Experiencias de Educación Financiera en Colombia

The 'proponent' refers to the party who is conducting and is responsible for a public participation process. In the case of the EIA public participation process, this refers to the EAP. However, the term 'proponent' (as used in this Chapter) goes further than this and would, for example, also

173

include the applicant seeking the environmental authorisation on whose behalf the EAP is conducting the public participation process. Proponent is, therefore, used broadly.

The 'assessor' refers to an independent person monitoring the public participation process to confirm whether it complies with the public participation strategy ('the PPS') and gives effect to the substantive principles. To the extent that the substantive principles are not achieved, the assessor will make changes to the PPS which will need to be implemented by the proponent. It is important that the assessor is independent of the proponent and the IAP's and that both parties trust the changes (if any) required by the assessor.

The appointment and function of assessors will need to be regulated in order to ensure that this independence is maintained. Probably the fairest and most efficient way to appoint the assessor is for a body of assessors to be created from which an assessor is randomly assigned to a public participation process. Although the proponent would be responsible for the cost of the assessor, this money would be paid to the body of assessors and not to the assessor directly. In this way, the assessor will not feel obliged or pressured to find an approach that favours the proponent.

6.3 The Constitutional Framework for Public Participation

The CFPP was developed with the democratic participatory principles in mind. Theoretically, by implementing this CFPP, the public participation process will accord with the Constitution and the requirements of participatory democracy. The most important aspect of the CFPP is developing and publishing the PPS as this sets out the participation process which informs IAP's of the process that will be followed, when they are expected to participate and what forms the baseline against which the public participation process will be audited to confirm that it is complying with the democratic participatory principles. Although the PPS must be designed for each public participation process, it is not intended that each process would be initiated without any previous knowledge or experience informing it. Therefore, while the CFPP contemplates that each public participation process must be tailored to meet the requirements of the IAP's, it does not do so in a vacuum. Guidance must be taken from previous public participation processes so as to ensure that similar matters are treated in a similar way and to learn from practices which failed to give effect to the democratic participatory principles.

174

The first stage of the PPS is to look at the factors informing the PPS: the identity of the IAP's, the time available to the proponent to conduct the public participation process; the reasonable costs and resources available to implement the public participation process; the nature of the decision or activity which will result following the public participation process and any empowering legislation or document. Using this information, the proponent will be able to develop a draft PPS which can be made available to the IAP's for comment.

6.3.1 Identifying the Interested And affected Parties to the public participation process

The first factor to be addressed is the identity of the IAP's. Identifying IAP's will depend on the facts of each case and will be left largely to the proponent to determine in each instance. For example, determining the IAP's in respect of a proposed project to build a substation would require that the proponent look at the relevant parties that reside in close proximity to the proposed substation. It may also require that resident associations are notified and contacted.

Certain local authorities (such as municipalities) should be notified as well as non-governmental bodies such as nature groups if there is a potential environmental impact. In these instances, the proponent may also be guided by governing legislation and regulations which provide some input as to who may be interested and affected. The process followed in identifying the IAP's that may wish to comment on health legislation, however, would require the proponent to review the themes that the legislation deals with and identify those persons that may be affected, such as patients, doctors, hospital groups, medical aid groups, public health care groups, traditional medicine, healthcare members associations etc. There is, therefore, not a 'one-size-fits-all' approach to identifying IAP's. Both the insiders and outsiders need to be identified.⁷⁵⁰ That is, those parties which will participate in the process, irrespective of the kind of process adopted by virtue of the fact that they have a vested interest in the outcome of the process and they have the resources and skills to participate in the process and those parties that would traditionally be 'missing' from the participatory processes for whatever reason (i.e. intimidation, lack of resources, lack of knowledge or time etc.)⁷⁵¹ or are a ‘discrete and identifiable group’⁷⁵² but

750Section 5.4 Broader participation: insiders and outsiders above.

751'Missing' persons may include the elderly, disabled persons, disadvantaged persons, the poor or people with no or limited education.

752Section 3.5 Participating in creating legislation above.

175

which could provide situated knowledge which may highlight issues that the proponent did not identify or consider.

