MEANINGFUL PUBLIC PARTICIPATION, INCLUDING ACCESS TO INFORMATION

Meaningful public participation in decision-making—supported by access to information— is a procedural human right and is critical for effective environmental governance.102 In recent years, extensive work has been undertaken in the ASEAN region to articulate the key elements of meaningful public participation and provide guidance for its application in EIA processes:

• Governments and CSO representatives from the five lower Mekong countries worked together in a multi-stakeholder process to prepare Guidelines on Public Participation in Environmental Impact Assessment in the Mekong Region.

• Governments of Cambodia and Myanmar prepared draft national guidelines on public participation in EIA processes.

• United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) and United Nations Environment Programme (UNEP), in support the ASEAN Intergovernmental Commission on Human Rights, created the Technical Report and Recommendations to Strengthen Environmental Impact Assessment Procedures in ASEAN.

While these guidelines focus on EIA processes, the principles and approach are applicable to the proposed holistic model. The Guidelines on Public Participation in Environmental Impact Assessment in the Mekong Region, in particular, provide detailed guidance that could be drawn upon for linear infrastructure project proposals.

Ensuring that public participation is meaningful and contributes to inclusivity outcomes requires a structured approach that includes coordinating public participation during the project lifecycle and establishing clear processes for information disclosure and rights to access information. It should also make appropriate grievance and resolution mechanisms available at all stages.

A more coordinated approach to public participation across the entire linear infrastructure development project lifecycle will address the frequent conflicts that arise between civil society and governments or developers when public participation is invited only at the later stages of the project cycle and information is not disclosed throughout the project.103

Rights Of Indigenous Peoples And Fpic

The United Nations Declaration on the Rights of Indigenous Peoples104 recognizes that Indigenous Peoples have specific rights that should be respected, including through the application of the free, prior, and informed consent (FPIC) principle. It aims to provide Indigenous Peoples with self-determination over their lives, lands, and resources, including regarding decisions on development projects that might affect them.

FPIC provides for a meaningful process of public participation with Indigenous Peoples by respecting their decision-making procedures. It results in either a final agreement about the conditions under which a proposed project would be accepted or a clear opinion that consent for the proposal is withheld.

102 WWF (2022) Access to Information in the Lower Mekong, forthcoming.

103 Bartlett (2019), p. 19.

104 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, October 2, 2007, A/ RES/61/295. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

Applying FPIC is particularly relevant for proposed projects that may significantly impact Indigenous Peoples, including where the project:

• Would be located on, transect, or provide access to lands traditionally owned by, or under the customary use of, Indigenous Peoples;

• Could involve relocating Indigenous Peoples from their lands or restricting their use of natural resources;

• Effect the cultural heritage of Indigenous Peoples.

Inclusivity And The Gender Lens

Inclusivity is at the heart of this model, with its emphasis on ensuring that linear infrastructure projects deliver benefits to the people and communities potentially affected by those projects. Recognizing inclusivity, and the need to apply a gender lens as a key principle of linear infrastructure development processes, is an important step in ensuring these considerations are translated into practice.

There are three key aspects of this principle:

1. Identifying the needs and aspirations of local communities living in proximity to proposed linear infrastructure projects and incorporating these into all stages of the planning, design, and decision-making processes—this includes communities that might be connected or bypassed by such projects, and recognizes that there will be diverse views within and between communities.

2. Applying a gender lens to considering these needs and aspirations, as well as to public participation processes, by addressing barriers to participation, ensuring that the voices of women and girls are heard, and considering the gendered impacts of development projects. Application of this principle implicitly recognizes that women and girls may have different needs, perspectives, and concerns to men, who continue to dominate formal and informal decision-making roles in the region.

3. Ensuring special consideration of historically marginalized and vulnerable groups, and any needs they may have, to maximize their ability to participate when identifying stakeholders and potential impacts of proposed projects. This includes facilitating the participation of diverse ethnic groups, people who use non-dominant languages or dialects, people with disabilities, those below the poverty line, the landless, and children and the elderly.

Establishing inclusivity and applying a gender lens is relevant at all stages of the linear infrastructure project lifecycle.

The Precautionary Principle

The precautionary principle states that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. 105 The application of this principle is core to the mitigation hierarchy, effective EIA systems, and the proposed holistic model. In practice, applying the precautionary principle means that public and private decisions are guided by:

• careful evaluation to avoid—as a priority and wherever practicable—serious or irreversible damage to the environment;

• an assessment of the risk-weighted consequences of various options.

