Access to Environmental Justice: Some Introductory Perspectives

[This piece is Chapter 1 of A Harding (ed), Access to Environmental
Justice: A Comparative Study (The Hague, Martinus Nijhoff, 2007)


Chapter 1

Access to Environmental Justice: Some Introductory Perspectives

by Andrew Harding[1]


'Most environmental problems are political problems. They arise not
from some particular shortage of an environmental resource such as land or
fresh water but from political and economic factors which deny poorer
groups both access to it and the ability to demand changes', Hardoy, J.E.,
et.al., Environmental Problems in Third World Cities (London, Earthscan
,1992), 101.


I ORIGINS

Before the reader embarks on reading this book and the editor
outlines its subject-matter, it will be helpful to provide some words of
explanation as to how the book arose.
From 1993 to 1998 the editor, in conjunction with six colleagues from
the Department of Law at SOAS and 13 other participants from various
countries (a team of 20 altogether) undertook a large scale investigation
of access to environmental justice in seven cities in Asia and Africa,
concentrating on the effectiveness of what we called 'legal gateways' to
environmental justice, and focussing on water pollution, air pollution,
access to land, and solid waste disposal. It was implicit in the concerns
of the SOAS access to environmental justice project ('SOAS/ A2EJ' as it
will be called), although not of course assumed for research purposes, that
real public participation in environmental decision-making would result in
'environmental justice', which is to say that the quality of such decision-
making would be greatly improved with consequential improvements in
environmental quality, especially for those directly and adversely affected
by current forms of decision-making. As might be expected the findings of
this research were of great interest, and would have practical consequences
for our view of environmental justice, especially in developing countries,
and how to achieve it; the link between democracy and environmental quality
would also be greatly illuminated. The content of SOAS/ A2EJ was
extensively set out in project papers and reports, and was often referred
to in, or provided the actual substance of, some notable publications in
the mid- to late- 1990s.[2] It also provided the basis for a good deal of
postgraduate teaching at SOAS and elsewhere, not to mention environmental
advocacy in several jurisdictions. Moreover, it inspired several
conferences, including 'Human Rights Approaches to Environmental Protection
in the Commonwealth and Beyond' in London in 1993;[3] the Habitat II Forum
on A2EJ at SOAS in 1996;[4] and a highly successful W.G.Hart Legal Workshop
at the Institute of Advanced Legal Studies, also in London, in 1997.[5] The
Habitat II Forum was probably the most important of these in a practical
sense, as its findings greatly influenced the UN Conference on Human
Settlements (Habitat II) in Istanbul in 1996, which resulted in the
Istanbul Statement on Human Settlements 1996. All four of these events
stressed the fundamental importance of public participation in improving
the living environment of millions of people in the developing world.
Nonetheless, influential as SOAS/ A2EJ was, directly or indirectly, on a
whole generation of scholars, activists, students and others, the research
findings as such were never set out publicly in any concerted or
comprehensive way.
It would be overstating the case to say that this book is 'the book
of SOAS/ A2EJ', and fills the gap left by the denouement of the project.
Some contributions to that project (principally the reports on Japan/ Tokyo
and South Africa/ Cape Town) do not appear here, and several contributions
to this book were written wholly or partly independently of SOAS/ A2EJ
(i.e., those on the UK, the USA, Indonesia, the South West Pacific, and
Nepal), even if they may have been to some extent influenced by it
indirectly. Indeed the geographical scope of the book is also considerably
wider even than the original seven cities. Nonetheless, SOAS/ A2EJ is in
fact highly relevant to the concerns of all the contributions this book
(whether the authors were involved or not, and whether they realised it or
not), and of course several contributions are actually based on research
undertaken directly as part of SOAS/ A2EJ. Unhappily this means that, due
to various hazards of such enterprises such as recruitment, retirement, or
being called to onerous other duties, not by any means all of the SOAS/
A2EJ research is represented here. In addition to seven highly interesting
country studies, the project spawned several thematic and methodological
papers, totalling well in excess of half a million words in the editor's
estimation. However, he has tried in this introductory chapter to
incorporate as much of the relevant findings as seemed important. He has
also tried to ensure that those contributions which are based on SOAS/ A2EJ
do not distinguish themselves by extensive reference to SOAS/ A2EJ-specific
terminology, some of which might be obscure to the general reader, and is
not always followed by the non-SOAS/ A2EJ contributors. The outcome is that
we present here a much wider range of experience even than SOAS/ A2EJ was
able to encompass, and we can also compare the developing countries with
the developed countries, not always, incidentally, entirely to the
detriment of the developing countries. It should also be mentioned that due
to some practical research constraints it has not been consistently
possible, despite great efforts, to present an up-to-date picture of the
situation in every jurisdiction. The chapters should therefore be taken as
case studies of particular societies or cities at particular times, rather
than accurate reference guides to the jurisdictions concerned as of 2006.
Most of the research represented here was based on in-depth socio-legal
study of particular problems in particular conurbations, and was not easily
repeatable without extreme difficulty.
It seems appropriate therefore first to record something about SOAS/
A2EJ itself: its questions, answers, methodology, and implications. Here
the editor, as, during the latter stages, SOAS/ A2EJ team leader in
succession to Professor James Read, has presumed to draw freely on papers
on file, most of which were co-authored by two or more team members. This
will assist in understanding the structure of some of the chapters in this
book, and also perhaps the experience of SOAS/ A2EJ will inform those who
may step this way in future.