Having identified all the IAP's, the proponent must consider whether any IAP's have been intentionally excluded and whether there is a legitimate government purpose⁷⁵³for doing so. The examples cited above indicate that persons under the age of 18 or persons without a bar-coded identity document are legitimate reasons for excluding persons from voting. Where there is any uncertainty as to whether persons should be excluded, the presumption should favour inclusion rather than exclusion.⁷⁵⁴

6.3.2 Time and costs of implementing the public participation process

The amount of time available to the proponent to conduct the public participation process is a relevant consideration as it influences the mode or modes of participation which will be adopted to engage with the IAP's. However, the democratic participatory principles require that participants are, at least, afforded a reasonable opportunity to participate.⁷⁵⁵ The proponent cannot reduce the time period in order to meet a commercial deadline and (in so doing) compromise the IAP's right to participate in the process.⁷⁵⁶ Similarly, a compromised public participation process cannot be implemented merely because a constitutionally acceptable process is too costly.⁷⁵⁷ However, costs are a relevant factor to consider when assessing the reasonableness of a public participation process as whatever process is selected must be supported by adequate resources, such as administrative and logistical support.⁷⁵⁸

6.3.3 The reason for the public participation process

The reason for conducting the public participation process is an important factor as it dictates the nature and extent of the process. As is evident from the tyre labelling example cited above,⁷⁵⁹ where there is a predetermined number of options and a limited amount of information, it may be suitable to conduct a public participation process which reflects a spontaneous preference, rather

753Section 3.4 Participating by Voting above.

754Principle 5: The Principle of Inclusivity; section 3.4 Participating by Voting above.

755Doctors for Life supra note 215 at 1445.

756Section 3.5 Participating in creating legislation above.

757Ibid.

758Section 3.6.3 Developing a public participation strategy above.

759Section 5.6.2.1 Information Triage and Sign-posting above.

176

than an informed or adaptive preference.⁷⁶⁰ Given the simplicity in the feedback required, there is not a significant amount of information and instruction that needs to be conveyed to the IAP's and no reasons or justification need be provided in support of the decision. Ultimately, the choice comes down to the personal preference of each IAP.⁷⁶¹This form of participation mimics voting and is, therefore, generally known and understood by the participants. The option with the most votes 'wins' by way of majority rule.

Where the nature of the decision is more complex and without clearly defined conclusions or options - such as in an EIA or the creation of legislation governing healthcare – IAP's need to move away from 'voting and venting'⁷⁶² to something which compels them to engage with the information and develop solutions which promote the public good.⁷⁶³

Understanding the reason for engaging the IAP's will also highlight whether the matter is controversial or not. In matters which are more likely to generate polarised views concerning what is being proposed (for example, authorisation to construct a nuclear power plant or undertake fracking activities in the Karoo), the proponent will need to develop highly interactive participatory processes which support the construction of knowledge contemplated in Principle 1: The Educative Effect so that the concerns of each of the parties are clarified. The proponent will need to exercise strong moderation⁷⁶⁴ skills so as to encourage lively debate while not allowing mud-slinging.⁷⁶⁵ Where there is an impasse, the proponent will need to develop and implement effective problem-solving techniques. It is also critical that the proponent has an understanding of the IAP's and their pre-conceived ideas about and emotions towards the process, project or decision as this will inform the manner in which he or she approaches breaking the impasse.⁷⁶⁶

760Section 5.6.3 Low participation literacy above.

761Principle 11: The Principle of Context.

762Section 5.6.3 Low participation literacy above.

763Principle 1: The Educative Effect.

764Principle 20: The Principle of Moderation.

765Section 5.6.3.2 Moderation above.

766Principle 20: The Principle of Moderation.

177

6.3.4 Empowering legislation relating to the public participation process

The final factor (although circumstances may require that additional factors be considered) which must be taken into consideration when designing the PPS is whether there is any empowering legislation governing the public participation process being implemented as this may impose restrictions or qualifications which will determine the structure of the public participation process.⁷⁶⁷For example, as will be set out in detail in the next chapter, the NEMA and EIA Regulations impose certain restrictions governing the public participation process in EIA's. As has been expressed above, however, the legislation (barring the PAJA which is fairly prescriptive) tends to be vague regarding the manner in which participation must be implemented. To the extent that the legislated public participation process deviates from the democratic participatory principles, there would be an opportunity to challenge the constitutionality of the empowering legislation and the process.