The Planning Authority and its “principles”

Searching through the Strategic Plan for Environment and Development (SPED), the term “principle” is not found in any shape or form. We are slightly luckier if we conduct a similar search in the Development Planning Act (DPA) of 2016: there are three references to principles – guiding principles – which should be observed by the Maltese state in promoting a “comprehensive, sustainable, land use planning system”.

These guiding principles are briefly explained in article 3 of the 2016 DPA. Their objective is to enhance the quality of life for the benefit of present and future generations and is qualified by the standard Brundtland quote from her UN report Our Common Future: ” ………without compromising the ability of future generations to meet their own needs.” That means that sustainability is included in the actual wording of the 2016 DPA. Actually, as we are all aware, this is lip-service in its worst form, because in real life we know full well that Malta’s Planning Authority does not seek the benefit of either the present or future generations.

Article 3 of the 2016 DPA lists various measures which need to be taken. They are specific and range from the need “to preserve, use and develop land and sea for this and future generations”, to ensuring that “planning policies are unambiguous”. Then Article 4 of the 2016 DPA states that we cannot go to a Court of Law to directly enforce the principles announced in the previous article, but, it is underlined that these principles are of a fundamental nature and have to be employed in the interpretation of planning law and policies.

This begs the question as to what extent the Planning Authority, as government’s land use planning agent, observes these basic principles and, in particular, whether the various planning policies in use are actually meant to enhance the quality of life of present and future generations.

There have been various political declarations that land use planning should be more friendly to developers, obviously assisting them to “make hay while the sun shines”. The developers, we are repeatedly told, need to be assured of reasonable expectations, as, poor fellows, they have to earn a living – even if this is at the expense of our quality of life.

As an example, may I ask to what extent is, for example, the Fuel Service Station Policy compatible with the basic principles that the Planning Authority is obliged to apply? In recent weeks I have written extensively about the matter because, to me, it is crystal clear that this Policy is not in any way compatible with the Planning Authority’s basic principles. In neither its present form, nor in the slightly diluted format proposed by the Environment and Resources Authority, does the Fuel Service Stations Policy respect the basic principles enshrined in the 2016 DPA.

The government knows this because, as far back as last September, it announced that “shortly” a public consultation exercise would commence on the manner of implementing a policy to ban cars having an internal combustion engine from being used on our roads.

After almost eight months, this “shortly” to be announced public consultation has still not commenced. The announcement that the public consultation would be announced “shortly” was not made by a new Minister, enthusiastic and overwhelmed by a difficult portfolio; it was made by Prime Minister Joseph Muscat in one of his Sunday sermons – the one delivered at the Rialto Bormla on 10 September 2017.

If we will not have cars on our roads running on petrol or diesel “shortly” why does the Planning Authority consider it necessary to permit more fuel service stations? It is certainly not in the interest of future generations.

The Planning Authority is entrusted to defend the interests of future generations. In my opinion it has failed in observing its brief as it has lost sight of its basic principles.

Published on the Malta Independent on Sunday : 22 April 2018

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Green talk but no more

four_pillar-sustainable  development

 

When push comes to shove it is always the rights of future generations which are ignored and thrown overboard. This is done repeatedly as governments tend to give greater value to the rights of present generations, in the process discounting the rights of the future.

It is a recurring theme in all areas of environmental concern. Whether land use planning, water management, resource management, waste management, climate change, biodiversity or air quality,  procrastination is the name of the game. With 101 excuses governments postpone to tomorrow decisions which should have been implemented yesterday.

Future generations have a right to take their own decisions. It is pretty obvious that they will not be able to take adequate decisions as their options will be severely curtailed as a result of the implementation of present and past decisions.

The politics of sustainable development aims to address this deficiency.

On a global level it all started in Stockholm in 1972 as a result of the sensitivities of the Nordic countries which set in motion the UN Human Environment Conference. After the publication of the Brundtland Report in 1987, the Rio Summits (1992 and 2012), as well as the Johannesburg Summit (2002), we can speak of charters, international conventions, declarations and strategies all of which plot out in detail as to what is to be done. However as pointed out by UN Secretary General Ban Ki Moon at the UN Rio+20 Summit (2012) in his report entitled “Objectives and Themes of the United Nations Conference on Sustainable Development” institution building has lagged behind. This signifies that the integration of policymaking and its implementation is nowhere on target, Malta not being an exception.

The Sustainable Development Annual Report 2013 presented in Parliament by Minister Leo Brincat on the 27 May 2014 indicates that not much progress has been made to date on the matter, notwithstanding the number of meetings as well as the appointment of coordinating officers and focal points in each of the Ministries.

