Planting the seed: enhancing public participation in environmental assessment——a comparative perspective between China and Australia

MIAO Miao （East China University of Politics and Law, Shanghai 200042, China）

Abstract It is being increasingly recognized that public participation is of crucial importance to any environmental strategy to succeed, not only in developed areas such as Australia but also in developing areas such as China .The role of public participation manifested itself to be more and more important with respect to the decision-making and enforcement procedure in the environmental impact assessment (EIA) or environmental assessment (EA). The issue grew more and more important that the public community should be conferred more convenient rights to access to sufficient information from the on-going judicial as well as administrative dispute resolution bodies to have fundamental idea of the proposed activities, having the right and option to give comment and supervision. The public participation is building into legal frameworks of countries all around the world. In China, public participation is relatively a new phenomenon due to its developing economic as well as social transitional reform. However, public participation is being introduced to the traditionally closed decision-making processes as a means of providing information to improve decision-making by government and proponents as well as to confirm that a project is acceptable to the public before it proceeds. However, deficiencies are found in dimensions of the accurate provisions and specific yet practical procedures, in a word, it is urgent to build up build up infrastructure capacity, training practitioners, educating decision-makers, motivating project constructions and utilize intensive public involvement to the adoption of the successful framework of the public participation tool. In order to do this, a comparative review of examining Australian participatory mechanisms is quite useful to evaluating the Chinese existing frameworks and employing community empowerment and sustainability in social development. Keywords: Public participation, environmental assessment, EIA/EA, Involvement

1. Intoduction

In the present age, almost inevitably, environment issues is facing every corner of our daily life . The environmental problems is raising not only about the resources nature has offered us, but also with related to the sustainable development agenda and economic models governing human undertakings in the present age. Law, considered to be the most effective yet useful mechanisms to build up social norms and bind them to the public behavior, achieving the fair solution while in a provided scope and a concrete system ,thus law is the instrument to obtain common good .Consequently, the public utilization of law is of crucial importance and also of great meaning .According to this point , the public participation in environment law is supposed to play a vital role in the process ,thus not only in the decision-making workshop but also in the process of applying the norms to achieve the primitive goal. The paper focus on the Environmental Assessment (EA) /Environmental Impact Assessment (EIA) as it was the first and it is the most universal instrument requiring public participation in environmental management. [1] A growing demand of more public involvement is currently a great issue in Chinese environmental law; however, most of the debates are carried out on the ambiguous bases of almost every dimensions of environment law. I suppose the best way is to accommodating the above issue in the scope of EIA/EA. Inevitably, it will learn from the normative criteria of Australian legislation as well as legal practice.

2. The background of the normative example of Australia What is public participation in the context of EIA/EA framework? Public participation is believed to be a inseparable component of the EIA/EA process in Australia of evolving adequate community members in the decision-making process . proponent and the public involved in shared analysis, agenda setting and decision making, through reaching consensus on the main elements. [2] It is demonstrated in principle 10 of the Rio Declaration on Environment and Development, which asserting that “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level” (UNCED, 1993). However, the extent to which ‘participate” should be varies from place to place within Australia territory .The concept of ideal public participation encounter the difficulty of how communities of citizens with both diverse and common interests can reach agreements on collective action to solve a shared problem, which directly affects the degree of public participation .Scholars argue that successful public participation must yield not only fair and competent decisions, but also uncover common needs and understanding that transcend egoistic aims, and contribute to the development of democracy. [3] There are legislatives requiring public participation both at Commonwealth and state level with Environmental protection and Biodiversity Conservation Act 1999(Cth) (EPBC Act) commenced on 16th of July 2000 and lists of state-level legislations ,for example ,in NSW, there are following pieces of legislations: Catchment Management Act 1989 Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Forestry and National Park Estate Act 1979 Local Government Act 1993 National Environment Protection Council Act 1998 Plantation and Reforestation Act 1999 Protection of the Environment Administration Act 1991 Protection of the Environment Operation Act 1997 Rural Fires Act 1997 Rural Lands Protection Act 1989 Sydney Water Act 1994 Threatened Species Conservation Act 1995 Waste Minimization and Management Act 1995 Water Act 1912 [4] In the context of Commonwealth In Australia, types of participation in EIA can vary