial Decision (iii) The Introduction of Alexander v Sandoval (iv) District Court’s Decision after Sandoval

337

VI. THE CENTRE ON RACE, POVERTY AND THE ENVIRONMENT (a) The Kivalina Relocation Planning Committee Case (b) The Residents of Blythe, California’s Title VI Claim VII. CONCLUSIONS

349 349 351 354

A Note on Environmental Law-Enforcement Duties Andrew Harding

355

Index

363

340 340 344 345

xiii

THE CONTRIBUTORS

Dr Azmi Sharom is Associate Professor and Vice-Dean, Faculty of Law, University of Malaya, Malaysia; and was a resource person for SOAS/A2EJ. He specialises in environmental law and international law. Dr Adriaan Bedner is Senior Lecturer, Van Vollenhoven Institute for Law, Governance and Development, Faculty of Law, Leiden University, Netherlands. He specialises in Indonesian law. Dr Mijin Cha is a Policy Specialist in clean energy and smart growth for the Progressive States Network in New York, USA. She also specialises in environmental justice in the USA and South Asia, the topic of her PhD thesis, SOAS, University of London, UK. Professor Andrew Harding, Professor of Asia-Pacific Law, University of Victoria, BC, Canada, was, as Professor of Law at SOAS, Team Leader in the latter phases of the SOAS/A2EJ project. He specialises in comparative law and law in SE Asia. Dr Martin Lau is Reader in Law, School of Law, Faculty of Law and Social Sciences, SOAS, University of London, UK, and was a participant in the SOAS/A2EJ project. He specialises in the laws of South Asia, comparative environmental law, and Islamic law. Dr Nicola Pain was a Solicitor in Sydney, New South Wales, Australia, at the time of the research. She is now a Judge of the Land and Environment Court, New South Wales. Professor Michael Palmer is Professor of Law and Chair of the Centre of East Asian Law in the School of Law, Faculty of Law and Social Sciences, SOAS, University of London, UK. He was a participant in the SOAS/A2EJ project, and specialises in Chinese law and alternative dispute resolution. Dr Jean-Jacques Paradissis lectures in law at the University of the Aegean, Syros, Greece, and is a practising attorney at the Court of First Instance of Syros

xv

Access to Environmental Justice: A Comparative Study

Island (Greece). His PhD thesis from City University, London, UK, was on the right to access environmental information. Dr Amanda Perry-Kessaris is Senior Lecturer in Law at Birkbeck College, University of London. She was a resource person for the SOAS/ A2EJ project, and specialises in law and economic development. Professor Michael Purdue, City University, London, UK, specialises in constitutional and administrative law and planning and environmental law. He is Editor of the Journal of Planning and Environment Law. Professor James Read is Professor Emeritus, School of Law, Faculty of Law and Social Sciences, SOAS, University of London, UK. He was Team Leader in the early phases of the SOAS/A2EJ project. He specialises in African law. Professor Surya Subedi is Professor of International Law at the University of Leeds, UK. He specialises in international environmental law, international watercourses law, and international economic law. Dr Thawilwadee Bureekul is Director, Research and Development Office, King Prajadhipok’s Institute, Bangkok, Thailand. She specialises in political and public administration studies.

xvi

Chapter 1

ACCESS TO ENVIRONMENTAL JUSTICE: SOME INTRODUCTORY PERSPECTIVES Andrew Harding 1

Most environmental problems are political problems. They arise not from some particular shortage of an environmental resource such as land or fresh water but from political and economic factors which deny poorer groups both access to it and the ability to demand changes. Hardoy, J.E., et al., Environmental Problems in Third World Cities (London, Earthscan,1992), 101.

I. ORIGINS

B

efore the reader embarks on reading this book and the editor outlines its subject-matter, it will be helpful to provide some words of explanation as to how the book arose. From 1993 to 1998 the editor, in conjunction with six colleagues from the Department of Law at SOAS and 13 other participants from various countries (a team of 20 altogether) undertook a large scale investigation of access to environmental justice in seven cities in Asia and Africa, concentrating on the effectiveness of what we called ‘legal gateways’ to environmental justice, and focussing on water pollution, air pollution, access to land, and solid waste disposal. It was implicit in the concerns of the SOAS access to environmental justice project (‘SOAS/A2EJ’ as it will be called), although not of course assumed for research purposes, that real public participation in environmental decision-making would result in ‘environmental justice’, which is to say that the quality of such

1

Professor of Asia-Pacific Legal Relations, University of Victoria, BC, Canada: email . The editor would like to thank YTL Corporation Sdn Bhd and Datuk Francis Yeoh for their generous support for his own research on access to environmental justice and Cha Mijin for her help.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 1–20 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

decision-making would be greatly improved with consequential improvements in environmental quality, especially for those directly and adversely affected by current forms of decision-making. As might be expected the findings of this research were of great interest, and would have practical consequences for our view of environmental justice, especially in developing countries, and how to achieve it; the link between democracy and environmental quality would also be greatly illuminated. The content of SOAS/A2EJ was extensively set out in project papers and reports, and was often referred to in, or provided the actual substance of, some notable publications in the mid- to late- 1990s.2 It also provided the basis for a good deal of postgraduate teaching at SOAS and elsewhere, not to mention environmental advocacy in several jurisdictions. Moreover, it inspired several conferences, including ‘Human Rights Approaches to Environmental Protection in the Commonwealth and Beyond’ in London in 1993;3 the Habitat II Forum on A2EJ at SOAS in 1996;4 and a highly successful W.G.Hart Legal Workshop at the Institute of Advanced Legal Studies, also in London, in 1997.5 The Habitat II Forum was probably the most important of these in a practical sense, as its findings greatly influenced the UN Conference on Human Settlements (Habitat II) in Istanbul in 1996, which resulted in the Istanbul Statement on Human Settlements 1996. All four of these events stressed the fundamental importance of public participation in improving the living environment of millions of people in the developing world. Nonetheless, influential as SOAS/A2EJ was, directly or indirectly, on a whole generation of scholars, activists, students and others, the research findings as such were never set out publicly in any concerted or comprehensive way. It would be overstating the case to say that this book is ‘the book of SOAS/A2EJ’, and fills the gap left by the denouement of the project. Some contributions to that project (principally the reports on Japan/Tokyo and South Africa/Cape Town) do not appear here, and several contributions to this book were written wholly or partly independently of SOAS/A2EJ (i.e., those on the UK, the USA, Indonesia, the South West Pacific, and Nepal), even if they may have been to some extent influenced by it indirectly. Indeed the geographical scope of the book is also considerably wider even than the original seven cities. Nonetheless,

2

E.g., several chapters of Robinson, D. and Dunkley, C. (ed.), Public Interest Aspects of Environmental Law (Wiley Chancery, London, 1995); several chapters of Anderson, M.R. and Boyle, A. (ed.), Human Rights Approaches to Environmental Protection (Oxford University Press, Oxford, 1996); Jenkins, H., Social Response to Environmental Injustice: Legal and Moral Gateways to Entitlement (London, SOAS Law Department Working Paper no. 14, 1997).

3

Commonwealth Institute, May 1993.

4

UN Conference on Human Settlements (Habitat II), Istanbul June 1996, Networking and Dissemination Project L320263051, SOAS, London, April 1996.

5

‘Access to Environmental Justice: A Comparative Examination’, IALS, June 1997.

2

1. Access to Environmental Justice: Some Introductory Perspectives

SOAS/A2EJ is in fact highly relevant to the concerns of all the contributions this book (whether the authors were involved or not, and whether they realised it or not), and of course several contributions are actually based on research undertaken directly as part of SOAS/A2EJ. Unhappily this means that, due to various hazards of such enterprises such as recruitment, retirement, or being called to onerous other duties, not by any means all of the SOAS/A2EJ research is represented here. In addition to seven highly interesting country studies, the project spawned several thematic and methodological papers, totalling well in excess of half a million words in the editor’s estimation. However, he has tried in this introductory chapter to incorporate as much of the relevant findings as seemed important. He has also tried to ensure that those contributions which are based on SOAS/A2EJ do not distinguish themselves by extensive reference to SOAS/A2EJ-specific terminology, some of which might be obscure to the general reader, and is not always followed by the non-SOAS/A2EJ contributors. The outcome is that we present here a much wider range of experience even than SOAS/A2EJ was able to encompass, and we can also compare the developing countries with the developed countries, not always, incidentally, entirely to the detriment of the developing countries. It should also be mentioned that due to some practical research constraints it has not been consistently possible, despite great efforts, to present an up-to-date picture of the situation in every jurisdiction. The chapters should therefore be taken as case studies of particular societies or cities at particular times, rather than accurate reference guides to the jurisdictions concerned as of 2007. Most of the research represented here was based on in-depth socio-legal study of particular problems in particular conurbations, and was not easily repeatable without extreme difficulty. It seems appropriate therefore first to record something about SOAS/A2EJ itself: its questions, answers, methodology, and implications. Here the editor, as, during the latter stages, SOAS/A2EJ team leader in succession to Professor James Read, has presumed to draw freely on papers on file, most of which were co-authored by two or more team members. This will assist in understanding the structure of some of the chapters in this book, and also perhaps the experience of SOAS/A2EJ will inform those who may step this way in future.

II. SOAS/A2EJ: AN OUTLINE Although it is commonly asserted6 that enhanced citizen participation results in better environmental policy and improved enforcement of environmental standards, this hypothesis has rarely been subject to testing on a comparative

6

See, e.g., Principle 10 of the Rio Declaration, and Chapter 27 of Agenda 21; and most of the contributions to the conferences mentioned above. 3

Access to Environmental Justice: A Comparative Study

basis. SOAS/A2EJ set out to study the extent to which citizens can and do exert influence over their urban environments through the legal systems in seven cities, namely Accra, Bangalore, Cape Town, Karachi, Kuala Lumpur, Tokyo, and Xiamen: cities which span Asia and Africa as well as different climates, levels and type of economic development, and national legal and constitutional systems, as well as exhibiting a different set of environmental problems. Although the project aimed to examine access to environmental justice, it made no prior assumptions about the manner in which citizens would define ‘environmental justice’ in each city.7 This book, like SOAS/A2EJ, involves an elastic definition of environmental justice, but since the principal concerns are the use of ‘legal gateways’ for ‘access’, in practice the definition is procedural rather than substantive; in the same way ‘access to justice’ is usually concerned with issues surrounding how disadvantaged people are enabled to use the legal system, rather than issues surrounding the substantive justice of the results obtained. ‘Access to environmental justice’ can thus be interpreted in two slightly different ways, viz., as a means of entering a legal process for raising and resolving environmental disputes; or as the securing of environmental decisions that are made equitably as between different interests or communities. Paradissis and Purdue8 express very clearly and concisely the ‘procedural’ definition: Without access to environmental information, it is difficult to participate in policy and decision-making; and a right to participate can be futile, if there is no corresponding right to challenge the legality of the outcome of that participation. So the concept of environmental justice is the combination of these three distinct rights. Bedner on the other hand defines it as ‘a situation where the demands of all actors on aspects of the environment are well balanced in the sense that they do not interfere with ecological processes required for a liveable environment, whilst also not compromising the livelihoods of those concerned’.9 While the emphasis on either or both of these interpretations will differ slightly from one jurisdiction to another, it seems implicit in the case studies in this book that both interpretations will be to some degree relevant, although it is the procedural sense of environmental justice which is uppermost, given that the contributors are concerned principally with issues relating to ‘access’. In the United States for example it is clear that ‘environmental justice’ indicates a concern with the discriminatory placement of polluting industries in proximity to black or hispanic

7

For example, Lau is surely right to emphasise access to land as the critical environmental issue in Karachi: see ch. 7.

8

See ch. 11.

9

Ch. 4.

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1. Access to Environmental Justice: Some Introductory Perspectives

communities;10 at the same time there are concerns about the real efficacy of legal provision for bringing environmental arguments into court. In Malaysia the concern is more with public participation in general, but clearly some environmental issues are recognised to affect one community more than others;11 and the same was found to be the case in South Africa and elsewhere.12 The project took as its model the well-known comparative study on access to justice known as the Florence project,13 which studied the obstacles to access to justice, especially for low income groups, across thirty countries. This was a useful point of departure to map out possible trends to improve citizens’ access to environmental justice, in response to the main obstacles to the legal system experienced by low-income groups; the need to give representation to collective interests (a prime challenge in asserting environmental rights); and the inherent limitations of formal bureaucratic procedures which might call for faster, cheaper dispute resolution procedures. Accordingly the project set out to investigate (a) how ‘legal gateways’ for access to justice in environmental matters affect the distribution of environmental burdens and entitlements; (b) to what extent legal mechanisms for public participation affect environmental policy making; and (c) on the basis of comparative survey findings, potential legal and institutional improvements to access to environmental justice. With these three goals in mind, the defined objective of the project was to pursue the following specific lines of inquiry: (a) what are the nature and extent of legal gateways to environmental justice (‘black letter law’)? (b) which environmental matters are protected in practice (as opposed to in black letter law)? (c) which social groups benefit from legal participation and in what circumstances? (d) which social, political, institutional and legal variables routinely discussed in the literature are most important in understanding the patterns of social participation through legal mechanisms?

10

Ch. 12.

11

Ch. 5.

12

Several project contributions on file with the editor.

13

Capelletti, M., (ed.), Access to Justice (Milan, Sijthoff, 1978). The contributions of Michael Anderson and François Dubois in the conceptualisation of the project require a special mention here. 5

Access to Environmental Justice: A Comparative Study

(e) how do litigation and consultation or mediation procedures compare in those respects? (f) how do existing legal gateways influence the priorities and strategies of environmental activism? (g) how do NGOs’ and grassroots groups’ different objectives, levels of influence and audiences relate to the legal gateways for participation? (h) how do NGOs and grassroots groups evaluate the use of legal mechanisms in comparison with other forms of action (e.g., political lobbying, protest, civil disobedience)? (i) which legal and institutional changes on the side of the state are likely to facilitate access to environmental justice? (j) which social and organisational strategies on the part of NGOs and grassroots groups are likely maximise the opportunities to participate offered by the state? (k) which of these could potentially lend themselves to replication in other jurisdictions and under what socio-political and cultural circumstances? In order to avoid the deficiencies of legal positivism, the team did not equate access to justice with access to the legal system, as legal gateways are only one means to achieve justice – and indeed, part of the endeavour (see objective (h) above) was to compare legal avenues with other, extra-legal, claiming strategies. Thus ‘legal gateways’ were defined broadly to include opportunities to assert entitlements at varying levels of formality and pre- or post-decision. This approach was obviously of particular relevance in jurisdictions where the legal system’s conception of environmental justice was as yet undeveloped or problematical, or where the legal system itself did not enjoy great public confidence. The practical environmental focus of the project was on four areas selected for detailed treatment: functional space/land, water supply, clean air, and waste disposal. These four categories included issues relating to: access to sanitation, toxic or hazardous waste management, clean-up of rivers, accessibility of water services, reduction of transport pollution, reduction of industrial air pollution, environmentally safe housing, access to urban agricultural land, and effects of urbanisation on surrounding rural or suburban areas. The relevant gateways differed, naturally, from city to city, but the following categories were discerned: (a) Participation BEFORE official decisions, i.e. participation concerning state-initiated decisions or actions (which would include participation in reforms of the law, where legally possible; and participation concerning private decisions or actions requiring official sanction.

6

1. Access to Environmental Justice: Some Introductory Perspectives

(b) Participation AFTER decisions/actions or non-actions, i.e. in official mechanisms by which individuals or groups could hold government bodies accountable for their actions and non-actions; and official mechanisms for resolving disputes between two non-state parties. The social use of legal gateways (see the objectives above) was mainly investigated through surveying lawyers and NGOs in order to gather systematic data about the social use of legal gateways for public participation; and case studies of particular examples of citizen mobilisation around legal gateways.

III. SOAS/A2EJ: THE FINDINGS And so to the actual findings. We could summarise these in the words of a Karachi lawyer, reported by Martin Lau in his chapter on Pakistan, ‘who, questioned about access to environmental justice, dryly remarked that in the city there was no environment, no justice and no access to either’. Yet this view, as will be seen, requires to be nuanced. While few people will be surprised by the finding that legal gateways to environmental justice are largely ineffective, the richness of detail and the comparisons between the different countries, and also the positive aspects which surfaced in several instances, were indeed both encouraging and sometimes surprising. Of its nature this richness of detail is impossible to capture in a general summary, but a careful reading of the chapters that follow will reveal its fascination and indeed its developmental possibilities. The researchers came away with mixed feelings: overwhelming depression at the sheer size of the problems and the ineffectiveness of standard legal solutions, tinged with excitement and optimism at the creative ways in which communities had achieved some sort of environmental justice or had coped heroically with conditions of injustice, sometimes employing the ‘weapons of the weak’.14 One theme clearly identified across the jurisdictions was the importance of using human rights law as a way to bring claims regarding environmental matters. This phenomenon is not of course confined to the developing countries.15 Citizens in all of the seven cities expressed concern about urban environmental conditions, and often had specific complaints about pollution, planning decisions, or loss of natural resources. Yet while activists and civic groups were quick to name environmental problems, and to place blame for such problems on either private actors or government officials, they were often reluctant to translate

14

Scott, J.C., Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, Yale University Press, 1985).

15

Anderson and Boyle, above n. 2. 7

Access to Environmental Justice: A Comparative Study

their grievances into legal claims designed to influence policy or remedy environmental damage. The research identified at least six major kinds of relevant legal gateway (see below). ‘Legal gateway’, we should note, as indicated above, was defined broadly to include opportunities to assert entitlements at varying levels of formality, either before or after an official decision. Where litigation was used, a number of familiar obstacles stood in the way of translating access to justice into actual redistribution of environmental burdens and benefits. The law often appeared in practice to benefit economically advantaged urban groups. Generally, economically disadvantaged groups lacked the financial resources and familiarity with legal institutions to use the available gateways effectively. Given the diversity of legal systems involved, comparison of legal gateways, consistently with good comparative law practice, was facilitated by developing ‘middle-range’ concepts (such as ‘pre-decisional gateway’) which are neutral in the legal-technical sense, but can be translated into the terminology of any legal system. For understanding the interaction between existing legal gateways and the social factors which determine whether such gateways are used, it was found useful to develop an approach based upon Amartya Sen’s ‘entitlements’ theory.16 Thus, an ‘environmental entitlement’ referred to the ability of social actors to have control over or access to environmental resources and services for their livelihood, health and well-being. The gateways studied and the general conclusions reached are set out below. It should be emphasised again that the conclusions are based on seven cities which exhibit fundamental legal and other differences, and therefore conceal the richness of the observations and to some extent oversimplify the extensive detailed findings. First are actual legal remedies, for example (a) judicial review of administrative decisions; (b) actions in tort or delict (public or private nuisance, negligence, or strict liability); (c) public interest litigation generally; and (d) criminal proceedings. These gateways were plentiful in all cities, and their use had the advantages of providing a binding rather than uncertain remedy, including monetary compensation where appropriate. They also facilitated legal development and the use of other gateways, creating public awareness, and securing accountability and consistency. The disadvantages were a general lack of case law (even in the common law jurisdictions); lack of standing; delay; prohibitive cost (or risk thereof) 16

8

Sen, A., Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford, Oxford University Press, 1981).

1. Access to Environmental Justice: Some Introductory Perspectives

due to a lack of legal aid and the hazards of litigation; a concentration, in the reported cases, on procedure rather than substance; legal doctrinal limitations, such those relating to evidence and causation; and judicial caution or lack of real independence when faced with litigation against public bodies. Secondly there were statutory consultation procedures, for example in relation to (a) rights of objection to a draft development plan; (b) rights of objection to development; and (c) responses to environmental impact assessment reports. Where these opportunities were available, they had the advantages of influencing the decision, and were inexpensive and informal. The disadvantages were lack of standing; lack of information; absence of finality; and lack of real accountability for corrupt, arbitrary, discriminatory and irrational decisions. Thirdly there was administrative review, for example (a) review by higher administrative authority; (b) fiscal review of administrative action; and (c) administrative appeals. The advantages and disadvantages were largely the same as in the preceding paragraph. Fourthly there were extra-legal, legally sanctioned, self-help remedies, such as (a) exercise of civil liberties of freedom of speech, assembly and association, and voting in elections; (b) purely informal or traditional gateways. Again, the advantages and disadvantages were largely the same as for statutory consultation, but there were also significant abridgement of constitutional rights; weaknesses in the NGO sector (financial, legal status); jurisdictional conflicts; and weaknesses in local administration. Fifthly there was defensive use of the legal system, such as (a) legal resistance to possession orders by squatters; (b) litigation to delay decision-making; (c) litigation to raise the costs to developers, thereby compelling settlement or abandonment. Here one might say the gateway was turned into a ‘drawbridge’. Legal systemic problems tended here to be turned in favour of the community adversely af-

9

Access to Environmental Justice: A Comparative Study

fected environmentally. Defensive use of the legal system could also be used as a negotiating tool in relation to informal gateways. Communities nonetheless faced the fundamental disadvantages of lack of legal title, and opposition from more powerful opponents. Sixthly, there was alternative dispute resolution (ADR), including both mediation as part of the legal process, and forms of ADR operating outside the legal system. ADR avoided many of the disadvantages of the legal system, and was not necessarily linked to any legal entitlements such as land titles. These gateways are in fact examined at many points in the ensuing countrychapters. Naturally not all of them are significant in every national context. It was expected at the outset that there would very little access to very little environmental justice. To a large extent this expectation was fulfilled. However, the researchers were surprised by the extent to which gateways were in fact sometimes used successfully. The relevance of litigation, in itself and in relation to the other gateways, and for raising awareness, was also apparent in most cities. The research also highlighted the connections between the legal gateways and the general political and economic environment; the degree of democracy and judicial independence; and also the openness and resourcing of administrative bodies. A connection was found to exist between public participation and the delivery of environmental entitlements. However, there appeared to be no real pattern of difference between the various environmental entitlements investigated. The distribution of environmental burdens and entitlements depended on political, economic and social variables rather than legal or environmental ones, as indicated in the quotation at the head of this chapter. Opportunities for participation were, largely, both restricted and ineffective. Many negative factors were of course identified. Some examples are the antiquated planning system in Ghana; the lack of accountability of public authorities in India; instances of arbitrary and corrupt decisions in Malaysia; civil strife resulting in a power vacuum and splintered authority in Pakistan; authorities hampered by central government interference in Japan; discrimination in distribution of burdens and entitlements in South Africa; the lack of an independent civil society and communist party influence, in China. Everywhere we found to some degree a lack of real or any public participation in relevant decision-making processes; a lack of accountability of public authorities; political influence and corruption; a lack of legal development and judicial timidity in dealing with environmental issues; a lack of local government resources; a plethora of responsible authorities and overlapping jurisdictions; and a general inefficacy of legal gateways. Some positive and promising developments were however noted. Examples are the clear commitment to public participation in Accra; the development of a unique legal systemic response in public interest litigation in India; the ability of NGOs to coalesce and network around an issue in Malaysia; the

10

1. Access to Environmental Justice: Some Introductory Perspectives

legalisation of squatter settlements in Pakistan; heightened public awareness of environmental issues and some effective legislation in Japan; the emergence of the environment as a major issue of democracy and human rights in South Africa; and the use of community-based ADR in pollution cases in China. Everywhere there was increasing awareness of environmental problems and environmental law. Legislative and administrative improvements were found to be taking place, albeit slowly, and there was considerable development of the environmental-NGO sector.

IV. THE CONTRIBUTIONS TO THIS BOOK In this section we will take a brief look at all the country-chapters to see what general conclusions can be reached on the basis of the detailed research undertaken. (a) Ghana (Accra) As James Read points out in chapter 2, Ghana has a pluralist legal system in which common law elements are present but outweighed in significance, at least in the environmental field, by customary law and traditional dispute settlement processes. The common law and its courts appear to be relevant principally as a means (and not the favoured means) for settling land disputes. Similarly the police and national government departments, statutory planning law, environmental law and criminal law are far less significant in Read’s study than traditional or customary law and dispute resolution, local community initiatives, public participation, and NGO mobilisation. Despite the environmental crisis of rapid urbanisation (a feature with which readers of this book will become very familiar), Ghana offers some hopeful features. These include the peculiar strengths of indigenous Ghanaian communities, including the potential for successful communal action on matters of common concern, such as prohibitive subsidiary legislation; the contemporary national political culture, emphasising citizen participation and even providing for it in the Constitution and some relevant legislation, such as that on environmental protection; decentralisation of government, which has encouraged local initiative in tackling environmental problems; and the relative absence of large-scale ‘squatter’ settlements. Read’s study will give some pause to those who see positive law and top-down administration as the way to protect the environment. (b) India (Bangalore) Based on research undertaken in Bangalore at part of SOAS/A2EJ in 1996 and updated in 2003, Amanda Perry-Kessaris’ chapter 3, on India, is an in-depth study of access to environmental justice in the age of globalisation in India’s 11

Access to Environmental Justice: A Comparative Study

hi-tech foreign investment magnet, the garden city of Bangalore. The law offers many gateways to environmental justice, ‘but that they are of varying width, and in varying states – from infancy to maturity, decay to rejuvenation’. There have been advances in public participation, and public interest law has featured prominently in the use of gateways. However, access to environmental justice in terms of access to land presents large problems which seem to be growing with increased pressure on land. Perry-Kessaris’ study of the Bangalore-Mysore Infrastructure Corridor reveals that public bodies ‘play a facilitative role to access land in large parcels and ensure little opposition’. Economic development, we can learn here, may decrease the opportunities for rendering authority accountable. This chapter also casts doubt on the efficacy and appropriateness of public interest law, which is a preoccupation of many other chapters. In the home of PIL there is now clearly disillusionment with the effects and incidents of PIL and the courts themselves are becoming wary of the possibility of abuse of the process. Over the period since PIL was at its height in Bangalore in the mid-1990s its use has declined and it success rate dramatically cut. Moreover advances in participation have also led to disillusionment. The proliferation and development of legal and democratic gateways does not appear to have had a significant impact. Only the right to information, also seen in other chapters as crucial, offers, since 2000, some hope of improvement. (c) Indonesia More than most of the contributions to this book, Adriaan Bedner’s piece (chapter 4) on Indonesia presents in a depressing (although ultimately not at all hopeless) light the situation of environmental law in a developing country. On many points the basic principles of environmental law itself are found to be satisfactory, and indeed Bedner is content to judge environmental justice by reference to Indonesian law rather than the latter’s compliance with international law. The law provides several potentially useful gateways, and many rules, such as those providing for the right to a healthy environment, the right to participation in environmental decision-making, class actions, NGO standing, rights and duties with respect to environmental information, environmental mediation, generosity with regard to limitation periods in civil actions, and the statutory enactment of the polluter-pays principle, that are models of environmental justice in the conceptual sense. However, when one grasps at the practical operation of the rules, their substance has a tendency to disappear between the fingers. Negating factors include the socio-political problem of asymmetry in power relations; legal/evidential problems in proving cases, especially with regard to causation; lack of implementing regulations, and even lack of implementation of such regulations where they exist (as with a regulation enabling the setting up of environmental dispute settlement centres). Thus in many instances the 12

1. Access to Environmental Justice: Some Introductory Perspectives

law is directly contradicted by practical outcomes. In the case of environmental information, for example, there is no device requiring information to be divulged by potential polluters, and the prevailing situation especially in rural areas is environmental secrecy, not information (Bedner even doubts if such a device would be used even if it existed). There is a power to order an environmental audit, but it has been used only once. There is environmental impact assessment, but it provides no third-party rights and is ineffective. As if this were not enough, there are also serious problems with some legal provisions or with their application by the judiciary in the contexts of, for example, evidence, remedies, and jurisdiction. Regional autonomy and economic crisis appear to have made the situation even more unpredictable and generally worse than previously. Thus, as with most of the other contributions, Bedner finds that in Indonesia we have to look at extra-legal factors both for explanations and for good news and perhaps good prospects. He refers to the significance of government involvement in mediation, and the importance of the roles of NGOs, the press, and local direct action in securing outcomes positive for the environment. The facts that an AusAid programme has now produced over 800 judges with environmental specialism, as well as reforms in the higher courts; and that the internet has created conditions of knowledge-sharing globally as well as locally give cause for some hope that the gateways Bedner discusses will prove more open in the future than they have been so far. (d) Malaysia (Kuala Lumpur) In their study at chapter 5, based on research on the conurbation of Kuala Lumpur, Andrew Harding and Azmi Sharom consider environmental decisionmaking within the complexities of a federal structure, emphasising state and local rather than federal government; the environmental nature and effects of planning law; and the role of NGOs in environmental decision-making. As with other contributions there is much discussion of the role of the judiciary, which in the Malaysian context reveals a certain ambiguity, with some decisions, for example those relating to eviction orders and natural justice in planning decisions, prioritising access to environmental justice, while others, for example on standing and civil liability, firmly rejecting it. While planning law, described as undeveloped, creates a limited gateway for middle class interests, the authors consider extensively access to land and the position of squatters and their gateways to protect their de facto occupation of land in the face of urban development. In this context the authors describe litigation in resistance to a possession order as a ‘drawbridge’ rather than a gateway.17

17

See, further, above for this distinction. 13

Access to Environmental Justice: A Comparative Study

The curtailment of human rights and civil liberties in general, as well as extra-legal factors, such as corruption and the inter-racial dynamics of one-party dominance, are identified as causes for a lack of effective access to environmental justice. These relate both to pre-decision and post-decision gateways. The conclusion is that while the law provides many gateways of some potential use, and while many institutional conditions should work in favour of environmental justice, in practice access to environmental justice is limited due to the absence of basic conditions of democracy in almost all areas of decision-making, particularly in local government, where there are no elections. Since the research in Malaysia was completed, the courts have, in a remarkable development, recognised the customary land rights of the orang asli, the aboriginal population of Peninsular Malaysia.18 In doing so, they have been influenced by the Canadian decision in Calder19 and Australian decisions, including Mabo.20 At the same time, they have also, in an equally remarkable but entirely negative development, failed to give standing to an aboriginal group in Sarawak to challenge a major dam project.21 Another feature of the Malaysian situation, reflected in most of the other chapters in this book, for example that on Pakistan, is that the conditions of access, or the lack of access, discriminate against minorities, in this case squatters of Indian extraction and Indonesian immigrants. (e) Nepal Consistently with the theme that access to justice is inseparable from political conditions, Surya Subedi’s chapter 6 on Nepal outlines a much more negative situation than was apparent in an earlier draft, which is due to rapidly declining political stability in the period 2002 to date. Whereas rapidly developing environmental law, itself a result of government recognition of the lack of sustainability of Nepal’s environment, had in the early 1990s created gateways for public participation in environmental decision-making, frequent changes in government, the imposition of royal rule in 2005 bringing the law-making process to a halt, and the continued Maoist insurgency, put a severe brake on this development. Before this juncture, however, Nepal had during the 1990s made steady progress in securing public participation in the planning process for development projects; it was only during the ascendancy of democracy that Nepal began to enact laws to protect the environment and develop the system of access

18

Adong bin Kuwau and 51 Others v Government of Johor [1997] 1 MLJ 418, affirmed by the Court of Appeal in [1998] 2 MLJ 158; Sagong Tasi and Others v Government of Selangor and Others [2002] 2 MLJ 591.

19

Calder v A-G of British Columbia (1973) 34 DLR (3d) 145.

20

Mabo v Queensland (1991–1992) 175 CLR 1 (Mabo No.2).

21

Ketua Pengarah Jabatan Sekitar and Another v Kajing Tubek and Others [1997] 3 MLJ 23.

14

1. Access to Environmental Justice: Some Introductory Perspectives

to environmental justice. However, the judiciary is still relatively powerless in the environmental field in comparison with India and Pakistan, despite promising development regarding the Supreme Court itself (for example in asserting a right to environmental information), and there are substantial disincentives to court proceedings. As a result, it is principally the authorities responsible for environmental management that resolve environmental disputes. Also elders of the society known as the ‘panch bhaladmi’ resolve many local disputes through informal arbitration and mediation processes. As in other cases, the abundance of administrative agencies able to deal with environmental offences has created a situation where there is a serious danger of inconsistency in the standard of justice applied. (f) Pakistan (Karachi) Martin Lau’s chapter 7 on Karachi/Pakistan provides a good insight into the way in which colonial and post-colonial political history has adversely affected urban environments in the developing states. The chapter also endorses the idea that access to environmental justice is deeply affected by political conditions, to the point of reflecting them very precisely. The chapter is very disturbing in its bleak conclusions about the environment of Karachi’s poor, and the seeming lack of any significant legal development favouring access to environmental justice, or even the relevance of legal gateways in the context of Pakistan’s problematical legal system. Even the brief and promising flowering of Islamic public interest litigation has come to nought with General Musharraf ’s 2001 coup, and the extensive Asian Development Bank access to justice project (AJP) appears to have had very little actual impact on legal conditions generally and none at all on environmental law. Pakistan reflects some familiar problems, but seems to have all rather than some of them. Lack of the rule of law and basic law and order; lack of statutory and constitutional development, to the point of non-existence of rights to a healthy environment, or to participation or information; lack of implementation even of the statutes that have been passed; uncertainties over standing resulting in a virtual absence of environmental litigation; the widespread flouting of planning laws; official corruption in the police and other state agencies; and sheer lack of any political will to deal with environmental issues affecting the poor. However, although he is sceptical about the attention given to AJP, Lau tries hard to see a positive way forward, and the case study on Taikri Colony indicates that the ombudsman is probably the best gateway for access to environmental justice, due to the availability and flexibility of the institution, even though there is a tendency for public authorities to reverse the ombudsman’s judgment. Local elections (contrast the position in Malaysia here) are seen by Lau as having a positive impact: even the poor have votes and need to be courted.

15

Access to Environmental Justice: A Comparative Study

Overall, this study reinforces solidly the points that access to environmental justice will not change until politics itself changes, and that such access is ultimately dependent on general legal and governance reforms. (g) People’s Republic of China Michael Palmer’s study at chapter 8 on the People’s Republic of China examines the development and the role of environmental justice in a rapidly developing economy in which communist ideology of the Mao Zedong era gave no place to environmental protection. We find here much to admire in the development of Chinese environmental law, which since 1979 has encompassed a wide range of protection, even if, as expected in a state which is still authoritarian, access to environmental justice for individual citizens and groups is somewhat constrained. Environmental law plays a role in what Palmer calls ‘setting the parameters between a still-authoritarian system of governance and an increasingly autonomous civil society’. The problem, as with most of the other jurisdictions discussed in this book, lies not in the law itself but in its implementation. In China much power lies in the hands of local officials who are responsible for economic development as well as environmental protection, and thus efforts to establish environmental justice are aimed principally at controlling local officials. Local environmental protection authorities are not overly concerned about the fact that the penalties which they impose are not financially stringent and therefore ineffective deterrents, for they are concerned to secure an income from the fines and in a particular do not want to bankrupt the polluting enterprise Judicial independence also remains to be firmly established and courts and prosecutors view with reluctance the imposition of remedies in environmental cases, especially in criminal cases. Hence the emphasis in this discussion is on negotiation, mediation and semi-formal administrative decision-making, with ‘letters and visits’ as an informal gateway, and administrative penalties as the main coercive threat to polluters. Interestingly enough, even China has witnessed the growth of civil-society solutions to the lack of access to environmental justice, reflected in the recognition of class actions in the courts. On the other hand, Palmer concludes that ‘an ideology of environmental protection seems to fit as happily with a quasipaternalistic, authoritarian state as it does with western-style liberal democratic political systems’, a thought which may give us pause before we assert that public participation is the only guarantee of environmental protection; however, does a statist solution guarantee environmental justice? (h) South West Pacific The South West Pacific presents most of the same problems as other regions covered in this book, as well as a few more that are peculiar to small states where 16

1. Access to Environmental Justice: Some Introductory Perspectives

both customary land tenure, and reliance on marine resources, forestry and mining (with the accompanying pressure of foreign investment problems in the last two cases), and even environmental tension leading to civil war in the case of Papua New Guinea, are of great importance. Nicola Pain’s contribution (chapter 9) draws attention to one aspect of access to environmental justice which is not easily drawn out in country-based studies, namely the increasing importance of ‘transnational access to environmental justice’, noting attempts by environmental groups to bring litigation in Australia and the United States, being more sympathetic fora in cases where there is a large deficit in access to environmental justice in the ‘home’ country’s legal system. As in the case of Ghana and India customary law offers potential solutions to the problem of dispute resolution, as well as presenting problems of different notions of a proper system of land tenure. This study is also shot through with evidence, of which the most powerful is drawn from the Ok Tedi and Panguna case-studies, of lack of an independent legal system, access to environmental justice, public participation, or environmental impact assessment. Like the other studies it also offers a wide range of potential and actual gateways in terms of public interest litigation and self-help remedies. Pain sees the way forward as lying in ‘provision for genuine public participation, essential to the implementation of human rights and sustainable development, and hence greater opportunity for access to environmental justice’. (i) Thailand Since 1997 Thailand has undergone a dramatic reform of its entire Constitution and the upper reaches of its legal system. The 1997 Constitution deals extensively, both explicitly and implicitly, with issues of environmental justice and environmental protection, while also making extensive provision for public participation in decision-making generally, and is known as the ‘green’ constitution. Thawilwadee Bureekul’s chapter 10, reflecting the approach taken in most of the chapters found here, provides us with an insight into the actual workings of environmental justice in critical cases, and she examines in detail the case of the Hin Krud power plant. Since 1996 the government has made extensive provision in the law for public hearings into development projects and also for public access to official information. The NGO movement has also grown considerably in power and organisation. There are now several formal legal and also informal gateways to environmental justice through the medium of public participation. Nonetheless, there have been problems which public participation has failed to solve and also created. Participation in environmental management has failed to produce stakeholder satisfaction, and indeed has even increased conflict. In the Hin Krud case the government had approved the project before public participation took place, and the public’s right to know has not been honoured. 17

Access to Environmental Justice: A Comparative Study

Although there has been much progress in Thailand in accessing environmental justice, much still remains to be done. (j) United Kingdom Jean-Jacques Paradissis and Michael Purdue in their chapter 11 on the United Kingdom discuss at some length the provisions on access to environmental information, public participation, and judicial review, which they see as creating a kind of virtuous circle, each aspect of environmental justice being dependent on the others – indeed they define environmental justice in precisely those terms. The governing standard is that set by the Aarhus Convention, so that in effect Paradissis and Purdue provide a distinctively European version of access to environmental justice. Given that the issue of environmental information is seen, in almost all the contributions, as a large problem, the UK provisions contained in the Environmental Information Regulations 1992, based on the EU Directive, are most instructive. This is a good example of legal development which could properly be considered across both developed and developing states and across different areas of environmental regulation. The device of a register, also discussed in this contribution, can cover planning applications, pollution emissions, measurements of environmental quality, and movements of hazardous waste. This is another area from which much can be learned. When it comes to judicial review and standing, as is the case elsewhere, judicial schizophrenia is in evidence, but the UK decisions can again be instructive in several ways. It will be seen that this chapter is significantly less socio-legal in emphasis than many of the other chapters. This is to be expected, because it is clear that in the UK (and by virtue of the European origins of recent law, implicitly in Europe too) political action on environmental issues is generally, although not always, channeled through legal gateways involving consultation and inquiry, and also the system of planning and environmental law provides for a good deal of public participation and is essentially democratic, at least when compared to many of the systems described in this book. (k) United States The United States has often been the source of new ideas and inspiration in the field of environmental justice. In particular it is doubtful if public interest law would have developed to the extent it has without the American example; and the incorporation of environmental justice and public participation into decision-making is something that could with great benefit be adopted elsewhere: the Civil Rights Act Title VI bars agencies that receive federal financial assistance from discriminating on the basis of race, colour, or national origin. Nonetheless, Cha Mijin’s chapter 12, based on experience working with citizen groups in California and using case studies from other parts of the United States, indicates 18

1. Access to Environmental Justice: Some Introductory Perspectives

that the struggle for environmental justice still continues in the United States, and still displays some troubling features. In particular she highlights the ethnically differentiated distribution of environmental risks and pollution episodes, which is a phenomenon that, as we have noted, is in evidence in other countries too. The chapter traces the development of the environmental justice movement and its relationship to the civil rights movement; and examines a number of cases and provisions which are being used to advance incrementally access to environmental justice. Her conclusion, emphatically endorsed by the other chapters in this book, can stand as a conclusion to the book as a whole: The issue of environmental justice cannot be viewed solely from an environmental perspective; nor can it be viewed solely from a social justice perspective. Rather, the two must be inextricably intertwined and addressed. Although environmental justice is a relatively new field, it is clear from the cases presented that a new approach is emerging that combines social and environmental concerns. This gives way to a movement where people are empowered because their problems are not seen in a vacuum, but instead, there is a multi-faceted approach that envelops all of their concerns. While it seems that the victories are few and far between, it must be noted that this movement is not aiming to win small victories, but it is aiming to change the way people view environmental issues.

V. FINALLY … The contributions to this book address an area of legal development whose importance to life on this planet can hardly be overstated. Accessing environmental justice is not simply a matter of voicing environmental concerns, as in most Western democracies; it is also a matter of ensuring the basic elements of survival for communities, and especially the poor, across most of the developing world. And of course our survival as humanity depends on our wise use of natural resources in a sustainable manner. Providing access to environmental justice, as we see from the research set out in this book, is highly problematical. In most countries we can say there has been progress in the last two or three decades, and yet environmental justice is neither guaranteed nor easily accessed. Even where there is broad acceptance that access to environmental justice is highly desirable and progress has been made in that direction, the matter is not at all free from difficulties, and it is clear that these difficulties are attributable principally to the political, but also to the economic, social and cultural contexts in which environmental justice is being accessed. If there is a single lesson to be drawn from these studies, it is that environmental justice is a good which can only be achieved by a massive feat of political will. The experience of the December

19

Access to Environmental Justice: A Comparative Study

2004 tsunami in Indonesia, Thailand and Sri Lanka, shows that it is only when disaster strikes that our minds are concentrated to a degree necessary to take the decisive actions we always knew or should have known were necessary. In the case of access to environmental justice it is clear that action is needed at many levels and in many contexts, not simply the legal contexts, to ensure that justice becomes a reality and the environment is protected. Hopefully these studies have pointed to the practical ways in which this position may be achieved.

20

Chapter 2

ACCESS TO ENVIRONMENTAL JUSTICE IN GHANA (ACCRA) James S. Read 1

I. INTRODUCTION: GENERAL BACKGROUND

W

hen Accra was chosen as the capital of the British dependency of the Gold Coast in 1877, it was not for its environmental features, which were largely unfavourable. Without a harbour, the beach landing was always difficult; water supply was a serious problem; the existing old towns were poorly constructed and insanitary. However, they adjoined attractive open countryside stretching inland to the wooded Aburi hills and were fringed by sandy beaches open to the fresh Atlantic breezes, with a series of lagoons, especially the large Korle Lagoon, where the oldest of these coastal settlements was a fishing village. Moreover, Accra was the leading commercial centre of the territory. The British colonial administration therefore preferred it for the capital to Cape Coast, the former capital, or Elmina, the older centre further along the coast. After more than 120 years of expansion and population growth, Accra remains the capital and commercial centre of Ghana and its environmental problems grew to reach a critical state in the 1990s. This was acknowledged by official and unofficial representatives who recognised, at the Accra Consultation in 1995, that environmental degradation in and around the city presented major obstacles to sustained and equitable socio-economic growth and development. However, Ghana also currently offers an unusually promising setting for the improvement of access to environmental justice. After independence in 1957 an unsettled constitutional history of disruption by coups and military governments produced many policy shifts and interruptions in development programmes,

1

Professor Emeritus, Department of Law, SOAS, University of London. Professor Read has specialised in African law and comparative public law since the early 1960s, and is co-editor of the Law Reports of the Commonwealth.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 21–58 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

administrative and other services, the effects of which were intensified during periods of severe economic decline. The Constitution of 1992 restored democratic government with effect from January 1993 and proclaims commitments to both environmental protection and citizen participation, which a number of legislative and policy initiatives seek to implement. In this respect the people of Ghana, including the inhabitants of Accra, have significant cultural resources upon which to draw. For while the experience of more than a century of authoritarian colonial and post-colonial government inevitably failed to promote active citizen participation in decision-making in the formal, legal and bureaucratic sectors of administration, the strong foundations of the diverse indigenous communities of Ghana, with their distinctive languages, histories, social and political institutions, typically involving structures of participatory government and responsive leadership (‘chieftaincy’), provide effective fora and social support for the articulation of individual needs and opinions. In the typical Ghanaian usage a traditional community is bonded in allegiance to its ‘stool’ or ‘skin’, a corporation which is ‘the embodiment of the collective authority of all the members of the community’, the occupant of which, with elders and councillors, is a trustee holding land for and on behalf of the community.2 These bonds of community have even survived the extensive Ghanaian diaspora of recent decades, when many citizens left the country to study or work in Europe, America or other West African states. Even the many who have settled permanently elsewhere commonly maintain, to a remarkable extent, their attachment to Ghana, manifested by regular visits, continued loyalty to their community (usually recreated as a formal local association, with regular meetings and other activities) and the anticipation of retirement and burial, or at least traditional funeral ceremonies, in Ghana. Ghanaian expatriates contribute significantly to citizen participation in Ghana in at least two ways: firstly, by economic repatriation, at least by providing financial assistance to family and community members, for example, for educational expenses but also for basic maintenance (contributions which were of vital importance during past times of economic crisis) and increasingly for capital investment in property or businesses in Ghana; but, secondly, through the repatriation of ideas and experiences from other countries, providing inputs into the social and intellectual life of Ghana which serve to encourage and inspire citizens in their continuing search for effective participation in decision-making.

2

22

See Ollennu, N.A., Principles of Customary Land Law in Ghana (London, Sweet and Maxwell, 1962), 6, 9. A broad analogy might perhaps be drawn between the role of a stool and that of ‘the Crown’ in English law.

2. Access to Environmental Justice in Ghana (Accra)

(a) Accra: the growth of the city and its people Accra traces its origins back at least six centuries, to coastal villages established in the 14th century by immigrants of mixed origins from the kingdom of Benin and other parts of modern-day Nigeria who, however, mainly settled inland, absorbing the existing indigenous communities. The coastal settlements developed into separate towns, each under its mantse (chief) and dependent for food upon its associated villages in the hinterland. The ‘Ga’ people, sharing a distinctive common language, are thus the original inhabitants of Accra and, although now heavily outnumbered by city-dwellers from other communities from throughout Ghana and beyond, their culture and society is still of great significance in many aspects of the life of the city. Their traditional units survive today as distinct townships at the heart of Accra, as do the chiefs and the close relationships between the Ga townsmen and their associated village relatives, annually reinforced in the Homowo (harvest) festivals (which celebrate historic victories over famine and have significant environmental aspects, for example ceremonies of cleansing homes and towns and weeding roads, sea purification ceremonies3 etc.) and manifested also in the payment of levies and in certain processes of decision-making. The growth of international trade led to the development of these settlements over several centuries into the modern city of Accra. A Portuguese trading fort was built in the late 15th century; British traders arrived in the 16th century and the Dutch, Danes and British were permitted to build trading forts here during the 17th century, when Accra, although without a harbour (goods being trans-shipped by surf boats), became the leading trading centre on this part of the West African coast. The Ga towns which then developed under rival European patronage are still regarded as ‘English (British) Accra’ and ‘Dutch Accra’. These later forts remain in current use, Fort James and Ussher Fort as prisons with the adjacent old townships as the congested heart of the city; Christiansborg Castle is the President’s headquarters. As the capital, Accra grew steadily: the population rose from 18,000 in 1901 to 136,000 in 1948, trebled during the 1950s to 450,000 and trebled again by 1990, when the population of the Accra Metropolitan Area or District was estimated at 1.2 million, with a projected population of 2.7 million by 2010.4 Accra has remained primarily a commercial and administrative centre, with only secondary industries. Although some population growth has been accommodated by increasing congestion of the old townships, the city has also expanded

3

Ammah, C.N., Homowo and other Ga-Adangme Festivals (Accra, Sedco, 1982).

4

Accra Metropolitan Area or District, excluding Tema and Ga Districts, which are also within the Greater Accra Metropolitan Area (GAMA). Data from the Accra Planning and Development Programme 1991. 23

Access to Environmental Justice: A Comparative Study

far beyond them. In 1908 an epidemic of bubonic plague prompted the British administration to establish new, planned townships (for example, Adabraka), to alleviate the insanitary conditions of the old towns. After independence a new port and industrial area was established nearby in Tema District and urban development has extended also into the formerly rural Ga District. Accra, Ga and Tema Districts are now linked in the Greater Accra Metropolitan Area (GAMA), which in 1990 had an estimated population of 1.7 million. Although planning law was introduced, its effective application was generally limited to new residential areas assigned for low-density housing for expatriates and senior Government officers; ‘the bulk of the population live in largely unplanned residential developments’5 in which rapid population growth produced higher occupancy ratios, with severe overcrowding in the numerous unserviced and unplanned slum areas.6 (b) Accra: its economy in the national context The first half of the twentieth century saw the consolidation of Accra as the administrative, commercial, industrial and communications centre of the country. Here a tenth of the national population produce up to a fifth of the Gross Domestic Product, and in a country in which agriculture and forestry are the bases of the national economy. However, Accra, with about a third of the manufacturing industries of the country, has less than a fifth of employees working in industry; half of the total number employed work in trade and services.7 Accra has been particularly vulnerable to the economic vicissitudes which have afflicted Ghana over recent decades. A successful national economy built mainly upon cocoa and mining collapsed in the 1970s, which saw an annual average decline in GDP of 1.3% and an average annual growth in population unofficially estimated at about 3%.8 Economic tribulation had a disproportionately heavy impact upon the urban areas and especially upon the largest of them, Accra, where mere subsistence became a daily challenge for the majority of residents. Economic decline was reversed by the adoption of an economic recovery programme from 1983, with the reduction of the public sector, including the privatisation of parastatal enterprises and the encouragement of domestic and foreign investment by the liberalisation of financial controls. This resulted in annual average growth rates in GDP of 5% or more after 1984, but

5

Benneh, G., et al., Sustainable Food Security in West Africa (London, Kluwer, 1997), 8.

6

Ibid., at 7.

7

Ibid.

8

Ghana: Environmental Action Plan, Vol. I, p. 4.

24

2. Access to Environmental Justice in Ghana (Accra)

the evidence for Accra would seem to suggest that the high economic growth rates … have brought minimal relief to the average urban household. For example, the average urban worker is still much poorer than in 1970.9 Industrial development in Accra, like residential provision, proceeded in a largely unplanned manner. There is no heavy industry but some secondary industries (for example food and beverages, including breweries), most of which were established before the age of modern planning and certainly before the requirement of environmental impact assessments. Much other industry continues on a small-scale, informal and largely uncontrolled basis (e.g. motor mechanics, furniture makers, potteries). Trade, a dominant feature of the Accra economy, is conducted at every level: international export/import businesses, wholesale and retail enterprises, markets, roadside stalls and itinerant pedlars (who are mainly children). Poverty remains a dominant feature of life for the majority of Accra residents: ‘by international standards, the majority of the population lives in poverty’,10 95% of those in a recent survey earning below the poverty line of $4 a day set by the International Labour Organisation.11 In such circumstances individual preoccupations with daily survival combined with administrative failures and the attrition of public resources to relegate environmental protection to the very margins of public and popular concerns. (c) Environmental law in Ghana in historical perspective Although, as elsewhere, environmental law in its modern form has a relatively short history in Ghana, forms of environmental regulation have been applied for centuries under the unwritten customary laws of Ghanaian societies, including the Ga. These societies depended for their existence primarily upon the continuing exploitation of the environment and therefore also upon its protection for enjoyment by succeeding generations; the legal systems, primarily based upon the customs of the people, protected forms of ‘sustainable subsistence’. A widely recognised legal concept was that land was held, and preserved, in some form of continuing communal title as family land owned by a lineage. (In Accra there was no ‘stool land’ held by a stool, or ‘skin’, in a representative capacity on behalf of the community, as there was elsewhere in Ghana.) Such concepts allowed for the current use of the land while ensuring its preservation for enjoyment by future generations, by forbidding practices seen to cause lasting damage to the land or permanent crops. The long-term interests of the community were to prevail

9

Benneh et al., above n. 5, at 10.

10

Ibid., at viii.

11

Ibid., at 10. 25

Access to Environmental Justice: A Comparative Study

over short-term gains or the interests of individuals. Religious sanctions were invoked to reinforce relevant customs, seen, for example, in the role of fetish priests who controlled fishing seasons in the lagoons of Accra. Customary laws, preserved and adapted under colonial rule, continue in force, in the traditional townships of the city as well as in the rural areas beyond, subject to the over-riding authority of legislation. However, much land in Accra has passed into private or public ownership, over-riding customary law by sale, sanctioned under the modern, ‘plural’, legal system, or by acquisition for government purposes under legislative provisions. Early examples of colonial environmental legislation reflect the limited vision of the period. The year after Accra became the capital the Towns Police and Public Health Ordinance 1878 prohibited the keeping of livestock and the growth of weeds, and required permits to be obtained for new buildings. In the 1880s an attempt was made to impose a sanitation programme: drains were cut, cemeteries provided, garbage collected from the streets and a public reservoir constructed. A more comprehensive Town Planning Ordinance was enacted in 1930. In the modern period, the Environmental Protection Council (EPC) was established by Decree in 197412 as a consultative, advisory and research body and to co-ordinate the activities of other agencies, but without any enforcement powers. A new era opened at the end of 1994 when the Council was transformed by statute into the Environmental Protection Agency (EPA), with comprehensive powers of regulation and control.13 (d) Accra: an environmental crisis It was widely acknowledged that in the 1990s Accra faced an environmental crisis. The ‘Preface’ to the Environmental Profile of Accra, prepared in 1994 as part of the Habitat Sustainable Cities Project, concluded that the typical African city is afflicted by gross environmental degradation caused by a combination of factors: not merely rapid urbanisation, with high rates of population growth resulting in increasing congestion and urban expansion, and a high incidence of poverty, but more fundamental causes attributed to a lack of public awareness, inappropriate policy framework and inadequate political commitment. In Ghana these factors were seen to be intensified by the lack of resources, including insufficient investment in infrastructure, a lack of adequate planning and management capacity in both central and local government and a lack of co-ordination between the various authorities and agencies involved. These underlying problems are manifested in various ways. Pollution is widespread. There is inadequate provision for the disposal of solid and liquid waste:

12

NRC Decree 239 of 23 Jan 1974.

13

Environmental Protection Agency Act 1994, Act 490.

26

2. Access to Environmental Justice in Ghana (Accra)

in the absence of an adequate sanitation system more than half the residents rely upon open drains for the disposal of untreated liquid waste. Apart from the continuing pollution and disease hazards they pose, blocked drains cause flooding in seasons of heavy rain – in July 1995 22 people were killed and much damage was caused by floods. Mounds of solid waste accumulate and rot at roadsides or are burnt, adding to air pollution. Decades of industrial effluent discharge had conspicuously destroyed all life in the (main) Korle Lagoon and threatened other lagoons. Intense traffic congestion in central areas and on access roads causes great delays, pollutes the air and creates vehicular/pedestrian conflicts. Beaches are polluted by waste and eroded by sand-winning.

II. CONTEXT: GENERAL ‘PARTICIPATION ENDOWMENTS’ (a) Policy framework for citizen participation The independence of Ghana in 1957 was followed by more than two decades of political instability in which three constitutions were overthrown by coups d’etat followed by periods of military government. The Provisional National Defence Council (PNDC) held power throughout 1982–92, after the overthrow of the previous constitution. This was represented as a populist revolution, and the PNDC claimed to invoke citizen participation, replacing previous organs of local government with People’s Revolutionary Defence Committees and Workers’ Defence Committees and setting up People’s Tribunals alongside the ordinary courts. Participation was also presented as a motive for the decentralisation of government implemented with the election of District Assemblies in 1989. The Government also demonstrated its commitment to participation by accepting assistance from UNCHS-Habitat to establish in 1992 a Programme for Strengthening Community Management.14 The restoration of democratic government from 1993 under the new Constitution of 1992 presaged the introduction of a variety of new measures designed to promote and facilitate participation. (b) The constitutional foundation for participation The Constitution of the Fourth Republic 1992, which came into effect on 1 March 1993, proclaims a clear commitment to popular participation in government in Chapter Six, which declares ‘The Directive Principles of State Policy’: … the State shall take appropriate measures to … make democracy a reality by decentralising the administrative and financial machinery

14

See below. 27

Access to Environmental Justice: A Comparative Study

of government to all regions and districts and by affording all possible opportunities to the people to participate in decision-making at every level in national life and in government.15 The same Chapter requires the State to ‘take appropriate measures needed to protect and safeguard the national environment for posterity …’.16 The constitutional commitment to citizen participation is supported by various provisions protecting freedom of expression and establishing relevant institutions. Thus the Constitution affords guarantees of ‘Fundamental Human Rights and Freedoms’ (in Chapter Four), including ‘freedom of speech and expression, which shall include freedom of the press and other media’.17 A separate Chapter supports the freedom and independence of the media in greater detail, generally prohibiting the imposition of censorship or licensing of the press or other mass media and establishing the independent National Media Commission to promote the freedom and independence of the media.18 The Constitution also established an ‘Ombudsman’ – the Commission on Human Rights and Administrative Justice – with unusually wide jurisdiction to receive and investigate not only complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by public officers but also complaints of fundamental rights violations by any persons, private enterprises or other institutions.19 The Constitution continues, with a new emphasis, the former policy of decentralisation of government, prescribing the main elements of the system of decentralised local government: the aim is to achieve localisation of the planning, management and execution of ‘policies in respect of all matters affecting the people within their areas’, and: to ensure the accountability of local government authorities, people in particular local government areas shall, as far as practicable, be afforded the opportunity to participate effectively in their governance.20 For each of the 110 districts of Ghana the Constitution establishes a District Assembly, composed of members elected every four years as individuals (the Constitution forbids the participation of any political party in such elections) and up to 30% of members ‘appointed by the President in consultation with the traditional authorities and other interest groups in the district’. Such elected and 15

Art. 35(6)(d).

16

Art. 36(9).

17

Art. 21(1)(a).

18

Ch.12.

19

Ch.18.

20

Art. 240(2)(b),(e), in ch. 20.

28

2. Access to Environmental Justice in Ghana (Accra)

appointed members may be removed by the electorate or President respectively. Local Members of Parliament are non-voting members of their local Assemblies. The District Chief Executive is appointed for a four-year term by the President, with the prior approval of at least two-thirds of the members voting in the Assembly, and may be removed by the President or by a vote of no confidence supported by two-thirds of all Assembly members. The structure and powers of local government below the District Assemblies are prescribed by the Local Government Act 1994, Act 462, and subsidiary legislation thereunder. The requirement of decentralisation is carried through to other agencies: for example, the Commission on Human Rights and Administrative Justice is required to open regional and district offices21 and Parliament is required to legislate for further decentralisation of central government functions.22 Regional Co-ordinating Councils, with presiding members and chief executives from each district among other members, are also established.23 A separate Chapter of the Constitution prescribes basic principles and machinery for the regulation of land and natural resources, vesting ‘public land’ and all minerals in the President ‘on behalf of, and in trust for, the people of Ghana’. A Lands Commission, with Regional Commissions, manages public lands. ‘Stool’ and ‘skin’ land is vested in the respective traditional authority – stool or skin – ‘in trust for the subjects of the stool in accordance with customary law and usage’, although 55% of the revenue from such land is allocated, via the Administrator of Stool Lands, to the respective District Assembly. No right or concession to exploit any mineral, water or other natural resource can be granted without Parliamentary ratification.24 In providing for ‘The Judiciary’, the Constitution acknowledges that ‘justice emanates from the people’ and guarantees continuing public participation in the administration of justice: Citizens may exercise popular participation in the administration of justice through the institution of public and customary tribunals and the jury and assessor systems.25 Although appointment to the benches of the Supreme Court, Court of Appeal and High Court is reserved for qualified and experienced lawyers, the Constitution also establishes Regional Tribunals, each with a legally qualified chairman and two to four panel members, appointed by the Chief Justice, who need not be

21

Art. 220.

22

Art. 254.

23

Art. 255.

24

Ch. 21, Arts. 257, 258, 267–8.

25

Art. 125(2), in ch. 11. 29

Access to Environmental Justice: A Comparative Study

lawyers.26 Lower Tribunals established by the Courts Act 199327 are structured in the same way. Regional Tribunals exercise concurrent criminal jurisdiction with the High Court and in particular try certain prescribed offences against the State and public interest including drugs offences and those involving serious economic fraud, loss of state funds or property, and also determine appeals in such cases from lower tribunals. Circuit Tribunals exercise criminal jurisdiction over all but the most serious offences and Community Tribunals have limited civil and criminal jurisdiction, including land cases up to a value of five million cedis and family and juvenile cases. A constitutional right to legal aid was established in the 1969 Constitution, Article 171, retained in the 1979 Constitution, Article 212, and continues under Article 294 of the current Constitution. This right applies to proceedings relating to the Constitution itself, including the enforcement of fundamental rights, and is regulated by legislation, currently the Legal Aid Scheme Law 1987 (Law 184), which empowers the Legal Aid Board to extend legal aid also to persons earning less than the government minimum wage for criminal and certain civil proceedings (including landlord and tenant and inheritance cases). The scheme is economical in operation as legal aid is normally provided by newly enrolled lawyers during their periods of compulsory national service.

III. STRUCTURES FOR ENVIRONMENTAL DECISION-MAKING (a) National agencies and procedures (i) Ministry for Environment, Science and Technology This new Ministry was established when the new Government was set up in 1993 following the inauguration of the Fourth Republic. (ii) National Development Planning The National Development Planning Commission (NDPC) was established (on the basis of an earlier initiative) in 1994.28 It has broad advisory, research and monitoring functions in the context of development planning policy and strategy, including, inter alia, responsibility to:

26

Art. 142.

27

Act 459.

28

National Development Planning Commission Act 1994, Act 479.

30

2. Access to Environmental Justice in Ghana (Accra)

make proposals for the protection of the natural and physical environment with a view to ensuring that development strategies and programmes are in conformity with sound environmental principles; …29 The modalities of the national development planning system, spelt out in companion legislation,30 manifest the intention to seek to ensure that the planning process starts at the district level, with full public participation, including public hearings, before district development plans are submitted, via Regional Co-ordinating Councils and with reports of public reactions, for consideration by the NDPC: 2. (1) A District Planning Authority … shall – (a) initiate and prepare district development plans and settlement structure plans … and ensure that the plans are prepared with full participation of the local community; … 3. (1) A District Planning Authority shall conduct a public hearing on any proposed district development plan and shall consider the views expressed at the hearing before the adoption of the proposed district development plan. (2) A local community in a district authorised by the District Planning Authority to prepare a sub-district or local action plan … shall conduct a public hearing before the adoption of the proposed sub-district or local action plan. (3) The Commission shall by guidelines prescribe the manner in which the public hearing shall be conducted. At the time of this research the national planning system was still in its formative stages and no examples of its implementation were available for study; the Commission had yet to prepare the guidelines referred to, and these are obviously be significant in determining the scope and validity of public participation in the local stages of the planning process. Nevertheless the legislation itself demonstrates the national commitment to a participatory, decentralised model of national planning. (iii) Environmental Protection Agency The Environmental Protection Agency (EPA), now the principal national instrument of environmental policy, was established at the end of 1994 by the transformation of the former, essentially advisory, Environmental Protection

29

S. 2(2)(c).

30

National Development Planning (System) Act 1994, Act 480. 31

Access to Environmental Justice: A Comparative Study

Council (EPC). At the time of this research it had been in existence for less than one year and it was therefore too early to seek to evaluate its achievements in performing the new tasks of regulation and enforcement. The functions of the EPA are extensively stated in no less than 18 legislative paragraphs: while retaining the responsibility to advise Government on environmental policy, it is also empowered to issue environmental permits and pollution abatement notices in respect of waste discharges, to issue directives and warnings in respect of noise, to prescribe standards and guidelines relating to environmental pollution (including that of air, water and land) and to ensure compliance with environmental impact assessment procedures for new or existing development projects. The EPA appoints Environment Protection Inspectors, with powers to enter premises to ensure compliance with the law, and has a Hazardous Chemicals Committee. Absent from these functions is any explicit obligation to consult with, or investigate representations from, the public, although the EPA is given an important educational role, to initiate formal and informal education programmes to create public awareness of the environment and its importance, to develop a comprehensive database to inform the public on the environment and its protection and to conduct seminars and training programmes and publish relevant reports. Public environmental education can be financed from the National Environment Fund which the EPA manages. In the EPA Ghana thus has a modern agency, well supplied with statutory powers and an administrative structure to confront the daunting environmental problems which the country faces; however, to perform its various tasks the EPA has a total staff of only 150 and, like other parts of the public service, is underresourced. By the end of 1995 it had opened 10 regional offices, including one in Greater Accra (opened in 1994), although it is required to open an office in each of the 20 regional capitals and is empowered to open district offices also. Former District Environmental Management Committees had become defunct but are being reactivated by Regional Programme Officers of the EPA; by 1995 DEMCs had been restarted in many districts, including three in Greater Accra. (iv) Environmental Impact Assessment Environmental Impact Assessment (EIA) was introduced in Ghana in 1989 as a requirement for new development projects; since then the procedures have been refined and made mandatory for certain types of undertaking as part of the application for an environmental permission from the EPA which is now required for most significant economic activities. EIA now provides ‘a major environmental management tool’,31 administered by the EPA, which is empowered

31

32

Environmental Protection Agency, Environmental Impact Assessment: Procedures, June 1995.

2. Access to Environmental Justice in Ghana (Accra)

to ensure compliance ‘in the planning and execution of development projects, including existing projects’.32 One of the purposes of EIA is presented as being ‘to provide avenues for the involvement of the public … in the assessment and review of proposed undertakings’. Every undertaking or development which may have an impact on the environment must be registered with the EPA, which decides whether an EIA is required (possibly after a Preliminary Environmental Report). The EPA has prepared comprehensive lists of types of undertakings which must be registered and types for which EIA is mandatory.33 At the initial stage of a ‘scoping report’ the proponent must initiate a programme of public information to ensure that local residents are fully informed about the nature of the undertaking and its environmental effects, with public notices of the EIA process in newspapers and otherwise; public concerns must be recorded and addressed in the Environmental Impact Statement (EIS) submitted to the EPA, which will then give 21 days public notice of the EIS and collate public reactions. If strong public concern is indicated and the environmental impact is extensive, the EPA will arrange a public hearing by a Panel, at least a third of whom must be residents of the affected area; the prescribed Procedures indicate only that the information received at such hearing, and the final report and recommendations of the Panel, may be published (presumably in the discretion of the EPA). The EPA then decides whether to issue a Provisional Environmental Permit, allowing the project to proceed within eighteen months, and a subsequent Environmental Permit, subject to satisfactory compliance with mitigation and management undertakings given in the EIA and submission of the first annual Environmental Report. A proponent has a right of appeal to the Minister responsible for the environment against any adverse decision by the EPA; such appeal is determined by a Board appointed by the Minister.34 The prescribed EIA Procedures therefore provide for public notification of, and participation in, the assessment of projects. At the time of this research the Procedures had only recently been published and were still to some extent experimental; there appeared to be no example of their application in Accra. However, full documentation of the application of such Procedures at a slightly earlier stage in their evolution, in the case of a recent major development in another part of Ghana – the Takoradi Thermal Plant, showed that, with appropriate commitment by the proponent and the authorities, these Procedures

32

Environmental Protection Agency Act 1994, s. 2(i); Environmental Assessment Regulations 1999, LI 1652.

33

Environmental Protection Agency, above n. 31, at App. 8,9.

34

Ibid., Chapter 8. 33

Access to Environmental Justice: A Comparative Study

could provide ample scope for extensive consultation with, and representations by, local residents.35 These Procedures also require all undertakings in Ghana to submit Environmental Management Plans every three years, although it is likely to be some time before this requirement can be effectively enforced in the case of existing undertakings. (v) Planning law Ghana has an archaic Town and Country Planning Ordinance enacted as long ago as 1946 on the model of the even earlier Town and Country Planning Act 1932 of England and Wales. This law, with its obvious deficiencies, all too familiar to the officers of the Town and Country Planning Department (TCPD) (now part of the Ministry of the Environment), is long overdue for replacement. The Human Settlements Bill 1994 was withdrawn for apparent conflict with the national development planning system, although that was not then fully implemented and, in any event, does not provide for detailed planning procedures. The new Local Government Act (discussed below) gives District Assemblies a key role in the planning process. In principle the planning process is based on public participation, which is informally sought before proposals are formulated, formally required when a planning decision is in progress and again informally encouraged during the regular reviews of implementation which follow a decision. The recent preparation of a Strategic Plan for the Development of Accra offers a useful case-study of this process, because of its importance and also because of its timing: the public announcement of the deposit of part of the Plan for inspection and comment occurred during the course of this research. The Plan involves twelve component projects for Accra Central and three adjoining areas. The TCPD, with local consultancy firms, prepared Draft Schemes for the Accra Metropolitan Authority (AMA) and central Government, in collaboration with other Ministries and with international support by, for example, UNDP and Habitat. These Draft Schemes had been prepared after considerable prior discussion, including some organised public participation. Three series of Workshops had been held: the first involved technical officers of the TCPD who examined initial plans prepared by their colleagues; the second series, of three meetings, involved all the traditional chiefs of the Greater Accra Region, together with some entrepreneurs; the third meeting, at the political level, involved Ministers and local Members of Parliament. Fora were also arranged for certain local

35

34

Volta River Authority, Takoradi Thermal Plant, Environmental Assessment, 3 vol., May 1995.

2. Access to Environmental Justice in Ghana (Accra)

community groups, e.g. market traders and neighbourhood groups, to consider proposals for the rehabilitation of traditional indigenous areas, and videos of these meetings were viewed when the draft plans were reconsidered in the TCPD. Reports of all these meetings were prepared and representations made – for example, by the chiefs – were forwarded to the TCPD, Minister and President. Petitions were also received from community leaders. At this point the Minister for Local Government appointed a team of land use planners to consider the objections and comments and to report to him. The Draft Plans were then considered and approved by the Planning Committee of the Accra Metropolitan Authority (AMA). The formal process of public consultation followed: the Draft Plans were deposited at both the national and Accra offices of the TCPD and public notice was given in September 1995, especially in the newspapers, that for the ensuing two months they were available for inspection daily by members of the public who could make written or verbal comments upon them. This opportunity was used by a wide variety of the general public and a considerable measure of informal inter-action between members of the public and planning officers was observed. All comments received were recorded by an officer of the TCPD and circulated for consideration by a ‘Jury’ of technical officers of the TCPD, who then formulated their conclusions and recommendations for the Minister. This stage of the process is not conducted in public, although those who made representations are invited to attend and may make further oral submissions. The next stage of the process involved a final review by the entire TCPD (ten planners and four regional officers), who meet for three days to examine the recommendations agreed by their colleagues. This is evidently a time-consuming process: after a year the TCPD, seeking to accommodate representations made by community representatives, had yet to resolve issues raised in respect of an earlier set of plans. In respect of individual applications for planning permission, the TCPD receives some 300 applications every month for planning permission for new structures in the Accra Metropolitan Area; about 60% of these are granted. Appeals against refusal of permission lie via the Regional and national TCPD offices to the Minister but appeals, once numerous, have declined in recent years. This may be because, as the TCPD acknowledges, its enforcement powers and resources are weak so that there is widespread evasion of control, with many unpermitted or non-conforming structures being built. (vi) Other legislation In conformity with national policy, legislation on other environmentally sensitive topics routinely provides for a measure of representative citizen participation in decision-making, but this is commonly in a highly diluted form. For example, the Forestry Commission Act, 1993, Act 453, established a Commission ‘responsible for 35

Access to Environmental Justice: A Comparative Study

the regulation and management of the utilisation of forest and wildlife resources of Ghana and the co-ordination of policies in relation to them’. The Commission, which has essentially advisory, monitoring and educational functions, has 19 members of whom four are nominated respectively by the National Council for Women and Development, the Timber Trades and Industries Association, the Ghana Institute of Professional Foresters and NGOs ‘involved in management or the enhancement of renewable natural resources’. The Fisheries Commission Act, 1993, Act 457, established a Commission ‘responsible for the regulation and management of the utilisation of the fishery resources of Ghana and the co-ordination of the policies in relation to them’. The Commission, which has some executive, as well as advisory and dispute-settling functions, has 17 members of whom five are nominated respectively by the National Association of Farmers and Fishermen, the National Fisheries Association, the Ghana Tuna Association, the Marine Fishing Officers’ Association and the Fish Smokers’ Association. The Forestry Commission is give responsibility to ‘educate the public on the effective and efficient utilization of forests and forest resources…’, but neither of these Acts suggests that such bodies need an opportunity to learn from the public, by imposing upon them a duty of public consultation. (vii) Judicial remedies As already noted, the Constitution provides the basis for the judicial system of Ghana, establishing the superior courts (the Supreme Court, Court of Appeal and High Court) and the Regional Tribunals; the Courts Act 1993 makes fuller provision and establishes the Circuit Courts, Circuit and Community Tribunals. Ghana has a plural legal system. During the colonial period the common law, doctrines of equity and ‘statutes of general application’ in force in England and Wales in 1874 were applied as the general law; since then legislation has provided the main new source of national law. The local customary laws of the various Ghanaian communities continue to apply to a number of matters including personal status, family and marriage, land law and (to some extent) succession; the Courts Act makes provision to resolve questions of the choice of law arising in the courts from internal conflicts of laws. However, many issues arising under customary laws may be determined outside the statutory courts and tribunals by customary tribunals or customary arbitration. Various judicial remedies are available in respect of, inter alia, environmental matters. The common law basis of the national legal system means that the High Court exercises unlimited original jurisdiction, including supervisory jurisdiction over inferior tribunals and administrative agencies. It is therefore open to any person with sufficient interest (including relevant NGOs) to challenge, by way of an application for judicial review, any decision made by a public agency in the exercise of authority granted by public law, by applying for a prerogative order of certiorari, mandamus or prohibition, or by seeking a declaration or 36

2. Access to Environmental Justice in Ghana (Accra)

injunction on the grounds of unconstitutionality, illegality, irrationality or procedural error. Furthermore, relevant civil actions, for example in tort, may be brought in the High Court, a Circuit Court (where the claim does not exceed ten million cedis) or a Community Tribunal (where the claim does not exceed five million cedis). In practice, however, judicial proceedings are not widely seen or used as providing effective means to assert environmental rights, except for disputes over land. Otherwise such proceedings are rare indeed and senior officials of the Accra Metropolitan Assembly could not recall such a case having been brought against the Assembly. Although Ghana has a well-established, single legal profession it is relatively small; legal practitioners generally engage in general practice and few appear to specialise in environmental law or judicial review. Litigation, especially in the High Court, is widely regarded as an extremely slow, cumbersome and potentially costly process. The Legal Aid Scheme is limited in scope (in terms of persons and cases eligible for representation by generally less experienced lawyers).36 Furthermore, for many civil disputes resort to alternative modes of dispute resolution, especially customary arbitration by or under the aegis of a chief of the community, is widely preferred to judicial proceedings in state courts. Moreover, perhaps more surprisingly, even the criminal law is rarely invoked in Accra to punish and deter environmental art. Criminal laws protecting the environment are found in national legislation (for example, the Criminal Code) and in local bye-laws. Revised Bye-laws made by the Accra Metropolitan Assembly on 23 November 1994 were published, after delay for approval by the Greater Accra Regional Co-ordinating Council, on 1 September 1995.37 These pronounce restrictions, or impose requirements, mainly on a wide variety of environmentally sensitive activities, including the keeping of livestock, waste disposal and cleansing, noise abatement, the growing and sale of crops, vehicle parking, the maintenance of premises and public markets. Criminal sanctions are defined: for example, the indiscriminate dumping of solid or liquid wastes in open spaces, drains, gutters or behind walls is an offence punishable by a fine of up to 200,000 cedis (about £100 at current exchange rates) and/or imprisonment for up to six months. The third Saturday of each month is set aside as an ‘environmental sanitation day’ – ‘Health Day’ – on which ‘all able-bodied youth and adults’ are required to engage in cleaning activities, particularly in ‘target areas’ of the city. These Bye-laws are enforceable by prosecutions in the Regional and Community Tribunals. However, it is evident that such criminal sanctions are largely ineffective. Before the new Bye-laws came into effect generally similar rules were

36

See above.

37

Local Government Bulletin, No. 19. 37

Access to Environmental Justice: A Comparative Study

in force, but prosecutions were infrequent. During the years 1988–95 a total of 7,074 ‘sanitary cases’ were tried in the (defunct) District Courts and (current) Community Tribunals throughout Ghana; of these only 168 were tried in the Greater Accra Region, by far the lowest total for any of the twenty Regions: in contrast, over the same period there were 2,737 such cases in Ashanti Region and more than 1,000 in each of two other Regions. However, of the 168 cases recorded in Accra for the period 1988–95 nearly half (81) had been tried in the first six months of 1995 and 107 more cases were then pending there, indicating the adoption of a much more vigorous prosecuting policy. (In three of the previous years no such cases had been tried in Accra.)38 Even superficial observation in the city indicates that there are very many instances where these Bye-laws are openly flouted with impunity: the frequency of offending by so many must indeed be a factor in deterring prosecutions, which would seem to represent a random form of injustice, especially when opportunities to avoid offending, e.g. by legitimate waste disposal, may be inadequate or inaccessible. Another factor in the low incidence of prosecutions has been the city authority’s lack of sufficient staff trained to investigate, collect evidence and prosecute offenders. (viii) Commission on Human Rights and Administrative Justice The Commission on Human Rights and Administrative Justice established by the Constitution in 1993 is empowered to investigate complaints of fundamental rights violations by public authorities and by private persons and enterprises. While the Constitution offers no direct guarantee of a fundamental right to a safe environment, some of the rights guaranteed are relevant, for example: 24. (1) Every person has the right to work under satisfactory, safe and healthy conditions … 28. (1) Parliament shall enact such laws as are necessary to ensure that – … (d) children and young persons receive special protection against exposure to physical and moral hazards; … (2) Every child has the right to be protected from engaging in work that constitutes a threat to his health, education or development. It would therefore be possible for the Commission to investigate complaints against public authorities or private persons who infringe these environmental rights, although in its first year of operation no such complaint was received in respect of such rights.

38

38

Statistics were kindly compiled by the Statistics Branch of the Judicial Division.

2. Access to Environmental Justice in Ghana (Accra)

(b) Local agencies (i) Local government: structure and powers The Constitution, and subsequent legislation, establishes an elaborate system of participatory, decentralised local government. The constitutional requirement of decentralised government already outlined was implemented by the Local Government Act 1993,39 which recognised the existing Districts, each with a mainly elected Assembly as the highest political authority. Each Assembly has a variety of responsibilities, functioning as a deliberative, legislative and executive authority; it is also the planning authority, ‘responsible for the development, improvement and management of human settlements and the environment in the district’.40 Every Assembly member is required to (a) maintain close contact with his electoral area, consult his people on issues to be discussed in the District Assembly and collate their views, opinions, and proposals; (b) present the views, opinions and proposals to the District Assembly; …41 (As already noted, the Constitution excludes party politics from local government elections.) Every District Assembly elects an Executive Committee which is chaired by the District Chief Executive appointed by the President (with the prior approval of a majority of at least two-thirds of Assembly members voting). Every Assembly must also appoint a Public Relations and Complaints Committee to receive complaints against the conduct of members and staff of the Assembly from members of the public and to make appropriate recommendations thereon to the Assembly. 42 District Assemblies play the key role in development planning as the District Planning Authorities. Each must prepare a district development plan for approval, via Regional Co-ordinating Councils, by the National Development Planning Commission. A person whose property is adversely affected by the operation of an approved development plan may claim redress or compensation from the Authority.43 Moreover, no physical development can be carried out without a written permit granting the Authority’s prior approval (with the ill-defined exceptions of subsistence farming, ‘farming and other activities’ in a settlement with a population not exceeding 5,000 and ‘small-scale vegetable and flower 39

Act 462.

40

S. 10(3)(e).

41

S. 16(1).

42

Ss. 19, 20, 27.

43

Ss. 46, 47, 56. 39

Access to Environmental Justice: A Comparative Study

gardening’). Each Authority has comprehensive and effective enforcement powers and can delegate any of its planning functions to Urban, Town or Area Councils. The procedure for obtaining development permits is prescribed by regulations. District Planning Authorities themselves can make building bye-laws which must provide for drainage and sanitation, the removal or abatement of obstructions and nuisances etc.44 Below the District Assemblies Urban Councils have been established for 34 urban areas (Zonal Councils within four municipal areas), each composed of elected members of the District (Municipal) Assembly, representatives from Unit Committees and local residents appointed after consulting the Presiding Member of the District Assembly, the traditional authorities and local ‘organised economic groupings’. At the lowest level of local government, Unit Committees are composed of ten residents elected at a meeting called by the Electoral Commission and up to five residents appointed after similar consultation. Unit Committees will have various responsibilities to promote citizen participation: to mobilise members of the Unit for self-help and development projects and to monitor such projects; to take all lawful steps to abate nuisances; to organise communal and voluntary work especially regarding sanitation; to provide a focal point for the discussion of local problems and to take remedial action where necessary or make appropriate recommendations to the District Assembly. (ii) Local government in Accra The national programme of decentralisation was adopted from 1988 to promote community participation. The Accra Metropolitan Assembly (AMA) established in 1989 is responsible for many environmental and other services throughout the Accra District; 45 there are six Sub-Metropolitan Districts and, at lower levels, seventeen Town Councils and more than 700 Unit Committees were set up in 1994.46 The AMA has up to 103 members, two-thirds (68) directly elected and up to 34 others – traditional authorities, their representatives or other residents – appointed by the Government ‘in consultation with the traditional authorities and organised productive economic groupings’. The AMA has all the functions of a District Assembly, with additional functions, including many environmental services, for example, to ensure the provision of an adequate and wholesome water supply, in consultation with the Ghana Water and Sewerage Corporation;

44

Ss. 49–68.

45

Local Government (Accra Metropolitan Assembly) (Establishment) Instrument 1989, L.I. 1500.

46

Local Government (Urban, Zonal and Town Councils and Unit Committees) (Establishment) Instrument 1994, L.I. 1589.

40

2. Access to Environmental Justice in Ghana (Accra)

to provide services for the removal of night-soil and all refuse; to regulate trades and businesses which may be noxious, injurious to health or dangerous to the public. The mixed nature of the AMA’s area is shown in its powers to allocate land it owns for farming, ‘to control methods of husbandry’, encourage the planting of specified crops and provide for soil and water conservation. Each Sub-Metropolitan District Council consists of all the elected Assembly members for the area, with other residents appointed by the government. The rather limited functions include public health, public lavatories, the abatement of nuisances, street names and house numbering. One of the key functions of each Town Council is to organise (with relevant organisations) ‘annual congresses of the people’ of the town to discuss its development, including the raising of funds therefor. The Town Council must prepare development plans and its routine functions include the prevention and control of fires, the prevention of floods, bush fires and other disasters, the planting of trees in streets etc. While the constitutional imperatives of decentralisation and participation may be impressive and fully reflected in the legislation, they are very difficult to realise in practice. It is too early to assess the performance of new structures which have only recently been provided for by legislation and which are not yet fully in place: at the time of this research, the unit committees, which will form a vital link in the system, had yet to be set up. Yet these structures assume a fundamental change in the attitudes not only of the officials who operate them but also of the ‘ordinary residents’ who are now expected to take a much more active role in the administration of their own localities. These changes have also come at a time when local services are still in the process of recovering from their virtual collapse as a result of the former economic distress. (iii) Traditional authorities, local customary laws and indigenous culture The historical basis for the origins of the city of Accra and the continuity of the old Ga towns within it have already been mentioned. These are the local manifestations of the general, much valued Ghanaian heritage of traditional local cultures, authority systems and customary laws. The Constitution preserved the existing laws including, as part of the common law of Ghana, the rules of customary law.47 The Constitution also recognises the important role of chiefs in Ghanaian society, guaranteeing the institution of chieftaincy and traditional councils, ‘as established by customary law and usage’.48 Parliament may not pass any law which ‘in any way detracts or derogates from the honour and dignity of the

47

Art. 11.

48

Art. 270(1). 41

Access to Environmental Justice: A Comparative Study

institution of chieftaincy’49 but chiefs in turn are forbidden to take part in active party politics and must abdicate before seeking election to Parliament, although they may be appointed to any public office for which they are qualified.50 The Constitution also establishes Regional Houses of Chiefs and a National House of Chiefs, with important functions relating to the chieftaincy and customary law and with Judicial Committees (of chiefs, assisted by qualified lawyers) to exercise original and appellate jurisdiction in chiefly matters, including succession disputes.51 Traditional cultures and the roles of chiefs therein represent an important resource for Ghanaians in respect of environmental regulation. The shared common language and institutions, customary law and traditional rites of each of the various communities provide a foundation for communal co-operation over matters of common concern. The chiefs (personally or by delegation) provide a representative voice for their communities in wider fora, receive complaints and representations from their people and can offer leadership for social mobilisation at various levels e.g. in prompting local clean-up campaigns or in presenting local concerns to political or administrative authorities. Decision-making by customary arbitration under the general aegis of the chief offers an accessible alternative to the formal courts and tribunals and is widely preferred for a wide range of disputes. In many parts of Ghana the chiefs also retain their traditional control over the use and occupation of land. It is likely that these important chiefly roles survive most effectively today in the rural areas of Ghana and less strongly in the multicultural cities such as Accra. However, the institution of chieftaincy flourishes in the traditional townships of Accra: Ga individuals living elsewhere (even abroad) show their attachment to the town of their birth or family allegiance in their respect for the chief, their participation in appropriate rituals or functions and their submission to customary arbitration of relevant disputes. As in other Ghanaian societies, among the Ga each ‘mantse’ is at the apex of a hierarchical system in his community, with sub-chiefs, elders and ‘House’ (lineage) heads. They are conscious of their potential role as channels of communication, readily and constantly accessible to their communities, while acknowledging that their authority has diminished. Although the ‘Ga-mantse’ has a respected central role, it is not strictly that of a paramount chief as recognised in some other Ghanaian societies. In the past the Ga chiefs claimed authority to control land allocation not only in the towns but also in much of the extensive adjacent hinterland, but now complain that they have been by-passed, without consultation or compensation, when governments have requisitioned land over 49

Art. 270(2).

50

Art. 276.

51

Arts. 271–274.

42

2. Access to Environmental Justice in Ghana (Accra)

the years. The Ga Traditional Council is an influential focus for the expression of opinion. Alongside the chiefly system was a pattern of priestly authority in which specialised priests regulated access to certain resources – notably in Accra the Lagoon priests who controlled fishing by opening and closing fishing seasons. The survival of the extended family systems characteristic of Ghanaian society (and much of African society generally) provide another focus for communal participation, inter-action and decision-making. In the customary laws of Ghana the extended family typically retains a legal role with important functions in relation to family structure and as a property-owning ‘corporation’. The formally recognised ‘head of the family’ exercises significant responsibilities, in consultation with elders representing the different branches of the family. In the urban context, extended families no longer form residential units but family membership is generally cherished, providing access to participation in important social and (family) business occasions, benefits from the ‘family property’ and family support in times of need. Much residential property in the city, especially in the old Ga towns, is owned by extended families as ‘family property’. The family property regime, delineated and developed in the modern period by judicial decisions in the superior courts, gives individual family members rights to participate in management decisions affecting the property, rights which have obvious potential environmental consequences. (iv) Strengthening community management Recognising that it must act as a facilitator to enable low income communities to provide for themselves services and facilities which are beyond its own capacity, the Ghana Government accepted the assistance of the United Nations Centre for Human Settlements (Habitat) to implement a Community Management Programme 1992–97.52 Directed from the Ministry of Local Government and Rural Development, in collaboration with non-governmental agencies and communities, the Programme is intended to strengthen the capacity of rural and urban communities and local government staff and institutions to sustain community participation in local development. Priority has been given to training programmes for community-based workshops which, among other objects, emphasise environmental awareness and protection and communitybased monitoring and evaluation. Early in 1995 the Programme published its first Newsletter (‘So Mu Bi’ – ‘Let us act together’) recording various activities including environmental awareness campaigns, town clean-up exercises, and so on. The Programme gives special emphasis to the important role of women

52

Ghana is one of four countries where such programmes are being implemented, the others being Costa Rica, Ecuador and Uganda. 43

Access to Environmental Justice: A Comparative Study

in the community, recognising their marked solidarity and readiness to practise self-help: many household heads are women. Community Implementation Committees, chosen by the communities themselves, include women members, some of whom are chair-persons. A Seminar on Gender and Human Settlement Problems demonstrated differences between men and women in their approaches to environmental needs. In its early years the Programme was implemented in eleven communities in three other regions, where it appears to have played a significant role in empowering local communities. It is planned to extend the Programme to selected parts of Accra, where it was recognised that environmental concerns were dominant.

IV. THE ROLE OF NON-GOVERNMENTAL ORGANISATIONS The indigenous culture of participation, self-help and mutual support combines with the national policy of encouraging citizen participation to create a favourable climate for the growth of non-governmental organisations. There are very many such associations in Ghana, formed for various purposes. The EPA has listed 300 NGOs concerned with environmental issues. Apart from those which operate mainly in the rural areas, there are several which have had a particular impact in Accra and three of the most successful illustrate, in particular, the value of effective leadership. (a) CENCOSAD One of the oldest relevant NGOs is the Centre for Community Studies Action and Development (CENCOSAD), a research and action agency founded in 1977 to promote models of sustainable development, emphasising participatory approaches to enable communities to identify their problems and find solutions by creating awareness and assisting mobilisation. CENCOSAD emphasises ‘training for empowerment’ and operates as a centre for mutual assistance, networking with sister NGOs and co-operating with Ministries, local authorities and international agencies. Its programme includes special concentration on the Gamashie Urban Development Project, applicable in a sub-district of Accra which contains two of the highly congested old towns forming the old ‘port’ area around seventeenth-century trading forts now used as prisons – Jamestown and Ussher Town. The total population of some 80,000 consists almost entirely of Ga, including fishermen. CENCOSAD compiled a comprehensive report on the demography, health and family life of these communities to provide a database for future planning. Problems which have been recognised as priorities are sanitation, housing, water supply and pavements. CENCOSAD organised a series of meetings to stimulate and facilitate community action and other activities,

44

2. Access to Environmental Justice in Ghana (Accra)

including street theatre, but emphasises a bottom-up approach. The people have set up their own Sanitation Management Committee, which has sub-divided the towns into zones to facilitate the allocation of responsibility for cleanliness. The traditional chiefs and sub-chiefs have been involved in these developments and the two Assemblymen who represent the area in the District Assembly are kept informed of community decisions and proposals. (b) La Mansaamo Kpee Possibly the most prominent NGO in Ghana, La Mansaamo Kpee is the local community action organisation in La Town, which has a population of some 350,000. Labadi was a prosperous Ga town from the mid-nineteenth century, controlling a wide stretch of the coast land from the Ga-Mashie border. The Association was formed in 1979 to improve the quality of life in the town. In principle every resident is a member but there are 1,500–2,000 active members of whom about 100 attend the weekly meetings. The main aims of the association have been to improve sanitation, health and education. It has built public toilets and bath-houses, organised rubbish clearance and arranged for regular collections and clean-up campaigns, tree-planting, and so on. A regular clinic has been established with special care for child and maternity welfare. A vocational training centre set up for street children now trains 120 students for three year periods, to professional qualifications, in dress-making, carpentry and masonry. 250 children attend a school for nursery to primary age and a junior secondary school is in preparation. Women of the community meet regularly in their own ‘Women in Development’ section, which has also received funds to assist members in trading activities. The Association has its own office building and community centre, has published its own occasional (formerly quarterly) newspaper and has now set up its own one-branch Bank, which belongs to the community with the Association as the major share-holder. The success of the Association is obvious in the clean and well-tended appearance of the town. Its success has enabled it to attract grants and loans from donors in Ghana and beyond, including the African Development Bank, churches and foreign governments. The affairs of the Association are conducted by a small Executive Council and five committees, but there is a strong emphasis upon participation; members from all parts of the community participate in the regular general meetings. (c) Association of Vegetable Growers One of the main success stories of environmental management in Accra is one of individual initiatives by poor immigrants (from other parts of Ghana and other countries) who sought to generate income by using waste land and other resources. Their efforts and problems as small-scale vegetable farmers who had developed marginal urban land by recycling materials, tools and 45

Access to Environmental Justice: A Comparative Study

water led them to form the Association of Vegetable Growers (AVG). Seeking to alleviate their own poverty by supplementing their small incomes from poorly paid employment, they developed waste land into productive market gardens, improving the city environment and recycling sullage (grey water) from open drains, solid waste for compost and metal and plastic waste for tools, fencing etc. A published case-study reported that the produce from these gardens, sold profitably to customers directly or via market women, now supplies the city with 90% of its vegetables.53 Most of the market gardeners had occupied land without seeking authority and they formed their Association in 1987 as a reaction to a series of evictions by landowners. The Association has been successful in representing the interests and proposals of the gardeners and interacting with the Ministry of Agriculture and other agencies; in particular, it was instrumental in securing changes in the law and practice affecting land tenure (discussed below); in obtaining funding from the African Development Bank to enable farmers to buy seeds and tools; in obtaining the help of national service officers; and in establishing an annual award scheme. Although all these gardeners are members of the Association, it was initially difficult to mobilise them all and then to sustain their participation, but a recent scheme of zoning membership in residential areas is reported to have been successful. The case study concluded: Urban market gardening has opened a window of opportunity in the way the urban poor can engage themselves and self-manage their own projects using urban waste resources. … The major strength of urban market gardening in Accra is the sustainable impact it has on the environment. Overgrown by-ways and marginal lands are transformed under vegetable cultivation into decent and beautiful sights …54 (d) Accra Sustainable Programme A decisive influence upon the encouragement of wider participation in the formulation of policy initiatives is the Accra Sustainable Programme, set up with support from international agencies. This culminated in the ‘Consultation on Environmental Issues for Managing the Sustainable Growth and Development of Accra’ (10–16 May 1995), which produced the Accra Declaration. Sponsored by Habitat and the UNDP, this meeting brought central and local government agencies, traditional authorities, community based organisations and the private sector together to agree upon the need for ‘a new partnership

53

Annarbah-Sarpei, A.J. and Lamptey, G.O., Waste Recycling for Market Gardens in Accra: a Case Study (Mega-Cities/UNDP Studies on the Environment and Poverty, Accra, 1994).

54

Ibid., 37.

46

2. Access to Environmental Justice in Ghana (Accra)

approach to city management’ between these various interests, recognising that serious institutional impediments and a lack of effective co-ordination prevented effective policy implementation. To improve co-ordination the Accra Declaration recommended the establishment of working groups on key environmental issues, representing government agencies, localities, the private sector, traditional authorities, community groups and interested individuals. By September 1995 working groups had been established on the issues recognised as overall priorities: sanitation (solid and liquid waste) and Korle Lagoon. Further working groups were recommended on (a) informal sector manufacturing and services, (b) environmental health, (c) markets and lorry parks, (d) flooding and drainage and (e) unplanned settlements. Issues to be addressed in due course included traffic congestion, vehicular/pedestrian conflicts and sand-winning, quarrying and coastal erosion. The Accra Sustainable Programme is seen as a forum to facilitate continuing participation, integrated with city management but sufficiently independent ‘to encourage a sense of ownership and participation by the city’s partners in the public, private and community sectors …’. The Programme ‘focuses its resources on building up a core of dedicated interdisciplinary professionals from levels of government, the private sector and community organisations who will together support the planning, co-ordination and management of the city’s future growth and development in a sustained manner’.55

V. GATEWAYS TO PUBLIC PARTICIPATION: RIGHTS, DECISIONMAKING AND PROCESS (a) Water The provision, distribution and conservation of the supply of water for public, domestic and industrial use is a main function of the Ghana Water and Sewerage Corporation (GWSC), set up in 1965.56 The use of water except by limited manual extraction requires permission from the Water Resources Commission, which may require an EIA, including a prior public hearing if an application provokes ‘adverse public reaction’.57 The Corporation is also empowered to set standards for water supply ‘in collaboration with appropriate authorities selected for the purposes of this Act by the President’.58 The Environmental Protection Agency

55

Accra Declaration 1995, paras 3–5.

