AICHR Workshop Mandalay, Myanmar 26-27 September 2015 AICHR Workshop Mandalay, Myanmar 26-27 September 2015 Hanoi, 4 May 2015

Myanmar Environmental Governance Program Session 2: EIA Designing Tools for ASEAN Regional EIA Snapshot Regional 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”. ADB has estimated that Asia “needs to invest “about $8 trillion in national infrastructure and $290 billion in regional infrastructure between 2010 and 2020 to sustain its growth trajectory”. Myanmar itself has over 600 Foreign Investment with over $45 Billion of investment pledged over the past 3 years alone. Establishment of the AIIB will also provide a new impetus to infrastructure investment. Just released Draft Environmental and Social Safeguards Policy available for comment.

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 2012 Foreign 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 Recent Statement on Building a Sustainable Future for the Mekong 5 August 2015 Foreign Ministers from Cambodia, Lao PDR, Myanmar, Thailand, Viet Nam and the United States at the Friends of the Lower Mekong Initiative supported the use of EIA to increase protection and sustainability. This included trans-boundary integration and increasing public participation.

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.” Are the Principles of customary international environmental law? Or incorporated into national laws?

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). As a consequence of the adoption of EIA in most member states in Europe, in 1987 a Group of Experts from the UN Economic Commission for Europe (UN ECE) elaborated on EIA in a transboundary context. The Convention was negotiated from 1988 to 1990 and the Convention was opened for ratification from 3 September 1991. The Convention entered into force on 10 September 1997. At present there are 45 parties to the Espoo Convention, including the EU, USA, and the Russian Federation.

Includes obligations to require: The Convention of Environmental Impact Assessment in a Transboundary Context (Espoo Convention) (1997) 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 Under the Espoo Convention the Parties shall take “all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.” Espoo Convention, Article 2 45 Member

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.

Applies to polices or programmes. The Protocol on Strategic Environmental Assessment (the SEA Protocol) (2010) 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. In addition to the Convention on EIA in a Transboundary Context, the Parties negotiated the SEA Protocol. This SEA Protocol entered into effect on 11 July 2010. The SEA covers the environmental assessment of policies or programmes by member governments which are likely to have significant environmental, including health, effects. 26 members   Under the SEA Protocol, Strategic Environmental Assessment is defined to mean: The evaluation of the likely environmental, including health effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme SEA Protocol, Article 4.

The Aarhus Convention contains three mains pillars: Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters (Aarhus Convention) (2001) 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. The Aarhus Convention was concluded as part of the UN ECE “Environment for Europe” process and entered into force on 30 October 2001. As of 7 January 2014, there were 46 Parties to the Convention, 33 Parties to the Protocol on Pollutant Release and Transfer Registers (PRTRs) and 27 Parties to the amendment on public participation in decisions on the deliberate release into the environment and placing on the market of genetically modified organisms (GMOs). These matters are listed in Annex 1 of the Aarhus Convention. These matters also include any activity not specifically covered in the Annex, where public participation is provided for under an environmental impact assessment procedure in accordance with national legislation. Aarhus Convention, article 4-9.

Aarhus Convention Member 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 NAFTA integrated the markets of the United States, Canada and Mexico into a single $8.6 trillion free trade area with 390 million consumers and annual trade flows of more than $600 billion (in 1992 figures).

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) The ASEAN Agreement on Transboundary Haze Pollution was signed by Governments of the ten ASEAN Member States on 10 June 2002 in Kuala Lumpur, Malaysia and entered into force in November 2003. The Agreement was the first regional arrangement in the world that binds a group of contiguous states to tackle transboundary haze pollution resulting from land and forest fires. As of 1 September 2014, Indonesia had not ratified the ASEAN Haze Agreement. The 17 parameters were unanimously agreed and adopted as common marine water quality criteria for the protection of the coastal and marine environment in ASEAN. They included: Sixteen parameters for aquatic life protection (ammonia, cadmium, hexavalent chromium, copper, lead, mercury, cyanide, total phenol, tributyltin, nitrate, phosphate, temperature, dissolved oxygen, oil and grease, and total suspended solids); and One parameter for human health protection (i.e. bacteria)

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 Framework convention such as the UN Framework Convention on Climate Change (UNFCCC) is a prime example of a treaty designed to “establish a process for reaching further agreement on policies and specific measures to deal with climate change.” The framework model was also used in the Convention on Biological Diversity (CBD), given the diverse and complicated issues that were encompassed in early negotiations made settling on a comprehensive treaty with specific obligations difficult. Accordingly, the CBD establishes guiding objectives of conservation, sustainable use and equitable sharing of benefits of biodiversity, while providing mechanisms for the ongoing development of specific commitments in protocols and annexes, as well as cooperation with other biodiversity-related treaties. Articles 28-30.

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 One clear message is that now is the time, to Regionalise our social and environmental safeguards, and enforce them as part of national Green Growth strategies to achieve genuine sustainable development. EIA can be used to promote and safeguard environmental and human rights on a project by project level. An ASEAN Framework Agreement on EIA can assist on the significant regional issues of Climate Change, Transboundary Impact Assessment, Gender, Ethnic and Indigenous People, and Migrant Workers. The is a an opportunity and we should also remember that there is nothing more powerful than an idea whose time has come.