FARN- 2009 Annual Environmental Report- English Version
Annual Environmental Report 2009 English Version Adriana Schiffrin Essay Award Seventh Edition
Editors: María Eugenia Di Paola Federico Sangalli Silvina Caorsi Authors: Guillermo Acuña, Santiago Alonso, Débora Bialostozky, Agustín Bonaveri, Andrés Bosso, Alejandra Carminati, Jorge Daneri, María Eugenia Di Paola, Sergio Elguezabal, José Esain, Belén Esteves, Pablo Filippo, María del Carmen García, Hernán Giardini, Eduardo Jiménez, Pablo Lumerman, Mauricio Manzione, Diego Moreno, Andrés Nápoli, Carina Quispe Merovich, Juliana Robledo, Federico Sangalli, Agnès Sibileau, Gabriela Vinocur. Prologue: Daniel A. Sabsay Editor of English Version: Leslie MacColman Translators: Lauren Armstrong, Lauren Coffaro, Jacob Dyrby Petersen, Toni Funk, Nikki Herst-Cooke, Cory Needle, Max Pluss, Natalie Popovich, Tyler Schappe, Rebecca Schmitt, Marina Solomon, Tamara Vatnick, Karl Wallulis, Ashton Wesner Institutional Sponsors: Instituto Tecnológico de Buenos Aires (ITBA, Premio Schiffrin Institutional Support: Universidad de Buenos Aires- School of Law, Universidad de Buenos Aires- Master in Architecture, Design and Urbanism The institutions that provided sponsorship of support of this publication are not responsible for its contents.
2
FARN- 2009 Annual Environmental Report- English Version
Environment and Natural Resources Foundation Tucumán 255, 6 º A (CP 1049) Ciudad de Buenos Aires - Argentina Telephone Numbers: (+54 11) 4312-0788 / 4312-2422 / 4312-2183 / 4313-8631 info@farn.org.ar www.farn.org.ar This publication is available free of charge at: http://www.farn.org.ar Cover Design: Marta Biagioli Layout and Graphic Production: Pablo Casamajor © 2009, Environment and Natural Resources Foundation ISBN: 978-987-25149-0-7 Annual Environmental Report 2009: Adriana Schiffrin Essay Award: Seventh Edition / Guillermo Acuña... [et.al.]; Literary Edition Coordinators: María Eugenia Di Paola; Federico Sangalli; Silvina Caorsi; with a prologue by Daniel Alberto Sabsay. 1st ed. - Buenos Aires: Environment and Natural Resources Foundation, 2009. 512 p.; 23 x 16 cm. ISBN 978-987-25149-0-7 1. Natural Resources. 2. Environment. I. Acuña , Guillermo II. Di Paola, María Eugenia, lit. ed. II. Sangalli, Federico, lit. ed. IV. Caorsi, Silvina, lit. ed. V. Sabsay, Daniel Alberto, prolog. CDD 333.9
3
FARN- 2009 Annual Environmental Report- English Version
About FARN FARN was created in 1985 with the mission of promoting sustainable development through policy, law, and the institutional organization of society. FARN envisions a democratic and engaged society with sustainable strategies incorporated in its public policy. FARN’s Institutional Objectives • To contribute to the creation of knowledge of sustainable development, governance, environmental policy, pollution, conservation, commerce, corporate social responsibility, and social inclusion. • To encourage consensus-building around relevant environmental policies in the public and private sector. • To train social leaders from the public and private sectors in the subject of sustainable development. • To participate actively in networks and create synergetic relationships with other institutional actors that share FARN’s vision both for Argentina and the world. • To promote access to information and participation in decision-making processes. • To spread, promote, and implement the strategic use of legal tools to encourage citizens to participate actively in defending their rights. • To create tools that foster a higher level of compliance with environmental regulations among authorities and the citizenry, taking into account existing social and institutional inequalities in the different geographic and demographic environments in Argentina. FARN’s Values • Sustainable development and application of preventative and precautionary principles. • Institutionalism, transparency and rule of law. • Academic foundation of our opinions in our interdisciplinary, innovative, and participative publications.
4
FARN- 2009 Annual Environmental Report- English Version
FARN Board of Directors President: Daniel A. Sabsay Vice President: Victoria M. Matamoro Secretary: Beatriz Kohen Treasurer: Jorge H. Schiffrin Representative: Albina Lara
Advisory Board Adriana Bianchi NĂŠstor Cafferatta (on leave) Mario Gustavo Costa Sergio Elguezabal Aldo Rodriguez Salas Daniel Ryan
5
FARN- 2009 Annual Environmental Report- English Version
Staff Executive Director María Eugenia Di Paola Administration Assistant to the Executive Director: Ofelia Acosta Receptionist: María Victoria Villanueva Accounting: Brandstadter, Distasio & Dolisi Institutional Development Leslie MacColman Press and Communications Federico Sangalli Training Débora Bialostosky Governance, Environmental Policy and Conservation Director: Carina Quispe Merovich Assistant: Jorge Ragaglia Citizen Participation Department Coordinator: Gabriela Vinocur Instructor of FARN Law Clinics: Agnès Sibileau Training: María del Carmen García Riachuelo Department Director: Andrés Nápoli Assistant: Javier García Espil Commerce and Sustainability Department Coordinator: Belén Esteves Researcher: María Victoria Lottici
6
FARN- 2009 Annual Environmental Report- English Version
Contents Foreword to the English Version ....................................................................................... 8 Prologue ............................................................................................................................. 9 Introduction ...................................................................................................................... 10 Application and Compliance of Environmental Legislation in the Latin American and Caribbean Region ............................................................................................................. 19 Climate Change: Judicial Instruments and Scenarios Post-Kyoto ................................... 33 Cellulose Plants in the Uruguay River Basin ................................................................... 45 Analysis of Social-Environmental Conflict in Argentina ................................................ 52 Agriculture and Environment ........................................................................................... 71 EXECUTIVE SUMMARY- The Regulation of Domestic Waste in Argentina .............. 82 The Implementation of Participatory Mechanisms for Environmental Affairs: The Patagonian Experience ..................................................................................................... 83 EXECUTIVE SUMMARY- Participatory Generation of Norms: An Environmental Code for the City of Buenos Aires ................................................................................... 87 EXECUTIVE SUMMARY- In Search of a State Policy for the Riachuelo River Basin 88 EXECUTIVE SUMMARY- Challenges for the Judiciary and Access to Environmental Justice ............................................................................................................................... 89 EXECUTIVE SUMMARY- A Supreme Court for Sustainable Development ............... 90 The Current State and Recommendations for the Strengthening of Voluntary Private Reserves in Argentina ...................................................................................................... 91 Argentine Maritime Spaces: The Challenges of Biodiversity Conservation and Civil Society’s Contributions .................................................................................................... 96 EXECUTIVE SUMMARY- Urban Nature Reserves: An Effective Tool for Local Environmental Protection............................................................................................... 100 Law of Minimum Environmental Standards for the Protection of Native Forests ........ 101 OECD Guidelines and the Challenges of the Argentine National Contact Point .......... 114 Citizen Participation in Monitoring Infrastructure Projects in South America.............. 126 Environmental Issues and the Media ............................................................................. 144 EXECUTIVE SUMMARY- The FARN-UBA Environmental Law Clinic .................. 151 NGOs as Opinion Leaders: The Need for Communication ........................................... 152
7
FARN- 2009 Annual Environmental Report- English Version
Foreword to the English Version By Leslie MacColman Institutional Development Coordinator of FARN
With the effort it took to publish the first Annual Environmental Report in Spanish, the idea of having its entire content translated into English seemed next to impossible when it was first suggested. In its published format, the 2009 Report contained 22 articles and over 500 pages of text. Many of the articles utilized sophisticated Spanish vocabulary and grammar, and precise technical language. The topics addressed were often relatively unknown beyond the borders of Argentina, despite their local political and institutional relevance. And, to top it off, the task would have to be completed by FARN’s bilingual staff members or by qualified volunteers, without the help of official translators. Nevertheless, we considered the publication of an English version to be an important precedent, in terms global reach and engagement with the international community. Recognizing that access to information is a key prerequisite for good decision-making and that the plurality of perspectives is a healthy component of democratic development, our goal was to inform the global discussion on sustainability and environmental governance. On the other hand, we felt it was important to make the contents of the report available to individuals and organizations who, like us, are concerned with Argentina’s environment, inviting them to join forces for our common future. Thanks to the immense volunteer effort invested in translation and revision of the publication, this goal has been largely accomplished. The English Version of FARN’s 2009 Annual Environmental Report, contains 14 full articles and 7 executive summaries on issues of relevance to Argentina’s environmental policy agenda. It would not have been possible without the following volunteer translators: Lauren Armstrong, Lauren Coffaro, Jacob Dyrby Petersen, Toni Funk, Nikki Herst-Cooke, Cory Needle, Max Pluss, Natalie Popovich, Tyler Schappe, Rebecca Schmitt, Marina Solomon, Tamara Vatnick, Karl Wallulis, and Ashton Wesner. Many of them contributed extra hours while volunteering at FARN and carrying a full university course load, while others took on translations from abroad, without ever setting foot in Argentina. However, all of them shared a similar sense of environmental concern and intergenerational solidarity. To FARN’s past, present, and future volunteers, thank you!
8
FARN- 2009 Annual Environmental Report- English Version
Prologue By Daniel Alberto Sabsay President of FARN’s Advisory Board Translated by Max Pluss With the appearance of the first Annual Environmental Report the Environment and Natural Resources Foundation (Fundación Ambiente y Recursos Naturales, or simply FARN) offers a new publication with analysis of the most relevant topics of Environmental Policy and Sustainability in our country. In this manner, it fills the void generated by the inexistence of any official annual report1 which would compile study, opinion and analysis of the most important topics. The FARN Annual Environmental Report aspires to convert itself into a reference document for Argentina, on national and international levels. At the same time, future continuity of the publication will permit readers to follow the evolution of certain topics over time. The report contains articles by members of the FARN team who work on projects and/or related programs at the foundation, as well the contributions of prestigious specialists. One look at the index permits the recognition of several of the most important thinkers in the country for each of the respective problems addressed. Moreover, the publication contains FARN’s seventh edition of the Adriana Schiffrin Writing Award on the topic of “The Sustainable Management of Watersheds: Conflicts and Challenges.” The FARN Annual Environmental Report was born out of the necessity to mold into one publication the experiences, investigations and works addressed by our organization. For example, in 2008 they had spoken principally about sustainable agriculture, deforestation, contamination of the Matanza Riachuelo basin, climate change, mining, participation, conservation and trade, each of which is dealt with in one or more specific articles. Moreover, the report appears as an answer to the constant demand on the part of decision-makers and leaders of diverse sectors, who require access to systematized information on these topics. Finally, we believe that the annual edition fulfills an important function of making available to the general public and particularly to specialists knowledge about the main environmental issues of the past year, in a manner that is useful, attractive, and educational. We believe that this new experience will permit the foundation to fulfill our principal objective of promoting the sustainable development through the political, legal, and institutional organization of society. We hope that this publication translates to a denser and richer participation of the community on environmental issues, thanks to the information it offers. At the same time we believe that this effort to raise awareness will be useful in increasing the attention paid to environment and sustainability in public policies, challenging public and private decision-makers to make their decisions with the perspective of sustainable development as mandated by the National Constitution. --- March, 2009
1
An obligation of the National Executive Power in compliance with Article 18 of the Law 25.675
9
FARN- 2009 Annual Environmental Report- English Version
Introduction By Maria Eugenia Di Paola Executive Director of FARN Translated by Karl Wallulis The aim of this introductory chapter is to outline the context in which FARN deemed it essential to write an annual environmental report that would periodically provide diverse topics of analysis, advances and the results of investigations and work carried out by FARN, as well as contributions by renowned figures who have volunteered to collaborate in the undertaking. Since its founding, FARN’s mission has been to promote sustainable development and to incorporate these ideals in the decisions that guide public decision-making. Without a doubt, public affairs are influenced by and guided by decisions made in the governmental sphere as well as the private sector, the decisions of the latter having a significant impact on the responsibilities of the public at large. In this context, it is of fundamental importance that those in charge of public and private policymaking, social leaders, and representatives of the public and private sector have open access to methodically developed and compiled information. We can safely say that there is a common thread that unites the distinct contributions compiled in this publication, one that reflects the socio-institutional context of the republic of Argentina, most importantly the necessity for a strategic platform that takes into account pressing matters of the environment and sustainable development in the planning of the society, country and region that we live in. Whether we consider it from an institutional analysis or looking at the particular themes and conflicts, we can consider that the greatest challenge of today is the establishment of sustainable, democratic and participative politics, which we are unfortunately a long way from achieving. I. The Institutional Stage Six years ago representatives of the distinct sectors of our country had the chance to meet at the National Round Table (Mesa del Diålogo Nacional) in its chapter devoted to issues of environment and sustainable development, an undertaking that was coordinated by FARN2. At that moment we found it necessary to closely examine the context for the environment and for national institutions, since it was an exceedingly critical period for the republic of Argentina. The General Law of the Environment had recently been passed, serving to light the way in the uncharted territory of environmental politics,
2
The Environment and Sustainability Round Table occurred June 17th and 18th in San Nicolas, province of Buenos Aires, as the chapter of a cross-sector discussion with the intent of formulating agreements and lines of priority action, with the help of PNUD. The complete document can be found at http://www.farn.org.ar/docs/conclusiones_dialogo2003.pdf
10
FARN- 2009 Annual Environmental Report- English Version
which had yet to appear on the front page of our newspapers or in the daily discussions of our society. In the framework of the roundtable dialogue, a wide range of conclusions and requirements emerged in relation to the public environmental agenda, the institutional organization of the National Executive Power (Poder Ejecutivo Nacional or PEN), the environment and sustainable development, the connections between the state and the provinces, as well as access to information and citizen participation. In the following years, the National Congress continued with various ups and downs, including one task still in process: establishing a set of laws of minimum requirements (presupuestos mínimos) for environmental protection, a category of regulations which was conceived by the Constitutional Assembly with the reform of our National Constitution in 1994, and whose inclusion in the constitutional text was a milestone in the establishment of Argentine environmental rights3. In this context, the role played by the National Administrative Power has been weak, at best, in regards to the implementation of environmental laws of minimum requirements, acting in specific cases even to their disadvantage, such as the veto of the national Glacier Law that the National Congress had approved at the end of 2008. PEN didn’t even fulfill their obligation to draw up an environmental report as required by the General Environmental Law for annual presentation to the National Congress. This omission has been the rule since 2003, for a total of 6 missing reports. Nevertheless, there are some exceptions, such as the regulation of the Law for Management and Elimination of PCBs in the year 2007 and the recently passed regulation of the law of minimum requirements for the protection of the native forests. However, this last law ignored a series of inquiries that occurred in 2008 after the intervention of the national Supreme Court in the “Salas” lawsuit, which was spurred on by the terrible landslide that devastated the region of Tartagal and brought to light the fact that the current model had some serious drawbacks4. In terms of the provinces and the City of Buenos Aires, the development of legislation and the application and observance of environmental regulations has been inconsistent, at best, in spite of the presence of the Federal Council of the Environment (Consejo Federal de Medio Ambiente or COFEMA), which elects representatives from the different environmental authorities of said jurisdictions and also on the national level, and serves as the home base of the Federal Environmental System for coordinating the implementation of environmental standards, along with a guaranteed fair federal outline for the protection of the environment and sustainable development. In other words, even if we rely on favorable institutional regulations, there are still several unresolved issues regarding the suitable implementation of the laws for minimum standards that the COFEMA has yet to determine, leading to negative consequences such as the weakening 3
Eight years after the constitutional reform of 1994, National Congress began to pass a series of minimum budget laws, the most important of which the General Environmental Law (LGA), a law of great significance for the environmental judicial regimen of Argentina. In addition to the LGA, in the year 2002 many sectorial laws for minimum standards for environmental protection were established: Integrated Management of Industrial Waste (LRI), Management and Elimination of PCBs (LPCBs) and Environmental Water Management. Beyond this, in 2003 the law for Free Access to Public Environmental Information (LAIPA) was passed, and in 2004 the law for Integrated Management of Domestic Waste (LRD) and in 2007 the law for minimum environmental protection budgets for the native forests (LBN). 4 More information can be found at http://www.farn.org.ar/investigacion/conser/bosques/resumen.html
11
FARN- 2009 Annual Environmental Report- English Version
of this same field which is fundamental for orchestrating environmental public policy at the national level and of course, an encroachment on the comprehensive protection of our environment5. Due to the persistence of wide-ranging questions concerning the definition and implementation of minimum standards for environmental protection, we believe that COFEMA needs to play a fundamental role in their resolution. Also, given that the COFEMA currently lacks representation from the civil society and other sectors, we consider it vital to advance towards the involvement of these sectors, a process which has begun thanks to the demands of civil society and must continue uninterrupted, providing a space for formal participation6. Concerning the minimum standards laws and their implementation and regulation, there are two sides to the debate. On one hand, in the dealings with the National Congress, the COFEMA has increased communications regarding legislation on the subject and has proposed modifying the existing laws. In spite of this, in connection to the current laws of minimum requirements for environmental protection, there are delayed assignments since it has been exceedingly difficult to facilitate basic agreements between the nation, the provinces and the city of Buenos Aires about the implementation and regulation of these laws. In that sense, we understand that we are dealing with a situation that requires proactive measures, framed in the environmental principles of the LGA, on the part of every authority in the administration of environmental policy. In this same vein, another vitally important role in furthering minimum standards laws must be attributed to the National Authority. Beyond the issue of competencies for the regulation of environmental standards laws, there exist numerous resolutions of the COFEMA and the conclusions of diverse workshops spearheaded by FARN and the International Union for the Conservation of Nature (IUCN), which attest to the responsibilities of the Nation in bringing about the regulation of such standards, based on the authority made explicit in article 99, section 2 of the National Constitution7. In that regard, there is another important issue that cannot be avoided. We believe it critically important that the National Authority make concrete decisions that would lead to the implementation and regulation of the minimum standards laws in the cases where they 5
The majority of the minimum standards laws give COFEMA an important role in consensus of planning, politics, and basic criteria (for example in terms of national planning for industrial and domestic waste). 6 With Note #012351, passed October 19th 2007, social and environmental organizations of the civil society made a presentation before the Secretary of the Environment and Sustainable Development, in which they demonstrated a need to review the regulatory forecasts in relation to public participation in the organizations of the civil society, especially as it relates to discussions about the most appropriate means by means to participate in the processes developed by COFEMA with Resolution #150/08 which created the Permanent Commission for Participation in the Organizations of the Civil Society. Dated the 16th of December 2008, FARN, along with FVSA, Greenpeace, and the Foundation for Democratic Changed, and with the support of the other OSC petitioners, made a formal presentation of the Mechanisms of Participation in the Organizations of the Civil Society in COFEMA, on occasion of the meeting of the organization’s assembly. 7
See “Minimum Standards for Environmental Protection year 2003 http://www.farn.org.ar/docs/p36/index.html and “Minimum Standards for Environmental Protection II year 2006 http://www.farn.org.ar/docs/p48.html
12
FARN- 2009 Annual Environmental Report- English Version
are currently lacking. We also would like to emphasize that the coordination and implementation of these environmental standards with the goal of strengthening the institutions is absolutely essential, along with the development of clear channels of communication with the community and the incorporation of citizen participation in decision-making and in the implementation and regulation of laws, in order to ensure the future of sustainable development8. II. Argentina in the Regional and International Stage In the context of the necessary links to the application and fulfillment of environmental guidelines, Guillermo Acuña introduces the fundamental aspects connected to this subject in Latin America, taking into account the institutional organization of the countries in the region, the systems of command and control, and their relation to the marketplace, suggesting concrete measures for the application and fulfillment of such environmental guidelines as the importance of social participation and open access to information, highlighting the usefulness of indicators and accountability, and concluding by mentioning the pre-existing resources for implementing environmental regulations. Moreover, regarding international coordination it is essential that we fully understand the international position on climate change and the role of our country in this situation. Belén Esteves and Agnes Sibileau offer us an analysis of the status of the responsibilities accepted, current trends with regard to the upcoming COP 15 in Copenhagen and the challenges faced by our country and the surrounding region. Certainly the public agenda has adopted certain topics that, based on their relevance and on the impetus of the community at large, have gained greater attention. First the international dispute over the construction of a cellulose factory on the banks of the Uruguay River and later the Riachuelo case helped bring environmental issues into the public eye. In the first of these cases, in agreement with the analyses made by FARN in March of 2007 it has been observed that there is not only a deficiency on the part of the Oriental Republic of Uruguay regarding the Uruguay River Treaty, but also the lack of consideration for the bi-national and/or regional tools that could help incorporate the Strategic Environmental Evaluation in decisions about the allocation of shared resources9. In this sense, with his sharp analysis Jorge Daneri demonstrates the strategic challenges we face in this issue loaded with unavoidable conflicts, exacerbated, from our point of view, by the lack for consideration for preventative tools that would involve citizen participation in their working out. Inevitably, the conflict with Uruguay in this case gave rise to a necessary proposal about the interior of our country, which has shown time and again its insufficient development in bringing environmental themes to the priorities of governmental politics. 8
See Sabsay, D.A. and Di Paola, M.E. Coordination and synchronization of environmental standards in the Republic of Argentina in “Derecho de daños” magazine 2008-3. Mosset Iturraspe and Ricardo L. Lorenzetti, 1st ed. Santa Fe. Rubinzal Culzoni, 2009, pgs. 137-162. 9 See the document made by FARN in March 2006: http://www.farn.org.ar/arch/plantas_celulosa.pdf
13
FARN- 2009 Annual Environmental Report- English Version
III. Argentina’s Internal Environmental Politics In addition to the aforementioned situation, the dilemma of the Matanza-Riachuelo basin brings to light, through what has developed into an archetypal case, the grim reality that 17% of the population of Argentina lives in one of the 30 most contaminated places in the world. In relation to this case we encounter problems linked to industrial waste and sewage, the management of domestic waste and subsequent impact on the population’s health, the informal settlements on the river’s banks and the bicentenary of its original contamination. There is a complex multifaceted framework joining distinct sectors (public, private, and the general population) and a wide range of subjects regarding the management of a region so important to our country, with the clear need for strategic considerations concerning environmental oversight of the territory and the evaluation of impact on the environment. In this matter, FARN has worked with the National Ombudsman’s Office and other non-governmental organizations since 2003, soliciting meaningful action from relevant authorities, and has actively participated as a third party in the leading case Mendoza. Andrés Nápoli demonstrates the causes and the characteristics of this problem and the important structural obstacles that must be overcome for its effective resolution. The environmental conflicts that are born out of mining investments evidence the need for approaches with a suitable temporal and spatial horizon, which would tend to minimize the immense divide that exists between the common people, mining companies and the government regarding access to information, participation in decision making and strategic analysis. This uneven scheme reveals problems related to the situation of hydrological resources, the fate of royalties and taxes paid by the companies and the redistribution in the most affected communities, and the legal implications of the matter. The information currently being used for decision making is vitally important, as is its credibility. Pablo Lumerman and Juliana Robledo analyze these aspects in their contribution to this report, taking into account a project managed by the Foundation for Democratic Change with the support of UNDP, in which FARN has also participated. In the face of these conflicts aroused by rural (agricultural) policies, we have decided to include in the current report an analysis of the elements which, from our point of view, are likely to enrich perspectives regarding which model we would like to propose for the agricultural development of our country. Aspects such as environmental evaluations and territorial planning, assessment of the ecosystems, the infrastructure, incentives and charges, the management of agrochemicals, projection in the matter of biofuels, and the energy balance and public policy regarding the native forests form the basis of the analysis carried out by FARN in 2008 and included in this volume. The policies of urban solid waste management represent a serious challenge, not only because this is a central issue in which local jurisdiction can make a difference, but also because they require an integrated view on the part of the authorities of all levels and the COFEMA, which has well-defined obligations based on the Law of Minimum Standards
14
FARN- 2009 Annual Environmental Report- English Version
for Domestic Waste. On this topic we have included a document specially prepared by the FARN team in which this subject is fleshed out. IV. Argentina and Principle 10 of Rio ‘92 Principle 10 of Rio 92 established that “the best method of dealing with environmental issues is with the participation of all interested parties at the corresponding level. On the national level, everyone must have adequate access to information regarding the environment, including information the public authorities would make available about materials and activities that could involve risk to their communities, as well as the opportunity to participate in the adoption of policy. States must facilitate and encourage awareness and the active participation of the population by placing the information within reach of everyone. They must grant open access to judicial and administrative procedures, among these the compensation of damages and relevant resources.” Considering therefore that access to information, participation in decision making and access to the judicial system are cornerstones for creating good environmental policy, this report contains a range of articles on the matter. On one hand Maria del Carmen Garcia illuminates for us the Patagonian citizens’ experience regarding access to information and citizen participation, detailing the process of notification and successfully requesting a public hearing in the city of Rio Gallegos, and the efforts FARN made together with the Patagonian Nature Foundation to put together a training program, commenting specifically on the impact of those efforts on the Municipality of Rio Gallegos, Santa Cruz province. Additionally, Carina Quispe Merovich discusses an unfinished project in the city of Buenos Aires: the coordinated production of an environmental code for the city, a program begun by FARN in 2006 along with the city government and the Ecological Commission of the City Legislature, but which regrettably has not been continued under the current administration. Regarding the subject of access to the judicial system we are grateful for contributions provided by a judge well versed in environmental policy, Eduardo Jiménez, who has contributed examples of cases culled from his experience in teaching and related trials that serve as guides for the classification and treatment of environmental contingencies. Furthermore, Jose Esain, Vice President of the Association of Integrated Environmental Studies of Mar del Plata, analyzes in minute detail the role of the national Supreme Court in linking environmental causes with current trends.
V. Argentina and Conservation Private conservation presents some definite challenges for a nation in which only 7% of the total territory receives some type of public protection. We find ourselves in a position
15
FARN- 2009 Annual Environmental Report- English Version
where we need to rely on tools that complement the efforts of the state in a technically suitable and legally coherent fashion, with economic resources that would support such measures. Alejandra Carminatti of the Argentine Wildlife Foundation (Fundación Vida Silvestre or FVSA) and Carina Quispe Merovich make a contribution on the subject through study of voluntary private reserves in Argentina, shedding light on an important subject in which FARN works together with FVSA to improve and augment our tools. Another one of the aims of this publication is to foster sustainable ecosystem management in the Patagonian Sea. The Coordinator for the Conservation Forum of the Patagonian Sea and its area of influence, Pablo Filippo, presents the current arrangement and the requirements of the initiative that FARN designed together with a group of organizations, working towards a sound technical analysis that would serve as the model for ecosystem management and thereby overcome the many of the current obstacles. Conservation in urban areas is an issue dealt with specifically by Andrés Bosso and Mauricio Manzione of the Argentina Birds Organization (Aves Argentinas). Using experience gained both in Argentina and in comparable locations, they offer a panoramic view of urban natural reserves and their importance in the conservation movement as tools for increasing awareness and the education of the people. Diego Moreno of the Argentine Wildlife Foundation (FVSA), Hernán Giardini of Greenpeace Argentina and Carina Quispe Merovich of FARN present their complementary visions relating to the national forest law, examining it both with regard to its genesis and the work done by the civil society as well as the challenges it presents through its implications on the national and provincial level for environmental oversight. VI. Argentina: Business and Sustainability The economic and financial situations of our country and the world present a fundamental challenge for the vision of sustainability that we are proposing. Because of this difficulty, FARN has developed two strategies specifically in relation to this area. The first has to do with OECD Guidelines for multinational corporations (empresas multinacionales or EMNs), through which government members and members of the OECD oversee multinational corporations and their affiliated organizations if they are from or operate in the countries of the OECD (including with countries that haven’t signed the directives), promoting responsible practices and the incorporation of guidelines into the entire supply chain. This deals with a fundamental tool related to Corporate Social Responsibility (Responsibilidad Social Empresaria) that Belén Esteves examines in his report, tackling at the same time the issue of the National Contact Points (Puntos Nacionales de Contacto) that function in the application of the OECD directives in many different countries, as well as the methods adopted by the civil society in that regard, giving specific recommendations for the National Contact Point of Argentina. Financial oversight for infrastructural work in the region, strategic tools and citizen participation are additional topics covered in this field, of heightened importance due to the fact that we live in a region with constant rapid development. Gabriela Vinocur
16
FARN- 2009 Annual Environmental Report- English Version
provides a detailed analysis of this subject, considering the initiative for the Integration of Regional Infrastructure of South America (Integración de la Infraestructura Regional Sudamericana or IIRSA), the most common development projects in our country and the role of the civil society in the oversight of said projects. Their work is especially important with regard to civil planning that FARN has made with other organizations in Argentina and Brazil10. VII. The Establishment of Environmental Capabilities The establishment of environmental capabilities is imperative in the efforts to achieve sustainability. The role of journalism in this terrain has been fundamental through the social responsibility it has instilled in the people. A better informed society is more likely to make wiser decisions. In that regard, the acclaimed journalist Sergio Elguezabal, a member of FARN’s advisory board, gives an incisive analysis of the role of journalism in our society with practical examples to elucidate the challenges faced by environmental journalists. Another field in the establishment of capabilities is education, and we have to include a chapter about the Environmental Law Clinic that has been growing under the auspices of FARN. The chapter covers a project that FARN undertook through an agreement with the Law Faculty (Facultad de Derecho) of the University of Buenos Aires in which judicial services are made available to the community and future lawyers earn qualifications for working in public-interest environmental cases. Agnes Sibileau and Débora Bialostozky give us an interdisciplinary look at this pedagogical practice and how this methodology constitutes a constructivist approach to strategic litigation. The organizations of the civil society also have a hand in building capabilities and influencing public opinion. Federico Sangalli presents a vision of his experience communicating with NGOs, expounding on the exceedingly valuable guidelines learned from his experience in the realm of FARN and the social challenges involved in his work with the media trying to ensure that his communications carry the weight of his organization’s mission. Finally, this first environmental report inaugurates a new category relating to the Schiffrin Award, in that we will be including the publication of the winning works. By doing so we pay homage to Adriana Schiffrin, an extraordinary person and professional, who worked every day to share with us her dream of a more just society and a sustainable world. The Schiffrin award contributes to public awareness and allows us to collaborate and motivate directed investigation of the most important issues for environmentalism and sustainability. It is meant to reward outstanding contributions made by young professionals that have responded to our call by writing on the different specific topics we have designated beginning in 2002.
10
Ecoa Foundation of Brazil, M’Biguá, Citizenry and Environmental Justice, FARN (Argentina) and Proteger Foundation (Argentina)
17
FARN- 2009 Annual Environmental Report- English Version
The seventh annual round of this award, dedicated to the topic of “Sustainable Management of Watersheds: Conflicts and Challenges,” is on the table this year. The panel of judges, certified by the national public defender, comprises Dr. Eduardo Mondino, the president of AIDIS, the engineer Juan Pablo Schiffini, and Dr. María Marcela Flores, specialist in environmental jurisprudence, who have all performed their duties with professional excellence. The first year they announced that the award would have no recipient, but called attention to one of the works by mentioning its academic rigor and pertinence of the discussion regarding the framework of environmental justice in our nation. The “Primera Mención” award has been given to the paper presented by Dr. Agustín Bernardo Bonaveri and Dr. Santiago Javier Alonso, entitled “Sustainable Management of the Salí –Dulce Hydrological Basin.” In conclusion, with this report we hope to make significant substantial contributions to a wholly ambitious but necessary goal to make decisions which help foster sustainability while taking into consideration pressing issues and conflicts, maintaining interregional equity, and making use of preventative measures and precautions that will help create a mid- and long-term environmental plan for our nation and our region.
18
FARN- 2009 Annual Environmental Report- English Version
Application and Compliance of Environmental Legislation in the Latin American and Caribbean Region By Guillermo Acuña Legal Assistant to the Commission Secretary, ECLAC/United Nations Translated by Tamara Vatnick
Executive Summary The subject of application and compliance of the law, in general, and of environmental laws, in particular, has been a central theme in the region of Latin America and the Caribbean in that objectives of public policy are, most times, expressed in regulations. There are certain elements which give context to this analysis, such as the juridicalpolitical organization of our countries or the juridical support. Applying and enforcing environmental law requires supporting the personnel responsible for environmental protection. By responsible personnel, we mean those who must take action in the design and application of environmental programs and strategies and to reach the implicit or explicit policy objectives designated in the normative body. The use of market instruments or indirect regulation in environmental management has been a topic of much discussion in relation to application and compliance of the law. Correct and effective use of these instruments requires solid guidelines and an adequate institutional framework, that’s to say that these instruments must be complementary to — not a substitute for—adequate command and control mechanisms. The element of social participation, dependent on access to information, must not be overlooked either, to the extent that social actors do play and could play a significant role in the application and compliance of environmental laws. Some examples of concrete methods which can support and improve the application and compliance of environmental law are directly associated with the institutional capacity of control bodies. Increasing the number of inspections or imposing effective sanctions in the case of infractions, as well as having well-defined procedures are key courses of action to take for positive results. Further, it is fundamental to train those who carry out the inspections and audits. In addition, it is just as important to develop performance indicators which serve to measure the level of application and compliance of environmental law and, not lastly, to establish accountability mechanisms.
19
FARN- 2009 Annual Environmental Report- English Version
I. The Importance of Application and Compliance of Environmental Legislation in Public Policy11 The subject of application and compliance of the law, in general, and of environmental laws, in particular, has been a central theme in the region of Latin America and the Caribbean in that the objectives of public policy are, most times, expressed in regulations. Without the possibility of concrete application and effective enforcement of those being regulated, these policy objectives have no hope of being achieved. In our region, historical development cycles of environmental regulation which began halfway through the 20th century, and more specifically in the 70’s, reflected by the Stockholm 1972 effect12, has had an important impact in the construction of an environmental regulatory structure. However, we cannot say that today’s juridical framework is completely solid given that it is permanently being revised, in spite of the creation of the “umbrella laws” (national frameworks) in which the environmental rules should be relatively static. The growth of “second wave” or “second generation” of umbrella laws is an current example of this evolution; Peru renewed its national framework law in 2006 and Argentina created its law relatively recently as well. In order to analyze how and by whom environmental laws should apply and how and by whom they should be enforced, we must first contextualize this analysis. To do this, I will divide the region of Latin America and the Caribbean by juridical-political organization of its countries, because it is not the same to apply environmental legislation in countries that have a federal government (such as Argentina, Brazil, Mexico and Venezuela), as it is in countries with a centralized State. The diversity of jurisdictional levels in federal countries means that in these States, in some cases, different levels of government have the ability to dictate environmental norms, in the broadest sense of the word. Because of this, a short review of the jurisdictional level at which environmental norms are applied and enforced is indispensable to our analysis. Another element to take into consideration when talking about the application of environmental law, beyond the organizational and political structure of a country, is the juridical and political support provided on the issue. That is, if there is constitutional recognition, in what manner the international treaties and accords are being generated or contribute, from the international to the domestic plan, the number of laws on the subject. It is also good to consider, in the framework of globalization, other accords (such as free trade agreements) which, though with different intent, also have direct and indirect repercussions on the environment. The inclusion of general environmental framework law means that a series of environmental policy principles are being recognized in said juridical framework, which 11
The following text was prepared by Guillermo Acuño, Legal Assistant to the Secretary of the ECLAC/UN Commission. The text is based on presentations given during trainings over the period from 2005 to 2008. The opinions expressed in this text belong solely to the author and do not represent the opinion of the institution to which he belongs. 12 This is the name given to the impact felt by the UN Conference on the Human Environment, which led to policy solutions related to the environment, reflected principally by new laws and institutions.
20
FARN- 2009 Annual Environmental Report- English Version
should then serve as a guide for decision-making. Every country in the region has some type of general law, each beginning at various points in time, and today this type of regulation is almost a fundamental requirement for modern environmental management. Some countries are already in periods of reform or in the second generation of said general framework laws, in which acceptable minimums are imposed, but through use of more sophisticated management and political instruments environmental protection standards are elevated. To this we must add, in a complementary tone, the existence of emission regulations, which generally are technical regulations, as well as quality standards, that regulate the ability of receiving bodies to take in and tolerate certain types of contaminants. In addition we must take into account issues of competency and jurisdiction, to the extent in which federal (or decentralized) countries often demonstrate conflicts between the different levels of state (we could refer to specialists in law and institutionalism from Brazil, Argentina and Mexico about difficulties of this type in the application of environmental law, or to Columbia or Peru to cite certain cases). In this way, the succession of inter-jurisdictional conflicts over environmental legislation is a topic of current public interest in Latin America and the Caribbean. It is important to consider this mix of elements to the extent that they represent explicit environmental public policies, a term coined by NĂcolo Gligo, from ECLAC, during the 1990’s, and the extent to which these coexist with implicit environmental public policies. We must recognize that the majority of environmental policies are reflected in normative frameworks, and in this sense, environmental policies and environmental issues as a whole also coexist in a larger public policy frameworks. Within this coexistence we encounter numerous challenges: one of the most important is competition for the allocation of public resources, since the environment is one of the least represented areas of budget allocation in our countries. This situation also occurs in European and other OECD countries, but the difference between our region and other industrialized countries is the magnitude of the resources distributed to each of the policy priorities, and the context of development in which public policies can be carried out. The problem is that, in competition for the allocation of resources with other public policies, such as health, education, security, housing, and justice, the environmental sector is always a lower priority. Moreover, information about public spending on environmental protection is relatively uncertain, even when it is approximate. ECLAC conducted a study in 2002 with some precedents13; information from some countries does exist, but it is not politically beneficial to show that a sector of public policy is not completely solid in budgetary terms. Consequently, no public authority would feel comfortable if they had to say that they spent less on the environment than on weapons or military activities, for example.
13
See website: http://www.eclac.cl/cgibin/getProd.asp?xml=/dmaah/noticias/proyectos/1/9311/P9311.xml&xsl=/dmaah/tpl/p14f.xsl&base=/dmaah/tpl/topbottom.xsl which refers specifically to the results of said studies.
21
FARN- 2009 Annual Environmental Report- English Version
Returning to the idea of explicit and implicit environmental public policies, we must make a few distinctions. First, there are rules or regulations, and policies which directly pertain to environmental matters, for example, mechanisms of environmental licensing. Implicit environmental rules, regulations or policies may appear in other fundamental public policy sectors such as the economy, in the form of investment regulations, macroeconomic regulations, and others which play an implicit role in environmental issues (for example, more or less stimulus for the extraction of natural resources through market value). The agricultural sector is clearly related to the environment, as well as the tourism sector, which in Caribbean and Central American countries, for example, comprises a crucial dimension of the economy and depends without a doubt on natural beauty as a factor in tourist attraction. Another policy that plays an implicit determining role in the environment is the management, use and ordinance of land/territory. At the moment, these issues play a considerable role in the definition of social-environmental conflicts. Implicit environmental policies in other sectors must also be taken into account when we talk about application and enforcement of the law. Is it possible to apply and enforce environmental policies and regulations when juridical structures which are not necessarily up-to-date, and neither coherent amongst themselves nor with ordinances from other juridical sectors? Certain countries in our region faced this problem when they signed commercial agreements among themselves and had to create specific descriptions of their environmental regulations and how they would be applied in the framework of the commercial agreement, given the absence of coherence and regulatory coordination that notoriously exists in these countries. There are cases of regulations dating from the beginning of the 20th century which are still in force, which have no practical coherence or coordination with current regulations, especially when speaking about control of emissions. A huge pending task for the countries in our region is carrying out coordination studies and juridical purge in general and in the environmental sector in particular, which would help us simplify the task of enforcing environmental regulations and also give us juridical security around understanding which material we must apply. Another factor that permanently coexists with the matter of enforcement are the numerous conflicts of interest that are reflected in regulations. For example, a promotion law for a certain activity—mining, for example—facilitates investment of capital within that sector. Clearly these investment agreements never say and will never say that part of the facilitation would be to relax the control over environmental obligations, and would never tolerate that. However, practical experience has shown that these investment regulation texts often collide with environmental policy objectives, and so it becomes more important, relevant, and strategic for a country to make the public aware of this investment and its socio-economic effects. This situation begs the question: What capacity do the actors have, public as much as private, to apply and enforce the law? In this question we have identified two relevant actors. The first actor is the one who must apply the law; fundamentally we are talking about the public agencies of the executive power, as well as the jurisdictional agencies. For the second relevant actor, we must distinguish who must comply with the law; that is, the subjects who are regulated and are
22
FARN- 2009 Annual Environmental Report- English Version
obligated to those regulations. In this point there are not distinctions between public and private actors; we refer to everyone who falls under the specific regulation. When we talk about applying and enforcing the law, we bring to the table questions of policy genesis, which in the majority of our systems is associated with the legislative branch of government. Unfortunately, once laws have been constructed and approved, they pass outside the scope of Parliamentary power and the task of application and enforcement of the regulation is delegated to the executive and judicial branches. The parliamentary task of contributing to the design and application of public policies reflected in regulations must be informed by the juridical sciences, and by scientific knowledge derived from the particular field in question, in order to be able to evaluate the necessity, pertinence, capacity, and eventual difficulties of its application—and to construct consensus among regulated sectors, certainly a central theme when trying to establish standards or limits, for example—to generate a new guidelines. In concrete terms: What does it mean to apply and enforce environmental law? Broadly, to apply and enforce environmental law means to support the parties responsible for environmental protection, in the design and application of programs and strategies that aim to achieve environmental policy objectives, implicit or explicit, and standing laws14. What is it we aspire to, from the public policy perspective, to establish environmental laws and regulations? We propose a policy objective reflected in regulation, an aspiration of society as a whole, in which what is environmental could be, for example, protecting an ecosystem, or protecting certain species, or setting limits on development of certain activities. Thus, those who have this responsibility are those who have the specific task and assignment to apply and enforce environmental law. And apply what? Do we apply scattered guidelines or coherent ones? Do we apply guidelines that do not make sense in the form in which they were established or with the capacity of those regulated have to comply with them? Are these juridical systems coordinated? These questions invite a necessary reflection on the type of norms (in terms of normative quality) that we are going to apply and enforce. One considerably complex variable is tied to the scope of application. Should environmental regulations have general application in the entire territory of a State, or should we expect that, as occurs in a federally organized state, some federal guidelines are resisted by the provinces and other sub-national units, and for their effective application we must count on specific adhesion to applying them? Suppose that the federal material has been approved by the Congress, Parliament, or Legislative Assembly of a country. The inhabitants of the country are represented within the parliamentary scope by the legislators and, for this reason, the decisions that they make (the majority of which also become laws) are principally a consensus of the representatives of the entire population of the country. However, this idea of minimum protection for the entire 14
In this point I have followed the opinion and works of Michael Stahl, of the United States Environmental Protection Agency, and María Eugenia Di Paola, of Fundación Ambiente y Recursos Naturales, in Argentina. Both have made important contributions on this topic in our region.
