Asian Law and Practice for Public Participation:Lessons from Sri Lanka (transcribed from taped presentation) (Anandalal Nanayakkara)
Asian Law and Practice for Public Participation:
Asian Law and Practice for Public Participation:
Lessons from Sri Lanka (transcribed from taped presentation)
Anandalal Nanayakkara,
Environmental Lawyer
The public comment
period is a mandatory requirement but not so the public hearing stage which is a discretionary option.
There are some criteria which are not hard
and fast, but the decision as to whether a public hearing should be gone into is taken after reviewing written comments. This is something I see as a positive
aspect in the Environmental Act
process in Sri Lanka; that the decision for a public hearing is arrived at after an initial stage of
public comment. This enables the
authorities to see what amount of controversy exists, as well as if there are valid comments to come to the
hearing with answers prepared, or
whatever is necessary to meet that situation.
Whereas, if it is a public hearing
straight away that situation would not be available and what would necessarily
happen is merely listening and bringing the
comments back home. However, this dual process enables a much more
meaningful participation on both sides, and an important aspect is that then
the question would be why have a hearing at
all, why not limit it to a public comment period?
We find invariably that there is a lot
more participation at a public hearing than
during the public comment period. Perhaps literacy has an impact on this, but
also the fact that people are reluctant to sit down and pen their thoughts in a manner that can be sent
across, except to say I don't like
this project, or I do like this project. Most of the valuable information is
elicited at the public hearing itself, and invariably participation is much greater at a public hearing
than at the public comment stage. These are criteria that are being adopted to
decide whether a public hearing is
called for.
Statutorily only this
criterion of public interest is there. In the public interest the Project
Approving Agency can call for a public hearing after reviewing the public comment.
However, in practice other criteria are also taken into consideration in deciding
whether to hold a hearing or
not, such as if it is a highly controversial project, a project that may cause national or regional impacts, a
project that poses a threat to
nationally important environmentally sensitive areas, and also the fact of whether a public hearing has been requested
by those who provided comment.
[Editor's note:
responding to a question about the process]
The process? Yes.
These are included because of the question that arose during the previous session.
The public hearings are most often carried out in the area where the impacts are
most greatly felt, not in the city. The participants at this process are the project
proponent, the project approving agency, the consultants who prepared the environmental impact
assessment because that is the basis of the discussion, the technical evaluation
committee that assisted the project approving agency (if a technical evaluation
committee was utilized), and then of course the public.
What happens
basically is that the project approving agency designates an individual as the
technical chairman who conducts the proceedings. Initially the project
proponent addresses the group and describes the project in summary, then the
members of the public, representatives of NGO's and so on comment. There have
been situations
when there are a large number of participants at the public hearing where the hearing
has been limited to the people who sent comments. However, perhaps more common, if
the number of participants is not that great everyone present who wants to make his or
her
voice heard is given an opportunity. At this stage questions can be traded. In
fact the public can ask questions from the project proponent and from the
consultants. Also, the technical evaluation committee can seek clarification
from the public, from the project proponent, and from the consultants who
prepared the report.
This is also a stage
for clarifying the issue, for finding out exactly what is the issue, and
for resolving some of the fears that have arisen
throughout the process. The project
proponent has a final opportunity to respond to the comments made and then prior
to the decision being made
the comments are sent to the project proponent again for his response. Thus, the project proponent gets an
opportunity to respond to the public
comments as well as if there's a public hearing to the contents of the public hearing itself. At the end
of which comes the decision; another
important factor, and maybe it's true here also, is that the decision is not simply a yes/no option. There
is a yes option, and a no option, but
there is also a yes-but option which is the conditional approval stage.
So these are three
important stages because in spite of initial fears that this process
would kill projects there have been very few projects that have been denied
approval under the process. Most of them were conditional approvals. So that's a very
important factor, because eventually what happens is that it becomes a trade-off
between what the public wants and what the project proponent wants and the writing of mitigating measures
as well as alternatives.