The precautionary principle has also been incorporated into the United Nations Global Compact, which states:

“Businesses should support a precautionary approach to environmental challenges.”106

INTERGENERATIONAL EQUITY, INCLUDING LONG-TERM CLIMATE RESILIENCE

The principle of intergenerational equity provides that the present generation should ensure that the health, diversity, and productivity of the environment are maintained or enhanced for the benefit of future generations. This requires considering the potential long-term impacts of a proposed activity or project, including project operations and maintenance, decommissioning, and site decontamination. This principle is particularly relevant to major linear infrastructure projects that are anticipated to have long lifespans and could have significant negative impacts—direct, indirect, and cumulative—if not properly planned and designed.

Nature Positive Development

Nature positive development is the contemporary approach to responding to the deterioration in planetary health resulting from biodiversity loss and climate change. It supports resilience by reversing biodiversity loss and requiring development activities to contribute to a global increase in the health of natural processes, ecosystems, and species. The concept of nature positive development recognizes that nature is both intrinsically important and a key element of global processes—climate, weather, hydrology, and chemistry—that drive biodiversity, which itself is the basis for human well-being.107

LANDSCAPE-LEVEL PLANNING

Adopting a regulated approach to landscape-level strategic planning for linear infrastructure is central to the proposed holistic model; strategic planning provides context for individual project-level design decisions and long-term development in the region.

Given the significance of this process and the inherent links to broader national socioeconomic development planning, the regulations should assign national-level government responsibility for the planning process. A responsible government agency needs to be identified, considering local institutional arrangements. It should be a central agency with considerable intragovernmental influence and the ability to convene multiple stakeholders, ideally an agency with central planning responsibilities rather than a sector-specific ministry responsible for linear infrastructure (e.g., transport or energy ministries).

106 UN Global Compact (n.d.) The Ten Principles, https://www.unglobalcompact.org/what-is- gc/mission/principles (last accessed 11 September 2022).

The objectives of the planning process should be clearly articulated, both in the regulations and in all communication with internal and external stakeholders. The objectives should include, at a minimum, producing a clear plan that:

• identifies priorities for linear infrastructure development for a defined region in the medium and long-terms;

• identifies areas of land, or “planning corridors,” deemed suitable, unsuitable, or requiring further investigation for linear infrastructure development;

• provides clear guidance for developers and communities about the type and location of anticipated linear infrastructure development. Identifying planning corridors should prioritize development in previously developed areas and areas with existing infrastructure. These corridors could also include conditions for development that may be undertaken in identified locations, such as requiring coastal corridors to include nature-based solution buffers to build resilience. The plan may generate maps for different locations, scales, and timeframes.

The regulations should also outline the planning process. This includes requiring participatory processes involving multiple stakeholders and articulating decision-making processes, including decision-making responsibilities and how any trade-offs between competing objectives or interests should be made, documented, and communicated. The regulations should also include clear arrangements for periodic reviews and updates on the planning outcomes.

The planning process should incorporate all information relevant to making considered decisions around a region’s linear infrastructure needs and constraints. This includes all available socio-economic, climate, environmental, and land use information (see Figure 12), recognizing that information may be held in varying forms and by different entities. The regulations should articulate the minimum inputs required to incorporate resilience and inclusivity considerations into the planning process, including:

• existing linear infrastructure, along with projected lifespans and anticipated upgrade needs;

• medium and long-term climate projections;

• multi-hazard risk assessments;

• vulnerability analyses;

• NDCs and other adopted climate change mitigation and adaptation strategies;

• land tenure maps, including identifying areas under customary land use and customary tenure;

• key biodiversity areas (KBAs) and other important ecosystem services;

• commitments under multilateral environmental agreements;

• population projections;

• social and economic development objectives;

• community development needs and expectations related to linear infrastructure (both direct and indirect).

The planning process (see Figure 12) should explore different scenarios for the landscape, including “no development” options, to assess the relative impacts of various approaches to meeting the anticipated linear infrastructure needs and to properly consider the potential cumulative impacts of development within the region.

Socio-economic development objectives

• National and subnational development plans

• Population projections

• Community expectations

• Transboundary connectivity

Climate projections and disaster risks

• Medium and long-term forecasts

• NDCs

• Multi-hazard risk assessments

• Vulnerability analyses

Ecosystems and services

• KBAs

• Watershed flow data

• National biodiversity strategies

• Protected areas

Land use and tenure

• Land classification and tenure maps

• Existing linear infrastructure requiring upgrades

As part of establishing the participatory, multi-stakeholder planning process, the regulations should also formally recognize the role that CSOs can play in identifying and articulating community needs, concerns, and aspirations.

Public participation within the planning process also needs to be clearly articulated. At a minimum, draft versions of the plans should be released for consultation, including through targeted engagement with key stakeholder representatives and opportunities for broader public input. A summary report should be prepared and publicized that documents the planning process, including its objectives, inputs, decisions made, and consultations undertaken.

