1 REVIEW OF LAWS RELATING TO ACCESS TO INFORMATION, PUBLIC PARTICPATION AND JUSTICE IN ENVIRONMENTAL MATTERS (Reference to provisions applicable to the development approval process) Prepared by Danielle Andrade for Environmental Awareness Group of Antigua and Barbuda November 18, 2015 I. INTRODUCTION General Environmental Policy Information The policy for the sustainable development of Antigua Barbuda is derived from two main documents: the draft National Physical Development plan (2011) and the Antigua Barbuda National Environmental Management Strategy (NEMS). The former is supported by the Physical Planning Act 2003 . The NEMS is a requirement of the St. George’s Declaration of Principles of Envir onmental Sustainability, signed by the Governments of the Organisation of Eastern Caribbean States in 2004. The St George’s Declaration with its 21 key principles with clear provisions for participation is enshrined in the 1981 Treaty of Basseterre which gives it enhanced legal position as binding on signatory states. The Antigua Barbuda NEMS 1 focuses on twelve of the 21 principles in the Declaration, including the need to ensure meaningful participation by civil society in decision making as well as the need to ensure the participation of the private sector 2 Antigua Barbuda is also a signatory to the Barbados Programme of Action which reaffirms the principles articulated under the Rio Convention and Agenda 21 3; as well as the CARICOM Charter of Civil Society, which embraces concepts such as sustainable development, a right to a healthy environment, good governance and public participation (Art. 23 and 24). 4 The CARICOM Civil Society 1 http://gefantigua.org/documents/antigua-and-barbudas-national-environment-management-strategy-and- action-plan-2004-2009/ 2 Principle 4 of the National Environmental Management Strategy states that efforts must be made to “Ensure Meaningful Civil Society Participation”. The recommended actions to implement this principle are as follows: Each government agency will design and implement mechanisms to identify their key stakeholders and enlist their participation in the implementation of projects and programs. • Develop and implement a mechanism for the mandatory exchange information among government agencies. • Inc rease participation and responsibility amongst stakeholders through: o The amendment of existing legislation to facilitate participation by civil society o Establishment of mechanisms for feedback and comments. o Production of user friendly and timely information. o Development and implementation of plans for increasing access to information. 3 The Barbados Programme of Action sets out fourteen priority areas and makes repeated references to the importance of participation in the shaping of policies and decisions and the special role of non-governmental organisations women, indigenous communities and youth. 4 The preamble of the Charter states that the member states of CARICOM are determined “to create a truly participatory political environment within the Caribbean Community which will be propitious to genuine consultation in the process of governance”. ART XX III deals specifically with environmental rights and provides for a right to a healthy environment. Note also Artcle XXIV. ART XVII (7) provides that “in order to further the participation of the people in the democratic process States shall establish effective systems of on- going consultations between the Government and the people.” ARTICLE XXII provides that parties shall “establish within their respective States a framework for genuine consultations among the social partners in order to reach common 2 Charter is referenced in the Revised Treaty of Chaguaramas and it can be argued that this gives rise to the legitimate expectation among Caribbean citizens and therefore can be considered as legally binding. II. ACCESS TO ENVIRONMENTAL INFORMATION IN ANTIGUA AND BARBUDA In Antigua Barbuda there is no specific legislation giving access to environmental information. Rather a request for such information must be made through the Freedom of Information Act 2004 (FOIA) which governs access to information held by public authorities generally. In addition Article 12 of the 1981 constitution provides for a general protection of the right to freedom of expression including a right to seek information. Scope of the right: Section 6 (1)of the FOIA recites the right enshrined under section 12 of the constitution and states that the paramount purpose of the FOIA is to give maximum effect to that right in respect of information held by public authorities. Who is liable? “Public Authority” is defined under section 3 of the FOIA to mean the government, a ministry of the government and a department division or unit, the Barbuda Council and a body established by law, owned controlled or substantially financed by the Government, or a body designated as such, by the Minister by an order published in the Gazette. Who can apply? The FOIA imposes no limitations on who may apply for access to information. Section 15 provides that “every person” has the right “to obtain, on request, access to information”. The term “information” is not defined Exemptions (Part IV FOIA) There are exemptions set out in Part IV of the FOIA and these include personal information, legally privileged communications, commercial or confidential information, documents which could endanger the health and safety of a person, documents which could prejudice law enforcement, defence and security, documents which could prejudice the management of the economy or the effective operation or policy making of a public authority, and documents which are Cabinet documents. The access procedure also does not apply to documents which are already available to the public such as information which can be obtained at a public register or which is available for purchase or for public inspection (section 16). It should be noted that public authorities must show that the harm will still be caused at the time of the request and there is a time limit of thirty years for some exemptions. Further even if an exemption applies, public authorities may not refuse a request unless the harm that would result from the disclosure outweighs the public interest in release. understandings on and support for the objectives, contents and implementation of national economic and social programmes and their respective roles and responsibilities in good governance”. 