The following is a summary of the Urban Forum Colloquium on Public Participation and the implications of the Aarhus Convention as held on the 16th November 2012.
Public Participation and the implications of the Aarhus Convention 1.
The Aarhus Convention, signed by Ireland in 1998, was finally ratified on the 18th September 2012
The Aarhus Convention lays down a set of basic rules to promote citizen’s involvement in environmental matters and improve enforcement of environmental law; its provisions are broken down into three Pillars: Access to Information, Public Participation in Environmental Decision-making and Access to Justice
As regards Arnstein’s ‘ladder of participation’ (1969) which demonstrates typologies of participation along an axis broadly from ‘citizen control’ to ‘non participation’ – it is considered that Ireland falls into the ‘Tokenism’ range. Inviting ‘comment’ from the public is not participation.
We need to strive for participative democracy rather than representative democracy. Who is the initiator of participation exercises? Power relations are important. In terms of participative action we need to give power to rather than have power over.
Ireland can be considered a ‘relationship based society’ rather than a systems based one – We know individuals and have individual connections rather than connections to a group or organisation. This type of relationship is open to corruption. There is a need to establish all Ireland ‘networks’.
A key question now is what the implications of the ratification for Ireland are. The Aarhus Convention, in terms of its detail, is quite vague. However an increasing number of court decisions are beginning to tell us what Aarhus means.
There is an unusual enforcement procedure. A “Compliance Committee” – the ACCC, has been mandated to discuss and decide on possible violations of the Convention. Members of the public will have the right to directly report possible violations of the Convention to the committee, a procedure unique in international environmental law. For Ireland, complaints can be submitted (free of charge) from the 18th of September 2013.
We need to understand what Aarhus means in practice in order to avoid a flood of litigation.
Irish planning and planning law is incredibly complex. We have had amendment after amendment which often makes comprehension difficult (particularly for communities). As accessibility of information is one of the key pillars of Aarhus the consolidation of legislation and statutory instruments should be a key concern.
Cost of judicial reviews has proved to be problematic for the UK – and it is likely Ireland will face the same problem. Access to the courts in Ireland is still very difficult. Aarhus states that access to environmental justice must not be ‘prohibitly expensive’. A case in Luxembourg is currently questioning the definition of ‘prohibitly expensive’ but there is a possibility that civil legal aid could be the way forward.
Aarhus does not give a clear indication of how much time is ‘enough time’ for public consultation but it is likely that consistency of timeframes will become an issue
During the wider discussion a number of points were raised What about consultation in places where no-one lives at the time of development? For example in ghost estates where the issues happen after the development has been built. People often buy houses without any knowledge of plans for the area. How does participation work then? Has liability come into the discussion? What if individuals in local authorities make bad decisions? Judicial review only reverts the decision – is this justice? In this country only decisions can be challenged. Aarhus states that both the substantive and procedural legality of any decision, act or omission can be challenged – however in Ireland with cases of SID (Strategic Infrastructure Development) appeals can only go to the High Court. In this case only the procedure can be looked at – who looks at the substantive legality? It is possible that this aspect of the Irish system could be queried under Aarhus but it is also possible that the use of the word ‘legality’ qualifies the word substantive. Are judges equipped to conduct a merits review? In terms of land zoning in Ireland – the public objects to the same body that made the zoning decision in the first place. The Mahon report has made recommendations for the establishment of an independent reviews board (a planning regulator) – will Aarhus now force ministers to establish such a body? The cost of submitting a comment or complaint to a planning authority today (at 20 euro) could be the first thing questioned under Aarhus. In terms of SID – 12 weeks are allocated to receive comments from the planning authority and just 6 weeks are allocated for the public. Again, this could be an element which is now questioned.
There may also be issues around the oral hearing mechanism and the discretion of the board to hold one – Is this unconstitutional? Will all these new conditions required under Aarhus add more layers of uncertainty for developers? Ireland has a reactive approach to public participation rather than proactive It is considered that the Urban Forum should make a case for further education in the area of public participation. Education should begin at primary level and aid in fostering recognition of the value of the place you live. The above points are to be considered by all attendees and the members of the Urban Forum will aim to initiate further discussion on some of the key points listed above.