23
FARN- 2009 Annual Environmental Report- English Version
country, which the sub-national territories may improve upon, cannot be applied unless sub-national territories do not expressly accept that this legislation, approved by their representatives, is applicable. We must pay special attention to the absolutely anachronistic vision of development strategies which—far from promoting sustainable development—pretend to apply federal regulations in some parts of a country or territory and not in others. The result of this situation, among other things, is the generation of juridical insecurity and uncertainty, and the potential affect on natural resources and their potential beneficiaries. We are currently facing a severe and worrisome international economic crisis which demands an integrated examination with a medium- and long-range perspective of the environmental situation as to the development process of countries in general, particularly considering the climatic crisis the planet is suffering. We are talking about the use of natural resources, whether these resources are used in a sustainable manner or not, what role the application of the law plays in this situation, the distinct jurisdictions, and the distinct levels of State presence in our countries. Additionally, we must refer specifically to the abilities to enforce the law. A clear example emerges from international multilateral accords which, with increasing frequency, have adopted a multi-sectorial character. Is the Basilea Convention15 a specifically environmental accord or is it a sustainable development agreement? Not only is it an environmental agreement, it is a text which regulates the trans-border movement of hazardous waste and which must specifically examine an economic activity that will require, for its application, a procedure which demands coordination between distinct sectors of public management. We are talking about border guards, customs officials, environmental authorities, technicians, and in addition the agencies which coordinate the proceedings. Thus, the first logical question arises around who in our countries has the capacity to comply with accords with these characteristics. The same thing occurs with the matter of the ozone, which is not solely taken up by environmental authorities or by the environmental framework, but also by economic activities that emit a series of exhaust substances into the ozone layer, and therefore require, for their proper application, the participation of diverse sectors and a mechanism for coordination. There is also an economic dimension to the problem of deciding how to substitute exhaust substances that do not deplete the ozone layer for those that do. In respect to the subject of information we are, like other societies in our region, facing important challenges in that we do not produce adequate information and that the compilation of data on how to apply and enforce regulations does not exist. Are we accumulating this information and are our countries documenting these actions in the form of continuous analysis? It is worthwhile to highlight that some countries have done studies that show the dramatic situation on this matter. The reality today, at the beginning of 2009, shows us that we are in a highly precarious situation as to information about the 15 The Basilea Convention on the control of trans-border movement of hazardous waste and its elimination adopted by the Plenipotentiaries Conference on March 22, 1989, at: http://www.basel.int/text/con-s.doc
24
FARN- 2009 Annual Environmental Report- English Version
application and enforcement of environmental law—it is not being consolidated or made available to interested parties, or in general. Because of this it has become practically impossible to know if the environmental objective represented in the regulation has been completed after the full cycle of application. It is worth reflecting on the fact that if we aim to reach environmental goals and objectives, it is highly probable, almost definite, that they must go hand in hand with the objectives of associated public policy, such as reducing poverty, or giving the impoverished better access to sanitary systems (water, waste, domestic waste, etc.) Effectively, environmental objectives and objectives of environmental policy implicit in regulations are also oriented to improve the conditions of the lives of the inhabitants of a country, which is the central objective of the administration of the state. The definition of who applies the regulations is central. In general, in our countries, this responsibility is delegated to an institutional area or agency of the public administration in order to monitor the enforcement of the law on the part of those regulated, who do not always—as is our reality—have adequate capacity to assume this responsibility. Efforts to decentralize in our country have been faced with very limited conditions to comply with the delegated mandate, in particular, in the sub-national or local levels. From here it is imperative to rely on an adequate institutionalization, supplied with the necessary resources and that is held accountable to produce proof to the agencies of control whether the objective of the regulation was reached or not. How do we make it possible for these actors who must enforce the law to be sufficiently prepared to do so? And if those responsible do not fulfill their duties, how do we resolve the problem? The case law in some of our countries notoriously shows that the solution to the controversies on these subjects can only be found within the judicial scope. This shows that, an important space where these solutions could or should be created—the administrative scope—is not used or is bypassed. It is our opinion that the judicial scope should be an indirect mechanism of resolution or last resort, because we are using up extremely important resources without considering the social cost implicated. Thus it should only be the case that something arrives at the highest judicial seat—the supreme court or superior tribunal of justice—that this tribunal orders the executive power to do something or desist from doing something, to take action or abstain from continuing a course of action. It is well known that these situations, limits in a certain sense, also show the limited actions taken within by the administrative power, for whatever reasons. As a result of interventions by judicial powers, society as a whole develops strong confidence that environmental conflicts will be resolved through judicial means; an attitude which in turn produces a legalization of environmental management as a whole.
25
FARN- 2009 Annual Environmental Report- English Version
II. Indirect Instruments of Regulation and their Contribution to the Application of and Compliance with Environmental Law Another element tied to who should enforce the law, which was the topic of much discussion during the 90’s, is the utilization of market instruments or indirect regulation in environmental management. Chile has set a powerful example in the establishment of such mechanisms. The idea is that these mechanisms are more flexible and that indirect regulation could contribute to better compliance of environmental policy objectives reflected in regulations. Thus, the central debate on this topic was if traditional instruments of command and control—or of direct regulation—go hand-in-hand with or could or should be substituted by indirect regulation or market instruments. This question has been clearly answered by several years of evidence in our region and elsewhere— instruments of direct regulation can be accompanied by those of indirect regulation, but never substituted. Various examples of market instruments and indirect regulation were documented by ECLAC between 2000 and 200316, and from these studies it remains clear that for correct and effective use of said instruments, solid guidelines and an adequate institutional framework are required, including sufficient mechanisms for monitoring and control, in order to have complementary use of these mechanisms. It is interesting to confirm that in design and application, these instruments can serve to stimulate the regulated community to comply with environmental objectives, rather than the law simply forcing them, but instead in the interest of better social and business behavior, in terms of the productive actors. The classic example of this is an industrial conglomerate or corporation chooses to have environmental standards which are stricter than those enforced by their country, and for this effort obtains certification or accreditation, with beneficial consequences, while always having complied with the laws of the place it carries out its activities. For a long time, and still today in some countries, those who are regulated—principally large corporations—believed that social and environmental policies or certifications were only filling in weaknesses or inactions in traditional nationally established guidelines. This belief is not valid, or should not be valid. Regulated actors’ behavior—whether they are public or private—must be committed to compliance with national guidelines, making use of the not-so-new incentives or specific policies, such as clean production, technological access, and labeling; those which specifically work to support compliance of environmental objectives, but never substituting the instruments of command and control. III. The Importance of Social Participation in the Application and Enforcement of Environmental Law The element of social participation, ostensibly tied to access to information, cannot be left out of consideration. Social actors as a whole play a significant role in the application and enforcement of the law. We can begin by asking ourselves where the current socialenvironmental conflicts are in our country. From the most micro to the most macro, all are directly or indirectly related to a community making some objection to an activity or a project. These conflicts range from resisting a certain decision from a government 16
See: http://www.eclac.cl/dmaah/noticias/proyectos/1/7451/inicio.htm
26
FARN- 2009 Annual Environmental Report- English Version
agency such as approving a housing development plan or the location of a landfill, to resisting large infrastructure projects or interventions in the exploitation of natural resources, to demanding the correction of confirmed environmental damage. That is, we are talking about a highly varied range of conflicts that, thematically, one can find many examples of in the realities of our countries. The attention civil society pays day by day to the activities of productive sectors, particularly, makes their role in monitoring and control of those sectors equal in relevance to that of public agencies. Why? They know well the limitations of institutions responsible for the control of the law, and because of this, it is civil society which often informs on, makes known, or simply denounces an infraction or action, prodding the administrative apparatus—and in many cases, the judicial system—to begin the process of making sure that the law is applied and enforced. The relevance of this intervention is not just applicable to regulatory commitments established by national legislative agencies (including sub-national and local agencies) but also, more and more, to supra-nationally established commitments that may be enforced in the national sphere In May of 2008 we were witness to the Latin American press publishing a demand by an important Brazilian civil society group who protested Brazil’s lack of compliance with their emerging responsibilities under the Biotechnology Security Protocol (Cartagena Protocol). Said petition was made specifically to the Monitoring Committee of the Convention on Biological Diversity, as well as the Conference of Parties of the Cartagena Protocol. Another place where civil society participation is recognized in the application and compliance of environmental law is in the framework of commercial accords or free trade agreements, in which the examples of NAFTA and of Chile’s bilateral agreement with Canada and the United States show interesting results. Trade agreements which are already signed as well as those currently in negotiation establish in different articles the necessity of complying with national environmental legislation, as well as establish economic sanctions for failing to comply. This is a well-established model of free trade agreement, but what should our countries do in the case of being accused of failing to comply with their own regulations in the framework of these treaties? Mexico has already paid environmental sanctions under NAFTA and they were not minor fines; they were given for failure to respect, under chapter XI of NAFTA, the right of one country to make investments in another and how these investments should be protected; the sanction was handed down by a supra-national agency of this agreement. Other opportunities in which civil society has been able to impact the enforcement of environmental policy objectives associated with regulations in our region has been the examples of Mexico and Chile, and at the sub-national level, the Amazon State in Brazil17. Environmental Performance Evaluations, under OECD methodology, developed in 1996 in Mexico and later updated in Chile in 2004 and the Amazon in 2007—ECLAC having formed part of the evaluating team of the last two—have been important examples 17
The Chilean report is available at: http://www.ECLAC.org/publicaciones/xml/2/21252/lcl2305e.pdf and the Amazon report at: http://www.ECLAC.org/publicaciones/xml/1/29161/LC-W126.pdf
27
FARN- 2009 Annual Environmental Report- English Version
of how, in an examination of the effects of actions (not just commitments) on the environmental policy theme, civil society can make a statement, either by individuals or organizations. The reports from said experiences demonstrated that citizen opinion is taken into account in the peer review mechanism and that those being evaluated begin to take interest in the opinions of social groups about their public environmental performance. Voluntary submission to this type of monitoring will demonstrate that environmental policy objectives are not only reflected in written regulations, but also in the results that these regulations are having—or not—around application and enforcement.
IV. Some Recommendations for Improving Application and Enforcement of Environmental Law Some examples of concrete methods that can support and improve the application and compliance with environmental laws are associated with the institutional capacity of those who are responsible for control. To obtain positive results, central actions must include increasing the number of inspections to complement the monitoring of a situation underway, the effective imposition of sanctions in the case of an infraction of laws or regulations, and the design of well-defined protocols/ application procedures. This subject is extremely importance since many times well-dictated laws fail in their application when the procedures for implementation are not clearly established. At times, those who should do inspections fail to do so, the tests they take are invalid, or the body tested is not the correct one, etc. It is a fundamental necessity to train those who carry out monitoring, inspections and auditing functions. In the highly technological world of today, mechanisms for continuous information are being utilized by monitoring networks, specifically in the areas of air and water. We are beginning to see more frequent use of these networks and mechanisms in our large cities and metropolitan areas. Mexico and Chile have mandates to establish their RETC’s, or “registries of emissions and contaminant transfers”. The RETC’s are reports that identify the source of contamination, who emits the different types of contaminants, and how mobile the contaminants are. The objective of these reports is to monitor the short- and long-term behavior of those who are regulated and the effects their emissions have, including their variability and movement, and when these changes can have damaging effects on health or the environment. The RETC’s originate from European accords, specifically the European Economic Commission, the sister program to ECLAC in Europe, which suggested creating some type of voluntary registry under State responsibility which documents the sources of contamination and in what way contaminants behave in a shared eco-system. Because of this, concrete programs of application and enforcement were established, that is, it created a concrete stimulus as to whose task it is to enforce the law as well as incentives to do so.
28
FARN- 2009 Annual Environmental Report- English Version
V. Indicators of Application of and Compliance with Environmental Law The next element we will analyze is linked to the ways in which we can analyze, evaluate, and determine the results- hopefully positive- of our actions at the end of the day. Usually those responsible for taking action—primarily the public sector—do not want the results of their practices to be made public. However, slowly but surely, demands from distinct sectors—parliaments, fiscal authorities, civil society—have been increasingly soliciting accountability for the effectiveness and efficacy of environmental legislation. In this way, the use of indicators in the application and compliance of environmental law initially have been used much more in developed countries than in developing countries. As a matter of fact, at the end of the 90’s an international network was founded-INECE18--that brought together all parties interested in the subject, including academia, civil society, and regulated actors. Based on the experience of countries such as the United States, European nations, and others in the European orbit, this network was able to demonstrate the importance of using indicators to evaluate the performance of application and compliance with environmental law. In our region this subject is usually seen with mistrust, with the understanding that to rely on this type of indicators requires the sophistication of developed countries, far from our realities. However, and in spite of conditions described at the beginning of this text, our region has been little by little building up information which will help us have clarity, not merely because we like to have information but also because it is the duty of the State as a representative of its communities, to inform the public as to the state of the environment, the specific circumstances, and the potential damages in view. In this way, whether the legislation is applied and enforced is made public. For example, we can refer to a project19 about indicators for application and enforcement of environmental law carried out from 2003 to 2007, by the World Bank with the support of ECLAC20, as well as other civil and public organizations from Argentina, Brazil and Mexico. These three countries based this project on the realization that there was a specific need to develop basic tools to strengthen the implementation of environmental guidelines because we do not have certain evidence that these guidelines are effective or efficient in their application. In this way, they recognized the importance of using enforcement indicators to evaluate the degree of application and the level of compliance on the part of the regulated community.
18
Please see: www.inece.org For the Brazilian case see: http://www.planetaverde.org/include/project.pdf ; for the Argentine case see: http://www.farn.org.ar/investigacion/polamb/index.html#1 ; for the Mexican case see: http://www.ceiba.org.mx/ 20 ECLAC contributed to the development of the project in various ways. See: http://www.ECLAC.org/cgibin/getProd.asp?xml=/dmaah/noticias/discursos/4/20844/P20844.xml&xsl=/dmaah/tpl/p4f.xsl&base=/dma ah/tpl/top-bottom.xsl 19
29
FARN- 2009 Annual Environmental Report- English Version
Brazil’s case21 had interesting results in the approach to topics such as water, air, and deforestation. This last topic is so sensitive that the publication of the data on deforestation could provoke the resignation of the environmental authority, because the information presented does not meet the expectations of the authorities or of society. This topic is not only important in Brazil’s political agenda, but in our entire region—the rise in greenhouse gas emissions is tied to this activity—in the pressure economic sectors exercise over deforestation and the broadening of the agricultural frontier. Using these indicators requires identifying and analyzing which information is necessary to develop them, which in turn requires an interdisciplinary analysis carried out not only by juridical analysts but also by technicians and economists. The goal of this analysis is to determine whether a regulation is economically viable, whether it is recognized by the community, and whether its application obtains the desired results for the community as a whole. The methodology of this study requires reviewing documents, doing interviews, holding workshops and writing final reports. In addition, we must create a specific definition of what these indicators are and how they will generate quantitative and qualitative measurements—some examples of quantitative measurements are the number of inspections, the number of sanctions that apply to environmental matters collected, etc. These measurements or figures will demonstrate change or lack thereof, regression or advance, systematizing and giving meaning to complex phenomena. There are direct connections between indicators of the state of the environment and sustainability indicators, a topic that the PNUMA, ECLAC, and many Latin American countries are working on. Creating these environmental indicators will show us the state of a sector, of an ecosystem, or a determined method around environmental conditions or qualities. These indicators propose to monitor and control the functioning of application programs and guarantee the responsibility for the performance before legislative bodies. VI. Accountability Accountability is a task that many countries are not accustomed to, but it is a legal mandate and serves to demonstrate that the environmental policy objectives that have been established in laws are being adequately met. In this way we can see how the budget was managed and whether it was adequately executed or not. There are countries in our region in which budget assignations for auditing are returned at the end of the budget period because they were not even used. Accountability practices also helps to evaluate and improve methods and to constructing programs for application and enforcement of the law. There are various benefits of indicators, such as improving the control of program functioning and improving the capacity to establish objectives and adequate strategies. They contribute to the retrofitting or orientation of application and enforcement programs with those of other sectors or for application to ecosystems that require special attention. Indicators contribute to clarity on 21
For Brazil’s case see: http://www.ECLAC.org/publicaciones/xml/8/31998/W156.pdf
30
FARN- 2009 Annual Environmental Report- English Version
financial matters and help decision-makers prioritize the assignation of scarce resources. Another benefit is tied to the capacity to identify and correct problems related to institutional functioning, increasing civil servant motivation and improving their capacity to communicate with and relate to the public. That is, society as a whole is watching what the environmental authority does and demands transparency in its public statements: they demand the permanent application of the law. The study identified which type of application and enforcement indicators currently exist in the case study countries, analyzed the application of these indicators on specific topics, and proposed recommendations for improvement. The intended recipients of this analysis were application agencies, the majority of which are public. However, the analysis was directed not only at public agencies that are dedicated directly or specifically to environmental matters, but also at others at different levels, such as economic activity regulatory entities, which had previously been State agencies but are now privatized, regulatory entities which monitor public services, the regulated sector and civil society as a whole. The methodology to create indicators involves determining initial, intermediate, and final indicators, and the environmental data collected shows us the situation or state of a determined environment. The current challenges around indicators are tied to the need to perfect this methodology, when there is a significant advance in certain developed countries, although we feel in our Latin American and Caribbean region that we are in the condition to carry out any kind of task in this sense. To do this, we must gather the involvement of principal actors, that is, in what way the regulated community knows it should comply with these environmental policy objectives and in what way to incorporate other environmental policy actors into the process together in order to review the effectiveness of the guidelines. In that sense, the explicit policies are clear, that is, to perceive whether environmental policy objectives associated with investment promotion policies are reached or not, whether the tourism sector of a Caribbean country—with high tourism incomes—are developed sustainably or not, whether or not they have the capacity to use certain natural resources as a source of income. The challenge is in determining whether tourism development is occurring in sectors that make environmental sense or require special attention from state agencies. A visible example in various countries is the borders or coasts, which are the focus of the pressure of tourism development activities and usually are the site of the collision of interests of various policy sectors. It is also a challenge to associate these application and enforcement indicators of environmental guidelines with institutional indicators of sustainability, and to ask ourselves whether these institutions are functioning, or better: Are the institutions functioning? Do they have sufficient capacity to exercise their control functions? Do they have the resources to do so? Are they achieving the desired results? Why or why not?
31
FARN- 2009 Annual Environmental Report- English Version
VII. Final Comments The purpose of this contribution has been to explain certain concepts useful in improving transparency and generating better information in the public sector. It appeals to a realistic vision of environmental law which should focus not only be conservationist, but also balanced with the need for sustainable development. Will we impede development of our countries’ tourism sectors? Will we prohibit or abruptly limit investments in the mining sector? Will we completely limit investments in the forestry sector that is currently a prime market and will certainly diminish the economy? The idea is to authorize these projects but under an expectation of solidarity. Our communities need to develop and to access goods and services—without entering into the dispute over whether said necessities are real or superfluous—without endangering the objectives of society as a whole, which should be taken foremost into consideration during decision-making. Another aspect that must be taken into account is institutional capacity, not only in environmental matters but also everyone who has some responsibility in the application and compliance with environmental norms. We must evaluate the effectiveness of environmental sustainable development policies as they are reflected in laws, not just environmental issues. Are laws oriented toward a sustainable objective or not, or how can they contribute to a more sustainable objective? We are talking about who is responsible for the task of creating guidelines, not only in the scope of the federal or national legislature, but also in sub-national (state or province) and municipal (local) territories. In addition we must consider technical guidelines: what role do technical guidelines play in the facilitation of application and enforcement? Relying on indicators of application and enforcement is not complicated; we must make the political decision to use them. We can begin with basic systems within the framework of the national environmental authorities, as well as within the sub-national scope, but they must be designed, constructed, applied, and evaluated. This will significantly facilitate the ability to achieve public policy objectives—not only environmental but all public policies—as a social objective of the community as a whole. And this exercise of application and enforcement of environmental law must begin with information gathering, which should be an ongoing endeavor. Finally, we must take a stand against existing pressure to substitute market instruments as instruments of command and control. Our recommendation is that we must have a permanent balance between the utilization of market instruments and instruments of command and control in this matter, that is, one cannot substitute for the other.
32
FARN- 2009 Annual Environmental Report- English Version
Climate Change: Judicial Instruments and Scenarios Post-Kyoto BelĂŠn Esteves Trade and Sustainable Development Coordinator for FARN Agnes Sibileau Lead Professor of Environmental Law Clinic University of Buenos Aires-FARN Translated by Toni Funk
Executive Summary Climate change is an indisputable fact and, as such, presents one of the most important challenges that countries will face in this century. While the governments of the leading countries in greenhouse gas emissions discuss their responsibility in global warming, the planet is still suffering from the consequences: lost ecosystems, drought, increase in sea level, and others. The success of the negotiations in the international field and the obligations countries assume in order to reduce their greenhouse gas emissions for the period post-2012 will be determinant for this great challenge that is imposed on humanity.
I. Introduction to the International Judicial Instruments on Climate Change a) The United Nations Framework Convention on Climate Change The United Nations Framework Convention on Climate Change (UNFCCC) was signed in 1992, during the Earth Summit held in Rio de Janeiro (Brazil). The UNFCCC defines Climate Change as the change of climate attributed directly or indirectly to human activity that alters the composition of the world atmosphere and that is in addition to the natural variability of the observed climate during period of comparable weather. The objective of the Convention is the stabilization of the concentrations of greenhouse gases (GEI)22 in the atmosphere at a level that impedes dangerous interferences in the climate system, which should be achieved in sufficient time in order to permit that the ecosystems adapt naturally to the climate change, assuring that the production of food is not going to be threatened and permitting that the economic development continues in a sustainable manner. 22
According to what is established in Annex A of the Kyoto Protocol, the 6 greenhouse gasses are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), hydro fluorocarbons (HFCs), per fluorocarbons (PFCs) and sulfur hexafluoride (SF6).
33
FARN- 2009 Annual Environmental Report- English Version
In this sense, the countries which have ratified the Convention have the obligation of confronting climate change, adapting themselves to its effects and reporting their actions in order to implement to the Convention. b) Kyoto Protocol In the Framework of the Convention on Climate Change, the Conference de Parties23 (COP) carries out a fundamental integrated role for all countries that are part of the Convention of Climate Change. The Third Conference of Parties (COP 3) took place in Kyoto, Japan in 1997 and adopted there was the “Kyoto Protocol”, a document which defined, for the first time, concrete goals and quantified, specific, emission limits of Greenhouse Effect Gases. The Protocol recently came into effect in the year 2005 with the ratification of Russia that allowed it to be up to the sufficient quantity of countries to achieve said objective24. This Protocol is the only international legal instrument that establishes obligations for the limitation of greenhouse gases. For this reason, industrialized countries (listed in Annex I of the Protocol) have arranged that their greenhouse gas emissions do not exceed the attributed quantities and so that they diminish in the years 2008-2012 in the total of their emission as an inferior level of no less than 5% with respect to that of 1990 (for example, if in 1990 it was 10, in 2012 the country must have reached levels of 9.5). The Kyoto Protocol currently represents the only international mechanism to confront climate change and minimize its impacts. II. Current Scenario of International Negotiations for Climate Change There exists a historical dispute about the responsibilities must countries assume with respect to Climate Change, this being one of the key points in the international negotiations. In this sense, developed countries have a historical responsibility based on their disproportionate contributions to global climate change. Now, there are also certain developing nations that contribute to global warming with the same intensity as the “greater powers”, which is the case of China, following by India and Brazil, and other smaller economies. Judicial recognition of the principle of the “common but differentiated responsibilities” is an aspect that derives from express mention in article 3.1 of the United Nations Framework Convention on Climate Change and in article 10 of the Kyoto Protocol. This judicial recognition refers to the existence of different contributions by states to the degradation of the world environment and to climate change, especially those of developed nations based on the pressures their societies exert on the world environment, 23
Their principle functions are to examine and evaluate the application of the Convention and those assumed compromises, the new scientific discoveries and the obtained experience in the application of the policies related to climate change, the national Communications and the greenhouse gases presented by the Parties, the effects of the means adopted by the Parties and the progress made on the framework of the agreed goals of the Convention. 24 The entrance in vigor of the Protocol implies that outside ratification by a small quantity of countries (55) that in addition must have represented at least 55% of the total number of greenhouse gas emissions.
34
FARN- 2009 Annual Environmental Report- English Version
as well as the different access they have to technology and financial resources. Therefore, the principle establishes different standards which imply the imposition of distinct obligations to states in proportion to their contribution to global warming. In this context, the international community is looking to the United States, which argues for the need for obligations by the developing nations previously mentioned, conditioning the agreement and the assumption of responsibility even as faced with the destabilization of the planet’s climate system. It is important to emphasize that the United States is one of the countries with the highest levels of emissions and contributions to global warming. Therefore, the greatest expectation is placed on the present American administration, in hopes that this country will assume its historical responsibilities in the international forum. With this complete international panorama, the negotiations continue toward the establishment of a future regime that must come into effect when the first period agreement (2008-2012) of the Kyoto Protocol concludes. a) COP 13. Indonesia, Bali The thirteenth Conference of the Parties (COP 13) took place in Bali, Indonesia in 2007. It was at this Conference that, for the first time, governments recognized scientific data that proved that global warming is unequivocal and that the delay en the actions of the mitigation will only increase the risk of major impacts on the climate system. The principal result of this negotiation was the adoption of a document called the “Bali Roadmap� that outlines the agreement post-2012 (commonly called Post-Kyoto) that would begin in 2013. The Bali Roadmap was the product of two years of negotiation aimed at generating consensus as regards the content of the post-2012 regimen. This process must conclude by 2009 in order to present its results at COP 15, in Copenhagen (Denmark), a meeting that should give way to an international global agreement to succeed the Kyoto Protocol. The Bali Roadmap contains the questions that must be negotiated, establishing four main blocks of negotiation Mitigation, Adaptation, Technology, and Financing. An interesting piece of information that is worth emphasizing is that the established plan of action is led by an Ad Hoc Working Group which Argentina together with Australia has been nominated to preside over25. As a corollary of Bali, developing countries pledged to take actions to mitigate the effects of climate change although these actions do not imply any obligatory compliance. In addition, these actions are conditioned by the financing offered by developed countries.
25
Argentina also presided in the Working Group of the Mandate of Berlin that gave the origin of the Kyoto Protocol.
35
FARN- 2009 Annual Environmental Report- English Version
b) European Actions: “The Paths to Copenhagen”26 On occasion of his visit to Argentina in September, 2008, Dr. Maas Goote, Head of the Delegation of The Netherlands for the negotiations about Climate Change and soon-to-be Head Negotiator of the European Union for the Bali Action Plan, gave a conference entitled “Climate Change: The Paths to Copenhagen.”27 There, he discussed the initiatives that are being brought forward by the European Union. Among the goals to be reached by 2050, are the reduction of emissions by 50% of the current levels; the stabilization of the climate system with an increase in the global temperature not surpassing 2ºC; and the implementation of the development policies, taking into account this reduction of emission in the framework of sustainability, as a global standard for the wellbeing of all nations. Also presented were the necessary steps to comply with the mandates of the last climate summit in Bali, December 2007. The European Union considers that it a priority to advance in accordance with the priority areas established in Bali. Therefore, it requires: In the aspects of mitigation – although the developed countries are primarily responsible for the actual situation and for that reason must be the main contributors to the reduction of emissions – it is also important that the developing countries do so28. With respect to the actions of adaptation, it is paramount to implement policies of an urgent manner given that the processes of climate change have already begun. It is particularly important for the developing countries that are the most vulnerable to these changes. Developed countries also need to carry out policies of adaptation. In relation to the funding of relevant policies, there is need for a new financial architecture that permits nations to bear the costs of mitigation, adaptation, and promotion of sustainable development. In this sense, the private sector has a preponderant role given that the market depends on their actions. With regards to technology, innovation is necessary in order to develop and implement new technologies that are energy efficient and emits less carbon. Lastly, with respect to the axis of Governability, he mentioned that governments must assume responsibility for their fundamental obligation to agree and establish clear regulatory systems that allow for the control of emissions and to promote a framework of solidarity and equity in order to achieve sustainable development.
26 We are very grateful, especially of material given by Dr. Pablo O. Canziani about the Conference “Climate Change: The Paths to Copenhagen” held September 2008 at the Universidad Católica Argentina. 27 Conference “Climate Change: The Paths to Copenhagen”, September of 2008, held at the Universidad Católica Argentina (UCA), by the Embassy of The Netherlands in Argentina and the Interdisciplinary team for the Study of Atmospheric Processes in Global Change, dependent on the Institute for the Integration of Knowing of UCA. 28 For example, the deforestation, principally in developing countries, today represents 20% of global emissions, being one of the principle sources of greenhouse gases.
36
FARN- 2009 Annual Environmental Report- English Version
c) Cop 14. Poznan, Poland29 In December of 2008, the 14th Conference of Parties was carried out in Poznan, Poland. This meeting formed part of the path begun in 2007 in Bali, which has as a final destination the COP 15, to be held next year in Copenhagen, in hopes of reaching an agreement for complete implementation of the international climate regime established in UNFCCC. In relation to the revision of the implementation of obligations and other provisions of the Convention, the Conference addressed the themes of financing, technology transfer, national communications, capacity building and others. With the respect to the fourth revision of the financing mechanism, the decision of COP invites developed countries to give necessary and corresponding contributions in order to ensure a fifth successful contribution to the GEF (Global Environment Facility)30. The necessity of providing better access of such funds for developing countries and other related questions were emphasized. In relation to technology transfer, it was agreed to require the GEF to initiate and facilitate the preparation of projects for the approval and implementation of a strategic program to increase investments in technology transfer. In this sense the strategic program was renamed the “Poznan Strategic Programme on Technology Transfer.” With respect to the access that developing countries have to financing from the Adaptation Fund (AF), it was achieved to grant legal capacity to the Board of AF so that non Annex I countries have direct access to said funds and can negotiate without intermediaries issues relative to the access of financing for adaptation measures, although a number of procedural issues remain to be determined. Likewise, issues related to the Clean Development Mechanism (CDM) were discussed. Specific topics on CDM included changes in the structure of government, the criteria of additionality, methodologies and the geographic distribution of projects currently concentrated in countries like Brazil, China, and India. For its part, Brazil presented a proposal to consider extending the criteria of eligibility in order to cover “land with forests in exhaustion” under CDM activities of forestation/reforestation. Also, Saudi Arabia proposed analyzing the inclusion of the “capture of storage of carbon in geological formations” under the CDM31. The decisions that were reached do not reflect significant changes in the actual structure of the mechanism (CDM), but the negotiations will continue during all of 2009.
29
For more information go to: http://www.ambiente.gov.ar/?idarticulo=5942 The Global Environmental Facility (GEF) was created in 1990 in order to channel finances with the aim of confronting the so-called “global environment problems”: climate change, destruction of biodiversity, the hole in the ozone layer and the contamination of international Waters. This provisional fund is for use in three agencies: the United Nations Program for Development, responsible for technical assistance, the United Nations Environmental Program, which proportions scientific support, and the World Bank, responsible for the investment projects and the administration of the Facility. 31 Estas propuestas serán examinadas por la Junta Ejecutiva, quien tendrá en cuenta aspectos técnicos, metodológicos y legales para determinar la inclusión o no de estas propuestas al MDL. 30
37
FARN- 2009 Annual Environmental Report- English Version
Inside of the Special Working Group about the Future Commitments of the Parties of the Annex I in the framework of the Kyoto Protocol (GTE-PK) related matters were discussed with the future commitments of the Annex I Parties (post 2012) and the mitigation and to the flexibility mechanisms, and others. The discussions about the CDM in the framework of this group were postponed for the next year, as well as the theme of the emissions arising from international commercial aviation and maritime transport. In the confines of the Subsidiary Body for Scientific and Technological Advice (SBSTA) the following topics were addressed: a) Reducing Emissions from Deforestation and Forest (REDD): there were advances in relation to the possibility of working on projects of a sub-national scale, a key question for Argentina. Also addressed were issues related to indigenous peoples and local communities for the development and application of methodologies in the framework of REDD. The possibility emerged of generating written position papers for each country on those themes. In the conclusions the Secretariat was asked to elaborate a technical document on the costs for implementation of the methodologies and monitoring systems. b) In the framework of the Program of Nairobi about impacts, vulnerability, and adaptation, a debate was posed about the creation of a Group of Expert in Adaptation. The proposal was led by the G77 but blocked by the EU, USA and Japan, among others. Nevertheless, the Parties eventually agreed to expand a list of experts instead of a Group of Experts and to make written presentation with the possible names to be included in the same. c) In relation with the establishment of a more ambitious agreement to which the parties have promised to arrive in December 2009, the Special Working Group on long term cooperation of the framework of the Convention (GTE-CLP) discussed aspects related to the four blocks of the Bali Action Plan (mitigation, adaptation, transference of technology and financing) with a joint global vision. Nevertheless, due to the opposition of some developing countries, these issues were not discussed in profundity. On the other hand, no agreement was reached on the establishment of a working group on REDD under the sphere of GTE-CLP, as the majority of Latin American countries, including Argentina, were pressing for. In terms of mitigation, the countries of Annex I proposed the concept of comparability of forces between developed countries and the differentiation between developing countries, arguing based on the changes seen in many countries since the celebration of the UNFCCC in 1992, where the original divisions were established. Various countries presented different indicators that would serve as criteria for being able to carry out a new grouping or differentiation between the Parties. At the same time, it was proposed to establish a Registry for nationally appropriate mitigation actions in developing countries, which with continue to be debated in 2009.
38
FARN- 2009 Annual Environmental Report- English Version
With regard to the development and transfer of technology and financial flows, the most significant proposal was that of the G77 and China for the creation of an organ dedicated exclusively to this issue, which would coordinate and monitor all of the actions carried out by the Parties. Argentina proposed as a possible first action of this new organ the creation of programs to integrate existing centers of investigation and technology, in multilateral schemes of North-South and even South-South cooperation. These programs would not only permit joint advancements in the development of new technologies and adaptation of existing technology, but would also in promote joint industrial endeavors thus reducing barriers related to intellectual property rights. III. Scenario in Argentina Argentina ratified the United Nations Framework Convention on Climate Change by way of Law 24.295 in the year 1993. At the same time, by Law 25.438 of 2001, Argentina approved the Kyoto Protocol of the United Nations Framework Convention on Climate Change. In this context, it is important to emphasize that our country does not pertain to the Annex I and as such is not obligated to limit greenhouse gas emissions. Nevertheless, it does have certain obligations, basically relating to the formulation of national and/or regional programs in order to better the quality of the factors of emissions in order to mitigate the climate change, both through the dissemination of information and through cooperation in the transfer of technology and strengthening of capacities (article 10 of the Kyoto Protocol) With respect to the “Inventory of Green House Gases”, in conformity with the established in the framework of the UNFCCC, the exchange of information between the Parties turns out to be of some importance and requires that its members present with regularity the socalled “national communications” as a means to track the effectiveness of the convention. In this context– by means of the Project ARG/95/G/31 PNUD/SECYT– Argentina implemented a project of study about climate change. In the month of September of 1997, it presented the “First Communication of Government of the Argentine Republic” which provided a detailed inventory of the greenhouse gases present in our country, at the same time discussing economic sectors that influence the production of greenhouse gases, explaining the policies and the methodologies used by the government in order to measure and explain these phenomena. At the end of 2006 Argentina concluded it “Second National Communication” and it has now begun to elaborate the “Third National Communication.” With respect to the role of our country in the international negotiations, the analysis of options for the post 2012 period have occurred not only in the formal sphere of negotiations, as observed previously, but also on an informal plane. Within the framework of informal international negotiations on climate change, Argentine was host to the “El Calafate Southern Lights Dialogue” that took place in September 2008 in the city of Calafate (Santa Cruz). It was the fourth in a series of informal meetings organized by the National Ministries responsible for issues of climate change in some of the leading countries. Although there was there was no decision or common agreement generated, these dialogues allowed for greater consensus by diminishing the barriers in the global technical negotiations in a more informal environment. Specifically, these “dialogues”
39
FARN- 2009 Annual Environmental Report- English Version
have the objective of formulating and generating consensus among the policies of participating countries in order to be able to guide the negotiations of the Climate Change in the framework of the UNFCCC. “El Calafate Southern Lights Dialogue” focused on a series of issues of primary importance for the actual negotiations, in particular towards the COP 14 of Poznan, Poland. At the same time, it made reference to the agreement of the actual state of the negotiations and, considering the short time until Copenhagen, the need to generate political alignment that could guide the way toward a just, equitable, and effective agreement and to achieve, in the Framework Convention about Climate Change, a clear but demanding solutions for the global crisis on climate change. The Ministries present there considered that adaptation to climate change that was not an option but an obligation of all the countries, and for some a question of survival. The argentine hosts stressed the importance of providing of financing for adaptation and to support mitigation efforts in developing countries. In relation to mitigation specifically, the delegations agreed that the efforts must be shared of equitable form, but that developing countries should lead these actions. However, this perspective recognizes important differences: while for industrialized nations mitigation measures must be taken in terms of the reduction of emissions, for developing countries only can be implemented in the context of sustainable development. It also emphasized the necessity of putting into place mechanisms and action for supporting the development and transfer of technology that helps to mitigate the greenhouse gas emission. In this sense it concludes that, at a global level, it is necessary to insure that incentives exist in order to allow the best effort possible of all countries. IV. Scenario in the MERCOSUR Region In July of 2008 in the city of Colonia, Uruguay a seminar was held. Its title was “Justice and Environment: the environmental challenges that face the State of Right: judicial effect of global warming”32. In the framework of the seminar a facilitated dialogue occurred between experts of diverse sectors of Argentina, Brazil, Paraguay and Uruguay. The dialogue was based on the presentations given by representatives of the diverse countries and sectors: judicial, public administration, private sector and civil society. At the same time, it used specific questions to connect the problems analyzed with the objective of creating and intersectional analysis in the countries of MERCOSUR. The purpose was to identify the challenges currently presented by Environment and Climate Change, and search for holistic solutions that are socially and individually just. Based on the aspects of the debate that reached a consensus, the following priorities were established: 32
Organized by the Konrad Adenaue Foundation (Uruguay) and FORES – Forum of Studies about the Administrations of Justice and the Environment and Natural Resources Foundation (FARN) and the Brazilian Institute of Judicial System Administration (IBRAJUS) on the 31st of July and the 1st of August of 2008 in Colonia, Uruguay.
40
FARN- 2009 Annual Environmental Report- English Version
1. The need for a transnational system for the engagement of the environmental issues including Climate Change. 2. The Establishment of Public Policies that prioritize means of mitigation and adaptation. 3. Articulation between sectors and levels of government. 4. The need to promote the changes in consumer practices through information and targeted public policies. The following issues were considered: a) International and Regional Plans The following needs were identified: • To separate the historical responsibilities of the developing countries from future obligations, in the framework of sustainable development. At the same time, developing countries must seek to limit emissions and assume commitments in compliance with the environmental public order. • To consider other international tools (for example the Convention on Biodiversity) and to articulate them with climate policy and other international instruments. • To employ the structure of MERCOSUR as an instrument of coordination between and to articulate fluid information exchanges at regional level between Ministries or Secretaries of the Environment in MERCOSUR countries and Latin America. • To work towards internal government discussions, in MERCOSUR and the region, and to fortify the SGT6 of MERCOSUR and the participation of the OSC in the subgroup of SGT6. As well, a greater diffusion of the activities of SGT6 is needed. It was proposed that integration must be initiated at the base in order to later advance in regional integration (this the recommendation applied also to the National Means).33 • To advance in the discussion Post 2012 at a regional level and consequently to establish a regional strategy for the international discussion. • To articulate efforts produced in regional and national dialogues. • To act urgently in relation with the organization and regional strategies. • To establish a common legal framework for the treatment of environmental problems and climate change.
33
Added by Nazarene Castillo, Office of Climate Change, Secretary of Environment and Sustainable Development.
41
FARN- 2009 Annual Environmental Report- English Version
The sovereign decision of states must include the possibility of transnationality in the Constitutions of Brazil and Uruguay. It was stressed that constitutional reform is fundamental and the following points must be addressed: • To create a Transnational Organ of Justice in MERCOSUR. • To apply, in the framework of MERCOSUR, the principles of prevention and precaution, international environmental rights and MERCOSUR environmental norms. • To transfer technology and funds for climate change adaptation in developing countries. • To strengthen the role of Civil Society Organizations (CSO’s) and academia for joint work with the governments in the sphere of MERCOSUR. • To organize to the existing Networks of all Latin America, including and especially Ecuador and Peru with the purpose of working on the common problems linked to global warming. The lines of work should include deforestation, the uncertainty with respect to the future of the deltas, and urban level initiatives, among others.
b) National Plans In terms of rights, policies, and institutions, the following needs were identified: • To establish a common agenda that contemplates the particular circumstances of Latin America. • To implement long term state policies with regards to Climate Change that go beyond the political junctures of government administrations at local and national levels, with particular attention to efficacy, transparency and communication about administrative actions as well as continuity of policy agendas. • To articulate between different agencies of the government and at the different inter-jurisdictional levels. • To influence the Legislative Power with the aim of producing changes. • To coordinate between the executive and judicial branches of government, inciting the executive to act spontaneously in compliance with environmental norms and avoid the judicialization of environmental disputes. In the judicial, it is necessary to promote legitimacy and capacities for the implementation of rulings.