Way back in 2008 Malta had a National Sustainable Development Commission which through the inputs of civil society, in coordination with government involvement, had produced a National Sustainable Development Strategy. This was approved by Cabinet at that time but never implemented. So much that to try and justify its inertia the then government tried to divert attention in 2012 by proposing a Sustainable Development Act. This essentially transferred (with changes) some of the proposed structures and institutions identified in the National Sustainable Development Strategy to the legislation and used the process as a justification for not doing anything except talk and talk. The changes piloted through Parliament by then Environment Minister Mario de Marco included the effective dissolution of the National Commission for Sustainable Development (which had been dormant for 5 years). The justification which  the responsible Permanent Secretary uttered as an excuse was that the Commission was too large and hence of no practical use.

It has to be borne in mind that sustainable development is also an exercise in practical democracy whereby policy is formed through capillarity, rising from the roots of society, and not through filtration by dripping from the top downwards. For sustainable development to take root the strategy leading to sustainability must be owned by civil society which must be in the driving seat of the process.

Readers may remember that the President’s address to Parliament  way back on 10 May 2008 had emphasised that : “The government’s plans and actions are to be underpinned by the notion of sustainable development of the economy, of society and of the environment. When making decisions today, serious consideration will be given to the generations of tomorrow.”

This was not manifested in the government’s actions throughout its 5 year term. Not just in its approach to sustainable development but also in its dealing with the individual issues of environmental concern: be it land use planning, water management, resource management, waste management, climate change, biodiversity or air quality.The politics of sustainable development is an uphill struggle. It signifies a long term view in decision making, that is, considering carefully the impacts of today’s decisions on tomorrow. It requires much more than chatter.

As the report tabled by Minister Leo Brincat states in its conclusion, we are in for more chatter as the emphasis in the coming year seems to be the revision of a strategy which has never been implemented. The strategy is worded in such general terms that it is difficult to understand what this means, except that there is no practical interest in getting things done. It would have been much better if some effort was invested in the Action Plans which the different Ministries have to draw up in order to implement the strategy in the various departments/authorities under their political responsibility.

This, it seems, is unfortunately the Maltese long term view.

Published in The Times of Malta, Monday June 30, 2014

Greening the Constitution

Chadwick Lakes 02

Alternattiva Demokratika – The Green Party –  is in agreement that 50 years after its adoption Malta’s Constitution needs to be updated.  However such an exercise, as emphasised in AD’s 2013 electoral manifesto, should be carried out with the direct involvement of civil society. The Constitution belongs to all of us.

There are a number of issues which require careful consideration. In AD’s 2013 electoral manifesto at least fourteen such issues are identified. They vary in scope from electoral reform to widening the issues in respect of which discrimination is prohibited, by including protection from discrimination on the basis of sexual orientation. AD also proposes the introduction of a Constitutional provision in favour of a balanced budget, thereby ensuring that government is forced to discard budget deficits and consequently to control the spiralling public debt.

One very important issue is the need to entrench environmental rights and duties in the Constitution. The proposed Constitutional Convention, supported by AD, should aim at Greening the Constitution. That is, it should aim at addressing environmental rights and duties such that they are spelled out in unequivocal terms.  Environmental rights and duties should as a minimum be spelled out as clearly as property rights in the Constitution. They are worthy of protection just as the rights of individual persons.

Article 9 of the Constitution very briefly states that “The State shall safeguard the landscape and the historical and artistic patrimony of the nation.”  Further, in article 21 of the Constitution we are informed that this (and other safeguards) “shall not be enforceable in a Court” but that this (safeguard) shall be “fundamental to the governance of the country” and that it shall be the aim of the State to apply it in making laws.

It is not conducive to good governance to first declare adherence to specifc safeguards, but then specifically excluding the Courts from ensuring that such safeguards are being observed.

The strategy of announcing principles but then not providing the legislative framework for their implementation was also taken up in environmental legislation. In fact articles 3 and 4 of the 2010 Environment and Development Planning Act  announce a whole list of sound environmental principles. However  in article 5 of the same Act it is then stated that these cannot be enforced in a Court of Law!

When I had the opportunity of discussing the Environment and Development Planning Bill with Mario de Marco (then Parliamentary Secretary responsible for Tourism and the Environment) I had proposed on behalf of the Greens that the declarations  in articles 3 and 4 of the Bill should not be just guiding principles. They ought to be made enforceable by our Courts subject to the introduction of  a suitable transition. Unfortunately Dr de Marco did not take up the Greens proposal.

As things stand today, article 3 of the Environment and Development Planning Act announces very pompously that the government,  as well as every person in Malta, has the duty to protect the environment. Furthermore it is announced that we are duty bound to assist in the taking of preventive and remedial measures to protect the environment and manage resources in a sustainable manner.