While the objective of national linear infrastructure planning arrangements is to create a national plan, transboundary issues cannot be overlooked and will require consideration when establishing the planning framework. Transboundary issues arise in relation to linear infrastructure—both individual and networked projects—that crosses international borders. This is particularly relevant in the ASEAN region where there is growing interconnectedness between countries. More conceptually, however, a landscape approach to strategic planning is more concerned with biophysical features than political boundaries. A comprehensive analysis of resilience in a landscape may include ecosystems and ecosystem services that cover two or more countries. As such, a transboundary approach to landscape planning for linear infrastructure requires coordination and data sharing with neighboring countries and public participation processes that engage with international stakeholders.

ASEAN can play a critical role in supporting the implementation of a landscape-level planning approach that transcends national borders. Such support could range from setting standards and expectations about processes, to providing avenues for sharing experiences about good practices for considering resilience across national boundaries or creating formal mechanisms for transboundary planning. ASEAN’s contribution may be dedicated guidance on processes for addressing transboundary considerations in linear infrastructure planning or as part of broader ASEAN-wide arrangements under consideration for EIA and public participation in a transboundary context.

Many models of landscape, spatial, and natural resources planning, including those within ASEAN, can provide a template for regulations needed to facilitate the planning process and obtain inputs. Depending on the circumstances, jurisdictions may decide to employ or amend existing planning regulations, but such an approach must ensure that there is a planning obligation that focuses on linear infrastructure within the landscape.

Time is required to transition to a fully planned approach to linear infrastructure development—including drafting and adopting the regulatory framework and preparing the landscape plans themselves. Accordingly, arrangements may be needed to address situations where a plan has not been finalized for a given landscape. Formalizing the role of SEAs can bridge this gap. A SEA could be conducted in a variety of ways, depending on the circumstances and particular needs. For example:

1. A sectoral agency is considering development in a region lacking an overall landscape plan (e.g., energy sector transmission upgrades). In such a case, the agency could facilitate an inter-ministerial strategic assessment of that type of linear infrastructure, emphasizing the potential cumulative impacts of various development scenarios. Such an SEA would become an important input into subsequent broader strategic landscape planning undertaken, while providing a nearer-term basis for evaluating individual project proposals.

2. A proponent or financial institution is considering a specific linear infrastructure project for a region lacking a landscape plan. In this case, the proponent could undertake a strategic assessment on the need for the project in advance of (and to inform) detailed design and financing. Such an assessment would consider the same landscape-level issues identified above, including considering the project in relation to existing and planned projects, but would emphasize an evaluation of the need for the project and how those needs might be delivered (i.e., without prior determinations of project form, location, and alignment).

3. A package of economic development activities may be proposed for a region as part of official development assistance (ODA) or foreign direct investment (FDI), including activities under the BRI. An example of this might be a planned special economic zone with new or upgraded transport links and energy supplies. In such a case, the host government might require the foreign government to fund a SEA to consider the entire package of activities—both those initially proposed and any that may be expected to arise because of the initial investments. Such an assessment would ensure a holistic and cumulative assessment of the projects, which might otherwise only be subject to individual project-level EIAs.

Under these scenarios and others, the national government should provide guidance on the objectives and process for undertaking the SEA. This guidance should include clear, publicly disseminated terms of reference for the assessment, as well as clarity on how a completed SEA will be used in decision-making on individual projects. Such guidance should be included as part of explicit transitional arrangements in the regulatory framework. However, it should also be clearly articulated that a SEA is used as a bridging tool while comprehensive landscape plans for linear infrastructure are rolled out. In other words, a SEA can play an important role but should not be treated as an alternative to comprehensive strategic planning.

Upstream Screening

Upstream screening is a critical component of the proposed holistic model as it is the first stage of translating the strategic landscape-level assessment of linear infrastructure options into individual project-level considerations. Early-stage screening identifies risks associated with potential projects, which forms the basis for ongoing risk assessment and initial application of the mitigation hierarchy to reduce risks as much as possible. Upstream screening should support a more structured and considered approach to identifying and selecting potential projects for more detailed design and financing exploration. Importantly, the concept of upstream screening is independent of the common approach to screening project proposals as the first step in EIA processes; upstream screening is used to determine the type and extent of assessment required for the EIA.

The proposed holistic model includes two formal rounds of upstream screening, but in practice it is a continuous process whereby there is an ongoing refinement of risks warranting increased attention as a project progresses through pre-feasibility considerations and before being formalized into a concrete project proposal undergoing a full EIA.

