Table of Contents

Implementing Environmental Law

Implementing Environmental Law

The IUCN Academy of Environmental Law series

Edited by Paul Martin and Amanda Kennedy

At the Rio +20 conference attention was focused upon the variable effectiveness of a large range of international instruments. The IUCN too has recently began to focus upon the effectiveness of legal arrangements for environmental governance. Both of these developments are representative of an increasing awareness that legal environmental governance arrangements frequently fail to achieve the desired outcomes, or give rise to perverse and unexpected effects. The reasons why this may be so include issues such as the limited commitment of the responsible government or its agents, issues of corruption or incapacity, problems arising from the choice of the governance instrument, or the design of the law. This book tackles the challenges of implementation of environmental law, drawing upon the expertise of an international cast of contributors and investigations across a range of jurisdictions.

Chapter 6: Possible legal obligations to consult

Tanya Howard and Solange Teles Da Silva

Subjects: environment, environmental governance and regulation, environmental law, environmental politics and policy, law - academic, environmental law


Tanya Howard and Solange Teles Da Silva1 Public participation is an increasingly important feature of environmental governance. Obligations upon government or project developers to “consult” appear in legislative arrangements and government policies of many countries. Environmental law and social justice scholars propose that consultation or community engagement (which we collectively term ‘public participation’) can adjust power imbalances, particularly for marginalised and Indigenous people, ensure better informed decisions, and improve communication between power-holders and citizens.2 The extent to which these aspirations are achieved through the implementation of legal obligations is an important environmental and social justice question, given the significance of the aims and the sometimes vulnerability of those whose interests are involved. In this chapter we explore some challenges of ensuring effective public participation through legal requirements. We consider the problem of ensuring integrity and effectiveness given a high degree of variability that is due in part to the imprecision of terminology and in part to the concealed flexibility in the methods that might be used to implement any legal requirements. We also consider the relationship between dominant democratic structures that give decision-making power to elected government and its institutions, and an aspiration for local participative democracy. We consider the issue of variability and challenges of safeguarding integrity through case studies in two jurisdictions, Brazil and Australia. 1 The authors acknowledge the advice and assistance of Professor Paul Martin in the preparation of this paper. 2 Adams and Hess (2001); Eversole (2011); Lockwood et al. (2009); Holley (2010) 360. 134...

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