Webinar: Closing the enforcement gap - A Practice Guide for Environment Justice Paralegals (7 Feb, 2018)

paralegals
resourcelibrary
webinars
environment
india

(Ashley van Waes) #1

Access the full recording here

This webinar discussed the Practice Guide for Environmental Justice Paralegals and how paralegals and communities can use the law to address environmental harms.

Environmental justice experts @kanchikohli, @manjumenon, and @meenakshikapoor discussed how the guide complements the work of environmental groups & helped us to further understand the challenges faced by practitioners in the context of current political and developmental trends.

Background:

In many parts of the world, people are living with the environmental impacts of development. Large scale plantations, mining, urban and industrial development have had profound effects on community access to land, livelihoods and public health. One reason for this is that laws and institutions meant for the protection and governance of the environment and natural resources have remained on paper and governments and corporations fail to comply with them.

The guide uses vivid case stories to draw on the lessons from four years of work done by paralegals in India to assist affected communities to seek legal and administrative remedies in over 150 cases of non-compliance, as well as learnings from colleagues working on these issues in Africa and Asia.

Download the guide below:


Our webinar had a rich question & answer session, outlined below. If you have additional questions, please post them in the comments below! Thank you.

Q&A with the presenters:

This sounds like a decentralisation of the justice seeking process, a bottom-up approach if you will, to help increase the reach of the law. What are the strategies that trained paralegals could employ to resolve a case? could you give some examples from your experiences with paralegals and community justice?

Strategies can range from mobilization to using media to training programs to understand the issues, engage with the community, and use the legal empowerment approach to solve problems.

Soumya Singh: How do you go about sensitising people over the environmental laws especially when you said that people often don’t wish to know the legalities behind their wants

The starting point is to connect law to people’s immediate problems. When people are convinced they can use the law or administrative processes to achieve remedy, they start to explore other laws and policies they can use to address historical problems.

An example of this happened recently in Gujarat, when a community learned how a nearby community was using the law for the Right to Information Act, there was a demand for a training on using this act.

Oliva Tattaretti: Do the paralegal take an active role in reaching the community to see what enforcement problems there might be (even going as further as suggesting what issues there might be) or do they take a passive role, waiting to be contacted by the community and acting on their mandate?

We have tried both, actually. When we started the program, our paralegals did not have experience in solving the cases - they had to be sure the law could be used to solve a problem. We were doing a lot of outreach through trainings, street plays, etc and focusing on one or two laws. Once we started talking about the law, the communities had space to secure their rights to livelihood or their right to have decent living, then they started to bring our problems to us. Now, the program and paralegals are quite known in the area and people confront them with their issues. It often happens that people come with new problems and the paralegals need to learn more about laws and policies that are designed to help them.

Kush Tanvani: (@ktanvani) How do we bridge the gap between the government and community? Can you please share examples.

I think the biggest challenge which is usually in their offices who might see a letter and not respond to it, the first thing is to ensure that the appeal that gets to them is persuasive enough to get them to come from their office and see or understand the situation themselves.

There is no perfect formula for this, but persistence definitely pays. Make sure there are credible complaints, regular follow-up, visits to government offices. We have had paralegals visit offices when there was no response, spoken to the government with clear evidence, and try to convince them that their non-response was incorrect. Evidence is vital to be able to walk into the office with confidence and present your case.

We typically ask that you be able to describe the problem in one sentence, rather than a story because many government offices do not have the time. Gradually, case-by-case, region by region, it is important to build relationships with government. Sometimes you speak softly and sometimes a little stronger.

In some cases, we have also had examples where after a few cases have been taken to government officials, they also become more open-minded about this type of work. The truth of the matter is that government agencies who are given the task of ensuring compliance are not well resourced or funded. The number of officials that are available to this work are very few. But they do understand that the work is vital and it can be done in a collaborative manner.

Cheryl Little: How do you identify communities where an LE process can be successful? Do you conduct situation assessments and what do you look for?

In India we work in four sites that we decided to focus on because they are affected by projects that have been operational for a long time. These places have not received the attention they need based on the damage they have experienced. We focused on these areas more because of the environmental concerns rather than the how receptive the community would be to a legal empowerment approach. We have had mixed responses to the LE approach - in fact during our first year, we only had one or two people working with the paralegals because either no one was willing to come forward, or no one had the time or resources to dedicate as some cases take 1-2 years of commitment.

Going forward, it would be necessary to conduct research on where this work would be the most effective. We are hoping to take our work to more areas.

Jeroen De Zeeuw: In considering different types of remedy strategies, what are some of the key criteria / factors you would focus on?

The remedy should be long-term. The idea of using compliance as an option is that you hold the person who is responsible accountable in some way. We do not use a government social responsibility response because it is not as effective.

The other thing is that the remedies that are often presented to people displace the impact. So if you stop dumping ash in one person’s farm, they might start dumping it into another or a deep sea pipeline so it is just moving it from the land to the sea.

The experience with compensation is often used a means to shut people up so they do not raise their voice again. We are not against compensation, and people are owed compensation if they have been affected by a problem for months or years - however, it should not be at their expense.

Marlon Manuel: (@marlonmanuel) What is the role of community organizing in the work of the environmental justice paralegals?

Great question! A lot of the work that paralegals do is focused on community organizing. This was one of the first things we recognized of this work - India has a rich history of community organizing work in different places, including in places the community is working in. Community organizing is absolutely essential because the whole task of getting people together to understand that these projects must be legally regulated. If that effort is not being made, some sort of effort needs to be undertaken to draw attention to compliance issues.

Community organizing is one of the most important skills to be effective. Some of our lead paralegals have over ten to fifteen years of community organizing experience and find it very useful.