from the minimalist approach to public involvement (“little and late”) to comprehensive” ownership and direction” of all facets of the assessment and decision-making process. [5] There is an attached chart to illustrate the flowing procedure of thee public participation in EIA behind the article. [6] The relevance of inclusion public involvement in the EIA is considered to be that the opinions of the interested & affected public helps to ensure the decision making process is equitable and fair and leads to more informed choice and better environmental outcomes. Nearly all EIA systems make provision for some type of public involvement. This term includes public consultation (or dialogue) and public participation, which is a more interactive and intensive process of stakeholder engagement. Most EIA processes are undertaken through consultation rather than participation. At a minimum, public involvement must provide an opportunity for those directly affected by a proposal to express their views regarding the proposal and its environmental and social impacts. The purpose of public involvement is to: • inform the stakeholders about the proposal and its likely effects; • canvass their inputs, views and concerns; and • take account of the information and views of the public in the EIA and decision making. The key objectives of public involvement are to: • obtain local and traditional knowledge that may be useful for decision-making; • facilitate consideration of alternatives, mitigation measures and tradeoffs; • ensure that important impacts are not overlooked and benefits are maximized; • reduce conflict through the early identification of contentious issues; • provide an opportunity for the public to influence project design in a positive manner (thereby creating a sense of ownership of the proposal); • improve transparency and accountability of decision-making; and • increase public confidence in the EIA process. The range of stakeholders involved in an EIA typically includes: • The people – individuals, groups and communities – who are affected by the proposal; • The proponent and other project beneficiaries; • government agencies; • NGOs and interest groups; and • others, such as donors, the private sector, academics etc. Local people Individuals or groups in the affected community will want to know what is proposed; what the likely impacts are; and how their concerns will be understood and taken into account. They will want assurances that their views will be carefully listened to and considered on their merits. They will want proponents to address their concerns. They will also have knowledge of the local environment and community that can be tapped and incorporated into baseline data. Proponents Understandably, proponents will wish to shape the proposal to give it the best chance of success. Often, this involves trying to create public understanding and acceptance of the proposal through the provision of basic information. More creatively, project design can be improved through using public inputs on alternatives and mitigation and understanding local knowledge and values. Government agencies The government agencies involved in the EIA process will want to have their policy and regulatory responsibilities addressed in impact analysis and mitigation consideration. For the competent authority, an effective public involvement programme can mean the proposal may be less likely to become controversial in the later stages of the process. For the responsible EIA agency, the concern will be whether or not the public involvement process conforms to requirements and procedures. NGOs/Interest groups Comments from NGOs can provide a useful policy perspective on a proposal; For example, the relationship of the proposal to sustainability objectives and strategy. Their views may also be helpful when there are difficulties with involving local people. However, this surrogate approach should be considered as exceptional; it cannot substitute for or replace views whichshould be solicited directly. Other interested groups Other interested groups include those who are experts in particular fields and can make a significant contribution to the EIA study. The advice and knowledge of government agencies and the industry sector most directly concerned with the proposal should always be sought. However, in many cases, substantive information about the environmental setting and effects will come from outside sources. [7] Currently, the provisions with relation to the EIA in the context of the Commonwealth are accommodated in the EPIPA (Environment Protection Act 1974) and the Administrative Procedures (AP) are restricted under the Act too. A series of public participation opportunities occur in different levels of the assessment pursuant to the Act ---PER(Public environment report );EIS(environmental Impact statement ) and a Commission of inquiry .[8] The EPIPA was amended in 1987 with the intention to facilitate the public involvement in the process. Previously the members of the public only had the right to require the Minister to supply information about the action taken, or proposed ,to ensure consideration of the environmental aspects of the proposal .