56

Ghana Water and Sewerage Corporation Act 1965, Act 310.

57

Water Resources Commission Act 1996, Act 522; Water Use Regulations 2000, LI 1692.

58

S. 2(e). 47

Access to Environmental Justice: A Comparative Study

now also has responsibility to prescribe standards and guidelines relating to the pollution of water. A recent survey indicated that ‘virtually all of the households in Accra and Tema depend on the piped water system, either directly or indirectly’.59 In Accra, of the sample surveyed, 98.5% obtained drinking water from piped sources: 34.7% by indoor piping, 30.9% by private standpipe, 9.5% by communal standpipe and 23.4% from water vendors. More than 90% of households had access to water either within the house compound (57.1%) or within 50 metres (33.3%). Nevertheless, the water supply is unreliable and irregular. The estimated water demand (76 million gallons per day (MGD) for Accra and Tema) exceeds estimated production (60 MGD), an additional 30% of which is estimated (by the GWSC management) to be lost through leakages. Furthermore, actual water production supply is often disrupted by failures of obsolete equipment at the two main treatment works. 66% of households reported regular daily interruptions of supply throughout the year, affecting low, medium and high class residential areas. As a result, although the quality of piped water is generally good, 96% of households store water, in a variety of containers, with consequent risks of contamination. Yet only 11.2% of Accra households, mainly in high class residential areas, boil or filter drinking water. Apart from unreliability, public dissatisfaction over water supply centres on water payments. The removal of subsidies, under the Economic Recovery Programme, has caused regular and substantial increases in water payments, which are charged on various bases. In Accra 41.1% of households have metered supplies, and 18.9% pay a fixed monthly rate but 38.7% buy water by the bucket from vendors, paying up to four times as much as those who buy directly from GWSC: ‘The cost of purchasing water from a vendor could easily come to 10% of the monthly income of a low income household’.60 Moreover buckets are also used for washing and other household purposes, with a high risk of contaminating drinking water. Bacteriological analysis of water samples in the recent survey showed that in Accra 12% of tap water samples exceeded WHO guidelines on faecal coliforms and 66% exceeded WHO guidelines on faecal streptococci, as a result of contamination within the distribution system; samples of stored water were even worse, 78% showing increases in faecal coliform contamination compared with tap water. Such in-house contamination may be relevant to the high incidence, especially in low income households, of infantile diarrhoeal diseases.

59

Benneh et al., above n. 5, at ch. 2, p. 11.

60

Ibid., at 18–19.

48

2. Access to Environmental Justice in Ghana (Accra)

The recent study concludes that ‘Poor households in GAMA get the least water, with the most effort, at the highest price, and it is more likely to be contaminated too’.61 The legislation does not provide any specific requirement or opportunity for consultation by GWSC with its customers nor provide machinery for the resolution of disputes or complaints. The recent survey suggests that customers may express their dissatisfaction by the non-payment of bills; high income householders may defy GWSC to cut off their supplies and low income households may resort to neighbours or water vendors if their supplies are cut. (b) Air Outdoor air pollution is not currently considered to present a major problem in Accra. Ambient air quality standards were recommended by the former Environment Protection Council in 1977 (a responsibility which has passed to its successor the Environment Protection Agency) and previous studies have found that particulates and sulphur dioxide concentrations in residential areas are below the recommended limits. However, a recent survey observes that forms of pollution which make only insignificant contributions to monitored ambient air concentrations may cause high levels of exposure e.g. domestic pollution from cooking fires. Air pollution by traffic fumes may also cause high levels of exposure to certain residents, for example those at schools situated on main roads and street traders. Accra households reflect the ‘energy ladder’ identified in other urban locations: low income households use biofuels for cooking, high income homes preferring gas and electricity.62 In the recent Greater Accra sample, charcoal was the principal cooking fuel in 68% of all households, but 75.6% of low income households, liquid gas in 13.8% of all but only 6.1% of low income households, kerosene in 6% of low and medium income households and electricity in 19.6% of high income, 2.4% of low income, homes; furthermore, 88% of households use charcoal as one of several fuels. Moreover, in half the low income homes cooking took place wholly or partly indoors although only a quarter of them have separate kitchens (which the majority of high and middle income households have).63 A recent sample monitoring of women in Accra found that their exposure to cooking fires created health risks for them (and possibly for their young children, if they were generally present during cooking), with ‘disturbingly

61

Ibid., at 26.

62

McGranahan, G., and Kaijser, A., Household Energy: Problems, Policies and Prospects (Stockholm Environment Institute, Stockholm, 1993), cited by Benneh et al., above n. 5, at 26.

63

Ibid., ch. 7, 7.1.1–2, pp. 61–65. 49

Access to Environmental Justice: A Comparative Study

high’ levels of respirable particulates and harmful carbon monoxide exposure especially among charcoal users.64 A fuller study suggested that the use of pump spray insecticides in the home also deserved further study as a possible cause of respiratory problem symptoms.65 A steady growth in road traffic has led to increased congestion, especially at particular bottle-necks for lengthy periods at certain times daily: slow-moving tail-backs cause pollution by fumes and lead deposits along some residential streets and adjacent to markets, bus stations and lorry parks. This must impact disproportionately upon the numerous itinerant street-traders (including many children) and pavement vendors, who supply a useful service to vehicle occupants but spend their working days directly exposed to such pollution. Parts of Accra are also afflicted by continuous stench, particularly from the heavily polluted lagoons, and by intermittent large-scale burning of rubbish on waste sites adjacent to offices etc. An ineffectively drafted Bye-law defines a restricted offence committed by ‘A person who … indiscriminately … burns solid waste in one’s compound’;66 but this is difficult to enforce (what does ‘indiscriminately’ mean?) and, in any event, does not purport to apply, for example, to burning on open land. However, it may be concluded that the graver continuing problems of air pollution arise in the home, particularly from fuel use in low income households. This problem cannot be cured by self-help, economic changes being required to remove the constraints which induce reliance upon charcoal as a principal fuel, to facilitate the adoption of alternative, cleaner fuels. However, some measures of self-help could alleviate the effects of pollution, e.g. cooking outside and away from children. (c) Land Accra exhibits a complex pattern of land regulation to which a variety of laws contribute. The historical foundation, and to a considerable extent the current law, is still to be traced in the indigenous local Ga customary law, under which the power of the respective ‘stools’ to control the allocation of land to families and individuals was a vital element of chiefly authority. Under the original pattern of settlement such authority extended beyond the coastal towns over appropriate areas of the hinterland, where associated villages were established. But whereas a subject of a stool could occupy an undetermined piece of vacant, rural stool land for farming purposes without express permission, an express

64

Ibid., 7.1.3–5, pp. 65–72.

65

Ibid., ch. 8, 8.3.2, pp. 85–88.

66

AMA (Solid and Liquid Wastes Management) Bye-laws 1995, para. 10(e), Local Government Bulletin No. 19, 176.

50

2. Access to Environmental Justice in Ghana (Accra)

grant was needed to occupy a defined piece of building or urban land, for example, ‘outskirt’ land on the edge of a town.67 (i) Land tenure in Ghana In 1962 a leading authority emphasised that tenure of all lands in Ghana is regulated by customary law, and any alienation thereof must be in accordance with customary law. … The only law governing land tenure in Ghana, with particular reference to transfer of title, is the customary law.68 That statement now requires considerable qualification, although customary law continues to provide an important source of land tenure rules. Thus, only a stool, representing the whole community, has authority to alienate land under its control so as to release it wholly from customary obligations; the individual occupier cannot do so, even when land is acquired under powers of compulsory purchase for national or public purposes. The stool is then entitled to receive the compensation payable, although bound by custom to pay a fair share to the individual whose occupation has been thereby terminated.69 The customary-law principle that ownership of land by a paramount or head stool is conditional upon (subordinate) ownership by a sub-stool or quarter was demonstrated in litigation between two stools in James Town, which reached the Judicial Committee of the Privy Council on final appeal, over compensation for land acquired for the Accra Water Works.70 The complexity of land law in Ghana is indicated by the fact that the Land Title Registration Law (discussed below), under which the compulsory registration of titles in parts of Accra is now proceeding, provides for the registration of no less than five categories of ‘proprietors’ of land, several of whom are likely to co-exist in respect of any particular plot: (a) ‘the allodial owner’, who holds an unrestricted title under customary law and may be a stool, sub-stool, family or individual; (b) ‘the customary law freehold’ owner, whose title is subject only to that of the allodial owner; (c) the (common law) ‘freehold’ or lesser estate or interest;

67

Ollennu, above n. 2, at 30–33, citing Oblee v Armah 3 WALR 484.

68

Ibid., 119.

69

In the matter of Land acquired at Accra for Public Works Department Workshop, Nii Noi Dowuona IV & Other Claimants 1959 GLR 163.

70

Akwei v Ababio IV (1927) PC 1874–1928, 99, discussed by Ollennu above n. 2, at 27–8. 51

Access to Environmental Justice: A Comparative Study

(d) ‘leasehold interest’ for a term of years of which more than two years are unexpired; (e) ‘lesser interest’ under contractual, share cropping or other customary tenancy. The general significance of customary land law for the purposes of this study is that while, after decades of encrustation by judicial decisions, it is no longer an entirely non-technical form of law, it remains in essence accessible to the people, generally familiar at least in its main principles and available to be invoked in discussions and informal decision-making as well as in customary arbitration proceedings. The stools, embodying the collective will of their communities and protecting its interests, with their councillors, are important and accessible guardians of community interests. Legislation has intervened to regulate the use of stool lands and their revenues. The Constitution itself recognises the vesting of ‘all stool lands’ ‘in the appropriate stool on behalf of, and in trust for, the subjects of the stool in accordance with customary law and usage’.71 However, revenues from stool lands are collected by the Administrator of Stool Lands, who retains 10% for his expenses: 55% of the remainder goes to the local District Assembly and the rest to the respective traditional authority, including 25% to the stool for its maintenance.72 The Constitution also provides machinery for consultation, establishing an independent Lands Commission, with Regional Commissions, and requiring the Administrator and Regional Lands Commissions to consult with the stools and other traditional authorities ‘in all matters relating to the administration and development of stool land’ and to ‘make available to them all relevant information and data’. The Lands Commission and the Administrator must ‘co-ordinate with all relevant public agencies and traditional authorities and stools in preparing a policy framework for the rational and productive development and management of stool lands’.73 (ii) Access to land in Accra Within Accra much land has been alienated to government agencies and public bodies or in privately owned title. It is remarkable that the considerable growth in population of the city has been accommodated without the conspicuous spread of peripheral squatter settlements seen in other African cities (although there are relatively small squatter settlements within the city). The increased population has evidently been accommodated in a variety of ways over the years: for example,

71

Art. 267(1).

72

Art. 267(2),(6).

73

Arts. 258–265, 267(7),(8).

52

2. Access to Environmental Justice in Ghana (Accra)

by the planned development of new areas such as Adabraka, founded in 1910 to improve sanitary conditions after an epidemic of bubonic plague in old Accra, and in recent years by increasingly high rates of multi-occupation. Migrants arriving in Accra from other parts of Ghana or even from neighbouring countries appear to obtain access to accommodation in various ways. If they are Ga, from the nearby rural areas, their family links with one of the Accra stools will probably draw them towards a welcoming, related community which will find space in an existing house or compound already in multi-occupation. But most migrants are from other, diverse communities: some will have helpful relatives already in the city, others will informally seek their first home in the city through networks of contacts or by simple direct enquiry. An earlier study showed that in the 1970s migrants were attracted to Adabraka by the relative ease of renting rooms among a largely transient community: rental was effected through informal networks or merely by making enquiries along a street. In areas where a stool exercises effective authority customary law requires a newcomer to make a formal approach to the chief for acceptance and support, but the Gbese Mantse, who has jurisdiction over Adabraka, has no sub-chief there and a large area to oversee, so this custom has lapsed. The structure of communal village life was reproduced in large, shared town houses, not necessarily for economic reasons: The fact that a woman lives in one room with three children and her husband, in a fly-infested compound with graffiti on every available wall, need not imply poverty.74 There is considerable confusion and uncertainty over the nature and scope of existing land rights, and this is one subject on which extensive resort is made to the judicial system as the obvious legal gateway, although apparently in effect to register disputes, without any real expectation of resolving them: for this is not a gateway which offers a hopeful prospect of achieving any early resolution of disputes. It is officially acknowledged that there are now some 15,000 pending land cases in the Accra Registry of the High Court, a total clearly far beyond the number which the resources of lawyers and the court could bring to the point of judgment even over many years. At the same time a process of compulsory registration of land titles is proceeding under the Land Title Registration Law 1986. Commencing in Accra, this is progressively replacing the application of the Land Registry Act 196275 which had a number of weaknesses, productive of litigation. During this research further areas of Accra were declared by the Land Title Registry to be new ‘registration

74

‘Adabraka and its People’, in Pellow, D., Women in Accra (Algonac, Reference Publications, 1977), 108.

75

Act 122. 53

Access to Environmental Justice: A Comparative Study

districts’, for the provisional registration of titles; any person claiming to be the proprietor of land or of any interest in land in the district was required to enter a claim, with a closing date for applications. The Law provides for the compulsory settlement of disputes, referred by an interested party or by the Registrar, by a Land Title Adjudication Committee, subject to appeal to the High Court; no action concerning land in a registration district can be commenced in a court until the procedures under the Law have been exhausted. The Adjudication Committee, of three members chaired by a lawyer, operates in a non-technical way, seeking to reach an acceptable settlement before giving judgment where necessary, but its proceedings are designated as judicial proceedings and lawyers may represent parties before it. After determining a dispute or claim the Adjudication Committee completes an ‘adjudication record’ of which notice is then officially published; any person claiming an interest in the land affected may then, within thirty days, notify an objection to the record which the Committee must then determine, after which the record becomes final. Apart from the fact that land registration involves complex processes, including surveys, which are likely to be slow and difficult, especially in the circumstances of a congested, old city with many informal and unplanned developments, it is officially recognised that, although the process of registration is compulsory under the Law, in practice many proprietors ignore this opportunity of access to a secure title for their land and do not apply for registration. At some future time this will surely cast doubt upon the purported finality of the registration operation and precipitate new types of disputes over access to land. (iii) Access to land: self-help as a gateway to law reform The development of the Association of Vegetable Growers has already been outlined. In gardening on marginal waste land gardeners had neglected to seek either the consent of the landowners or the permission of the local authority which was required by the Bye-laws. In consequence there were frequent evictions, without prior notice. However, the newly formed Association was successful in persuading the landowners and city authorities to agree to give early prior notice of evictions. The Association was later notably successful in securing amendments to relevant legislation in order to protect the interests of its members: The most significant victory the Association has won is in getting prohibitive and restrictive ministerial regulations concerning land use, sanitation, marketing and the damming of water channels changed.76

76

54

Annorbah-Sarpei and Lamptey, above n. 53, at 33.

2. Access to Environmental Justice in Ghana (Accra)

This was achieved because: By fighting for the recognition of market gardeners and their legitimate role in the functioning of the city, the Association was able to enter into policy dialogues with the city authorities. Their dialogues have enhanced collaboration between the city authorities and the Association. They have also led to new municipal attitudes.77 As a result, not merely have the interests of the gardeners been recognised in practice but relevant subsidiary legislation, in the form of ministerial regulations, has been amended. Thus the former unfavourable regulatory provisions in the Local Government Ordinance 1953, s. 51(lv), the Local Government Act 1961, Act 54, and PNDC Law 207 of 1988 (which empowered District Assemblies to provide by Building Bye-laws for, inter alia, ‘the regulation of gardening’) have been replaced by more favourable provisions in the Local Government Act 1993, Act 462, s. 51(3), which, as already noted, exempt ‘small-scale vegetable and flower gardening’ from the normal requirement that prior permission for any development be obtained from the District Planning Authority. However, some limited regulation on the growing and sale of crops in Accra is imposed by bye-laws: a gardener must register his plot with the Medical Officer of Health, unless it is within his own premises, and may no longer water crops with drain effluent (the supply of piped water for gardeners in some areas has been negotiated by the Association). Crops (defined to include lettuce, tomatoes, onions, oranges, bananas or other produce ‘likely to be eaten in an uncooked state’) must be sold from markets, stalls or kiosks, and must not be displayed on the road or pavement.78 (d) Waste disposal Waste disposal presents continuing and intractable problems of environmental management for the city. The law vests exclusive responsibility for waste management in Accra in the Accra Metropolitan Assembly, its registered agents and contractors, to whom every household, industry, offices and other premises are required to make solid and liquid waste available for collection, treatment and disposal at designated sites. Fees are payable for waste disposal and it is an offence to receive services from unauthorised persons or to refuse to allow authorised persons to collect waste.79

77

Ibid.

78

AMA (Growing and Sale of Crops) Bye-laws 1995, Local Government Bulletin No. 19, 190–191.

79

AMA (Solid and Liquid Wastes Management) Bye-laws 1995, ibid., at 175–176. 55

Access to Environmental Justice: A Comparative Study

The Waste Management Department (WMD) of the Assembly is responsible for the collection and disposal of solid waste, including night soil. The economic crisis of the late 1970s caused the service to deteriorate steadily, reaching a crisis in 1985 when the city was ‘engulfed with refuse heaps, drains and gutters choked and public septic tank latrines over-flowing’.80 Since then WMD has received additional resources, including vehicles supplied by overseas aid, but it can still collect only about half of the city’s waste. Currently WMD has franchised 35 private companies to collect liquid and solid waste from parts of the city, fees for this service being payable by occupiers and fixed on a scale under which middle income areas pay operating costs, high income areas slightly more (up to 10%) and low income areas less. In some areas companies are contracted and paid by the AMA itself. WMD still has a relatively small staff with a high rate of turnover attributed to poor conditions of service. Home collection of waste is available to only a minority of (generally wealthier) households; most residents deposit waste at collection points or official dumps but a substantial minority (perhaps 10%) deposit waste at unauthorised sites. Environmental damage occurs through the open accumulation of waste in homes, awaiting collection or dumping, the unofficial dumping of waste, and even through official dumping which is mainly at a few old ‘landfill sites’ (open dumps) which have exceeded their capacity and need urgent replacement, but WMD finds it difficult to open new sites due to the shortage of accessible land. The Ghana Water and Sewerage Corporation (GWSC) manages the Central Accra Sewerage System, which was designed in 1971 but remains uncompleted due to economic constraints. At present the system extends only to the central business district and some inner city residential areas; it is under-utilised, with only some 500 connections, including some public toilets. This under-use has been attributed to a lack of public awareness of the facility, the high connection fees charged and the 35% surcharge then payable on monthly water bills. Sewage is discharged untreated through a sea outfall. Local sewerage systems, with treatment plants, are maintained by a number of public bodies including ministries, the military, hospitals and the University of Ghana. The result is that only about a third of city households have flush toilets, most of the remainder using pit latrines although some 20% use pan or bucket latrines, which require frequent emptying. Furthermore, a recent sample study showed that more than 70% of households share toilet facilities, 41% sharing ‘communal facilities open to the whole neighbourhood’. The lack of adequate access to toilet facilities results in a significant incidence of defecation in the open, particularly but not only by children, with consequent health hazards.81

80

Chief Mechanical Engineer, Waste Management Department, 1992, Benneh et al., above n. 5, 38.

81

Ibid., ch. 3.

56

2. Access to Environmental Justice in Ghana (Accra)

Accra Bye-laws impose responsibility for the disposal of waste water on individual property owners and occupiers. They require every ‘household, owner or occupier of premises’ to connect a covered concrete ‘linkage of waste except sewerage’ to a main drain or culvert, where available, and ‘to build a soakaway to take care of waste water’ where a main drain is not available. Contravention of this law is an offence but one responsibility for which may be difficult to establish.82 WMD recognises that achieving a satisfactory system of waste disposal demands the active participation of the public. However, in the waste management system there is no formal provision for consultation by WMD or GWSC with residents. WMD relies upon the members of the Assembly to represent the interests and concerns of residents, although it has a Customer Relations Officer who liaises with community groups and receives complaints. Official efforts to stimulate public participation have been disappointed – for example, by poor attendances at public rallies – but WMD has actively encouraged the interest of community groups with environmental concerns, some of which have grown out of existing social or sporting clubs or churches. Where a well-established community organisation exists WMD has devolved responsibility for waste collection to it, as in the case of the La Mansaamo Kpee.

VI. CONCLUSION As a capital city and national commercial centre, subjected to rapid urbanisation and still seeking to recover from the trauma of past national economic disasters, Accra faces an environmental crisis not untypical of similar African cities. However, a number of distinctive features offer possibilities of more effective access to environmental justice. These include the peculiar strengths of indigenous Ghanaian communities, including the potential for communal action on matters of common concern; the contemporary national political culture, emphasising citizen participation and even providing for it in some relevant legislation, such as that on environmental protection and decentralisation of government; and the relative absence of large-scale ‘squatter’ settlements. While the formal judicial system offers various pathways for the resolution of environmental problems, judicial review and civil proceedings are seldom invoked by individuals (except as a means of registering land disputes) and the police and local authorities lack the resources to enforce the available criminal sanctions for widespread offences of environmental degradation. Alternative modes of dispute settlement,

82

Accra Metropolitan Assembly (Drainage of Waste Water) Bye-laws 1995, Local Government Bulletin No. 19, p. 201. 57

Access to Environmental Justice: A Comparative Study

especially customary arbitration, are more commonly used but not usually for environmental issues. Citizen action through effectively led NGOs has proved fruitful in some localities and on some issues, as in the notable examples of La Mansaamo Kpee and the Vegetable Growers’ Association, which even achieved the amendment of subsidiary legislation on access to land. The need and scope for effective community action by citizens’ associations on other issues (water supply, waste disposal, air pollution) is evident.

58

Chapter 3

ACCESS TO ENVIRONMENTAL JUSTICE IN INDIA’S GARDEN CITY (BANGALORE) Amanda Perry-Kessaris 1

B

angalore, capital of the southern Indian state of Karnataka, has long been known as the ‘Garden City’. As compared to many cities in India, it still deserves that title. But in recent decades, the city has been placed under strain by a tremendous growth in population.2 The key environmental issues facing Bangalore are access to land; the provision of infrastructure to residential areas; water supply and sanitation; air pollution; and solid waste disposal. These issues have been dealt with at length elsewhere,3 so after a brief survey of gateways and obstacles to environmental justice in Bangalore, this chapter will focus primarily on the topic of access to land. As we shall see, access to land is a subject intimately connected an ever more pressing theme in Bangalore: economic liberalisation – the opening of the economy to the private sector generally, and especially to foreign investors: We have seen a significant transformation of Bangalore with the emergence of the dominant narrative of Bangalore as the silicon valley of India, a

1

PhD, Senior Lecturer, School of Law, Birkbeck College, London: . Amanda Perry-Kessaris is Senior Lecturer in Law at Birkbeck College, University of London, where she specialises in law and economic development in South Asia.

2

Perry, A., and Anderson, M.R., Access to Justice in Bangalore: Legal Gateways in Context, SOAS Law Department Working Paper No. 12 (SOAS, London, 1996) (‘Perry and Anderson’).

3

Perry and Anderson; Perry, A., ‘Law and Urban Change in an Indian City’ in Fernandes, E., and Varley, A., (eds), Illegal Cities: Law and Urban Change in Developing Countries (London, Zed Books, 1998); Perry, A., ‘Sustainable Gateways to Environmental Justice’ in Pugh, C., (ed.), Sustainable Cities in Developing Countries (London, Earthscan, 2000); Perry, A., ‘Lawyers in Urban Development: Providing a Means to an End?’, Law, Social Justice and Global Development 2 (2001), .

Harding (ed.), Access to Environmental Justice: A Comparative Study, 59–87 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

symbol of the emergence of India as an IT superpower, and as a global city working in virtual time with the US.4 In 1995, interviewees in the city noted that public attention to environmental issues had begun in earnest that year, in direct response to the increasingly investment-oriented language of municipal and state government bodies in Karnataka. There were suggestions that investors, particularly foreign ones, are to blame for rising accommodation costs; are causing displacement of traditional agricultural employees; and might get preferential access to utilities.5 The focal point for this chapter is to question to what extent can, did and do Bangaloreans use legal gateways to slow down or reverse the decline – to redress the balance between economy and environment.

I. AN ANATOMY … OF PUBLIC RESPONSIBILITY Much of the responsibility for the protection of Bangalore’s environment lies in two locations: the various municipal government and development bodies, and the Pollution Control Board. (a) Municipal Corporation General responsibility for running Bangalore falls to the elected local government: the Bangalore Municipal Corporation (Corporation) or Bangalore Mahanagara Palike. The functions and powers of the Corporation are outlined in the Karnataka Municipal Corporations Act, 1976. These include cleaning and lighting streets, collecting rubbish, abating nuisances and maintaining parks.6 (b) Development Authority The Bangalore Development Authority (the Development Authority) is a State Government-appointed body set up under the Bangalore Development Authority Act of 1976.7 Its main role is to develop Bangalore by planning a new area; acquiring the necessary land; equipping it with water, roads, electricity and underground

4

Alternative Law Forum, Of Master Plans, Laws and Illegalities in an Era of Transition (Bangalore, Alternative Law Forum, 2003) , 1.

5

Perry and Anderson, quoting Interviews and Indian Express, Bangalore.

6

Ss. 58 and 59, Karnataka Municipal Corporations Act, 1976, Act 14 of 1977, most recently amended by Act 31 of 2001. See the Bangalore Municipal Corporation website at .

7

Act 12 of 1976, most recently amended by Act 22 of 2000. See the (very limited) Bangalore Development Authority website at .

60

3. Access to Environmental Justice in India’s Garden City (Bangalore)

drainage; and then auctioning off the plot either with or without first building on it.8 So long as areas in development remain under its control – and, as we shall see, this can be for a long time – the Authority performs the function of the Corporation.9 It acts as the local planning authority for Bangalore.10 (c) Industrial Areas Development Board The Karnataka Industrial Areas Development Board (KIAD Board) was established by the Karnataka Industrial Areas Development Board Act of 1966 (KIADB Act).11 Its role is ‘to promote and assist in the rapid and orderly establishment, growth and development of industries and to provide industrial infrastructural facilities and amenity in industrial areas’. It does this by acquiring land for industrial areas and developing it with facilities such as roads, water and power.12 As we shall see below, the Board has taken on a new prominence in recent years. But at the same time, information about it seems to have become no easier and perhaps even more difficult to find. For example, its website was for a time closed down without explanation.13 However, an independent review of the KIAD Board in 2001 concluded that: Given the specialized nature and strategic importance of the of activity, legal issues involved in land acquisition, as well as the fact that the performance of the corporation has been generally good, we recommend the continuation of [Board].14 Before moving to consider specialist agencies, the existence of the Bangalore Metropolitan Region Development Authority should be noted. This poorly regarded State Government-appointed body was set up to coordinate planning

8

S. 14, Bangalore Development Authority Act 1976; and Bangalore Development Authority (Allotment of Buildings under Self-Financing Housing Scheme) Rules, 1982 (Promulgated under Notification No. HUD 99 MNX 82).

9

Ss. 28A and 29(1), Bangalore Development Authority Act 1976. See also Alternative Law Forum, above n. 4, at 32–33.

10

S. 81(B), Karnataka Town and Country Planning Act 1961; and s. 32(1), Bangalore Development Authority Act 1976.

11

Act 18 of 1996. Last amended by Act 19 of 2000. See also Alternative Law Forum, above n. 4, at 33–34.

12

S. 13, Karnataka Industrial Areas Development Act 1996; Alternative Law Forum, above n. 4, at 168.

13

See .

14

Indian Institute of Management Bangalore, Executive Summary: Final Report on Functional Review of the Department of Commerce and Industries (Bangalore, Indian Institute Management, 2001) , 3. 61

Access to Environmental Justice: A Comparative Study

and development activities among local bodies listed above.15 Also, from 2003 the State Government is able to appoint Industrial Areas Authorities which will exercise municipal powers similar to those of the Corporation in specified areas.16 (d) Specialist agencies A range of specialist agencies exist at the state and national level, dealing with matters such as factory inspections, transport and so on.17 The most important such agency is the Karnataka State Pollution Control Board (KSPCB), constituted under the Water (Prevention and Control of Pollution) Act of 1974. Its members are appointed by the State Government and, along with the Central and other State Boards, it is responsible for implementing the most important Indian environmental legislation.18 It undertakes public awareness campaigns, issues pollution licenses, monitors general and firm-specific pollution levels, and prosecutes them where necessary.19 By March 2002, the KSPCB had since its inception filed 227 criminal cases against polluters of air and water. Of these, only 108 (48%) had been decided. Worse still, of those decided cases, the Board had won just 56 (52%). More successful results were obtained in relation to closure orders. It had issued 246 closure orders for water and air pollution by 2002. Resistance to such orders seems to have been low, because just 80 of these orders had been appealed by the industry concerned. Also, disposal of these appeal cases seems to be relatively swift, with 89% (71) having been decided, 94% of them (67) in favour of KSPCB.20

15

Established under the Bangalore Metropolitan Region Development Authority Act 1985, Act 39 of 1985, it has a reputation for inactivity, and has been described as ‘the fifth wheel on the coach’: Perry and Anderson, 7. See also Alternative Law Forum, above n. 4, at 89–93.

16

These may be created by the Governor of the State where it seems appropriate due to the size and nature of a development: ss. 364(A) and (B), Karnataka Municipalities Act 1964, as amended by s. 3, Karnataka Municipalities (Third Amendment) Act 2002, Act 24 of 2003, .

17

See Perry and Anderson.

18

S. 4, Water (Prevention and Control of Pollution) Act 1974. The KSPCB is responsible for enforcing the Water (Prevention and Control of Pollution) Act 1974; the Air (Prevention and Control of Pollution) Act 1981; Water (Prevention and Control of Pollution) Cess Act 1977; and various other Acts: Annual Report of the KSPCB 2000–2001, p. 1, .

19

Annual Report of the KSPCB 2000–2001, p. 14.

20

Ibid., at 81.

62

3. Access to Environmental Justice in India’s Garden City (Bangalore)

In Bangalore, the KSPCB shares responsibility for the quality of water supply with the Bangalore Water Supply and Sewerage Board (BWSSB).21

II. … OF LEGAL GATEWAYS Civil society representatives can respond to environmental harm by using legal gateways, such as litigation; illegal methods, such as rioting and damage; or extra-legal gateways, such as lobbying, media attention, and demonstrations. Bangalore saw several instances in the late 1990s in which violence and damage to property have been used, in particular against foreign investors such as Kentucky Fried Chicken and Monsanto, who were perceived to present a threat to the environment. However, interviewees in 2003 agreed that such incidents were caused by a minority and were unlikely to recur.22 Legal and extra-legal methods are the norm. Environmental harm may be caused by private-sector individuals and companies, or public-sector bodies. While public-sector harm can only be dealt with by direct action against the responsible public-sector body, private-sector harm can be dealt with either by direct action against the responsible private-sector body, or indirectly, by taking action against a public-sector body which ought to have prevented the damage. As the capital of a State, and capital of a District (Bangalore Urban), Bangalore is home to three levels of courts: the Magistrates Courts, District Courts and High Court, from which appeals go to the Supreme Court in Delhi.23 (a) Criminal Criminal law offers two gateways for citizens to achieve environmental justice. First, a criminal complaint of ‘public nuisance’ can be made to the police or a

21

The Bangalore Water Supply and Sewerage Board (BWSSB) is a state-appointed body established by the Bangalore Water Supply and Sewerage Board Act 1964, Act 36 of 1964: see Bangalore Water Supply and Sewerage Board Website at . Its functions are to supply and improve the supply of water and provide for sewage disposal: s. 15. Bangalore faces three major problems in relation to water: supply is patchy; when it arrives, it is often contaminated; and when it leaves as ‘treated’ sewage, it is often so noxious as to attract fines from the KSPCB: Perry and Anderson.

22

Interviews 05, 18, 20, 22 (2003). See also Dalrymple, W., ‘Finger-Lickin’ Bad: Bangalore and the Fast Food Invaders’, in The Age of Kali (London, Flamingo, 1999), 158–176; and, e.g., a recent campaign in Bangalore against pesticides: Greenpeace ‘Ban Dangerous Pesticides: Greenpeace, Farmers, Consumers and Celebrities’, 4 July 2003, .

23

Perry and Anderson. See Karnataka High Court website at . 63

Access to Environmental Justice: A Comparative Study

magistrate in relation to smoke, smells, and other noxious emissions. However, fines for public nuisance are fairly low at just a few hundred rupees.24 Second, citizens may complain to the courts about alleged offences covered by the various environmental statutes,25 thereby placing the relevant pollution authority (such as the KSPCB) under a duty to prosecute. But the complainant must give 60 days notice to the relevant authority so that it has the opportunity to negotiate with the polluting body. This delays the process, frustrating complainants and can lead to unseemly deal-making with polluters.26 (b) Civil Two civil law gateways are open to those seeking environmental justice. First, civil law remedies for injury or damage to property lie in tort law. This gateway is narrow in that the burden of proof carried by the complainant27 can be particularly heavy in technical environmental cases; remedies for torts in India tend to be limited to relatively slow and ineffective injunctions;28 and civil courts are barred from hearing cases relating to any suit, action, order, or direction under consideration by the various pollution control agencies.29 A second and highly innovative avenue for environmental justice was opened by the Consumer Protection Act of 1986.30 The system is made up of district, state and national level fora, staffed with judges from legal and non-legal background.31 The final court of appeal is the Supreme Court.32 Disputes are to be resolved within 90 days, without a lawyer or a court fees and avoiding complex rules of evidence.33 A consumer is defined as anyone who ‘buys any goods for a consideration’ or ‘hires or avails of any services for a consideration’.34 So,

24

The main legislation relating to public nuisance is the Indian Penal Code and the Code of Criminal Procedure, 1973: Perry and Anderson.

25

S. 43 Air Act; s. 49, Water Act; and s. 19, Environment Act.

26

Perry and Anderson.

27

Ss. 101–103 Indian Evidence Act 1872.

28

Suits for damages tend to be slow, costly, and largely ineffective: Perry and Anderson.

29

Ss. 58, Water Act; s. 46, Air Act; s. 22, Environment Act. Other instances of pollution can still be the subject of civil proceedings and the decisions of the Boards can still be challenged in public law: Perry and Anderson.

30

Act 68 of 1986. Amended by Act 34 of 1991 and Act 62 of 2002.

31

Ss. 9, 10, 16, 20, Consumer Protection Act 1986.

32

S. 23, Consumer Protection Act 1986.

33

Karnataka Consumer Protection Rules 1988. For current information on consumer law and practice in India see: Consumer Unity and Trust Society website at .

34

S. 2(1)(d), Consumer Protection Act 1986.

64

3. Access to Environmental Justice in India’s Garden City (Bangalore)

civic services are subject to the Act if they paid for by a specific fee, rather than general taxation. The supply of water by the BWSSB for a consumption-based fee is covered by the Act, as is the sale of land by the Development Authority. Consumer court cases pending against the Development Authority in 1995 related to failure to provide basic amenities, double allocation of plots, and bribery.35 In 2001 the Authority was ordered by the Consumer Court to refund expenses incurred by a purchaser when it withdrew his allotted land upon the belated discovery of land use restrictions.36 The Corporation is funded by taxation, so its services are outside the Act. Unfortunately, consumer courts are reportedly subject to the same delays as the mainstream courts, with a reported 200,000 unsettled cases pending in 1997.37 Furthermore, the leading consumer affairs organisation in India notes that far from being resolved in 90 days, cases drag on for years38 (c) Public The main public law gateway for the protection of the environment is public interest litigation (PIL). This will be the focus of this section. But before moving to consider PIL in detail, brief mention should be made of two other public law gateways: the National Environment Tribunal for the award of claims for compensation for personal injury or environmental damage resulting from accidents involving hazardous substances, and the National Environment Appellate Authority for challenges to industrial environmental clearances, which were introduced in 1995 and 1997 respectively. Claims can be brought by affected individuals, NGOs or government bodies. These bodies may offer an improvement on traditional methods of legal protest because they are bound to act according to the flexible principles of natural justice, rather than normal rules of court procedure.39 Where officials fail to perform their duty to curb pollution of various kinds, individuals and groups can launch a judicial review of their actions and, if successful, cause the court to issue orders in the nature of mandamus, prohibition, certiori, and so on against the government official or authority concerned. The role of judicial review, and PIL in particular, is the most characteristic feature 35

Perry and Anderson. Large scale consumers of water pay by meter: Water (Prevention and Control of Pollution) Cess Act 1977, and Rules 1978.

36

The Times of India, ‘Consumer Court Raps BDA’, 12 Aug 2001, .

37

Devraj, R., ‘India: Consumer Courts Slowing Down’, report filed with Inter Press Service, 20 October 1997, .

38

Consumer Unity and Trust Society, above n. 33.

39

S. 12(1), National Environment Appellate Authority Act 1997; s. 5(4), National Environment Tribunal Act 1995. 65

Access to Environmental Justice: A Comparative Study

of Indian environmental law. Much has been written on the topic,40 so I will restrict myself to a brief summary. Locus standi has been expanded so that any person acting bona fide may lodge a writ petition, and even letters will, where appropriate, be converted into petitions by the Court. The case can then be heard in the High Court41 or directly in the Supreme Court if a breach of a fundamental right is involved.42 Any government body can be challenged in this manner, since the definition of the ‘state’ under Article 12 of the Constitution has been interpreted widely. Furthermore, the right to life guaranteed under Article 21 of the Constitution has been interpreted to include a right to a healthy and pollution-free environment, and the Court is able to award compensatory and exemplary damages.43 Aparna Sawhney argues that PIL has acted as an effective indirect market mechanism for improving environmental standards, creating ‘an incentive for polluters to limit the risk of environmental damages. Thus, while formal enforcement remains weak in India, the constitutional right of the victims of pollution has become an important instrument of pollution control’.44 In 1995, interviewees reported that few cases, and even fewer PIL cases, were brought against municipal or environmental bodies in Bangalore. But these impressions are not borne out by the evidence.45 For example: • It has been reported that, as of March 1995, there were over 6,000 cases and 2,500 writ petitions pending against the Development Authority in Bangalore’s High Court, mostly relating to allotments alleged to have been taken over by encroachers.46 • By the financial year 2000–2001, a cumulative total of 269 PIL cases had been filed against the KSPCB.47

40

See Dembows, H., Taking the State to Court: Public Interest Litigation and the Public Sphere in Metropolitan India (Oxford, Oxford University Press, 2001); Singh, P. ‘Human Rights Protection through Public Interest Litigation in India’, Indian Journal of Public Administration, Oct.–Dec. 1999, Vol. XLV, No. 4, 731–749; Cottrell, J., ‘Courts and Accountability: Public Interest Litigation in the Indian High Courts’, Third World Legal Studies (1992), 199; Hurra, S., Public Interest Litigation (Ahmedabad, Mishra, 1993).

41

Constitution of India, Art. 226.

42

Ibid., Art. 32.

43

Mehta vs Kamal Nath (Beas River Case) WP 182/1996. See Sawhney, A., ‘Managing Pollution: PIL as an Indirect Market-based Tool’, Economic and Political Weekly, 4 Jan 2003, .

44

Sawhney, above n. 43.

45

For newspaper and interview accounts of individual PILs, see Perry and Anderson.

46

Perry and Anderson.

47

Karnataka State Pollution Control Board Annual Report 2000–2001, p. 81.

66

3. Access to Environmental Justice in India’s Garden City (Bangalore)

But a more detailed examination of the KSPCB figures reveals a depressing story for public interest litigators. Their success rate fell from 8% in 1993–1994 (65 cases filed, of which 24 were decided, of which just two were decided against KSPCB) to 2% by 2000–2001 (269 cases filed, of which 189 were decided, of which just four were decided against KSPCB). There is an upside: the disposal rate (cases disposed of as a proportion of cases filed) rose from to 37% in 1993–1994 to 70% in 2000–2001, so at least the delay before disappointment seems to be falling.48 It should also be noted that some government institutions are protected from unannounced attacks through the legal system. For example, two months notice must be given to the BWSSB before any suit, except one merely claiming an injunction, can be brought against it.49

III. … OF OBSTACLES TO ENVIRONMENTAL JUSTICE How open are these gateways? This section will focus on the obstacles faced by citizens but obstacles faced by public sector bodies are, to the extent that they prevent state bodies from protecting the environment, obstacles to citizens. As has been noted in detail elsewhere,50 obstacles faced by public-sector bodies include: a lack of resources, enforcement powers, and environmental expertise; fragmented and overlapping jurisdiction among authorities; judicial dominance of the enforcement process;51 and corruption. Citizens campaigning to protect the environment need resources: expertise, money and information. In 1995, it was found that few lawyers were willing and able to take up environmental cases in Bangalore. Not only was technical expertise lacking; so was interest, in particular, it was said, because the legal profession viewed environmentally minded colleagues with suspicion.52 Although PIL is cheaper and quicker than many forms of litigation,53 it still requires funds. These can be reclaimed as costs, but only in the event that the petitioner wins the case. Costs rise with delays, and these were highlighted as

48

Ibid.

49

S. 126(1), Bangalore Water Supply and Sewerage Act. The notice must detail the specific cause of action, the nature of relief sought, the amount claimed, and the complainant’s name and address.

50

See Perry and Anderson.

51

Pollution Control Boards are required, except in the case of an accident or an emergency, to resort to the criminal courts to force industries to stop polluting.

52

Perry and Anderson.

53

Interview 20 (2003). 67

Access to Environmental Justice: A Comparative Study

problematic for civil society actions by interviewees in 1995 and 2003.54 In 1995 it was said that the speed with which an environmental case was heard depended upon whether the judge is environmentally conscious, the seniority of the lawyer, and whether the State was involved – a source of delay.55 Aparna Sawhney argues that ‘a pure judicial approach to pollution abatement can never be economically efficient or effective, since judicial procedures can always be used in stalling remedial action’.56 But court delays can sometimes be a blessing to activists because they can delay an unwelcome project.57 Successful environmental campaigns require good, often highly technical, information.58 Where good information is inaccessible due to a lack of government transparency environmental challenges can be ‘half-hearted and inadequate’.59 Research in 1995 found reports that ‘public participation has been rendered a farce’. Government officials ‘are polite but substantively unhelpful’. ‘You have to really bash them’. One bureaucrat confessed: ‘most of us are very opaque’. Partly as a consequence, access to information was seen to be ‘very difficult’, with even annual reports ‘treated as internal documents not readily accessible to the public’.60 Most importantly, there was no right to information at the time so that activists were ‘at the total mercy of the Government’.61 Although still in its infancy, the introduction of the Karnataka Right to Information Act 2000 has helped somewhat.62 I always felt environmentalists didn’t get enough access to information. But we have a Right to Information Act now, and things are fairly transparent – it’s not difficult to get hold of documents. So if there are any handicaps for these NGOS, it is their own lack of analytical thinking, in the sense that in their zeal for their objectives, they sometimes lose

54

Interviews 01, 19, and 20 (2003).

55

Perry and Anderson.

56

Sawhney, above n. 43.

57

Interviews 04, 13, 17, 20 and 22 (2003).

58

Interviews 01, 02, 19, 24 (2003).

59

Interview 01 (2003).

60

Perry and Anderson. It is worth noting that the KSPCB has seemed for the duration of this research project to be the most open of the institutions studied. Full statistics relating to its actions, and clear statements of its procedures have been available for many years in its highly accessible annual report, and are now available on its website, which includes an explanation of the impact of the Right to Information Act on its activities: see Karnataka Pollution Control Board website at .

61

Perry and Anderson.

62

Karnataka Right to Information Act, 2000, Act 28 of 2000, ; Interviews 02 and 17 (2003).

68

3. Access to Environmental Justice in India’s Garden City (Bangalore)

the balance and their sense of objectivity and fail sometimes to see the reality, in other words, the other side.63 (a) Morale and motivation In 1995, many interviewees suggested that public environmental awareness in Bangalore was low. However, a high level of activity was found among individuals, civil society groups and the media. One senior bureaucrat said he was ‘surprised and pleased by how quickly people reacted’ to government campaigns on environmental issues, and an academic asserted that ‘now is the right time to look at people’s participation in Bangalore. Ten years back it would have been unthinkable, because people felt that law making and enforcement were the role of the executive, legislature and judiciary’.64 But there are psychological limitations in bringing a court case. There is a risk of arrest during protests65 and individual activists must take a high profile and controversial role. By 2003, the implications of this fact seemed to be more prominent in the minds of activists. A repeat PIL-player warned: You may be subjected to personal attacks – called a racketeer, or other things not germane to the issue. Very few people are willing to come to the forefront … I am not put off.66 (b) Scepticism In 1995, it was noted that the courts are sometimes sceptical of the validity of PIL actions. One lawyer estimated that at least 25% of PIL actions filed are personal vendettas, although a judge contradicted that view. It was said that activists protest for money or publicity rather than justice. A senior bureaucrat claimed that ‘NGOs come up like mushrooms in this country. Some have no idea about environment, ecology – what it means. They also get foreign funding. They give glossy reports based on our [government] statistics and then wither away.’ Certainly there have been recorded instances of the discovery of fake NGOs.67

63

Interview 17 (2003).

64

A broad range of NGOs operates in Bangalore, over 50 of which were identified as having some interest in environmental issues. Also active are individual campaigners and the press. The success of PIL, and the vibrancy of Indian democracy in general, owes a great deal to an independent press willing to lay claims against local and state governments as well as large businesses: Perry and Anderson.

65

Perry and Anderson.

66

Interview 03 (2003).

67

Perry and Anderson. 69

Access to Environmental Justice: A Comparative Study

In 2003, PIL continued to be criticised, for example on the grounds that ‘good government projects have been screwed up by PIL’,68 and that ‘people were not preparing well’.69 Many interviewees repeated the claim that those posing as civil society representatives have abused ‘this once sacred tool’:70 In many of these infrastructure projects certain economic interests are affected, and whenever these economic interests cannot legitimately take up their case, they take it up with environmental agents.71 In some cases a company will put someone in to challenge matters in courts inadequately, and then they can rely on the principle of res judicata [‘the case has been decided’] to make sure it does not get challenged properly.72 The legal system is beginning to realise that it can be used for fraud as well, so they are not welcoming [PIL] so much.73 It has been suspected that PIL has been used to … damage a competitor, or to help [some other private interest].74 In March 2004 the Supreme Court of India reportedly dismissed a PIL against the appointment of a judge and fined the petitioner Rs 10,000 for abuse of the PIL process. It observed that the petitioner’s motive had been self-publicity and warned that: ‘the judiciary has to be extremely careful that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking’.75 However, it is also true to say that by 2003, the scepticism was not all onesided. Leading civil society representatives suggested that NGOs are averse to using courts76 not only because of resource constraints, but also because the outcome of cases is uncertain.77 Even a decision in favour of the activist from the Supreme Court is not secure, since some have not been implemented.78 A

68

Interview 12 (2003).

69

Interview 04 (2003).

70

Interviews 01, 04, 11, 12, 13, 17, 20 and 22 (2003).

71

Interview 17 (2003).

72

Interview 01 (2003).

73

Interview 11 (2003).

74

Interview 22, 2003.

75

Indlaw.com, ‘SC Comes Down on Frivolous PILs’, 15 Mar 2004, .

76

Interviews 02, 04 and 19 (2003).

77

‘Why Go to the Court, Particularly When You Can’t Predict the Outcome?’: Interview 19 (2003).

78

Sawhney, above n. 43.

70

3. Access to Environmental Justice in India’s Garden City (Bangalore)

new mood of ‘disenchantment’ with the courts was noted,79 in particular by one activist who had been an ardent admirer of PIL when interviewed in 1995: My confidence in the courts has gone down significantly in recent years. I have been witness to the types of compromises that have been made – it’s not an ideal process. And I think the push for investment is one of the real reasons why that confidence is being eroded … [We prefer to go to court] at a very late stage [because] there are so many other mechanisms in participatory decision making … We believe that working with the affected community … is very important. [Not] this [Westernised approach] of just putting it all together in a volume and rushing to the courts to get relief. We don’t relate to this strategy … [T]he only way you can cut through all [the investor’s self-publicity] is not by running to the courts with a petition. You have to work with the people [and the company] and make them really understand and appreciate what a wonderful array of opportunities [exist], even in the administrative decision making process, [that] people can engage with …80 (c) Democratic deficit A strict limitation on the utility of PIL is that fact that it does not allow an NGO to question an established state policy, such as economic liberalisation:81 An examination by PIL of … economic policy has been attempted by some very straightforward and honest people, but these have not been entertained in Delhi. The Supreme Court said that the issues were in the field of policy and, therefore, not in their jurisdiction.82 The limitations and rigidities of the courts are constraints on the effectiveness of the legal system as a tool for civil society. But the following excerpts from an interview with a Bangalore leading activist show that it would be a mistake to view courts as the only significant legal method of dispute resolution. To influence policies, it is sometimes better to use democratic avenues: One needs to pressurise …, actually participate actively. And that’s a weapon – our [state and national parliaments] are still good at that. It is not one of those forums where people are capable of just lying and getting away with it. [For example, in the Cogentrix power project case], the Power Purchase Agreement [PPA] was a bone of contention …

79

Interviews 01, 02 and 19 (2003).

80

Interview 19, 2003.

81

Interviews 01, 19 and 22 (2003).

82

Interview 19 (2003). 71

Access to Environmental Justice: A Comparative Study

[between 1994 and 1997] Part of the PPA said that they would not be liable for any damage to human health and environment … We did not go to court for that. Questions [about the clause] were raised first [in local councils, which] passed a resolution at the district level [rejecting the] project. The Government of Karnataka used the bureaucrat to overrule that resolution, but it went to the State Assembly and eventually that clause was struck out.83 But that same activist also remarked that the courts had become less trustworthy in recent years, in part because of the ‘push for foreign investment’ and that this did not bode well for the legislature: When that can happen to the judiciary, it can certainly happen to the Assembly. We are finally talking of a society which is very, very prone to corruption, and the type of mechanisms multinationals use is to corrupt anybody and everybody, because that works for them.84 At a local level, the democratic validity of the Corporation has regularly been called into question. The mayor of the city is essentially a figurehead, and the powers of the Corporation, an elected body, have been regularly and legally usurped by the State Government. If an election is not held on the due date, or the Corporation is guilty of a dereliction of duty, then its officials can be replaced by an Administrator, appointed from the ranks of the civil service. For example, in 1995 an Administrator replaced the Mayor until such time as the Corporation elections were held. The Mayor of Bangalore challenged his removal in the High Court. In the three months it took the court to decide the matter in the Mayor’s favour, leadership of the Corporation changed six times, passing between the Mayor, the Chairman of the Development Authority and the Housing and Urban Development Secretary. This cannot have been a productive time.85 The Development Authority represents another democratic lacuna. It is clear from the Development Authority Act that once any street has been developed it should be passed to the control of the Corporation.86 However, the Authority has been described as a ‘real estate agent’, retaining control over the land even after development is complete. As a result, central ‘old’ Bangalore is controlled by the elected Corporation, while the outer ring of ‘new’ Bangalore is controlled by the Development Authority, excluding a significant proportion of the population from voting in local elections.87

83

Interview 19 (2003).

84

Interview 19, 2003.

85

Perry and Anderson.

86

S. 30(1), Bangalore Development Authority Act 1976.

87

Perry and Anderson.

72

3. Access to Environmental Justice in India’s Garden City (Bangalore)

The Development Authority, Corporation and BMRDA are all responsible to the State Government in general, and the Minister of State for Bangalore City Development in particular. Although the municipal authorities have primary responsibility for most matters, the sanction of the Minister is required for projects of a certain size, and he or she can make policy decisions for the area. Indeed, it has been suggested that the local bodies tend to follow the lead of the State government even where they are not compelled to do so.88 Local democracy has been improved following a move towards decentralisation of government in India in the mid 1990s. In rural areas, the traditional system of local government under panchayats was revived. In urban areas, municipal authorities were introduced under the Nagarpalika Act, 1993 (74th Amendment to the Indian Constitution).89 As a result of that Act, the State Government is no longer be able to suspend the municipal authorities such as the Corporation for more than six months; cities have been divided into wards for better public access; further powers were given to municipal authorities to carry out various functions including planning, environmental protection activities and slum improvement; and planning committees were created to coordinate district and metropolitan level development. The aim was to make local governments less like departments of State Government.90 However, as several state-appointed committees have found, the Act has proved somewhat of a let down since, ‘[a]t least with respect to Urban Planning, only cosmetic changes have been made’. Importantly, the unelected Development Authority is unaffected by the amendments and remains the Planning Authority for the Corporation and 17 other Municipalities This violates the ‘spirit’, although not the letter, of the 73rd and 74th amendments.91 A second effort to improve participation in local government has been the radical reorientation of the Corporation towards a policy of public private partnership. The Corporation website explains: Public Private Partnership (PPP) conveys privatisation initiatives by the public or the government sector. The underlying rational is typically commercial savings and superior delivery of services. The essence of these partnerships involves a win-win proposition for government, private sector and hopefully the civic beneficiaries, the citizens. Since 2000, there has been a different kind of PPP in progress in city of Bangalore. Different, since it involved the private sector working with the government on a

88

Ibid.

89

Alternative Law Forum, above n. 4, at 94–102.

90

Perry and Anderson.

91

Alternative Law Forum, above n. 4, at 101–102. 73

Access to Environmental Justice: A Comparative Study

pro bono basis. Bangalore is a witness to a fundamental re-orientation of citizen attitude to a new era of Urban Governance.92 Evidence of this trend is also visible in the water supply sector. In 1995, the Minister of State for Bangalore City Development was reportedly studying a proposal by a private company to totally renovate the city’s underground drains.93 By March 2004, the very existence of the BWSSB was under threat from a World Bank project entitled the ‘Karnataka Urban Water and Sanitation Sector Implementation Project’. A key aim of the project is to ‘prepare the ground for public-private partnerships as a realistic option for [water and sanitation service] provision’.94 Another high profile manifestation of this new strategy is the Bangalore Agenda Task Force (BATF). This unique public-private partnership organisation established on the back of a survey of Bangalore in 2000 works under the motto ‘Bangalore forward’. It undertakes projects relating to public health and sanitation, roads and traffic and urban spaces. As its website proclaims, its ambitions are stellar: Initiated by the Government of Karnataka, BATF’s single-minded mission is to modernise Bangalore by the end of 2004. The goal is to improve the city’s infrastructure and its standard of living … Our city has a date with the future. And a dream which is the mandate of the … (BATF) – making Bangalore a world-class city by 2004–2005 A.D.95 If nothing else, the tone and professionalism of its website should give a morale boost to Bangaloreans – at least those who have access to the internet. However, it perhaps does not bode well that in early 2004 the most recent achievements boasted on the site were for the year 2000–2001.96 Furthermore, the ‘central, nodal and directive role’ of the BATF ‘in shaping Bangalore’s development’97 has caused concern among civil society representatives. One remarked that it is: unaccountable to anybody but the Chief Minister, and it comprises some people who are basically managing directors of this and that company …

92

Bangalore Municipal Corporation website, above n. 6.

93

Perry and Anderson. Quoting Times of India, Bangalore.

94

World Bank Project Information Document (2004), , p. 4.

95

Bangalore Agenda Task Force website, .

96

Ibid.

97

Alternative Law Forum, above n. 4, at 166.

74

3. Access to Environmental Justice in India’s Garden City (Bangalore)

Who dictates planning now? It’s not anymore the democratic dialogue which the elected representatives are supposed to promote.98 Democratic concerns aside, these reforms seem to be having an effect, according to a series of reports by the Public Affairs Centre based on surveys of households in Bangalore. In 1993, just 5% of the 807 Bangalore households surveyed were ‘satisfied’ or ‘very satisfied’ with the Corporation, while 49% were ‘dissatisfied’ or ‘very dissatisfied’. When the survey was repeated in 2003, the picture was radically different: 73% of the over 1700 respondents were satisfied or very satisfied. Similar improvements were found for the Development Authority, with a satisfaction rating of 1% in 1994 rising to 85% in 2003; and the BWSSB, with a rise from 4% to 73% in that period.99 What accounts for this dramatic improvement? The authors of the report suggest that it may be a combination of the introduction of the Report Cards themselves, the ‘political leadership and vision displayed by the Chief Minister in the past four years’ and the work of ‘a set of able administrators [… and] the BATF, among others’, who together ‘have provided a momentum for action and reform’.100 Finally, the Right to Information Act 2000 should be referred to once more as a third effort to reverse the democratic deficit.101 Combined with PIL, the mere existence of this right may yet prove an effective tool for keeping governments in line. As one senior bureaucrat noted: ‘PIL is always on our minds’. Given the Right to Information Act ‘we have to be doubly careful, document everything correctly and get all our facts right to ensure that the danger of PIL is minimised’.102 To date, hopes for the Right to Information Act seem high: It has provided a capacity for transparency and disclosure that is important for better governance. The challenge, however, lies in the usage of the spirit of this Act especially in the context of the large projects that are coming up in Bangalore.103

98

Interview 19 (2003). One member of Bangalore Task Force is the owner of Ramanathan Capital, a ‘foreign’ investment company based in Mauritius: Bangalore Agenda Task Force website, above n. 95.

99

Public Affairs Centre, The Third Citizen Report Card on Public Services in Bangalore (Bangalore, Public Affairs Centre, 2003), , p. 4.

100

Ibid., at 8.

101

For details of the relationship between the Right to Information and urban development, see Alternative Law Forum, above n. 4, at 156–160.

102

Interview 08 (2003).

103

Alternative Law Forum, above n. 4, at 160. 75

Access to Environmental Justice: A Comparative Study

IV. ‘THE POLITICS OF BANGLAORE IS THE POLITICS OF REAL ESTATE’104 This section addresses the intensification of land use in Bangalore. A brief guide to the relevant law and current practice is given,105 followed by a recent example of the use of legal gateways in the area: the Bangalore-Mysore Infrastructure Corridor project. (a) Land use law and practice A large proportion of the environment-related wrongs performed in Bangalore involve the misuse of land. Importantly, it is widely acknowledged that these wrongs are perpetrated by rich and poor people, public and private sectors.106 (i) Building and conversion of land use The major cause of the pressure on land is Bangalore’s rising population. In 1901 the city was 29 square kilometres and housed 5621 people per square kilometre. By 1997, the city had grown seventeen-fold to 482 square kilometres, and population density had doubled to 10,809 people per square kilometre.107 The acute housing shortage resulting from this population explosion has led to the development of quasi-legal and illegal settlements.108 Although the Development Authority has the power to order cessation and reversal, at the cost of the offending person, of unauthorised construction,109 political expediency has demanded regularisation of such structures instead.110 A wholesale statutory regularisation was undertaken by the State Government in 1996.111 However, it

104

Perry and Anderson. Quoting interview 6/5/95.

105

For an excellent recent summary, see Alternative Law Forum, above n. 4, at 49–89. See also Perry and Anderson; and Baken, R.-J., Plotting, Squatting, Public Purpose and Politics: Land Market Development, Low Income Housing and Public Intervention in India (Aldershot, Ashgate, 2003).

106

Perry and Anderson; Alternative Law Forum, above n. 4, at 10–11.

107

Bangalore Water Supply and Sewerage Board website, above n. 21.

108

Alternative Law Forum, above n. 4, 104–105.

109

Ss. 15(4), (5) Karnataka Town and Country Planning Act 1961.

110

Perry and Anderson.

111

Under the Bangalore City Planning Area, Zonal Regulation (Amendment and Validation) Act 1996. Successful applications to the State Government for regularisation rendered the owners immune from any challenge in any court. The Act was found by the Karnataka High Court to be unconstitutional, but that decision was overturned by the Supreme Court and the Act, controversial as it is, still stands: Alternative Law Forum, above n. 4, at 50–53.

76

3. Access to Environmental Justice in India’s Garden City (Bangalore)

has been suggested that in recent years the Development Authority has started to ‘come down heavily’ on unauthorised developments.112 The conversion of land use is governed by the Karnataka Town and Country Planning Act, 1961 (Planning Act)113 and the Comprehensive Development Plans issued under it.114 New building and land use changes require written permission from the Development Authority,115 but penalties for breach of the Planning Act are of limited weight for the well off: a fine of up to Rs1000, with Rs50 per day for continued breach.116 It is then unsurprising that: activities and institutions of planning really account for a marginal percentage of land and housing in most Indian cities and it is now widely acknowledged that Master Planned areas actually service only a small part of the city, with the rest being given over to unauthorized [constructions].117 Bangalore’s famous bungalows have for decades been knocked down and replaced with more intensive high-rise structures. Focusing on the horizontal plane, four categories of land in Bangalore have been under threat: city parks, green belt, water tanks and agricultural land. • The Development Authority is barred from disposing of park land,118 and green belt should be protected by the Planning Act. But the green belt has been reduced in successive Development Plans – from 830 km2 in 1984 to 720 km2 in 1994 – in acknowledgement of the illegal development that had occurred there in the interim. One official reportedly said this was to prevent the Government having to evict from the Green Belt industries started by the KIAD Board itself.119

112

Ibid., at 108.

113

S. 82(B), Karnataka Town and Country Planning Act 1961.

114

Creation of Development Plans is governed by ss. 9(3),10,19, Karnataka Town and Country Planning Act 1961. They are introduced following a two month window for public comment.

115

Ss. 14(2),32, Karnataka Town and Country Planning Act 1961. V. Lakshmipathy and others v State of Karnataka and others, AIR 1992 Kant 57. The Authority cannot give permission to build on land under the control of the Corporation until that permission is sanctioned by the Corporation.

116

S. 73, Karnataka Town and Country Planning Act 1961.

117

Alternative Law Forum, above n. 4, at 4.

118

S. 38A, Bangalore Development Authority Act 1976.

119

Perry and Anderson. 77

Access to Environmental Justice: A Comparative Study

• In 1995, it was reported that 127 water tanks which had been notified by the State Government as protected areas had disappeared, mostly to semi-permanent residences.120 • Agricultural land should be protected by the Urban Land (Ceiling and Regulation) Act of 1976, but is instead being converted for use in tourism, residential buildings, and industrial developments.121 (ii) Compulsory acquisition of land for private companies There are three ways legally to acquire land in Bangalore: inheritance, purchase, or allotment by a government body such as the Development Authority, which deals mostly with residential land, or the KIABD, which deals solely with industrial land.122 The latter method is the source of controversy and the focus of this section. In the past, compulsory purchase powers found in the Land Acquisition Act of 1894 (LA Act) and Karnataka Industrial Areas Development Act of 1966 (KIAD Act) have been used for large scale projects such as dams and industrial estates. Later, these Acts were primarily used to acquire land for civic structures and housing. But recently, liberalisation has caused ‘a focused promotion of large mega urban development projects’ and it is for these that the state’s compulsory purchase powers are increasingly used.123 The LA Act has been used to acquire private land for public purpose since colonial times. There are two circumstances under which the Act allows compulsory purchase of land for a private body.124 First, land can be compulsorily acquired for a company if it is required for a ‘public’ purpose.125 Even partial payment of compensation by a public body has been found to be evidence enough of such a purpose.126 Second, land can be compulsorily acquired for a private body if it is required for building work which ‘is likely to prove useful to the public’ and the company compensates the owners in full.127 This provision was inserted

120

Perry and Anderson. For the example of the National Games Township, see Perry, above n. 3 (1998).

121

Perry and Anderson. Quoting Times of India, Bangalore.

122

Alternative Law Forum, above n. 4, at 27–34. In 1995, the Government reportedly ‘appealed to farmers not get carried away with regard to selling land in and around Bangalore’: Perry and Anderson. Quoting Times of India, Bangalore.

123

Alternative Law Forum, above n. 4, at 153.

124

Pratibha Nema and others v State of Madhya Pradesh and Others 2003 Indlaw SC 569.

125

S. 6, Land Acquisition Act 1894.

126

Pratibha Nema, above n. 124.

127

S. 40(aa), Land Acquisition Act 1894. This section was inserted by s. 3, Land Acquisition (Amendment) Act 1962.

78

3. Access to Environmental Justice in India’s Garden City (Bangalore)

by the legislature in response to an effort by the Supreme Court to restrict the ability of State governments to acquire land under the LA Act.128 Following this amendment, the building of a refrigeration compressor factory has been found to fulfil this very loose public purpose requirement.129 The procedure for acquisition of land under the LA Act is for the government, following an agreement with the company concerned, to make a request to the Collector, a local government official, for the acquisition of land. The proposed acquisition is published by the Collector, and the owners of that land are expected to come forward to seek compensation. The amount of compensation is set at 15% above the market price, to be calculated by the Collector. The Collector then acquires the land. It is important to note that only the amount of compensation and the measurement of the land may be appealed in court.130 Neither the Government’s determination as to the existence of a public purpose, nor the suitability of alternative sites can be challenged, unless there has been an abuse of power.131 Furthermore, it have been said that compensation is often not distributed to land losers, and land acquired is often not used.132 Some states, not content with the powers under the LA Act, further broadened them by introducing legislation such as the KIAD Act.133 ‘In the past few years it is clear that in Karnataka the favoured mode of acquisition has been through the KIAD Act.’134 For the State, the main advantages of the KIAD Act are that, unlike the LA Act, there is no public purpose requirement, and title and possession of land can be taken immediately.135 Some argue that the KIAD Act is also quicker and than the LA Act,136 but others suggest that the requirement under the KIAD Act to notify each owner and occupant individually means that it is in fact slower and more complex than the LA Act.137 It seems that the greatest benefit of the KIAD Act is that it is ‘procedurally almost fool proof because even if there is some mistake …, the Government can always have the land notified again’.

128

In the case of R. L. Arora v State of Uttar Pradesh [1962] AIR(SC) 764. Alternative Law Forum, above n. 4, at 172.

129

Somawanti v State of Punjab [1963] AIR(SC) 151.

130

S. 18, Land Acquisition Act 1894.

131

Alternative Law Forum, above n. 4, at 175.

132

Mohammed Asif, ‘Land Acquisition Act: Need for an Alternative Paradigm’, Economic and Political Weekly, 19 June 1999,.

133

Alternative Law Forum, above n. 4, at 176.

134

Ibid., at 103.

135

Ibid., at 106.

136

Sharma, R., ‘Roadblocks to an Expressway’, 19:02 Frontline 2002, .

137

Alternative Law Forum, above n. 4, at 179. 79

Access to Environmental Justice: A Comparative Study

Land is acquired under the KIAD Act as follows. The State Government gives notice of its intention to acquire land. There is a 30 day period for the registration of objections, which must be heard, but may be rejected if the State ‘deems fit’. Once satisfied that the land should be acquired, the State makes a declaration in the State Gazette, at which point the land immediately vests in the State free from encumbrances.138 The State may then transfer the land to the KIAD Board. Compensation is paid by the State and the amount is set either by agreement between the State and the land loser, or by the local official appointed by the State to makes such decisions. The restrictive – from the perspective of the land loser – provisions of the LA Act relating to the award of compensation and appeals to courts apply equally to acquisitions under the KIAD Act.139 The KIAD Board and the applicant industry then enter into an agreement under which the allotted land is initially leased for a minimum of six years. A sale deed is only completed as and when the project is implemented, and the Board can take back the land if it later finds it has not been used for the purpose for which it was allotted.140 A hint of the upset caused by this legislation is found in the fact that in 2003 there were an estimated 250 cases against the KIAD Board pending in the Karnataka High Court.141 In 2002, a scandal erupted when the Board allegedly offered 100 acres of agricultural wetlands to Indian-based software multinational Infosys. The farmers in the area were said to be ‘proud of Infosys and its achievements worldwide’, but to insist that dry lands should be offered instead. At the same time, allegations were made that ‘bogus’ IT companies were also being acquiring wetlands either from the Board at ‘throwaway prices’, or directly from farmers who feared a ‘forcible’ acquisition by the Board. The Board denied the allegations and insisted that its compensation packages are reasonable.142 (b) The Bangalore-Mysore Infrastructure Corridor saga In 1995, the State Government and the Nandi Infrastructure Corridor Enterprises (NICE) signed a memorandum of understanding (MOU) for a 111 km, six-lane toll expressway to be provided on build-operate-transfer basis and five townships which would draw traffic and residents away from Mysore and Bangalore. Bizarrely,

138

S. 28, Karnataka Industrial Areas Development Act 1966.

139

Ibid., ss. 29 and 30.

140

Ibid., s. 33. See Alternative Law Forum, above n. 4, at 33–34.

141

Ibid., at 179. For examples of such cases see ibid., Appendix.

142

Indiainfo.com, ‘Govt Allotting Wet Lands to “Bogus” IT Companies’, 2 Dec 2002, ; ‘Panchayat Leader Accuses Infosys of Land Grabbing’, 25 Nov 2002, .

80

3. Access to Environmental Justice in India’s Garden City (Bangalore)

the ‘reference model for this effort was Columbia, Maryland’.143 The townships were to include corporate, commercial, industrial, farming, marketing, heritage, agricultural and eco-tourism centres and a professional level golf course.144 A framework agreement was signed in 1998 in the absence of any call for competing bids.145 The land was notified under Section 28(4) of the KIAD Act on June 2, 1999 and published in the Gazette the next day.146 The cost of the project was to be US$500 million.147 NICE is – or was – a consortium of three companies: the Kalyani Group based in Pune, India; SAB Engineering, based in Pennsylvania, USA and Vanasse Hangen Brustlin (VHB), based in Boston, USA. It is unclear whether to use the past tense here because VHB has since 2001 denied involvement in the consortium and the project after 1995.148 But the company was listed in Government and legal documents relating to the project until 1999, and was described as lead partner on the NICE website – at least until the site disappeared in early 2004.149 (i) Environmental clearances and public input The Pollution Control Board and the Ministry of Environment and Forest issued environmental clearance for the project in 2000 and 2001 respectively. Three problems with these clearances have been identified. First, both were subject to several conditions which, according to the Environment Support Group, have not yet been met in full.150 Second, the clearances were: based on faulty Environmental and Social Impact Assessments and farcical Public Hearings. For instance, one socio-economic assessment asked just 3 questions: the name of the respondent, the address of the respondent and the name of the surveyor, and another was based on

143

Mahesh, A., ‘Corruption as Consequence’, 19 Jan 2004, ; India Together BMIC Campaign website, . This was confirmed on the now defunct NICE Website.

144

Mathai, M., Bhargavi S. Rao, and Saldanha, L., ‘A Note on the Bangalore Mysore Infrastructure Corridor’, circulated by email, Environment Support Group, June 2000.

145

Ibid.

146

The Hindu, 19 Dec 2003.

147

Mathai et al., above n. 144.

148

Environment Support Group ‘BMIC Short Note’, Oct 2002, ; India Together BMIC Campaign website, above n. 143.

149

A website for NICE, including a map and details of the company was available until late 2003, but by April 2004 it now appeared to have been removed: Nandi Infrastructure Construction Enterprises website, .

150

Environment Support Group, above n. 148; ESG Press Release, 9 Jan 2004, circulated by email. 81

Access to Environmental Justice: A Comparative Study

faulty statistical sampling. The Public Hearings, in particular, were marked by human rights abuses, a matter that was raised before the National Human Rights Commission.151 Third, the Environment Support Group and others argues that ‘basic public domain documents and studies about the project have been kept confidential, on grounds that they compromise corporate interest’. The public is therefore unable accurately to assess the project.152 The Alternative Law Forum assisted in bringing a PIL action demanding access to the framework agreement. The action failed on the grounds that the agreement defined the nature of the relationship between the investor and the state and was not a public domain document.153 A further, long-term obstacle to public input arises from the fact that 177 villages within the area of the project have been declared the Bangalore-Mysore Infrastructure Corridor Area Authority (BMICA), which will act as municipal authority for the area. The consequence is that the local authorities within the area have ‘lost their sovereignty’ and must apply to the BMICA for permission before undertaking any development in the area.154 (ii) Acquisition of land Much of the land for the project has been, or will be, compulsorily acquired and this process has been the subject of great controversy. Estimates of the land covered by the project vary, but it seems agreed that the total land to be supplied by the KIAD Board for use by the BMIC is over 20,000 acres,155 of which 4000 to 7000 is to be supplied from government-owned land,156 and the remainder will be compulsorily purchased from private owners.157 Compensation for private land losers is to be negotiated under the KIAD Act. ‘Given that most of the people who will be affected are poor and illiterate, it will be a minor miracle if they can negotiate a just price’.158 It is estimated that more than 1500 farming families

151

Above n. 148. See also Mahesh, above n. 143, Sharma, above n. 136. For photographs of the public hearing see .

152

Environment Support Group, above n. 148. See also Mahesh, above n. 143.

153

Interview 19 (2003).

154

, 15 Aug 2001.

155

Mathai et al., above n. 144; Business Line, ‘Bangalore-Mysore Project Awaits some Approvals, Promoters Told to Expedite Phase I’, 4 Sept 2002, ; Newindpress.com, ‘Blore-Mysore Infrastructure Corridor Gets Green Signal’, 15 Aug 2001, .

156

Mathai et al., above n. 144; , 15 August 2001.

157

Mathai et al., above n. 144; Business Line, 4 Sept 2002.

158

Sharma, above n. 136.

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3. Access to Environmental Justice in India’s Garden City (Bangalore)

are likely to be directly displaced159 and, according to NICE, 200,000 people will be affected overall.160 Of these, many are landless labourers who will not receive any compensation under the KIAD Act.161 Furthermore, NICE has reportedly been ‘legally cleared by the State Government of resettlement and rehabilitation responsibilities’.162 It was noted above that the function of the KIADB is to promote the development of industries ‘and to provide industrial infrastructural facilities and amenity in industrial areas’.163 The italicised words were the result of a 1997 amendment to allow the Board to acquire land for infrastructural as well as industrial, purposes. As the amending legislation explains, the liberalised economic policy since 1991 placed an increased emphasis on private sector participation infrastructure as well as industry, and ‘a number of proposals, both from indigenous and foreign companies have been received for considerable investments in infrastructural areas’ such as power, expressways, and airports, which will require ‘considerable extent of land for implementation’.164 ‘Industrial infrastructural facilities’ are very broadly defined as: facilities which contribute to the development of industries established in industrial areas such as research and development, communication, transport, banking … technology parks and townships for the purpose of establishing trade and tourism centre; and any other facilities as the State Government may by notification specify to be an industrial infrastructural facility for the purpose of this Act.165 Some say these amendments were made specifically to allow acquisition of land for the BMIC project, and their tailor-made wording makes this suggestion very plausible.166 It has also been suggested that the acquisition of land for the BMIC was done under the KIADA rather than the LAA, ‘in order to help speed up the process and permit a change in land-use pattern after acquisition’.167

159

Mathai et al., above n. 144. For photographs of the affected land see .

160

India Together BMIC Campaign website, above n. 143.

161

Environment Support Group Press Release, above n. 150.

162

India Together BMIC Campaign website, above n. 143.

163

S. 13, Karnataka Industrial Areas Development Act 1996. Alternative Law Forum, above n. 4, at 168 (emphasis added).

164

Statement of Objects and Reasons, Karnataka Industrial Areas (Amendment) Act 2000, Act No. 11 of 1997.

165

S. 7a, Karnataka Industrial Areas Development Act 1966 (emphasis added).

166

Sharma, above n. 136; Environment Support Group, Update, 19 Dec 2003, circulated by email.

167

Sharma, ibid. 83

Access to Environmental Justice: A Comparative Study

(iii) NICE as real estate agent The townships have been a contentious aspect of the project from the start. The Minister for Public Works was reported to have said in 2002 that ‘though townships form a part of the project proposal, we are more interested in the road. So if the promoters insist on them, we have to let go.’168 Campaigners are deeply sceptical as to whether the project requires the amount of land allotted to it. It is reported that ‘the expressway component of the project requires around 7,000 acres or land and the townships another 13,000 acres’.169 Campaigners are reported to have said that it is ‘clear that the land in excess of requirement is being acquired for making real estate profits to offset the certain losses from the expressway’, and ‘we are in no doubt that this project has more to do with real estate than highways’.170 An opposition party member reportedly argued in 2004 that neither NICE nor the Government sure how much land was required or what the route of the expressway will take. ‘[L]and is being acquired at a nominal price and being vested with the private promoter for real estate development or for direct sale to other parties’.171 In December 2003, former Prime Minister of India and Chief Minster of Karnataka H. D. Deve Gowda accused current Chief Minister of Karnataka S. M. Krishna of ‘corrupt practices in promoting’ the BMIC project. The central allegation made against the Chief Minister is that he had ‘strictly directed‘ successive chairmen of the KIAD Board to pass land allocated to the BMIC project ‘to private parties for huge amounts’, and that when they had refused to copy, they had been transferred.172 Deve Gowda also accused NICE of privately selling on land it had been allotted. The company denied this, saying that ‘not a single piece of land had been sold, since very little and had come into their possession’.173 Rather it declared that it was busy ‘setting up residential sites’ on the land for sale to the public.

168

The Times of India, ‘Infrastructure Corridor in Jeopardy’, 10 June 2002, .

169

Sharma, R., ‘An Ambitious Vision’ 21:02 Frontline 2004, .

170

Sharma, above n. 136. One newspaper reported that 5776 acres of land had been notified: The Hindu, 4 Jan 2004.

171

The Hindu, ‘Revoke Permission to Sell BMIC Land: JD(S)’, 4 Jan 2004, . Quoting H. Ekantaiah of the Janata Dal Party.

172

The Hindu, ‘Deve Gowda Sees Irregularities in “Land Deal”’, 22 Dec 2003, .

173

Times of India, ‘CM, Chief Secy Looting Land: Gowda’, 22 Dec 2003, .

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3. Access to Environmental Justice in India’s Garden City (Bangalore)

(iv) Concessions Also at issue are the concessions awarded to NICE in the acquisition process. First, it has been awarded, by special amendment of the Planning Act, an exemption from certain town planning taxes worth Rs 580 million in the first instance.174 Second, it is reported that losers of compulsorily purchased private land will be compensated by NICE at a rate of about Rs 100,000 per acre; but will then sell the township land on at a rate of up to Rs 5 million per acre.175 Third, the state-owned land is to be leased to NICE for just Rs 10 per acre per year for a 30 year period176 – less than it currently yields as farmland.177 (v) Challenging the notification process in the courts In December 2003 the High Court of Karnataka was petitioned by land losers and their supporters, some of whom argued that they had not been given notice of the acquisition, others that they had not been heard.178 Mr Justice Chandrashekaraiah of the High Court of Karnataka quashed the acquisition of land for the townships (and for convention centres and the award of alternative sites for the land losers); but upheld the acquisition of the land for the expressway (and the various link and service roads it required).179 The township land acquisition was quashed on the grounds that it the notice was improperly constructed and therefore void. The notice stated that the land was required for ‘the establishment of industries by the Karnataka Industrial Areas Board’. No mention was made of the townships.180 Although the expressway acquisition, which covered 60% of the land, was upheld, the State Government was ordered, in the event that the expressway

174

India Together BMIC Campaign website, above n. 143; Environment Support Group Press Release, above n. 150; Business Line, 4 Sept 2002. However, in 2003 a 10% stamp duty on mortgages was imposed in Karnataka, which would apply to the project. NICE were reported to be trying to negotiate themselves out of the liability: Economic Times, ‘Bangalore-Mysore Expressway Hits Stamp Duty Roadblock’, 5 Dec 2003, .

175

India Together BMIC Campaign website, above n. 143. Quoting Major-General S.G. Vombatkere of the Mysore Consumers Forum.

176

Mathai et al., above n. 144; and India Together BMIC Campaign website, above n. 143.

177

Environment Support Group, above n. 148; India Together BMIC Campaign website, above n. 143.

178

As required by ss. 28(1),(4) of the Industrial Areas Development Act 1966: The Hindu, 19 Dec 2003.

179

India Together BMIC Campaign website, above n. 143; The Hindu, 19 Dec 2003.

180

India Together BMIC Campaign website, above n. 143; and The Hindu, 19 Dec 2003. The petitioners had also argued that the land was green belt and should not be used for industrial purposes, but this argument doe not seem to have convinced the court. 85

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component of the project is not completed, to return the land to the land losers, without compensation to NICE. The KIAD Board is to be allowed to restart the process of acquiring the land, as long as it follows the proper process of notification and hearing of objections.181 Campaigners hope that the judgment will cause the whole project to fall apart. Clause 7.1 of the Framework Agreement between the State and NICE states that: The Government of Karnataka and the company acknowledge and agree that the industrial and commercial development of the townships by the company is an integral part of the infrastructure corridor project and its goal of promoting industry, trade, commerce and tourism in Bangalore, Mysore and the infrastructure corridor …182 NGOs argue that now there are no townships – a central feature of the project – the state can legally and cheaply withdraw; and that they should do so to avoid compensating NICE under Framework Agreement if the project loses value.183 (vi) The future By 2001 the cost of the BMIC project had risen from $500 million to $1 billion, while the planned size of the road had shrunk from six lanes to just two.184 Several studies have reportedly shown ‘that it is better to upgrade the railway than to go for a highway project’.185 The future of the project looks decidedly gloomy.

V. CONCLUSION To what extent can, did and do Bangaloreans use legal gateways to slow down or reverse the decline – to redress the balance between economy and environment? In the first section we saw that there are several gateways to environmental justice in Bangalore, but that they are of varying width, and in varying states – from infancy to maturity, decay to rejuvenation.

181

The Hindu, ‘High Court Quashes Land Acquisition for Townships’, 19 Dec 2003, .

182

The Hindu, ‘Government Urged to Pull out of BMIC Project’, 14 Jan 2004, .

183

Ibid.; India Together BMIC website, above n. 143; Mahesh, above n. 143.

184

India Together BMIC Campaign website, above n. 143.

185

Interview 02 (2003); Sharma, above n. 136; India Together BMIC Campaign website, above n. 143.

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The biggest improvements to gateways since the mid-1990s have been in the reduction of the democratic deficit. But one area where democracy and public participation continues to be lacking is land use, and as liberalised Bangalore continues to attract investment, domestic and foreign, pressure on land and resulting opportunities for abuse are likely to grow. The BMIC project demonstrates a number of general shifts in land acquisition practice in Bangalore from: • The use of the LA Act to the KIAD Act, ‘primarily because the [latter] is more “authoritarian”’ than the former’.186 • Residential and civic projects, to large scale urban development projects • Public sector lead initiatives in project development and land acquisition to public private partnerships (for example with the Bangalore Agenda Task Force), where the public bodies ‘play a facilitative role to access land in large parcels and ensure little opposition’.187 It also provides an excellent example of the complexities introduced by liberalisation into state-civil society relations with regard to the campaign for environmental justice. As Randeria puts it: The state is not merely a victim of the neo-liberal economic globalization, since it remains an active agent in transposing it nationally and locally … We are faced not by weak, or weakening, states but by cunning states, which capitalize on their perceived weakness in order to render themselves unaccountable … to their citizens …188

186

Alternative Law Forum, above n. 4, at 166.

187

Alternative Law Forum, above n. 4, at 166.

188

Randeria, S., ‘Glocalisation of Law: Environmental Justice, World Bank, NGOs and the Cunning State in India’, Current Sociology, May/July 2003, Vol. 51(3/4) 305, 306. 87

Chapter 4

ACCESS TO ENVIRONMENTAL JUSTICE IN INDONESIA Adriaan Bedner 1

I. INTRODUCTION

O

ver the past 20 years Indonesia has witnessed a rapid increase in disputes concerning aspects of the environment, as reflected in dozens of scholarly writings and thousands of newspaper reports. How many environmental disputes there are is impossible to tell, since reliable statistics are absent and moreover most disputes do not develop beyond the stages of ‘naming’ and ‘blaming’, remaining hidden in the villages. However, given the scale of environmental deterioration in Indonesia over the past 30 years, and the evidence from the materials available, the figure must be huge.2 Remarkably, those disputes that do get to the ‘claiming’ stage seldom follow the legal gateways supposedly leading to ‘environmental justice’. Environmental litigation rates are extremely low, even if a precise number is difficult to establish. Probably the the best indication available to date is the number provided by Nicholson, who (based on a search of scholarly writings, national newspapers and weeklies) gives a total number of 24 civil and administrative environmental

1

Assistant Professor, Van Vollenhoven Institute for Law, Governance and Development, Faculty of Law, Leiden University, Netherlands. Email: .

2

The following references are useful to get an overview of the problems: Parnwell, M.J.G. and Bryant, R.L., Environmental Change in South-East Asia: People, Politics and Sustainable Development (London, Routledge, 1996); and Hirsch, P. and Warren, C., The Politics of Environment in Southeast Asia (London and New York, Routledge, 1998). I am greatly indebted to David Nicholson’s study into environmental litigation and mediation in Indonesia: Nicholson, D.F., ‘Environmental Dispute Resolution in Indonesia’, unpublished PhD thesis, Leiden University, 2004.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 89–123 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

court cases for the whole of Indonesia between 1982 and 2002.3 Based on a search of the internet, newspaper clippings and ‘grey literature’ I found an additional ten cases for the period until 2003.4 Whilst there has been a clear increase in cases since the demise of the New Order and the enactment of the 1997 Environmental Management Act (EMA) (from 13 between 1989 and 1998 to 21 between 1998 and 2002), the number has remained low. Apparently, the Indonesian judiciary is not particularly effective in resolving environmental disputes.5 Nor are there many genuine mediation procedures (for a definition see below). Nicholson gives a number of 17 from 1982 until 2002, with a slight relative increase from 10 between 1991 and 1998 to seven between 1998 and 2002. The low number of court cases thus cannot be ascribed to the availability of effective mediation procedures. This Chapter seeks to explain the paradox of so many disputes and so few litigation and mediation cases. The first part will show that the Indonesian judiciary’s record in environmental cases has improved over the past years, and that despite a number of shortcomings the legal framework for environmental citizens’ suits is adequate. The second part does the same, though less elaborately, for environmental mediation. In the final part I will attempt to explain why

3

Nicholson, above n. 2, at 311–4.

4

Nicholson’s low number finds some support in studies that are more restricted in scope. In their study of water pollution in the Surabaya area, Lucas and Djati list 31 disputes where communities protested against factory pollution, with only two leading to a civil action in court: Lucas, A. and Djati, A., The Dog is Dead so Throw it in the River: Environmental Politics and Water Pollution in Indonesia, (Clayton, Monash Asia Institute, 2000), 112–122). I myself did a thorough search in the archives of the Bandung District Court (1989–2000) and the Bandung Administrative Court (1992–2000), which yielded one civil and one administrative environmental law case for this city with its three million inhabitants and huge environmental problems. The other cases are two administrative court cases about a car repair shop and a gasoline station (1992), the compensation cases against PT Suparma Tbk. (1997), Oton Bangun (2001), Nur’aini Ginting (2001), Government of North Sumatra, Bupati Deli Serdang, and a class action against the Government of North Sumatra (2002). Cases in 2003 are the administrative court cases about the Land Reclamation Project in North Jakarta (Jakarta Pantura), the building of an Electricity Plant at Lovina, and the civil cases against PT Nasional Panasonic Gobel, Banjarmasin Park, Bupati Karo Sinar Peranginangin.

5

Although certainly not all cases receive press coverage, one should bear in mind that the press has generally paid much attention to environmental issues, and is likely to have written on any environmental court case that came to their attention, even under Suharto’s New Order regime (cf. Lucas, A., ‘River Pollution and Political Action in Indonesia’, in Hirsch and Warren, above n. 2, at 199; Warren, C., ‘Tanah Lot: The Cultural and Environmental Politics of Resort Development in Bali’, ibid., at 231); and certainly since the early 1990s (cf. Eccleston, B. and D. Potter, ‘Environmental NGOs and Different Political Contexts in South-East Asia: Malaysia, Indonesia and Vietnam’, in Parnwell and Bryant, above n. 2, at 64.

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litigation and mediation are used so infrequently and whether there are any prospects for change. (a) Environmental disputes in Indonesia Environmental disputes in Indonesia can be categorised into three groups. The first are those about nature conservation. In their most common form such disputes are between citizens (or state agencies) undertaking economic activities that are potentially harmful to nature conservation on the one hand; and state agencies or private parties administering a nature conservation park or project on the other. Another form of dispute in this field is between citizens conducting activities that are not harmful to the goals of nature conservation and others whose similar activities cause irreparable damage (for instance traditional fishing versus blast fishing). The dispute may either concern the economic activity itself or negligence, collusion, or corruption on the part of the conservation administrator in performing his tasks. The second type of dispute concerns the use of natural resources, and is usually between citizens and companies with an important role for the government as the licensing authority. Typical examples are mining and logging disputes. The focus of such conflict usually is the denial of access to natural resources and their depletion, but sometimes concerns state licensing policies. The dispute may also focus on environmental side effects of the exploitation, such as pollution and damage. The third type are disputes about pollution or environmental damage outside the two categories mentioned above. The typical pollution dispute is one between a pollutor and a local community affected by the pollution, or between the agency controlling environmental standards and the polluting or damaging party. Just as in the case of natural resources, the role of the government in upholding environmental standards often becomes a particular focus of such disputes. In many instances these types will be mixed up, often entangled with social and cultural disputes.6 For the purpose of this chapter I will concentrate on those where environmental quality constitutes the core issue. (b) Environmental justice? Environmental justice can be defined as a situation where the demands of all actors on aspects of the environment are well-balanced in the sense that they do not interfere with ecological processes required for a livable environment, whilst also not compromising the livelihoods of those concerned. Although a useful

6

Cf. Warren, above n. 5; and Colombijn, F., ‘Global and Local Perspectives on Indonesia’s Environmental Problems and the Role of NGOs’, Bijdragen tot de Taal-, Land- en Volkenkunde, 154–II, 329 (1998). 91

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starting point, this concept is filled with uncertainty, due to imperfect scientific environmental knowledge and the antagonistic views stakeholders may have on what is ‘liveable’ and ‘well-balanced’. Worldwide, states have adopted the notion of sustainable development and its international law ‘glosse’ to guide their own official interpretion of environmental justice, but the balance struck in concrete cases remains a matter of judgment.7 Since this volume is mainly concerned with state law and as it is beyond the scope of this contribution to explore various stakeholders’ perspectives, I will assume that a situation is environmentally just when it is in conformity with the rules and standards of Indonesian substantive law. As I have argued elsewhere, despite its deficiencies this framework is certainly not out of tune with the main international trend and consensus on what is needed for sustainable development.8 In discussing access to environmental justice, I will look at various ways for citizens to redress infringements of environmental law and evaluate to what extent such redress may be beneficial to the environment.

II. LEGAL GATEWAYS TO ENVIRONMENTAL JUSTICE (a) Introduction Indonesia promulgated its first general EMA in 1982. Whilst according to some observers this made the country ‘a leader among developing countries’,9 it gradually became clear that the statute suffered from various shortcomings, notably its lack of specificity and dependence on implementing regulations which were slow to appear.10 Such shortcomings also had their impact on the record of environmental court cases and mediation. The drafting team for the successor of the 1982 EMA – the 1997 EMA – was well aware of this problem and the

7

For a critical discussion of ‘sustainable development’ see Parnwell, M.J.G. and Bryant, R.L., ‘Introduction: Politics, Sustainable Development and Environmental Change in South-East Asia’, in Parnwell and Bryant, above n. 2, at 2–4.

8

Bedner, A.W., ‘Decentralised Globalisation: Environmental Governance in Indonesia’, Paper presented at the Seminar ‘Globalisation and Law in Asia: from the Asian Crisis to September 11, 2001’, Onati, 10 April 2003; also Bedner, A.W., ‘Introduction: Environmental Law in Indonesia’, in Bedner, A.W. and Niessen, N.J.A.P.B. (eds), Towards Integrated Environmental Law in Indonesia? (Leiden, CNWS Publishers, 2003), 1–10; and Niessen, N.J.A.P.B. (2003) ‘Indonesia’s Environmental Management Act of 1997: Comprehensive and Integrated?’, ibid., at 66–79.

9

Stated by the Director of the Indonesian-Canadian environmental co-operation programme EMDI (Indonesia Development News, December 1987).

10

Warren, C. and Elston, K., Environmental Regulations in Indonesia, Asia Paper no. 3 (Nedlands, University of Western Australia, 1994), 19; Niessen, above n. 8, at 67.

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4. Access to Environmental Justice in Indonesia

draft Act therefore proposed several changes to remove such legal obstacles.11 Most amendments got unscathed through the lawmaking process, in spite of sectoral ministries resisting infringements on their territory, and unwillingness of much of the ruling elite to sacrifice some of their economic interests to the environmental cause.12 For a regulation of environmental litigation the New Order’s Pancasila paradigm posed a specific problem at an ideological level, as the state simply did not concede that its own interests could be at loggerheads with those of ‘society’.13 Nonetheless, the 1997 EMA significantly improved the legal framework for environmental litigation and mediation. The EMA relates to three forms of citizens’ access to environmental justice: civil litigation in the general courts, administrative litigation in the administrative courts, and out of court mediation. Moreover, the Constitutional Court may review acts of parliament (Constitution, Article 24C[1]), whilst lower regulations of a general nature are within the jurisdiction of the Supreme Court (Constitution, Article 24A[1]). I will now look at these issues one by one, after a discussion of environmental principles which are of general importance to all of them. (i) Principles Both the 1982 and the 1997 EMA carry two general principles of importance for environmental litigation: ‘citizens have a right to a good and healthy environment and the right to participate in environmental management’ (1997 EMA, Article 5[1]) and ‘every citizen has a duty of care for the environment and must prevent and clean up or restore environmental damage and pollution’ (1997 EMA, Article 6[1]). Since 2000 the ‘right to a good and healthy environment’ is moreover listed in the Constitution’s catalogue of human rights (Article 28H[1]). These principles are usually cited in claims brought to court in environmental cases. The participation principle’s main effect has been to pave the way for legal standing of environmental NGOs, whilst the obligation to clean up or restore environmental damage and pollution has promoted diversification of judicial remedies. Two principles added in 1997 have been of special importance for a citizen’s position in environmental litigation and mediation and merit some discussion: the right to environmental information and a complementary duty for companies to provide information about their environmental management.14

11

Bedner, above n. 9 (Onati), at 13–14.

12

Arnscheidt, J., ‘Towards Integrated Environmental Policy-Making in Indonesia?’, in Bedner and Niessen, above n. 8, at 53 and 55–56.

13

Cf. Bedner, A.W., ‘From the Old to the New EMA: Integration or Disintegration of the Legal Potential for Enforcement’, in Bedner and Niessen, above n. 8, at 82, n. 7.

14

For a discussion about the principles of the 1997 EMA, see Niessen, above n. 8. 93

Access to Environmental Justice: A Comparative Study

(ii) The right to information According to article 5(2) ‘every citizen has a right to environmental information relating to his role in environmental management’. Whilst this stipulation is rather unclear, the Elucidation leaves no doubt that it intends to give citizens full access to any information about the environment which may be of importance to them. Unfortunately, at present there is no procedural device to inform citizens about government decisions carrying environmental consequences – as is explicitly required by the 1997 EMA’s Articles 7 and 19 – nor is there any general procedure to ensure public participation in licensing. Hence this principle has until now failed to pierce the veil of secrecy hanging over Indonesian environmental management, in particular outside the large cities.15 A similar situation exists regarding the obligation for firms to provide information about their environmental management (Article 6[2]). There is no such practice as environmental book-keeping by firms themselves, for instance by registering how much sludge they produce and how this relates to their production.16 Nor have firms any regular legal obligation to publish a report on their environmental performance. This reduces the opportunities to gather data that may alert citizens or NGOs to environmental problems or to access data required for producing evidence in court. The obligation to provide environmental information has emerged in a court case once, when in 2000 environmental NGO WALHI brought a claim against mining giant PT Freeport for providing false information in violation of the 1997 EMA’s Article 6(2).17 The case concerned an incident on 4 May 2000 when Lake Wanagon – used as a depository for tailings of the Grasberg copper mine – collapsed and caused a flood and landslide. On the basis of eyewitness accounts and a report by the national Environmental Impact Agency the court upheld the claim, finding that Freeport had repeatedly provided incorrect information

15

Santosa, M.A., Good Governance Dan Hukum Lingkungan (Jakarta, ICEL, 2001), 43,131. However, even if a procedure is in place – as is the case with the Nuisance Ordinance – it is questionable whether it is actually used. Rangkuti refers to the already long-existing procedure for a public hearing in the case of the nuisance licence, which according to her has remained no more than a dead letter: Rangkuti, S.S., Hukum Lingkungan Dan Kebijaksanaan Lingkungan Nasional (Surabaya, Airlangga University Press, 2000), 134 and 193. She does not reveal the source of her knowledge, probably basing herself on her observations in her hometown of Surabaya. Whilst Surabaya obviously cannot represent the whole of Indonesia it is a city with a relatively good environmental record (Lucas and Djati, above n. 4, at 82–86). My own observations in Bandung support her point as far as this city is concerned.

