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Furthering effective and inclusive public participation in environmental matters: 2019 Aarhus Week

The task of achieving effective and inclusive public participation in national, transboundary and international contexts was in the spotlight at the twenty-third meeting of the Working Group of the Parties to the Aarhus Convention (Geneva, 26–28 June 2019). Two thematic sessions, one on public participation in decision-making, led by Italy, and the other on the promotion of the principles of the Convention in international forums, led by France, were convened in this regard.

Parties and stakeholders showcased their experiences in promoting public participation in different circumstances. The Working Group heard from representatives of international financial institutions about their efforts to involve the public in projects and the review of their policies. International forums dealing with climate issues and environmental and sustainable development matters provided an update on recent developments in this regard. Participants also considered key systemic challenges and positive and negative trends across the region as regards effective public participation in international forums, focusing on the key importance of countries hosting international events adhering to the Convention’s principles.

Participants also looked at how the International Civil Aviation Organization (ICAO) could make its work more transparent.

Furthermore, the Working Group considered disturbing reports of reprisals against members of the public participating in activities related to environmental matters.

Throughout the discussion, positive trends and challenges of public participation were identified, along with actions Parties can take to overcome those challenges. The outcomes of the event will assist Parties and other interested States in their efforts to achieve a number of Sustainable Development Goals, in particular Goal 16, with its targets 16.7 (responsive, inclusive, participatory and representative decision-making at all levels) and 16.10 (protection of fundamental freedoms).

The meeting gathered more than 120 participants representing Governments, international financial institutions, intergovernmental and non-governmental organizations (NGOs), Aarhus Centres and other stakeholders from numerous countries.

Strengthening public participation in decision-making in national and transboundary contexts

Well-developed requirements for notifying the public exist in an increasing number of Parties to the Aarhus Convention and relevant documents are more easily accessible electronically. However, effectively notifying the public often remains a challenge and the public does not yet necessarily have access to all the relevant information needed to effectively participate in decision-making. Moreover, Parties are increasingly setting minimum time frames for separate phases of projects, plans and programmes. However, not all of these minimum time frames can be considered to be “reasonable” from the public’s point of view, given the need to prepare for participation if it is to be effective.

The discussions resulted in a number of suggested actions for Parties to overcome the identified challenges. Such actions included: reconsideration of the approach to defining the scope of the public that should participate in decision-making; and steps to ensure “effective” notification to reach out to all those who could potentially be concerned or interested to give them real opportunities to learn about the proposed activity. Other key systemic actions included ensuring opportunities for public participation in the case of all plans and programmes “relating to the environment” and when drafting executive regulations and other generally applicable legally binding rules “that may have a significant effect on the environment”.

Practical examples of different aspects of public participation were illustrated by a number of Parties. Kyrgyzstan shared its experience of public participation in mining activities, including several measures to support public participation in this very complex economic area. Romania presented examples of strategic environmental assessments that illustrated when and how the public was informed, how it could participate and finally, how the results of comments from the public were reflected in the final report. Georgia shared its experience of effective public participation regarding regulatory normative acts on fishing and how and when the public could comment on the draft framework.

Public participation in a transboundary context was also discussed. Considering different legal and administrative traditions in the countries concerned, Parties were called on to take several key systemic actions to improve the situation, including: (a) providing effective means of notification and ensuring sufficient time frames, including for the public in other countries; (b) enhancing access to all relevant information for the public in other countries, this also includes addressing practical issues such as translation; and (c) ensuring opportunities for public participation, as provided by the Aarhus Convention, including in cases in which  procedures under the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) are being applied. A successful experience presented by the United Kingdom of Great Britain and Northern Ireland regarding the country’s planning regime for public participation in a transboundary context demonstrated how such a complex matter as, for example, nuclear projects could be dealt with in practice.