Article 4 goes further:  it  states that government is responsible towards present and future generations.  It then goes on to list ten principles which should guide government in its endeavours.  Integrating environmental concerns in decisions on socio-economic and other policies is first on the list. Addressing pollution and environmental degradation through the implementation of the polluter pays principle and the precautionary principle follows immediately after.  Cooperation with other governments and entities enshrines the maxim of “think global, act local” as Malta both affects and is affected by environmental impacts wherever they occur.  The fourth guiding principle is the need to disseminate environmental information whilst the fifth one underlines the need of research as a basic requirement of sound environment policy.  The waste management hierarchy is referred to in the sixth principle followed immediately by underlining the requirement to safeguard biological diversity and combatting all forms of pollution.  Article 4 ends by emphasising that the environment is the common heritage and common concern of mankind and underlines the need to provide incentives leading to a higher level of environmental protection.

Proclaiming guiding principles in our Constitution and environmental legislation is not enough. Our Courts should be empowered in order that they are able to ensure that these principles are actually translated into concrete action.   Government should be compelled to act on the basis of Maltese legislation as otherwise it will only act on environmental issues when and if forced to by the European Union as was evidenced in the past nine years.

Greening the Constitution by extending existing environmental provisions and ensuring that they can be implemented will certainly be one of the objectives of the Greens in the forthcoming Constitutional Convention.

published in the Times of Malta 18 May 2013

More than fine-tuning is required

 

 

Going through the draft National En­vironment Policy (NEP) one immediately acknowledges that its im­plementation will take quite some time. A long journey always starts with a couple of short paces, the first of which being generally the most difficult. While this obviously depends on the level of commitment to the task ahead, the very fact that a decision to start the journey has been taken is of significance.

There are important issues which the draft NEP fails to tackle adequately. I will focus on two of them.

One can start with highlighting principles, the foundations of environmental policy. The Environment and Development Planning Act of 2010, consolidating previously existing legislation, in article 4 thereof defines the objectives of environment policy in terms of principles to be upheld: government action shall aim to protect the environment for the benefit of present and future generations in accordance with the principles of precaution and prevention as well as the rectification of environmental damage at source. The importance of the polluter pays principle as an environment policy tool is also emphasised. This is also underlined in article 192 of the consolidated EU treaties.

I expected the proposed NEP to define a policy direction as to how these principles are to be applied in Maltese environment policy. The draft NEP speaks at length on the polluter pays principle exclusively within the context of waste management policy completely ignoring its applicability in other areas. It makes indirect reference to the preventive principle and to the rectification of environmental damage at source. However, it makes very scant reference to the precautionary principle and limits this strictly to genetically modified organisms.

The precautionary principle is incorporated as Principle 15 in the 1992 Rio Declaration on Environment and Development and was subsequently taken up by the EU and various other countries as a basic principle in environmental legislation. The Environment and Development Planning Act of 2010 defines the precautionary principle as “the principle whereby appropriate measures are taken to protect the environment and to ensure sustainable management of natural resources in the absence of absolute or conclusive scientific proof of the need for such measures”. Uncertainty about damage to our health or to the environment calls for policy in which precaution is the primary objective. The NEP is where this should be spelt out.

Other countries have produced detailed documents guiding both stakeholders and policymakers. An example being the report entitled Prudent Precaution, submitted in September 2008 to the Netherlands’ Minister of Housing, Spatial Planning and the Environment by a panel of experts appointed by the Health Council of the Netherlands. As stated in the introduction to the said report the relevance of the precautionary principle is not restricted to the environment.

The draft NEP is silent and fails to define this essential policy direction. It is hoped that this failure will be rectified.

The draft NEP clearly indicates that the government is preoccupied with a lack of adequate environmental governance. The recognition of this fact is beneficial as the solution of any problem is dependent on recognising its existence.

It is clear that the fragmentation of environmental issues among the different ministries and authorities is not of benefit to environmental governance in Malta. While acknowledging that it would be impractical to have all areas (in particular those with the barest of overlaps with the environment) under one ministry or authority it does not make sense to have both Malta Resources Authority and the Malta Environment and Planning Authority with jurisdiction over fragmented water issues. Nor does the 2008 decision to hive off climate change from the environment to the resources portfolio make any particular sense in a local context. There will always be overlaps between the three pillars of sustainable development. In addition to water and climate change, in a small country it is much easier to coordinate closely related areas such as resources management and the environment. This would amalgamate the small numbers of trained personnel available.

With this in mind it would have been much better if environment protection and the environmental functions of the present MRA had been amalgamated within the Environment Ministry. It would have been of much more benefit than the current fusion of environment protection with land use planning.

