Transcript Legal Requirements For Public Participation

PUBLIC PARTICIPATION IN EIA/EA
PROCESSES.
CICILIA GITHAIGA
SENIOR LEGAL OFFICER,
NEMA
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PUBLIC PARTICIPATION AND
WHAT IT ENTAILS
• It is now well-established that public
participation in decision-making is
essential for local level development in
general, and in the management of
natural resources, in particular
• Public participation is premised on the
right of those who may be affected to
have a say in the determination of their
environmental future.
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Public partication cont’
• The legal empowerment of individuals
and public participation is an essential
condition of a good environmental law
and practice.
• Public participation may ultimately be
provided for through at least three legal
machineries;
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Public partication cont’
• First, such a right may be entrenched in the
national constitutions, often as part of the Bill
of Rights.
• The second mechanism may be in the public
participation in the Environmental Impact
Assessment (EIA) processed.
• Thirdly, it may operate through direct locus
standi for the public in environmental causes
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Legal requirements
Constitution of Kenya, 2010
• Refers to a right to a clean and healthy
environment,
• Impose a duty on the state to prevent
environmental harm,
• Emphasizes the protection of the
environment or natural resources.
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Constitution of Kenya, 2010
• The following provisions denotes
mandatory requirements in respect to
public participation
• Article 42. Every person has the right to a
clean and healthy environment,
(a) to have the environment protected for
the benefit of present and future
generations through legislative and other
measures,particularly those in Article 69.
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Constitution of Kenya, 2010
• Article 35, Right to access information
Access to information safeguards the right
for every person to obtain information on
environment in custody of a public
authority without need for justification or
proof of citizenship. Importantly, what
counts as "environmental information" is
widely defined to afford the right of access
to information the widest construction.
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Constitution of Kenya, 2010
Article 69 on the obligations of the state in
respect to the environment
• encourages public participation in the
management, protection and
conservation of the environment.
• establishes systems of environmental
impact assessment, environmental audit
and monitoring of the environment.
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Constitution of Kenya, 2010
Article 118. (1) Parliament shall—
(a) conduct its business in an open manner,
and its sittings and those of its
committees shall be open to the public;
and facilitate public participation and
involvement in the legislative and other
business of Parliament and its
committees. Example would be Art. 71 of
the CoK on grant of concessions.
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Constitution of Kenya, 2010
Article 48. Right to access to Justice
• The right of access to justice guarantees
that every person has access to an
independent and impartial court.
• It also implies an opportunity to receive a
fair and just trial when that individual’s
liberty is at stake.
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Constitution of Kenya, 2010
Article 50. Right to a fair hearing.
• The right to a fair hearing provides that every
person has a right to have any dispute that
can be resolved by any application of the law
decided in a fair and public hearing before a
court, or if appropriate, another independent
and impartial tribunal or body.
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EMCA, NO. 8 of 1999
• EMCA creates an overhead and all embracing agency for
the management of the environment.
• Previously, sectoral legislation existed often leading to
regulatory competition.
• It provides for public participation in environmental
matters.
• EMCA establishes the following institutions, NEMA, NET,
PCC, NEC and SERC all of which allow the public to
participate.
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EMCA cont’
• NEMA is under a duty to undertake
programmes intended to enhance
environmental education and public
awareness about environment.
• The practice of EIA as provided for in the
Act enhances environmental democracy.
It engages the public in vetting projects
that impact on the environment.
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EMCA cont’
• The requirement for publication of EIA
study reports/advertisement allows the
public for participation in reviewing an
envisaged public project.
• The EIA regulations require the authority
to invite the public to make oral or written
comments on the report.
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MEAs
Rio declaration
• The Rio Declaration makes provisions for
public participation in Principles 10, 20,21
and 22. Of these provisions, Principle 10
is broad and all-encompassing.
• The other three are specific to the
promotion of participation by women,
youth and indigenous people
respectively, as agents of sustainable
development.
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MEAs
THE AARHUS CONVENTION
It is an international agreement that lays
down an elaborate set of basic rules to
promote public involvement in
environmental matters and improve
enforcement of environmental law.
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THE AARHUS CONVENTION
• It grants the public access to
environmental information, provides for
participation in environmental decisionmaking, and allows the public to seek
judicial redress when environmental laws
are infringed.
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Convention on Biological
Diversity
• Articles 14(1)(a) encourages public
participation in environmental impact
assessment of proposed projects that are
likely to have significant adverse effects on
biological diversity. It implores the
promotion of exchange of publicly
available information.
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THE EIA PROCESS.
• EIA/EA Regulations are anchored under
Section 147 of the Environmental
Management and Co-ordination Act
(EMCA).
• The EIA Regulations are said to apply to
all policies, plans, programmes; project
sand activities specified in Part IV, Part V
and the Second Schedule of EMCA.
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THE EIA PROCESS contd…
• Under the Regulations, proponents are
prevented from implementing a project (a)
likely to have a negative environmental
impact; or (b) for which an environmental
impact assessment is required under EMCA or
these Regulations, unless an environmental
impact assessment has been concluded and
approved.
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THE EIA PROCESS contd…
• Application for an EIA license.
• Submission of the project report to Lead
Agencies and the County Environment
Committees.
• Reg 17. During the process of conducting an
environmental impact assessment study
under these Regulations, the proponent shall
in consultation with the Authority, seek the
views of persons who may be affected by the
project.
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THE EIA PROCESS contd…
• Submission of an EIA report.
• Invitation of comments from lead agencies.
• Submission/invitation of comments from the
public.
• Public Hearing
• Decision of the Authority.
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THE EIA PROCESS contd…
• License.
• Cancellation of an EIA license. SERC, NET, ELC,
High Court
• Access to Information. CoK.
• Environmental Audit and Monitoring.
• Inspections.
• petition by the public to carry out and audit.
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END
I THANK YOU
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