II SOAS/ A2EJ: AN OUTLINE

Although it is commonly asserted[6] that enhanced citizen
participation results in better environmental policy and improved
enforcement of environmental standards, this hypothesis has rarely been
subject to testing on a comparative basis. SOAS/ A2EJ set out to study the
extent to which citizens can and do exert influence over their urban
environments through the legal systems in seven cities, namely Accra,
Bangalore, Cape Town, Karachi, Kuala Lumpur, Tokyo, and Xiamen: cities
which span Asia and Africa as well as different climates, levels and type
of economic development, and national legal and constitutional systems, as
well as exhibiting a different set of environmental problems.
Although the project aimed to examine access to environmental
justice, it made no prior assumptions about the manner in which citizens
would define 'environmental justice' in each city.[7] This book, like SOAS/
A2EJ, involves an elastic definition of environmental justice, but since
the principal concerns are the use of 'legal gateways' for 'access', in
practice the definition is procedural rather than substantive; in the same
way 'access to justice' is usually concerned with issues surrounding how
disadvantaged people are enabled to use the legal system, rather than
issues surrounding the substantive justice of the results obtained. 'Access
to environmental justice' can thus be interpreted in two slightly different
ways, viz., as a means of entering a legal process for raising and
resolving environmental disputes; or as the securing of environmental
decisions that are made equitably as between different interests or
communities. Paradissis and Purdue[8] express very clearly and concisely
the 'procedural' definition:

Without access to environmental information, it is difficult to
participate in policy and decision-making; and a right to participate can
be futile, if there is no corresponding right to challenge the
legality of the outcome of that participation. So the concept of
environmental justice is the combination of these three distinct rights.

Bedner on the other hand defines it as 'a situation where the demands
of all actors on aspects of the environment are well balanced in the sense
that they do not interfere with ecological processes required for a
liveable environment, whilst neither compromising the livelihoods of those
concerned'.[9] While the emphasis on either or both of these
interpretations will differ slightly from one jurisdiction to another, it
seems implicit in the case studies in this book that both interpretations
will be to some degree relevant, although it is the procedural sense of
environmental justice which is uppermost, given that the contributors are
concerned principally with issues relating to 'access'. In the United
States for example it is clear that 'environmental justice' indicates a
concern with the discriminatory placement of polluting industries in
proximity to black or hispanic communities;[10] at the same time there are
concerns about the real efficacy of legal provision for bringing
environmental arguments into court. In Malaysia the concern is more with
public participation in general, but clearly some environmental issues are
recognised to affect one community more than others;[11] and the same was
found to be the case in South Africa and elsewhere.[12]
The project took as its model the well-known comparative study on
access to justice known as the Florence project,[13] which studied the
obstacles to access to justice, especially for low income groups, across
thirty countries. This was a useful point of departure to map out possible
trends to improve citizens' access to environmental justice, in response to
the main obstacles to the legal system experienced by low-income groups;
the need to give representation to collective interests (a prime challenge
in asserting environmental rights); and the inherent limitations of formal
bureaucratic procedures which might call for faster, cheaper dispute
resolution procedures. Accordingly the project set out to investigate

(a) how 'legal gateways' for access to justice in environmental
matters affect the distribution of environmental burdens and entitlements;
(b) to what extent legal mechanisms for public participation affect
environmental policy making; and
(c) on the basis of comparative survey findings, potential legal and
institutional improvements to access to environmental justice.

With these three goals in mind, the defined objective of the project
was to pursue the following specific lines of inquiry:

(a) what is the nature and extent of legal gateways to environmental
justice ("black letter law")?
(b) which environmental matters are protected in practice (as opposed
to in black letter law)?
(c) which social groups benefit from legal participation and in what
circumstances?
(d) which social, political, institutional and legal variables
routinely discussed in the literature are most important in understanding
the patterns of social participation through legal mechanisms?
(e) how do litigation and consultation or mediation procedures
compare in those respects?
(f) how do existing legal gateways influence the priorities and
strategies of environmental activism?
(g) how do NGOs' and grassroots groups' different objectives, levels
of influence and audiences relate to the legal gateways for participation?
(h) how do NGOs and grassroots groups evaluate the use of legal
mechanisms in comparison with other forms of action (e.g., political
lobbying, protest, civil disobedience)?
(i) which legal and institutional changes on the side of the state
are likely to facilitate access to environmental justice?
(j) which social and organisational strategies on the part of NGOs
and grassroots groups are likely maximise the opportunities to participate
offered by the state?
(k) which of these could potentially lend themselves to replication
in other jurisdictions and under what socio-political and cultural
circumstances?

