Subproject Proposal

Project Number: 44140 March 2014

TA 7566-REG: Strengthening and Use of Country Safeguard Systems Strengthening Implementation Capacity for EIA in Vanuatu

TA 7566-REG: Strengthening and Use of Country Safeguard Systems ENVIRONMENT SUBPROJECT PROPOSAL

1 Government of Vanuatu; Priorities and Action Agenda 2006 – 2015: An Educated, Healthy and Wealthy

Vanuatu. Port Vila (2012) 2 As one of the amendments the title was changed to Environmental Protection and Conservation Act.

A. Basic Data

1. Date: 11 March 2014

2. Subproject Title: Strengthening Implementation Capacity for EIA in Vanuatu

3. Subproject Officer: Jean Williams

4. Division/Department: PATE/PARD

5. Country/Region: Vanuatu/Pacific

6. Implementing Organization: [ x ] ADB [ ] CSO [ X ] Others (Specify) Department of Environmental Protection and Conservation

7. Amount Requested: $265,000

8. Period this funding request will cover: June 2014 to June 2015

B. Name and Description of Implementing Organization

ADB and Department of Environmental Protection and Conservation (DEPC) Transport, Energy and Natural Resources Division (PATE) of ADB’s Pacific Department (PARD) will implement the subproject. PARD’s Senior Environment Specialist will coordinate the subproject activities as subproject officer. ADB/World Bank Development Coordinator will provide in-country support and coordinate with the Government of Vanuatu and other stakeholders at country level.

C. Subproject Description

1. Background and Rationale: ADB has started to assist the Pacific developing member countries (DMCs) to strengthen their country safeguard systems (CSS), which will not only lead to potential use of CSS in projects supported by ADB and other development partners, but it will also enhance the Pacific DMCs’ ownership and will benefit all projects including those domestically-funded. Since PARD covers 14 DMCs, the approach would be gradual for ADB’s assistance to strengthen CSS in the Pacific. It is expected that strengthening safeguards frameworks and capacity will not only lead to increased use of CSS in projects supported by ADB and other development partners, but will also enhance the Pacific DMCs’ ownership, and will benefit all projects including those

funded domestically.

After a period of more than ten years of no lending operations ADB is re-engaging with Vanuatu, commencing with two infrastructure projects approved in 2011; Vanuatu Inter-islands Shipping Support Project (co-financed by New Zealand aid program) and Port Vila Urban Development Project (PVUDP). The ADB’s Vanuatu country operations business plan (COBP) 2015-2017 is aligned with the goals and objectives of the GOV’s priorities and action agenda

1 and addresses poverty reduction and promotion of economic

growth by assisting the GOC in three core areas: energy, transport, and urban sector development. The COBP identifies pipeline projects including energy access project, Luganville renewable energy project and phase 2 of the PVUDP as well as a non-lending program including project preparatory technical assistance (TA) for the foregoing, support for the development of Vanuatu’s new strategic plan, and expansion of rural financial services. Other development partners of Government of Vanuatu (GOV) are also providing support through the development of an international wharf in Port Vila (JICA) and various transport sector rehabilitation investments (World Bank and Australian aid program).

In 2002 the GOV enacted the Environmental Management and Conservation Act with amendments in 20102

and passed the supporting Environmental Impact Assessment (EIA) Regulations in 2011. The law and regulations have general equivalence with the policy principles of ADB’s 2009 Safeguard Policy Statement’s (SPS) safeguard requirement 1 (SR1): environment, however additional enabling regulations are required to properly enforce the Act and there is a gap in implementation capacity. The focus of this technical assistance (TA) is on strengthening the capacity of the Department of Environmental Protection and Conservation (DEPC) and key agencies to apply environmental safeguards in infrastructure developments.

3 The VPMU was established to coordinate and oversee projects financed by GOV development partners

and currently manages two ADB financed projects and one JICA financed project.

GOV agencies implementing both internally funded and development partner financed projects have limited experience in applying CSS and development partners’ safeguard policies and this has led to inconsistency and weaknesses in implementing safeguards. There is a need to strengthen implementation of Vanuatu’s CSS on environment, particularly in the areas of preparing, reviewing, implementing and monitoring environment assessment documents, issuance of development consents with appropriate conditions and environmental management documents and linking approved documents with the bidding/contract documents, implementing the environmental management plan (EMP), and monitoring.