(EPIPA s.10)[9] However ,according to the amendment of the 1987 ,the minister have to reply to the inquiries with the limitation of three months. A range of changing has taken place too under the Amendment 1987: 1. The minister must give reasons why they have not directed an EIS or PER to be prepared, within three months of being requested to do so (AP cl.3.1.5); 2. The minister must give reasons if there is a change of mind and a direction to prepare an EIS or PER is revoked (AP cl.3.5.2); 3. the department must make available to the public the environmental assessment report which it makes to the minister after examining the final EIS or PER(AP cl.9.1.4); 4. the minister must let the public know what advice has been given to the action minister after completion of the procedures (AP cl.9.3.2); 5. the department must make available to the public any further review of the assessment of the action which it makes, while it is being carried out or after it has been completed (AP cl.10.1.3); 6. the minister must let the public know of any advice given to the action minister following any further review or assessment by the department (AP cl.10.2.2); At present, the public members can not require for preparation of EIS or PER .However, excluding that, with regard to EPIPA section 11and AP cl.7, any ordered inquiry is accessible for public. With respect to the enlightening practice and blueprint in the state of NSW The existing legislation framework with respect to EIA in NSW is build up under the Environmental Planning and Assessment Act 1979 (the EP&A Act), enacted by the Department of planning .There are both provisions in relation to the topic of environmental assessment under part IV and part V of the EP&A Act though there is misleading entitlement of Environmental Assessment of Part IV. 1. Part IV of the Act for applications for development consent for proposals which are “designated developments” pursuant to Schedule 3 of the EP&A Act; 2. Part V for activities which are not subject to planning control under Part IV and are generally those which require the approval of a Minister or public authority.

3. The division of the two parts is quite clear: If a proposal requires development consent, then unless the development is complying development, then it definitely falls into the application of part IV without relationship of what kind of undertaking which is proposed. Part IV deals with the procedures which are not requiring the development consent. To decide if development consent is required, the provisions of any EPIs( LEPs, REPs,SEPPs and deemed EPIs) applying to the site in question must be examined .Section 36 of the EP&A Act provided some rules in case of the inconsistency of the EPIs,which laid down the bottom line of at least a deemed EPI in place. But there are still situations that in some remote rural areas of NSW, environmental responsibilities are imposed on the local council and no development requires will be required. However, these areas will be subjected to any applicable REPs or SEPP. [10] EPAA section 78A(8)(A) provides that under EPAA part IV ,Environment Impact Assessment must be prepared for ,or on behalf of the person or organization applying for development consent ,while under Part V ,this rests with the proponent(EPAA s.112(1)(a)(i) or the representatives. The Environmental Planning and Assessment Regulation 1994 (EPAR) established the scope of the coverage of EIS, the schedule 2 of which announces that: 1. a summery of the EIS 2. a statement of the objects of the development or activity 3. analysis of any feasible alternatives to the carrying out of the development or activity, having regard to its objectives, including: (a) the consequences of not carrying out the development or activity; (b) the reasons justifying the carrying out the development or activity ; 4. an analysis of the development or activity including; (a) a full description of the development or activity, and (b) a general description of the environment likely to be affected by the development or activity together with a detailed description of those aspects of the environment that are likely to be significant affected, and (c) the likely impact on the environment of the development or activity having regarding to: (i) the nature and extent of the development or activity, and (ii) the nature and extent of any building or work associated with the development or activity and (iii) the way in which any such building or work is to be designed, constructed and operated, and (iv) any rehabilitation measures to be undertaken in connection with the development or activity, and (d) a full description of the measures proposed to mitigate any adverse effects of the development or activity on the environment; 5. the reasons justifying the carrying out of the development or activity in the manner proposed, having regard to biophysical, economic and social considerations and the principles of ecologically sustainable development; 6. a list of any approvals that must be obtained under any other Act or law before the development or activity may be lawfully carried out. Further criteria relating to the form and content of the statement can be laid down by the Director of Urban Affairs and Planning (EPAR cll.55, 85). [11] Public exhibition An EIS, once completed, should be submitted to the public for a minimum period of 30 days, namely the alleged ‘EIS on exhibition “to invite public comment and inspection. Copies of the EIS can be put on sale of the consent authority or determining authority at no more than $25, and this is compulsory if the determining authority is also the proponents who make copies of the EIS (EP&A Act s.112). Public requires 1. Copies of any public comments which are made to a determining authority must be sent to the Secretary of the Department of Urban Affairs and Planning., who will decide within at least 21 days to decide what action to take before the determining authority can make its decision(EP&A Act s.113(3)). 2. The minister for Urban Affairs and Planning has the option of holding a public inquiry (EP&A Act ss.119 and 113(5)). 3. The findings and recommendations of any inquiry or internal review must be forwarded to determining authorities (EP&A Act ss.113(5), 114(a))and also made public (EP&A Act s.113(6),119(6)). 4. If an inquiry is not ordered, the director of the department can arrange to have the EIS, and any public comments examined within the department (EP&A Act s.113(5)). 