In order to avoid the deficiencies of legal positivism, the team did
not equate access to justice with access to the legal system, as legal
gateways are only one means to achieve justice - and indeed, part of the
endeavour (see objective (h) above) was to compare legal avenues with
other, extra-legal, claiming strategies. Thus 'legal gateways' were defined
broadly to include opportunities to assert entitlements at varying levels
of formality and pre- or post-decision. This approach was obviously of
particular relevance in jurisdictions where the legal system's conception
of environmental justice was as yet undeveloped or problematical, or where
the legal system itself did not enjoy great public confidence.
The practical environmental focus of the project was on four areas
selected for detailed treatment: functional space/land, water supply, clean
air, and waste disposal. These four categories included issues relating to:
access to sanitation, toxic or hazardous waste management, clean-up of
rivers, accessibility of water services, reduction of transport pollution,
reduction of industrial air pollution, environmentally safe housing, access
to urban agricultural land, and effects of urbanisation on surrounding
rural or suburban areas.
The relevant gateways differed, naturally, from city to city, but the
following categories were discerned:
(a) Participation BEFORE official decisions, i.e. participation
concerning state-initiated decisions or actions (which would include
participation in reforms of the law, where legally possible; and
participation concerning private decisions or actions requiring official
sanction.
(b) Participation AFTER decisions/actions or non-actions, i.e. in
official mechanisms by which individuals or groups could hold government
bodies accountable for their actions and non-actions; and official
mechanisms for resolving disputes between two non-state parties.
The social use of legal gateways (see the objectives above) was
mainly investigated through surveying lawyers and NGOs in order to gather
systematic data about the social use of legal gateways for public
participation; and case studies of particular examples of citizen
mobilisation around legal gateways.


III SOAS/ A2EJ: THE FINDINGS

And so to the actual findings. We could summarise these in the words
of a Karachi lawyer, reported by Martin Lau in his chapter on Pakistan,
'who, questioned about access to environmental justice, dryly remarked that
in the city there was no environment, no justice and no access to either'.
Yet this view, as will be seen, requires to be nuanced.
While few people will be surprised by the finding that legal gateways
to environmental justice are largely ineffective, the richness of detail
and the comparisons between the different countries, and also the positive
aspects which surfaced in several instances, were indeed both encouraging
and sometimes surprising. Of its nature this richness of detail is
impossible to capture in a general summary, but a careful reading of the
chapters that follow will reveal its fascination and indeed its
developmental possibilities. The researchers came away with mixed feelings:
overwhelming depression at the sheer size of the problems and the
ineffectiveness of standard legal solutions, tinged with excitement and
optimism at the creative ways in which communities had achieved some sort
of environmental justice or had coped heroically with conditions of
injustice, sometimes employing the 'weapons of the weak'.[14] One theme
clearly identified across the jurisdictions was the importance of using
human rights law as a way to bring claims regarding environmental matters.
This phenomenon is not of course confined to the developing countries.[15]
Citizens in all of the seven cities expressed concern about urban
environmental conditions, and often had specific complaints about
pollution, planning decisions, or loss of natural resources. Yet while
activists and civic groups were quick to name environmental problems, and
to place blame for such problems on either private actors or government
officials, they were often reluctant to translate their grievances into
legal claims designed to influence policy or remedy environmental damage.
The research identified at least six major kinds of relevant legal gateway
(see below). 'Legal gateway', we should note, as indicated above, was
defined broadly to include opportunities to assert entitlements at varying
levels of formality, either before or after an official decision.
Where litigation was used, a number of familiar obstacles stood in
the way of translating access to justice into actual redistribution of
environmental burdens and benefits. The law often appeared in practice to
benefit economically advantaged urban groups. Generally, economically
disadvantaged groups lacked the financial resources and familiarity with
legal institutions to use the available gateways effectively. Given the
diversity of legal systems involved, comparison of legal gateways,
consistently with good comparative law practice, was facilitated by
developing 'middle-range' concepts (such as 'pre-decisional gateway') which
are neutral in the legal-technical sense, but can be translated into the
terminology of any legal system. For understanding the interaction between
existing legal gateways and the social factors which determine whether such
gateways are used, it was found useful to develop an approach based upon
Amartya Sen's 'entitlements' theory.[16] Thus, an 'environmental
entitlement' referred to the ability of social actors to have control over
or access to environmental resources and services for their livelihood,
health and well-being.
The gateways studied and the general conclusions reached are set out
below. It should be emphasised again that the conclusions are based on
seven cities which exhibit fundamental legal and other differences, and
therefore conceal the richness of the observations and to some extent
oversimplify the extensive detailed findings.
First are actual legal remedies, for example

(a) judicial review of administrative decisions;
(b) actions in tort or delict (public or private nuisance,
negligence, or strict liability);
(c) public interest litigation generally; and
(d) criminal proceedings.

These gateways were plentiful in all cities, and their use had the
advantages of providing a binding rather than uncertain remedy, including
monetary compensation where appropriate. They also facilitated legal
development and the use of other gateways, creating public awareness, and
securing accountability and consistency. The disadvantages were a general
lack of case law (even in the common law jurisdictions); lack of standing;
delay; prohibitive cost (or risk thereof) due to a lack of legal aid and
the hazards of litigation; a concentration, in the reported cases, on
procedure rather than substance; legal doctrinal limitations, such those
relating to evidence and causation; and judicial caution or lack of real
independence when faced with litigation against public bodies.
Secondly there were statutory consultation procedures, for example in
relation to

(a) rights of objection to a draft development plan;
(b) rights of objection to development; and
(c) responses to environmental impact assessment reports.