3 Application procedure, Timelines and Fees A request must be made in writing to a senior official or information officer in the public authority, unless the requestor is illiterate or disabled, in which case, it may be made orally. There is a duty to assist if the request is not in the proper format (Section 17 (2)). Both public and private bodies must respond to a request within twenty working days, which can be extended to a maximum of forty days where the request is for a large number of records or requires a search through a large number of records. Requests for information necessary to safeguard the life or liberty of a person must be responded to within 48 hours. Any failure to respond within the time limits will be deemed a refusal (Section 18). The provision of information may be conditional upon the payment of a reasonable fee, provided that the fee does not exceed the actual cost of searching for, preparing and communicating the information. No fee is payable for requests for personal information or requests in the public interest (Section 20). Information should be provided in the format requested unless to do so would unreasonably interfere with the operations of the public authority or the preservation of the record (Section 21). Active Disclosure Requirements - Part II FOIA Section 9 of the Act provides that public authorities should designate information officers to serve as a central contact with the public. Section 10 further imposes a duty on public authorities to publish inter alia information about their functions , services , finances, a guide to their record keeping, regulations, policies, rules and complaints mechanisms or means by which members of the public may make representations or otherwise influence the formulation of policy . Public authorities also have an obligation to maintain records in such a manner as to facilitate the right to access to information. The Act also provides for the appointment of an Information Commissioner who is required to publish a guide on minimum standards and best practices regarding the duty of public authorities to publish information (Section 8). Active Disclosure Requirements – Public Registry under the Physical Planning Act The Town and Country Planner is required to maintain a registry of planning information and decisions which is open to the public pursuant to section 77 of the Physical Planning Act. The information that should be kept in the registry includes: - applications for development permits; - decisions on applications for development permits and any conditions attached to development permits; - notices of modification or revocation of development permits; - compliance notices, stop notices, injunctions and discontinuance notices; - public access agreements; - applications for building permits; - decisions on applications for building permits and any conditions attached to approvals; - development agreements and performance bonds - purchase notices; - applications for express consent to display advertisements ; - claims for compensation; 4 - decisions on appeals against any decisions made or action taken under the Physical Planning Act Copies of information in the registry can be obtained at a prescribed fee. Consider contacting the Town and Country Planner to request to view and get copies of the application/s for the development permit, the EIA, development agreement etc. III. PUBLIC PARTICIPATION IN DECISION-MAKING ON ENVIRONMENTAL ISSUES Participation through the Environmental Impact Assessment Process Section 17 of the Physical Planning Act 2003 provides that “no person shall commence or carry out any development of land, except in accordance with a development permit granted under this Act.” Section 23 of the Act further provides that an environmental impact assessment must be carried out in respect of an application for a development permit to undertake any of the activities listed in the Third Schedule as well as any other development which would be likely to have significant effects on the environment. The Act specifies that no development permit can be granted before taking into account the EIA. THIRD SCHEDULE Section 23 MATIERS FOR WHICH ENVIRONMENTAL IMPACT ASSESSMENT SHALL BE REQUIRED 1. An airport, port or harbour, including a yacht marina; 2. A power plant; 3. A crude oil or refinery facility or a petroleum and natural gas storage and pipeline installation; 4. An incinerator, sanitary landfill operation, solid waste disposal site, sludge disposal site, toxic waste disposal site or other similar site; 5. A wastewater treatment, desalination or water purification plant; 6. An industrial estate development project; 7. An installation for the manufacture, storage or industrial use of cement, paints, chemical products or hazardous materials; 8. A drilling, quarrying, sand