5. Where an inquiry is held, the minister may also decide to advice determining authorities of his or her opinion on the matter. This might be that there are no environmental obstacles (EP&A Act s114 (a)). 6. In all cases a determining authority must make a report on its consideration of the EIS and any public submissions (EPAR cl.91). ` 7. In practice, an environment impact assessment report may be prepared by the department of Urban Affairs and Planning or a public report by the department Where applications involving designated development are “called in” for the minister’s decision, then an inquiry will be held(EP&A Act s.80(6)).This contrasts with the position under Part V where inquiries are discretionary.(EP&A Act s.113(5)).[12] Current affairs There is a new information center on the website called iplan—planning information and resources for NSW, which is a initiative portal for the NSW government and offers a resource of information for the improvement of the NSW planning system. Within the NSW planning system, various State and local government agencies have particular roles and statutory obligations in managing the diverse expectations of the wider community. Community engagement occurs in different ways and with varying levels of community involvement on issues of environmental protection, natural resource management, planning and building system reform, integration of transport and land use, industry investment, urban form and design.[13] It is depicted in the following diagrams the outline of NSW planning system: Plan making Development assessment Part 3 EP&A Act planFIRST Part 4 EP&A Act Part 5 EP&A Act State State environmental planning policies (SEPP) State planning policies State significant developments State government infrastructure proposals Regional Regional environmental plans (REP) Regional strategies N/A N/A Local Local environment plans (LEP) Development control plans (DCP) Master plans (MP) Local plans Development application assessments Local government infrastructure proposal As part of the reforming blueprint of the planFIRST scheme ,community engagement is core. There is best examples of successful practices with integrated the ideal theory in the nine-step assessment processes which is greatly enlightening. [14] 3. Review of existing EIA/EA practice in Mainland China Introduction The implementing of EIA as an important tool is of great importance to China nowadays due to the current economic blooming in mainland China with the company of industrialization and urbanization trends. The negative influence of this development is leading to the unacceptable pollution as well as degradation of nature ecosystems and habitants with a result of loss of biodiversity. Although the useful tool of EIA has been introduced in China for a relatively long time , dating back to 1979 legislation of “Environmental Protection Law of the PRC [For Provisional Implementation]1979 “,there was no specific and feasible legislation as well as acts in China about practical legal design about community involvement in PRC. The 1979 statute announced “all organizations and individuals have the obligations for environmental protection and have the right to report and inform against any actions that offending the environment “, which focus on the happened or on-going polluting or other environment-offending actions. Further Acts enacted on 29th of nov.1998 by the State Council of PRC lay down some sort of same principal provision as “All construction organizations who works out public environmental report (PER) should note that an invitation to the comments of local organizations and individuals are necessary pursuant to the relevant law.”(Article 15)[15] The adoption of public involvement into The EIA previously had only two ambiguous statutes as listed above in PRC. Even now, after the introduction of the updated new legislation of “Environmental Impact Assessment law”, which was enacted 28th of Oct. of 2002 and will come into force on first of Sep. 2003, public participation is still viewed as a challenge in the application of EIA. This is attributed to problems associated with political, social, technical and legal elements of historical and current Chinese society. The landmark legislation The newly implemented Environmental Impact Assessment law of the People’s Republic of China” was considered historical with the consideration of its first provisions of community involvement in environment law. Article 21 of the above law states that construction organizations should hold public hearing meeting or discussion meetings before making copies of the environmental impact statement (EIS) in case that the impact is likely to be significant unless that there is state secret. The EIS prepared by the construction organization should include the statement of the reasons justifying the carrying out the development with or without the public suggestion or comments. Though the legislation is rough and simple with technical inadequacies, but after all, it reflects a public—involvement awareness both in the common public community and top decision—makers. The implementation of Environmental Impact Assessment law of the People’s Republic of China identifies the establishment of public participation mechanisms in the Chinese environment law schedules, though it is accompanied with lots of teething problems and administrative problems as well as enforcement difficulties . There are a few of other legislations or decisions with relevant provisions for the public participation in EIA, For example, the Art 13 of ‘ Water pollution precaution law” (11th of May ,1984)[16] and similar provisions can be found in “ the decision of the State Council regarding several problems in environment protection”.