Where these opportunities were available, they had the advantages of
influencing the decision, and were inexpensive and informal. The
disadvantages were lack of standing; lack of information; absence of
finality; and lack of real accountability for corrupt, arbitrary,
discriminatory and irrational decisions.
Thirdly there was administrative review, for example

(a) review by higher administrative authority;
(b) fiscal review of administrative action; and
(c) administrative appeals.

The advantages and disadvantages were largely the same as in the preceding
paragraph.
Fourthly there were extra-legal, legally sanctioned, self-help
remedies, such as

(a) exercise of civil liberties of freedom of speech, assembly and
association, and voting in elections;
(b) purely informal or traditional gateways.

Again, the advantages and disadvantages were largely the same as for
statutory consultation, but there was also significant abridgement of
constitutional rights; weaknesses in the NGO sector (financial, legal
status); jurisdictional conflicts; and weaknesses in local administration.
Fifthly there was defensive use of the legal system,such as

(a) legal resistance to possession orders by squatters;
(b) litigation to delay decision-making;
(c) litigation to raise the costs to developers, thereby compelling
settlement or abandonment.

Here one might say the gateway was turned into a 'drawbridge'. Legal
systemic problems tended here to be turned in favour of the community
adversely affected environmentally. Defensive use of the legal system could
also be used as a negotiating tool in relation to informal gateways.
Communities nonetheless faced the fundamental disadvantages of lack of
legal title, and opposition from more powerful opponents.
Sixthly, there was alternative dispute resolution (ADR), including
both mediation as part of the legal process, and forms of ADR operating
outside the legal system. ADR avoided many of the disadvantages of the
legal system, and was not necessarily linked to any legal entitlements such
as land titles.
These gateways are in fact examined at many points in the ensuing
country-chapters. Naturally not all of them are significant in every
national context.
It was expected at the outset that there would very little access to
very little environmental justice. To a large extent this expectation was
fulfilled. However, the researchers were surprised by the extent to which
gateways were in fact sometimes used successfully. The relevance of
litigation, in itself and in relation to the other gateways, and for
raising awareness, was also apparent in most cities. The research also
highlighted the connections between the legal gateways and the general
political and economic environment; the degree of democracy and judicial
independence; and also the openness and resourcing of administrative
bodies. A connection was found to exist between public participation and
the delivery of environmental entitlements. However, there appeared to be
no real pattern of difference between the various environmental
entitlements investigated. The distribution of environmental burdens and
entitlements depended on political, economic and social variables rather
than legal or environmental ones, as indicated in the quotation at the head
of this chapter. Opportunities for participation were, largely, both
restricted and ineffective.
Many negative factors were of course identified. Some examples are
the antiquated planning system in Ghana; the lack of accountability of
public authorities in India; instances of arbitrary and corrupt decisions
in Malaysia; civil strife resulting in a power vacuum and splintered
authority in Pakistan; authorities hampered by central government
interference in Japan; discrimination in distribution of burdens and
entitlements in South Africa; the lack of an independent civil society and
communist party influence, in China. Everywhere we found to some degree a
lack of real or any public participation in relevant decision-making
processes; a lack of accountability of public authorities; political
influence and corruption; a lack of legal development and judicial timidity
in dealing with environmental issues; a lack of local government resources;
a plethora of responsible authorities and overlapping jurisdictions; and a
general inefficacy of legal gateways.
Some positive and promising developments were however noted. Examples
are the clear commitment to public participation in Accra; the development
of a unique legal systemic response in public interest litigation in India;
the ability of NGOs to coalesce and network around an issue in Malaysia;
the legalisation of squatter settlements in Pakistan; heightened public
awareness of environmental issues and some effective legislation in Japan;
the emergence of the environment as a major issue of democracy and human
rights in South Africa; and the use of community-based ADR in pollution
cases in China. Everywhere there was increasing awareness of environmental
problems and environmental law. Legislative and administrative improvements
were found to be taking place, albeit slowly, and there was considerable
development of the environmental-NGO sector.



IV THE CONTRIBUTIONS TO THIS BOOK

In this section we will take a brief look at all the country-chapters
to see what general conclusions can be reached on the basis of the detailed
research undertaken.

(a) Ghana (Accra)
As James Read points out in chapter 2, Ghana has a pluralist legal
system in which common law elements are present but outweighed in
significance, at least in the environmental field, by customary law and
traditional dispute settlement processes. The common law and its courts
appear to be relevant principally as a means (and not the favoured means)
for settling land disputes. Similarly the police and national government
departments, statutory planning law, environmental law and criminal law are
far less significant in Read's study than traditional or customary law and
dispute resolution, local community initiatives, public participation, and
NGO mobilisation. Despite the environmental crisis of rapid urbanisation (a
feature with which readers of this book will become very familiar), Ghana
offers some hopeful features. These include the peculiar strengths of
indigenous Ghanaian communities, including the potential for successful
communal action on matters of common concern, such as prohibitive
subsidiary legislation; the contemporary national political culture,
emphasising citizen participation and even providing for it in the
Constitution and some relevant legislation, such as that on environmental
protection; and decentralisation of government, which has encouraged local
initiative in tackling environmental problems; and the relative absence of
large-scale 'squatter' settlements.
Read's study will give some pause to those who see positive law and
top-down administration as the way to protect the environment.