Fragmentation is one of the causes of weak environmental governance in Malta. Yet the draft NEP only offers the solution of Cabinet committees. Cabinet committees have never solved anything. Rather they tend to be rubberstamps. The problems created by fragmentation have to be dealt with by bringing the related fragments back together in a permanent manner.

The adequate management of the environment requires a clear political direction and commitment to address administrative fragmentation. While the draft NEP is a courageous attempt it seems to require more than fine-tuning. Present and future generations demand it.

Published in The Times, September 24, 2011

Future Generations must be heard

 

The politics of sustainable development links present and future generations. The 1987 report of the United Nations Commission on Environment and Development (the Brundtland report) emphasised that development is sustainable if the choices we make today do not restrict tomorrow’s generations from making their own independent choices.

Future generations, to date, have no political or financial power and cannot challenge decisions taken by present generations. They have no voice. They are not represented at the negotiating table where present-day decisions are made.

Politics is dominated by the requirement to satisfy today’s wants, irrespective of the costs, as witnessed by spiralling financial, environmental and social deficits.

During the preparatory meetings for the Rio 1992 earth summit, delegations discussed the impacts of development on various vulnerable groups.

In a four-page document (A/CONF.151/PC/WG./L.8/Rev.1/Add.2), dated February 21, 1992, Malta submitted a proposal to the working group of the preparatory committee of the UN Rio conference, which met in New York in early March 1992.

After underlining the international community’s recognition of the rights of future generations as another vulnerable group, the Maltese government rightly emphasised that it is not sufficient to simply recognise the principle of future generation rights.

Words must be transformed into action. In paragraph 17 of its document, Malta proposed to go beyond rhetoric through the inclusion in the 1992 Rio declaration on the environment of the following: “We declare that each generation has, in particular, the responsibility to ensure that in any national or international forum where it is likely that a decision is taken affecting the interests of future generations access be given to an authorised person appointed as ‘Guardian’ of future generations to appear and make submissions on their behalf, so that account be taken of the responsibilities stated in this declaration and the obligations created thereby.”

Malta’s proposal was presented by the Foreign Ministry led by Guido de Marco.

The proposal had been developed by the International Environment Institute of the University of Malta within the framework of its Future Generations Programme led by Fr Emanuel Agius. Malta’s proposal was not taken up in the Rio declaration on the environment.

Do we need a guardian of future generations in Malta? I believe that we do and I think that the issue should be addressed when Parliament discusses legislation on sustainable development shortly.

The reasons justifying the domestic implementation of Malta’s 1992 proposal to the UN Rio preparatory committee are crystallised in paragraph 7 of Malta’s proposal that focuses on responsibility and foresight. Malta emphasised that present generations are in duty bound to foresee possible risks and uncertainties that present economic, political and technological policies have on future generations.

Responsibility, stated Malta in 1992, demands foresight. Hence, one should anticipate effective measures to, at least, prevent foreseeable risks and uncertainties.

The guardian of future generations would be the voice of those still unborn to defend their right to make their own choices, independently of the choices of present and past generations.

S/he would be the conscience of present generations nudging them towards behaviour and decisions that are compatible with their responsibilities.

In particular, s/he would be in a position to speak up on behalf of future generations when current or contemplated policies give rise to long-term risks that are not adequately addressed. S/he would emphasise that it is unethical for present generations to reap benefits and then shift the consequence of their actions on future generations.

Future generations need a voice to be able to communicate their concerns.

The appointment of a guardian to protect their interests would be such a voice. Such an appointment would also be implementing the President’s declaration during the inaugural session of the present Parliament on May 10, 2008 when he emphasised that the government’s plans and actions are to be underpinned by the notion of sustainable development. He had further stated that “when making decisions today, serious consideration will be given to the generations of tomorrow”.

Hungary has already given the lead. In 2007, the Hungarian Parliament appointed Sándor Fülöp as Parliamentary Commissioner for Future Generations. Among other things, he is entrusted to act as a policy advocate for sustainability issues across all relevant fields of legislation and public policy.

International NGOs, such as the World Future Council, have actively brought up the issue of future generations requiring a present-day voice during the second preparatory committee of the UN Rio+20 sustainability conference held in March this year in New York.

The Maltese Greens consider that it is time for the government to accept that the principled action it took on an international level in 1992 is equally applicable on a national level.

Malta too has the responsibility of foresight. It has the responsibility to ensure that the future can speak up such that we can listen and consider the impacts of our actions.

The time is ripe to act. We owe an ear to future generations. They deserve it.

 

published in The Times – Saturday August 27, 2011