42
FARN- 2009 Annual Environmental Report- English Version
• To articulate the modernization of existing norms (Uruguay) and, in countries which already have such norms, to deepen and improve the application of the same. • To raise awareness among and prepare judicial operators with respect to the judicial goods that must be guaranteed (through seminars and courses). • To establish clear and stable rules and regulations taking into account long term needs and objectives. • To promote institutions and reliable markets for the opportunities presented by Climate Change. • To reduce uncertainty factors by creating an adequate environmental monitoring system, even when those who decide must adapt to the probable scenarios. • To invest in the research on Climate Change and carry out economic evaluations of the impacts of non-action. In terms of information, the following needs were identified: • To guarantee ample access to public information (not only environmental) which is factual, up to date, free to access, and adequately systematized. • To raise awareness and formally educate society about the problem(s) in question. • To communicate about the effects of climate change and make them accessible to the public, especially in regard to other public concerns such as water, waste management, and environmental health, etc. In terms of over-arching conceptual guidelines, the following needs were identified: • To pursue economic development in the framework of sustainable development. • To revise consumer practices (by means of mass communication policies, awareness-raising, formal education, others). • To establish mitigation policies at a sectorial level and in the decision making process. • To establish criteria for the prioritization of funds for adaptation measures between and across regions. • To promote application of the precautionary principle by the Judicial Power, given that the only certainty is uncertainty in many environmental issues.
43
FARN- 2009 Annual Environmental Report- English Version
• To study the viability of implementing environmental insurance for activities with impacts on the generation of greenhouse gases that affect the capacity for adaptation to Climate Change. • To insist for the effective incorporation of environmental insurance measures in relation to Climate Change. • To incorporate the topic of Climate Change by way of voluntary mechanisms, for example, in the diverse instruments of Corporate Social Responsibility. • To create economic incentives that stimulate production processes based on clean technology. V. Conclusions The first period of commitments established in the Kyoto Protocol has demonstrated some failures and some successes. It is necessary therefore necessary that the post-2012 agreement take into account these antecedents. The summit in Bali makes clear the lack of effectiveness and need to develop a more comprehensive agreement than the Kyoto Protocol to achieve the objectives of the Convention. At the same time, it is necessary that whatever agreement reached on the post-2012 regime incorporate obligations by the United States, since it is one of the principle countries contributing to global warming. It is essential that the results of the negotiations for the next period of compromise allow for the sustained growth of developing countries, while simultaneously contemplating actions of mitigation of greenhouse gases on the part of these countries. In this sense, it is necessary that the more advanced economies lead these actions and collaborate in a concrete manner to search for solutions. With regards to adaptation, it is necessary to contemplate urgent actions and plans to address the changes that have already occurred as well as those to come. It is clear that the developing countries are the most vulnerable to Climate Change and will thus require greater support to confront adverse situations. Technology transfer is also essential in order to achieve the necessary support by developed countries – those mainly responsible for emissions – to developing countries and to advance sustainable growth. It is also necessary to apply, in the framework of the negotiations, a systematic analysis that goes beyond a mere obsession with costs. The solutions needed are multiple and not exclusively economic in nature. Lastly, the most fundamental measure both for developed countries and for developing countries will be the incorporation of new models in a sustainable paradigm that guarantees that productive activities satisfy the needs of present generations without compromising those of future generations.
44
FARN- 2009 Annual Environmental Report- English Version
Cellulose Plants in the Uruguay River Basin After The Hague: Possible Integration in a Realistic Institutional and Community Framework By Jorge Oscar Daneri Lawyer specialized in Environmental Law, Coordinator of Projects for the M’Biguá Foundation, Citizenry and Environmental Justice. Paraná, Entre Ríos Translated by Lauren Coffaro
Executive Summary There are no legal doubts, or clearly and lamentably political doubts, that the government of Argentina should recur to the International Court of Justice (ICJ). However, doubts still exist as to the reasons for this delay in presentation at the ICJ. The Argentine government’s own contradictions are marked in the different moments of social and political character. Finally the demand has been presented before The Hague, as well as two required precautionary measures, dismissed by the ICJ as much for Argentina as for Uruguay. The violation of the Statute of the Uruguay River is clear: this is the legal position of the national government. The Argentina Chancellor has noted, moreover, the lack of access to relevant technical information. The problem is the projection of mega cellulose plants in the whole basin that do no not have mandatory Strategic Environmental Evaluations, especially due to the fact that MERCOSUR lacks a regulatory framework for the joint evaluation of feasibility and socio-environmental impact studies in undertakings of this kind in shared basins. If the Directive 2000/60/CE from the European Parliament and from the Board (for the establishment of a community framework of action in the field of water politics) were the applicable legal regulation for the Uruguay river basin, the location of Ence, Botnia and other mega plants of cellulose paste of equal or greater scale would be impossible and thus absolutely unviable. The good ruling of the ICJ should express that: 1) they cannot sanction Environmental Impact Studies and grant plausibility to mega projects and undertakings without stipulating an agreed-upon program of protection, preservation, and sustainability; 2) the relevant states are obligated to apply the precautionary principle; 3) they should execute studies of the accumulated environmental impact and a strategic environmental evaluation of the basin; 4) the governments of the Uruguay river basin should conform to a community norm of self-sustainable processes. A process of socially legitimized and democratic integration is not viable without the integration of the people themselves in a participatory process. The ICJ has the possibility of a beneficial ruling in its hands that could be a historical lesson, relevant for the peoples and the governments of the world.
45
FARN- 2009 Annual Environmental Report- English Version
I. Introduction34 There are no legal doubts, or clearly and lamentably political doubts, that the government of Argentina should recur to the International Court of Justice (ICJ). Neither is there relevant analysis that the said decision was adopted late. The attitude of the Government of Tabaré Vázquez at the start of its mandate was determined by a deep social frustration in Entre Ríos and a political rationale that directly conflicts with the campaign discourse of the Frente Amplio.
Moreover, to resort to The Hague in no way was obstructing the political dialogue, negotiation, mediation, facilitation, and the search of an agreed-upon solution. This was the correct path to take before the intransigent politics of Uruguayan governments of different political colors, which systematically and repeatedly took actions in violation of the Treaty of the Uruguay River, as with other norms of international public and environmental law about the management of waters and basins. Since the start this social process has claimed the inexistence of environmental impact studies, the incompliance of the Statute of the Uruguay River, the lack of a clear Environmental Protection Plan on the part of the Administrative Commission of the Uruguay River (CARU), and moreover the inexistence of Strategic Environmental Studies in the bird river basin (EAE).35 Doubts exist as to the reasons for this delay in presentation at the ICJ. The Argentine government’s own contradictions are marked in the following examples and possibilities: 1. The negotiation of the Ambassador García Moritán before the Administrative Commission of the Uruguay River, weak points in Argentina’s diplomatic action to which I will not refer for various reason and prudence’s sake, except to say that I did not bestow any merit so that the said official would have the responsibility of exercising the political office of the “second” chancellor of the Republic. 2. The inexistence of will and political conviction to resort to the maximum international tribunal. 3. The social facts that, with unknown characteristics in the original process, forced the National Government to adopt roles and decisions never known before in national history, with the delicate aggravating factor that the stage of bilateral conflict did not seriously exist in the political agenda and was only visualized in a small scale by a few members of the diplomatic body of the Argentine Chancellor. 4. The speculation that with the arrival of Tabaré Vázquez to the government of the sister nation everything would change. Surely this was the greatest surprise and 34
The present article is based on an article by the same author entitled “Algunas consideraciones jurídicas y políticas sobre la instalación de plantas de producción de celulosa en la cuenca del río Uruguay,” published in the magazine Revista de la Asociación de Magistrados y Funcionarios del Poder Judicial de Entre Ríos, in November 2007. 35 Daneri, Jorge Oscar, “Principio Precautorio y Plantas de Celulosa” Environmental Law supplement of the magazine La Ley, June 2004.
46
FARN- 2009 Annual Environmental Report- English Version
impotence of the national administration in regards to this socio-environmental conflict, but even more so in the very community of southern Entre Ríos. It is true that there existed a strong hope about what the Frente Amplio could modify while in power. Remember that the works in Botnia had not started yet. 5. A key year, like a point of inflection, was 2005. The embrace of the international bridge of 40,000 human beings that April 30 in Gualeguaychú. Eight ministers and ambassadors of the Argentine Chancellor in Honorable Deliberation Board of Gualeguaychú agreed upon a “national position.”36 The first meeting with the President of the Nation and some of his Ministers. Tabaré Vázquez arrived to power. All milestones to unknown civic process and unfamiliar in the Republic.37 6. The electoral process in Entre Ríos, starting in October 2007 for national office, also forced diplomacy on Entre Ríos that was more than “delicate” and would guarantee the continuation of the governments of the province. II. The ICJ in the Present Finally the demand was presented before The Hague, as well as two required precautionary measures, dismissed by the ICJ as much for Argentina as for Uruguay, respectively, should have emphasized the judgment of the arbitration tribunal of MERCOSUR, that is not spoken of today yet is still relevant for any juridical and political analysis, as it should be, of substantial citizen and civic revision. The states in question have formulated a “Memory” (Argentina in January 2007) and a “Counter-Memory” (Uruguay in July 2007). In the proceedings of the ICJ, no one has access to said texts, except the national delegations integrated in large part by their lawyers and designated staff in the heart of the respective states Offices of Foreign Affairs. The cited documents will be publically available when the tribunal so authorizes. As for the lawyers designated by the Citizen Environmental Assembly of Gualeguaychú, we only participated in the development of approximately fifty percent of the Memory. We then retired from the working group when our mandate resolved, in the middle of October 2006, to resume interrupted blockades of the international route, in disaccord with the legal and political considerations of those we were representing in the legal technical team of the Argentine Chancellery. Our participation in the legal team obliges us to maintain utmost confidentiality about all the events which transpired in said space. Some day, with the ruling of the ICJ, we will be able to express some other considerations about this experience. We can say now that it has been an honor to work with the Ambassadors Susana Ruiz Cerutti, Raúl Estrada Oyuela, and Dr. Daniel Sabsay, as well as the Gualeguaychú colleagues Ester Spoturno and Fabián Moreno Navarro.
36
See newspapers El Día y El Argentino de Gualeguaychu from July 29, 2005. Daneri, Jorge, “Otra visión sobre una lucha ciudadana, más allá de las celulosas.” Published in El Diario, Paraná, Entre Ríos in November 2005. 37
47
FARN- 2009 Annual Environmental Report- English Version
III. Some Relevant Points 1. The violation of the Statute of the Uruguay River is clear from the proceedings. This is not a reflection or judgmental analysis of the socio-environmental organizations (NGOs) nor the Citizen Environmental Assembly of Gualeguaychú. It is the position of the National Government which is expressed in many official documents and without a doubt in the final Memory before the ICJ.38 2. The Argentina Chancellery has noted, moreover, the lack of access to relevant technical information necessary for the evaluations of the environmental, social, and economic impacts of the technological processes on the society and its ecosystems. 3. The treaty of reciprocal protection of investments that the State of Uruguay has signed with Finland and its sanction in Congress is one of the greatest obstacles to the governments of the Southern Cone (MERCOSUR) with other countries of the South American Union. These countries have not known how to, or have not wanted to, conform to a juridical and political strategy to confront the treaty’s consequences since the political denouncements, revisions, and international litigation due to independent decisions that contradict these shameful treaties that in many ways are unconstitutional.39 4. Various sectors have demonstrated that the problem is not only the scale of Ence and Botnia, but also the projection of a range of mega cellulose plants in the whole basin that do not foresee the incorporation of Strategic Environmental Evaluations, let alone a minimally established judicial framework via Sub Group 6 of Mercosur. Likewise, the current regulations, like the Environmental Framework Accord of MERCOSUR, do not incorporate these ranges of mega intervention that, with rigor and appropriately regulated norms in its proceedings, would be an example of the Directive 2000/60/ of the European Union. In few words, MERCOSUR has no regulatory framework for the grouped evaluation of feasibility and socio-environmental impact studies in undertakings of this kind in shared basins. 5. Directive 2000/60/CE from the European Parliament and from the Board, for the establishment of a community framework for action in the field of water politics: Of contrasting judgments on water management processes between the North and the South.40 The sectors interested in the development of these mega cellulose plants in the Uruguay River Basin have forcefully sustained that they have completed and applied all of the most modern legislation of the so-called first world. This is not so. In an exemplary comparison, as to the applicability of Directive 2000/60/CE from the European Parliament and from the Board which establishes a community framework for action in the field of water politics, had this directive been applied in the Uruguay River Basin or if there were judicially 38
See for example: Informe de la Delegación Argentina al Grupo de Trabajo de Alto Nivel, available at http://www.cancilleria.gov.ar/portal/novedades/informe.pdf 39 Daneri, Jorge Oscar, “El ALCA y el derecho de autodeterminación de los pueblos. Soberanía o Negocio.” Separata REDES Biodiversidad, Sustento y Culturas, Montevideo, July 2004. 40 See Diario Oficial de las Comunidades Europeas: http://europa.eu.int/eurlex/pri/es/oj/dat/2000/l_327/l_32720001222es00010072.pdf
48
FARN- 2009 Annual Environmental Report- English Version
forced norms for the said basin, the result would be that Ence, Botnia and other mega plants of cellulose paste of equal or greater scale would be impossible and thus absolutely unviable in this shared water basin.41 Using this same rationale, to move the image of a diversity of industrial plants of this character in the Uruguay river basin to whichever European basin would lead to the failure of any initiative, be it in their country of origin of neighbors within the EU, of ventures of the characteristics that occupy us and anguish us today due to the scale and significance of their cumulative and synergetic socio-environmental and economic impacts. 6. Joint Monitoring board: A possible diplomatic agreement Previous to the national elections we had affirmed, in relation to a probable accord for the joint monitoring of the Plants or of Botnia,42 that if the friendly third-party mediation of the Spanish crown attempted advance a common framework of diplomatic responsibility and to bless such an agreement, it would no doubt be preferable that the agreement not materialize and that The Hague would be able to issue its ruling in full force. It appears that this will be the case. When we say “full force”, we say that if something will be significant or a speck then it is considered. The considerations of the resolutions about cautionary measures designated by the Court are mildly interesting or disturbing for various actors in this complete history and very rarely repeatable. Similarly, the considerations that can be expressed in the ruling background can be of a specific value and responsibility and unimaginable co-responsibility. A good ruling by the ICJ would be a serious problem for various officials, politicians, and diverse actors with interest in the cause, not only for the involved countries but also for the international financial corporations. IV. Conclusion After The Hague: Possible Integration in a Realistic Institutional and Community Framework As we affirmed,43 in relation to the responsibilities of the CARU and states involved, we now ratify that a good ruling from the ICJ should express the following: 1. It is impossible to sanction Environmental Impact Studies and grant plausibility to mega projects and undertakings without a coherent Program of protection, preservation, and sustainability of the Uruguay River and the territories that lie along its banks. Said program must be debated and constructed socially and politically with the intervention of Entre Rios, Corrientes, and Misiones, the corresponding federal states and departments of Brazil and Uruguay, and their social 41
Based on a complete reading of the Directive in question, the following sections must be highlighted: 13; 14; 16; 17; 21; 22; 33; 35; 36; 43; 44; 46 and Articles: 1; 4 Inc. 1, a); 5; 7; 8; 13; 14; y 16. 42 See Daneri, Jorge, “Morales Sola y sus afirmaciones, ejercicio ciudadano del principio precautorio,” El Diario, Paraná, July 2007, available at: www.eldiario.com.ar. 43 See Daneri, Jorge, “El Principio Precautorio y las plantas de celulosa en la cuenca del río Uruguay,” Suplemento especial El Argentino, Gualeguaychu, April 30, 2005.
49
FARN- 2009 Annual Environmental Report- English Version
and economic actors, duly considered and finally made the norm in the bi- and multilateral framework that conditions our relations. 2. The relevant states are obligated to apply the precautionary principle, attentive to the macroeconomic scale and productive model put to consideration and the potential severity of the social, ecological, and economic impacts, both direct and indirect, that the this productive model invokes. The Hague has a possibility of setting an important example in this sense, with historic and unprecedented characteristics. 3. They should execute not only studies of the accumulated environmental impact, but also a strategic environmental evaluation of the basin (SEE) in the framework of the previously agreed-upon regulatory framework between the involved states. Fragmented Environmental Impact Evaluations (EEI), that consider only specific projects, are not acceptable and instead we require a holistic and integrated vision of the basin and its management, as stipulated in the in the aforementioned European Directive Framework.44 4. Definitively, the governments of the Uruguay River Basin should conform to a community norm for sustainable management. Without all the previously expressed stipulations, advancement of the alleged process of political integration will not possible. A process of socially legitimized and democratic integration is not viable unless the people are integrated into a participatory process that is relevant and significant in the social and political construction of community norms, taking into account the debates and the consensus built by the communities present in the basin. Without these basic fundamental norms, there can be no serious or inclusive processes of integration. On the contrary, non participatory processes will only continue and deepen the fragmentation and hence the exclusion of certain sectors of our societies in the Southern Cone.45 Finally, and as we expressed on the 30 of April, 2005, “It is impossible to negotiate over something which has already occurred, in the framework of or with the condition of developing infrastructure in the region. This cannot be considered simply a commercial or investment negotiation. It should be the search for consensus on transitions towards greater social, economic, ecological, and political sustainability in the region, and not towards its definitive destruction”. V. Future Scenarios Victor Bacchetta, journalist of “Brecha”, asked “…if these or other international instances (for ex. The [CFI] of World Bank] do not finally oppose these projects, what will be the path for you all to follow? The world, our basins, and our territories are on the borderline of an emergency. We stand now before a crisis of civilization that has produced the only social and ecological crisis in the planet. The socio-environmental complications and uncertainties are so many and so significant, that we must rely on the 44
Directiva Marco 2000/60/CE. Moreno Navarro, Fabián and Daneri, Jorge Oscar, “Apuntes sobre las papeleras, el mayor dilema del Cono Sur en estos tiempos,” Environmental Law supplement of La Ley, Buenos Aires, June 23, 2006. Available at: http://www.farn.org.ar/arch/sup_deramb_jun06_1.pdf.
45
50
FARN- 2009 Annual Environmental Report- English Version
only and the most fantastic manner of debating what we want for our territories and ecosystems, the majority. By majority we mean the people, the masses, organized in the strength of their diversity and their knowledge, and integration of popular and academic knowledge. These and other plants cannot be installed in our basin. We cannot accept this simple and linear model. It is already sufficient with the vast expanses of genetically-modified soy, part of the crisis in Entre Ríos and other Argentine provinces. No more genetic soy and eucalyptus plantations devastating our soils, our biodiversity, our culture and the way of life of our people. The transition to social, economic, and ecological sustainability is constructed as the Basin of the Uruguay is doing it. We have no other alternative than to bet on the new models, thinking what has not been thought, and rescuing the history of our immigrant parents, with their strong capacity to generate and produce based on the coexistence of cultural diversity.46 The immediate future indicates the possibility of closure of the Botnia plant when its contamination is confirmed. This will give origin to a new conflict or aggravate the present conflict. If the Uruguayan state does not intervene, the CARU or the CIJ will have to, based on the filing of legal requests for closure by the Argentine state. Very unfortunately, Uruguay is deepening the conflict by insisting on unilateral authoritarianism in the management of this shared river basin and by not honoring the requests of the CIJ to do exactly the opposite. The CIJ has requested that is oxygenate and facilitate the negotiation, avoiding measures which deepen the social and political tensions over irreversible decisions (administrative authorizations and the construction of infrastructure without the intervention of the CARU). The ICJ has the possibility of a beneficial ruling in its hands that could be a historical lesson, relevant for towns and governments of the world, that indicates the minimum that can be done for the preservation, protection, and sustainability of freshwater basins, their territories, and their people, forever.
46
Published in Semanario Brecha, Uruguay, (7/10/05) “Con Jorge Daneri. La piedra argentina en el zapato” by Víctor L. Bacchetta.
51
FARN- 2009 Annual Environmental Report- English Version
Analysis of Social-Environmental Conflict in Argentina The Conflict of the Mining Industry: Emerging from the New Social-Environmental Conflict in Argentina Juliana Robledo Researcher at the Environment and Ecology Institute at the University of Salvador and Coordinator of Project “Platforms for Dialogue on the Development of Responsible Mining in Argentina�, executed by the Democratic Change Foundation (FCD) Pablo Lumerman Director of the Democratic Change Foundation (FCD) Translated by Natalie Popovich
Executive Summary The economic development model currently in crisis in Argentina, and in the world, is based on the unsustainable and inequitable exploitation of the environmental goods and services the planet provides. This model tends to encourage - especially in the current moment - the recurrence of social-environmental conflicts, involving relational and structural components, which must be understood in order to be effectively dealt with. This tendency presents a great political challenge for society, which must manage conflicts in a fair, democratic, and sustainable manner, in order to produce social, political, and economic change and to create a new social situation characterized by a greater state of human well-being and a better relationship between man and nature. The application of this model in Latin America has prioritized the production of raw materials with scarce value added and, consequently, the intensive exploitation of natural resources. It is not surprising then that the most important social-environmental conflicts have revolved around policies and projects related to natural resource extraction, tenure and land use, and access to water sources. In this context, conflicts linked to the mining industry have grown exponentially in the last few years, accompanying the increasing investment curve. Case studies demonstrate that mining conflicts have different trajectories and levels, including but not limited to the following issues: - The environmental situation due to contamination and availability of hydrological resources - The social-economic situation based on the distribution of the companies' royalties and taxes and their redistribution in the most-impacted communities
52
FARN- 2009 Annual Environmental Report- English Version
- The normative framework in which some claim secure investment conditions and others greater participation in definition of land and resource management, and respect for ethnic, social, and cultural patrimony One of the greatest problems that participants in mining conflicts face is the quality of the information available during the decision making process. Those in favor of developing the mining industry question the veracity of the information provided by those who oppose this development, and vice versa. With this preliminary analysis, the Foundation for Democratic Change, along with support from the United Nations for Development Program and a group of academic and non-governmental organizations, is developing a project focused on generating an information system about mining conflicts. It aims to produce trustworthy and legitimate information, which is useful for designing and applying public policy, based on dialogue, and transforming current mining conflicts. I. Introduction The prevailing development model, which rests on the unsustainable and inequitable use of the environmental goods and services that the planet provides, is currently in crisis. Bernardo Kliksberg,47 echoing Fray Betto, emphasizes that "despite the fact that nature anticipates cycles to provide all species alimentation, in spite of the planet's potential and society’s technological advances, decision-makers have not been able to guarantee basic alimentation for a large part of the human genus."48 Following Kliksberg, we find ourselves in the face of an "ethical scandal." This unjust situation imbues this model with a structural propensity to generate recurring environmental and social conflicts. This, in turn, creates a great political challenge on various levels: to promote sustainable development, defined as "the process of increasing people’s possibility to choose and to satisfy their present needs without compromising the capacity to satisfy the needs of future generations,"49 and to approach the given conflict in a democratic and sustainable manner in order to achieve the social changes demanded by this crisis in justice and to mend the relationship between nature and society.50 This cultural, political, and economic model impedes the effective inclusion of citizens, particularly poor and/marginal social groups (local communities, indigenous peoples, workers, small business owners) in the decision-making processes that affect their lives. 47
Bernardo Kliksberg is an advisor to ECLAC, United Nations and BID. His most recent essay, “Primero la gente,” was co-authored with the Economics Nobel Prize winner Amartya Sen. (Planeta, España, 2008). 48 According to the WHO, there are 100 million people in the World who suffer from hunger and in the Americas 16% of children suffer from malnutrition. 49 Amartya Kumar Sen, a Bangladeshi economist known for his work on Unger, human development theory, economics of well-being and poverty, received the Nobel Peace Prize in Economics in 1998 and the Bharat Ratna in1999 for his work in the field of mathematical economics. See: http://es.wikipedia.org/wiki/Amartya_Sen. 50 The intimate connection between conflict and development has been noted by Johan Galthung (1998) when he defines development as “the creation of capacities in the community to constructively transform the social conflict intrinsic in its evolution.”
53
FARN- 2009 Annual Environmental Report- English Version
Even though they are the majority, these groups tend to be the victims of the negative impacts and costs associated with these decisions, threatening the lives of future generations. Because of its profound social and economic inequity and institutional frailty, Latin America faces greater difficulties in finding democratic solutions to said conflict, which explains its persistence, magnitude, and intensity. According to Norbert Lechner (1998) the lack of adequate mechanisms of social coordination – among other factors – explains the deficiency in the development of Latina American societies, causing the latter to suffer serious problems in social organization. Increasingly numerous and complex, public conflicts emerge at the local level and overwhelm the regulatory capacity of traditional political institutions in a representative democracy (Executive, Legislative, and Judicial power). These conflicts constitute opportunities for social change and development but because they are not managed appropriately, they destroy the public space in which citizens deliberate and act collectively (Baumann 2001). This condition reflects the outgrowth of deficits in political consensus-building, in other words, the difficulty of sustaining democratic governance and promoting sustainable development. The erratic process of Latin American democratization - accompanied by the structural adjustment programs of the 90s – generated, amongst other phenomena, a strengthening of collective action in civil society, particularly through mobilization and social protest.51 Diverse social actors, participants in both local and global processes, started to show their opposition to the exogenous exploitation of natural resources in their territory and to the convulsionary effects of the neo-liberal model on the local economy and social security. Based on the fact that the application of this model in the Latin American region has prioritized the production of primary goods with scarce value added, and consequently intensive exploitation of natural resources, it is not surprising that the most important social-environmental conflicts have revolved around policies and projects related to natural resource extraction (principally oil, gas, mining, wood, and marine resources), property and land tenure, and access to water sources. Argentina is no exception. There is a high grade of political tension in the proliferation of social conflicts associated with various public issues, political and union affairs, that tend to escalate rapidly and, when they fail to find a channel for just and peaceful transformation, become recurring conflicts. The social-environmental conflict appears to condense all of these characteristics, and consequently, as we have already mentioned, challenge the political capacity for consensus building and transformation of the conflicts themselves, by all the social actors involved.
51
Schuster, F. and Pereyra, S. (2001) among other authors define social protest as a form of collective action, of intentional and contentious nature, which acquires public visibility and sustains demands, particularly those directed toward the State.
54
FARN- 2009 Annual Environmental Report- English Version
II. Social-Environmental Conflicts in Argentina and the Need for a Transformative Approach Throughout the 90s, and in particular after the 2001 economic crisis, socialenvironmental conflicts have reached the top of the political agenda. Perhaps the most emblematic case of said conflicts in Argentina is the denominated “Paper Plant Conflict� that revolves around the installation of one of the biggest cellulose plants in the world in Uruguayan territory, situated on the banks of the Rio Uruguay, a resource shared with Argentina. This conflict has clearly shown to persist over time with a remarkable impact, not only on the local level but also on the relationship between the two countries, and to a lesser extent on the process of regional integration. In terms of extractive industry, specifically mining, the conflict has specific attributes and characteristics that distinguish it from the rest- its economic magnitude, its environmental footprint- but most importantly it is the history of its evolution in our region that complicates mining. At this point we can cite another paradigmatic case for the history of environmental conflicts in the country. Esquel today is synonymous with a community that resisted the installation of a mining company, by way of mobilization, public consultation, and judicial action, leading to the closure of a gold-extraction project and laws to suspend mining activity until achieving comprehensive territorial land-use planning. This process expanded to other provinces with mining potential. Within this context, the conflicts linked to mining activity have increased exponentially in the last few years, accompanying the increase in investments for exploration and exploitation. In Argentina, there exists a multitude of social-environmental conflicts that are growing in scale and impact, testing the capacity of public institutions to transform them in a democratic manner, and questioning their catalytic potential to construct coordinated public policy and promote common agendas. In order to generate policies of sustainable development and promote their effective implementation, it is imperative to learn to approach social-environmental conflicts from their complexity. This supposes, on the one hand, achieving greater understanding of the conflicts before suggesting solutions and strategies, and on the other, creating resolution initiatives when interventions arise. A minimalist definition of the social-environmental conflicts would call them a particular type of public conflict that refers specifically to questions related to access, availability, and quality of natural resources and environmental conditions that affect people’s quality of life (Sabatini 1997, FAO 2001).52 Nevertheless, is important to incorporate into this definition a greater perspective of the context in which the conflict develops, given that the historical, political, and cultural conditions impact greatly in the construction of the same.
52
According to the definition of the Food and Agriculture Organization (FAO; 2001:1), an environmental conflict is one which involves disagreements and differences related to the access, control and utilization of natural resources.
55
FARN- 2009 Annual Environmental Report- English Version
Social-environmental conflicts compromise the integral dimension of the concept of the environment, understood as the intimate relationship between society, economy, culture, and ecology. The problems of these relationships “derive from the current development model, based on the supremacy of the logic of profit over public interest, of the massive use of combustible fossil fuels, and of the intensive – and in the majority of cases unsustainable – exploitation of natural resources. They have a structural dimension in the crisis of justice and in the relationship with nature. They are inscribed in strong tendencies and global processes of transformation of the relationship between public and private, functions of the state, politics and law, spatial and territorial organization, and the dimension and place of natural resources in the development priorities (globalization processes that are articulated in the global stage from top to bottom and bottom to top, towards and from different towns); they are characterized for their complexity and thematic variety and for the great diversity of actors involved; they are a central part in the development processes and in the rearticulating of Latin America in global agendas; and they take part in the current social experiences and processes that look to transform said problems and of course themselves.”53 At the same time, the transcendence of “conflict resolution” initiatives implies understanding the evolutionary dynamic of conflicts, recognizing their potential to transform relationships and structures (laws, institutions, etc) and to accompany these changes with mechanisms that channel tensions in a constructive manner. Resolving conflicts implies identifying them as negative events that must be resolved, and where processes to assuage them focus in the vicinity of the relationship in crisis; transforming conflicts implies accepting the conflict as a natural process with a long-term horizon that involves the past, present, and future, and where interventions are focused in channeling a process of change and, consequently, in responding to symptoms and compromising those systems in which the relationships are inserted. Along these lines, conflicts can be said to evolve in recurring cycles of latency, manifestation, crisis, pacification, and a return to latency. Repetition results from this conflict by not mediating a process of transformation of the conflict, but by reproducing the intensity of the real and symbolic confrontation, and reinforcing the structural conditions that encourage the conflict. Since the concerned topics are not dealt with through mechanisms capable of granting the involved actors the capacity to induce mutual comprehension and the possibility to agree on legitimate institutional processes in order to confront differences and to remove the structural causes that initially brought about the conflict (poverty, exclusion, concentration of wealth, corruption, authoritarianism), it is difficult to avoid repeating the cycle.
53
Correa, Hernán Darío and Iokiñe Rodríguez, (Grupo confluencias) “Marco de referencia político y conceptual para la construcción de un grupo latinoamericano de conflictos socio-ambientales” in Rodríguez I. y Hd. Correa, Encrucijadas ambientales de América Latina, San José de Costa Rica, Universidad para la Paz, 2002.
56
FARN- 2009 Annual Environmental Report- English Version
III. Socio-Environmental Conflict in the Cordillera Tensions exist in the region as a consequence of natural resource use, focused on superimposed productive activities, and in different cosmovisions regarding development and life. The Andean cordillera region, in its distinct eco-regions: Andes, the high Andean plateau, valleys, and lowlands, makes water the most urgent ecosystemic concern. The characteristic aridity of the greater part of this territory will increase due to climate change, according to the Second National Communication of Argentina to the United Nations Framework Convention on Climate Change. This document warns that “climate change will augment or create new vulnerabilities given the increase in hydric stress in the northern and part of the western regions of the country, because of the reduction of water volumes of rivers; the recession of precipitation levels in the Andes, the probable water crisis in Mendoza, San Juan and the diminution of hydro-electric generation in Comahue and continuing glacial retreat.”54 Based on this premise, it is possible to project scenarios in the immediate future involving the multiplication of water management conflicts, whose local protagonists often include communities and farming, mining, industrial, and tourism sectors. This is due to the fact that the region’s principal productive activities, in addition to human consumption, depend to a great extent on intensive water use for their development. In this sense, in the context of an arid region where there is a high dependency on scarce water resources, the expansion of mining activity in recent years has increased the conflicts related to the availability of and use of this resource. On the other hand, tourism seems to be an expanding economic activity. And it is worth mentioning that this activity is complimentary to agriculture, giving place to agrotouristic projects and, in many cases, seems to be affected by mining activity. Another axis of structural conflicts is conservation, which requires preservation of environmental values, of biodiversity, and of the high value of scenic interest of the region. To this end, diverse protected areas such as the San Guillermo Biosphere Reserve in San Juan are being created in order to safeguard environmental services and biodiversity. In these cases, tension naturally arises between promoters of the strict conservation regimes and ecosystemic integrity and those who promote economic activities – particularly mining. At the same time, there are challenges associated with the eco-regional- and consequently multi-jurisdictional- characteristics of social-environmental conflicts. In this sense, there are communal natural resources and ecosystems, such as glaciers, forests, or biodiversity, which span distinct provinces and countries and this habitually situates actors in exclusive and competitive positions, hardly adequate for eco-systemic management. The shared nature of communal goods and services implies an interdependence that requires an adequate, plural, and equilibrated articulation between involved groups in order to avoid generating inter-jurisdictional conflict that threatens not only the resources and their associated services in dispute but also the relationship between the affected parties. 54
Presentation of the Final Report on the Second National Communication, made by the Centro de investigaciones del mar y la atmósfera (CIMA) - Vicente Barros. http://aplicaciones.medioambiente. gov.ar/archivos/web/UC/File/08_oct_barros.pdf.
57
FARN- 2009 Annual Environmental Report- English Version
Diverse concepts and expectations regarding the correct path for local development are interwoven and intertwine in these conflicts. The livelihoods of the communities that may be impacted by the extractive projects are not necessarily linked to large-scale economic growth and productive activities, particularly when these communities are part of indigenous villages where nature acquires diverse meanings according to their belief systems. The Psychology of Landscape (Greider and Garkovich, 1994) proposes a relevant framework for analysis that incorporates: 1) studying the meanings that different groups have of natural resources and territories and the perceptions they have of environmental impacts, 2) analyzing how those symbolic differences complicate the comprehension of local environmental management, 3) understanding the internal power relationships in the fight over different constructions of nature. This last point requires an analysis of a) how knowledge is produced, b) who controls the production of knowledge, c) how to mobilize different actors in support of their respective constructions. As can be seen, large mining industry, when inserted into this particular context, can cause disputes over water access. What is needed is territorial and land use planning that takes into account the life plans of local communities. IV. Mining Conflicts in Argentina Social-environmental mining conflicts – that for practical purposes we will call mining conflicts, from here on forth– can be understood as disagreements about the positive or negative evaluations of the environmental, social, and economic impacts of mining activity and the consequently confrontational behavior of involved actors. This controversy is situated amid the tense interdependency between multinational companies, provincial and national government bodies, and various organized and mobilized expressions of civil society. Historically, there is a registry of conflict revolving around mineral riches in the region that goes back at least 1000 years. However, this conflict intensified at a rate previously unknown upon the conquest of America by the European monarchies. The extraction of precious metals was one of the principal activities justifying Spain’s conquest and colonization of Latin America. According to Halperin Donghi (1990), the search for precious metals was what motivated the conquerors; the primary goal of the colonial system was to obtain the greatest quantity possible of metals with the lowest possible expenditure of metropolitan resources. Furthermore, the environmental management of the mining industry in the 20th century presents a multitude of negative antecedents that have contributed to the deeply rooted idea of the impossibility of sustainable coexistence between this activity and others. In Argentina there are a number of historic mining sites that have now been identified as generators of powerful environmental side effects. Among them figure the turn of the century La Mexicana site in La Rioja, the Don Otto uranium mine in Salta, and the lead smelter Metal Huasi located in Abra Pampa with minerals provided by Minera Aguilar. The negative consequences on public health which derived from the poor environmental
58
FARN- 2009 Annual Environmental Report- English Version
management of these productive endeavors are written into the communities’ memories and function as historic trauma for the villages in the Cordillera, reemerging when the government grants permission for mineral exploration and exploitation. Even though mining is a traditional economic activity in numerous Argentine provinces, the large-scale multinational mining industry is a recent development, and growth in investments for this industry has only appeared in the last 10 years. Because of its specific characteristics (magnitude, origin of investment capital, and productive processes) this type of mining is the most controversial. According to the report “La mineria en números - 2008” (Mining in Numbers -2008), by the National Secretariat of Mining, in the last few years Argentina has had “record levels of investments, exploration, exportation, and generation of employment, in addition to an increase in projects, greater development of local providers, the highest salaries in the industry and the execution of projects within a socially and environmentally sustainable framework.”55 It follows by citing a few figures that show this growth: ________________________________________________________________________ Category 2007 % Growth (with respect to 2003) -----------------------------------------------------------------------------------------------------------Investments in exploration activities, over $5600 million 748 project development and mineral (provided by 23 countries) production --------------------------------------------------------------------------------------------------------------------------------Existing mining projects 336 740 --------------------------------------------------------------------------------------------------------------------------------Exploration 500,000m drilled 210 --------------------------------------------------------------------------------------------------------------------------------Employees direct 40,000 120 (average) indirect 192,000 --------------------------------------------------------------------------------------------------------------------------------Exportation 7950 million pesos 140 _____________________________________________________________________________________
The projections of the National Secretary of Mining estimate that the “national metal mineral production will grow 40% in 2009, reaching a new historic record.” This seems to indicate that mining conflict is nothing more than insignificant collateral for economic growth. However, if we observe with greater attention we can see that exploration has not increased at a sustainable rate, this variable being the most sensitive in the social protest against mining.
55
http://www.mineria.gov.ar/01.htm
59
FARN- 2009 Annual Environmental Report- English Version
_______________________________________________________________________ Evolution of Argentine Mining 2003 – 200856
accumulated growth growth 2003 2004 2005 2006 2007 2008 2003-2008 2007-2008 --------------------------------------------------------------------------------------------------------------------------------Investment $660 $1869 $2493 $3900 $5000 $7350 1014% 31.5% (millions) --------------------------------------------------------------------------------------------------------------------------------Projects 40 110 200 275 336 403 907% 20% --------------------------------------------------------------------------------------------------------------------------------Exploration 166,000 250,000 400,000 478,500 604,216 668,851 302% 11% (meters drilled) --------------------------------------------------------------------------------------------------------------------------------Employees 98,700 135,540 147,504 197,000 234,000 256,000 259% 9.50% (direct and indirect) --------------------------------------------------------------------------------------------------------------------------------Production $4,080 $4,569 $5,662 $9,450 $14,400 $16,656 292% 16% (millions of pesos)
As can be observed, 2007 presented a considerable drop in terms of annual growth. If we compare 2006 with the previous year, the number of meters drilled in mineral exploration grew by 19%. During 2007, this figure was 14%, and in 2008 mining exploration grew by only 11.9%. To what can we attribute this flattening in the growth curve of mining exploration in Argentina? It is possible that one of the main factors is mining conflict. In 2007, the provinces of Mendoza, TucumĂĄn, La Rioja (currently on standby), Chubut and Rio Negro sanctioned legislation with few variants that prohibited the use of cyanide in open pit mining. At the local level, social protests against mining activity multiplied. In 2008 the groups responsible for said protests reached a great capacity of coordinating action at the regional and national levels. This increase in mining conflicts over the last 3 years could shed light on the reasons for the decrease in mining investments in Argentina. What then are the fundamental motivations that caused actors to resist this activity, and what are the main characteristics of this resistance? V. Tendencies Revealed in Field Work Based on the results of our fieldwork, it has been possible to develop a few concepts and categorizations with respect to the characteristics of the social protests and the agendas of mining conflicts, as well as social license surrounding this issue. Characteristics of social protests against mining activity The resistance to mining activity manifests itself in an absolute manner when it rejects mining activity per se and in a relative manner when it questions the institutional, environmental, or economic conditions that regulate the activity. The resistance constructs its political discourse around the denunciation of 2 types of negative impacts of large-scale mining: economic impacts and environment impacts, which is often 56
Source: El PregĂłn Minero http://www.editorial.com.ar
60
FARN- 2009 Annual Environmental Report- English Version
expressed by the motto: “Yes to life, no to robbery, no to pollution.” With this claim, promoters express the supposition that the livelihoods and possibilities for sustainable development for local, provincial, and national communities will not only not benefit from large-scale mining, but will in fact suffer. At the same time, social questioning can be focused on impacts in a determined territory, an expression of the NIMBY (not in my backyard) phenomenon that rejects activity in the area of influence of the resisting actor. Or, if the public questioning increases in scale and complexity, it can be directed at more structural issues like the institutional and normative framework in which mining takes place. In this case, in addition to the fundamental questions associated with the benefits and harms of the specific project, the legislation which upholds it, upon questioning, loses legitimacy and becomes itself the object of social demands. The resistance to the specific mining project is part of a much larger fight associated with transformation of the current institutional framework. At the local level, we can find at least 3 types of conflicts based on the life cycle of mining projects: 1. Those that are generated before the activity is initiated and question its territorial pertinence. The paradigmatic case is Esquel (Chubut), but the same logic applies to cases like Pascua Lama (San Juan), Huacabra in Tilcara (Jujuy), and Agua Rica (Catamarca), to give just a few examples. 2. Those that emerge once the activity has already begun, like Bajo la Alumbrera (Catamarca) or Veladero (San Juan), where different actors denounce negative environmental and social impacts on territorial dynamics. Conflicts also arise in relation to the distribution of surplus generated by the activity – expressed less frequently as union conflicts than as disputes between municipal and provincial governments for “co participation” in the royalties derived from mining activities. 3. Last of all are the conflicts that arise after the closing or suspension of mining sites, related to the environmental liabilities generated or the social and economic disarticulation caused by the closing. This is the case of Sierra Pintada site in Mendoza and the Abra Pampa case in Jujuy. In all of these cases, the conflict agenda includes these points in an integrated and consequently complex form. The Agenda of Mining Conflicts Based on what has been previously analyzed we can sustain that the public debate over the mining industry occurs at various levels and takes various shapes, including the following: concerns about water availability and contamination; the destination and redistribution of royalties and taxes paid by companies in the communities most affected; the normative framework in which some parties demand safe and secure investment conditions and others demand greater participation in determination of the territory’s
61
FARN- 2009 Annual Environmental Report- English Version
productive profile, resource management, and respect for ethnic, social, and cultural patrimony. In this sense mining conflicts simultaneously cover a diverse array of problems, all of which contribute to the controversy. Productive Processes: One sector, generally protagonized by NGOs profoundly committed to ecology, rejects industrial mineral extraction for its ecosystemic impacts, based on the environmental risks of extraction and processing methods of minerals, the use of toxic substances (cyanide) in open pit mines, and the environmental footprint that this produces. Water and Biodiversity: There are fears among communities and consumer groups that large scale mining consumes immense quantities of water and that this may threaten access to the resource, both for human consumption and productive non-mining uses (agricultural and touristic) and for the ecosystem (biodiversity). Added to this concern are fears of a negative impact in water quality based on the release of toxic substances particular to mining activity, with negative impacts on the ecosystem (biodiversity) and public health, as well as the economies of communities and producers located in the same basin. Job Markets: The presence of large-scale mining leads to a rise in salaries and reduces the availability of workers for the territory’s traditional and historical economic activities. This generates negative impacts in the economic equations of traditional activities, for which profits drop and the risk of bankruptcy rises. Clashes in Worldviews: The installation of large-scale mining projects generates profound effects on the community’s social and cultural dynamics in the territory subject to their influence. When communities base their social life on worldviews with value structures different than those characterizing globalized capitalism a complex clash of worldviews is produced. Reasons for the Absence of Social License The decision to initiate large mining operations implies a profound modification in the productive character of the territory in question and currently this decision does not legally require the social license of the community. This generally brings as a consequence the marginalization of local public and private organizations in consultation, information, and decision-making processes. Even though the Provincial State – guaranteed sovereignty over its natural resources – grants permission for mineral exploration and exploitation, these permissions are not accompanied by the necessary social and political license of the social actors present in the territory impacted by the activity. This situation, in a context of social inequality and political fragmentation, sparks the manifestation of mining conflicts through multiple actions of social protest and citizen resistance. It is clear that the institutional structure for mining is in crisis based on its inability to channel emerging socio-environmental conflicts.