There is a right of
appeal, an administrative right of appeal to the secretary, Minister of Environment,
which is limited and unsatisfactory because the right is only given to the
proponent. The Environmental Act doesn't say that it is only given to the
proponent, it says that any person aggrieved by the denial of an approval for
the project, so that only the proponent,
the proponent and whoever is in favor of the proponent, would be aggrieved by the denial of approval of a project. So that's a limited right of appeal. It's not a right of
appeal that the public who are opposed
to the project have.
So the appeal is the
next stage. The secretary sits and adjudicates the appeal and the public may participate in the process.
In fact the public do participate in the appellate
process, and are even represented by attorneys, so it is like a formal
hearing. And the public who are entitled to
participate are persons who sent written comments and who participated at the
public hearing. One thing I should have mentioned under the public hearing is that even though it
may sometimes limit the members of
the public who can comment, it is a public process, any
member of the public can come as an observer and observe the proceedings.
The next stage is judicial
review carried out in Sri Lanka largely by the use of prerogative writs, particularly certiorari
and mandamus, the good old remedies, and also declarative relief from the
restrict code where you declare a status or you injunct, injunctive relief. These
are the
main areas that are used for judicial review. During the initial stages of the process which
began in 1988 there was a lot of litigation because the process was still
being streamlined. At that stage there was a number of litigations on process
because the process was not clear and so decisions had to be laid down defining the process. Now that
the process is streamlined there is much
less litigation and most litigation today
is on the Environmental Act itself.
Largely in Sri Lanka
(Sri Lanka, India, and Bangladesh) principles of natural justice are applied in
prerogative writs. Mainly the right to be heard by an unbiased adjudicator and the right to adequate notice
and fair hearing. One of these initial
issues of process was where the Ministry
of Transport and Highways, which had put a full page advertisement
claiming the Colombo Katunayaka Expressway project as one of its successes, was also trying to be the project approving agency.
This situation did not make sense, and it was challenged successfully. Another very recent case involved
the right to adequate notice and fair
hearing. I appeared in this case where a road project was attempting to go
ahead in spite of involuntary resettlements higher than the amount which was
prescribed in the Environmental Act. The Act requires an environmental impact assessment if there is involuntary resettlement of more than 100 families and this
project had that kind of involuntary resettlement but was trying to go ahead.
The challenge was raised under the
principles of natural justice and was a successful situation.
The other issue that
Prof. Schwartz talked about was the issue of standing. In the Sri Lankan context
and in India also, I believe standing has received a much more liberal
interpretation than in the United States. Standing is the right to bring an
action; whether you have sufficient interest to bring an action. Initially, the
thinking in Sri Lanka
also was, as far as the judiciary was
concerned, that you had to have a personal interest to bring an action, but
that has been expanded, particularly in public interest litigation. In the
Ahungalla Zoo situation anNGO was challenging a private zoo because under the national
wild life law a private zoo was not permitted and thus the effect of a private zoo continuing would be that there is no
way of supervising it because it is not a
permitted activity anyway. The important matter here is that standing was determined on the petitioner having a
genuine interest in the matter complained of, not a personal interest in
the matter,
The other recent case
is the Eppawelqa Phosphate Deposit situation. A phosphate deposit was to be mined, and if it went
ahead the way it was planned would have
affected about 800 square kilometers. The
government was attempting to sign an agreement with a developer prior to the environmental assessment work being
done. Here also, standing was
relaxed to the extent that they went in a fundamental rights application
that the petitioners are not disqualified, simply because their rights are linked to the collective rights of the
citizenry of Sri Lankans. So in spite
of the fact that your rights are common with the rest of the citizens the petitioners were allowed standing to
proceed in this instance.
That's all I have to
say on the Environmental Act process, but I would like to talk a little bit about the informal aspects of
participation. Are there any questions on Environmental Act before I do that?
[Question from the audience: During
the public comment period in the Environmental Act process; do you feel that
this process is very effective or is it, because I am aware about literacy of
the people here, only
educated people who submit their comments?]