(b) India (Bangalore)
Based on research undertaken in Bangalore at part of SOAS/ A2EJ in
1996 and updated in 2003, Amanda Perry-Kessaris' chapter 3, on India, is an
in-depth study of access to environmental justice in the age of
globalisation in India's hi-tech foreign investment magnet, the garden city
of Bangalore. The law offers many gateways to environmental justice, 'but
that they are of varying width, and in varying state - from infancy to
maturity, decay to rejuvenation'. There have been advances in public
participation, and public interest law has featured prominently in the use
of gateways. However, access to environmental justice in terms of access to
land presents large problems which seem to be growing with increased
pressure on land. Perry-Kessaris' study of the Bangalore-Mysore
Infrastructure Corridor reveals that public bodies 'play a facilitative
role to access land in large parcels and ensure little opposition'.
Economic development, we can learn here, may decrease the opportunities for
rendering authority accountable.
This chapter also casts doubt on the efficacy and appropriateness of
public interest law, which is a preoccupation of many other chapters. In
the home of PIL there is now clearly disillusionment with the effects and
incidents of PIL and the courts themselves are becoming wary of the
possibility of abuse of the process. Over the period since PIL was at its
height in Bangalore in the mid-1990s its use has declined and it success
rate dramatically cut. Moreover advances in participation have also led to
disillusionment. The proliferation and development of legal and democratic
gateways does not appear to have had a significant impact. Only the right
to information, also seen in other chapters as crucial, offers, since 2000,
some hope of improvement.

(c) Indonesia
More than most of the contributions to this book, Adriaan Bedner's
piece (chapter 4) on Indonesia presents in a depressing (although
ultimately not at all hopeless) light the situation of environmental law in
a developing country. On many points the basic principles of environmental
law itself are found to be satisfactory, and indeed Bedner is content to
judge environmental justice by reference to Indonesian law rather than the
latter's compliance with international law. The law provides several
potentially useful gateways, and many rules, such as those providing for
the right to a healthy environment, the right to participation in
environmental decision-making, class actions, NGO standing, rights and
duties with respect to environmental information, environmental mediation,
generosity with regard to limitation periods in civil actions, and the
statutory enactment of the polluter-pays principle, that are models of
environmental justice in the conceptual sense. However, when one grasp at
the practical operation of the rules, their substance has a tendency to
disappear between the fingers. Negating factors include the socio-political
problem of asymmetry in power relations; legal/ evidential problems in
proving cases, especially with regard to causation; lack of implementing
regulations, and even lack of implementation of such regulations where they
exist (as with a regulation enabling the setting up of environmental
dispute settlement centres). Thus in many instances the law is directly
contradicted by practical outcomes. In the case of environmental
information, for example, there is no device requiring information to be
divulged by potential polluters, and the prevailing situation especially in
rural areas is environmental secrecy, not information (Bedner even doubts
if such a device would be used even if it existed). There is a power to
order an environmental audit, but it has been used only once. There is
environmental impact assessment, but it provides no third-party rights and
is ineffective. As if this were not enough, there are also serious problems
with some legal provisions or with their application by the judiciary in
the contexts of, for example, evidence, remedies, and jurisdiction.
Regional autonomy and economic crisis appear to have made the situation
even more unpredictable and generally worse than previously.
Thus, as with most of the other contributions, Bedner finds that in
Indonesia we have to look at extra-legal factors both for explanations and
for good news and perhaps good prospects. He refers to the significance of
government involvement in mediation, and the importance of the roles of
NGOs, the press, and local direct action in securing outcomes positive for
the environment. The facts that an AusAid programme has now produced over
800 judges with environmental specialism, as well as reforms in the higher
courts; and that the internet has created conditions of knowledge-sharing
globally as well as locally give cause for some hope that the gateways
Bedner discusses will prove more open in the future than they have been so
far.

(d) Malaysia (Kuala Lumpur)
In their study at chapter 5, based on research on the conurbation of
Kuala Lumpur, Andrew Harding and Azmi Sharom consider environmental
decision-making within the complexities of a federal structure, emphasizing
state and local rather than federal government; the environmental nature
and effects of planning law; and the role of NGOs in environmental decision-
making. As with other contributions there is much discussion of the role of
the judiciary, which in the Malaysian context reveals a certain ambiguity,
with some decisions, for example those relating to eviction orders and
natural justice in planning decisions, prioritising access to environmental
justice, while others, for example on standing and civil liability, firmly
rejecting it. While planning law, described as undeveloped, creates a
limited gateway for middle class interests, the authors consider
extensively access to land and the position of squatters and their gateways
to protect their de facto occupation of land in the face of urban
development. In this context the authors describe litigation in resistance
to a possession order as a 'drawbridge' rather than a gateway.[17]
The curtailment of human rights and civil liberties in general, as
well as extra-legal factors, such as corruption and the inter-racial
dynamics of one-party dominance, are identified as causes for a lack of
effective access to environmental justice. These relate both to pre-
decision and post-decision gateways. The conclusion is that while the law
provides many gateways of some potential use, and while many institutional
conditions should work in favour of environmental justice, in practice
access to environmental justice is limited due to the absence of basic
conditions of democracy in almost all areas of decision-making,
particularly in local government, where there are no elections. Since the
research in Malaysia was completed, the courts have, in a remarkable
development, recognised the customary land rights of the orang asli, the
aboriginal population of Peninsular Malaysia.[18] In doing so, they have
been influenced by the Canadian decision in Calder[19] and Australian
decisions, including Mabo.[20] At the same time, they have also, in an
equally remarkable but entirely negative development, failed to give
standing to an aboriginal group in Sarawak to challenge a major dam
project.[21] Another feature of the Malaysian situation, reflected in most
of the other chapters in this book, for example that on Pakistan, is that
the conditions of access, or the lack of access, discriminate against
minorities, in this case squatters of Indian extraction and Indonesian
immigrants.