16

Aden, J., ‘A Rapid Appraisal of Industrial Pollution Abatment in Semarang, Indonesia, Issues and Opportunities’, World Bank Report, unpublished, Annex 1, 1 (1998).

17

Nicholson, above n. 2, at 106.

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in public about the accident.18 Whilst hailed as an important environmental victory, this case can be of limited effect only on companies’ practice to provide information, as it addresses the issue of incorrect information rather than no information. Thus, for this obligation to become effective either another – successful – case or a government regulation should follow. The only legal mechanism providing in more detail for the publication of environmental information is Environmental Impact Assessment, which was first introduced in Indonesia by Government Regulation (GR) no. 29 of 1986. EIA procedure provides both for an announcement in public to encourage citizens to participate in the procedure and for publication of its results. However, Indonesia’s EIA procedure has turned out to be of little effect and in practice hardly provides access to information. Nor have third parties access to the data concerning the implementation of the requirements based on the EIA.19 There have been three counterweights against the difficulty to obtain environmental information. The first is anti-pollution programmes at both the central and regional levels. Most conspicuous is the so-called Proper-programme of Indonesia’s State Ministry of the Environment. It assesses the environmental performance of large industries on the basis of their liquid-waste processing, rating them from gold (very good) to black (extremely bad) and publishing the results. The data for Proper come from the provincial environmental agencies which perform routine sampling in the framework of the so-called clean river programmes (Prokasih).20 Prokasih-reports are easy to obtain21 and in several court cases plaintiffs have used such data to support their claims.22

18

Kompas 28 Aug. 2001.

19

Deputy Assistant For Environmental Impact Assessment, Ministry of Environment, Republic of Indonesia, ‘An New Approach for the EIA Process in Indonesia’ (2002), 2–3. There is hardly any recent literature on the current Indonesian EIA practice. For older accounts, see notably Boyle, J.A., ‘Socio-cultural and Political Influences on the Implementation of Environmental Assessment in Southeast Asia: Insights from Thailand, Indonesia, and Malaysia’, PhD thesis, Graduate Department of Geography, University of Toronto, 1993; World Bank, Indonesia: Environment and Development (1994), 270–273.

20

For information on Proper see Lucas and Djati, above n. 4, at 42–44. For more information about the Prokasih programme, see Afsah, S., Laplante, B. and Makarim, N., ‘ProgramBased Pollution Control Management: The Indonesian PROKASIH Program’, Policy Research Working Paper, The World Bank, Policy Research Department /Environment and Infrastructure Division (1996); and Lucas and Djati, above n. 4, at 37–39.

21

I had no problems obtaining such reports myself at the various Environmental Management agencies (both at the national, the provincial and the district level), an experience shared by environmental legal aid lawyers from ICEL with whom I discussed this matter.

22

See below. 95

Access to Environmental Justice: A Comparative Study

The second is the Minister of the Environment’s power to impose on a firm a duty to perform an environmental audit, whose results, according to the Elucidation, must be made public (EMA, Article 29). However, the practical significance of this gateway is limited too, as to my knowledge the Article has been used but once.23 Finally, environmental information is provided in the framework of certification, such as ISO 14000 and the Forest Steward Council. Under increasing international pressure a growing number of Indonesian firms producing goods for the international market participate in such schemes, and giving access to information is often part of them.24 There are however no reports about such information having been used in mediation or court cases. Surprisingly, the lack of access to environmental information is an issue which has received only scant attention from most environmental legal scholars in Indonesia.25 Environmental NGOs such as the Indonesian Center for Environmental Law (ICEL) and WALHI, on the contrary, are well aware of its importance. Hence the former’s initiative to draft a Freedom of Information Act, which is currently waiting for debate in Parliament.26 This Act may actually bring into place some of the mechanisms required to effectively promote access to environmental information. (b) Civil litigation The first and most important form of environmental litigation is citizen initiated environmental litigation in the general courts (Pengadilan Negeri).27 The EMA of 1997 has considerably changed the framework for bringing claims in this

23

This happened in 1999, when State Minister of the Environment Sony Keraf ordered mining giant Freeport to conduct an audit of its operations in West Papua (The Jakarta Post, 4 Mar. 2000).

24

The State Ministry of the Environment on its website () provides a national database of 223 companies with the ISO 14001 certificate. Although this is not indicated, it seems that the majority of them are joint ventures with foreign companies, whilst the list also includes some industries with an abominable environmental reputation (notably PT Freeport and PT IIU).

25

The authorative textbook of Rangkuti, above n. 15, for instance, does not refer to the issue at all.

26

Santosa, above n. 15, at 45). After serious delay the draft law has now been brought forward as an initiative by Parliament. It is expected to be enacted in late 2007 (see ); RUU Tentang Kebebasan Informasi, 29 Aug. 2005). An interesting detail is that the initiators refer to Thailand as an example of an ASEAN-member with an Official Information Act in order to support their cause (Santosa, ibid., at 41).

27

The general courts deal with all civil and criminal law cases that are not covered by special courts (Law no. 14 of 1970, Article 10[1]; Law no. 2 of 1986, Article 50). This includes government tort cases.

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context. Before its enactment citizens suffering from environmental damage had to base their claims on the general rules concerning tort based on the Civil Code (Article 1365) and the 1982 EMA’s Article 20. The new Act has widened standing, introduced strict liability, and diversified remedies, as I will show in the following sections. (i) Standing The 1997 EMA’s Article 38 has reinforced public interest litigation by allowing environmental organisations ‘to bring claims for the interest of safeguarding the environmental function’. To qualify for this they must be legal persons, have statutes proving that their aim is to preserve the environment, and have conducted activities to this aim prior to bringing the claim concerned (Article 38[3]). Whilst it is a codification of judicial precedent, this provision puts the matter of standing beyond doubt and its application has been without problems.28 That is not the case with another, quite novel development in standing: the introduction of a ‘class action’ by Article 37.29 This Article makes it potentially much easier to bring claims to court concerning environmental disasters involving many victims. Whilst the wording of the Article might suggest that only a government agency can represent a community, judges have dismissed demurrers in this vein in the three cases brought to court on this basis.30 In the same cases they also dismissed the argument that a class action would be impossible because Article 39 says that ‘the way to bring a claim … refers to the prevailing

28

The precedents concerned are WALHI v PT Inti Indorayon (1989, Central Jakarta District Court) and WALHI and Others v The President (1994, Jakarta Administrative Court). The original formulation was adopted from Dutch case law (Bedner, A.W., Administrative Courts in Indonesia: A Socio-Legal Study (The Hague, London, Boston, Kluwer Law International, 2001), 86). For detailed discussion see Rangkuti, above n. 15, at 319–321 and Nicholson, D.F., ‘The Legal Framework for Environmental Public Interest Litigation in Indonesia’, in Bedner and Niessen, above n. 8, at 100.

29

The provision reflects Canadian and Australian influence: Bedner, above n. 28, at 13–14.

30

It concerns Eksponen 66 and Others v APHI and Others (1998, Medan District Court, North Sumatra High Court), Way Seputih (2000, Metro District Court), Pekanbaru Smog Case (Pekanbaru District Court). The text of Article 37(1) runs as follows: ‘A community has the right to bring a representative claim to court and/or report to law enforcers about any environmental matters harming the community’s livelihood’. Section (2) stipulates that in case ‘of a community’s suffering from environmental pollution and/or damage’ the competent environmental government agency may represent the interest of a community. As there is no explicit reference to an organisation representing the interests of the community concerned in this paragraph, it can easily be interpreted as meaning that only this government agency could represent such an interest in court (cf. Wijoyo, S., Penyelesaian Sengketa Lingkungan (Surabaya, Airlangga University Press, 1999), at 47–48). 97

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Civil Procedure’ and that civil procedure does not provide for the class action.31 A helpful development in this respect is the Supreme Court’s Regulation no. 1 of 2002, which clarifies the requirements for class actions. As a result, the initial hesitance on the part of environmental legal-aid lawyers to use the class action32 may well disappear. (ii) Limitation period The limitation period is hardly an obstacle for litigants. By referring to the rules of civil procedure, Article 36 grants a generous limitation period of 30 years,33 starting at the moment the victim becomes aware of environmental pollution or damage. Article 36(2) even rules that if such pollution or damage is caused by hazardous or toxic substances there is no term of limitation. (iii) The right to compensation The 1982 EMA’s Article 20 introduced the principle that someone damaging or polluting the environment is liable for payment of compensation to the victims thereof. This is not to say that before 1982 there was no such possibility, as a claim for compensation could always be based on the general rules of tort. However, the specific environmental nature of this principle (now 1997 EMA, Article 34) has reinforced the position of the plaintiff, in particular considering the Indonesian judiciary’s general tendency of formalist and restrictive interpretation.34 A major problem under the 1982 EMA was that Article 20’s section 2 demanded an attempt to solve the case through a ‘tripartite team’ consisting of the ‘victim’, the ‘offender’, and a government representative, before a claim for compensation could be brought to court.35 This matter would be further arranged by an implementing regulation, which never came forth, and at least three times have courts interpreted this obligation as barring any attempt at litigation.36

31

As it should according to well-known environmental legal scholar Suparto Wijoyo (above n. 30, at 47.

32

Nicholson, above n. 2, at 70.

33

The applicable provision is Article 1967 of the Civil Code.

34

Budiardjo, A. et al., DALDI Report (prepared for Bappenas and funded by the World Bank) (1997), 61; Nicholson, D.F., ‘Environmental Litigation in Indonesia’, (6) 1 Asia-Pacific Journal of Environmental Law, 75–76 (2001). In most cases the plaintiffs also refer to Article 1365, probably ‘just to make sure’.

35

This matter was not beyond debate, however. Nicholson, above n. 34, at 58, refers to some Indonesian legal scholars questioning the obligatory nature of the provision.

36

In the notorious cases PT SSS (1991, Surabaya District Court), Surabaya River (1995, Surabaya District Court) and Samidun (1989, Medan District Court); see Nicholson, above

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Not all courts, however, were that strict, whilst the 1997 EMA’s Article 34 has lifted the obligation altogether and put the matter beyond ambiguity. Nonetheless, the main elements of tort are still in place: there must be fault or negligence, the act must be against the law, there must be a causal relation between the act concerned and the pollution or damage, and the plaintiff carries the burden of evidence. Judicial interpretation of this regime has not been entirely consistent, leading to some unpredictability in outcome of court cases as I will now show. (iv) Proving causation A major stumbling block for plaintiffs has been to prove a causal relation between pollution and damage in case of river pollution. In the notorious PT Sari Morawa case (1996), the Lubuk Pakam District Court demanded that the plaintiffs prove through certified samples that the waste discharge of the PT Sari Morawa factory had effectively caused the quality of the river water to deteriorate below the prevailing environmental quality standards. The court was unwilling to assume a causal relationship between evidence from witnesses suggesting severe pollution of the river and scientific evidence showing that the factory’s waste water was highly toxic, in excess of legal standards for about every toxic substance measured.37 The Central Java High Court followed a similar line of reasoning when it examined the Babon River case on appeal (1999). Overturning the judgment of the Semarang District Court, the High Court judges argued (contrary to expert evidence given in court) that the pollution of the plaintiffs’ prawn ponds could have been caused by pollution of rivers other than the Babon. Samples of the defendants’ waste water demonstrated that it exceeded the legal standards for COD and BOD discharge, and the plaintiffs could show how their prawn crops had declined shortly after the defendants started their activities. In spite of such evidence the judges refused to assume a causal relationship between the two.38 However, not all judges have been so demanding. Whilst deciding against the plaintiffs on the basis of the evidence presented, the Bandung District Court in PT BWS (1989) argued that the defendant would have been liable for compensation had the polluting substances in the waste water samples exceeded the stipulated

n. 34, at 58; Nicholson, above n. 2, at 102; Rangkuti, above n. 15, at 290. 37

Nicholson, above n. 34, at 59–60. In fact, it was impossible for the factory to deny it had caused pollution, as for much of the period concerned it did not have any waste-water treatment installation.

38

Nicholson, above n. 2, at 163–165. 99

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levels (which they did not).39 The judges first examining the Babon River case (1998) decided the case in favour of the prawn farmers suing the polluting companies on the basis of the same evidence as brought forward on appeal.40 The most far-reaching judgment in this respect has been one of the Pekalongan District Court, which held in the Banger River case (1998) that, if a company’s waste effluent exceeded stipulated levels, this should be enough to satisfy the demand of causality,41 a view later confirmed by the High Court of Central Java. This is remarkable, given the fact that only a few months earlier the same court rejected this argument in the Babon River case. There is thus no uniform approach towards causality. The interpretation in half the cases discussed here precludes any chance for the plaintiff to win, the interpretation in the other half offers a reasonable chance of compensation. (v) Evidence of pollution or damage The other basic issue in compensation cases is the question of evidence or how to prove causes of pollution or damage in the first place. Here it seems a clearer pattern has emerged than the one concerning causality, but not much to the advantage of plaintiffs. Presently, courts more or less adhere to a hierarchical order of evidence running from government documents via evidence of a ‘scientific’ nature to testimionial evidence. Most remarkable is the weight some courts attach to government documents, relying on these rather than on direct evidence from samples. In the Banger case, the court of first instance upheld the claim partly on the basis of administrative sanctions and a conviction of the three defendants in a criminal case. On appeal, however, the Central Java High Court exclusively relied on the administrative sanctions, ignoring the sample results which formed part of the evidence presented.42 A similar approach was taken by the Medan District Court in Eksponen 66 and others v APHI 43 and others (1998), where the judges mainly relied on the revocation of 166 Forest Use Permits (Izin Pemanfaatan Hutan) of

39

The case can be found in Yudistiro, Penyelesaian Kasus-Kasus Hukum Lingkungan Dalam Sistem Penegakan Hukum Di Indonesia (Bandung, Pasundan Law Faculty Press, 1997), 70–76. Nicholson, above n. 34, at 60, also points to the Supreme Court judgment in Sidoardjo (no. 1479/K/PID/1989), but this concerned a criminal case.

40

Nicholson, above n. 2, at 152–159. It should be acknowledged, however, that in this case the evidence supporting a causal relationship between the factories’ effluent and the pollution of the river was somewhat stronger than in the Sari Morawa case.

41

Nicholson, ibid., at 143–147. The two expert witnesses for the plaintiff had produced statements in support of a causal relationship. However, the court did not rely on these for its decision.

42

Nicholson, above n. 2, at 142–146.

43

Assocation of Indonesian Logging Firms.

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APHI members.44 Just as in Banger in first instance, in the Babon River case the Semarang District Court relied both on reports and the results of samples taken by the Semarang Environmental Impact Agency, but not much to the liking of the Central Java High Court. Whilst the appellate judges’ main argument for overturning this judgment was their argument against causality (see above), they also held that the defendants’ participation in the Clean River Program (Prokasih) proved that they could not have polluted the river.45 The same preference for government documents applies to cases other than water pollution. In the forest-fire case of PT Laguna Mandiri (1998) the plaintiffs brought a number of eyewitnesses to testify how fires had been lit on the defendant’s estate in order to clear the forest for establishing an oil palm plantation and how this fire had subsequently spread to the village of the plaintiffs. On this basis the Kotabaru District Court awarded the claim, but the South Kalimantan High Court overturned the judgment. In an absurd twist of reasoning, the appellate judges dismissed the first-hand evidence, holding that no compensation could be awarded unless the plaintiffs could submit a criminal court judgment establishing guilt of the defendant. In addition, the judges held that the plaintiffs had failed to prove the defendant had been at fault in this case, in spite of the fact that lighting fire for such clearing purposes is illegal per se.46 Reliance on government documents or reports does not always work to the detriment of plaintiffs, however. A good example is the Kalimantan Peat Land case (1999, Kuala Kapuas District Court), where 49 fish farmers brought an action against the government in order to receive compensation for the destruction of their fishing ponds. The project causing the destruction had been the culmination of New Order arrogance, aiming at the transformation of one million hectares of peat swamp into rice fields without any proper consideration of its ecological consequences or feasibility. After Suharto’s demise the project was relinquished following devastating reports by the World Bank and a team of government experts.47 More or less the same situation occurred in the Muara Jaya case (1991, East Kalimantan High Court), after the court of first instance had dismissed the report ordered by the Mayor of Samarinda. What makes this

44

Nicholson, above n. 2, at 72.

45

An absurd claim, for partaking in Prokasih does not offer any guarantee of compliance with regulatory standards (e.g. Lucas, above n. 5, at 196–197).

46

Nicholson, above n. 2, at 91–92. Establishing fault hardly ever plays a role in such cases, except when it concerns accidents (but to my knowledge there has not been any such case in Indonesia to date).

47

Down to Earth 1999, no. 42 (published by Campaign for Ecological Justice in Indonesia (); Nicholson, above n. 2, at 93–94. 101

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case unique, is that it got through to the Supreme Court, which confirmed the appellate judgment.48 Next ranks evidence of a scientific nature. In cases concerning water pollution courts always demand such evidence, usually in the form of waste water samples. As yet there are no cases where a court has adjudicated compensation on the basis of testimonial evidence regarding colour and odour of the water in combination with other ‘circumstantial’ evidence. This creates a serious obstacle to plaintiffs as for practical reasons most of them are in no position to produce scientific evidence.49 Thus, in the PT BWS case the Bandung District Court relied on an analysis of waste-water samples by the laboratory of the Department of Public Works, showing that the quality of the effluent remained within stipulated limits, in spite of the absence of a water-treatment installation. In holding that the plaintiffs had not produced any scientific evidence to support their claims the court implicitly dismissed the statements of witnesses that the water in the wells was polluted since PT BWS had become operative.50 On the other hand, I have found no cases where judges relied on scientific evidence only. In WALHI v PT Pakerin and others (1998) the plaintiffs deposed of detailed satellite photographs showing hotspots on the sites of the defendant companies which they accused of clearing forest for plantations, but the Palembang District Court only admitted testimonial evidence concerning the question who had lit the fires, thus setting free ten out of the eleven companies.51 Another case which shows that judges are sometimes uneasy in dealing with scientific evidence is the Singosari SUTET case (1994, Central Jakarta District Court). In this case villagers complained about the adverse health effects of a high-voltage power line and the entire matter hinged upon two opposed bodies of scientific evidence. Whilst clearly a difficult task for a judge, the way of escape used in this case was rather remarkable: the court dismissed the scientific body of evidence presented by the plaintiffs on the ground that it consisted of test findings outside Indonesia and hence inapplicable to this case.52 The current ranking order for different types of evidence, and in particular the lack of trust in testimonial evidence in pollution, creates serious problems for plaintiffs, especially because there is usually little government information available. Caused in part by lack of funding and political priorities,53 this problem

48

Nicholson, above n. 2, at 83–84.

49

See my remarks under the right to information.

50

The judgment is contained in Yudistiro, above n. 39, at 70–76.

51

Nicholson, above n. 2, at 98–99; see also Alan Tan Khee-Jin, ‘Forest Fires of Indonesia: State Responsibility and International Liability’, 48 International and Comparative Law Quarterly 826 (1999).

52

Nicholson, above n. 2, at 85.

53

Lucas, above n. 5, at 182.

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is exacerbated by the nature of Indonesian environmental pollution licensing, which makes supervision and inspection a hard task. Waste water and nuisance licences are usually cast in rather vague terms, containing obligations to remain below certain stipulated levels of output, but without any technical indications as to how this should be achieved.54 As a result, both inspectors and plaintiffs rely on samples. These are expensive to obtain, whilst there is also considerable uncertainty surrounding the reliability of testing laboratories.55 Thus, the current evidentiary system in compensation cases in combination with some practical issues makes this a difficult road towards success. (vi) Strict liability A way out of the problems of causation and evidence seems to be Article 35’s new strict-liability clause, which applies to those legal persons whose ‘activities have a large and important effect upon the environment, who use hazardous substances, and/or produce hazardous waste’. Although the scope of the provision is not immediately clear, even in a restrictive interpretation it would likely apply to most larger industries and many mining operations in Indonesia, and therefore one would assume that it has become quite popular in Indonesian civil litigation. Surprisingly, this has not been the case. In the two civil suits where the plaintiff attempted to mount Article 35, the judges either implicitly (PT Laguna Mandiri in first instance and PT Pakerin) or explicitly (PT Laguna Mandiri on appeal) refused to apply it, in the latter case arguing that the requirements of Article 35 are cumulative and that the defendant had not used any hazardous materials.56 Nonetheless, strict liability has largely remained untested. Whilst this can partly be explained from the general dearth of court cases, in both Banger and Babon an appeal for strict liability seemed an obvious strategy that was however reneged upon. The most obvious explanation is therefore that not only judges but advocates too are unfamiliar with the concept.57 (vii) Remedies The 1997 EMA’s Article 34 allows the judge to impose on the defendant a duty to perform ‘certain actions’, for instance the installation of a waste-water treatment

54

This is based on my own observation of permits and licences at the West Java Environmental Agency in Bandung, and was pointed out to me by Mrs. G. Verbruggen, who worked as an advisor at the said agency between May and October 2003. See also Santosa, above n. 15, at 195.

55

See e.g. Lucas and Djati, above n. 4, at 44, 46.

56

Nicholson, above n. 2, at 96–99.

57

Ibid. 103

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facility (Elucidation to Article 34). In combination with a daily fine to guarantee its enforceability (Article 34[2]) this provision has reinforced the environmental relevance of court suits, as Article 20 of the 1982 EMA mentioned monetary compensation only. In two out of four cases taken to court so far under Article 34, the plaintiffs sought environmental rehabilitation in addition to compensation (PT Laguna Mandiri and Banger). In Banger the Semarang District Court used the Article for the first time, ordering the defendants to upgrade their waste-treatment units, a judgment upheld on appeal. This opportunity has therefore not remained a dead letter. A drawback of the 1997 EMA is that its Article 38(2) limits the availability of remedies in the case of public interest litigation by environmental organisations. These can never ask for damage compensation, but only for ‘particular actions’ and for expenses incurred58 in connection to the case at hand. This was confirmed by the Palembang District Court in WALHI v PT Pakerin and others (to date the only case based on Article 38[2]) when it ruled that the two trillion Rupiahs (more than 200 billion US dollars) claimed by WALHI could only constitute compensation, not the ‘expenses incurred’ referred to in the EMA.59 The Elucidation further limits ‘particular actions’ to ‘particular actions in law’, ‘declarations that a person has committed an unlawful act because he has damaged or polluted the environment’, and orders to ‘install or improve a waste-treatment unit’. Whilst the latter is useful, the first two are problematical. Nicholson has suggested that ‘particular legal actions’ could be interpreted as referring to ‘the cessation of an ongoing activity … if its compliance with a regulatory standard were required’.60 What the use of a declaratory judgment is remains unclear, however, and as yet it is unclear whether the courts can order a defendant to actually cease an activity. As a result, the remedial power of the courts still leaves something to be desired. In particular the limitations set to the remedies available to environmental organisations indicate that the legislator has been careful not to give any powers to the courts which could actually get in the way of the government’s discretionary powers to enforce environmental law. However, on the whole they are a substantial asset for those seeking redress in environmental disputes.

58

This does includes costs made for cleaning up the environment, so it does not only refer to the expenses in connection with the court case.

59

Nicholson, above n. 28, at 106.

60

Ibid., at 105.

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(viii) Conclusion This overview of civil litigation provides a mixed picture. Standing and limitation period are not serious barriers, and the courts dispose of a reasonable array of remedies, but the interpretation of causation and the application of the law of evidence can be serious obstacles for those seeking redress of environmental injustice. The interpretation of causation divides judges, and some of them have already pointed at a solution, being the introduction of an assumption of causation if the defendant is clearly transgressing environmental-quality standards. Evidence is more complex. At present judges seem to rely mostly on government judgments of defendants’ behaviour, followed by evidence of a scientific nature, with ‘localised’ evidence coming last. This makes plaintiffs dependent on the government and raises the costs of proving a case in court. In this light it is surprising that advocates have as yet not appealed more often to the strict- liability clause available under the 1997 EMA, which looks promising in many cases. In fact, under the current evidentiary doctrine this seems the only instrument available to turn civil litigation into a more effective gateway. (b) Litigation against the state Indonesia’s environmental litigation system not only allows plaintiffs to bring civil claims against citizens, but also against state agencies. In addition, citizens can contest the legality of administrative legal acts before the special administrative courts on the basis of the Administrative Justice Act, whilst they can submit regulations of a general nature below the level of an Act of Parliament to the Supreme Court for review (Constitution, Article 24A[1]). Since 2003 Acts of Parliament are moreover liable to constitutional review by the newly founded Constitutional Court (Constitution, Article 24C[1]). Finally, within the framework of criminal law, citizens can bring a claim against the decision of the police or the Public Prosecutor’s Office to stop investigation or prosecution of an environmental offence Whilst hitherto no claims for review of environmental regulations or Acts have been brought to the Supreme or the Constitutional Court, the administrative courts have examined a small number of environmental cases, but less than ten from 1991 to 2004.61 These range from the internationally known WALHI and Others v The President (1994, Jakarta Administrative Court) to claims against

61

Nicholson (above n. 2, at 310–313) lists four cases. Lotulung gives two cases answering the criteria used in this Chapter (‘Undang-Undang Nomer 5 /Tahun 1986 Dalam Praktek (Di P.T.U.N. Jakarta) Terutama Tentang Kasus-Kasus Lingkungan Hidup’, unpublished paper on file, Van Vollenhoven Institute, 1992); and I myself found one case in the Bandung Administrative Court for the period of 1992 until 2000. 105

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small-scale mining licences. An important new development is moreover that recently both environmentalists and companies have begun to bring claims against the Minister of the Environment. The following sections deal with some features of administrative court procedure that are distinct from civil procedure, which means that standing for instance will not be discussed separately. (i) Litigation in the Administrative Court A. Object of the claim. The object of a claim in the Administrative Court is a written, individual, concrete and final administrative decision, such as for instance to grant an environmental permit. However, the Administrative Courts have shown a tendency to widen their jurisdictional powers over decisions that are hard to bring under this definition,62 including in environmental cases. Thus, in the Jakarta Pantura case the Jakarta Administrative Court upheld a claim against the judgment of the EIA-committee under the State Minister of the Environment concerning the reclamation of land on Jakarta’s north coast. This is hard to understand given the fact that an EIA is not final in nature, but underlies the refusal of a permit.63 Another important issue is that jurisdiction between the general and administrative courts gets easily entangled, general courts sometimes using the administrative courts as an easy way out of politically sensitive cases.64 That this also happens in environmental suits has been shown by the Kalimantan Peat Land case (1999, Central Jakarta District Court), where the object of the claim was a Presidential Decree that was neither individual nor final in nature. None the less, the court referred the plaintiffs to the administrative court,65 underlining how sometimes the availability of the administrative courts may actually be detrimental to the interests of plaintiffs. Even if solved correctly the issue of jurisdiction may remain a problem, as for instance in WALHI v The President where the Jakarta Administrative Court argued that the defendant’s decision to provide a loan to an aircraft factory from the Reforestation Fund was not final in

62

Bedner, above n. 28, at 82–84.

63

Sore Surabaya News 16 Feb. 2004; Kompas 27 Feb. 2003; Society of Environmental Law 6 Aug. 2003. See for more information the website of the Indonesian Ministry of the Environment (). Well-known environmental legal scholar Daud Silalahi has publicly expressed his concern about the case, whilst his younger colleague Suparto Wijoyo spoke of an ‘anomaly’ and a ‘tyranny on the basis of the law’ (Suara Pembaruan 28 Jan. 2004). The case is currently pending on appeal.

64

Bedner, above n. 28, at 247.

65

Nicholson, above n. 2, at 120–121.

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nature and therefore rejected the claim. However, how the general court should deal with such a case is not immediately clear.66 B. Limitation period. In comparison with civil procedure, the limitation period in administrative courts is short – 90 days after the aggrieved party received information about the decision. This is problematical in environmental cases where certain consequences can be felt years after a the government released a permit for conducting the activities concerned. Whilst such cases have not been reported yet, they are likely to occur in the future. C. Grounds for review. The administrative court may declare an administrative act unlawful if it is in violation of legislation, if it is a case of misuse or arbitrary use of power, or if it violates an unwritten principle of proper administration.67 This is basically the same list as one will find in any modern administrative court jurisdiction and it gives the judge sufficient powers to review administrative decisions. As yet, I have found no references to any environmental cases where the administrative court upheld a claim, except for the already mentioned Pantura case, which should have been dismissed early on. The administrative courts could potentially play an important role in considering whether certain permits require an EIA, a problem mentioned earlier. This was indeed the aim of WALHI’s claim in the Transgenic Cotton case (2001, Jakarta Administrative Court), concerning the introduction of transgenic cotton in seven districts in Sulawesi without an EIA. However, the outcome of this case was extremely disappointing. Whilst the administrative court is usually bound to a marginal test of defendant’s reasoning in such cases, here the applicable regulation explicitly held that the introduction of plant types should be the object of an EIA (GR no. 27 of 1999 Article 3). Nonetheless, the court dismissed the claim in a decision that is hard to defend.68 Another potentially promising role of the administrative courts is to judge a refusal by the competent authority to use administrative force in order to halt an

66

For an in-depth discussion of the administrative courts’ jurisdiction, see Bedner, above n. 28, at 53–83. For a discussion of WALHI v The President see Nicholson, above n. 2, at 113.

67

Bedner, above n. 28, at 97–100.

68

Nicholson, above n. 2, at 124–125. 107

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environmental offence at a citizen’s request. The EMA refers to the latter possibility in Article 25(3), but thus far it seems to have remained a dead letter.69 D. Remedies. The remedial power of the administrative courts is limited to ordering an official to revoke his decision.70 In addition, an administrative judge can suspend a government decision, a device used regularly.71 In environmental cases, where questions of an administrative decision’s lawfulness go together with questions concerning compensation and ‘real’ acts, plaintiffs therefore have to go to both the general and the administrative court and deal with a complex mix of jurisdiction, which may be a serious barrier. E. Conclusion. Environmental litigation in the administrative courts has not been very important until now, even if it offers good potential to tackle unlawful licensing. Moreover, two problems underlying the procedure reduce its attractiveness: difficulties with jurisdictional delineation between administrative and general courts, and a term of limitation that will be too short in many environmental cases. (ii) Litigation against the police or the Public Prosecutor’s Office Whilst investigation and prosecution of environmental offences is mainly a state affair, Article 80 of the Code of Criminal Procedure opens the possibility for citizens to influence decisions to halt the prosecution. It seems the Article is not often used, which is no wonder given the fact that prosecution of environmental offences in general is rare and seldom successful.72 Nonetheless, the fact that in the case of the Porong River (1993) the Mojokerto District Court recognised standing of environmental organisations in this context73 at least opens up another gateway which may become more effective in the future.

69

Interview with environmental lawyers Mas Achmad Santosa and Wiwiek Awiati (31 May 2003) and personal communication from Mrs. G. Verbruggen who worked for half a year at the West Java Environmental Impact Agency (4 Nov. 2003).

70

However, if he refuses to do so the decision will in the end become void. For an in-depth discussion about this issue see Bedner, above n. 28, at 134. The administrative court can also award damages, but only to an extremely limited amount.

71

Bedner, above n. 28, at 113–114.

72

Bedner, above n. 13, at 90–91; Lucas and Djati, above n. 4, at 45–47 about East Java.

73

Santosa, above n. 15, at 295.

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III. ALTERNATIVE DISPUTE RESOLUTION Whilst environmental disputes have been resolved outside the realm of the state from time immemorial, this form of resolution has become less effective with the increasing complexity of social relations. Put in terms of relational distance theory: with losening common bonds the need for an authorative, specialised outsider to resolve disputes increases74 and the rise of state courts is a logical outcome.75 It is remarkable that in Indonesia, where ‘at the root of almost every environmental conflict … is a social conflict’76 and where those suffering most from environmental distress are poor and powerless, the call for mediation has become so strong during the past years. The explanation for this popularity is not so much that mediation fits the assumed cultural propensities of Indonesian society as cultivated under the New Order, but rather that environmental activists had lost faith in the courts. In the words of one of the proponents of environmental mediation in Indonesia, the objective is ‘to promote a competitive climate (peer pressure) for the courts. … The availability of peers in the form of ADR institutions is hoped to push the dispute-resolving institutions to ‘compete’ in raising their image and the trust put in them by society’.77 The question is of course whether mediation can actually function effectively in a situation where there is not much ‘shadow of the law’.78 (a) Legal framework The 1997 EMA contains a special section on dispute resolution outside the court (Articles 31–33). It is an important improvement on the regulation in the 1982 EMA, whose Article 20(2) provided that claims for compensation could be taken to court only after an attempt at ‘mediation’ had been made, involving the parties concerned, the government and ‘experts’. Some courts interpreted this provision so strictly that it effectively barred litigation.79

74

Horwitz, A.V., The Logic of Social Control (New York and London, Plenum Press, 1990), at 1.

75

Shapiro, M., Courts: A Comparative and Political Analysis (Chicago, University of Chicago Press, 1981) at 1–8.

76

Colombijn, above n. 5, at 329.

77

Santosa, above n. 15, at 266.

78

Cf. Aalders, M., ‘Self-Regulation and Compliance with Environmental Law from a Global Perspective’, in Bedner and Niessen, above n. 8, at 21–36.

79

Rangkuti, above n. 15, at 290. Most notorious in this respect is the PT SSS case, where the Surabaya District Court argued that no mediation in the sense of the EMA had taken place, whereas this had clearly been the case (Nicholson, above n. 2, at 58–59). 109

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The 1997 EMA clearly distinguishes between litigation and alternative dispute resolution (ADR), and contains no obligation to negotiate or mediate before taking a case to court. If parties have started with ADR, however, one of them must declare that the ADR process has failed before he may start litigation (Article 30[2]). Articles 31 and 32 refer to negotiation, mediation and arbitration as acceptable forms of out-of-court settlement of environmental disputes, whilst the elucidation holds a number of requirements for a mediator or arbitrator. An interesting provision is Article 33, now implemented by Government Regulation no. 54 of 2000, which opens the possibility for the ‘government or society’ to establish dispute-resolving service centres. Thus far, such service centres have been not been established, although both the State Ministry of the Environment (formerly the Environmental Impact Agency) and environmental impact agencies in some regions have been involved quite often in mediation processes.80 Given the focus of this Chapter on access to justice and in the absence of environmental arbitration, I will focus my discussion81 of ADR on mediation, i.e. a process where parties try to resolve their conflict through the good offices of a disinterested third party.82 (b) Getting started One of the main differences between litigation and mediation is that in the latter case the party alleged to have caused the distress voluntarily enters the mediation process. Relational distance theory predicts that in a situation where there is much social distance between parties such voluntariness will be absent.83 This is often the case in environmental disputes and certainly in those between ‘nonlocal’ firms extracting natural resources and local communities. Pollution cases are different in the sense that the polluting factory will have a long-standing relation with a community neighbouring its enterprise, and therefore it may be

80

Nicholson, ibid., at 173–176. Establishing such centres is not always easy. In West Java I witnessed such attempts by the provincial Environmental Impact Agency (July 2001), but so far with little result (personal communication from Mrs. G. Verbruggen 4 Nov. 2003).

81

The following discussion is mainly based on the 17 mediation cases in Nicholson, above n. 2, with some additions from Lucas, above n. 5, and my own research.

82

Other common forms are of course negotiation and good offices of an interested third party. See Shapiro, above n. 75, at 1–8. As the 1997 EMA contains only few guidelines concerning mediation, which are moreover rather commonsensical, I will not limit myself to explicitly EMA-related mediation.

83

Horwitz, above n. 74, at 30. This theory looks at compliance, but can also be applied to mediation.

110

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more inclined to enter into mediation.84 Nonetheless, the social distance in such cases remains considerable. In most of the cases compiled I could find little or no information regarding this aspect, even if common sense predicts that the owner of a large factory is not very likely to have a close relation with the neighbouring communities. Only in one case in Bandung, PT Naintex, did it seem to me that the social relations between community and pollutor were strong enough to promote mediation as a dispute processing style.85 If relational and social distance are wide, it depends on political, economic, and moral pressure whether a mediation process will get started,86 the main issue being whether the asymmetric power relations are redressed to the extent that mediation becomes possible. In many, and probably in most, environmental disputes such pressure is absent.87 These remain unresolved until the situation changes completely (for instance because a polluting factory closes its business, or a logging firm leaves the area), or until some of the factors I will discuss below come into play. According to Nicholson, a defining characteristic for a process of mediation to get started is whether high-level government officials from the State Ministry of the Environment (formerly the Environmental Impact Agency) actively engage in a dispute.88 This has been the case in six out of the 17 cases Nicholson discusses, between 1991 and 2001. However, in five cases since 1994, the decisive actor in getting the parties to the mediation process was the provincial or district government, as opposed to, in one case, the State Ministry of the Environment. Thus, the role of the provincial and district government in building pressure has become relatively more important, a process already well under way before the start of the decentralisation process in 1999. So it is more apt to speak of government involvement in a broad sense.

84

For a theoretical overview of this issue, see Bedner, A.W. and Van Rooij, B., ‘Environmental Disputes and Enforcement’, paper presented at the 3rd INSELA seminar, Leiden, 20 June 2001, 1–10.

85

One of the officials of the Bandung Environmental Impact Agency told me that the owner of the factory personally attended the mediation session, fluently spoke the local language, Sundanese, and would also occasionally visit the neighbourhood concerned (interview with Mr. Jusuf Supriatna, 25 July 2001). His enterprise was moreover of a size that precluded moving the capital.

86

Cf. the sophisticated work on compliance with environmental regulatory standards in Kagan, R., Gunningham, N. and Thornton, D., ‘Explaining Corporate Environmental Performance: How Does Regulation Matter?’, Law and Society Review, 37[1], March, in particular p. 83 (2003).

87

Cf. Colombijn, above n. 5, at 320–327.

88

Nicholson, above n. 2, at 297–298. 111

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Importantly, there are few indications that the threat of litigation led ‘defendants’ to accept mediation.89 Apparently companies are more afraid of damaging their relations with the government than of losing a lawsuit. In several of the cases mentioned above government agencies desposed of monitoring reports indicating pollution, which seems to have contributed in bringing the culprit to the mediation table.90 Given the lack of government sanctions following such reports, this seems the relevant psychological factor rather than fear of enforcement.91 That public relations in general also play a role is evident from the influence of press exposure, which is a significant factor in getting mediation started.92 In some cases demonstrations against the culprit contributed as well.93 Another effective way for communities to force those causing environmental damage to the mediation table is by taking the law in their own hands or threatening to do so. In their mildest form these ‘weapons of the weak’ may be the call for a consumer boycott (allegedly effective in the Dukuh Tapak case94), but there are also cases where communities threatened to burn down a factory (Palur Raya)95 or effectively took hostage employees of the firm concerned.96 The danger is of course that the other side responds with violence and/or divide-andrule strategies, as for instance in the prolonged Rancaekek dispute where every community leader looking for a face-off with the major pollutant was allegedly bribed to give up such plans.97

89

This factor played a part in Tembok Dukuh (1991) and Naga Mas (1994).

90

This was the case in Tapak River (1991), Sibalec (1994), Naga Mas (1994), Ciujung (1995), and Samitex (1995).

91

One should note that there are wide discrepancies in the preparedness to enforce environmental law. The enforcement record of the East Java Government (Lucas and Djati, above n. 4, at 102–111) is for instance much better than that of the Central Java Government (Aden, above n. 16, at 5). Nonetheless, two of the cases mentioned in the previous footnote were situated in Central Java, none of them in East Java.

92

Nicholson, above n. 2, refers to this in Tyfountex, Sambong River, Siak River, Sibalec, Naga Mas, Kamasritex, Tawang Mas, Kelian Equatorial Mining (Rio Tinto) and PT Kayu Lapis. As most of these cases were under the New Order, it evidences the relative freedom of the press to deal with such issues, as already mentioned in the section concerning the right to information.

93

Nicholson, ibid., refers to Siak River (1992), PT Pura (1999), Tawang Mas (2000), Kelian Equatorial Mining (2001), Palur Raya (2001).

94

Lucas, above n. 5, at 192.

95

Nicholson, above n. 2, at 222.

96

McCarthy, J.F., ‘Decentralisation Blues: Dominance, Resistance and Acquiescence in a Forest Dispute in Central Kalimantan’ (forthcoming MS on file with author), 11–12.

97

Interview with the Vice-Chairman of the Village Parliament of Cilegong, Mr. Priatna (28 July 2001) and interview with WALHI West Java Chairman Mr. Tofan (31 July 2001). For a detailed account of such a process, see Case Studies on Decentralisation and Forests in

112

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An economic mechanism often cited in the literature as effective in putting pressure on companies with bad environmental records98 has not been important in the Indonesian case: there have been hardly any mediation cases involving companies which had to fear an international consumer backlash. Here global networks are not yet actually influencing disputes at the local level. Finally, it is very hard to say anything about influence of considerations of a moral nature or feelings of guilt on the part of those causing environmental damage or pollution. In some cases described by Nicholson such considerations are likely to have played a part because there were so few other incentives at work, but the information is inconclusive.99 The case-study of Teluk Lingga by Kunanayagam and Young (1998) clearly shows how important moral concerns on the part of the company can be, but that case was not one of true mediation.100 In most cases moral concerns seem to be of little prominence. (c) Getting an agreement The same factors working in the process to get mediation started continue to operate, with remarkably few cases getting nowhere: of Nicholson’s sample of 17 there are only two (Tembok Dukuh and PT Kayu Lapis). The government continues to play a paramount role in the majority of cases, not only as mediator but most of all in continuing to exert pressure on the parties involved, in particular the ‘defendant’. This is of crucial importance given the inclination of some companies to use the mediation procedure as a delaying tactic. In two out of three cases which got stuck at this stage, Nicholson records absence of (continued) government pressure as the main reason for the failure of the process.101 Another effect of little government involvement is that during the process attention tends to shift to compensation instead of measures to prevent further pollution or damage, as happened for instance in the Tapak River case. The result

Indonesia, Case Study no. 2, in McCarthy, J.F., ‘Decentralisation and Forest Management in Kapuas District, Central Kalimantan’ (Bogor, Indonesia, CIFOR, 2001), at 21–27, and Nicholson’s account of the Palur Raya case (Nicholson, above n. 2, at 216–241). 98

Kagan, Gunningham and Thornton, above n. 86, at 77.

99

It certainly did not play a significant part in the two cases Nicholson describes in detail in his study (PT Palur Raya and PT Kayu Lapis, above n. 2, ch. 5).

100

Kunanayagam and Young do refer to a crucial brokering role by NGOs and themselves between residents, company and the state in order to solve certain disputes, so it does come close (Kunanayagam, R. and Young, K., ‘Mining, Environmental Impact and Dependent Communities: The View From Below in East Kalimantan’, in Hirsch and Warren, above n. 2, at 154–156).

101

They are Tembok Dukuh (1991) and Ciujung (1995). 113

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may also be an agreement that cannot be implemented straight away, but calls for further examination by a team of experts.102 Inadequacy of the mediator may also contribute to a shift in focus to the issue of compensation, as in Siak River, and PT Indoacidatama. As Nicholson correctly remarks about the latter case, if such an agreement suggests that it is all-inclusive, this may be an important obstacle to subsequent litigation.103 A major problem is that the mediation process may actually take years, and an extended procedure is no guarantee of a successful outcome. In several cases (notably Tembok Dukuh, Tyfountex, and PT Kayu Lapis) it seems that the culprit effectively used the mediation to appease the aggrieved parties for the time being without a genuine commitment to reach an agreement. That this tactic is mostly effective follows from the fact that demonstrations or other forms of community action hardly played a role at this stage, with the exception of PT KEM. The role of the press also seems less significant than in earlier stages of the process. Although in many cases the press continues to follow the case, they no longer make headlines as they did when the dispute came to a head. (d) Implementing the agreement Whilst it is too early to study the implementation of court judgments in civil or administrative environmental cases in Indonesia, as hardly any are liable for enforcement, not having been officially entered, there are some data available on the implementation of mediated agreements. From a legal point of view, agreements are contracts of a civil law nature. There is no mechanism for courts to convey an ‘exequatur’ to mediated agreements, so that they are not backed up directly by the threat of government force.104 From a cynical point of view it is therefore remarkable that in eight105 out of Nicholson’s 13 cases where an agreement was reached the agreement was implemented without significant problems. This applies to both the payment of compensation and measures to prevent further environmental distress. In fact, in four of these cases (Sambong River, Sibalec, Naga Mas, and Palur Raya) a problem with implementation occurred, but concerned the government, which failed to

102

This happened in Tyfountex, Tawang Mas, and Palur Raya. However, in the latter case the problem was the (twisted) interpretation of what seemed a solid agreement (Nicholson, above n. 2, at 238).

103

Nicholson, above n. 2, at 199.

104

However, given the problems with implementation of judgments in Indonesia in general, one should not make to much of this point. See generally Butt, S., ‘The Eksekusi of the Negara Hukum: Implementing Judicial Decisions in Indonesia’, in Lindsey, T. (ed.), Indonesia: Law and Society, Sydney, The Federation Press, 1999).

105

Sambang River, Sibalec, Naga Mas, PT Sumber Sehat, PT Pura, and Kelian Equatorial Mining.

114

4. Access to Environmental Justice in Indonesia

live up to its promises of rehabilitation and monitoring. In two cases (Samitex and Kanasritex) government pressure clearly contributed to the implementation of the agreement. Factors causing problems in implementation were loss of government involvement (Tapak River), but also lack of detail in the agreement (Tawang Mas), or both (Siak River). In most cases, the media lost interest and no longer offered a platform of criticism. Nicholson also offers an interesting overview of further significant conflict after the agreement. Here the record is fairly similar, with such conflict occurring in eight out of 17 cases, whilst the record for the period after the demise of the New Order is two out of six cases.106 (e) Conclusion The record of environmental mediation in Indonesia is fairly positive, but it takes certain conditions to get the process started and keep it under way until an agreement has been reached and implemented. As the relational distance between the parties to a dispute is usually too large to make mediation an obvious choice of dispute resolution and as litigation does not pose a serious alternative, other factors must be at play to redress the asymmetric power relations found in most cases. Significant factors are active government involvement, publicity, and community action against the culprit. Whilst their relative weight varies according to the stage of the procedure, government involvement is certainly the most important of them. Another important finding is that in most cases parties implemented the agreement without any further pressure and that in about half the cases no further significant conflict between parties occurred – with an even better percentage for the Reformasi period. Mediation also has its drawbacks. First, if the government does not want to get involved, plaintiffs have little to expect from a mediation process. Some companies used mediation as a delaying tactic rather than as a tool for dispute resolution, and in most cases the process took quite a lot of time, often several years. Furthermore, in some cases there was a tendency to shift the attention from the environmental issues to those of compensation, one reason why mediation can never substitute for regular environmental law enforcement and litigation. Nonetheless, whilst mediation cannot completely replace litigation, it certainly is a welcome addition to the available forms of environmental dispute resolution.

106

Nicholson, above n. 2, at 315. 115

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IV. ACCESS TO LITIGATION AND MEDIATION AND FACTORS SHAPING THEIR EFFECTIVENESS The above analysis indicates that at present in Indonesia mediation is more effective to resolve environmental disputes than litigation. Moreover, mediation appears to be relatively independent of the availability of an effective system for litigation, in the sense that it leads to results without the threat of effective litigation backing up the procedure.107 However, one should bear in mind that in the absence of comprehensive data the analysis of mediation has been both pollution- and Java-oriented. In many parts of Indonesia the balance of power is still more asymmetric than in the cases discussed, for instance when the local government is heavily engaged in illegal logging, and in those cases litigation may actually form the only resort for citizens suffering environmental distress. Moreover, the fact remains that both mediation and litigation do not occur often, even if there has been an increase in cases in recent years. In this section I will discuss some of the factors which are likely to have influenced the use made of mediation and litigation, narrowing down from very general issues as the economic situation to more specific ones such as the image of the judiciary. I will also look at some of the tendencies which may influence their future use. (a) Economic conditions As the increase in environmental disputes was a direct consequence of economic expansion under the New Order,108 one might be tempted to think that the economic slowdown in the 1997–8 crisis reduced environmental stress and consequently environmental disputes. However, companies have embraced the economic adversity as a reason for non-implementation of environmental measures rather than for closing down their enterprise, thus exacerbating tensions between companies and local residents rather than reducing them. This applies particularly to those industries refusing to curb their pollution for, allegedly, economic motives,109 with federations of industries never failing to point

107

As rightly pointed out by Andrew Harding in a comment on an earlier version of this Chapter, litigation may influence mediation procedures in other indirect ways, for instance in presenting a ‘remedial frame of reference’ for the parties involved. Such influence is not evident, however, in Nicholson’s detailed case studies of the Palur Raya and Kayu Lapis Indonesia mediation procedures (Nicholson, above n. 2, ch. 5). That environmental law in general serves as a frame of reference is beyond doubt.

108

E.g. Cribb, R., ‘Environmentalism in Indonesian Politics’, in Bedner and Niessen, above n. 8, at 37–48.

109

E.g. Santosa, above n. 15, at 212, about the paper and pulp industry; Lucas, above n. 4, at 187.

116

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to the danger of bankruptcy given increased international competition.110 The situation is further complicated by the fact that local communities tend to split over pollution issues, as they comprise both people employed by the industries concerned and peasants afflicted in their livelihoods. This inevitably leads to complex disputes. Furthermore, the government is tempted to be lenient in environmental law enforcement111 and to let economic instead of environmental considerations prevail in licensing issues.112 Given the importance of the government’s role in both litigation and mediation and the continuing critical economic situation, the result is a reduced outlook on environmentally positive outcomes of disputes. (b) Liberalisation The demise of the New Order has resulted in far less political oppression, reflected in a remarkably free press and widespread actions by communities to redress injustice. Generally speaking, people have better access to information and are less afraid to bring complaints against more powerful parties damaging their interests.113 NGOs can operate much more freely, and litigation has become easier as there is less government intimidation.114 However, there are still limits to this freedom. ‘SLAPPs’ (Strategic Lawsuits Against Public Participation) constitute an increasingly worrying phenomenon, with the recent defamation cases of racketeer Tomy Winata against Tempo magazine as a sadly low point.115

110

For the textile industry, see e.g. The Jakarta Post 12 May 2003.

111

Cribb, above n. 108, at 48. In West Java, for instance, the number of inspection visits declined from 130 in 1996 to zero in 1998 because of budget cuts: Santosa, above n. 15, at 253, n. 1.

112

A good example is the central government’s decision to grant 22 mining licences in forest reserve areas (by Government Regulation in Lieu of Act no. 1 of 2004 (Asia Times Online, 17 Mar. 2004).

113

E.g. Lucas, A. and Warren, C., ‘Agrarian Reform in the Era of Reformasi’, in Mannings, C. and van Diermen P., (ed.) Indonesia in Transition: Social Aspects of Reformasi and Crisis (Singapore, London, ISEAS/Zed Books, 2000).

114

An example would be that under the New Order university employees were sometimes afraid to appear in court as experts in environmental cases, fearing negative consequences for their careers (Lucas, above n. 5, at 202).

115

In these cases the East and Central Jakarta District Courts upheld defamation claims against Tempo to pay compensation of more than US$1 million. The judgments have caused major unrest in Indonesian human rights circles and elicited an official protest from the International Federation of Journalists (Laksamana.Net, 18 Mar. 2004). Warren offers a striking example, where in the case of the Bali Nirwana Resort the farmers lost the case against the company and were subsequently ordered by the court to pay the equivalent of US$35,000 for costs and compensation of damage to the good reputation of the defendant: Warren, above n. 5, at 248. 117

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Moreover, as we have seen in connection with the right of information, government practice is often not in line with the lofty principles of the rule of law laid down in the Constitution. Nonetheless, liberalisation is happening in Indonesia and is generally promoting environmental litigation and mediation. Better access to information following the enactment of a Freedom of Information Act will be the next step under this banner to reinforce a citizen’s position in environmental disputes.116 (c) Decentralisation and democratisation Probably the most discussed development in Indonesia over the past few years has been the decentralisation process started in 1999 by the Regional and Fiscal Autonomy Acts (nos. 22 and 25). Whilst in certain districts decentralisation seems to have resulted in the benefits associated with it in international donor circles,117 this is not generally the case.118 One of decentralisation’s primary effects has been an increase in political diversity amongst regions, making it more difficult to speak of Indonesia in general. If we try nonetheless to distill some of the main trends in decentralisation affecting access to environmental justice, the first thing is the increased pressure on the environment following the redistribution of income between centre and districts from resource exploitation, which is traditionally the main prize in a political environment dominated by patrimonial relations.119 Serious disputes between the centre and the regions in cases concerning forestry have been accompanied by the emergence of new constellations of local strongmen, military, police and district government which effectively rule out the possibility for citizens to resort to any balanced form of dispute resolution.120 Large scale mining has remained within the authority of the central government, and here we see a 116

See above n. 25.

117

For a general discussion see Frerks, G. and Otto, J.M., ‘Decentralisation and Development: A Review of Development Administration Literature. In Commemoration of Dr Haile K. Asmerom’, Leiden, Van Vollenhoven Institute for Law and Administration in Non-Western Countries, Research Report 96[2] (1998). For relatively successful cases see International Crisis Group, ‘Indonesia: Managing Decentralisation and Conflict in South Sulawesi’, Asia Report no. 60, 18 July 2003; and von Benda-Beckmann, F. and von Benda-Beckmann, K., ‘Between Global Forces and Local Politics: Decentralisation and Reorganisation of Village Government in Indonesia’, Paper presented at the Seminar ‘Globalisation and Law in Asia: from the Asian Crisis to September 11, 2001’, Onati, 10 April 2003.

118

For an overview, see Schulte Nordholt, H., ‘Renegotiating Boundaries: Access, Agency and Identity in Post-Soeharto Indonesia’, BKI, 159–154, pp. 550–589 (2003).

119

Parnwell and Bryant, above n. 2, at 9.

120

See e.g., McCarthy, J.F., ‘Power and Interest on Sumatra’s Rainforest Frontier: Clientelist Coalitions, Illegal Logging and Conservation in the Alas Valley’, 33(1) Journal of Southeast Asian Studies, 105–106 (2002).

118

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marked increase in numbers of disputes since the start of decentralisation.121 In both forestry and mining cases local people, cynical after long periods of marginalisation, often opt for short time benefits and look for compensation rather than entertaining hopes for saving the environment and their traditional livelihood.122 It therefore seems that the prospects for environmental justice, which were pretty poor in any case, have further declined. If we look at disputes concerning industrial pollution, the situation is different. Whilst some have been captured by industry interests, other district governments have actively engaged in assisting citizen-intitiated dispute resolution. Conditions vary from one district to the other, depending on the degree of political plurality, but on the whole it seems that in this field access to environmental justice has become easier. One significant factor here is the proliferation of environmental agencies at district level, and therefore a stronger representation of environmental interests within the provincial and district government bureaucracy.123 A final remark is that the decentralisation drive also requires technical legal measures which are not always forthcoming. Thus, environmental quality standards must now be enacted by the provinces, whereas they formerly fell under the central government. As a consequence, pollutors in some provinces no longer break the law because there is no law to break.124 (d) State control One important problem is that state agencies generally have lost much legitimacy and as a result may have serious problems of control. As this was voiced by a sub-district Head (Camat) in East Bandung: ‘You know, under the New Order they [the people in his district] would first come to me if something was going on. Presently they just do whatever they like. I simply do not know of many events to happen.’125 Of course this impression is not representative of the situation in the whole of Indonesia, but still one that is described in many regions.126 Another strand in the literature is the increase in violence from vigilante organisations, which may be hired by companies in order to intimidate their adversaries.127 This poses a genuine threat to those going against the interests of such companies.

121

For an overview of cases, see .

122

McCarthy, above n. 120, at 104–105.

123

Bedner, above n. 8, at 24–25.

124

Ibid., at 16.

125

Interview with the Subdistrict Head of Sukapada, Bandung (2 Aug. 2001).

126

Cf. Schulte Nordholt, above n. 118, at 577.

127

See e.g. Ford, M., ‘Whatever It Takes: Workers, Often Women, Take Risks to Earn an Honest Living’, Inside Indonesia, Jan.-Mar. 2002, and McCarthy, J.F., ‘Changing to Gray: 119

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Now that we have seen in the above discussion how important government involvement is in attempts to resolve environmental disputes through mediation and litigation, it is obvious that a reduction in government control works against effective access to environmental justice. Moreover, if the already dismal record of Indonesian administrative and criminal environmental law enforcement becomes worse, it will be more difficult for citizens to find a way to redress the environmental distress they are suffering. (e) The role of NGOs NGOs play an indispensible role in both environmental mediation and litigation, as many if not most victims of environmental distress will never find their way to mediators or courts without professional help for social and financial reasons. Fortunately a large pool of environmental NGOs has been operating in the space between individual citizens and the state and translated individual complaints into action.128 These NGOs have, moreover, become increasingly active following Reformasi.129 Cribb has described how environmental NGOs were initially given much leeway by the New Order government, but later were increasingly constricted as they became regarded upon as opponents of the regime.130 Colombijn adds to this analysis in explaining the differences in outlook between local, national and international NGOs and how this has often made environmental action less effective.131 In both respects the situation has changed. Most environmental NGOs are again an accepted part of the political landscape and the communication between grassroots, national and international NGOs has improved. This is mostly due to the proliferation of internet access, which has made available a huge reservoir of knowledge to the local level, and enabled grassroots NGOs to directly contact international organisations.132 National NGOs are still important, however, in influencing government policy and in mastering the technical aspects of many environmental issues. In any case, the combination of liberalisation and internationalisation has reinforced the position of NGOs and their capacity to assist citizens in getting access to environmental justice, although even then much depends on the availability of an NGO with members of sufficient judicial skill to bring a case

Decentralization and the Emergence of Volatile Socio-Legal Configurations in Central Kalimantan, Indonesia’, (32) 7 World Development, 1210–1211 (2004). 128

Colombijn, above n. 5, at 323–324.

129

E.g. Lucas and Warren, above n. 113, at 227.

130

Cribb, above n. 108.

131

Colombijn, above n. 5, at 320–327.

132

Interview with WALHI West Java Chairman Mr. Tofan (31 July 2001).

120

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to court. In many cities there are legal-aid agencies, but for citizens from the countryside these are usually difficult to access133 and not all of them are sufficiently acquainted with environmental law.134 (f) The image of the judiciary One important factor inhibiting the use of litigation is the extremely negative image of the judiciary. There is a widespread belief that in environmental disputes companies control the judiciary and the government,135 and that it therefore makes little sense to take a case to court. This image is not unfounded. Corruption in the judiciary is widespread and under the New Order executive control of judicial management led to a system subverted by perverse incentives.136 Indeed, if one looks at environmental cases there are several of them where one cannot escape the impression that external influences defined their outcome.137 Whilst the official costs of taking a case to court are low, the ‘real’ costs may be huge.138 Nonetheless, the image is probably bleaker than the reality. It has become almost habitual to blame a negative outcome in a case on the corruption of the judge139 and even some legal scholars reduce the paucity of environmental cases to the lack of capability of environmental judges to deal with them.140 Whilst the environmental case record of the Indonesian courts is far from impeccable, however, the cases discussed above certainly do not warrant such a negative conclusion. There is also some hope for this situation to improve – starting with improvements within the judiciary itself. Two developments will probably be of much influence here. The first one is that a major thrust of Reformasi has been to reform the judiciary. Whilst this process runs far from smoothly, one cannot

133

For an impression of the scope of legal aid, see Lev, D. ‘Legal Aid in Indonesia’ (Clayton, The Centre of Southeast Asian Studies, Monash University, 1987), in particular at 16.

134

It is remarkable in this respect that even the extremely knowledgeable advocacy department of ICEL does not always use the legal possibilities to the full. Thus, as already mentioned, the EMA’s Article 25(3), which allows a citizen to put in a request for administrative enforcement action, has never been used (discussion with Chairwoman of ICEL, Mrs. Wiwiek Awiati, 28 May 2003).

135

An impression based on my own discussions with a wide range of Indonesians. For a good example, see Lampungonline.com, 29 Apr. 2002.

136

Pompe, S., ‘The Indonesian Supreme Court: Fifty Years of Judicial Development’, PhD Thesis, Leiden University, 1996, notably at 344–348; Bedner, above n. 28, at 235 ff.

137

A good example is the already mentioned Pantura case.

138

Cf. Bedner, above n. 28, at 234–237.

139

Ibid., at 241–242.

140

E.g. by lecturer M. Jamin of Surabaya National University in Suara Merdeka 23 June 2003. 121

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deny that the at the top of the pyramid in particular, in the Supreme Court, some important changes have taken place.141 Major political cases may still be beyond the power of the Supreme Court to decide on the basis of the law only, but less important cases are likely to become increasingly law-led. Here one should note that as yet few environmental cases have made it to the Supreme Court and therefore interpretational guidelines are largely absent.142 Whilst the reluctance to carry a case to the highest level is understandable from the perspective of the litigant in the case concerned, it works to the detriment of those coming later. The second influence, which is already noticeable in some recent cases143 is the effect of the AusAid funded judges’ training project initiated by the Indonesian Center for Environmental Law (ICEL) in co-operation with some Australian universities. At present 800 judges have participated in this program and become acquainted with major aspects of environmental law.144 This element of capacity building may be further reinforced by other ICEL plans, now adopted by the State Minster of the Environment, to establish environmental divisions within the general courts.145 There is therefore some hope that the courts will start to apply the tools offered by the 1997 EMA – notably strict liability – and thus overcome the almost insurmountable barrier of giving evidence.

V. CONCLUSIONS In 2000 former State Minister of the Environment Emil Salim wrote that ‘environmental law, no matter how good its formation and system, cannot be applied unless there is a complete reversal towards a balance of power between the authorities, entrepreneurs, and society’.146 Six years after Soeharto’s fall from power these words have lost little of their meaning, whilst the number of environmental disputes seems to have rapidly expanded. However, at the same time important legal, political, and social changes have taken place, offering some hope for the future of environmental litigation and mediation.

141

To date there is no good study available regarding this issue. For useful information I refer to the website of LeiP, an NGO performing the function of watchdog of the judiciary ().

142

The Supreme Court is also slow in dealing with environmental cases, according to a criticism by Walhi (Gatra, 19 Jun. 2003).

143

E.g. Nicholson, above n. 2, at 143 (about the Banger case).

144

Interview with ICEL member Windu Kisworo (4 July 2003).

145

Tempo Interaktif, 15 Dec. 2003.

146

Salim, E., ‘Dari Setetes Air Menjadi Air Bah: Sambutan Prof. Dr. Emil Salim’, in Santosa, above n. 15, at v.

122

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To start with the latter, it seems that the prospects for litigation as an effective means of dispute resolution are reasonably positive, albeit with a continuing danger of some abominable judgments. As I have tried to demonstrate, the judiciary’s performance in environmental cases has not been as bad as is often assumed and has, moreover, improved over the past few years. Further measures such as establishing more specialised environmental courts or chambers and a doctrinal shift towards admitting ‘localised evidence’ and reduced demands in proving causation would be of great help. However, even if such measures will not come forth the current framework offers sufficient opportunities of greater success for litigants, in particular the path of strict liability. Much depends on environmental NGOs offering specialised legal aid and disposing of the means and endurance to pursue cases up to the Supreme Court resulting in more guidance for lower courts. Apart from its dispute-resolution capacity, litigation will moreover continue to serve as a ‘tool to mobilise public opinion or support for certain issues’, as a means of ‘political education’, or as means of ‘shaking the power through bringing facts into the open through the courts’.147 Up until now, environmental mediation has been more effective than litigation, from the perspective of the victims of environmental distress. This finding, rather surprising in view of relational distance theory, is largely dependent on the degree of government interference in dispute processes. Therefore, it seems that the reduction in government enforcement of environmental law since the start of the economic crisis and the new constellations of power emerging in some regions following the decentralisation process may turn the odds against those suffering environmental distress. In this light the importance of litigation increases, as the threat of effective litigation may to some extent supplant government interference. Of course the use of these gateways to environmental justice depends on many contextual factors, including the presence of NGOs, the opportunity to have access to information, the form of licences, and other factors mentioned earlier. These in their turn depend to a large extent on the national and local political situation, which is not judged very favourably by many observers, in particular with regard to the environment. There is much truth in these observations and the situation of the Indonesian environment is bleak indeed, in particular in the field of nature conservation, erosion and pollution. However, whilst the number of disputes is likely to increase under these conditions, it seems that many political obstacles blocking the road to resolving them have been removed during the past few years. Therefore, in spite of occasional setbacks and the fact that there is still a long way to go, at present the future of litigation and mediation looks more positive than before the demise of the New Order.

147

Santosa, above n. 15, at 59. 123

Chapter 5

ACCESS TO ENVIRONMENTAL JUSTICE IN MALAYSIA (KUALA LUMPUR) Andrew Harding and Azmi Sharom 1

I. INTRODUCTION

M

alaysia experienced unprecedented economic growth from about 1980, averaging 8.4% average annual GDP growth up to 1997–1998, when economic crisis hit all of South East Asia. This growth, premised on virtually uncontrolled development, exacerbated many environmental problems.2 Under recent economic plans development has been undertaken at a rate that makes the

1

This study originates in the SOAS project on Access to Environmental Justice in Asia and Africa (SOAS/A2EJ), in which the authors conducted research in the Kuala Lumpur (KL) conurbation in 1996, which was then updated for the present volume. Professor Andrew Harding, now Professor of Asia-Pacific Law, University of Victoria, BC, Canada, was Team Leader of SOAS/A2EJ; Dr Azmi Sharom, Associate Professor, Faculty of Law, University of Malaya, was a resource person. In this study KL is broadly defined to include the Federal Territory of Kuala Lumpur (FT), which has its own City Council (Dewan Bandaraya Kuala Lumpur: DBKL); and its suburbs, technically within the state jurisdiction of Selangor, including, principally, Petaling Jaya. The conurbation has an estimated population of two million and contains a large concentration of industry as well as residential areas.

2

MacAndrews, C., and Chia, L.S., Developing Economies and the Environment: the South East Asian Experience (Singapore, McGraw-Hill, 1979). For literature on environmental problems generally in Malaysia, see Lee, D., The Sinking Ark: Environmental Problems in Malaysia and South East Asia (Kuala Lumpur, Heinemann, 1980); Aiken, S.R., et al., Development and Environment in Peninsular Malaysia (Singapore, McGraw-Hill, 1982); Allen, J., Asia/Pacific and the Environment (Hong Kong, Business International Asia/Pacific, 1992); Seda, M., (ed.), Environmental Management in ASEAN: Perspectives on Critical Regional Issues (Singapore, ISEAS, 1993); Sham Sani, Environment and Development in Malaysia: Changing Concerns and Approaches (Kuala Lumpur, Centre for Environmental Studies, ISIS, 1993); Sham Sani, ‘The State of the Malaysian Environment and its Outlook for the 1990s’, 38 Akademika 87 (1991).

Harding (ed.), Access to Environmental Justice: A Comparative Study, 125–156 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

express policy of sustainable development3 itself difficult to sustain. The dramatic effect of Malaysia’s economic and political strategy during this period has been to create a dynamic economy in which the benefits have been deliberately skewed towards the economically still backward but politically dominant ‘bumiputera’ community (Malays and natives of Sabah and Sarawak),4 while not hampering the ability of the minority communities (principally Chinese and Indian) to benefit from – and also to be engines of – economic growth. This situation is expressed in terms of a social contract, set out clearly in the Constitution,5 under which the non-bumiputera communities have citizenship rights in return, historically speaking, for special privileges being granted to the bumiputera communities.6 It will be readily seen that this policy has potentially discriminatory environmental effects on the poorer sections of the non-bumiputera communities, principally the urban Chinese, who are concentrated in major cities and towns, notably the federal capital, Kuala Lumpur (KL). The deleterious environmental effects of development, however, have been clearly seen in this study to affect all of the city’s residents. KL is a socially as well as economically dynamic city in which the definition of poverty is changing rapidly. The number of squatters in the Federal Territory was estimated in 1990 at 180,000.7 The number of cars is estimated to be around 1,400,000. KL is also one of the heaviest polluted cities in Asia: for example, it has the 12th highest level of suspended particulate matter (SPM) in Asia, and the highest of the Asian cities studied in the A2EJ project.8 At the same time, in some aspects the authorities have been comparatively successful in reducing pollution, and there may be lessons to be drawn for other cities. SPM levels, though two to three times higher than New York and Tokyo, have in fact declined in the last few years, in spite of the huge increase in the numbers of vehicles.9 A further point to made about KL is that it exhibits the phenomenon known as

3

Most recently expressed in the Ninth Malaysia Plan, ch. 22, for which see . See also Mohamed Nordin Haji Hasan, ‘Environmental Management as a Strategy for Sustainable Development’, ch. 10 of Teh Hoe Yoke and Goh Kim Leng (ed.), Malaysia’s Economic Vision: Issues and Challenges (Petaling Jaya, Pelanduk, 1992).

4

See Federal Constitution of Malaysia, Art. 160(2).

5

Federal Constitution at e.g., Art. 153. See, further, Harding, A.J., Law, Government and the Constitution in Malaysia (Kuala Lumpur, Malayan Law Journal, 1996), at 39, 45, 269 and ch. 14.

6

See, generally, Harding, above n. 5.

7

Malay 33%, Chinese 52%, Indian 15%.

8

Malaysia: Managing the Costs of Urban Pollution, Country Economic Report, World Bank Report No. 11764–MA, 15 November 1993, Table 1.2.

9

Environmental Quality Report 1994, Department of Environment, Ministry of Science, Technology and Environment (Kuala Lumpur, 1995), figs. 3.1, 3.2, pp. 12–13.

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5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

‘urban heat island effect’, with temperatures exceeding those in surrounding rural areas sometimes by as much as 5 degrees celsius. The geography of the Kelang Valley is such that the lie of the land and the incidence of land and sea breezes creates great differentials in pollution levels in different areas.10 A review of local newspapers carried on during four weeks June-July 1995 revealed an extraordinary array of environmental problems in KL, but also a corresponding awareness and concern. The main ones11 appeared to be inadequate housing; lack of recreational facilities and ‘green lungs’; air pollution from mobile and industrial sources; haze caused by forest fires in Indonesia, becoming very serious from time to time; water pollution from industrial sources; blocked drains causing flooding and insanitary conditions; illegal dumping of household and toxic waste. Traffic, construction work, industry and squatter clearance appeared to cause the worst problems.

II. ENVIRONMENTAL LAW IN HISTORICAL PERSPECTIVE Malaysia is a common-law jurisdiction with a judiciary and legislature based closely on the English or Westminster model. One fundamental difference however is that it has a written constitution.12 The Malaysian Parliament is divided into three: the Dewan Rakyat (lower house), with elected members; the Dewan Negara (upper house), with appointed members; and the Yang di-Pertuan Agong (King).13 The elected State Legislatures are similar to Parliament in structure and methods. The ruling Barisan Nasional coalition has continually enjoyed more than a two-thirds majority in Parliament, so that any legislation proposed by the Government, even significant constitutional amendments, passes through the legislative process with ease. As in most countries, environmental law as such has not been recognised until quite recently. Nonetheless, even before independence in 1957 and the rapid expansion of Malaysia’s economy from the early 1970s, there were laws of an environmental nature.14 The existence of no less than 13 states, each

10

Sham Sani, ‘Post-Merdeka Development and Air Quality Degradation in Malaysia’, 36 Akademika 33 (1990). Thus Chinese squatter communities along the low-lying and traffic-benighted Jalan Kelang Lama are subject to far greater pollution than the wealthy hillside suburb of Damansara Heights.

11

This is borne out by the World Bank study: above n. 8.

12

The Federal Constitution 1957.

13

Federal Constitution, Art. 44. For discussion of legislative and executive powers, see Harding, above n. 5, chs 4, 6, 7.

14

Notable examples are the Waters Act 1920 (FMS, Act 418), which controlled pollution of inland waterways; the Irrigation Areas Act 1953, which controlled irrigation canals; 127

Access to Environmental Justice: A Comparative Study

with its own colonial and post-colonial legislative history,15 makes a recitation of relevant statute law problematical.16 However, in general environmental problems were relatively few by prevailing standards until Malaysia began its rapid economic rise in the 1980s. In 1974 the Environmental Quality Act (EQA)17 was passed, under which the Department of Environment (DOE) was established within the Ministry of Science, Technology and Environment. Federal environmental functions are discharged through the DOE, set up in 1976 with its own Director-General of Environmental Quality (DG), and advised by an Environmental Quality Council (EQC). So far as the urban environment is concerned, most relevant matters are dealt with by the EQA, the Local Government Act 1976 (LGA), the Town and Country Planning Act 1976 (TCPA), and its FT equivalent, the Federal Territory (Planning) Act 1983 (FTPA).18

III. STRUCTURE OF ENVIRONMENTAL DECISION-MAKING The fact that Malaysia is a federation is of considerable interest and concern from an environmental point of view. The constitutional division of state and federal powers over environmental matters is complex. For example, land, forestry and mining are state matters, albeit dealt with by common-form legislation, but regulation of industry, water supply and energy are federal matters. Planning is a concurrent power but is carried out by local authorities under state government supervision. Nuisances and licensing also fall within local government control. The word ‘environment’ does not appear in the Constitution. However, in the FT all matters are federal, although the Dewan Bandaraya Kuala Lumpur (City

the Land Conservation Act 1960; and many other statutes controlling other activities such as forestry, tin-mining, and nuisances. Development control began in 1923 with the Town Planning Enactment (FMS). 15

The states comprising Malaysia are 13 in number. Historically legislation was promulgated by each, but also by four federations (Federation of Malay States 1895–1946, Malayan Union 1946–1948, Federation of Malaya 1948–1963, and Malaysia 1963–date), not to mention the Straits Settlements colony, two parts of which, Penang and Malacca, are now States of Malaysia. One problem of environmental legislation is that much state legislation was conceived before the division of state and federal powers was effected by the Federal Constitution in 1957.

16

For an overview of Malaysian environmental legislation, see Bankoff, G., and Elston, K., Environmental Regulation in Malaysia and Singapore, Asia Paper No. 2, Asia Research Centre, University of Western Australia (Nedlands, Western Australia, 1994), 1–44.

17

Act 127.

18

See, further, Harding, A.J., ‘Planning, Environment and Development: A Comparison of Planning Law in Malaysia and England’ 5 Environmental Law Review 231 (2003).

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5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

Council) exercises local-government functions. The remainder of the conurbation falls under the state jurisdiction of Selangor, and both Petaling Jaya and Shah Alam have a Majlis Perbandaran or Town Council. The EQA proclaims itself a federal law even though it deals with some matters that appear to be within state jurisdiction. The EQA goes far in enforcing the federal will in environmental matters. The constitutionality of one section (s. 34A), which concerns environmental impact assessment (EIA), was challenged in the case of Kajing Tubek & Ors v Ekran Bhd & Ors.19 However, the High Court refused to make any judgment on the matter, stating that the Federal Court is the proper venue for such constitutional debates. Partly because of such doubts, it is important to establish a clearer division of environmental powers, and a clear vesting of the power of overall policy initiative in the Federal Government is desirable.20 The designation of ‘environment’ as a concurrent power would enable the degree of flexibility needed to effect such a division of powers.21 State Governments have guaranteed fiscal resources under the Constitution,22 even though they have no powers of taxation, but these are in general insufficient to mount major projects or initiatives without federal assistance. This creates an urgent need for income generation regardless of environmental costs, as well as a lack of sufficient funds to initiate and maintain environmental projects.23 There is consequently a lack of resources faced by local authorities, restricting their ability fully to utilise their environmental enforcement powers.24 Thus there have been differences between states and the Federal Government in environmental matters. An example of this is the Endau-Rompin affair, in which the Governments of Johor and Pahang attempted to exploit a natural-forest reserve by granting logging licences despite strong federal protestations.25

19

[1996] 2 MLJ 388. In the Court of Appeal it was held that s. 34A did not apply to Sarawak: Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23.

20

The Report of the Environmental Law Review Committee, Ministry of Science, Technology and Environment (KL, 1993) recommended the creation of a single federal administrative authority as ‘the ultimate solution to the present woes of duplication’.

21

Federal Constitution, Sch. 9.

22

Art. 109, Sch. 10.

23

The States derive much of their income from royalties on exploitation of natural resources, eg timber, minerals, oil.

24

Above n. 13, para. 5.37 ff. For legal difficulties involved in enforcing environmental laws, particularly the requirement of observing natural justice, see Eu Liang Heng v President, Municipal Council, Petaling Jaya [1992] 1 MLJ 691; Subramaniam v Yang di-Pertua, Majlis Perbandaran Petaling Jaya, Criminal Appeal No. 41–161–93, [1994] Mallal’s Digest 748.

25

Shafruddin Hashim, ‘An Episode of Centre-State Relations in Peninsular Malaysia: the Endau-Rompin Case’ (1985) JCCP 140. 129

Access to Environmental Justice: A Comparative Study

(a) Local government Since many urban environmental concerns (particularly public nuisance and planning issues, but also the provision of environmental services) are under the control of local government, the States’ attitude towards local government becomes an important factor. The absence of electoral accountability and the general fiscal weakness of local government indicate that the state governments regard local authorities as minor instruments of policy rather than as dynamic and autonomous entities.26 It should also be noted that since 1965 local authorities in Malaysia have been appointed by the State Government, rather than elected.27 The powers of local authorities derive principally from the LGA28 and the TCPA/FTPA. The State Government is empowered to declare any area a local authority area, under either a Municipal Council or a District Council, comprising the Mayor or President, no less than eight and no more than 20 councillors.29 With the abolition of local-government elections, KL citizens were thus left with local authorities that are essentially unaccountable. Even though the meetings of the local authority are open to public scrutiny, they have the option to make the minutes secret. Committee meetings are even more inaccessible because there is a presumption of secrecy.30 Without either elections or access to information regarding local authority decision-making, it is extremely difficult for members of the public to determine whether local authorities are doing all in their power to protect the environment. With regard to DBKL, the Datuk Bandar (Mayor) is not elected but appointed by the Federal Government for a period of five years, and the DBKL is placed under the Prime Minister’s own Department.31

26

See, further, Lim Hong Hai, ‘Urban Service Provision in a Plural Society: Approaches in Malaysia’, ch. 6 of Rondinelli, D.A., and Shabbir Cheema, G., Urban Services in Developing Countries (Basingstoke, 1988); ‘Viability of Urban Finance: Country Paper on Malaysia’, in Urban Management in Asia: Issues and Opportunities, UNHCS, EDI (World Bank), and National Institute of Urban Affairs, New Delhi (1989), pp. 3–14.

27

Elections were suspended by the Emergency (Suspension of Local Government Elections) Regulations 1965. The Local Government (Temporary Provisions) Act 1974, Act No. A262, abolished all elected local authorities, and gave the power to appoint local authorities to the State Governments: See Harding, above n. 5, at 177.

28

Act 171. This Act came into force in Selangor (Sl P.U. 9/77) and the FT (P.U.(B) 592/76) on 1 January 1977.

29

LGA, ss. 3, 13.

30

LGA, ss. 23, 27.

31

Federal Capital Act 1960, rev. 1970, Act 190.

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(b) Planning and development control Town planning is a particularly important aspect of environmental law in Malaysia.32 As is explained above, Malaysia’s economy is developing with great rapidity, and therefore many controversial issues arise in the context of development proposals, which are governed by the TCPA and the FTPA. Since this legislation is of importance in a number of the relevant areas, the relevant provisions are now sketched. The State Government is responsible for general policy in respect of planning and land use and may give to the State Planning Committee or any local planning authority (LPA) directions of a general character not inconsistent with the provisions of the TCPA.33 State Planning Committees (SPCs) consist of a Chairman, the Menteri Besar (Chief Minister) of the State, and other official and unofficial members.34 SPCs may also give local planning authorities directions.35 And they can cause a local inquiry or hearing to be held in or for the purpose of exercising any of their functions.36 The whole of KL falls within a local-authority area.37 LPAs are given specifically environmental functions by the TCPA. They have duties under s. 7 to survey their area, examining matters affecting planning and development and to keep the survey under review.38 Structure and local plans are crucial to planning policy. LPAs are required39 to prepare structure plans, reflecting the policy and general proposals of the LPA in respect of the development and land use, including measures for the improvement of the physical environment, the improvement of communications and the management of traffic.40 In formulating the policy and general proposals, the LPA must have regard to current policies, both state and national, in respect of environmental

32

For further discussion of the evolution of planning laws in Malaysia, see Lee Lik Meng, ‘Town Planning Law in Malaysia: Politics, Rights and Jealousies’, (1991) 15 Habitat International, 105–114.

33

S. 3. In what follows, note that there are equivalent provisions in the FTPA.

34

S. 4.

35

S. 4(5).

36

S. 4(7).

37

For the FT two Committees scrutinise planning applications: the Town Planning Committee and the Planning Technical Sub-Committee. The most common avenue of objection in the FT is the objection hearing. There are on average about 100–150 such hearings per annum. There is no code of practice, but objectors are allowed to be represented by counsel or other spokesman. The environmental objections most often referred to are increased traffic and the construction itself.

38

S. 7(3).

39

S. 8.

40

S. 8(3)(a). 131

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protection, but also the resources likely to be available for carrying out the proposals of the structure plan.41 One of the duties of LPAs under the TCPA is to prepare a draft structure plan.42 This structure plan forms the policy basis for development in the local authority’s area. The local authority may also prepare a more detailed plan for its area (or parts of its area) called a local plan. Naturally, environmental concerns must be incorporated into these plans. It is not however solely in the power of the local authority to decide the content of the plans, for there are provisions allowing for public participation during the drafting stage.43 However, the practice of this requirement, as illustrated by the experience of the Petaling Jaya (PJ) Residents’ Associations during the PJ draft structure plan public participation process, leaves much to be desired. The first shortcoming is the lack of efficient publicity to the public. Advertisements are placed in newspapers, but these are small and easily missed.44 There is also a shortage of time given to the public to prepare their objections and queries. In the PJ example, there were only 30 days to prepare.45 Furthermore, there was very little useful information about the plan that was provided for public scrutiny before a public meeting with the State Government and the Majlis Perbandaran Petaling Jaya (MPPJ). Thus it was difficult to protest constructively and in an informed manner. Although the TCPA requires public consultation, it says nothing about the extent to which the views of the public should be considered. It would appear that, although there is a right to object to a plan, there is no guarantee that input from the public will be absorbed into the final plan. Apart from the plans another method of maintaining environmental standards through the TCPA lies in the process of applications for planning permission. No development can take place without planning permission,46 and in considering applications the LPA must take into account structure and local plans as well as any objections raised by owners of adjoining land.47 There is scope therefore for the LPA to reject an application on environmental grounds. The conditions that may be placed on the planning permission could also be used for environmental objectives. Furthermore, the local authority may regulate

41

S. 8(4).

42

The final acceptance of the Draft Structure Plan is in the hands of the State Planning Committee: TCPA, s. 10.

43

S. 9(1)(b). The public-participation requirements of local plans and structure plans are almost identical; therefore there will be no separate examination.

44

TCPA, s. 9(2)(a), requires the LPA to advertise in three issues of two national daily newspapers, of which one must be in the national language, Malay.

45

S. 9(3)(a).

46

TCPA, s. 20.

47

S. 21(6). See above for discussion of standing to object.

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5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

the manner with which the development is to be carried out, limiting any adverse environmental impact of the construction works.48 Local authorities also have extensive powers under the LGA with respect to trees, recreational land, parks, and the amenity of public places generally.49 The LPA also has powers to revoke or modify permission that has been granted, if it is felt that it is in the public interest to do so and if the State Planning Committee approves.50 The term ‘public interest’ may be interpreted to include environmental concerns. Another avenue of participating in official decisions is the right of adjoining neighbours to voice their complaints over projects that affect them. The practice with regard to this right is unsatisfactory in two ways. In KL the procedure at one time was to inform affected households by post regarding proposed development. However, with an amendment to the FTPA this requirement was ‘simplified’, so now DBKL needs only advertise its intentions in the press. The problem with this is that there is a tendency not to print the addresses of homes affected but merely the lot number and the district where the house is placed. This is most unsatisfactory since a majority of homeowners are not instantly able to recognise either.51 In fact the FTPA, which superseded earlier planning laws,52 had done away completely with the need for consultation with neighbouring owners. This was fortunately not recognised by the courts in the case of Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur and others,53 and the duty to inform remained. The case is authority for the view that the ‘material considerations’ which the Datuk Bandar must take into account under s. 22 include objections to the proposed development. Nonetheless according to the Federal Capital Act 196054 the Datuk Bandar’s decisions regarding planning in KL are entirely discretionary. There have not been as yet any cases of judicial review of the limits of this discretion. The concept of ‘neighbour’ is very limited, meaning ultimately that very few individuals or groups have standing to attend the hearing. In the FT this term would include:

48

S. 22(5)(b)(ii). See Tropiland Sdn Bhd v Majlis Perbandaran Seberang Perai [1996] 4 MLJ 16.

49

Ss. 72,101.

50

S. 25(1)(2).

51

Emergency (Essential Powers) Ordinance No. 46, 1970, Planning (Development) Rules, 1970.

52

Emergency (Essential Powers) Ordinance No. 46, Planning (Development) Rules 1970, and City of Kuala Lumpur (Planning) Act 1973.

53

[1992] 2 MLJ 393.

54

Act 190, Rev. 1977. 133

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(a) registered owners55 of lands adjoining the land to which the application relates; (b) the registered owners of land which would be adjoining but for being separated by any road, lane, drain, or reserve land not wider than twenty metres; and (c) registered owners of land inside a cul-de-sac, within 200 metres from a proposed development within the same cul-de-sac and sharing the same access road. These limited rights of standing make it difficult for people to protest against projects which have environmental repercussions wider than the immediate neighbourhood. NGOs’ experiences with local authorities have been varied. When dealing with relatively ‘safe’ issues, like the design of a recreational area, the response has been good. However in more contentious matters there have been some serious complaints. Complaints about the procedure include very short notice for meetings and bias in favour of the developers. This is obvious in the way complainants are treated compared to the way developers are treated by DBKL officials. This at the very least meant that confidence in the system was seriously undermined. On the surface there seems to be some effort by local authorities to ensure fair play. For example, the public is allowed to scrutinise any new development plans and there are public exhibitions whenever changes are to be made. However these complex plans can only be viewed and not copied, making careful scrutiny extremely difficult. And there have been reports that the public exhibitions are ineffective because there is little cooperation by the officials there, who tend to be reticent in answering questions. There have also been cases where residents were not informed at all about new developments. The residents of Damansara Jaya for example only found out about a massive road-building project which would change the nature of their area when they saw surveyors working by the roadside. It is submitted that the potential for using planning and planning-related laws in environmental protection is enormous and should be exploited to the full. It is unfortunate therefore that there have been many planning decisions of an environmentally unfriendly nature.

55

This requirement for objectors to be registered owners, was once used as an argument to prevent residents with no title (eg occupants of apartments who have yet to receive their strata titles), from using this right. Fortunately this argument was rejected by the court in Datin Azizah, below, n. 142.

134

5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

IV. THE JUDICIARY Public participation and access to environmental justice pursuant to statute is confined to general planning issues: otherwise the regime is one of extra-legal protest. Administrative law in Malaysia is markedly statist in its orientation. Even judicial review of administrative acts and decisions has been asserted in the teeth of statutory restrictions and executive interference. It is because of the lack of statutory provision for other means of opening up administrative decision-making for scrutiny that judicial review has proved of such importance in Malaysia.56 The judiciary comprises the Subordinate Courts, the High Court, the Court of Appeal and the Federal Court.57 The principal relevant environmental functions of the judiciary are enforcement of the criminal law, the correction of civil wrongs, and judicial review of administrative actions. The judiciary, historically enjoying a reputation for independence and competence unrivalled in South East Asia, has in recent years been under pressure from the executive,58 and during our research was the subject of repeated allegations of corruption as well as executive interference. The judiciary has also been criticised for being ultra-conservative in its approach to environmental matters. There is a tendency for them to be reluctant to question the substantive validity of environmental decisions, preferring instead to concentrate on questions of procedural irregularity. There is also a reluctance to accept new concepts (both substantive and procedural), which have arisen in other jurisdictions.59 In almost all the interviews conducted there was cynicism as to the usefulness of the courts. There was a belief that the courts are the last opportunity for justice, but this belief was minimal at best. An optimistic view held that litigation is useful as a form of publicity, a delaying tactic and as a method of challenging government and polluters as far as the system would allow, with the chance that, hopefully, a favourable precedent could be set, and at least arguments would not fall by default. A more pessimistic (albeit minority) view was that it is useless and could be counter-productive: first, the principle of sub judice can hinder the lobbying process outside the courts; and secondly, there is the possibility of establishing a bad precedent which will give legal justification for future damaging actions. Furthermore, confidence in judicial impartiality is

56

See, further, Harding, above n. 5, ch. 15.

57

Appeals to the Privy Council were finally abolished in 1985. For the judiciary generally, see Harding, above n. 5, ch. 8.

58

Harding, above n. 5, ch. 8.

59

For further discussion of judicial philosophy, see Harding, A.J., ‘The 1988 Constitutional Crisis in Malaysia’, (1990) 39 ICLQ 57. An exception is the approach taken to indigenous land rights: see Adong Bin Kuwau and others v Kerajaan Negeri Johor [1997] IMLJ 418, aff. at [1998] 2 MLJ 154; Sagong bin Tasi and others v Kerajaan Negeri Selangor [2002] 2 MLJ 591, aff. [2005] 6 MLJ 289. 135

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at a low level.60 For these and other reasons appearing below judicial review is somewhat marginal in its impact on environmental decision-making. Several specific shortcomings have been identified in interviews and the literature. (a) Archaic rules of locus standi (standing) Since Government of Malaysia v Lim Kit Siang, United Engineers (M) Berhad v Lim Kit Siang,61 standing has been severely limited. In this case the plaintiff relied on his position as a road user, taxpayer, MP, and Leader of the Opposition, to establish standing to challenge the legality of a government contract for construction of a highway. The Supreme Court62 denied him standing on the grounds that he could not establish any distinction between himself and other road users and had no intimate links with the contractor, for example through the holding of shares. This decision makes public-interest litigation extremely difficult:63 NGOs are unable to represent in court communities or groups of people. This means that affected communities and individuals must litigate themselves, albeit assisted by NGOs in various respects.64 Some more recent cases involving planning matters illustrate the difficulties in establishing standing. An objector to a ‘floating city’ project in Johor Baru first of all obtained a declaration that the Ministry of Science, Technology and Environment was obliged to produce to him the EIA report on the project.65 However, he failed to establish standing to compel the State Government to produce their agreement with the developers because the State Government was not obliged to consult taxpayers before entering into the agreement and because he had suffered no special damage over and above that suffered by

60

Ever since the sacking of Tun Salleh Abbas, the Lord President (the head of the Judiciary) in 1988, the independence of the judiciary has come under serious question. For further reading on this event, see Lee, H.P. Constitutional Conflicts in Contemporary Malaysia (Kuala Lumpur, 1995), ch. 3; Harding, above n. 5, ch. 8.

61

[1988] 1 MLJ 50, [1988] 2 MLJ 12. See also Majlis Peguam Malatsia v Raja Segaran [2005] 1 MLJ 15, 94.

62

Predecessor to the Federal Court. Note the decision was 3-2 and has been extensively doubted.

63

Cf. chs. 3, 7 Harding, above n. 5, pp. 260ff, and also ‘Public Interest Groups, Public Interest Law and Development in Malaysia’ (1992) TWLS 231.

64

there have been exceptions. See the ARE case and the Bakun Dam case, below; and Jau Jok Evong and others v Marabong Lumber Sdn Bhd and others [1990] 2 CLJ 625. NGO activity and support is evident in virtually all the cases examined in this research.

65

Abdul Razak Ahmad v Ketua Pengarah, Kementerian Sains, Teknologi dan Alam Sekitar, Civil Suit No. 830/1993, High Court of Malaya, Johor Baru, Feb.1994. The decision is of great practical importance for access to environmental justice and is remarkable considering that there is no statutory obligation to publish EIA reports.

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5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

other taxpayers and residents.66 A similar result occurred when he attempted to establish the illegality of the planning permission itself. It was held that no legal right or interest of his had been affected, he had not suffered any special damage, and was not an adjoining owner.67 Commenting that ‘[t]o give locus standi to a rate-payer like the plaintiff would open the floodgate [sic] and this would in turn stifle development in the country’ the Judge described the plaintiff as a ‘troubleshooter [sic], a maverick of a sort out to stir trouble’.68 (b) Procedural barriers Procedural barriers include a six-week time limit, measured from the time an administrative decision is made, not from the time it was known, for anyone wishing to apply for certiorari to quash the decision.69 Malaysia does not have the advantage of reforms of administrative law procedure and remedies introduced in England in 1977–81, which created a single procedure of ‘application for judicial review’. This means that Malaysian law has all the disadvantages of the pre-1977 English procedure, i.e. restrictive and inconsistent standing rules, and different substantive and procedural rules for different remedies. Furthermore, seeking an interlocutory injunction, for example against a developer for breach of planning laws, is often not a realistic option because the litigant must give an undertaking for damages. This means that the litigant must agree to pay damages resulting from delay and inconvenience if a final injunction is not granted. This is too much of a risk, and discourages even wealthy litigants.70 (c) Lack of development of planning law 71 This results principally from the lack of case law, which is a function of the above problems. It reflects a number of other factors. Compared with most countries, developers receive fewer decisions against them, and when they are faced with an adverse decision, two other options are generally preferable to judicial review.

66

Abdul Razak Ahmad v Kerajaan Negeri Johor [1994] 2 MLJ 297.

67

Abdul Razak Ahmad v Majlis Bandaraya Johor Baru [1995] 2 AMR 1174; see also Lee Freddie v Majlis Perbandaran Petaling Jaya [1994] 3 MLJ 640, and the discussion of planning law below.

68

Ibid., at 1186.

69

Rules of the High Court 1980, Order 53, rule 1A; see also Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54. The courts frown upon applications for extension of time: Epco Marine Sdn Bhd v President, Town Council of Penang & Anor [1993] Mallal’s Digest 442.

70

One interview mentioned a case in which a tenant being evicted obtained an injunction to compel restoration of his water supply pending eviction, but this is exceptional.

71

See, further, Harding, above n. 18. 137

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One is to apply political pressure for a favourable decision; another is simply to find another project, which is not difficult in KL’s boom-town economy. The fact that planning applications are generally handled by architects rather than lawyers may also be a contributory factor. Although planning law has been slow to develop, it is thought by practitioners that about 1% of planning applications in KL lead to objections taken to judicial review. A typical example would be a residential area where a 10-storey condominium is built, changing the character of the area and creating great pressure on roads and infrastructure. Planning law, although struggling to survive and grow, is essentially a middle-class gateway. (d) Tort actions Malaysian tort law is very similar to English tort law. According to s. 3 of the Civil Law Act 195672 the English common law as at 7 April 1956 is received in Malaysia, and any cases decided after this date also have authoritative influence. Therefore many principles in use today are the direct result of English principles: legal remedies based on negligence, the rule in Rylands v Fletcher,73 and nuisance are theoretically applicable in environmental cases, although there are, again, barriers to effective access to justice. A remarkable example is the Asian Rare Earth (ARE) case, which occurred near Ipoh in Perak. ARE began operations in 1982, producing a rare-earth known as yttrium from tin tailings. The company was a Malaysian-Japanese joint venture with Mitsubishi Chemicals as the Japanese partner. In the process of its operations, the company generated radioactive material known as thorium, which has a half-life of 14 billion years. The factory was located very close to a Chinese New Village with an original population of over 10,000. The villagers became alerted to the factory’s operations in 1983 and organised into a group known as the Perak Anti-Radioactive Committee (PARC). They made representations to the Federal Government to stop the factory’s activities but to no avail. Finally they commenced a civil action in the Ipoh High Court.74 It was a representative action and they claimed in nuisance, negligence and the rule in Rylands v Fletcher, in particular that the factory was producing radioactive dusts and gas that resulted in the high incidence of leukaemia among children, abnormal miscarriage rates among women, birth defects and a variety of other injuries. To back their claims PARC had health surveys done with experts from Japan and Canada brought in to testify as to the radiation levels around the factory’s vicinity and to the effects of low level radiation. After a protracted legal battle, the villagers won on the ground of nuisance: it was held that the factory’s operations constituted

72

Act 67.

