PUBLIC PARTICIPATION

The right to public participation goes beyond the right to information. The importance of public participation in environmental decisions is internationally recognised (Saladin amp; Dyke 1998: 1).

According to the UN's Special Rapporteur on Human Rights and the Environment: 'Failure to take part in decision-making, whether internationally or nationally, has been and still is at the origin of development choices or the imposition of development strategies which have had serious adverse effects on the environment' (Ksentini 1994).

Lack of public participation in decision making has resulted in development strategies oriented to economic growth and financial considerations. The Global Consultation on the Right to Development as a Human Right (quoted in Ksentini 1994) concluded that these economic strategies 'failed to a large extent to achieve social justice, human rights have been infringed, directly and through the depersonalisation of social relations, the breakdown of families or communities, and of social and economic life' (para 153).

The Louisville Charter for Safer Chemicals (Orum amp; Heminway 2005: 5) defines participation this way:

Participation includes traditional and innovative means of engaging communities and workers in decisions about environmental health hazards and solutions. At the broadest level, these means include voting, freedom of speech and assembly, literacy, and the right to petition for a redress of grievances. They include service on local boards and commissions, citizen lobbying, notice and comment on government regulations, and the use of initiatives and referendums. In the workplace, participation includes training on health hazards and safer alternatives, labor-management committees, rights to organize, whistleblower protection, access to technical expertise, and opportunities to seek and accompany both occupational and environmental health inspections.

International agreements

Many international agreements emphasise the right of citizens to participate. One of the earliest was the 1982 World Charter for Nature (UN 1982) which states:

All persons, in accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and shall have access to means of redress when their environment has suffered damage or degradation. (Principle 23)

In 1991 Commonwealth countries agreed to the Harare Declaration (quoted in CHRI 2005), which recognises 'the individual's inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives'.

Other international agreements emphasise the desirability of public participation, such as the Protocol on Water and Health (UN/ECE 1999), which states:

Access to information and public participation in decision-making concerning water and health are needed, inter alia, in order to enhance the quality and the implementation of the decisions, to build public awareness of issues, to give the public the opportunity to express its concerns and to enable public authorities to take due account of such concerns. Such access and participation should be supplemented by appropriate access to judicial and administrative review of relevant decisions. (Article 5)

Agreements that promote participation include:

• ECE Convention on Environmental Impact Assessment, 1991

• Biological Diversity Convention, 1992

• Council of Europe Convention on Damage resulting from Activities Dangerous to the Environment, 1993

• UN Framework Convention on Climate Change and its Kyoto Protocol, 1997.

Professor Dinah Shelton (1999: 226), of Notre Dame University, notes that:

In sum, the right to participation is so widely expressed that almost no international environmental treaty omits it from its operative provisions.

In human rights law, it is one of the fundamental rights guaranteed by all human rights instruments, being inherent in the rule of law and democratic governance. As such, the right to participation may be considered to form part of the corpus of general international law.

Electoral representation

Participation of the governed gives governments and their policies legitimacy. Representation, whereby citizens are able to elect representatives to make decisions on their behalf, is a very weak form of participation. Citizens can influence decisions in that representatives can be voted out periodically if they do not perform well, but that influence is very indirect.

Representative democracy, on its own, has not been effective in allowing citizens' views to directly influence technological and development decisions. When decisions are made by elected governments without direct public participation:

• the opinions of minorities can be ignored;

• politicians are most concerned about the period up to the next election

- at most 4 or 5 years;

• politicians rely on advice from experts who may have different priorities and values from the majority of people (NENT 1997: 11).

For these reasons citizens have increasingly demanded more direct participation in such decisions, including environmental decisions. Mechanisms such as consultation on environmental impact statements, public enquiries and the membership of community spokespersons on committees have all been used to meet the public demand for greater participation.

What is genuine participation?

True public participation, also known as citizen participation, requires 'the genuine involvement of all social actors in social and political decisionmaking processes that potentially affect the communities in which they live and work'. Used effectively, public participation can help in establishing priorities, finding solutions and coming to decisions. 'The community is hence transformed into a promoter of ideas and an active actor in the public realm', while the government is merely 'advisor and technical implementer of publicly agreed upon works' (Picolotti 1999: 3-4).

