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Howard, Tanya; Teles Da Silva, Solange --- "Possible legal obligations to consult" [2015] ELECD 982; in Martin, Paul; Kennedy, Amanda (eds), "Implementing Environmental Law" (Edward Elgar Publishing, 2015)

Book Title: Implementing Environmental Law

Editor(s): Martin, Paul; Kennedy, Amanda

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479290

Section: Chapter 6

Section Title: Possible legal obligations to consult

Author(s): Howard, Tanya; Teles Da Silva, Solange

Number of pages: 22

Extract:

6. Possible legal obligations to consult
Tanya Howard and Solange Teles Da Silva1

Public participation is an increasingly important feature of environmental
governance. Obligations upon government or project developers to "con-
sult" appear in legislative arrangements and government policies of many
countries. Environmental law and social justice scholars propose that
consultation or community engagement (which we collectively term
`public participation') can adjust power imbalances, particularly for
marginalised and Indigenous people, ensure better informed decisions,
and improve communication between power-holders and citizens.2 The
extent to which these aspirations are achieved through the implementa-
tion of legal obligations is an important environmental and social justice
question, given the significance of the aims and the sometimes vulner-
ability of those whose interests are involved.
In this chapter we explore some challenges of ensuring effective public
participation through legal requirements. We consider the problem of
ensuring integrity and effectiveness given a high degree of variability that
is due in part to the imprecision of terminology and in part to the
concealed flexibility in the methods that might be used to implement any
legal requirements. We also consider the relationship between dominant
democratic structures that give decision-making power to elected govern-
ment and its institutions, and an aspiration for local participative democ-
racy. We consider the issue of variability and challenges of safeguarding
integrity through case studies in two jurisdictions, Brazil and Australia.




1
The authors acknowledge the advice and assistance of Professor Paul
Martin in the preparation of this paper.
2
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