(e) Nepal
Consistently with the theme that access to justice is inseparable
from political conditions, Surya Subedi's chapter 6 on Nepal outlines a
much more negative situation than was apparent in an earlier draft, which
is due to rapidly declining political stability in the period 2002 to date.
Whereas rapidly developing environmental law, itself a result of government
recognition of the lack of sustainability of Nepal's environment, had in
the early 1990s created gateways for public participation in environmental
decision-making, frequent changes in government, the imposition of royal
rule in 2005 bringing the law-making process to a halt, and the continued
Maoist insurgency, put a severe brake on this development. Before this
juncture, however, Nepal had during the 1990s made steady progress in
securing public participation in the planning process for development
projects; it was only during the ascendancy of democracy that Nepal began
to enact laws to protect the environment and develop the system of access
to environmental justice. However, the judiciary is still relatively
powerless in the environmental field in comparison with India and Pakistan,
despite promising development regarding the Supreme Court itself (for
example in asserting a right to environmental information), and there are
substantial disincentives to court proceedings. As a result, it is
principally the authorities responsible for environmental management that
resolve environmental disputes. Also elders of the society known as the
'panch bhaladmi' resolve many local disputes through informal arbitration
and mediation processes. As in other cases, the abundance of administrative
agencies able to deal with environmental offences has created a situation
where there is a serious danger of inconsistency in the standard of justice
applied.

(f) Pakistan (Karachi)
Martin Lau's chapter 7 on Karachi/ Pakistan provides a good insight
into the way in which colonial and post-colonial political history has
adversely affected urban environments in the developing states. The chapter
also endorses the idea that access to environmental justice is deeply
affected by political conditions, to the point of reflecting them very
precisely. The chapter is very disturbing in its bleak conclusions about
the environment of Karachi's poor, and the seeming lack of any significant
legal development favouring access to environmental justice, or even the
relevance of legal gateways in the context of Pakistan's problematical
legal system. Even the brief and promising flowering of Islamic public
interest litigation has come to naught with General Musharraf's 2001 coup,
and the extensive Asian Development Bank access to justice project (AJP)
appears to have had very little actual impact on legal conditions generally
and none at all on environmental law.
Pakistan reflects some familiar problems, but seems to have all
rather than some of them. Lack of the rule of law and basic law and order;
lack of statutory and constitutional development, to the point of non-
existence of rights to a healthy environment, or to participation or
information; lack of implementation even of the statutes that have been
passed; uncertainties over standing resulting in a virtual absence of
environmental litigation; the widespread flouting of planning laws;
official corruption in the police and other state agencies; and sheer lack
of any political will to deal with environmental issues affecting the poor.
However, although he is sceptical about the attention given to AJP,
Lau tries hard to see a positive way forward, and the case study on Taikri
Colony indicates that the ombudsman is probably the best gateway for access
to environmental justice, due to the availability and flexibility of the
institution, even though there is a tendency for public authorities to
reverse the ombudsman's judgment. Local elections (contrast the position in
Malaysia here) are seen by Lau as having a positive impact: even the poor
have votes and need to be courted.
Overall, this study reinforces solidly the points that access to
environmental justice will not change until politics itself changes, and
that such access is ultimately dependent on general legal and governance
reforms.

(g) People's Republic of China
Michael Palmer's study at chapter 8 on the Peoples' Republic of China
examines the development and the role of environmental justice in a rapidly
developing economy in which communist ideology of the Mao Zedong era gave
no place to environmental protection. We find here much to admire in the
development of Chinese environmental law, which since 1979 has encompassed
a wide range of protection, even if, as expected in a state which is still
authoritarian, access to environmental justice for individual citizens and
groups is somewhat constrained. Environmental law plays a role in what
Palmer calls 'setting the parameters between a still-authoritarian system
of governance and an increasingly autonomous civil society'.
The problem, as with most of the other jurisdictions discussed in
this book, lies not in the law itself but in its implementation. In China
much power lies in the hands of local officials who are responsible for
economic development as well as environmental protection, and thus efforts
to establish environmental justice are aimed principally at controlling
local officials. Local environmental protection authorities are not overly
concerned about the fact that the penalties which they impose are not
financially stringent and therefore ineffective deterrents, for they are
concerned to secure an income from the fines and in a particular do not
want to bankrupt the polluting enterprise
Judicial independence also remains to be firmly established and
courts and prosecutors view with reluctance the imposition of remedies in
environmental cases, especially in criminal cases. Hence the emphasis in
this discussion is on negotiation, mediation and semi-formal administrative
decision-making, with 'letters and visits' as an informal gateway, and
administrative penalties as the main coercive threat to polluters.
Interestingly enough, even China has witnessed the growth of civil-
society solutions to the lack of access to environmental justice, reflected
in the recognition of class actions in the courts. On the other hand,
Palmer concludes that 'an ideology of environmental protection seems to fit
as happily with a quasi-paternalistic, authoritarian state as it does with
western-style liberal democratic political systems', a thought which may
give us pause before we assert that public participation is the only
guarantee of environmental protection; however, does a statist solution
guarantee environmental justice?

