By guest writer, Donald Rodney
October 1, 2021
The Escazú Agreement, or “Escazú”, is a regional agreement in which Guyana is obligated to guarantee citizens’ right of access to information, public participation and justice in environmental matters. Part One of this presentation dealt with two legal rights of citizens in environmental matters – namely, access to information and access to justice. This second and final part will deal with the third right of public participation, then in this added context, will re-examine the first two rights. However, before doing so, we can put the Agreement in the context of a similar environmental convention in the EU and suggest how recent European experience could foreshadow expectations in Guyana.
Comparative European context
Back in 1998 member states of the European Commission (EC) signed up to the Aarhus Convention meant to “…guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters”. Hence this convention had similar objectives to the later Escazú Agreement. Since then the Aarhus Convention enforcement has had the benefit of clarification reports of a Compliance Committee representing members, as well as regulations and directives of the European Commission (EC) which create binding legislation within each member state to give effect to the Convention. For example, as recently as October 2020, the EC has adopted proposals amending existing Aarhus legislation to allow for better public scrutiny of EU acts affecting the environment. However, unlike the EU, the Caribbean region does not have an existing mechanism for a regional body to compel sovereign member states to enact binding legislation.
Also over the period, and recently, the EU has brought together factsheets and guides explaining in simplified language the rulings of European Court to help individuals, civil organisations and businesses to understand access to justice in environmental matters.[ ] This aspect would be of great importance for citizens in Latin America and the Caribbean, including Guyana, where ideas of pursuing rights of access to information of all types are new and would pose psychological and other challenges to citizens and environmental networks.
In Guyana for example, activity under access to information legislation, enacted since 2011, is languishing over uncertainty of appointment of the relevant authority; and though the government was swift in signing Escazú it is yet to announce what plans are being made to give legal effect to the Agreement before the local court.
Participation
The Escazú Agreement, Art. 7, (for those wishing to check the source) deals with public participation in granting environmental permits. The State has a duty, and hence must enact legislation, to secure such participation. This right to participate is hinged on rights to appeal to an oversight institution if a citizen is barred from participation. As an illustration taken from the Aarhus Convention system, as recently as in 2011 the EU Court confirmed that a Slovak environmental NGO has the right to be heard in plans by authorities to protect brown bears, after the NGO appealed to a national court against a decision refusing it a status to participate.[ ]
Transparency is key
In regard to participation, the State must legislate that environmental agencies must also provide relevant information beforehand to the public. Members of the public are therefore better prepared to participate in the decision-making process. Why should citizens be aware and alert to this provision? Because information should be fully disclosed before and during decision-making, and not simply after the granting of a permit, and is key to the transparency aspect in Escazú. No one can fully anticipate the prior information needed, but minimum levels of such information are set out in Escazú. However, no doubt, a sufficient level of information is that which is adequate to remove the need later to apply for the reasons for the decision in question – the related right under Art. 5
The right of citizens to participate in a transparent process granting permits can be regarded as a procedural right. A court would not supervise this aspect directly, but may grant an order to be heard, as in the Slovak brown bears’ case. The right to later access decisions on permits can be regarded as the substantial right. Both rights are reinforced by a third right, that of access to the courts ultimately if either of the first two is infringed.
The oversight body – poodle or pit bull?
Part One stated that more will have to be learnt about the ‘competent authority’ and the oversight institution provided for in Escazú. The former includes any public entity established to respond to requests for environmental information. Responses must be made according to the principle of “maximum disclosure”, (at Art. 3) which is a principle that the right of access to public information held by authorities must be protected and disclosure must be made, except in certain circumstances established beforehand by statute. The Escazú Agreement states the circumstances of exceptions, where there is no national statute as is the case in Guyana (at Art. 5). Presently it is unknown if the Environmental Protection Agency in Guyana will be designated a ‘competent authority’ in terms of the Escazú Agreement.
As regards the oversight body, this is established “with autonomy and independence to promote transparency” and to specifically oversee compliance with the maximum disclosure principle. The description used indicates that this body in Guyana should be a Constitutional Commission or equivalent to one. This institution must “report on and guarantee the right of access to information”. It is left open to each state whether to infuse the institution with sanctioning power. To extend the watchdog metaphor, the State can decide if the institution simply reports (like a poodle) or has sanctioning teeth, like a pit bull. The Guyana government should engage a participatory process on this aspect, as indeed it should do for other elements of the legislation.
Conclusion
With anticipated transparency through prior disclosure, and a guaranteed right to seek reasons for decisions, Escazú can prepare citizens to participate in the process for environmental permits in Guyana – an important element of democracy itself. However citizens do not have the benefit of directives from a regional body which can create binding legislation within each sovereign member state to give effect to the Agreement, like in the EU. Also, there is as yet no facilitating body to alert citizens in plain language of matters affecting their environmental rights.
These features portray challenges ahead for implementation of the Escazú Agreement. In Guyana it may fall to interest groups to arouse government action towards legislation and implementation.
October 1, 2021
See guide at :
Array
See Factsheets at https://ec.europa.eu/environment/pubs/factsheets.htm ; https://ec.europa.eu/environment/pubs/pdf/factsheets/accesstojustice/en.pdf