Protecting environmental defenders 

The issue of the protection of environmental defenders has become increasingly important in recent years. According to data from the 2018 Global Analysis of the NGO Front Line Defenders, environmental defenders are three times more likely to be attacked than other human rights defenders. More than three quarters (77 per cent) of the human rights defenders killed in 2018 worked on land, indigenous peoples’ or environmental rights.

The Chair of the Aarhus Convention Compliance Committee recalled that the Aarhus Convention contained a specific provision on the protection of persons exercising their rights in conformity with the Convention, namely article 3 (8), and presented the Committee’s work concerning non‐compliance with this provision.

Mr. Michel Forst, the Special Rapporteur on the situation of human rights defenders stated that, according to the United Nations Declaration on Human Rights Defenders, environmental advocates are mainly identified by what they do. They are characterized by their actions in favour of the protection of environmental and land rights. They are not necessarily only members of large well-known environmental NGOs. The more we know about the global climate crisis, the more we know that it is urgent to take bold decisions and to protect our planet, the more attacks we see on environmental defenders.

In March 2019, the Human Rights Council adopted a resolution on environmental human rights defenders, with the aim of reversing the trend of escalating violence and killings in their regard, empowering them and protecting their human rights. A representative of Norway, who led the negotiation team on this resolution, addressed the Working Group. The adopted resolution emphasizes the positive role of environmental human rights defenders in society and in advancing the 2030 Agenda on Sustainable Development and the Sustainable Development Goals. It supports policies and practices that facilitate the work of environmental human rights defenders and the need for protection from violations and to bring perpetrators to justice. The resolution also refers to the Aarhus Convention and the Escazú Agreement.

In this regard, the experience of “shelter cities” presented by the Netherlands was rather unique and it was hoped that more countries would follow this example.

A representative of the European ECO-Forum shared examples of persecution and harassment of environmental defenders in different countries and proposed the establishment of a rapid response mechanism to provide help in “urgent” cases. Such a mechanism should complement the Convention’s compliance mechanism and be based on existing human rights special procedures. The representative of the NGO expressed the hope that the establishment of such a rapid response mechanism would prevent future cases of harassment and persecution.

The Working Group called on Parties to review their legal frameworks and practical arrangements, in line with the obligations of the Convention, and to address systemic challenges to ensure that persons exercising their rights in conformity with the Convention’s provisions are not penalized, persecuted or harassed in any way for their involvement. The concerns expressed by NGOs regarding the shrinking of the space in which civil society actors can exercise their environmental rights were also noted. Parties were called on to continue efforts to raise awareness about the obligation to protect environmental defenders, in particular among public authorities, law enforcement agencies, prosecutors, members of the judiciary, private security service providers and developers.

Promoting the Convention’s principles in international financial institutions

A representative of Bosnia and Herzegovina presented the country’s successful experience of the legislative framework requirements for the approval and implementation of international financial institution-funded projects regarding the environment, including policies and impact assessments. The representative pointed out that violating the Convention's principles jeopardizes the potential financing and implementation of projects by international financial institutions.

Representatives of the Asian Infrastructure Investment Bank (AIIB), the European Bank for Reconstruction and Development (EBRD), the European Investment Bank (EIB) and the World Bank Group updated delegates on the current status and plans regarding policies on access to information and stakeholder engagement, capacity- building activities and the main challenges identified in implementing these policies.

With regard to access to information, all the banks reported having put in place access-to-information policies to provide the public with information and to respond to information requests from the public. As a relatively young institution, AIIB had recently developed and adopted its access-to-information policy and considers that it is in the early stage of implementing this new policy. Delegates were informed that EBRD had reviewed its 2014 policies, including its public information policy, its environmental and social policy and its project complaint mechanism, in the course of 2018. This process included several consultations with stakeholders and opportunities to submit oral and written comments and questions.