(h) South West Pacific
The South West Pacific presents most of the same problems as other
regions covered in this book, as well as a few more that are peculiar to
small states where both customary land tenure, and reliance on marine
resources, forestry and mining (with the accompanying pressure of foreign
investment problems in the last two cases), and even environmental tension
leading to civil war in the case of Papua New Guinea, are of great
importance. Nicola Pain's contribution (chapter 9) draws attention to one
aspect of access to environmental justice which is not easily drawn out in
country-based studies, namely the increasing importance of 'transnational
access to environmental justice', noting attempts by environmental groups
to bring litigation in Australia and the United States, being more
sympathetic fora in cases where there is a large deficit in access to
environmental justice in the 'home' country's legal system. As in the case
of Ghana, and India customary law offers potential solutions to the problem
of dispute resolution, as well as presenting problems of different notions
of a proper system of tenure.
This study is also shot through with evidence, of which the most
powerful is drawn from the Ok Tedi and Panguna case-studies, of lack of an
independent legal system, access to environmental justice, public
participation, or environmental impact assessment. Like the other studies
it also offers a wide range of potential and actual gateways in terms of
public interest litigation and self-help remedies. Pain sees the way
forward as lying in 'provision for genuine public participation, essential
to the implementation of human rights and sustainable development, and
hence greater opportunity for access to environmental justice'.

(i) Thailand
Since 1997 Thailand has undergone a dramatic reform of its entire
Constitution and the upper reaches of its legal system. The 1997
Constitution deals extensively, both explicitly and implicitly, with issues
of environmental justice and environmental protection, while also making
extensive provision for public participation in decision-making generally,
and is known as the 'green' constitution. Thawilwadee Bureekul's chapter
10, reflecting the approach taken in most of the chapters found here,
provides us with an insight into the actual workings of environmental
justice in critical cases, and she examines in detail the case of the Hin
Krud power plant. Since 1996 the government has made extensive provision in
the law for public hearings into development projects and also for public
access to official information. The NGO movement has also grown
considerably in power and organisation. There are now several formal legal
and also informal gateways to environmental justice through the medium of
public participation.
Nonetheless, there have been problems which public participation has
failed to solve and also created. Participation in environmental management
has failed to produce stakeholder satisfaction, and indeed has even
increased conflict. In the Hin Krud case the government had approved the
project before public participation took place, and the public's right to
know has not been honoured. Although there has been much progress in
Thailand in accessing environmental justice, much still remains to be done.

(j) United Kingdom

Jean-Jacques Paradissis and Michael Purdue in their chapter 11 on the
United Kingdom discuss at some length the provisions on access to
environmental information, public participation, and judicial review, which
they see as creating a kind of virtuous circle, each aspect of
environmental justice being dependent on the others – indeed they define
environmental justice in precisely those terms. The governing standard is
that set by the Aarhus Convention, so that in effect Paradissis and Purdue
provide a distinctively European version of access to environmental
justice.
Given that the issue of environmental information is seen, in almost
all the contributions, as a large problem, the UK provisions contained in
the Environmental Information Regulations 1992, based on the EU Directive,
are most instructive. This is a good example of legal development which
could properly be considered across both developed and developing states
and across different areas of environmental regulation. The device of a
register, also discussed in this contribution, can cover planning
applications, pollution emissions, measurements of environmental quality,
and movements of hazardous waste. This is another area from which much can
be learned. When it comes to judicial review and standing, as is the case
elsewhere, judicial schizophrenia is in evidence, but the UK decisions can
again be instructive in several ways.
It will be seen that this chapter is significantly less socio-legal in
emphasis than many of the other chapters. This is to be expected, because
it is clear that in the UK (and by virtue of the European origins of recent
law, implicitly in Europe too) political action on environmental issues is
generally, although not always, channeled through legal gateways involving
consultation and inquiry, and also the system of planning and environmental
law provides for a good deal of public participation and is essentially
democratic, at least when compared to many of the systems described in this
book.

