5. TAI Assessment StructureTAI Assessment Structure
Constitutional Law
Case Studies
Access to
Information:
27 indicators
Public
Participation:
31 indicators
Access to
Justice:
33 indicators
6 constitutional law indicators applied once per assessment
+
General Law
16 general law indicators applied once per assessment
+
Capacity
Building:
12 capacity
building
indicators
applied
once per
assessment
6. Access to Justice Case Studies
Emergencies
Air Quality
Monitoring
Facility
Reporting
Policy-Level
Decision
Regulatory-Level
Decision
Project-Level
Decision
Access to
Information
Public
Participation
Environmental
Harm
Water Quality
Monitoring
State of Enviro
Reports
Non-
Compliance
Access to
Justice
Access to
Informatio
n
Public
Participation
8. Poverty Case StudiesPoverty Case Studies
Captures the concerns
of the poor
Two (2) case studies
must use the poverty
indictors
Poverty-sensitized
indicators
9. Number of Case StudiesNumber of Case Studies
Prescriptive
Case Types
Case Types at
Researchers’
Discretion
Total
Minimum
Cases
Access to Information 4 4 8
Public Participation 3 3 6
Access to Justice 3 1 4
TOTALS 10 8 18
10. Access to Justice IndicatorsAccess to Justice Indicators
Does the forum
have the
capacity to deal
with the claim?
Are there
provisions,
regulations or
rules?
Is it affordable?
Is the decision
timely?
Is there a forum?
Is the forum
impartial?
How broadly is
standing
interpreted?
11. Valuing Indicators: LawValuing Indicators: Law
96. To what extent does the law enable a party to
seek review or appeal of selected claim type to an
independent body with the power to reverse a
decision?
12. Valuing Indicators: EffortValuing Indicators: Effort
120. To what extent did the forum minimize delays
in processing and reviewing the claim and in
issuing a decision?
14. Choosing Priority Sectors
Economically
Significant
• Significant contributor to GDP
• Large employer
• Unique to your country
Environmentally
or Socially
Significant
Representative
• Significant environmental impacts
• Significant health impacts
• Impact vulnerable populations
• Should reflect average practice
• If it is NOT an average case, then
this must be noted in the
assessment
15. Sample Priority Sectors
IMPORTANT SECTORS
Water and
sanitation
Extractive
Industries
Biodiversity
Forestry Agriculture Poverty
Electricity Tourism Women
Manufacturing Services Children and Youth
Government Fisheries Minorities
Chemicals Transport Health
Toxics Indigenous
Peoples
Trade
Globalization Genetically
Modified
Organisms
Illegal immigrants
16. Guidelines for Case Selection
CASE STUDIES SHOULD BE
Representative Recent
ADDITIONAL CASE STUDIES
SHOULD
Clearly show redress and remedy
Involve different types of claimants
For all access to justice case studies:
For environmental damage claims, case should:
Notes de l'éditeur
Main points: Facilities Level Information is a required case study for access to information. Examples include compliance reports and Pollution Release and Transfer Registers (PRTRs). To add this case you will select the case type of “facilities level reporting” then choose the case details from the following list: Reports on environmental compliance PRTRs Reports from industry audits select “surface water quality” for case details.
Explain the benefits of access to justice. Use examples to illustrate. Main points: Access to justice evaluates the ability of aggrieved parties to go to a third party, a court, a supervisor, or some other person or forum with the authority to grant the relief requested or otherwise resolve the situation. Cases involving access to justice may be brought before a variety of forums, such as: Informal appeal ( e.g. an individual or NGO makes an appeal to an Information Commissioner for refusal to provide information under a Freedom of Information Act) Administrative law (e.g. an individual or NGO brings a legal action against a government administration for lack of enforcement of environmental law or to review the decision of a government agency who failed to consult on an environmental impact assessment) Civil law (e.g. an individual or NGO sues an operator to stop polluting using the common law or civil law codes) Criminal law (e.g. an individual or NGO has the possibility to intervene in criminal proceedings or even to benefit from penalties the defendant has to pay)
Main Points: The goal of access to justice is to provide justice in environmental matters—making sure that the public is compensated for environmental damages, punishing non-compliance and promoting the rule of law. Values of Access to Justice include: Right to Access to Justice: Access to Justice is based on the belief that those who are affected by or interested in environmental concerns have a right seek justice. Communicating Needs: Public participation promotes sustainable decisions by recognizing and communicating the needs and interests of all participants, including decision makers. Actively encourages involvement: Public participation seeks out and facilitates the involvement of those potentially affected by or interested in a decision. Public participation seeks input from participants in designing how they participate. Public participation communicates to participants how their input affected the decision.
What does the TAI assessment evaluate? (Quick introduction to the TAI methodology) Main points: The TAI assessment measures both LAW and PRACTICE at a national level. The law evaluation is completed with legal research and assesses the quality of the access rights as enshrined in the law. Capacity building evaluation looks at the legal requirements to provide capacity building on access rights. The case studies assess PRACTICE. Look at “on the ground” experiences with access. Case studies captures gaps in implementation (gaps between law and practice). It also identifies areas in which practice may be better than the legal framework.