Regarding the banks’ stakeholder engagement policies, delegates learned about the World Bank Group’s new Environmental and Social Framework, which has been in force since October 2018. The new Framework includes a systematic approach to stakeholder engagement and consultation throughout the project cycle through the development of a Stakeholder Engagement Plan. In 2018, EIB adopted environmental and social standards based on policies and principles contained in the 2009 EIB Statement of Environmental and Social Principles and Standards. Furthermore, the EIB Board approved a new complaints mechanism policy involving a review of compliance of EIB activities with the regulatory framework, including the European Commission Aarhus Regulation. The policy was revised following public consultation. The banks also updated delegations on the current status and plans regarding practical material and/or capacity-building activities to promote policies on access to information and stakeholder engagement. This includes the preparation of internal and/or external guidelines on the banks’ policies; internal workshops on these guidelines; and the creation of focal points for these issues within the banks.

The banks’ representatives also reported on the challenges identified in implementing the policies. Regarding access to information, it was noted that the complexity of information requests can be a challenge when it relates to sensitive information held by the banks or third parties, such as clients, co-financiers or private sector clients. Another issue in this regard is the increasing complexity of applications requesting information and the wide range of environmental and non-environmental information held by banks.

Observations on challenges regarding stakeholder engagement included: the perceived costs of new stakeholder engagement requirements; stakeholder engagement during project implementation; facilitation of dialogue between parties in a strained relationship; the meaningful involvement of stakeholders who are not parties to the financial agreement; and compliance with standards and/or development of grievance mechanisms at the project level.  Other challenges identified were: the inclusion of specific stakeholders, in particular disadvantaged and vulnerable individuals or groups; the raising of awareness of policies internally and externally; and the lack of country offices. Finally, it was interesting for delegates to learn where the banks see possibilities for support from Governments and stakeholders in their work. Appreciation was expressed for constructive stakeholder engagement regarding community ownership of projects and the role of Aarhus national focal points in liaising with government agencies.

Key systemic challenges regarding the implementation of the Convention’s principles in international financial institutions were identified by the European ECO-Forum and included: timely access to information to ensure that communities have the necessary information to engage in the process; and the lack of the possibility to submit complaints before a project loan is granted. It was positively noted by European ECO-Forum that the three pillars of the Convention are thoroughly mainstreamed in EBRD and EIB policies and that the banks review these policies regularly. However, it was pointed out that disclosure of information on projects is still an exception when a project is implemented through a financial intermediary. In addition, there is often a lack of information on: projects’ potential adverse environmental impacts; the measures taken to mitigate the risks of such impacts; and how and when community members can engage with projects.

Enhancing public participation in the Mediterranean region

To illustrate how the public can be meaningfully involved in international forums, Malta shared the impressive example of the review of the Mediterranean Strategy for Sustainable Development between 2013 and 2015. Malta chaired the Steering Committee of the Mediterranean Commission on Sustainable Development at that time. The Mediterranean Commission is a multistakeholder advisory body to the Contracting Parties of the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention). The approach to the review of the Strategy was highly participatory and included: initial consultation on issues; drafting of the Strategy's sections by thematic working groups made up of experts and stakeholders; a regional conference in Malta to discuss the draft revised strategy; the endorsement of the draft Strategy by the multistakeholder Commission in June 2015; and the more formal discussion and final endorsement of the Strategy as a strategic guidance document by the Contracting Parties of the Barcelona Convention in February 2016.

Transparency of International Civil Aviation Organization processes

Emissions from aircrafts are increasing globally. In this regard, the Working Group also considered the promotion of the Convention principles within the context of International Civil Aviation Organization (ICAO) processes.

According to a representative of the International Coalition for Sustainable Aviation, ICAO does not make public statements following important decisions. The International Coalition is the only observer NGO allowed to attend ICAO meetings. The information that is made publicly available is for sale only and cannot be disseminated any further. The representative of the International Coalition further reported that papers submitted by ICAO Member States that are also Parties to the Aarhus Convention are not made public, as this would constitute a breach of ICAO rules. Participants recognized the need for further transparency and effective public participation in ICAO-related processes.