The EPCA provides for the conservation, sustainable development and management of the environment of Vanuatu, and the regulation of related activities. The EPCA appoints a Director who is responsible for the development, co-ordination and, implementation of the GOV environmental policies and programs. The Director’s tasks, among many other things incl. to administer the EIA procedure and establish, operate and maintain an Environmental Registry (database) of ALL records relating to: (i) EIA documentation (provided under Part 3); (ii) applications, permits and approvals issued Regulations, standards, guidelines, COEPs established under the EPCA; (iii) National State of the Environment Reports, policies and plans; (iv) community conservation areas; (v) international environment and conservation treaties; and (vi) any other matters.

The DEPC comprises the Director and staff in three divisions: (i) Biodiversity and Conservation – with three positions, only one is filled; (ii) Environmental Planning and Assessment – with four positions of which only two are filled; (iii) Support services – with six positions of which four are filled. The divisions are supported by extension services including one project officer in Sanma province and one Senior Officer, Ozone. Of 15 staff positions, there are six vacancies. There is only two staff to work on applications under the EPCA and EIA review requirements, the Director contributes on an as required basis.

Part 3 of the EPCA requires that all projects, proposals or development activities that: (a) impact or are likely to impact on the environment of Vanuatu; and (b) require any license, permit or approval under any law; must comply with provisions of the EPCA. Any projects, proposals or development activities that are likely to cause significant environmental, social and/or custom impacts are subject to environmental assessment. A preliminary environmental assessment (PEA) is submitted with an application for approval under EPCA, DEPC reviews the PEA and makes a determination whether there will be significant impacts requiring further assessment (through EIA).

While all costs are to borne by proponent, staffing and capacity constraints within DEPC often mean delays in determinations, preparation of TOR for EIA, EIA review, and information/recommendations provided to Director for application decisions (i.e. whether to (a) approve the application with or without terms and conditions; (b) refer the matter back to the review committee for further assessment; or (c) reject the application). From time to time DEPC engages an external advisor to assist with EIA review and submission of background information to assist with a decision.

The Ministry of Infrastructure and Public Utilities (MIPU) incorporating Department of Public Works (DPW) and the newly established Vanuatu Project Management Unit (VPMU)

3 are core agencies involved in

infrastructure development and implementation. However these agencies suffer from inadequate capacity to implement the necessary environmental safeguards required under CSS and this has contributed to delays in implementation of development partner financed infrastructure projects. Despite a strong CSS, DEPC faces obstacles in its ability to properly implement and enforce the system of environmental assessment and the framework of consents and approvals required under the Act. With infrastructure investments being made and other development projects now taking place, the CSS implementation capacity requires strengthening to ensure that Vanuatu’s environment is protected from unsustainable and environmentally destructive practices as per the mandate of the Act.

The TA proposes activities that will address gaps in the regulatory framework, capacity and awareness of public and private sector agencies on the purpose and requirements of the EPCA. The areas of capacity building required are: (i) technical strengthening of DEPC in the application of CSS procedures; (ii) institutional capacity strengthening of MIPU and DPW and selected capacity building outside MIPU and DPW in understanding and implementing CSS in GOV financed and development partner supported infrastructure projects.

2. Outcome(s):

This TA is intended to build capacity for strengthening and effective application of environment safeguards system of Vanuatu. The expected impact is reduced risk of environmental degradation through improved application of CSS, and the outcome will be strengthened capacity to implement environmental safeguards in the infrastructure sector. This will be measured by (i) implementation of recommendations for improving the regulatory framework (additional regulations) and priority capacity building activities identified in the TA and longer-term recommendations formulated as an action plan; (ii) the GOV approval of procedures (guidelines, operations manual and other tools etc) developed under the subproject.

3. Outputs:

The following outputs will be delivered under the subproject: Output 1: Institutional Capacity Assessment; Output 2: Strengthened Procedures, Capacity Building and Outreach; Output 3: Diagnostic and comparison of the legal regulatory framework for environment with the ADB’s SPS; and Output 4: Action Plan.

