L E G A L I S S U E S O N B U R M A J O U R N A L E NVIRONMENTAL ISSUE A Seminar on Constitutional Protection of the Environment in Burma A seminar on the Constitutional Protection of the Environment in Burma was held at Thammasat University, Bangkok, Thailand, from the 28th to the 30th July, 1997. The seminar was organised by Forum Asia, Images Asia, Union for Civil Liberty, and the Burma Lawyers Council. In attendance were delegates from various democratic ethnic nationality organisations from Burma, and legal and non-legal environmental experts from Thailand, Japan, the United States, Netherlands, Australia and New Zealand. The Seminar was convened due to the result of the growing concerns at the serious environmental devastation in Burma by the SLORC military regime and other parties, by the unsustainable development and exploitation of the country's oil and gas reserves, forest and marine resources, minerals, river systems, and agricultural lands. This destruction is in addition to the ongoing environmental damage inflicted by the people as they exploit the natural resources out of ignorance, necessity, or desire for personal enrichment, or development. The seminar expressed concern at the current environmental degradation in Burma, which is intertwined with the worsening political, economic and human rights situation in Burma, and acknowledged that these concerns can be properly addressed only when a political solution is achieved in Burma with the restoration of democracy. It was also acknowledged that in the meantime urgent measures must be taken to address the deteriorating environmental situation in Burma, and the need for the long term protection of the environment by formulating avenues for its protection, conservation, and restoration; that such avenues should include the protection through the Constitution, designed to protect the rights of the N o. 1 - O c t o b e r 1 9 9 7 P a g e 51
E NVIRONMENTAL ISSUE B U R M A L A W Y E R S ' C O U N C I L people and to define the responsibilities of the government on the environment. The Seminar then made recommendations which included the following, with respect to:- 1. the rights of all persons to a secure, healthy and ecologically sustainable environment. 2. the rights of the local people to information and community participation and to their informed consent, in the decision making of the conservation, protection, restoration, development and management of their environment and their national resources, and to the monitoring of same. 3. educating and encouraging the government authorities and the local people, to practice restraint and self-responsibility in the conservation, protection and the restoration of the environment. 4. enacting laws and regulations that will secure such notification and disclosure of the details of all proposed developments which will affect the environment of individuals or the general population as a whole. 5. claiming and obtaining from the government and responsible parties reparation and just compensation for damage to, or loss of life, health and/or property where such claims arise out of the damage to their environment. 6. every citizens' right of equal access to the use, management, and the protection of the clean and healthy air and water in their environment. 7. recognising the rights of the indigenous peoples to control their lands, territories, natural resources and traditional way of life including their right to preserve sacred sites. Guiding Principles for the Protection of the Environment adopted by the 'Constitutional Seminar on the Protection of the Environment In Burma' 28-30 July Thammasat University Bangkok Thailand Rights of all persons to a secure, healthy and ecologically sustainable environment. Recognise the rights of Indigenous Peoples to control their land, terri- P a g e 52 N o. 1 - O c t o b e r 1 9 9 7
L E G A L I S S U E S O N B U R M A J O U R N A L E NVIRONMENTAL ISSUE tories, natural resources and traditional way of life including their right to preserve sacred sites. Development projects should benefit local populations and serve the public interest. Educate and encourage the government authorities and the local people to practice restraint and self-responsibility in the conservation, protection and the restoration of the environment. Informed consent must be obtained from all affected communities for development and investment projects. It is the duty of the citizens, governments and companies doing business in Burma to respect and abide by international laws and conventions relating to the environment. Enact laws and regulations that will secure such notification and disclosure of the details of all developments including proposed ones, which will affect the environment of individuals or the general population as a whole. Every citizen should have equal access to use, manage and protect the clean, healthy air and water. It should be clear that no one owns the air and water. Recognition of different forms of land ownership including community, state and private. Discourage agri-business which would adversely affect the environment. Promotion of the use of traditional agricultural conservation practices and research for ecologically sustainable development. Rights of traditional/subsistence farmers to water resources. Integration of every community into ecologically sustainable development at a national level. N o. 1 - O c t o b e r 1 9 9 7 P a g e 53