62
FARN- 2009 Annual Environmental Report- English Version
Through our fieldwork, we have been able to show that the absence of social license is intimately linked to a public policy model that fails to take into account the following situations: The adhesion of communities to global processes: Communities and social movements adhere for different reasons (cultural, political, situational) to the idea that “an exponential growth in the global economy will very likely increase the pressure on peripheral regions with their natural resources and workforce, a pressure that constantly threatens to push micro-economies off the islands of affluence into disintegration.”57 As a result, they resist the development model based on the need to make determined productive/extractive processes efficient, sustaining that the planet’s carrying capacity is limited and that sufficiency should define the limits of efficiency. This focus has been denominated “home perspective” because it prioritizes endogenous development and maintains the maxim that society should need what society is capable of producing. Although these concepts are inscribed in a broader discussion over the meaning of sustainable development, it is worth mentioning them on this occasion since, as we have mentioned before, different social actors invoke these ideas in order to resist the installation of mega mining projects. Citizen participation in the design of local development policy in the Evaluation of Environmental Impact (EIA): Linked to the previous point, another more specific challenge in generating social license for an activity is related to the means by which local development policy is designed. The lack of implementation of effective and discussion-based mechanisms that include community and social actors in the definition of local development models leads to land use policies which are either implicit or contradictory. This situation removes land and territory from the political process whereby residents express their vision of sustainable development and guide decisions over the use of existing natural resources in order to satisfy local necessities. This lack of democratic participation and dialogue over the model of sustainable local development makes the effective participation of non-governmental social actors in the evaluation of social-environmental impacts of mining projects very difficult. The lack of confidence in the State’s ability to guarantee the public good: There exists a profound distrust regarding the autonomy and evaluation capacity of public mining authorities by various social and institutional actors. For various motives, these social actors suspect that, when evaluating large-scale mining exploitation, said authority does not guide its actions through principles of public interest. The deep suspicions of local communities with respect to collusion between provincial governments and mining companies are increased due to the lack of transparency with which the information about these processes is managed. Furthermore, distrust regarding the State’s control and auditing over provincial mining authorities is increasing. This mistrust is based largely on historically traumatic experiences with respect to state control 57
W. Sach “La Anatomía Política del Desarrollo Sostenible” pág. 39. La Gallina de los Huevos de Oro. Debate sobre el concepto de desarrollo sostenible. Ecofondo, CEREC. Colombia 1996.
63
FARN- 2009 Annual Environmental Report- English Version
over contaminating productive activities and the assumption under which civil society actors operate is that the government will be incapable of adequately controlling this type of mega-endeavor. This superimposing of incompatible activities thus requires and uncoupling and the generation of institutional mechanisms for effective evaluation and control that incorporates citizens into the process. The inexistence or insufficiency of legitimate publicly-accessible information: The third reason is the lack of trustworthy and legitimate integrated information about mining activity in Argentina (number of projects and stages of implementation, fiscal resources they provide to the State, workforce generated, and social-environmental impacts, both cumulative and differentiated). Mining conflicts are framed within a larger debate in Argentina (and many other countries) which asks, in general terms, if large-scale mining activity is a legitimate source of development and how compatible it is with the basic premise of sustainability. This question can only be answered through the production of public information that is holistic, clear, trustworthy, and relevant. For this reason public information production efforts should take these values as the basis for designing effective processes. IV: Platforms of Dialogue: A Strategy for Transforming Mining Conflicts In this context, one of the primary problems present in the mining conflicts is the information to which actors have access throughout the decision-making process. At this level, the lack of information and the distrust of information-generating mechanisms and the selection criteria for relevant data, make constructing basic relationships of trust quite difficult. Nevertheless, these relationships are necessary in order to promote social and political processes of transformation and sustainable development. The underlying assumption of this project is as follows: with adequate tools it is possible to develop processes sensitive to the particular characteristics of the region and to avoid the deterioration of relationships between parties to the conflict, to the point where their conduct causes not only irreparable damage to the natural resources but also the loss of productive processes and consequent disruptions in the social and cultural fabric. As a starting point for generating the conditions for dialogue, the Foundation for Democratic Change (FCD)58 with the support of the United Nations Program for Development (PNUD), as well as multiple civil society and academic organizations, have begun work on the project “Platforms of Dialogue for Responsible Mining Development in Argentina.” The project’s objective is to generate a useful and trustworthy system of information for the design and application of public policy linked to mining activity, as
58
The Fundación Cambio Democrático (Foundation for Democratic Change) has worked for the last 10 years to promote dialogue for sustainable development. Its goal is to widen the public sphere such that different social actors can more effectively participate in decisions which affect their lives. Its strategy includes promoting the generation of public policies based on democratic dialogue between the State and Civil Society.
64
FARN- 2009 Annual Environmental Report- English Version
an instrument to facilitate access to public information and promote processes of dialogue and public deliberation. Platforms are bases upon which something can be mounted. Platforms of dialogue are intimately linked to the concept of platforms of change that refer to “the basis of processes that 1) provide adaptive responses to reiterated episodes of conflict – both present and future, and that 2) attend to the most serious and long-term relationship structures, the social patterns which produce violent and destructive expressions of the conflict.” That is to say that these “transformative platforms” are “process-structures” since they generate creative short-term solutions and provide the ability to develop constructive and strategic long-term changes.59 This project hopes to provide a pertinent tool in two ways: 1. As an inaugural space where defenders and critics of the mining activity can agree on the need to generate credible, relevant, and legitimate information. 2. As a space for reflection and the proposal of strategies to approach challenges presented by mining conflicts in Argentina, through cooperative work with other academic and social institutions and the identification of democratic means by which to resolve differences. This project is managed within the Extractive Industries program of FCD and consists of the development of a Map of Mining Conflicts in Argentina and on the sensitization of key actors on the implications of a dialogue focus when dealing with mining conflicts. The Map of Mining Conflict in Argentina is an instrument that provides organized information about the country’s mining conflicts, developed with investigation protocols, cartography that contains different levels of analysis (contextual, situational, and interpretive), and diverse interrelated thematic axes (environmental, legal, economic, social, cultural) that permit the comprehension of conflicts and their dynamics. Here, it is important to emphasize the peculiarity of the information-generating process that this project aims to advance. The joint construction of information requires the early involvement of key actors to work towards generating key information and identifying gaps, agreements, and disagreements among them. This method for constructing information could be the kick-start for promoting trust between distinct actors or trust in a process in which nobody feels threatened for having to come to agreement with “the other,” as it is a space constructed with the objective of expanding the field of comprehension, in full recognition of the complexity of mining conflicts. However, the construction of information also requires a design of a process that provides an effective and realistic milestone towards deliberation or elaboration of public policy. It is this design that takes a dialogue-based focus – reflecting the project’s name. From this 59
Michelle Maiese and John Paul Lederach. “Transformation.” In Beyond Intractability, Heidi Burgess and Guy Burgess, editors. University of Colorado Conflict Research Consortium, 2004. Avialable online at: http://www.beyondintractability.org/m/transformation.jsp. Spanish translation: Ana Cabria Mellace.
65
FARN- 2009 Annual Environmental Report- English Version
perspective, “all interactions (even those not formally conceived as dialogues) can be more or less dialogue-based as long as they are carried out in an environmental in which participants representing diverse perspectives feel sufficiently included, empowered, and ‘reassured’ to be transparent in their own communication, open to understanding what others have to say, and capable of assuming a long-term perspective with respect to the problems presented.”60 The reference to this theoretical framework and the “third-party” role that we adopt in these situations is particularly relevant, given that in the context of complex public interest conflicts characterized by significant power imbalances, the processes we design are not “neutral.” They advocate for pacific social change, but they are multiparty in terms of promoting plurality, inclusivity, learning, and shared appropriation of the process. In the context of mining conflicts where existing polarization causes involved actors in rival coalitions to demand taking a position on one side or the other, the role of the “third party” does not easily achieve legitimacy, and the first reaction is suspicion, distrust, or – in the worst cases – the perception that they are “agents of the adversary.” This is one of the reasons for which cooperative inter-institutional work is necessary; in order to transform the social-environmental conflicts, it is necessary to complement capabilities (technical, political, cultural.) Lastly, access to relevant and comprehensible information is means to assuring that that processes of citizen participation are effective. This information system therefore hopes to give social actors a tool that permits them to participate in public decision-making processes linked to natural resource use and mining, for both the design and the implementation of policies. The legitimacy of environmental and land use planning in a given territory is the result of various participative processes aimed to promote temporal sustainability and conditions for a democratic coexistence. This process encourages governmental bodies, civil society organizations, and market actors to come to agreement over the rules of engagement and conflict resolution regarding access to and control of natural resources. Consequently, this process makes it possible to reduce the level of distrust between them, and provides a framework of certainty for future decisions. Transparency, participation, and collaboration are essential principles for democratic governance. They provide minimal guides for proceeding that governments should guarantee in policy design and conditions that social actors must demand in order to discuss the solution to their problems. In this sense, they are processes that focus on the “how,” not only the “what,” transcending unstable short-term satisfaction towards more structural changes, transformation towards a more sustainable deliberative democracy. VI. Conclusions We often ask ourselves how best to approach mining conflicts in a constructive and democratic manner, knowing full well that we are in the face of a complex conflict. Mining is complex based on the social, environmental, political, and economic impacts 60
Manual for Democratic Dialogue, page 34.
66
FARN- 2009 Annual Environmental Report- English Version
the activity has, the involved actors’ tense interdependency, and the activity’s history in our region, tracing back to the conquest to provide evidence the conflict’s roots are deep and traumatic. For its historical and structural characteristics, the mining conflict cannot be “resolved,” though it can be democratically transformed. The transformation of conflicts, by definition, attempts to create constructive changes based on the energy generated by the conflict. It does not prioritize rapid solutions but rather creative platforms that can simultaneously detect the most visible points while working to change underlying social structures and relationship patterns (Maiese – Lederach). Rilke, among other teachers, recommends not anxiously searching for the answer but instead “working on” the question, so that it can increase social knowledge, illuminate possible new pathways, and resolve complex problems. In our case, the questions that arise about difficult problems like mining conflicts, shed light on the tension between large-scale metal extraction and sustainable development. What institutional conditions are necessary to create a socially legitimate mining industry whose environmental impacts are adequately controlled? How and where should this activity be carried out in order to bring about endogenous and sustainable development benefits to the territories in question? How can responsible actors in the mining industry be induced to recognize and respect distinct international agreements and current regulatory frameworks, such that local communities’ and workers’ rights are adequately protected? From own fieldwork we have found that the diverse conflicts generated by the large-scale mining of metals constitutes a battle between two coalitions whose differences and asymmetries are profound. These coalitions contain state, social, and private actors and confront each other in the public space through mechanisms of direct, media-related, educative, judicial, political, and cultural action. The conflict alerts us of the need to modify rules, regulations, and institutions, and of a certain status quo that generates unease. We warn that the manner in which conflicts are approached must leave space for democratic and dialogue-based mechanisms, appropriate platforms for a mining policy respectful of the needs of all the parties, and responsible for its long-term social and environmental impacts. It is fundamental to generate conditions for a public dialogue with plural and informed participation in distinct corresponding public and institutional spaces, with active participation by the conflict’s protagonists and capable of channeling the energy to modify the structural conditions that generate and exacerbate conflicts. It is necessary also to identify the roles that the proposed process of transformation requires. We mention two of them by means of example. Given that power relations in contexts in which mining conflicts arise are rarely equal, one relevant role is that of the “power equilibrilators” that advocate on behalf of or strengthen the capacities of social and community organizations. Another necessary role is that of bridge- builder, by those who work to overcoming relationships of distrust by crossing borders that generate conflict in order to stabilize relationships with key members of engaged groups. The greatest challenge for these people is to resist the gravitating force of polarization that demands taking sides and to overcome pressure from peers, given that they are often accused of being spies.
67
FARN- 2009 Annual Environmental Report- English Version
In this context, the role of third-party interventions for peaceful social change “must be understood as a permanent evolutionary process that does not necessarily aim to prevent conflicts, may sometimes raise awareness about them, other times education, always in the framework of preventing escalations of violence and crisis. It is necessary to identify who will design this type of intervention process, but in all cases it is important to educate and train the entire system of social actors and political leaders in analysis of the conflict, so that crisis intervention and prevention policies can be most effective.”61 In the past, the definition of the desired development model was exclusive authority of the State by means of governments and support coalitions, but today that authority is claimed by diverse and divergent social actors. As Carmona argues, “from a notion of government centered on the State as the guarantor and articulator of political power, with monopoly over inter-institutional coordination and the search by collective interest, the evolution has been towards a situation in which decisions appear to be determined by the interaction and participation of multiple social and political actors.”62 Without a doubt, the promotion of platforms with a deliberative approach to conflict and the generation of development policies equipped with the necessary capacities and consensus, emerges as a condition sine qua non for social-environmental peace in the mining industry. In essence, social energies must be channeled to answer the fundamental question of “who are we and what development model do we want?”
61
Reflections on the role of “third parties” in social conflicts. El enfoque de la Transformación de Conflictos, by Graciela Tapia, Revista Mediadores en Red. 62 “Nuevas formas de gobierno y gestión pública en el escenario local: elementos y perspectivas para el estímulo de procesos concertados de desarrollo,” by Rodrigo Carmona. 2005.
68
FARN- 2009 Annual Environmental Report- English Version
Bibliography Baumann Z., “En Busca de la Política” Editorial Fondo de Cultura Económica, Bs As 2001 Bettye Pruitt y Philip Thomas, “Diálogo Democrático –Un Manual para Practicantes” Secretaría General de la Organización de los Estados Americanos; Instituto Internacional para la Democracia y la Asistencia Electoral; Programa de las Naciones Unidas para el Desarrollo 2008. Boisier S., “Desarrollo regional endógeno en Chile. ¿Utopía o necesidad?” en AMBIENTE Y DESARROLLO , Vol. IX-2, CIPMA, Santiago de Chile, 1993. Bobbio, N., “Estado, gobierno y Sociedad. Por una teoría general de la política” Fondo de Cultura Económica, México DF 1999. Carmona, Rodrigo. “Nuevas formas de gobierno y gestión pública en el escenario local: elementos y perspectivas para el estímulo de procesos concertados de desarrollo”, ponencia presentada en el II Congreso de Administración Pública (Asociación Argentina de Estudios de Administración Pública), San Miguel de Tucumán, 2005. Carpenter, S and Kennedy W.J.D.(1988) Managing Public Disputes Jossey Bass Inc, San Fransisco 1988. Correa Hernán Darío & Rodríguez Iokiñe Encrucijadas Ambientales en América Latina. Entre el Manejo y la Transformación de Conflictos por Recursos Naturales. 2005, Universidad para La Paz. http://www.idrc.ca/es/ev-91966-201-1-DO_TO PIC.html Dourojeanni, A. Procedimientos de Gestión para el Desarrollo Sustentable: Aplicados a Micro regiones y Cuencas. Santiago: Instituto Latinoamericano y del Caribe de Planificación Económica y Social de las Naciones Unidas (ILPES). Documento 89/05/Rev1. 1993. Halperin Donghi T. Historia contemporánea de América Latina, Alianza Editorial 1990. Lederach, Juan Pablo. “Preparing for Peace. Conflict Transformation Across Cultures”. Syracuse University Press, 1996. N.York mpetitive Game” Nueva York , Free Press 1987. Lechner N, “Tres Formas de Coordinación Social” Revista de la ECLAC Nro 61. 1998. Madoery, O. “EL valor de la política de desarrollo local” Centro de Desarrollo de Estrategias Territoriales. (2004). http://www.cedet.edu.ar/biblo_nueva/madoery%20_el_valor_de_la_pol%C3%ADtica.pdf Michelle Maiese y John Paul Lederach. “Transformation.” En Beyond Intractability,
69
FARN- 2009 Annual Environmental Report- English Version
Heidi Burgess y Guy Burgess, eds. University of Colorado Conflict Research Consortium, 2004. Disponible online en: http://www.beyondintractability.org/m/transformation.jsp. Traducción español Ana Cabria Mellace. Przeworsky, A “Democracia y Representación” Revista del CLAD Reforma y Democracia. No. 10 (Feb. 1998). Caracas. http://unpan1.un.org/intradoc/groups/public/documents/CL AD/CLAD0030103.pdf. Sabatini F.“Conflictos ambientales y Desarrollo Sostenible en las Regiones Urbanas” en Revista PRISMA Programa Salvadoreño de Investigación sobre Desarrollo y Medio Ambiente Nro24 1997. Sach, W. “La Anatomía Política del Desarrollo Sostenible”. La Gallina de los Huevos de Oro. Debate sobre el concepto de desarrollo sostenible. Ecofondo, CEREC. Colombia 1996. Schuster, F. y Pereyra, S. (2001): «La Protesta Social en la Argentina democrática: Balance y perspectivas de una forma de acción política ». En : Giarracca, N. (comp.): La Protesta Social en la Argentina. Transformaciones económicas y crisis social en el interior. Buenos Aires, Alianza Editorial. Viveros F.“La participación de la sociedad en acciones de interés público” En Ciudadanía e Interés Público, Enfoques desde el Derecho, la Ciencia Política y la Sociología Serie Publicaciones Especiales Nro. 9, Facultad de Derecho Universidad Diego Portales. Santiago, Chile 2000. Warner M. “Complex Problems, Negotiated Solutions Tools to Reduce Conflict in Community Development” ITDG Publishing 2001.
70
FARN- 2009 Annual Environmental Report- English Version
Agriculture and Environment63 Report by: FARN Team Translated by Jacob Dyrby Petersen and Toni Funk
Executive Summary To date, the argentine government has not undertaken a process for the design and formulation of a national public policy to leads and orient agricultural development in general or, in particular, the production chain of soy. Despite this, in March of 2008 the government decided to increase retentions on the exportations of soy, arguing that this policy seeks to protect the biodiversity. For their part, since the year 2006, FARN has been working on the analysis of the environmental, social and economic aspects of soy production in the region and identifying the most important challenges with regard to public policy. So, from our point of view, there are central topics which should be prioritized in order to begin establishing democratic dialogues as a prelude to the creation of long-term public policies. These policies must, in turn, seek to bring about sustainable development in the framework of compliance with standing environmental laws and norms. 1. Territorial Regulation and Land Use Planning: this is an instrument of spatial, technical-political organization for the identification and implementation of the principal strategies of development. 2. Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA): the EIA is a mandatory instrument for environmental management which should be undertaken prior to the initiation of projects or activities that could implicate a significant impact for the environment and the quality of life of the population. While the SEA is a procedure that has as an objective the evaluation of the consequences or environmental impacts in the formulation of the strategic decisions for the part of the governmental sector. 3. Costs and Incentives: this subject deals with measures of an economic or fiscal nature, which provide incentives for those agricultural practices oriented towards sustainable land use and of taxes/ fines/ costs to deter the inappropriate use of land and compliment the regulatory strategies. 4. Assessment of Ecosystem Services: environmental services are the benefits that people obtain from the ecosystems, including provision of services, regulation, support and cultural benefits.
63
This document was created by FARN in May 2008 facing the conflict in the countryside that took place during those months
71
FARN- 2009 Annual Environmental Report- English Version
5. Infrastructure: investment in infrastructure projects, for example transportation, is one of the major challenges for the development of the agro-industrial sector. 6. Phytosanitary Products: another aspect of agricultural activity on which it is important to reflect is the utilization of agrochemical products and, in the case of genetically modified soy, the systemic herbicides that are applied to the plant. Measures should be taken to address this topic. 7. Biofuels: in order to comply with law 26.093 it will be necessary to significantly increase the sown area, and will result in a major expansion of the agricultural frontier, which will be further aggravated by projected exportations. 8. Native Forests: the law of minimum standards for the protection of the native forests represents a landmark for the conservation and the sustainable management of the natural resources, in general, and of forests, specifically. At the same time, it turns represents a step forward in terms of land use planning, in particular for the provinces with large forests threatened by deforestation. It is necessary to tackle the phenomenon of the expansion of the agricultural frontier rising above the current position of soy as market leader, and so to plan and arrange the sustainable development of the sector with a short, medium and long term perspective.
I. Introduction In the month of March of 2008, the Argentine government established an increase in retentions on the exportations of soy. The retentions previously consisted of tariffs that had reached a percentage of 35%, but after the recent measure that was established by the government they became mobile retentions and reached 44%, varying according to the international price of soy. Retentions are a mechanism of importance for the regulation of the prices of commodities in the internal market and also as a tool for the redistribution of income. Despite this and the practical difficulties which can be identified with regards to achieving these objectives, the arguments put forward by the government merit attention. According to their arguments, the increase in retentions on the exportation of soy respond to a policy that seeks to protect the biodiversity64. Since 2006, the Environment and Natural Resources Foundation (FARN - Fundaci贸n Ambiente y Recursos Naturales) has been working on the analysis of the environmental, 64
The arguments put forward by the government, according to which the main retentions of the soy exports comply with a policy that seeks to protect the environment, is a justification that, in the first place, emerges late in the environmental policy context and that should take the present normative setting into account which is comprised by a series of obligatory environmental laws for the entire country that constitute minimum measures of environmental protection conforming to article 41 CN. Amongst these, Law nr. 25675 of the General Law on the Environment (B.O. 28/11/2002) appears relevant because it establishes the minimum standards for sustainable and adequate management of the environment, the preservation and protection of biological diversity and the implementation of sustainable development.
72
FARN- 2009 Annual Environmental Report- English Version
social and economic aspects of soy production in the region and identifying the challenges with the highest priority regarding public policies, that, in keeping with the notion of sustainability, can provide the basis for a more balanced and equitable development of a new rural reality, taking into account opportunities and limitations65. It is evident that in the last years, the National Government has encouraged the expansion of the agricultural frontier of soy to the detriment of other agricultural activities (milk sale, alternative crops, stockbreeding, among others). So, the expansion of soy is not in fact the consequence of a decision adopted impulsively by the agricultural producers; it is clear that the government has promoted this agricultural activity to attend the soy global market, producing diverse environmental, social and economic effects. Evidently, if more precise policies had existed, designed with real consideration of sustainability in order to avoid the “soy-ization”, the national scenario would be quite different. To date, the argentine government has not undertaken a process for the design and formulation of a national public policy to leads and orient agricultural development in general or, in particular, the production chain of soy. So, from our point of view, there are central topics which should be prioritized in order to begin establishing democratic dialogues as a prelude to the creation of long-term public policies. These policies must, in turn, seek to bring about sustainable development in the framework of compliance with standing environmental laws and norms. The central topics in this debate include: 1. Territorial Regulation and Land Use Planning 2. Environmental Impact Assessment (EIA) Assessment (SEA) 3. Incentives and Costs 4. Assessment of Ecosystem Services 5. Infrastructure 6. Phytosanitary Products 7. Biofuels 8. Native Forests
and
Strategic
Environmental
II. Priorities a. Territorial Regulation and Land Use Planning The General Environmental Law of minimum standards for environmental protection (Law No 25675) establishes the framework for land use planning as a policy instrument for environmental management (art. 8, 9 and 10). In this sense, territorial regulation and 65
In the framework of the project” Regional Evaluation of the Impact on Sustainability of the Soy Production Chain”, FARN with the support of the Organization of Americas States (OAS) together with other Latin-American organizations has developed a socioeconomic and environmental analysis of the soy production chain along with identification of prioritized challenges on the matter. A range of input were subject to an intersectional debate and the basic consensus shaped trough the framework of National and Regional Workshops (with participation from Uruguay, Paraguay and Argentina) culminated in a series of recommendations for best practices and options for sustainable public policies regarding the soy production chain. For more information see: http://farn.org.ar/comercio/soja.html
73
FARN- 2009 Annual Environmental Report- English Version
land use planning are conceived of as instruments of political decision-making by the national government and particularly the provincial governments. They are instruments of spatial, technical-political organization which serve to identify and implement the principal strategies of development. They require a combination of planning the use of the land on the local scale with the regional development and the territorial integration in the provincial, regional and national environments. The result of spatial planning of diverse productive activities allows us to tackle two principal points of rural life: a) the vision of the future and b) the logical use of distinct and interrelated portions of the territory, in the context of a system. Land use planning seeks to define the geographic and territorial distribution of farming, ranching, forests, production and commercialization centers, and protected areas, as well as the links and interconnections between them. This permits certain control over the spontaneous growth of human activities, which is exactly what has been happening in the case of soy over the last years, with the aim of avoiding the problems and inequities that are caused by a lack of a planning in this sense. All action should be situated where it would maximize the capacity or aptitude of the territory in order to take it in and, at the same time, minimize the negative impact or the adverse effect of the action on the environment. In this context- as mentioned in the Second National Communication of the Republic of Argentina at the United Nations Framework Convention on Climate Change UNFCCC (2006)66- it is important to mention that, owing to the fact that significant changes in climate have already occurred, our country has developed, especially in the agricultural sector, an important and unique autonomous adaptation. The expansion of the agricultural frontier towards the west and north of the traditional agricultural zone (recognizing the commercial and technological causes as well) was possible because of the climate change that occurred in these areas. Though in short term in an economic sense, this adaptation has been generally beneficial; on the other hand, it is causing environmental harm that could become catastrophic based on climate predictions for the next decades. For that reason- again affirmed by the official communication itself- this autonomous adaptation requires an urgent attention on the part of the government, with the aim of channeling and minimizing negative impacts. Without adequate territorial planning the potential benefits of this spatial organization instrument will be squandered, and with it the possibility of identifying and implementing necessary development strategies in different temporal horizons. When it comes to a process of this type, implementation inevitably demands the participation of the different 66
As a part of the undertaken obligations in the United Nations Framework Convention on Climate Change (UNFCCC), the government of the Republic of Argentina must for the Conference of the Parties (COP) develop, update, publish and facilitate national inventories of the anthropogenic emissions by sources and of the absorption by the sinks of all the greenhouse gases that are not regulated by the Montreal Protocol. These are made public through the “National Communications of The Republic of Argentina for the United Nations Framework Convention on Climate Change�. Argentina approved the United Nations Framework Convention on Climate Change (UNFCCC) through Law nr. 24.295 (B.O. 11/01/1994) and the Kyoto Protocol by means of Law Number 25.438 (B.O. 19/07/2001). For more information of the Communications: http://www.ambiente.gov.ar/?idseccion=29
74
FARN- 2009 Annual Environmental Report- English Version
actors in the interest of enhancing authorities’ decision making. This participation, in order to be efficient, must be ample, institutionalized and early. b. Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA). The Environmental Impact Assessment (EIA) is an instrument for environmental management which has been introduced as a “minimum standard” in the General Law of the Environment. It is foreseen as an obligatory and preemptive measure in the case of projects or activities that may imply a significant impact on the environment and the quality of life of the population. In Argentina the EIA procedure is utilized as an instrument for the analysis and the administrative approval of specific projects. The Strategic Environmental Assessment (SEA) is defined as a procedure that has the objective of evaluating of the consequences or environmental impacts in the formulation of the strategic decisions made by the government sector. Specifically, it relates to those decisions which precede specific projects, including initiatives, policies, plans and programs. Consequently, it is important to begin carrying out strategic sustainability evaluations, building on the basis of evaluations and expanding them to consider both environmental issues and the social impacts of government policies, plans and norms. This process must be sustained not only by scientific-technical inputs, but also by instances for collective deliberation and decision making, thereby generating opportunities for consensus and commitment that strengthen participatory mechanisms. It would be highly beneficial to put procedures of this nature into practice to address a subject as sensitive and volatile as is the expansion of the soy. The results would buoy positive impacts, on the one hand, and also prevent, minimize, mitigate or eventually compensate the negative impacts detected in relation with soy. The importance of such processes is even greater if we take into account the projections that signal that towards the year 2015 the production of soy in Argentina will continue to rise, and that stimulus policies for bio-fuels may generate even greater growth. EIA and SEA processes would to a great extent nurture the public decision making with respect to the future plans, programs, strategies and policies in the agricultural sector. C. Incentives and Costs The adoption of economic and fiscal measures is becoming essential, to provide incentives for those agricultural practices oriented towards sustainable land use and implement taxes/ fines/ costs to deter the inappropriate use of land and compliment the regulatory strategies. One example of this is the difficulties experienced with the low level of crop rotation. Here, the creation of incentives that increase the profitability relative to other types of cultivation – also play a key role in the promotion of the necessary rotation67. 67
In this sense, the impetus that the local ethanol production (in particular regarding corn) surely will be subjected to, like the increase in the international price of this cereal because of the demand for the ethanol
75
FARN- 2009 Annual Environmental Report- English Version
Given this scenario, it is necessary to revise the current legal framework to create more incentives for effective conservation. At the same time, there should be changes in the actual system of costs and benefits. These economic instruments- including fiscal incentives, deductions, technological support mechanisms, linked credits, or changes in tax structure depending on the area under cultivation, its location and productivityshould constitute a coherent framework which stimulates producers to adopt environmentally and socially sustainable practices, in full compliance with standing legislation and regulations. d. Assessment of Ecosystem Services Environmental services are the benefits that people derive from ecosystems68. They include provision services (food, fiber, water and raw materials); regulation services (erosion control, nutrient cycle, climate regulation, flood control); cultural services (recreation, historical patrimony, customs, languages); and secondary support services (sweet water supply, conservation of biodiversity, formation of soil). The notion of ecosystem services presents an opportunity to explore new strategies, such as the figure defined by Ernesto Viglizzo69 of the “environmental provider.” He describes the same as “a rural business-owner or entrepreneur who, instead of producing commodities and specialty items, specializes in preserving environmental services”. Taking into account the previous suggestions– regarding farming policy, territorial regulation, land use planning, incentives, etc. – ecosystem services should be considered at the time of discussion and definition. In line with the aforementioned recommendation, it’s worth considering initiatives linked to other ecosystem resources – e.g. wildlife – in the framework of sustainable development or those which seek to provide economic benefits for protection of soils as an alternative to the clearing for agricultural purposes. In this context, it is also necessary to consider the effects on ecosystems – and their services – of policies and consuetudinary practices that contribute to the deterioration of environmental quality generating only individual benefits. In recent months, numerous damages– that regrettably have included the loss of human life – have taken place as a consequence of widespread and uncontrolled burning of grasslands in the Delta. This is one of many examples to demonstrate the importance of adequately dealing with such issues and customary practices. In this respect, we must point out that the responsibility is not only of the fire starters but also of the National and Provincial government for the production in the United States, will act as a positive element with regard to the possibilities of increasing the rotation of soy with these cultivations. But at the same time, it would act as an even greater strengthening of the advancement of the farming frontier for the cultivation of these species. Once more, it is needed with an all-inclusive planning that enables taking into consideration the economic, environmental and social components. 68 More information available at: www.milleniumassessment.org. 69 Challenges and opportunities of the agricultural expansion in Argentina (2006). Made ad hoc for the World Wildlife Foundation. Workshop “Challenges and Opportunities for the farming expansion in Argentina and its implications for the environment”. Author: Viglizzo, Ernesto, Buenos Aires, August 2006.
76
FARN- 2009 Annual Environmental Report- English Version
lack of planning and response to this widespread phenomenon70. This weakness in the authority in relation to the application and compliance with the Argentinean and international71 norms affect the country and the citizens in diverse ways. e. Infrastructure Investment in infrastructure represents one of the greatest challenges for the development of the agro-industrial sector. In this sense, transport stands out as one of the main “bottlenecks”. Therefore, the propitiation of a planning process must be prioritized in order to enable strengthen the synergies between the road, train and water networks. Similarly, the scenarios of sustained growth make it clear that infrastructure projects should also focus in increasing installed capacity (e.g. processing, storage, trade). Public or private investment in infrastructure, necessary for the development and subsequent execution of value added in the soy chain, must necessarily not just but economic benefits, but also socio-environmental impacts. Instruments like sustainability impact evaluations must be implemented with a full guarantee of participation and access to information, once the projects are decided upon. Strategic environmental evaluations are appropriate tools when planning infrastructure projects. In this context, the purportedly “environmental” motivations of the government are paradoxical in relation to the transportation subsidies being implemented Northwestern and Northeastern Argentina. These subsidies act as indirect incentives for environmental degradation; Without them one of the few impediments to the advancement of the soy frontier into the most remote regional forests is precisely the high cost of freight and shipping72. Nor is this policy coherent with the recently sanctioned law of minimum standards for the protection of native forests. This law aims to achieve the conservation and sustainable long-term management of forests, through use of environmental classification, land use planning, and implementation of a temporary moratorium on harvesting/ clearing, thus reversing the decimation which has been the norm. f. Phytosanitary Products Another aspect of agricultural activity on which it is important to reflect, is the use of agro-chemical products and, in the case of transgenic soy, the systemic application of herbicides. Roundup Ready (RR) soy73 has been designed to be used together with glyphosate which is considered an herbicide; a concept that can be confirmed in the Phytosanitary Product’s Guide (Guía de Productos Fitosanitarios). However, this 70
In this understanding, the caused environmental damage calls for attention as well as its necessary assessment and remediation. See as antecedent of interest the article of Cafferatta, Néstor. The destruction of a forest caused by a fire (La destrucción de un bosque por causa de un incendio). Published in La Lay Cordoba 2002-407, Ruling note Ramos, Raul w/ Ramallo, Pedro and other, Civil and Commercial Chambers Dean Funes, 30th of October 2001. 71 Among others, the Wetland Convention approved by Law 23.919 (B.O. 24/04/1991) and Biological Diversity Convention, approved by Law 24.375 (B.O. 06/10/1994) 72 See article in the paper La Nación “Soyazation and Environment (Sojización y Medio Ambiente)” Monday 7th of April 2008. http://www.lanacion.com.ar/1001957 73 Understood by Soy RR is the soy tolerant of the herbicide in glyphosate
77
FARN- 2009 Annual Environmental Report- English Version
“technological package” requires an appropriate use of chemical products in order to protect the environment and human health, in local areas and over the entire national territory. Particularly, it is necessary to regulate and control the practices associated with aerial spraying for the cultivation of the RR soy74. FARN75 has gathered and systematized information about the legal and institutional framework applicable to pesticides. Among others, our study has resulted in the following recommendations for improving norms and promoting the appropriate use of the phytosanitary products: The debate and corresponding approval of a law of minimum standards for the integrated management of the phytosanitary products, covering their production, sale, usage, and safe disposal (products and packaging), with the goal of providing unequivocal and harmonized management to the entire national territory. The systematization of the existing norms, especially on a national level, given that there exist a large number of norms with diverse hierarchies and apparently divergent themes. This is a factor that negatively influences the application and achievement of the environmental norms for regulatory and application bodies, as well as for citizens and the users of the private sector. The foment of private sector training for manufacturers and users of these types of products, to promote greater observance of norms of hygiene and security in activities that involve the use of agricultural pesticides, based on the risks that they imply. The guaranteed access to information by civil society on issues related to the use and management of phytosanitary products. The generation, systematization and provision of official information about the effects generated by the use of pesticides (phytosanitary products) on fragile ecosystems close to zones of high productivity, and a record of the main environmental problems by region and of impact mitigation actions currently being undertaken and those planned for the future. g. Biofuels In this analysis, it would be imprudent to overlook one important topic: biofuels. In the framework of the Law Nr. 26.093, published in the year 2006, for the purpose of increasing the demand for biofuels by 2010, a policy for the so-called “obligatory mix,” was established. This obligatory mix refers to the mandatory mixing of biofuels (biodiesel as well as bioethanol) with fossil fuels (gasoline and others) in a percentage of 5% as a minimum compared to the total of the final product (article 7 of the law). This obligatory percentage can be increased when the relevant authorities of application find it convenient in relation to variables of the internal market. 74
See Verdict of the Criminal and Correctional Chambers of Mercedes, in the proceedings “Di Vinci, Oscar Alfredo c/ Delaunay Jorge s/ Amparo” of April 2008, where there is made use of solicited innovative preventive measures, the prosecuted having to abstain hence forth from carrying out aerial fumigations in the properties with soy cultivation. 75 The report “Applicable Legal Framework for the Integrated Management of Pesticides in Argentina (Marco Legal Aplicaple al Manejo Integral de Pesticidas en Argentina)” by FARN, initiative supported by the World Bank, available at: http://www.farn.org.ar/arch/informe_pesticidas1.
78
FARN- 2009 Annual Environmental Report- English Version
Therefore, if this 5% goal for agro-fuels is to be fulfilled in the year 2010, it will mean a significant increase in local consumption and consequently will require a significant expansion of the sown area. This will of course result in further expansion of the agricultural frontier, which may be even more dramatic if export levels continue to increase. The legal regime in question provided no provisions to guarantee that the processes of erosion which currently threaten Argentina will not be worsened by increased production of agro-fuels. The title of the law makes reference to the sustainable production and use of bio-fuels. Nevertheless, it has not yet established a legitimate implementation strategy, in compliance with the terms of Article 41 of the National Constitution, or clear criteria for the rational use of soil to promote genuine sustainability in the activities promoted by the law76. At the same time, we must keep in mind Argentina’s responsibilities as signatory to the international Convention on Desertification.77 This Convention establishes various obligations for states, including the adoption of measures and the establishment of strategies and priorities, in the framework of the national plans and policies for sustainable development, in order to advance the fight against desertification. In summary, the positive energy balance of bio-fuels should be irrefutably demonstrated if they are to be considered a genuine alternative energy source, given that their production requires a large amount of energy for cultivation, harvest and conversion into fuel. When performing an analysis of the complete cycle, the fuel obtained should contain significantly more energy than that which has been consumed to obtain it. This is connected to an in-depth analysis of the balance of the greenhouse gases (GG) that have been emitted during the cultivation process. Crops with the best energy and GG balance should be chosen, and land use in marginal areas should not pit the production of fuel products against the production of food. From FARN´s perspective, the terms in which the law is outlined have not paid adequate attention to the sustainable production and use of bio-fuels, as might be inferred from the title. The comparative advantages of agro-fuels should not lead to an exploitation of the natural resources in disregard for environmental and social sustainability. The existing Bio-fuels Law requires an urgent redesign and the formulation of new agro-fuel policies, plans, and strategies should be accompanied by strategic sustainability evaluations and more general considerations of sustainable development in the agricultural sector. 76
For example: a) Discourage the indiscriminate production of crops like soy that highly depletes the soil resource; b) Prohibit the extension of the agrarian boundary in the places where the land is used for forest (bear in mind that there actually exists a moratorium of clearing that emerged when the law on minimum measures in forest matters (26.331) became valid, which in some way or other must carry influence) c) Establish benefits that promote the cultivation of native agrarian products or the production of oils based on alternative products such as animal fat. In the same way, in relation to this last aspect, the development of new technologies is visualized as an opportunity to produce the so-called “second generation biofuels” that in the future should be able to reduce the extension of the agricultural border (for example, the energy generated from biomass, etc.). 77 Signed on the 17 of June 1994 in Paris, approved by Argentina by means of Law nr. 24.701 (B.O. 22/10/1996)
79
FARN- 2009 Annual Environmental Report- English Version
h. Native Forests As mentioned previously, the law for minimum standards of protection of native forests was sanctioned at the end of 2007. This law, without a doubt, represents a milestone for conservation and sustainable management of natural resources in general, and specifically for Argentina’s forests. At the same time it is evidence of clear progress in land use planning, especially for the provinces with large forests masses threatened by clearing and/or deforestation78. The law presents a new challenge in terms of territorial organization and the designation of areas for specific uses – with a temporary moratorium on deforestation- by means of a widely participatory land use planning process. Said process must also be governed according to the sustainability criteria that the law itself lays out in its annex. This implies the interdependent analysis of different criteria in order to determine the value of conservation in one sector. Similarly, territorial planning is situated as a central tool in the law, such that timber harvesting permits conferred by individual EIAs do not result in atomized decisions by authorities, but that these decisions form part of a well-arranged and strategic general framework. This new regime opens a new vision of planning of the productive activities, based on a participatory assessment of various factors. As such, is sets an exceedingly useful precedent for potential application to farming and agricultural sustainability, looking far beyond current disputes about soy retentions and their alleged biodiversity protection.