In fact we find that
in a large number of projects there is very little participation of the
people. It is mainly NGO comments that come in and they are well articulated and in
fact backed by scientific evidence. However, the general public participating is
not that prevalent though there have been some highly controversial projects. One
of these was the Upper Cotmalee hydropower project which would have affected five of the major
waterfalls in the country that received around 700 (objections)
comments. Another was an express highway which was
going through a highly populated area that
received around 500 comments. But other than that, generally, participation
has been limited. In the sense it is limited to around twenty comments, but then as Prof. Schwartz was talking
about, it is not the number of comments that matters, but the substance and these
tended to be very articulate comments.
[Question from the audience: Is the project
approving agency a government official?]
This process is overseen
by the Central Environmental Authority but in addition to the Central Environmental
Authority there are several designated ministries as project approving agencies. The
ministries come into play where they have no interest in the project but where
associated issues may be important. For example, say if the project is a 200 square kilometer
pineapple farm. That could potentially be the subject of review by the Ministry of
Lands because it is an issue of land, it is an issue of State land. Sri Lanka has
one of the largest state ownerships of land. The state owns almost 82% of the
land mass. So that project could potentially be under the Ministry of Lands. So
to answer
the question, yes, the officials are all government.
[Question from the audience: You said
the public comment period is the first time that the public are involved or the
public learn about the project. Isn't it too late for the public to learn about
the project?]
Regarding your first comment, the actual
stage when the public could get to know
about it is at the scoping stage, because there is a discretionary stage where the project approving
agency could request the views of
state agencies or the public for the purpose of scoping. Thus, the public could
come in at that stage but it is a discretionary stage. Then as to your
question as to whether it is too late. It is too late in the environmental assessment process, in that sense I agree with you.
But then the bigger and more important question is, is it too late in the project implementation process? Probably not as
the Environmental Act process begins
prior to project implementation. So this whole process happens in that window where the implementation
is frozen. There will be all these
negotiations and so on ongoing but the actual implementation is frozen, so in that sense it is not too late.
I
[Question from the audience: You said that the decision on
whether to do a public hearing or not comes
after receiving or reviewing the
l written comments. Does that mean the written comment is not included
iin the public hearing?]
; That is correct. That is an important
question. The statute here e clearly makes a
distinction between public comment and public hearing. t- Public comment is written comment and
public hearing is oral hearing. I TTiat
distinction is clearly made.
[Question from the audience: You said there is a project
proponent, a consultant, and several other
parties. Who really conducts the process of the public hearing? Who presides
over the process and are they required to
have any special skills?]
Well, yes, who
presides over or basically who facilitates the process is an official, maybe a
technical officer, designated by the project approving agency. The project proponent is also only a player
here, similar to the public. There are
written guidelines for the process. The guidelines talk of the facilitator
being somebody who has technical skill
in the particular area that is the subject of the process, as well as some skill in dispute resolution. That is what the
guidelines say, but the guidelines
are not mandatory.
[Question from Dr. Jampier:
Approximately how long does it take for the process of the public hearing until the
judicial review?]
Judicial review isn't
really part of the Environmental Act, so until the decision is made. There are
strict timelines written into the process, and there are two areas where
timelines are not written. First these two areas. One is the environmental
assessment preparation, and the next is the project proponents' response to the comments of the public. In
both of these the project proponent is to
carry out some function, so it is at the
discretion of the project proponent as to how long he or she wants to take because it is their project so the impact would
be on them. Other than that there are
timelines written and the longest is this 30 day period for public
comment. There is another 30 day period after the project proponent sends the comments for decision-making.
So the two longest
periods are 30 days each. And these
are projects which take a long time in the making.
[Question from the audience: Could
there be more than one public hearing per one project?]
There could. There is
nothing to restrain that. But generally it is only one. But there could be more than
one, and there have been instances for certain projects where the public hearing
actually happens in the village so they have gone to two or three villages and
held them separately.