73

[1861–73] All ER 1.

74

Woon Tan Kan (Deceased) & 7 others v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2299.

138

5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

a substantial interference with the enjoyment of the plaintiffs’ land. The High Court granted an interim injunction, and the factory was closed. Later, the factory was reopened as a result of circumvention of the injunction, but at the trial a permanent injunction was granted on the basis of evidence of a substantial risk of serious inter-generational effects.75 This injunction was lifted by the Supreme Court, and an appeal by the defendants succeeded on grounds that have been criticised.76 Another instance is the Highlands Towers case.77 This arose from the collapse of an apartment block at Highlands Towers at Ampang, KL, in 1993, when 48 people were killed. The case was a matter of environmental concern, because the collapse was alleged to have resulted from environmental degradation. The case took two years to get to trial because of the need to obtain expert witnesses. It was a test case involving four sample plaintiffs. The defendants were the builder, contractor, architect and engineer, the local authority, and adjoining owners. The case was brought in negligence, nuisance, Rylands v Fletcher, and breach of statutory duty (some 12 statutes were alleged to have been broken). The essential difficulty for the plaintiffs was that the sensitivity of the case made it difficult to secure expert engineering evidence given against a major developer. This case also illustrates the importance in the Malaysian context of environmental safety. There is considerable public concern about the impact of environmental factors on the safety of buildings and roads. During the research there were several dangerous or fatal landslips, one of which, on the road from KL to Genting Highlands resort, killed 20 people. These cases bring to the fore several serious problems with tort actions. (i) Causation Despite the submission of an overwhelming amount of medical evidence and health studies in the ARE case, the High Court held that causation of the damage had not been proved. The problem of proving causation can be overcome by reversing

75

Unfortunately, the High Court decision was overturned in December 1993 by the Supreme Court (Judgment of the Supreme Court of Malaysia Civil Suit no. 02–313–92) in a decision which raised many serious criticisms. For a critique of this decision see Ichihara, M. and Harding, A.J., ‘Human Rights, the Environment and Radioactive Waste: A Study of the Asian Rare Earth Case in Malaysia’, [1995] 4 RECIEL 1. Also Consumers’ Association of Penang, Wasted Lives: Radioactive Poisoning in Bukit Merah (Penang, 1993).

76

Ichihara and Harding, above n. 75.

77

Phang Ah Heng and others v Highland Properties Sdn Bhd and others, High Court of Malaya, Civil Suit No. 52–23–77–1994. See also Dr Benjamin George and others v Majlis Perbandaran Ampang Jaya [1995] 3 MLJ 665. For the unfortunate outcome, see the denial of liability of the local authority in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] 2 MLJ 389. 139

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the burden of proof in certain defined circumstances, as has been achieved in case law in the USA78 and by legislation in Germany.79 On this theory, all that a plaintiff has to prove is that his injuries are consistent with those known to result generally from the activity complained of. There is also a growing demand, given the many difficulties in mounting a toxic-tort case, for criminalisation of corporate decisions resulting in the loss of life or injury.80 (ii) Limitation Related to the issue of burden of proof is that of limitation. According to Limitation Act 1953,81 s. 6 (1)(a), any action founded in tort cannot be brought after the expiration of six years from the date on which the action accrued. Taking into account the nature of certain injuries, particularly the effects of radiation that might take years to manifest, this is indeed a major stumbling block. (iii) Expert evidence Tort actions in environmental cases also invariably require scientific expertise. This is a major problem raised by interviewees who have been involved in such cases. The main complaint was that local scientists and other experts are reluctant to provide their services, especially for the plaintiff. This is due to the fear that their involvement can be interpreted to be anti-establishment, which could in turn lead to loss of future business from both public and private sectors. This creates a need to obtain experts from other countries, leading to higher litigation costs. This problem was overcome in the ARE case, but not in the Highlands case. (iv) Costs and representation The high cost of legal proceedings in Malaysia is reflected in the fact that generally only the relatively affluent are able to use the judicial system, as reflected by the generality of plaintiffs in planning cases. One interviewee82 lamented the difficulty in getting lawyers even to take on squatter cases, let alone take them on pro bono. Unfortunately the official legal aid system in Malaysia does not provide any satisfactory answers to this problem, as it rules out virtually any form of

78

See Allen v The United States [1984] 588 F Supp 247.

79

Environmental Liability Act 1993.

80

See the draft for legislation on ‘Crimes Against The Environment’ by The International Centre for Criminal Law Reform and Criminal Justice Policy, University of British Columbia and UN Interregional Crime and Justice Research Institute (UNICRI).

81

Act 254.

82

From the Jawatankuasa Sokongan Peneroka Bandar (Urban Pioneers Support Committee).

140

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environmental litigation. The Bar Council legal aid scheme is totally dependent on private practitioners offering their services. This element of voluntariness entails a limited number of lawyers willing to take on such a difficult and potentially costly task. Planning cases against developers could lead to a loss of income from the lucrative conveyancing branch of practice. Admittedly there are a few law firms which consistently take on public interest cases, for example the Consumers’ Association of Penang’s Legal Centre.83 However, their number is small and this may add to the generally low rate of environmental cases being brought to court. Some practitioners are prepared to take on planning cases despite the problems indicated; sometimes the potential loss of business is offset by new business obtained as a result of acting for a particular community.

V. HUMAN RIGHTS Environmental justice is increasingly being linked to human rights. On a philosophical level, a clean environment as a human right is a notion gaining increasing acceptance.84 More conventional or traditional notions of human rights are still, however, of great importance. In a by-product of this project, Andrew Harding has studied the relevance of human rights to the environment in Malaysia. His conclusions, based on a survey of the fundamental-rights provisions in the Constitution, the activities of NGOs, and two case studies (the ARE case and the Penang Hill affair) indicate that overt linkage of the two issues is neither possible nor desirable, but that in the Malaysian context the exercise of the constitutional right of freedom of expression, especially by NGOs, limited as it is, and the absorption of environmental concerns by the legal system, may offer a way forward.85 In Malaysia there are many examples of laws that suppress fundamental human rights.86 This in turn makes it difficult for environmental activists to obtain justice. The most frequent complaint that has been voiced over the series of interviews is the lack of information or a Freedom of Information Act.This would not really be such a major problem if it were not for the existence of draconian laws limiting even further the public’s access to information. The most obvious

83

For which, see below.

84

Anderson, M.R. and Boyle, A.E (eds), Human Rights Approaches to Environmental Protection (Oxford, OUP, 1996). The Report of the Environmental Law Review Committee, Ministry of Science, Technology and Environment (KL, 1993), Jadual 1.1, recommended the adoption of such a right in the Malaysian Constitution.

85

Harding, A.J., ‘Practical Human Rights, NGOs and the Environment in Malaysia’, ch. 11 of Anderson, M.R. and Boyle, A.E., above n. 84.

86

See, further, Harding, above n. 5, chs 11, 13. 141

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example of this is the Official Secrets Act 1972.87 This act gives very wide powers to the (federal) minister, the (state) Chief Minister, or any person appointed by them, to declare any document of a ‘public body’ as an official secret. The mere possession of an official secret is an offence and mens rea is not a relevant factor.88 Therefore it is extremely easy for the Government to keep decision-making away from public scrutiny and securing conviction is easy in the event that any such secret document, regardless of its nature, is leaked. Interviewees complained that during meetings with government officials there have been promises made to release information but these promises were not kept. Even during the process of statutory public consultation, for example regarding the Petaling Jaya draft structure plan, so little information was actually released that it was difficult to produce strong and constructive criticisms. It would appear that information is a closely guarded commodity. The lack of a substantive right to demand information and the existence of laws that limit access to information means that this is one fundamental human right that is not sufficiently respected. This in turn has a severely constrictive effect on environmental justice. The freedom to express opinions is also severely curtailed. Although, like freedom of assembly and association, it is guaranteed by Article 10 of the Federal Constitution, this article is hedged by provisos that allow almost all legislative restrictions.89 Such laws include the Printing Presses and Publications Act 1984 (PPPA)90, the Internal Security Act 1960 (ISA),91 the Societies Act 1966, and the Police Act 1967. In the interviews the general opinion was that there are limits to the ability of the mainstream press to espouse environmental causes. There is a tendency not to cover politically sensitive matters, or cover them in a one-sided manner. However, where there are no political undertones, there has been support for environmental concerns. Coverage in 1996 of the Bakun Dam affair, which is politically sensitive, indicated an unusually critical or at least even-handed stance, attributable to a more relaxed political atmosphere. These repressive laws have led to a citizenry unwilling to take part in environmental activism for the worry, be it real or imagined, of adverse official reaction. This has led some NGOs to complain of a poor public response to certain issues. This is not surprising because even the seemingly innocuous act of signing a petition has led to public threats by government officials. In the case of the Petaling Jaya Draft Structure Plan, the Councillor for Kelang had promised to look into the

87

Act 88, Rev. 1988.

88

See Public Prosecutor v Lim Kit Siang [1979] 2 MLJ 37.

89

Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566.

90

Act 301.

91

Act 82, Rev. 1989.

142

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‘backgrounds’ of the 30,000 or so individuals who had put their names to paper in protest against the plan.92

VI. WATER POLLUTION The EQA, with its relevant regulations, and the LGA are two main sources of legislation limiting water pollution. The EQA restricts any person from emitting, discharging or depositing any environmentally hazardous substances, pollutants or wastes into any inland waters unless specifically allowed to do so by the terms of a licence granted under the EQA. Conditions for the discharge may be set down by the minister.93 Waste is given a broad definition,94 and any action either directly or indirectly, and either purposely or negligently, polluting an inland waterway is an offence.95 The maximum fine for this offence is RM100,000 (about £14,000), the maximum term of imprisonment five years.96 The EQA also empowers the DG to stop licensed bodies from emitting polluting elements, even if they are licensed to do so.97 This power is to be used in the event that the collective discharges of a group of bodies all together add up to an unacceptable pollution level. Part IV of the LGA concerns the pollution of streams and s. 69 provides a very broad definition of the offence of polluting a stream. Any act of nuisance or the deposit of filth in the waterway, or even upon the banks of a waterway, is an offence which is punishable with a maximum fine of RM2,000 (about £280), with a continuous fine of RM500 (about £70) for every day the nuisance continues, and an offender may instead face a maximum prison term of one year.

92

Interview with the Petaling Jaya Residents’ Association.

93

EQA, ss. 21, 25. The Act was extensively amended by the Environmental Quality (Amendment) Act 1996, which amendments are reflected in the following text.

94

Under s. 2, ‘“waste” includes any matter prescribed to be scheduled waste or any matter, whether in a solid, semi solid or liquid form, or in the form of gas or vapour which is emitted discharged or deposited in the environment in such volume, composition or manner as to cause pollution’. Pollution is defined as ‘… any direct or indirect alteration of the physical, thermal, chemical, or biological and any part of the environment by discharging, emitting, or depositing wastes so as to affect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare, or to animals, birds, wildlife, fish or aquatic life, or to plants or to cause a contravention of any condition, limitation, or restriction to which a licence under this Act is subject’.

95

S. 25(2)(a)(b).

96

S. 25(3).

97

S. 33. The EQA is to be read alongside the Environmental Quality (Sewage and Industrial Effluent) Regulations 1979, which provides further powers and greater detail with regard to the type of activities and pollution to be regulated. 143

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This provision is about offences within local-authority areas, but under s. 70 the power of the local authority with regard to the pollution of waterways also extends to areas that are not under its jurisdiction. This section is more specific, listing offences that include; emission of waste from manufacturing processes that either pollutes or obstructs the flow of a waterway; the deposit of liquid or solid sewage into a waterway; and pollution which is the result of laundry businesses. Any of these polluting activities which occur within or without the limits of local-authority areas could result in a maximum fine of RM5,000 (about £700) or a prison term not exceeding two years, or both. There is also a continuous fine of RM500 for every day that the offence persists. In the event that the local authority has to clean up the nuisance caused by the offender, it has the power to charge the expense to the offender.98

VII. AIR POLLUTION EQA s. 22(1) states that ‘no person shall, unless licensed, emit or discharge any wastes into the atmosphere…’, in contravention of acceptable conditions to be determined by the minister. The discharge of waste includes leaving any matter in a place where it may be released into the atmosphere; the discharge of obnoxious or offensive odours; the burning of industrial, trade or process wastes; and the burning of fuel with improper equipment.99 Contravention results in a maximum fine of RM100,000 and a maximum term of imprisonment not exceeding five years. The EQA is to be read with the Environmental Quality (Clean Air) Regulations 1978 (CAR). The CAR subscribe to the polluter-pays principle, laying down in detail the offences of burning of wastes;100 the emission of dark smoke,101 air impurities in general,102 and miscellaneous provisions which deal with a variety of polluting activities such as construction work.103 The CAR also lay down the scientific levels of discharge that would be considered polluting. There are provisions however for occupiers to obtain a licence permitting them to pollute beyond the prescribed level. Apart from the fine and prison term provided for, the DOE is also empowered to compound offences.104

98

S. 71(1)(2).

99

S. 22(2)(a)(b)(c)(d).

100

CAR, Part III.

101

CAR, Part IV.

102

CAR, Part V.

103

CAR, Part VI.

104

CAR, Part VIII.

144

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Local authorities too have the power to take action against air-polluting offenders if their action causes any nuisance within the local-authority area. The LGA lists 11 specific nuisances upon which the local authority may act summarily. For example, s. 81(j) provides that ‘any dust or effluvia caused by any trade, business manufacture or process which is prejudicial to health or offensive to the neighbourhood’ is a nuisance. The local authority also has power to declare any other matter a nuisance.105 The LGA empowers the local authority to treat all such offences affecting its area, even those offences originating outside its jurisdiction, as though they happened within their area.106 A major source of air pollution is motor-vehicle emission. Two main pieces of legislation which seek to meet this problem are the Motor Vehicles (Control of Smoke and Gas Emission) Rules 1977, made under the Road Traffic Ordinance 1958, and the Environmental Quality (Control of Lead Concentration in Motor Gasoline) Regulations 1985. The former specifies the acceptable level of smoke that motor vehicles may emit. The standard corresponds to a certain level of smoke density that may be measured by a smoke-detecting device. The Rules further require that any vehicle that was registered after the passing of the Rules be equipped with a device that would prevent smoke from escaping via the crankcase. The latter restricts from the importation and manufacturing of motor gasoline containing lead in excess of 0.15 grammes per litre.

VIII. SQUATTER COMMUNITIES 107 Due to KL’s rapid growth there has been over the years a large influx of people moving into the city to find work. Many illegal settlements are formed on the periphery of the city, but as the city expands, these villages, which were once on worthless tracts of land, suddenly become prime property, raising acutely the issue of land tenure. Many squatter settlements have a relatively good infrastructure, with running water, waste-disposal facilities, electricity and telephones lines. They obtain these amenities by applying directly to the relevant bodies, be it the local authority, the water department, electricity company or telephone company. In fact, DBKL108 actually helps squatter communities in obtaining these amenities. There are application forms that the DBKL provides and these are forwarded to

105

S. 81(k).

106

S. 84.

107

See Cummings, H., ‘A Comparison of Migrant Adjustment in Squatter Communities of Bandung, Kuala Lumpur, and Manila’, ch. 15 of Krausse, G.H. (ed.), Urban Society in South East Asia: vol i, Social and Economic Issues (Hong Kong, Asian Research Service, 1985).

108

Through their Squatter Control and Placement Department. 145

Access to Environmental Justice: A Comparative Study

the relevant bodies. The DBKL even goes so far as to help with the procedure by supporting the applications. Naturally, the stronger the political clout of the community, the greater their influence, but it is generally safe to say that squatter communities do have the conveniences of modern life, even though their right to enjoy these is not secure. Squatters constitute one of the poorest sections of the community, but the description ‘squatter’ conceals differences of wealth, race and status. Some displaced squatters are able to buy lower-middle-class housing, albeit at subsidised rates, and own luxury goods such as video recorders and cars. Some squatter communities have been there for decades, some since even before the age of development, and some are also quite developed in terms of infrastructure, sanitation, and services. Others are genuinely deprived and marginalised, such as Kampung Gandhi, an Indian settlement, and Kampung Malindo,109 both featured in the media during the research. The latter was an illegal settlement of Indonesian migrant workers, which was summarily bulldozed by DBKL in March 1996. The media coverage stressed not only the illegality of the settlement, but also the fact (actually hotly disputed) that its inhabitants were illegal immigrants.110 Government supporters are given rehousing. This was proved by a letter from a government MP to branches of the ruling party saying that the KL Land Committee could alienate land to Malay occupants. When this was sought to be produced in a court case, the Court of Appeal held that it was subject to the Official Secrets Act, even though it was a party rather than a Government document.111 Malay squatters tend to vote for the BN on a pragmatic basis: they are unlikely to receive help from the opposition, whereas there is at least a chance of something from the government. There is a tendency for BN supporters to obtain rehousing more easily. This indicates that an important participation endowment is one’s vote, even though a change of Government has not yet occurred in Malaysia at the federal level. (a) Land rights In Malaysia there is no right to obtain the possession of land as such for housing or other purposes. On the other hand, the Constitution protects property rights once obtained: Article 13 provides that no person shall be deprived of property save in accordance with law, and that no law shall provide for acquisition of property without adequate compensation. The general policy has been gradually

109

The name is derived from ‘Malaysia-Indonesia’.

110

One newspaper reported the event under the headline ‘Alien Town’.

111

Information based on interview; there is no written judgment.

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5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

to replace squatter communities with low-cost public housing.112 To that end special powers are given to the DBKL to bulldoze squatter communities. In the context of the FT these powers are contained in the Kuala Lumpur Federal Capital (Clearance of Squatters) By-Laws 1963, which allow the Datuk Bandar to demolish squatter dwellings of less than one year’s occupation on seven days’ notice to the landowner. The Municipal Act 1963, s. 342A, gives power to the Datuk Bandar to declare any area within the city a clearance area, provided he is satisfied that the buildings thereon are in a state of disrepair, or unfit for human habitation or built in contravention of the Act, or such area is dangerous to the health of the inhabitants, or the area is required for new streets or services. Under this provision alternative sites must be provided for displaced persons. And under the National Land Code (NLC), s. 425, the Datuk Bandar has power to demolish all squatter or unauthorised buildings on state land, reserve land or mining land, irrespective of age. Finally, under the Emergency (Essential Powers) Clearance of Squatters Regulations 1969, the Datuk Bandar may clear any area required for development purposes by the Government, its agencies or private landowners, again irrespective of age.113 State land can be alienated secretly to a private developer by the state government without any notice to the squatters, who have no legal rights. Alternative accommodation is provided where the government requires the land. Where it is required by the landowner, the latter must pay a rehousing subsidy or grant. Many of these villages, being outside the FT, are built on state land, and according to the NLC, which is based on the Torrens system, land titles and the rights that come with it, can only be granted by the state government. Those with no title are squatters and according to the NLC squatters are criminals.114 The principle of adverse possession is not recognised in Malaysia;115 therefore these villagers, having no legal rights, however long they have occupied the land, become vulnerable. There is, for example, no consultation with squatters when the title of the land is offered to a developer. Apart from a lack of legal rights other difficulties faced by urban settlers are: bullying tactics by the police as well as hired thugs; and corruption, for example in the granting of licences to private developers and their connection with local

112

Sen, M.K., ‘Rehousing and Rehabilitation of Squatters and Slum Dwellers with Special Reference to Kuala Lumpur’, ch. 9 of Tan Soo Hai and Hamsah Sendut (eds), Public and Private Housing in Malaysia (Kuala Lumpur, 1979).

113

The age of squatter communities is important in the local context: some squatter communities are actually older than KL itself, and take on an aspect of national heritage.

114

S. 425.

115

‘No title to state land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever’: NLC s. 48. 147

Access to Environmental Justice: A Comparative Study

politicians who stand to gain from development. Furthermore, sometimes no notice is given before eviction,116 even though this is a legal requirement.117 The long-term goal of NGOs such as the Urban Pioneer Support Committee (UPSC) is to change the legal position of squatters, but the short-term and more urgent emphasis is naturally on acquiring compensation and alternative housing. In this objective some success has been achieved. Extra-legal methods such as political lobbying seem to be the preferred approach. On the point of evictions, there are informal avenues of appeal to the relevant authorities, usually the local authority, but these meetings are generally limited to delaying demolition. Squatters are also advised by NGOs to use defensive extralegal measures such as the actual physical defence of their land, and defining the boundaries. Litigation raises problems of cost. There have been some successes, however, for example in the case of Bohari bin Taib and others v Pengarah Tanah Galian Selangor,118 relating to the following case-study. (b) Case study: Kampung Merbau Berdarah This Kampung is a community of long-term settlers. In 1980 the state government promised them title to the land they occupied. However they were only provided with Temporary Occupation Licences (TOLs), but with the promise that titles would be granted. The TOLs expired in 1984, so that the villagers became technically squatters, but instead of granting title to the villagers, it was given to the Federal Land Consolidation and Rehabilitation Authority (FELCRA). Heavy-handed tactics were used against the villagers in addition to legal proceedings. For squatters, the legal position is that a summary possession order can be obtained by the landowner.119 Previously a strategy was adopted of claiming title to the land on the basis of an equitable licence or estoppel, using injunctive relief to prevent the developer from proceeding. However, this proved awkward as the position in equity is directly contradicted by the NLC, which as stated above, does not recognise the concept of adverse possession.120 Therefore the strategy adopted is often that of defending the developer’s application for possession. If

116

See Murphy, D., and Pimple, M., Eviction Watch Asia: Forced Evictions and Housing Right Abuse in Asia (Asian Coalition for Housing Rights, 1985) 56.

117

See below, n. 119.

118

[1991] 1 MLJ 343.

119

Rules of the High Court, Order 89. Following Trustees of Leong San Tong Khoo Kongsi (Penang) Registered v Poh Swee Siang [1987] 2 MLJ 611, in which the Supreme Court rejected any requirement for a possession order to be obtained against squatters before eviction, the Specific Relief Act 1950, Act 137, was amended to create such a requirement: Specific Relief (Amendment) Act 1992, Act A811, s. 2.

120

10 years’ possession is normally recognised in equity as creating a good title.

148

5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

the squatters are able to argue that there is a triable issue, a summary possession order is not available, and they have generally been able to succeed in delaying the developer’s action sufficiently to make it more efficacious for the developer to settle the case by giving compensation rather than going to trial.121 The result in such cases is that the developer has to begin again by ordinary writ proceedings, and the squatters can then drag the case out. There is a danger of incurring large legal costs if the case is lost, but it is difficult for the developers to collect these against so many indigent defendants. Even if they do go to judgment they generally do so to avoid a precedent being established and do not in the event pursue a claim for costs. Thus the issue facing the Supreme Court in relation to Kampung Merbau Berdarah was the appropriateness of the possession order in the light of the situation of the villagers and the promises made to them. It was held that there was a triable issue and thus a summary possession order was inappropriate. This was clearly a policy decision: there were many promises broken and the villagers had obtained a form of consent to their continued occupation in view of the TOLs and assurances as to title. It should be noted, however, that this approach merely put off the inevitable. In the final analysis the villagers still had no legal rights. Fortunately, due to the extreme political pressure applied by the villagers (not the court decision per se) they have finally obtained titles. Litigation is a useful tool as a delaying tactic, a morale-booster and as a method of raising public consciousness of the urban settlers’ plight, but according to UPSC the strength of their approach lies in using the political force of the community in trying to get as many concessions as possible. Here the ‘gateway’ has become in effect a ‘drawbridge’.

IX. LICENSING Licensing is an integral part of environmental protection and it has many implications. The licensing powers available to local authorities and the DOE will be discussed separately. The LGA provides (and this applies to any licence granted by a local authority): ‘Every licence or permit granted shall be subject to such conditions and restrictions as the local authority may think fit and shall be revocable by the local authority at any time without assigning any reason therefor’.1 2 2 The most obvious

121

This position rests on a decision of Harun Hashim SCJ in Cabra Holdings (1989–1990, reported MLJ and followed in Bohari 1991 MLJ) which involved 600 families in Kampong Pasar Baru, who had been promised land by two successive Menteri Besar (Chief Ministers), one of whom was recorded on videotape!

122

S. 107(2). 149

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possibility here is the imposition of environmental conditions on factories and similar activities.123 Examples are the inclusion of an obligation to treat waste in a safe manner before it can be disposed of, and setting an acceptable level of smoke. In the event that such conditions are not met, the offender’s licence can be withdrawn at any time with no duty to give reasons. With the threat of revocation or non-renewal of a licence, it is therefore in theory easier for local authorities to enforce the conditions and terms imposed.124 In fact the Licensing of Trade and Industries (Petaling Jaya Municipal Council) By-Laws 1987125 go further: several sections are dedicated specifically to environmental measures. For example s. 23 states: ‘The licensee shall not cause, suffer, allow or permit dust, fume, vapour, gas, heat, radiation, odour, smell, vibration, smoke, or soot emission of such quantity from his licensed place or premises which in the opinion of the Council is a nuisance or which pollutes the atmosphere’. These powers are in addition to those conferred by the LGA itself. The EQA empowers the DOE to issue licences for prescribed activities. These licences may have conditions attached to them, either at the application, renewal or transfer stages. Furthermore, the Director-General is also empowered to revoke a licence or to change its conditions any time during its currency.126 The types of conditions specified in the EQA include: the improvement of existing equipment; the addition of new equipment; improvement of existing control equipment; monitoring (at the expense of the licence-holder) a programme designed to monitor pollution levels; carrying out of requirements imposed under the these provisions within a specified time.127 Any breach of these conditions could result in a maximum fine of RM250,000 (about £35,000) and a maximum term of imprisonment of two years.128 The minister may impose a fee in respect of the licence and the factors to be considered include: the class and the location of the premises; the quantity of wastes discharged; the pollutants or class of pollutants discharged; and the existing levels of pollution. If the level or the class of pollutants discharged is higher than the level considered during the calculations of the fees, then

123

See LGA, ss. 72–73, 101.

124

Other powers which can be used to enforce licensing rules include the power to enter premises for the purposes of inspection and to arrest without warrant if the suspected offender is reluctant to give his address or if the officer does not believe that the address given is genuine: LGA, s. 110.

125

Sel.P.U. 32.

126

S. 11(3)(a)(b).

127

S. 12(1)(a).

128

S. 16(2).

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the licence-holder may be charged the difference in amount, had the fee been calculated at the actual level for that class of pollutants.129

X. ENVIRONMENTAL IMPACT ASSESSMENT 130 Apart from those sections and regulations that are directly concerned with water, air and land pollution, other provisions found in the EQA also affect pollution control. The most notable of these is the requirement for environmental impact assessment (EIA).131 This section, with the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, details the types of activities that will require an EIA report before development can be commenced. For prescribed activities, the developer has to submit an EIA Report to the DOE. The Director-General may make recommendations for changes to minimise the environmental effects of the project,132 or he may disapprove the report if it does not meet the required standards.133 His decision is then forwarded to the relevant approving body. However the final decision to approve the project or not lies in the discretion of the approving body, usually the local authority. Using the EIA requirement, the DOE is authorised to impose upon the developer certain conditions to minimise the effect of the project on the environment and in this way control pollution before it is given the opportunity to become a major problem. Amongst the areas of concern would be the pollution of watercourses during the developmental and operational stages. EIA is another area where public opinion is sought. However, it must be noted that there are two types of EIA, preliminary EIA and detailed EIA. The former requires no public participation and in the latter case public participation is only conducted at the discretion of the Director-General. In view of the informal, administrative nature of EIA consultation, the High Court decision noted above which required production of an EIA report is remarkable.134 This decision is exampe of a very useful precedent on public participation which is now being usefully exploited by NGOs.

129

S. 17.

130

See Leonen, M.F.V. and Santiago, J.S.S., ‘Disparities in the EIA Systems of Indonesia, Malaysia, the Philippines and Thailand: Implications of the ASEAN Free Trade Area’ (1993) 10 ASEAN Economic Bulletin 166.

131

EQA, s. 34A.

132

S. 34A(3).

133

S. 34A(4).

134

Abdul Razak Ahmad v Ketua Pengarah, Kementerian Sains, Teknologi dan Alam Sekitar, Civil Suit No. 830/1993, High Court of Malaya, Johor Baru, Feb. 1994. 151

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The DOE is generally quite keen on public participation but only those who are invited to sit on the EIA review board have any real influence on decisionmaking. Only during the Save-Penang-Hill campaign did public opinion and NGO activism have any real impact.135 A recent development in the law that might have disastrous consequences on the conduct of EIA is the ‘Bakun Dam case’, referred to above.136 The facts were that the EIA for the proposed Bakun Dam in Sarawak was conducted without public participation. When the residents of the affected area protested, the reaction of the Minister of Science, Technology and Environment was to delegate retrospectively, the power of conducting EIA from the DOE to the State Government of Sarawak.137 The State Government EIA requirements are much less stringent than the DOE’s and require no public participation. The issue was whether the project was unlawful for failing to follow procedure and whether the transfer of power to the State Government was ultra vires. It was held in the High Court138 that the delegation was invalid, and the EQA’s EIA requirements would have to be followed. Unfortunately the High Court’s decision was reversed by the Court of Appeal and the substantive appeal is, at the time of writing, pending.

XI. GENERIC PROBLEMS What is clear from the legislation, apart from certain sections of the TCPA and the EIA requirements of the EQA,139 is that there is precious little room for the public to take part in any decision-making. They are therefore left with post-decision-making mechanisms. These can take two forms: to litigate or to object. The former option has many problems, which have been discussed above. One further general difficulty is that with government bodies or agencies, the only real option is to obtain a judgment based on the remedy of mandamus, by which the court compels the relevant body to fulfil its statutory duties. This however is an unlikely option: although local authorities and the DOE have very broad powers, most powers granted by statute are discretionary in nature. It is therefore very unlikely that a litigant would obtain a judgment progressive enough to force a government body to exercise its discretion in a particular fashion. Even where

135

See Harding, above n. 75. The Environmental Quality Report 1995 (KL, 1996), however, refers to public participation only in terms of recruitment of the public behind environmental awareness programmes.

136

Above, n. 19.

137

Ministerial Order PU(A) 117.

138

Kajing Tubek and others v Ekran Bhd and others [1996] 2 MLJ 388; [1997] 3 MLJ 23.

139

See above.

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the duty is clearly mandatory, the law of mandamus has proved singularly ineffective due to its doctrinal restrictions.140 In Malaysia, moreover, standing to apply for mandamus is narrowly defined.141 Objecting also has its shortcomings. The MPPJ for example has an Environmental Unit. It is admittedly very small, with two full-time officers, and therefore not as effective as it could be. However, one of its duties is to receive and act upon complaints from the public. Complaints are channelled to the Unit through the MPPJ Complaints Department. In theory, public complaints could empower the MPPJ to take further action. However, this is a discretionary power, not a duty. Furthermore, Residents’ Associations have complained about the inefficiency of the Complaints Department, even for relatively small issues like garbage disposal. It is submitted that these problems are the result of a lack of accountability and democracy. The local government system in Malaysia is rife with undemocratic practices and conventions. With paucity of funding but without effective public scrutiny local authorities have too little fiscal power but too much freedom in the discharge of the legal powers they have. It is of vital importance that greater public participation is injected into the system. This is to ensure that there is an effective check on local authorities’ conception of the public interest. It is also important that funding of local authorities is increased to a level that will enable them to act effectively. The courts have a role to play in this process although it requires an assertiveness for which the Malaysian judiciary is not noted. In all fairness to the judiciary there have been several cases where the decision has swung in favour of the public, even though it required a certain degree of judicial adventurousness.142 But these have been decisions based on principles of procedural fairness. There must be a willingness to examine substantive, not merely procedural, issues. This is to ensure that the spirit, and not just the letter, of the legislation is followed.

140

See, further, Harding, A.J., Public Duties and Public Law (Oxford, 1989).

141

Specific Relief Act 1950, s. 5.

142

See Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur and others [1992] 2 MLJ 393, applied in President Hotel Sdn Bhd v Datuk Bandar Kuala Lumpur and another [1995] 3 AMR 2350; Lee, Freddie and others v Majlis Perbandaran Petaling Jaya and another [1994] 3 MLJ 640. The latter case, remarkably, establishes a legitimate expectation of a hearing in respect of a planning application based on administrative practice as opposed to a statutory right of objection. 153

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XII. CONCLUSIONS Malaysia has most of the necessary basic formal requirements of a democratic society: a long-lasting, albeit undermined, Constitution; elected federal and state governments; an established and competent judiciary, legal system, and legal profession; a defined system of local government; a relatively well-developed and sometimes independent press; and some procedural gateways for complaints and opinion-forming. It seems that, although there are many problems peculiar to access to environmental justice in KL, the fundamental problem that lies at the root of the apparent inability to gain effective access is the prevailing perception of democracy and the rule of law in Malaysia. We are not confident that more than small improvements can be achieved without a major paradigm shift. These improvements are worth achieving in their own right, and may contribute to the kind of shift envisaged. We have been impressed by the clarity of our findings and the virtual unanimity of view among those seeking access. We do not accept that litigation is a useless distraction from other gateways. Litigation is in our view fundamental to the retention or development of a rule-of-law state, and we find it difficult to imagine how access to environmental justice would appear in Malaysia without the line of public-interest environmental cases and the kind of constant doctrinal pressure which lawyers and NGOs have kept up since the early 1980s. It is nonetheless true that it is largely the middle classes (except in squatter cases) who are aware of the relevant gateways, and able to use them so far as they are useful. This is most evident in pre-decision-making gateways. The reason for this is in our view the way participatory gateways are structured and controlled: only those with a fairly high level of education can exploit them to the full or even have the capacity to participate. Where post-decision-making gateways are concerned, the inhibiting cost of litigation and other obstacles mentioned above are also influential factors. During the course of the study, it has become clear that both pre-decisionmaking and post-decision-making processes need improvement. We would identify the following areas of improvement as most likely to improve access to environmental justice. (a) Reduction or control of wide discretionary powers of LPAs. This can be achieved by more effective public participation mechanisms, such as statutory objection and public hearings or inquiries, by the development of a jurisprudence of planning and environmental law, and by the development of a more democratic culture of transparency, consultation, and accountability. There is some evidence that these things are slowly developing. Naturally this involves changes such as reformulating the rules

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5. Access to Environmental Justice in Malaysia (Kuala Lumpur)

on standing, for example along the lines of the ‘citizen-action model’,143 and enhancement of administrative-law control mechanisms would also be welcome. However, arguably a more pressing problem is to restore public faith in a fair and impartial judiciary. (b) Clarification of environmental responsibility as between federal, state and local governments is widely acknowledged even in official circles to be urgently needed. Malaysia is legally and administratively extraordinarily complex for a country of 20 million people; KL even more so than the rest of the country. This is partly a legacy of constitutional development. In our view environmental problems require both firm central policy and rational apportionment of power. Responsibility for EIA is a major and pressing example. Public consultation on EIAs at both preliminary and detailed stages should in our view be mandatory, and inconsistencies between federal and state treatment of EIAs should be ironed out. Close linkage of EIA and the planning-approval and monitoring process is required, so that an EIA report is effective and binding.144 (c) More than this, we are impressed with the disparity between the statutory environmental powers and duties of local authorities and the paucity of funding to fulfil this potentially wide remit. Clarification would not in itself be effective if it resulted in the removal of powers and resources away from local authorities to the two higher levels of the executive. What is needed is a revitalisation of local government, which means greater accountability, particularly through restoration of the electoral process. (d) Any efforts to make use of existing legal gateways, be they pre- or postdecision-making, would only be truly effective if there is a corresponding, extra-legal effort. This may include civil protest, through the form of lobbying, demonstration, formation of single-issue co-ordinating committees, and other similar means short of direct or illegal action, which in Malaysia is likely to encounter a strong backlash, and is therefore counter-productive.145

143

See Hilson, C. and Cram, I., ‘Judicial Review and Environmental Law – is there a Coherent View of Standing?’ (1996) 16 Legal Studies 1.

144

The Report of the Environmental Law Review Committee, Ministry of Science, Technology and Environment (KL, 1993) stresses the importance of bindingness in its many recommendations. The outcome of the Report is the Environmental Quality (Amendment) Act 1996, which provides many improvements in environmental law, but both the Report and the Act studiously avoid any mention of public participation.

145

A study by the Institute of International and Strategic Studies for the Japanese Government, Local Dimension of Environmental Management: Analyses of Malaysian Institutions and Cases (Kuala Lumpur, 1993) which examined seven environmental cases, found that 155

Access to Environmental Justice: A Comparative Study

(e) There is also a need for more legal and environmental literacy programmes and empowering exercises to provide the skills that groups and communities would require in order to mobilise for action. This includes measures to educate the legal profession and law students in the principles and techniques of environmental law. (f) Substantive rights for squatters should be set out in the NLC. Most important is transparency and access to information about proposals. Squatters should have a right not to be evicted unless and until certain conditions are fulfilled and fairly implemented, i.e., rehousing and satisfactory compensation.

in only one (the ARE case) was litigation resorted to; however, all of the cases featured civil protest as the most effective method of raising environmental concerns. Using the usual bureaucratic channels was also found to be ineffective. 156

Chapter 6

ACCESS TO ENVIRONMENTAL JUSTICE IN A POLITICALLY UNSTABLE ENVIRONMENT: A CASE STUDY OF NEPAL Surya P. Subedi 1

I. INTRODUCTION

N

epal came out of its long self-imposed isolation from the rest of the world in the aftermath of Indian independence and the fall of the autocratic Rana regime in 1950. That is why, as with other areas of modern activity, development is a fairly recent phenomenon in this land-locked country. Nevertheless, Nepal has seen, within the past five decades or so, huge growth in activity in all areas of economic development. Most of the development is project-led and foreign-aided, and this has been instrumental to the economic growth of the country. Scant attention was paid in the past to environmental aspects of development. As a result, Nepal today faces acute environmental problems. The Government of Nepal, including the National Planning Commission (a body charged with planning development activities within this semi-centrally planned and mixed-economy country) came to realise in the 1980s that ‘some of the projects implemented in the past have degraded the very basis of sustained development by over-exploiting natural resources without concern for the maintenance of environmental quality’.2 Against this background, the National Planning Commission sought

1

OBE, LLB, MA (Tribhuvan); LLM (Hull); DPhil (Oxford); Professor of International Law, the University of Leeds; E-mail: . This is a revised version of an article published by the author under the title ‘Environmental Inputs into the Planning Process and Access to Justice’ (1998) 28(2) Environmental Policy and Law 96. The author is grateful to the publisher of the journal for granting him their permission to reproduce the material in the present paper.

2

National Planning Commission and IUCN. National Environmental Impact Assessment Guidelines, 1993 (National Conservation Strategy Implementation Project, Kathmandu, Nepal, 1994), p. iii.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 157–176 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

for the first time through its Seventh Five-Year Plan (1985–1990) (‘5YP7’) to make environmental aspects of development a distinct component during the development planning process and introduced the idea of environmental impact assessment (EIA) for all major development projects.3 Although growing environmental degradation in certain areas of the country, especially in the hilly region where the problems of soil erosion, drought, uneven rain, and decline in land productivity, had been noticed as far back as the 1950s and 1960s, it was only the 5YP7 that demonstrated concern for the deteriorating environmental situation. This is because many of the environmental protection measures taken before the 5YP7, especially those relating to the protection of forests, were designed to preserve and manage the forests for commercial exploitation rather than to protect the environment. The need to protect the forests for environmental reasons became an important issue only towards the late 1970s and early 1980s following the popularisation of the theory by authors such as Eckholm,4 Ives5 and Messerli,6 that the deforestation in the Nepal Himalayas was not only creating problems within Nepal but was also causing floods in Bangladesh during the monsoons. It was at this time that Nepal began to attract large foreign assistance for its development projects. Donor agencies and governments pushed for a national strategy, which considered the environment during planning. The issue was brought to the forefront when the UN identified Nepal as one of the Least Developed Countries. It was around this time that Nepal enacted various laws, such as the National Forest Law 1976, the Community Forest Development Act 1980, and the Panchayati Forest Rules 1978, which included provisions designed to facilitate public participation in the management of local forests. These were some of the early attempts to encourage public participation in the preservation of the environment after several calls from within the country suggested that local people be consulted on any proposed solutions in order to create awareness amongst the rural population to undertake measures for soil

3

Ibid., p. vii.

4

Eckholm, E.P., Losing Ground: Environmental Stress and World Food Prospects (N.W. Norton, New York, 1976). See also Gutham, J., ‘Representing Crisis: The Theory of Himalayan Environmental Degradation and the Project of Development in Post-Rana Nepal’ (1997) 28(1) Development and Change 45.

5

Jack Ives was recruited in the 1970s by the United Nations University to look into the problem of mountain deforestation and downstream flooding. He later spearheaded the establishment of the International Mountain Society and the launch of the journal Mountain Research and Development.

6

Ives, J., and Messerli, B., The Himalayan Dilemma: Reconciling Development and Conservation (Routledge, New York, 1989).

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6. Access to Environmental Justice in a Politically Unstable Environment: A Case Study of Nepal

conservation and forest protection.7 The attempt to increase public participation in a broader development-planning process was taken very cautiously by the leaders of the old party-less Panchayat system, as this system was based on the idea of a limited democracy. It was only in 1990, when the old system yielded to popular pressure for a full multi-party system of government that foundations were laid for public participation in planning. When the new government was formed after the first democratic elections in 1991, it identified five main aims for its environmental policy: (a) To manage efficiently and sustainably, natural and physical resources. (b) To balance development efforts and environmental conservation for sustainable fulfilment of the basic needs of the people. (c) To safeguard national heritage. (d) To mitigate the adverse environmental impacts of development projects and human actions. (e) To integrate environment and development through appropriate institutions, adequate legislation and economic incentives, and sufficient public resources.8 In order to achieve these goals, the government introduced a number of initiatives, including EIA. It was during the 5YP7 that the country adopted the National Conservation Strategy (NCS)9 and a number of other environmental policies designed to address the environmental problems of the country. However, the idea of EIA was not realised during the period of the 5YP7 due to a variety of reasons such as the absence of a legal framework, insufficient skilled manpower, and a lack of appropriate institutional arrangements. By the time the Eighth Five-year Plan (1992–97) (‘5YP8’) was adopted, the National Planning Commission had committed itself to introducing a national system of EIA for all major development

7

For instance, see Bajracharya, D., ‘Deforestation in the Food/Fuel Context: Historical and Political Perspectives from Nepal’ (1983) 3 (3) Mountain Research and Development 227.

8

Environment Protection Council, n. 4 above, p. vi.

9

The first National Conservation Strategy was adopted as a policy in 1988 with the assistance of IUCN. This organisation was then requested by Nepal to assist in the implementation of the newly adopted Conservation Strategy. See Environment Protection Council, Nepal Environmental Policy and Action Plan: Integrating Environment and Development (His Majesty’s Government of Nepal, Kathmandu, 1993). 159

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projects.10 As a result, in 1993, the Government of Nepal adopted the National Environmental Impact Assessment Guidelines.11 The need to carry out EIA for major development projects became a legal requirement in January 1997, when the Nepalese Parliament enacted the first Environment Act in the country.12 In the same year, the Government adopted the Environmental Protection Regulations (‘EPR 1997’), providing for a detailed set of rules relating, inter alia, to the implementation of the provisions of the Act.13 At this juncture of development, this chapter aims to examine Nepal’s approach to environmental protection, inputs into planning decisions and their effectiveness. In doing so, it attempts to analyse the role accorded to the public in the planning process by current environmental laws and practices in Nepal, including the right of the public to resort to judicial means to protect the environment. It will also aim to demonstrate how environmental considerations in general and access to environmental justice suffer a set-back when a country goes through a political turmoil due to mismanagement and unequal distribution of the natural resources of the country and the ensuing political instability and absence of a functioning democracy. This chapter seeks to draw lessons from Nepal’s experience over the past 15 or so years about the relationship between environmental issues and broader issues of good governance.

II. ENVIRONMENTAL IMPACT ASSESSMENT (a) An EIA for all major development projects Growing environmental degradation in Nepal forced planners to move in a new direction under which the involvement of the beneficiaries of development aid is sought at an early stage of the planning process. As stated in the EIA Guidelines 1993 (‘EIAG 1993’), in a country such as Nepal where development is largely project-led, EIA ‘is perhaps the most direct and effective means of combining

10

National Planning Commission, The Eighth Plan (1992–1997), unofficial English translation (Kathmandu, July 1992) 638.

11

See n. 2, above.

12

The Environment Protection Act 2053 (1997) (hereafter ‘Environment Protection Act 1997’), Nepal Gazette of 17 Magh 2053 BS (30 January I997), Part 2, Section 46, Additional Number 54 (g), pp. 59–73. An unofficial English translation of this Act is on file with the present author. Nepal follows its own separate lunar calendar and Nepali calendar is ahead by 57 years of Western Gregorian calendar. Since Nepali New Year’s day falls sometime in April (fluctuating every year) it is difficult to trace the exact day and month corresponding to the Gregorian calendar. That is why only the corresponding Gregorian year is given in brackets.

13

Nepal Gazette, Part 47, Additional Number 15 of 12 Ashad 2054 B.S. (June 1997).

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6. Access to Environmental Justice in a Politically Unstable Environment: A Case Study of Nepal

the aims of conservation and development’.14 The Government in its first NCS paper, as well as in 5YP7 and 5YP8, recognised the new direction. 5YP7 envisaged the preparation of an EIA for all major development projects related to key sectors such as tourism, water resources, transportation, urbanisation, agriculture, forestry, and industry. This idea however, did not materialise during the period of 5YP7. At the time of the formulation of 5YP8 a number of serious commitments were included. For instance, the Plan stated that under the guidelines of the National Environmental Council set up under the chairmanship of the Prime Minister ‘the planning sections of various environment-related agencies will be strengthened so as to incorporate environmental aspects within their plans for formulating various sectoral plans and their implementation. For this purpose, appropriate manpower will be developed and trained’.15 With regard to the EIA programme, the Plan went on to say ‘guidelines for various sectoral agencies will be formulated for an environmental impact assessment programme. Prior to carrying out large-scale development projects (especially road, hydro-electricity, industry, irrigation, housing, drinking water, and sewerage, etc.), priority will be given to the obligatory assessment of the environmental impact at the time of conducting their feasibility studies.’16 Multilateral and bilateral donors reinforced this policy by requiring an EIA of all major projects receiving foreign assistance. As a result, Nepal adopted the EIAG 1993. Most of the provisions were later given legal force through their inclusion in the EPR 1997. It was understood that several other sectoral guidelines dealing with water resources, power generation and irrigation, industry, forestry, road construction, mining and waste management would be adopted in due course within the overall framework of the said Regulations. Moreover, several laws of Nepal enacted in the early 1990s had included provisions relating to environmental protection. Examples of such laws are the Forest Act 1992 and Forest Regulation 1995; the Pesticides Act 1991; the Water Resources Act 1992; the Electricity Act 1992; and the Industrial Enterprises Act 1992. This piecemeal approach to environmental protection, however, came under criticism from environmentalists who had been calling for a better co-ordinated and concerted effort on the part of the Government to ensure that all development activities lead to sustainable development.17 This is because, as acknowledged in the EIAG 1993, ‘many of Nepal’s environmental problems have resulted from the

14

EIAG 1993, p. iii.

15

National Planning Commission, n. 5 above, p. 638.

16

Ibid.

17

See generally, International Centre for Integrated Mountain Development (ICIMOD), Nepal: Economic Policies for Sustainable Development (ICIMOD and Asian Development Bank, Manila/Kathmandu 1992); and the IUCN Study, 1991 (see n. 24 below). 161

Access to Environmental Justice: A Comparative Study

mismanagement of natural resources through an uncoordinated development process in which environmental impacts have not been considered at the project formulation or feasibility stage’. The EIAG 1993 go on to state: To fulfil the basic needs of a growing population, Nepal is continuously engaged in implementing major development projects for poverty alleviation. In all major development activities, Nepal has extensively utilised its natural resource base. These activities have produced some adverse environmental impacts, primarily because of mismanagement of resources. As a result, development projects that have been formulated to overcome poverty, illiteracy, and malnutrition have subsequently created environmental problems such as epidemics, flooding, erosion, landslides, and deforestation. These adverse impacts have, in some cases, negated the objectives of the development project.18 Specific examples of these problems have been highlighted in a report commissioned by the Environment Protection Council, which says: … irrigation systems have suffered from problems of poor design and construction, and inadequate maintenance and management, creating a series of environmental problems, including insufficient surface drainage that causes water logging. Improper design and construction of roads can lead to landslides, and many of Nepal’s existing hydroelectric projects suffer from high rates of sedimentation, resulting from inadequate attention being paid to protecting upstream watersheds.19 These two passages just quoted highlight the importance of EIA in a developing country such as Nepal. Accordingly, environmentalists have called for a national system to ensure that consistent and technically adequate EIAs are carried out for consideration by the National Planning Commission and other developmental governmental agencies before they take decisions on major development projects. The adoption of the Environmental Protection Act 1997 (‘EPA 1997’) and EPR 1997 can be regarded as two major steps in this direction. (b) EIAG 1993 The EIAG 1993 state that ‘before implementing a project, the impact likely to be caused to the environment by the project shall be assessed after conducting necessary studies of the impact’.20 The Guidelines require an initial screening

18

EIAG 1993, p. v.

19

Environment Protection Council, n. 4 above, p. xv.

20

EIAG 1993, Art. 6

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6. Access to Environmental Justice in a Politically Unstable Environment: A Case Study of Nepal

of a project, to determine whether an EIA is necessary.21 After this stage, scoping of the project is required ‘to discover the alternatives to the proposed activities of the project identified as having potentially significant impact on the environment, selecting appropriate alternatives, and determining the issues to be considered during the environmental impact assessment’.22 It is during this stage that maximum public involvement is envisaged. While scoping for an EIA, it is required to make plans for public involvement through holding community meetings and collecting suggestions from the general public. The involvement of the public is required at the pre-feasibility stage of the project cycle. According to the EIAG 1993, while carrying out the EIA, attention has to be paid to the socio-economic, biological, physiochemical and cultural impact of the proposed project and a draft report must be released for public review and comments. The entire Chapter XIII of the EIAG 1993 is devoted to community participation during an EIA. Article 45 states: Community participation (public involvement) is one of the main foundation stones of planning and implementation of a project. The effectiveness of an environmental impact assessment is determined largely by how successfully the community has been involved. Therefore, community participation must be mobilised during the environmental impact assessment process.23 Accordingly, Article 48 requires the involvement of local beneficiaries, target groups, user groups, affected groups, special interest groups (such as women), local leaders, academic groups, relevant NGOs, and recognised experts and the like, in the EIA process. This is to ensure that maximum community participation is achieved during the EIA process. (c) Environment Protection Act 1997 This Act seems to have been enacted chiefly to give legal force to the provisions of the EIAG 1993. Article 3 of the Act requires that the proponent of a project to carry out an EIA, whether an individual, a company or a government agency, is obliged to seek approval of such a project from the relevant government ministry. Article 6 of the Act gives wide-ranging powers to the ministry to ensure that a proper EIA is carried out on a project and all necessary remedial measures have been incorporated into the project before it is given the go-ahead.

21

Ibid., Art. 7.

22

Ibid., Art. 13.

23

Ibid., p. 19. 163

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(d) Environmental Protection Regulations 1997 The provisions of the EPR 1997 appear to have been based on the provisions of the EIAG 1993 where the Regulations have given legal force to the provisions of the Guidelines. The Regulations are designed to ensure that there is enough public involvement in the EIA process. Henceforth all planning and developmental applications may be scrutinised by elected local bodies such as the Town, Village or District Development Councils before the ministries concerned at the centre approve them. The Regulations further provide for follow-up inspections and assessments during and after the execution of the approved projects. Consequently, Nepal now has got a legal regime in place to ensure that past mistakes are not repeated, and also to ensure that public participation is a critical element in the entire process. The question that arises here is whether this emphasis is matched by access to justice.

III. ACCESS TO JUSTICE An IUCN study of 1991 had stated that the judicial system in Nepal ‘has played a peripheral role in environmental disputes and has yet to develop an authoritative environmental jurisprudence’.24 Since then a number of high profile judgments dealing with environmental protection have been delivered by the Supreme Court. There were few laws until 1991 in Nepal that dealt directly with environmental protection, as the country was still in the process of policy formulation. Indeed, one can expect a comprehensive body of environmental laws only when the state is clear about its role and parliament is allowed to function within a democratic framework. As stated earlier, nothing much happened in Nepal until its political system changed in 1990, since the judiciary itself was not in a position to be dynamic and assertive during the one-party system of government known as Panchayat. The current Constitution of the Kingdom of Nepal 1990 now includes provisions relating to the environment. (a) Constitutional remedies The 1990 Constitution places upon the state a duty to incorporate environmental matters into its policy process. Article 26 (4) states that one of the policies of the state shall be to protect the environment: The State shall give priority to the protection of the environment and also to the prevention of its further damage due to physical development activities

24

National Conservation Strategy Implementation Project and IUCN – the World Conservation Union, A Legislative and InstitutionalFramework for Environmental Management in Nepal (hereafter ‘The IUCN Study, 1991’) (Kathmandu, 1991), summary, p. ii.

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by increasing the awareness of the general public about environmental cleanliness, and the State shall also make arrangements for the special protection of the rare wildlife, the forests and the vegetation.25 The weakness of this provision is that it is contained within a set of non-legally binding directives. Since they are supposed to guide the state in the performance of other tasks, the judiciary cannot themselves enforce the directive principles. Indeed, Article 24(1) of the Constitution makes it clear that the directive principles of the state contained in the Constitution ‘shall not be enforceable in any court’. Article 24(2) states that the principles and policies contained in Part 4 (Directive Principles and Policies of the State) ‘shall be fundamental to the activities and governance of the State and shall be implemented in stages through laws within the limits of the resources and the means available in the country’. This provision reconciles to the realities within Nepal, where basic infrastructure is lacking. This is the approach within most developing countries since they feel that they cannot afford to have a sophisticated body of laws for environmental protection when they are far behind in terms of economic development. There are other provisions in the 1990 Constitution, which can be used by the public to resort to the judiciary for environmental protection. For instance, it provides for the right to information: ‘Every citizen shall have the right to demand and receive information on any matter of public importance.’26 As we shall see later, this right was successfully invoked by an environmental NGO in the case concerning the Arun III project to force the Government of Nepal to make information on the project, including the EIA report, available.27 Similarly, since the EPA 1997 contains a number of provisions for environmental protection, including the provision for a compulsory EIA of all major development projects, the public may seek judicial remedy under the writ jurisdiction of the Supreme Court of Nepal as provided for in the Constitution, should any actions of the governmental or non-governmental agencies result or potentially result in environmental degradation. Article 23 of the Constitution includes, in Part 3, which deals with fundamental rights and freedoms, a right for all citizens to seek a remedy from the Supreme Court in accordance with Article 88 against any violations of their rights and freedoms. Article 88(2) reads as follows: The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the

25

Ministry of Law and Justice, The Constitution of the Kingdom of Nepal 2047 (1990) (hereafter ‘the 1990 Constitution’), English translation (Kathmandu, 1992).

26

Art. 16.

27

Nepal Kanoon Patrika (Nepal Law Reports), 2051 (1994) 4, 255. 165

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remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute. For these purposes, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto. Further, the Constitution guarantees, in Article 18, that ‘each community residing within the Kingdom of Nepal shall have the right to preserve and promote its language, script and culture’. The term ‘cultural protection’ may include numerous things, and any activity that undermines local or national culture can be challenged before the Supreme Court under its writ jurisdiction. For instance, if the building of a large dam or a hydropower project requires relocation of local people, the decision relating to the construction of such a project could be challenged before the Supreme Court since the relocation of the local people could result in the destruction of their culture. (b) Remedies under the Environmental Protection Act 1997 In a country where compensation for people against wrongful acts of the state is unheard of, the EPA 1997 includes provisions for compensating people and institutions that suffer from pollution caused by individuals, companies and government contravening the Act. Further, if compensation is not received or it is inadequate, legal remedies are available under the Constitution. The EPA 1997 accords wide powers to a government officer designated to carry out the tasks described in the Act. Any person who suspects the violation of the Act can report to the officer for action. The Act makes it compulsory to carry out an EIA for all major development projects, and the EIAG 1993 and the EPR 1997 include detailed provisions for public involvement in the process. Any violation of these provisions could be brought before a domestic court of law. (c) The Civil Code Nepal has a ‘Napoleonic’ style Civil Code dealing with virtually every branch of municipal law and every conceivable aspect of litigation and court proceedings. Section 10 of Adalati Bandobasta ko Mahal (on Court Proceedings) of Muluki Ain 2020 (the Civil Code 1963) provides The government shall institute cases as a plaintiff where it is stated under the existing legislation that the government shall be the plaintiff. On the other hand, and apart from the provision mentioned above and depending upon the subject matter of the nature of the case, i.e., whether it is

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concerned with the government or with public welfare, the government or any individual may with the permission of the relevant court, file a petition. The petition requesting such permission, if filed along with the main petition/application, has to be decided upon by the court on the same day. In case permission is not granted, such a petition/application may be submitted to the appellate court.28 This section clearly provides scope for environment-based public interest litigation. (d) The case law In the first of two trend-setting judgments, the Supreme Court of Nepal tried to establish a clear link between the well-established right to life and the ‘soft-law’ principle of a right to a clean and healthy environment. The Court relied, inter alia, on the Stockholm Declaration of 1972 and the Rio Declaration of 1992, and held that the problem of environmental pollution was a matter for public concern, which can give rise to public interest litigation. In the second case the Court endorsed the individual right of access to information held by government departments. The first of the two cases concerns pollution caused by a marble quarry in the Kathmandu valley. In SPS Dhungel v Godavari Marble Industries,29 the Court held that an application to the Court by an NGO was admissible because pollution of the environment can adversely affect people’s right to life and it is everyone’s right to seek a remedy against such pollution. Accordingly, environmental issues are issues of public concern and an activity causing pollution can be challenged before the Court by anybody under the provisions of the laws of Nepal relating to public interest litigation. Therefore, the applicant had locus standi in this case. The applicant was the Chairman of the Governing Board of an environmental NGO, the Legal and Environmental Analysis for Development and Research Services Pvt. Ltd., also known as ‘LEADERS Inc’, registered under the Company Act 1965. Its complaint was that Godavari Marble Industries had been carrying out mining activities in an area to the South East of Kathmandu and these activities were polluting a large area around the mining site known for its natural beauty, habitat, and historical, religious and recreational significance. In their view, the pollution had undermined not only the Constitutional ‘right-to-life’ but also the environment and the natural habitat of the area. That is why the NGO decided to make an application directly to the Supreme Court under the extraordinary

28

Ministry of Law and Justice, Muluki Ain (The Civil Code), 11th edition, 2043 Sambat (Kathmandu, 1986), p. 5.

29

Nepal, Supreme Court, 14 Kartik 2052 (1994), Writ Petition No. 35 of the year 2049 (1991): Mandamus mixed Certiorari (English translation from Nepali by the author). 167

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jurisdiction of the Court, requesting it to issue a writ of certiorari coupled with mandamus against the company to instruct it to put a stop to its activities in the area, and against the government departments concerned to require them to prevent this company from carrying out its activities. The NGO included in the list of respondents several governmental departments and local authorities as guilty parties for allowing such activities to continue. The chairman of the NGO, Dhungel, claimed in his petition to the Supreme Court that Godavari Marble Industries had, in exercise of its right to carry out its mining activities in accordance with a licence granted by the Government of Nepal, violated the right of the local population to enjoy a healthy and clean environment and thereby their right to life. The applicant also alleged that they had acted in contravention of, inter alia, the provisions of Article 9(b) of the Constitution of Nepal 1963, under which every citizen had a duty to have regard for the interests of other citizens in exercising his/her rights under the Constitution. The applicant claimed that he had a right to bring such a case before the Court as a public interest litigation under, inter alia, Section 10 of the Chapter on Court Proceedings of the Civil Code as well as the provisions of the Constitution relating to the extraordinary jurisdiction of the Supreme Court. In its response, Godavari Marble Industries claimed that it was a registered company carrying out lawful activities in a defined site authorised under a licence issued by the government. It had done nothing wrong and the application deserved to be dismissed since the applicant had no locus standi to bring the case against the company. In their response, all government departments concerned and the local authorities claimed that they had done nothing to undermine the rights of the applicant, of the people of the area or the environment of the area. They had done all they could to make sure that the mining activities of the company did not pollute the environment of the area. They argued that because the NGO had not made them respondents when filing the application the matter deserved to be dismissed. The case was first considered by a Division Bench of the Court composed of Justices Shree Gajendra Keshari Bastola and Shree Kedar Nath Upadhyay, who had differing opinions as to the propriety of the application or the need to issue a writ of mandamus or certiorari against the marble company and the government departments. Justice Bastola’s view was that the application deserved to be dismissed because Godavari Marble Industries had violated no clearly identifiable rule of law as there was no law on the subject matter; Justice Upadhyay’s view was that there were sufficient grounds to issue a writ of mandamus against the government departments concerned requiring them to control or put a stop to the activities of the company. Since these two judges had conflicting views and were unable to agree on a decision, the case had to be referred to a Full Bench comprising three judges.

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The applicant had, when filing his writ application in 1989 relied upon Article 11(1) (2) under the provisions of Article 71 of the then Constitution of Nepal,30 and on the right to have matters pertaining to public interest protected in accordance with Articles 10(a) and 83 of the then Civil Code. Human life and liberty become endangered in a polluted environment, and Article 11(1) of the Constitution of Nepal provided that no ‘person shall be deprived of his personal life and liberty save in accordance with law’. In delivering the judgment, Justice L. P. Aryal held that The creation of a polluted environment can take away a person’s life and his liberty. Every individual has a right to protect himself from a polluted environment. From this perspective, the preservation of the environment is indirectly related to a person’s life and liberty and, hence, the subject matter of this case can be supposed to have come within the ambit of Article 11(1) of the Constitution of the Kingdom of Nepal [1990] … There is no dispute that the applicant has an interest in the preservation of the environment of the area in question. Indeed, the question of environmental pollution is a matter of public interest and concern. Since this is the case, there can be no dispute that the applicant, who is involved in the preservation of the environment, has a meaningful relationship with the subject matter in question which comes within the ambit of a matter of public interest and concern. There was a possibility of questioning the locus standi of the applicant since the Constitution of the Kingdom of Nepal in Article 88(2)31 provides for the protection of public interest through legal recourse but not the repealed Constitution of Nepal under which the present application was made. However, since the present Constitution includes the right to seek legal remedy on matters of public interest and concern within the fundamental rights of individuals protected by the Constitution, the issue of locus standi of the applicant on this matter can no longer be disputed. He went on to say that ‘since a clean and healthy environment is an essential element for our survival, the right to life encompasses the right to a clean and healthy environment’. Pointing to Article 26 (4) of the Constitution of the Kingdom of Nepal he continued:

30

When the case was filed by the applicant with the Supreme Court in 1989, the applicant relied on the then Constitution of Nepal 2019 (1963), the prevailing Constitution at the time. However, when the case was pending before the Court, Nepal had a new Constitution (1990). That is why the reference in this decision to the Constitution of Nepal is to the old Constitution of 1963 and the reference to the Constitution of the Kingdom of Nepal is to the new Constitution of 1990.

31

I.e., Article 88(2) of the 1990 Constitution. 169

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This Article regards the protection of the environment as one of the important Directive Principles of the State and is included in the fundamental policy principles of the State.32 Since one of the objectives of the applicant LEADERS Inc. is to protect the environment it cannot be said that the applicant has no right to petition to prevent the degradation of the environment. That is why it must be accepted that the applicant has locus standi on this matter. The Industrial Enterprises Act 1992 requires that an EIA be carried out to ascertain the effects on the environment before granting a licence to establish an industry. The Court held that carrying out an EIA was not only a government policy but also a legal provision. Accordingly, one of the things that the candidate had requested – the requirement to ensure, before granting a licence, that the proposed industrial activity did not harm the environment – had already become part of the legal system. The Court added: Everybody’s attention seems to have been attracted towards the problems of environmental degradation after the Stockholm Conference of 1972. It seems that separate environmental laws have been enacted only since the 1970s even in developed countries such as the United Sates. It appears that both the developing and undeveloped states have recently enacted or started the process of enacting environmental laws. In our own country too, no separate environmental laws have yet been enacted, but supporting and preparatory elements to that effect have already been put in place. This is evidenced by the following activities relating to the environment at the governmental level: the proclamation in Article 26(4) of the Constitution that environmental protection is a Directive Principle of the State; the creation on [27 September 1992] of an Environmental Council headed by the Prime Minister and the preparation on [4 February 1993] of an Environmental Impact Assessment Guidelines by the Council; the creation of a Ministry of Environment; the incorporation of an item on environmental improvement by the National Planning Commission into its Eighth Five-year Plan;33 the inclusion of a Committee on Environment in the list of Parliamentary Committees constituted by the House of Representatives; and participation by Nepal in national and international environmental conferences including the World Conference

32

Article 26(4) of the 1990 Constitution.

33

The Eighth Plan provides that ‘Guidelines for various sectoral agencies will be formulated in environmental impact assessment programmes. Prior to carrying out large-scale development projects (especially road, hydro-electricity, industry, irrigation, housing, drinking water, sewerage, etc.), priority will be given to the need for obligatory assessment of the environmental impact at the time of conducting their feasibility studies.’

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on Environment and Development held at Rio de Janeiro in 1992 and Nepal’s decision to sign the Rio Declaration. However, the Court stated: All these activities were mere attempts and were not operative actions in themselves. Hence, it was essential to have environmental laws enacted and implemented effectively to protect the environment in an effective manner. This is because no programme of action can properly be managed and carried out without there being a law on the subject and it is essential to have laws to define environmental crimes as well as to provide for punishment for such crimes. In the absence of a law no punishment or fine can be imposed nor can an order be issued requiring the closing down of an industry. It seems necessary to enact a comprehensive law to cover all aspects of the environment since the existing laws on the subject are few and far between and are scattered here and there; they also appear to be inadequate and ineffective. For this it is absolutely essential to enact a separate new law. Accordingly, the Court stated: When the executive body does not implement the law enacted by the legislative body, the executive body cannot be said to have demonstrated its willingness to act in accordance with the intention of the legislative body. Thus, the executive body seems to have paid attention only to trivial environmental matters but not effectively acted upon the way shown by the Constitution or the national and international opinion. Therefore, the Court instructed, ‘the executive has to frame an environmental piece of legislation as soon as possible so that it can end the confusion on this matter and fulfil its national and international obligations’. The Court went on to justify its pronouncements in the following words: There is no dispute that industrial activity is the foundation stone for the development of the country. Both the country and the society need development, but at the same time it is necessary to maintain a sound environment along with the industries. It is necessary to maintain a fine balance between the priority for environmental protection and the need to give continuous momentum to developmental activities. The Stockholm Conference developed the concept of sustainable development and the reports of various environmental commissions of the United Nations have lent their support to this concept. Whether it is in a bigger scale or a smaller scale every industry makes an adverse impact on the environment. Therefore, where there is developmental activity there is an adverse impact on the environment. But it is necessary to adopt

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regulatory and remedial measures to minimise such an adverse impact on the environment. When such measures become ineffective in protecting the environment, the activity that is polluting the environment must be required to cease. Development is for human welfare and prosperity. To survive is an end for a person, but development is a means of attaining a happy life. No one can live a clean and healthy life without a clean and healthy environment. Is not then the clean and healthy environment an integral part of our survival? Indeed, it is in keeping this fact in view that measures have to be adopted to prevent harm to the environment. Since the applicant had requested in his application to have the environmentally harmful activities stopped rather than the closure of the marble quarry, it was necessary to ensure through the adoption of remedial measures that there was a preventive and effective mechanism immediately in place to prevent the pollution of the area. The applicant had argued that it was quite appropriate on the part of the Court to issue a writ of mandamus requiring the government to withdraw the licence granted to Godavari Marble Industries, or to break the contract with the company, since amended Regulation 25 (1) of the Contract Consolidation Regulations seems to allow the government to break a contract with a contractor in public interest. The respondents, however, had argued that it was not the Court but only the government that could determine whether or not something was in public interest. Regulation 25(1) is a discretionary power of His Majesty’s Government. No order could be issued forcing the government to use its discretionary power. The Court stated that the writ of mandamus is issued to require adherence to a legal duty, but the applicant has not been able to demonstrate a clear legal provision providing for such a legal duty nor identify exactly under which law the alleged duty can be said to have been unobserved. The one who claims that a certain public authority or agency had not observed its legal duties should be able to demonstrate with certainty exactly which law has prescribed for such a duty. To issue the order of mandamus in such a situation, the legal duty must be a definite and clearly identifiable by law. Therefore, the Court held that ‘it does not seem appropriate to issue the order of mandamus collectively against all respondents for not observing a general public duty without being able to say in clear terms what legal duty each of the respondents have in law’. However, the Court reasoned that it could issue an instructive order to require the respondents ‘to bring, in keeping the aforementioned views in mind, the inoperative Minerals Act [1985] … into effect; to enact necessary laws to prevent noise pollution and the pollution of air and water and the preservation of the

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environment; and to take all necessary steps to ensure the preservation of the environment of the Godavari area in an effective manner’.34 (e) Individual right of access to environmental information The second significant environmental matter decided by the Supreme Court pertained to the Arun III hydroelectric power project (Gopal Siwakoti v Ministry of Finance).35 The Government of Nepal had plans to build a huge hydroelectric power plant in a remote hilly district to harness the water of the River Arun. The project was to be financed by a World Bank loan and it was to be the biggest ever developmental project in Nepal. But various NGOs alleged that the people were not informed enough of the loan negotiations, the terms and conditions of the loan repayment or tender, the far-reaching economic implications of such a huge loan on the people of the country, and the long-term environmental impact of the project. In their view, it was striking that in spite of the commitments of the Government of Nepal to the concept of environmental impact assessment (EIA), not much public involvement was secured in planning the project before the government got itself ready to sign the borrowing agreement with the World Bank. Environmentalists concerned with the implications on the environment and economists worried about the excessive borrowing began galvanising public opinion and sought project information from relevant government departments. When the information was not forthcoming, an environmental NGO, ‘INHURED’, petitioned the Supreme Court to force the government to release the information. The NGO wanted all information on the project be made public, in particular whether an EIA had been carried out and, if so, what were the findings of such an EIA. While the government decided to provide information about the findings of the EIA, it was reluctant to make public any financial information. It was at this point that Gopal Siwakoti, the executive director of INHURED, together with Rajesh Gautam, submitted a writ application to the Supreme Court alleging the violation of the constitutional right to information by the

34

The process of framing a new piece of environmental legislation got underway in Nepal soon after this decision was delivered and resulted in the passing of the Environment Protection Act 1997 by Parliament. Soon after that the government adopted the Environmental Protection Regulations 1997 to regulate some of the matters delegated by the Act.

35

Gopal Siwakoti and Rajesh Gautam v Ministry of Finance, Ministry of Water Resources, Managing Director of Nepal Electricity Authority and Director General of Arun III Hydroelectric Project, Nepal, Supreme Court, 25 Baisakh 2051 (1993); Writ petition no. 3049 of the year 2050 (1992): Certiorari and/or any other appropriate order. Nepal Law Reports (in Nepali), 2051 (1995), No. 4, pp. 255–278) (English translation from Nepali by the present author). 173

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government. Article 16 of the Constitution of the Kingdom of Nepal provides the following right to information to every citizen of the country: Every citizen shall have the right to demand and receive information on any matter of public importance, provided that nothing in this Article shall compel any person to provide information on any matter about which secrecy is to be maintained by law. In their response various government ministries argued that the project was environmentally sound and whatever implications there could be for the local environment were of minor character. An EIA, including public enquiries, had been carried out on the project, and all necessary remedial measures had been incorporated into the project to address the concerns expressed in the EIA report. They also argued that they had done all they could to inform the public about the project. In its decision the Court held that, since the questions concerning the Arun III project were matters of public concern, the applicants had a right to seek the intervention of the Court under its extraordinary jurisdiction (i.e. the writ jurisdiction). Accordingly the Court found that the demand of the applicants to obtain information relating to the Arun III project from the government departments was in accordance with the provisions of the Constitution relating to the right to information.

IV. CONCLUSION To ensure that future Nepalese development projects are environmentally sound and sustainable, it is necessary to ensure there is maximum public involvement in the planning stages and also to enable the public to challenge before a court of law all governmental as well as non-governmental decisions that undermine the principle of sustainable development. Nepal has come a long way in getting people involved in the planning process of development projects, but has made little progress in empowering and strengthening the judiciary to consider cases brought before it by its citizens concerned about their environment. As discussed earlier, although the Supreme Court has certain powers of judicial review of executive actions, in a mountainous country such as Nepal not many people can travel to the Supreme Court, which is located in the capital city, in order to seek legal redress. Further obstacles to taking court action are the high costs of litigation, the delays in processing cases and lack of a national legal aid scheme. The Appellate Courts and the District Courts scattered all over the country have meagre powers to entertain cases relating to the environment. As a result the judiciary in Nepal has not been as active as its counterparts in other South Asian countries such as India and Pakistan.

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As stated in a IUCN report of 1991 on the legislative and institutional framework for environmental management in Nepal what is striking is that in this country ‘[t]he enforcement of environmental legislation and the resolution of environmental legal disputes is frequently not dealt with by the court system, but is processed by the same executive authorities charged with the implementation of the legislation’.36 Examples of such laws are the Soil and Water Conservation Act 1982, the National Parks and Wildlife Conservation Act 1973, the Public Roads Act 1974, the Forest Act 1961, and the Ancient Monuments Protection Act 1956. Although the Constitution of Nepal 1990 includes very many laudable provisions to make the judiciary, especially the Supreme Court, strong and independent, not much has been done to expand the jurisdiction of the courts or to empower them to deal with environmental disputes. Even the EPA 1997 and the EPR 1997 provide that the claims for compensation against pollution are to be lodged with the Chief District Officer, an administrative officer of the district concerned rather than the District or Appellate Court of the area. It is perhaps against this background that the IUCN report rightly states that ‘[t]he abundance of administrative agencies able to deal with environmental offences has created a situation where there is a serious danger of inconsistency in the standard of justice applied in particular cases’.37 Of course, it could be argued that it is not only the courts that can deliver environmental justice. Indeed, in practice, elders of the society known as the ‘panch bhaladmi’ resolve many local disputes in Nepal. They do so through informal arbitration and mediation processes. This method can often be more effective than official mechanisms. The decisions of these local leaders are readily enforced since non-compliance with such decisions could result in social rejection. In Nepal it may perhaps be preferable to institutionalise such methods of environmental dispute resolution for small and local disputes. Since all recent environmental laws of Nepal speak of public participation and involvement in planning development projects, there is no reason why the local leaders supported by their constituencies’ local population cannot be trusted with the responsibility of settling local environmental disputes. After witnessing encouraging developments in the decade of the 1990s in the area of environmental protection in general and access to environmental justice in particular, Nepal has been lagging behind in the recent past in cementing the achievements made during that decade and in fleshing out the main legal provisions outlined in major environmental legislation. This is due to the spiralling Maoist insurgency and the inability of the successive governments to deal with the insurgency effectively. Frequent changes of government, on average one new government per year, have meant that no government has had the

36

Above, n. 24, p. 90.

37

Ibid., p. 91. 175

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time to consolidate and advance the environmental agenda. This has reduced the agenda of access to environmental justice to a half-way house. Various sectoral guidelines that were being prepared to flesh out the main principles ended up gathering dust in the shelves. Parliament was dissolved and the whole law-making process came to a halt. The assumption of absolute power by the King of Nepal by dismissing a coalition government of several political parties in February 2005 meant further chaos in the political, administrative and judicial set up in the country. The King began to rule the country by decree, and environmental management was the last thing under consideration for a government preoccupied with the consolidation of power into the hands of the King. Thus over a matter of 15 years Nepal descended from an aspiring, vibrant and young democracy to a medieval system of governance. It was only during the ascendancy of democracy that Nepal began to enact laws to protect the environment and develop the system of access to environmental justice. In the years of political instability and uncertainty that followed not much attention was paid to environmental issues. The Supreme Court which had delivered ground-breaking judgments of far-reaching implications on environmental issues was marginalised when democracy was suffered a huge set-back in the country. Thus, Nepal’s experience over the past 15 or so years evinces it is in a democracy that people can have meaningful access to environmental justice and the courts can make their contribution. In the absence of a functioning democracy various fundamental societal values including the environment become victims.

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Chapter 7

ACCESS TO ENVIRONMENTAL JUSTICE: KARACHI’S URBAN POOR AND THE LAW Martin Lau 1

The syringe the gun The bomb the reckless Tyres of 10 ton trucks Keep alight the fires of This city This purgatory Where sewers throw up bodies And the stench of death blends With urine sweat and diesel fumes Why talk of the poor Even the dead shall not Inherit the earth

Zahid Murad, ‘Karachi’, 2002

I. INTRODUCTION: KARACHI AND ITS URBAN POOR

S

ectarian clashes between Sunni and Shia extremists, attacks on Western consulates, killings of foreigners like the suicide bomb attack on French engineers which cost 14 lives, an oil spill of significant proportions – these are the prominent issues which have been associated with the Pakistani city of Karachi in recent years. In the 1990s this list would have been supplemented by the mention of political unrest which at times assumed the proportion of a small civil war. Portrayed as the dark heart of Islamic fundamentalism in Levy’s infamous reconstruction of the murder of Wall Street journalist Daniel Pearl in 2002, Karachi is widely perceived as one of the most anarchic, dangerous and

1

Senior Lecturer, Department of Law, SOAS, University of London. I am grateful to the Centre for Asian Legal Exchange and the School of Law of Nagoya University whose generous Visiting Research Fellowship made it possible to complete this chapter.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 177–204 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

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polluted cities of South Asia.2 With an estimated twelve million inhabitants it is also one of the most populous cities of the Indian subcontinent. About half of them live in the city’s numerous squatter settlements. They have no, or grossly inadequate, access to services and infrastructure and are exposed to high levels of pollution. Despite all this negative publicity there is a steady stream of new arrivals from other parts of Pakistan, and indeed even neighbouring countries. Driven into the megacity by poverty, droughts, natural disasters and war, the majority of them manage to survive. This is testified by the continuous growth of Karachi both in terms of both population and sheer physical size. To describe Karachi as a failed city would make no sense to these immigrants: for them Karachi represents a beacon of hope, a chance to escape grinding rural poverty, feudal landlords or civil war. This article is concerned not so much with the question of how Karachi’s poor manage to survive but with the role of the legal system in their survival. Given the extremes of mass poverty and environmental degradation it is debatable whether it is useful to describe this question in terms of access to environmental justice. This was perhaps most succinctly expressed by a Karachi lawyer, who, questioned about access to environmental justice, dryly remarked that in the city there was no environment, no justice and no access to either. Karachi’s misery did not emerge overnight. The first part of this chapter will examine the events which made Karachi to one of the poorest and most polluted cities on earth. The legal structures surrounding the access to infrastructure, services and environmental resources will be examined next. The last part will then attempt to tackle the central question, namely to what extent, if at all, law constitutes a meaningful gateway to access to environmental justice for Karachi’s poor. Throughout this chapter the focus will be on access to land. Whilst other environmental concerns are also pressing and serious, for the poor it is access to housing which has and continues to be the key to survival in the city. (a) The setting Karachi is a city of many histories. However, these histories have left only few visible traces. The starting point of modern Karachi is located in the last significant territorial expansion of the East India Company and Britain in 1830 and 1840s. Sindhh, and with it Karachi, were annexed by Napier in 1843 in pursuit of naked imperial ambitions. The subsequent Anglo-Afghan wars transformed Karachi from a small fishing settlement at the mouths of the rivers Hub and Lyari to a large and efficient port, built according to the latest designs, and for purely military purposes. The attention paid by the central colonial government to its strategically most important port was soon reflected in its architecture and

2

Levy, B.H., Who Killed David Pearl? (New Jersey, Melville House, 2003).

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infrastructure. Being almost entirely new, with no established links with the hinterland, and being home, not to the inhabitants of Sindhh, but to traders, professionals and army personnel from other parts of British India, made planned and controlled expansion possible. Karachi became a paragon for modern urban planning and design.3 However, to a contemporary observer Karachi’s colonial past is not immediately obvious. Only few buildings from that period have survived intact. They are located in a small area of the centre and towards the port, tend to be run down and dilapidated, with a few notable exceptions like the building of the High Court of Sindhh.4 In its present, utterly ‘modern’, manifestation Karachi appears as a third world megacity without a past and a beginning. So vast is the area occupied by industrial areas, squatter settlements, informal housing and modern residential areas that physical manifestations of other periods become almost invisible.5 The remains of a small Hindu temple underneath a flyover give a hint that this city used to be the home of many Bombay-based Hindi and Parsee trading families who had opened branch offices in Karachi in the late 19th century. The cantonment areas – to this day administered by cantonment boards – are at least by name an indicator for the large military presence in the British period. The port of Karachi is the only surviving structure which gives a visible clue to the huge strategic importance occupied by Karachi in the 19th century. The events which caused the almost complete disappearance of colonial Karachi are inextricably linked with colonialism itself. Whilst colonialism was responsible for the emergence of the city of Karachi, it was also the cause of its uncontrollable growth and environmental decline. No other South Asian city bears so visibly the scars of the huge human catastrophe which accompanied the partition of British India in 1947. The decision of the beleaguered British Indian government to carve up the Indian sub-continent into two independent states, one to be called Pakistan and the other India, triggered one of the largest population transfers the world had ever seen. Fifteen million people fled communal violence and sought refuge in India and Pakistan respectively. At least

3

For a contemporary account of the emergence of colonial Karachi see Baillie, A.F., Kurrachee: Past: Present: and Future (Calcutta, Thacker, Spink & Co., 1890), and also Ali M. Ahmed, Historical Aspects of Town Planning in Pakistan and India (Karachi, Al-Ata Foundation, 1971).

4

In recent years there have been attempts to rediscover Karachi’s colonial past. See for instance the recent exhibition ‘KARACHI under the RAJ 1843–1947 – Jewel in the Crown’, organised by the DAWN Group of Newspapers and the Trustees of The Mohatta Palace Museum, Karachi, November 2004; or the re-print of Baillie’s book, above n. 3, in the Oxford in Asia Historical Reprints Series (Oxford University Press Pakistan, 1998).

5

The area occupied by Karachi increased from 233 sq. km in 1947 to almost 2,000 sq. km in 1981. In 2004 Karachi division occupied more than 3,500 sq. km. 179

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one million died. Along the areas bordering the newly created states common culture and traditions enabled the refugees to be integrated fairly quickly into the communities of their fellow Muslims and Hindus. This is particularly true for Punjab. The position of Karachi was, however, very different. It became the preferred destination for those Muslims fleeing the central part of what had now become India. Many of them belonged to the intellectual pioneers of the Pakistan movement and the driving force behind the Muslim League, the party so closely associated with Jinnah, the founder of Pakistan. Apart from the shared religion they had little in common with the Muslims of Sindhh, and even in respect of religious practice many differences existed.6 The effect of the partition of British India on Karachi was dramatic. In 1947, within a few months of independence, its population of about 450,000 swelled to over a million inhabitants. It became also the capital of independent Pakistan and, following the coup d’etat of Ayub Khan in 1958, the centre for his ambitious programme of industrialisation. The economic expansion was matched by an ever-increasing number of immigrants from other areas of Pakistan. Karachi’s population has been expanding ever since 1947, having by now crossed the twelve-million mark.7 Apart from the influx of refugees from India two more factors played a major role in the expansion of Pakistan’s cities: the eradication of several diseases including smallpox and cholera; child immunisation programmes which reduced infant mortality; and the dramatic impact of Green Revolution technologies on agricultural practices, which forced many rural workers to migrate into the cities.8 And ever since 1947 the city has been unable to offer adequate and secure housing to the a significant proportion of its increasing population. (b) Master plans 9 The government of the day was overwhelmed. Refugees occupied all open spaces, including public parks, playgrounds and school buildings. In addition, further

6

See Kennedy, C.H., ‘The Politics of Ethnicity in Sindhh’, Asian Survey 31, 1991, pp. 938–955.

7

Overall urbanisation in Pakistan has been moderate on comparison with countries in other regions, especially Latin America. However, this applies not to Pakistan’s major cities, which have grown rapidly: in the period 1981–1998 32% of the increase of Karachi’s population was the result of inward migration. See Arshad Zaman and Iffat Ara, ‘Rising Urbanisation in Pakistan’, The Journal NIPA, 7:3, 2002, pp. 31–46, p. 32.

8

See Arif Hasan, ‘The Changing Nature of the Informal Sector in Karachi as a Result of Global restructuring and Liberalisation’, Environment and Urbanisation, 14:1, 2002, 69 -78, 70.

9

For a full account of the post-independence attempts at urban planning see Arif Hasan, Seven Reports on Housing: Government Policies and Informal Sector and Community Response

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pressure was put on the existing infrastructure by the housing needs of government officials and civil servants who had moved to the new capital. Whilst many refugees were initially allowed to squat on public land or provided shelter in the cantonment areas, there was nevertheless the realisation that something had to be done. In 1951 the existing local government structures were supplemented by the creation of an authority specifically charged with dealing with the housing crisis. The new authority was initially called the Karachi Improvement Trust (‘KTI’) but became in 1957 the Karachi Development Authority (‘KDA’). Its functions included land management and developmental control outside the limits of the Karachi Metropolitan Corporation (‘KMC’), master planning, planning coordination, environmental control, urban renewal projects, as well as the development of a mass transit system. In collaboration with MRV, a Swedish consultancy firm, KTI developed the Greater Karachi Plan. The central aim of the plan was to create a new administrative centre outside Karachi which would be linked to the city by roads. This was to be accompanied by the construction of high-density, ten-storey apartment blocks in the central area of Karachi which would accommodate those squatting in the central areas. However, the plan remained unimplemented due to a combination of political instability which prevailed in Pakistan until 1958 and of lack of funds. Ayub Khan’s coup d’etat in 1958 had drastic consequences for Karachi. Strongly supported by the United States, Ayub Khan embarked on an ambitious, centrally planned, programme for the industrialisation and modernisation of Pakistan. The idea of a new administrative centre near Karachi was abandoned. Instead, Ayub decided that there should be an utterly modern, entirely new capital, to be called Islamabad. Consequently, the Greater Karachi Plan was shelved. In its place came the altogether more ambitious Greater Karachi Resettlement Plan, developed by the Greek consultancy firm Doxiades. At its centre were two objectives. First, that in order to ‘improve’ Karachi the poor, who were squatting in its central areas, had to be moved out of the city. Second, that the only way to achieve this was for the government to provide housing to those evicted. In order to achieve the latter, the Karachi Master Plan envisaged the construction of new suburbs which were to be linked by new roads to the centre.

(Karachi, Orangi Pilot Project-Research and Training Institute, 1992); and Arif Hasan, Urban Housing Policies and Approaches in a Changing Asian Context (Karachi, City Press, 1997). For a succinct summary see also Urban Resource Centre, Creating Synergy in the Implementation of Housing Rights. Actions by Government and Civil Society, A Case Study of Karachi Pakistan (Karachi, n. d.), and the city profile of Karachi prepared by Department of Architecture, Dawood College, Karachi, available on the website of Mega-Cities – Innovations for Urban Life, at (visited 15 October 2005). 181

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The physical environment of Karachi made the Doxiades plan tempting: the city is surrounded by arid and agriculturally little-used land, most of it in public ownership, and thus available for the development of new suburbs. The implementation, however, proved difficult. First, there were the costs: the construction of housing colonies some 15 to 20 miles outside Karachi, literally in the middle of nowhere, was very expensive. An entirely new system of infrastructure had to be developed in order to make human existence in these areas possible. Second, the urban poor themselves had little interest in moving out of the city away from their employment. The plan provided for the establishment of large industrial units outside Karachi which would eventually provide employment but in the early 1960s this had not as yet happened. Korangi was the only new housing colony which was established. By 1964, when the Greater Karachi Resettlement Plan was shelved, 10,000 housing units, supplied with water and electricity but without sewage, had been constructed. However, the aim to clear inner-city slums and to move the poor out of the city was not abandoned. Throughout the 1960s and 1970s slum-clearance measures pushed an increasing number of ‘illegal squatters’ out of the city. KDA decided that instead of trying to provide complete houses it would be more sensible to develop serviced plots and to leave it to the owners to construct their own houses on these plots. Three such ‘plot townships’ came into existence: Baldia, Orangi and Qasaba. Whilst not sufficient in size and numbers to provide shelter to all those who had been evicted or had migrated to Karachi in search of work, the new townships nevertheless, albeit indirectly, helped with the emergence of large-scale, illegal housing developments. By the early 1970s about a million people lived in squatter colonies. By now it had become obvious that the re-settlement of squatters into new housing colonies was unlikely to solve the crisis. The Karachi Master Plan, which was to be effective from 1975 until 1985, took a more realistic and varied approach to the provision of housing. Firstly, it abandoned the idea of constructing housing colonies. Instead, the poor were offered secure tenures of either open plots or plots with a utility wall. In addition, the Karachi Master Plan turned to the squatter colonies themselves and tentatively began, where feasible, to improve services and to offer residents rights of tenure to the land they had been squatting on, often for decades. Despite good intentions the new plan failed to deliver and in the beginning of the 1980s almost 40% of Karachi’s population lived in squatter colonies.10

10

For an overview of government policies see also Tasneem Ahmad Siddiqui, ‘Creating Synergy in the Implementation of Housing Rights: Actions by Government and Civil Society’, paper presented at UNESCAP Conference Regional Dialogue on Housing Rights, Bangkok, 27–29 June 2004.

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(c) The informal housing market In the shadow of the planner’s schemes and visions a new reality emerged. It consisted of informal housing developments, planned and implemented by what in Karachi are often referred to as the ‘land grabbers’ or the ‘land mafia’. The land mafia has been altogether more successful in providing housing to the poor. Shielded by corrupt bureaucrats and politicians these ‘developers’ have for many years provided housing to the poor. Arif Hasan, the leading authority on the informal housing sector in Karachi, observes that Today, it is the third generation of these entrepreneurs which is active in informal-sector activities in Karachi. The relationship that their predecessors established with government officials and agencies for support has long since been institutionalized, and the amount of underthe-table-payments to be made to different government functionaries, through whom and at what time, has also been formalized.11 The most common strategy consists of the illegal sub-division of government lands close to existing, formal, housing colonies. The developer often provides loans or even building materials to prospective ‘tenants’ with the terms being most favorable in the early phase of the ‘development’, when the risk of eviction and loss of investment is highest. It is common to start the illegal settlement with the building of a mosque in the expectation that a mosque would not be demolished by the authorities. Illegal settlements which emerge in this fashion do provide shelter but not much else. The provision of services is more difficult and in practice most of their inhabitants rely on tankers to supply water. Similarly, electricity is frequently illegally abstracted. Sanitation is, however, by far the most serious problem: raw sewage remains untreated and flows into existing, seasonally dried-out water channels which as a result are filled with a sludge of raw sewage and industrial wastes which very slowly flow through the city towards the coast. A recent special report on housing prepared by the UN Office for the Coordination of Humanitarian Affairs reflects on the environmental costs of informal housing: At first sight it looks like a river of plastic bags; on closer inspection, the bags merely form the top layer of a stream of thick sewage – green-black, thick, and virtually stagnant. … About 200,000 people live on either side of the open sewer which discharges directly into the sea.12 Karachi’s informal housing sector confirms Dowall’s observation that ‘in most developing cities, the legal, formal sector is largely irrelevant in terms of meeting

11

Arif Hassan, above n. 8, at 69.

12

‘Pakistan: Special Report on Informal Housing’, IRIN, 10 November 2003. 183

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the basic shelter needs of low- and moderate-income households’.13 None of the grand urban planning schemes were ever effective at delivering housing to the poor. The environmental costs of this failure are, however, significant. Whilst informal housing provides shelter it exposes its residents to high levels of environmental pollution and an almost complete absence of infrastructure and services. In fact the inadequate, and in most places complete lack of, sanitation and sewage treatment facilities means that informal housing colonies are a significant source of pollution themselves. The absence of any form of public transport, leave alone a mass transport system, also affects air- pollution levels and congestion: housing colonies are almost entirely served by the operators of mini-buses, who not only cause pollution and congestion but also a large number of accidents.14 (d) Case study: Rehmanabad Informal settlements gradually consolidate into suburbs which are often superficially indistinguishable from their legally developed neighbours. Nevertheless, depending on the location and political backing of the settlement, drastic actions like evictions can still take place even decades after the original founding of settlement. As has been observed by Beall with reference to Karachi: ‘security of tenure or occupation is an overwhelming preoccupation of residents in informal settlements’. 15 The case of Rehmanabad can serve as an example.16 The settlement came into existence in the 1970s and was founded by migrants from Bangladesh. At that time the area was empty wasteland and the migrants occupied it illegally. The settlement gradually grew in size but retained its Bangladeshi identity. However, over time the residents constructed houses and organised the supply of water and electricity. Small informal enterprises operated in the settlement, including a tannery and a poultry market. The residents paid a private teacher to run a school for the children of Rehmanabad. There were also various entertainment venues such as for video games, table football and carom.17 Whilst located about 13 kilometres from the centre, the city had over time encircled Rehmanabad and in the early 1990s it found itself surrounded by expensive residential developments and occupying valuable real estate. The 13

Dowall, D.E., ‘Benefits of Minimal Land-use Regulations in Developing Countries’, Cato Journal, 12:2, 413–423, 413.

14

See Urban Resource Centre, ‘Urban Poverty and Transport: A Case Study from Karachi’, Environment and Urbanisation, 13:1, 2001, 223–233.

15

Beall, J., ‘Assessing and Responding to Urban Poverty. Lessons from Pakistan’, IDS Bulletin, 28:2, 1997, 58–67, 60.

16

Rehmanabad was covered in a micro-study conducted by Beall in 1993, see ibid., at 64–65.

17

A version of table football.

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settlement benefited from the regularisation of informal settlements which commenced in 1987 and was properly notified under the relevant legislation.18 However, in 1992 the local councilor, belonging to the MQM, announced his intention to clear the settlement and to evict its residents.19 The residents went to court and obtained a stay order prohibiting any change of the status quo.20 However, in 1992 the MQM had taken over large parts of Karachi and taking advantage of the general lawlessness the councilor had the whole settlement flattened with bulldozers supplied by a local construction firm. All this happened without warning and overnight. Shots were fired and in the panic and confusion a 12-year-old girl died. The community was in shock. Beall reports the description of the demolition by a resident: All the houses were destroyed and even the mosque was ransacked …We returned to Rehmanabad and began to construct some shelter. The police came into the community firing guns and set fire to our reed houses. We went to the army and told them what happened. The army has protected us ever since.21 In 1997 the signs of the destruction were still visible. Many families lived in huts constructed from cardboard, flattened metal containers and corrugated iron sheets. Water was supplied by water tankers. Electricity was abstracted illegally from overhead power lines, although residents did actually pay for it albeit in the form of bribes to the Karachi Electricity Board officials.22 The community had evidently not fully recovered from the complete demolition of the settlement. The settlement had also shrunk in size: in the days following the demolition property owners abutting Rehmanabad had taken advantage of the confusion and had extended their properties into the settlement often by several metres.23

18

The legal mechanisms of the regularisation programme are described further below. In the case of Rehmanabad the notification that the settlement was going to be realised had been falsified – a decimal point was moved thus reducing Rehmanabad to a tenth of its size. Interview with residents conducted in May 1997.

