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From: HARRISON, Kay (CCD)
Sent: Tuesday, 18 February 2020 2:56 PM
To: ....ROWE, Jonathan (Inet) <[email address]>
Subject: Aarhus notes
Kia ora Minister
On Monday 10 Feb I made some informal comments to you on the Aarhus Convention (Convention
on Access to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters) and the slide deck provided to you by a member of the treaty secretariat.
This email records the points I made.
As you recall, I advised that this convention and whether New Zealand might consider acceding to it,
would be a matter for the Minister of Foreign Affairs and the Minister for the Environment. I don’t
know whether at any time in the past it has been considered by the government or any proposal
taken to cabinet.
The convention was negotiated under the auspices of the United Nations Economic Commission for
Europe. New Zealand wasn’t involved in negotiating it and indeed it is very European in style.
Whether it would be suitable for our style of government and unique aspects such as the Treaty of
Waitangi I don’t know. There are 47 parties – EU states and other European states plus others.
s6(a), s9(2)(g)(i)
under the
The convention covers things for which we have legislative and regulatory provisions through the
Resource Management Act, the Official Information Act etc. BUT, the analysis provided to you by the
secretariat suggests that these New Zealand Acts may not go far enough. (Some of the assertions are
certainly debateable.) Any decision to explore potential accession would require detailed review and
policy work on whether and to what extent NZ law was compliant with the convention. Potentially
policy changes and amendments to these (and other?) Acts would be required. The analysis involved
would need to be undertaken by MoJ, MfE and MFAT.
s6(a), s9(2)(g)(i)
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The convention entered into force in 2001 and only 47 countries are
parties.
Official Information Act
In sum, exploring whether NZ should accede to this convention would require considerable policy
effort, potentially amendments to several Acts, and then (if NZ did accede) ongoing resourcing of the
convention (regular reporting and meetings of parties etc). s6(a), s9(2)(g)(i)
Finally – a reminder – this was an informal look into the Aarhus convention. I’m not an expert!
Kay
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Kay Harrison
Climate Change Ambassador
Climate Change Division
New Zealand Ministry of Foreign Affairs & Trade | Manatū Aorere
the Act
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FOR INTERNAL MFAT USE ONLY – NOT OFFICIAL POLICY
The Aarhus Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters is one of five Environment Agreements negotiated
under the auspices of the United Nations Economic Commission for Europe. New Zealand was not
involved in its negotiation, so the text does not necessarily reflect NZ practices and concerns.
Key obligations:
Access to information
o Reactive: Article 4: authorities must respond to requests from the public for access
to environmental information in a timely manner
o Proactive: Article 5: authorities must possess and update environmental
information relevant to their functions; ensure that environmental information is
effectively accessible
Public Participation
the
o Article 6: There must be public participation in processes to permit activities that
may have a significant effect on the environment
Act
o Article 7: The public must be able to participate in the preparation of plans,
programmes and policies on the environment
o Article 8: The public must have opportunities to participate in the preparation of
executive instruments and legislation on environmental matters
under
Access to Justice
o Article 9: there must be a review procedure for Article 4 refusals;
o and for Article 6 decisions (where the individual has an “interest”);
o and the ability for individuals to challenge acts or omissions by private persons or
public authorities which contravene national law relating to the environment.
There is also an obligation to promote the principles of the Convention in other international fora.
Information
There is a Protocol to the Convention: The Kyiv Protocol on Pollutant Release and Transfer
Registers. (I haven’t had time to look at this)
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Cost/benefit considerations
s9(2)(h)
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Becoming party would, however, require a diversion of resources on an ongoing basis. The process
to become party involves analysis of whether existing laws and regulations enable us to comply with
the provisions. This is likely the case in a broad sense, but the Ministry of Justice, Ministry of Foreign
Affairs and Trade, Ministry for the Environment and other departments would all be required to
devote resources to this. Following the work of officials, Ministers (Cabinet) would then need to
take a decision, and Parliament’s time would be required to complete the treaty-making process. If
we didn’t already comply with all of the obligations, we may need to amend legislation to do so (the
analysis provided in the presentation suggests that we do not totally comply.
FOR INTERNAL MFAT USE ONLY – NOT OFFICIAL POLICY
Once New Zealand was party, it would be expected to participate in the European-based Meetings
of the Parties (annual?). There is also a compliance committee, and no doubt reporting
requirements. s6(a)
it is bureaucracy-heavy.
Benefits outlined by Secretariat:
Future proofing: “Joining Aarhus would bind current and future governments not to reduce
thresholds for information, participation and justice below the level set by the Convention, with an
international compliance committee and reporting requirements to ensure compliance and
implementation.”
Yes, but this underscores the bureaucracy involved (resourcing required) s9(2)(h)
the
Giving NZ a stronger voice internationally: e.g. we risk being left behind because Aarhus already
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has 47 parties.
Not a particularly convincing argument. s9(2)(h)
Significant contribution to implementing SDG16 under
We can demonstrate our commitment to SDG16 through the laws and practices we have
domestically. SDG 16 is set out below for information.
A forum for sharing NZ’s innovative practices, and hearing of others
That would be good, but the Ministry’s experience is that other government departments
would find it difficult to prioritise international travel for something like this, especially
Information
something that is so European focused. The burden to attend meetings would likely fall on
MFAT. Released
Specific areas where NZ doesn’t comply with Aarhus
No doubt there are improvements that could be made to the OIA and the RMA, and other
legislation, but there is a suggestion in the presentation that amendments to the legislation
would be required in order to become party to the Convention. A judgment would need to
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be made by other relevant departments/Ministers as to whether that was a good use of
resources.
Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice
for all and build effective, accountable and inclusive institutions at all levels
16.1 Significantly reduce all forms of violence and related death rates everywhere
FOR INTERNAL MFAT USE ONLY – NOT OFFICIAL POLICY
16.2 End abuse, exploitation, trafficking and all forms of violence against and torture of children
16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all
16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen
assets and combat all forms of organized crime
16.5 Substantially reduce corruption and bribery in all their forms
16.6 Develop effective, accountable and transparent institutions at all levels
16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels
16.8 Broaden and strengthen the participation of developing countries in the institutions of global governance
16.9 By 2030, provide legal identity for all, including birth registration
the
16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national
Act
legislation and international agreements
16.a Strengthen relevant national institutions, including through international cooperation, for building capacity
at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime
16.b Promote and enforce non-discriminatory laws and policies for sustainable development
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