III. Final Considerations In Argentina, it is necessary to transcend the momentary situation of international leadership in soy production and exportation, to address the deeper phenomenon expansion of the agricultural frontier. Only in this manner will we be able to avoid fitful and spasmodic measures, to engage in planning efforts to guide the sustainable development of the agricultural sector in the short, medium and long term. At the same time, if our aim is to achieve more sustainable and equitable development of rural areas, the promotion of alternative agricultural activities is indispensable. Land use and environmental planning, conceived as a strategic tool with a participatory character, should be the country’s leading priority. Its absence negatively affects our ability to create an integrated national development model, especially in regards to sustainable development of rural areas. The general environmental law (LGA) and the law of minimum standards for the protection for native forests represent a clear step forward. At the same time, they imply a substantial challenge for organization of the territory, highlighting the need to rethink the regulation and planning of productive activities in relation to agriculture. 78
Law of minimum measures of environmental protection for the native forests. Law 26331 (B.O. 26/12/07)
80
FARN- 2009 Annual Environmental Report- English Version
In Argentina, Environmental Impact Assessments (EIA) are foreseen as obligatory and preemptive measures in the case of projects or activities that may imply a significant impact on the physical environment or the quality of life of the population. Strategic Environmental Assessments (SEA) are defined as a procedure with the objective of evaluating of the consequences or environmental impacts in the formulation of the strategic decisions made by the government sector, including initiatives, policies, plans and programs. In this context, specific consideration and serious evaluations of the impacts derived from the use of phytosanitary products must be addressed in order to guarantee the protection of the environment and human health. Along the same lines, it is necessary to promote an adequate appraisal of the services offered by ecosystems. Incorporation of the concept of “ecosystem services� will present an opportunity to explore new agricultural strategies, which should be taken into consideration in the definition of the national model. If agro-fuels are to be considered as a genuine alternative to the conventional energy matrix and traditional fuels, they must be thoroughly evaluated and demonstrate a positive energy. Specifically, bio-fuels present two great challenges, one related to the social and environmental sustainability of their utilization and another related to issues of food security. Similarly, we face a series of pending policy challenges, including the construction of adequate agricultural and transportation infrastructure, and the generation of economic and fiscal incentives for environmentally and socially sustainable production practices. In summary, achieving a sustainable agro-industrial model will require the active promotion of positioning and economic growth, based on the opportunities offered by the current setting. However, this growth should not be pursued without the necessary consideration of other unquestionable variables, including social equity, the welfare and improvement of the livelihoods of the population, the rational use of environmental resources, the conservation of biodiversity, the appraisal of environmental benefits and services, and the prevention of degradation or destruction of the basic ecological foundation for production and inhabitability. Along these lines, the contents of the native forest law, and its impact on the agricultural sector, may turn out very useful for confronting the challenge of generating more sustainable policies for the whole country. A national environmental policy which is connected to provincial policies and projects is essential if we are to improve the production and productivity in the long term. But this new scenario demands a strategic capacity competent to evaluate the options for change and react in an effective, flexible and coherent manner. Only in this way will be able to achieve the objectives of economic development and social welfare, in a way that is compatible with the sustainable use of resources.
81
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- The Regulation of Domestic Waste in Argentina Report by the FARN Team Translated by Marina Solomon
Executive Summary After the constitutional reform of 1994, Law 25.916 was enacted, establishing the minimum standards for environmental protection and the basic requirements for integral management of residential waste throughout the Argentine territory. The law should be interpreted and applied in a way that corresponds with the requirements laid out in the General Environment Law. The latter is essential to the Argentine environmental law regime as it establishes the objectives and tools for national environmental policy as well as fundamental principles for the interpretation and application of all public and private regulations and acts that involve the environment. As such, tools and policies like the process of environmental impact assessments, citizen participation, or environmental information, are aspects that cannot be ignored in the design of management programs for domestic and residential waste. In terms of the role that authorities play in this subject, it is necessary to distinguish the roles of national, provincial, and municipal bodies. In this sense, the intervention of COFEMA is fundamental in terms of coordination, since this issue implies certain interjurisdictional considerations. The regime of solid wastes in the city of Buenos Aires and of integrated domestic waste management of the Province of Buenos Aires require different measures, given that the central issues in conflict are accentuated by the distinct volume of waste generated in these jurisdictions. Both at the national and local levels, certain matters remain unresolved that should be tackled in order to give adequate treatment to the complex question of domestic and residential waste. Among them is the large quantity of open-air landfills that still exist, the necessity of tools for encouraging transparency, monitoring, and enforcement of regulations, the importance of consensus building between municipalities, and the incorporation (formalization) of currently informal systems for the management of residential waste, including paper and cardboard collection and recycling.
82
FARN- 2009 Annual Environmental Report- English Version
The Implementation of Participatory Mechanisms for Environmental Affairs: The Patagonian Experience By María del Carmen García Public Participation Trainer for FARN Translated by Lauren Armstrong
Executive Summary The public hearing in Río Gallegos (11/23/2007), called by the Executive Municipal Power for the discussion of the preliminary draft of the bylaw entitled “The creation of a system of urban reserves in the city of Río Gallegos” was the result of a long process of many years of collaborative work between Fundación Patagonia Natural (FPN) and Fundación Ambiente y Recursos Naturales (FARN), the municipal government and the residents of Río Gallegos in the framework of the project ARG/02/G31 GEF PNUD. The process involved various trainings, meetings with the Legislative and Executive Power of the capital municipality, and diverse public events about environmental issues and the conservation of coastal biodiversity. There were advances and setbacks, both in sanctioning the ordinance and finding the appropriate political moment to implement the first public hearing. The final result was hearing that provided an opportunity to use various forms of participation that contributed to the management of coastal issues and to the local residents’ power to exercise their rights as citizens. I. Introduction The Patagonian experience provides an example for other municipalities interested in the implementation of participatory mechanisms in the decision-making process. That example is the process that culminated in the First Public Hearing of Río Gallegos (11/23/2007), which was called by Executive Power of the Municipality for the discussion of the preliminary draft of an ordinance entitled “The creation of a system of urban reserves in the city of Río Gallegos”. This case brings together the necessary elements of a good practice in the implementation of a public participation mechanism: • • • • •
Political will; Training of the community, public servants, and legislators; Sanctioning of the ordinance and its regulation; Summons for the implementation of the mechanism; Monitoring and technical assistance from NGOs specialized in the subject
83
FARN- 2009 Annual Environmental Report- English Version
These elements are not found in most public hearings. The lack of these elements can generate mistrust and lack of interest of the citizenry in participating in hearings called by their leaders. The hearing to which we refer was the result of many years (almost 10 years to be precise) of collaborative work between Fundacíon Patagonia Natural (The Patagonian Nature Foundation), Fundación Ambiente y Recursos Naturales (The Environment and Natural Resources Foundation), the municipal government, and the residents of Río Gallegos, and is deserving of special recognition for the work of local media. Throughout the process, a number of trainings, conversations with the Legislative and Executive Power, and various participatory events about environmental issues and the conservation of coastal biodiversity were held. It is interesting to observe the long road that was traversed before the first hearing could be held. During the past few years there were marches and counter-marches, not only for regarding the sanctioning of the ordinance, but also in search of a politically appropriate moment for the event. This is an example of the time which is necessary, not only to legislate, but also to utilize the legislation, even in cases- such as this one- which had political backing and political will to implement the mechanism from day one. The political will of the Executive allowed for a process rich in trainings and activities, which provided fertile ground and generating the social conditions needed for effective use of this participatory tool. It developed in this way until achieving the final result: the Public Hearing. This hearing, in turn, became an opportunity to use diverse participatory formats, contributing to the effective management of coastal resources and to strengthening the exercise of citizenship by the city’s inhabitants. Below, the process is presented in a step-by-step fashion, and best practices for the use of participatory mechanisms are described. II. Antecedents • • • • • • •
First Workshop on Public Hearings: 1995 (First phase of the Coastal Management Plan Project) Second workshop took place May 17th-19th, 2004 Sanctioning of Ordinance no. 5043/5579/2006 and its regulation Training of municipal employees: May 12th, 2006 Third workshop with the community: August 25th-26th, 2006 Conference by Dr. Daniel Sabsay in the “Casa de España” (Spanish House), attended by approximately 170 people from all sectors: October 13th, 2006 Presentation by Dr. María del Carmen García about Mechanisms of Public Participation open to the general public: October 22nd, 2007
84
FARN- 2009 Annual Environmental Report- English Version
III. Effects of the trainings and the citizens’ exercising their right to information At the end of 2008, the City Council of Rio Gallegos, motivated by people’s interest in participating (thanks to the administrator’s success with the hearing), decided to call a Constitutional Convention to dictate the organic charter of the city. This occurred, and on June 7th of 2009 the election of the assembly members will be carried out. This constitutes a great achievement in a province that until recently didn’t allow itself to think of designing its own institutions, of expressing which forms of semi-direct democracy they wanted to sanction in order to intervene in communal decisions. Finally, with the support of the media, the citizenry will have the opportunity to participate in the making of its Constitution, its Organic City Charter. It’s important to note that this all started ten years ago with the training workshops mentioned prior. It is also important to mention another effect produced by the actions taken in Río Gallegos: the hearing held on September 24th, 2008. In this last case we provided technical assistance to the government of Santa Cruz on the topic of public hearings in the process of Environmental Impact Assessments (EIA). The work team, similar to that mentioned earlier, was composed of María Elena Caramuto from the FPN and María del Carmen García of FARN. Technical assistance was provided at the request of the Undersecretary of the Environment of the province of Santa Cruz, since it would be the first public hearing for the evaluation of the EIA of the Coal Thermoelectric Center to be built in the Río Turbio zone. The objectives of the team were as follows: • •
Provide technical training to the provincial officials and to the community of Río Turbio about the mechanism of a public hearing. Contribute to the effective implementation of a public hearing, insuring the participation of all those interested in the subject, knowing and respecting the mechanism implemented.
The actions carried out can be outlined in the following manner: •
Training workshop with provincial and municipal functionaries on the mechanism of a public audience, carried out on Tuesday, August 12th 2008. The activity lasted all day and around 60 people participated in the morning, ending in the afternoon with 45 public officials. Different sectors of the provincial government were represented at the workshop (education, health, mining, water resources and a large group of personnel from the Undersecretary of the Environment). The administrators of the cities of Río Turbio and their respective work teams, as well as public officials from the Town of Río Gallegos and provincial and municipal legislators also attended the workshop. The authorities that would soon be implementing the mechanism were very motivated to learn about it. Part of this uneasiness subsided once the workshop was over and the specific consultations of the case were carried out.
85
FARN- 2009 Annual Environmental Report- English Version
•
Counseling the convoking authority about the summons, procedure, registration, specific terms of the hearing to carry out. At various times on Tuesday, Wednesday, and Thursday after the workshops there were meetings with the Undersecretary of the Environment and his work team, also with the administrators of the two communities involved with the project.
•
Training workshop for the local community about the public audience mechanism. The workshop was carried out on August 14th, 2008 in the city of Río Turbio for an entire day and with the participation of 40 people from both communities.
IV.
Observations and Conclusions
The result obtained through the various activities included high levels of satisfaction by the authorities, as much in the case of the Municipality as the Undersecretary. In fact, they solicited continued accompaniment by the NGO team for the editing of the ordinance, the resolution of the summons and presence and facilitation on the day of the event. In the case of the Organic Charter of Río Gallegos, the municipal authorities asked both foundations (FARN and Fundación Patagonia Natural) to carry out training and information workshops for the communities. In conclusion, this experience demonstrates the need to continue training, in order to form an educated citizenry interested in participating in public affairs.
86
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- Participatory Generation of Norms: An Environmental Code for the City of Buenos Aires By Carina Quispe Merovich Director of Governance, Environmental Policy, and Conservation at FARN Translated by Marina Solomon
Executive Summary The developed nations of the world are currently progressing guided by a goal of sustainability. This means that they must consider several crucial variables when decisions are made, namely how the decisions are to be implemented and sustained in time, and how to avoid setting humans and nature at odds with one another. Public and private decision-makers do not always view citizen participation as a worthwhile challenge, nor do they appreciate the qualitative difference that such participation can make. Unfortunately we commonly hear in both the public and private sectors (with some honorable exceptions) that public participation is not efficient, that it slows down the process, or that the citizen “doesn’t know�. These arguments are not particularly convincing. If the mechanisms for participation are institutionalized and disseminated, if public employees receive training, if information is made available and accessible to all, if civil society is organized and adequately informed, and if school curricula engrain the concept of citizenry, the results will soon become apparent. At the same time, the regular implementation of these mechanisms fosters a positive experience for the authorities and for society as a whole, helping create bonds of trust and efficiency in the proceedings. To these benefits we might also add a healthy measure of transparency that can and should by complemented by other participative mechanisms meant to control the public service. Public participation is widely considered an effective way to make sure that those actors or sectors that could be affected by a future regulation have the opportunity to express their concerns, observations, and related comments in an organized setting. It allows public authorities to collect a greater amount of information and diverse views about the same proposal, which puts them in a more favorable position to evaluate problems and anticipate conflicts. At the national level, Argentina already has a regulation passed by decree in 2003 that regulates these proceedings, but it has not been sufficiently enforced. Buenos Aires has also tried to initiate a process for citizen participation for the City Environmental Code, but it has been seriously delayed for political reasons. These situations make it is clear that our politicians still do not value the pacifying effects of genuine citizen participation. They have not yet assumed the important responsibility of creating a sustainable future for our country, nor the obligation of complying with existing regulations, some of which apply at the constitutional level, to deepen and strengthen our national Rule of Law.
87
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- In Search of a State Policy for the Riachuelo River Basin By AndrĂŠs M. Napoli Riachuelo Director at FARN Translated by Marina Solomon
Executive Summary The Matanza-Riachuelo River Basin is the most important water system in the metropolitan area of Buenos Aires. Historically, the lack of public policies on the part of the governing bodies with jurisdiction over the river, as well as the absence of responsible environmental management of industries located in basin, have been the main causes of the basin’s deterioration. Over the years it has only continued to deteriorate, becoming a great symbol of pollution in Argentina. The degradation of the river basin affects not only the water it contains, but the riverbed, the air, and the groundwater, directly affecting the health of millions of inhabitants (many of whom already live in an alarmingly vulnerable state, with basic needs unsatisfied, unable to access basic services like access to safe drinking water or sewage systems) and impacting the productive potential of the entire area. Nonetheless, the importance of the river basin and its problems has been systematically excluded from the public agenda. This situation may soon begin to change due to a lawsuit brought forth by residents of the area and received by the National Supreme Court, breaking with former precedent. After a complex process that required hard work on the part of the Supreme Court, and in which the various involved parties participated actively, a historic feat was accomplished. The ruling established the responsibilities for prevention and restoration of collective damages, as well as a list of obligatory actions to reach this goal, creating a broad system of control for the enforcement of the sentence. The Matanza-Riachuelo River Basin is currently presented with a historic opportunity, perhaps its last, to rectify its miserable state, thus improving the quality of life of millions of inhabitants and creating an important model for taking action in the public and private sectors, providing information to the public and fostering citizen participation. This model can then be applied in other cases throughout Argentina in hope of consolidating a new paradigm for sustainable development.
88
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- Challenges for the Judiciary and Access to Environmental Justice By Eduardo Jiménez Professor of Constitutional Theory at the Universidad Nacional de Mar del Plata Translated by Marina Solomon
Executive Summary When addressing environmental issues, judges tend to encounter “complex” cases that not only require interdisciplinary knowledge, but whose results tends to move farther and farther away from the classic zero-sum scenario in which one party wins and the other party loses. These cases invite judges to assume new postures, as thoughtful mediators, and guiding hands for articulating the constitutional mandate of “sustainable development”. This is why it is necessary to promote awareness among judges in this importance subject and why they should adopt these measures immediately in order to completely fulfill of their duties. Environmental law requires active participation of the judiciary in order to carry out its preventative role. When addressing environmental issues, undoubtedly judges should have considerable power (conferred by the law and further developed by the constitutional concepts of bilateralism and due process). They should have power to include in their sentence a broad range of decisions aimed at the protection of the public good, to extend the total compensation beyond the amount originally requested, or to define the destination of this compensation. Also, when defining the protection of environmental goods, the effects of sentences ordered by judges may go beyond the case brought to bear by the parties. Thus, the profile of any magistrate changes radically when tackling environmental issues. A particularly paradigmatic case is that of “Mendoza” (Matanza-Riachuelo), in which the National Supreme Court made use of the maximum commanding and instructive faculties conferred upon it by the law. It is necessary to emphasize the important role that our Court assumed in this case, through the identification of new paths, procedures, and fundamentals. We hope that other judges might follow in suit. Likewise, certain judicial actions before the Federal Court N° 2 of First Circuit for Civil, Commercial, Labor, and Contentious Administrative Law (Juzgado Federal N° 2 de Primera Instancia en lo Civil, Comercial, Laboral y Contencioso Administrativo) in the city of Mar del Plata serve as examples that can help us understand the role of the judiciary in environmental disputes. In such cases, one can see the practical application of environmental concepts such as: the use of standing law to facilitate environmental protection; the application of the term ecosystem; the need for procedures for completing environmental impact assessments prior to implementing new initiatives; and the application of precautionary and preventative principles.
89
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- A Supreme Court for Sustainable Development By José Esain President of the Mar del Plata Association of Integral Environmental Studies (AMEAI) Translated by Marina Solomon
Executive Summary In order to understand and analyze the recent work of the Supreme Court, we should not think of coincidences but of connections. The incorporation of third generation human rights in the Argentine constitution has changed the way that our justice system addresses causes relating to this type of good, and it provides a glimpse into changes in procedural methods. Likewise, in the age of collective rights, we must creatively consider new clothing for our old institutions in order to guarantee the protection of these rights. The Supreme Court has recently begun to formulate an important doctrine about environmental law and sustainability. This process has seen forward and backwards steps, but can be described generally in three phases: a) The Silent Phase (until 2004): silence at the top, paradoxically, was contradicted by a quite dynamic movement at the base (a proliferation of lower level jurisprudence which accepts environmental issues and defines profiles of tutelage for the protection of environmental rights; during this initial phase the Supreme Court addresses few cases which are of little institutional significance, barring a few exceptions); b) Intermediate Phase (from 2004 to 2006): stage during which we begin to see the first advances; the Supreme Court incurs in the environmental affairs with a few initial decisions, and; c) Phase of Specific Treatment for Environmental Cases with Precise Mechanisms – the Environmental Court (from June 20th, 2006 to date): with the Matanza-Riachuelo case, the Supreme Court defined itself as an “environmental court”. The means of intervention of the Highest Court during this final period has surpassed what, in the previous period, appeared as incipient dabbling, and has developed into an express treatment with specified rules. Over the last 3 years the Supreme Court has made a concerted effort to reduce its caseload, thus diminishing its competencies. Interestingly enough, environmental law has remained. In this most recent phase there are a number of new elements. On one hand, we see a changing composition of Supreme Court Justices and a new method for designation, a reduction in activity due to restrictive interpretations of several of the court’s functions, and reaffirmation through participatory institutions that broaden the Highest Court’s democratic legitimacy (amicus curiae, third parties, public hearings, reports on human rights causes, Judicial Information Center, Commission on Access to Justice, etc.). On the other hand, we also see atypical sentences such as “Verbitsky”, “Mendoza”, “Badaro”, “Salas” that contain direct orders to other branches of government concerning the adoption of public policies. An overview of the most recent jurisprudence of our Supreme Court verifies that the environmental process is close to being consolidated, and that new winds are blowing from the Judiciary in relation to environmental justice. 90
FARN- 2009 Annual Environmental Report- English Version
The Current State and Recommendations for the Strengthening of Voluntary Private Reserves in Argentina Alejandra Carminati Coordinator of the Refuge Program; World Wildlife Fund, Argentina Carina Quispe Director of Governance, Environmental Policy and Conservation at FARN Translated by Ashton Wesner
Executive Summary Voluntary private reserves are currently being developed in the large majority of Latin American countries. Although this initiative is still incipient in Argentina, several successful experiments have been carried out, mainly by civil society organizations and interested individuals. Various provinces have norms than contemplate this figure, although very few effectively implement it. The figure has not yet been taken into consideration under national norms. It is of interest to both rural property owners as well as authorities to strengthen private initiatives with a strong consensual political base developed by the participation of all the distinct sectors involved. I. The Current State of Argentina’s Natural Resources Argentina has the largest diversity of natural ecosystems of all countries in South America, including four bioregions unique to the country: Pastizales pampeanos, Espinal, Monte and Estepa Patagónica that together provide habitat for a rich diversity of species. Simultaneously, a large part of the Argentine economy is based on the exploitation of renewable natural resources. A large part of the income generated from exportations comes from the foodstuffs, minerals and minimally processed good derived from natural resources. These activities imply the modification and deterioration of ecosystems and result in, for example, unsuitable agricultural and livestock practices, and poorly managed and protected wildlife. In contrast, a large part of natural resource conservation efforts have focused on the creation of protected public areas- Argentina’s System of National Parks is one of the pioneers of Latin America- and the recent creation of provincial park systems have contributed to these efforts. Even so, the country has placed only slightly more than 7% of its continental territory under any category of conservation, a percentage beneath the international standard. Additionally, much of the regulation is poorly implemented, including the scant protection of the under-represented bioregions such as the Pastizal Pampeano. The rest of Argentine territory is almost entirely in the hands of private landowners. Consequently, it is crucial to involve rural landowners in natural resource conservation activities.
91
FARN- 2009 Annual Environmental Report- English Version
In this sense, the instrumentation of provincial norms to promote private voluntary reserves has begun, and various experiments have been undertaken based on cooperation between rural landowners and civil society organizations. In the framework of the project “Promotion of public politics, institutional development, and local involvement in the development of privately protect areas,” developed by the World Wildlife Foundation Argentina (Fundación Vida Silvestre Argentina, FVSA), in collaboration with the Environment and Natural Resources Foundation (Fundación Ambiente y Recursos Naturales, FARN), with the support of the Tinker Foundation Inc., research has been undertaken on this topic and new information used to update the work carried out 2001 (Castelli, 2001). A national survey of private voluntary reserves was carried out and interviews undertaken to analyze the initiatives’ levels of implementation. Simultaneously, the team has participated in a series of multisector workshops for private reserve owners, representatives of leading NGO’s, and technical state organisms such as the National Institute for Agricultural Technology (Instituto Nacional de Tecnología Agropecuaria, INTA), the Administration of National Parks, Universities, and various provincial administrations. In the space of these workshops, participants generated recommendations for strengthening private reserve system in Argentina. II. National and Provincial Regulatory Framework On the regulatory level, at least two levels of environmental protection regulation coexist in provincial jurisdictions: the “minimum standards laws” of environmental protection – which establish a basic, uniform guardianship established by the national parliament and applied to the entire country79– and provincial regulations that, in some situations, may be even more demanding than the aforementioned. The General Environmental Law No. 25.675 – the law of “minimum standards” - foresees within its objectives the “assurance of preservation, conservation, recovery and improvement of the quality of environmental resources, both natural as cultural, even in the face of various anthropomorphic activities,” the “maintenance of ecosystems balances and dynamics,” and the “guaranteed protection of biological diversity.” The principles enshrined by this law – including prevention and precaution – along with administrative instruments and tools for public participation it mentioned, provide a complete regulatory framework in Argentina. This framework maintains the idea of uniting forces and responsibilities for conservation purposes. Additionally, it is important to take into account the new Law of Minimal Environmental Protection of Native Forests No. 26.331, which establishes the need for a compensation fund for environmental services for landowners who contribute to forest conservation. On the international level Argentina’s conservation regime is upheld and reinforced by diverse international agreements such as the Convention on Biological Diversity.
79
These regulations are derived from article 41 of the National Constitution, reformed in 1994. This article recognizes the right to enjoy a healthy and balanced environment, and the need to preserve the same opportunities for present and future generations.
92
FARN- 2009 Annual Environmental Report- English Version
Predating most modern conservation initiatives, neither the Civil Code nor the National Law No. 22.351 (National Parks) contemplates a specific legal figure to regulate private environmental, based upon a voluntary agreement between an individual/private entity and a national authority. However, on the provincial level, 11 of the 23 Argentine provinces make mention in at least one instance of private property as a possible component of the public system of protected areas.80 These provinces can include, if they wish, the landowner of a private conservation area in their provincial system, imposing certain requirements on land use while in exchange providing technical and economic benefits and support to the respective proprietor. In other cases, the public authority can propose the protection of a specific area and the landowner may voluntarily adhere to the private reserve system.81 III. The Work of environmental NGO’s in relation to private reserves As in the majority of Latin American countries, private conservation initiatives in Argentina have been largely been the product of the work of nongovernmental organizations with their own lands or through support to rural landowners. The Fundación Vida Silvestre Argentina (FVSA) pioneered the creation of the first private reserves, including the Tuyú Countryside Wildlife Reserve in 1979. Since 1987, it has managed the Wildlife Refuge Program, a network of private reserves on a national scale, based on agreements between rural landowners with well protected and preserved lands. Other organizations which work with landowners include the Habitat and Development Foundation (Fundación Habitat y Desarrollo), Felix Azara Natural History Foundation (Fundación Historia Natural Félix de Azara), the Argentine Bird Association (Asociación Aves Argentinas) and Proyungas, all of which offer technical assistance and institutional support. In 2008, The Nature Conservancy joined these activities in the Patagonian Steppe. In addition to the FVSA, other organizations such as the Natural Patagonia Foundation (Fundación Patagonia Natural), Argentine Conservation (Conservación Argentina), and Patagonia Conservation (Conservación Patagónica) also participate as proprietors in diverse private reserve projects. IV. Current Situation of Private Reserve Development in Argentina Based on the registry managed by the National Park Administration and the survey carried out, the present project can account for a total of 123 private voluntary reserves82 covering slightly more than 710.790 hectares. In Misiones, there are 30 private reserves, and in Santa Fe 29, both of these being provinces where environmental regulations and the work of NGOs converge cooperatively. However, provinces such as La Rioja, La Pampa, Tucumán, Jujuy, and Tierra del Fuego, whose regulations do not make mention of the possibility of private reserves, do not have records of these numbers. At the same time, provinces such as Salta, 80
Buenos Aires, Catamarca, Chaco, Chubut, Entre Rios, Misiones, Neu Quén, Río Negro, Salta, Santa Fey San Juan. 81 It is important to mention that some of these norms do not stipulate timelines or minimum duration requirements for adhesion to private conservation regimes, while others do. Requirements vary from a minimum of 3 years to a maximum of 20 years. 82 These numbers should be considered preliminary due to the absence of a formal registry of all areas.
93
FARN- 2009 Annual Environmental Report- English Version
Buenos Aires, NeuquÊn y Catamarca, which in fact have included clauses in their regulations, have still not signed private reserve agreements with any land owners. Of the existing Argentine reserves, 50% correspond to the action of NGO’s and 18% are not recognized by the government or by environmental organizations. In comparison with other countries in the region, it can be confirmed that private conservation initiatives are still in their infancy in Argentina. The reserves accounted for vary in structural appearance, the motivations of property owners, and the activities undertaken in order to preserve wildlife and landscapes. Nevertheless, they all reflect the interest of the private sector in natural resource conservation activities in situ. V. Proposals and Perspectives -
The conservation of private lands has great potential, as long as there are public policies to support it. The country finds itself in an opportune moment, taking into consideration current levels public awareness and concern for environmental issues.
-
It is evident that national and provincial regulatory frameworks still require a great deal of improvement, in terms of sanctioning new laws and modifying existing ones. Legal modifications should take into account the precedents set by other Latin American countries and should include a proper analysis of the institutional weaknesses which the implementation of private reserve systems may confront at a provincial level. Specifically, it is necessary to analyze the feasibility and efficacy of sanctioning a new minimum standards law, at a national level, as well as reforming the Civil Code. At a provincial level it is important to undertake pertinent previsions and modifications, taking into account the particularities of the specific ecosystems in question and developing adequate incentive mechanisms for the private sector, in the framework of longterm policies based on consensus between all relevant actors.
-
Argentina does not yet have a space for the administration and exchange of information about private reserves, as many Latin American countries do. Nevertheless, the first steps are being taken to combine efforts through establishment of a network, conceptualized as a space for the exchange of knowledge, information, and the development of joint initiatives.
-
It has been clearly demonstrated that landowners exhibit interest in the conservation and sustainable use of their lands, and that state authorities have begun to consider this possibility as a method of integrating a protected areas policy of public and private interest.
94
FARN- 2009 Annual Environmental Report- English Version
-
The promotion of new private reserves should respond to a national level strategy and public policy for conservation, taking into account, for example, buffer zones, biological corridors for public reserves, or regions with weak representation within the existing parks system. In this sense, the National Park Administration and the Environmental and Sustainable Development Secretariat could play an active role in providing the training and technical assistance required by this type of initiative.
-
The use of scientific knowledge and an intersectoral approach, with citizen participation, is essential for the further development of land use and conservation. It would be interesting to involve technical organisms such as the National Institute of Agricultural Technology (INTA) and other research institutes in the development of recommendations on productive activities that increase the economic value of natural ecosystems, activities absolutely necessary for the economic maintenance of private reserves.
Bibliography Castelli L., 2001. Conservación de la naturaleza en tierras de propiedad privada. 1. ed. FARNy Alianza Regional para políticas de conservación en América Latina. Buenos Aires. 191 páginas. APN, 2007. Las áreas protegidas de la Argentina. Herramienta superior para la conservación de nuestro patrimonio natural y cultural. Administración de Parques Nacionales. 87 páginas. Moreno, D., A. Carminati, M. E. Di Paola, C. Quispe y N. Machain. Áreas protegidas privadas en la Argentina, análisis y recomendaciones para el fortalecimiento de la conservación privada en el país. FVSAy FARN. Buenos Aires. En prep.
95
FARN- 2009 Annual Environmental Report- English Version
Argentine Maritime Spaces: The Challenges of Biodiversity Conservation and Civil Society’s Contributions By Pablo Fernando Filippo Coordinator for the Foundation for the Conservation of the Patagonian Seas and Areas of Influence (Foro para la Conservación del Mar Patagónico y Áreas de Influencia) Translated by Rebecca Schmitt
Executive Summary The wide maritime spaces under Argentine jurisdiction and their adjacent areas are at a crossroads, requiring the reconciliation of their development and exploitation with needs for biodiversity conservation. Scientific investigation is vital to help find alternatives in this context. Civil society’s contributions- by means of cooperative efforts based on science- are an example of collaboration in this process, mitigating the tension between the inter-generational equity and the precautionary principle which must guide the exploitation of living marine resources. I. Introduction With an area totaling almost 1.7 million kilometers, the interior waters, the territorial beaches of Argentina and its Exclusive Economic Zone (EEZ), harbor a large part of one of the most productive temperate ecosystems of the planet, supporting avian populations, marine mammals and numerous species of wildlife and usable minerals of commercial importance. Some practices used in our seaside spaces, particularly in the fishing industries with commercialized products and consumers in primarily external markets, have begun to generate worry among civil society. Satellite images show the enormous concentration of fishing ships that congregate on the Patagonian Platform. And scientific data registers the progressively adverse and undesirable impact of certain fishing practices on avian and mammal wildlife, with the consequent decrease in some populations of these groups. The petroleum industry is in its first phases of maritime exploration, based on the logical energy needs of Argentina, while still showing persistent problems in non-accidental spilling related to the transportation of petroleum. At the same time, eco- tourism has begun to consolidate in some coastal regions. These facts not only demonstrate the economic importance of maintaining functional ecosystems, but also the necessity of an impact evaluation of massive industries over fragile and vulnerable spaces. Regulations on the use of maritime spaces have, until now, integrated the diverse federal and provincial rules governing distinct resources, varying from the regulation of marine wildlife resource exploitation, mineral resources, the transportation of merchandise, and
96
FARN- 2009 Annual Environmental Report- English Version
tourism, among other things. In the historical evolution of the normative body governing maritime resource use, legislators have reproduced theoretical focuses and methods which make it difficult to escape the structure of a purely legal perspective, see beyond the economic interests that motivate regulations, and transcend the needs of the specific administration in power, usually compelled by more pressing and urgent interests. In this framework, the conservation of biodiversity- whose precise economic value is difficult to measure, despite how obvious it is- loses ground to more consumptive uses of the ocean which generally guide the decisions of administrators. The conservation of biodiversity also repeatedly loses out in the absence of integrated state policies and conflicts over sovereignty, because the sectorial and atomized decisions about resource management do not generally obtain an adequate balance between sustainability and exploitation. This problem alludes to the well know tension between the rules based on borders created by man, as opposed to the more subtle natural realities which must be attended to- and man must work to attain agreements over- in order to guarantee the health of our ecosystems. II. The value of Information In order to comprehend the state of biodiversity conservation in our maritime spaces and to dictate effective norms in response to the same, it is necessary to understand the importance of some material sources that should be considered and should support regulations aimed to promote the conservation of marine biodiversity. In particular this requires the sound use of scientific investigation about our ocean’s resources, which should serve as a guide for integrated management by administrators, introduced and applied to the same norms that they sanction. It is essential to consider the solid scientific information in order to mitigate the excessive “politicization” of public policies, reconciling more rational decisions about the future of the exploitation of resources and their management, while promoting the principles of intergenerational fairness and precaution. An important accumulation of scientific information about living resources utilized by administrators in relation to the sea fundamentally originates in official Argentine organizations and in the academic sector. For example, on the matter of sea fishing, there are diverse organizations of investigation that contribute to the integration of knowledge about the species and their improvement. Among others, we can mention the National Institute of Fishing Research and Development (Instituto Nacional de Investigación y Desarrollo Pesquero), the Admiral Storni Institute of Marine Biology of Río Negro (Instituto de Biología Marina Almirante Storni de Río Negro), and the National Council of Scientific Investigations and Techniques (Consejo Nacional de Investigaciones Científicas y Técnicas –CONICET) – by means of their regional centers and diverse public universities. The scientific information such institutions generate is meant to inform and improve decisions regarding proper maritime management, but access to data is notably difficult for those legitimately concerned, making it hard to develop a balanced and complete diagnosis of the state of conservation of Argentine oceans and adjacent coastlines. Thus the investigations and the data which informs them- carried out with
97
FARN- 2009 Annual Environmental Report- English Version
Argentine public funds- cannot always be analyzed in the manner which contributes to sustainable exploitation and the conservation of ecosystems. Along the same lines, investigations tend to focus primarily on issues of extractive fishing, leaving out other aspects of biology, ecology, technology, environmental sciences, economy, and the social sciences. Nevertheless, there are examples of projects and documents representative of the efforts to obtain and integrate information about specific aspects and regions in the maritime areas under the Argentine jurisdiction. Among initiatives with a focus in ecosystems, we can list The Patagonian Marine Project- Biological Diversity of Conversation and Conservation of Marine Contamination in Patagonia (el Proyecto Marino PatagónicoConservación de la Diversidad Biológica y Prevención de la Contaminación Marina en Patagonia (PNUDARG02/18), the Consolidation and Implementation Project of the Management Plan of the Patagonian Coastal Zone for the Conservation of Biodiveristy (el Proyecto Consolidación e Implementación del Plan de Manejo de la Zona Costera Patagónica para la Conservación de la Biodiversidad (PNUDARG/02/G31), and the Environmental Protection Project for the Río de la Plata and its Maritime Front (el Proyecto Protección Ambiental del Río de la Plata y su Frente Marítimo: Prevención y Control de la Contaminación y Restauración de Hábitats (FREPLATA). Among other technically relevant documents, it is worth mentioning El Mar Argentino y sus Recursos Pesqueros (Boschi, E. E., Editor General; Instituto Nacional de Investigación y Desarrollo Pesquero, INIDEP), el Atlas de Sensibilidad de la Costa y el Mar Argentino (Boltovskoy, D., Editor General), la Situación Ambiental Argentina 2005 (Fundación Vida Silvestre Argentina), and the reports Tracking Ocean Wanderers (BirdLife International) y Defying Ocean’s End (Conservation International). Lastly, it is worth mentioning the recent publication Halpern, et al. A Global Map of Human Impact on Marine Ecosystems (Science 319: 948, (2008). III. The Forum for the Conservation of the Patagonian Seas Most recently, a group of civil organizations have joined scientific forces in order to promote knowledge about the ocean, promoting new support for the discussion of future regulations and policies related to the conservation of the marine areas of interest for Argentina. These organizations, which belong to the Forum for the Conservation of the Patagonian Seas and its areas of influence,83 foster a more integrated comprehension of the Patagonian marine ecosystem and its state of conservation. Also, in said context, they support projects aimed at the creation of protected marine areas, conducive to the effective implementation of sustainable development policies, taking into account the precautionary principle and promoting participatory, transparent, and responsible government. Finally, they facilitate initiatives to disseminate, educate, and spread knowledge of the importance and value of the seas as a natural resource reserve, as supplier of ecological services, and an object of contemplation and source of inspiration. Under this vision, they have developed a diagnosis based on ecosistemic criteria on the state of biodiversity and the environment of an oceanic area that, for the effects of 83
See: www.marpatagonico.org
98
FARN- 2009 Annual Environmental Report- English Version
investigations and space circumscription, they have arbitrarily dominated the Patagonian Sea. This is a project of cooperative nature, involving civil society and the academic world, an initiative to build collective knowledge on a regional scale. This so-called “Project for the Conservation of the Patagonian Seas and Areas of Influence” (“Proyecto para la conservación del Mar Patagónico y áreas de influencia”), is the result of the analysis and integration of information about the Patagonian seas available from the organizations which form part of the Forum. The objectives of this tool go beyond the data involved in a merely diagnostic evaluation, transcend the scale of individual efforts by member organizations. The difference has been accomplished thanks to the support of expert groups, most of them academic in nature, which have contributed as collaborators to the project. The publications associated with this Forum are in the process of presentation and will come to light in 2009, constituting abbreviated and extended versions, respectively, of the relevant points of more than 50 chapters and summarized case studies, written by 78 authors belonging to 29 organizations (17 NGO’s). In this manner, civil society is promoting the generation of information, to be used as a basis to establish conservation objectives, provide points of reference, and foster specific behaviors, and promoting the proper connection between applied investigation and resource management decisions. It is our hope that a progressive opening in terms of access of environmental informationin which administrators assume knowledge, conscience, and leadership regarding standards such as the Law 25.38184 - will facilitate future scientific developments from the most diverse sectors committed to the wellbeing of the country and the region. Unlike those critical voices from various sectors which will not easily admit to reality- and seem to anchor themselves lifelong monologues as a priority activity- it is our hope that hope that participatory, scientific processes supported by civil society will help us overcome the conservation challenges that are currently mortgaging the destiny of the Argentine seas and their adjacent areas.
84
Law 25.831 (BO06/01/04) refers to Minimum Standards of Enviornmental Protection on the topic of Access to Public Enviornmental Information.
99
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- Urban Nature Reserves: An Effective Tool for Local Environmental Protection AndrĂŠs Bosso Executive Director of Aves Argetinas (Argentine Birdlife International) Mauricio Manzione Urban Nature Reserves Program at Aves Argentinas Translated by Marina Solomon
Executive Summary Urban nature reserves have proved to be an effective tool for environmental management. Currently, of approximately 250 protected areas in Argentina, about 80 could be considered urban. Their motivating role for citizen participation and their capacity to be easily understood by various authorities and the local community has led to a rapid growth of urban reserves in Argentina. This article offers suggestions for actions to be taken by universities, municipalities, provinces, public departments, and NGOs dedicated to environmental and social issues in order to implement to strengthen these havens of conservation and to help to improve the quality of life of the surrounding population.
100
FARN- 2009 Annual Environmental Report- English Version
Law of Minimum Environmental Standards for the Protection of Native Forests Carina Quispe Merovich Director of Governance, Environmental Policy and Conservation for FARN Hernán Giardini Coordinator of the Biodiversity Campaign for Greenpeace Argentina Diego Moreno General Director of the World Wildlife Foundation Argentina Translated by Cory Needle
Executive Summary Our country faces a genuine crisis in regard to its native forests that has unfortunately intensified rapidly over the past ten years due to the poorly controlled expansion of agricultural activity in zones that were traditionally covered by forests. Nevertheless, the legislature successfully passed the National Forest Law (law 26331) after overcoming a series of obstacles to its enactment – obstacles that have also affected the subsequent executive rulemaking process.85 While the rulemaking process represents an important advance in the ultimate implementation of the law, it has regrettably fallen short in this case because the executive branch has ignored the previous advisory process – in turn limiting several substantial aspects with regard to the creation of the national foundation for the Enrichment and Conservation of Forests – and has eliminated any chance of institutionalized societal participation. In a process initiated in mid-2006, FARN worked arduously and in conjunction with Greenpeace, the World Wildlife Foundation, and more than thirty other environmental and social organizations. In the ensuing time period, the consortium of civil society organizations conducted mobilization campaigns, presented documents, and issued joint declarations in an effort to achieve the passage of the law and its implementation. It is important to stress the level of mobilization of civil society on this matter, reflected by the more than one million signatures that accompanied the petition demanding the passage of the law. The subsequent collection of articles attempts to capture representative points-of-view from Greenpeace, the World Wildlife Foundation Argentina, and FARN in regard to the final outcome stemming from the collective efforts of the civil society organizations. The first article by Hernán Giardini, Coordinator of the Biodiversity Campaign for Greenpeace Argentina, describes the forest crisis that Argentina faces and the process that led to the passage of the National Forest Law. He also highlights that since the 85
The implementation of the environmental law involves a two-step process 1) passage by the legislature (sanción) and then detailed rule making by the executive branch (reglamentación)
101
FARN- 2009 Annual Environmental Report- English Version
passage of the law, the deforestation rate has fallen by 60%. Next, Diego Moreno, Director of Conservation for the World Wildlife Foundation Argentina, identifies the National Forest Law as an important procedural tool for institutionalizing the practice of regional land use planning – a long sought after goal – stressing that regional land use planning is a necessity for truly sustainable development. Subsequently, Carina Quispe, Director of Conservation and Environmental Policy for FARN, places law 26331 (National Forest Law) – law of minimum standards – within the national legal framework in light of Argentinean constitutional law and describes the law’s constituent elements in detail. Finally, based on its relation to the topic at hand, the article offers a brief analysis of the recent ruling of Argentina’s Supreme Court of Justice with regard to logging and deforestation in the Province of Salta.