19

The MQM is the main party representing the refugees and their descendents who settled in Karachi in the wake of the creation of Pakistan. Throughout the 1990s it was offering violent resistance to any attempts of the central government to regain political control in Karachi. The army was called into Karachi from 1992 to 1994. For an succinct account see Wilke, B., ‘Die Gewaltordnungen Karachis’, Leviathan, 28:2, 2000, 235–253.

20

Interviews with residents conducted in May 1997.

21

Beall, above n. 15, at 65.

22

Interviews with residents, May 1997.

23

In 1997 this land grabbing was still clearly evident in the form of hastily extended perimeters walls which enclosed the newly gained property. 185

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The residents of Rehmanabad were fortunate in having secured the protection of the army which at the time was already clamping down on the MQM. Nevertheless, they continue to be harassed by the local police forces and, as Beall observes, ‘it remains to be seen how long they can hold out against such powerful forces in the city’.24 The demolition of Rehmanabad is a reflection of the importance of social and political power for security of tenure and indeed survival. As a minority community of Bengali immigrants it does not enjoy any political patronage.25 On the contrary, the community is continuously harassed by the police and many residents are accused of being illegal immigrants.26 In Karachi, judging by the experience of the residents of Rehmanabad, relationships of power, social networks and social hierarchy are more important factors in determining and safeguarding security of tenure and access to shelter. The importance to survival of political patronage has been confirmed by other studies. An assessment of begging and bonded labour in Pakistan concluded that ‘because beggars live in illegal settlements in urban centers, the security of their homes is dependent on patronage from people in authority’.27 (e) Regularisation The gradual recognition that formal, planned housing developments were unlikely to empty Karachi’s slums lead to a rethink of policy. The regularisation and upgrading of squatter settlements was part of the programme of Prime Minister Zulfiqar Bhutto’s Pakistan People’s Party, even though very little was done about this policy objective during his tenure. In 1978, one year after the imposition of martial law, General Zia ul Haq promulgated an Ordinance which conferred legal status on all illegal squatter colonies which were in existence on 1 January 1978. It was hoped that this regularisation would, by removing the shroud of illegality from their inhabitants, allow for slum regeneration. However,

24

Beall, above n. 15, at 65.

25

As recently as 2003 the residents of Rehmanabad were promised Pakistani citizenship, see ‘Bengalis to Get Citizenship, Says Nazim’, The News, 1 April 2003. On the importance of ‘social capital’ in securing livelihoods in cities see especially Mitlin, D., ‘Civil Society and Urban Poverty – Examining Complexity’, Environment and Urbanisation, 13:2, 2001, 151–173.

26

See for instance the newspaper report of an order of the Sindh High Court by which the ‘Bangladesh Cell for Registration and the local police [were warned] of legal consequences if any illegal action was taken against the petitioner and his family’. The petitioner, a resident of Rehmanabad, had been harassed by local police on the pretext that he was an illegal immigrant. However, no formal proceedings had been taken against him. See ‘SHC Warns Police against Harassment of Bengali Petitioner’, The News, 10 Sept. 2004.

27

See Collective for Social Science Research, A Rapid Assessment of Bonded Labour in Domestic Work and Begging in Pakistan (Geneva, ILO, 2004).

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this proved not to be the case. The main reason for this was purely financial: residents could apply for leases but were asked to pay for them, albeit not at the market rate. The money realised in this manner was in turn going to be used for slum regeneration and improvement projects. Residents were reluctant to apply for leases: in many cases they had lived on the land for decades and had in fact already paid for the land, although the money had gone to the land mafia rather than the government. In addition, the leases available could only be transferred through inheritance so that there was little economic incentive to execute a lease. The fact of regularisation in itself gave sufficient protection against eviction and there were no obvious other incentives associated with a lease. The cut off point of 1 January 1978 stipulated by Martial Law Order 183 meant that any illegal development which came into existence after that date could be demolished. However, another amnesty and regularisation followed in 1986. It conferred legality on all squatter settlements in Karachi which existed before 23 March 1983. Slum regularisation and improvement were by now a formally recognised policy and in fact were also included as an item in the customary economic planning cycle of the government.28 However, according to a report of the Urban Resource Centre, a Karachi-based NGO, the plan missed its target by a very great margin since ‘it managed to regularise about 18,000 out of approximate 223,000 houses after having spent many hundred million rupees’.29 Nevertheless, the policy of improving existing housing colonies rather than embarking on the expensive development of entirely new housing units outside Karachi was to be given dedicated institutional support. The Sindhh Katchi Abadi Act 198730 created a dedicated authority, the Sindhh Katchi Abadi Authority (‘SKAA’), which was given the power to regularise existing squatter settlements. Its mandate was nothing but revolutionary and unprecedented in South Asia: any squatter settlement consisting of more than 40 dwellings, and having been in existence prior to 1985, can be regularised by the SKAA subject to certain conditions. These are primarily concerned with questions of land ownership: whilst for land owned by the federal government only a so called Non-Objection Certificate is required before the SKAA can begin its work, the same is not the case with privately owned land, where issues of compensation have to be negotiated with the owners. Some squatter settlements are also located in areas owned by other government agencies such as the Karachi Port Trust or the Karachi Sewerage and Electricity Board and a No-Objection Certificate is required from these entities before regularisation can begin. Squatter settlements located in environmentally hazardous locations and in areas reserved in urban master plans for amenities such as parks also cannot be regularised. 28

Government of Pakistan, Five Year Plan 1983–1988.

29

Urban Resource Centre, above n. 14, at 6.

30

‘Katchi Abadi’ is the commonly used Urdu term for a squatter settlement. 187

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The aim of the regularisation is twofold: first, to confer legitimacy to the settlement, thus removing the threat of eviction; and, second, to improve the living conditions of those living in the slum. In order to achieve the latter, the SKAA develops, in association with community-based groups, slum-improvement programmes. They tend to be locally defined and implemented and in fact, much of the required construction work is carried out by the people living in the settlement. The required funds are obtained from the inhabitants who do pay for the leases offered under the regularisation programme.31 There is a very real benefit in paying up since the money goes directly back into the community. However, there is a penal sanction attached to the non-payment of the lease fee: anyone who refuses to pay up will be treated as illegal squatter and is liable to be evicted. Given the political unrest which prevailed for large parts of the 1990s in Karachi the SKAA’s implementation of its mandate has been judged a success. Under the leadership of its director Tasneem Siddiqui,32 the SKAA conducted a survey of all squatter settlements and began the task of notification and subsequent regularisation. Figures vary according to the sources, but according to the Urban Resource Centre by 2004 the SKAA had identified 539 squatter settlements for regularisation and had granted a total of about 120,000 leases, about 20 percent of the total number of housing units deemed to be suitable for regularisation. The SKAA’s own figures state that up to December 2001 some 1,293 katchi abadis had been identified, of which 1,157 had been held to be fit for regularisation, and of which 929 had been notified. A total of 129,486 leases or similar occupancy rights had been granted.33 Whilst the work of the SKAA has made a difference to the lives of many families, it is nevertheless obvious to any observer of Karachi that the overall provision of housing and infrastructure as well as the quality of the environment have not improved significantly. One reason for this is the lack of coordinated urban planning for Karachi which would be needed to deal especially with

31

The model of community led slum improvement projects had been pioneered by the celebrated Orangi Pilot Project (‘OPP’) in Karachi. The OPP was founded in 1980 in order to implement slum improvement programmes through self-finance and management given that there was no or only little prospect of assistance from the government. one of the largest squatter settlements in Karachi. The OPP’s success has been such that it has formed a separate OPP-Research and Training Institute in order to allow other cities to benefit from its experiences.

32

Siddiqui became Director of the SKAA in 1991. In 1999 he was awarded the Ramon Magsaysay Award for Government Service for ‘demonstrating that a committed government agency working in partnership with NGOs and with the poor themselves can turn the tide against Pakistan’s crippling shelter crisis’: ‘Citation for Tasneem Siddiqui’ (Manila, Ramon Magsaysay Foundation, 31 Aug 1999) at .

33

See website of the SKAA at , 29 May 2005.

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environmental quality problems. The UNDP co-funded the Karachi Development Plan, completed in 1990, which was to be the blueprint for improving Karachi’s environment, but has remained unimplemented. In the absence of any overall coordinating agency or at least plan, city-wide projects have not been possible. Thus, there is for instance the striking absence of any mass-transport system, insufficient sewage treatment facilities and a water supply which is restricted to a few areas. The SKAA’s work is, however, also impeded by the continuing influx of new migrants into Karachi and the areas surrounding it. The original cut-off point of 1985 for the regularisation of squatter settlements was moved to 2001 by President Musharraf, who made the announcement during a televised address to the nation, but nevertheless there is no stopping the tide: every day new, extremely poor, people arrive in Karachi. As has been the case for many decades, their housing needs will be met by the ‘land mafia’ rather than the SKAA or the city’s government. The latest initiative in the attempt to provide housing to the poor comes from Hyderabad, a city close to Karachi, where since the early 1990s the ‘Khuda-ki-Basti Incremental Development Scheme’ has been in operation.34 The philosophy behind the scheme is simple: the only service offered by the Hyderabad Development Authority (‘HAD’) is a plot of land. The costs of the plots have to be paid by the tenants, albeit over a period of eight years. There is no other subsidy at all and families built their houses and infra-structure incrementally as and when resources become available. The major advantage of the settlement is its semi-planned character – the area reserved for the scheme is demarcated, and serviced by water, sanitation and electricity, but for all these services residents have to pay. Thus, the scheme creates very real competition for the land mafia which does not offer much more than land, especially in the later phases of an illegal development, and which is hampered by the fact that there is no absolute security of tenure. Given that in interviews with the author many inhabitants of slums complained about the high costs of illegally obtained electricity and water supplied by private, commercial operators, the HAD scheme is even more competitive. Further support for the importance of removing the middle-man and thereby reducing the need for patronage can be found in van der Linden’s work on services and infrastructure provision in Hyderabad. He concludes that patronage stands in the way of planned implementation of policies and argues that low-income household’s direct access to land and basic services are among

34

For a succinct account and documentation on the Khuda-ki-Basti project see the ArchNet Digital Library at (visited October 2005). The project won the Aga Khan Award for Architecture in 1995. 189

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the best forms of participation.35 The HAD is being adopted in Karachi as well but it is too early for an assessment of its success.

II. THE LEGAL FRAMEWORK (a) Constitutional rights Environmental law, if defined as those laws and institutions which regulate and determine the access to and the use of natural resources, has played only a minor role in the struggle for survival of Karachi’s poor. The main concern of the poor is access to shelter, water and certain services, in particular sanitation. However, Pakistani law does not recognise an enforceable right to shelter, nor indeed any other socio-economic rights, and the courts have never extended the definition of the right to life, guaranteed under Article of the Constitution of Pakistan, to create any rights to the provision of either food, water or shelter. A small number of public interest litigation (‘PIL’) cases in the middle of the 1990s created some expectation that the Supreme Court would follow the example of the Indian courts and embrace PIL, especially in environmental matters.36 The Constitution of Pakistan is in many respects similar to the Indian Constitution, there is for instance a similar division of fundamental rights and directive principles of state policy, but the Pakistani judiciary has not linked the two in order to expand the scope of constitutionally guaranteed fundamental rights. Equally, the emergence of an Islamic right to justice in the early 1990s, which could have become an ally of the poor, has disappeared from reported decisions. The decline of environmental PIL in Pakistan is a direct result of the demise of democracy in Pakistan. The coup d’etat of 1999, which brought General Musharraf into power, had a stifling effect on the higher judiciary. The judiciary was purged of any judge who could potentially challenge his rule and by and large all constitutional amendments brought into effect by Musharaff have had their validity confirmed by the Supreme Court of Pakistan. A climate of military dictatorship is not conducive to the enforcement of fundamental rights, especially not with a judiciary which was cleansed of any dissent to his rule in 2000.37

35

van der Linden, J., ‘On Popular Participation in a Culture of Patronage: Patrons and Grassroots Organisation in a Sites and Services Project in Hyderabad, Pakistan’, Environment and Urbanisation, 9:1, 1997, pp. 81–90.

36

Lau, M., ‘Islam and Judicial Activism: Public Interest Litigation ad Environmental Protection in the Islamic Republic of Pakistan’, in Anderson, M. and Boyle, B. (eds), Human Rights Approaches to Environmental Protection (Oxford, OUP, 1996) pp. 285–302, and Lau, M., The Role of Islam in the Legal System of Pakistan (Leiden, Brill, 2005).

37

For a critical assessment of judicial independence in Pakistan see International Crisis Group, ‘Building Judicial Independence in Pakistan’, Asia Report No. 86, 2004.

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It is also difficult to see how the blunt instrument of a judgment could have a direct impact on the housing crisis of Karachi given that even well-designed master plans for Karachi, like the UNDP-sponsored plan of 1990, have met with utter failure. Whilst certainly from the perspective of Karachi’s urban poor PIL has made very little difference to their lives, there is nevertheless one PIL case which serves to illustrate its potential effectiveness in the area of environmental justice. The case was brought before the Supreme Court by an environmental NGO as a public interest petition under Article 184(3) of the Constitution. In it the NGO argued that the proposed developments on an area of parkland, called Gutter Baghicha, located on the outskirts of Karachi, constituted a violation of the right to life, guaranteed under Article 9 of the Constitution, 1973.38 The Supreme Court issued only a stay order which restrained the Karachi Municipal Corporation or any other transferee from transferring or selling any part of Gutter Bhagicha.39 This stay order was only disposed of by the Supreme Court in May 2003 ‘… on the undertaking that CDGK [City District Government Karachi] is reaching understanding with citizens and NGOs and directs CDGK to submit compliance within three months’.40 Sheri proposed a 13-point draft agreement to the city government which contained a list of steps required to be taken to protect Gutter Baghicha against encroachments and illegal developments. Until the present, no agreement has been reached. The case could be viewed as a failure since for a period of six years nothing happened at all in the Supreme Court, and even the final order remains unimplemented. However, the litigation, whilst not resolving the issue, provided an important weapon in Sheri’s campaign: it could now take action against all government officials who had sanctioned development projects in Gutter Baghicha in violation of the Supreme Court’s stay order. Sheri has used a combination of legal avenues to protect the park. The most dramatic of these is the filing of First Information Reports (‘FIR’), the first step in a criminal prosecution, against government officials for having illegally allotted plots to private factory owners. The FIRs allege corruption and are registered not with the police but with the Anti-Corruption Establishment. In addition, Sheri’s legal representative has maintained a concerted campaign consisting of meetings and correspondence with various government officials demanding cancellation of leases, removal of encroachments, and disciplining of officials. Whilst there continue to be attempts to encroach on the site it must be said that Sheri’s campaign has been a qualified success. A combination of

38

See Sheri-CBE information on (visited 4 May 2005).

39

Human Rights Case 6–K/93, Order of Justice Saleem Akhtar, Supreme Court Pakistan, 23 August 1993, unreported.

40

See Sheri-CBE at (visted 4 May 2005). 191

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non-legal gateways, including media exposure and middle-class public pressure, and of legal gateways, including PIL and criminal prosecutions, have so far succeeded in preventing the development of the park into a housing colony for KMC officers or an industrial site – both of which had been in an advanced state of preparation and were about to be commenced. (b) Environmental laws Environmental law, as understood in the more narrow sense of specific laws designed to achieve and maintain certain environmental conditions especially in respect of air and water quality, has had a very slow start in Pakistan. Whilst India forged ahead with an impressive legislative programme since 1972, there has been hardly any activity at all in Pakistan. The 1983 Environmental Protection Ordinance, promulgated during martial law, was never fully implemented and remained for all practical purposes irrelevant for environmental protection. Environmental issues received more attention in the 1990s when the combination of several high profile PIL cases as well as the launch of IUCN’s Pakistan Environment Programme in 1994 provided enough momentum for the drafting of the Environment Protection Act 1997 (‘EPA’).41 EPA is primarily concerned with environmental pollution caused by industrial emissions. An Environmental Protection Agency formed under EPA has been given extensive punitive powers to enforce compliance with National Environmental Quality Standards. These were, however, not contained in EPA itself but were only enacted in 2000.4 2 They are supplemented by an innovative system of an industry-wide self-monitoring system which was launched in 2001. However, many key features remain unimplemented. For the purposes of access to environmental justice the delay in setting up environmental tribunals as contemplated under the EPA, section 20, is most relevant. The Environmental Tribunals (‘ET’) are to be chaired by a person who would also be qualified to be appointed as a judge of a High Court but of the other two members at least one should be a ‘technical member with suitable professional qualifications and experience in the environmental field’.43 The ET exercises exclusive jurisdiction over any violation of the EPA and can award stiff penalties, including imprisonment for up to two years and fines. Innovatively, the EPA also provides that an offender who benefited financially from a violation can be ordered to pay a sum of money commensurate to the

41

The EPA was in fact drafted by the IUCN. See IUCN, National Strategies for Sustainable Development (Islamabad, IUCN, 2000) p. 24.

42

National Environmental Quality Standards, S.R.O 549 (I)/2000.

43

Section 20 (2), Environmental Protection Act, 1997. EPA also provides for the appointment of Environmental Magistrates with jurisdiction to try more minor violations of EPA. However, they have not been appointed as yet either. See section 24, ibid.

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unlawful gain,44 as well compensation to any person who suffered through the contravention ‘any loss, bodily injury, damage to his health or property’.45 This is in addition to an order to pay for any clean-up costs.46 Issues surrounding environmental pollution are relevant to the poor in Karachi and at least in theory the EPA’s focus on ‘brown issues’ could have a beneficial effect on combating especially air and water pollution caused by industries. The EPA contains a citizen’s suit provision which provides that a complaint can be made to an ET by ‘any aggrieved person, who has given notice of not less than thirty days to the Federal Agency, or the Provincial Agency concerned, of the alleged contravention and his intention to make a complaint to the Environmental Tribunal’.47 In the absence of any case law under the EPA it is difficult to assess how the term ‘aggrieved person’ in particular will be defined by the courts; potentially this will exclude concerned NGOs from initiating proceedings under EPA.48 While the EPA is an important vehicle for the implementation of environmental policies, Pakistan’s experiences with environmental policies have been mixed. Unlike India, where the 1972 UN Conference on the Environment galvanised both policy and law-makers into action, there was no such reaction in Pakistan. In 1972 Pakistan had been faced with a second partition and the emergence of Bangladesh. Prime Minister Bhutto’s PPP was more concerned with economic development and poverty alleviation and no direct link was made between poverty and environmental degradation. The first serious policy input began in 1986 when the IUCN Pakistan began a consultative process with over 3,000 stakeholders which in the end lead to the adoption of a National Conservation Strategy (‘NCS’) for Pakistan by the government in 1992. Despite its name the focus of the NCS was very much on sustainable development, albeit that by its own admission ‘it falls short in the area of social sustainability’.49 The political turmoil associated with Pakistan’s decade of democracy meant that the NCS remained to a large

44

Section 17(4), Environmental Protection Act, 1997.

45

Section 17(5)(f), Environmental Protection Act, 1997.

46

Section 17(5), Environmental Protection Act, 1997.

47

Section 21(3)(b), Environmental Protection Act, 1997.

48

Whilst several environmental PIL dispensed with traditional locus standi rules there have also been more restrictive interpretations, see for instance The Multiline Associates v Adeshir Cowasjee PLD 1995 SC 423. It appears from more recent judgments that the Supreme Court has become more restrictive in it’s definition of what constitutes a ‘matter of public importance’ in order to be admitted as a constitutional petition under Article 183(4) of the Constitution, 1973. See for instance All Pakistan Newspaper Society and others v Federation of Pakistan PLD 2004 SC 600.

49

IUCN, The Story of Pakistan’s National Conservation Strategy (Karachi, IUCN, 1995) p. 60. 193

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extent unimplemented. Whilst the IUCN Pakistan and many NGOs have been very active in research and projects (the Northern Areas especially benefited from an intensive IUCN project on sustainable development), the government remained largely inactive, despite the passing of the EPA in 1997.50 This appears to have changed at present with the Environmental Protection Agency having been set up properly and with a Ministry of Environment which in 2005 published a National Environmental Policy.51 A right to clean, or healthy, environment or to basic needs like food and shelter, is, however, missing from Pakistan’s framework of environmental laws and policies. Neither is there a right to access to environmental information52 or to participation in decision making. (c) Environmental laws and the urban poor The urban poor’s experience of the legal system is almost wholly negative, preventing rather than providing access to resources. As is the case in many other third world cities, Pakistan’s legal system constitutes a hindrance to survival. Environmental laws, as understood in their widest scope, rarely create rights for the poor. Instead, these laws withhold legitimacy to the poor’s struggle for survival. This can be best seen in the provision of housing with perhaps as many as half of Karachi’s inhabitants living in ‘illegal’ squatter settlements. Only the regularisation programme conducted by the SKAA is able to lift the status of illegality from the inhabitants of katchi abadis. However, even in the case of the SKAA there is a not single reported case where an inhabitant sought to judicially review the decision of the SKAA not to grant a lease to him.53 The statute which created the SKAA enables the authority to regularise squatter settlements,

50

The IUCN’s Pakistan Environmental Programme, initiated in 1994, was a major force behind the passing of EPA in 1997.

51

The National Environmental Policy 2005 compares badly with the 1992 NCS – it is just 20 pages long and consists of several lists which in turn contain a number of objectives to be achieved. However, the document lacks any clear indication of what ought to be done in order to implement these goals. In short, it is a wish rather than a to do list.

52

A Freedom of Information Ordinance, 2002 was promulgated by President Musharraf three years after his coup d’etat but it took another two years for the The Freedom of Information Rules, 2004 to be made. For the purposes of pollution control the Information Ordinance has limited value since it affects only public bodies and cannot be used to obtain environmental information from private entities. The Ordinance was passed in order to obtain a US$ 130 million loan from the Asian Development Bank. See Rafaqat Ali, ‘Pakistan to Enact Freedom of Information Law: ADB Loan’, The Dawn, 25 July 2001.

53

In interviews conducted with residents of the Rahmanabad Katchi Abadi in Karachi the residents appeared most eager to have their settlement ‘notified’ and surveyed. This was regarded as conveying sufficient legal protection against eviction without costing any money. Since then the SKAA has changed its policy and threatens residents of settlements

194

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but does not confer any right on a resident of these settlements to be offered a lease. Whilst the SKAA offers hope and expectations it does not give enforceable rights. The same holds true for the provision of drinking water, sanitation and the prevention or abatement of pollution: there are no laws which would oblige any authority of the state to make these resources available to illegal squatters. As has been shown in India, some of these issues could be addressed by PIL but this has not happened. Karachi’s slum dwellers depend on other gateways to gain access to environmental resources, especially land and prevention of eviction. These other gateways are in many instances political, or consist of a nexus between the political and the criminal. The case of the Taikri Colony may serve as an example.54 This squatter settlement came into existence shortly after independence in 1947, but has remained officially an illegal settlement and has not been regularised. Some 25,000 live in the settlement which is bordered by a railway track and other squatter settlements. There is only one open space, which is used by the residents as a recreation ground. In 2002, the Sindhh government decided to construct residential buildings on the open space in order to create accommodation for government officials. The residents of Taikri Colony did not use the legal system to retain the space (it appears that the area was designated as recreational ground in urban development plans). but lobbied the area Nazim, an elected mayor responsible for the locality. He in turn filed a complaint with the provincial ombudsman. In October 2003 the Sindhh Ombudsman, after a hearing attended by the parties, directed the Sindhh government to refrain from any building activity on the open space. This should have been the end of the matter. However, the Sindh Government set the order aside and directed for the bungalows to be built. The area Nazim then approached the High Court of Sindh. The Court did not enforce the directions of the Ombudsman but ordered the Sindh Government to give a hearing to the area Nazim.55 Notice of the hearing reached the area Nazim so late that he could not attend it. Since then the governor of Sindh has changed and the matter is pending before him. The experience of the residents of the Taikri Colony reflect the limits posed to access to justice, including environmental justice, through the legal system. The first step of the residents was to approach the area Nazim rather than the courts. The office of an elected Nazim was only introduced in 2002 as part of a reform of a system of local government, which for the first time departed from

who refuse to take out leases after the notification of the regularisation with eviction. It is not know whether any evictions have been carried out by the SKAA on this ground. 54

See Ardeshir Cowasjee, ‘The Evil of Jirga Justice’, The Dawn, 9 May 2004.

55

Ibid. 195

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British colonial model.56 The system having only been operational for about two years, it is too early to assess its impact on the lives of the urban poor. However, the introduction of directly elected officials in charge of the city’s administration, including the provision of services, has created an important gateway to justice for the urban poor. The dependency of Karachi’s chief executive on votes to stay in power has for the first time created incentives to listen to the poor and to address their concerns. The second feature of the experience of the residents of Taikri Colony concerns the involvement of the Ombudsman. The office of the Ombudsman was created in 1983 by way of presidential decree57 as part of General Zia ul Haq’s attempt to introduce Islamic features into the legal system. Sindh and Baluchistan are the only provinces with provincial ombudsmen. The ‘Wafaqi Mohtasib’ (ombudsman) can be approached by citizens who believe that they have been victims of ‘maladministration’ by the government or its agencies, and its principal function is to uphold administrative accountability. Maladministration is defined in wide terms and includes not only a decision which is unlawful or ‘perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory or is based on irrelevant grounds’, but also those which involve ‘the exercise of powers, or the failure, or refusal to do so, for corrupt or improper motives’. Newspaper reports suggest that both the federal and the two provincial ombudsmen are being approached by concerned citizens frequently. However, it is difficult to assess whether citizens do obtain relief and address from the ombudsmen or whether they are being used as a remedy of last resort. Two recent decisions of the Pakistani Supreme Court, all involving government agencies who protested against a decision of the federal ombudsman, indicate that the courts at least regard the decisions of the ombudsman as binding on the parties. However, the office of the ombudsman lacks contempt of court powers and thus any of its decisions has to be enforced through separate proceedings.58 However, despite the weak enforcement powers

56

For a description and analysis of the new system see Zulqarnain Hussain Anjum, ‘New Local Government System: A Step Towards Community Empowerment?’, The Pakistan Development Review, 40:4, 2001, pp. 845–867.

57

See The Establishment of Wafaqi Mohtasib [Ombudsman] Order, 1983.

58

See Capital Development Authority through Chairman & another v Zahid Iqbal & Another PLD 2004 SC 99 and Federation of Pakistan through Secretary Establishment Division v Muhammad Tariq Pirzada and Others 1999 SCMR 2189. Article 11 of the Order provides that the Ombudsman has to communicate his order to the concerned governmental agency for taking action along the lines he recommended. If the agency fails to implement the order the Ombudsman can as the President of Pakistan to implement it. The lack of enforcement powers was criticised by the Pakistan Law Commission in 1993, see Law Commission, Enhancing the Powers of Wafaqi Mohtasib, Islamabad, 1993, but it was only in that the Wafaqi Mohtasib (Ombudsman) (Amendment) Ordinance, 2002 was made. It does not alter the enforcement mechanisms.

196

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the ombudsman has several advantages for Karachi’s urban poor: firstly, his office can be approached directly and without the need to engage legal representation. Secondly, since his jurisdiction concerns ‘maladministration’ in general, he is able to give preference to equity or justice rather than being forced to follow the law stricto sensu. In the case of Taikri Colony it was obvious that the residents of the slum had little by way of legal entitlement to the open space but much by way of justice and equity. Their case, however, also illustrates the limited power of the Ombudsman. Given that there is only one Ombudsman for the whole province of Sindhh, and several million inhabitants of squatter settlements whose very right to live in Karachi is insecure, there must be very real doubts about the effectiveness of this particular gateway to environmental justice. This analysis finds support in an assessment of the role of the ombudsman in ensuring administrative accountability by Transparency International, according to which the institution is ‘the least corrupt in Pakistan … although its decisions … are not at most times implemented by the executive’.59 Nevertheless, at least in the case of Taikri Colony, there has been a result of sorts. Their case was highlighted in the press by Ardir Cowasjee, a well-known social activist. The Nizam took up their case, and the Ombudsman has been involved. There is no certainty about the outcome of this struggle: at times buildings are constructed at great speed in the absence of any planning permission, with the developer hoping to obtain planning consent from the authorities once the building works have been completed. Part of this strategy is the selling of interests to third parties at a very early stage. In the past, courts have been reluctant to order the demolition of such buildings on the grounds that innocent third parties would suffer greatly.60 (d) Environmental litigation This is not to say that there is no environmental litigation in Karachi. However, what litigation there is concerns exclusively middle-class interests and has no impact on those living in squatter settlements. Karachi’s phenomenal growth since 1947 has meant that even the ‘original’, ie colonial, provisions of infrastructure, especially water and sewerage systems, proved insufficient to service the old, central, part of Karachi. In response to this, there has been a long standing policy against high-rise buildings in Karachi: whilst there is sufficient air space for buildings to grow taller there is not the infrastructure to service them. Nevertheless, developers try to circumvent these regulations, often by applying

59

Transparency International, National Integrity Systems – Country Study Report Pakistan 2003 (Berlin, 2003) p. 80.

60

This was the case for instance in Multiline Associates v Adeshir Cowasjee PLD 1995 SC 423. The Supreme Court refused to order the demolition of the illegality built portions of the building on the ground that innocent third parties would suffer. 197

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for planning permission for a low-rise building but subsequently adding floors to the newly constructed buildings. Neighbours and local residents do normally try to stop these violations of building control regulations and planning permissions by trying to obtain injunctions to stop the development or to force the Sindh Building Control Authority to take action against the developers. In 1988 citizens founded the NGO Sheri (Citizens for a Better Environment), in order to prevent high-rise buildings. Sheri has launched a number of cases involving the illegal construction of high-rise buildings and has gained considerable experience in negotiating the complex web of laws governing urban planning and building control in Karachi. There are several lawyers associated with Sheri who regularly appear before the courts in such cases. Their success rate has, however, been mixed. It is the sheer number of violations of building control laws which make it impossible for an NGO to have a very real impact on the overall development of the city even in the more affluent parts. Nevertheless, in cases where influential parties’ rights are threatened by illegal constructions the courts have responded favourably. The most recent example involves an action launched by Sheri against the Nestle Cooperation in 2004. Nestle had bought land in an area demarcated as ‘Education City’ by the government of Sindh and was planning to built a water-bottling plant by taking advantage of existing groundwater reserves in the area. The Sindh Institute of Urology and Transplantation, the Aga Khan University and its Medical College Foundation, and the Shaeed Zulfiqar Bhutto Institute of Science and Technology, who had all acquired land in Education City, sought an injunction against Nestle to prevent the plant from being constructed. Included in the group of defendants were also the Province of Sindh, the Environmental Protection Agency, the City District Government Karachi, and the Secretary Land Utilisation Department.61 The plaintiffs had little difficulty in obtaining the injunction: on the face of the record it was apparent that severe irregularities had occurred in the granting of the planning permission. Sheri uses legal means to prevent or to stop illegal developments and has launched a number of actions against developers but also government agencies or statutory bodies.62 However, whilst Sheri is concerned with environmental quality and standards, it is not directly concerned with the provision of shelter, clean drinking water or the improvement of squatter settlements. But even in respect of middle-class interests the legal system does not provide access to environmental justice. Air pollution, traffic congestion, lack of piped water, leave alone drinking water, power-cuts and open sewer conditions do affect even those

61

Per Justice Ali Aslam Jaferi, High Court of Sindh, Suit No. 567 of 2004, date of decision 30 November 2004, unreported.

62

For an overview of the activities of Sheri-CBE see their website at (visited on 5 May 2005) and above, p. 191.

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living in the more affluent areas of Karachi. Even privately owned properties are at risk of being stolen by organised gangs whose modus operandi ‘range from taking unauthorised/illegal possession of someone’s property to blackmailing and intimidating the owners of property, preparing forged documents and filing fictitious suits for laying claim to such property’.63 The Law Commission’s report on the activities of these gangs openly accused law enforcement agencies of assisting these groups with the backing a powerful social, political and bureaucratic elite.64 The aim of these groups is to obtain money rather than property: owners have to pay in order for the property to be vacated or law suits to be withdrawn. The victims of these groups find the legal system of little help. The police refuse to deal with it and refer them to the civil courts where, according to the Law Commission, ‘litigation is costly, tedious and slow’.65 It concluded that this state of affairs amounted to anarchy and constituted a violation of the citizen’s constitutionally guaranteed right to acquire, hold, enjoy and dispose of one’s property. The law proposed by the Law Commission has not been enacted, but a recent press release of the Law Commission’s successor, the Law and Justice Commission of Pakistan, recommended that the Pakistan Penal Code 1860, should be amended to criminalise the act of ‘illegal dispossession from property’, and to provide for a punishment of ten years’ imprisonment.66 (e) Access to justice The statement that ‘for Pakistan, access to justice for the common man has remained an elusive goal’, applies with particular force to Karachi’s urban poor.67 As could be seen in the stark example of Rehmanabad, the legal system plays only a minor role in securing and safeguarding access to shelter. There appears to be little that the legal system contributes to the realisation of environmental justice for the urban poor. Whilst the work of the SKAA has certainly increased security of tenure for the consolidated and established squatter settlements, the same is not true for those people who have arrived in Karachi more recently and for those who cannot secure political/criminal patronage due to issues surrounding social exclusion and marginalisation. Would the position of Karachi’s poor be improved if they had better access to the legal system? This is certainly the view of the Asian Development Bank which launched a US$350 million ‘Access to Justice Programme’ (‘AJP’) in

63

Law Commission, Eradication of ‘Qabza’ Group Activities, Islamabad, 1993.

64

Ibid.

65

Ibid.

66

Law & Justice Commission of Pakistan, Press Release, 19 March 2005.

67

Foqia Sadiq Khan, ‘The Way Forward: Access and Dispensation of Justice’, SDPI Research and News Bulletin, 11:2, 2004, pp. 1–5, at 1. 199

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Pakistan. Described as the ‘largest legal and judicial reform programme ever in Asia’,68 AJP expressly establishes a link between poverty and a lack of access to justice. At the heart of ADB’s poverty reduction strategy, consisting of ‘pro-poor sustainable growth, social development and good governance’, is the claim that all three components were to a large extent determined by legal and constitutional concepts.69 AJP would assist in achieving four objectives, namely to (i) provide security and ensure equal protection under the law to citizens, in particular the poor; (ii) secure and sustain entitlements and thereby reduce the poor’s vulnerability; (iii) strengthen the legitimacy of state institutions; and (iv) create conditions conducive to pro-poor growth, especially by fostering investor’s confidence.70 For Pakistan the AJP identified five inter-related ‘governance-objectives’: (i) providing a legal basis for judicial, policy and administrative reforms; (ii) improving the efficiency, timeliness, and effectiveness in judicial and police services; (iii) supporting greater equity and accessibility in justice services for the vulnerable poor; (iv) improving predictability and consistency between fiscal and human resource allocation and the mandates of reformed judicial and police institutions at the federal, provincial and local government levels; and (v) ensuring greater transparency and accountability in the performance of the judiciary, the police and administrative justice institutions.71 In the implementation of the AJP the focus on the police, judiciary and law related administration has been maintained. The Law and Justice Commission of Pakistan (‘Law Commission’), the main executing agency of the AJP, has established seven distinct project areas on legal and judicial research, legal empowerment, judicial training, institutional development of subordinate

68

Arthur M. Mitchell, ‘Reforming Law Empowers the Poor’, ADB Review, November 2004, at (visited on 11 May 2005).

69

For a summary of the ADB’s access to justice policies see G.H.P.B. van der Linden’s opening remarks at ‘Challenges in Implementing Access to Justice Reforms Symposium’, 26 January 2005, available on ADB’s website at (visted 11 October 2005).

70

ADB Profile for Loan: PAK 32023–01.

71

Ibid.

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courts and promoting innovations in legal education). 72. What makes the AJP different from other legal reform programmes is its focus on lower courts. Court infra-structure, technological support, better pay and access to bench books in Urdu are all meant to improve the quality of the lower courts. Alongside there are some attempts to improve the legal literacy of the poor and their access to courts: the Commission’s website contains summaries and simple explanations on specific areas of law which have been translated into Urdu.73 There must, however, be doubts about the ability of the AJP to realise its objectives. The first set of doubts relate to the way the project is being implemented. Many potentially important measures have remained in the planning stage. The setting up of small claims courts which would provide quick and inexpensive dispensation of justice at grassroots level, has for instance been stalled not because parliamentarians could not agree on this legislative measure but due to ‘shortage of resources, systems and human resources necessary to operationalise such courts’.74 Given that Pakistan’s Ministry of Justice is the executing agency of the largest ever access to justice reform programme in Asia, this statement does not give much assurance that other parts of the AJP will be implemented. A reading of the Law Commission’s Annual Reports leaves a troubling sense of familiarity: convincing and lofty statements about the importance of a functioning legal system and access to justice; condemnation of the failings of the current system; many recommendations for statutory reform; demands for improvements of the judicial infrastructure, training and remuneration; and ad hoc measures like an order to jails to install flush toilets in cells and to improve the prison conditions especially of prisoners condemned to death. The second set of doubts concern the management-oriented focus of the AJP. A paper published by the Islamabad-based Sustainable Development and Policy Institute concludes that Insofar as the direction of legal reforms is concerned, a better management of the judicial system is a welcome step. However, the benefits of such an approach, if and when it is implemented, are likely to be limited. It may not be possible to fully ensure justice for the poor and the marginalized groups by better management of the judicial system alone, unless steps are taken to transform the local power structure (related to dispensation of justice), to a more just and equitable one.75 It is too early to draw any firm conclusions on the successes and failures of the AJP. However, the absence of any serious consideration of issues involving the 72

The Fourth Annual Report was released in June 2004.

73

Ibid. The Report does not specify how this information is being disseminated.

74

Ibid, at p. 8.

75

Foqia Sadiq Khan, above n. 67, p. 2. 201

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substance of the justice to be accessed by the poor, the lack of engagement with access to basic needs and environmental goods, and the failure to mention basic rights and entitlements, makes it unlikely that the AJP will have a dramatic impact on the lives of Karachi’s urban poor. Given the prominence of complaints about police corruption and harassment, a second programme contained in the ADB AJP has potentially a more lasting impact on the lives of the urban poor: the reform of the police. Police harassment, bribery, corruption, beatings, torture, death in custody are mentioned with depressing regularity in any human rights’ report on Pakistan whether produced domestically or internationally. A succinct review is given by Transparency International according to which The police are known to threaten life and torture if necessary to exort money from any hapless person who ventures into a police station for a legitimate complaint. It colludes with vendors, groups and mafias in the encroachment of public places, roads and streets taking bribes for protection and the security of the encroachers.76 These observations pertain with particular force to Karachi’s slum dwellers, and according to Arif Hassan, for them the issue of crime will increase in importance in the future. He predicts for Karachi’s poorest that with increasing economic liberalisation large segments of the inhabitants of informal settlements will face unemployment and that the resulting division between rich and poor within informal settlements will lead to an increase of criminal activity. This in turn would also lead to an increase of already existing informal neighbourhood policing systems which ‘continue to operate and grow in defiance of state rules’.77 The new Police Order 2002 is meant to reform Pakistan’s police by improving the supervision and accountability of the police forces and to remove them from political influence and pressure. Public Safety Commissions at district, provincial and federal level are supposed to take steps to prevent the police from engaging in any unlawful activity. Whilst there has been enthusiasm from the ADB for the reforms – a recent report described it as a quantum-leap toward reforming its outdated police services78 – others have been more cautious: ‘to what extent the new legislation succeeds in turning the police in Pakistan into an independent, neutral and people friendly force, only time will tell’.79 Recent incidents, including the attempt to strip naked the Chair of the Pakistan Human

76

Transparency International, 2003, op. cit. p. 71.

77

Arif Hassan, above n. 8, p. 76.

78

van Zant, E., ‘New Era for Pakistan’s Police’, ADB Review, 37:2, May 2005.

79

Joshi, G.P., ‘Police Reforms in Pakistan: A Step Forward’, Commonwealth Human Rights Initiative – Newsletter, 12:1, 2005, pp. 1–4, at 4.

202

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Rights Commission during a demonstration in Lahore,80 indicate that Pakistan’s police are some way removed from becoming a constructive force in the poor’s struggle for access to justice.

III. CONCLUSION There are recurring themes to be found in any account of the lives of the poor in Karachi. They include violence, pollution, insecurity, corruption, lack of services and infrastructure, crowded and unsanitary conditions, harassment from police and other governmental agencies, long periods spent on commuting, lack of public health services and schooling. They also include the themes of informality, of community initiatives, of self-help and local initiatives. What all of these themes have in common is lawlessness, in the sense of both illegality on the one hand and the very absence of law on the other. Illegality manifests itself not only in the fact that it is the legal system which renders the occupation of public land illegal and makes to squatters what otherwise would be bona fide tenants. It is also apparent in the illegal practices surrounding the emergence of informal housing colonies. Corruption and bribery take the place of planning consents and no objection certificates. The absence of law manifests itself for the poor most importantly in the lack of protection against crime and governmental lawlessness. But it is also evident in the absence of public services like schools and infrastructure, mass transit systems and the like. Academic literature on Karachi’s urban poor does not devote much space to law-related issues either nor does there seem to be any development project concerned with creating legal gateways for access to environmental justice. Equally, the most active pro-poor urban NGO, namely the URC, does not engage in environmental litigation. The reasons for the absence of law are easily identified: rampant corruption, a web of political patronage which is complex, pervasive and seemingly impenetrable, weak legal institutions, scarcity of resources, civil strive, and overwhelming poverty are all factors which in Karachi render legal gateways to environmental justice meaningless to the vast majority of its citizens. The slum citizen has to negotiate networks of power and patronage in order to have access to resources, be it shelter, water, sanitation, transport or indeed protection against crime and police brutality. Scarcity of resources and corruption are the main engines which keep these networks alive. There is some merit in the argument

80

The assault took place when religious groups disturbed a sporting event organised by several prominent NGOs. Ms Jahangir, who is also the UN Special Rapporteur on Religious Freedom, was assaulted by several police officers who had been told to ‘Teach the bitch a lesson. Strip her in public.’ See International Herald Tribune, 15 June 2005. 203

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that for Karachi’s urban poor these networks have been the key to survival and that without them their very existence in the city would be impossible.81 However, the quality of this existence is poor. Environmental degradation, lack of security, resources and empowerment are features of an urban society which are suffered but not chosen. In the past the legal system has offered very little to the urban poor. Successes in slum improvement projects invariably depended on local community participation, small scales and an incremental approach but not on law or legal institutions – protection against eviction or crime tend to obtained informally rather than through the legal system. Can this change, and if yes, what would be the role of the legal system in such a transformation? Corruption, inefficiency and weakness have been associated so very closely with the legal system that there has been no serious attempt to use law as a catalyst for change. Nevertheless, there have been some instances where the legal system offered solutions rather than obstacles. The use of criminal law by NGOs to reign in corrupt government officials, the use of the Ombudsman to create pressure on state institutions, the creation of elected city official and the judicial affirmation of rights to participation in decision making are all examples of small successes. However, they will not be able to be replicated unless the legal system frees itself of the clutches of corruption. Access to a corrupt legal system offers no change to the poor nor any access to environmental justice.

81

See in support of this contention especially Satterthwaite, D. and Mitlin, D. (eds), Empowering Squatter Citizens (London, Earthscan, 2004).

204

Chapter 8

TOWARDS A GREENER CHINA? ACCESSING ENVIRONMENTAL JUSTICE IN THE PEOPLE’S REPUBLIC OF CHINA Michael Palmer 1

I. INTRODUCTION

L

egal reform has been one of the most significant developmental goals followed in China since the late 1970s. In its rejection of Mao Zedong’s millenarian goal of continuous revolution, the post-Mao Communist Party leadership set about creating a system of socialist legality and democracy in China that evolved during the 1990s into significant efforts to move the People’s Republic towards a socialist state governed in accordance with the ‘rule of law’.2 The legal reform policy has transformed China’s legislative system, created far-reaching changes in both public and private laws as well as in the country’s procedural laws, and stimulated the emergence of various kinds of legal profession in the People’s Republic. The evolving legal system now plays a significant role in regulating economic conduct, dealing with civil and administrative disputes, imposing law and order, and setting the parameters between a still-authoritarian system of governance and an increasingly autonomous civil society. An important component of these law reform efforts has been a policy of developing a legal framework and institutional infrastructure for environmental protection (huanjing baohu) – an often-robust approach that stands in stark contrast to Mao’s willful neglect of environmental concerns during, in particular, the period from the late 1950s through to the early 1970s.

1

Professor of Law at the University of London; Chair of the Centre of East Asian Law, SOAS; Barrister-at-Law, Serle Court Chambers, Lincoln’s Inn.

2

In 1999, governance in accordance with the principles of the ‘rule of law’ was formally incorporated into the Constitution of the PRC, at Article 5.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 205–235 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

This paper examines key aspects of the environmental protection system that has been constructed in China during the post-Mao period and, in particular, considers the manner which the system of environmental protection that has been created affords access to environmental justice for the ordinary Chinese citizen who has to live in the current (and future) environment. For despite the impressive efforts at environmental protection outlined above, the Chinese environment has become seriously degraded. In numerous cases, environmental welfare levels have been maintained by the legal and institutional reform efforts – but in many other situations, there has been severe environmental degradation. Although a full code of environmental law was introduced in 1979, at the onset of China’s post-Mao rebuilding, and then revised in 1989, the Chinese environment was put under pressure by the economic reforms that the revived legal system was intended to support. Moreover, until the early 1990s, the PRC followed a policy of xietiao fazhan or ‘co-ordinated development’3 under which the PRC purportedly gave equal attention to both economic growth and environmental welfare. Within the framework provided by the principle of co-ordinated development, the rights of future generations to a safe and healthy environment were not stressed, and in reality China’s approach was (and, to a significant extent, still is) to confer primacy on economic growth so that the PRC might first deal with the difficult issues of rapid population growth and widespread poverty before pursuing a more environmentally sensitive developmental strategy. Moreover, environmental welfare was characterised as one aspect of the economy, and not as a social issue, so that pollution and other forms of environmental harm were (and even today still are) often subject to short-term decision-making, with immediate economic growth taking priority over environmental protection, and administrators often concerned to avoid

3

Provided for in Article 4 of the 1989 Environmental Protection Law: ‘the state shall adopt economic and technological policies and measures favourable for environmental protection so as to co-ordinate the work of environmental protection and economic construction and social development’. In more recent times, a further significant development in environmental jurisprudence has emerged namely, the notion of environmental rights as a distinctive form of citizens’ right. However, this more actor-centered approach does not yet seem to have had a significant impact on official policies and practices, and it is therefore not considered here. Important examples of the emerging discourse can be found in LU Zhongmei, ‘Zai lun gongmin huanbao quan [A further discussion of citizens’ environmental rights’, Faxue Yanjiu, No. 6 for 2000, pp. 129–139, her essay ‘Huanjing qinquan susong zhengming biaozhun chutan’ [Studies in the standard of proof in actions regarding infringement of environmental rights], Zhengfa Luntan, Vol. 21, No. 5, p. 26–33, and the section entitled ‘Disan dai quanli’ [Third Generation Rights], pp. 104–124 in her book Huanjing Fa Xin Shiye [A New Vision of Envronmental Law], (Zhongguo Zhengfa Daxue Chubanshe, Beijing, 2000). See also, for example, CHEN Quansheng, ‘Lun huanbaoquan de jiuji’ [A discussion of the remedies in environmental rights], Faxue Pinglun, no. 2 for 1999 (Total, no. 94), pp. 114–118.

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‘over-protection’ of the environment at the expense of economic growth. Thus, the commitment to sustainable development is, in reality, significantly limited. In policy terms, there have been many indications of a distinct lack of attention to sustainability: for example, transportation strategy is focussed on the family car rather than public transport, and energy strategy remains heavily dependent on the non-sustainable resources of coal and oil. A key ideological change came in the early 1990s when the PRC finally endorsed the notion of ‘sustainable development’ (rendered in Chinese as chixu fazhan). And there are now signs that under the new political regime headed by Hu Jintao – President of the Chinese state and also General Secretary of the Central Committee of the Communist Party of China (CCP) – some further changes can be expected. Beginning in the spring of 2004, Hu has in a series of speeches around the country encouraged Chinese lawmakers and others to embrace his ‘concept of scientific development’ (kexue fazhan guan) and to use that concept as the basis for a more subtle and rounded approach that is less obviously focussed on economic growth, which gives greater attention to the need for sustainable development, and which in particular tries to deal more effectively with issues of population, resources and the environment.4 This has, among other things, encouraged the embrace, on an experimental basis, of the notion of a ‘Green GDP’ – in a joint project of the State Environmental Protection Administration and the State Bureau of Statistics, a Green GDP will be calculated for China by deducting from the annual GDP the costs of resource depletion, pollution, and other environmental damage caused by economic development.5

II. THE LEGISLATIVE FRAMEWORK FOR ENVIRONMENTAL PROTECTION In substantive terms, the most important item of legislation the system above has enacted with respect to environmental protection and currently in force is the 1989 (revising the 1979) Environmental Protection Law. Within China this Law is regarded as a concrete expression of the principle of a clean and safe environment ‘guaranteed’ by Articles 26 of the 1982 Constitution: ‘the State protects and improves the living environment and the ecological environment. It prevents and controls pollution and other public hazards. The state organizes and encourages afforestation and the protection of forests’. The Constitution,

4

Hu Jintao, 2004 ‘Zai Zhongyang Renkou Ziyuan Huanjing Gongzuo Zuotanhuishang de Jianghua’, [Speech to the Central Forum on Work on Population, Resources, and the Environment].

5

State Environmental Protection Administration, ‘Country switches onto energy efficiency’, 9 March 2005 . 207

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which in the Chinese system is non-justiciable,6 also provides at Article 9 that ‘the State ensures the rational use of natural resources and protects rare animals and plants. The appropriation or damage of natural resources by an organisation or individual by whatever means is prohibited’. In addition to the Constitution, there are two statutes in the Chinese legislative scheme of things that are considered to be of fundamental importance and relevant to environmental concerns: the General Principles of the Civil Law 1986, and the Criminal Law (1979, revised 1997). The General Principles contain a number of important provisions relevant for environmental welfare. Articles 80 and 81, in the section on property rights in the Chapter on Civil Rights, oblige those who lease state-owned land or other natural resources to protect and properly use such property, and Article 83 requires neighbours to sustain proper neighbourly relations in respect of supply of water, drainage, passageway, ventilation and light and obliges ‘anybody who causes obstruction or damage to his neighbour to desist the infringement, eliminate the obstruction, and compensate for the damage’. Moreover, in the same Chapter the section dealing with personal rights affords citizens the right to life and health (Article 98). In the Chapter on Civil Liability, provision is made not only for a wide range of remedies – from cessation to apology – where civil rights have been infringed, but also specifies that strict liability applies where damage is caused to others by ‘operations that are greatly hazardous to the surroundings’ (Articles 123, 106) or where an actor has caused damage to others by polluting the environment ‘in violation of state provisions for environmental protection and the prevention of pollution’ (Article 124). In addition, in order to strengthen the hand of private litigants who bring environmental suits, a new provision reversing the burden of proof in an action of compensation for damages caused by the environmental pollution is introduced in Several Provisions of the Supreme People’s Court on Evidence in Civil Actions (in force, 1 April 2002), so that the defendant bears responsibility for rebutting alleged causation (Article 4[3]). The Environmental Protection Law 1989 itself also provides for environmental offences, as a matter of general principle. Serious pollution incidents leading to serious property losses or personal injury or even death are ‘to be investigated for criminal responsibility according to the law’ (Article 43). The Criminal Law, revised in 1997, expanded the range of substantive environmental criminal offences contained in its 1979 predecessor, and introduced a specific section

6

In the late 1980s (prior to the 4 June 1989 suppression of the pro-democracy movement), and again in the past few years, arguments have been made by constitutional lawyers and others (including judges of the Supreme People’s Court) in favour of strengthening the role of the Constitution but so far these have not made significant progress and the Constitution remains ‘programmatic’ in nature.

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on crimes of harming the environment. It provides for the possibility of heavy punishment in serious cases of environmental destruction, including: illegal fishing (Article 340), endangered species (Article 341), land use (Article 342), mineral resources (Article 343), forestry (Articles 344 and 345) and illegal dumping or importing and treatment of hazard wastes (Articles 338 and 339). The revised Law also makes organisational leaders personally responsible in cases in which an organisation has committed such offences. The Law also places a greater burden on environmental protection and forestry officials to carry out their duties conscientiously by characterising civil servant misconduct as a matter of criminal rather than civil or administrative responsibility (Articles 407 and 408). The expectation is that this broadening of the range of criminal responsibility for environmental damage will act as a significant deterrence, and the creation of a special chapter on environmental offences is indicative of the authorities’ resolve to protect against ecological harm. As noted above, the 1989 Environmental Protection Law affords the fundamental principles and methods by means of which the Chinese environment is to be safeguarded, with pollution prevented and existing problems remedied. The Law is now somewhat dated and, in particular, precedes the introduction of a more market-based economy as endorsed by the amendment in 1993 to the Constitution embracing the notion of a ‘socialist market economy’.7 Thus, Article 1 of the Law states that its general purpose is not only to ‘protect and improve the people’s environment … ecology … and health’, and guard against ‘pollution and other public hazards’, but also to ‘facilitate the development of socialist modernisation’. Consistent with the emphasis in the Constitution on the responsibilities of the state (including state-owned enterprises and related institutions), Article 4 of the Environmental Protection Law requires state environmental protection plans to be incorporated into national economic and social development plans. Articles 7 and 16 oblige the State Council departments with responsibility for the environment, and equivalent bodies at lower levels of government, to supervise and manage the system of environmental protection. An organisation whose activities result in pollution is required by Article 24 to include environmental protection into its plans, set up an environmental responsibility system, and develop effective processes for the prevention and control of pollution. The Law incorporates the ‘polluter pays’ principle into its operations. Article 27 requires a unit that creates pollution to register with the environmental control authorities. In Article 28, an organisation discharging pollutants in excess of national or local standards pays a fee for the excessive discharge and is required to eliminate or at least limit the pollution. Failure to

7

Article 7 of the 1993 Amendment to the Constitution of the PRC revises Article 15 of the Constitution itself so that the latter now reads: ‘the state practices a socialist market economy’ [shehui zhuyi shichang jingji]. 209

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eliminate or control the excess pollution within a prescribed period may result in an excess discharge fee or in cases that are more serious a fine and perhaps also an order for suspension or cessation of its operations (Article 39). In addition the 1989 Law stipulates that where the terms of Chinese domestic law differ from those in international environmental law treaties to which China has acceded, it is the provisions of the latter that prevail, except in those cases in which the PRC has made specific reservations.8 The Environmental Protection Law also provides a legislative canopy beneath which may be found a number of important legislative provisions dealing with specific elements of environmental welfare. The following enactments are seen as especially significant: the Water Pollution Prevention and Control Law (originally introduced in 1984, and revised in 1996); the Law on the Prevention and Control of Atmospheric Pollution (first introduced in 1987, and revised in 1995 and 2002);9 the Law on the Prevention and Control of Noise Pollution 1997 (originally promulgated as the 1989 Regulations on Noise Pollution); the Law on the Prevention and Control of Marine Pollution (originally introduced in 1983, and revised in 1999); the Environmental Impact Assessment Law 2002; and the Law on the Prevention and Control of Pollution by Solid Waste (originally promulgated 1995 and revised 2004). In addition, there are important supplementary codes on China’s grasslands, forestry, mineral resources, land administration, wildlife, treatment of pollutants, coastal development, water and solid conservation, food hygiene, flood control and administrative licensing. These are further supplemented by an immense range of administrative decisions rules and regulations on such matters as emission standards for air, noise and water pollution issued by the State Council and its constituent departments,10 .

8

It might be added here that although the 2000 Law on Legislation does not appear yet to have played a major role in shaping legislation on environmental protection, the possibility of public participation in the environmental law-making process has been enhanced by some of the provisions in that Law. These stipulate that in the drafting of laws, the National People’s Congress, its Standing Committee (SC NPC), the Legislative Affairs and other Committees of the SC NPC which are responsible for preparing new legislation should solicit views from a wide range of bodies and individuals by means of conferences, discussions, public hearings and so on. Drafts should be distributed to experts for comment and, in some cases, made available for more general comment. Although in some controlled situations, such as the revision of the 1980 Marriage Law in 2001, this has produced a robust public response, by and large the consultation process remains relatively limited, a problem exacerbated by the limited autonomy allowed for NGOs and other groups found in China’s slowly emerging civil society.

9

See, for a perceptive analysis of the revision of the Air Pollution Law, William P. Alford and Benjamin L. Liebman, ‘Clean Air, Clear Processes? The Struggle over Air Pollution Law in the People’s Republic of China’, 52 Hastings Law Journal, (2000–2001) 703–748.

10

For example, the Decision of the State Council on Several Issues of Environmental Protection 1996, which laid out the ways in which China should attempt to achieve

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as well as legislation promulgated at the local level by municipal and other authorities which, it should be noted, may not be inconsistent with national legislation. Local authorities may determine their own environmental standards, if the standards set do not fall below national levels. Within this vast corpus of rules, two legislative developments have been especially important in the past few years: the Law on Environmental Impact Assessment 2003 and the revised Law on Solid Waste Management 2004. In the history of the development of environmental law in the PRC, these may be seen as marking a new phase in which there is growing understanding within government of the need to respond effectively to the problems that beset the Chinese environment.

III. INSTITUTIONAL FRAMEWORK In order to address China’s environmental problems, an institutional framework with responsibility for environmental welfare has been constructed over the past two decades. An important legal basis for this institutional development is formed by the requirements in Articles 7, 9, 11 and 16 of the 1989 Environmental Protection Law for the State Council, aided by departments of environmental protection in local governments, to ‘conduct unified supervision and management of environmental protection work throughout the country’, and for national and local people’s governments to establish appropriate environmental standards, create and operate environmental monitoring systems, and maintain and enhance environmental quality. Within the central government, the key agency is the State Council’s State Environmental Protection Administration (SEPA). Formerly known as the National Environmental Protection Agency (NEPA), this body functions under the leadership of, and is funded by, the State Council. NEPA was granted a significant degree of autonomy in the late 1980s when it separated from its then-parent body – the Ministry of Urban and Rural Construction and of Environmental Protection. SEPA’s status and responsibilities were further significantly upgraded when it acquired its present name and became a ministry-level body in 1998. SEPA is now primarily responsible for the overall system of environmental management in China, including the prevention and control of pollution, the promotion of environmental welfare, and the encouragement of policies of sustainable development. Its broad remit includes, more specifically, the formulation of policies, laws, and regulations on environmental protection, the setting of

sustainable development and promoted an ‘administrative responsibility system’ in which local people’s governments are required to formulate specific goals and measures in order to control the discharge of pollutants and environmental quality within the areas under their control. 211

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environmental standards, assisting with particular difficulties such as pollution that are trans-provincial or which cross China’s international boundaries, and shaping the PRC’s approach to the United Nations Environment Programme, and other international environmental developments. Following its elevation in status in the late 1990s, there has been a considerable improvement in the educational levels and administrative competence of SEPA personnel who are also more obviously committed than were their predecessors to environmental welfare. Nevertheless, the budget for SEPA is relatively modest, and SEPA has not escaped the effects of a general policy of limiting government size so that it remains seriously understaffed, with some 300 personnel trying to deal with the environmental problems of a society with a population of more than 1.2 billion. And SEPA often clashes with more powerful ministries more directly responsible for economic growth. Other national-level bodies with important responsibilities for environmental welfare are the State Economic and Trade Commission, the State Development and Planning Commission and, within the National People’s Congress, the State Commission for the Protection of the Environment and National Resources. The latter Commission is the highest agency with responsibilities for the environment in China, and the most important of these include formulating general policy for environmental protection, providing the Standing Committee of the NPC with assistance in supervising the work of environmental agencies, and drafting laws, regulations, and directives on environmental protection. Together with SEPA and the Supreme People’s Court, the Commission forms part of the key institutional complex within central government with ultimate responsibility for policy formulation, law making and supervising the implementation and enforcement of the environmental normative framework. As noted above, an additional element in post-Mao China’s approach to environmental welfare has been the delegation of responsibility to the provincial and lower levels. Here the Environmental Protection Bureaux (EPBs) and, at the level of urban neighbourhoods, townships and some villages, Environmental Protection Offices (EPOs), are the localised versions of SEPA. The main tasks of the EPBs and EPOs is implementation and enforcement of the policies and laws laid down by SEPA, the drafting of local regulations on environmental protection, and supervision of the work of local Environmental Monitoring Stations (which gather data on pollution and provide reports on environmental assessment). The knowledge of local environmental conditions which Monitoring Stations are able to build up is an important resource in carrying out administrative dispute resolution (hitherto the dominant mode of dealing with environmental quarrels). The EPBs and EPOs, however, suffer from a number of serious problems. First, in common with many Chinese institutions they are subject to a dual leadership system in they bear responsibility to two agencies – first, to higher levels in the

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administrative system for national environmental protection and, secondly, the local governments in which they are located. In this organisational arrangement, the EPBs and EPOs are funded by the local governments within which they are situated, and it is the local governments that are in the more powerful position over the environmental protection agencies. The financial dependence of the latter means that they are often placed in the difficult position of having to punish the hand that feeds them, given the local governments’ close involvement in local economic activity. In addition, the system of funding means that there are serious resource difficulties for EPBs and EPOs in the poorer, inland, western areas – in many cases, the areas where environmental degradation is most serious. In general, it is in the poorer areas of China that local administration are most inclined to resist the efforts of EPOs and EPBs to take action against polluting industries, in the interests of maintaining employment levels and protecting economic growth. An additional problem is that EPBs and EPOs are also dependent for their finance of the emission fees that they impose, a system which thereby encourages official tolerance of pollution. In some cases, also, in keeping with the close involvement of local governments with local businesses, they also engage in commercial activities. A further dimension in the PRC’s system of environmental protection is the increasingly important role of non-governmental organisations (NGOs) and the mass media. Until the mid-1990s, this development was very limited. In terms of international NGOs and pressure groups, the PRC authorities have long taken the view that the Chinese environment is an internal matter for China alone to deal with – a key component of China’s ‘right to existence’ – and one which is therefore of only limited concern for Greenpeace, Friends of the Earth, and so on. In addition, the political and legal systems in China have generally been resistant to the development of indigenous NGOs. The authorities have been generally reluctant to encourage a type of organisation that often seems involved in political dissent. The regulation and control of voluntary associations rests with the Ministry of Civil Affairs, and agency renowned for its political caution. The rigorous registration system that the Ministry has set up leaves voluntary organisations vulnerable to close supervision by civil affairs officials. As a result, the emergence and growth of genuinely independent NGOs within China has been both slow and controversial. The leadership is well aware of the role that environmentalism could come to play in a wider movement for political change. It worries about ‘colour revolutions’ of any kind, include the ‘Green’ type. Nevertheless, a variety of quasi-NGOs have emerged in recent years and been tolerated by the central authorities who increasingly see them as potential allies who could lend a hand to under-resourced state institutions in the effort to promote environmental welfare. Some are located in universities as research centres, and others so closely associated with the government that they are best characterised as ‘GONGOs’ or governmentally organised voluntary bod-

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ies. But more genuinely autonomous groups have emerged and managed to survive, in part through a process of ‘self-censorship’ – they refrain from public confrontation with the authorities and focus instead on ‘safe’ concerns such as environmental education, recycling, nature conservation and so on. The media also operates within tightly drawn parameters of politically acceptable conduct, and concentrates primarily on environmental education. But it also sometimes carries out rigorous investigation reporting, and newspapers are prepared to attack local authorities for failing properly to protect the environment for the people who have the misfortune to reside within their jurisdiction. Problems with the state environmental protection system and the limited role that NGOs and the media are allowed to play in promoting environmental welfare are by no means the only serious difficulties in the institutional framework for environmental protection, for, thirdly, there is the problem of local interests. Given China’s continuing policy emphasis on economic growth, probably the most difficult issue in respect of environmental welfare is the tension between such growth and environmental protection. At the national level, the framework of laws and regulations, and of institutional structures, provide an apparently robust regime for protection. However, at the local level, especially in the countryside, the situation is much less certain. Local governments very much wish to promote trade and industrial growth and draw in outside investors, so that the benefits of economic reform can be enjoyed in the areas for which they have administrative responsibility. Unfortunately, the industrial and related development that the local officials succeed in attracting often creates toxic waste and air pollution, contaminating local rivers, atmosphere and contiguous agricultural and residential land. It is those same local governments, including their local courts, which bear much responsibility for protecting the local environment. Local governments in which polluting industries chose to locate themselves, sometimes defend their action by arguing that it is part of a policy of ‘mountain and seas collaboration’ (shan-hai xiezuo) in which the technological advances and growing financial strengths of coastal regions are drawn on in order to assist poorer, inland mountainous districts to eliminate poverty. The environmental effect of such policies can be devastating. An especially prominent example of such problems emerged in Bingnan County, a rural area in Fujian Province, during the 1990s. This case concerned the destruction of the ecology and economy of one small community – Xiping Village – within the County, by pollution from a large chemical plant producing potassium chlorate, a substance used in the manufacture of matches, fireworks and other explosives, paper, bleach and disinfectants. The promotion of the factory by the County government, and the slow response of both local environmental protection agencies and the courts to the harmful effects of the pollution were serious complications that encouraged one of China’s leading newspapers to publish a prominent account of the

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case in the late summer of 2004, exposing the multiple issues that it raised.11 According to the exposé, the chlorate plant – in which the local government is now a partner – is so unwelcomed by the community into which moved that it is characterised by local villagers being nothing less than a ‘ferocious devil’ (zhengning de mogui). Appalled by the failure of the local environmental protection authorities to respond to their many official complaints, the villagers overcame their reluctance to bring suit, and took their case to the nearest intermediate people’s court.12 In a collective action or joint suit against the plant the villagers sought, inter alia, an order for the plant to halt its polluting activities and for an award of compensation. The court considered that it would need an independent appraisal of the pollution situation in and around the village before it could reach any conclusions. The plaintiffs were obliged to pay 100,000 yuan (about $12,400) to the court in fees for the report. Despite what was for the local villagers a huge sum of money, the report was not made available to the plaintiffs, and when their local leader attempted in 2003 to participate in village government elections, he was barred by the authorities without good cause. At the time of writing, further court proceedings are apparently still pending, although some hope is now offered the villagers by the intervention of a Beijing-based NGO – the Centre for Legal Assistance for Pollution Victims – whose lawyers are now assisting the villagers to get the judiciary to take their case more seriously. Settlement negotiations have apparently stalled, floundering on the problem of finance. The County Government is unwilling or unable to pay either for the removal of the local population or the relocation of the plant.

IV. SEEKING ENVIRONMENTAL JUSTICE Broadly speaking, Chinese law and jurisprudence identify three types of liability arising out of environmental problems in China: administrative, civil, and criminal. Three kinds of court proceedings – administrative, civil and criminal – are available in order to enforce liability. But this is a somewhat formal picture. For, despite the

11

See, in particular, H.E. Haining, ‘Yige xiaoshan cun de huanbao jianxin lu’, [The difficult road to environmental protection in a small mountain village], Nanfang Zhoumu [Southern Weekend], 16 September 2004, p. 13.

12

In the people’s court system of the PRC, there are four main levels of court and two levels of trial – one first instance trial and one appeal. The intermediate courts, which ordinarily have jurisdiction over cities and prefectures within provinces, enjoy original jurisdiction over fairly important cases and appellate over cases held in the basic level courts. Appeals from decisions made by an intermediate court are heard by the provincial-level higher people’s court. The decision to allow the Xiping Villagers to bring their case at the intermediate level is therefore an indication of the seriousness of the problems in the eyes of the provincial judiciary. 215

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process of legal reform in the post-Mao era, and the constitutional embrace in 1999 of the principle of the ‘governance in accordance with the rule of law’,13 important extra-judicial sanctioning and dispute-resolution processes continue to be used to deal with issues that are considered to be best handled by means of the formal judicial process. In order to characterise effectively the manner in which disputes are handled and deviance is dealt with in environmental ‘trouble situations’, another approach is needed. A focus on the actual processes by means of which decisions are ordinarily made is probably more helpful, as this offers a somewhat clearer picture of the workings of the system of environmental justice that has evolved in post-Mao China. The account begins with the most informal of processes – avoidance and force, and concludes with the most formal – criminal procedure and the application of the criminal law. (a) Avoidance and force The Xiping case noted above suggests that the formal structures of environmental protection can be very ineffective at the local level, especially in parts of the countryside where ‘the mountains are high and the Emperor is far away’ (shan gao huangdi yuan). The case, however, is also reflective of an attitude to rights assertion and dispute resolution in which court proceedings are often commenced only as a last resort. Important factors underpinning this outlook include the long-standing cultural preference for the Confucian virtue of rang or ‘yielding’ in trouble situations, bias in the manner in which the local courts operate, Maoist principles – in particular Mao’s theory of contradictions14 – and an authoritarian system of governance in which a ‘harmony ideology’15 has been actively promoted. These factors have all encouraged many who have suffered environmental injustice to ‘lump’ or endure their grievances, and prevented the transformation of many environmental harms into disputes. As was very much the case in the Xiping dispute, court proceedings tend to be regarded as a final option. For many Chinese people, especially those who live

13

At the same time, however, there was no attempt to amend or rescind the wording in the Preamble to the Constitution which stipulates that the Chinese Communist Party enjoys a leading position in China’s socialist system.

14

Mao Zedong [Mao Tse-tung] (1957) ‘On the Correct Handling of Contradictions Among the People’ in vol. 5 of The Collected Works of Mao Zedong (Beijing, Foreign Languages Press, 1977) and ‘On the Correct Handling of Contradictions Among the People (Speaking Notes)’, in Roderick MacFarquhar, Timothy Cheek and Carol Lee Hamrin, The Secret Speeches of Chairman Mao, (Cambridge, Mass., Harvard University Press, 1989). Many environmental disputes fall within Mao’s category of ‘non-antagonistic contradictions’ and therefore best handled by the ‘gentle processes’ of mediation and negotiation.

15

On ‘harmony ideology as a general construct’ see Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village, (Stanford, Stanford University Press, 1990).

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in the countryside and who have only low levels of educational attainment, environmental harms are either not perceived, or at least not perceived as constituting a problem in need of a solution, or seen simply as something to be tolerated without compliant. Not everybody is so passive. A feature of the slowly emerging civil society in China has been the growing reliance on rural protests in order to secure social justice from, in particular, local officials who have pursued personal or local governmental interests without proper regard to the relevant policies and laws emanating from Beijing, including those relating to environmental protection. Initially, this approach relied on appeals to a variety of third parties – including, with some notable successes, the Local People’s Congresses and the Chinese People’s Consultative Conference16 – in order to put pressure on local officials.17 By means of this strategy, local activists aimed to change the deviant conduct of local officials so that wrongs were corrected through mobilising intervention by senior officials. This approach, however, has become more confrontational as many types of rural problems, including some that are environmentally related, have worsened, so that direct action and the threat of force are now much more significant.18 In the face of this unrest, the leaders of which are often held in considerable respect by villagers and regarded as the virtuous defenders of the local community, the Chinese state has acted in a number of ways. First, as noted above, SEPA has resumed a more active role, particularly in regard to the rigorous enforcement of environmental laws such as the EIA code. SEPA official themselves explicitly acknowledge that ‘environmental problems are influencing social stability’ (huanjing wenti yingxiang shehui wending).19 Secondly, as noted below, a long-established channel for local discontent – the Letters and Visits System – has been refurbished. Thirdly, the Chinese state – still dedicated to defending the authority of the people’s democratic dictatorship (Criminal Law 1997, Article 2) – has introduced more rigorous policing in order to contain social protest better. In particular, new elite riot police squads with armoured

16

That is, the organisational forum by means of which the CCP exercises leadership over conducts its relations with China’s eight ‘democratic parties’ and other important groups that contribute to the ‘United Front’ by means of which a broad range of political and other views are meant to be heard and considered, and solidarity maintained.

17

Kevin J. O’Brien, ‘Statement of Kevin J. O’Brien …’ in Congressional-Executive Commission on China, Access to Justice in China: Roundtable before the Congressional-Executive Commission on China, 12 July 2004, (Washington, US Government Printing Office, 2004) at p. 2.

18

Ibid., at pp. 2–3.

19

Wu Yuping, Zhongguo Xunhuan Jingji Lilun yu Shijian [Theory and Practice of China’s Recycling Economy], Talk given at SEPA’s Research Centre for Environment and Economic Policy, 8 April 2005. 217

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cars and helicopters at their disposal have been set up in order to quell unrest.20 A number of news reports indicate that such equipment will be needed sooner rather than later. Although such reports of social disorder are based primarily on journalistic accounts, and should be treated with due caution, evidence of the seriousness of rural unrest generated by environmental and related problems is mounting.21 (b) Negotiation and mediation In addition, many environmental cases are handled by various forms of negotiation and mediation. Thus, for relatively routine environmental problems and quarrels – excessive noise, water supply and waste water disposal, minor building work, and so on – the system of people’s mediation (renmin tiaojie) is often an important forum for dealing with matters. This system of neighbourhood and workplace dispute resolution is institutionalised in the form of the people’s mediation committees in both urban and rural areas,22 and is regarded by the Chinese leadership as the ‘first line of defence’ in the civil justice system. It offers a well-organised and culturally approved system of extra-judicial dispute processing that does in fact handle a substantial number of environmental disputes. However, the official categories used to report the caseloads of these mechanisms and the polycentric23 nature of many of the disputes that the mediation committees handle, both mean that ‘environmental disputes’ are often categorised under other heads. For example, disputes over fengshui or ‘geomantic disposition’ – which often have a strong environment welfare dimension – are not officially characterised in terms of their true nature because geomantic beliefs are seen in pejorative terms as a manifestation of ‘feudal superstition’ (fengjian mixin)24 and therefore put under headings such as ‘neighbour disputes’. As a result, the important role of mediation committees in dealing with environmental cases can all too easily be underestimated. At the same time, however, reliance on informal processes of decision-making by environmental protection agencies is also explicitly encouraged. Thus, one of

20

See, for example, Jane MaCartney, ‘China Establishes Crack Unit to Crush Poverty Protests’, The Times, 20 August 2005, p. 43, cols 1–5.

21

See. For example, Asia News, ‘Villages Threaten More Revolts against Pollution’, 26 August 2005, at , and MC Group, ‘Chemical Plant Pollution Protests in China’, 19 April 2005, at .

22

‘The Revival of Mediation in the People’s Republic of China: (1) Extra-Judicial Mediation’, in W.E. Butler (ed.) Yearbook on Socialist Legal Systems 1987, (New York, Dobbs Ferry, Transnational Books, 1988).

23

Lon Fuller, ‘Mediation – Its Forms and Functions’, Southern California Law Review, Vol. 44 (1971), pp. 305–339.

24

See above, n. 7.

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the main dispute-resolution terms in the Environmental Protection Law 1989 provides for negotiation (xieshang), or by decision of the people’s government at a higher level through mediation (xietiao) (Article 15). Broadly speaking, environmental injustices that local people chose not to tolerate, or which the local mediation committee is unable to deal with, tend to be handled by means of the relatively informal, extra-judicial processes of negotiation and mediation in an administrative context. Despite the problems that this informality generates, there is a widespread acceptance of the merits of this approach. In the words of one local informant: In general, local people much prefer to settle environmental disputes through administrative mechanisms rather than by litigation and the courts. Courts are unpredictable, and therefore dangerous. Moreover, many disputes involve administrative agencies and they are therefore better settled by administrative means. Thirdly, litigation draws attention to oneself (or one’s local community) and this is also problematic – that is, it puts the dispute in the public arena is therefore divisive … and we have a reluctance to do this. Fourthly, there is a felt need to consider all local interests – thus, if a local factory is emitting pollutants, the area’s residents do not necessarily want the factory closed as it may lead to unemployment for some of them.25 The vast majority of recorded breaches of environmental legal and regulatory norms are dealt with by administrative penalties. This preponderant concern with correcting environmentally deviant conduct by the application of administrative authority gives the staff in the EPBs and the EPOs considerable discretion and strength in negotiating and using other informal approaches to deal with environmental problems.26 This administrative context of informal decision-making is also infused with the cultural values of guanxi or ‘personal connections’ and ‘face’ (mianzi, lian). Reciprocity and the personal reputation of the individual are core standards of everyday life, and they encourage the development of close working relationships between EPB and EPO staff and local enterprise personnel, enabling the environmental regulations to secure

25

The information provided in this paragraph is taken from interview data gathered during July and August 1996 in Xiamen, Fujian Province. I should like to thank the ESRC (specifically, the Economic and Social Research council Global Environmental Change Initiative) for financial support, and the School of Law at Xiamen University, in particular, Professor Zeng Huaqun, for kind hospitality during the period of fieldwork.

26

See also Benjamin van Rooij, ‘Implementing Chinese Environmental Law through Enforcement’, in Chen Jianfu, Li Yuwen and Jan Michiel Otto (eds), Implementation of Law in the People’s Republic of China, (The Hague, London and New York, Kluwer Law International, 2002). 219

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information that they otherwise might not be able to obtain, and giving the regulator moral authority to insist on compliance.27 As a result of this approach to resolving breaches of environmental norms, informal processes are relied on heavily in order to secure compliance and to remedy difficult situations. Armed with evidence that there has been a violation of environmental rules, the environmental protection officers use bilateral negotiation to correct matters, with the dialogue conducted in the immediate ‘shadow’ of the administrative penalty system. The environmental protection officers can also use their position to shame polluters, or their links with other government departments to put pressure on a polluter unwilling to take corrective action. It is also possible to use the system of workplace discipline to punish those polluters who are state employees. There is, however, an important procedural justice issue here – that of the limited possibilities of securing redress against the unfair application of these informal pressures. In addition, there are significant deficiencies that should be borne in mind when considering the advantages that many ordinary people and environmental protection officers feel the current system brings. In particular, it is often difficult to draw a clear line between the creation of guanxi, especially through such methods as lavish gifts, and outright bribery and corruption. Moreover, the reliance on personal connections between repeat players – both officials and polluters – encourages a degree of tolerance of pollution in the interests of preserving a comfortable arrangement. Administrative mediation (xingzheng tiaojie) of an environmental dispute between private parties is carried out by an environmental protection officer, as part of her or his professional duties, following a joint application for mediation by both parties – the polluter and the victim.28 The principal goals of the mediator in practice are to assess the damage and losses, to get the pollution stopped, and to secure the parties’ agreement on the amount of the compensation. This sort of intervention is provided for in the 1989 Environmental Protection Law at Article 41 and is also encouraged in specific codes, such as the 2000 Law on the Prevention and Control of Atmospheric Pollution (Article 62). The environmental mediator’s approach is usually robust and evaluative rather than passive and facilitative, and decision sometimes imposed on rather than constructed by the parties themselves. The hand of the environmental mediator is considerably strengthened by the fact that she or he may at the same time, or subsequently, be the official who imposes the administrative penalties (discussed below) in the case. The mediation agreement is valid if is acceptable to both parties. It is also

27

See, for example, Ma Xiaoying and Leonard Ortolano, Environmental Regulation in China: Institutions, Enforcement and Compliance, (Lanham, Boulder, New York, Oxford, Rowman & Littlefield Publishers, 2000) at 88–89.

28

Interviews with mediation committees in Xiamen, Fujian Province, in 1996.

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thought that an agreement reached in this manner through environmental mediation is more likely to be honoured by the parties than if imposed by the court. Most parties do, it seems, agree to accept the ‘decision’ constructed by the mediator or with the help of the mediator, and to implement the agreed outcome. However, if either of the parties does not accept the mediated agreement, she or he retains the right to bring suit in a people’s court without prejudice. It also seems that if one party refuses to accept or to implement in full an agreed decision and the case has to go to court. The latter, in awarding any damages, will take the refusal to accept the mediated outcome into account and impose tougher terms against the recalcitrant party. We have already noted that there are difficulties of bribery and pollution-tolerance with this emphasis on informal decision-making within an administrative setting. In addition, the use of such methods leaves room for intervention by government and the CCP when members consider that their interests are involved.29 A related problem with the stress on informality is that of power imbalances, especially in cases that are mediated. For while the informal processes of dispute resolution have many advantages – such as cheapness, speed, better enforcement prospects, and the maintenance of good relationships between the parties – the reality is that in the vast majority of cases one party is a private individual, a politically unimportant community or a small enterprise and the other is an environmental protection agency or (say) a large factory, perhaps wholly or partly owned by the state (including local government, as in the Xiping case). Even if an enterprise is in private hands, the personal ‘connections’ or guanxi between its leaders and the local government are often likely to be very close, and may therefore impact significantly on the outcome. In the processes of negotiation and mediation between the parties, in which efforts are made to (say) deal with a problem of pollution, most of the bargaining cards lie in the hands of the state and state-linked larger party. Through its privileged position, the more powerful party might well be able to ‘arrange’ for disciplinary administrative or even criminal sanctions to be imposed on the other party, secure the withdrawal of an operating licence, ensure withdrawal of electricity, more easily secure the co-operation of the media to ‘investigate’ the conduct of the other party and so on. These are forms of pressure that are difficult to counteract. However, the problem of power imbalances is sometimes simply acknowledged by the weaker party to be an unavoidable fact of life: First, the weaker party yields (rang) willingly (yuanyi). Secondly, the weaker party may believe that by yielding it may create a better relationship

29

Chinese informants argue that such intervention might, in substantive terms, bring benefits as well as problems. For example, pressure from the local Party Secretary might be decisive in persuading a local enterprise to clean up its production so that it operates in a manner that is consistent with state policies on the environment. 221

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with the stronger party, and the latter may subsequently be prepared to do it favours. Other stress that the acceptance of power differentials is also likely to provide a more durable outcome. Increasingly, use is also being made to complain about environmental injustices by an administrative route known in Chinese as the petitions or ‘Letters and Visits’ (xinfang) system. According to figures provided by SEPA, the number complaint ‘letters submitted by the masses’ (qunzhong lai xin) has increased from just over 50,000 in 1995, to nearly 250,000 in 2000, and over the same period the number of complaint visits ‘made by the masses’ rose from just under 100,000 to nearly 150,000.30 Under this method of asserting a grievance, in which the preferred forms of decision-making are negotiation and mediation, any party adversely affected by an administrative determination may submit a complaint orally or in writing to the relevant Letters and Visits Office of the organisation that produced the decision – most government departments are required to set up, at county level and above, xinfang offices within the organisation to receive and respond to petitions. In addition, the people’s congresses, the courts, the procuracies and also party committees at various levels all have their own xinfang offices. Since there is no clear-cut division of labour and jurisdiction in the complaints system – probably because the aim of xinfang is to connect people to the government, and accordingly there should be no boundaries whatsoever to stop the government or their agencies from connecting to ‘their people’ – an injured, aggrieved party is often able to knock on the doors of these more legally specialised offices. Usually what happens in environmental cases is that a party who perceives that she or he has suffered an injurious experience reports the problem to a specific environmental protection organ but then fails to get the problem rectified. That party will then petition for the Letters and Visits Office, either within the EPOB or in one of the law-enforcement agencies, to secure a review of their problem. For many, recourse to the petitions system is often a last ditch attempt to try to force the relevant administrative body to deal with the issue in a manner that the complainant feels to be more reasonable. It is indicative of the frustration that many parties feel with the ordinary administrative processes of dispute resolution in environmental and related – often land compensation – cases that the authorities in the PRC have felt compelled to revise and strengthen the xinfang system. Under the 2005 revised Letters and Visits Regulations, promulgated and in force 1 May 2005, the local government is obliged to establish such offices in order to hear complaints and to handle the

30

Wu Yuping, Zhongguo Xunhuan Jingji Lilun yu Shijian [Theory and Practice of China’s Recycling Economy], Talk given at SEPA’s Research Centre for Environment and Economic Policy, 8 April 2005.

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matters complained of by the complaint makers by way of consultation (zixun), education (jiaoyu), negotiation (xieshang), mediation (tiaojie), hearing (tingzheng), and so on (Article 13). Although the petition system is known to be ineffective as a mechanism for securing redress, it is increasingly relied on by the poor and the powerless people to try to voice their opinions in manner that embarrasses corrupt local officials. The Chinese leadership therefore has little choice but to provide for its continuation. (c) Umpiring – administrative penalties The Environmental Protection Law 1989 is characterised in Chinese jurisprudence as a form of administrative law, in part because the principal sanctions on which the Law relies in order to deal with environmental problems is the administrative penalty (xingzheng chufa). In particular, the Law requires polluters to carry out a variety of different types of conduct, including corrective actions in response to administrative directives, and provides a range of administrative penalties that are to be applied. Environmental protection agencies possess a wide range of administrative sanctions by means of which they can deal with a problem more formally if informal processes fail to resolve the issue.31 The overwhelming predominance of administrative sanctions as a form of correction can be readily ascertained from the Table below, drawn from official SEPA sources:32

Type of Case

1997

1998

1999

2000

2001

2002

2003

Administrative Penalty

29,524

39,754

53,101

55,213

71,089

Administrative Review

203

290

263

309

290

285

230

*

Administrative Litigation

64

621

427

580

696

993

579

*

Environmental Crimes

0

2

1

5

9

4

1

6

100,103 92,818

2004 *

* Figures for first three categories not yet available for the year 2004.

31

See Benjamin van Rooij ‘Implementing Chinese Environmental Law through Enforcement’, in Chen Jianfu, Li Yuwen and Jan Michiel Otto (eds) Implementation of Law in the People’s Republic of China, (The Hague, London and New York, Kluwer Law International, 2002).

32

Wu Yuping, Zhongguo Xunhuan Jingji Lilun yu Shijian [Theory and Practice of China’s Recycling Economy], Talk given at SEPA’s Research Centre for Environment and Economic Policy, 8 April 2005. 223

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Article 35 of the Environmental Protection Law allows environmental protection agencies to issue a warning or to impose a fine on a polluter who refuses or misleads onsite inspection, refuses to submit a report (or submits a dishonest report) required by an environmental protection agency, fails to pay an excess discharge fee, imports technology or a facility that does not meet the standards set for environmental protection, or who transfers a production unit that causes pollution to another group that is unable to prevent and control pollution. In addition, administrative penalties – typically a fine and a warning – are applicable in the case of a construction project that fails to meet pollution standards (Article 36), where pollution results from dismantling or leaving idle installations (Article 37), if conduct results in an environmental pollution accident (Article 38) and there is a failure to meet a deadline set for eliminating or controlling pollution (Article 39). In theory, at least, appeal against these administrative sanctions may be made to the courts, although the preference built into the system is for ‘administrative reconsideration’ (xingzheng fuyi), in which an in-house re-evaluation of the case is carried out by the department that is immediately superior to the original decision-maker (Article 40). Appeal to the courts against the original decision or the reconsideration must be made within 15 days. In addition, the Regulations on Administrative Penalties for Public Security 2005 empower environmental regulatory bodies, as well as the Public Security Bureau (the police), to deal with somewhat minor infractions of environmental regulatory norms by handing out fines and other types administrative sanction. Some of the specific environmental codes may also specify the application of such sanction – for example, the 2004 Law on the Protection of Wildlife (Article 33). The general authority to impose administrative penalties is further extended by the 1996 Law on Administrative Penalties, the State Council’s Measures for Administrative Penalties for Environmental Protection (originally promulgated and in force 1999, amended 2003), and SEPA’s 2003 Circular on the imposition of administrative penalties in environmental cases in urban areas.33 This approach is seen within China as an expression of the principle of ‘administrative liability for polluters’ and a further manifestation of the ‘polluter pays’ principle. In general, the 2003 Measures empower the EPBs and EPOs to insist that a polluter remedy the problem immediately or within a short period of time, and to apply administrative penalties (Article 3). The basic forms of penalty that may be imposed are characterised by the Administrative Penalty Law 1996 as: (i) disciplinary warning; (ii) fine; (iii) confiscation of illegal gains or confiscation of unlawful property or things of value; (iv) ordering suspension

33

That is, the Circular of SEPA on Relevant Issues Concerning the Work of the Relatively Centralising Part of Power in Administrative Penalties on Environmental Protection, 2003.

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8. Towards a Greener China? Accessing Environmental Justice in the People’s Republic of China

of production or business; (v) temporary suspension or rescission of a permit or license; (vi) administrative detention; and – as a catch all provision – ‘(vii) other penalties as prescribed by laws and administrative rules and regulations’ (Article 8). Appeals against the imposition of penalty may be made by the processes of administrative reconsideration or administrative litigation (see below), but such an appeal will not stop the interim enforcement of the administrative penalty (Article 41, Measures for Administrative Penalties for Environmental Protection). The penalty system finds robust expression in the Law on the Prevention and Control of Pollution by Solid Waste 2004 even though, as noted above, the revised Law gives greater attention than did its predecessor to civil liability. As we have also noted, Article 73 of the Law provides that anyone who fails to seal off sites in which solid waste from mining is stored may be both fined and ordered to correct the problem within a specified time limit – the fine may be up to 200,000 yuan (about $24,800). The same sanctions will apply to anyone who fails to take adequate measures to deal with hazardous waste properly (Article 75). If severe damage is caused by polluting conduct, a fine of up to 1,000,000 yuan (about $124,000) may be imposed, and the offending business closed down. In general, a very wide range of polluting conduct is subject to administrative penalties in the Law, with the possibility of criminal sanctions being imposed in more serious cases of pollution and similarly deviant conduct. Despite these sometimes draconian administrative penalties, it is important to recall the point made at the beginning of this section namely, that in this system of administrative sanctioning there is in practice a great of negotiation and compromise outcomes. What often happens is that the local EPB investigates a compliant and attempts to secure a compromise with the offending party, or to negotiate between two or more parties with a view to securing concessions that will produce an acceptable result. It is only if this approach fails that the EPB may decide to impose a decision, so that in effect this is a system of mixed decision-making processes.34 The EPB may order a cessation of polluting activities as well as, perhaps, an order for compensation to an injured party or parties. Such a decision may be appealed against to a higher administrative body through the system of administrative review described below, or a new action brought in the civil chamber of a people’s court. But in addition to this system, there are processes that are relied on by environmental protection organs such as the local departments of urban planning and environmental monitoring stations – these often employ a more explicitly mediation-based system of dispute resolution. Nevertheless, beyond the construction of solutions through negotiation and mediation, the system of environmental justice in China is primarily based on

34

See, for example, Roberts, S. and Palmer, M., ADR and the Primary Forms of DecisionMaking, Second Edition, (Cambridge and New York, Cambridge University Press, 2005), at 277–357. 225

Access to Environmental Justice: A Comparative Study

administrative sanctions. As we have seen, the Constitution places a great deal of responsibility for environmental protection on the state, and the easiest and most effective way of meeting this responsibility is by means of administrative measures. In an authoritarian political system in which the state still retains an extraordinary degree of power, this is the enforcement system over which the state has most control. The sanctions are reasonably easy to apply as they are extra-judicial and unlikely to involve the courts, law-enforcement agencies such as the procuracy (the prosecution arm of the Chinese state), or legal professionals. They are also therefore relatively quick and cheap to impose. But even the system of administrative penalties is in effect the second line of defence, to be used when the even more informal processes of negotiation, compromise and informal pressure fails to secure compliance from a polluter. And one reason for this is that the administrative penalty system provides for the possibility of appeals against the imposition of punishments. (d) Umpiring – going to court In theory, at least, as stated above, appeal against these administrative sanctions may be made to the courts within 15 days. This system has been recently confirmed in the Wildlife Protection Law (originally promulgated 1988, revised 2004, at Article 39). One of the principal reasons why administrative bodies encourage aggrieved parties to pursue their complaint against a decision through the administrative reconsideration system is that the latter allows the substance of the dispute to be mediated – whereas judicial review, at least in formal terms – does not. This means that the defending party has some room to manoeuvre and to participate in a face-saving compromise outcome. Nevertheless, Chinese law also provides for the possibility of securing judicial review of decisions imposing administrative penalties that have a significant effect on the environment under the 1989 Administrative Litigation Law (ALL).35 This Law permits an aggrieved party – either a natural or a legal person – to bring suit in the people’s courts in order to object to an administrative decision, primarily on the ground that the decision is unlawful. The specific grounds on which review may be sought under the ALL are that the administrative decision which is disputed was: either (i) made on the basis of inadequate evidence, or (ii) involved an erroneous application of the law or regulations, or was (iii) procedurally incorrect, (iv) ultra vires, or (v) an abuse of powers of office (longyong zhiquan), (Article 54). This route is not only often used to seek an amendment or cancellation of administrative penalties, but it may also be used to compel performance of an administrative duty or to secure abrogation of an unlawful

35

Together with the detailed explanation of that Law contained in the 2000 Interpretation of the Supreme People’s Court on the Administrative Litigation Law.

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order. However, it seems that Article 1(3) of the 2000 Interpretation of the Supreme People’s Court on the Administrative Litigation Law provides that mediation – including presumably environmental protection officer mediation – does not fall within the category of ‘administrative conduct’, and therefore may not be challenged under the ALL. Although China’s accession to the WTO in 2001 called for the creation of a more effective system of administrative litigation, it must be said that for a variety of reasons there are still many difficulties with the system, especially where an aggrieved party wishes to mount a challenge. We have already pointed out the lack of independence of the courts. In addition, even the more competent Chinese lawyers are reluctant to represent a party who brings suit against the government, for fear of the adverse impact this might have on their longer-term practice. Moreover, many laws and administrative norms in China have been drafted in very wide-ranging terms, leaving administrators with a very ample range of discretion. Further, the real decision-maker in many major administrative acts is the CCP, and thus is not a state organ against which an action may be brought under the provisions of the Law. The latter, at Article 12, also stipulates that certain categories of administrative conduct may not be reviewed – these include acts of state, especially in areas such as foreign affairs and national defence, administrative norms and decisions that have a general binding force, decisions on personnel matters, and administrative acts for which the law has made express reservation. Time limitations are also quite tight: Article 40 stipulates that a party must bring administrative suit within 15 days of the administrative decision or the review verdict made by a higher administrative body. Thus, the jurisdiction of the courts is very narrow, and the courts’ ability to afford effective remedies through the system of administrative litigation is restricted. It is not possible for an aggrieved party to get the courts to review a general decision by the government to authorise the construction of a major infrastructure project, such as a large dam or a nuclear plant that is likely to have an adverse effect on the environment. The decision about which a complaint is brought must be a ‘specific administrative decision’ (jutixing zhengxingwei). Nor may an aggrieved party challenge the exercise of discretion by an administrative organ in a decision concerning the environment. Further, decisions such as the imposition of administrative penalties on the manager of an enterprise for the pollution created by that enterprise also fall outside the jurisdiction of the administrative chambers of the court. The specific types of environmental decisions that may be subject to challenge through the avenue of judicial review are, under Article 11, the levying of pollution fines or the making of an order to cease production, refusal to issue emission licences, imposition of penalties for failure to install recycling or pollution prevention equipment, or the setting of excessive standards by local environmental protection officers. Although cases

227

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brought under the ALL are increasing, the rates of increase are slow compared to those for civil actions. In China, as elsewhere in the world, environmental problems often involve a multiplicity of parties, some of whom may not be known when proceedings are initiated, and this may be a acutely complicating factor in attempts to respond effectively to the substantive problem. As a result, both the ALL and the Civil Procedure Law 1991 (CPL) permit several forms of collective action. The inspiration for the procedural novelty of collective litigation is not clear, but it seems that the experience of ‘class actions’ in the United States, and the sense of community that is stressed in Chinese society are important factors. It seems that the majority of such actions are, in fact, brought under the CPL, and that the parties use this litigation vehicle primarily in search of compensation. Nevertheless, administrative suits of this nature are sometimes brought. Article 28 of the ALL specifies that an administrative case may be brought as a ‘joint suit’ (gongtong susong) where two or more persons share the same cause of action, and the court takes the view that their cases can be handled together. In addition, other parties who find they have the same cause of action may apply to join the proceedings with the permission of the court. More detailed rules for such actions are provided in the CPL and it seems that these rules are applied also in administrative cases. Under Article 53 where the parties to a joint suit have common rights and obligations in respect to a matter at issue in the case, the actions and decisions of one party may apply to the other parties. The CPL’s main characteristic in its treatment of joint actions is the distinction it draws between two types of such action. Thus Article 54 deals with joint litigation in which the number of persons who are parties to the action is clearly identified at the commencement of proceedings. On the other hand, where the number of parties is not known when the case is filed, then Article 55 applies. In the latter case the court will issue a notice in which the details of the litigation are made known to the general public and encouraging those with a right to participate in the litigation to register their interest within a specified period of time. Articles 54 and 55 also allow the parties to elect, if there is a substantial number of such parties joined in the action, one or more representatives (daibiaoren), and for the decisions in the litigation process of such representatives to be binding on the parties whom they represent, except in abandoning or modifying claims or in pursuing a compromise in a settlement – in which case, the consent of the represented parties is needed if the modified terms or concessions are to apply to them. Under the terms of Article 55, persons who do not register with the court will nevertheless be bound by the judgment should they subsequently decide to commence litigation within the period of limitation. The collective action is an important development in the litigation culture of the PRC, and has been

228

8. Towards a Greener China? Accessing Environmental Justice in the People’s Republic of China

employed to good effect in a number of different types of environmental case,36 but it is also politically sensitive and hedged in with restrictions that make it less significant than it might otherwise appear. For example, in a number of courts a working distinction is drawn between biyao de gongtong susong or ‘essential collective actions’ and yiban de gongtong susong or ‘ordinary collective actions’, and in the latter type the collective action is in effect disbanded by the court and broken up into a large number of individual suits. Nevertheless, it would seem that the collective suit is again an important method of response to conduct by local government that gives little attention to sustainable development, and which has prioritised its immediate needs rather than the environmental welfare of rural people. Most environmental disputes that are brought before the courts by private parties take the form of ordinary civil proceedings. As we have already noted, persisting values of informalism, the ready availability of informal modes of dispute resolution – including both environmental protection officer mediation and the people’s mediation committee – the emphasis in the system on administrative penalties, and problems with bringing actions in local courts do not encourage victims who have experienced environmental harm as the result of illegal conduct to take their environmental grievances to court. In addition, in China as in many other parts of the world direct negotiations between lawyers as partisan representatives of the parties are encouraged in order to facilitate settlement, and are frequently successful in that respect. Thus, in civil cases involving environmental issues the typical outcome is a negotiated or mediated agreement between the parties. Nevertheless, those who suffer from persistent pollution and related problems do sometimes bring suit, and when they do so it is through the provisions of the CPL. As we have noted, the possibilities of bringing a civil suit are enhanced by China’s emerging system of legal aid. Plaintiffs characteristically ask the court for an injunction to cease polluting conduct, an order for cleaning-up noxious waste, or compensation for harm caused. The most common form of civil claim in environmental cases is for compensation for harm caused – in other circumstances, where the aim is (say) to secure cessation of pollution and cleaning up contaminating waste, administrative measures are cheaper, quicker and more effective. Actions for compensation are handled by one of the civil chambers of the people’s courts.37 Civil liability is a common form of remedy in cases

36

See, for example, Note, ‘Class Action Litigation in China’, 11 Harvard Law Review (1998) 1523–1541. Fazhi Ribao, ‘Wenzhou 282 ming nongmin zhuanggao Zhejiang Fagaiwei’ [In Wenzhou 282 villagers bring suit against the Zhejiang Provincial Development and Reform Commission], Fazhi Ribao, 13 June 2005, p. 9.