Main points: Case studies capture the “on the ground” measurements of access rights. Access to Justice case studies measure access to justice for denial of access to information, denial of public participation, to remedy environmental harms and for non-compliance of laws/judicial orders. Reminder: There are no case studies designed to measure “capacity building”. Rather, capacity building questions are built into ALL of the case studies. Reminder: Two case studies should utilize the poverty sensitized guidelines for the indicators
The access to justice cases in more detail are: Denial of access to information(required). An access to information claim is one where the claimant was denied rights to information related to the environment or to environmental impacts, policies or decisions. Denial of pubic participation (required). A public participation claim is one where the claimant was denied rights of participation in decision-making relating to the environment e.g. failure to have a public hearing in relation to a large development that required an Environmental Impact Assessment or failure for a government institution to consult with relevant communities or failure to consult appropriately about the effect of activities on access to natural resources, lands or impact on livelihoods. Environmental Damage Claim (required). An environmental harm claim may include past, ongoing or prospective harms to human health, property or the environment. An environmental harm claim can be an action taken by an individual, community or NGO to seek damages, compensation or to stop the activity that is causing harm. Non-Compliance with laws or judicial orders (optional) you may select a non-compliance claim, but it is not required. A non compliance claim can be a breach of a law, regulation, standard or order by an individual, company or the government.
Main Points: Poverty case studies are designed to capture the concerns of the poor. The Poverty Guidelines are to be used for all TAI assessments. The poverty sensitized indicators are to be conducted for 6 of the 18 case studies. The 4 Access to Justice case studies must include at least two (2) but no more than three (3) case studies.
Main points: Access to Justice requires 4 case studies Three are prescriptive and one is at the researchers discretion Of these 2 need to be relevant to the poor and employ the poverty sensitized instructions for the indicators
Main Points: The indicators for access to justice ask questions about: Is there a forum to hear the case? How broadly is standing interpreted? Does the forum have the capacity to deal with the claim? Are there efforts to train judges? If the decision enforced? Is it affordable? Is the decision fair? The LAW indicators for access to information measures: the presence and quality of guarantees, laws, provisions, regulations and rules whether access to justice for environmental matters is considered a general right or not.
Main Points: This is an example of an access to justice indicator. This is indicator #120. Trainer reads the full question and the values. Researchers are provided with more information than this—there are also research guidelines. It is VERY important that you read the guidelines as it explains, for instance what a “clear description” is. Guidelines for this question are: This indicator focuses on the timeliness with which the review and ultimate decision of the claim were made, rather than the process itself (which is covered by Indicator 119). The value for the indicator will be driven by whether the final outcome was obtained in time to resolve the principal concern of the parties bringing the claim. In assigning the value, consider whether: • The status quo changed adversely pending the outcome. • Whether the special needs and circumstances of the claim required a more timely decision. • Reaching a decision in the claim took longer than in similar claims. Definitions: "Minimize delays" means that the forum took actions to avoid delays, such as returning intermediate decisions or distributing documents in a timely manner. "Processing and reviewing" includes the steps taken by the forum towards issuing a final decision. These steps will vary among forums. Recommended Research Methods and Sources: 1. Interview: At least 2 individuals involved in the claim to determine: a. Any steps taken by the forum to minimize delays. b. Any special needs and circumstances of the claim that may have required a more timely decision. 2. Document review: Review reports of the proceedings to ascertain the duration of the claim.
Main Points: This is an example of an access to justice indicator. This is indicator #120. Trainer reads the full question and the values. Researchers are provided with more information than this—there are also research guidelines. It is VERY important that you read the guidelines as it explains, for instance what a “clear description” is. Guidelines for this question are: This indicator focuses on the timeliness with which the review and ultimate decision of the claim were made, rather than the process itself (which is covered by Indicator 119). The value for the indicator will be driven by whether the final outcome was obtained in time to resolve the principal concern of the parties bringing the claim. In assigning the value, consider whether: • The status quo changed adversely pending the outcome. • Whether the special needs and circumstances of the claim required a more timely decision. • Reaching a decision in the claim took longer than in similar claims. Definitions: "Minimize delays" means that the forum took actions to avoid delays, such as returning intermediate decisions or distributing documents in a timely manner. "Processing and reviewing" includes the steps taken by the forum towards issuing a final decision. These steps will vary among forums. Recommended Research Methods and Sources: 1. Interview: At least 2 individuals involved in the claim to determine: a. Any steps taken by the forum to minimize delays. b. Any special needs and circumstances of the claim that may have required a more timely decision. 2. Document review: Review reports of the proceedings to ascertain the duration of the claim.
Main Points: This is an example of an access to justice indicator. This is indicator #120. Trainer reads the full question and the values. Researchers are provided with more information than this—there are also research guidelines. It is VERY important that you read the guidelines as it explains, for instance what a “clear description” is. Guidelines for this question are: This indicator focuses on the timeliness with which the review and ultimate decision of the claim were made, rather than the process itself (which is covered by Indicator 119). The value for the indicator will be driven by whether the final outcome was obtained in time to resolve the principal concern of the parties bringing the claim. In assigning the value, consider whether: • The status quo changed adversely pending the outcome. • Whether the special needs and circumstances of the claim required a more timely decision. • Reaching a decision in the claim took longer than in similar claims. Definitions: "Minimize delays" means that the forum took actions to avoid delays, such as returning intermediate decisions or distributing documents in a timely manner. "Processing and reviewing" includes the steps taken by the forum towards issuing a final decision. These steps will vary among forums. Recommended Research Methods and Sources: 1. Interview: At least 2 individuals involved in the claim to determine: a. Any steps taken by the forum to minimize delays. b. Any special needs and circumstances of the claim that may have required a more timely decision. 2. Document review: Review reports of the proceedings to ascertain the duration of the claim.
Main points: THESE ARE GUIDELINES FOR ALL ACCESS TO JUSTICE CASES Case studies should: Reflect average/standard practice Have occurred in the last 5 years, and more recently if possible If more than one claim is selected, they should involve different types of claimants: NGOs, individuals, etc. For environmental damage claims only, the case should also clearly demonstrate the redress obtained and remedy granted.