(16th of Aug.1996)[16] General examination of Chinese public participation systems in EIA EIA systems contains formal provisions for some degree of public involvement in the EIA processes ,although in most cases this tends to be rather general and limited in its details so in the workable capacity. The evidence is China still at high economic growth with the cost of ecosystem denegation.[17] There is a survey held in Jul.1998 by the State General Environment Protection Bureau and the Department of Education with the title of “the state public environment awareness survey”, resulting in a outcome of only 24.9% participant aware of that the environment had degenerated in the past years and there was 43.3% of the public considering that the environment had been better. The outcome of the survey reflected distinctly that there is commonly an air of blind optimism in China and the same survey showed the fact that in China there are only 8.2% of the population are highly evolved in the environmental protection activities. Chinese environmental legal implementation encountered a series of problems: Problem one: the decentralization of responsible authorities There is a concrete fact that the public participation systems are carried out by mostly local authorities. There is a trend that authorities being delegated to local government or provincial environment agencies. This decentralized-authority problem is partly created with Chinese extensive geographical size of territory, however, most importantly; this is due to the unbalance of Chinese social and economic development progress, which resulted in the greatly different planning mechanisms from place to place. Therefore, there is urgent demand for the overcome of the weakness of the state-level strategies. In regard to this, introducing Aussie Commonwealth context of public participation systems should be a reasonable conceiving. There should be a building-up of different levels under legislation, providing triggers for broader portal for public participations: There should be opportunities existing in the following phrases not just before the proponent making copies of the environmental impact statement (EIS). 1. selective public involvement in the perpetual guidelines are set up for PERs and EISs 2. The public review of PERs and draft EISs which allows the public to make submissions before an Assessment Report is prepared: in this piece of legislation, there should be a explicit timing provision namely a limited time period say, 30 days at the maximum. The current Chinese legislation is in lack of this definite detailed design thus is inadequate for practice (refer to the above statute of Environment Impact Assessment Law of PRC) 3. The provisions for the Minister to direct the holding of the holding of “round table” discussions with the proponents and members of the public community The current legislation should specify the participants attending the discussion and the timing 4. opportunities for members if the public to “trigger” the EIA process by referring certain proposals to the responsible authority 5. regular publication of decision-makers in relation to levels of assessment for particular comments and proposals and readily available of the reasons why particular assessment levels are decided 6. intensive utilization of public inquires in particular as early as in the assessment procedures 7. Particularly for the assessment of major proposals, establishment of consultative committees or other advisory groups early in the assessment progress, which include community representatives, to provide input to all stages of the EIA process. This process could be facilitated by joint assessment where provincial or local “on the ground “ assistance are available Problem two: the specified local framework blueprint China has shortly walked out of the strong central-planning political, economic yet social administrative policy. Thus the tradition inevitably will influence the existing legal framework. To overcome this difficulty, maturing the local operation of public participation is the best solution .However; this does not mean returning to old shortcoming of the decentralization. In this perspective, the NSW model is excellent .Just consider the five-step engagement planning circle of the strategies of planFIRST reform. the engagement planning cycle see the diagram in the following [18] Design and plan--Prepare and organize—Implement--Feedback and follow up--Evaluate Step 1: Design and plan a process Step 2: Preparation and organization Step 3: Implementation Step 4: Feedback and follow-up Step 5: Evaluation There are specific details of how to use the immense project to carry out the community engagement in the circular yet continuous process in NSW from the simple form of basic notification process for a development process to master plans with related to the state significant developments on the website ofhttp://www.iplan.nsw.gov.au/engagement/cycle/index.php The above plan may be a little too ambitious for the Chinese current situation coz it is establishing a skyscraper on a weak foundation, so the hypothesizes must be examined cautiously. For example, there is provision in a number of states to enable any member of the public to formally request the Minister that Commonwealth assessment of a particular proposal be undertaken. Although this is already in practice and verified that it didn’t lead to the floodgate of referrals but identified a useful tool for community engagement in the EIA process ,however, there is maybe not suitable for China not only because Chinese community participation is just at the infancy but also because that the public awareness and education quality in the community is different from Australia, which result in a conservative application of the community involvement of the ‘stakeholders” –effected and interested parties not all of the community holders, although this leads to ,inevitably a more complicated and demanding technical designing plan.