37

Chinese courts now often comprise not only a criminal and administrative chambers (ting) but also two civil chambers, one devoted to ordinary civil cases (many of which 229

Access to Environmental Justice: A Comparative Study

of pollution and, as noted earlier, the ‘polluter pays’ principle is embodied in Articles 28 and 41 of the Environmental Protection Law 1989. Thus Article 28 stipulates the payment of a fee for excessive discharge of pollutants, the income being used to prevent and control pollution only, and Article 41 imposes on a polluter the duty to eliminate the pollution and to compensate the victim for direct losses (provided that the victim brings suit within three years of learning of the problem (Article 43); the courts may impose damages for direct loss, sometimes interpreting the situation so broadly that it comes to include what might be thought of as indirect loss. As we noted above, in Part III, in the case of more serious kinds of environmental tort actions it may not be necessary for the plaintiff to prove fault on the part of the defendant. But the plaintiff will still need to prove the damage that she or he claims to have suffered, and to demonstrate a causal connection between the conduct and the damage. However, a problem here is that it is necessary for the plaintiff to show that the defendant has breached national standards for the discharge of pollutants, and it is sometimes difficult – as was apparently the case in the Xiping case – to gather the evidence necessary to demonstrate conclusively that there has been a breach. In order to aid plaintiffs, recent legislation encourages EPBs and EPOs to assist in the collection of evidence, as the analysis above of the 2004 Solid Waste Law showed. And, as we also noted above, in compensation claims the burden of proof has been reversed so that the presumption is that the harm suffered by the plaintiff was the result of the defendants actions – it is for the polluter to demonstrate to the court that this was not in fact the case. In environmental cases, as in other types of civil case, the court will encourage the parties to mediate if the parties are willing to accept judicial mediation. This is not simply a reflection of the provisions in Article 9 of the CPL encouraging the use of judicial mediation – current reforms in a number of courts are aimed at encouraging the judges to help the parties to settle their differences over civil compensation before trial or through mediation if there is a trial, and thereby to increase the settlement and mediation rates. Informants also report that difficulty in identifying the parameters of liability in environmental tort cases is a factor encouraging the courts to rely on mediation and compromise in order to deal with compensation cases. This problem, in turn, reflects the very general and sometimes ambiguous wording found in China’s environmental codes. One very important principle introduced by the Environmental Protection Law 1989 was the right of individuals and collective bodies to bring a complaint

are family or tort cases) and the other to more commercial cases (this chamber formerly being called the ‘economic chamber’ as it dealt with the category of ‘economic law’ cases under the system of a state planned economy). My understanding, based on discussions with Chinese judges, is that some courts allocate environmental cases to the first chamber, while others allocate such cases to the second chamber. 230

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about environmental issues: according to Article 6, ‘all units and individuals have the right to report on or file charges against units or individuals that cause pollution or damage to the environment’. Nevertheless, as we have seen, all too easily such a complaint gets sunk in local mire of negotiation, mediation and semi-formal administrative decision-making. In order to try to improve the prospects of pollution victims seeking environmental justice through the civil process, the procuracy has taken it upon itself to collaborate with victims and to assist in actions against the polluter with a view to getting the courts to impose civil remedies.38 For example, in an important case from Langzhong in Sichuan Province in southwest China, the procuracy acted on complaints by local villagers to bring an ‘environmental public interest suit’ (huanjing gongyi susong) against a privately owned factory producing bone-meal. After the factory ignored administrative punishment imposed on it by the local environmental protection office for noise, smoke and other pollution, the local procuracy proceeded to bring the ‘environmental public interest suit’ against it in order to protect the ‘social public interest’ (shehui gonggong liyi) and to safeguard the ‘health of the masses’ (qunzhong shenti jiankang). The court issued a civil judgment, ordering the defendant to cease production immediately, and to replace and improve its machinery within one month so that it met state standards. Failure to obey this order would result in a ban on further production. Costs were awarded against the defendant factory.39 (e) Umpiring – criminal justice The main function of the procuracy is, however, to bring criminal prosecutions. As noted above, the criminal process tends to be used only to deal with severe problems of environmental pollution. The prosecution process is carried out, in formal terms, in accordance with the provisions of the Criminal Procedure Law 1996 (replacing the Law originally promulgated in 1979). Serious doubts persist on the issue of whether the Chinese criminal justice system affords defendants a fair trial. The Communist Party and local governments are both able unduly to influence the outcomes of particular case, even though there is no explicit legal provision allowing them to do so. The Party is able to affect the prosecution process and trial outcomes through the mechanism of special committees within the criminal justice system. These bodies – the procuratorial committee (jiancha

38

A development anticipated by Benjamin van Rooij in his essay ‘Implementing Chinese Environmental Law through Enforcement’, in Chen Jianfu, Li Yuwen and Jan Michiel Otto (eds) Implementation of Law in the People’s Republic of China, (The Hague, London and New York, Kluwer Law International, 2002), at 159.

39

Hu Xiaoguang and Xiang Yong, ‘Sichuan, Lanzhong: Jianchayuan tiqi huanjing gongyi susong shengsu’ [The Procuracy wins its environmental public interest suit in Lanzhong, Sichuan], Jiancha Ribao, 19 December 2003. 231

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weiyuanhui) and the adjudication committee (shenpan weiyuanhui) – make their decisions in secret and in terms of the dossier on the case rather than evidence presented during the course of the proceedings conducted in court. This makes it very difficult for defence lawyers. But this is not the only problem that they face in the environment in which defence lawyers have to operate: their independence is limited by the close links between the All-China Lawyers Association and the Ministry of Justice, the system of licensing practice which puts lawyers in a weak position vis-à-vis the local branch of the Ministry of Justice, and restrictions on the activities of lawyers generated by intimidating legislative provisions – for example, Article 306 of the Criminal Law, which severely limits the ability defence counsel to challenge evidence against the defendant. Not surprisingly, there seems to be a general agreement amongst analysts of China’s criminal justice system that the system does not provide a ‘fair trial’ – more generally, in the words of one perceptive commentator: ‘the [PRC’s] criminal justice system should be understood as one dominated by the one-party state, composed of a law enforcement apparatus above the law and an obedient judiciary, and within a culture in which a fair trial remains a novelty’.40 In environmental, as in other kinds of criminal case, prosecutions are brought largely as a matter of policy decisions rather than through the independent exercise of professional judgment by the relevant law-enforcement officers. As noted above, in substantive terms, the principal source of law for environmental offences is the criminal code. This is extended by a range of provisions located in particular environmental protection laws. A number of serious forms of environmentally damaging conduct are proscribed by specific provisions in the Criminal Law 1997. There are some circumstances in which capital punishment may be imposed by the courts for environmental damage. These include, in particular, the killing of an endangered species (Article 151), and the very serious cases of contamination – such as water pollution and disposal of hazardous wastes – covered by Article 155 (as revised in 2001). However, the penalty for most of the environmentally related offences in the Criminal Law is a sentence of between three and ten years’ fixed term imprisonment, often coupled with a fine. Outside the Criminal Law, and its special section on crimes against environmental protection, provisions in a range of specific statutes allow criminal sanctions to be applied. Those in the Solid Waste Law 2004 have been noted above. In addition, the Forestry Law (originally 1984, revised in 1998) provides that criminal sanctions may be applied in cases of unlawful felling of trees (Article 39); issuing licenses that allow for excessive felling of trees or the unlawful export of timber (Article 41); trading in or forging tree felling or export

40

H.L. Fu ‘The Right to a Fair Trial in China: The New Criminal Procedure Law’, in Byrnes, A., (ed.), Hong Kong: Centre for Comparative and Public Law, (Hong Kong, Faculty of Law, University of Hong Kong, 1997), at p. 88.

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permits (Article 42); purchasing illegal timber (Article 43); and misuse of office for personal gain by forestry officials (Article 46). The Air Pollution Prevention Law (2000) stipulates at Article 61 that air pollution leading to heavy loss of property, or serious personal injury or death may be characterised as a criminal offence, and at Article 65 that serious abuse of office by personnel in charge of environmental protection may also be regarded as constituting an offence. The Wildlife Protection Law (as revised, 2004), makes it an offence to catch or kill wildlife under special state protection or in an area or season closed for hunting (Articles 31 and 32); to sell, purchase, speculate or smuggle in protected wildlife or products (Article 35); to forge or trade in hunting licences or import and export permits (Article 37); and for an official in a department of wildlife to abuse his or her office (Article 38). The punitive provisions on environmental crimes tend not, however, to be matched by the approach of the prosecuting authorities and the courts. The courts in particular still see pollution and other forms of ‘environmental deviance’ as something best dealt with the administrative mechanisms, and feel uncomfortable in allowing a successful criminal prosecution against polluters, as if such offenders are no better than murderers, robbers and other serious criminals. Many issues of environmental welfare continued to be regarded as ‘non-antagonistic contradictions’, and therefore not suitable for criminal sanctions. Judges also complain that it is both difficult and in some ways inappropriate to bring to trial work unit or enterprise leaders for the sins of the organisation that they represent. Another worry is that it is often difficult to prove conclusively that the damage complained of is so serious that criminal penalties are necessary. Official SEPA figures noted above reveal the very limited application of the criminal law to environmental law infringements.

V. CONCLUSIONS The Chinese state has in the period since the Cultural Revolution created a substantial corpus of legislation on environmental welfare, and become a member of a number of important international conventions on environmental protection. Given the PRC’s politically difficult and economically impecunious starting point for these efforts there is much to admire in the PRC’s efforts. A system has been created in which major policy and legal initiatives (both domestic and international) have been generated by SEPA and other central agencies with responsibility for environmental welfare, much responsibility for implementation has been delegated to local government, and a new kind of ‘green politics’ has been allowed to emerge amongst the masses and in the media. Nevertheless, the system that has been established contains serious flaws. One problem is the declining but still continuing influence of Mao’s theory of contradictions in which a sharp distinction between ‘non-antagonist’ and ‘antagonistic’ 233

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contradictions is drawn. This encourages, on the one hand, informal modes of dispute resolution for ordinary disputes, and a coercive but largely still symbolic criminal justice system for dealing with serious offences. This limitation is all the more unfortunate not only because the growth of environmental protection in the PRC was relatively early for a society in the developing world, but also because environmental welfare was at the forefront of China’s post-Cultural Revolution legal reforms. The 1979 Environmental Protection Law was one of the seven major codes of law introduced in the late 1970s in a flourish that signalled the Chinese leadership’s desire to pursue more orthodox policies of socialist legality. The system does not deal with the difficult issue of historical land contamination. Moreover, it is primarily administrative in nature, reflecting the highly bureaucratised nature of society in the People’s Republic – but decentralisation has weakened the ability of the central government to reign in local governments that chose to prioritise economic growth over environmental welfare. At the same time, a persistent general problem has been difficulty in enforcement of legal rules and decisions. This has been a particular difficulty with environmental issues. Underlying this trouble are a number of important factors, of which perhaps the chief is the reluctance of local officials to forgo immediate economic benefits in the interests of promoting local environmental welfare. The local administrations retain very substantial authority, and can use their often unfettered power to deal with environmental concerns in a manner that suits local leaders. Thus in the environmental impact process projects owned in whole or part by the local authorities the standards required may be fudged in a manner that would not be allowed in private businesses or joint ventures. And, as in the Xiping case, if the local government makes a good profit from polluting enterprises, it often does not worry too much about the environmental contamination. The system tolerates or even encourages pollution in other ways, perhaps most evidently in the importance of pollution fees as a source of revenue for environmental protection agencies. Local environmental protection authorities are not overly concerned about the fact that the penalties which they impose are not financially stringent and therefore ineffective deterrents, for they are concerned to secure an income from the fines and in a particular do not want to bankrupt the polluting enterprise. Developmental policies within China see environmental degradation in the inland western regions of China as an acceptable price to pay for assisting economically backward areas to share in some of China’s new-found wealth. More generally, the emerging system of environmental protection remains very ‘top-down’, with only a limited role given to environmental activists, and little attempt to allow real public participation in environmental decision-making. Indeed, an ideology of environmental protection seems to fit as happily with a quasi-paternalistic, authoritarian state as it does with western-style liberal democratic political systems. In reality, it may be the case that in some respects

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it is less difficult to impose exacting standards of environmental wellbeing in a non-democratic system such as that of the PRC. Nevertheless – and despite recent signs of improvement in terms of substantive laws, procedural reforms, and implantation drives – it will probably require a major transformation in the relationship between central and local government, stronger centralised financing of the environmental protection agencies, and the creation of much more political space for grassroots environmentalism and the investigative media before a meaningful system of access to environmental justice is created for the ordinary Chinese citizen. Most important of all, the China leadership needs to give sustainable development, especially environmental welfare, policy primacy over the competing goals of rapid economic growth, maintaining political and social order, and developing military strength.

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Chapter 9

ACCESS TO ENVIRONMENTAL JUSTICE IN THE SOUTH WEST PACIFIC Nicola Pain 1

I. INTRODUCTION

A

ccess to environmental justice by citizens and communities is a broad topic with implications at international and national levels of government. It is at the national level that access to environmental justice for citizens has most immediate impact. The political and legal framework necessary to ensure access to environmental justice at the national level requires the existence of broad civil and political rights. All persons have the right to hold and express opinions and to disseminate ideas and information regarding the environment, the right to environmental and human rights education and the right to associate freely and peacefully with others for purposes of protecting the environment or the rights of persons affected by environmental harm.2 Opportunities for public access to enforcing laws provided in environmental legislation, or in related areas such as constitutional law, are essential. The need for such opportunities is increasingly being couched in terms of environmental rights, an important aspect of which is procedural rights to support public participation. In addition to the existence of legal rights of access, practical measures to enable use of those rights are also vital.

1

Dr Nicola Pain, solicitor, Sydney, Australia, later appointed as Judge of the New South Wales Land and Environment Court. This chapter was originally developed as a paper for the W.G. Hart Legal Workshop on Access to Environmental Justice, Institute of Advanced Legal Studies, June 1997.

2

Draft Principles on Human Rights and the Environment (Sierra Club Legal Defence Fund, Genevea,1994), Arts. 16, 17, 19.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 237–270 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

The focus of this chapter is access to environmental justice under national legal systems in South West Pacific island countries. The issues are explored in two case-studies concerning Papua New Guinea and the Solomon Islands. It is important to note trends in international law and policy which can assist national approaches. The emergence of sustainable development principles as an important focus of international environment and development policy is well recognised. Implementation of ecologically sustainable development involves the implementation of measures which enhance access to justice initiatives. Governments at the United Nations Conference on Environment and Development (UNCED) in 1992 recognised that in order to ensure implementation of sustainable development there must be adequate national legal systems. Specific procedural aspects of citizens’ rights to participate in decision-making have been defined as important for the achievement of sustainable development.3 The need to develop national legal systems to enable implementation of sustainable development principles is contained in the Rio Declaration4 and reflected in documents such as the 1995 IUCN Draft Covenant on Environment and Development. For citizens seeking to exercise them, environmental rights at the national level have the most practical impact. It is partly through appropriate administrative and legal policies instituted by national governments, in many cases under pressure from their communities, that government decision-making implements such approaches. International discussion and emerging practice in customary law, and acceptance of certain rights and principles and consequent duties on States in international instruments, is setting an important baseline for the behaviour of States in the national context. There is an internationalisation of developments at national levels as international issues impact on the development of national legal and administrative frameworks.5 Whether this is translating into greater access to environmental justice is another matter.

II. THE SOUTH WEST PACIFIC The South West Pacific region incorporates the regions of Micronesia (Guam, Kiribati, Marshall Islands, Nauru, Palau), Melanesia (Australia, Fiji, New 3

Sands, P. and Werksman, J., ‘Procedural Aspects of International Law in the Field of Sustainable Development: Citizens’ Rights’, in Ginther, K., Denters, E., and de Waart, P. (ed.), Sustainable Development and Good Governance (Martinus Nijhoff, Dordrecht,1995), 199–200.

4

Rio Declaration on Environment and Development (United Nations, 1992), Principle 10.

5

This development has been discussed in the context of the internationalisation of environmental law in Australia. See Rothwell, D.R and Boer, B.W., ‘From the Franklin to Berlin: the Internationalisation of Australian Environmental Law and Policy’, 17 Sydney Law Review 2 (1995).

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Caledonia, Papua New Guinea, Solomon Islands, Vanuatu, Irian Jaya) and Polynesia (American Samoa, New Zealand, Cook Islands, Wallis and Futuna, Hawaii, Niue, Tahiti, Tokelau, Tonga, Tuvalu, Western Samoa). The ‘Pacific Way’ describes that part of this region covered by South Pacific island nations: Our combined Exclusive Economic Zones (EEZs) occupy 30 million square kilometres of the Pacific ocean – an area more than three times larger than the USA or China … But the land area is only 1.8% of that total. With an estimated population of only 5.8 million, our capacity to protect our fragile environments against damage from both internal actions and external influences is constrained.6 The temptation to use natural resources unsustainably to finance the expanding consumer and development needs of fast-growing populations is clear. Countries in the region have diminishing natural resources in their forests, mineral resources and fisheries. These natural resources are valuable in environmental, social and cultural terms, as well as economic ones. The Pacific Way report notes major issues faced in terms of limited employment opportunities on many islands and increasing rates of poverty, as urban population centres increase. There is also a shift to a monetary economy combined with over-exploitation of natural resources. The Pacific Way report also notes that, for those communities which have maintained their traditional resource management systems, there is a ‘high degree of subsistence affluence’.7 Several of the South Pacific island nations also face a major threat if the climate change impact on sea level rise is as great as predicted by some scientists, as this will result in their inundation. Changes in weather patterns which may be the result of climate change impacts are also likely to bring greater numbers of, and more intense, hurricanes and cyclones which will cause substantial damage in coastal areas in the region.8 Additional environmental concerns in the South Pacific include coastal erosion, scarcity of fresh water, forest degradation, pollution and erosion from mining, loss of

6

South Pacific Regional Environment Programme (SPREP), The Pacific Way Pacific Island Developing Countries’ Report to the United Nations Conference on Environment and Development (Noumea, South Pacific Commission, 1992), 10. The national governments represented by the report were Kiribati, Marshall Islands, Nauru, Fiji, Papua New Guinea, Solomon Islands, Vanuatu, Cook Islands, Niue, Tokelau, Tonga, Tuvalu, Western Samoa and Federated States of Micronesia.

7

SPREP, above n. 6, at 18.

8

‘IPCC Second Assessment Synthesis of Scientific – Technical Information Relevant to Interpreting Article 2 of the UN Framework Convention on Climate Change’, 11/1/96, (accessed 5 Sept. 2005), identifies some coastal areas and small islands as particularly vulnerable to impacts from weather changes and sea-level rise, causing internal and international migration of human populations and adverse health impacts. 239

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biodiversity, marine pollution and waste disposal.9 Carew-Reid notes that the island environments in the South Pacific are particularly vulnerable due to their island nature and small size, resulting in finely tuned ecological systems.10 While many of the governments in the Pacific island region are elected on a democratic basis, and have passed a body of national environmental protection laws,11 customary laws developed at community level over centuries also play an extremely important role. This importance is underscored by the fact that most of the land and coastal marine areas are held by customary land owners, often on a communal rather than an individual basis.12 Pacific countries are populated by indigenous cultures with large influxes of other ethnic groups.13 The environment and development issues are relevant to the whole population as customary owners of much of the land and marine areas. (a) Regional environmental organisations Within the South Pacific region, the South Pacific Commission, established after World War II, and the South Pacific Forum, established in the early 1970s, are the principal governmental organisations. South Pacific governments have cooperated well on regional environmental issues, establishing the South Pacific Regional Environment Programme (SPREP).14 Included in SPREP’s programmes are projects to implement sustainable development, combat pollution, both marine and terrestrial, promote biodiversity conservation and environmental education. The South Pacific Regional Environment Programme (SPREP) aims to provide additional capacity to governments to respond to environmental issues.15 9

Wendt, N., ‘Environmental Problems in the South Pacific’ in Henningham, S., and May, R.J. (ed.), Resources. Development and Politics in the Pacific Islands (Bathurst, Crawford House Press, 1992), 185–194.

10

Carew-Reid, J., Environment, aid and regionalism in the South Pacific (Canberra, National Centre for Development Studies, Australian National University, 1989), 9.

11

The range of laws is identified in numerous chapters of Boer, B.W. (ed.), Strengthening Environmental Legislation in the Pacific Region: Workshop Proceedings (Apia, Western Samoa, South Pacific Regional Environment Programme and United Nations Environment Programme, 1993).

12

Carew-Reid, J., ‘Western Samoa’, ch. 1; Crocombe, R., The South Pacific: An Introduction (Suva, University of the South Pacific,1989), particularly ch. 9.

13

Crocombe, above n. 12, chs 1,2.

14

For description of SPREP’s role, see 1991–1995 Action Plan for Managing the Environment of the South Pacific Region (Apia, Western Samoa, SPREP, 1993); Wendt, above n. 9, at 185–194; Moutou, B., ‘Regional Implementation: Compliance Mechanisms – the Role of SPREP’, Environmental Treaties: the Asia-Pacific Dimension, Conference., Darwin, National Environmental Law Association, 1995.

15

Boer, B.W., ‘Environmental Law in the Pacific Region’, in Boer, B.W., Fowler, R. and Gunningham, N. (ed.), Environmental Outlook law and Policy (Sydney, Federation Press, 1994),

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(b) Environmental rights and customary ownership In many Pacific island countries, statutory legal systems co-exist with customary law. Customary law varies throughout the region because it is the product of the differing social and economic structures of each society. Of customary law in the South Pacific region it has been said: (i) It is not easy to formally separate law from politics and religion as in Western societies where in theory there is such a separation. (ii) The system of kinship is of great importance in customary legal systems. … This leads to a role for the extended family in customary societies … in matters such as ownership and use of land. (iii) The forms of law and legal processes are much less rigid in many customary societies in comparison with Western law.16 The legal systems based on colonial occupations in the region, the basis of much of the statute law, are diverse. The range of inherited colonial legal systems is demonstrated by the following: The legal systems of Papua New Guinea, Fiji, Tonga, Western Samoa, Tokelau, Niue, the Cook Islands, Nauru, Solomon Islands, Kiribiti, Tuvalu are based on the English system; those of American Samoa, Guam and the United States Trust Territories of the Pacific Islands are based on a mixture of the Continental, Japanese and American systems … New Caledonia, Wallis and Futuna, Tahiti and Vanuatu have systems based on the French Civil Code.17 In the South Pacific region, the recognition of customary law is likely to be an important part of environmental protection law. Any statutory legal system needs to recognise that customary management of natural resources plays an important role. Complex issues are raised by the operation of customary laws as these have evolved in many cases to ensure sustainable management, but where changes such as resource depletion from other causes, increasing populations and greater mobility of populations have occurred, this may mean that their application is no longer sustainable. The importance of customary practice and law is clear when the extent of customary ownership of land is considered. Approximately 88% of the Solomon

65–8–1; Boer, B.W., Environmental Law in the South Pacific (Gland, IUCN, 1996). 16

Chalmers, D., and Paliwala, A., (1984) An Introduction to the Law of Papua New Guinea (2nd edn, Sydney, Law Book Company, 1984), 17.

17

Pulea, M., (1985). Customary Law Relating to the Environment, South Pacific Region: an Overview (South Pacific Commission, 1985), 15. 241

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Islands, 97% of Papua New Guinea land and marine areas is owned by traditional owners, while in Vanuatu all land has been returned to customary owners. ‘Land is the most important commodity for many Pacific island countries as the basis for their social organisations, their culture and religion. It has given island communities their identity and provided a common link with their ancestors who are buried there.’18 Therefore environmental laws, particularly where these relate to the use of natural resources, are also likely to directly or indirectly impact on customary use of land. This means that issues of customary tenure of land and marine areas as well as usage are significant in terms of ensuring the effectiveness of environmental laws. It is also important in terms of the procedures which underpin environmental protection. The issues become complex in South Pacific countries where customary use of natural resources may or may not be sustainable.19 Customary law and practices are also evolving.20 Environmental protection laws which fail to accommodate community needs are likely to be ineffective where the bulk of the community are customary land owners of the bulk of the land. The concept of environmental rights is also likely to encompass different needs in these circumstances because subsistence-taking of natural resources is as important as cash-generating economic development. The various written and codified legal systems in the Pacific have dealt with customary law in a variety of ways. Constitutional provisions in some countries recognise customary laws. In the Solomon Islands Constitution, customary law is defined as part of the law of the Solomon Islands, but does not apply if inconsistent with the Constitution or statute law.21 In Vanuatu the Constitution provides that ‘if there is no rule of law applicable to a matter before it, a Court shall determine the matter according to substantial justice and wherever possible in conformity with custom’.22 In Papua New Guinea the Constitution provides recognition of custom as part of the underlying law.23

18

Reti, I., and Wendt, N. Traditional Approaches to Protecting the Environment in the South Pacific Region and their Role and Effectiveness in a Modern Development Regime (Apia, Western Samoa, SPREP,1993), 138.

19

The potential conflicts between environmental protection and customary use of natural resources are discussed by a number of writers: see Reti and Wendt, above n. 18; Pernetta, J., and Hill, L., ‘Traditional Use and Conservation of Resources in the Pacific Basin’, 13 Ambio 359–364 (1988); numerous reports in SPREP, Report of the Workshop on Customary Tenure, Traditional Resource Management and Nature Conservation (1988); Pulea, above n. 17.

20

Pulea, above n. 17, at 7.

21

Boer, B.W., Review of Environmental Law, Solomon Islands (Sydney/Apia, SPREP, 1992), ch. 1.

22

Constitution of Vanuatu, Art. 3.

23

Constitution of Papua New Guinea, Art. 1.

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Where there is no specific constitutional recognition, there may still be statutory recognition. For example, the 1964 Native Customs Recognition Act of Papua New Guinea was an attempt to consider the role of custom in the legal system but this has been described as having little impact on the general legal system.24 Customary law is considered in several tribunals and courts in different jurisdictions in the region. Examples include the Lands Appeal Court in the Solomon Islands, Village Courts in Papua New Guinea, and Village and Island Courts in Vanuatu. Customary ownership of land in the South Pacific is generally communal, whether by family group or village community. One exception to this is Tonga, where land is owned individually.25

III. ACCESS TO JUSTICE: PROCEDURAL ASPECTS OF PARTICIPATION Procedural rights owe their existence to broad civil and political rights such as the right to free association and the right to information and popular participation in political processes. Linked to these specific rights is the desirability of democratic processes to enable participation by citizens in government decision-making. The term democracy is used extensively in international and national instruments concerning environment, development and human rights to describe an essential framework of a society if rights are to be adequately achieved.26 Procedural rights exercised by individuals impose an obligation on States to ensure that, for example, appropriate administrative and legislative frameworks exist to enable access by citizens to information about government processes and decision-making and rights to effective judicial remedies. The increasing detail with which procedural rights are specified in international instruments is apparent in the discussion of environmental rights in the human rights context and in the field of environment and development.27 National legal systems play an important role in implementing environmental rights and sustainability, particularly in terms of the procedural aspects accorded to citizens. Constitutional provisions and bills of rights are examples of one level of legal instrument which can give effect to citizen rights. Legislation in

24

Nonggorr, J., ‘Papua New Guinea’, in Ntumy, M.(ed.), South Pacific Island Legal Systems (Honolulu. University of Hawaii Press, 1993), 26.

25

Pulea, M., Review of Environmental Law in the Kingdom of Tonga (Apia, SPREP, 1992).

26

Steiner, H., ‘Political Participation as a Human Right’, 1 Harvard Human Rights Yearbook 77 (1988); Franck, T., ‘Democracy as a Human Right’, Human Rights: An Agenda for the Next Century (Washington DC, American Society of International Law, 1994), 73–101.

27

E.g., Draft Principles on Human Rights and the Environment, above n. 2, Part III; IUCN/ICEL, Draft Covenant on Environment and Development, Parts III and IV. 243

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specific areas of law such as environmental protection can also contain citizen ‘rights’. Such legislation is likely to be procedural in nature and more subject to change due to political influence, as for any legislation, compared to ‘foundation’ documents, such as national constitutions. They are also more easily created than documents such as a constitution or bill of rights. (a) Constitutional provisions A large number of national constitutions contain provisions which can be relevant to the availability of access to environmental justice. An obvious clause is the provision of an environmental right for citizens. Many constitutions contain references to the right of citizens to a healthy environment or impose obligations on the State or legislature to ensure the environment is protected.28 Constitutional provisions can be fundamental rights or statements of public policy. A fundamental right guarantees the individual a personal right and includes, in some circumstances, rights of participation. These rights of participation can be further divided between original rights and derivative rights. Original rights provide a direct claim to the individual for a particular service; derivative rights only grant participation rights in the framework for providing the service, leaving the decision on whether this is to be provided to the discretion of the government. Public policy statements are non-binding on governments and unenforceable by citizens. Effective implementation of constitutional provisions also depends on how courts interpret them. A key issue for a court to decide is whether a constitutional provision is self-executing, and therefore judicially enforceable, in the absence of implementing legislation.29 Constitutional provisions which are not self-executing rely on legislatures to pass appropriate legislation worded to give them effect in law in such a way that citizens can apply them. Given the importance of judicial interpretation of constitutional provisions, access to the courts is an important threshold issue in constitutional litigation and raises the issue of standing to sue by private citizens to enforce their constitutional right. The legal system may not allow these rights to be taken advantage of where there is no access to courts.

28

The report identifies 61 countries with constitutional provisions relevant to environmental rights; Final Report on Human Rights and the Environment, Commission on t-lunrau Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1994/9, 6 July 1994, 81.

29

Brand, E. and Bungert, H., ‘Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad’, 16 Harvard Environmental Law Review 1 (1992).

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(b) Procedural rights in national legal systems The important procedural aspects which underpin the ability of citizens to apply their rights are essential at the national and provincial level. Procedural and administrative rights available under national laws reflect differing cultural and political frameworks. These differences partly explain the considerable variation in the scope of substantive or procedural rights provided in different countries. Procedural rights available to citizens at the national level are potentially extensive. This chapter does not deal with all aspects of procedural rights but focuses on access to court action. This arguably provides backing to any participatory rights available under statute or constitution. The legal enforcement of rights to participate in environmental decisionmaking depends on the provisions of national and provincial laws, and the resolution of a number of practical issues. A number of specific legal rights to underpin participation are: (i) adequate freedom of information laws, enabling access to government information by citizens; (ii) comprehensive environmental laws, which provide adequate participation rights, such as enabling citizens to comment on government policies and government and private projects, opportunity to comment in environmental impact assessment processes, and requiring decision-makers to consider these comments; and (iii) access to court systems and other tribunals and inquiries, to enable appeals and judicial review of government decisions.30 These legal bases for procedural rights are inadequate for the Pacific region, where legal processes may be less relevant or inaccessible in poorer countries, or there are strongly entrenched customary laws. Access of citizens to the legal system relies on a number of factors, such as understanding of legal rights, the availability of legal counsel, resources to mount cases and belief that the legal system will deliver meaningful outcomes. In many countries with poor populations and little formal education, access to the court system by citizens is made extremely difficult. Specialist community legal services are found in some countries, but their resources are likely to be limited. (c) NGO participation at the national level The level of participation enabled under a country’s administrative and legal system can often be gauged by the access accorded NGOs. The diverse social, economic and political systems in the Asia-Pacific region are reflected in the

30

Sands and Werksman, above n. 3, at 197. 245

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range of NGOs in the region concerned with human rights, development and environment issues. The important role of NGOs in achieving greater democracy in developing countries has been examined generally by Clark.31 NGOs involved in environmental issues in Asia-Pacific countries until recently reflected a wider agenda than environmental NGOs in Australia and New Zealand. While environmental NGOs in the latter countries have recently started to include development and indigenous issues in their work,32 many NGOs in the Asia-Pacific region concerned with environmental issues focus primarily on development issues and human rights. The broad areas of concern for NGOs are human rights, development and environment pursued by groups of indigenous people, peasants, fishers, trade unions, youth, women, peace and human rights advocates, voters, consumers and environmentalists.33 Serrano identifies two important trends in the Asia-Pacific region impacting on the roles played by NGOs. Regionalisation by states, interstate bodies and transnational corporations is the dominant trend, aimed at homogenisation and monopoly of resources and decisions. Countering this is the ‘transnational democratisation from below’ trend, whereby voluntary associations and citizen movements are emerging as important forces. Serrano traces the development of NGOs since the 1960s in the region as a result of increasing dissatisfaction with governmental responses to poverty, inequality, participation, civil conflicts and resource degradation. At the national level NGOs play an important role in advocating and drawing to government attention issues of concern. The scope of NGO activity will be dictated by the society in which they operate, with vastly different resources and opportunities between many developed and developing countries. For example, in many South Pacific countries environmental issues are pursued by grass-roots development organisations.34 Whether they engage in lobbying established parties, or in direct political action through working with peoples’ movements in mass mobilisations, depends on the political system they operate in.35

31

Clark, J., Democratising Development – The Role of Voluntary Organisations (London, Earthscan, 1991).

32

An exception is the Maruia Society in NZ which has pursued a work programme in the South Pacific focused on sustainable development for many years: personal communication, Regional co-ordinator Maruia Society, Auckland, 1995.

33

Serrano, I., Civil Society in the Asia-Pacific (Washington DC, Civicus,1994), 41.

34

One example is the Solomon Islands Development Trust based in Honiara which has outreach programmes in Guadalcanal and other provinces. Another is the Siosiomanga Society in Western Samoa; see Peteru, C., ‘The Need for Institutional and Legal Change: a South Pacific NGO Perspective’, in Boer, B.W., (ed.), Strengthening Environmental Legislation in the Pacific Region (Apia, SPREP/UNEP, 1992), 96–103.

35

The possible scope of activities of NGOs working in the human rights field is explored in Steiner, H., Diverse Partners Non-Governmental Organizations in the Human Rights

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In summary, a number of components in a national legal system are required to ensure participation by NGOs and community members in government decision-making takes place. Even clearly defined participatory rights are insufficient in the absence of practical opportunities being made available.

IV. PUBLIC INTEREST ENVIRONMENTAL LITIGATION Litigation which is ‘public interest’ in nature36 can occur in a wide range of fields. Inherent in this kind of litigation, whether or not it also encompasses a private right, is the enforcement of public rights. Opportunity for public interest litigation is one way that access to environmental justice has been achieved. In identifying the attributes required of a legal system to ensure that there is access to court systems for review of government decisions, Sands and Werksman listed the following: (i) the legal rights of citizens in the field of sustainable development must be recognised in national legal systems; (ii) those legal rights must be recognised by the grant of standing to institute proceedings at the national level; (iii) legal and administrative bodies must be established at the national level to allow proceedings to be brought; and (iv) access to bodies should not be subject to inappropriate barriers, such as prohibitive costs rules.37 These are essential prerequisites in terms of the structural requirements of a legal and administrative system. As the following discussion demonstrates, there are a number of additional factors hindering access to public interest litigation apart from the absence of the features identified above. (a) The nature of environmental court action at the national and local levels Citizens’ rights in courts can encompass a number of causes of action when seeking to achieve environmental protection or stop environmental harm or

Movement (Boston, Harvard Law School Human Rights Program and Human Rights Internet, 1991); especially pp. 70–75. 36

For discussion in the US context see Aron, N., Liberty and Justice for All: Public Interest Law in the 1980s and Beyond (Boulder, Westview Press, 1989); Baum, R., Public Interest Law: Where Law Meets Social Action (London, Oceana, 1987).

37

Sands and Werksman, above n. 3, at 197. 247

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potential for environmental harm. Court action on environmental issues can consist of: (i) constitutional actions based on the enforcement of constitutional rights;38 (ii) common law causes of action based on tort law such as negligence and nuisance; (iii) judicial review of government administrative decisions relevant to environmental processes; (iv) merit appeals of government decisions where the court stands in the place of the decision-maker.39 Common law rights to sue for damages and loss or injury resulting from environmental harm caused by trespass, nuisance and negligence exist in numerous jurisdictions. The causes of action based on negligence and known as toxic torts rely on those who have suffered personal harm being caused as a result of negligence on the part of a person or entity owing the requisite duty of care, taking court action for recovery of damages and being able to prove damage. Damage can be difficult to prove in cases of environmental pollution.40 This form of action as an instrument of environmental protection has been of limited assistance in developed countries because the scope for action is inherently restricted to private rights. Such an action may or may not involve public rights, such as protection of the environment, in addition to private rights. The creation of environmental protection laws by statute in most national jurisdictions in common law developed and developing countries reflects recognition by governments and communities that the existing common law avenues for environmental protection were inadequate.41 In the environmental law field in developed countries, litigation is likely to include judicial review actions seeking to challenge government regulatory behaviour under environmental protection laws. Such actions in the USA are

38

Examples include the Oposa case (33 ILM 166) in the Philippines, the Pakistani case of Shela Zia v WAPDA, PLD 1994 SC 693, and numerous Indian Supreme Court cases

39

This last category will not be discussed here.

40

For discussion of the difficulties faced in such cases, see Cashman, P., ‘Torts’ in Bonyhady, T. (ed.), Environmental Protection and Legal Change (Sydney, Federation Press, 1992), 125; Christie E., ‘Toxic Tort Disputes: Proof of Causation and the Courts’, 9 Environmental Planning Law Journal 302 (1992).

41

Bates, G. Environmental Law in Australia (4th edn, Sydney, Butterworths, 1995), 8; Farrier, D., The Environmental Law Handbook (Sydney, Redfern Legal Centre Publishing, 1993), 19.

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generally referred to as citizens suits.42 Other common terminology is ‘third party’ environmental litigation, to distinguish the applicant for court relief from any parties having an exclusive private interest in proceedings.43 This is characterised as public interest litigation in many developed countries. Public interest litigation is recognised in a number of jurisdictions, such as the USA and Australia, in a wide range of fields, including environmental litigation. It can be widely defined and includes the characteristics that the relief sought does not benefit the applicant financially and the issues raised are substantial, and may, on judicial interpretation, clarify the law and add to precedent.44 A feature of environmental public interest litigation in developed countries is the activities of NGOs, as plaintiffs, seeking to enforce compliance with environmental protection laws by private and public entities. In several jurisdictions, where environmental protection legislation is relatively well entrenched, provision has been made for third party rights to challenge breaches of environmental laws and to seek court orders enforcing environmental legislation. These rights to challenge decisions, which are largely governmental, can arise directly under environmental protection legislation or as a result of general principles in the legal system allowing judicial review of administrative decision-making. Public interest litigation by NGOs to enforce environmental laws is recognised, in theory at least, as part of the legal framework for environmental protection in several Australian jurisdictions.45 Litigation of this nature in Australia is usually undertaken by third parties against the government decision-maker in judicial review proceedings of an administrative decision.46 The remedies sought are declarations of invalidity of decisions made under legislation and injunctions to stop activity relying on those decisions. Court action aimed at environmental protection, in areas such as forestry activity in native forests on public land, has been significant in the political context in Australia as it has placed pressure on governments on particular issues.47

42

Axline, M., Environmental Citizen Suits (Salem, Butterworths, 1991).

43

E.g., Pain, N., ‘Third Party Rights under the Environmental Planning and Assessment Act (NSW)’ 6 Environmental Planning Law Journal 26(1992).

44

Pain, N., ‘Courts and Citizen Action’, in Dente, B. (ed.), Environmental Policy in Search of New Instruments (Dordrecht, Kluwer, 1995), 75.

45

Several Australian jurisdictions allow objectors to appeal against government decisions: Bates, above n. 41, at 473–474. In a number of jurisdictions the right of judicial review depends on standing provisions: ibid., at 469–471.

46

For a discussion of the scope of judicial review in Australia, see ibid., at 493–501.

47

In the Australian state of NSW, court cases challenging the state government agency responsible for forestry under environmental planning legislation include Kivi v Forestry Commission of NSW (1982) 58 LGRA 366; Prineas v Forestry Commission of NSW (1983) 49 LGRA 160; Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79; Corkill v Forestry 249

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(b) Hurdles to public interest litigation Simply providing the legal opportunity for public interest litigation does not ensure the ability to use it. Substantive procedural and practical hurdles to public interest litigation exist in Australia and other countries throughout the Pacific region. The precise nature of these will vary between jurisdictions and reflect the nature of court practice, amongst other factors. Substantive hurdles include rules limiting standing to sue for litigants or limiting available causes of action. Procedural hurdles include costs orders which require the loser to pay for all parties legal costs, security for costs applications by defendants, undertakings for damages required for those seeking interim injunctions and the need to find the right plaintiff or applicant to satisfy standing to sue requirements.48 Practical hurdles include lack of access to lawyers, no resources to pay them or expert witnesses and difficulty in finding appropriate scientific expertise. The political climate in a country in relation to the exercise of civil and political rights is also likely to affect the ability of public interest litigants to pursue court action. To give such rights real effect requires that governments recognise and ameliorate these hurdles. This can be done in a number of ways. In Australia, specialist environmental courts have been established in several jurisdictions and these have been administering legislation which increasingly includes broad or ‘open’ standing provisions enabling third party enforcement of environmental laws.49 In the leading Australian state on these issues, New South Wales, the Land and Environment Court of NSW has jurisdiction over several pieces of environmental legislation which include open standing provisions whereby any person may take action to remedy or restrain a breach of particular legislation.50 These provisions are viewed as part of the public participation provisions which are an important aspect of environmental protection legislation in NSW.51

Commission of NSW (1991) 73 LGRA 126: see also Angel, J., Defence Through the Courts: Defending the Environment (Adelaide, Australian Centre for Environmental Law, 1994). 48

Pain, above n. 44; Preston, B., Environmental Litigation (Sydney, Law Book Company, 1992), 78; Bates, above n. 41, at 469–484, 505–511; Boer, B.W., ‘Legal Aid in Environmental Disputes’, 3 Environmental Planning Law Journal 22 (1986); Robinson, D., ‘The Environmental Defender’s Office, NSW – 1985–1995’, 13 Environmental Planning Law Journal 155 (1996).

49

Land and Environment Court Act 1979 (NSW); Local Government (Planning and Environment) Act 1990 (Qld), defining the jurisdiction of the Planning and Environment Court; Environment Resources and Development Court Act 1993 (SA); Resource Management and Planning Appeal Tribunal Act 1992 (Tas).

50

Environmental Planning and Assessment Act 1979, s. 123; Heritage Act 1977, s. 85; National Parks and Wildlife Act 1986, s. 77; Wilderness Act 1987, s. 51.

51

Stein, P., ‘A Specialist Environmental Court: Australia’, in Robinson, D., and Dunkley, J., (ed.), Public Interest Perspectives in Environmental Law (London, Wiley Chancery, 1995),

250

9. Access to Environmental Justice in the South West Pacific

Lack of resources and access to lawyers and scientific experts require redress through mechanisms such as legal aid52 and access to free legal services and scientific experts. In Australia, the network of Environmental Defenders Offices undertakes this kind of work.53 There are public interest law offices in several countries whose lawyers aim to assist public interest advocates to lobby for appropriate laws and take court actions to enforce environmental laws.54 Procedural hurdles to public interest litigation can be overcome by not following the usual costs order in many jurisdictions in the Asia-Pacific region, which is that the loser pay all parties’ legal costs, not requiring security for costs for public interest litigants and not requiring undertakings to pay damages as a prerequisite to obtaining interlocutory injunctions.55 (c) Environmental litigation in developing countries Classification of environmental cases as public interest cases in the previous section suggested that actions pursuing only a private right would not usually qualify. It is clear that in the environmental arena, the term can encompass actions with both public and private interests at stake. This is important when considering litigation in developing countries. In countries with many traditional landowners seeking to conserve community resources, litigation can be seen as both private and public interest and the two are difficult to distinguish. Court action for damages for environmental harm suffered can be particularly important in developing countries where the overlap between human rights, development and environment is often more starkly demonstrated. In many cases, the loss of the natural environment often results in direct economic loss to individuals and communities, local and indigenous, who rely on the environment for their livelihood.56

256, at 258–260. 52

Legal aid is used here to mean government-funded moneys available according to certain criteria for public interest litigation. In NSW there is a legal-aid fund dedicated to public interest environmental litigation (Legal Aid Commission Act (NSW), s. 35); but access to the funds is curtailed due to their limited size and the manner of administration: ‘Legal Aid in NSW’ 6 Impact 3(1995). A different approach to funding public interest litigation is taken in the US, where under certain kinds of legislation attorneys’ fees are awarded in successful judicial review actions against the government: Preston, above n. 48, at 73–80.

53

For a description of the work of Environmental Defenders Offices in Australia, see Robinson, above n. 48.

54

For a review of these groups in the USA, see Robinson, D., ‘Public Interest Environmental Law Firms in the United States’, in Robinson and Dunkley, above n. 51, at 40.

55

Pain, above n. 42; Preston, above n. 48, at 113–115.

56

Examples of such cases include litigation resulting from the chemical eruption from the Union-Carbide plant in Bhopal, India, in 1988. In that case, litigation seeking damages 251

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In many jurisdictions in the Pacific region, the applicant in public interest litigation may well be directly affected by particular environmental harm. This reflects in part the different stages of development which exist in the region and the high rates of customary ownership of land and coastal areas. For example, in cases taken by customary landowners in the Solomon Islands, orders are sought from the court canceling the grant of timber licences by the Solomon Islands government in circumstances where legal procedures are not correctly followed. The aim of the cases is to preserve the negotiating rights of customary landholders and prevent any or further logging until all legal requirements have been satisfied. In developing countries court challenges can be extremely difficult for local communities, particularly where they are facing development pressures from foreign companies who want to log or mine on traditional land under authority obtained from national or provincial governments under national resource management legislation. The political situation in a country may also be adverse to public interest litigation being conducted because of limitations placed on civil and political rights.57 Local communities, without access to legal advice and with no or extremely limited knowledge of statutory law or contract law, are at a major disadvantage. Public interest legal assistance for communities is limited or non-existent in many countries in the Pacific region.58 NGOs exist which provide legal assistance but their resources are limited. Networking by public interest lawyers takes on added significance in these circumstances. The Environmental Law Alliance Worldwide (E-LAW) is one example of this kind of networking.59 Forty-six public interest law organisations are now part of the network and use it to assist them in their work.60 The network provides legal precedents, model legislation, expert witness was commenced in the USA, home of the parent company. As the litigation was settled there was no final hearing by a US court: see Anderson, M.R., ‘Individual Rights to Environmental Protection in India’, in Boyle, A., and Anderson, M. (ed.), Human Rights Approaches to Environmental Protection (Oxford, Clarendon Press, 1996), 210. 57

Analysis of circumstances in Malaysia by Harding suggests that the limited public interest litigation undertaken there, despite limitations on civil and political rights, has been important. The existence of environmental human rights in Malaysia is entirely a result of the efforts of NGOs such as the Consumers Association of Penang: Harding, A.J., ‘Practical Human Rights, NGOs and the Environment in Malaysia’, in Boyle and Anderson, above n. 56, 227, at 243.

58

The Environmental Defenders Office based in Sydney has undertaken legal training courses in the Solomon Islands. Such programs are aimed at basic legal training for development NGOs who assist communities to deal with development pressures from foreign companies.

59

Robinson, above n. 54, at 61–62.

60

E-LAW operates through an extensive electronic mail network. In addition to legal advice and information, the network also provides scientific and technical analysis of environmental

252

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testimony and information about multinational companies operating abroad to lawyers and advocates engaged in environmental protection. This relatively brief discussion of the hurdles to environmental litigation serves to underscore the responsibility of governments in providing access to judicial systems for adjudication about environmental decisions of governments. As well as the substantive and procedural mechanisms to enable action, resources are also required in order that advantage can be taken of those mechanisms by NGOs.

V. CASE STUDY: MINING IN PAPUA NEW GUINEA Access to environmental justice issues can be usefully considered in the apparent failure of constitutional rights and environmental protection laws in PNG. (a) The Constitution The 1975 Constitution of the Independent State of Papua New Guinea (major amendments were made in 1982) contains national goals and ‘directive principles’. These are directed to every person and body in PNG. The five specified goals are written as if sustainable development was the umbrella principle in mind, but that phrase is not explicitly used. The principles are based on the 1980 World Conservation Strategy.61 The national goals are non-justiciable (Article 25(l)) but under Part 3, Division 1, the Constitution specifies it is the duty of the national judicial system to develop an underlying law if there is no rule of law applicable threats and promotes sound methods to combat these: E-LAW Annual Report 1995. For a more extensive description of E-LAW operations, see Anton, D., ‘The Global Environment and the Public Interest’, 10 Environmental Planning Law Journal 269 (1996). 61

IUCN, WWF, UNEP, World Conservation Strategy (Morges, Switzerland, IUCN, 1980). The five goals are: 1. Integral human development Every person is to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that every man or woman will have opportunity to develop as a whole person in relation to the other to achieve integral human, educational, cultural, health, family, social and political development. 2. Equality and participation The right of all people to participate in and benefit from the development of the country the political, economic, social and religious and cultural life of the country. 3. National sovereignty and self-reliance Papua New Guinea is to be politically and economically independent and her economy self-reliant. 253

Access to Environmental Justice: A Comparative Study

or appropriate to the circumstances of a particular matter. In developing the underlying law, judges must have regard to the National Goals and Directive Principles. These include, in relation to National Goal four: (i) wise use to be made of our natural resources and the environment in and on the land or seabed, in the sea, under the land, and in the air, in the interests of our development and in trust for future generations; and (ii) the conservation and replenishment, for the benefit of ourselves and posterity, of the environment and its sacred, scenic and historical qualities; and (iii) all necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees.62 The PNG Constitution provides for national and provincial government with the Head of State being the Queen of England, represented by the GovernorGeneral.63 PNG has had to establish a democratic process of government in a society where local and provincial loyalties play a very significant role, given the isolation of many of the inhabitants. There are high rates of customary ownership of land.64 The difficulties of providing comprehensive infrastructure nation-wide, due to lack of resources and inaccessibility of much of the country, has meant that centralised government control over resource extraction has been problematical. The conflicting demands between the needs of local communities and the national government are clear in relation to resource development in the mining and forestry areas.65 Deklin’s view is that ‘the policies of successive PNG governments for the exploitation of natural resources have invariably failed to accommodate adequately the genuine needs and concerns of the local people

4. Natural resources and environment Papua New Guinea’s natural resources and environment are to be conserved and used for the collective benefit of all, and be replenished for the benefit of future generations. 5. PNG ways To achieve development primarily through the use of Papua New Guinean forms of political, economic, social and cultural organisation. Constitution of the Independent State of PNG, National Goals and Directive Principles 1–5. 62

Ibid., Part III, Division I, Art. 25(3).

63

For description of the PNG legal and political system see Nonggorr, above n. 24, especially at 21–22.

64

Ibid., at 202.

65

Deklin, F., ‘Papua New Guinea Forest Policy and Local Interest Groups’, in Henningham and May, above n. 9, at 119–128.

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who have ownership rights in these resources and who are directly affected by their exploitation’.66 This has clearly had implications for the achievement of environmental justice by PNG citizens in relation to mining activities. The PNG Constitution also has several provisions dealing with environmental protection. For example, it adopts as one of the national goals for the government the duty to conserve the environment. There is no explicit environmental right which citizens can enforce. Customary law is also referred to in the Constitution as the underlying law of PNG.67 In theory, the application of customary laws may found significant rights for citizens seeking to protect their environment. (b) Large-scale mining activity and environmental protection Large-scale mining activity has been undertaken in numerous locations such as the Panguna copper mine on Bougainville Island and the Porgera and Ok Tedi mines, in Western Province, by various consortia of foreign-owned companies, often in joint-venture partnerships with the PNG government.68 Three important environmental protection laws were passed in 1978; the Environmental Planning Act, the Environmental Contaminants Act, and the Dumping Wastes at Sea Act. Important sections of the Environmental Contaminants Act have never been proclaimed. These Acts were followed by the Water Resources Act 1981. Together with environmental provisions in the Mining Act and the Petroleum Act they are the major environmental protection provisions for development control and the ‘general legal regime by which PNG intended to enforce its environmental policy’.69 The major economic challenges posed for a developing country such as PNG include the substantial reliance by the national government on income from a few large mining projects, while the majority of PNG citizens continue to practice subsistence farming and natural resource use on customary land outside major urban centres.70 Until the closure of the Panguna copper mine in 1989 due to the conflict between the Bougainville Revolutionary Army (BRA) and the PNG government and Conzinc Rio Tinto Australia Ltd (CRA) (the Panguna

66

Speaking about forest policy in particular: Deklin, above n. 65, at 119.

67

Constitution of the Independent State of PNG, Sch.2.1.

68

The adverse environmental consequences of these projects has received substantial attention in Australia, partly because of its special relationship with PNG. This is due to the latter’s status as a former protectorate. In addition, some of the companies involved have Australian ownership.

69

Ongwamuhana, K., ‘Mining and Environmental Protection in Papua New Guinea’, 8 Environmental and Planning Law Journal 133 (1991), at 133.

70

For discussion of the impacts of large mining projects on the political framework in PNG see Jackson, R., ‘Undermining or Determining the Nature of the State?’, in Henningham and May, above n. 9. 255

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mine operators), the revenue from mining for the PNG government was derived principally from the Panguna and Ok Tedi mines. In 1988 mining provided the PNG economy with 65% of its export earnings. With the closure of the Panguna mine, the Ok Tedi mine became even more significant for the PNG economy.71 (i) Panguna The Panguna mine started in 1972 without any environmental impact study being required. At that time there were no specific laws requiring such assessment and, even after passage of the Environmental Planning Act 1978, the mine was exempted from this legislation by the Mining (Bougainville Copper Agreement) Act 1967. The environmental damage caused by the mine includes the actual mine site area of up to 560 hectares, and 13,200 hectares leased for mining and related purposes and the dumping of waste rock in the Kawerong Valley. In 1991 the waste rock occupied 300 hectares at a depth of 100m to 200m. Mine tailings are the other major environmental issue as these flow downstream to occupy an area of 3,100 hectares, depositing on river beds and substantially altering the natural environment. Chemicals produced in the mining process pollute the water in the Jaba-Kawerong rivers and, although found to comply with World Health Organisation standards, fish migration has stopped, with obvious impacts on fish regeneration in the river.72 The action of the BRA in stopping production at the mine in 1989 was prompted in part because of concern about the environmental harm and consequent damage to traditional livelihoods resulting from the mining operations at Panguna.73 Since closure of the Panguna mine the PNG Government has been endeavouring to reach a peace agreement with the BRA and reopen the mine. Since the mine closed there have been various unsuccessful attempts by the PNG Defence forces to overwhelm the BRA and equally unsuccessful peace negotiations between the BRA and successive PNG governments. Political events in PNG in March 1997, triggered by the decision of the PNG Prime Minister Julius Chan to employ mercenaries to assist the PNG defence forces in Bougainville, have served to highlight the importance of ensuring human rights and environmental rights are respected by democratic governments. A private company, Sandline International, was engaged by the PNG Government under a contract for the supply of soldiers and equipment totaling $41 million.74 These government actions provoked a storm of controversy in PNG and caused

71

Ongwamuhana, above n. 70, at 134.

72

Ongwamuhana, above n. 70, at 136.

73

Skehan, C., ‘War on our doorstep’, Sydney Morning Herald (22 Jun. 1996), 33.

74

O’Callaghan, M., ‘Crisis in PNG’s Government’, Sydney Morning Herald (16 Mar. 1997), 1.

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the head of the PNG armed forces to call for the Prime Minister to resign. Amidst rumours of possible army insurgency against the elected government, allegations of impropriety about the way the contract was entered into by the PNG national government, and concern from multi-lateral development banks and aid donors about such use of government money, the Prime Minister stood down on 26 March 1997, while an inquiry into the contract was conducted.75 The actions of the democratically elected PNG Government appear extraordinary in the South Pacific region. Given the considerable loss of civilian life, as well as military personnel, on Bougainville because of the civil war, and PNG Government blockades of food and medicine to the island, together with possible human rights abuses against civilian populations by PNG defence forces, the consequences for human and environmental rights have been devastating. It is difficult not to escape the conclusion that for the PNG Prime Minister the economic costs of the mine closure continued to dominate his thinking rather than concern for the denial of human and environmental rights for Bougainville’s civilian population. The mercenaries have left PNG with the fate of their contract unknown. The government commissioned inquiry into the mercenaries’ contract and allegations of corruption surrounding it has reported with no finding of fraudulent behaviour by the Prime Minister. National elections for the national government were held in June 1997 with results to be announced shortly. The failure by the PNG government to ensure the human rights and environmental rights of one minority population in PNG has led to unforeseen and ultimately destructive consequences. (ii) Ok Tedi The Ok Tedi mine project started in 1984 with a projected life span of 30 years. The original agreement and further supplemental agreements were exempted from national environmental impact assessment laws.76 Mine tailings are discharged directly into the fast-moving Ok Tedi river, which flows into the much slower Fly river, after a tailings dam collapsed during construction in 1984. This dam was not rebuilt because the PNG government agreed with the mine operators that the cost was prohibitive. Ongwamuhana states that ‘although provision for environmental protection has been strengthened in the supplemental agreements [between the PNG government and the mine operators] of 1980, 1984 and 1986, the Ok Tedi mine remains the greatest source of pollution in the country’.77 The situation has received considerable negative publicity in Australia since 1994 because of three class actions filed in the Victorian Supreme Court by

75

Sydney Morning Herald (26 Mar. 1997), 1.

76

Mining (Ok Tedi Agreement) Act 1976.

77

Ongwamuhana, above n. 70, at 137. 257

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groups of landowners downstream of the Ok Tedi mine claiming damages for the environmental harm suffered as a result of the tailings from the mine being washed down the Fly River.78 This is claimed to have injuriously affected their use of the Ok Tedi River, adjoining flood plains and use of the land adjacent to the river. Another court action was also taken by a fishing company alleging interference with fishing activities for the same reasons.79 The plaintiffs in the four actions have the same law firm representing them.80 The PNG government attempted, with the assistance of BHP’s81 Australian lawyers, to remove common-law rights of disaffected landowners living downstream of the Ok Tedi mine in the Eighth Supplement Agreement Act 1995.82 This legislation prohibits legal actions for negligence by any person in respect to damages, compensation or any other claim arising out of the operation of the mine, and originally provided for criminal sanctions against the landowners involved in the Victorian Supreme Court actions. These provisions were dropped, however, when the Victorian Supreme Court found BHP guilty of contempt for its involvement in the drafting of the legislation. Legal actions to challenge the Eighth Supplemental Agreement on constitutional grounds are also prohibited but such an action was nevertheless launched by the disaffected landowners. The fact that constitutional challenges to the legislation are excluded is also disturbing from a human rights perspective. Criminal sanctions against foreign compensation claims were included in separate legislation passed at the end of 1995. This legislation also prohibits the enforcement of foreign judgments against mining companies. Assisting people to bring legal proceedings or give evidence is also prohibited. Substantial fines of up to $100,000 and daily fines of $10,000 for carrying out prohibited activities are provided for.83 The Eighth Supplement Agreement Act and related legislation has draconian provisions which clearly breach rights of access to the legal system

78

Dagi et al. v BHP and Ok Tedi Mining Limited, No 5782/94 SC Vic; Ambetu et al. v BHP and Ok Tedi Mining Ltd, No 6861/94 SC Vic; Maun et al. v BHP and Ok Tedi Mining Limited, No 6862/94 SC Vic.

79

Shackles and Daru Fish Supplies Pty Ltd v BHP and Ok Tedi Mining Limited, No 5980/94 SC Vic.

80

One of the lawyers representing landowners describes how the case originated and the considerable practical difficulties of obtaining instructions from landowners in remote areas with little transport and communications infrastructure; Gordon, J., ‘Ok Tedi – The law Sickens from a Poisoned Environment’, Law Society Journal (October 1995), 58–62.

81

BHP is one of Australia’s largest companies and a major shareholder in the Ok Tedi mine with its head office in the Australian state of Victoria.

82

Gordon, above n. 80, at 61.

83

Cameron, J., and Ramsay, R., ‘Transnational Environmental Disputes’, 1 Asia-Pacific Journal of Environmental Law 33 (1996), at 11.

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9. Access to Environmental Justice in the South West Pacific

and equal treatment before the law. The legislation is anti-democratic in that it restricts access to courts and punishes severely both potential applicants and their lawyers for exercising what would usually be considered constitutional and legal rights. In June 1996 an announcement of the settlement of the landowners claims with Ok Tedi Mining Limited and BHP Pty Ltd was made.84 A substantial part of the $500 million agreement provides that the mine owners must clean up the Ok Tedi river with a $110 million compensation package for about 35,000 people in the region and $40 million compensation package for 6,500 landowners downstream of the mine who had suffered particularly adverse impacts from the mine tailings. The company also undertook to implement a system for the treatment of mine tailings, although the details of how this is to be done have yet to be determined. The PNG government must acquire an additional 10% share in the project and ‘apply it for the benefit of people in the Western Province’. As part of the settlement the landowners agreed to stop their constitutional challenge to the laws criminalising foreign compensation claims.85 At the time settlement was reached BHP had successfully applied to strike out the Dagi claim and substantially narrow the causes of action to that of negligence in the three remaining suits before the Victorian Supreme Court. The motivation for settling the case has therefore been attributed in large part to the substantial amount of negative publicity generated for BHP, which publicity was impacting on other company activities.86 The negative publicity resulting from the court action for BHP Pty Ltd has caused the Australian public to focus on the activities of large Australian companies overseas. Environmentally aware members of the public and environmental NGOs argue that companies operating overseas should apply the same standards of environmental management as they would be required to meet in their home country. The Ok Tedi mining operation would not have been able to be pursued in the same way in Australia as it was in PNG. Australian environmental standards are more exacting and the EIA procedures which would apply in all jurisdictions would provide some process for assessment and public scrutiny of the development proposal. This has lead to calls from environmental organisations for a code of practice for overseas activities by Australian companies which incorporates environmentally responsible behaviour.87 While these developments in Australia appear to be potentially worthwhile in terms of environmental protection in

84

Sharp, S., ‘Ok Tedi Case has Global Lessons’, Sydney Morning Herald (15 Jun. 1996), 37.

85

Ibid., at 37; Cameron and Ramsay, above n. 83, at 40.

86

Ibid., at 10.

87

Australian Conservation Foundation Press Release, Guidelines for Australian Companies Operating Overseas, Melbourne, August 1995. 259

Access to Environmental Justice: A Comparative Study

developing countries, the response by the PNG government in terms of changes to PNG’s legal system is questionable from a human rights and sustainable development perspective, despite the settlement. (c) Access to legal representation Access to legal services in PNG can be limited, as demonstrated by the Ok Tedi litigation conducted by Australian lawyers. The Individual and Community Rights Advocacy Forum (ICRAF) was established in Port Moresby in 1992 and is pioneering the use of law to protect the environment in PNG.88 Examples of cases taken on behalf of local communities by ICRAF include an action for damages for a coastal indigenous community adversely affected by palm- oil mills which discharge toxic effluent into the marine environment on which the community depends.89 Another case is being taken on behalf of the Hewa people, a tribe which lives downstream of the giant Porgera gold mine. The mine uses cyanide to leach gold from the ore extracted and the claim alleges that several people have been poisoned by drinking water from the Lagaip River, into which the mine water is discharged.90

VI. CASE STUDY: FORESTRY IN THE SOLOMON ISLANDS In the South Pacific Islands region, the Solomon Islands is the third largest nation in terms of population and GNP, and the second largest in terms of land area.91 With a democratically elected national Legislative Assembly and seven provincial governments, the system of government is one model of a federal system. The Constitution provides for a Head of State which is the English monarch, represented by the Governor-General, and a Prime Minister elected from a Cabinet of MPs. Under the Provincial Government Act 1981 seven provincial governments were established and these consist of a provincial assembly, a provincial executive and staff; a Premier heads the executive. The national government can delegate functions to the provincial government. In addition, local government is provided for in the Local Government Act, under which Area Councils are established.92 While participation at all levels of government

88

E-LAW, Update, Summer 1994, 5.

89

Ibid., at 5.

90

Above n. 88.

91

PDP Australia Ltd., The Solomon Islands Economy (Canberra, Australian International Development Assistance Bureau, 1991), 1.

92

Title 117, vol.6, Revised Laws of Solomon Islands 1996; Nonggorr, above n. 24, at 272–274.

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is not necessarily effective, there are no legal impediments at the broadest level to public participation in democratic processes. The Solomon Islands faces a number of significant environmental challenges such as loss of biodiversity, depletion of land and marine resources through unsustainable logging and fishing, soil degradation, sea-level rise, and other impacts of climate change.93 The limitations on solving these major issues are identified as high population growth, low levels of public awareness about environmental legislation, institutional weaknesses, lack of resources in government, and the current economic imperative of the national government to earn foreign exchange earnings driving over-exploitation of natural resources.94 The operation of local custom in relation to land ownership and control of natural resources at community level continues as a vital aspect of community governance. One of the challenges for the development of the Solomon Islands is ensuring adequate returns for its natural resources, without exploiting these resources unsustainably. (a) Constitution The Solomon Islands became independent of Britain under the Solomon Islands Independence Order 1978. The preamble to the Constitution states that ‘all power … belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution … the natural resources of our country are vested in the people and the government of Solomon Islands’. Customary law is declared to be part of the law of the Solomon Islands under the Constitution, but it is not applicable if it is inconsistent with either the Constitution or an Act of the Solomon Islands Parliament.95 The importance of customary law is also linked to customary land ownership, as 87% of land in the Solomon Islands is held under customary ownership.96 There is no specific mention of environmental rights in the Constitution.97 The preamble provides that ‘the natural resources of our country are vested in the people and the Government of the Solomon Islands’. This suggests an intention by the drafters of the Constitution to involve the people in resource management in terms of the philosophical framework provided in the Constitution. 93

Ministry of Natural Resources, Country Report for the 1992 UNCED Conference (1991), at 211–213.

94

Ibid., at 212.

95

Constitution of the Solomon Islands, Sch.3, clause 3: customary law shall have effect as part of the law of the Solomon Islands; Art. 75: Parliament shall make provision for the application of laws, including customary laws.

96

Country Report, above n. 93, at 24; Nonggorr, above n. 24, at 271.

97

For a discussion on the civil and political rights of individuals recognised under the Solomon Islands Constitution see Nonggorr, ibid., at 278. 261

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The practical impact is minimal in terms of providing enforceable opportunities for action to enforce the Constitution by legal means. (b) Environmental protection and sustainable development Recognising the importance of the environment to the Solomon Islands cultural, social and economic life, the Solomon Islands government participated in the Asian Development Bank’s Regional Environmental Technical Assistance Project (RIJTA), under which the 1993 National Environmental Management Strategy (NEMS) was prepared. This is described as part of the implementation of sustainable development in the Solomon Islands.98 The NEMS report identified ten environmental objectives, including the sustainable use of forests and marine resources. In addition, ten priority strategies and programs were identified to implement these objectives. These include: (i) the development of standard EIA procedures for national and provincial governments; (ii) strengthening of existing environmental institutions and administration; (iii) introduction of a comprehensive environmental law framework; (iv) expansion of customary land reforestation; (v) improvement of customary landowner awareness of forestry processes and issues; (vi) assistance to landowners in undertaking sustainable harvesting on their customary land; and (vii) preservation of traditional knowledge and management systems.99 A comprehensive study of the Solomon Islands’ environmental law system, also undertaken as part of the Asian Development Bank’s RETA programme found a number of shortcomings in the environmental law provisions in a wide range of laws.100 In terms of participation in decision-making, laws concerning development control, natural-resource management and environmental impact assessment are of particular interest. The main developmental-control legislation, the Town and Country Planning Act 1979, applies to only 3% of land in the Solomon

98

SPREP, Solomon Islands National Environmental Management Strategy (Apia, SPREP, et al., 1993), xviii.

99

Ibid., at xviii-xxiv.

100

Boer, B.W., Regional Environmental Technical Assistance (RETA) Solomon Islands Review of Environmental Law (SPREP, 1992); see list of recommendations at iii-vii.

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Islands as it does not apply to customary land.101 It is also not applicable to agriculture, livestock keeping, fishing and forests. The legislation is therefore of very limited impact. If customary use of land continues in accordance with customary practices which are sustainable, there would be little need for this legislation to be strengthened. It is clear from the RETA report on the Solomon Islands, however, that with the range of developmental pressures facing that country, particularly from foreign interests, there is a need to implement stronger development control and environmental protection laws. Of particular relevance to this study is the lack of comprehensive environmental impact assessment laws applying in the Solomon Islands. As a consequence, public participation provisions are lacking in decisions relating to both government and private development. This is particularly problematical for non-traditional development by foreign interests. Boer reviews processes under the Investment Act 1990, which applies to foreign and local interests; the Research Act 1979; as well as the Town and Country Planning Act 1979. None provides for EIA processes in relation to the activity which the Act deals with.102 There now seem to have been four attempts to draft comprehensive environmental legislation for the Solomon Islands.103 The fact that the legislation drafted is not being implemented by the Solomon Islands Government raises questions about whether the legislation drafted is relevant to the Solomon Islands’ needs, whether the necessary political will exists to create and implement effective environmental laws and what other measures are also needed to ensure the appropriate laws are made. (c) Managing natural resources: local v national interest A key issue for the Solomon Islands is resource management in the area of forestry. The management of this resource is particularly important if sustainable development principles are to be implemented. As the majority of logging operations take place on customary land, many of the issues raised by the pursuit of sustainable development in an environmental rights context are raised. The UNCED Country Report identified the sustainability of forests as a problem area. The report estimates that, at current logging rates, forest reserves are likely to run out in 10–15 years.104 The NEMS report identified three areas which were particularly problematical, namely the disparity between the area of forest

101

Boer, above n. 100, at 31.

102

The draft Western Province Environmental Management Ordinance 1991 provides a good example at provincial level of a simple and straightforward form of environmental impact assessment: Boer, ibid., at 34.

103

Boer, B.W., personal communication, Sydney, Nov. 1996.

104

Country Report, above n. 93, at 437. 263

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harvested and the area reforested; customary land tenure; and environmental impacts of forestry activities.105 The NEMS report states that 95% of forestry takes place on customary land whereas reforestation generally takes place on government land.106 Without better equipping customary landowners with knowledge about forestry practices, sustainable management of that important sector will not be achieved and much greater attention to the environmental impacts of logging is necessary.107 Logging practices in the Solomon Islands have been under scrutiny in the last few years by neighbouring governments such as Australia and New Zealand. Both governments have funded, through aid programmes, significant projects such as the Australian funded Timber Control Unit, which aimed to provide training and support to customary landowners on forest utilisation, and the National Forest Resources Inventory Project, a catalogue of the forest resources of the Solomon Islands.108 The New Zealand Government has funded a capacity building programme for the government Forestry Division and for landowners to assist reforestation. AUSAID, amongst others, has taken the unusual step of criticising government practices because these are resulting in unsustainable logging practices.109 Criticisms from Australia have however been rejected by the present Solomon Islands Prime Minister, who has relied on the national sovereignty argument that such matters are the concern of his government alone. The Australian aid project was terminated in 1995 with concern expressed that cancellation of the Timber Control Unit Project may ‘lead to greater levels of transfer pricing and under-recording [of log harvests to the central government] thus impacting on government revenues and foreign exchange receipts’.110 Problems of managing forest resources have become acute because of interest from foreign companies who are often extremely aggressive in their approach

105

NEMS report, above n. 98 at 55.

106

Ibid.

107

Ibid., at 55–56.

108

The total sustainable annual cut of Solomon Islands forest reserves is estimated at approximately 325,000 cubic metres; Australian International Development Assistance Bureau, National Forest Resources Inventory, February 1995. In 1995 Forestry Review (Honiara, Central Bank of Solomon Islands, 1995) the executive summary states: the natural forest log harvest in 1995 is estimated at 850,000 cubic metres, up 15°6 on the 1994 level; the rate of natural tog harvest was over three times the sustainable rate; the impact of high resources utilisation has reduced the available year s of resource to about twelve; there appears to be no reason to assume that the cut in 1996 will not be higher than the 1995 level.

109

AUSAID has funded forestry studies by consultants which have been the basis for the concern expressed about logging practices: ‘Solomon Islands Forestry’, Background Briefing, ABC Radio, Jan. 1996.

110

1995 Forestry Review, above, n. 108, at ii.

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to gaining contracts to extract timber from local communities. The importance of this sector can be seen from the community perspective, as Solomon Islands people regard forests and associated habitat as their most important resource in terms of wealth creation and subsistence. Forestry also provides a substantial part of foreign exchange earned.111 The major legislation controlling the forestry industry in the Solomon Islands is the Forest Resources and Timber Utilisation Act 1970. The Act has been amended a number of times but is still described as ‘an Act directed primarily at exploitation of the forest resource, rather than one of sustainable management’.112 Under a 1984 amendment the role of Area Councils to decide timber rights on customary land was established and environmental protection provisions were added. The developer had to agree, amongst other things, to conserve river catchment areas, prevent soil erosion and preserve the environment, and sacred and historic sites.113 Major amendments were made in the 1990 to implement new procedures for the acquisition of timber rights on customary land. The procedures are complicated and require, in brief, that the developer apply to the Commissioner of Forest Resources to negotiate with the Provincial Executive, the Area Council and the customary landowner. Procedures for decision-making are set out. There is an appeal to the Customary Land Appeal Court for those persons who disagree with the Area Council decisions about who the rightful timber owners are or the nature of the rights granted to the developer. The developer, the Provincial Executive, the Area Council and the customary landowners are given the right to obtain advice from the Commissioner for Forests.114 The High Court in Honiara has exclusive jurisdiction to hear disputes about agreements entered into between the developers and customary landowners. Logging operations on customary lands are required to be conducted under the Standard Logging Agreement specified by regulation.115 The Agreement includes environmental protection provisions such as the preservation of trees along watercourses, limiting the slopes on which logging can take place and requiring reforestation of at least one third of the land logged.

111

PDP Australia, above n. 91, at x, 30–32.

112

Boer, above n. 100, at 80.

113

Boer, Ibid., at 80–81, sets out the history of amendments to the forestry laws, many of which related to establishing procedures to regulate forestry on customary land. The 1977 amendment first addressed this issue and provided that the Commissioner of Forests had to give consent to the developer carrying out negotiations with customary owners. A local Area Committee had to decide whether the persons granting the development rights were the people with lawful title.

114

A number of problems with the system have been identified in Solomon Islands Ombudsman reports.

115

Forests and Timber (Prescribed Forms) (Amendment) Regulations 1985. 265

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Boer identifies a number of major problems with the current system for the management of forests that are due to the inadequacy of the legislation and the administrative processes surrounding it.116 A few of the issues he identifies are highly relevant in that they emphasise the difficulty of decision-making and access to justice issues for customary landowners in a developing country where development pressures from foreign interests are considerable. Boer is critical of the fact that Area Councils are not required to have particular knowledge of customary land rights in their areas or the right to attend timber rights hearings where there is a dispute about who are the true owners. The requirements that such knowledge be available were removed in the 1990 amendments.117 Another substantial practical impediment is that the High Court of the Solomon Islands, based in Honiara, is the only court with jurisdiction for disputes under the Standard Logging Agreement. In a country where long distance communication can be difficult, this clearly disadvantages the customary landowners who may live at a considerable distance from Honiara. The developers on the other hand are likely to have Honiara-based lawyers as well as an office.118 These impediments also apply to prosecutions in relation to the Standard Logging Agreement which must also be commenced in the High Court by lawyers in the Attorney-General’s department. Another area of concern is the lack of environmental impact assessment procedures under the forestry legislation. The provisions require that the developer investigate and define those areas which should not be logged on social or environmental grounds.119 Boer rightly criticises these provisions as unlikely to show the true impact of the development on the environment. As the assessment is made after agreement with the timber rights owners it is also too late to provide useful information to better enable those owners to decide the full impact of a logging agreement. Another major problem areas which Boer notes is that the Provincial Authorities may well have a conflict of interest in investing as a joint-venture partner in logging operations which they are also supposed to have a hand in regulating.120

116

Boer, above n. 100, at 86–93.

117

Ibid., at 86.

118

There are approximately 20 private lawyers in Honiara, many of whom are on retainer to foreign logging companies. There are no private lawyers located outside Honiara. The only other lawyers permanently in the Solomon Islands are found in the Public Solicitor’s Office which has five lawyers in Honiara, one in Malaita and two in Gizo. Personal communication, Lisa Ogle, Senior Solicitor, Environmental Defenders Office, Sydney, Jun. 1997.

119

Forest Resources and Timber Utilisation Act, s. 5C(v).

120

Boer, above n. 100, at 89–91.

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Ombudsman and other reports on forestry practices in the Solomon Islands focus particularly on the difficulties for customary landowners in pursuing legal remedies under the Forests Resources and Timber Utilisation Act. Causes of action available to landowners include trespass and conversion, improper granting of licences, breaches of the Standard Logging Agreement, disputes on royalty entitlements between communities and torts for public nuisance for persons not a party to the contract.121 The most common cause of action against logging companies is challenges for invalid issuing of licences. The facts of these cases suggest the difficulties landowners face. Area Councils appear open to manipulation by timber companies and the national government has amended the forestry legislation to try to reduce the number of successful challenges by landowners against licences issued by Area Councils that do not follow legislated procedures. Following the issue of an interim injunction to customary landowners, timber companies are able to successfully settle the litigation, using financial and other inducements. This is done in such as way that negotiations with the Public Solicitor’s office or private lawyers is avoided.122 (d) Access to the law The situation described in numerous Ombudsman’s reports, and by lawyers working in the Solomon Islands as Volunteers Abroad, appears serious in terms of the complete inadequacy of the legal resources available to landowners. The difficulties identified include the substantial ignorance of landowners about the forestry legislation and the availability of legal remedies, major impediments in getting legal advice and representation because of the lack of lawyers in physical proximity to landowners, and the lack of lawyers willing to undertake legal work for landowners. For example, the Public Solicitor’s offices123 employ few lawyers and are not located in all provinces. There is far too much work with a waiting list of four months for an appointment, making representation in logging disputes requiring urgent injunctions unlikely. Communities have trouble affording local lawyers because of their high fees. Some foreign lawyers have been briefed in some cases but this presents logistical, amongst other, problems. Logging companies on the other hand brief local lawyers constantly.

121

E.g., Report of the Ombudsman for the Year Ended 30 June 1990, at 11–19, dealing with Forests and Timber.

122

Ibid.

123

For a description of the role of the Public Solicitor, see Brown, K., ‘The Public Solicitor’s Office in Solomon Islands’, in Powles, C., and Pulea, M., (ed.), Pacific Courts and Legal Systems (Suva, University of the South Pacific, 1983). 267

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VII. CONCLUSION The issue of access to environmental justice in the South Pacific raises many similar issues to those in other developing countries. It is how these various factors combine in the region which makes their circumstances unique: the relatively small size of states in the region; reliance on natural resources; subsistence economies relying on resource extraction to generate national income; development pressures from foreign commercial interests; developmental pressures on customary laws; and conflicting aims of customary landowners and national governments. There are clearly many factors influencing access to environmental justice as well as how the legal system operates. This chapter has focused particularly on access to the legal system as one means of ensuring access to environmental justice. Environmental litigation is an important remedy for private citizens and organisations. It encompasses many forms of action, whether statute- or common-law based. The practical implementation of rights requires that there be gateways open in both a legal and practical sense for those rights to be exercised. The many hurdles to litigation discussed here demonstrate the commitment necessary by community members, NGOs, public interest lawyers and, ultimately, governments to support this kind of litigation. The case studies highlight the many problems in accessing court systems. The situations surrounding the Ok Tedi and Panguna mines in PNG demonstrate the considerable problems which can result from inadequate or no environmental impact assessment processes. There has consequently been no opportunity for public participation in these government decisions, a basic prerequisite to any system providing access to environmental justice. In both cases, a very large development has proceeded over several decades with no public participation or environmental impact assessment process to assist in alerting all affected landowners to potential problems and the mine owners to their environmental responsibilities. These circumstances also underscore the ineffective nature of a constitutional environmental right that is not enforceable by individuals, and which the national government can choose to ignore. The lack of access to the court system by affected individuals is also a stark demonstration of customary landowners’ lack of redress in the face of foreign development, particularly where this is conducted with national government encouragement and participation. The different responses in the two cases is also interesting to note. In the Ok Tedi case, proceedings were commenced in the home jurisdiction (Australia) of the major foreign company shareholder. This can be seen as indicative of problems in pursuing redress through the PNG national court system. In the Panguna case, tension over the operation of the mine was a catalyst to civil war, reflecting the considerable unrest between Bougainville’s indigenous population and the national government in Port Moresby. 268

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The particular challenge for a country such as PNG is whether the national government pursues national development in such a way that the rights and needs of local populations are not ignored. An appropriate framework of rights would see greater provision for genuine public participation, essential to the implementation of human rights and sustainable development, and hence greater opportunity for access to environmental justice within the country. The settlement of the Ok Tedi litigation has been viewed as significant for international mining ventures in developing countries generally; the tendency for major environmental disputes to become transnational has already been noted. As well as other major projects in PNG being subjected to greater scrutiny and criticism, such as the Porgera gold mine124 and proposed Lihir island mine, projects such as the Freeport gold mine in Irian Jaya, Indonesia, are also receiving substantial attention in the international press. The majority owner of the Freeport mine is a US company, Freeport-McMoran Copper and Gold Inc. (82%) with the Indonesian Government and an Indonesian company, PT Investama Copper, owning 9%.125 A court action has been commenced in New Orleans under the Alien Tort Claims Act (USA) by a landowner near the Freeport mine alleging infringement of human rights and environmental amenity.126 The difficulty of implementing sustainable development principles in the Solomon Islands is apparent from surveying arrangements for forestry. This difficulty is also reflected in problems for citizens seeking environmental justice in relation to the control of their own natural resources. The necessary balancing of local and national priorities in terms of the utilisation of resources does not appear to be occurring as it should in the area of forestry. While this raises the question of the sovereignty of the national government to manage the country as it deems appropriate, the local interests of customary landholders are also important. The rights of local communities to achieve development in a sustainable and environmentally sound manner must be balanced with the national interest. The situation where there is potential for conflict between national and

124

A claim for damages has been filed in the National Court of Justice in PNG in relation to the discharge of mine waste from the Porgera mine into the Porgera river. Three foreign companies and the PNG government are equal partners in the venture: Cameron and Ramsay, above n. 83, at 36.

125

Ibid., at 37.

126

‘Business Report’, ABC Radio National, 14 June 1996. Other cases referred to by Cameron and Ramsay, above n. 83, at 2 which lie outside the scope of this paper but reflect disputes of a similar character are: international criticism of the Shell Oil Company for its operations in the Ogoni region in Nigeria where protection from the Nigerian government has extended to the sentencing to death of the environmental activist Ken Saro-Wira on the grounds of treason for his efforts in opposing the Shell development; and a suit filed against Texaco in New York by lawyers acting on behalf of indigenous Indians from Ecuador, claiming damages for harm caused by oil drilling operations. 269

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local interests suggests the usefulness of a rights framework for citizens. The need for such a framework is not readily apparent in a country where there is a very high rate of customary ownership of natural resources. However, when there are significant foreign interests engaged in the exploitation of natural resources such that customary controls on development are not relevant, environmental rights for communities are likely to be more important. Experience in the Solomon Islands therefore suggests this support for customary landowners is lacking, leading to major problems for ensuring environmental protection and sustainable use of resources. The legal mechanisms available to local communities to pursue an environmental right through the judicial system are limited. The legal and administrative arrangements are clearly unsatisfactory and ill-suited to the practical realities of the Solomon Islands. Environmental laws are inadequate in the face of unsustainable practices, whether these be from local or foreign pressures. The Solomon Islands government clearly faces significant challenges if it wishes to seriously implement sustainable development. Formalisation of public participation opportunities within the legal system would be an important step in allowing greater scrutiny of government decision-making. This must be backed up by the provision of the practical means for local populations to participate. Access to environmental justice for citizens in some countries in the South Pacific is a continuing battle in circumstances where national governments do not provide access to an independent legal system able to ensure that national governments act in accordance with the law. The problem is all the greater where those national laws are inadequate in providing meaningful rights to participate to citizens, whether in the constitution or in environmental laws.

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Chapter 10

ACCESS TO ENVIRONMENTAL JUSTICE AND PUBLIC PARTICIPATION IN THAILAND Thawilwadee Bureekul 1

I. INTRODUCTION

T

hailand has for a long time faced many environmental problems, especially in terms of degradation of natural resources and pollution. It was not until 1972, after participating in the Stockholm Conference on the human environment, that the government recognised the need for environmental management by establishing the Office of the National Environmental Board. This was the first government organisation responsible for dealing with the country’s environmental problems. Before this, environmental laws and regulations, all of which were the responsibility of the Royal Forestry Department, Ministry of Agriculture, were only for protection of the forest and wild animals. Despite environmental laws, environmental problems have increased due to the combined effects of industrialisation and economics as well as population growth. As a response, an environmental movement has formed in Thailand. The export-oriented government policy of the 1980s raised controversy about resource degradation as increased resource extraction and new agro-industry affected rural areas in unprecedented ways. Resource conflicts among many groups of people resulted from, for example, rock-salt mining in the North East of Thailand, export-oriented prawn farming in the South, and land speculation associated with tourism and industrial development throughout the country. New settlements in forests, extensive deforestation and commercial eucalyptus plantations also led to many conflicts between people and government agencies.

1

KPI. This chapter is an updated and revised version of the same author’s ‘Public Participation in Environmental Management in Thailand’, in Sampford, C. et al. (eds), Asia-Pacific Governance: From Crisis to Reform (Basingstoke, Ashgate, 2002). The editor would like to thank Ashgate Publishing for their permission to reprint this piece.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 271–287 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

One of the most important environmental conflicts, which received much public attention, was the construction of the Pak Moon dam, as a result of which villagers were resettled in less fertile areas without adequate compensation. In the 1980s the government project to build the Nam Choan Dam in Kanchanaburi province’s Thung Yai Naresuan wildlife sanctuary was widely opposed. The long period of public participation in opposition to the construction of this dam, which eventually ended with the victory of the project’s opponents, became a significant force in Thailand’s environmental movement.2 This event can be said to be the first record of public participation in environmental management in Thailand. Since then, many environmental movements have brought the force of public participation to bear on government development projects. Thai governments have recognised the importance of participatory democracy as a means to good governance since the democratic uprising in May 1992. Moreover, the concept of sustainable development accepted at the Rio Conference in 1992 was imported into the Enhancement and Conservation of National Environmental Quality Act 1992. This Act also calls for public participation in environmental management. In addition, the Constitution enacted in 1997 is called the ‘participatory’ and the ‘green’ constitution because public participation was included during the drafting process, and it is also the first constitution to express fundamental environmental principles.3 The Official Information Act 1997 also emphasises the public right to information, and the Prime Minister’s Office Regulation on Public Hearing 1996 is widely adopted as means to public participation. The Public Hearing Regulation 1996 is also used as instrument for public participation in many development projects that may affect the quality of the environment. Since the drafting of the 1997 Constitution, people have more awareness of participatory democracy. This has led to a higher demand for public participation than before. Public hearing activity is believed to be an effective channel for public participation and is being widely employed by many state organisations. Although public participation is becoming more active, some problems concerning the application of public participation in the Thai context still exist. (a) Definitions, methods and processes in public participation are not clear. There is confusion between the meanings of ‘public participation’ and ‘public hearing’.

2

Hirsch, P., ‘The Politics of Environment: Opposition and Legitimacy’, in Hewison, K. (ed.), Political Change in Thailand: Democracy and Participation (London. Routledge, 1997).

3

The 1997 Constitution was replaced by an Interim Constitution as a result of the military coup in September 2006. A new constitution is being drafted which is expected to resemble closely the 1997 provisions.

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(b) A public hearing is normally held after a decision has been made, and misuses of public hearings sometimes cause conflict between government and local people or between interest groups. (c) Formal public participation is perceived to be a government tool for advancing government policies. This chapter intends to explain public participation in environmental management in Thailand by considering the concept of public participation, historical events, legal framework and factors affecting public participation.

II. PUBLIC PARTICIPATION Before further discussion, the concept of public participation should be identified. A description of methods and processes of public participation will help clarify this concept. In this chapter public participation is defined as the process by which the views and concerns of the public or stakeholders are identified and incorporated into government policy-making and decision-making. It is open, ongoing, two-way communication, both formal and informal, between proponents of a policy, i.e. the government, and the public. It includes open information sharing with stakeholders. Effective public participation requires three kinds of communication between proponents and the public: (i) Input from public groups or individuals with the aim of explaining the nature of each public input, and expressing public knowledge and perception of issues to the proponents. (ii) Output of technical information about the issues from the proponents provided to the public. And (iii) Exchange of information, perceptions and values between the proponents and the public and among various public groups and individuals. Public participation gateways can be classified into legal and informal methods. Legal gateways are those provided as basic rights through the Constitution: for example, the right to know (access to information), the right to freedom of expression, and the right to association, can all be exercised as citizens pursue their right to a healthy environment. Informal gateways are extra-legal forms, for example, education (newsletters, workshops, seminars, exhibitions, campaigns, etc.); direct pressure (demonstrations, petitions, complaints, etc.); lobbying (public hearings, consultation, roundtables, etc.); services (hotlines, information centers, cooperative networks, etc.); and complementary or semi-legal forms

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(public hearings on environmental impact assessment, post-project monitoring, and citizen committees). In the past, environmental management in Thailand was the responsibility of the government. Policies, strategies and enforcement activities were thus in the hands of government officials. The people only had to comply with all related laws and regulations. At present Thai people enjoy more rights concerning environmental management, including resource management and pollution control, than they had in the past. For instance, the new Enhancement and Conservation of National Environmental Quality Act was amended in 1992, and since then other laws and regulations, most importantly the 1997 Constitution, concerned with public participation have been promulgated. Thailand’s core laws and regulations concerning the rights of citizens in public participation about environmental management are worth examining in some detail. (a) Enhancement and Conservation of National Environmental Quality Act 1992 Sections 6 and 7 state that for the purpose of public participation in matters concerning the enhancement and conservation of national environment quality, the people have rights to be informed and to obtain information from the government service. In addition, to encourage public participation in the promotion and conservation of environmental quality, non-governmental organisations (NGOs) shall be entitled to register with the Ministry of Science, Technology and Environment for environmental protection and conservation of natural resources. According to the 1992 Act, the people are not able to use their rights as private individuals: their rights must be used via NGOs. This method does not work well because the communication path to transfer information to the decisionmakers may be distorted. In addition, people’s rights are not defined clearly and do not conform with the Constitution in respect to the right to know, the right to access public information, the right to monitor and audit the quality of the environment, and also the right to ask for a public hearing. Many organisations are now working together to amend this act. (b) Official Information Act 1997 This Act was promulgated to conform with the principle of the recognition of the public’s right to know and to have extensive access to official information. The people have the right under this Act to access official information concerning any development project which may affect them, their communities, and environment, except for information which would jeopardise national security, international relations, or national economic or financial security if it was disclosed.