The subproject will enhance capacity of DEPC staff to understand and implement the EPCA and very recent EIA Regulations, provide guidance to MIPU/DPW for safeguards implementation in projects, and increase stakeholder awareness about CSS and make recommendations to improve the regulatory framework for EIA and applications made under the EPCA. Outputs 1-4 will directly lead to the enhanced awareness of both DEPC staff and stakeholders of CSS, as the preparation of deliverables will involve consultation meetings and workshops with relevant stakeholders, including GOV, NGO/CSOs, development partners and private sector which will also enhance DEPC capacity and stakeholder awareness in relation to the EPCA. Output 3 will lead to an improved regulatory framework for EA in line with international standard practice.

The working language for the sub-project will be English. Unless otherwise agreed all draft and final reports will be submitted in English, with the executive summary of each report translated into Bislama.

4. Key Activities and Inputs:

The TA will focus on infrastructure development as one of the priorities of the GOV most relevant to ADB’s Country Partnership Strategy 2010-2014 with Vanuatu. The TA will be undertaken as follows: (i) preparing an assessment of capacity and implementation of Vanuatu CSS (using infrastructure projects as a case study); (ii) strengthening procedures, capacity building and outreach; (iii) undertaking a “lite” diagnostic of the legal regulatory framework for environmental safeguards; and (iv) preparing an action plan that recommends gap-filling measures to further strengthen implementation capacity in the short (immediate) and medium term (five years).

Output 1: Institutional Capacity Assessment

Based on an assessment, the TA will review the institutional capacity of DEPC and MIPU (and DPW) to implement environmental safeguards in the infrastructure sector. This output includes three key activities:

a) Undertaking a capacity assessment and review of the track record of DEPC in respect of implementing the requirements of the EPCA, EIA Regulations (and other laws and regulations as required – to be agreed between DEPC and ADB), particularly in respect of review of PEAs, development of TOR for EIA, review and clearance of EIAs, and issue of EPCA approvals licenses with conditions, and review of the establishment and effectiveness of the Environmental Registry. Provision of capacity building in understanding the objective of the EIA process (environmental soundness of projects), the requirements of the EPCA and supporting the integration of environmental considerations into project decision-making process;

b) Review of EIA procedural manuals and guidelines including those of other Pacific DMCs such as Solomon Islands, Papua New Guinea and other as agreed with DEPC and ADB, as well as any results from previous donor assistance to undertake; (i) review of international experiences and best practice in administrative, procedural and technical specifications for EIA and environmental legal framework approvals including key stages of the process from activity identification, screening, scoping, consultation and engagement with stakeholders, EIA study and report preparation, EIA report review and evaluation, decision-making, monitoring, validation, and evaluation/audit; (ii) comparative analysis of the procedures implemented by, and capacity of DEPC in line with international best practices, and recommendations for strengthening consistent with international best practices; and (iii) consultations with stakeholders to obtain information about CSS implementation; and

c) Adopting a case study approach undertake an assessment of DEPC and MIPU performance on environmental safeguards (including implementation of environmental management plan (EMP) and monitoring of compliance with EMP) and capacity review of environmental safeguards application in the infrastructure sector including: (i) review of current practice and implementation capacity of MIPU/DPW and VPMU in respect of environmental safeguards; (ii) consultation with development partners and VPMU and other sector stakeholders; and (iii) recommendations, presented as an action plan, for the institutional strengthening and capacity building of MIPU, DPW, and VPMU for improved implementation of safeguards.

The capacity assessment will include consultations and site visits as required to development partner-supported projects and government-supported infrastructure projects. Discussions will be held with other development partners, such as World Bank, and New Zealand and Australian aid programs to present a broader picture of development partner experience. The assessment results will be discussed with relevant stakeholders, with the aim of both raising awareness and building capacity to implement CSS.