The collection and provision of information, including that covered by freedom of information and right to know legislation, does not in itself constitute public participation, although it is clearly necessary to enable public participation to be effective and genuine. For participation to be effective the community must be fully informed and have access to information.

Much environmental decision making involves public consultation. This might include surveys of citizen views, public hearings, and calls for public comments on proposed developments. However, the party doing the consulting is not legally obliged to act in accord with its findings. Consultation allows citizens to express their views, but there is no guarantee that those views will be considered or taken into account. Appointing members of the public or community representatives to advisory boards and committees is also a form of consultation that falls short of real participation.

Genuine participation requires that the public has a real chance to determine the outcome. Those conducting the participation exercise must be committed to listening to and heeding community opinion and all those with a stake in the outcome need to be identified and given an opportunity to take part. But more than this, participation requires a redistribution of power so that those taking part have a say in any decisions: 'Participation in decision-making implies commitment and exercise of power in the decision-making process' (Picolotti 1999: 4-5).

Aarhus Convention

The statements of principle included in international agreements do not go into detail about how public participation should be implemented, nor of what it consists, and so in 1995 the environmental ministers of the UN Economic Commission for Europe (UNECE), which includes European and North American nations, agreed to some guidelines on public participation (Saladin amp; Dyke 1998: 1). The Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters was subsequently adopted in 1998 and came into force in 2001.

Although it applies to national decision making, the Convention also requires parties to it to promote the principles of public participation in international decision making.

The Aarhus Convention recognises:

that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations [and that] to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters. (Aarhus Convention 1998)

It also recognises that to achieve these rights 'citizens may need assistance in order to exercise their rights'.

The Convention requires that information on the state of the environment be collected regularly and systematically by the relevant authorities and that the public be informed of upcoming decisions and their ability to participate in them. Such decisions can range from policies, programmes and plans at the highest level, to regulations, specific permits and approvals at the local level.

The Convention recognises that people will only be interested in participating if they can feel confident that their views will be seriously considered and taken into account in the decision, and thus details some minimum requirements for a public participation process. These include the need for people to be given effective notice of the decision in time to be able to prepare their input; that they be told how they may participate; and that they have good opportunity to submit comments, information and analyses. When the decision is made it should take account of the public input and the public should be informed of the decision in writing with the reasons for it.

Finally, the Convention requires a mechanism for people to seek remedies if they are not informed and given the opportunity to participate fully, or 'to challenge the substance of a decision' by appealing to an independent and impartial review body whose decisions are binding on public authorities.

Such appeals should not be too time consuming or expensive and appropriate remedies should be available (Saladin amp; Dyke 1998: 10).

Benefits of public consultation

Participation can be time consuming and expensive and lead to or highlight conflicts, and also means that governments are not able to control the final outcome. However, the benefits are many. Ann Richardson (1983: 52-61), in her book Participation, gives three main arguments for advocating genuine participation in government decision making. Firstly, it is the fairest system of government. This rests on the idea that those who will be affected by decisions should have a right to influence those decisions. She points out that it can also be argued that those who bear the costs of these decisions should have the sole right to determine them.

Secondly, participation is important to the wellbeing of participants. It gives dignity to those involved and affected. It helps in the development of individual capability and awareness and helps to create a well- informed, responsive, involved citizenry, which is necessary for a vibrant democracy.

Thirdly, public participation usually leads to better decisions. In this way increased participation is an aid to policy makers, for because of it they have more information about what services are required, the limits of public tolerance, the problems, concerns and issues involved, and are aware of various other forms of feedback. Members of the public who are immediately affected by a development often devote much time and energy necessary to researching the problem and can become experts in their own right. Their expertise may be more focused on the immediate problem at hand. For example, they may become, over time, expert in emissions from municipal incinerators of the type that is planned for their neighbourhood from having read everything they can find on this topic.

Additionally, local people often have knowledge and experience of their local environment, and contextual or relevant knowledge in an area which technical experts involved in a project don't have, such as familiarity with local weather patterns, sea conditions, and flora and fauna in the area. It could also be argued on moral and ethical grounds that local people have special knowledge about their own situation and how a development in their neighbourhood will affect them.

PUBLIC PARTICIPATION

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