Editor’s Note: This is the first of two contributory articles from Cath Wallace, the highly respected eco-expert and environmental advocate.
The Aarhaus Convention has been open for signature since 1998 but 21 years later, New Zealand has not yet joined it.
- Links environmental rights and human rights
- Acknowledges that we owe an obligation to future generations
- Establishes that sustainable development can be achieved only through the involvement of all stakeholders
- Links government accountability and environmental protection
- Focuses on interactions between the public and public authorities in a democratic context.
The long title is “Convention on access to information, public participation indecision-making and access to justice in environmental matters”.
It originated as a UN Convention amongst states in Europe. It has long been disregarded by New Zealand as either inapplicable in geographic scope (only applying to Europe but it is actually open to all states) or redundant because of our Official Information Act.
The Objective (Art 1) states: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, each Party shall guarantee the rights of access to information, public participation in decision making and access to justice in environmental matters in accordance with the provisions of this Convention.”
At the core of the Aarhaus Convention is
- Public access to environmental information
- Public participation in environmental decision making
- Access to environmental justice including protection of environmental defenders.
This paper addresses under each of these headings, whether New Zealand should accede to the Convention.
Access to Information
Aarhaus requires governments to guide and assist the public to have access to environmental information, to help the public to participate and to have access to justice. “The public” includes natural persons and also environmental organisations. Parties to the agreement must “provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection….”.
Access to information in New Zealand is governed by New Zealand’s Official Information Act (OIA) and by the Local Government Official Information and Meetings Act 1 (LGOIMA) – though awareness and compliance with the provisions is patchy.
In several respects our OIA and LGOMIA provisions are as good or better than those in the Aarhaus Convention (such as allowing access to some internal communications of government authorities), but there are areas where Aarhaus requires improved information access. For example, Aarhaus includes a provision that sets a maximum of two months for information release, this can take years in New Zealand.
Both require regular reporting of environmental conditions, both protect some commercial and economic interests who are allowed to block release of some commercial information but in New Zealand the public interest may prevail. Aarhaus, unlike New Zealand, requires compulsory release of corporate information about environmental activities and products that may harm the environment and injure human health and about emissions relevant to the protection of the environment.
Public participation in environmental decisions is legally open to all under New Zealand’s Resource Management Act (RMA), but not under many other of New Zealand’s environmental and resource laws.
For example, there is no public input under the Crown Minerals Act. Participation is limited in the Fisheries Act to “approved parties”. There are no formal hearings. There is public consultation in the Conservation Act policies and Conservation Management Strategies, but not on all consent and access agreements.
New Zealand provisions for public participation are being eroded as Labour passes laws under urgency for housing and infrastructure and post-COVID projects. In proposals for Resource Management System reforms, there is regression from the open standing in the RMA.
Public consultation on policies and plans is retained in the proposals but severely restricted at the specific consenting stage and removed altogetherwhere activities are declared to be “permitted uses” - stage –despite many environmental impacts being site-dependent.
More spatial and strategic planning is welcomed, but this should not be used to exclude public participation.
COVID-19 Fast Track Consenting
In 2020 New Zealand’s government used the COVID-19 crisis to introduce with perfunctory consultation the COVID-19 Recovery(Fast-track Consenting) Act 2020.
This Act provides for expert consenting panels who are prohibited from issuing public or limited notification about consent applications or notices of requirement. These panels must invite written comments from some people or groups – but most of those few environmental organisations so listed have abandoned the commenting role on account of the onerous tasks in very short time frames.
At the end of September 2021 an omnibus Bill appeared to, amongst other things, extend the sunset clause on this Act, with just 4 days allowed for submissions to Parliament.
Urban Development Act
The Urban Development Act’s sweeping powers restrict public participation.
The Urban Development Act provides for designation of Specified Development Projects by Kāinga Ora, (the Ministry of Housing and Urban Development, (HUD)) and its partners. There are some opportunities for public input on Specified Development Projects, and Ministerial approval is required but its sweeping powers include:
- the ability to modify, add to, or suspend provisions in RMA regional or district plans or policy statements within the project area;
- the power for Kāinga Ora to act as a resource consent authority and requiring authority under the RMA and to delegate these powers to Waka Kotahi (MoT) and to other infrastructure providers and private developers;
- the ability to create, reconfigure and reclassify a range of different kinds of reserve
- the ability to build, change, and move infrastructure
- the ability to compulsorily acquire private land;
The arguments for these and other measures to restrict public participation and access to decision making are usually couched in terms of “efficiency”, urgency, and speed of implementation.
Public access to justice
The Aarhaus Convention stresses access to justice. The provisions go beyond what New Zealand offers. Aarhaus specifically requires states to protect environmental defenders, to support environmental organisations, to educate the public on environmental issues and to guarantee standing for environmental organisations.
The Convention General Provisions requires states “to ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, prosecuted or harassed in any way for their involvement.”
A number of environmental organisations and environmental defenders in New Zealand who have challenged large corporates, wealthy vested interests, Councils or government agencies have faced threats. Such threats are to their persons or organisations, to their jobs or funding, SLAPP suits, or they have been threatened with or been issued with crippling court costs. Aarhaus would provide some protections to such groups and individuals.
As Transparency International in New Zealand has already noted, whistle-blower protection in New Zealand is inadequate.
Access to resources to take any Environment or other court case already depends on access to funds or pro bono work by lawyers and expert witnesses. Environmental groups struggle to fund or find these, given the public good nature of their work that is mostly not funded.
This problem was recognised with the establishment of the Environmental Legal Aid (ELA) Fund. Grants can be applied to for court cases under the RMA – with grants shared across parties to a case.
But the ELA fund is not available to those involved in legal proceedings under other environmentally related laws. Even when such aid is available it falls far short of the real costs. Appeal funding is often denied.
Most grassroots environmental protection cases only happen when there is pro bono legal help and expert witnesses who donate their time – if not already booked by paying project proponents – or if philanthropists back the case.
New Zealand could do better than this. The issues of access to environmental information, public participation and access to environmental justice and protection of environmental defenders are at the core of the Aarhaus Convention.
It is time for New Zealand to accede to the Aarhus convention and take to heart the public benefits of it;s provisions.
- The Text of the Aarhaus Convention is here: https://unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
- Details of fast track consenting is here: https://www.epa.govt.nz/fast-track-consenting/about/
- Powers and processes under the Urban Development Act are explained here: https://www.hud.govt.nz/urban-development/urban-development-act/
About the author: Cath Wallace has a long standing interest in open government, the operating environment for civil society and in conservation, environmental protection and campaigning and in public and environmental economics and policy. She has long been Co-Chair or vice-chair of the Environment and Conservation Organisations of Aotearoa NZ (ECO), and an active member of various environmental organisations. She is a former academic in the School of Government and in the Environmental Studies programme of Victoria University of Wellington.