The Aarhus Treaty – act now

I do not pretend to be an expert on the Aarhus Convention. The Irish authority on that subject is Dr. Aine Ryall of UCC (see http://environmentaljustice.ie/) and of course ‘our very own’ Mr Pat Swords, who has been waging a war in defence of the Aarhus Treaty, and on behalf of the Irish public, for some time now.

The Department of the Environment, Community and Local Government has invited submissions from the public on a review of domestic provisions implementing Article 9 of the Aarhus Convention with a view to “improving clarity and ensuring on-going effectiveness of the implementing measures.” See http://www.environ.ie/en/Publications/Environment/Miscellaneous/FileDownLoad,38541,en.pdf

But read it carefully and critically, as it contains more government spin than a subsidised wind farm. The suggested answer template contains a load of misleading information, intended to skew your responses. If you want to see how Pat Swords completed that template, go to http://www.westcorkwind.com/index.php/public-accountability/aarhus.

This is potentially one of the most important treaties in Irish history as, if properly implemented, it would give the Irish public a real and significant say in the management of their environment, and should include projects like GridLink. It is not surprising then that successive Irish governments, including the present Government, have done all in their power to minimise the impact of this Treaty by hiding it, misrepresenting it, implementing it piecemeal and insufficiently resourced, and more often than not, simply ignoring it.

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Treaty) was adopted by the UN on June 25, 1998 and entered into force on October 30, 2001, but Ireland was the last EU Member State to ratify the Treaty on June 20, 2012, entering into force on September 18, 2012.

Although ratified, the Aarhus Treaty is not part of domestic law, but forms part of Ireland’s international law obligations. This is as a result of the Oireachtas never passing an Act that fully transposes the Treaty into Irish domestic law. The government is quick to tell us that there is a host of laws that implement the provisions of the Treaty, but this patchy approach is designed to confuse rather than clarify, and even if one were able to bring all the patches together, the resulting quilt would have so many holes in it that it would resemble an old dishcloth rather than a nice cosy rug.

Despite this governmental trickery, Ireland, as an EU Member State , is still bound by the Treaty as the EU as a whole is a party to the Treaty.

The Aarhus Treaty is essentially composed of three pillars of public decision-making: access to information; participation in decision-making; and access to justice. It is the final pillar that I am looking at today, as that is what the government says it wants to talk about at the moment.

To date, Ireland’s failure to deliver this access to justice in environmental matters has been spectacular and it is only now, under threat of monetary sanction by the EU Commission and the European Court of Justice, that the government of the day has seen fit to reconsider the implementation of one Article in the entire Convention, namely Article 9.

Article 9 of the Convention governs access to justice. In a nutshell, it says that Irish citizens should have access to a speedy and cheap procedure where they can have executive decisions that impact on the environment reviewed, for example planning permission. At the moment, the only avenue available to challenge a planning permission granted by a council is An Bord Pleanala (good luck with that) and in order to challenge an ABP decision one has to take proceedings in the High Court which is very expensive and takes ages, by which time EirGrid is putting up pylons in your back garden.

I am going to discuss two issues which people need to consider carefully and have their say accordingly:

A. Access to a review procedure to enforce environmental information rights.

There must be a cheap, quick and easy way for someone to challenge a public authority that fails, either adequately or at all, to respond to their request for environmental information. In other words, if you ask EirGrid to tell you what are they busy working on in your neck of the woods, and your request is ignored, refused or inadequately answered, there must be a body that can come down on them like a ton of bricks as soon as you write in and complain.

.
At the moment this procedure usually goes something like this:
  A request for information is made to the public authority (e.g. EirGrid).
  If EirGrid refuses your request for information or has not dealt with your request appropriately, you can seek an internal review by EirGrid by requesting it within one month of getting their decision.
  If you are not satisfied with the outcome of the internal review, you can appeal to the Commissioner for Environmental Information (CEI). You must appeal within one month of getting the reviewed decision from Eirgrid.
  EirGrid must comply with the CEI’s decisions and if necessary the CEI can apply to the High Court to have a decision upheld.
  If the CEI turns down your appeal, in theory you could appeal to the High Court, but only on a point of law. There is no mention of a review, but the High Court does have an inherent jurisdiction to review a public decision if there has been some sort of procedural irregularity or abuse of power.

Apart from the extraordinary notion that EirGrid judges their own performance (an ‘internal review’) and the fact that this process can take many months, sometimes years, it costs €150 to appeal to the CEI, and if the CEI turns you down the only place left to go is the High Court. And this is just for an information request!

We need a properly resourced and funded watchdog who can respond quickly and effectively when public organisations mess people about when those people are legitimately trying to find out what is going on in their own back garden.

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B. Access to “administrative or judicial procedures” whereby members of the public may challenge acts and omissions by private persons and public authorities which contravene national environmental law.

What this boils down to is that the Irish public need somewhere they can go to challenge bad planning decisions, including permissions.

