Mechanisms And Drawbacks Of Public Participation In Environmental Law

MECHANISMS AND DRAWBACKS OF PUBLIC PARTICIPATION IN ENVIRONMENTAL LAW

Introduction

Public participation is a fundamental underlying principle of effective environmental laws. Policies and decisions affecting the environment have the potential to impact the public at large, whether in a positive or a negative manner. It is therefore of significant importance that the public is engaged in the formulation, implementation and enforcement of environmental laws, particularly where the public, or a section of the public is directly or indirectly affect by the law or its outcomes.

This essay examines four modes of public participation: consultation; partnership; standing; and consumer choice. Each modes faces its own obstacles in achieving effective public participation, and equally, each mode of participation offers advantages in some areas. Given the importance of public participation in environmental law, it is preferable that not just one mode is perfect and applied across different areas of environmental law, but a suite of effective public participation mechanisms are developed and implemented to maximise public involvement. This will be a challenging task in light of the breadth of environmental laws, the need to balance public and private interests, and the variety of stakeholders and their respective interests.

Models of Public Participation

In March 1998, the New South Wales Cabinet Office release a discussion paper on public participation in the policy process, which outlines a number of public participation mechanisms . While that document specifically focuses on participation in the formulation and implementation of policy, it provides a useful framework for consideration of participatory mechanisms in an environmental law context. In particular, it explicitly ignores value judgments that some modes of participation may or may not be preferable to others in certain contexts, and simply establishes four participation types :

1. participation as consultation;

2. participation as partnership;

3. participation as standing; and

4. participation as consumer choice.

The typology of participatory mechanisms adopted by the NSW Cabinet Office is employed in this analysis as a useful framework under which to consider public participation in environmental law.

Participation as Consultation

Public participation through consultation is the most common mechanism used by governments to involve the community . It involves a degree of reciprocity with the provision of information and the capacity of the public to comment, although the ultimate decision rests with government . The function of public participation can be seen through environmental law in Australian jurisdictions with respect to public lands and natural and ecological resources management. As a general approach, different jurisdictions provide for the preparation of a management or conservation plan in draft form, public exhibition of the plan and finalisation of the plan in light of any public submissions received.

Examples of Participation as Consultation Ð'- Public Lands and Natural and Ecological Resources

Western Australia

The Western Australian Conservation and Land Management Act 1984 (CLMWA) applies to a suite of public lands, including State forests, timber reserves, national parks, conservation parks, marine parks, nature and marine reserves and any other land the management of which is vested in the Conservation Commission or the Marine Authority . The CLMWA requires that the agency responsible for the management of a particular reserve, park or other public land must prepare a management plan for that land , generally to detail the policies, strategies and activities relevant to the land over a ten year period . Any management plan, or amendment to a management plan that may be prepared must be publicly exhibited for at least two months and submissions from "any person" invited . Notification of exhibition of a management plan is restricted to two notices in each a local and State newspaper and the discretionary erection of a notice on the land . In approving a management plan, the CLMWA provides Ministerial discretion to take into account and modify the management plan in response to issues raised in public submissions .

South Australia

National parks, conservation parks, and recreation and game reserves in South Australia require the preparation of management plans under the National Parks and Wildlife Act 1974 (NPWSA) . Management plans and amendments to those plans must be publicly exhibited and submissions sought from any person for a period of at least three months . Notice of exhibition of a management plan must be published in the Gazette and in a newspaper circulating in the State . Before the Minister can adopt a management plan, the Minister must seek the advice of the South Australian National Parks and Wildlife Council, including the results of the Council's consideration of any submissions made on the plan.

Tasmania

In Tasmania, national parks and nature reserves require management plans to be prepared and implemented under the National Parks and Reserves Management Act 2002 (NPRMTAS) . A draft management plan must be publicly exhibited for at least 30 days and notified in at least three newspapers circulating in the State . The Director of National Parks and Wildlife must prepare a report on the draft management plan, including consideration of submissions and recommendations on the plan . The Director's report and copies of submissions must be forwarded to the Resource Planning and Development Commission, who may decide to hold a public hearing in relation to the plan, in accordance with the Resource Planning and Development Commission Act 1997 (RPDCTAS) . Any such hearing must be public, with evidence presented by interested parties . The Minister is to take into account the reports of the Commission and the Director, as well as any representation made by the National Parks and Wildlife Advisory Council when making a recommendation to the Governor that the management plan be adopted .

Australian Capital Territory

Nature conservation strategies may be prepared for the protection, management and conservation of flora and fauna indigenous to the Australian Capital Territory under the Nature Conservation Act 1980 (NCACT) . A draft