[Question from the audience: You said,
after the public comments were submitted there would be a 30 day period. And
after that there would be a discretionary decision whether a public hearing
would be conducted,]
No, the public
comment is a 30 day period which means that the public gets 30 days to review and
respond after these comments are sent to the project proponent and the project
proponent sends his or her response back. From that date there is 30 days for the
authority to decide.
[Question from the audience: If the authority
decides not to hold a public hearing is there any channel for the public to
appeal for the public hearing?]
No, there is no channel to appeal. Whether
judicial review is possible has not been
tested yet, but as I said, the statute uses the term "public interest" so that would be the
window by which to challenge it in
court.
[Question from the audience: What
does the public hearing look like? From what I hear from you a public hearing is
more like a public meeting. They just come and they just talk? Is that correct?]
Each person is given
a designated time, it depends on the number of individuals who are present to
comment. The time is allocated and each person is given an opportunity to stand
up and speak and to present their case.
[Editor's note: the
question or comment cannot be heard on the tape]
It can be. That is
why I had a questions stage where questions can in fact be traded. The public can ask
questions from the project proponent or the consultants, and the evaluation
committee can also ask questions from the public, as well as the proponent and
the consultants. It is interactive but at one time it is only one member of the public
that stands
up and asks a question, and then the next person comes up and takes that option.
[Question from the audience: Can you
give an example of a controversial project?]
The Upper Cotmalee
hydropower project was one where I said five of the waterfalls were to be affected.
Another highly controversial one was this expressway from Colombo to a free
trade zone, Colombo Katunayaka Expressway, which is in fact, in a way a
landmark situation because the initial trace for the road was entirely shifted to a
different trace due to the intervention of the public. The actual road that was
designated
initially was moved to a different place.
[Comment by Jim Klein: I think there needs to
be some clarification on this issue of "the public" or a "member of
the public". It varies from hearing to hearing. For example a road
interchange project might generate comments from some very specific individuals
whose property is going to be impacted by the construction. On the other hand, I
think, for
many public policy or megaprojects, too many in the room here have an image of Thai
public hearings in which you have thousands of very frustrated, very
angry people who have been engaged in an unsuccessful public relations
process. I think the reality, and perhaps the commentators from the United States
and elsewhere might want to add on to this, in general it is twenty comments which are in general
not from individual citizens, but from
representatives of what I would call civil
society. You use the term NGO which has a different meaning in Thailand. In my terminology the Chamber of
Commerce is an NGO by my terminology,
but it is not an NGO by Thai terminology. It is going to be
organizations like the Chamber of Commerce that might come in with a comment representing the views of hundreds
of businesses or in the United States it might be the Sierra Club representing
the views of thousands of
environmentally concerned citizens. In a way we are
talking about participation by proxy
through NGOs or professional organizations
or other interest groups. Can you clarify that issue, because I really do think it is not thousands of people, it is groups of
organizations who are expressing an
interest.]
I think you have
clarified the issue already. But at the same time it is not always groups of
people either. There are in fact individuals who from time to time participate.
Individuals who maybe have specialized skills, or who have by long time
practice in whatever discipline they are engaged in better knowledge on some of
the issues, feel they should participate.
However scientific a study is done it is done in a short period of time, and for an EIA assessment
generally in Sri Lanka and I believe as well in Asia, data is deficient so
there is no consistent data to match
an experience against. A person living there would have had from real experience the data as to how the
current flows and so on. So it is a
varied group of people who are present. Of course if it is an NGO that is there maybe they have a hundred members
who were sent there but only one representative who speaks. But a speaker can
also be one individual representing
himself.
[Question from
Paisarn: cannot be understood on the tape]
The other situation
was where informal participation was, I believe, a result of the public
participation process under the year procedure . . . [Editor's note: end of
tape-change to new tape so a short segment of the comment is missing] . . . was
established through this year process. I say this because there is a recent
example where a spontaneous public hearing was carried out by a nongovernmental organization where,
even prior to the authorities deciding whether a public hearing was necessary or not,
a nongovernmental organization went out and did a public hearing spontaneously. They
recorded the comments, whatever was said, and sent it to the authorities saying,
this is
what the public said so start off from here.