At the moment that is An Bord Pleanala but the ABP is seen by most citizens as a government rubber-stamp. It has lost all credibility, to the extent that people are now openly criticising the decisions made by that body as biased. Clearly the ABP needs to be replaced by a body that enjoys the confidence and support of the public.

The Aarhus Compliance Committee has interpreted Article 9 (3) of the Convention to mean that the public must have access to adequate judicial mechanisms in the event of acts and omissions in contravention of environmental law and to provide means for the enforcement of environmental law to ensure its effectiveness. In other words, there must be a quick and effective way to stop people wrecking the environment and ignoring the law. Neither the ABP nor the High Court can be described as quick and effective. We need something new that has the trust of the public – something like an Environmental Rights Commissioner backed up by an Environmental Court – which is quick and easy and open to all, either the single citizen or the community group, and does not require a law degree to properly participate. Quick and effective justice is what is needed.

Finally, the Government must keep people in the loop with a steady flow of environmental information that is accurate, accessible, and easy to understand. In this regard, the government must:

 Let the public know which public authority holds which type of information.
 Have a system to help the public formulate properly directed requests.
 Set clear standards for time limits.
 Create a schedule for charges.
 Severely limit the range of exemptions from the requirements of record-keeping and reporting by public authorities and from operators to public authorities.
 Make lists, registers and files publicly accessible and free of charge.
 Develop environmental information offices and identify individual points of contact.
 Use electronic databases and the Internet in an accessible and user-friendly way, not assuming any technical expertise on the part of the service user.
 Compel public authorities, by force of law, to release / publish environmental data and create incentives for institutions which fall outside the definition of ‘public authority’, to give accurate and reliable information directly to the public.

Information is power and at the moment the government is holding onto it as tightly as it can. This is wrong – a citizen has the right to a free flow of environmental information.

I promised you a nutshell and so it is. If you want to see fuller and more detailed submissions, go to http://www.westcorkwind.com/index.php/public-accountability/aarhus.

If you want to make your own submission, the deadline is 26 September 2014, so get to it! You can e-mail your submission to acconsultation@environ.ie

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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5 Responses to The Aarhus Treaty – act now

  1. Pat Swords says:

    It would be interesting for people to note Points 38 and 39 of the UNECE report on the July 2014 Compliance Committee below:

    http://www.unece.org/fileadmin/DAM/env/pp/compliance/CC-45/ece.mp.pp.c.1.2014.10_advance_unedited.pdf

    Don’t know who is behind Point 39, but certainly do about Point 38. The relevant clarifications were sent to UNECE in advance of this week’s Compliance Committee meeting. It is also worth noting Point 27, which relates to the EPAW Communication concerning the EU’s Projects of Common Interest, which include the export projects in the Midlands, the Mayo wind and pumped storage projects and other grid connections between the Republic, N. Ireland and the UK. None of which are actually needed are justified, not to mention the systematic legal breaches which have occurred to date. Finally, it seems Ireland was officially represented (Point 3) at the session, which addressed the new Communications.

  2. Thanks Pat. I have reproduced points 38 and 39 for the benefit of readers. I can also confirm that the information that was being sought by the Compliance Committee has subsequently been furnished so we should see some action on that in the near future.

    “38.
    A communication concerning Ireland had been submitted on 29 May 2014 by seven NGOs, namely Lakelands Wind Information Group, Rethink Pylons, Wind Aware Ireland, Kingscourt Residents Against Local Windfarms, Meath Wind Turbine Information Group, Environmental Action Alliance –Ireland and European Platform Against Wind Farms (Ireland).

    The communication alleged non-compliance with article 3, paragraph 1 and articles 4, 5, 6, 7, 8 and 9 of the Convention in connection with the implementation of the EU’s renewable energy programme in Ireland through the Irish National Renewable Energy Action Plan.

    The Committee decided to defer its preliminary determination of admissibility in order to seek further clarification from the communicant regarding: (i) which of its allegations related to events which took place after the Convention entered into force for Ireland; and (ii) the extent to which domestic remedies had been used.

    Alexander Kodjabashev was provisionally designated as curator for the case.

    39.

    A further communication concerning Ireland had been submitted on 5 June 2014 by a member of the public who requested confidentiality . The communication alleged non-compliance with article 3, paragraphs 1, 2 and 8 and Article 9, paragraph 4 of the Convention in connection with court costs . The Committee agreed to defer its determination on preliminarily admissibility to its forty-sixth meeting and requested the secretariat to ask the communicant to further substantiate its communication, including with reference to caselaw .
    Heghine Hakhverdyan was provisionally designated as curator for the case.”

  3. Pat Swords says:

    Neil

    It seems the second Communication, Point 39 above, was submitted by Kieran Fitzpatrick, a mature student in Civil Law at NUI Galway. His article on the subject can be found in this month’s Village magazine. Kieran seems to have an interest in this topic, as he has had similar articles in the past in the Irish Times.

    http://www.irishtimes.com/news/crime-and-law/courts-need-to-expand-view-of-open-justice-1.1831537

  4. Pingback: The threat of legal costs in environmental litigation | The Law is my Oyster

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