The National Forest Law: A Giant Step Forward for the Defense of the Environment By Hernán Giardini Coordinator of the Biodiversity Campaign for Greenpeace Argentina
I. Introduction Forests contain more than half of the biodiversity on the planet. Additionally, they play a fundamental role in the regulation of the climate, the maintenance of the sources and volume of water, and the conservation of the soil. From them, we gain goods and services essential for our survival. But in spite of the recognized importance of forests as providers of goods and services, deforestation looms as one of the largest and most pressing environmental, as well as social, problems in the world. Currently, forests cover around 30% of the planet’s surface area, or about 4 billion hectares, of which only 9% is protected. Deforestation continues to increase at an alarming rate. Approximately 13 million hectares disappear each year, an area similar in size to the province of Santiago del Estero in Argentina. In addition, at the global level, deforestation contributes significantly to climate change, as it is responsible for close to 20% of greenhouse gas emissions – an amount that represents a larger proportion of emissions than the entire global transportation sector. Deforestation is responsible for 35% of emissions in developed countries and 65% of emissions in developing countries. At the moment, native forests in Argentina occupy 31,443,873 hectares, which is only about 30% of the initial surface area covered by forests.86 The annual deforestation rate, which is calculated as the yearly percentage of loss, has increased significantly in the country and far outpaces the global average. Since 1998, more than 2.5 million hectares have been lost in Argentina, a rate of about 280,000 hectares per year, with the expansion of soy agriculture and cattle herding as the leading causes of the deforestation. 86
Primer Inventario nacional de Bosques nativos, Secretaría de Ambiente y Desarrollo Sustentable de la nación, Argentina, 2007.
102
FARN- 2009 Annual Environmental Report- English Version
The Parque Chaqueño is the forest region that is suffering from the most destruction: this region alone accounts for 70% of the annual deforestation in the entire country. The forests in its semiarid region are on the brink of total destruction. More than 90% of the original forest area in the piedmont of the Yungas Forest has vanished – cleared in the 30s and 50s for sugar cane plantations and today for soy plantations. The situation in the Misionera Forest is also critical. Only 7% of its original surface area remains. Argentinean society has developed without proper consideration of its forest resources, which, among other causes, is driven by the distance between the forested areas and the population centers of the country. The fact that Argentina’s economy grew to become so centered on agricultural and cattle herding activity, almost exclusively in the country’s Pampas, fostered a conception in which forest activity is not regarded as a facilitator of national socioeconomic development. Historically, economic activity related to forests in Argentina was based on wood production, an entirely extractive use that also involved some value-added processing. Many regions in the country have used the resources of their native forests as the main source of economic development, such as the logging activity in the Misionera Forest, the Parque Chaqueño region, and in the piedmont of the Bolivian Tucuman forest. Nevertheless, the absence of rational resource management plans – exemplified by indiscriminate cutting often of the most valuable species – resulted in the rapid deterioration in the health and quality of the forests, a first step toward the future conversion of the use of the soil. It is estimated that between the end of the 19th century and the beginning of the 20th century, Argentina possessed more than 100 million hectares of forests, covering approximately 30% of the country’s surface area. But the demand for primary native forest products that helped bring about the automation of cattle ranching, the increase in agricultural land, and consequently the expansion of the rail network (whose millions of cross ties were made from native trees), resulted in a significant reduction in the surface area covered by forests. In addition, it is necessary to add the demand during WWI for Argentinean forest products, when our country was the producer of tannin extract. The National Farming Census of 1937 reported that there was a surface area of 37,535,308 hectares of native forests. Since then, the estimations have indicated a notable decrease in the total surface area covered by forests: whereas in 1987, the National Forest Institute estimated that there were 35,180,000 hectares of forests, in 1988 the Forest Authority calculated only 33,190,442 hectares remained. But the 1990s ushered in a new wave of deforestation – driven by investment in infrastructure, technological changes (the introduction of genetic modification and direct seeding), and international demand – that resulted in one the most striking transformations of the native forests in the history of the country. In addition to the degradation produced by the indiscriminate manual cutting of trees, an even worse phenomenon developed: the use of heavy machinery to clear the forest in search of new land to extend the farming frontier, principally for the production of genetically-modified soybeans and for cattle ranching.
103
FARN- 2009 Annual Environmental Report- English Version
With this context in mind, the current bills that call for the large-scale production of soybased biofuels portend a continued high level of pressure to identify new land and in turn push agricultural activity even further into forested areas.The provinces of Salta, Santiago del Estero, and Chaco contain the most native forest cover, but the provinces also contain the greatest amount of deforestation.
II. The Difficult Path Towards the Enactment and Implementation of the National Forest Law It is evident that our country faces a genuine crisis in regard to its native forests that has unfortunately intensified rapidly over the past ten years due to the poorly controlled expansion of agricultural activity in zones that were traditionally covered by forests. To that effect, “GEO Argentina 2004: Perspectives on the Environment in Argentina,� a report produced by the National Secretary of the Environment and Sustainable Development and the Regional Office for Latin American and the Caribbean of the United Nations Environment Program (UNEP), affirms that our nation faces a crisis in regard to our forests, and warns that to continue the current policies aimed at increasing domestic grain production will lead to the expansion of the agricultural frontier into lands presently covered by native forests. On the other hand, the National Chamber of Deputies declared on May 4, 2005 that they requested that the Executive Branch, through the Ministry of the Interior, take all necessary steps to declare a National Forest Emergency, and consequently, to order, in conjunction with the provinces, the absolute prohibition of the cutting/felling of native forests in Argentina until the legislature passes a law establishing minimum standards for the protection of the forests. Facing this grave situation, the President of the Committee on Natural Resources and Conservation of the Human Environment in the lower legislative chamber, Deputy Miguel Luis Bonasso, introduced the Minimum Standards for the Environmental Protection of the Native Forests Bill in June 2006. The bill relied on robust internal committee debate and substantive contributions from environmental organizations such as the Environment and Natural Resources Foundation (FARN), the World Wildlife Foundation Argentina, and Greenpeace to take its final form. After being debated by the Committee on Population and Human Development, the bill was generally approved by the Chamber of Deputies on November 29, 2006. In March 2007, the bill was specifically approved by the chamber, notwithstanding the ardent opposition and abstention of some of the Deputies from the Northern provinces. Amongst the most important requirements of the final bill passed by the legislature are the following: the drafting of a Territorial Zoning Plan for the Native Forests that is participatory in nature (OTBN); a moratorium on the cutting/felling of trees until the provinces complete said zoning plans; the completion of obligatory Environmental
104
FARN- 2009 Annual Environmental Report- English Version
Impact Assessments in regard to deforestation activities; and the recognition of the rights of indigenous communities and small rural businesses with ties to the native forests. After being approved in particular and in general by the Chamber of Deputies, the National Forest Law passed to the Senate in March of 2007 for review. Within the Senate, the bill was sent to 6 Committees for review: Environment and Sustainable Development; General Legislation; Budget and Treasury; Agriculture, Ranching and Fishing; Criminal Justice and Industry. From there began a slow process that included the introduction of various alternative versions of the bill. The alternative versions were submitted by Senators from provinces that opposed the bill with the intention to obstruct the final passage of the bill that had been approved in the Chamber of Deputies. Facing this particular situation, and within the context of strong public pressure for the immediate Senate review of the Deputies’ version of the National Forest Law, the governing majority agreed on October 9 to send the original version of the bill to the floor for review during the second week of November. The official majority announced their position regarding the review of the bill one week after representatives from Greenpeace, the World Wildlife Foundation Argentina, and the Environment and Natural Resources Foundation (FARN) – together with more than thirty environmental and social organizations – presented the senate with a petition signed by over one million people all over the country demanding the immediate review of the bill, an amount of public support that demonstrated an extreme level of cohesion on the issue. After overcoming a series of procedural hurdles – including managing the various versions of the bill circulated through the committees and taking into account the contributions of the National Secretary of Environment and Sustainable Development – the Senators continued their official review and debate of the law using a version that preserved the key provisions of the Chamber of Deputies’ version: a moratorium on the cutting/felling of trees; the completion of obligatory Environmental Impact Assessments in regard to deforestation activities; the drafting of a Territorial Zoning Plan for the Native Forests (OTBN); and the recognition of the rights of indigenous communities and small rural businesses with ties to the native forests. Additionally, the Senate version included stipulations requiring public hearings prior to any authorization of deforestation and the prohibition of open air burning of the forest byproduct resulting from any authorized deforestations. To this version of the law, which did in fact maintain a large portion of the original bill’s text, the Senate also added a section to ensure sources of funding for the protection of native forests and sustainable development initiatives. Detailing the funds in this manner – 0.3% of the national budget and 2% of the withholdings from exports of agricultural, ranching, and forest products – was a necessary concession in order to gain the support of provincial Senators. Nevertheless, the inclusion of funds by the national government reflects the state’s recognition that the conservation of the native forests is absolutely
105
FARN- 2009 Annual Environmental Report- English Version
necessary and serves as a clear example of a political decision that is aimed at safeguarding the country’s future through responsible ongoing management. Finally, the Senate version of the National Forest Law was approved on November 21, 2007, and was subsequently debated and approved by the Chamber of Deputies one week later. Thus, the final passage of the National Forest Law results in a material advance in environmental protection and helps resolve a serious shortcoming in this country. It also represents an unprecedented achievement for Argentina regarding environmental issues more broadly and stands as a significant achievement for civil society regarding their ability to focus and channel the call for environmental protection. According to the National Secretary of the Environment and Sustainable Development, the deforestation rate has fallen by 60% since the passage of the National Forest Law. More than a year after the law’s passage and less since the announcement of its precise regulations, social organizations continue to work to ensure that the law remains an effective tool for solving the forest emergency that our country currently faces.
A Crucial Law for Sustainable Development By Diego Moreno Director of the World Wildlife Foundation- Argentina (FVSA)
I. Introduction Over the course of the past decade, numerous actors within Argentinean society have begun to stress the necessity of regional land use planning as a tool for managing development. The planning will not only help to assure the conservation of our country’s natural resources, but it will also serve as a mechanism for resolving environmental conflicts and provide clear rules to the private sector to assist in investment decisions. This appeal for regional land use planning did not emerge solely from the social (nonprofit) sector. The manufacturing sector has also recognized the need for change. The report Farming Production and the Environment: Shared Proposals for Sustainability – endorsed by institutions such as INTA, the World Wildlife Foundation Argentina, AAPRESID, proGrano, FARN, Aves Argentina, the National Secretary of the Environment and Sustainable Development, the National Parks Administration, and others – along with the final conclusions from workshops that gave rise to the report, signal a clear consensus between the public, private, and social (nonprofit) sectors with respect to the necessity of regional land use planning. During the past ten years, many institutions began to conduct studies and generate territorial information at the regional level, critical input for regional land use planning. The World Wildlife Foundation Argentina and a diverse array of institutions and relevant regional actors have been part of this movement and have sponsored many endeavors aimed at producing eco-regional evaluations of the Chaqueña region, the Paranaense
106
FARN- 2009 Annual Environmental Report- English Version
Forest, the Valdivianos Pastures and Forests. Nevertheless, public policies dedicated to the promotion of regional land use planning have been very slow to appear. The National Forest Law (26.331) is a first step in this direction. Moreover, the substantial debate generated during the law’s passage in the National Congress illustrates the law’s potential positive effect on our nation if properly applied. In a broad sense, the National Forest Law is a jumping-off-point for the development and implementation of a regional land use planning process for Argentina’s native forests. Further, its passage through Congress points to the relative adequacy of the originally proposed bill and its subsequent enrichment through robust debate from representatives across the nation’s provinces (it is also fitting to highlight that more than thirty civil society organizations throughout the country, in addition to 1.4 million Argentinean citizens, participated in the development of the final bill) The law includes three fundamental attributes. The first is the suspension of the authorization of deforestation permits until each province completes a territorial zoning plan. The second is the identification of criteria – developed through a process that is participatory in nature and ranging from economic production needs to cultural and national preservation – to be used in the creation of a comprehensive territorial zoning plan for the native forests. The third is the economic valuation of the goods and services that the forest provides to society, to be used for the establishment of a payment scheme for environmental services (PES), funded by a percentage of the national budget and a percentage of export taxes. These three attributes combine to indicate that this law – if properly applied – has the potential to generate a sweeping change in the destiny of our country’s forests. The correct application of the law becomes even more imperative when, in consideration of global environmental issues, the conservation of forest resources is not only necessary to help stem global climate change, but is also is an increasingly important objective in a world that is becoming more and more environmentally conscious. It is also worth mentioning that there already exist examples of payment schemes for environmental services (PES) at the global level (e.g. carbon credits) that move millions of dollars annually in the international market. In this sense, the law in question 26.331 raises an issue of great significance, which is the recognition that the value of our nation’s forests should be measured by more than their near-term economic potential or the value of the land on which they are situated. Society should instead recognize that our forests have a broader value – measureable in economic terms – that properly considers the long-term benefits they provide to society. For the first time, in our country, we will have the opportunity to engage in comprehensive regional land use planning (at a minimum in the forests where the law applies). Such an opportunity is exactly what we need to guarantee the viability of our nation’s development in the medium and long term. Additionally, comprehensive regional land use planning, arising out of a participatory and collaborative process where all interested parties have a say in the matter, does not only permit us to generate a framework within which we can grow as a nation, but also provides us with an opportunity to engender
107
FARN- 2009 Annual Environmental Report- English Version
harmony between societal sectors that are normally pitted against one another in turn diminishing future conflict. The drafting of the law and the overall law making process have been greatly enriched by the robust debates that have unfolded. We can only hope that, moving forward, the law is implemented in a meaningful and effective manner in which case Argentina will assume an excellent position in regard to conservation of biological diversity at both the national and global levels.
The Legal Framework By Carina Quispe J.D., M.S. in Technology and Environmental Planning. Director of Governance, Environmental Policy and Conservation for FARN
I. Minimum Standards for Environmental Protection Our country has already suffered a very serious loss of native forests. The official statistics compiled by the National Secretary of Sustainable Development shed light on the extent of the crisis: as of October 2007, we have lost 280,000 hectares to deforestation, a staggering amount that translates to 821 hectares every day, 34 every hour. The level of support generated amongst civil society to address the environmental concern was without precedent, reflected in the collection of 1.4 million signatures that accompanied a formal written request to the Senate demanding their immediate passage of a native forest protection bill that had been approved by the Chamber of Deputies in March 2007. The Senate obliged and subsequently approved the bill, but because of modifications in the Senate version, the bill had to be sent back to the lower chamber to be reapproved. Finally, in the end of December 2007, after continued pressure from civil society organizations and the public, law 26.331 – Minimum Standards for the Environmental Protection of the Native Forests – was formally approved by the full Congress. The approved legislation lays the foundation for what we hope will be a momentous change in the management of our national native forest resources. Additionally, the legislation is soundly grounded from a legal perspective in the reformed 1994 Constitution. Article 41 of the reformed constitution recognizes the right to a clean and balanced environment and establishes a duty of protection as a means to guarantee this right. The article also establishes that "political authorities will protect this right through promoting the rational use of natural resources and preserving the country’s cultural and natural heritage as well as its biological diversity.” Government protection of the environmental right can manifest itself in a variety of ways, whether through formal political policies, an approach to decision-making, or one-off concrete actions. It also
108
FARN- 2009 Annual Environmental Report- English Version
extends to all three branches of the government – executive, legislative, and judicial – at all governmental levels. By virtue of its status as the supreme law of the land, the Constitutional mandate sits atop the hierarchy of national and local laws. In addition, the reforms of 1994 created a specific division of authority between the federal government and the provincial governments in terms of environmental regulation. In order to ensure a uniform “floor” of environmental protection, only one governmental level was charged with setting what the Constitution refers to as “minimum environmental standards”. This power, although affecting the provinces and the autonomous city of Buenos Aires, was delegated to the federal government. These basic and universal national standards may be complimented by provincial laws that address any individual needs or particularities. However, as the national standards establish the “floor” for environmental standards, provincial add-ons may not serve to lower the standards in any way. Thus, although provinces may have enacted individual laws in regard to the management of forest resources before or after the passage of Law 26.331, they must conduct analysis to ensure that they are in compliance with the national minimum standards established by the law. In the event that they are not, the provinces must take whatever legislative steps are necessary to remedy their shortcomings and adequately adhere to the new national standards.
II. The Strategy of the National Forest Law Law 26.331 includes two key measures. The first has produced the immediate cessation of logging and deforestation activities – the moratorium – whereas the second advances a fundamental process that calls for comprehensive territorial land use planning in each province – which includes land use planning for the native forests. The objective of the land use planning is not only to ensure the preservation and sustainable use of the forests, but also to provide an accounting of the environmental services that the forests provide to the community. This latter point is not minor when one considers that this is the first time that a law of minimum environmental standards includes the concept of payment for environmental services. Moreover, the inclusion of the concept reflects an extension of the legal rights protected under the Constitution’s environmental provisions. Within the context of the law, these environmental services function as the evaluative basis for the distribution of funds created by the law in order to provide compensation for the conservation of wooded masses, which is a topic that will be addressed later in the article. The environmental land use planning that the law requires – which is to be conducted in a participatory manner within 1 year of the law’s enactment and in a way that is consistent with the full provisions of the law (in accordance with article 10 of the General Law of the Environment) – must comply with the ten criteria of environmental sustainability contained in the Annex of the law. These criteria operate interdependently and require the consideration of key and determinative issues when weighing the value of conservation in the subsequent zoning process such as the minimum area required for the health of fauna and flora, linkages to other protected areas and environmentally significant zones, the biological impact of the forest, the connection between eco-regions, the state of
109
FARN- 2009 Annual Environmental Report- English Version
conservation, the value of the forests in terms of sustainable agriculture and the conservation of river basins, and the value assigned to the overarching area and adjoining woodlands by indigenous and local communities. Thus, the land use planning process will include assigning affected areas a specific category of conservation. The three categories of conservation are I (red), II (yellow), or III (green) and are determined as a function of the environmental value of the distinct units of native forest and the environmental services that the forests provide. In this way, the environmental land use planning cannot result in the arbitrary forfeiting of certain areas of land unless completely justified under the rubric established by the law. To do otherwise would go against the spirit and letter of the law and be tantamount to rendering it null. As an accompanying and detailed measure – yet no less important – as part of environmental land use planning, authorizations of logging/deforestation activities – prohibited in areas designated as belonging to category I or II – and authorizations of sustainable use – so long as the sustainable use will result in significant impacts (as defined by the law) – require a preliminarily Environmental Impact Assessment. In the case of deforestation/logging permits, a public hearing or public consult is additionally necessary. In sum, the Native Forest Law provides a set of strategic tools that enable the defining of conservation areas more generally and the sustainable management of the categorization process more specifically. The categorization process assigns affected areas to certain conservation categories based on the application of detailed criteria related to environmental impact and environmental sustainability. Additionally, this process is compelled and governed by the environmental land use planning – and incorporated forest use planning– requirements of the law. The Native Forest Law takes a “highest to lowest” approach, placing the protection of the environment and the exploitation of natural resources within the framework of sustainable development and in turn ensuring that environmental, social, economic and institutional factors are all brought to the table during the decision-making process.
III. Transparency, Participation, and sustainability, the key components of the Compensation Fund The Native Forest Law has instituted a compensation fund with the purpose of “compensating jurisdictions that conserve their native forests by paying for the environmental services that are provided by the native forests.” The compensation fund is supported (resourced) through a variety of sources, the most significant of which is a percentage allocation (2%) of all retentions on exports of primary and secondary goods resulting from agricultural and forest activity. Additionally, it should be added that budgetary allocations to the fund cannot be less than 0.3% of the national budget. This clearly reflects the magnitude of resources that must be available for the funds operation.
110
FARN- 2009 Annual Environmental Report- English Version
This fund must be distributed each year amongst those jurisdictions that have drafted and approved provincial laws that call for territorial land use planning in regard to the native forests and are in accordance with the standards of the overarching national law itself. “a) The percentage of surface area covered by native forest declared by each jurisdiction; b) The ratio in each province between their total surface area and the surface area of their native forests; c) The declared categories of conservation, with a greater portion of hectares assigned to category I than category II.” The distribution will operate under the direction of national authorities in conjunction with the relevant local authorities and will be driven at a base level by the documentation that the local jurisdictions will present to the national authorities in order to accredit their native forest categorization processes. The overarching process will make it possible for the national authorities to adequately maintain the declared native forest areas. The law prescribes the manner in which the funds should be applied within the jurisdictions – obligating the jurisdictions to submit a report to the national government detailing the application of the funds. Additionally, the law requires the fund administrators to prepare an annual report to be published in full on the national government’s website. As for the auditing of the fund, law 26.331 establishes in express terms that the national authorities should lay out the necessary procedures for the realization of “integral” financial controls that are to be conducted by the National Auditor General and the National Comptroller General. Our opinion is that, despite the aforementioned precautions, the fund and the law itself requires the implementation of legal and technical monitoring of the end-beneficiaries of the compensation, as only this can guarantee the efficiency and transparency of the fund and the law’s operation. This constitutes an unresolved issue which very well be addressed during the rule-making process (reglamentación) so that, from the beginning, any potential problems with regard to compliance are surfaced and can be addressed. Additionally, the creation of a Participation Commission for the Preservation of Native Forests – with representatives from civil society organizations, the private sector, academic institutions, and public ministries – to handle all questions related to the powers granted to the authorities in charge of implementing the law would constitute a significant macro-level measure to ensure the proper implementation and enforcement of the law. In this sense, the national environmental authority and the respective jurisdictions have a historic opportunity to work together in order to protect the country’s native forests within a framework of transparency and participation. This would imply a great momentum toward the successful realization of our constitutional principles, the provisions of the General Law on the Environment, and the provisions of the Native Forest Law, placing us squarely on the path toward intergenerational equity and sustainable development.
111
FARN- 2009 Annual Environmental Report- English Version
IV. Deforestation and Judicial Activism In the case “Salas, Dino, and others vs. Salta Province RE Amparo,” the Supreme Court of Justice resolved as an original matter the complaint brought by a group of local villagers and indigenous communities who had been affected by deforestation in their area. A group of persons, indigenous communities, and native associations initiated an action to address the infringement of fundamental rights and freedoms87, under the terms of art. 43 of the National Constitution, against the Province of Salta and the national government, seeking 1) the immediate and definitive cessation of the deforestation occurring in the native forests of San Martín, Orán, Rivadavia and Santa Victoria, 2) a declaration that the authorization of deforestation/logging permits by the relevant authorities in the affected areas is unconstitutional and that future authorization of deforestation/logging permits is prohibited, 3) that the environment be returned to its state prior to the degradation, and 4) if such a return is not technically feasible, then monetary compensation be provided for the plaintiffs that does not prejudice the claims of other affected parties or the Environmental Compensation Fund established by law 25.675. Petitioners assert that the province of Salta has failed to meet its legal obligations both through commission and omission, by providing affirmative authorization of deforestation through permits and by tolerating clandestine environmental degradation in the area. Such acts, according to the plaintiffs in the suit, threaten, restrict, and violate petitioners’ rights under articles 16, 17, 29, 31, 41, 42, 75, and 17 of the National Constitution, under the General Environmental Law 25.675, and under international agreements. Petitioners also assert that the national government is vicariously responsible for the legal wrongdoing in light of their failure to control the relevant state authorities and in light of their international responsibilities. Additionally, petitioners requested that 1) precautionary measures be granted during legal proceedings that mandated the provisional cessation of the authorization of deforestation permits in the relevant areas, and 2) the provincial government be compelled to realize a preliminary diligence report in which information about the people who have requested and received deforestation authorizations in the relevant areas is provided. In their December 29, 2008 ruling, the Supreme Court of Justice ordered 1) that a public hearing involving the relevant parties be convened on the 18th of February, 2009; 2) that the province of Salta provide the requested information through the solicited preliminary diligence; and 3) the granting of the solicited precautionary measures – as is customary in situations where there is sufficient probability in the law, where there exists the risk of irreparable or imminent harm, and where the precautionary principle applies – which involves ordering the provisional suspension of logging and deforestation permits granted by the province of Salta during the final quarter of 2007 in the native forests of San Martín, Orán, Rivadavia and Santa Victoria. 87
Acción de amparo
112
FARN- 2009 Annual Environmental Report- English Version
In response to the Province of Salta’s request to remove the applied precautionary measures, on March 26, 2009, the Supreme Court of Justice not only maintained the precautionary measures but also ordered that all authorizations of deforestation/logging in the four departments be suspended until the Province of Salta realized an environmental impact study adhering to the guidelines laid out in the opinion. Furthermore, the Court granted the province a period of ninety days to complete the aforementioned study. In light of the absence, on behalf of the provincial government, of a genuine consideration of the environmental impact produced by the cumulative effects of the deforestation authorizations, the Court based their decision on the precautionary principle (art 4, law 25975), and on the discretion of judges to extend their decisions to questions not expressly raised for their consideration by the parties involved in the suit (art. 32 25675). The decision reflects a clear recognition by the Court of the existence of a situation in which there is a clear danger of irreversible or serious harm to the climate in the region. In regard to the procedure for conducting the environmental impact study, the Court mandated that the study be realized by the Province of Salta in conjunction with the National Secretary of Environment and Sustainable Development, while also granting communities that inhabit in the affected zone a robust opportunity for participation. Furthermore, the Court held that the study must a) provide detailed analysis on the cumulative environmental impact of the logging and deforestation activities on the climate, the landscape, the environment more generally, and the living conditions of local inhabitants; b) propose a solution that reconciles the twin aims of environmental resource protection and economic development – based on a thorough consideration of the involved costs and benefits – and also provides probability estimates of any trends it identifies in an effort to evaluate fully the relative benefits involved for current and future generations. Once again we observe, as has been the case in many other environmental matters, that a judicial decision – rendered in this instance by no less than the Supreme Court of Justice – provides a means in which to address the serious issue of deforestation in our nation. Notwithstanding the fact that this approach and result reveal deficiencies in the other branches of government, decisions of this kind should be celebrated.
113
FARN- 2009 Annual Environmental Report- English Version
OECD Guidelines and the Challenges of the Argentine National Contact Point By Belen Esteves Coordinator of Trade and Sustainable Development Department, FARN Translated by Toni Funk
Executive Summary The OECD Guidelines for Multinational Companies are recommendations made by governments for multinational enterprises. They formulate principles and voluntary norms for responsible corporate conduct compatible with applicable legislation. The objective of the Guidelines is to guarantee that the activities of these companies are carried out in harmony with public policy, to strengthen the mutual confidence base between the companies and the societies in which they operate, to improve the climate for foreign investment and to promote the contribution of these multinational companies towards sustainable development. The Guidelines span an ample thematic range, including such topics as publication of information, employment and labor relations, environment, fight against corruption, consumer protection, science and technology, competency and taxation. The governments that endorse the Guidelines have a formal obligation to establish a National Contact Point. In this sense, the National Contact Points carry out a fundamental role in terms of increasing the effectiveness of the Guidelines, promoting them and mediating in cases of Guideline violations, contributing in this way to the resolution of problems. This paper presents a detailed review of the various institutional designs taken by National Contact Points of certain countries. Its objective is to contribute to the analysis, design and promotion of more efficient institutional structures and achieve greater effectiveness in the implementation of the Guidelines.
I. Background a) Origins of the Organization for Economic Co-operation and Development After the Second World War, in the year 1947 the United States and Canada created the Organization for the European Economic Co-operation (OEEC) in order to organize and administer help from the United States and Canada under the Marshall Plan for the reconstruction of Europe. In 1961, the countries of Western Europe and the United States, replaced this organization with the Organization for Economic Co-operation and Development (OECD), gathering the most developed countries of the world.
114
FARN- 2009 Annual Environmental Report- English Version
The OECD is an international intergovernmental organization which analyzes and establishes orientations about themes of international relevance, including the economy, education and the environment. It is one of the most influential world forums where member countries look for answers to common problems, share experiences, coordinate domestic and international policies, and outline agreements on the basis of these discussions. The mission of the OECD is to build strong economies in its member countries, to improve efficiency of markets, to expand free trade, and to contribute to development in industrialized and developing countries. The OECD, with its headquarters in Paris, has established that each state member counts as one vote. There are currently 30 members: Germany, Australia, Austria, Belgium, Canada, Denmark, Spain, the United State, Finland, France, Great Britain, Greece, Hungary, Ireland, Iceland, Italy, Japan, Luxembourg, México, Norway, New Zealand, the Netherlands, Poland, Portugal, the Czech Republic, Slovakia, Switzerland and Turkey. At the same time the figure of “observing country” has been applied to ten88 non-member countries, with the possibility of later being incorporated as full members. In the year 1976, the member countries of the OECD agreed to the Declaration on International Investment and Multinational Enterprises, written under the auspices of the Investment and Multinational Enterprises Committee (CIME). This declaration was an expression of an ample political compromise whose principal aim was to promote international cooperation for transparency and non-discrimination in foreign investment policies and other governmental practices. In this context the OECD Guidelines (from now on the Guidelines) were established an instrument that governments, OECD members and others that have adhered to the same rules, have adhered to in order to make recommendations to Multinational Corporations (MNCs). The Guidelines form part of the OECD Declaration about International Investment and Multinational Corporations, whose remaining elements refer to national treatment, contradictory obligations imposed on companies, and the incentives and disincentives of international investment. The Guidelines form part of a series of instruments created by the OECD with the purpose of creating a favorable environment for foreign investment as a catalyst for growth and sustainable development, as well as for the reduction of poverty. During the 90s, Argentina made a clear attempt to obtain a greater degree of international credibility and to align itself with developed countries. For that reason on the 22nd of April,1997, through exchange of notes between the Secretary General of the OECD and the Argentine Ambassador in France, our country adhered to the “Declaration on International Investment and Multinational Companies,” dating to the 21st of June, 1976. Through this instrument Argentina has become a regular observer of the International Investment and Multinational Corporations Committee of the OECD and its working group and became a participant of the “OECD Guidelines for Multinational 88
These countries are not members of the OECD but they have adhered to them: Argentina, Brazil, Chile (currently in the process of being incorporated as a member), Slovenia, Romania, Estonia, Israel, Latvia, Lithuania, and the recently incorporated country of Peru.
115
FARN- 2009 Annual Environmental Report- English Version
Corporations.” In this way, Argentina became one of the non-member countries of the OECD that have adhered to this Declaration, committing itself to the promotion of a wide array of principles and recommendations designed to create an atmosphere of confidence and predictability between corporations, governments, labor organizations, and civil society.
II. OECD Guidelines a) Basics of the OECD Guidelines The Guidelines are recommendations developed by governments to promote a group of principles and voluntary norms for responsible corporate conduct – compatible with diverse applicable legislation. The Guidelines are a tool for member governments and adherents of the OECD, which are directed towards MNCs and all their entities, including those which operate in or from OECD countries, wherever they have activity (including countries that have not endorsed the Guidelines). They also promote implementation over the entire supply chain. The objective of the Guidelines is to guarantee that the activities of multinational corporations are carried out in harmony with public policies, to strengthen the base of mutual confidence between businesses and societies in which they have activity, to improve the climate for foreign investment, and to foster the contribution of multinational corporations towards sustainable development. The Guidelines, internationally recognized as a viable instrument for the practice of Corporate Social Responsibility (CSR), state the basic universal principles and voluntary norms for responsible corporate conduct and contain 10 chapters that span an ample thematic range. They are briefly detailed below: • • • • • • • • • •
Concepts and Principles General Principles Information Disclosure Employment and Labor Relations Environment Fight against corruption Consumer Interest Science and Technology Competition Taxation
The OECD Guidelines for Multinational Corporations, which have been revised in various occasions89, foresee no sanctions nor do they offer compensations. Nevertheless, 89
Revision of the Guidelines: The Guidelines that are mentioned were approved in 1976 and have experienced consecutive modifications in the years 1979, 1982, 1984, 1991, and 2000. It is emphasizes as a substantive result of revision of 1991
116
FARN- 2009 Annual Environmental Report- English Version
they currently make up one of the few available mechanisms for advising companies of their responsibility. They allow for the monitoring of multinational companies and actions against them in the case of non-compliance. b) Characteristics and Challenges of the OECD Guidelines Among the characteristics of the Guidelines, we consider it important that they integrate an ample range of topics. On the other hand, since they constitute the recommendations of all OECD governments to their multinational corporations, they are a potentially useful tool in pressuring for corporate social responsibility. The applicability of the Guidelines is extra-territorial, since they also apply to countries that are non-OECD members. Therefore, the Guidelines provide an option in countries where the legal framework doesn’t function properly or where the legal system is not easily accessible to NGOs. The claims process offers a forum with governmental support, which increases state commitment to guaranteeing corporate social responsibility. The Guidelines and their complaint process can help to exert pressure on those companies that do no act in a socially or environmentally responsible manner so that they improve their conduct. Despite the revision of the Guidelines carried out in 2000, and the revived interest in the same, there are still aspects that will present great future challenges: • • • •
In the case of specific instance procedures, the Guidelines offer as a consequence but not as a sanction, the risk that the decisions of the National Contact Point (NCP) suggest for the reputation of the businesses. At the same time, the OECD Guidelines have weak implementation mechanisms. On the other hand, adhering governments do not have the responsibility of monitoring implementation of recommendations by MNCs, and the NCPs aren’t obligated monitor compliance once the dispute has been resolved. Finally, there are gaps regarding to the confidentiality of information in the cases that are presented and questions as to how this issue relates to access to information.
with the inclusion of the chapter about the protection of the Environment. As such, in the last revision in the year 2000, the following are those points that are emphasized: − Modification of the procedure of putting into practice and implementation − Application of the Multinational Corporations (MNCs) and all its entities, wherever they operate (including countries that are not subscribed to the Guidelines). Therefore, they have included companies that not only operate in OECD member countries and also company that have their headquarters in an OECD member country and that operate in other places − Extension to the entire supply chain, this is to say the MNCs must encourage their trade partners so that their business is compatible con the Guidelines. This means that the social responsibility of a company must extend itself to all of its suppliers, contractors, subcontractors, dealers, trade associations and to whatever company that does any type of business for the corporation − They incorporated chapters about the fight against corruption and the interests of consumers
117
FARN- 2009 Annual Environmental Report- English Version
III. National Contact Points (NCP) a) The Basics of National Contact Points The only formal obligation for governments that subscribe to the Guidelines – those that are member countries or adherents – is that they must establish National Contact Points (NCP) in their respective countries90. The NCPs are the institutional means of national tracking and application of the Guidelines, which are articulated by means of this figure. The NCPs carry out three basic functions: 1. In the first place, it is important to mention the “Promotion and Information” of the OECD Guidelines by NCPs. It is their responsibility to inform the business community, labor unions, and other interested parties about the Guidelines, answer the queries of relevant actors and inform current and future investors. 2. Another function that corresponds to the NCPs is “Mediation” of disputes arising from violations of the Guidelines, whenever a case of inobservance by national corporations is reported by a labor union, an NGO, or another interested party. The NCPs take charge of discussions with the implicated parties on the issues raised by the Guidelines in order to contribute to the resolution of disputes, constituting a discussion forum for the responsible government organism. 3. Finally, NCPs are obligated to attend an annual meeting at the OECD headquarters in order to share experiences and present a report to the CIME. Subsequently the OECD generates an annual report with the favorable or unfavorable results of countries and companies. Lastly, each NCP must operate in agreement with the four basic criteria of visibility, accessibility, transparency and responsibility, as established in Procedural Manual for the Guidelines. b) Argentine National Contact Point (ANCP) In the year 2000, our country established their NCP, and in June of the following year participated in its first meeting of NCPs at the headquarters of OECD in Paris91. The formal creation of the ANCP was achieved by means of Ministerial Resolution No. 1567/06, which created for the first ever a Coordinating Unit for OECD-related topics. Among other competencies, this unit acts as the Argentine National Contact Point, and is situated in the Ministry of Foreign Relations and Trade and Culture. Although the ANCP has, to date, functioned as a mono-departmental structure (including only one department of the government), 2007 saw the initiation of a restructuring process. This restructuring will include an Operational Protocol and will incorporate the 90
To see a comparative chart of the Institutional Structures of NCP go to page 11 That first step also emphasized the fact that applying the recommendation of the TUAC, presented a legislative project to the National Congress that was linking with the NCP to Parliament, which reached half the sanction with regard to 2001. For more information go to: “Latin-American Experience in the OECD Guidelines and National Contact Points” CSI-ORIT. Collaboration with TUAC. OECD. July 2007. 91
118
FARN- 2009 Annual Environmental Report- English Version
participation of civil society into its structure, through establishment of an Executive Committee, where NGOs, labor unions, companies and the very same ANCP will interact. FARN is one of the NGOs which have been invited to participate. In this context, FARN – with the collaboration of SOMO –agreed to undertake a survey of comparative experiences about the institutional structures of other NCPs in order to determine the best form for civil society participation in the ANCP. It used as a starting point the proposal of participation made by the Ex ANCP, Ambassador Della Torre. Subsequently, FARN presented a proposal for civil society participation before the National Focal Point that will be detailed in the following section. c) Comparative Report of the National Contact Points The following will delineate the results of the comparative investigation done by FARN. First, it will compare the institutional structures of the NCPs around the world, to later identify those that present similar schemes to that of the argentine context, how they are formally constituted, and how they incorporate civil society participation. In keeping with the Procedural Manual for the OECD Guidelines, there is a flexible framework so that each country can designs an appropriate institutional scheme for their NCP, as long as they maintain the criteria of visibility, accessibility, transparency and responsibility, designed to promote the objective of functional equivalency. The following comparative chart presents a schematic of the different structures utilized by different National Contact Points. It is important to emphasize that there is no discrimination between the Member Countries and the Adhering Countries92. Table of Comparative Intuitional Structures of NCPs 20 NCP: Single Departments– Involves only one area of government (Argentina, Australia, Brazil, Czech Republic, Germany, Greece, Ireland, Israel, Italy, Luxembourg, Mexico, New Zealand, Poland, Portugal, Slovakia, Slovenia, Spain, Switzerland, Turkey ant the United States). 7 NCP: Multiple Departments- Involves various areas of government (Canada, Hungary, Japan, Iceland, Korea, the Netherlands, and the United Kingdom) 1 NCP: Bipartite – Participation of the government and business sector (Work is represented across the Ministry of Work, Family and Equality of Opportunities and has queries across the Labor Union depending on the debated situation). (Romania). 9 NCP: Tripartite – Participation of the government, business sector and labor union (Belgium, Denmark, Estonia, France, Latvia, Lithuania, Luxembourg, Norway, Sweden. Some of these countries are considering multiple department structures for their NCPs) 2 NCP: Quadripartite – Participation of the government, business sector, labor union
and NGOs (Chile and Finland) In conclusion, of the 39 NCPs currently in existence, 51, 28% are single departmental; 17.94% are multiple department; 2.56% are Bipartite, 23.07% are Tripartite and lastly
92
Source: Annual Report of National Contact Points – 2007 -, available at www.oecdwatch.org.
119
FARN- 2009 Annual Environmental Report- English Version
only 5.12% present a structure similar to Argentina, with an institutional design of Quadripartite, including three representative sectors, business, labor unions, and NGOs. The chart that follows provides an informational map of the NCPs which contemplate formal channels of civil society participation. From this we can conclude that only 3 NCPs are considering channels of participation similar to what Argentina is proposing. Number NCPs 39 15
24
of Institutional designs of NCPs with civil society participation All of the NCPs (includes NCPs of member countries and adherents) NCPs that have formal channels of participation with Institutionalized Bodies or Advisory Councils: Austria (Advisory Committee), Belgium (Tripartite Structure), Chile (Quadripartite Structure), Denmark (Tripartite Structure), Estonia (Tripartite Structure), Finland (Quadripartite Structure-Advisory Committee), France (Tripartite Structure), Israel (Advisory Committee), Italy (Advisory Committee), Latvia (Tripartite Structure), Lithuania (Tripartite Structure), Luxembourg (Tripartite Structure), Romania (Bipartite Structure), Sweden (Tripartite Structure) 3 NCPs – of the 15 mentioned above – are adopting formal requests for the participation of NGOs to be apart of their current structure or to function as an advisory council: Chile (NGO involved in quadripartite structure), Finland (NGO involved in quadripartite structure as an advisory council), Austria (NGO integrates the advisory council conjunctively with the business and labor sectors); the rest of the NCPs, are adopting the business labor sectors into their structures or as advisory committees, excluding the participation of NGOs. NCPs that do not have formal channels of participation for Organizations of Civil Society in their structures or contemplate only informal structures for participation, when specific cases arise or when specific information is required (extraordinary meetings).
In the case of the Austrian NCP, where they have formally established an Advisory Council, the participation of civil society in this group is open without any restriction to all interested NGOs. Although there is a list of 20 “umbrella” NGOs that are invited to collaborate, only two NGOs are actively participating, one of which is the “Clean Clothes Campaign” (CCC). On the on the other hand, since there is no established term or timeline for participation, it is at the discretion of the NGOs to decide. All important matters are discussed in the space of the Advisory Council, including the content of the Annual Report prepared by the NCP. Complaints are considered based on the procedures established in the Manual of Proceedings for the OECD Guidelines. The multi-sectoral advisory group shares and exchanges information, and NGOs are authorized to present suggestions, although their recommendations are non-binding in the virtue of being an advisory committee. The NGOs that participate are formally called to meet with the multi-sectoral advisory group four times a year.
