Mechanisms and Drawbacks of Public Participation in Environmental Law

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Public participation is a fundamental underlying principle of effective environmental laws. Policies and decisions affecting the environment have the potential to impact the public at large, whether in a positive or a negative manner. It is therefore of significant importance that the public is engaged in the formulation, implementation and enforcement of environmental laws, particularly where the public, or a section of the public is directly or indirectly affect by the law or its outcomes.

This essay examines four modes of public participation: consultation; partnership; standing; and consumer choice. Each modes faces its own obstacles in achieving effective public participation, and equally, each mode of participation offers advantages in some areas. Given the importance of public participation in environmental law, it is preferable that not just one mode is perfect and applied across different areas of environmental law, but a suite of effective public participation mechanisms are developed and implemented to maximise public involvement. This will be a challenging task in light of the breadth of environmental laws, the need to balance public and private interests, and the variety of stakeholders and their respective interests.

Models of Public Participation
In March 1998, the New South Wales Cabinet Office release a discussion paper on public participation in the policy process, which outlines a number of public participation mechanisms . While that document specifically focuses on participation in the formulation and implementation of policy, it provides a useful framework for consideration of participatory mechanisms in an environmental law context. In particular, it explicitly ignores value judgments that some modes of participation may or may not be preferable to others in certain contexts, and simply establishes four participation types : 1.participation as consultation;

2.participation as partnership;
3.participation as standing; and
4.participation as consumer choice.

The typology of participatory mechanisms adopted by the NSW Cabinet Office is employed in this analysis as a useful framework under which to consider public participation in environmental law.

Participation as Consultation
Public participation through consultation is the most common mechanism used by governments to involve the community . It involves a degree of reciprocity with the provision of information and the capacity of the public to comment, although the ultimate decision rests with government . The function of public participation can be seen through environmental law in Australian jurisdictions with respect to public lands and natural and ecological resources management. As a general approach, different jurisdictions provide for the preparation of a management or conservation plan in draft form, public exhibition of the plan and finalisation of the plan in light of any public submissions received.

Examples of Participation as Consultation – Public Lands and Natural and Ecological Resources Western Australia
The Western Australian Conservation and Land Management Act 1984 (CLMWA) applies to a suite of public lands, including State forests, timber reserves, national parks, conservation parks, marine parks, nature and marine reserves and any other land the management of which is vested in the Conservation Commission or the Marine Authority . The CLMWA requires that the agency responsible for the management of a particular reserve, park or other public land must prepare a management plan for that land , generally to detail the policies, strategies and activities relevant to the land over a ten year period . Any management plan, or amendment to a management plan that may be prepared must be publicly exhibited for at least two months and submissions from "any person" invited . Notification of exhibition of a management...
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