- The IUCN Academy of Environmental Law series
Edited by Paul Martin and Amanda Kennedy
JOBNAME: Martin PAGE: 1 SESS: 3 OUTPUT: Tue Jul 14 16:12:02 2015 6. Possible legal obligations to consult 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...
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