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The Act is quite new to the public and not many people know how to access official information because, in the Thai bureaucratic system, official information is not easily obtained by the public. This position reflects many government officials’ perception and is thus quite difficult to change. (c) The Constitution The Constitution of the Kingdom of Thailand 1997 was enacted on 11 October 1997 in fulfilment of the principle of implementing a democratic regime of government. The Constitution was changed in response to broad demand for political reform and public participation in governance and in the inspection of the exercise of state power. Another factor behind this change was the desire to improve political structures to achieve more efficiency and stability. This Constitution is different from previous constitutions because it includes the principle of environmental management. The government has changed from having exclusive responsibility in environmental management to encouraging and supporting environment management through three basic principles: (i) conservation and utilisation of natural resources and biodiversity consistent with the principle of sustainable development; (ii) control and abatement of pollution that affects public health and quality of life; and (iii) public participation.4 In Thailand, many groups of institutions have to coordinate with each other in order to conserve natural resources, the environment and biodiversity. Those groups of institutions are the national government, local government organisations, traditional communities, non-government organisations, education organisations and citizens. The Constitution defines ways in which these groups are to participate. (i) The Government The Government has a duty to promote public participation in environmental management according to sections 76 and 79. (ii) Local government organisations Local government organisations also have roles in participating in environmental management, according to section 290. They have the duty to consider any 4

Verawat Papussaro and Wat Tabungarn, ‘Constitution and Related Laws in Environmental Management and Role of Citizen in Environmental Protection’, in Environment in Constitution: Transfer Concept into Practice (Department of Environmental Quality Promotion, 1998) (in Thai). 275

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project or activity inside, and in some situations outside, the area of the locality that may affect the quality of the environment, health or sanitary conditions of the inhabitants in the area. (iii) Traditional communities Many development projects have impacts on traditional communities; therefore section 46 provides for the participation of such communities. Traditional communities have the right to conserve or restore their customs, local knowledge, arts or good culture of their communities and of the nation, and to participate in the management, maintenance, preservation and exploitation of natural resources in a balanced fashion and persistently as provided by law. (iv) Non-governmental organisations The Constitution sees the importance of the right of association (section 45) and of the significant role independent NGOs can have in environment management (section 56). A person shall enjoy the liberty to unite and form an association, league, co-operative, farmer group, private organisation or any other group. A person also has the right to participate in the preservation and exploitation of natural resources and biological diversity and in the preservation of the quality of the environment. Any project or activity which may seriously affect the quality of the environment shall not be permitted, unless its impacts on the quality of the environment have been studied and evaluated and opinions of an independent organisation, consisting of representatives from private environmental organisations, and from higher education institutions providing studies in the environmental field, have been obtained prior to the operation of such project or activity. Moreover, the studies and opinions of independent organisations concerning environmental management are to be recognised and employed as useful sources of information in government decision-making. (v) Citizens The most important group is the Thai citizens as a whole. The Constitution gives citizens the right to receive information, explanations and reasons from state agencies before permission is granted for any project that may affect quality of the environment (according to sections 58 and 59). In addition, the new constitution also guarantees the right to petition according to section 170, in that citizens can propose a bill for consideration in the National Assembly by submitting a petition bearing not less than 50,000 voters’ signatures. (d) Public Hearing Regulation 1996 A public hearing is a process where members of the public are given an opportunity to make suggestions, present information, pose questions to others, 276

10. Access to Environmental Justice and Public Participation in Thailand

and give their opinions on implementation of a project, so that a decision can be made on the basis of objective facts.5 The Public Hearing Regulation 19966 was enacted by the Secretariat Office of the Prime Minister in order to act as a guideline for arranging public hearing activities. It includes principles and processes in public hearings for the formal discussion of national problems. The purpose of this activity is to collect useful information from stakeholders for government decision-making. Since 1992 many public hearing activities have been arranged, many of these relating to huge development projects with potential effects on the quality of people’s lives and the environment. Public hearing committees are appointed under this Regulation. Members are selected from the ranks of well-known academics, members of parliament, representatives from the Council of Lawyers, and some technical experts. Their responsibilities are to monitor the process of listening to the public via public hearing activities, setting up public hearing processes, and preparing reports on public hearings for the Cabinet. The principles and processes for conducting public hearings are quite complicated; for example, basic information of the project has to be prepared, public hearing committees have to be selected and the processes of public hearing have to be followed. There must be public relations processes concerning the activity. All basic information has to be announced, such as the appointment of committees; topics for the public hearing; a summary of proposals by all related organisations; the timing of the activity and the registration period; venues for registration; how to provide information to the committees; and the characteristics of people that can register to join the activity. Representatives from all stakeholder groups are to be invited to express their ideas. Names and addresses of representatives and topics for discussion have to be submitted to the committees in advance. Experts from relevant state organisations are to participate in the activity in order to answer questions and inform the public about the project. The Chairman of the committee will arrange the schedule of activity. When appropriate, the Chairman can permit live radio or television broadcasting of proceedings to the public. After the hearing, the committee meets to reach decisions on the issues discussed in the hearing. This process has been criticised as a government tool for railroading projects and claiming that public participation is included in the decision-making process in case disputes occur. Sometimes public hearing activities are arranged only after problems have already arisen. Whether this happens depends on to what

5

Kanchanasuwon, W. and Hurt, P., ‘Fair Say or Force?’, Bangkok Post, 23 April 2000, p. 4.

6

This Regulation was replaced by the Public Consultation Regulation 2005, which increases the extent of public participation in decisions concerning development projects. 277

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extent the Government and the owners of the projects realise the importance of public participation. Since the enactment of the Public Hearing Regulation 1996 (even before the promulgation of the Constitution in 1997), there has been great demand to change the regulation into a new Public Hearing Act or Public Consultation Act, so that it can be widely used throughout the country. The draft of this new Act is presently being considered by the Council of State before being passed to Parliament. However, many organisations find it is important to have a Public Participation Act in order to comply with the Constitution (since in the Constitution, there is no clear concept of public participation, and this causes conflicts among the stakeholders of many development projects).

IV. CASE STUDY: HIN KRUD POWER PLANT From the above-mentioned laws and regulations, it seems as if Thailand has paid attention to public participation for many years. However, there has been more failure than success in trying to encourage public participation. Many pending development projects, such as Bo Nok power plant, and Kang Sue Ten dam, are evidence of such failure. The case study (Hin Krud Project) and the summary of major factors affecting the success or failure of public participation in environmental management in Thailand will help reveal the extent to which participatory democracy is achieved through public participation activities. (a) The project The 200-hectare Hin Krud project is one of two coal-fired power plants (the other is the Bo Nok project) planned by the Government (Cabinet approval was given on 31 May 1994), and to be located in the coastal area of Prachuabkhirikhan Province, in the upper Southern part of Thailand. Bituminous coal will be used to fuel the 1400 MW (2 x 700 MW) plant. There will be a port for transporting coal from ships to the power plant buildings. The port’s jetty will extend 3.5 km into the Gulf of Thailand.7 Union Power Development Co. Ltd. (UPDC), a company with major shareholders from Japan, Finland, Hong Kong and Thailand, proposed the Hin Krud project when private organisations were invited to invest in the Independent Power Producer (IPP) project in 1994 as an attempt to lower government investment. The Electricity Generating Authority of Thailand (EGAT) selected and signed an agreement with the project in 1997. The EIA for the Hin Krud project presented by UPDC was approved by the Ministry of Science, Technology and Environment (MOSTE) in 1998. In August 7

Union Power Development Co., Ltd., Summary Report on ‘Hin Krud’ Coal-Fired Power Plant (Bangsaphan, Prachuabkhirikhan, 1999).

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1998, some academics and villagers protested the construction of this project because they found that there is a nearby coral reef, not shown in the EIA report, which should be preserved. An additional EIA study on marine ecology was conducted by a different consultant and submitted to MOSTE in August 1999. Responding to disputes between supporting, opposing and neutral factions in the public, and widespread concern about the potential impact of the power plant, the Government demanded public hearing activity to reduce public tension. Some members of the public also demanded public hearings in a call for compliance with the Constitution’s provisions on public participation, and as a way to express their opinions. The hearing was arranged for 24–25 February 2000. A public hearing for Bo Nok had been held in late 1999. As with Hin Krud, government approval for Bo Nok was given before the hearing. At Bo Nok, the local people strongly objected to the power plant and there was violent argument and protest in the region. Since the hearing there have been no announcements of hearing results or further Government decisions concerning the Bo Nok project, although the public hearing report has long been in the Government’s hands. Some people in Hin Krud feared that there would be no Government decision about the project as a result of the public hearings, just as in Bo Nok. Possibly with this in mind, several local people chose to engage in informal public participation activities arranged by local groups, the media, contractors and NGOs. These informal activities included community meetings, television broadcasts and seminars. (b) Public hearing activity The Government set up a public hearing committee of eleven members in February 1999 in order to comply with the Public Hearing Regulation 1996. The Chairman was Professor Dr. Sippanond Katudhat, a well-known academic and former minister in many ministries. The members include a senator, lawyers and academics.8 Since there were two power plants projects (Bo Nok and Hin Krud) in the province concerning which this committee had to organise public hearing activities, the public hearing about Hin Krud Power plant was held after the Bo Nok hearing. Although the two public hearing activities are over, local conflict still occurs and is difficult to resolve.9 Former allies have become foes. There were 9,252 people registered to participate in the Hin Krud public hearing on 24–25 February 2000. The large number of registrants caused a problem for the organisers because there was no suitable conference room for

8

The Secretariat of Public Hearing Committees of Prachuabkhirikhan, ‘Important Information for Public Hearing, Hin Krud Coal-Fired Power Plant’ (2000) (in Thai).

9

(in Thai, accessed 20 Nov. 2002). 279

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this activity. The largest air-conditioned conference room in Prachuabkhirikhan could accommodate only 200 people. Therefore representatives from each group of stakeholders were selected to sit in the meeting room to express their ideas. The rest had to follow proceedings on radio or television, either outside the conference facility or at home. Proceedings were televised in the South for the full two days of activity, although only the first four hours of the first day’s activity were televised in other parts of Thailand. Before the day of public hearing, there was a great deal of activity by stakeholders. Some groups used mass media for expressing their ideas. The UDPC representative also expressed his opinion to the media that this project would certainly be continued. At the same time the representatives from local communities and NGOs rallied at the Ministry of Industry and MOSTE to submit information about the adverse impacts of power plants on communities. Furthermore, an unidentified gunman shot one community leader who protested the project. Fortunately, the victim was not hurt. One day before the hearing many hundreds of policemen with police dogs inspected the conference room and the surrounding area for bombs, and on the days of the hearing many groups of people gathered around the public hearing area. Approximately 700 policemen were assigned to surround the conference room and prevent outsiders (non-registered people) from entering the area. Approximately 1,000 ‘villagers’ dressed in green T-shirts symbolising the environmental conservation group came to the public hearing area with hundreds of green flags and national flags (after interviewing some people, the author found that some of them were from Bo Nok). This group did not participate in this hearing and was not allowed to enter the hearing area. The group sent representatives to submit an open letter to the chairman of the public hearing committee. Bo Nok people submitted a letter asking for the Government’s decision on the Bo Nok power plant; Hin Krud people submitted a letter expressing their opinion about the Hin Krud project. All of these people said that they could not accept this public hearing because they believed that public hearings should have been conducted before the Government signed the agreement with UPDC. Moreover, hundreds of fishermen sailed their boats to the public hearing location, which is close to the sea, to protest. More than 200 fishing boats, all decorated with green and national flags, lined up in front of the meeting location. Some representatives of this group, led by the head of the local housewives and the leader of the local municipality, used loudspeakers to voice their ideas about the impacts that might affect them and the environment. Hundreds of policemen lined up in front of this group and tried to prevent them and other local people dressed in green from entering the meeting area. Among the people in the conference room were public hearing committee members, technical consultants and observers from related government organisations, local government officials, contractors and technical advisors (mainly

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university instructors who worked part-time as private consultants) members of the mass media, and citizens who either supported or objected to the project. The conference room was divided into two parts. One part was for committee members and their technical consultants. This group (around 30 persons) occupied nearly half of the room. The rest of the space was for the team of contractors, their technical consultants and interested people. The chairman let the people who supported and objected to the project express their ideas and ask questions to the contractors and government agency representatives. Some technical consultants to the committee used technical words that the local people could not understand. One teacher from Hin Krud was selected by the objecting group to present information that was not stated in the EIA report, such as ecological system data. Many Hin Krud villagers who opposed the project and were entitled to participate in the hearing attended for only one day or did not attend at all because they did not trust the organising agencies or the committee. On the second day of the hearing, few people expressed opinions or asked questions and the chairman had to close the meeting two hours before the official closing time. No one wanted to talk further because there was a feeling that the committee could not be trusted any more.10 Some of the people felt that the chairman already had a proposal in mind and was simply using the hearing to convince people to accept his alternative. Although this hearing was organised by the Government to obtain information for submitting to the Cabinet, surprisingly, so far no member of the Cabinet has expressed any opinion about this project. The committee concluded that a clear decision could not be made as to whether or not the power plant should be constructed at Hin Krud. The committee also made some recommendations for the contractors’ consideration, such as the study of the coral reef, the construction of wind shields to prevent the dispersion of coal ash, the establishment of funds for Hin Krud human resource development and for the rehabilitation of the environment and the establishment of short and long term plans to reduce environmental impact.11 From participant observations, it appears that the chairman of the committee tried to convince the people to accept the project and proposed compromises. The contractors accepted the chairman’s idea and proposed the donation of 30 million baht ($725,000) per year to the village fund for occupational support such as training. Moreover, a tripartite group (villagers, contractors and Government) was established to monitor the project and administer the village

10

‘Public Hearing: Hin Krud Coal-fired Power Plant: Beautifully Ended?’, Matichon 28 Feb. 2000, p. 7 (in Thai).

11

‘Trend of Hin Krud Coal-Fired Power Plant: Public Hearing’, The Manager, 25 Feb. 2000. 281

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fund. However, some groups of people still objected to the project because they did not want the power plant in the area. These people felt that the money alone would not compensate for the damage caused by the plant. All groups waited for the Government’s decision on this project and finally on 24 January 2002, the Prime Minister Thaksin Shinawatra visited both sites and decided to delay the project in order to carry out an investigation based on justice and fairness ( according to the Announcement of the Office of the Prime Minister, 10 May 2002). Finally on 21 February 2003, the Government decided to move the Hin Krud power plant to another province (Ratchaburi, West of Bangkok).12 Instead of coal, the new power plant will use natural gas as fuel. However, many people in Ratchaburi do not enjoy the prospect having a power plant in their province, since they had not been informed at earlier stage. (c) Conclusion Although a public hearing should resolve the dispute, in the case of Hin Krud it clearly did not. A key problem is that the government had approved the Hin Krud project before the public participation process was conducted. Government agencies such as EGAT and MOSTE should be responsible for their negligence in failing to honor the public’s right to know.

V. MAJOR FACTORS AFFECTING PUBLIC PARTICIPATION The Hin Krud case study is a typical example of how, in the Thai experience, public participation in environmental management has failed to produce stakeholder satisfaction, and indeed has even increased conflict. Since Thailand is still in the process of learning about participatory democracy, the factors influencing the success or failure of public participation should be identified to help illuminate the real situation and push Thai society forward in democratic development. Study of historical events indicates that the major factors are legislative and institutional. (a) Legislative factors While public participation has been practised in community activities for many decades, national level public participation is a newer phenomenon. Laws and regulations to support the people’s right to public participation have been in place for a relatively short time. These laws should encourage people to express their views through public participation channels. Though the new Constitution

12

(in Thai, accessed 11 March 2003).

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and associated laws emphasise public participation, people and interest groups are still learning how to use the laws to their advantage. (b) Government policy commitment Government policy commitment is important for public participation. If the Government is concerned about the issue, relevant laws and regulations are enforced, and public participation is encouraged, then the level of public participation should be increased. The more the Government responds positively to the demand for public participation, the higher the level of participation should be. In the Thai situation, when there has been demand for formal public participation, the Government has normally responded negatively. This suggests that, despite laws and regulations that call for public participation, the voices of local people have not been of much concern to the Government. Moreover, the formal public participation method is not clear in Thailand. Public hearings are therefore widely used but in both correct and incorrect ways. Arranging public hearings is also costly and time-consuming. The Government will respond positively to demand for public participation when a problem becomes a significant public issue. Some government organisations, however, arrange public hearings even without great public demand in order to minimise future conflict. When the Government rejects formal public participation there is greater pressure on the people, which causes them to organise critical mass. When formal public participation cannot be arranged, the people arrange informal activity instead in order to bring pressure on the Government. When there is pressure from a critical mass of people, it is likely that the Government will permit formal public participation, in turn putting pressure on the public to abandon informal public participation. When formal public participation is arranged, the public demand for informal activities is lower. Many cases such as hazardous-waste site selection, and the construction of hydroelectric dams and coal-fired power plants, exhibit this dynamic cycle. Government policy and the Government’s degree of commitment to public participation thus help determine the character of public participation. (c) Culture Aspects of Thai culture that affect the success or failure of public participation include problem awareness, compromise orientation and trust. (i) Problem awareness People living in small, rural communities enjoy greater access to information than they have had in the past. Links to media are stronger with widespread television and radio services and even newspaper delivery. Personal communication is

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made easier through increasingly available telecommunication systems. Many villagers are able to receive new knowledge and ideas from outside sources such as NGOs and also state officials. The more information people can access, the higher the environmental management awareness they can have. Traditionally, Thais as a largely rural and agricultural people have had a close relationship with the environment. Buddhism has many tenets that are consistent with environmentalism. Even today, many villagers earn their living from nature in some way, and nature holds symbolic value in their communities. Therefore, as people develop more problem awareness, environmental awareness and political articulation, their level of participation should increase. In some cases, such as the Nam Chon Dam,13 the changing of Lumpini Recreation Area in Bangkok to be a garage for skytrains, and the road in Tung Yai Wildlife Sanctuary, people who exhibited high levels of public awareness and engaged in determined protest, have successfully resisted development projects. (ii) Compromise orientation and trust Trust is necessary for cooperation. Trust depends on how well individuals respect other people’s rights, the extent to which the sectors perceive one another in the community, the similarity of perceptions between groups, and the accuracy of groups’ perceptions of each other. Research on this project undertaken by the author found that the level of public participation increases as the degree of trust increases. At the start of the process, if some people in government and some experts do not fully trust the citizens, there will never be strong public participation due to the skepticism about giving citizens a powerful role to play in the participation process. Moreover, citizens’ views on trust change slightly throughout the process of participation, because those views depend on the extent to which the Government and other groups trust the citizens. Citizens’ trust in the Government may improve if they are provided with satisfactory and accurate information. Some project owners (such as in the Hin Krud case) hire local people as public relations officers to provide information about projects to other people in their communities. Personal familiarity with the project staff lessens suspicion about the information and trust concerning the project increases. Compromise may also become easier to reach. In addition, outside experts are generally employed to build higher trust among the citizens because citizens have tended to believe experts, although some experts do play political games with scientific information. However, since the Hin Krud case, the public has become more suspicious of experts’ technical reports and compromise has become more difficult to reach. In the absence

13

Hirsch, above n. 2.

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of trust, some people think that Government-organised public participation activities do not allow the public to influence decision-making. The effect of lack of trust is illustrated in the examples of Hin Krud villagers not actively participating on the second day of hearings and of those who abstained from the public hearing altogether. (iii) Public participation factors The success or failure of public participation also depends on how well public participation activities are organised. Time, duration, venue, method, processes and public relations are examples of factors related to the organisation of public participation activities. Many public hearing activities are organised on workdays, so many people are unable to participate. The facilities are sometimes inappropriate, for example, conference rooms that are too small to accommodate all registered stakeholders. (iv) Access to Information Information about the proposed projects must be available for stakeholders to take part in decision-making. According to the Constitution and the Official Information Act 1997, the public has right to know or access official information, but in Thailand, some officials are not accustomed to this new system and do not disclose useful information. When the information is available, it has always been made available too late. In the past, EIA reports were not available to the public. At present, it is suspected that reports are not really easily accessible. Hin Krud is a prime example of poor public access to information. The contract was signed and construction had begun before people learned any details about the project, and before any public hearing was held. Project information, when available to the stakeholders, is often too technical to be easily understood. Stakeholders cannot properly evaluate the information. Technical consultants should be provided to help people understand the projects better.

VI. CONCLUSION AND RECOMMENDATIONS The public participation concept is becoming more accepted as an essential part of policy, program and project development. In Thailand, public participation in plans and decisions about development projects that may affect communities, people and the environment is widespread and growing. Participation in natural resource development decisions is increasing in many parts of Thailand and its Constitution recognises the importance of public participation in environmental management. However, public participation is sometimes misunderstood and misused, and can cause disputes among groups of stakeholders. Public hearings 285

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are widely employed as the instrument of public participation, although there are many kinds of appropriate instruments. The major factors that influence the effectiveness of public participation are legislative, institutional (such as government policy commitment), cultural (awareness and trust), existence and availability of information, and organisational factors (time, duration, venue, methods, processes and public relations). The Government, as a major stakeholder in environmental management, should encourage public participation throughout the country. Various public participation instruments should be studied for application in the Thai context. Since public hearings are not the only mechanism for public participation, and Thai society is dynamic, many mechanisms should be applied, case by case as appropriate, to enhance the effectiveness of public participation. Grassroots community organisations should be strengthened so they can be involved in public participation at the most basic level. Self-reliance capabilities of the socially disadvantaged rural and urban poor who tend to be left out of participation should be upgraded. Laws and regulations must be enforced. Moreover, the participatory development capabilities of governments should be devolved from the central to the local level in order to encourage government to give people a voice and maximise people’s chances for participation. Moreover, foundations for public participation should be built, including administrative services to create and procure resources for participation such as officials’ skills and financial factors.

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Appendix: Chronology of the Hin Krud Project December 1994

EGAT announced invitation to private sector to participate in producing electricity

June 1995

Closing date for submitting proposals

June 1995

UPDC submitted proposal

7 May 1996

Start of negotiation of criteria for trading electricity

August 1996

Field survey for evaluating potential location and environmental impact assessment

27 December 1996

Agreement on contract for trading electricity

31 January 1997

Decision-making on location for construction of plant

26 March 1997

EIA report submitted to MOSTE

30 June 1997

Contract signed with EGAT

13 May 1998

MOSTE accepted EIA report on port construction

29 May 1998

MOSTE accepted EIA report on power plant construction

August 1998

People objected to construction of power plant

May 1999

MOSTE asked for additional EIA study on coral and marine ecology; MOSTE suspended for eight months licence of environmental consulting company conducting EIA for contractor

17 February 1999

Government set up public hearing committee to listen to stakeholders’ opinions on construction of power plant, complying with Public Hearing Regulation 1996

17 August 1999

Additional EIA report on marine ecology submitted

24–25 February 2000 Public hearing 24 January 2002

Prime Minister visited both sites

10 May 2002

Government announced delay of project in order to carry out investigation based on justice and fairness

21 February 2003

Government decided to move Hin Krud power plant to another province 287

Chapter 11

ACCESS TO ENVIRONMENTAL JUSTICE IN UNITED KINGDOM LAW Jean-Jacques Paradissis and Michael Purdue

A

s the Aarhus Convention1 makes clear, environmental justice can only be achieved by a combination of access to environmental information, public participation in environmental decision-making and access to the courts in environmental matters. Without access to environmental information, it is difficult to participate in policy and decision-making and a right to participate can be futile, if there is no corresponding right to challenge the legality of the outcome of that participation. So the concept of environmental justice is the combination of these three distinct rights: they all ride under the same banner of environmental justice.

I. ACCESS TO ENVIRONMENTAL INFORMATION As mentioned above, access to environmental information is a prerequisite for effective access to justice. Of course, once court proceedings have been initiated, a litigant can always use the civil procedure rules on disclosure of documents, so as to obtain a court order granting access to information necessary to prove his allegations.2 However, it is still necessary to have had access to some relevant information beforehand, otherwise how one does know there has been an environmental wrong against which proceedings can be brought?

1

The Aarhus Convention on ‘Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters’ was adopted on 25 June 1998 and came into force on 30 Oct. 2001. It was ratified by the United Kingdom on 24 Feb. 2005.

2

Disclosure of documents in civil proceedings is governed by Part 31 of the Civil Procedure Rules 1998 (CPR), as amended. The relevant Court can also order disclosure before proceedings have been initiated, under Supreme Court Act 1981, s. 33, or County Courts Act 1984 s. 52 and CPR, r. 31.16. CPR r. 31 is available online at .

Harding (ed.), Access to Environmental Justice: A Comparative Study, 289–316 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

Although environmental information can be accessed in many ways, as by reading a newspaper or listening to the weather report broadcast over the radio, such means are not organised through a legal framework laying down legal rules on access to environmental information. In this chapter we shall only examine the legal instruments that create a right to access information for the benefit of citizens, as they also entail an obligation on the person holding the required information to provide it to the people requesting it. There are a variety of legal instruments in the UK allowing any person to access environmental information. All these instruments can be used concurrently or individually: the various instruments overlap since they have been enacted independently. Most of the following legal instruments concern information held by public bodies,3 since these bodies together are the most important holders of such information and the greatest part of environmentally related litigation involves them or an undertaking connected to them in some form. (a) Public registers of environmental information Public registers are official compilations of certain specific sorts of information required by legislation, maintained by public authorities, and open to public inspection. UK law has for a long time used public registers as a means of making information accessible to interested parties and also the general public. Public registers are widely used in a multitude of different areas, ranging from the traditional registers that contain all births, marriages and deaths maintained by the General Register Office for England and Wales to the planning registers, public register maintained by local planning authorities (LPAs) and containing details on planning applications and related planning matters. Planning registers are the oldest4 register concerning environmental information since they date

3

Also, it should be noted that since the coming into force of the Human Rights Act 1998, s. 6 of the Act makes it unlawful for any public authority to act in a way that is incompatible with the European Convention on Human Rights (ECHR), except where provisions of primary legislation prevent the authority from acting differently. Today in ECHR law, even if there is no right to a decent environment, there are aggregates of such a right that protect procedural rights such as the right to information. We can therefore undoubtedly speak about a fundamental right to environmental information, but only in conjunction with another human right, such as the right to life or the right to family life. See on these points, Gavouneli, M., ‘Access to Environmental Information: Delimitation of a Right’, [2000] Tulane Environmental Law Journal 13; Malinverni, G., ‘Freedom of Information in the European Convention on Human Rights and in the International Covenant on Civil and Political Rights’, 4: 4 Human Rights Law Journal 449 (1983); Weber, S., ‘Environmental Information and the European Convention on Human Rights’, 12:5 Human Rights Law Journal 179 (1991).

4

According to Sanders, A-M. and Rothnie, J., ‘Planning Registers – Their Role in Promoting Public Participation’, [1996] Journal of Planning Law 539, ‘Registers of planning

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back (for the register of planning applications) to the Town and Country Planning Act 1947. They are also one of the most consulted types of register, and local associations and conservation groups often have a practice of regularly inspecting them. Public registers that contain environmental information were initially set up with the aim of providing a way that the public could be informed about systems of public-authority regulation of polluting activities. The registers therefore contain both the applications to carry out polluting activities and the responses that were given to those applications (through authorisations to pollute or enforcement actions) by pollution regulatory authorities. Since all or at least almost all public registers concerning environmental information are pollution-oriented, they have a lot of features in common, although caution should be taken when generalising about public registers because on some minor points great differences can arise. First, registers are usually held at the principal or regional offices of the regulating authority or the local authority in whose area the environmentrelated activity takes place. For some sorts of register multiple copies of the same register (for instance nuclear registers) are maintained at different levels (local, regional and central). Secondly, registers must normally be open for inspection by any member of the public,5 at all reasonable times. The determination of what is considered to be reasonable times has been left by the legislature to the discretion of the authorities responsible for the registers. This provision was intended to prevent authorities from reducing unreasonably the times at which registers can be inspected, thus creating a barrier to the public who wish to consult a register, but at the same time not allowing the public to consult a register whenever that suited them. Thus, it would presumably be unreasonable for an authority to restrict access one hour per week, or at times that would reasonably prevent people from accessing the register. Thirdly, in the vast majority of cases the simple inspection of registers concerning the environment is free. When this is the case it is usually mentioned to be so in the legislative text that creates the register. However, when nothing

applications were first introduced in 1948 and are the oldest form of register containing environmental information’. 5

The case of Stirrat Park Hogg v Dumbarton District Council (1996) S.L.T. 1113 (Outer House, 1994) provides an important precedent as to who is to be considered as a member of the ‘public’ having the right to inspect a register. This case involved the Scottish Planning Register of planning applications set up by Town and Country Planning (Scotland) Act, s. 31 (the provisions concerning planning registers are almost the same in Scotland and England). 291

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is mentioned concerning charges for inspecting the registers some authorities maintaining them have been tempted to levy such charges.6 Finally, registers, at the discretion of the authorities maintaining them, can generally be held either in a computerised or manual form. For instance, section 22(8), Environmental Protection Act 1990 (EPA 1990) concerning registers of Integrated Pollution Control provides that these registers may be kept in any form. At this point, mention must be made of regulation 5, Environmental Information Regulations 1992, which will be discussed in more detail further on. This regulation provides that where environmental information is not covered by the 1992 Regulations, but is required to be made publicly available by other statutory provisions, arrangements for doing so must provide a similar procedure to that required for information covered by the Regulations. This is very important since it aims to unify the procedures that provide for access to environmental information. Provisions concerning registers do fall under these provisions since they are ‘information contained in records which are required … to be made available for inspection by every person who wishes to inspect them’7 and consequently they are not information covered by the 1992 Regulations. More precisely, regulation 5 provides that every request for information relating to the environment is responded to as soon as possible and in any case not later than two months from the date of the request. Moreover, in the case of a refusal to make information available, the refusal must be in writing and specify the reasons for the refusal. This is important as it provides the information to ascertain whether the refusal is justified. Finally, the regulation provides that no charge that exceeds a reasonable amount is to be made for making information relating to the environment available. In most cases, information contained on registers includes the quantity of pollutants emitted and measurements about the state of soil, water or air quality. As mentioned the registers include copies of the relevant applications and also any appeals against refusals and their outcomes. They can also include details of criminal convictions concerning regulated activities. However, some types of information may be excluded from disclosure to the public. There are two exemptions that usually apply to information contained on registers: commercial confidentiality and national security. Where national security is concerned, it is the Secretary of State that defines what information is to be treated as such8 and there is no possibility under the EPA 1990 for a member of the public to challenge this decision. In contrast,

6

As in the case of Stirrat Park Hogg v Dumbarton District Council, ibid.

7

Environmental Information Regulations 1992, reg. 2(c)(ii).

8

See, e.g., EPA 1990, s. 65(1): ‘No information shall be included in a register [concerning waste under s. 64] if and so long as, in the opinion of the Secretary of State, the inclusion

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the Freedom of Information Act 2000 (FOIA 2000) (discussed in detail below) established a National Security Appeals Panel as part of the Information Tribunal. This Panel has competence for hearing appeals against a certificate issued by a Minister of the Crown providing conclusive evidence that the information requested by applicants under the provisions of the Data Protection Act 1998 or the FOIA 2000 is a matter of national security and thus it should not be communicated. Anyone directly affected by the issue of such a certificate may appeal against it to this Panel. Commercial confidentiality is usually defined by reference to commercial interests of the person concerned: if disclosure can ‘prejudice to an unreasonable degree’9 commercial interests, then it must not be permitted. Operators can usually request that information they provide remains confidential under the commercial confidentiality exemption. In that case it is for the authority that maintains the register to decide, although appeals are possible to the Secretary of State against a refusal of a request. Since information is kept out of the register until the appeal is finally decided, this could be a means to delay the disclosure of information by unscrupulous operators. Not surprisingly, there is no appeal procedure open for third parties to challenge an exclusion of information. After a period of time information is treated as not being commercially confidential and is declassified10 unless its owner applies for a renewal of the exemption. In the case of information being excluded from disclosure due to commercial confidentiality, but not in the case of national security, there is an entry in the register that indicates the existence of the information. Moreover, when it is in the public interest that commercially confidential information be disclosed, the Secretary of State can direct that such information be placed on the register.11 This provision is similar to the balance test that the FOIA 2000 provides in section 2 concerning exemptions that are not absolute, as with the commercial confidentiality exemption: disclosure must be made in all cases where the public interest in maintaining the exception outweighs the public interest in disclosing the information.

in the register of that information, or information of that description, would be contrary to the interests of national security’. 9

EPA 1990, s. 22(11).

10

See, e.g., EPA 1990, s. 66(8): ‘Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case’.

11

EPA 1990, s. 22(7). 293

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(b) EC Directives 90/313 and 2003/4 and the Environmental Information Regulations 2004 In 1990, the Directive on ‘Freedom of Access to Information on the Environment’ was adopted.12 Its objective was to create a general right of access to, and dissemination of, information on the environment held by public authorities. This Directive was implemented in the UK through the Environmental Information Regulations 199213 made under section 2(2), European Communities Act 1972. These Regulations, similarly to the Directive, provided that everyone was entitled to have access to information relating to the environment and held by public bodies, subject to certain exceptions. Directive 90/313/EC has now been repealed and replaced by the new directive 2003/4/EC,14 which has been implemented in England, Wales and Northern Ireland, by the Environmental Information Regulations 2004.15 EC Directive 2003/4 ‘transposes’ into EC law the information provisions of the 1998 Aarhus Convention, which the European Community has signed. Aarhus grants the public rights and imposes on the state parties and public authorities obligations regarding access to information, public participation, and access to justice in environmental matters. Environmental information is defined by the 2003 Directive and by the 2004 Regulations as: any information in written, visual, aural, electronic or any other material form on – (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including

12

Council Directive 90/313/EEC of 7 June 1990, on ‘Freedom of Access to Information on the Environment’, OJ L 158, 23 June 1990, 56. See Birtles, W., ‘The European Directive on Freedom of Access to Information on the Environment’, [1991] Journal of Planning Law 607.

13

The Environmental Information Regulations 1992 have been amended by the Environmental Information (Amendment) Regulations 1998, in order to fully align the exceptions to disclosure of information in the regulations with the derogations set out in Directive 90/313/EEC.

14

Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on ‘Public Access to Environmental Information’, repealing Council Directive 90/313/EEC, OJ L 041, p. 26.

15

On these see the website of the Department of the Environment at . As far as Scotland is concerned, the Scottish Executive has transposed the new Directive through its own regulations, the Environmental Information (Scotland) Regulations 2004. Also it should be noted that Scotland has its own Freedom of Information (Scotland) Act 2002 and its own Scottish Information Commissioner.

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wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c). Every public person who holds any environmental information to which the Regulations apply is under a duty to make that information available to every person who requests it as soon as possible, and in principle in no more than 20 days after the request is received. Public persons that owe such a duty are all Ministers of the Crown, government departments, local authorities and other persons carrying out functions of public administration at a national, regional or local level and also have responsibilities in relation to the environment, as well as any body with public responsibilities for the environment which is under the control of any of these persons. Private companies with obvious environmental functions such as those in the water, waste, transport and energy sectors are also covered. The Regulations provide for various categories of exemptions that can also be found in the Directive. Regulation 12 lists the exceptions under which a public authority can refuse to disclose information. All the exemptions are subject to a public interest test according to which information can only be refused on one of the excepted grounds if the public interest served by the exemption outweighs the public interest served by the disclosure. There is also a presumption under the regulations that environmental information must be released, unless there are

295

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reasons to withhold it. Access to environmental information can only be refused if: it is not held by the public body to which the request is made; the request is manifestly unreasonable; the request is too general; the information requested is unfinished documents or data (in which case estimated time for completion must be given); the information requested concerns internal communications. Also information can be withheld if disclosure could jeopardise: confidentiality of proceedings; international relations; public security; defence; the course of justice and right to fair trial; commercial confidentiality; intellectual property rights; personal data; or the environment to which the information relates (i.e. information about the breeding sites of rare species). Reasons for refusal have to be provided in writing, and if exempt information is contained in the same record with other information that is not exempt, then the latter information should be disclosed unless it is incapable of being separated from the exempt information. Any person dissatisfied with the refusal to provide information, or who considers that a request for information has been inadequately answered or delayed, since the 2004 Regulations came into force on 1 January 2005, has a right to appeal. First, a right of reconsideration by the public body that made the decision has to be provided. Secondly, there is a right to apply to the Information Commissioner, who can then require the public body to comply. There is then a right of appeal to the Information Tribunal: both the Commissioner and the Tribunal will be able to go into the merits of the decision by the public authority. Third there is a right to challenge decisions of the Tribunal on points of law in the High Court by way of judicial review. However, even though appeals by way of judicial review have been possible for more than a decade since the Environmental Information Regulations 1992 came into force, their application has led to only five judicial review cases in the High Court and none in the Court of Sessions in Scotland or the High Court of Northern Ireland.16 So few court decisions, in a period of time when there was no other enactment providing for a general right to access information shows one of two things: either that the Regulations have been correctly assimilated and applied by public bodies, thus resulting in small number of disputes; or that the cost and length of bringing judicial review proceedings taken in conjunction with their uncertain nature and the prospect of having to pay large costs to

16

These figures only cover reported cases but include applications to leave. These cases are: Maile v Wigan MBC [2001] Journal of Planning Law 193; R. v Secretary of State for the Environment, Transport and the Regions, ex parte Alliance Against the Birmingham Northern Relief Road (No.1) [1999] Journal of Planning Law 231; R. v Tower Hamlets LBC, ex parte Tilly [1996] Environmental Law Review D23, [1996] 6(6) Planning and Environmental Law Bulletin 45; R. v British Coal Corporation, ex parte Ibstock Building Products Ltd [1995]. Environmental Law Review 277; R. v Secretary of State for the Environment Transport and Regions, ex parte Anthony Marson, 23 March 1998, CO/911/98 (unreported application for leave).

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the defendant if the action fails, deter any potential claimants. There can be no certain answer to this question in the absence of any precise empirical research on this subject, although the overwhelming criticism that has been made of the Regulations for providing only for judicial review proceedings seems to indicate that the second answer is more probably correct. (c) Freedom of Information Act 2000 The purpose of the Freedom of Information Act 2000 is to create a right for every person to access any information (and not just environmental information) held by public authorities which is not exempt from disclosure.17 The Act amends the Data Protection Act 1998 and the Public Records Act 1958, so as to make their provisions compatible with this new right. Before the Act, there was no such general right, as the previously applied Code of Practice on Access to Government Information was a non-binding voluntary scheme which required government departments and other public authorities under the jurisdiction of the Parliamentary Commissioner for Administration to make only certain information available to the public. The FOIA 2000, on the contrary, not only creates a binding right of access, but also provides for a wider scheme for accessing information as it covers a larger range of public authorities including the local government, the National Health Service bodies, schools and universities, the police, and other public bodies such as QUANGOs and executive agencies. As far as concerns the relationship between the FOIA 2000 and the Environmental Information Regulations 2004, section 39, FOIA 2000 tries to avoid any overlap between these instruments by providing that the Act does not apply, in principle, in the case of environmental information. This is to avoid the concurrent application of the two regimes and to allow the environmental information regime to apply in preference to the FOIA 2000. This is justifiable since the former stems from EC law and as such takes precedence due to the principle of supremacy of EC law18 over the FOIA 2000, an Act of the UK parliament. In any case, it should be noted that, overall, if the FOIA 2000 is compared with the new Environmental Information Regulations 2004 (but also the new 2003/4 Directive), the environmental information regime is more liberal than the general access to information regime. This is mainly due to two major differences. Firstly, although both regimes contain a similar list of exemptions to disclosure, the environmental information regime has no absolute (class) exemptions, since

17

On FOIA 2000, see the exhaustive book by Macdonald J. and Jones, C.H., The Law of Freedom of Information (Oxford, Oxford University Press, 2003); and Birkinshaw, P., Government and Information: the Law Relating to Access, Disclosure and Regulation, (2nd edn, London, Butterworths, 2001).

18

Horspool, M., European Union Law (3rd edn, London, Butterworths, 2003), 167–179; R. v Secretary of State for Transport, ex parte Factortame Ltd [1999] 4 All ER 906 (HL). 297

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all exceptions are subject to a public interest test. Thus public bodies always have to judge whether the public interest in favour of disclosure might outweigh the public interest favouring secrecy. As a consequence, this also means that under the environmental information regime there is always a duty to confirm or deny the mere existence of sought information, as it will be always necessary to say whether the sought information exists, before undertaking a harm test which has to be justified. To put it simply, a public authority will have at least impliedly to indicate if it holds the requested information before undertaking a balance test since it has to give reasons. Secondly, although the proposed environmental information regime also uses the same appeal and enforcement mechanisms as the FOIA 2000 (the Information Commissioner and the Information Tribunal) it does not provide for an executive override (like section 53 of the FOIA) through which a minister might nullify decisions that would normally be mandatory for the pubic authorities concerned. Under section 53 of the FOIA 2000 there is a power for the executive to override the Information Commissioner’s decision obliging the public authority concerned to disclose the information withheld. A Minister can issue a certificate with the result that the Commissioner’s decision ‘shall cease to have effect’. The underlying rationale for this executive power seems to be that Ministers better understand the public interest and are accountable to Parliament for the exercise of such political judgments. Such a certificate may be issued only where the information concerned is exempt information, and only if the minister concerned has on reasonable grounds formed the opinion that the public authority concerned has not failed to comply with its obligations. This executive power is limited to requests addressed to government departments and some other bodies. It is therefore clear from the above, that the environmental information regulations are a more powerful legal instrument than the FOIA 2000, at least in the field of environmental information. Thus the environmental information regime in England can be considered as being more liberal than the general regime.

II. LEGAL RIGHTS OF PUBLIC TO PARTICIPATION IN ENVIRONMENTAL DECISION-MAKING The preamble to the Aarhus Convention states that the parties recognise that in the field of the environment, public participation in decision-making, as with access to information, enhance the quality and implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns. So, like its close legal cousin natural justice or the

298

11. Access to Environmental Justice in United Kingdom Law

duty to act fairly, the objectives of public participation can be both functional, a better quality of decision-making and concerned with the need to ensure that decisions are regarded as legitimate. (a) Public participation in environmental impact assessment The actual provisions of Aarhus are rather limited in that Article 6 (which is the most specific of the articles on public participation) is only concerned with proposed activities that may have a significant effect on the environment. The requirements of Article 6 have therefore generally already been met in the form of the various UK regulations made in order to comply with EC law on Environmental Impact Assessment (EIA). This is not the place to go into a detailed analysis of EIA. It is however worth pointing out that both Aarhus and EC and UK law are rather vague as to how the general public is to participate in the decision-making. Article 6(7) of Aarhus simply requires that procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant any comments, information, analyses or opinions that it considers relevant to the proposed activity. So at the minimum the public must have a right to submit their views in writing, but there is no express right to a hearing unless ‘appropriate’, and this decision is presumably left for the member states to determine. Similarly Directive 85/337/EEC requiring environmental assessment (the 1985 Directive), while requiring that the public must be informed so as to be able to express an opinion before the development consent is granted, gives no right to a hearing,19 and the UK regulations only require special publicity to be given to the application, the environmental statement and other documentation.20 Article 6(4) and (5) of Aarhus interestingly require member states to provide for early public participation, when all the options are still open and effective public participation can take place; and for developers to be encouraged to enter into discussions before applying for a permit. There used to be no such provision in the 1985 directive but Article 3(4) of Directive 2003/35/EC21 (the 2003 Directive) amends Article 6 of the 1985 Directive so that there is now a requirement that the public concerned must be given early and effective opportunities to participate and express comments and opinions at a time when all options are open to the decision-making body. This requirement is however very different from requiring the applicant to publicise, in advance of the application, the options that are available. Similarly the various UK regulations on EIA only require publicity when

19

Directive 85/337/EEC, Art. 2.

20

See, e.g., reg. 14 and 17, Town and Country Planning (Environmental Impact Assessment) Regulations 1999.

21

Member states were required to comply by 25 June 2005. 299

Access to Environmental Justice: A Comparative Study

an application is lodged for a decision whether to permit the development to go ahead. So there is no legal obligation for the applicant to publicise the options in advance. Article 5 of the 1985 Directive does require the developer to supply ‘an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice taking into account the environmental effects’, and this wording is repeated in the UK regulations. However this does not expressly require alternatives to be considered, although it could justify a refusal on the basis that alternatives have not been assessed. The 2003 Directive also strengthens the obligations of the decision-maker in granting consent. Article 9 of the 1985 Directive, as amended by Article 3(6), provides that the public has to be informed of the main reasons and considerations on which the decision is based and must do this after ‘having examined the concerns and opinions expressed by the public concerned’, and must include information about the public participation process. This provision could be interpreted as imposing a duty on the decision-maker to spell out how those concerns and opinions affected the eventual decision. (b) General rights of public participation in environmental decision-making Where EIA is not required, in the case of the UK22 land-use planning system there exist important minimum legal requirements for public participation regarding applications for planning permission for development proposals. First, the system of planning registers (explained earlier), enables the public to examine proposals and to lodge objections. Further the applicant, under the Town and Country Planning Act 1990, section 65, is by implication required to give notice of the application to the owners of the land (provided the applicant is not the sole owner) and other leaseholders and agricultural tenants; and there is an express requirement that representations from such persons shall be taken into account by the local planning authority (LPA).23 In the recent decision of R (On the Application of Pridmore and Others) v Salisbury DC Newman J took a firm approach to the need to comply with such provisions. The LPA had granted permission with regard to an application, even though it knew that notice had not been given to all the owners and a false certificate had been submitted. Newman J quashed the grant of planning permission and distinguished the earlier Court of Appeal decision in Main v Swansea City Council.24

22

Scots Law on public participation is basically the same, although the details differ. In this chapter we only set out the English law except where it is the law that applies to the whole of the UK.

23

Town and Country Planning General Regulations 1992, reg. 19(2).

24

[2005] Journal of Planning Law 655.

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11. Access to Environmental Justice in United Kingdom Law

LPAs are themselves also required, with regard to particular applications, to consult with certain bodies such as the Environmental Agency. The main provisions regarding consultation are set out in the Town and Country Planning General Development Procedure Order 1995, Article 10, but there are numerous other provisions requiring consultation. Consultation or notification can be contrasted with a need to publicise planning applications, as in the case of consultation the body or person consulted will usually have special expertise on the matter that makes its advice important. Such advice must be genuinely considered but there is no obligation to give reasons for not accepting the advice. It was not until comparatively recently that there was imposed a general duty imposed on LPAs to publicise all applications. Prior to 199125 only so called ‘bad neighbour’ developments had to be publicised; though LPAs often in practice publicised other types of application. Article 8 of the General Development Procedure Order 1995 now sets out three different levels of publicity depending on the particular category of development. There are also special rules for applications concerning conservation areas and listed buildings.26 The chosen methods of publicity are site notices, neighbour notification and advertisement in local newspapers. The rules vary the particular requirements and sometimes leave the particular method of publicity to the LPA. Thus in the case of what are usually termed ‘minor’ developments the LPA can choose between posting up site notices and neighbour notification. While in the case of ‘major’ developments, as well as choosing between site notices and neighbour notification, the LPA must advertise the application in a local newspaper. Circular 15/92 gives guidance as to how the choice should be made and it recognises that the LPA has discretion to determine that further publicity is required. The courts would be reluctant to interfere with an LPA’s judgment as to what was required. In R (On the application of Seamus Gavin) v London Borough of Haringey 27 Richards J had doubts as to whether the LPA even has to consider which of the two methods is best calculated to give notice of the application to those likely to be interested.28 However, he went on to hold that, if it was incumbent on the LPA to make a judgment between the two alternatives of site notices and neighbour notification, it was permissible to adopt a general practice of one or the other rather than to

25

The Planning and Compensation Act 1991 substituted a new s. 65 of the Town and Country Planning Act 1990 under which a development order could make provision for notice to be given for any application for planning permission.

26

See respectively ss. 73(1) and 66(1), Planning (Listed Buildings and Conservation Areas) Act 1990.

27

[2005] Journal of Planning Law 655.

28

Para. 27. 301

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assess each individual case separately, subject always to a willingness to consider any reasons advanced for departing from the practice in an individual case.29 Knowledge of the fact of an application would be useless if those opposed to the application had no means by which to make their views known to the decision-maker. As we have seen in the case of EIA, the law stops short of giving any right to a hearing and the normal method of participation is for the general public to make written representations to the planning committee.30 However, the general public has a right to attend planning committee meetings,31 although there are powers to exclude the public in certain circumstances.32 There are no legal rights for either the applicant or objectors to address the meeting but there is a widespread practice of such committees allowing limited rights for objectors to be heard. Research conducted by Manns and Wood33 has shown that the practice varies considerably from authority to authority. It seems that by 2001 almost two thirds of LPAs allowed public representations but that there were wide discrepancies as to who was allowed to speak and for how long. It would seem wrong that such rights of public participation should depend on the judgment of a particular authority. In this regard it would seem that the Human Rights Act 1998 has not changed the legal position. In R (on the application of Adlard and others) v Secretary of State for the Environment Transport and the Regions34 the Court of Appeal held that Article 6 of the European Convention did not require there to be an oral hearing of any sort before a decision by the local planning authority granting planning permission.35 The most that Simon Brown L.J. (who gave the leading judgment) was prepared to concede was that, exceptionally on particular facts, the courts might conclude that a local planning authority had acted unfairly or unreasonably in denying an objector any or any sufficient

29

Para. 29.

30

Under General Development Procedure Order 1995, Art. 19, any representations made in response to publicity must be taken into account, though this would presumably not enable matters irrelevant to planning to be regarded.

31

The rights of the public are set out in Local Government Act 1972, s. 100 (A–K), as amended by the Local Government (Access to Information) Act 1985.

32

There is a power under the 1972 Act, s. 100A(8) to exclude the public if it is clear that they are set on disrupting the meeting. Also there are powers to exclude the public if likely that confidential or exempt information will be disclosed; see s. 100 I and 1972 Act, Sch. 12A.

33

For an article explaining and discussing the findings see Manns, S. and Wood, C., ‘Public Speaking at the Development Control Committee’, [2002] Journal of Planning Law 382.

34

[2002] Journal of Planning Law 1379.

35

This view has been confirmed by the House of Lords decision Begum (FC) v London Borough of Tower Hamlets [2003] 2 WLR 388. This was a case concerning housing but Lord Hoffmann made clear there was no need for a planning committee to hold an oral hearing even if the planning committee had to make findings of fact.

302

11. Access to Environmental Justice in United Kingdom Law

hearing. In this regard it could be seen to be an abuse of power to treat certain parties differently. The Government in its Planning Green Paper ‘Delivering Fundamental Change’36 (which preceded the Planning and Compulsory Purchase Bill) welcomed the practice of allowing parties to address planning committees, and proposed that Best Value Inspectors should take into account the failure of local planning authorities to open up their meetings to public participation when considering the performance of local authorities.37 On the other hand the Government also urged that more applications should be delegated to officers to decide. This would seem to have the effect of cutting down on public participation, as officers do not hold hearings before they make a decision. There has for some time been a legal obligation on local planning authorities to give reasons for refusing permission or imposing conditions, but until recently there was no obligation to give reasons for granting planning permission. As we have seen, in the case of EIA there is a requirement to give the main reasons for the decision and now in the case of planning applications there is a duty to give a summary of reasons for the grant of permission together with a summary of the policies and proposals in the development plan which are relevant to the grant.38 Applicants who are refused permission or have conditions imposed on a grant of permission can appeal to the Government.39 In this regard they have a right to a hearing, which can take the form of a formal public inquiry or an informal hearing. However, the appellant and the local planning authority can agree for the appeal to be decided by way of written representations, and most appeals are decided this way. The public can participate in such appeals, although the general public does not have a legal right to appear; for example, only persons who have responded to the publicising of the application have the right to make submissions, present evidence and cross-examine at public inquiries.40 However Inspectors have a discretion whether to allow other parties to participate, and in practice will readily grant a right to make an appearance, although they are more reluctant to allow cross-examination at public inquiries.

36

Published in 2002.

37

Para. 5.59.

38

Art. 5 of the Town and Country Planning (General Development Procedure)(England) (Amendment) Order 2003 (which came into force on 5 December 2003), inserted a new Art. 22 into the Town and Country Planning (general Development Procedure) Order 1995, which sets out the duty to give reasons. Unlike the case of refusals or the imposition of conditions, only a summary is required as opposed to stating clearly and precisely full reasons.

39

Town and Country Planning Act 1990, s. 78.

40

Town and Country Planning (Determination by Inspectors ) (Inquiries) Rules 2000, reg. 11 and 16(5). 303

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Objectors to a grant of planning permission have no right to appeal and so, as we will see, their only way of trying to get the grant overturned is by judicial review. There have been several proposals to allow objectors at least a qualified right of appeal (what is termed a third party right of appeal), but the Government has always resisted such a change.41 The Green Paper on Planning rejected outright any changes in the law, arguing that they would not be consistent with our democratically accountable system of planning whereby elected councillors represent their communities.42 This argument neglects the fact that the decision of the democratically accountable body refusing permission can be overturned on appeal, but not a decision granting permission. In reality the main reason the Government is against a third party right of appeal is the extra cost and delay it would impose on the system of development control. Finally, the Planning and Compulsory Purchase Act 2004 requires LPAs to produce a Statement of Community Involvement (SCI). As we will see, this document also has important implications for public participation in the drawing up of planning policies. However, section 18(2) also provides that this statement of the authority’s policy as to the involvement of persons ‘who appear to have an interest in matters relating to the development of the area’ also applies to the application of development control functions. Yet it would seem that this policy, unlike the position with the preparation of the development plan, has no legally binding effect. Thus where the SCI required the developer to consult in advance and this was not done the LPA could not refuse a planning application just because there had not been consultation in accordance with the SCI. On the other hand, where the SCI stated that the LPA would carry out consultation and publicity in particular circumstances it is strongly arguable that this could result in a binding legitimate expectation. This last issue arose in the High Court decision of R (On the Application of David Rubin) v First Secretary of State, Harrow London Borough Council, Mr and Mrs Dubiner.43 This decision concerned an appeal against a refusal of planning permission and concerned the rights of objectors to be informed of the appeal. Mr Rubin, a neighbour, had not been informed that there was to be a hearing into an appeal against the refusal and was so unable to make his views known to the inspector. Rule 4 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000 only requires neighbours to be notified of the informal hearing where the neighbour has made representations at the application stage. Mr Rubin had not made representations

41

For the most recent examination of the issue and call for third party rights of appeal in planning, see the report Third Party Rights of Appeal in Planning (2002). This report was the result of a research project funded by the Council for the Protection of Rural England and other environmental pressure groups.

42

Para. 6.20.

43

[2005] Journal of Planning Law 234.

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regarding this particular application but that was because he had not been informed of the application. He had been informed of previous applications and it was just through a mistake that he had not been notified this time. Pitchford J therefore held that Mr Rubin did have a legitimate expectation that he would be informed of the application and had therefore been treated unfairly. We have spent some time setting out the extent to which the system of development control provides for public participation. This is because it is generally accepted that it represents the prime model or exemplar of public participation. Other systems of environmental regulation have increasingly adopted the planning model. Thus in the case of applications for consent to discharge into controlled waters under the Water Resources Act 1991 there are provisions for publicising and consulting on applications, and the applicants (but not objectors) have a right of appeal. In the case of waste management licences under Part II of the EPA 1990, while certain bodies have to be consulted, there is no statutory requirement to publicise the application. (c) Public participation in policy and plan-making Article 7 of the Aarhus Convention is concerned with public participation concerning plans, programmes and policies relating to the environment. The main requirement is for member states to endeavour to provide opportunities for public participation in the preparation of policies relating to the environment. However Article 7 also applies paragraphs 3, 4 and 6 of Article 6 to what must be a transparent and fair framework for public participation. In this regard paragraph 4 is probably the most important, as it requires signatories to provide for ‘early public participation, when all options are open and effective public participation can take place’. In this regard there is general acceptance that if public participation is not to be regarded as mere tokenism, public participation should take place at the formative stage of policy making and not when the main decisions have already been taken. The recent paper produced by the Government entitled ‘Community Involvement in Planning: the Government’s Objectives’44 thus states that ‘the community must be able to put forward and debate options and help mould proposals before they are settled’. UK town and country planning law has since 1947 provided the public with rights to participate in the process of preparing and adopting development plans, which plans contain the policies that guide the determination of planning applications to develop land. However the present law did not impose any specific duties with regard to the publicising of the draft development plans, apart from requiring in the case of structure plans certain bodies to be consulted before the

44

Published February 2004. 305

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final deposit of the proposals.45 However, in the case of local plans and unitary development plans there were two separate periods of deposit so as to enable the LPA to have a period of negotiation with objectors after the first deposit.46 Also in the case of local plans and unitary plans, where there are still objections to the revised plan, a local inquiry or other hearing must be held for the purpose of considering the objections, so objectors have a right to appear at that inquiry or hearing.47 In contrast with structure plans (at present prepared by the county councils in England), while there was a duty for the county authority to cause an examination in public (unless the Secretary of State directed otherwise), objectors have no right to appear or to select the issues to be discussed. Further, the whole procedure is more informal and less quasi-judicial. The Planning and Compulsory Purchase Act 2004 has radically changed the system of development plans. Structure plans have been abolished and Regional Planning Guidance has been replaced by Regional Spatial Strategies. Regional Spatial Strategies will come within the definition of the development plan for the purposes of England (see s. 38(3)). Local and unitary plans have been replaced by Local Development Frameworks. This is not the place to go into the detailed changes. However it should be noted that the new mechanism of the Statement of Community Involvement (SCI) has been introduced in order to ensure adequate public participation. This is rather a strange document in that while it sets out the LPA’s policy for involving interested parties in the preparation of the new Local Development Documents (which are similar to the old local plans) and for consulting on planning applications, the SCI itself has to undergo independent examination like any other local development document. The SCI will also contain policies on consultation and publicity for planning applications. The SCI will contain the LPA’s policy for community involvement and consultation, and so the nature of community involvement will vary from area to area. However the Town and Country Planning (Local Development) (England) Regulations 2004 do set out some minimum standards. In particular regulation 25 deals with pre-submission consultation and requires consultation with what are termed ‘general consultation bodies’. These bodies are defined in regulation 2 as those representing certain groups such as ‘bodies which represent the interests of different racial, ethnic or national groups in the authority’s area’. However, the regulation only requires such bodies to be consulted if the LPA consider this appropriate.

45

Town and Country Planning (Development Plans) (England) Regulations 1999, reg. 10.

46

Regs. 22 to 24.

47

Town and Country Planning Act 1990, s. 42(1).

306

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The obligations for public participation in planning polices again represent a high point of public participation in environmental plans and strategies and would appear to comply with the requirements of Article 7 of Aarhus. In contrast, while the Government is required by section 44A, EPA 1990, to prepare a national waste strategy, there are only limited duties to consult certain bodies or persons in preparing that strategy. The same applies to the national air quality strategy that must be prepared under section 80, Environment Act 1995. This can be contrasted with the waste local plans, which have to go through the planning processes outlined above. So if the above strategies are to be regarded as ‘plans and programmes’ under Article 7, there must be doubt as to whether there is sufficient provision for public participation for compliance. (d) Strategic environmental assessment The EC Directive 2001/42 reinforces the law on public participation in the preparation of plans and programmes by imposing a requirement for environmental assessment of certain plans and programmes. This has been termed Strategic Environment Assessment (SEA), although the term is not used by the Directive itself, which is termed the Directive on the ‘Assessment of the Effects of Certain Plans and Programmes’. This Directive (which had to be implemented by 21 July 2004) has been transposed in the UK by the Environmental Assessment of Plans and Programmes Regulations 2004. The Directive and the Regulations only apply to plans and programmes liable to have significant effects on the environment. However SEA is mandatory where plans and programmes are prepared for town and country planning, land use, transport, energy, waste management, water management, industry, telecommunications, agriculture, forestry and tourism, where these provide the framework for subsequent consent for specific projects currently subject to EIA. SEA will therefore clearly be required for the new Local Development Frameworks and the Regional Spatial Strategies, which replace local and structure plans but the Directive and the Regulations will catch other plans and programmes. The main effect will be that an environmental report will have to be prepared setting out the likely significant effects of the draft plan or programme. In terms of public participation the draft plan or programme will have to be made available to the public as well as various environmental bodies such as the Environment Agency. More significantly, the public likely to be affected or who have a particular interest in the plan must be given an effective opportunity to express their opinions. This is then linked to the need to inform the public as to how environmental considerations have been integrated into the plan and how the opinions expressed on the environmental statement have been taken into account. Reasons must be given for choosing the plan as adopted in the light of other reasonable alternatives.

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(e) Public participation in the preparation of legislation Article 8 of the Aarhus Convention deals with executive regulations and what are termed ‘generally applicable legally binding normative instruments’ that may have a significant effect on the environment. The latter presumably includes Acts of Parliament. The specific steps required are that: (i) time- frames should be fixed sufficient to allow effective participation; (ii) draft rules should be published or otherwise made publicly available; and (iii) the public should be given the opportunity to comment, directly or through representative bodies. In UK law there exists no general duty either by common law or statute to consult the public before laws are passed. Of course a statute may require consultation and publicity before subordinate legislation is enacted, and the principle of legitimate expectations could give rise to a right to be consulted.48 However there is no equivalent of the United States Administrative Procedure Act 1946, under which interested parties have to be given an opportunity to participate in rule-making. In practice of course an immense amount of consultation does take place before laws or changes in policy are effected. The problem is that it is left to the Government to decide who should be formally consulted, and there is no legal requirement to set out the results of consultation or a justification as to why it has not been followed. This of course is not a problem that is peculiar to environmental law. Nevertheless the present practice would normally satisfy Article 8 of Aarhus as draft subordinate legislation is published on Government web-sites and the public is asked to make representations. There also exists a Cabinet Office Code of Practice on Written Consultation. The consultation period will normally last a minimum of 12 weeks, although there are circumstances in which shorter consultations will be unavoidable, for example where EU processes dictate tight timescales. Also comments are normally made publicly available for six months as consultation responses.

48

Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.

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11. Access to Environmental Justice in United Kingdom Law

III. ACCESS TO THE COURTS (a) Who can apply to the courts The question of who can bring a legal action is inextricably wound up in the basis or nature of the legal proceedings themselves. Thus in the case of the private law of torts such as nuisance and negligence, the way the tort is framed determines who can bring the action. I may be appalled at the nuisance caused by a polluting activity but, unless I have sufficient legal interest in the land that is being affected by the activity, I cannot bring an action to stop the activity. So in Hunter v Canary Wharf Ltd49 it was held that those who simply occupied homes as partners or children had no right to bring an action in private nuisance. However in the case of challenges to the legality of actions or omissions of public authorities, the courts are more willing to allow challenges to be undertaken by those who may not themselves be directly affected by the decision. Legal challenges to the validity of public decisions can be brought in two main ways. First the statute setting up a system of environmental regulation may itself provide for decisions to be challenged in the courts. Usually what is termed ‘statutory review’ will apply to decisions of central government. Thus section 288, Town and Country Planning Act 1990, provides that the validity of a decision of the Secretary of State in determining an appeal against a refusal of a planning application can be questioned in the High Court. Secondly, where the statute does not provide such a statutory right, as in the case of a grant of planning permission by a local planning authority, the validity of the grant can still be challenged in the High Court by way of an application for judicial review. Although section 31, Supreme Court Act 1981, and Part 54 of the Civil Procedure Rules 1998 set out the particular procedures, judicial review itself stems from the courts’ assertion that they have an inherent right to review the validity of public decision-making. In the case of statutory review, the statute usually provides that only ‘aggrieved persons’ can bring a challenge. While in the case of the application for judicial review, section 31(3) of the 1981 Act provides that the court shall not grant leave to make an application unless it considers that the applicant has a ‘sufficient interest” in the matter to which the application relates’. At one time the courts interpreted ‘person aggrieved’ strictly and excluded those who, while they would be adversely affected by the decision, had not had their legal rights infringed. However it is now clear that persons such as neighbours who will be affected by the decision can mount a challenge. It is, however, still unclear the extent to which the term ‘persons aggrieved’ can be stretched to cover persons or organisations that are not themselves affected by the decision. In Eco-Energy

49

[1997] 2 All ER 426. 309

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(GB) Limited v First Secretary of State for Transport 50 Buxton L.J. said that persons aggrieved under section 288 were either (1) the appellant in the planning process, or (2) someone who took a sufficiently active role in the planning process – that is to say, probably a substantial objector, not just somebody who objected and did no more about it – or (3) someone who has a relevant interest in the land. This would seem to be a rather too narrow a way to define a person aggrieved as there could be person who will be clearly affected by a planning appeal determination but for whatever reason do not take an active part in the appeal proceedings. It may also be noted that the ninth edition of Wade and Forsyth on Administrative law at pages 738–9 argues that the liberal approach to standing taken with regard to judicial review should also be applicable to the special statutory remedies and that cases such as Maurice v London County Council 51suggest that persons aggrieved should cover any person with a genuine grievance of whatever kind. In the case of an application for judicial review, a plain reading of section 31 would suggest that it is only necessary to show a sufficient interest at the leave or permission stage: in the case of an application for judicial review there is a two-stage procedure under which the courts first filter out applications that are too late or unarguable before moving to a second stage where they hear the full arguments. However in R v Inland Revenue Commissioners, ex parte National Federation of the Self-Employed and Small Businesses 52 the House of Lords held that whether the applicant had ‘sufficient interest’ was relevant at both stages. At the permission stage, however, the threshold is very low. Indeed in R v Somerset County Council and ARC Southern Limited, ex parte Richard Dixon53 Sedley J. argued that all applicants who are other than meddlesome busybodies will have sufficient interest. The rationale being that the importance of remedying misuses of power meant that persons with no particular stake in the issue or outcome should be able to call the attention of the court to an apparent misuse of public power. Yet in R v North West Leicestershire DC, ex parte Moses 54 Scott Baker J. appeared to consider that the applicant still had to distinguish herself in some way from the generality of the public and he held that someone who no longer lived close to an airport, did not have sufficient interest to challenge a decision to extend that airport. On the other hand in the Court of Appeal decision in R (On the Application of Erine Kides) v South Cambridgeshire DC Jonathan Parker L.J. held

50

[2005] Journal of Planning Law 1067.

51

[1964] 2 QB 362.

52

[1982] AC 617.

53

[1997] Journal of Planning Law 1030.

54

[2000] Journal of Planning Law 733.

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that as long as an applicant has a real and genuine interest in seeking relief, he can rely on grounds in which he has no personal interest. In the recent Court of Appeal decision in R (On the Application of Feakins) v Secretary of State for Environment, Food and Rural Affairs 55 Dyson L.J. importantly affirmed the liberal approach to standing by holding that if the claimant had genuinely made the application in the public interest, the Judge would have been right to hold that he had sufficient standing to proceed. It is important to note that this was a case concerning the substantive stage of judicial review and so the Court of Appeal accepts that such persons are in an analogous position to environmental pressure groups such as Greenpeace and World Development Movement Ltd., who have been permitted to make public law challenges.56 However Dyson L.J. went on to hold that if a claimant has not sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest. So if the claimant is acting out of ill-will or for some other improper purpose it can be an abuse of process to permit a claimant to bring a claim in such circumstances. So a distinction can be made between a case where the claimant was bringing the case as a public-spirited citizen and a case where he was bringing the case for improper purposes but it was nevertheless in the public interest for the case to be heard. In the later case the public interest would not prevent the bringing of the application being an abuse of process. The case law reveals that even when a claimant does not have sufficient standing at the substantive stage the courts will still make the courts a ruling on the substantive arguments.57 So where permission has been given to argue the case fully, the courts will rule both on the merits of the case and on the standing of the applicant, so that the motives of the applicant will only be important in deciding whether to grant specific remedies such as quashing or mandatory orders. There would seem little doubt that the present law in England and Wales on standing already complies with the requirements of Article 9 of the Aarhus Convention. However on the subject of pressure groups it is worth noting that Article 9(2) provides that non-governmental organisations (NGOs) shall be deemed to have sufficient interest as long as they promote environmental protection and meet any requirements of national law. The European Commission in a draft Directive on ‘Access to Justice in Environmental Matters’ would go further and

55

[2003] EWCA Civ 1546.

56

See R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No 2) [1994] 4 All E R 329, and R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd. [1995] 1 All E R 611.

57

See, e.g., R v Secretary of State for the Environment, ex parte Rose Trust Theatre Co [1990] 1 QB 504. 311

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require member states to provide procedures for members of the public and or environmental NGOs to obtain from public authorities an internal review of the legality of their decisions. The Directive would spell out the criteria and the procedures for the recognition of environmental NGOs. This proposal can be criticised on the grounds that it creates divisive categories of privileged and non-privileged groups. At the time of writing there has been little progress in this directive being agreed by the European Council. (b) The costs of legal proceedings Aarhus also provides that access to justice should not be ‘prohibitively expensive’.58 Legal proceedings are never cheap, and under English law the general rule is that the losing party pays the costs of the successful party. If a public authority has briefed a Queen’s Counsel and the proceedings have gone on for a significant time, the costs that an unsuccessful complainant might have to pay would be ‘prohibitively expensive’ in most people’s terms. It seems that a one-day hearing could result in a claim for £100,000.59 In R (on the application of Burkett) v Hammersmith and Fulham LBC 60 the Court of Appeal appeared to accept that the high costs of litigation in certain cases did mean that very serious questions could arise as to whether the United Kingdom could live up to the Aarhus ideas.61 The position has been complicated in the case of the permission stage of judicial review by the changes made by the Civil Procedure Rules. Previously the claimant did not have to pay the costs of the defendant if permission was refused. However in R (On the Application of Leach) v Commissioner for Local Administration 62 Collins J. concluded that a successful defendant should be entitled to his costs of filing an acknowledgement because he is now obliged to serve one if he wishes to take part in and contest a claim for judicial review. While confirming this, the Court of Appeal in R (On the Application of Mount Cook Land Ltd) v Westminster City Council 63 held that normally a defendant should not be able to claim the costs of an oral hearing to decide whether to grant permission, though costs could be awarded in exceptional circumstances such as on the grounds of the hopelessness of the claim.

58

Art. 9(4).

59

See McCracken R. and Jones, G., ‘The Aarhus Convention’, [2003] Journal of Planning Law 802, 806.

60

[2005] Journal of Planning Law 525.

61

Ibid., at 540.

62

[2001] EWHC Admin 445.

63

[2003] EWCA Civ 1346.

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The problem of costs can also result in a claimant not being able to obtain a remedy. Where a party is seeking an interim injunction the courts will usually insist on the applicant giving an undertaking to reimburse the defendant for any profits lost, if it should turn out that the defendant was not acting unlawfully. In the case of R v Secretary of State for the Environment, ex parte RSPB 64 the House of Lords refused to grant an interim injunction to protect Lappel Bank.65 The European Court of Justice went on to hold that the UK Government had acted unlawfully in its approach to fixing the boundaries of the Special Protection Area but by that time the Lappel Bank had been developed as a car park. The courts do have discretion whether to award costs but they will very rarely decline to order the claimant to pay the costs of the defendant in spite of arguments that the claimant has a genuine concern for the environment and that it is in the public interest that the point of law should be settled. R v Her Majesty’s Inspectorate of Pollution, ex parte Greenpeace 66 is a rare example where the argument succeeded. A pre-emptive costs order is a means by which the claimant can at least get the protective order limiting the amount of costs that will have to be paid, should the claim fail and costs be awarded against the claimant.67 Such an order was made in the case of R (On the Application of the Campaign for Nuclear Disarmament) v Prime Minister and others (Costs)68 but it was made clear that it could only be ordered in exceptional circumstances, and it seems that this was the first case in which the power had been exercised. Among the factors that may justify such an order are that the application raises issues of general importance and the defendant must have a superior capacity to bear the costs compared with the claimant. It was also very important that in the CND case the order would lead to a quick ruling as to whether the claimant’s case was well founded and so the defendant was unlikely to incur more costs than the amount set out in the order. However in the recent case of R (on the application of Corner House Research) v Secretary of State for Trade and Industry 69 the Court of Appeal reviewed the law on protective cost orders. This judgment goes a little way to helping claimants with limited resources to achieve justice. The court reformulated the situations in which a cost protection order will be granted: 74. We would therefore restate the governing principles in these terms:

64

[1997] Environmental Law Review 431.

65

The Lappel Bank is part of an area of inter-tidal mudflats in the Medway estuary which has been recognised as being of international importance for birds.

66

[1994] 4 All ER 329.

67

It seems the power arises under rule 44.33 of the Civil procedure Rules.

68

[2002] EWHC 2712.

69

[2005] EWCA Civ 192. 313

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1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: i) The issues raised are of general public importance; ii) The public interest requires that those issues should be resolved; iii) The applicant has no private interest in the outcome of the case; iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. 2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. 3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. The judgment of the Court also points out that while for some time the law on access to the courts for the purpose of judicial review has been relaxed, there is little point in opening the door to the courts, if litigants cannot afford to come in the fear that if successful, they will have to pay the costs of the other side. Legal aid may be available, but only the really poor can get legal aid and so those bringing environmental suits may have to face the prospect of losing their homes should the action fail. In such circumstances local groups may look around for a suitable person who will qualify for legal aid. In this regard it has recently been held in the decision of R (On the Application of Edwards) v Environment Agency and Rugby Limited 70 that, if a claim is brought in the name of someone solely for the purpose of obtaining public finding, this can amount to a abuse of process. On the facts of the case the applicant was a local inhabitant and would be affected by the authorisation of a Pollution Prevention and Control Permit changing the fuel to be used at a cement plant. It was therefore held that this did not amount to a abuse of process as the Legal Service were fully aware of the reasons why he had been picked to bring the application for judicial review. Another problem with getting legal aid is that it seems that the number of firms prepared to carry out publicly funded public law work is now much reduced.71 So there are strong arguments that our present system of

70

[2004] EWHC 736 (Admin).

71

See Stookes, P. and Razzaque, J., ‘Community Participation: UK Planning Reforms and International Obligations’, [2002] Journal of Planning Law 786, 704.

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justice can be ‘prohibitively expensive’ and does deter meritorious cases. Indeed extra-judicially Sir Robert Carnwath has argued that litigation through the courts is prohibitively expensive for most people, unless they are either poor enough to qualify for legal aid, or rich enough to be able to undertake an open-ended commitment to expenditure running into tens or hundreds or thousands of pounds.72 (c) The substantive law and the need for an environmental court or tribunal It has recently been suggested that even if there is access to the courts litigants do not achieve environmental justice because the judiciary have a lack of comprehension or sympathy for the central tenets of environmental law such as the precautionary principle, sustainable development and favourable conservation status.73 This allegation raises questions as to the extent that such principles are part of environmental law and are justiciable by the courts. In this regard there have been repeated suggestions that these and other problems regarding environmental justice could be solved by the creation of an Environmental Court or Tribunal. This is not the place to go into the various models that have been suggested74 but they all emphasise the need for those judging to environmental disputes to have or have access to specialist environmental expertise.

IV. CONCLUSIONS In the present chapter, we have noted that access to environmental information is one of the three ‘pillars’ of the Aarhus Convention that has been present in UK law since the early 1990s. Although it is a right that has been expanded by recent legislation, the core principle of granting an individual the right of access to environmental information has been applied by public authorities for quite some time now and thus they should already be used to providing such information. While the United Kingdoms law on public participation is by no means perfect there would seem little doubt that it complies with the requirements of Aarhus. The main criticism that can be made is that the law is still very vague and leaves

72

Carnwath, R., ‘Environmental Litigation – A Way through the Maze?’ [1999] 11 Journal of Environmental Law 3, 9.

73

Report by the Environmental Justice Project on ‘Environmental Justice’ (2004).

74

But see Carnwath, R., Enforcing Planning Control (Department of the Environment, 1989); Grant, M., Final Report on Environmental Court Project (Department of the Environment Transport and the Regions, 2000); and the report by Macrory, R. and Woods, M., Modernising Environmental Justice Regulation and the Role of an Environmental Tribunal (2003). 315

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a lot ot the discretion of the decision-making bodies. The position on access to the courts is far less satisfactory and as shown above there are real doubts as to whether the high costs facing a claimant (who is often bringing a case not for her own private interests but in the public interest) will mean that challenges that have a real prospect of success will not be brought. The law on access probably complies but as presently set out in the case law is confused and could be seen to give too much discretion to individual judges.

316

Chapter 12

ACCESS TO ENVIRONMENTAL JUSTICE IN THE UNITED STATES: EMBRACING ENVIRONMENTAL AND SOCIAL CONCERNS TO ACHIEVE ENVIRONMENTAL JUSTICE J. Mijin Cha 1

I

n the early 1980s, residents of Kettleman City discovered the existence of a toxic waste dump located just a few miles from their town.2 Kettleman City is a small farm worker town located in California’s San Joaquin Valley. At the time the dump was discovered, the community was 95% Latino, many of whom were monolingual Spanish speakers. Further research discovered that the dump had been in existence since the 1970s and was built without the community’s consent or knowledge. The situation drastically worsened in 1988 when residents discovered plans to build a toxic waste incinerator at the dump. Remarkably, the residents did not come upon this knowledge through direct disclosure by Chem Waste, the owner of the dump, or state or local officials. Rather, a Greenpeace organiser located in hundreds of miles away in San Francisco notified the residents of the impending siting of the dump. They discovered that Chem Waste proposed building an incinerator that would burn up to 108,000 tons of toxic waste each year. Practically, this meant that 5,000 truckloads of toxic waste, in addition to the hundreds of daily trucks bound for the toxic dump, would pass through their area putting residents at risk of exposure to toxic waste spillage, in addition to the air pollution created by the incineration of the waste. Once informed of these plans, local residents began to collect information about the dump, the incinerator and the company proposing the plans. They

1

PhD, SOAS University of London. Thesis title: ‘Law, Justice and the Environment: A Comparative Analysis of Access to Justice Movements in India and the U.S.’ (2006).

2

Cole, L.W. and Foster, S.R., From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (New York, New York University Press, 2001), 2.

Harding (ed.), Access to Environmental Justice: A Comparative Study, 317–354 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

formed an organisation called El Pueblo para el Aire y Agua Limpo (People for Clean Air and Water). The members of El Pueblo found a 1984 report commissioned by the California Waste Management Board that suggested to companies and localities seeking to site garbage incinerators that rural communities, poor communities, communities with low educational levels, communities that were highly Catholic, communities with fewer than 25,000 residents, and communities whose residents were employed in resource-extractive jobs like mining, timber, or agriculture would offer the least resistance.3 As they went further into investigating the company and the processes used to site these dangerous plants, El Pueblo uncovered shocking statistics. All of Chem Waste’s incinerators were located in neighbourhoods that were comprised of 75 percent or more residents of colour.4 Further, one of their incinerators in Chicago, Illinois had blown up and was consequently shut down.5 The accident was a result of overfilling the incinerator, which caused black smoke plumes to spew into the air.6 Instead of addressing the pollution issue, Chem Waste turned off the incinerator’s air monitoring equipment so nobody would know the level of pollution coming out of the plant.7 This practice of turning the air monitoring equipment off was not a one-time mistake; rather, it had occurred regularly over a period of months.8 Chem Waste and its parent company, Waste Management, had paid more than $50,000,000 in fines, settlements, and penalties for price fixing, bribery, and related environmental crimes.9 Even though Chem Waste had what could appropriately be defined as an heinous environmental record, the burden of protecting the air, water and land of Kettleman City fell on the shoulders of the community, not the company. Without direct, aggressive action by community members, Chem Waste would quietly go forth and build the toxic waste incinerator, just like the toxic waste dump had been quietly built some fifteen years earlier. Kettleman City represents the struggles faced by poor communities and communities of colour. These disparate communities are continuously exempted from the decision-making process and are left only to deal with the result. The

3

Cerrell Associates, Political Difficulties Facing Waste-to-Energy Conversion Plant Siting (California Waste Management Board, California, 1984), 17–30.

4

One in Emelle, Alabama that is 95% African-American; one on the south side of Chicago, that is 55% African American and 24% Latino; one in Texas that is 80% African-American and Latino; and one in Sauget, Illinois that is surrounded by neighbourhoods that are 95% or more African-American.

5

See Cole and Foster, above n. 2, at 4.

6

Ibid., at 5.

7

Ibid.

8

Ibid.

9

Ibid., at 5.

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environmental justice movement in the United States focuses on eradicating environmental racism, achieving environmental equity and most recently, achieving environmental justice.10 All three issues now fall under the wider scope of environmental justice. Environmental racism refers to the idea that race is a primary motivating factor when making environmental decisions. Environmental equity takes the idea of environmental racism to the next level and calls for equal protection against environmental harms regardless of race, ethnicity, or class. The roots of the US environmental justice movement can be traced to citizen revolts against the siting of toxic waste or hazardous and polluting industries in areas that are predominantly inhabited by poor people and people of colour.11 The modern environmental justice movement in the United States is working to stop this discriminatory process. This chapter will begin in the first section with a definition of the environmental justice movement and its evolution to the present day. The second section will focus on the legal and legislative gateways available and their effectiveness in providing a way for poor, minority communities to voice their opposition. The final section will focus on the future direction of the movement.

I. THE BEGINNINGS OF ENVIRONMENTAL JUSTICE Environmental justice in the US looks at cases of environmental harm not just as a purely environmental concern, but also as a civil rights concern. This is in direct contrast to many access to justice movements that do not discuss the social or economic concerns behind environmental justice. To an American audience, the term ‘environmental justice’ goes beyond just access to courts. The term carries a significance and a weight of its own. It addresses the combination of social inequity and harmful environmental effects that creates this idea of ‘environmental justice’. For some time, the fact that people of colour were facing some of the most severely polluted environments was being ignored.12 The phrase ‘environmental injustice’ defines the situation where people of colour are forced, through their lack of access to decision-making and policy-making processes, to live with a

10

Foreman, C.H., Jr., The Promise and Peril of Environmental Justice (Washington DC, Brookings Institution Press, 1998), 2.

11

Agyeman, J., Bullard, R.D. and Evans, B., ‘Exploring the Nexus: Bringing Together Sustainability, Environmental Justice and Equity’, 6(1) Space and Polity 77 (2002). As used for this article, the phrases ‘communities of colour’ and ‘people of colour’ refer to any ethic minority, not limited to African Americans or Latino Americans.

12

McGowan, A.H., ‘Environmental Justice for All’ 45(5) Environment 1 (2003). 319

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disproportionate share of environmental harms.13 While the concept of environmental justice did not register on the radar screens of many environmental or civil rights groups for quite some time, it should not be forgotten that Dr. Martin Luther King, Jr. went to Memphis on an environmental and economic justice mission in 1968, seeking support for striking garbage workers who were underpaid and whose basic duties exposed them to hazardous environmental conditions.14 The idea of environmental justice encompasses culture, race, gender, age, class, and power relations in issues ranging from health-related agriculture to inner-city toxic contamination of children.15 Environmental justice recognises that clean air and water and non-toxic living conditions must be viewed as basic civil rights, no less important than freedom of speech and the freedom to vote.16 In fact, the more that is learned about the cumulative effects of environmental pollution on aging, fertility, and physical and intellectual development, the more fundamental the right to a healthy environment appears.17 The environmental justice movement is meant to unite environmentalism and social justice by challenging the business-as-usual environmentalism that is generally practised by the more privileged wildlife and conservation oriented groups.18 Historically, the mainstream environmental movement in the United States has revolved around the causes of preservation of nature, resource management, and pollution abatement.19 This mainstream movement was primarily supported by white middle to upper-middle class members of society. Even though environmental concerns cut across racial and class lines, the traditional activist in the mainstream environmental movement came from a background of above-average education, greater access to economic resources, and a greater sense of personal power. As a result, expanding the environmental agenda to include the idea of race and class as factors of environmental protection has been a slow process within mainstream environmental groups. Moreover, these mainstream environmental groups were ill-equipped to deal with the environmental, economic, and social concerns of communities of colour. They struggled with the impact terms like ‘environmental racism’ could have

13

Agyeman, above n. 11.

14

Bullard, R.D., ‘Environmental Justice for All’ 110(1) Crisis (the New) 25 (2003).

15

Russo, R., ‘Unheard Voices: Environmental Equity’ Electronic Green Journal, Dec. 2003.

16

Solis, H.L., ‘Environmental Justice: An Unalienable Right for All’ (Fall 2003) Human Rights 5.

17

Ibid.

18

Russo, above n. 15.

19

Bullard, R.D., ‘Anatomy of Environmental Racism and the Environmental Justice Movement’, in Bullard, R.D. (ed.), Confronting Environmental Racism: Voices from the Grassroots (Cambridge MA, South End Press, 1993) 22.

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on the majority of their members. The potential for alienating them was great, especially considering the environmental justice movement focuses so heavily on the impacts that are felt by communities of colour and not on the traditional ideas of conservation and resource protection. They also had a misconception about the level of interest communities of colour had in environmental issues, because when communities of colour struggle for environmental rights, they are rooted in a wider struggle that includes community, labour, and human rights issues.20 As a result, because the focus was not purely on environmental rights, communities of colour were not thought of as ‘environmentalists’ in the traditional sense. This sense changed in the late 1980s when the multiracial environmental justice movement emerged.21 Communities of colour began to organise around environmental issues at an unprecedented rate. The Kettleman City example is just one of many cases that came to the forefront at this time. In 1987, a report by the United Church of Christ’s Commission for Racial Justice, entitled ‘Toxic Wastes and Race in the United States’, brought the idea of environmental racism into the mainstream environmental movement.22 The Commission found that by far, race was the most prominent factor in the siting of commercial hazardous waste landfills.23 This report started government officials, academicians, and grassroots activists talking about environmental problems that disproportionately affect minority communities.24 This marked the start of the process whereby the environmental justice movement carved out its own niche within the mainstream environmental movement. This sub-movement has two key distinctions from the traditional environmental movement: first, it is more racially diverse; and secondly, it is more ideologically inclusive, integrating both social and ecological concerns, and paying particular attention to questions of distributive justice, community empowerment and democratic accountability.25 Environmental justice is comprised of many groups ranging from grassroots activists that are willing to lay everything on the line

20

Lee, C., ‘Beyond Toxic Wastes and Race’, in Confronting Environmental Racism, above n. 2, at 50.

21

Taylor, D., ‘Environmentalism and the Politics of Inclusion’, in Confronting Environmental Racism, above n. 2, at 53.

22

Chang, J. and Hwang, L., It’s a Survival Issue: The Environmental Justice Movement Faces the New Century, at (visited 27 Aug. 2003).

23

Bullard, above n. 19, at 42.

24

Ibid.

25

Taylor, above n. 21, at 52. 321

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to people with little previous knowledge of environmental activism or little experience with political activism but compelled to take radical action.26 The new group of activists has a distinctive approach. Instead of a purely legal strategy where the focus of the movement is to engage the other side in legal battles, environmental justice groups look to increase their community’s ability to effectively participate in the decision-making process. The legal aspect of the movement is just one part of a broader movement focused on changing the way decisions are made. Besides the desire to change the decision-making process, environmental justice advocates are faced with a stark reality. Even though they draw from both substantive environmental laws and civil rghts law, there are a limited number of legal tools available for their use. As will be discussed below, the US courts have effectively blocked the ability of advocates to use civil rights law in fighting environmental battles. The eroding of civil rights law affects the ability of the environmental justice movement to frame environmental burdens as a form of racial or class discrimination. The use of civil rights law is important because, as stated above, the recognition that hazardous waste and polluting industries are located based on racial concerns is an important aspect of the movement.27 The use of civil rights law would validate this ideal by availing tools indicating that the decisions were made with the intent to discriminate against a community of colour in violation of the community’s right to be free of race-based discrimination.28 There are, however, substantive environmental laws that can be used to fight the purely environmental aspect of the community’s struggle. While the social impact may not be as heavy as using civil rights law, the substantive statutes can result in revoking of operating permits or forcing the relocation of polluting industries. The following section introduces both the purely environmental statutory laws the applicable civil rights laws. Even though the courts have eroded the possibility of using civil rights law, as will be seen below, it is important to summarise the statutes that were once used and examine the court rulings to see why the use of civil rights law is no longer available and if there are any salvageable remains.

II. LOOKING TO STATUTES AND THE COURT FOR RELIEF In looking for legal relief, plaintiffs can either approach the courts for violations of applicable environmental or civil rights standards or approach an administrative agency and file an administrative complaint. Administrative agency action

26

Ibid., at 53.

27

Bullard, above n. 14.

28

Cole, above n. 2.

322

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is limited in scope.29 For the purposes of the environmental justice movement, administrative agency action usually entails filing an administrative complaint with a certain agency for violations of Title VI of the Civil Rights Act, which prohibits recipients of federal funding from engaging in discriminatory practices.30 These legal avenues will be discussed in further detail below. Before presenting the substantive environmental laws, the next section will present a brief summary of the standing requirements that must be met before a suit can be successfully filed in court. The discussion will then turn to administrative agency action beginning with the Executive Order on environmental justice. Next, the substantive federal environmental statutes the Clean Water Act, the Clean Air Act and the National Environmental Policy Act will be summarised. Finally, Title VI of the Civil Rights Act and Section 1983 will be presented, along with a detailed analysis of the recent Supreme Court and District Court rulings that shape the current state of civil rights law and its use in environmental disputes.

III. STANDING REQUIREMENTS IN BRIEF Unlike in India, there are strict standing rules that must be met before a case will be accepted for review by the courts in the US. When creating legal strategy for filing a suit, the first decision that must be made is whether to file suit in state court or in federal court. Federal courts have jurisdiction only over cases involving federal questions or cases or controversies between citizens of different states.31 Federal questions involve either matters arising under the US Constitution or questions arising under federal statutes.32 State courts deal with issues of law relating to those matters that the US Constitution did not give to the federal government or explicitly deny to the states.33 The second step, after deciding which court to file suit in, it to meet the strict standing requirements before the matter will be taken under consideration. ‘In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.’34 There are two

29

EPA Title VI Regulations, 40 C.F.R. § 7.120 (2005)

30

Ibid.

31

28 USC § 1331 (2005), conferring jurisdiction to federal courts for federal question cases and controversies, and 28 USC § 1332 (2005), conferring jurisdiction to federal courts for cases or controversies between citizens of different states.

32

28 USC § 1331 (2005).

33

Understanding Federal and State Courts, available at (visited 6 Jun. 2005).

34

Warth v Seldin, 422 US 490, 498 (1975). 323

Access to Environmental Justice: A Comparative Study

subsections to the standing requirements.35 Plaintiffs must meet the standing requirements as set out in Article III of the US Constitution and additionally meet the Court created doctrine of prudential standing.36 (a) Article III Standing Requirements To meet the Article III requirements for standing, plaintiffs must show that the conduct of the defendant caused an ‘injury-in-fact’ that can be redressed by a favourable judgment from the court.37 Article III standing requirements apply to both state and federal court actions.38 The Article III requirements are further delineated. The injury-in-fact standing element requires, ‘an invasion of a legally protected interest’ that is concrete and particularised, actual or imminent and not conjectural or hypothetical.39 For the causal connection to be established, the injury must be fairly traceable back to an action of the defendant and not the result of an independent action of a third party not before the court.40 Finally, it must be ‘likely’ as opposed to ‘speculative’ that the injury can be redressed through a favourable decision.41 An alternative to filing suit is to file an administrative complaint with an administrative agency. The next section introduces and summarises administrative complaints, particularly those filed with the Environmental Protection Agency (EPA). (b) Prudential Standing Requirements Prudential standing, on the other hand, is not found within the Constitution and was developed as, ‘judicially self-imposed limits on the exercise of federal jurisdiction’.42 While the dimensions of the requirements for prudential standing have not been explicitly defined, the general idea is to limit suits where the litigant raises another persons rights, bar adjudication of generalised grievances that could be more appropriately addressed in Congress, and ensure plaintiff ’s complaint falls within the ‘zone of interests’ protected by the law invoked.43 These restrictions were put into place as a method of judicial self-governance so the courts would not be called upon to decide matters that would be better

35

Elk Grove Unified School District v Newdow et al., 542 US 1, 15 (2004).

36

Ibid.

37

Ibid., at 16.

38

US Constitution, Art. III, §2, cl. 1.

39

Lujan v Defenders of Wildlife, 504 US 555, 560 (1992).

40

Ibid., at 560–561.

41

Ibid., at 561.

42

Ibid., quoting Allen v Wright, 468 US 737, 750 (1984).

43

Ibid., quoting Allen, 468 US at 751.

324

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addressed in other branches of government, especially when judicial intervention is not necessary to protect individual rights.44 This restriction prohibits the US judiciary from acting in the same manner as the Indian judiciary. The Indian judiciary, as stated early, is famous for acting the role of the legislature, executive and judiciary all in one. Prudential standing requirements limit the role of the federal courts in the US by limiting the scope of the cases that can be decided by the federal courts. As there are clear restrictions to the types of cases that may be filed in federal court, in terms of environmental justice actions, only cases dealing with violations of federal environmental laws or federal civil rights law will be filed in federal court. For violations of state environmental laws, cases will be filed in state court. As seen by the strict standing rules, the act of filing a suit is complicated matter and time and resource consuming, whether the suite is filed in state or federal court. (c) Administrative Agency Action In 1970, President Richard Nixon established the Environmental Protection Agency (EPA).45 THE EPA was created as a result of a reorganisation of administrative agencies.46 The reorganisation created the first office dedicated to environmental protection.47 In his remarks accompanying the reorganisation plan, Nixon cited the need to reorganise federal efforts to develop a complete view of the environment, integrating concerns about land, water and air.48 Duties regarding environmental protection that had previously been assigned to the Department of the Interior, the Department of Agriculture, and various other administrative agencies were now assigned exclusively to the EPA.49 The newly established agency was to, among other things, coordinate and support research and anti-pollution activities by State and local governments, private and public groups, individuals, and educational institutions.50 The EPA would

44

Ibid., quoting Warth v Seldin, 422 US 490, 500 (1975).

45

5 USC App Reorganization Plan No. 3 of 1970, text available at , (visited 6 Jun. 2005).

46

Ibid.

47

Ibid.

48

Special Message from the President, in afternotes of Reorganization Plan, text available at , (visited 6 Jun. 2005).

49

See Reorganization, above n. 45.

50

Agency Overview, available at , quoting EPA Organization and Functions Manual, Nov. 2000, (visited 6 Jun. 2005). 325

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also reinforce efforts among other Federal agencies with respect to the impact of their operations on the environment.51 As an administrative agency, the EPA is required to follow federal regulations, including federal civil rights laws. To prevent discriminatory practices by funding recipients, the EPA implemented Title VI of the Civil Rights Act into its own regulations52 (hereinafter ‘EPA Title VI regs’). The regulations, in parallel to Title VI, specifically prohibit any program or activity receiving EPA assistance from discriminating against individuals on the basis of race, colour, national origin, or sex.53 Under the EPA Title VI regs, persons believing that they have been discriminated against in violation of the regulations may file an official complaint with the EPA.54 The complaints, called ‘administrative complaints’, must be investigated promptly by the EPA’s Office of Civil Rights.55 If a funding recipient is found to be in violation of the Title VI requirements, the EPA may terminate funding and may also refer the matter to the Department of Justice for further investigation.56 While the administrative complaint procedures are thorough and well developed, they have not become a viable enforcement mechanism. Of the almost 200 complaints filed with the EPA, 86 were completely rejected for investigation.57 Additionally, 24 were dismissed after being accepted for investigation, 11 were informally resolved, 3 were referred to another federal agency and 35 are pending before the EPA.58 It is necessary to note that zero were successful.59 To date, the EPA has not found any recipient of funds to be in violation of the Title VI regulations. However, the EPA has taken significant steps towards establishing environmental justice concerns as part of the consideration process. An executive order passed by President Clinton in 1994 resulted in the creation of the EPA’s Office of Environmental Justice (OEJ) and the National Environmental Justice Advisory Committee (NEJAC).60 OEJ is the centralised clearinghouse and dissemination point for environmental justice information to the public and other

51

Ibid.

52

40 CFR, s. 7.10.

53

Ibid., s. 7.30.

54

Ibid., s. 7.120.

55

Ibid.

56

Ibid.

57

Status Summary Table of EPA Title VI Administrative Complaints (15 Apr. 2005), available at , (visited 6 Jun. 2005).

58

Ibid.

59

Ibid.

60

Foreman, above n. 10, at 46.

326

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federal agencies. 61 NEJAC is a federal advisory committee established to provide independent advice, consultation, and recommendations to the EPA administer on matters related to environmental justice.62 The next section introduces and describes the executive order.

IV. EXECUTIVE ORDER 12898 In 1994, President Clinton issued Executive Order 12989 mandating the integration of environmental justice into federal policy and effectively focussing federal attention on the environmental and human health conditions of people of colour and low-income populations with the goal of achieving some sort of equal protection for all communities.63 Executive orders are usually directed at various federal administrative agencies, or other departments of the executive branch, to clarify and orchestrate their duties. Practically speaking, executive orders have legal force, unless they are in conflict with a law that has been approved by the legislature or a judicial decision. Congress may overturn an executive order by passing legislation in conflict with it or refusing to approve funding to enforce it. However, the President can veto such a decision, which can only be overridden by a two-thirds majority in Congress. Executive orders carry through presidencies unless an expiration or renewal date is given. In the memo accompanying the order, the President stated that the order was designed, ‘to focus federal attention on the environmental and human health conditions in minority communities and low-income communities with the goal of achieving environmental justice’.64 Section 101 states that ‘each federal agency shall make achieving environmental justice part of its mission’.65 This is to be accomplished by ‘identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations’.66 The memo specifically requires adherence to NEPA and to Title VI of the Civil Rights Act of 1964: In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial 61

See National Environmental Justice Advisory Committee, available at (visited 2 Sept 2003)

62

Ibid.

63

Russo, above n. 15. See also Environmental Justice Executive Order and Presidential Memo, at (visited 30 Aug 2003).

64

Ibid.

65

Executive Order 12989, s. 101.