120
FARN- 2009 Annual Environmental Report- English Version
As communicated by the Austrian NGO CCC, this country’s NCP is not interested in direct participation by NGOs, as part of the institutional structure. For that reason the CCC recommended an alternate structure for Argentina, ie inclusion of NGO’s in the same NCP institution, since otherwise it may mirror the Austrian model which presents a great challenge to participation, since the opinions of NGOs is not assured. In keeping with this conclusion, the aforementioned NGO also warned that if the NCP becomes simply an experts’ forum, it loses weight and political force in the final decision. For this reason it must strive to balance civil society participation with the role of the NCP as a representative of the government sector. In the case of Chile, we have unfortunately not obtained a response or information from the head of the National Contact Point. However, the NGO Ecoceanos (member of OECD Watch) responded that the structure of the NCP does not function with the participation of NGOs. In Finland, in the orbit of the NCP, there is an advisory commission (MONIKA) and the NGO Finnwatch represents the NGO sector. One of the functions of this Commission to promote the Guidelines and it acts as an advisory board on a number of issues. All the opinions are binding, but according to the NGO consulted (a participant in the Commission) voting procedures are rarely put into motion. The members of the Commission are appointed by the government for 3 years. One of the greatest worries of the part of the sector of civil society, and in particular of the NGO Finnwatch, is that the divergent or dissident opinions are not reflected in the final declarations of the NCPs, meaning that the reputation of associated NGOs may be dangerously affected. Finally, it is worth mentioning that this NGO has not declared whether the participation of civil society in Finland’s NCP has been positive or not. Taking into account the information already analyzed, there are two more cases that deserve special consideration. Whether or not they are applicable in the argentine context, they have nonetheless adopted innovative institutional designs for the participation of civil society. 1) National Contact Point- Holland The NCP of Holland, while not containing provisions for formal participation of civil society, holds informal meetings with this sector three times a year. In almost half of the cases presented before this NCP, NGOs have participated as “Informers.” The work of an informer is to notify the NCP of details regarding the complaint and, if necessary, to participate in the process of mediation. In such cases, the opinions of NGOs are consultative in nature, and non-binding. Nevertheless, there is an important point to be made about the institutional structure of this National Contact Point. The Dutch government revised their NCP in June of 2007 and transformed it into an independent organism. The Dutch Ministry of External Trade announced the institutional reform of the NCP and the corresponding changes in
121
FARN- 2009 Annual Environmental Report- English Version
procedural considerations. Now, the Dutch NCP consists of an independently appointed representative and 2 or 3 more voting members (also independent), with previous experience in business, labor and NGO sectors. It also contains 4 non-voting advisors, which represent the ministries of economy, social services, development cooperation and environment. The new Dutch NCP is a more independent organism than before, however it still maintains links to the government and all of its declarations are accompanied by a ministerial position. Key reforms were concentrated on the complaint reception and resolution functions of the Dutch NCP. Its new priorities include the definition and publication of proceedings to deal with the cases presented, including admission criteria, mandated steps, and specific timeframes for resolution of cases. Based on these new procedural rules, the NCP will focus its interventions on the task of conflict mediation. The organism is currently drawing up its new internal protocols and, upon finalization of this publication, has not yet concluded this process. One final note is that Dutch NGOs have received the aforementioned changes with enthusiasm, nevertheless warning that the credibility of reforms will depend primarily on the voting members appointed by the Ministry of External Trade. These people must have support from all relevant stakeholders, as well as the knowledge and experience necessary to fulfill the role. Dutch NGOs will be monitoring closely the manner in which the new NCP deals with cases. 2) National Contact Point- Great Britain The NCP of the United Kingdom does not contain provisions for the formal participation of civil society. It nevertheless presents innovations given its establishment of an independent Directory Organ that supervises and watches over the operations of the NCP. This Organ is presided over by a senior official of the Department of Trade and Industry and contains 4 independent external experts, representatives of NGOs, business/ industry, labor, and a Parliamentary Committee, and the members must act in a collegiate form. The NGO sector has appointed a specialized human rights lawyer to represent them in this forum. The members of the Directory Organ will serve for 3 years, and may renew their term for 3 more years. One of the key responsibilities of the Organ consists of helping the NCP to interpret the Guidelines and determine the correct application of its dispositions, although they cannot directly decide over the complaints presented. The Organ can also receive appeals related to procedural issues. The minutes of the Directive Organ are normally published in order to promote transparency. Although the institution is fairly incipient, local NGOs have affirmed that they are already observing positive results in terms of the supervision of NCP decisions. d) Conclusions of the Report Based on the research undertaken, we can conclude that there is no single model or structure for formal civil society participation in National Contact Points. Some NCP 122
FARN- 2009 Annual Environmental Report- English Version
structures have provisions for civil society participation- business, labor and NGOswithin the same institution. In other cases, this participation does not form part of the structure of the NCP, but is achieved through independent, consultative bodies. Lastly, we have seen an example of NGO participation through a Directory Body which provides independent supervision of the NCP. The structures that demonstrate the greatest similarity to the proposal for NGO participation presented by Argentina’s NCP are those of Chile and Finland. We can highlight the innovative case of Great Britain (UK) where, although it remains to be defined how exactly NGOs will participate in the NCP structure, there does exist a Directory Body (Steering Board) with NGO representation that watches over the NCP. This model is interesting because of the control/auditing role afforded to NGOs as independent actors, external to the NCP structure. This differs from other models, where NGOs participate more directly in the decision-making process of NCPs. Likewise, the independence of the NCP of the Netherlands is extremely interesting and worth keeping in mind. Both cases constitute valuable examples of possible institutional models which, nevertheless, are not particularly applicable to the proposal advanced by the ANCP. On the other hand, the Italian NCP – along with 11 other cases surveyed – demonstrates formal participation channels only for Labor Unions and Companies, excluding the participation of NGOs. Paradoxically, this seems to mirror the model used by the OECD, in which the only officially recognized advisory bodies are the TUAC (Trade Union Advisory Committee, representing the workers of OECD member states) and the BIAC (Business and Industry Advisory Committee, representing the business community). The participation of NGOs is not contemplated as part of the OECD Advisory Council and this practice seems to have had a ripple effect over NCPs around the world. At the same time, our investigation gives evidence of relative informality and the lack of operational protocols for NGO participation in the NCPs. These protocols should contain a detailed description of the rights and obligations of NGOs and their specific modes of participation, as well as precise attributions of functions and faculties. It is also surprising to observe that almost all the NCPs that offer formal channels of participation to the NGO sector lack term limits or other measures to insure alternating representation. This absence may be the product of a lack of initiative on the part of the NGOs, disinterest, lack of knowledge of the topic at hand, or the risks associated with different forms of participation, the majority of which are not governed by clear rules. Lastly, it is important to note the NCP structures of Germany and Sweden, which both have close relationships with United Nations Global Compact. The German NCP was contacted to assist in the mediation of cases related to non-observance of the principles advanced by the Global Compact. Also, in the case of Portugal, there exist a number of synergies between the OECD Guidelines and other global instruments for corporate social responsibility. It will be important to consider these examples once the new ANCP structure is functioning.
123
FARN- 2009 Annual Environmental Report- English Version
e) Challenges to the Argentine National Contact Point In the context of Argentina, based on the proposal for civil society participation made by the ANCP and taking into consideration the results of this investigation, as well as the “NCP Model” document published by OECD Watch, FARN has presented a proposal to the ANCP. This proposal contains specific recommendations for civil society participation and represents the consensus of local NGOs and OECD Watch members. The proposal makes special mention of the challenges which must be taken into account by the ANCP when orchestrating durable and institutionally sound channels for civil society participation. Our recommendations are as follows: • • • •
• •
One priority identified by FARN is the need to guarantee ample participation of the entire sector, including all NGOs whose interests are related to the OECD Guidelines, and not limit this participation to the members of OECD Watch. We believe it is necessary to establish mechanisms which legitimize NGO representation before the ANCP. We believe it is necessary to guarantee rotation and alternation of organizations, through the establishment of terms, thereby ensuring democratic participation of the whole sector. We believe it is necessary to establish precisely and taxatively the functions of the Executive Committee and the nature of the same (whether consultative or executive), and to define clear rules for consensus based decision-making, voting and/or quorum. Of special interest and concern, we note the importance of establishing procedural mechanisms which register dissident and alternate opinions, as well as clear rules regarding the publication of information, in order to make the process transparent. We believe it is paramount to establish clear rules with respect to confidentiality93 and the access to information, particularly transparency of the results of processes undertaken.
In conclusion, we would like to highlight the fact that, within the framework of the OECD Guidelines, the strengthening of National Contact Point structures and the promotion of intergovernmental forums and institutionalized instances for civil society participation implies a significant advance for the NGO community. These organizations, as expressions of civil society, need space for involvement in the sphere of the National Contact Point; their participation will, in turn, enrich the work of all the actors involved.
93
The Procedural Guide for the Guidelines affirms that there will be ‘confidentiality’ when procedures about a complaint in motion. ‘We will keep secret the information and opinions proportioned during the procedures for the other party unless their consent is given for it to be divulged’. In other words this means that it is not possible to reveal confidential or sensitive information of a company or the NCP during the meetings and consultations that are part of the proceedings of the complaint. It also means that the NCP can be asked not to reveal information to the company against which the case has been raised, or about the plaintiff or information that concerns them. Both the plaintiff and the company are protected by the rule of confidentiality.
124
FARN- 2009 Annual Environmental Report- English Version
Bibliography “Experiencia Latinoamericana en Directrices OECD y Puntos Nacionales de Contacto” CSI-ORIT. Colaboración con TUAC. OECD. Julio 2007. “Líneas Directrices OECD para Empresas Multinacionales”. Información básica. FARN SES. Año 2004. “Una herramienta de la RSE: Líneas directrices de la OECD”. 2006. Informe Anual de Puntos Nacionales de Contacto del año 2007. www.oecd.org www.oecd.org www.oecdwatch.org http: actualidad.terra.es/nacional/articulo/egipto_OECD_pais_arabe_firmar_1692203.htm
125
FARN- 2009 Annual Environmental Report- English Version
Citizen Participation in Monitoring Infrastructure Projects in South America By Gabriela Vinocur Coordinator of Citizen Participation at FARN Translated by Marina Solomon and Nikki Herst-Cooke
Executive Summary The participation of Civil Society Organizations in regional development processes constitutes a key strategy for influencing political decision makers and affecting the implementation of policies of international financial organisms. Cooperation between organizations and populations likely to be affected during the preparation and execution stages of these projects for the analysis of investment and credit strategies has proven to be extremely important. Concepts such as the physical integration of regions, the opening of new markets, the increase of added production value, the large-scale agro-export model, and transportation, energy and communications infrastructure translate into processes that are associated with the idea of development. The large-scale infrastructure projects promoted by South American governments involve high risks for associated natural resources as they often affect areas with a high concentration of biodiversity, and may produce consequences such as species extinction, deforestation, exhaustion of water basins, floods, as well as other catastrophes. At the same time, these projects could have an impact on the health and culture of communities and on the capacity of ecosystems to provide essential environmental services. The principle objective of this essay is to accentuate the relevance of citizen engagement in utilizing all available tools for participation contemplated in the legislation of these countries. This understanding implies that, in addition to the rights conferred to us, we have a natural imperative to participate in the debate over public concerns and only through the continued exercise of this mandate will be able to contribute to strengthening the capacity of civil society. Access to complete and updated public information responds to the need to evaluate the environmental and social impacts of integration projects, requiring institutionalized mechanisms of citizen participation.
I. Introduction Processes associated with the idea of development include the physical integration of regions, the opening of new markets, the increase of added production value, the largescale agro-export model, and transportation, energy and communications infrastructure. Along the same lines, in recent years certain concepts- such as food insecurity, loss of biodiversity, destruction of natural ecosystems, irrational use of agrochemicals, 126
FARN- 2009 Annual Environmental Report- English Version
deforestation, floods, and social inequality in the distribution of benefits that natural resources provide us- have also gained importance. Confronted with this reality and with the complex task of trying to interpret these effects, civil society is presented with at least two possibilities. The first and simplest option is to reduce the conflict to a struggle between heroes and villains, in which, according to the historical, political, social and economic context, one side or the other always ends up benefitting. The second option is to seek deeper citizen engagement, making use of each and every participation tool envisaged in the constitutions and legislation of South American countries, in the understanding that, in addition to the rights conferred to us, we have a natural imperative to participate in the debate over public concerns and that only through the continued exercise of this mandate will be able to contribute to strengthening the capacity of civil society. II. Regional Integration, Globalization and Public Participation In the setting of prevailing globalization at the beginning of this millennium, the development of regional infrastructure has acquired fundamental relevance in South American countries. Concepts like competitiveness and sustainability were major issues on the path to achieving development based on efficient, productive processes, with the use of clean technologies that continued to reduce in great measure the indiscriminate exploitation of natural resources. Before this stage, as much in Latin America as in other regions, large international financial institutions (IFIs) like the World Bank and the International Monetary Fund, embraced the financing of important infrastructure projects with considerable environmental and social impacts, linked to prevailing political structures concerning particular national development strategies. Two processes provided a stage for the emergence and strengthening of regional financial bodies. On one hand the strong criticism of the actions of these IFIs and the weakness of their programs began to diminish their credibility and legitimacy. At the same time, political changes in this part of the world, with the successive appearance of progressive governments accentuated this tendency and motivated them to look for their own financing alternatives94. In this context, various integration and regional coordination projects arose in relation to Transportation, Telecommunications, Energy and Public Works that included the active participation of organizations such as the Andean Corporation of Public Works (CAF); the Cuenca del Plata Fund (FONPLATA); the Inter-American Development Bank (IADB); the Central American Bank of Integrated Economy (BCIE); the Latin American Exportation Bank (BLADEX), the Caribbean Development Bank (CDB), the Latin American Reserves Fund (FLAR), and national banks such as Brazil’s National Bank of Economic Development (BNDES), and Venezuela’s Economic and Social Development Bank (BANDES).
94
“Una Introduccion a las IFRs: Instituciones financieras regionales en America Latina.” GUDYNAS, Eduardo, www.ircamericas.org, 15/07/08
127
FARN- 2009 Annual Environmental Report- English Version
Currently the Banco del Sur (Bank of the South) is being formed. An agreement certificate for its creation was signed in a presidential meeting in Buenos Aires in December of 2007. Argentina will be part of this group when their operations begin95. This intervention of the regional financial institutions is seen reflected not only in the execution of investment projects, but also by the intense technical cooperation efforts on the part of these organizations96. The participation of Civil Society Organizations in regional development processes constitutes a key strategy for influencing political decision makers and affecting the implementation of policies of international financial organisms. Cooperation between organizations and populations likely to be affected during the preparation and execution stages of these projects for the analysis of investment and credit strategies has proven to be extremely important. Access to complete and updated public information responds to the need to evaluate the environmental and social impacts of integration projects, requiring institutionalized mechanisms of citizen participation. The coordination of regional management strategies and programs should favor consensus-based policies as a permanent action strategy, and consultation with all sectors involved in and affected by social-environmental problems. The large-scale infrastructure projects promoted by South American governments involve high risks for associated natural resources as they often affect areas with a high concentration of biodiversity, and may produce consequences such as species extinction, deforestation, exhaustion of water basins, floods, as well as other catastrophes. At the same time, these projects could have an impact on the health and culture of communities and on the capacity of ecosystems to provide essential environmental services. In this sense, the participation of the civil society organizations should be understood as citizen involvement in public matters, the decision-making processes, and in the administration of public policy, making a clear reference to Principal 10 of the Declaration of Rio de Janeiro that states: “Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.97�
95
Op. Cit. En Ref, 1. Version of the Action Plan agreed to during the Meeting of the Transportation, Telecommunications and Energy Ministries in Montevideo, December 2000, http://www.iirsa.org/BancoMedios/Documentos%20PDF/Plan%20de%20Accion%20Montevideo%20final. pdf 97 http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163 96
128
FARN- 2009 Annual Environmental Report- English Version
III. Initiative for the Integration of the Regional Infrastructure of South America (IIRSA) a. Description of the Project The Initiative for the Integration of the Regional Infrastructure of South America (IIRSA) has emerged as one of the most ambitious plans for investment in the infrastructure of South America. It was conceived during the first Meeting of South American Presidents in August of the year 2000 in Brazil. The objective was create a regional vision for stimulating the modernization of South American infrastructure through a process of political, social and economic integration that would create a standard for fair and sustainable territorial development. The Initiative was the product of the accumulation and coordination of the wide range of projects already in existence, which were then included in the regional vision. It also created a forum for dialogue between the authorities responsible for transportation, energy and communication infrastructure in the twelve South American countries98. We can cite as the source of IIRSA the Declarations and Plans for Action adopted in several different Summits of American Presidents including: Miami 1994, the Summit on Sustainable Development in Bolivia 1997, Santiago de Chile 1998, Quebec 2001, Monterrey 2004 y Mar del Plata 2005. One of the main objectives of these summits was to push through the Free Trade Area of the Americas (FTAA) agreement, whose process has apparently been stalled but whose ends are now being achieved through bilateral Free Trade Agreements. Questions about physical infrastructure are considered vital for all the integration processes, as can be observed in the interest shown in the Plan Puebla-Panamá – PPP – and the Initiative for the Integration of the Regional Infrastructure of South America – IIRSA99. This initiative arose in parallel to the process of commercial integration negotiations in Latin America, from the Free Trade Area of the Americas (FTAA) to the Union of South American Nations (UNASUR), with the objective of achieving the level of development countries had sought for so long, providing the region road, port, and energy infrastructure, and connecting large rivers. In the year 2000, based on these precedents, the Strategic Integration Programs formulated during the summits were consolidated in the regional plan that united the prior conclusions of the IADB and the Andean Development Corporation (CAF). The integration proposal is based on the idea that development in the transportation, energy and telecommunications sectors will help overcome geographical obstacles, strengthen markets and promote new economic opportunities in the region. It includes 98 For elaboration on this point the IIRSA official website was the main source of information: http://www.iirsa.org 99 IIRSA: A Common Language?, Flórea, Margarita, 21/02/2007, http://www.ecoportal.net/content/view/full/67677
129
FARN- 2009 Annual Environmental Report- English Version
mechanisms of coordination and information exchange between governments and the three multilateral financial institutions of the region, IADB, CAF and FONPLATA (Plata Basin Fund). IIRSA’s organizational structure is as follows: Executive Leadership Committee: composed of high-level governmental authorities from every country that participate in the regulatory framework, the political trajectory and the formulation of proposals. Technical Coordination Committee (TCC): made up of representatives from the three financial institutions, it offers technical and financial support to the countries, acting as a facilitator to the process, coordinating joint activities and helping to promote private investment. It is also in charge of promoting and implementing participatory action in civil society. Executive Technical Groups: composed of public civil servants and experts designated by South American governments; they exist at every integration hub and in all processes of each sector. In addition to this, every one of the twelve countries involved in the Initiative designates a National Coordinator who articulates the interests of the different sectors involved (energy, telecommunications, transportation, economy, foreign relations and planning). The project’s guiding principles instruct the actions of government and TCC financial institutions, and relate the objectives of the Initiative with others from the region: Open regionalism Integration and Development Hubs Economic, social, environmental and political-institutional sustainability Increase in Added Production Value Information Technology Normative Convergence Public-Private Coordination Building on these principles, the Ministries of Transportation, Energy and Communications from the twelve member countries drew up an Action Plan for the Initiative in which the primary focus is the Integration and Development Hubs, complemented by the development of actions concerning Sectorial Integration Processes in order to improve competitiveness and promote sustainable growth in the region. There are ten Integration and Development Hubs that provide a territorial reference for the broader sustainable development goals in the region. The territory of each hub is organized around multinational strips that concentrate populations and the production of current and potential flows of economic importance, which should gradually converge
130
FARN- 2009 Annual Environmental Report- English Version
towards mutually agreed upon standards for quality and service in infrastructure, transportation, energy and telecommunications. We speak of “consolidated hubs” in areas where there active commerce flows of economic relevance are already concentrated. “Emerging hubs” are those that could facilitate access to areas with a high productive potential but that are currently relatively isolated or underutilized due to an insufficient supply of basic infrastructure services. In terms of projects, the priorities of IIRSA are the improvement of infrastructure in high traffic areas, the planning and construction of infrastructure in areas with a high potential for development, the identification of bottlenecks and nonexistent connections, and the preservation of the environment and social resources100. These hubs are: 1. Andean Hub (Bolivia, Colombia, Ecuador, Peru and Venezuela) 2. Southern Andean Hub (Chile, Argentina) 3. Amazon Hub (Colombia, Ecuador, Peru and Brazil) 4. Capricorn Hub (Chile, Argentina, Paraguay and Brazil) 5. Guianese Shield Hub (Venezuela, Brazil, Guyana and Surinam) 6. Paraguay-Parana Waterway Hub (Paraguay, Argentina, Uruguay, Brazil and Bolivia) 7. Central Interoceanic Hub (Bolivia, Brazil, Chile, Paraguay and Peru) 8. MERCOSUR-Chile Hub (Chile, Argentina, Uruguay and Brazil) 9. Peru-Brazil-Bolivia Hub 10. Southern Hub (Argentina and Chile) The second pillar of IIRSA are the Sectorial Integration Processes designed to promote harmony and confluence between the regulatory agreements of the twelve countries participating in IIRSA, removing operational and legal barriers that obstruct the integration processes. The 7 sectorial processes are as follows: Maritime transport operating systems Air transport operating systems Multimodal transport operating systems Facilitation of border crossings Information and Communication Technologies Normative agreements of regional energy markets Financial instruments
100
http://www.caf.com
131
FARN- 2009 Annual Environmental Report- English Version
b. Project Portfolio In the framework of IIRSA, during the Tenth Reunion of the Executive Directors’ Committee, celebrated in the city of Cartagena de las Indias on December 4th and 5th, 2008, the member governments agreed on a portfolio of 514 transport infrastructure (road, railway, maritime and air), energy (generation, transmission and distribution), and communications projects that are split into 47 project groups, with an investment of US $69 million to date. Approximately 70% of this portfolio has demonstrated concrete advances: of these, 10% of the projects are completed (US $7.506 million), 38% are being executed (US $30.728 million) and 20% are in the preparation stage (US $17.383 million). Member governments chose a special collection of projects that are being given special attention in terms of their funding and execution in the short term. The “Agenda” is made up of 31 projects with an estimated investment of US $10.190 million101, of which 10 are in preparation, 19 in the execution phase and 2 completed. Regional infrastructure is designed to serve the needs of society and the businesses and production chains with large economies of scale through these central hubs, be they for internal consumption within the region or for export to international markets. c. IIIRSA Projects with the Greatest Impact in Argentina In Argentina there are more than sixty projects in different stages of execution. The majority of them fall within the energy and multimodal transportation sectors, with an approximate total of US 6.6 million dollars. Some of the projects involving Argentina that are most controversial for civil society because of their potential to cause major social and environmental impacts include the construction of the Corpus Christi Hydroelectric Plant (Argentina-Paraguay); the construction of the Garabi Hydroelectric Plant (Argentina-Brazil), the pipeline from Northeast Argentina (GNEA) and the projects located in the Paraná-Paraguay Main Waterway. Corpus Christi102 The Corpus Christi hydroelectric dam has been cast across the higher part of the Paraná River, close to the towns of Corpus in the province of Misiones (Argentina) and Puerta Bella Vista (Paraguay). It is only 50 kilometers to the northeast of the cities of Posadas and Encarnación. There would have an installation capacity of 2,900 megawatts. The project dates back to the year 1971, when Paraguay and Argentina came to an agreement which created the Argentine-Paraguayan Mixed Commission for the Paraná River (COMIP). This agreement was approved in Law Number 19,307 on October 11, 1971. Since the creation of COMIP, the project has become the object of a series of prefeasibility, feasibility, and executive project studies. Between 1975 and 1983, the Paraná River Progress Study was carried out between the mouth of the Iguazú River and the 101
http://www.iirsa.org/BancoMedios/Documentos%20PDF/cde10_acta.pdf The Corpus Christi hydroelectric project, MONTÓRFANO, Raúl Suárez. For more information about the characteristics of the project, consult http://www.mbigua.org.ar/uploads/elproyecto-CorpusChrisit.pdf 102
132
FARN- 2009 Annual Environmental Report- English Version
Encarnación-Posadas Section, with particular attention to the Corpus zone. Using this study, alternative locations were considered, and Itacuá was suggested as the most convenient from a technical-economic standpoint. This location was approved in 1980 and in 1983 the technical-economic and financial feasibility studies were finalized. The economic hardship of both countries increased in that period, which forced them to delay construction of the project to the early ‘90s. Then, a slight improvement in the regional economies and the commercial integration proposed by MERCOSUR, made it viable based on the electric energy demands in Argentina and especially based on the potential exportation to Brazil. In 1996, the province of Misiones carried binding referendum with the participation of 88% of the population, concluding in a “NO” vote on the construction of the dam. Resistance was based on the unavoidable negative social-environmental impacts that the dam would create, from the loss of territory important to the ecosystem, to the loss of biological and cultural riches. Environmental NGOs and other civil society organizations launched a determined awareness-raising campaign for the population. This was the same strategy proposed by the Church and political parties. In the year 2000, both governments endorsed a Memorandum of Understanding expressing the collective will to complete the Corpus Dam by means of a concession to private investors. At the same time, COMIP was entrusted with carrying out the necessary preparatory studies, in which the binding referendum was not taken into account. The hydroelectric project was conceived with the following goals: Generation of electrical energy Improvement of navigability Development of commercial and sport fishing Fostering national and international tourism, coordinating bi-national projects that already exist in Yaciretá (Argentina-Paraguay) and Itaipú (Brazil-Paraguay) In the framework of IIRSA the Corpus Christi hydroelectric project is part of the projects included in the 5th Energetic Group known as the MERCOSUR-Chile Hub. According to information from IIRSA, the total estimated cost will be US $2,100,000,000. At the end of 2007, the President of Argentina, Cristina Fernandez de Kirchner, held an official meeting with her peers from Brazil and Paraguay. The issue of energy had an important role in the meetings, with the representatives showing a desire to move forward with the project. At the moment, due to the momentum given by the National Government to the construction of the Garabí Hydroelectric Dam, provincial authorities see a possibility for moving forward with Corpus Christi103. 103
www.urgente24.com, 09/10/08.
133
FARN- 2009 Annual Environmental Report- English Version
Hydroelectric Garabí Complex The future hydroelectric complex would be located on the Uruguay River, on the border between Misiones, Corrientes (Argentina) and the state of Rio Grande do Sul in Brazil, next to the Corrientes coast, a few kilometers form the border with Misiones. In 1972 the first agreement was signed to begin studying the possible uses for the 753 kilometer long shared section of river that stretches from the mouth of the Pepirí Guazú until the Quareim. These agreements were made expediently by Agua y Energía Eléctrica Sociedad del Estado (AyE) from Argentina, and Centrais Elétricas Brasileiras S.A. (ELETROBRAS) from Brazil. After the studies were presented, the economic and technical feasibility phase was initiated and the results were presented in 1977. The first feasibility study indicated that the complex would have an installed potential of 2,900 megawatts, with a reservoir that would flood 81,000 hectares on both sides. These specifications soon generated strong disapproval for the project by the surrounding towns due to the severe social and environmental consequences that it would create. In the year 2003, a new project named Garabí XXI was presented. It has a projected potential of 2,800 megawatts, but with a significant reduction in the area to be flooded, an estimated 32,000 hectares. In February of 2008, the presidents of Argentina and Brazil endorsed an agreement that would accelerate the feasibility studies in the area so that bidding could begin in 2010 for the construction of the bi-national hydroelectric dam that will be located in the northeast of the Corrientes province, given prior fulfillment of the environmental impact and viability studies. ELETROBRAS and EBISA (Emprendimientos Energéticos Binacionales S.A.) will be in charge of the preliminary studies. In the framework of IIRSA the Garabí hydroelectric project is the type of project included in the 5th Energetic Group known as the MERCOSUR-Chile Hub. In April of 2008, exercising the Right to Access Public Information, the Environment and Natural Resources Foundation (FARN) requested information from the National Environment and Natural Resources Secretariat about the Environmental Impact Studies for the Garabí Hydroelectric Complex, following the framework of a number of actions carried out with M’Bigua104. In August of 2008, the Environment and Natural Resources Secretariat submitted its response by means of the National Exploratory Bureau, of the National Energy Secretariat, which is in charge of intervention in the Environmental Impact Assessments of hydroelectric projects. The response asserted that because the project is of a bi-national nature, both countries should reach a consensus on the studies. It also said that in the Brazil-Argentina Permanent Mixed Commission for Energy, a 30-month period was agreed upon for executing the studies, to which it is necessary to add the time required to 104
M’Biguá, Ciudadanía y Justicia Ambiental is a not-for-profit, non-governmental organization created in February of 2006 whose fundamental objective is the generation of initiatives for a sustainable society with local or regional scope, in accordance with what is stipulated in the National Constitution.
134
FARN- 2009 Annual Environmental Report- English Version
complete the Terms of Reference and commence the bidding for the execution of the aforementioned studies. To date it has been discovered that two essential elements were unfinished, the inventory study of the hydroelectric potential of the Uruguay River section and the feasibility studies for the selected uses, meaning that the Environmental Impact Assessment was not yet available given that it can not be completed before the aforementioned steps were finished. Last November, three companies presented their offers for fulfilling the aforementioned inventory studies. Bidding for the studies from the second viability stage will begin in 2009. The study’s delivery period was set in 180 days and the price limit for carrying out these projects is US $5 million. If the studies confirm the project’s viability, the President of Brazil has said publicly that he wants to sign the execution contract before ending his term of office in 2010105. One of the great worries of social movements that question the reopening of the Garabí project is the impact of the arrival of hundreds of new workers in the region, as well as from the loss of arable land, forests and biodiversity resulting from the creation of an artificial lake. Northeast Argentine Pipeline (GNEA) The Northeast Argentine Pipeline is one of the projects included in IIRSA’s 2005-2010 Consensual Implementation Agenda. It is currently in the execution stage and has an anticipated total investment of US $1 billion. The parties involved in the project are Argentina and Bolivia, as well as the IIRSA 5th Group (Energy). The project’s objective is to ensure the supply of natural gas for the north and central regions of Argentina, which includes the provinces of Salta, Formosa, Chaco, Misiones, Corrientes, Entre Ríos, and Santa Fe. The technical-economic pre-feasibility study and the engineering project are finished. By means of the Decree 267/2007, the Argentine energy company Empresa Energía Argentina Sociedad Anónima (ENARSA) has been afforded the concession to transport gas for a term of 35 years and to build, maintain, operate and provide gas transportation services. The preliminary International Public Bidding began at the level of basic engineering, requiring the purchase of 1500 kilometers of piping. Paraná-Paraguay Waterway The Paraná-Paraguay Waterway is a water system that begins in the extreme north in Porto de Cáceres (Brazil), on the Paraguay River. It is formed by the Paraguay, Paraná and La Plata Rivers, and measures 3,442 kilometers from its source in Porto de Cáceres to its mouth at the Port of Nueva Palmira in Uruguay. One could say that it is the major river communication and transportation artery for the countries that share it: Argentina, 105
Source TELAM 11/27/2008.
135
FARN- 2009 Annual Environmental Report- English Version
Bolivia, Brazil, Paraguay and Uruguay. This waterway has been navigated since the 16th century. Here, the colonizers found a space to establish the large cities on its banks. The river’s original course was modified along its North-South length (previously from Porto Cáceres, now from Porto Descalvado), to avoid conflict with the no intervention premise in the Pantanal of the Brazilian state of Mato Grosso. The project dates from the end of the 1980s as part of the framework of the Plata Watershed Treaty, signed by Argentina, Brazil, Paraguay and Uruguay. The first studies were financed by the Inter-American Development Bank (IADB), the United Nations Development Program (UNDP), and the Plata Watershed Fund (FONPLATA). Currently the Andean Development Corporation (CAF) has taken on an important role, financing the most recent studies. The former organizations were widely criticized, based on decisions they made without certainty about environmental impacts. This gave rise to the completion of a complementary study in July of 2005, which was approved by the Intergovernmental Waterway Committee (CIH), but that does not replace an Environmental Impact Assessment. The project covers 3,400 kilometers of river, which it why it is fundamental to carry out a joint study of all the proposed projects, comprehensively analyzing the impacts, and taking into consideration the cumulative and indirect impacts106. Specialists in the field maintain that the project’s purpose is to make 3,400 kilometers of the river navigable 24 hours a day, 365 days per year, for convoys of 20 barges or more. The principal objective is to reduce the transportation costs and to make the routes faster. In regards to commercial flows, analyses indicate that soy and its derivatives is the product transported in the highest volume along the waterway, followed by iron and fuel. Downstream traffic is much greater than upstream traffic, about four times greater. The most important upstream traffic is from fuel (80% of the total)107. There are sections of both rivers that are extremely sensitive, for example in the Pantanal zone on the Paraguay River, some experts estimate that the ecosystem can only handle one train of barges per week. The projected load is of 8 or more trains passing through each day. This point is not explored further in the studies. Large impacts on fish, water quality, and sediments are also feared. On the other hand, it is public knowledge that a number of coastal cities are concerned about erosion in surrounding hills and islands, as well as the damages that may be produced by the removal of rocks from the bed of the Paraguay River. Current voices in favor of accelerating the development of the waterway understand that the principal benefits of improved navigability on the Paraná and Paraguay Rivers has to do with the reduction of transportation costs and the minimization of risks in the 106 A large part of the information used to make this point is from an interview by an engineer named Elba Stancich, from Taller Ecologista de Rosario, “The Paraguay-Paraná Waterway, IIRSA, Soy and the Resource Extraction Model., 07/07/2006” www.proteger.org.ar 107 Source: Transportation Secretary of Argentine Nation: http://www.sspyvn.gov.ar/hvia_info.html
136
FARN- 2009 Annual Environmental Report- English Version
navigable route. On the other hand, from a physical point of view, the waterway is a true axis for integration and exchange between countries of the region. The voices that oppose the project claim that the infrastructure is being given priority, favoring exports and benefitting large companies, while damaging the environment and the communities that inhabit the region. Civil society organizations have succeeded in stopping some projects when they were first conceived or were in their initial phases of construction, but with the formal launching of IIRSA the threat of new studies has arisen again. The Paraná-Paraguay Waterway project has been resisted by the Living Rivers Coalition, a group of hundreds of organizations from diverse social movements, academic sectors, and traditional or indigenous communities in Latin America which was established in 1994. Current complaints include the allegation that proposals made by alternative studies have not been taken into account and that IIRSA studies should not advance until a strategic socio-economic-environmental evaluation is carried out with ample social participation. In April of 2008, the Environment and Natural Resources Fund (FARN) presented a request for Access to Public Information to the Ministry of Federal Planning, Public Investment and Services regarding the Paraguay-Paraná Waterway Initiative and the section of the main river route between the exterior access section to the Port of Santa Fe and the Atlantic Ocean. The response offered by the Ministry stated that requests for hydraulic studies and environmental impact assessments concerning the Waterway, as well as for public hearings, should be managed by the different jurisdictions corresponding to each section of the river. It was also clarified that national authority on the subject relates exclusively to international, transborder water resources. Most recently, at the end of February 2009, the M’Bigua Foundation, with the support of FARN, presented two requests for reports, one to the National Environmental Secretariat, and the other to the Environmental Secretariat of the Province of Entre Ríos, in order to ascertain their intervention in the evaluation of the Environmental Impact Assessments to facilitate the expansion and extension of the contract given to Hidrovía S.A., in the framework of the agreement between Hidrovía S.A. and the Renegotiation and Analysis Unit for Public Service Contracts (UNIREN). This refers to the process of contractual renegotiation, whose foundations and terms are contained in the Letter of Understanding signed June 19, 2007. (www.uniren.gov.ar). The principal motivation for submitting these requests came from concern within civil society organizations about the resurgence of the Paraná-Paraguay Waterway issue on account of advances in a new contract between the national government and Hidrovía S.A.. This contract provides for an extension until the year 2021 of the dredging and transmission system allowances in the Paraná River, including headwaters between Santa Fe and Asuncion, as well as the deepening of waters in lower sections of the La Plata River. The contract anticipates a series of projects that consider increasing the depth of
137
FARN- 2009 Annual Environmental Report- English Version
the river from Santa Fe until Puerto San Martin to between 25 and 28 feet, and between 34 and 36 feet from Puerto San Martin to the sea. d. Financing IIRSA is not a source of financing for its projects. As previously mentioned, most financing comes from multilateral credit institutions such as the Inter-American Development Bank (IADB), the Andean Development Corporation (CAF) and the Plata Watershed Fund (FONPLATA). For its part, the World Bank (WB), although officially it is not part of the Initiative, has shown great interest in participating, and it already has projects in motion. One example is the loan of partial risk guarantees from the International Reconstruction and Development Bank that creates a fund for the Peruvian government to guarantee the promotion of infrastructure projects. These multilateral development institutions have played an active role in the financing of the studies and projects related with IIRSA and have provided technical support and facilitated the participation of the private sector in the initiative. IV. Public Participation and the Role of Civil Society Organizations in Monitoring Infrastructure Projects a. Principal Concerns of Civil Society Just as during the free trade integration processes involving the WTO and the FTAA (Free Trade Area of the Americas), IIRSA has seen limited participation by national congresses/ legislatures and by citizens. The IIRSA integration process has been dealt with almost exclusively by the federal government. This seems paradoxical given that during the same time period Latin American States have signed onto innumerable Human Rights instruments in favor of social participation and Environmental Law, and that establish the necessary application of the precautionary principles when dealing with environmental decisions108. At the same time, they have included in their Constitutions the guarantee of fundamental rights, as an essential pillar of the Rule of Law. “Nevertheless, throughout the preparatory process for the FTAA and in spite of declaring a strategy for strengthening civil society for participation in the hemispheric and national processes, it is clear that citizens were not permitted to exercise this right, and in the beginning the negotiations were kept secret and the documents confidential. If these organizations now begin to appeal for documents, it has more to do with mobilization campaigns than the will of governments109.”
108
International Pact of Civil and Political Rights; International Pact of Economic, Social and Cultural Rights; Additional Protocol to the American Convention on Human Rights; San José Pact; International Convention on the elimination of all forms of racial discrimination; Stockholm Declaration; Rio Declaration; Program 21; Agreement 169 OIT; Agreement on Biological Diversity. 109 ID. Ref. 6.
138
FARN- 2009 Annual Environmental Report- English Version
Civil Society Organizations from various South American countries have demonstrated a growing concern for the various impacts of IIRSA on the local communities, their economies and cultural heritage, and on biodiversity and various environmental services. The main subjects of debate are the lack of transparency and information and the absence of formal mechanisms for citizen participation in processes of identification, evaluation and financing of the projects. To address the lack of transparency, there have been calls for the implementation of systematic accountability measures for all aspects related to the investments. Parliaments seem to be greatly misinformed about the contents of IIRSA, or even unaware of its existence, although national legislators from various countries are now beginning to develop coordinated processes meant to open the legislative and civic debate in Latin America. The other central cause for concern in civil society surrounds the conceptual debate over the contribution of these mega-projects to relieving poverty, intergenerational equity, authentic social and democratic inclusion for the populations involved, in the framework of respect for their cultural diversity. The IIRSA initiative concentrates primarily on large-scale infrastructure projects that have historically had considerable negative impacts on local communities, their economies, and on the environment. Among the main causes for these imbalances we can name: Insufficient environmental and social norms to consider the complex relationships and dimensions of infrastructure development; Lack of prior environmental impact assessments for the projects; Limited citizen participation in the studies and debates over the mega-projects; Absence of legislative participation in the various development stages of the initiatives; Lack of accountability concerning investments and decision-making processes. b. Guidelines for the Participation of Civil Society Organizations In December of 2003, a series of guidelines for public disclosure and citizen participation were approved within the framework of the Initiative. However, these guidelines to not contain specific goals to ensure the advances of the participation process. Many groups in the region believe they should include formal mechanisms for promoting the participation of civil society in the debates over integration and the various types of integration110. The participatory focus should include the following elements111: 110
The initiative of Governments and International Financial Institutions for the Integration of Regional Infrastructure of South America (IIRSA). Another integration is possible and is in process. This document was prepared by the First Argentine Environmental Education Congress, organized by CTERA (Confederation of Workers of the Education of the Republic of Argentina), 2004, R铆o Cuarto (C贸rdoba), http://yacyreta.info/web/lecturas/planiirsa/INFORMES/IIRSA%20%20Documento%20CTERA2.doc 111 Id. Ref. 7.
139
FARN- 2009 Annual Environmental Report- English Version
Responsibility of governments for establishing serious and coherent normative guideline to promote real participation in the conception and conformation of IIRSA. Proactive dissemination of quality information about the IIRSA projects, “anchor” initiatives and the main economic integration hubs. Prior and expedient disclosure of information in advance of decision making about investments, to assure that participation in IIRSA is meaningful. Systematic accountability to parliaments/ legislatures and civil society in all that pertains to management, decisions, and investment in the IIRSA framework. Participation should not be simply through the use of the Internet. This excludes many relevant social actors. The definition of a real and democratic social participation system is vital for the democratic construction of cultural, social, ecological and economic integration of involved populations. In this framework the formation of methodologies is important in order to adequately respond to the concerns of civil society about IIRSA. Participation in all the development phases of the programs, including the identification of regional integration priorities. Dedication of sufficient resources to increase civil society’s participation in IIRSA. V.
Project Monitoring on the Part of Civil Society Organizations
a. Project for the “Monitoring of the Social and Environmental Impacts of Financial Flows on Infrastructure and Energy in South America”112 In August of 2007, the Environment and Natural Resources Foundation (FARN) signed an agreement from the Ecoa Foundation of Brazil, under which it assumed a series of obligations that can be summarized as follows: To monitor the Technical Coordination of the Initiative for the Integration of the Regional Infrastructure of South America (IIRSA), in the projects of the MERCOSUR-Chile IIRSA Hub. To monitor the portfolios of projects involving biofuel infrastructure, risk assessment policies for these projects, and national policies concerning this topic. To follow the application of these policies and risk assessment tools that are being applied by the World Bank and the Inter-American Development Bank (IADB) in
112
Agreement “Monitoring two Social and Environmental impacts of energy and infrastructure financing in South America,” celebrated between Ecoa Organization (Brazil) and the Environment and Natural Resources Foundation (FARN, Argentina) in the month of June 2007, with financing from the Charles Mott Foundation (United States).
