Rob Mackay

The John Muir Trust (JMT) has argued in the wake of the Stronelairg judicial review that our planning system needs to be reformed to ensure fair treatment for all, and that is where access to justice is a fundamental problem. The problem the JMT experienced was that their application for a Protected Expenses Order (PEO) was refused by the judges and this presented the JMT with a potential legal bill of ¢G300,000. These high costs led the JMT to conclude that they were unable to continue the case to the UK Supreme Court.

Helen McDade, Head of Policy has written about this situation (JMT Journal autumn 2016) and comments that the existing planning law and processes are inadequate and contribute to environmental injustice. This is in breach of the UN Aarhus Convention that establishes three principles giving the public the right of:

So what is meant by Environmental Justice?

According to the widely accepted definition coined by the United States Environmental Protection Agency, "Environmental justice is fair treatment and meaningful involvement of all people regardless of race, colour, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies"

In Scotland responsibility for the environment rests with the Scottish Government and in particular the Environment and Forestry Directorate. The Rural Affairs and Environment Committee scrutinises these areas on behalf of the Scottish Parliament.

The Scottish Govt. launched a consultation paper in March 2016, "Developments in Environmental Justice in Scotland", with the stated objective "to offer an opportunity for views to be aired on the options for environmental justice in Scotland." This document concerned itself with reforms to the criminal justice system. There is much about the recent changes that has affected the civil and criminal courts. It then moves on to considering environmental laws, protection of wildlife and lastly to considering how better access to justice could be provided in civil environmental cases. The document does refer to the UN Aarhus Convention and points out that in relation to the third principle (Access to justice) there is no incorporating EU legislation. It is recognised that the PEO rules are part of ensuring access to justice in environmental decision-making, as JMT found to their cost.

This consultation posed three questions:

  1. What types of case, both civil and criminal, do you consider fall within the term - environmental?
  2. This paper outlines the improvements to the justice system that this Government has delivered in relation to environmental justice. Do you agree that these changes have improved how environmental cases, both civil and criminal, are dealt with in Scotland?
  3. Given the extensive changes that have already been delivered to the justice system (as outlined in this paper) and the need to ensure that any further changes are proportionate, cost-effective, and compatible with legal requirements, are there any additional ways in which the justice system should deal with both civil and criminal environmental cases? If so, please detail these. In particular, do you consider that there should be a specialist forum to hear environmental cases? If so, what form should that take (e.g. a court or tribunal)?

The submissions by JMT and Friends of the Earth are of a good standard and well worth a read. The consultation process ended in June 2016 and the Scottish Govt. has yet to publish its proposals for further actions.

What is the relevance to NEMT?

Firstly in policy and legal terms there is support for the principles of justice and public engagement in the natural environment and the decisions that are made by public and private bodies. This relates very well to the campaigning work undertaken by NEMT, not least the efforts that we make to obtain information about particular projects that impact on the mountain environment. In our local context the UN Aarhus Convention is very relevant and empowering with its emphasis on "fair treatment and meaningful involvement". I suggest that NEMT can participate in this dialogue and can contribute to the discussion about PEO rules and try to ensure that financial barriers to participation can be addressed in a fair and justice manner.

Secondly this exercise has revealed that the policy and legal context of Environmental Justice in Scotland is very much a live process and is in the process of review and possible change. It will be important that we monitor developments and if the opportunity presents itself that we give voice to our thoughts on these issues.

One step we could take is to invite Helen McDade, Head of Policy, John Muir Trust to come to Aberdeen to address an open meeting on this issue of Environmental Justice.

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