mining and other mining operation; 9. An operation involving land reclamation, dredging and filling of ponds; and 10. A hotel or resort complex The Development Control Authority must take into account any approved development plan for the country and specific area (section 25). The Physical Planning Act does not set out any notification requirements or public consultation procedures for the issue of the terms of reference, the review of the EIA or the final determination of the development permit application. It provides only that where an application is made for the development of any land within the jurisdiction of the Barbuda Council, the St John’s Development Corporation or the Port Authority or National Parks Authority, no permit may be granted without prior consultations with those bodies. Section 25 does however provide that the Development Control Authority “shall take into account” a number of matters “as appear to be relevant” or as the Town and Country department may advise. Among those matters listed, is “any 5 representation by a person with regard to the application or the probable effect of the proposed development”. The Development Control Authority is therefore obliged to take representations made about a proposed development permit where such representations appear to be relevant. Other factors which the Development Control Authority must take into account if relevant include: (c) statement of policy issued by the Minister; (d) information, study or report provided by the applicant in response to a request by the Town and Country Planner (includes EIA) (e) the likely impact of the proposed development on the natural or built environment; (f) the likely impact of the proposed development on public health and safety; (g) the social and economic costs and benefits likely to accrue to the community as a result of the proposed development; (h) an application for commercial or industrial development, or for sub-division of land - (i) any policies on the use of land for agricultural purposes which have been issued by the Minister responsible for agriculture; (ii) the suitability of the land for the purposes intended; (iii) the quality and economy of the proposed development and its design; (iv) the proposals made in the application for the means of access to, from and within the development, and for the provision of utility services to the development; (v) the availability of water, electricity and waste disposal services; (vi) traffic considerations; (i) the financial and other resources which are, or which will be, available to the applicant for the development permission; (j) the area of land required for the proposed development; (k) such other matters as the Town and Country Planner considers to be relevant to the determination of the particular application IV. ACCESS TO JUSTICE Procedures for challenging the processing of requests for information Section 41 of the FOIA provides for a complaint to be made to the Information Commissioner where a public authority had failed to comply with an obligation under Part III of the Act. 5 The complaint may be made by any person who has made a request for information and must be made in writing. The Commissioner must make a decision on a complaint as soon as reasonably possible, and in any case within 30 days after giving the complainant and the public authority an opportunity to provide their views in writing (Section 42). The Commissioner may dismiss a complaint on the basis that it is frivolous or vexation or on the grounds that the complainant has failed to use an alternative remedy established by the relevant authority. The burden of proof is placed on the public authority to prove that it acted in accordance with its obligations. The Commissioner may either dismiss the complaint or order compliance. There are no provisions relating to costs. The Commissioner also has the power 5 The position is less clear with regard to obligations under Part II of the Act i.e. Active disclosure requirements. Section 41 specifically speaks to Part III obligations only. However section 42 and 43 which set out the steps that be taken by a Commissioner once a complaint has been made and decided upon also refer to Part II obligations. 6 to conduct an investigation including issuing orders requiring the production of evidence or the compelling of witnesses. Either the complainant or the relevant public authority may apply to the High Court for review of the Commissioner’s decision within 28 days. Since the right to information is also enshrined under the Antigua Barbuda constitution, a breach of that right can also be challenged by way of a constitutional motion. Procedures for challenging the legality of decisions on projects that require the participation of the public Antigua Barbuda is a commonwealth nation with a common law legal system. The UK Privy Council remains Antigua Barbuda’s court of fina l appellate jurisdiction and as a result, Privy Council decisions are binding on Antiguan courts. This is the case despite the inauguration of the Caribbean Court of Justice (CCJ) in 2005. Although Antigua Barbuda is a signatory to the Revised Treaty of Chaguaramas which established the CCJ, it has not yet made the constitutional amendments necessary to replace the Privy Council with the CCJ. International Treaties The St George’s Declaration with its 21 key principles with clear provisions for participation is enshrined in the 1981 Treaty of Basseterre which gives it enhanced legal position as binding on signatory states. The CCJ therefore only operates in the context of its original jurisdiction, i.e. an international tribunal that