THE ROLE OF COURTS AND TRIBUNALS IN ENHANCING ACCESS TO JUSTICE IN ENVIRONMENTAL LITIGATION SEVENTH ANNUAL COLLOQUIUM OF THE IUCN ACADEMY OF ENVIRONMENTAL LAW WUHAN, CHINA

Judges in the region be encouraged to enhance access to justice for the achievement of environmental sustainability for all levels of society, including through the removal of legal impediments to public interest litigation. (extract Tehran Declaration on Human Rights and the Environment May 2009)

Part 1 – Enhancing access to justice in courts and tribunals The nature of environmental litigation civil enforcement judicial review merit appeals nuisance/tort claims for damages enforcing constitutional rights

Public Interest Litigation the role of a court or tribunal in recognising public interest litigation the development of environmental jurisprudence

Access to justice – Recognising the issues before proceedings commence/capacity building practice and procedure in a court/tribunal interlocutory injunctions – requirement of undertaking as to damages costs - protective/maximum cost orders - interim/pre-emptive cost orders - final cost orders - own cost orders managing expert evidence

Land and Environment Court Rules r Proceedings brought in the public interest (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest. (2) The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent’s costs if it is satisfied that the proceedings have been brought in the public interest. (3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to: ( a) the injunction or order sought by the applicant, or (b) an undertaking offered by the respondent in response to the application, If it is satisfied that the proceedings have been brought in the public interest.

Access to justice – standing to sue open standing broad interpretation of standing provisions

Substantive procedure Onus of proof before courts who bears the onus (judicial review vs merit appeals) application of the precautionary principle

Part 2 - The right to a clean and healthy environment Consideration of environmental rights in human rights framework constitutional rights implementation of sustainable development principles procedural rights – an important link

Article 12 Natural and Juridical Persons 1.The Parties undertake to achieve progressively the full realization of the right of everyone to an environment and a level of development adequate for their health, well-being and dignity. 2.The Parties shall ensure that all natural and juridical persons have a duty to protect and preserve the environment. 3.The Parties shall ensure that all persons, without being required to prove an interest, have the right to seek, receive, and disseminate information in respect of the environment, subject only to such restrictions as may be provided by law and are necessary for respect for the rights of others, for the protection of national security or for the protection of the environment. 4.The Parties shall ensure that all concerned persons have the right to participate effectively during decision-making processes at the local, national and international levels regarding activities, measures, plans, programmes and policies that may have a significant effect on the environment. 5.The Parties shall ensure that all persons have a right of effective access to administrative and judicial procedures, including for redress and remedies, to enforce their rights in respect to the environment under national and international law. 6.The Parties shall respect and ensure the rights and the fulfilment of the duties recognised in this Article and shall devote special attention to the satisfaction of basic human needs, in particular the provision of potable water. 7.The Parties shall develop or improve mechanisms to facilitate the involvement of indigenous peoples and local communities in environmental decision- making at all levels and shall take measures to enable them to pursue sustainable traditional practices.

Asia-Pacific Forum of National Human Rights Institutions (Human Rights and the Environment report September 2007) Procedural rights C1. Anyone and any community should be able to have access to justice; that is, access to review procedures and remedies. C2. Mechanisms facilitating access to justice and remedies should be fair, equitable, prompt, and free or inexpensive. C3.People and communities should be able to challenge breaches of participatory rights, decisions affecting the environment, and any breaches of national and international law relating to the environment. C4.Access to justice should include accessing courts, tribunals and other dispute resolution mechanisms. Where necessary, legal aid should be provided. This is particularly important in environmental and human rights cases, which necessarily have a public interest element. C5.The types of remedies available should include: restitution; compensation; rehabilitation; injunctive relief; and satisfaction and guarantees of non-repetition. C6.The state should develop and disperse information, policies and procedures about how the public can access justice and the remedies available to them. This information should be clear, and the state should facilitate public understanding of this information.

C7.The concept of standing before tribunals, courts and other decision- making bodies should be broad. Individuals and communities should qualify as having standing before tribunals, courts and other decision- making bodies. Standing should also extend to those who have not been directly harmed by a breach of environmental participatory rights, or environmental laws and regulations. C8.The time frames within which people and communities may seek access to justice or remedies should be reasonable. People and communities should be given enough time to lodge applications and required documents. Limitation periods on actions should be widely dispersed. C9.The state should develop measures to assist people in accessing justice and remedies. C10. Where appropriate, the state should be proactive in organising remedies for people and communities, which are adversely affected by an environmental decision or matter. C11. If a request for review or a remedy fails/is refused, the relevant entity should notify the person or community requesting review or a remedy, and should provide reasons for the refusal and information about other review procedures. C12. Decision-making bodies and their members, including a judiciary, should be independent and impartial.