(k) United States

The United States has often been the source of new ideas and
inspiration in the field of environmental justice. In particular it is
doubtful if public interest law would have developed to the extent it has
without the American example; and the incorporation of environmental
justice and public participation into decision-making is something that
could with great benefit be adopted elsewhere: the Civil Rights Act Title
VI bars agencies that receive federal financial assistance from
discriminating on the basis of race, colour, or national origin.
Nonetheless, Cha Mijin's chapter 12, based on experience working with
citizen groups in California and using case studies from other parts of the
United States, indicates that the struggle for environmental justice still
continues in the United States, and still displays some troubling features.
In particular Cha highlights the ethnically differentiated distribution of
environmental risks and pollution episodes, which is a phenomenon that, as
we have noted, is in evidence in other countries too. The chapter traces
the development of the environmental justice movement and its relationship
to the civil rights movement; and examines a number of cases and provisions
which are being used to advance incrementally access to environmental
justice. Her conclusion, emphatically endorsed by the other chapters in
this book, can stand as a conclusion to the book as a whole:
The issue of environmental justice cannot be viewed solely from an
environmental perspective; nor can it be viewed solely from a social
justice perspective. Rather, the two must be inextricably intertwined
and addressed. Although environmental justice is a relatively new
field, it is clear from the cases presented that a new approach is
emerging that combines social and environmental concerns. This gives
way to a movement where people are empowered because their problems
are not seen in a vacuum, but instead, there is a multi-faceted
approach that envelops all of their concerns. While it seems that the
victories are few and far between, it must be noted that this movement
is not aiming to win small victories, but it is aiming to change the
way people view environmental issues.



V FINALLY …

The contributions to this book address an area of legal development
whose importance to life on this planet can hardly be overstated. Accessing
environmental justice is not simply a matter of voicing environmental
concerns, as in most Western democracies; it is also a matter of ensuring
the basic elements of survival for communities, and especially the poor,
across most of the developing world. And of course our survival as humanity
depends on our wise use of natural resources in a sustainable manner.
Providing access to environmental justice, as we see from the research set
out in this book, is highly problematical. In most countries we can say
there has been progress in the last two or three decades, and yet
environmental justice is neither guaranteed nor easily accessed. Even where
there is broad acceptance that access to environmental justice is highly
desirable and progress has been made in that direction, the matter is not
at all free from difficulties, and it is clear that these difficulties are
attributable principally to the political, but also to the economic, social
and cultural contexts in which environmental justice is being accessed. If
there is a single lesson to be drawn from these studies, it is that
environmental justice is a good which can only be achieved by a massive
feat of political will. The experience of the December 2004 tsunami in
Indonesia, Thailand and Sri Lanka, shows that it is only when disaster
strikes that our minds are concentrated to a degree necessary to take the
decisive actions we always knew or should have known were necessary. In the
case of access to environmental justice it is clear that action is needed
at many levels and in many contexts, not simply the legal contexts, to
ensure that justice becomes a reality and the environment is protected.
Hopefully these studies have pointed to the practical ways I which this
position may be achieved.

-----------------------
[1] Professor of Asia-Pacific Legal Relations, University of Victoria, BC,
Canada: email [email protected]. The editor would like to thank YTL
Corporation Sdn Bhd and Datuk Francis Yeoh for their generous support for
his own research on access to environmental justice.
[2] E.g., several chapters of Robinson, D. and Dunkley. C. (ed), Public
Interest Aspects of Environmental Law (Wiley Chancery, London, 1995);
several chapters of Anderson, M.R. and Boyle, A. (ed), Human Rights
Approaches to Environmental Protection (Oxford University Press, Oxford,
1996); Jenkins, H., Social Response to Environmental Injustice: Legal and
Moral Gateways to Entitlement (London, SOAS Law Department Working Paper
no.14, 1997).


[3] Commonwealth Institute, May 1993.
[4] UN Conference on Human Settlements (Habitat II), Istanbul June 1996,
Networking and Dissemination Project L320263051, SOAS, London, April
1996.
[5] 'Access to Environmental Justice: A Comparative Examination', IALS,
June 1997.
[6] See, e.g., Principle 10 of the Rio Declaration, and Chapter 27 of
Agenda 21; and most of the contributions to the conferences mentioned
above.
[7] For example, Lau is surely right to emphasise access to land as the
critical environmental issue in Karachi: see ch.7.
[8] See ch.11.
[9] Ch.4.
[10] Ch.12.
[11] Ch.5.
[12] Several project contributions on file with the editor.
[13] Capelletti, M., (ed), Access to Justice (Milan, Sijthoff, 1978).
[14] Scott, J.C., Weapons of the Weak: Everyday Forms of Peasant Resistance
(New Haven, Yale University Press, 1985).
[15] Anderson and Boyle, above n.2.
[16] Sen, A., Poverty and Famines: An Essay on Entitlement and Deprivation
(Oxford, Oxford University Press, 1981).
[17] See, further, above for this distinction.
[18] Adong bin Kuwau and 51 Others v Government of Johor [1997] 1 MLJ 418,
affirmed by the Court of Appeal in [1998] 2 MLJ 158; Sagong Tasi and
Others v Government of Selangor and Others [2002] 2 MLJ 591.
[19] Calder v A-G of British Columbia (1973) 34 DLR (3d) 145.
[20] Mabo v Queensland (1991-2) 175 CLR 1 (Mabo No.2).
[21] Ketua Pengarah Jabatan Sekitar and Another v Kajing Tubek and Others
[1997] 3 MLJ 23.