There are situations
on many issues like the Upper Cotmalee Hydropower project, where not so much
comment, but public debate was generated by the scientific community. The science
community would
have a speaker coming to talk about the project and they would invite the project
proponent as well. More often than not the project
proponent would be present and a debate would
ensue as to if this project would
be good, what are the alternatives, and what can be done. I feel that this process has been generated
more-or-less due to the fact that
public consultation is seen as acceptable and it is acceptable to the extent where even government officials can on some
issues phone an NGO person and ask,
"What do you think of this?" Now it is seen as permissible because consultation as a process is
acceptable even though there is a
formal written process. Because it is allowed, the informal process also has started to occur.
In fact there is one
law I drafted recently on safeguarding traditional knowledge on medicinal plants
where the public consultation process was a multistep thing. There was initially a paper
notice, I'm just talking how
the process worked, calling for comments, explaining what the intention was and then calling for suggestions as to how best tills could be done. Several workshops were held
throughout the country with the stakeholders, largely the practitioners
of traditional medicine, as to the pros and
cons of doing it. Then the actual drafting was done in consultation with a
group of practitioners. Once it was completed there was an independent review by another panel
consisting of both nongovernmental
organization and governmental people as well as practitioners. That's
where it is right now but the intention is to open it for public comment which is to make the draft, now that it is ready, available for comment as well as, if it is
necessary to hold a public hearing. So the whole gamut of activities can
take place in the drafting of one statute.
As I said, it has been limited to date to environment related laws. It doesn't apply in the other
areas. But that is a start.
Recently, on another
environment related issue which is on access to resources, when we were talking of
public participation and public comment, the government official asked me
the question, "Is there a law that requires us to have public comment?"
I said, "No." Then the official's next question, "Do we have to
do it?" And I said, "Yes!", because it is accepted to the extent that it
has to happen.
[Paul Violette: Are there questions on the
last point about involuntary or informal participation? Do we have questions on that? In your
opinion
<
what are the critical success factors of the
informal consultative process? Is it strong NGOs or strong local government?]
I believe the NGOs
also have played a major role in it because certain skills were more available
to the NGOs in the drafting process than in the government. There is also
recognition on the part of the government that the public can be better handled by the
NGOs by involving
them in the consultative process than by the government itself trying to do
this. You see it sometimes at the decision-making forums, ft can become so
informal that the line between a government official and an NGO person is not
very clear. Both are talking the same thing and both are thinking on the same lines, how do we now address
this problem, rather than I am a government
person and this is an NGO. person.
[Paul Violette: When you say NGO do
you mean in the sense Dr. Klein was talking about, i.e. business
interests, environmental interests, public interests?]
Yes. Certainly yes.
Because on some of these issues there were NGOs, the expanded term of NGOs in that
sense, participating in the process, particularly on the Upper Cotmalee Hydropower
project, on some of the coal power plant activities where the business interests
also did
participate as a group.
[Question from the audience: Actually
in Thailand when we say NGOs we mean good people. Only good people are NGOs.
More seriously, in Sri Lanka do you have cases where some groups of the public are really
against the project and they campaign against it, they do everything they can against the
project. How is that situation handled?]
Maybe I'm avoiding the question in this
answer, but I feel that most of the
aggression which there is, as it were, or the dislike for a project stems
primarily from lack of information. There have been instances, where the public are in the dark, and
that creates a situation where dialogue is not possible anymore. I
believe that one of the important things is
to get the information out to the public as soon as possible, before it becomes a confrontational
situation. Other than that! have no
answers to give.
Oh, there are
numerous instances with confrontation. In fact there was one just prior to
the environmental assessment laws being in place where a certain hotel was
coming up in the catchment area of the major surface water source for that region.
The fear was that because the hotel was in the catchment area it would impact
the collection of water by rainfall and that it would pollute the water source. This
was highly controversial. In fact the opposition parties who participated in
the controversy,
and it went into something like a hunger fast. So there were things like
that. It even went to that extent. Then it was settled in .