66

Ibid. 327

Access to Environmental Justice: A Comparative Study

assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, colour, or national origin. Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969 (NEPA), 42 USC Section 321 et seq. … Mitigation measures outlined or analyzed in an environmental assessment, environmental impact statement, or record of decision, whenever feasible, should address significant and adverse environmental effects of proposed Federal actions on minority communities and low-income communities.67 In addition to administrative goals, the order created an Inter-agency Working Group on Environmental Justice that provides guidance to the Federal agencies on criteria for identifying environmental justice violations, such as identifying disproportionately high and adverse human health or environmental effects on minority or low-income populations.68 This is to be done through data collection and analysis, developing inter-agency agendas and by holding public meetings. Building upon this idea of public meetings, the executive order is intended to offer opportunities for public participation in, ‘matters relating to human health or the environment’. Section 5 of the order deals with ‘Public Participation and Access to Information’.69 These include allowing the public to submit recommendations to Federal agencies relating to the incorporation of environmental justice principles and translation of ‘crucial public documents, notices, and hearings related to human health or the environment for limited English-speaking populations’.70 Additionally, the Working Group is to hold public meetings for the purpose of ‘fact-finding, receiving public comments, and conducting inquiries concerning environmental justice’, as well as preparing a summary of the comments and recommendations discussed at the public meetings for public review.71 This executive order initially brought great hope to the environmental justice movement and seemed to create an avenue of redress easier than approaching the courts. However, as idealistic as the executive order seemed, any potential rights that it may have created are nullified in Section 6, which clearly states that

67

Ibid.

68

Executive Order 12989, s. 102.

69

Ibid., s. 5–5.

70

Ibid., s. 5–5 (a-b).

71

Ibid., s. 5–5 (c).

328

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the order is intended ‘only to improve the internal management of the executive branch’, and it does not ‘create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person’. It continues to say, ‘this order shall not be construed to create any right to judicial review involving the compliance or non-compliance of the United States, its agencies, its officers, or any other person with this order’. This clearly pre-empts any private right that could be created under the order. As such, this order, in essence, is only aspirational. There are here no long term rights that could be created for individuals that are victims of environmental injustice. Therefore, the effectiveness of the order must come from its integration into federal agency actions. As mentioned earlier, the EPA has created the OEJ to deal with environmental justice issues. The EPA’s dual environmental justice goals are: first, that no community, regardless of race or income, should be disproportionately placed at risk from environmental and human health threats; and secondly, that all communities should have a meaningful opportunity to participate in environmental decisions that affect them.72 The policy of the EPA is to work with neighbourhoods, states, tribes, businesses, and others to target its resources and build trust between the agency and the communities.73 The EPA has been criticised for its environmental justice record. However, it has limited authority as it is only a regulatory agency, and as such, only administers the laws passed by Congress.74 On the other hand, using the laws that Congress has passed, plaintiffs have achieved some success using substantive environmental laws.75 The next section introduces the substantive laws and how plaintiffs have used these laws to their advantage.

V. FEDERAL SUBSTANTIVE ENVIRONMENTAL LAWS Until 1970, air and water pollution issues were considered by Congress and the states to be local concerns.76 Until that time, the federal government’s role was to provide technical aid and money to states to run their programs and

72

Suarez, J.P., ‘Integrating Environmental Justice at the Environmental Protection Agency’ (Fall 2003) Human Rights 8.

73

Ibid.

74

Russo, above n. 15.

75

Gerrard, M.B., ‘Private Lawyers and Environmental Justice’ (Fall 2003) Human Rights 18.

76

Schipper, R.S., ‘Administrative Preclusion of Environmental Citizen Suits’, 1987 U. Ill. L. Rev. 163 (1987) 329

Access to Environmental Justice: A Comparative Study

build their projects.77 In the 1970s, the federal government greatly expanded its control over the enforcement of air and water pollution laws by passing the Clean Air Act of 1970 (‘Clean Air Act’) and the Federal Water Pollution Control Act Amendments of 1972 (‘Clean Water Act’).78 Before turning the text and substances of the acts, it is important first to note the way laws and regulations are structured and followed in the US. The US operates under a bi-level system. Federal laws are the bare minimum requirements that must be met.79 State law can then impose stricter regulations that go above and beyond the federal law, but must allow for protection that is at least at the level proscribed by federal law.80 Applying this principle, in terms of jurisdiction over environmental matters, federal law rules over federal lands and federal agencies. In practice, if a project is commissioned on federal lands, such as a national park, or involves a federal agency, such as the EPA, the federal law will rule. If a project is a purely state issue, such as permitting for power plants, state laws and rules will preside. While the states still maintain an enforcement role, the federal government oversees the state actions and can intervene to ensure compliance.81 The Clean Air Act and the Clean Water Act also increased the role of citizens in enforcing air and water pollution laws by creating the citizen suit provisions introduced earlier.82 Initially, the citizen suit provisions were rarely used.83 This reluctance changed in the first half of the 1980s and since that time the number of cases filed by concerned citizens has grown substantially.84 Congress and state legislatures have included opportunities for public participation in a number of environmental laws.85These provisions generally have several features in common, including public input during the environmental decision making process, a requirement that agencies respond to that public input, and provisions that allow lawsuits by the public to enforce the law.86

77

Ibid.

78

Ibid.

79

Why Are There Two Courts in the US? , (visited 6 Jun. 2005).

80

Ibid.

81

Ibid., at 164.

82

Ibid.

83

Ibid.

84

Ibid.

85

See, e.g.: National Environmental Policy Act, 42 USCA, s. 4332(c); Comprehensive Environmental Response, Comprehension and Liability Act, 42 USCA, ss. 9617 and 9659; Clean Water Act, 33 USCA, ss. 1365 and 1344 (o).

86

See Cole, above n. 2, at 106.

330

12. Access to Environmental Justice in the United States

Often with substantive environmental laws, it is the violations of procedural requirements, not substantive requirements, which give plaintiffs a right to sue. In effect, it is more likely that suit will be brought on the grounds of failure to properly procure a permit rather than emitting levels of pollutants that will be harmful to the environment or health of the surrounding communities. The following section presents the substantive environmental law framework beginning with a discussion of the Clean Air Act. The discussion will then proceed to an introduction and summary of the Clean Water Act and the National Environmental Protection Act. The discussion will then conclude with an introduction of the applicable civil rights laws used in environmental justice disputes. (a) Clean Air Act The Clean Air Act establishes minimum national ambient air quality standards (NAAQS) for those pollutants that it has determined endanger public health.87 The air quality standards are set by the EPA.88 These standards, however, are not directly enforced against polluters by either the EPA or the states.89 Instead the states create implementation plans and as part of their State Implementation Plan (SIP), establish emission limitations and compliance schedules for each air pollutant discharge source.90 Once the SIP is enforced, the state’s air quality must meet the EPA mandated NAAQS standards.91 Under the Clean Air Act, the SIP must contain a plan that provides for implementation, maintenance, and enforcement of the national primary ambient air quality standard for any air pollutant in each air quality control region within the state.92 The states must also submit a SIP for the secondary standard for air pollutants in each air quality control region.93 Once the EPA receives the state’s implementation plan, it must determine whether the plan submission complies with the necessary criteria.94 The EPA sets the minimum criteria for SIP’s and if met, the SIP will be approved.95 If the criteria are not met, the State is treated as

87

Clean Air Act, 42 USC s. 7409, s. 108–109 (2005).

88

Ibid.

89

Schipper, above n. 76.

90

Clean Air Act, 42 USCS s. 7410 (2005).

91

Ibid.

92

42 USCS s. 7410(A)(1)(a).

93

Ibid.

94

42 USCS s. 7410(k)(1)(A).

95

42 USCS s. 7410 (k)(1)(B). 331

Access to Environmental Justice: A Comparative Study

if an SIP was never submitted and given a period of time within which it must resubmit a SIP.96 In addition to the SIP, the states must designate each area of the states as either nonattainment, attainment, or unclassifiable.97 A nonattainment area is one that does not meet, or negatively contributes to ambient air quality in a nearby area that does not meet, the national primary or secondary ambient air quality standard for a given pollutant.98 An attainment area is one that meet the national primary or secondary air quality standard and an unclassifiable area is one that cannot be classified on the basis of available information.99 An area may not be redesignated from nonattainment to attainment unless the EPA determines that the area has attained the appropriate air quality standards and approved the area implementation plan.100 The EPA must also determine the improvements in air quality are due to permanent and enforceable reductions resulting from implementation of applicable plans.101 Finally, it must be proven that the area has met all applicable requirements under the SIP.102 (b) Clean Water Act The goal of the Clean Water Act is, ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’.103 In contrast to the Clean Air Act, which aimed to control air pollution, the goal of the Clean Water Act is to eliminate the discharge of pollutants into navigable water by 1985.104 There is even wide-sweeping language in the Congressional intent section that calls for the President to take such action as necessary to ensure that foreign nations take meaningful action for the prevention, reduction, and elimination of pollution in their waters and international waters.105 The act also actively encourages public participation in the development, revision, and enforcement of any program, regulation, or plan established by either the EPA or any State.106 The act states the EPA will work in cooperation

96

42 USCS s. 7410 (k)(5).

97

42 USCS s. 7407 (2005).

98

Ibid.

99

Ibid.

100

Ibid.

101

Ibid.

102

Ibid.

103

Clean Water Act, 33 USCS s. 1251 (2005).

104

Ibid. s. 1251(1).

105

Ibid. s. 1251(c).

106

Ibid. s. 1251(e).

332

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with the States to develop and public regulations minimum guidelines for public participation in these processes.107 The Clean Water Act established the National pollutant Discharge Elimination System (NPDES).108 Under this provision, NPDES permits are required for the discharge of any pollutant or combination of pollutants into navigable waters.109 Similar to the Clean Air Act, each state must create a permitting program and the permit programs must be submitted to the EPA with a full and complete description of the program it proposes to establish and administer.110 The NPDES permits are intended to be an augmentation to the State permit program.111 If the EPA determines that the State is not administering a program in accordance with the requirements of the Clean Water Act, after giving notice and a time for corrective action, the EPA will withdraw approval, thereby leaving ultimate control of the program with the EPA as EPA has the power to review state permitting programs and the permits granted.112 The Clean Water Act also contains an anti-backsliding provision.113 Under this provision, a permit may not be renewed, reissued, or modified using new effluent standards if the new effluent standards are less stringent than the original effluent standards.114 There are a few statutory exceptions, including whether or not current information was available at the time of the original issuance or if there was a mistake in the interpretation of the law, whether there have been material or substantial alterations to the permitted facility that justify a less stringent effluent limitation, or whether a less stringent limitation is necessary because of events out of the control of the permittee. The anti-backsliding provision may seem to be quite bold at first, but the exceptions to the provision negate the intent of the provision. If the idea is to eliminate pollutant discharge into effluent waters, as claimed by the Act, than there should be no reason to adopt lower standards, regardless of when they were implemented. To meet the end goal, it would seem to be important to continually abide by the strictest standards for every permittee. Exceptions to this rule weaken the Act.

107

Ibid.

108

33 USCS s. 1342 (2005).

109

Ibid. s. 1342 (a)(1).

110

Ibid. s. 1342 (b).

111

Ibid. s. 1342 (a)(3).

112

Ibid. s. 1342 (c).

113

Ibid. s. 1342 (o).

114

Ibid. 333

Access to Environmental Justice: A Comparative Study

(c) Citizen Suit Provisions Both the Clean Water Act and the Clean Air Act have explicit citizen suit provisions. The two citizen suit provisions are nearly identical.115 The citizen suit provisions have two aims: one, to spur agency action, two, to serve as an alternative means of enforcement.116 However, no citizen may commence a suit until the citizen has given the polluter, the state, and the EPA notice of the alleged violation and given time for the polluter to rectify the violation.117 A citizen suit is thereby precluded if the EPA or the state is seeking compliance by ‘diligently prosecuting’ an action in any federal or state court.118 The preclusion provision implies that the EPA or state is to be the primary enforcer with citizen suits as an alternative enforcement vehicle, should the agencies fail to act after receiving notice from the citizen.119 Even if the EPA is to be the primary enforcer, citizen suits do give individuals a way to govern environmental polluters and to ensure that the EPA is being proactive in prosecuting violators. The Clean Air Act and the Clean Water Act target very specific areas of environmental pollution. The acts set very specific limits for pollutants and then require states to come into compliance with the standards and obligations set out in the acts. The next section introduces a more comprehensive piece of legislation that extends environmental consideration to decision making processes. The National Environmental Protection Act (NEPA) requires environmental impact statements for major federal projects and seeks to make environmental impact a key factor in the decision making process. The following section introduces the act and describes it in detail. (d) National Environmental Protection Act In 1969 Congress passed the National Environmental Protection Act (NEPA) in order to ‘encourage productive and enjoyable harmony between man and the environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality’.120 The Council on Environmental Quality requires that the President annually

115

Schipper, above n. 76, at 168.

116

Ibid., at 169.

117

42 USC s. 7604(b) (2005) and 33 USC s. 1365(b) (2005).

118

Ibid.

119

Schipper, above n. 76 at 168.

120

42 USC, s. 4321 (1969).

334

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presents an Environmental Quality Report to Congress that details the status and condition of the nation’s environment.121 NEPA was the first substantial piece of federal environmental protection legislation. However, NEPA did not turn out to be the environmental panacea that many environmentalists had hoped for. NEPA does not provide for blanket environmental protection, and its restrictions and requirements only apply to projects that receive federal funding. Congress did not intend the act to be applied to state, local or private actions. As can be imagined, this excludes a large percentage of the most offensive environmental projects, such as oil refineries and hazardous waste plants. What NEPA does require is that all federal government agencies undertaking a ‘major federal action’ that will ‘significantly affect the quality of the human environment’, must prepare a detailed statement that describes the environmental impact of the proposed action.122 This statement is commonly referred to as the environmental impact statement (EIS). An EIS should include the environmental impact of the proposed action, any adverse environmental effects that can not be avoided, alternatives to the proposed action, and any irreversible and irretrievable commitments of resources involved in the proposed action.123 The NEPA process does not require that an agency choose the most environmentally acceptable or the least expensive alternative.124 The purpose of the EIS process is to ensure that decisions are made based on an understanding of environmental and social consequences.125 To reach this end, activities of public participation include holding public meetings where public input is sought or releasing draft reports and opening a public comment period where the public can submit written comments that are later addressed. However, the fact that the EIS process is meant to ensure that decisions are made on a fully informed basis does not mean that the outcome of the decisions will be different. The California Environmental Quality Act, a parallel permitting process, includes the requirement for an Environmental Impact Report (EIR). The EIR in Kettleman City was roughly 300 pages long with 700 pages of appendices and available only in English.126 Approximately 40% of Kettleman City’s population is monolingual Spanish-speaking. Only five pages of the report (the executive summary), were translated into Spanish, leaving most residents with

121

Ibid, s. 101.

122

42 USC, s. 4332(2)(c) (1969).

123

42 USC, ss. 4332, 102 (1969).

124

NEPA Start to Finish, at (visited 30 Aug 2003).

125

Ibid.

126

Cole, above n. 2, at 6. 335

Access to Environmental Justice: A Comparative Study

five pages of information, while English speakers had 1,000 pages.127 Under these circumstances, the EIR process is followed, yet the public participation allowed is limited as language restrictions prohibit the ability of the public to comment on the proposed project, making it a case of following the letter of the law but not the spirit of the law. The next section moves from substantive environmental laws to civil rights laws. Another tool that can be used by environmental justice advocates is Title VI of the Civil Rights Act of 1964. Title VI bars agencies that receive federal financial assistance from discriminating on the basis of race, colour, or national origin.128 Typically, it has been used only in civil rights cases. Recently, environmental justice advocates have used Title VI to claim that environmental discrimination is a violation of civil rights. The next section introduces Title VI and another legal instrument, 42 USC 1983, known as Section 1983. (e) Title VI, Civil Rights Act of 1964 By passing the Civil Rights Act of 1964, Congress enacted the most comprehensive civil rights legislation since the end of the Civil War.129 Title VI of the Civil Rights Act, ‘prohibits discrimination based on race, colour, or national origin in any program or activity that receives Federal funds’, and is directed at eliminating financial participation of Federal funds in discriminatory programs.130 It requires Federal agencies to not only create regulations that prevent Federal aid recipients from discriminating, but also to enforce that obligation.131 Section 601 of Title VI prohibits intentional discrimination, either direct of circumstantial. Direct evidence of a discriminatory motive is unlikely and therefore, most cases rely on circumstantial evidence for proof of a defendant’s discriminatory motive.132 Section 602 of Title VI gives Federal agencies the authority to adopt regulations and guidance to implement Title VI and effectuate the purpose of Section 601.133All Federal agencies have adopted regulations that prohibit both intentional discrimination and discriminatory effects, also called disparate impacts.134 In essence, disparate impact claims seek to show that while a policy may be facially

127

Ibid.

128

Ibid., at 96.

129

Enforcement of Title VI of the Civil Rights Act of 1964, available at (visited 30 Aug 2003).

130

42 USC s. 2000 et. seq.

131

Ibid.

132

Ibid.

133

Ibid.

134

Ibid.

336

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neutral, in practice it has a discriminatory effect by negatively affecting one segment of the population defined by race, colour, national origin, etc.135 This criteria was laid out by the court in Simms v First Gibralter Bank, which stated, ‘[t]he relevant question is whether a policy, procedure, or practice specifically identified by the plaintiff has a significantly greater discriminatory impact on members of a protected class’.136 There are two ways in which environmental justice advocates can use Title VI. One, advocates can file a suit in court for violations of Title VI. This tool has been severely limited by the Supreme Court, as is explained infra. Two, advocates can file an administrative complaint with the appropriate federal agency. An administrative complaint states that a recipient of the federal agency’s funds has violated Title VI. For example, in most environmental disputes, Title VI complaints are filed with the EPA. The complaints usually allege that a state environmental protection agency has engaged in discriminatory practices and as the state agency receives funds from the EPA, Title VI is violated. The respective government agency is then obligated to determine whether or not the administrative complaint should be investigated. The following chapter on fieldwork activities in the US highlights several examples of administrative complaints. Before turning to the recent court developments regarding the ability of private individuals to use Title VI, a summary of Section 1983 will be presented. Section 1983 works in tandem with Title VI, and as will be seen infra, was looked to as a possible tool when restrictions were placed on Title VI. The next section presents Section 1983. (f) 42 USC 1983 42 USC 1983 (hereinafter Section 1983) regulates civil action for the deprivation of rights. 137 The statute itself is brief, yet the interpretation of the statute is complex and vast. The statute states, in relevant part: Every person who, under color of any statute, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

135

Ibid.

136

Simms v First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir.), cert. denied, 519 US 1041 (1996).

137

42 USC 1983 (2005). 337

Access to Environmental Justice: A Comparative Study

the party injured in an action at law, suit in equity, or other proper proceeding for redress …138 To establish a Section 1983 claim, plaintiffs must show that the defendant acted under the colour of law and that as a result of defendant’s action, the plaintiff was deprived of a right, privilege, or immunity that is secured by either the constitution or by relevant laws.139 After a federal right is established, a rebuttable presumption that the right can be privately enforced arises.140 Defendants can overcome this presumption by showing that Congress intended to foreclose private action by providing a comprehensive scheme by which the right at questions could be enforced.141In other words, if it can be established that Congress intended the right in question to be enforced by some means other than private enforcement and Congress also provided a means by which the right could be enforced, than Section 1983 does not allow private citizens to enforce that right. In the environmental justice context, to use Section 1983, plaintiffs must establish that the EPA discriminatory effects regulation, the agency’s implementation of Title VI requirements, constitutes a ‘federal right’ for Section 1983 purposes.142 Whether this right can be established is currently uncertain. Previous to 2002, the plaintiffs needed to meet three tests to have a right declared a federal right under Section 1983.143 Plaintiffs must show that 1) they were the intended beneficiaries of the statute; 2) the asserted right was not so vague and amorphous as to be judicially unenforceable; and 3) the law imposed a binding obligation on the state.144 Under these requirements, it seems that the EPA’s discriminatory effects regulations would give rise to a federal right because environmental justice plaintiffs would meet all three tests. They are the intended beneficiaries of the statute. The discriminatory effects regulations were implemented to ensure that communities of colour and poor communities would not be discriminated against due to their race, colour, or national origin.145 The asserted right is not vague it is clear: recipients of federal funds may not engage in discriminatory

138

Ibid.

139

Hoffer, M.A., ‘Dedication: Closing the Door on Private Enforcement of Title VI and EPA’s Discriminatory Effects Regulations: Strategies for Environmental Justice Stakeholders After Sandoval and Gonzaga’ 38 New England Law Review 971, 992 (2003–2004).

140

Ibid.

141

Ibid.

142

Ibid.

143

Blessing v Freestone, 520 US 329 (1997).

144

Ibid., citing Wilder v Virginia Hospital Assn., 496 US 498, 509 (year)

145

EPA Title VI Regs, above n. 59.

338

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practices.146 Finally, the EPA imposed a binding obligation on states to follow the requirements as set out in the regulations. In 2002, however, the Supreme Court handed down a ruling that seems to have changed the test that plaintiffs must meet to establish an actionable federal right.147 In Gonzaga, the Supreme Court ruled that to establish a federal right, there must be ‘clear and unambiguous’ evidence that Congress intended to create a right enforceable under Section 1983.148 The Congressional intent must be reflected in ‘rights-creating’ language.149 The Court cited section 601 of Title VI as an example of Congressional intent necessary to create an enforceable right for Section 1983 purposes.150 Section 601 of Title VI states ‘no person in the United States shall … be subjected to discrimination under any program or activity receiving Federal financial assistance’. Compared to this example, the EPA regulations clearly do not meet the standard to establish an enforceable right. The regulations do not have an ‘rights-creating’ language and there is no clear Congressional intent present in the regulations. While the Court did not explicitly overrule the Blessing test, it seems unlikely that the EPA regulations would create an enforceable action. Combining the Court’s ruling in Gonzaga with the Court’s ruling in Sandoval, presented infra, it seems that civil rights law is no longer a viable option for environmental justice advocates. The next section completes the picture of the current ability to use civil rights law in environmental struggles. The case of South Camden Citizens in Action v NJ Dept. of Environmental Protection addresses the environmental justice claims of the siting of a cement plant in a disparate community. After the initial district court ruling in Camden was passed down, the Supreme Court ruled that there was no private right of action to enforce disparate impact regulations under Section 602 (the section that authorises agencies to implement Title VI).151 The next section presents the Camden case, the Sandoval case and the impact Sandoval had on the ensuing Camden litigation. The next section begins with an in-depth summary of the district court’s initial ruling in Camden.

146

Ibid.

147

Gonzaga University v Doe, 536 US 273 (2002).

148

Ibid., at 290.

149

Ibid., at 284.

150

Ibid.

151

Alexander v Sandoval, 532 US 275 (2001). 339

Access to Environmental Justice: A Comparative Study

(i) South Camden Citizens in Action v New Jersey Department of Environmental Protection For a brief moment in time, the federal court in the District of New Jersey handed down the decision that environmental justice activists had worked and hoped for.152 In that decision, the court ruled that even though the New Jersey Department of Environmental Protection followed the requisite technical environmental protocol in granting an operating permit to the St. Lawrence Cement Co., it nonetheless violated the civil rights of the community by granting the permit.153 The decision was short-lived, standing for only five days before being stayed and eventually overturned by the appellate court.1 5 4 The following section presents the original decision, how Sandoval affected the original decision, and the subsequent appellate court and district court decisions. (ii) District Court’s Initial Decision The original petition filed by the plaintiffs requested a preliminary injunction against further construction by the St. Lawrence Cement Co. (SLC) on its production plant and vacation of the original permits issued by the Department of Environmental Protection (NJDEP) that allowed for construction and operation of the plant.155 The plaintiffs were residents of a neighbourhood in Camden, New Jersey known as Waterfront South. The population of Waterfront South is overwhelming of colour, with 63% African-American, 28% Hispanic, and 9% non-Hispanic white. In contrast, the demographics of Camden County in general are 75.1% nonHispanic white, 16.2% African-American, and 7.2% Hispanic. The state of New Jersey is comprised of 79.4% non-Hispanic white and 20.6% non-white. The residents of Waterfront South suffer from a disproportionately high rate of asthma and other respiratory ailments. The asthma rate for Waterfront South residents is 33%, more than twice the rate of other parts of the City of Camden. In addition to asthma, an independent medical doctor was asked to study the health consequences of the proposed SLC facility. Dr. Berlin was appointed by the NEDEP Commissioner and his findings were not challenged. He concluded that the cancer rates for females in the Waterfront South area was 90% higher than the rest of the state. The cancer rates for black males was 70% higher than

152

South Camden Citizens in Action v New Jersey Department of Environmental Protection, 145 F Supp 2d 446 (D NJ 2001) (hereinafter ‘South Camden (I)’).

153

Ibid., at 451–452.

154

South Camden Citizens in Action v New Jersey Department of Environmental Protection, 274 F 3d 771 (3rd Cir 2001) (hereinafter ‘South Camden (III)’).

155

The following facts are found in the court’s statement of facts in South Camden (I), above n. 152, at 451–456.

340

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the rest of the state. The death rate of black females in Camden County from asthma was over three times the death rate for white females from asthma in Camden County. The death rate for black males from asthma was over six times the death rate of white males from asthma. SLC’s proposed facility would emit various pollutants into the air, including particulate matter (dust), mercury, lead, manganese, nitrogen oxide, carbon monoxide, sulphur oxides and volatile organic compounds. The neighbourhood is already home to several industrial facilities. It contains the Camden County Municipal Utilities Authority, a sewage treatment plant, the Camden County Resource Recovery facility, a trash-to-steam plant, the Camden Cogen Power Plant, a co-generation plant, and two United States EPA designated Superfund sites. Additionally, four sites within one-half mile of SLC’s proposed facility were under investigation by the EPA for the possible release of hazardous substances. The NJDEP had also identified fifteen known contaminated sites in the Waterfront South neighbourhood. Despite these facts, the NJDEP granted the necessary air permits to SLC to allow its proposed facility to begin operations. In so doing, the NJDEP considered only whether the facility’s emissions would exceed technical emissions standards for specific pollutants, especially dust. It did not consider the level of ozone generated by the truck traffic to and from the SLC facility. This is in addition to the fact that the Waterfront South Community is no currently in compliance with the National Ambient Air Quality Standard established by the EPA. Nor were the presence of many other pollutants in Waterfront South considered. Nor was the pre-existing poor health of the community considered or the cumulative environmental burden the community already had to bear. Finally, the NJDEP did not consider the racial and ethnic composition of Waterfront South. The only criterion used by the NJDEP in evaluating SLC’s air permit applications was whether the facility would meet the air quality standard established by the EPA. If the proposed facility did not exceed the standard, it will generally be permitted. At the time of South Camden I, the Supreme Court had not decided whether a private cause of action was allowed under Section 602 of Title VI of the Civil Rights Act.156 As stated earlier, section 602 of Title VI implements the prohibitions set out in section 601. The court continued with the Section 602 analysis because the Third Circuit Court of Appeals, the controlling appellate court for the district of New Jersey, had stated that Section 602 creates an implied private right of action.157 The court agreed that NJDEP violated Section 602 for several reasons.

156

South Camden I, above n. 152, at 473.

157

Ibid., at 474. 341

Access to Environmental Justice: A Comparative Study

First, the court looked to the plain language of both Title VI and the EPA’s specific implementing regulations, which prohibit any program that receives assistance from the EPA, ‘from excluding from participation in, denying the benefits of, or subjecting to discrimination an person on the basis of race, colour, or national origin’.158 The court concluded that the EPA had specifically interpreted Title VI to prohibit recipients of EPA funding from utilising criteria or methods that would have the ‘purpose or effect’ of discrimination against individuals based on their race, colour, or national origin.159 As such, the NJDEP must consider more than just the environmental standards to comply with the Title VI obligations.160 Second, the court looked to the Executive Order 12898 on environmental justice. While recognising the lack of enforcement mechanism under the Order, the Court looked to it to further clarify the federal government’s understanding of Title VI.161 The Court concluded that the executive order clearly states that each federal agency should make achieving environmental justice part of its mission, ‘by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its program, policies and activities on minority populations’.162 The court stated that the Executive Order thus undercuts defendants’ claim that it met Title VI requirements by doing a strict technical environmental study.163 In the same vein, the court looked to the EPA’s own interpretation of Title VI as codified.164 The court noted that the EPA determined that Title VI imposed an affirmative obligation on funding recipients to include consideration of Title VI criteria in their permitting decisions.165 Taking all the sources governing Title VI and its implementation at the Federal agency level, the court concluded that compliance with Title VI requires more than just compliance with air quality standards.166 Finally, NJDEP’s claim that it had fulfilled its Title VI obligations was completely undermined by its own statements.167 The court pointed out that the commissioner of the NJDEP had issued several Administrative Orders acknowledging

158

Ibid., at 475, quoting 40 C.F.R. § 7.30.

159

Ibid., quoting 40 C.F.R. § 7.35(b)

160

Ibid.

161

Ibid., at 476.

162

Ibid., quoting Executive Order 12898 § 1–101.

163

Ibid.

164

Ibid., quoting 40 C.F.R. § 7.10 et.seq.

165

Ibid.

166

Ibid.

167

Ibid., at 480.

342

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the NJDEP’s obligation under Title VI, the first of which established an ‘Advisory Council on Environmental Equity’.168 The council’s purpose was to ‘provide advice and guidance to the Commissioner and to assist the Department as it implements an environmental equity policy and a process’, environmental equity referring to the fair and equitable treatment in environmental decision-making regardless of race, colour, income, or national origin.169 The court concluded that it was clear that the NJDEP was aware that its obligations under Title VI extended beyond just ensuring that permitted facilities did not violate environmental laws, and in fact, included considering claims that a particular permit will result in an adverse, disparate impact in violation of Title VI.170 The court went on to say that NJDEP’s current interpretation of Title VI was not only erroneous, but eviscerates the intent of Title VI, namely, preventing agencies that receive federal funding from having the purpose or effect of discriminating in the implementation of their program.171 This court’s language and analysis was groundbreaking. The court interpreted existing legislation to conclude that there is an affirmative obligation to ensure Title VI is followed. For the first time, a court took the existing administrative orders, executive orders, and agency guidelines and forced the agency to follow them. The EPA’s Title VI guidelines have been in place since 1973.172 Yet, it had only required that environmental standards be met for fulfilment of Title VI requirements. In this case, the judge took the existing regulations and forced the EPA to abide by them. As stated previously, in the hundreds of administrative claims filed with the EPA for violations of Title VI, none have been successful. In this case, however, the judge clearly sets out the requirements and shows how the defendants plainly failed to meet them. More importantly, the analysis behind his decision is sound and cannot be contradicted because he looked only to the plain language of each order or statute. This can be contrasted to PIL decisions, as stated in earlier chapters, in which judges often ignore existing statute and implement their own ideas vaguely based in Constitutional rights. The court then concluded that the plaintiffs adequately demonstrated that the permitting and operation of the SLC facility, ‘when considered in the context of the current health conditions and existing environmental burdens in the Waterfront South community, is likely to adversely affect their health to a degree

168

Ibid.

169

Ibid.

170

Ibid., at 481.

171

Ibid.

172

Ibid., at 475. 343

Access to Environmental Justice: A Comparative Study

that meets the standard of “adversity” under Title VI’.173 More importantly, the court concluded that the plaintiffs had established a prima facie case of disparate impact.1 7 4 The court concluded that even though the policy in dispute was facially neutral, there was a disproportionate and adverse impact on minorities.175 In coming to this conclusion, the court pointed to the severe defects in NJDEP’s permitting process, mainly that it relied exclusively on environmental regulations without consideration for Title VI obligations.176 The court also pointed out that review of the EPA regulations, ‘clearly indicates that the EPA has determined that there is a causal connection between recipients’ permitting practices and the distribution of polluting facilities’, and enacted regulations to implement Title VI to ensure that the potential for disparate impact would be considered.177 The court stated that these regulations pointed to the conclusion that a recipient of federal funds’ permitting decisions are causally linked to the distribution of facilities as a matter of law.178 In sum, the court concluded that the plaintiffs adequately demonstrated that the NJDEP’s permitting practices resulted in an adverse, disparate impact on the basis of race, colour, or national origin and as such, met the requirements for proving disparate impact discrimination under Title VI.179 (iii) The Introduction of Alexander v Sandoval Five days after the district court issued its ruling, the Supreme Court handed down its decision in Alexander v Sandoval, holding that Section 602 of the Civil Rights Act did not, in fact, create a private right of action.180 In Sandoval, Alabama had amended their constitution to make English the official language.181 Consequently, the department of Public Safety mandated that all driver’s license test be administered in English only.182 A class action suit was subsequently filed by individuals that were qualified to take the test, but could not speak English fluently.183 The district court ruled that Section 601 did, indeed, create a private

173

Ibid., at 491.

174

Ibid., at 494.

175

Ibid.

176

Ibid.

177

Ibid.

178

Ibid.

179

Ibid., at 495.

180

Alexander v Sandoval, above n. 151.

181

Ibid.

182

Ibid.

183

Ibid.

344

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action and ruled that the English-only policy discriminated against non-English speakers based on national origin in violation of Title VI.1 8 4 The Appellate Court subsequently upheld the district court’s ruling.185 In 2001, the Supreme Court overturned the lower courts’ decisions.186 The Court stated that it could not be taken as given that Congress intended a private right of action to enforce disparate-impact regulations.187 The Court stated, ‘[N]either as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under section 602. We therefore hold that no such right of action exists.’188 The Court did acknowledge that private individuals may sue to enforce section 601 (prohibiting intentional discrimination) of Title VI and obtain both injunctive relief and damages.189 After the Court handed down the Sandoval decision, the parties conferred with the court and were asked to brief the court regarding whether plaintiffs were entitled to preliminary injunctive relief under Section 601 of the Civil Rights Act and whether the disparate impact regulations promulgated to enforce Title VI could be enforced through a Section 1983 action.190 Section 1983, as stated above, provides that any person who, ‘subjects or causes to subject any citizen of the United States … the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…’191 When the Camden case was before the district court, the Gonzaga decision had not been handed down. Therefore, the test for whether an enforceable right was created under Section 1983 was the test as set out in Blessing. (iv) District Court’s Decision after Sandoval The Sandoval ruling, at first, seemed to render the plaintiff ’s case as moot by ruling that private citizens could not bring actions under Section 602 of the Civil Rights Act. Practically, this meant that private citizens could not enforce

184

Sandoval v Hagan, 7 F. Supp. 2d 1234 (M.D. Ala 1998). (At the time of the initial suit, L.N. Hagan was the director of Alabama’s Department of Public Safety, by the time the case reached the Supreme Court, the new director was James Sandoval.)

185

Sandoval v Hagan, 197 F.3d 484, (11th Cir. 1999).

186

Alexander v Sandoval, above n. 151.

187

Ibid., at 284.

188

Ibid., at 293.

189

Ibid., at 279.

190

S. Camden Citizens in Action v NJ Dep’t of Envtl. Prot., F.Supp.2d 505 (2001) (hereinafter ‘South Camden II’)

191

42 USC § 1983 (2005). 345

Access to Environmental Justice: A Comparative Study

the implementing arm of Title VI. Instead, the only way that section 602 could be enforced was through governmental action. In effect, it can be argued that agency’s would not try to enforce section 602 against each other, as the resulting political situation would be too complex. The mandate of federal agencies does not include ensuring other agencies are in legal compliance. The district court, however, remained firm that the NJDEP permitting practices resulted in a disparate impact on the Waterfront South community.192 The court ruled that the Sandoval decision did not preclude Plaintiffs from pursuing their claims for disparate impact discrimination, in violation of the EPA’s implementing regulations to Title VI, under 42 USC § 1983.193 As such, the court ruled that Plaintiff ’s were entitled to preliminary injunctive relief for disparate impact discrimination based upon the violation of the EPA’s implementing regulations to Title VI as brought under 42 USC § 1983.194 In coming to this conclusion, the court notes that the Sandoval decision was explicitly limited to the determination that Section 602 does not create a private right of action.195 The court clarified that while a Section 602 itself did not create a private right of action, it did not mean that Section 602 could not be enforced by a private cause of action.196 Sandoval did not affect Plaintiff ’s right to bring a claim for disparate impact discrimination in violation of the Section 602 regulations under Section 1983.197 In determining whether Section 1983 is an available remedy, plaintiffs must prove two things.198 First, plaintiffs must establish that a federal right has been violated.199 Two, after establishing the federal right, plaintiffs must establish that congress foreclosed a remedy under section 1983 by providing, ‘a comprehensive enforcement mechanism for protection’ of the right.200 Meaning that Congress must have provided an enforcement mechanism to deal with violations of the established right. As such, with the enforcement mechanism in place, plaintiffs would not need to use section 1983 because there would be another mechanism for recourse. After extensive analysis of the requirements for bringing a Section 1983 action, the court concluded that the EPA’s implementing regulations for Title VI were not

192

South Camden II, above n. 190.

193

Ibid.

194

Ibid.

195

Ibid., at 518.

196

Ibid.

197

Ibid.

198

Ibid., quoting Golden State Transit Corp. v City of Los Angeles, 493 US 103, 106–107.

199

Ibid.

200

Ibid.

346

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extensive enough to foreclose recourse under Section 1983 and as such, again ruled in favour of the plaintiffs and held that NJDEP’s permitting process resulted in the Waterfront South community bearing a disparate impact.201 The court concluded that there was not another existing mechanism that could provide recourse such that section 1983 would not be needed.202 The court then held that, ‘Plaintiffs may enforce the disparate impact regulations promulgated by the EPA pursuant to § 602 of Title VI under 42 USC § 1983’, and accordingly, the court’s original order was to remain in full force and effect.203 Remarkably, the district court had sided in favour of the plaintiffs twice and even illustrated how the Sandoval ruling could be by-passed. The court legitimated the idea that communities of colour and poor communities bore a disproportionate amount of environmental harms. The Waterfront South community was clearly disproportionately burdened with environmental dangers and the court recognised that by only evaluating permits on a case by case basis and not in their totality, the NJDEP erred and violated the civil rights of the community members. Sadly, the appellate court quickly overturned this landmark judgment.204 The appellate court held that an administrative regulation could not create a federal right that would be enforceable under Section 1983 unless the interest was already implicit in the statute authorising the regulation.205 In other words, a federal right could not be derived from a statute unless the original statue somehow implicitly granted that right. As stated earlier, Gonzaga changed the standard for establishing an enforceable right. The plaintiffs could not meet this new standard. As such, because Title VI prohibits only intentional discrimination, the only enforceable right would be a prohibition against intentional discrimination.206 A disparate impact alone would not create an enforceable right.207 Therefore, the district court’s ruling was reversed and the case remanded back for further litigation.208 Once back in the district court, the majority of the plaintiffs’ claims were rendered moot by the appellate court and Supreme Court rulings.209 The only

201

Ibid., at 546.

202

Ibid.

203

Ibid., at 549.

204

South Camden II, above n. 190.

205

Ibid., at 771.

206

Ibid.

207

Ibid.

208

Ibid.

209

South Camden Citizens in Action v New Jersey Department of Environmental Protection, 254 F.Supp. 2d 486 (2003 D. NJ). 347

Access to Environmental Justice: A Comparative Study

claims remaining were intentional discrimination and private nuisance, both with extremely high burdens of proof.210 In essence, what could have been the start of a comprehensive body of case law that validated the environmental justice movement, ended in a lawsuit with two remaining claims that are virtually impossible to establish. The number of cases that had actually reached a court on a Title VI argument are few and far between, partly because the courts have been reluctant to encompass the environmental justice movement within Title VI rights and partly because of the difficult standing requirements mentioned earlier. Effectively, due to the Sandoval and Gonzaga decisions, the few cases that had been filed will drop to zero. Barring an extremely creative argument, Sandoval effectively gutted the possibility that environmental justice advocates could bring a discrimination claim under Title VI before the courts and Gonzaga effectively foreclosed Section 1983 as a potential avenue for recourse. However, since Title VI bars discrimination by agencies receiving federal funding, Title VI claims, as stated earlier, can still be filed with administrative agencies. Filing a Title VI claim before an administrative agency does not have the same wide sweeping impact as bring a claim before a court. However, because the agency administering the funding can rescind their funding, a successful administrative Title VI ruling can be extremely effective. Beyond the violating agency having its funding revoked, a successful Title VI action can also result in public exposure to the workings of the agencies and it is an acknowledgement that there is indeed a discriminatory process that is governing the decision making process. Citizen suits, administrative filings, and grassroots mobilisation are the main gateways used by environmental-justice advocates. The Centre on Race, Poverty, and the Environment (CRPE) is an organisation dedicated to providing legal assistance to struggling environmental justice communities using these gateways. CRPE is a subsection of the California Rural Legal Assistance Foundation. The Rural Legal Assistance Foundation represented the plaintiffs in Kettleman City and has focused on filing citizen suits and administrative filings based on claims of environmental discrimination and environmental injustice. The struggle in Kettleman City ended in victory in 1993 when Chem Waste declared they were withdrawing their application for constructing the toxic waste incinerator. The following section describes current cases at CRPE to highlight the way the present legal gateways are used and their eventual outcomes.

210

Ibid.

348

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VI. THE CENTRE ON RACE, POVERTY AND THE ENVIRONMENT The CRPE is located in San Francisco, California with a satellite office in Delano, California in the heart of the Central Valley.211 As a part of the Rural Legal Assistance Foundation, CRPE maintains an office in Delano to provide legal services to migrant farm workers, which make up a majority of the local population. Luke Cole, the Director of CRPE, represented the residents of Kettleman City and helped create the modern environmental- justice movement. CRPE focuses on national, state, and local issues. Two current cases help to highlight the current environmental-justice struggle: the Kivalina Relocation Planning Committee v Teck Cominco, Alaska and the Title VI claim filed with the Department of Energy on behalf of the residents of Blythe, California. These cases are explained in detail in the following sections. (a) The Kivalina Relocation Planning Committee Case Teck Cominco, Inc. operates the world’s largest zinc mine in rural Alaska called the Red Dog Mine. The mine discharges into the Wulik River. For this discharge, Teck Cominco operates under a permit issued by the EPA under the Clean Water Act. The Kivalina Relocation Planning Committee (KRPC) is comprised of villagers of Kivalina, whose residents are members of a native Eskimo tribe. The KRPC was created to help the village relocate to another position on the Wulik River, as its current location was not sustainable. The members of KRPC, as well as other villagers, began to notice sores and oozing wounds on and in the fish they were catching from the river. The villagers live a subsistence lifestyle and live off of the fish and seals they catch from the river. They also began to notice that fewer bearded seals were appearing and that the shrimp the seals feed on were declining in significant numbers. When they started inquiring as to the change in conditions, they discovered that the Red Dog Mine had been violating its Clean Water Act permit almost every day since operation. Working with CRPE, KRPC brought suit under the Clean Water Act against Teck Cominco for over 3,000 violations of their operating permit. The Clean Water Act allows for citizen suits for real parties in interest that have suffered an injury as a result of violations that are ongoing or capable of repetition. It does not, however, allow citizens to file suit for violations wholly in the past. KRPC moved for summary judgment on over 1700 of the violations.212 Under the penalty provisions of the Clean Water Act, each violation

211

The following observations and experiences are drawn from the impressions of the author as a member of the legal team from January 2004 – August 2004.

212

In US courts a motion for summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. 349

Access to Environmental Justice: A Comparative Study

could carry a fine of up to $25,000. Each of the more than 3,000 violations would be subject to this penalty. As litigation proceeded, another group, the NANA Regional Corporation, filed a motion to be included as an intervener.213 NANA is responsible for managing tribal lands in the area. Companies like Teck Cominco, work in conjunction with NANA to operate their businesses on tribal lands. NANA had approved the opening of the Red Dog mine even though the villagers of Kivalina opposed the mine. NANA and Teck Cominco brought a motion for summary judgment claiming that KRPC did not have the capacity to bring suit and therefore did not have standing before the Court. They alleged that KRPC was created only as an advisory board and was never intended to have an independent existence. As such, KRPC was not a ‘citizen’ as defined under the Clean Water Act or a ‘real party in interest’ and therefore did not have standing to raise the alleged violations of the Clean Water Act. While it is true that KRPC was created as an advisory committee, in reality, the members suffered direct injury as village members and brought suit on behalf of themselves as individuals, as named in the complaint, and on behalf of their village. However, the judge in this case ruled that KRPC was in fact not allowed to bring suit, granted the motion to dismiss, and even went one step further to pre-empt any possible amendment to the complaint by the plaintiff. Even though it was not an argument raised by the defence, the Judge pointedly stated that, even if the complaint was amended to include just the six individuals, it would violate the notice requirement under the Clean Water Act and therefore would be dismissed. Under the Clean Water Act, a 60-day notice must be given to the alleged violator that a violation of the Act has been suspected and a citizen suit will be filed.214 In turn, the alleged violator has notice of a possible violation and has the chance to rectify the situation or face a citizen suit. KRPC filed a 60-day notice against Teck Cominco in 2002, and then a year later filed a second notice, this time listing the six individual members of KRPC as those filing the notice of violation. The Judge ruled that the second 60-day notice, filed under the names of the individuals, could not be used in the present case against Teck Cominco and a second, separate suit must be filed on the basis of the second 60-day notice. The significance of this case is two-fold. First, it shows the difficulty for plaintiffs in meeting standing requirements, even when they are clearly laid out in substantive statutes. Secondly, and more disturbing, is the severely flawed judgment handed down by the court. Here, the ruling pre-empts potential arguments that could be raised by the plaintiff. This is one step above and beyond judicial neutrality. A

213

A motion to be included as an intervener is included when there is another party that has such an interest in the litigation that it would not be just to exclude them.

214

Clean Water Act notice provision, 33 USC s. 1365(b) (2005).

350

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ruling should not pre-empt potential plaintiff ’s arguments not require making arguments on behalf of the defence. Furthermore, the ruling disregards the spirit of the law. The purpose of the 60-day notice requirement of the Clean Water Act is to give the defending party notice that litigation will ensue. As the parties were already heavily involved in the discovery phase of litigation, it was quite clear to the defendants that they were engaged in litigation and therefore, the purpose and spirit of the notice letter requirement – to give potential defendants notice that they would be engaged in litigation – was met. CRPE has filed a motion to alter the judgment to allow for substitution of plaintiffs, and an amended complaint to substitute the six individuals that served on the KRPC for KRPC. In addition, they have filed a new suit against Teck Cominco. However, they will lose a substantial amount of violations and will have to start the litigation process from square one. The violations will be lost because under the Clean Water Act, alleged violations must be on-going at the time the citizens suit it filed.215 In the time between the first and second notice letters, the EPA changed Teck Cominco’s operating permit discharge levels. The new permit had much higher levels allowed for discharge and as such, the violations under the old permit would no longer be allowed under the new suit. The new suit could only count violations by the standard of the new permit. This case is a clear illustration of the subtle institutional bias against citizen suits. This suit was brought by a small group of villagers that are slowly being poisoned by the toxic water that is already killing off their food source. As the company is required to keep discharge-monitoring reports, the amount of toxins released into the river is clearly documented. Yet, even with these concrete facts, substantive law, and legality on their side, they fight an uphill battle for justice. (b) The Residents of Blythe, California’s Title VI Claim Blythe is located in central California close to the Arizona border.216 It is a town that is mainly farm workers and, similar to many other communities in central California, most of its residents are Spanish-speaking. On 21 March 2001, the California Energy Commission (CEC) granted a permit to Blythe Energy LLC to build a power plant in Blythe. The CEC has public participation requirements in their permit process. When the residents of Blythe discovered Blythe Energy’s plan to build a power plant, they moved to invoke CEC’s public participation process. As Blythe has a strong majority of Spanish speakers, translation of documents and meetings was a key element for the ability to participate. The CEC’s actions

215

Clean Water Act, 33 USC s. 1365.

216

This case study is also a first hand observation by the author. 351

Access to Environmental Justice: A Comparative Study

indicate that meaningful participation was not a primary concern. Examples of instances in which the CEC thwarted meaningful participation in public meetings include instructing those who sought Spanish translation to go to the back of the room for translation or to wait until the conclusion of the meeting for Spanish translation; holding meetings not in Blythe, the community that would be affected by its decision, but in its home office in Sacramento, hundreds of miles away; long delays in teleconferencing forcing the residents of Blythe to wait, missing hours at work, hours at home, and hours in the community; and under the guise of disrupting official proceedings, threatening a protester into silence on threat of being removed by the police. To add to these violations of the public participation requirement, the CEC decided to grant the permit to Blythe Energy, even though the proposed plant would be sited on an area that encompassed sacred Native American land. Furthermore, the plant would engage in wet cooling, a process that requires a significant amount of water each year. Blythe is located in a dry, desert area. The small amount of water that exists is diverted for the purpose of agriculture, the main employment of the residents of Blythe. These factors pushed the residents to file a Title VI claim with the Department of Energy (DOE). As stated previously, Title VI prohibits federal agencies from funding programmes that intentionally discriminate based on race, colour, or national origin. As the CEC receives grants from the DOE, they must act within the confines of Title VI. The DOE has just one staff member assigned to investigate all the Title VI claims that it receives. To alleviate this burden, the DOE proposed mediation for the residents of Blythe and the CEC as an alternative adjudicatory measure.217 The Federal Mediation Program is a well organised reconciliation program that often helps in resolving labour disputes. While not a formal mediation, the meeting was held to determine if Federal Mediation could resolve the conflict between the community members and the DOE. Attending the mediation were three mediators, one attorney representing the CEC, the DOE staff member in charge of investigating Title VI claims, an attorney representing Florida Light and Power (the parent company of Blythe Electric, LLC), several community members, and two attorneys from CRPE. Mediation was thought to be a potential gateway that would lead to a resolution much quicker than if the administrative complaint were investigated by the overburdened DOE. During the course of the mediation, the residents of Blythe were able to present their side of the story. Contrary to the well-dressed, professional representatives, the residents of Blythe were dressed casually and spoke in a manner that was simple, plain, and very frank. They described how they were shut out of the

217

As opposed to arbitration, mediation is a non-binding process in which a third party enters to help resolve differences without either party forced to take the decision of the mediator.

352

12. Access to Environmental Justice in the United States

participation process, how they had actively tried to participate and were denied the opportunity. They described the sacred grounds that would be destroyed as a result of the plant’s proposed location. They told how the energy company had tried to win them over with promises of jobs which never seemed to materialise. Finally, they presented data showing the drastic and devastating effect the wetcooling process would have on the community and the burden the diversion of water would cause. They also presented the alternative of using dry-cooling, a process that uses air to cool the plant and uses significantly less water. In fact, the CEC had approved a plant that used dry-cooling, which was placed in an area that was comprised of primarily white residents and had a much higher water reservoir, as it was located close to a river. While the residents were finally free to tell their tales, in the end, the CEC representative maintained that, while their efforts were flawed, they had tried to provide gateways for participation and that their hands were tied as they had already granted a permit. Even though there was another permit from Florida Light and Power for yet another power plant in Blythe, again using wet-cooling, the CEC refused to consent to a change in their participation process. The main concern of the Florida Light and Power was that they wanted to stop any further litigation. The only thing they offered was to listen to the residents, even if in the end the result was the same. The case is still under consideration. If the parties cannot agree to mediation, the complaint will return to the DOE, where it will be investigated by the DOE. The residents were able to finally have a voice in front of a captive audience. As evidenced by the proposal by the attorney representing Florida Light and Power, the parties had no intention of considering the information they have heard. In the end, while mediation could lead to a quicker resolution, it is not an effective gateway for resolution because participation in the process, as well as acceptance of the mediator’s recommendation, is completely voluntary. While the community may be willing to engage, because legislation and judicial decisions heavily favour potential defendants, it is unlikely that they would engage in mediation. Potential defendants have no motivation to enter into mediation because the law is on their side. These cases show the constant struggle of minority communities. They struggle to participate in process that ultimately will result in changes to their very land and community. They struggle to stop the poisoning of their water. They struggle to protect their livelihoods. They struggle to protect their sacred ground. Seemingly it is an uphill battle, but the dedication of these activists is inspiring and unending. In the end, they hold onto victories, like Kettleman City, and work towards the next victory.

353

Access to Environmental Justice: A Comparative Study

VII. CONCLUSIONS While the struggle for environmental justice may seem disheartening, it is important to note that ten years ago there was no dialogue focusing on the inter-relation of race, poverty, and environmental discrimination. Now, there is a definitive movement of environmental justice focused on eradicating environmental discrimination. As mentioned earlier, advocates can use substantive environmental laws as well as administrative mandates to eradicate these environmental harms. The ability to carve out a niche within the mainstream environmental movement is one of the reasons why the environmental justice movement is considered to be a success. There are mutual benefits to having a coalition between environmental and social concerns.218 While mainstream conservationists ideologies often received criticism for being elitist, these traditional conservationist groups can only benefit from the broadened base of support that comes with adopting a more social justice-oriented approach to environmental issues. The issue of environmental justice cannot be viewed solely from an environmental perspective; nor can it be viewed solely from a social justice perspective. Rather, the two must be inextricably intertwined and addressed. Although environmental justice is a relatively new field, it is clear from the cases presented that a new approach is emerging that combines social and environmental concerns. This gives way to a movement where people are empowered because their problems are not seen in a vacuum, but instead, there is a multi-faceted approach that envelops all of their concerns. While it seems that the victories are few and far between, it must be noted that this movement is not aiming to win small victories, but it is aiming to change the way people view environmental issues.

218

See Agyeman, above n. 11, at 92.

354

A NOTE ON ENVIRONMENTAL LAW-ENFORCEMENT DUTIES Andrew Harding

O

ne point that is repeatedly made in most of the chapters of this book is that environmental law is ineffective because it is not systematically enforced, or in some cases not at all. The question therefore repeatedly arises, how are duties with respect to the enforcement of environmental laws themselves enforced within the legal system? Who commands the guards to guard? Since the various chapters do not discuss this issue in any detail, this note sets out a few points regarding judicial review as a means of compelling environmental agencies to perform their statutory duties, and in particular their duty to enforce environmental laws. These comments are confined to doctrinal discussion of common law systems and are not strictly relevant ot civilian systems such as the PRC and Indonesia. In general one has to be pessimistic about the common law as a means of enforcing public duties in general: At almost every point in the law relating to judicial review of public duties one experiences a sense of disappointment at the inconclusiveness of the doctrines propounded, and in some instances the sheer timidity of the decisions … doctrinally the law of public duties has been encrusted with principles which almost seem designed to avoid rather than create a law of public duties … The administration benefits to the extent of a large area of immunity which, if it represented a general picture of administrative law, would cause a public outcry.1 Examples that amplify this general statement are as follows: (i) there must be a demand for performance of the duty followed by a clear refusal to perform;2 1

Harding, A.J., Public Duties and Public Law (Oxford, OUP, 1989), 275, 278 [‘PDPL’].

2

This principle has been watered down in recent times. Probably it can be implied by failure

Harding (ed.), Access to Environmental Justice: A Comparative Study, 355–361 ©2007 Koninklijke Brill NV. ISBN 978 90 04 15783 5. Printed in the Netherlands.

Access to Environmental Justice: A Comparative Study

(ii) mandamus is not available against the Crown;3 (iii) the duty is one of ‘imperfect obligation’, ie is not legally enforceable;4 (iv) the duty is not absolute, only a duty to act reasonably;5 (v) the authorities are unable (due to duress or poverty of resources), rather than unwilling to act, or performance is impossible, and they should be excused;6 (vi) there is an alternative remedy;7 (vii) the applicant has no locus standi;8 (viii) the court has a discretion to refuse relief.9 It should further be noted that there are few cases involving precisely the duty to enforce the law (as opposed to other species of duty), and, again, few of these cases involve environmental-law-enforcement duties. However, there are some encouraging features, which will be outlined in turn. There is no difficulty in implying into a statute providing for criminal or administrative sanctions a duty to enforce the law, even though such a duty

to act, or is just one way of proving non-performance of the duty: PDPL, 97–101. 3

This principle derives from 19th century English cases against the Treasury, and is probably not now available against Ministers exercising statutory functions: PDPL, pp. 87–96. In an environmental case, Re Central Canada Potash Co and Minister of Mineral Resources of Saskatchewan (1972) 32 DLR (3d) 107, affd (1973) 38 DLR (3d) 317n, the Minister refused a mineral-working licence; mandamus to grant the licence was refused on the ground that he was the representative of the Crown. This decision is wrong: see eg Re Toohey (Aboriginal Land Commissioner) ex p Northern Land Council (1981) 56 ALJR 164 HCA, another environmental case. An Environmental Protection Agency could not, in any event, be defined as being the Crown.

4

E.g., Fairfax (John) Ltd v Australian Postal Commission [1977] 2 NSWLR 124; cf Bradley v Commonwealth (1973) 128 CLR 557 HCA. In these cases, a duty to provide postal services was nonetheless recognised and enforced. However, in Mutasa v AG [1980] QB 114 the Crown’s duty to protect its subjects, and in Watt v Kesteven CC [1955] 1 QB 408 a local education authority’s duty to educate children according to the wishes of their parents, were held not to be enforceable: PDPL, 24–28.

5

E.g., in R v Kensington & Chelsea LRC, ex p Birdwood (1976) 74 LGR 424 it was held that a duty to keep the streets clear of garbage was not absolute but only a duty to act reasonably. Similarly with a duty to keep footpaths clear of snow and ice: Haydon v Kent CC [1978] QB 343: PDPL, 56–61.

6

Examples given below.

7

Examples given below.

8

Examples given below.

9

E.g., R v All Saint, Wigan (Churchwardens) (1875–6) 1 App Cas 611, HL.

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A Note on Environmental Law-Enforcement Duties

is never actually stated.10 The courts will also sometimes create a duty where there is only a power to act, on the basis that refusal to exercise the power would contradict the purpose of the statute.11 Where an authority obtains special statutory powers, or voluntarily adopts statutory powers already provided, there is an implied duty to exercise the powers.12 This is of particular relevance in environmental law, as some environmental legislation, for example public health legislation, is enforced only in places where it has been specifically adopted; this principle would also apply where an environmental agency seeks special powers from the legislature. It implies that once a public authority takes a voluntary decision to enforce the law, it must be enforced. Although enforcement authorities are given a very wide discretion how to utilise their resources, it is recognised that the law-enforcement duty cannot be wholly abandoned. For example, a general policy of not bringing prosecutions under a particular statute, or not prosecuting those who steal property worth less than a given amount, would be an unlawful dereliction of duty.13 While there is a discretion as to how to carry a duty into effect, duties are fundamentally different from mere powers.14 It is interesting to note that although in each of the three ‘Blackburn cases’ the applicant failed to obtain mandamus against the Metropolitan Police Commissioner to enforce the law, in the first two cases the Commissioner had to devote more resources to enforcement in order to avoid losing the case. In the first case he had to withdraw a circular to the effect that the gaming laws would not be enforced; in the second case15 he had to increase the number of officers assigned to enforce obscenity laws from 14 to 18. Both kinds of law are similar in many ways to environmental laws. One case in the House of Lords indicates that, while enforcement authorities can and should have regard to the expense of enforcement in individual cases, they cannot say

10

R v Metropolitan Police Commissioner, ex p Blackburn [1968] QB 118. In an environmental case from the Cromwellian period, reported at (1652) 82 ER 765, mandamus was granted to compel scavengers in London to perform their statutory duties. Why are we always told environmental law is a modern invention?

11

Julius v Bishop of Oxford (1880) 5 App Cas 214 HL; Padfield v Minister of Agriculture [1968] AC 997 HL. Both these cases involved statutory powers to deal with complaints, and are therefore highly relevant: see PDPL, 14–20. The Supreme Court of India held similarly in Ratlam MC v Vardichand [1981] 1 SCR 97,107.

12

Where a local authority adopted by-laws relating to garbage collection, the Supreme Court of Canada held they were under a duty to put them into operation: Joseph Investment Corp v Cite d’Outremnnt [1973] SCR 708.

13

R v Metropolitan Police Commissioner, ex p Blackburn [1968] 2 QB 118; PDPL, 64–70.

14

R v Marshland, Smeeth and Fen District Commissioners [1920] 1 KB 155.

15

R v MPC, ex p Blackburn [1973] 1 QB 241. 357

Access to Environmental Justice: A Comparative Study

that they will never carry out their duty because of fiscal constraint.16 In general, enforcement duties are, probably more easily enforced against local authorities and agencies other than the police. One Canadian case, Re Canadians for the Abolition of the Seal Hunt and Minister of Fisheries and the Environment17 deals specifically with an environmental-lawenforcement duty. On the following facts it was held that the Minister had not breached his duty to enforce the seal-hunting regulations. 83 officers covered an area of 420,000 square miles; in 1979 they took proceedings in 44 cases, 20 of which were against observers interfering with the seal-hunt; in 19 cases the seal-hunter’s licence was suspended. It was held as a fact that the number of cases was small compared with the likely number of infractions. There was also evidence that the enforcement authorities had refused to allow observers on terms which would enable them to observe the hunt effectively. What was required, it was held, was the deliberate turning of a blind eye or adoption of a policy of non-enforcement before mandamus would issue. The Judge expressly refused to balance economics against cruelty. This decision seems to ignore the fact that failure to enforce the law is just as serious if it is through neglect or lack of enthusiasm as it is if it is through deliberate policy. Equality is also fundamental to the performance of duties.18 This could be used to argue that unequal enforcement or performance (collecting garbage only in wealthy suburbs, or prosecuting only local enterprises and not multinationals?) is unlawful. Constitutional guarantees of equal protection can also be invoked here, as they are clearly applicable to enforcement agencies and prosecution decisions. The issue of alternative remedies to enforce duties requires separate discussion, because it revolves almost entirely around default powers, which are of cardinal importance in environmental law. About a hundred years ago, in Pasmore v Oswaldtwistle RDC19 a factory owner sought mandamus to compel the local authority to abate water pollution affecting his property by providing drains pursuant to its duty under the Public Health Act 1875. The House of Lords refused a remedy because the central government had, under the Act, been given default powers to act where the local authority failed to do so. This case has been followed on countless occasions, several of which have involved environmental questions.20 Previous cases involving attempts to compel sanitary

16

Stoke-on-Trent City Council v B&Q Retail Ltd [1984] 2 All ER 332, 334.

17

[1980] 111 DLR (3d) 333.

18

E.g., South of Scotland Electricity Board v British Oxygen Co [1956] 1 WLR 1069, HL; R v Bristol Corporation, ex p Hendy [1974] 1 WLR 498, CA.

19

[1898] AC 387.

20

PDPL, 106–110. See especially R v Marshland Commissioners [1920] 1 KB 155; Clark v Epsom RDC [1929] 1 Ch 287; Birdwood, above, n. 5.

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A Note on Environmental Law-Enforcement Duties

authorities to enforce vaccination laws were similarly treated.21 In a 1984 case the English Court of Appeal adopted a similar approach in a case involving settlement of gypsies under the Caravan Sites Act 1968, but conceded that the exercise of default powers was itself reviewable:22 movement of a sort, perhaps, but glacial movement. On the question of lack of resources, it has rarely been argued, at least in the last century or so, that lack of resources is a valid excuse for failing to perform a public duty. The question of resources has, however, been relevant to the question whether a duty can be implied. For example, in one English case the courts refused to imply a duty on the Department of Health and Social Services to search through four million files to discover 16,000 persons entitled to a refund, the performance of which task would cost ten times more than the benefits to be paid.23 Canadian authority suggests that lack of funds cannot be an excuse: ‘To hold otherwise might very well encourage public and governmental authority to disregard prudent limitations upon their expenses and then permit them to rely on their own improvidence as an excuse for non-fulfilment of their statutory duties’.24 In principle it must be the case that duties are imposed by the legislature instead of powers, precisely because expenditure should not, and cannot be, avoided. This principle should not of course be extended in such a way that the court effectively decides between conflicting duties which should have resources devoted to it. With regard to the developing countries, one Indian case has achieved fame: Ratlam MC v Vardichand.25 This case concerned an area in which the wealthy and privileged lived alongside street-dwellers. In the absence of public conveniences and proper drainage, the street-dwellers littered the street with excreta. Discharges from an alcohol plant and flooding from rain-water and domestic discharges created a foul stench from stagnant pools in which mosquitoes bred. As a result the health of the citizens suffered. The authority were under a statutory duty ‘to undertake and make reasonable and adequate provision for … cleaning public streets, places and sewers, and all places … which are open to the enjoyment of

21

PDPL, 64, n. 2.

22

R v Secretary of State for the Environment, ex p Ward [1984] 1 WLR 834; [1984] 2 All ER 556.

23

R v Secretary of State for Social Services, ex p Child Poverty Action Group, The Times 16 Aug. 1984.

24

McLeod v Salmon Arm Trustees (1952) 4 WWR (NS) 385,386. Krishna Iyer J made the same point more graphically in Ratlam: ‘otherwise a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be’: [1981] 1 SCR 97, 108–109.

25

[1981] 1 SCR 97. 359

Access to Environmental Justice: A Comparative Study

the public, … abating all nuisances … [and] disposing of night-soil’.26 A group of citizens brought an action under the Criminal Procedure Code, s. 133, which empowered a magistrate to order the abatement of a nuisance. The magistrate made such an order requiring the construction of drains and other remedial work within six months. The authority brought the case eventually up to the Supreme Court, arguing lack of resources to complete the work. They received short shrift from Krishna Iyer J, the Court, affirming the magistrate’s order, with variations, holding as follows: (i) The magistrate had a public duty to exercise his powers when the jurisdictional facts were present. (ii) The obligation to abate the nuisance rested clearly by statute on the authority. (iii) The statute operated regardless of financial inability, which could not be a defence; it was in any case a principal duty of the authority to preserve public health. The work could be financed from State Government loans and slimming the budget on low-priority and elitist items. The zeal for, and expense of, the litigation itself showed that the authority’s argument could not be valid. All wards, not just those involved in the case, should benefit. The case is a dramatic confirmation of the binding nature of public duties. It should be noted that it is not a case of mandamus, but of a ‘quasi-criminal’27 proceeding. It was also a case of enforcement of a duty to provide, not a duty of law-enforcement. If environmental duties are seen as amongst the principal duties of local authorities in the developing countries of the common-law world, it would seem that the Ratlam reasoning with regard to financial constraint would often be applicable. As Krishna Iyer J himself said: ‘The circumstances of the case are typical and overflow the particular municipality and the solutions to the key questions emerging from the matrix of facts are capable of universal application, especially in the Third World humanscape of silent subjection of groups of people to squalor and of callous public bodies habituated to deleterious inaction’.28 He went on to criticise the magistrate for stressing that the area was inhabited by prosperous and educated people: ‘In India “one man, one value” is the democracy of remedies and rich or poor the law will call to order where the people’s rights are violated’.

26

Municipal Act 1961, s. 123 (Madhya Pradesh).

27

The court’s own expression, above, n. 25, at 99.

28

Ibid., at 100.

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A Note on Environmental Law-Enforcement Duties

A few words are required about standing in the present context. The National Federation case29 affirms that standing can be obtained by citizens to secure the enforcement of a law-enforcement duty, notwithstanding that it was refused in that particular case.30 The Blackburn cases point in the same direction.31 The Canadian case law is rather odd: standing was refused in the Seal Hunt case referred to above, but granted to residents to compel enforcement of houseboat mooring regulations.32 In Environmental Defence Society v Agricultural Chemicals Board,33 a New Zealand case, an environmental group with more expertise than the government itself was refused standing to compel review of the registration of a chemical alleged to cause deformities in foetuses. The rules of standing can be argued to serve no real purpose.34 One can add that the arguments are especially powerful in environmental cases because environmental duties may be enforceable by no one, other than the Attorney-General, who never acts in these cases, if they are not enforceable by persons with no traditionally recognised ‘interest’ in the matter. The notion of a public duty being ‘owed to someone’ seems to me to make little sense. In conclusion, it remains to be seen whether the potential inherent in the law of public duties is being utilised in the countries discussed here. There are undoubtedly cases of the Ratlam variety being decided. It is likely, however, that only the vigour of Indian jurisprudence will have succeeded in making real progress in this field.

29

[1982] AC 617 HL.

30

The HL overruled R v Lewisham Union Guardians [1897] 1 QB 498, in which locus standi was denied a sanitary authority to compel the guardians of the poor to enforce vaccination legislation.

31

See above, and PDPL, 217.

32

Re District of N Vancouver and National Harbours Board [1978] 89 DLR (3d) 704

33

[1973] 2 NZLR 758.

34

PDPL, 221–228. 361

INDEX

Access to environmental justice importance of, 19 little expectation of, 10 negative factors, 10 positive developments, 10-11 right to, 237 SOAS project. See SOAS/A2EJ transnational, 17 Access to justice access to legal system, and, 6 Florence project, 5 Accra Accra Sustainable Programme, 46-47 air pollution, burning waste, from, 50 cooking fires, effect of, 49 road traffic, from, 50 standards, 49 Central Sewerage System, 56 city and people, growth of, 23-24 criminal law, protection of environment by, 37-38 crops, growing and sale of, 55 environmental crisis in, 26-27, 57 environmental features, 21 flooding, 27 Ga people, 23 Gold Coast, as capital of, 21 indigenous culture, 41-43

industrial development in, 25 land, access to, 52-54 Association of Vegetable Growers, role of, 54-55 exiting rights, uncertainty as to, 53 registration, 53-54 regulation, 50 settlement of disputes, 54 local customary laws, 41-43 local government, 40-41 migrants, accommodation of, 53 national context, economy in, 24-25 planning law, 24 pollution, 26-27 population, 23 Strategic Plan for Development of, 34-35 study of, 11 toilet facilities, 56 traditional authorities, 41-43 waste disposal, fees for, 55 home collection, 56 problem of, 55 public participation, 57 Waste Management Department, 56 water, 57

Access to Environmental Justice: A Comparative Study

water, bacteriological analysis, 48 disputes and complaints, 49 payments, 48 supply, 48 waste, disposal of, 57 Alternative dispute resolution environmental justice, as means of, 10 Asian Development Bank Access to Justice Programme, 199-203 Bangalore air pollution, criminal cases, 62 Bangalore Agenda Task Force, 74 Bangalore-Mysore Infrastructure Corridor, acquisition of land, 82-3 amount of land required, 84 concessions, 85 environmental clearances, 81-82 framework agreement, 81 future of, 86 memorandum of understanding, 80 Nandi Infrastructure Corridor Enterprises (NICE), 80-81 notification process,, challenge to, 85-86 public input, 81-82 real estate agent, NICE as, 84 reference model for, 81 compulsory acquisition of land, Bangalore-Mysore Infrastructure Corridor, for, 82-3 procedure, 78-80 shift in practice, 87 courts, 63 Development Authority, 60

364

democratic lacuna, 72 planning authority, as, 73 State Government, responsibility to, 73 environmental harm, bodies causing, 63 remedies, 63 environmental issues, public attention to, 60 environmental justice, access to, civil law gateways, 64-65 consumer protection system, 64-65 criminal law gateways, 63-64 democratic deficit, 71-75 environmental statutes, scope of, 64 gateways, 86 improvements, 87 lawyers, willingness of, 67 obstacles to, 67-75 public interest litigation. See public interest litigation, below public law gateways, 65-67 public nuisance, complaint of, 63 Garden City, known as, 59 green belt, 77 industrial areas, development of, 78 information, right to, 68, 75 Karnataka Industrial Areas Development Board, 61 Karnataka State Pollution Control Board, 62 land use, building and conversion, 76-78 compulsory acquisition, 78-80 high rise structures, 77 intensification of, 76

Index

law and practice, 76-80 park land, 77 land, access to, 59 Metropolitan Region Development Authority, 61 Municipal Corporation, 60 democratic validity, 72 Public Private Partnership, policy of, 73 satisfaction with, 75 State Government, responsibility to, 73 National Environmental Appellate Authority, 65 National Environmental Tribunal, 65 park land, 77 population, growth in, 59, 76 public interest litigation, cases, 66-67 court case, psychological limitations to bringing, 69 democratic deficit, 71-75 environmental standards, improving, 66 established state policy, no questioning of, 71 funding, 67-68 locus standi, 66 morale and motivation, lack of, 69 protection of environment, for, 65 scepticism as to, 69-71 technical information, need for, 68 specialist agencies, 62 study of, 11-12 water pollution, criminal cases, 62 water supply, 74

China, People’s Republic of criminal code, 232-233 economic growth, primacy of, 206 emission standards, 210 Environment Protection Law, 207-211 environmental impact assessment, 211 environmental justice, Administrative Litigation Law, 226-228 administrative mediation, 220-221 administrative penalties, 219, 223-226 administrative review, 225 agencies, informal decisionmaking by, 218-220 avoidance and force,, 216-218 civil proceedings, 229-230 complaints, right to bring, 230-231 corrective actions, requirement of, 223 court, appeal to, 226-231 criminal proceedings, 231233 excessive charge of pollutants, fees for, 230 extra-judicial sanctioning, 216 judicial review of penalties, 226-231 Letters and Visits system, complaints by, 222-223 liability, types of, 215 multiplicity of parties, involving, 228 negotiation and mediation, 218-223 power imbalances, problem of, 221

365

Access to Environmental Justice: A Comparative Study

rural protects, 217 State Environmental Protection Administration, role of, 217 umpiring, 223-233 unfair application of informal pressures, dealing with, 220 xinfang system, 222-223 environmental protection, agencies, informal decisionmaking by, 218-220 central and local government relationship of, 235 civil liability, 208 Conventions, party to, 233 criminal code, 232-233 environmental welfare, specific elements of, 210 flaws, 233-234 formal structures, 216 General Principles, 208 general purpose, 209 institutional framework, 205, 211-215 key aspects of, 206 law, code of, 206 legal framework, 205, 207211 local interests, 214 local legislation, 211 non-governmental organisations, role of, 213214 offences, 208-209 polluter pays principle, 209 property rights, obligations of, 208 top-down system, 234 Environmental Protection Bureaux, 212-213 Environmental Protection Offices, 212-213

366

environmental welfare, bodies with responsibilities for, 212 judicial independence, lack of, 16 legal reform, 205 marine pollution prevention and control, 210 neighbourhood and workplace dispute resolution, 218 noise pollution prevention and control, 210 people’s mediation, 218 power in, 16 scientific development, concept of, 207 socialist legality and democracy in, 205 State Environmental Protection Administration, 211-212, 217 study of, 16 sustainable development, notion of, 207 waste pollution prevention and control, 210 water pollution prevention and control, 210 Xiping Village, destruction of ecology and economy of, 214215 Enforcement of environmental law alternative remedies, 358 authorities, discretion of, 357 Canadian seal-hunting case, 358 common law as means of, 355 creation of duty, 357 developing countries, in, 359-360 equality of performance, 358 judicial review, by, cases on, 356 default powers, of, 359 issues, 355-356 lack of, 355

Index

public duties, binding nature of, 360 resources, lack of, 359 standing, 361 statute, implied in, 356-357 Environmental justice. See also various countries access to. See Access to environmental justice administrative review, 9 alternative dispute resolution, 10 consultation procedures, 9 decision-making, participation in, 1-2 elastic definition of, 4 legal claims, 8 legal gateways, 1, 5 drawbridge, as, 9 ineffective, 7 participation after decisions, 7 participation before official decisions, 6 social use of, 7 legal system, defensive use of, 9 remedies, 8 self-help remedies, 9 Environmental Law Alliance Worldwide (E-LAW) role of, 252 Ghana access to environmental justice, promising setting for, 21 Accra, study of. See Accra Association of Vegetable Growers, 45-46, 54-55, 58 Centre for Community Studies Action and Development (CENCOSAD), 44-45 Commission on Human Rights and Administrative Justice (Ombudsman),

fundamental rights violations, investigation of, 38 jurisdiction of, 28 regional and district offices, 29 community management, 43-44 constitutional history, 21-22 criminal law, protection of environment by, 37-38 cultural resources, 22 decentralisation of government, 28-29 District Assemblies, 28-29, 39-40 environmental decision-making, Commission on Human Rights and Administrative Justice (Ombudsman), 38 Environmental Impact Assessment, 32-34 Environmental Protection Agency, 31-32 judicial remedies, 36-38 legislation, 35-36 local agencies, 39-44 Ministry for Environment, Science and Technology, 30 national agencies and procedures, 30-38 National Planning Development Commission, 30-31 planning law, 34-35 Environmental Impact Assessment, 32-34 Environmental Impact Statement, 33 environmental law, colonial, 26 historical perspective, 25-26 Environmental Protection Agency, environmental permissions, grant of, 32-33

367

Access to Environmental Justice: A Comparative Study

establishment of, 31-32 functions of, 32 registration with, 33 water standards, prescription of, 47-48 expatriates, contribution of, 22 Fisheries Commission, 36 Forestry Commission, 35-36 Ghana Water and Sewerage Corporation, 47 indigenous culture, 41-43 judiciary, constitutional provision for, 29 La Mansaamo Kpee, 45, 58 land and natural resources, management of, 29 land tenure, 51-52 legal aid, right to, 30 local customary laws, 41-43 local government, District Assemblies, 28-29, 39-40 structure and powers, 39 urban Councils, 40 market gardening, 45-46, 54-55 Ministry for Environment, Science and Technology, 30 National Planning Development Commission, 30-31 non-governmental organisations, role of, 44-47 participation in decision-making, constitutional foundation, 27-30 policy framework, 27 planning law, 34-35 pluralist legal system, 11, 36 political instability, 27 Regional Tribunals, 29-30 stool lands, 52 traditional authorities, 41-43 traditional communities, 22

368

water, disputes and complaints, 49 payments, 48 piped, 48 provision, distribution and conservation of, 47 subsidies, removal of, 48 supply standards, 47 unreliability and irregularity of supply, 48 Hyderabad Khuda-ki-Bastio Incremental Development Scheme, 189 India Bangalore, study of. See Bangalore local democracy, improvement in, 73 public interest law, 12 Indonesia Administrative Court, litigation in, limitation period, 107 object of claim, 106 remedies, 108 review, grounds for, 107 unlawful licensing, as to, 108 alternative dispute resolution, Environmental Management Act, provisions of, 109-110 litigation distinguished, 110 mediation. See mediation, below anti-pollution programmes, 95 civil environmental litigation, causation, proving, 99-100 class actions, 97 compensation, right to, 98 framework for bringing claims, 96-97 limitation period, 98

Index

mixed picture of, 105 pollution or damage, evidence of, 100-103 rehabilitation, seeking, 104 remedies, 103-104 standing, 97 strict liability clause, 103 decentralisation process, 118-119 democratisation, 118-119 environmental audit, 96 environmental damage, communities, action by, 112 disputes, 91 evidence of, 100-103 environmental disputes, categories of, 91 court cases, number of, 90 damage, as to, 91 economic conditions, impact of, 116-117 increase in, 89 increase in, 122 judiciary. image of, 121-122 litigation, prospects for, 123 natural resources, use of, 91 nature conservation, on, 91 non-governmental organisations, role of, 120 paradox of, 90 pollution, as to, 91 state control, 119-120 environmental justice, Administrative Court, litigation in, 106-108 civil litigation, 96-105. See also civil environmental litigation, above decentralisation process, effect of, 118-119 definition, 91 duty of care, 93 forms of access to, 93

gateways to, 89, 123 information, right to, 94-96 legal gateways to, 92-108 liberalisation, effect of, 117118 litigation and mediation, access to, 116-122 police, litigation against, 108 principles, 93 Public Prosecutor’s Office, litigation against, 108 state, litigation against, 105108 uncertainty of concept, 92 environmental law, state of, 12-13 environmental litigation, regulation of, 93 Environmental Management Act, alternative dispute resolution, provision for, 109-110 first, 92 increase in cases since, 90 shortcomings, addressing, 92-93 successor, 92 information, right to, anti-pollution programmes, 95 environmental audit, 96 environmental, 94-96 firms, provision by, 94 lack, issue of, 96 legal mechanism for, 95 judges’ training project, 122 judiciary. image of, 121-122 liberalisation, effect of, 117-118 mediation, access to, 116-122 agreement, reaching, 113-114 drawbacks, 115 effectiveness, 123

369

Access to Environmental Justice: A Comparative Study

Environmental Management Act, provisions of, 109-110 factors in, 115 implementation of agreement, 114-115 moral concerns, impact of, 113 positive record of, 115 social distance, 111 starting, 110-113 State Ministry of the Environment, officials engaging in dispute. 111 strong call for, 109 threat of litigation, effect of, 112 voluntary, being, 110 natural resources, use of, 91 nature conservation, disputes, 91 non-governmental organisations, role of, 120 police, litigation against, 108 pollution, administrative sanctions, 100 decentralisation process, effect of, 119 disputes, 91 evidence of, 100-103 scientific evidence of, 102 public interest litigation, environmental organisations, by, 97 remedies, 104 Public Prosecutor’s Office, litigation against, 108 state control, 119-120 study of, 12-13 Karachi access to justice, 199-203 Ayub Khan’s coup d’etat, effect of, 181

370

colonial past, 178-180 construction of housing outside, plan for, 182 development on parkland, opposition to, 191 Doxiades plan, 181-182 environmental law, role of, 190 environmental litigation, 197199 First Information Reports, 191 Greater Karachi Plan, 181 growth in, 178 high-rise buildings, policy against, 197 history of, 178-180 illegal development, demolition of, 187 informal housing market, 183184 Karachi Development Plan, 189 Ombudsman, office of, 196-197 partition of British India, effect of, 180 pollution, combating, 193 population, 178 Rehmanabad, case study, 184186 sectarian clashes in, 177 Sheri, activities of, 198 Sindhh Katchi Adabi Authority, 187-188 slum-clearance, 182 squatter colonies, legal status, 186-187 numbers living in, 182 regularisation and upgrading, 186-190 Rehmanabad, case study, 184-186 study of, 15 Taikri Colony, 195-197 urban poor,

Index

academic literature on, 203 access to justice, 199-203 concerns of, 190 crime, issue of, 202 environmental laws, effect of, 194-197 environmental resources, access to, 195 legal system, experience of, 194 little effect of, 204 partition, after, 180 public interest litigation, effect of, 191 recurring themes, 203 removal, plan for, 181 survival of, 178 Kuala Lumpur environmental problems, 127 human rights and civil liberties in, 14 pollution, level of, 126 poverty, definition of, 126 social and economic dynamism, 126 squatter communities, clearance, by-laws, 147 eviction, 148-149 government supporters, rehousing, 146 illegal settlements, 145 infrastructure, 145 Kampung Merbau Berdarah, 148-149 land rights, 146-148 legal position, goal of changing, 148 wealth, race and status, differences of, 146 study of, 13-14 urban heat island effect, 127

Malaysia administrative decisions, time limit for challenging, 137 administrative law, 135 air pollution, 144-145 constitution, 127 democratic society, formal requirements of, 154 development control, 131-134 economic growth, 125 environmental decision-making, fiscal resources, 129 judiciary, role of, 135-141 judiciary, role of, 153 local government, 130 local standi, rules of, 136-137 objecting, 153 planning, 128-129, 131-134 public participation, 152-153 state matters, 128 environmental impact assessment, 151-152 environmental justice, access to, improvements needed for, 154-156 problems of, 154 environmental law, Environmental Quality Act, 128 historical perspective, 127128 environmental problems, 125126 human rights, environmental justice, link with, 141 freedom of expression, 142 fundamental, laws suppressing, 141-142 judiciary, environmental decisionmaking, role in, 153

371

Access to Environmental Justice: A Comparative Study

environmental functions, 135 usefulness, 135 jurisdiction, 127-128 Kuala Lumpur, study of. See Kuala Lumpur land rights, 146-148 legal proceedings, cot of, 140 licensing, environmental protection, as integral part of, 149 fees, 150 local government powers, 149-150 prescribed activities, of, 150 trade and industries, of, 150 local government powers, environmental decisionmaking, structure of, 130 licensing, 149-150 planning, 128-129 planning, adjoining neighbours, rights of, 133-134 costs and representation in, 140 draft structure plan, 132 law, lack of development of, 137-138 local government powers, 128-129 local planning authorities, 131 local standi, rules of, 136-137 NGOs, participation by, 134 permissions. See planning permission, below public participation, 132 State Government, responsibility of, 131 planning permission, applications, 132 conditions on, 132

372

revocation or modification, 133 sustainable development, policy of, 126 Torrens title, 147 tort, Asian Rare Earth case, 138139 causation, 139-140 costs and representation in, 140-141 expert evidence, 140 Highland Towers case, 139 law, 138 limitation, 140 water pollution, 143-144 Nepal access to justice, case law, 167-173 Civil Code, 166-167 constitutional remedies, 164-166 environmental information, to, 173-174 Environmental Protection Act, remedies under, 166 public interest litigation, 168 changes of government in, 175 deforestation, effect of, 158 development, environmental aspects, 157 recent phenomenon, as, 157 enforcement of environmental legislation, 175 environmental degradation, 158, 160 environmental impact assessment, Guidelines, 160, 162-163 importance of, 162 legal requirement, 160

Index

licence to establish industry, before grant of, 170 major development projects, for, 160-162 national system, 159 projects needing foreign assistance, for, 161 public involvement, 163 regulations, 164 scoping, 163 sectoral agencies, guidelines for, 161 statutory provisions, 163 environmental information, right of access to, 173-174 environmental policy, aims, 159 environmental protection, approach to, 160 constitutional remedies, 164-166 judgments, 164 piecemeal, 161 regulations, 164 statutory provisions, 163 forests, need to protect, 158 fundamental rights and freedoms, protection of, 165-166 King, assumption of absolute power by, 176 Least Developed Country, as, 158 local disputes, resolution of, 175 National Conservation Strategy, 159 National Planning Commission, role of, 157 Seventh Five-Year Plan, 158 natural resources, mismanagement of, 162 planning, public involvement, 174

policy process, incorporation of environmental matters, 164165 pollution, marble quarry, caused by, 167-173 remedial measures, adoption of, 172 preservation of environment, public participation in, 158-159 right to life and clean and healthy environment, link between, 167-173 study of, 14-15 Supreme Court, difficulties of travelling to, 174 Pakistan constitutional rights, 190-192 democracy, demise of, 190 Environment Tribunals, 192 environmental laws, pollution, combating, 193 slow start, 192 unimplemented, 192 urban poor, effect on, 194-197 environmental policies, experiences with, 193 environmental public interest litigation, 190 industrial emissions, pollution from, 192 Karachi, study of, See Karachi Law and Justice Commission, role of, 200 National Conservation Strategy, 193 Ombudsman, office of, 196-197 police, reform of, 202 problems in, 15 project areas, 200-201

373

Access to Environmental Justice: A Comparative Study

Papua New Guinea Constitution, 253-255 directive principles, 253-254 environmental protection, 255 government of, 254 land, customary ownership, 242 legal services, access to, 260 mining in, environmental protection laws, 255 foreign compensation claims, criminal sanctions against, 258 income from, 255 large-scale activity, 255-260 Ok Tedi, 257-260, 268-269 Panguna, 256-257, 268 national development in, 269 national goals, 253-254 SOAS/A2EJ access to environmental justice, study of, 4 citizens exerting influence over urban environment, study of, 4 concerns of, 1 conferences, inspiring, 2 content of, 2 defined objective, 5-6 findings, 7-11 outline, 3-7 postgraduate teaching, as basis for, 2 practical environmental focus, 6 research undertaken as part of, 3 scope of, 5 Solomon Islands Constitution, 261 environmental challenges, 261 environmental impact assessment, lack of, 263, 266

374

environmental protection, 262263 forestry in, customary land, on, 264 environmental impact assessment, lack of, 266 legislation, 265 licences, invalid issuing of, 267 natural resources, management of, 263-267 problems with management of, 266 reports on, 267 sustainability, 263 government, 260 land, customary ownership, 261 law, access to, 267 logging practices, 264 natural resources, management of, 263-267 sustainable development, 262263, 269-270 South West Pacific access to justice, constitutional provisions, 244 issue of, 268-270 national legal systems, role of, 243, 245 NGOs, by, 245-247 procedural aspects, 243-247 area of, 238-239 climate change, threat of, 239 customary law, 241-243 environmental concerns, 239240 land, customary ownership, 241-243 natural resources, use of, 239 non-governmental organisations, role of, 245-247 Pacific Way, 239

Index

Papua New Guinea, mining in, 255-260 public interest environmental litigation, applicant, harm affecting, 252 common law rights, 248 court action, nature of, 247249 developing countries, in, 251-253 fields of, 247, 249 government decisions, review of, 247 hurdles to, 250-251 local communities, disadvantage for, 252 networking, 252 NGOs, by, 249 private rights, and, 251 regional environmental organisations, 240 Regional Environmental Programme, 240 Solomon Islands, forestry in, 260-267 South Pacific Commission, 240 South Pacific Forum, 240 study of, 16-17 Sustainable development national legal systems, implementation in, 238 principles, emergence of, 238 Thailand Constitution, 275-276 reform of, 17 environmental management, public participation in, activities, organisation of, 285 citizens, of, 276 communication, 273

compromise orientation and trust, 284 concept of, 273 constitutional provisions, 275-276 culture, impact of, 283-285 definition, 273 enforcement, 286 factors affecting, 282-285 gateways, 273 government policy commitment, 283 government, duty of, 275, 286 growth of, 285 information, access to, 285 right to, 274 legislative factors, 282 local government organisations, 275 NGOs, via, 274, 276 problem awareness, 283-284 problems with, 272-273 public hearings, 276-278 recognition of, 272 traditional communities, of, 276 environmental problems, 271 Hin Krud power plant, chronology of project, 287 project, 278-279 public hearing activity, 279282 village fund, 281-282 legal system, reform of, 17 Nam Choan Dam, proposal to construct, 272 official information, access to, 274-275 Pak Moon Dam, construction of, 272 participatory democracy in, 272

375

Access to Environmental Justice: A Comparative Study

resource degradation, 271 study of, 17 sustainable development, 272 United Kingdom controlled waters, application for consent to discharge into, 304 courts, access to, aggrieved persons, by, 309310 applicants, 309-312 costs of proceedings, 312-316 judicial review, application for, 310-312 legal aid, 314 legal interest, 309 NGOs, of, 311-312 standing, laws on, 311-312 statutory review, 309 environmental court or tribunal, need for, 315 environmental decision-making, public participation in, Aarhus Convention, 298 early, 299 environmental impact assessment, 299-300 general rights, 300-305 legislation, preparation of, 308 policy and plan-making, in, 305-307 strategic environmental assessment, 307 substantive law, 315 environmental impact assessment, 299-300 environmental information, access to, issue of, 18 Aarhus Convention, 294, 315 access to justice, as prerequisite for, 289

376

commercial confidentiality, 293 definition, 294-295 Directives, provisions of, 294-297 duty of person holding, 295 exclusion from disclosure, 292-293 exemptions, 295-296 judicial review, 296 means of, 290 public registers, 290-292 refusal, reasons for, 296 regime, 297-298 requests for, 292 freedom of information provisions, 297-298 legislation, public participation in preparation of, 308 planning, application, publicising, 301 committee meetings, public attending, 302-303 conditions, appeal against, 303 consultation requirements, 301 objection to, 304 policy and plan-making, in, 305-307 public participation in, 300 refusal of permission, appealing, 303 Regional Spatial Strategies, 306 Statement of Community Involvement, 304, 306 views, making known, 302 public registers, computerised or manual form, held in, 292

Index

environmental information in, 291-292 information in, 290-293 inspection of, 291 planning, 290 strategic environmental assessment, 307 study of, 18 United States administrative agency action, 322-323, 325-327 Advisory Council on Environmental Equity, 343 Centre on Race, Poverty and the Environment, Blythe California Title VI claim, 351-353 Kivalina Relocation Planning Committee case, 349-351 offices of, 349 civil rights provisions, 336-337 Clean Air Act, 331-332 Clean Water Act, 332-333 Kivalina Relocation Planning Committee case, 349-351 communities of colour, environmental harms, suffering, 347 environmental issues, organisation round, 321 health consequences of facility for, 340-341 problems of, 318-321 Council on Environmental Quality, 334 deprivation of rights, civil action for, actionable federal right, test for establishing, 339 administrative claims, failure of, 343 claim, establishment of, 338

communities of colour, by, 340-341 enforcement mechanism for protection of right, 346 environmental justice context, in, 338-348 federal right, proof of violation of, 346-347 health consequences of facility, study of, 340-341 intentional discrimination and private nuisance, proof of, 348 non-English speakers, discrimination against, 344-345 private enforcement, presumption of, 338 private right of action, 344346 statute, 337 discrimination, prohibition, 336-337 environmental impact statements, 335-336 environmental injustice, meaning, 319 environmental justice, activists, approach of, 322 administrative claims, failure of, 343 basic civil rights, recognition of, 320 Blythe California Title VI claim, 351-353 civil rights concern, 319 discrimination, eradication of, 354 environmental laws, use of, 322 Executive Order 12898, 327-329

377

Access to Environmental Justice: A Comparative Study

federal agencies, duty of, 342 federal policy, integration into, 327-329 gateways, 348 groups comprising, 321 Inter-Agency Working Group, 328 issue of, 19 Kivalina Relocation Planning Committee case, 349-351 movement, roots of, 319-322 multiracial movement, 321 Office of Environmental Justice, 326 racial or class discrimination, framing burdens as, 322 scope of, 319-320 standing requirements, 323327 statutes and courts, relief provided by, 322-323 Title VI rights, and, 348 traditional movement, differing from, 321 viewpoints of, 354 Environmental Protection Agency, creation of, 325 duties of, 325 federal regulation, 326 Office of Environmental Justice, 326 environmental racism, 320

378

federal substantive environmental laws, air and eater pollution issues, 329-330 citizen suit provisions, 334 civil rights provisions, 336337 Clean Air Act, 331-332 Clean Water Act, 332-333 National Environmental Protection Act, 334-336 procedural requirements, violation of, 331 public participation, 330-331 hazardous waste landfills, siting of, 321 Kettleman City, discovery of toxic waste, 317-318 laws and regulations, structure of, 330 mainstream environmental movement, 320 minority communities, struggles of, 353 poor communities, struggle of, 318-319 standing requirements, administrative agency action, 325-327 Article III, 324 federal courts, in, 323 prudential, 324-325 State courts, in, 323 study of, 18-19

THE LONDON-LEIDEN SERIES ON LAW, ADMINISTRATION AND DEVELOPMENT The enormous constitutional advances made in developing countries in recent years have placed a new emphasis on the importance of law, legal institutions and public administration under the rule of law. It has been increasingly recognised that the effectiveness of legal institutions is crucial to the success or failure of development. Of particular importance are legislation, administrative and judicial decisions, the effective delivery of policy, global and good governance, environment and development, and a variety of other concerns of international bodies, organs of state, and the civil society. These problems raise in acute forms the relationships between law, administration and development. The London-Leiden Series on Law, Administration and Development, published by Martinus Nijhoff Publishers, attempts to analyse these phenomena, exploring in an interdisciplinary fashion their problems and their potential with regard to the developing regions of the world, principally the Asia-Pacic region, the Islamic world, South and Central Asia, Africa, Latin America and the Caribbean. The series concentrates on analyses with a socio-legal, law and politics, or law and economics perspective. It is also concerned with comparative, theoretical and international perspectives. The series is the fruit of cooperation between the Department of Law, School of Oriental and African Studies (SOAS), University of London, and the Van Vollenhoven Institute for the Study of Law and Administration in Non-Western Countries, Faculty of Law, Leiden University. These two institutions are the major centres of scholarship in Europe on the laws of the developing regions. Research has been carried out in these institutions on judicial independence, urban administration, environmental legislation and access to environmental justice, international law relating to development, and a wide variety of related issues. The General Editors of the series are Professor Dr Andrew Harding (SOAS) and Professor Dr Jan-Michiel Otto (Van Vollenhoven Institute). The series embraces monographs, collections of essays, conference papers, and bibliographical works. Titles published in the series are: 1. Law, Government and the Constitution in Malaysia A. Harding, 1996 2. Environmental Jurisprudence in India C.M. Abraham, 1999 3. Chinese Law Towards an Understanding of Chinese Law, Its Nature and Development J. Chen, 1999 4. Legal Evolution and Political Authority in Indonesia Selected Essays Daniel Leve, 2000 5. Law-Making in the People’s Republic of China J. M. Otto et al., 2000 6. Administrative Courts in Indonesia A Social-Legal Study A. Bedner, 2001

7. Eyes on the Prize Law and Economic Development in Singapore C. Carter, 2002 8. Implementation of Law in the People Jianfu Chen, Yuwen Li and Jan Michiel Otto (Eds.), 2002 9. The Role of Islam in the Legal System of Pakistan Martin Lau, 2005 10. Borrowing Court Systems. The Experience of Socialist Vietnam Penelope (Pip) Nicholson, 2007 11. Access to Environmental Justice: A Comparative Study Andrew Harding (Ed.), 2007