Soumya Singh - Did you have any role to play with the SC’s decision on shutting over 60 mining sites in Goa?

Haha - no we have not. As we mentioned at the beginning, we largely use the methodology that does not involve going to courts but that does not mean that this work has nothing to do with litigation. We use a lot of good judgement and orders that have come through courts in the work that paralegals do. They use judgement-law in the field. A lot of the work that paralegals do on cases do have the ability to be taken to court - what they do is develop a case file, exercise all of the options available to them in government, and if they are not satisfied with the remedies it is always possible to go to court.

A solution such as shutting down 60 mines is something we look at with great detail. Within many places that we work, much of the community also works in these mines. So shutting down the mines would mean taking away employment and creating a lot of conflict within a place that is already dealing with a lot of problems. This is a challenge - deliberating and finding remedies that work for a variety of people.

Soumya Singh: Don’t you feel it’s high time that all such environmental organisations in India form a union of sorts in order to hold greater legal power so you’d have more chances of getting your laws passed?

There are networks of environmental organizations - using the legal empowerment approach, we would recommend getting individuals together rather than organizations. As paralegals keep track of changing laws, who is writing these laws, in their own initiative the often participate in their own groups and networks. This work requires the concerted effort of lots of people together.

Viola Belohrad: (@Viobel) Thanks for including the link. I would have another question. I think gender was mentioned as one of the challenges, and is certainly a big challenge for my organisation’s paralegal work in Cameroon. In the paralegal programme you are working in, what has been most effective to increase women’s participation? Do you have training places reserved for female paralegals only to ensure a good gender balance?

A couple of things that we keep in mind during trainings is the timing. If we do it in the morning/daytime, women are typically busy so usually host them in the afternoon or later. We also recommend using female paralegals. Certain kinds of issues see more involvement from women - these include dumping of waste, or pollution/contamination of water resources. These issues have had more participation from women as clients or people going about solving the problem.

Another thing to add is to develop partnerships with women’s self-help groups, or local women’s organization where the outreach assesses the kinds of impacts women are experiencing are very important. Involve them in training programs or go to the government offices and talk with them ensure that a lot of women that are involved with these organizations are part of the case.

Something that has been useful is to find different ways to communicate the law - street plays, games, etc. It is a challenge, we are not successful everywhere, but it certainly helps.

Fadeye Ayoola: (@Fadeke) Do you have many cases in relation to water usage?

In the areas that we work in, whether it be industrials areas, ports, mining zones - both groundwater and surface water and in depletion and contamination. We have had several cases where a particular mine is contaminating a stream, where construction on coastal areas has led to a salinity where sweet water is already in shortage.

Kush Tanvani: (@ktanvani) when we talk about the dynamic laws, how does the team negates the challenges raised by the same?

This is a big challenge - our laws are being written and rewritten on a regular basis. It is even worse because we are dealing with regulations, government made law, where it is very easy for government to rewrite the laws based on the political economy. Part of our work is to track the changes in these laws and how these changes affect our paralegals and their clients’ work. Often we cannot keep track of all of these laws. But it is interesting, there are many of us that track these changes and there are many organizations that are ‘legal-watch’ groups.

I also want to add that if there are drafts that are issued before the law is changed, we try to use our casework to make recommendations to inform the change in law.

As you can see we love this topic, so just to add - keep the pool of laws that you are using to resolve a problem as wide as possible. So if one law that you are using just disappears, there is a whole bunch of laws you can use to resolve a problem.

Jayavel Seetharaman: (@jayaveladvocate) you mean to convey reasons for law to the mass through peer relationship rather approach top to down across

This is an encouraging comment, and a good one to end on. This speaks to the first questions about democratizing or decentralizing the process of seeking justice. That is absolutely what the intention of the program is - to not let law remain in the hands of experts but to actually place it in the hands of communities so that they can use this tool to respond to the problems they face on a day to day basis. It is an interesting and doable project, especially in respect to environmental law. Unlike what a lot of people think because environment has been turned into an expert domain because it involves a lot of science. However, environment law is quite easy to follow - at least government regulations are quite easy to follow. It is just a matter of identifying what the operational parts of the law are and communication this in creative ways to affected communities. Since paralegals are from these communities, they are able to encourage participation.


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Webinario: El Acuerdo de Escazú: Una herramienta para fortalecer la democracia ambiental y proteger a los y las defensores ambientales (29 de mayo)
New member introductions (11 January to 24 January, 2018)
(Elizabeth Moses) #2

Can you speak about the budget and cost of setting up such a legal program? Where does the funding come from in general?


(Jayavel Seetharaman) #3

Respected speakers, my question is in most cases law enforcement mechanism is muzzled by limited jurisdiction like green tribunals failure to curb indiscriminate sand mining or protecting endangered species under wild life protection Act. Do you interact with academic institutions to imbibe awareness on environment?


(Andrew Solomon) #4

I’m interested in hearing more about both sustainability and scalability. Any thoughts or pointers?


(Fanele Mnguni) #5

It will be of great importance for us as paralegals to be issued with an authority to have a legal to do an environmental impct assesment before any development starts this will save our environment and this will benefit our future generations


(Kanchi Kohli) #6

thank you for your insightful question. We understand your concern that institutions often adjudicate on matters such as sand mining and direct concerned authorities to take action to either regulate or restrict the activity. Our effort has been to work with affected communities to create awareness on the regulatory procedures and institutional framework in existence to prevent illegality and take remedial measures without necessarily approaching a court or tribunal. These links in english and kannada languages highlighting legal procedures is one such effort.

On academic institutions: there are local researchers and academicians who are part of the paralegal support network, to whom the teams and can reach out to in case specific clarifications are required. We also respond to law schools and local colleges on request.



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