140
FARN- 2009 Annual Environmental Report- English Version
their project portfolios in Argentina and push for the creation of a Civil Society Advisory Council for the IADB in Argentina. In the monitoring of projects in the MERCOSUR-Chile IIRSA Hub, along with the Argentine NGO M’Biguá113, there was a constant exchange of information with the Secretariats of Energy and Environment of Argentina, within the national norms of access to public information, concerning the construction of the Argentina-Paraguay Corpus Christi Hydroelectric Plant, the construction of the Argentina-Brazil Garabí Hydroelectric Plant and finally about the Paraguay-Paraná Waterway, and the section of the main riverway between the exterior access point to the Port of Santa Fe and the Atlantic Ocean. In all cases, requests for access to information were based on the need to keep track of the existence and results of the Environmental Impact Assessments and other technical studies, as well as the implementation of participatory mechanisms of civil society in these processes. In terms of the conformation of a Civil Society Advisory Council, on September 26th, 2008, in the City of Buenos Aires, a large-scale consultation was carried out with the title “Civil society consultation on the environmental priorities of the IADB, Argentina”. This consultation process was convoked by the Environment and Natural Resources Foundation (FARN) and the Democratic Change Foundation (FCD), with the help of the Inter-American Development Bank (IADB), and involved numerous and diverse civil society organizations, as well as representatives of the private, academic, and union sectors. The goal was to provide an opportunity for them to analyze the environmental priorities of the IADB (Nota Sectorial Ambiental, or NSA) in advance, to provide comments on it and to make recommendations for the incorporation of themes not included in the Agenda created for the event. The NSA forms part of a collection of sectorial and inter-sectorial analyses that will later be integrated into the Inter-American Development Bank Strategy for Argentina for the 2008-2011 period. With the objective of inputting discussions for collaboration priorities between Argentina and the IADB, the NSA concentrates on those sectors in which the IADB had already been working with Argentina and those in which their support was expected to continue in the future. The NSA does not claim to be an exhaustive analysis of the subjects concerning the environment in Argentina, but rather concentrates on those sectors where the IADB has or could have influence given the nature and reach of the financial and non-financial products that it could provide to Argentina. For this reason, the NSA focused on the most dynamic sectors of productive activity in Argentina, analyzing of the principal pillars of growth of the national economy such as the agriculture, tourism, energy, and transport. The mission of the NSA is to identify the areas with the most promising opportunities for environmental investment that would result in a more competitive position for Argentina as well as a better quality of life for its inhabitants and long-term viability for its natural resources. At the same time, the NSA 113
Id. Ref. 11.
141
FARN- 2009 Annual Environmental Report- English Version
must also identify those negative factors that should be prevented and handled (risks and impacts) or solved (problems and restrictions) to achieve these goals. The meeting was especially relevant due to the importance of civil society, academia, unions, and the private sector in relation to the environmental topics in Argentina. In the dialogues and debates which occurred in relation to the strategies of the IADB and its policies for Argentina for the period of 2008-2011, the IADB was advised of the importance of creating an Advisory Council of Civil Society in Argentina. Also, as part of the exercise, a document was created that includes the analysis and the valuable contributions of the participants. This document was sent to the IADB so that it might be used as a resource for the development of the National Strategy114. b. IIRSA Environmental Observatory115 The IIRSA Environmental Observatory is a proposal developed in 2006 by the International Union for Conservation of Nature - South (IUCN-Sur)116, along with two other Union member organizations like the Environmental Management and Law Corporation – ECOLEX, of Ecuador, and the Fundación Proteger, of Argentina. Its objective is to provide broad and practical information about the projects of IIRSA, through a process for communication and consultation, and to create a framework for the participation of civil society. The Regional South American Committee of IUCN was in charge of launching this project due to the general concern about the potential environmental and social impacts of IIRSA, and the Regional South American Office of IUCN-South, headquartered in Quito, Ecuador, was given a central role in monitoring efforts. The observatory arose with the aim of strengthening the capacity for action of civil society, governments, and the private sector, striving for transparency in the way projects are identified, evaluated, and financed. Among the different activities included in the framework of the project are the following: Publication and widespread distribution of a map of the potential impact of IIRSA as well as a printable informative pamphlet117. The map shows the major hubs of IIRSA that cross through areas particularly rich in biological or cultural diversity. Distribution of press releases to the media. Organization of events for presenting the results of different countries in the region.
114
NOTA SECTORIAL AMBIENTAL AR-P1045, November 2008 http://www.proteger.org.ar/iirsa/ 116 The International Union for Conservation of Nature (IUCN) is the largest network of nations, governmental agencies, and a diverse range of NGOs united in a unique global society that works toward a “Just world that values and conserves nature”. The Environment and Natural Resources Foundation (FARN) is a member of the Union’s Environmental Law Commission. http://www.sur.iucn.org. 117 www.proteger.org.ar/iirsa 115
142
FARN- 2009 Annual Environmental Report- English Version
Consultation with the principal financial institutions. Completion of the Electronic Forum “Perspectives of Civil Society on IIRSA�, in which close to 300 people from every country of the region, as well as Central and North America, provided their contribution to this debate118. VI. Final Considerations Without a doubt, our societies are undergoing a process guided by the concrete objective of our governments to consolidate a strong alliance for regional integration, in which the IIRSA Initiative has a prominent role. This process follows a complex and winding path and is accompanied by another kind of integration, led by various civil society organizations that fight for the preservation of culture, biodiversity, and productive activities within their territory. In this sense, it is vital that clear mechanisms for participation be established so that civil society organizations can assume a more active role in government decision making processes, before they initiate important investment negotiations such as IIRSA. In all its stages, said negotiations should be conditional to compliance with international accords on environmental, social, economic, cultural, labor, and human rights issues, while respecting local realities. At the same time dialogue and information-exchange in the spaces of universities, national, provincial, and local executive bodies, parliaments and legislatures; areas of impact and decision-making in the financial institutions of each region, control agencies, and large-scale media organizations emerge as key measures for the socialization of the debate on IIRSA. This will improve the monitoring of environmental impacts and viability assessments promote the access to public information and improve access to environmental justice. Finally, an indispensable part of this process requires the use of Strategic Environmental Evaluations, an excellent tool for social and environmental policy that can help make up for the deficient analysis of the relationships between different projects as well as with their surroundings. This need is not satisfied by the current methods of independent Environmental Impact Assessments for each particular project, and it is necessary to take into account the cumulative and synergetic impacts of the multiple projects together.
118
To consult the results of the forum go to: www.sur.iucn.org/ces
143
FARN- 2009 Annual Environmental Report- English Version
Environmental Issues and the Media Written by Sergio Elguezabal, Journalist and Specialist in Environmental Issues Host of the program TN Ecología aired on the Todo Noticias Channel. Translated by Marina Solomon
Executive Summary Man’s interaction with nature has caused a great deal of harm to the planet. The misuse of our resources, principally since the Industrial Revolution, caused drastic changes to our world. Journalism plays an important role in this context due to its massive reach and the impact it has on society, but for many years, environmental issues were relegated to last place on the media’s agenda. There are, however, examples of actions carried out by the press and by journalists dedicated to their job, that have greatly contributed to bringing man closer to nature. They have also brought attention to and denounced the trampling and misuse of resources that have harmed nature. Journalism in its current form suffers from a certain apathy or passivity in its search for new approaches and subjects that could attract readers. The only truth is the rating or the circulation of newspapers, and how and what journalists are writing about is largely ignored. What journalists need to consider is a greater challenge. They must realize that this is not just about communicating facts and should assume the full responsibility of their profession. I. Introduction The bad practices of humankind, above all during the peak of the Industrial Revolution, have given way to large imbalances in the natural world. The magnitude of our growth was such that during the last 50 years, ecosystems have changed at a much greater pace than in any other time in history. In only two decades, we lost 20 percent of coral reefs worldwide. One hundred years were enough to wipe out more than half of the earth’s forests and darken the horizons of the world’s major cities with pollution. In Argentina, only one third of our native flora remains. In the aforementioned example, and in hundreds more that could be cited, there are common denominators that signal the causes: greed, gluttony, and lack of control. In short, it is a situation of misdirected political, economic, and social means. The global crisis that began towards the end of 2008 is not exclusively financial. It spans every area of human intervention, and its consequences will bring about radical changes in habits and customs the likes of which we have never before experienced. During the current century we will probably suck dry our petroleum reserves; there will be no more fossil fuels, and we will no longer be able to produce other petroleum derivatives including plastic, tar, wax, oils and asphalt.
144
FARN- 2009 Annual Environmental Report- English Version
The turmoil of the last century should invite us to reconsider our definition of progress and wellbeing. In this sense, it is no longer possible to divorce the path we choose from our surroundings. The challenges arising on all fronts require a general commitment and an important role for the press; levels of support for these issues should not have a bearing on the opinions expressed. II. References The polyvalent nature of the current crisis has not been covered with sufficient urgency and persistence by the media. The press, in general, has lacked coverage that includes environmental factors as a main focus. It also has not sought to cover environmental themes as they relate to the other issues on their agenda, such as the economic, political and social problems that come hand in hand with increasingly degraded ecosystems. But it is also true that the power of communications has, in some cases, allowed even the scarce and partial coverage of these facts to be adequately amplified so as to produce changes in the thinking and conduct of the common man and, to some degree, leaders. Reviewing the last few decades, we can find some situations in which, thanks to information, the citizenry adopted more responsible habits. For example, the well-known series of documentaries entitled The Adventure of Man, presented by Channel 13 beginning in 1979, provided a positive influence. It provided information about undervalued native species and showed unknown habitats of Argentina without the benefit of significant technological tools. The oil spills at Punta Tombo, in the province of Chubut, with penguins covered in oil, proved to be a magnet, especially for television, which constantly showed these images in the early 90’s. Those who were sensitized by what they saw began to speak out and apply pressure until the situation was finally dealt with. The uninterrupted coverage of the press provided strong support to environmentalists, in Southern Argentina as well, who denounced the petroleum companies that continued to dump their wastes into the sea, killing thousands of birds that were immobilized by the unforgiving viscosity of the petroleum. The joint actions of environmentalists, the media, and federal agencies made it possible to stop the dumping of most companies operating irresponsibly in Argentina. Informed public opinion searched for alternatives with genuine concern, and the industry was obligated to take urgent measures to find cleaner solutions. The construction of the Yacyretå Dam and its negative consequences on the environment and the directly affected population were also of interest to the media beginning in 1994. The need for environmental impact studies, for example, appeared in the growing environmental consciousness of the citizens of Argentina. Another important landmark was the fight that the population of Gualeguaychú has obstinately withheld since 2003 against the construction of cellulose pulp factories in Uruguay. One of the plants (called Botnia) was finally installed on the banks of the Uruguay River, but the iron will of the population, defending their right to live in a clean
145
FARN- 2009 Annual Environmental Report- English Version
environment, transcended borders and motivated the media to dedicate more space to the analysis of the issue. The so-called Assembly of Gualeguaychú constituted itself as a guarantor of transparency in provincial and national governments (by monitoring the actions of public officials and signaling possible betrayals of the public interest) and of the company (by issuing a persistent demand to adopt the highest standards in the treatment of effluents). Given the newness of the problem, is also worth noting the novelty of the organization created by the population to address it. More recently, the Forest Law established norms for land use planning and productive forestry throughout the Argentine territory. Non-governmental organizations, with FARN among them, pushed the citizens of Argentina to sign a petition demanding that the law be sanctioned as soon as possible. In only a few months, more than one million people gave their support and the law was sanctioned, to be applied shortly thereafter. In the international sphere, several actions also deserve recognition as significant landmarks in the media’s role in highlighting issues that need to be addressed in the immediate future. In the mid-1970’s, a chain of repercussions were produced when the public learned that there was a hole in the ozone layer. The Montreal Protocol, approved in 1989, determined that an organic compound called chlorofluorocarbons were the source of the degradation. Scientists and non-governmental organizations decried the harmful effects that solar radiation could have on human beings. The media relayed this information, the citizenry reacted through consumers associations that alerted the public about the use of aerosols, and businesses changed their modes of production. The 90’s were marked by the 1992 Earth Summit in Rio de Janeiro. The issues discussed in this forum appeared in the headlines of newspapers all over the world for the first time, and the conference was covered by 8,300 journalists. Although the official documents produced did not include revelations, such as the relationship between combustion of hydrocarbons and atmospheric warming, several reporters began to pay attention to the scientific evidence that petroleum companies intended to hide. Today this information is known to the world. Finally, it is worth citing the ex-vice president of the United States (the most polluting country in the world), Albert Gore, who transformed his lectures about environmental degradation into the film An Inconvenient Truth. He constructed, quite effectively, an account that included scientific data and a high-impact scenography. His work was generously replicated by Hollywood, center of the world’s great movie industry, and also contributed to greater consciousness worldwide. In one way or another, the media has had a positive influence. At this point, the media space dedicated to caring for the planet —although insufficient— has increased notably. A generation of young people has grown up with a message that includes problems such as environmental refugees, virtual water, nutrients lost due to poor soil management, alternative energy sources, sustainable agriculture, private nature reserves, conservation, civic responsibility, and population distribution, albeit in a fragmented fashion and without a clear picture of their relationships to other phenomena.
146
FARN- 2009 Annual Environmental Report- English Version
Questions like architectural absurdity —too much steel and cement and a scarcity of green spaces— have already become the object of analysis in different parts of the world. Concerned urbanists have pointed out the mass exodus from the countryside to large cities where overall quality of life decreases rather than increases (as had been assumed until the end of the last century). Air pollution, noise disturbances, congestion on the highways of the majority of the world’s capitals, and the increasing challenge of providing water and sewage services to the entire population all constitute a clear warning sign prompting several nations to assume the responsibility of addressing these imminent challenges. III. The Current Practice of Journalism The practice of the journalism profession in Argentina has been degraded, as have the majority of the social, political, and institutional bodies of the nation. It is easy to note a certain level of distortion in the choice and treatment of the news stories. Newspapers and audiovisual media tend to privilege to police-related stories, or those characterized as “general information.” Offstage fighting between celebrities- rather than critiques of the shows and various cultural events that they produce- abound on the radio and on television. But perhaps the most serious problem is the insistence with which the media publicly reproduce the most disgraceful political acts, generally omitting those actions that exalt the political process. The devaluation of institutions poses a grave risk that threatens the goals of a participative nation wishing to respect its democratic roots. The current competition of electronic media is governed by logic that does not take into account the general interest and the inherent mission of communication in the construction of a new society. Editorial oversight (to determine which issues to include, how much space they are allocated, the proportions dedicated to certain news stories, and the citations selected for them) show the prevailing superficiality with which content is generated. If Channel B covers a certain event, as trivial as it may be, Channel C decides to cover the same event until Channel B decides to pause for a commercial break. If one spends twenty minutes on a trivial story, the other will follow suit. This reasoning is based on the assumed preferences of television viewers and the idea that channels should offer identical content. The result resembles a fruit market: if the person in front has shiny tomatoes, even though the shine is maintained by refrigeration, I should also have shiny tomatoes, even though I have the capacity to acquire larger and more delicious farm grown tomatoes. The aforementioned logic limits the rights of viewers to access truthful, diverse, and high quality information that transmits new ideas and stimulates thought. The “minute to minute,” a system that allows networks to measure how their audience changes every sixty seconds, has degraded television. As such, content is generally chosen with a sole parameter in mind: the number of people that continue watching a certain program. Because of this approach, valuable content and altruistic messages appear less and less in the current scheme.
147
FARN- 2009 Annual Environmental Report- English Version
There is no doubt that the social function of the Argentine media is not clear. The precious role of the press in the construction of a more just and equitable society is not discussed within the media and only unenthusiastically outside it. The nation is governed with anachronistic broadcasting regulations passed during the last military regime. Even so, faced with the possibility of reform, this subject does not seem to be a priority in Argentina. In this context, the property of the media does not lend itself to what the law requires. Businessmen and companies that do not reside in Argentina own a number of radio and television licenses, and they use figureheads to violate the norms. The Federal Broadcasting Committee (COMFER), in charge of broadcasting regulation, has not been able, or has not been willing to regulate the illegal manner in which broadcasting has been administered in the last two decades. Another serious problem facing the prevailing communications system has to do with the lack of training of journalism professionals. Compared with mechanics in automobile factories, lawyers, or oil company employees, journalists receive the least number of training hours. In general, newspapers do not prioritize training and journalists are thus convinced that they do not have much left to learn. The mission of journalism also seems unclear to those who practice the profession. The pauperization of their work over the past 20 years has caused many journalists to lose sight of their objectives. Like businessmen, their first priority is generally to earn a lot of money and in second place comes the need to provide a meaningful contribution to society. In this context they generally show little predisposition for research, a lack of rigor in the collection of data and information, and (a virus that has taken hold in various social spheres) apathy and lack of faith that their work could contribute to changes in the state of things. The faithful television viewers, radio listeners, and newspaper readers of decades past warn of the ever-increasing decline of the media. Examples of falsehoods in what is said, written, and shown in the media provide convincing proof that professional journalism has lost its virtue and substance. In 2008, two open television channels transmitted images of a tornado that had supposedly occurred in Lobos, in the province of Buenos Aires. They gave the coverage the characteristic “breaking news” label and then supposed correspondents related from the scene what they had seen. In reality, the footage spread by the networks was from a tornado that had occurred in Salamanca, Spain several years earlier. Those responsible for the transmission had typed the word “tornado” into an Internet search engine and one of the first pages listed contained a homemade film of the aforementioned episode in Spain. The sequence was quickly put on air, failing to mention this important detail; in other words, they knowingly lied to an audience of nearly one million viewers. A few weeks later, the front page of a nationally distributed newspaper showed a picture of a Mercedes Benz in front of a rural roadblock, with a description that linked the vehicle to the organizers of the protest. The next day it was found that the luxurious vehicle was merely passing through and did not belong to any of the participants in the lock-out. Such is the level of systemic breakdown that every day the media distorts the news or takes part in political or financial operations. More and more people have simply stopped
148
FARN- 2009 Annual Environmental Report- English Version
reading traditional newspapers and for many others it is difficult to choose what to read and trust as a credible source. We are thus inclined toward other channels, generally linked to the Internet, to inform ourselves and find out about issues that concern us. For this reason, the blogs and web pages of NGOs, institutions, or other official sites that merit credibility have become important information sources for those who wish to form qualified opinions. IV. The Challenge Those of us who can communicate, on any type of platform, have a great challenge ahead. The first thing we must understand is that communication is not just about transmission. It requires a deeper processing of the facts, including the context of occurrences and their relationship with other events. We must find an adequate way to efficiently say what needs to be said. This means using all available tools, but fundamentally language. Language holds infinite possibilities for achieving our objectives. Our obligation is to translate, to synthesize without losing conceptual depth, and to interest and enthuse our audiences about the understanding of new paradigms that relate to humanity. We need journalists that can make intelligent arguments before their editors in order to undertake the daily search for stories that provide us with a different angle. We must find tenacious professionals in search of the truth and who display the intellectual honesty to fight back against censorship and selfcensorship (which is the worst beating that journalists take when they bow to those in power). On the contrary, our job consists of lying in wait in order to always be able to say what we like with the greatest reach and liberty. We want to give a voice to those that do not normally have the ability to express themselves, democratizing information by placing the microphone or camera in front of people without natural access to the large centers of the production and diffusion of information. In the business world, actions worth recognition are carried out every day that the media does not tend to publish, save those that draw a certain level of readers. It is imperative that we as journalists forego our prejudices and use our platforms to publicize the various responsible acts that occur in companies and other private organizations operating in our nation. Likewise, not all NGOs are good or exhibit transparency. Many are just a faรงade for collecting money and generating influence in the pursuit of million-dollar businesses that already promote environmental issues. V. A Proposal The practice of the marvelous profession of journalism requires our commitment. We need an honest telling of what is happening to us and an incessant search that allows us to reflect critically. From the places in which we act, we must strive to bring about scenarios that allow us build consensus. Without ignoring the important role of criticism and public denouncement, we must begin to concern ourselves more with constructive journalism that mobilizes citizens and encourages them to participate. We need to activists, in the broadest sense of the word, in order to incorporate definitively the concept of
149
FARN- 2009 Annual Environmental Report- English Version
sustainability. Nothing can be planned for the future without attending to this principal requirement for the subsistence of our species in harmony with our surroundings. We must understand that our planet is finite, with a perfectly defined limit and at this point only an idiot would defend the idea of producing more and more in larger proportions without ceasing, or consuming without limit in the fragile system that still supports us. This is why we must urgently seek out new forms of social organization that permit us to develop in accordance with our surroundings. “The absence of territorial planning shrinks our country as does the overuse of land, overfishing, the fragmentation of forests and the loss of species. A country is large not so much because of the territory it occupies, but due to its capacity to manage its ecosystems, planning with objectives that transcend the current generations.” (Jorge Morello-Andrea Rodríguez, Frontera Facultad Arquitectura Diseño y Urbanismo UBA magazine) Argentine society must still resolve the question of what type of country it wishes to live in. The search for its answer is urgent, given the pressures of local problems and the international situation. In this sense, journalists can play a crucial role if and when we assume the responsibility of channeling the concerns of our compatriots. This commitment requires the recognition of our profession’s core principles and the elevation of the same through honorable professional practices in service to the common good.
150
FARN- 2009 Annual Environmental Report- English Version
EXECUTIVE SUMMARY- The FARN-UBA Environmental Law Clinic DÊbora Bialostozky Academic Secretary at FARN Agnès Sibileau Professor in Charge of the UBA-FARN Law Clinic Translated by Marina Solomon
Executive Summary In this article we attempt to summarize the current functioning of law clinics, while also reflecting upon the social role that these educational programs fulfill. We analyze in detail the work carried out in the environmental law clinic run by the Environment and Natural Resource Foundation (FARN), in conjunction with the University of Buenos Aires, since 2006. Likewise, we provide examples of other international and national law clinics. Finally, we attempt to consider and propose future scenarios for law clinics, taking into account their unique contribution to the teaching and learning process.
151
FARN- 2009 Annual Environmental Report- English Version
NGOs as Opinion Leaders: The Need for Communication By Federico Sangalli Press and Communication Coordinator at FARN Translated by Tyler Schappe
Executive Summary Communication is critical for any organization. Press exposure is a main objective because of its potential to bring information to such a large portion of society. The cost of advertising in the media is generally quite high, so having a good relationship with journalists is an excellent – and an almost indispensible – way of gaining press exposure. In terms of mass communication new technological advances have been very helpful. An organization’s website is its ‘window’ and, as a result, it is necessary to keep it constantly updated and load new information there, since itself can become a space of circulation when other sources of media are not available. Finally, in order for communication to be effective, the information produced must be thorough and accurate. Perseverance, persistence, responsibility and commitment are key elements for successful media positioning. One must dedicate time and commitment, identify with the mission of the organization and work towards concrete results. I. Introduction The mission of FARN and one of the promises made upon of its foundation is to promote sustainable development, so public and private decision-makers are one of the main audiences for communication. Without doubt, the Communication and Press department plays an important roll, being one of the primordial channels when it comes to fulfilling the mission of the organization. That being said, two core areas of work can be distinguished: a) On the one hand, communication through the traditional forms of media, ie. radio, TV, advertisements and, in recent years, the Internet (websites, digital press); b) On the other hand, modes of communication that lay outside of the realm of mass communication, such as the exchange of ideas between public and private organizations, and judicial, legislative and university spheres. This article deals in detail with these two ways of approaching communication, as well as the main obstacles that tend to appear and the different ways of overcoming them. II. Circulation
152
FARN- 2009 Annual Environmental Report- English Version
Any action, press release, reflection, result, official announcement that an NGO generates must be made public, since this is a commitment and, to a certain extent, an obligation which shows the transparency of the organization and the topics with which it deals. Although it may seem like a simple action, this “making known� is one of the greatest challenges faced by the department Communication and Press of any organization, since it involves more than simply sending a memo or an e-mail, which are merely tip of the iceberg following a series of previous actions that culminate in their production. In order for the reflections, opinions and communications of an NGO to have the desired impact, a certain amount of preproduction, production and postproduction must be done, as in the case of a radio or television program. At the time of creation of a press release, a variety of questions should be kept in mind, from the most simple and concrete, such as the definition of the topic, to other more precise questions like, for example, the day and timetable of publication, and way the information is titled, written and sent. All of these are planned ahead of time, but of course there is a chance that they may undergo setbacks or unforeseen issues that might delay the publication of the information or, on the other hand, hurry it towards publication under certain circumstances. The pyramid below shows, in general terms, the preliminary steps that must be taken before sending a press release. As mentioned earlier, some of the steps may be modified according to the situation; some may be skipped, or doubled in terms of intensity.
153
FARN- 2009 Annual Environmental Report- English Version
On the other hand, there is a notion that the dissemination of information is linked only with the media, when in reality there are numerous spheres that, based on the circumstances, can be equally effective or even more important. New technology has become a great source of help for the spreading of all information, and even more so in the case of social organizations. Mass media outlets often lack space or interest in publishing information written and sent by CSOs (Civil Society Organizations), but email, websites specific to each organization and news portals have become nontraditional channels of vital importance for the transmission of information that otherwise would have been passed over undetected. a. Newsletters Informative newsletters are as old as they are effective. In the first ages of their use, there only existed “paper versions,� but since the explosion of new technologies, it has become more and more frequent to receive electronic newsletters via email from organizations, companies, newspapers, etc. In the case of social organizations in general, and FARN in particular, newsletters form a channel of mass communication par excellence. Currently, there are almost 10,000 people who receive personalized FARN newsletters every two weeks via email, summarizing the activities, events and actions that took place in the previous two weeks. This method assures that the information reaches the authorities, public and private organizations, companies, the media and individuals interested in environmental issues. b. Websites Websites are windows to society in general. Internet access has increased exponentially over the past few years and will surely soon become the main mode of communication. Websites are relatively low-cost, in relation to all of the services they provide access to, and there are many public and/or free Internet portals. Last but not least, the global reach that the Internet offers is perhaps the most attractive and revolutionary aspect of all of those aforementioned. Therefore, it is of vital importance that an organization maintains its website updated and that it includes all of the content generated. In this way, the website becomes a virtual library that people can access from any part of the world and that they can use to maintain knowledge of the everyday opinions and concepts of the foundation. It goes without saying that one of the policies of FARN is to make available in their entirety and free of charge on the website all publications and work documents, a fact which contributes to creating more and more online traffic. To demonstrate this point, it is worth mentioning some statistics about FARN’s site traffic. In the first semester of 2006, the FARN website had an average of 20,000 monthly visits, while during the same period of 2008, that amount increased to 25,000. Furthermore, in June of 2008, from the very last month of registration until the moment that the material was handed in, the amount of visits reached a maximum of 38,000,
154
FARN- 2009 Annual Environmental Report- English Version
which suggests an average of 1,200 visits per day. With respect to days of high traffic, the number of visits during the weekends is generally lower, while during the week it increases. These numbers show the importance to an organization of being able to count on a channel of communication/publicity that receives such a quantity of visits. If we add to this the almost 10,000 people that receive the informational newsletter every two weeks, we realize how powerful, all-encompassing and diverse the Internet is for the press and for communication in a civil society organization.
Another thing to keep in mind is the connection between the site and the FARN newsletter. The newsletter is created based almost completely on the website of the foundation, such that the people who receive it via email and who want to deepen their understanding of the information presented in it are directed to the FARN website. This generates a positive feedback loop that encourages the organization to keep the website constantly updated and, at the same time, a running dialogue with the people. One last thing to keep in mind is that every day more people enter the website in search of advice on problems related to their daily life and, logically, related to the environment. It was because of this that FARN decided to produce a manual of frequently asked questions119 (FAQ) about waste, antennas and noise pollution in the City of Buenos Aires, taking into account the questions sent by email or by phone almost every day. This section of the site became one of the most visited and, at the same time, the number of questions by mail and/or by phone about these problems has decreased considerably.
119
See http://www.farn.org.ar/participacion/preguntas_frecuentes.html.
155
FARN- 2009 Annual Environmental Report- English Version
In the last few years of participation and concern from the citizens about the problems that they live – and suffer – in their daily lives has grown in our country. Frequently, people look to CSOs for help and guidance in this sense. Because of this, in addition to the traditional answers that continue to be given, tools such as Internet (in particular the website) and email should be constantly thought of when seeking to satisfy the demands of the people. In summary, the newsletter and the FAQ are examples of effective, direct and non-traditional communication tools that can be implemented in an organization, ensuring delivery of information to thousands of people who are keen to stay informed and to collaborate with the goals of OSC. III. Mass Media The media are, for the organizations of a civil society, a window to disseminate information and to spread news on activities, events, positions on various issues, etc. As mentioned previously, the emergence of new technologies marked a democratization and “massification” of information, and they have become an alternative channel that every day gains more strength. Nevertheless, the power of “traditional” mass media communication, such as the newspaper, radio and television, is undeniable. The Communication and Press department and is the channel that connects an organization or business with media, since it is in charge of the contacts, calls, consultations, declarations, opinion columns, organization of the staff’s agenda, central themes and publication of all of the content that is produced. In the past few years, Communication and Press departments have achieved previously unheard of importance within organizations. It is now almost impossible to think of an organization without a department, area or even just a person dedicated to media relations, publication and communication of the various actions that are undertaken. There is no doubt that effective and precise communication is of equal or even greater importance than what is actually communicated. Fluid channels of communication assure an unimaginable presence in the media. Furthermore, there are two points that play in favor of the CSOs in relation to media publication: •
Credibility: to be referenced in a note or a television/radio report is to seen as a “specialist that knows about the topic.”
•
Low cost: unlike publications, having contact with journalists and presence in the media in this fashion has no greater cost than the time that it takes to prepare a note, column or declaration.
With respect to the relation between the media and the CSO, one must consider that the presence of the CSOs/NGOs in newspapers, magazines, radio and television is relatively low in relation to the number of news stories generated daily. According to a study
156
FARN- 2009 Annual Environmental Report- English Version
conducted by Periodismo Social,120 of all the articles published in ten nationally circulated newspapers121 in the months of April, May and June of 2005, between 8% and 12% contained the presence of third-sector organizations. With respect to the predominant major themes, the ones that stood out were found to be economy, culture and politics. Using this information as a reference, it becomes clear how necessary it is for an environmental CSO like FARN to generate news stories and achieve press coverage. In this sense, the Communication and Press department operates on the foundation of a few key principles, necessary to achieve and maintain placement in the coveted arena of “mass media.” Following are these principles: a. Responding with sincerity: this seems more like a declaration of principals than a point to keep in mind, but honesty when dealing with journalists turns out to be fundamental in order to maintain a long-lasting and credible relationship. In some cases the requested information is not available, or for some reason it is impossible to respond to the question posed by the journalist. However, regardless of the cause, a response should be given. In this sense, a “no” is always better than not returning a call or an email. b. Sending information: Journalists should be kept informed about all of the activities or actions that take place or are going to occur. Email is the most direct, easiest and cheapest channel to disperse information, but it is also necessary to make phone calls with certain frequency to journalists that dealing with topics of importance to the organization. c. It is very common that names, acronyms and sometimes declarations contain typos or are written out of context and, generally, the journalist is called to be notified of this error. It also turns out to be important to value well-done quotes or articles that come out “as intended,” since, as previously mentioned, there are a great number of sources that can be consulted and very little space in the media. This means that when the media “chooses” us, the decision should be valued. One should always be attentive to what the media needs, and it is recommendable to have an updated agenda about upcoming activities and dates which will certainly capture the attention of the media. It may be very frustrating for an organization to plan a press conference, the public launch of a new publication, or similar actions on the same day that, for example, the regular sessions of the National Congress are inaugurated. Without doubt, the covers of the newspapers and news stories sent out by the radio and television newsreels will be centered on what happens there, while the repercussions of a meticulously prepared CSO action may be minimal.
120
NGOs are News, Strategies for optimizing relatioships between social organizations and the media. Periodismo Social, 2007. 121 The newspapers in question are: Ámbito Financiero, Clarín, Crónica, Diario Popular, El Cronista Comercial, Infobae, La Nación, La Prensa, La Razón and Página 12.
157
FARN- 2009 Annual Environmental Report- English Version
In that sense, it is also necessary to maintain fluid contact with journalists, since they are the ones most knowledgeable about the media entity for which they work. It goes without saying that they should not be pressured or pushed to publish an article since, in most cases, this is counterproductive. In fact, a contact may be lost for the sole act of pushing for a communiqué, a news story or a declaration to be published. This is where the “ability” of the Communication and Press department acquires importance. We must achieve that our information be perceived as “invaluable” by the journalist and that he/ she feels almost obligated – in the best sense of the word– to publish what we have sent. a. The Media and the Mission of a CSO Presence and repercussions in the media are important in order to carry out the mission of an organization like FARN, which aims to influence the public and private decisionmakers. Circulation attained through the press is not easily equaled by any other means, which is why it is necessary to have a neat and well-thought-through strategy. Furthermore, if there is no clear definition of what an organization wants and needs from the media, it runs the risk of turning losing more than it benefits from the exposition. In this sense, the opportunities offered by the press must be identified and taken advantage of, communication being the means for a clear, concise and captivating discourse. Likewise, it is important to mention that the work of CSOs is more fruitful when it is done in coordination and in conjunction, instead of competing for the same space in the media. The closer the ties and the more communication there is between CSOs, the greater the “benefit” they can obtain by actions carried out. Group work is vital to gain a space among the thousands of news stories that are generated on a daily basis in the public agenda. Because of this, CSOs must coordinate the timing, the spaces and the strategies used for diffusion or press campaigns, in order to avoid superposition and generate joint actions to achieve greater repercussions. b. Examples: The Elaboration of a Draft Bill for the City of Buenos Aires’ Environmental Code and the Riachuelo Case b.1. Elaboration of the Draft Bill for the City of Buenos Aires’ Environmental Code FARN started working on this project in September of 2006, thanks to the signing of an agreement with the Government of the City of Buenos Aires and the Legislature of the City of Buenos Aires.122 Throughout this time, reunions and events were carried out and the advances of the project were publicly communicated. The Communication and Press department took charge of the publicity given to these events, focusing less on mass media and more on the network of contacts and email recipients of FARN. In May of 2007 the foundation opened the registry of actors, for which any person, company or organization could sign up, to be convened for participation in thematic workshops at a later date. At that time a more intensive communication strategy was 122
See article entitled “Citizen Participation in the Regulation Development Process,” contained in the present publication.
158
FARN- 2009 Annual Environmental Report- English Version
implemented, with the objective of using the media as a channel to inform the citizens of Buenos Aires about the registry and invite them to participate in the production of the Draft Bill of the Environmental Code. On February 4th of 2008, thanks to personalized work lasting a number of weeks, FARN achieved the publication of a headline article in the City section of Clarín. To give credit to the scope of the repercussions of this publication, it is enough to mention that prior to the article roughly 100 people had signed up in the registry of actors, while in the few weeks following that number for to 300. Then again on February 11th of 2008, Clarín touched on the topic, this time in an editorial, which signified a new outlet in the newspaper. From here on out, FARN’s relationship with the media changed substantially in relation to this topic. It had been an arduous job to get the media to take this information since it dealt with a 3-year-long project and it turned out to be complicated to “find” a news article that would captivate journalists. The beginning of the participative workshops was key to achieving publication in various media outlets and to positioning the issue in the larger media agenda.
b.2. The Riachuelo Lawsuit FARN participated in the Riachuelo lawsuit as a third-party actor, together with other NGOs and the National Ombudsman’s Office.123 In this case, press work was focused mainly on publicizing advances and happenings related to the lawsuit, including new 123
See article entitled “Federal Policy for the Riachuelo River” contained in the present publication.
159
FARN- 2009 Annual Environmental Report- English Version
written presentations, public audiences, and reports. With the passing of the months, media interest in the case and its evolution in the Supreme Court of Justice of the Nation grew, mainly because it dealt with an issue affecting a large number of people (10% of the population of Argentina lives in the Matanza-Riachuelo river basin) and also because it took place in the city of Buenos Aires, which, without doubt, contributed to media coverage in the Federal Capital. As a result of this, maintaining an updated agenda turned out to be indispensible in order to attend to the many requests that emerged. FARN succeeded in positioning itself in the eyes of the press as one of the leading organizations for Riachuelo issues, a role which also implied great responsibility when dealing the great number of requests that were received. Direct contact was maintained with the main journalists that worked on the issue, and they were permanently updated with the latest news of the case. FARN’s active participation in the legal circuit allowed the Communication and Press department access to privileged material and information to supply to the press. For this reason, it was important to maintain smooth communication between the different areas of the organization since this information-sharing was what later determined that FARN’s information was reflected in the media. Examples of the repercussions on the Riachuelo case included, participation in television programs like “Another Issue,” hosted by Santo Biassati on channel TN, Telefé News, radio interviews by broadcast personalities such as Victor Hugo Morales on Continental (AM 590) and frequent publications in newspapers like La Nación,124 Página 12125 or Crítica126 de la Argentina. IV. Internal Work To achieve homogeneous external communication, it is also necessary to work in a coordinated manner inside the organization. In this sense, it is important to establish cooperative communication strategies between all of the personnel of the CSO in search of common, clear objectives and reachable goals. The Communication and Press department and is responsible for ensuring that this aspect functions correctly, and also for coordinating “external communication,” including press relations and public declarations. a. Elaboration of the Central Themes Part of the strategy of the Press and Communication department, in keeping with the general strategy of the foundation, is to divide work into central themes. The main objective of this task is to establish the priority that these themes have with respect to FARN’s internal work and in relation to media publicity in society. This ranking exercise does not aim to give more importance to one certain theme over another, but rather to strategically organize them, in order to invest time and energy 124
See: http://www.lanacion.com.ar/nota.asp?nota_id=1000075&high=andr%E9s%20n%E1poli http://www.lanacion.com.ar/nota.asp?nota_id=835720&high=andr%E9s%20n%E1poli. 125 See: http://www.pagina12.com.ar/diario/sociedad/subnotas/3-33933-2008-07-09.html. 126 See: http://www.criticadigital.com/impresa/index.php?secc=nota&nid=7719.
160
FARN- 2009 Annual Environmental Report- English Version
wisely when it comes to communications and media work for a particular time period. In this sense, it is recommendable to work on two or three central themes at a time, since opening many ‘fronts’ with the media can be counterproductive in many senses: a) Talking about several themes that lack a connection with each other is confusing, and gives the impression of covering all of one’s bases but at the same time specializing in none of them. Organizations run the risk is run of becoming “opinionists” and sacrificing their role as “specialists” on the topic at hand. b) Having a great diversity of thematic fronts in the media can work against the organization, since not everyone knows 100% of the issues. To present oneself as a specialist on many issues, and later not be able to answer their interview questions, declarations or columns because the only person that knows the issue is not available ends up being worse for the organization. Furthermore, they run the risk of not being considered for a future opportunity when it presents itself. c) Having two or three main themes ends up being easier when the time comes to “go out and talk” with the media, because more than one alternative can be offered in case one of the members of the organization is not available. This turns out to be very important because, as we have mentioned before, CSOs do not have many opportunities (and fewer in the area of the environment) to be published in the media. As a result, it is fundamental to take advantage of opportunities in order to achieve maximum exposition and transmit information to spheres that would not be reached otherwise. b. The Single Window for Information As a part of our internal communication coordination, it is also necessary to control the sending and receiving of information, especially that which is connected to the media. This idea of a “single window” for information exchange turns out to be quite important in terms of guaranteeing the distribution of information in a homogeneous manner and operating within the organization’s general communication, press and publicity strategy. It is also vital to designate one person responsible for managing the information, since this allows direct communication with the media and application of unified internal criteria. This person must know about all the issues currently being addressed by the organization, as well as its general communication strategy. With this information in his/her power, he/she must coordinate the requests sent by journalists or media outlets and evaluate them based on the organization’s strategic priorities, the main themes of work and the timeframe of the request. From the point of view of the journalist or producer, with any question, this person must be the organization’s point of contact, since it is he/she is who best manages communication issues. In many cases, members of the press see this person as a “filter” between the organization and the media, although they must really be considered advisors
161
FARN- 2009 Annual Environmental Report- English Version
on such issues. This is because their specific role is to mediate between what the journalists ask for and what information an organization has to/can/should provide, based on the aforementioned considerations. The respect and credibility of any organization depends to a great extent on how this person acts. In particular, he/she must know how to respectfully manage the organization’s relationship with the media, generate trust, and know when to say “yes” or “no” to information requests, based on reasonable criteria and in keeping with the mission and objectives of the institution. V. Conclusions As we have seen in this chapter, the task of communication is significant for any organization that seeks to reach its institutional goals and fulfill its mission. With respect to the mass media, it is necessary to maintain regular and personalized contact with journalists and producers, make sure that our information is available to them and collaborate in every way we can. Media presence should be one of the objectives of any organization, since it is a sphere with great exposure and resonance in the community. Regarding mass communication and information dissemination, new technological advances have been very helpful. An organization’s website is its ‘window’ to society. For this reason, it is necessary to keep it constantly updated, since it is also a space of circulation when other sources of media are not available. Along the same lines, a good base of email contacts must be considered a powerful communication tool, although its maintenance may result tedious and unattractive. Different databases must be generated and maintained, in order to send out targeted communications to the groups most interested in the topic at hand. If, on the other hand, organizations simply send their communiqués/reports/newsletters to every contact, they run the risk of becoming a “bother” for those who derive them directly to their junk mail. In addition to all the actions that have been described in different passages of this article, it is worth mentioning that for the work of communication to be effective, the person who carried out the tasks must feel deep a conviction. And this is nothing that can be taught or learned. This does not mean that efficient Press and Communication work cannot be carried out in the absence of agreement and shared vision, but it will certainly be much harder. The keys for good communication and media positioning are perseverance, persistence, responsibility and commitment to the topics being addressed. So, taking into account the time and effort required, it is clearly a more attractive job for someone who is motivated be the mission of the organization and shares the desire to fulfill institutional objectives and impact.
162