E NVIRONMENTAL ISSUE B U R M A L A W Y E R S ' C O U N C I L Constitutional Environmental Protection Clauses for all Constitutional Making Processes regarding Burma adopted by the Constitutional Seminar on the Protection of the Environment in Burma 28-30 July 1997 Thammasat University Bangkok Thailand Ethnic Peoples have the right to control lands, activities and natural resources and to maintain their traditional way of life. This includes the right to security and the enjoyment to their means of subsistence and the right to self-determination in development activities and the right to maintain their traditional way of life in a federal union. All persons have the right to effective remedies and redress for environmental harm or the threat of such harm. The rights of ownershop or possession by the ethnic peoples over the land which they traditionally occupy shall be recognised and their right to use lands that are exclusively occupied by them, and to which they have traditionally had access for their subsistence and traditional activities shall be safeguarded. Every person has the basic right to a healthy and ecologically sound environment to sustainable development and to freedom from pollution and environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood and well-being. All persons have the right to an environment adequate to meet equitably the needs of present and future generations. All persons have the right to infromation concerning the environment and to active, free, meaningful participation in planning, monitoring and decision-making activities and processes that can impact on the environment or development. All persons have a duty to protect and preserve the environment and all member states in teh federal union shall respect and ensure the right to a healthy and ecologically sound environment for the present and future generaltions. Development projects and activities should benefit local populations, P a g e 54 N o. 1 - O c t o b e r 1 9 9 7
L E G A L I S S U E S O N B U R M A J O U R N A L E NVIRONMENTAL ISSUE serve the public interest, protect human health, the environment and natureal ecosystems, respect for customary and traditional uses of natural resources and be fair to future generations. Further decisins regarding development projects and related activities shall be made concurrently by member States and the Federal Union. The informed consent which must be freely given for development projects/activities must be obtained from local communities and people affected or porentially affected. No element in this constitution should be taken to imply licence to carry out activtites that cause significant environmental destruction that is no aspect of the contitution hsould have a negative effect on teh environment. Environmental protection should be implicit in all sections and articles of the constitution. The state and citizens have rights and responsibilities to monitor, regulate and prevent the use, manufacture and importing of toxic wastes, harmful substances and environmentally harmful technologies. The state and citizens must be encouraged to adopt development models and technology which is the moust environmentally benign (friendly) and appropriate under sustainable development criteria. The rights of ownership and possesseion of the Ethnic peoples over teh lands whcih they traditionally occupy shall be recognised and their rights to use lands not exclusively occupied by them, but to wich they have traditionally had access for their subsistence and traditional activities shall be guaranteed. The environment and natural resources should be managed inteh best interests of the people: and Local communities sould manage if there is conflict between communities the state should resolve such conflict if there is conflict between teh States the Federal Govenrmnet should resolve such conflict whatevr the decision it should be resolved in teh best nterests of teh people. Ever person has the right to protect and consume the natural resources by legal and sustainable means. N o. 1 - O c t o b e r 1 9 9 7 P a g e 55
E NVIRONMENTAL ISSUE B U R M A L A W Y E R S ' C O U N C I L If disasters happen to communities, peoples or individuals through the exploitation of natural resources and/or development, those parties have the legal right to claim repatriation and compensation on just terms. Following is the Environmental Clause (24) Chapter (2) of the South African Constitution which was suggested as a good model clause. Everyone has the right to: (a) an environment that is not harmful to thier health or welll being; (b) have the environment protected for the benefit of present and future generations through reasonable legislative and other measures; that (i) prevent pollution and ecological degradatijon; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of material resources while promoting justice and economic and social development. P a g e 56 N o. 1 - O c t o b e r 1 9 9 7