AICHR WorkshopMandalay, Myanmar

26-27 September 2015

Hanoi, 4 May 2015

Session 2: EIA Designing Tools for ASEAN

Regional EIA SnapshotRegional and international Models for ASEAN

ASEAN Charter – December 2008

• The ASEAN Charter included one of its purposes:

– To promote sustainable development so as to ensure the protection of the region’s environment the sustainability of its natural resources, the presentation of its cultural heritage and the high quality of life of its people. (Emphasis added.)

ASEAN Charter Article 1(9)• To achieve ASEAN vision of sustainable development,

EIA can be used to promote social inclusion, environmental protection and economic growth.

ASEAN Human Rights Declaration 2012

• The ASEAN HRD included one of its ESC Rights:

28. Every person has the right to an adequate standard of living for himself or herself and his or her family including:……;e. The right to safe drinking water and sanitation;f. The right to a safe, clean and sustainable environment.

• The aim of Environmental Impact Assessment is to promote “sustainable development”.

• Sustainable development is “development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends”.

Regional Snapshot for EIA

Lower Mekong Countries

Common Issues and Common Needs

PACT 2015 Report – highlights the similarities with the EIA procedures in the Lower Mekong. Also identifies some key areas of difference.

ASEAN Economic Community requires regional integration and common approaches.

Less that 5% of projects fully comply with EIA Sub-decree 1999

Drafting New EIA Law and Guidelines for Public Participation

Registration of Experts, EIA Review Committee

Many changes to the EIA laws since 2010, EIA Decree replaced.

Ministerial Instructions on EIA and IEE has been promulgated in 2013

Redrafting EIA Guidelines

Environmental Protection Law 2012Foreign Investment Law 2012 and Rules require ESIA

Environmental Impact Assessment Procedure (draft)

Development of Draft Environmental Quality Standards.

National Environmental Quality Act 1992, EIA Notification 2009

Currently draft Review of Thai EIA Law

SAC has recently ruled that public participation rights are part of the natural law of Thailand.

Major amendments in 2014 to Environmental Protection Law and EIA and SEA.

Increasing focus on environmental compliance and enforcement.

Criminal Code review including environmental crimes

http://www.pactworld.org/sites/default/files/local-updates-files/MPE_Mekong_EIA_Briefing_Final.pdf

Regional and International EIA cooperation models

1992 Rio Declaration on Environment and Development

Principle 3: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”

Principle 4: “In order to achieve sustainable development, environment protection shall constitute and integral part of the development process and cannot be considered in isolation from it.”

1992 Rio Declaration on Environment and Development

Principle 10: Public Participation

Principle 14: Precautionary Principle

Principle 16: Polluter Pays and Improved valuation, pricing and incentives.

UN Economic Commission for Europe (UN ECE)

• The Convention of Environmental Impact Assessment in a Transboundary Context (Espoo Convention) (1997);

• The Protocol on Strategic Environmental Assessment (the SEA Protocol) (2010); and

• The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) (2001).

• Includes obligations to require:• National project level EIA.• Notify potentially affected countries. • Provide access to information to potentially affected

parties.• Allow comments from these parties.• Countries and parties to be informed on the final

decision with respect to the project

The Convention of Environmental Impact Assessment in a Transboundary Context (Espoo Convention) (1997)

45 Parties to the ESPOO Convention

In June 2014 the Parties agree to open both the ESPOO Convention and the Protocol on SEA to all UN member States. A further 15 countries need to ratify the amendment before this resolution can enter into effect.

• The SEA Protocol refers to “early, timely and effective opportunities for public participation.”

• It also requires that the public, including relevant NGOs, be provided with the necessary information to allow them to comment “within a reasonable time frame.”

• Applies to polices or programmes.

The Protocol on Strategic Environmental Assessment (the SEA Protocol) (2010)

The Aarhus Convention contains three mains pillars: • The rights of the public to access information

about the environment and development;• The requirement for public participation in

environmental assessment of specific development projects; and

• The rights for the public’s access to courts and tribunals for justice in environmental matters.

Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters (Aarhus Convention) (2001)

Aarhus ConventionMember countries of the Aarhus Convention

NAFTA (1992) – North American Agreement on Environmental Cooperation (1993)

• NAFTA was the first trade agreement to attempt such broad liberalization between industrialized countries and a developing country;

• NAFTA was the first major trade agreement negotiated with organized opposition from the environmental community; and

• As a result NAFTA was the first major trade agreement outside of Europe to address explicitly the environmental effects of free trade. This resulted in a side agreement, the North American Agreement on Environmental Cooperation (NAAEC)

• Subsequent negotiations have seen stronger environmental principles incorporated into the body of trade agreements

ASEAN Member Country Regional Agreements

• ASEAN Agreement of Transboundary Haze 2002

• ASEAN Marine Water Quality Management Guidelines and Monitoring Manual 2008

• ASEAN Agreement on Conservation of Nature and Natural Resources 1985 (only ratified by Thailand, Indonesia and the Philippines)

ASEAN Member Country Regional Agreements

• Heart of Borneo Declaration 2007– Brunei, Indonesia and Malaysia

• Coral Triangle Initiative on Corals Reefs, Fisheries and Food Security (CTI ) 2007– Indonesia, Malaysia, Papua New Guinea,

Philippines, Solomon Island and Timor Leste. ASEAN has endorsed the initiative

Mekong River Agreement 1995

Article 3. Protection of the Environment and Ecological Balance • To protect the environment, natural resources, aquatic life and

conditions, and ecological balance of the Mekong River Basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the Basin.

Article 4. Sovereign Equality and Territorial Integrity • To cooperate on the basis of sovereign equality and territorial integrity in

the utilization and protection of the water resources of the Mekong River Basin.

Prior Notification, Prior Consultation and Agreement (PNPCA) (2003)

MRC has also development a draft Policy to enhance regional EIA assessments.

Mekong River Commission draft 2002, revised 2009.

The Proposed System also had a number of elements:• Proposed Policy on EIA in a transboundary context;• Guidelines on SEA;• Guidelines on Cumulative Impact Assessment;• Guidelines on Public Participation in Environmental

Assessment;• Environmental Impact Statement Review Criteria;• Sector Guidelines;• Training Program to support the implementation of

the EIA/SEA System

Is it time for a ASEAN Framework Agreement on EIA?

• A Framework Agreement on EIA– With negotiated areas open for agreement

• Covering the following areas:–Regional EIA Capacity Building• Accreditation of Sub-national EIA units

–Standards and Guidelines for Environmental Quality–ASEAN EIA Training Facility

Is it time for a ASEAN Framework Agreement on EIA?

• Covering the following areas:–Access to Information and Public

Participation–Registration and Training of EIA Consultants– Transboundary EIA Assessment – Strategic Environmental Assessment– Screening Lists for Projects