PART 4 – PROCEDURAL RIGHTS This section provides additional background information on procedural rights since the ACJ is of the view that this is a particularly important tool in protecting human rights and the environment. It provides background information, key principles for environmental procedural rights and examples that illustrate the application of the three key elements of participatory rights: access to information; participation in decision-making; and, access to justice. The section should be of assistance in considering the implementation of recommendations 2.3 and related recommendations Background Governmental authority is based on ‘[t]he will of the people’.182 To properly exercise their will and make informed decisions, people should have the opportunity to be informed of, and engaged in, public affairs.183 Procedural rights, which are comprised of the rights to: • • • access information; participate in decision-making; and access to justice/remedies, do just that. They enable people and communities to be informed of, monitor and participate in the actions of the State. The justification for procedural rights stems from three intertwined human rights, enunciated in arts 19 and 21 of the Universal Declaration of Human Rights and arts 19 and 25 of the ICCPR: • • • everyone has the right to freedom of opinion and expression; everyone has the right to take part in the government of their country; and everyone has the right to vote. It is argued that procedural rights promote more accountable and transparent governance and business practices. 184 Decision makers, whether they be governments or businesses, will be concerned to comply with appropriate standards if, as a result of access to information, their decisions and actions are open to broad public scrutiny. Similarly, broader participation in decision-making ensures that all relevant voices and relevant considerations are taken into account.185 Finally, access to justice increases transparency and promotes compliance with environmental laws encompassing as it does, the review of decisions as well as the award of appropriate remedies for breaches of both procedural rights and the subject laws. In the international and regional arena, there have been statements supporting environmental procedural rights. Recognition of the importance of these rights began with principle 2 of the Declaration of the United Nations Conference on the Human Environment, arising from the 1972 Stockholm Conference on the Human Environment, which stated that careful planning and management were central to safeguarding natural resources. In 1992, principle 10 of the Rio 182 Universal Declaration of Human Rights, GA Res 217 A (III) (10 December 1948) art 21(3). Australian Law Reform Commission, Open Government – A Review of the Federal Freedom of Information Act 1982, Report No 77 (1996) [2.2], [2.3]. 184 Australian Law Reform Commission, above n 2, [2.2]; Stec and Casey-Lefkowitz, above n 3, 18; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (entered into force 30 October 2001) preamble [10], [11]. 185 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (entered into force 30 October 2001) preamble [9]; Stec and Casey-Lefkowitz, above n 3, 18. 183 - 49 -