The Australian Panel of Experts on Environmental Law (APEEL) has been working on a comprehensive overhaul of environmental law in Australia–which is much needed and RCA supports the initiative.
APEEL has published its Blueprint for the next generation of environmental law. In addition it has drafted 8 Technical Papers. One of these is the Democracy and the environment technical paper.
This Technical Paper looks at different levels of governance of environmental law. One section of the paper deals with participation and deliberative decision-making, which is of critical important for the environmental integrity of local communities.
RCA has submitted the following comment on this section:
Comment:
I refer to your APEEL publication, Democracy and the Environment, Technical Paper No. 8, , section 4.2 ‘Public participation and deliberative democracy’:
We support the inclusion of this topic in the document. However, we believe that this section needs significantly more attention and detail than is given in the document. Our view is that the treatment here is quite scattered and dated and not particularly representative of the current literature nor of current international practice, and does not represent the rights and interests of local communities and actors.
We would argue that the framing of the discussion needs to be reconfigured and expanded:
Environmental issues and challenges have strong local dimensions and rights which should sit toward the centre of environmental law.
Local communities and actors have a legitimate and significant rights and interests in how these environmental issues and challenges are handled. Currently these rights and interests are routinely not recognised and disregarded, both in law and in practice.
The outcomes of these processes directly affect the lives of people in local communities in ways that are likely to go well beyond these impacts for the wider populations.
Local communities have significant bodies of local environmental knowledge, including historical and longitudinal knowledge, which is critical to effective environmental decision-making.
Decision-making processes at the lower end of the IAP2 Public Participation Spectrum are the default for most environmental legislation and administrative regulation.
We disagree with the characterisation in the document of participative democratic instruments such as citizen’s juries as marginal and experimental. The evidence doesn’t support this evaluation.
We agree with the document that modern legal models exist for the incorporation of participative approaches. We support their active use.
For local communities, the framework of participation on environmental matters is determined primarily by the state local government legislation, and by the state development and planning legislation. In our state, South Australia, for example, these do not provide for significant local participation beyond what your document describes as ‘notice and comment.’ Our experience is that overwhelmingly this is a ‘tick the box’ exercise, which has little or no impact on the final decisions of local councils. It is not effective participation in any real sense of the term.
The net result of the above is that the rights and interests of local communities and actors in environmental matters is significantly under-represented in policy, law, and practice, and environmental decision-making lacks the critical local knowledge and input which is needed to make it effective. The local communities we work with are frustrated and angered by these unacceptable outcomes.
We urge your panel to re-evaluate this section of the document, and of other sections related to it, from this perspective. In our opinion there needs to be a much more systematic review of the relevant international literature and practice, and a more focused analysis of the legislative, regulatory, and administrative constraints which currently largely fail to recognise the rights of local communities with respect to the quality of their environment and limit the ability of local communities to contribute to its improvement.
