The Escazú Agreement on access toinformation on environmental and other related matters (Part II)

Corruption threatens the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice, and jeopardizing sustainable development and the rule of law. Corruption presents serious threats for individuals and societies and often enables other forms of crime, including organized crime and economic crime, including money laundering. These threats have been heightened by COVID-19. As the world continues to recover, it is critical that we do not let corruption threaten our efforts to build back better and address global challenges especially the achievement of the 2030 Sustainable Development Goals.

G7 Foreign Ministers to UNGASS 2021

In our article of 1 March 2021, we referred to the petition that Transparency International (TI) had sent to the United Nations Secretary-General ahead of the General Assembly Special Session Against Corruption (UNGASS 21), calling for an end to the abuse by anonymous companies and other legal vehicles that facilitate cross-border corruption and other crimes. According to the petition, signed by more than 700 organisations and individuals from 120 countries, these companies exploit countries’ legal systems and conceal their ultimate ownership, resulting in the diversion of critical resources needed to advance sustainable development and collective security. Accordingly, the petitioners are calling for centralized public beneficial ownership registers as a global standard.

Apart from the call for transparency in company ownership, TI stated that very often national justice systems are unable or unwilling to hold the powerful to account. In such a situation, corrupt high-level officials have an upper hand and act with impunity. In addition, it is not just enough to prosecute those who have been involved in corrupt behaviour. The assets stolen must be recovered for the benefit of the community that have been robbed.

UNGASS 21 was held a few days ago but it is not clear whether the petition was discussed. Meanwhile, the Guyana Government has indicated that expressions of interest are being solicited for the establishment of a register of beneficial ownership in keeping with the Extractive Industries Transparency Initiative (EITI) Standard.

On the climate change front, the Group of Seven (G7) member countries, comprising Canada, France, Germany, Italy, Japan, the United Kingdom and the United States, met last week and adopted an agenda to ‘build back better from the coronavirus and create a greener, more prosperous future’. Ahead of the meeting, more than 100 economists called on the G7 members to commit themselves to shifting the financing of fossil fuels into cleaner alternatives to enable a ‘green pandemic recovery’. In welcoming the decision taken last month by G7 environment ministers to end international finance to coal-fired power in 2021, the economists stated that:

Continued investments in fossil fuel infrastructure create increased risks of stranded assets, unfunded clean-up, job cuts, and shortfalls in government revenue, as competition with cheaper and cleaner alternatives grows and demand for fossil fuels declines. Renewables are becoming the cheapest energy source in most parts of the world. Since 2015, solar power has become the cheapest form of electricity in history and the cost of electric vehicle batteries has more than halved. A report last year showed that green recovery packages would create more jobs, deliver higher short-term returns per dollar spent and lead to increased long-term cost savings, by comparison with traditional fiscal stimulus.

The urgency of the climate crisis requires that 2021 be a turning point to end investments in fossil fuels. This presents G7 members with both a clear task and an opportunity. Ending new fossil fuel finance will free up billions a year to invest in clean energy, just transition measures and increased support for the clean energy transition in low- and middle-income countries. This will in turn help create the jobs needed to build the greener and more prosperous economy the G7 strives for.

Last week, we highlighted the key provisions of the Escazú Agreement on access to information on environmental and other related matters in the Latin America and Caribbean countries. These include:

Guaranteeing citizens the right of access to environmental information;

Establishing or designating one or more impartial entities or institutions with autonomy and independence to promote transparency in access to environmental information, oversee and monitor compliance with rules, and report on citizens’ right of access to information;

Generating, collecting, publicising and disseminating environmental information by the competent authorities in a systematic, proactive, timely, regular, accessible and comprehensible manner relative to their functions;

Having in place environmental information systems that include, among others, texts of treaties and international agreements, reports on the state of the environment, environmental impact assessment processes, other environmental management instruments, and environmental licences or permits granted by public authorities;

Establishing a pollutant release and transfer register covering air, water, soil and subsoil pollutants, as well as materials and waste;

Publishing and disseminating at regular intervals, not exceeding five years, a national report on the state of the environment;

Promoting access to environmental information contained in concessions, contracts, agreements or authorizations granted and involving the use of public goods, services or resources;

Implementing open and inclusive public participation in environmental decision-making processes, especially for projects and activities having a significant impact on the environment as well as on health, and requiring the grant of environmental permits;

Ensuring access to judicial and administrative mechanisms to challenge and appeal decisions on environmental matters; and

Guaranteeing a safe and enabling environment for persons, groups and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction and insecurity.

Guyana is a signatory to the above Agreement which came into effect on 22 April 2021 – some eight weeks ago. However, we are yet to hear from the Government what arrangements have been put in place, or are being put in place, to give effect to the above provisions. Would there be new legislation to provide such information, or would existing legislation, such as the Access to Information Act or the Environmental Protection Act, be used for this purpose?