The first round of upstream screening involves an initial identification of potential risks associated with a potential project. To aid this preliminary screening, a simple checklist is provided at Annex 4 that covers six key issues:

1. Strategic Planning Context

2. Biodiversity and Heritage Risk

3. Climate and Disaster Risk

4. Resettlement and Tenure

5. Gender and Inclusion

6. Peace and Conflict

For each issue area, a short series of questions is listed to prompt users to consider the matters and information to inform deliberations about potential projects at this stage.

The screening checklist is then expanded to facilitate the second round of upstream screening (Annex 5). This second round involves a more detailed consideration of the issues that are likely to be relevant to linear infrastructure projects, with four additional issue areas identified and increased specificity in the questions for all ten issue areas, including:

1. Pollution and Chemicals

2. Waste

3. Workers and Occupational Health and Safety

4. Operational Grievance Mechanism and Community Consultation

These upstream screening checklists are designed as tools to suppor t the identification of potential risks. Following this upstream screening process—and noting the reiterative nature of the process outlined above—the next step is to conduct a risk assessment on the identified key risks.

While the screening checklists have been designed primarily for project proponents and financial institutions, they can be used by other stakeholders, including governments and CSOs, to support their own thinking about potential issues involved in linear infrastructure project development. This formalized approach to the upstream risk screening is consistent with contemporary approaches that multilateral development banks are adopting.

Upstream screening can also be considered an initial element of an enterprise’s due diligence. In this way, the proposed holistic model intersects with the obligations of investors, proponents, and implementors of the project through company reporting obligations, ESG reporting requirements, financial covenants, or other obligations imposed as financing conditions.

In November 2021, infrastructure debt investors Aviva Investors, LGIM Real Assets, IFM Investors, Macquarie Asset Management, BlackRock, and Allianz Global Investors developed an ESG covenant package that responds to the challenging and emerging ESG obligations in the EU and the UK.108 This package applies to both primary financing for construction and refinancing of operational infrastructure. It was designed to provide “best practice” for borrowers when reporting to lenders regarding ESG matters and to facilitate lenders’ compliance with the increasing disclosure requirements under emer ging legal and financial requirements. The assumptions associated with the ESG covenant are that due diligence and risk assessment will be carried out before the financial close. This due diligence would include a review of the project EIA, environmental management plan, and monitoring reports and acknowledges that successful management of ESG factors is important to safeguarding the value of the underlying assets.109

Building on this approach, upstream screening, ESG risk assessments, and ESG covenants should be incorporated within the regulatory framework for the development of linear infrastructure in a coordinated manner.

Requiring upstream screening is a simple mechanism for defining the matters that proponents must consider when identifying projects for detailed assessment and potential implementation. This approach can help to:

• ensure there is a tangible link between the upstream (generally government-led) and downstream phases of the project development lifecycle;

• ensure key sustainability, resilience, and inclusivity considerations are applied as part of the project selection and design processes (not just the EIA and project approval phases);

• provide regulatory context for proponents’ due diligence obligations when considering potential projects for investment.

The process for project prioritization and selection should require, at a minimum:

1. Demonstration that the proponent has undertaken appropriate due diligence assessments on the proposed projects.

2. Demonstration that the proposed projects are in accordance with the landscape plan for linear infrastructure (or other strategic assessment in the absence of a dedicated plan), including an early assessment of alternative options.

3. Screening for potential project risks, including: a) proximity to protected areas and KBAs; b) proximity to areas at risk of natural hazards; c) proximity to local communities, including Indigenous Peoples; d) land acquisition requirements and potential resettlement.

4. Demonstration that the proposed projects can be designed, constructed, and operated in ways that would: a) deliver social benefits on both economy-wide and local scales; b) be resilient to the risks of climate change and natural hazards; c) have minimal negative environmental impacts and, ideally, have net positive benefits (e.g., through application of nature-based solutions).

The screening checklists provided in Annex 4 and 5 can be used or adapted within the regulations to establish criteria for the project prioritization and selection process.

Regulatory mechanisms for requiring financial institutions to undertake ESG risk assessments and use ESG covenants could be included as clauses in the loan agreements, required as part of any foreign investment permit or requirement, or as a condition of project approval. A template for an ESG covenant is provided in Annex 6.

The regulations should ensure that the public has access to information about the screening criteria to possible projects, as well as any ESG risk assessments and covenants, with exceptions only covering information that is legitimately commercial-in-confidence.

The regulations may establish or link to a project bank of early-stage projects that have been identified as contributing to the long-term strategic planning objectives and that have passed pre-feasibility risk screening. Project banks are already employed by some countries, including within ASEAN, as a mechanism for encouraging foreign direct investment and public-private partnerships in major economic development projects. By linking these project banks to the regulations and requiring projects listed in the bank to a regulated selection process, including pre-feasibility screening, investors would have greater confidence in the bankability of the projects.