determines the application and interpretation of the Revised Treaty of Chaguaramas. Notably Article 211 expressly restricts this original jurisdiction to four (4) distinct categories: 1. Disputes between member states; 2. Disputes between member states and the Community; 3. Referrals from National Courts of Member states; 4. Applications by persons in accordance with Article 222. Article 222 is extremely restrictive in terms of the circumstances where applications from persons can be made. Applicants require the leave of the court and the persons concerned must establish, inter alia, that they are prejudiced in respect of the enjoyment of Treaty benefits and that the Treaty intended that the right of direct access be conferred to them directly in the circumstances. I considered whether this development can be considered a breach by the government under Articles 65 and 226 of the Treaty which includes provisions on environmental rights but I don ’ t think there is a cause for action. 7 Administrative Appeal under Physical Planning Act The Physical Planning Act establishes a Tribunal to hear appeals from an applicant for a development permit as well as any person who has an interest in the land that is the subject of the development (section 69). The procedure for appeal is set out in section 69 of the Act. A notice of appeal must be filed within 42 days of the decision being challenged. The Tribunal has the discretion to hold a public inquiry having regard to certain factors: (a) whether the public interest requires that all persons (including the appellant) who may have a view to express in relation to the matter to which the appeal relates should have an opportunity of having their views taken into account of submitting evidence and of examining witnesses called by others; (b) whether it would reasonably practicable to deal with the appeal by way of written representations; (c) the nature, scale and location of the development to which the appeal relates. Consider whether there are any persons who have an interest in the land that is the subject of this development and see if they would be willing to file an administrative appeal under section 69 of the Physical Planning Act. This could open up possibility for a public inquiry. Judicial Review The common law remedy of judicial review applies in Antigua Barbuda and the UK jurisprudence regarding the scope and application of this remedy is generally applicable. An applicant who has been affected by a decision of a public authority (e.g. the grant of a development permit) can apply to the High Court for judicial review of that decision. Judicial review is particularly relevant in environmental matters because the common law rules of standing have relaxed over time allowing persons or groups who are not directly affected by the decision being challenged to bring an application in the public interest. 6 The common law grounds of judicial review include unreasonableness, procedural illegality, deprivation of a legitimate expectation, abuse of power etc. Judicial review is a procedural rather than a merit- based review. Hence judicial review is not concerned with the substance of the decision but rather with whether the decision made was within the power of the decision maker and whether the decision maker followed the prescribed procedure when making the decision. Consider here whether you have evidence that the procedure set out in the Physical Planning Act was not followed: - Is this a development that falls within the Third Schedule that requires a mandatory EIA? - Was an EIA prepared prior to the grant of a development permit for the development? - Did the Development Control Authority take into account the considerations in section 25 of the Physical Planning Act? The applicant seeking judicial review of the decision can apply for orders from the Court, namely: 6 R. v. Pollution Inspectorate, ex p. Greenpeace (No. 2) (1994), and R. v. Secretary of State for Foreign Affairs, ex p World Development Movement (1995). 8 - Order of certiorari- to quash (nullify) a decision (e.g. grant of a permit) - Mandatory order - order to undertake some act or stop an act (injunction) - Declaration – court pronouncement on the rights and duties of the parties - Damages - (if a tort is also claimed e.g. negligence) High legal costs associated with initiating a claim for judicial review are prohibitive and a significant barrier to access to justice where technical advice is needed. Unsuccessful claimants are also liable for costs of the defendant/s. There are no legal aid provisions in Antigua Barbuda for public interest litigation. Further there does not appear to be any statutory provisions for protection from costs for public interest litigants. As a result the usual “loser pays” principle will apply in claims brought concerning environmental issues. Another challenge with using judicial review as a remedy have to do with the short time scales within which an application must be made ( check on this – it is three months in Jamaica. Not sure about Antigua). Constitutional Motion Where a project has or is likely to cause a breach of one of the fundamental rights enshrined in the Constitution of Antigua Barbuda, a constitutional motion can be brought to halt the activity or to claim damages arising from such a breach. Rights which may be breached include the right to life, property or privacy. Typically however constitutional motions can only be brought in respect of breaches of private rights. It therefore does not provide an appropriate public interest remedy except in cases where a group’s private rights have been directly affected.