Access to Information Act

The Access to Information Act was passed in September 2011, after the original draft legislation languished in the National Assembly for five years. Because of certain concerns it had in relation to the contents of the related Bill, the then Opposition declined participation not only in the deliberations of the Select Committee to which the Bill was referred for detailed consideration but also when the vote was taken in the Assembly. As of June 2013, the President had not issued the related Order to operationalize the Act, prompting criticisms from the United States Government, the Organisation of American States and International Press Institute. The Transparency Institute Guyana Inc. (TIGI) added its voice, citing other concerns as well, such as the appointment of members of the Integrity Commission and the Public Procurement Commission, and the need to have legislation in place relating to campaign financing and whistleblower protection. Faced with these criticisms, the President eventually issued the related Order on 10 July 2013. Five days later, he appointed a former two-term Attorney General and Cabinet member under the said Administration to the position of Commissioner of Information.

Several concerns were raised at the time about the Act. These include: (i) the appointment of the Commissioner on the sole authority of the President without any requirement for consultations with the political opposition and civil society, and without any form of ratification by the Assembly; (ii) lack of clarity as to the Commissioner’s reporting relationship; (iii) the concentration of powers in the hands of the Commissioner through whom all requests for information must be channelled; and (iv) the significant number of exemptions from the requirements of the Act. Apart from an unsuccessful attempt by TIGI to obtain information from the Commissioner, there is no publicly available information whether other requests for information were sought and what were the outcomes of such requests. Additionally, there is no evidence that the Minister has made any Regulations to give effect to the purposes of the Act. More importantly, an annual report on the operation of the Act is to be tabled in the Assembly within nine months of the close of the year, but to date this has not been done.

It is not clear whether the Commissioner’s office is still functioning, considering the previous Administration’s attempt to remove the incumbent and the judicial intervention that followed. In March 2018, the Chief Justice had ruled that the Government must provide the office of the Commissioner with staff and furniture to enable the Commissioner to carry out his duties.

Given the above, it would be inappropriate for citizens’ right of access to environmental information to fall under the Access to Information Act, unless the Act is substantially amended to include the provisions contained in the Escazú Agreement. Even if this is done, a serious and dedicated commitment and effort to implement the requirements of the Act is badly needed.

Environmental Protection Act

Guyana’s Environmental Protection Act 1996 provides for the management, conservation, protection and improvement of the environment, the prevention or control of pollution, the assessment of the impact of economic development, and the sustainable use of natural resources. The Act established the Environmental Protection Agency (EPA) whose main responsibility is to provide effective management of the natural environment for the protection and sustainable use of the natural environment. Key activities relate to environmental impact assessments, and the prevention and control of pollution. Unlike the office of the Commissioner of Information, the EPA is governed by a Board comprising 7-11 persons, the majority of whom must have knowledge and experience in matters relating to the use of the natural environment, or environmental protection and conservation.

The EPA is organized into five Divisions: Biodiversity Management; Environmental Management Permitting (EPMD); Environmental Management Compliance (EMCD); Education, Information and Training; and Administration. There are also several Regulations that govern the work of the Agency. The Biodiversity Management Division focuses on implementation of the Guyana Protected Areas System (GPAS) Project; management of the local wildlife trade and issues relating thereto; processing of biodiversity research applications; and implementation of projects relating to the objectives of the Convention on Biological Diversity.

The EMPD is responsible for screening and processing of applications for Environmental Authorization for new projects as well as for renewals, including projects that require Environmental Management Permits (EMPs) and Environmental Impact Assessments (EIAs). On the other hand, the EMCD works with industry associations, businesses, community organizations, ministries and other governmental organisations in developing standards and promoting good practices. The Education, Information and Training Division is responsible for promoting public awareness of and participation in protecting, conserving, and ensuring the sustainable use of the environment through cross-cutting education and awareness, and capacity-building programmes. It develops materials that are relevant and appropriate for various target audiences, including quarterly newsletters, posters, brochures, booklets, manuals, flyers, educational models and memorabilia. The materials are disseminated at various events and activities to groups and individuals in the country and via the Documentation Centre where resources are catalogued and available for use by the staff and public.

While there is no provision in the EPA Act that guarantees public access to environmental information, two key functions relate to promoting participation by members of the public in integrating environmental concerns in planning for development on a sustainable basis; and coordinating environmental management activities of all persons, organisations and agencies. It is therefore not unreasonable to consider that the functions of the EPA can be expanded to include the provisions contained in the Escazú Agreement.

Conclusion

Using the Access to Information Act to guarantee citizens’ right of access to environmental information, appears to be a non-starter for reasons already mentioned. This Act did not come into force out of free will and a willingness on our part to provide access to information on government programmes and activities. Rather, it appears to have been an imposition. As we have stated several times over, in such a situation there is minimum compliance, hence the present situation as regards the Access to Information Act.

Considering the role of the EPA in protecting the environment, the Agency is better placed to implement the requirements of the Escazú Agreement. This is especially so, considering the requirement for open and inclusive public participation in environmental decision-making processes, especially for projects and activities having a significant impact on the environment as well as on health, and requiring the grant of environmental permits.

One area that needs special attention is the requirement to establish an impartial and independent autonomous agency to promote transparency in access to environmental information, oversee and monitor compliance with rules, and report on citizens’ right of access to information. That agency, in whatever form it will take, should be part of the Legislative Branch of government and not the Executive Branch, and having a reporting relationship to the Legislature.