4.conclusion

The research has only focused on several aspects of the theme while public participation is indeed a huge project for current China .There are other matters ,which is of crucial meanings of implementation such as expertise policy involving experts and reasonable employment of experts’ advices ,participating capacity , a process for dialogue [19], evaluating measures and mechanisms for mitigating impact proposals. The whole workshop is pretty complicated and there are quite a lot of factors contributing to a successful system, i.e. central planning tools which is of administrative and social characters except a formal environmental EIA public participation building. In China, according to the above analysis, public participation mainframe work is still immature with lots of general and ambiguous legislations which are relatively ineffective considering the past 24 years’ practice since the onset of 1979. Obviously, the take-up of the EIA is of crucial importance and of great potential for future throughout the vast areas of mainland China. The format and scope may need to examine and test in different ways in order to match the country’s need and current situation. However, the stringent system of public participation project undoubtedly will be beneficial and helpful to the country’s environment as well as social improvement. References: [1]: Public participation in EIA: A Study from A Portuguese Perspective, available athttp://ejournals.wspc.com.sg/jeapm/02/0204/S146433320000045X.html [2] Protection and enhancing biodiversity through EIA—Public Consultation and Participation, Robin Saunders Environmental Solutions Pty Ltd, Melbourne, Australia. Available at [3] Public Participation in Impact Assessment: A Social learning perspective, Tomas Webler, Hans Kastenholz, Ortwin Renn, an earlier version of the paper was presented at the Society for Human Ecology 7th Meeting, East Lansing, MI, USA April 22,1994. [4] [19] The role of Public Participation in the Disposal of HCB’s –an Australian Case Study., by Mariann Lloyd-Smith & Karen Bubna-Litic, presented at the First International Conference on Public Participation of the Asia-Europe Meeting held in Bangkok June 2002. [5], [8]: Public Participation in the Environmental Impact Assessment Progress, prepared by Kinhill Engineers Pty Ltd, prepared for Cth Environment Protection Agency, May 1994, CE4002. [6] Public involvement in EIA Process, available athttp://www.unep.ch/etu/publications/EIA_2ed/EIA_E_top3_chart.PDF [7] EIA training resource manual, second edition, topic 3-Public Involvement, available at http://www.unep.ch/etu/publications/EIA_2ed/EIA_E_top3_body.PDF [8],[9],[10],[11] p530, p491:p512-513,p517, The environmental law handbook Third edition 1999, Reprinted May 2000.Third edition by David Farrier , by Rosemary Lyster, Linda Pearson, Zada Lipman, Redfern legal center publishing [12]http://www.iplan.nsw.gov.au/engagement/index.php [13] http://www.envir.online.sh.cn/info/2001/3/331109.htm [14] http://www.iplan.nsw.gov.au/engagement/stories/docs/bp_da.pdf [15] [16] http://www.sxnw.net/nczl/nczl21.htm [17] http://www.riel.whu.edu.cn/show.asp?ID=703 [18] http://www.iplan.nsw.gov.au/engagement/intro/pdf/ceh_cycle.pdf 中澳比较的视角---环境法中的公众参与制度评析 苗 苗 （华东政法学院，上海 200042） 摘要：本文从比较分析了中国和澳大利亚环境法的公众参与制度。 关键词：公众参与；环境影响评价 中图分类号：D912.6 文献标识码：A 基金项目： 作者简介：苗苗，华东政法学院0009班，Emailmaggie821025@hotmail.com。本文为作者在澳大利亚悉尼科技大学学习期间为环境法撰写的比较研究的文章。 ( attached diagram )