Output 2: Strengthened Procedures, Capacity Building and Outreach

Based on the findings of Output 1 this output will strengthen procedures through development of specific tools for DEPC to improve capacity in implementing aspects of the EPCA and EIA Regulations. Key activities will include:

a) Preparation of an operations manual for EIA and environmental management in the infrastructure sector; b) Recommendations for the improving effectiveness of the Environmental Registry c) Training workshops with DEPC staff to focus on understanding and implementation of EPCA and EIA

Regulations; and d) Outreach and awareness raising on CSS and requirements for line agencies, private sector, and other

development partners through development and delivery of an awareness raising program targeting GOV staff and other stakeholders (private sector and civil society). The awareness-raising for GOV agencies, private sector and civil society will be designed in such a way that it can be rolled out by DEPC which would assist it in meetings its mandate for environmental education.

Output 3: Diagnostic of the Legal Regulatory Framework for Environment

A comparative analysis will be undertaken of the Vanuatu legal regulatory framework for environmental safeguards at the national level and the policy scope, triggers and applicable principles of SPS with respect to the specific thematic issue of EIA (including screening, EMP, consultation). While the analysis will focus on EIA, all eleven policy principles of SR1 will be included in the comparison. The purpose of the analysis is to determine whether provisions under the legal regulatory framework are equivalent to SPS and to recommend measures to address gaps where these are identified. The analysis will be conducted at the national level and will include the primary environmental legal framework as agreed with DEPC and ADB. This will include at a minimum the EPCA (as amended in 2010) and the EIA Regulations 2011.

The comparative analysis will cover EPCA, EIA Regulations and other relevant laws and regulations that correspond to ADB’s environmental safeguard policy principles, and their commonalities and gaps with the latter, including conduct of a “lite” diagnostic study of the legal and regulatory framework for environmental safeguards following the example from TA 7566-REG to be provided. The diagnostic will be the result of the following activities:

a) An inventory of specific laws/regulations in relation to the SPS SR1; b) A diagnostic setting out the (i) relevant SPS provisions, (ii) corresponding legal provisions, (iii)

comparative analysis (extent of equivalence indicating the full, partial or no equivalence of the specific provisions), and (iv) recommended measures to fill any identified gaps;

c) Consideration of the need for additional enabling regulations that are required to properly enforce the EPCA or other elements of the CSS for environment, set out as recommendations to be included in the Action Plan (Output 4);

d) Provision of support to the review of the capacity of DEPC to implement the EPCA and EIA regulations, particularly in respect of development of TOR for EIA, review and clearance of EIAs, and issue of approvals under the EPCA with conditions; and

e) Preparation and submission of a final report and recommendations of the diagnostic study to DEPC and ADB. Recommendations (including under item c) will be integrated into the draft action plan – refer Output 4)

Output 4: Action Plan

An action plan will be prepared based on Outputs 1 - 3 to articulate a set of specific interventions to further develop capacity to implement environmental safeguards. Amongst other things the action plan can be used as the platform for subsequent TA for further institutional strengthening of DEPC and key line ministry staff, consultants, and potential EIA reviewers. The draft action plan will be discussed with relevant stakeholders, including key government agencies, development partners and NGOs. The action plan will be finalized taking into account the results of stakeholder consultations and will be submitted to the government for approval. Key activities include:

a) Organization of consultation workshops to discuss the draft action plan; b) Preparation of a final action plan taking into account the results of the stakeholder consultations; c) Submission of action plan (and any guidelines etc) for government approval; and

d) Subproject completion and dissemination.

5. Implementation Arrangements, Timetable, and Reporting Plan: PATE will manage the subproject. PATE’s Senior Environment Specialist (Jean Williams) will serve as subproject officer to administer the subproject. PATE’s Safeguard’s Specialist (Nogendra Sapkota) will support as required as alternate subproject officer. ADB/WB Development Coordination Officer will coordinate with the government and other stakeholders at country level. The subproject will be carried out between June 2014 and June 2015.

DEPC will be the government’s focal point for implementation of subproject activities and MIPU/DPW will participate as case study partner and recipient of outreach. These agencies will implement activities in coordination with relevant agencies and stakeholders. The government focal agencies will provide in-kind contribution such as office accommodation and counterpart staff (as required) and coordinate activities of TA consultants. The focal agencies will also be responsible for communicating about the subproject implementation including providing ADB with necessary endorsements.

The subproject will use existing coordination mechanisms at country level to coordinate, consult, and report on subproject activities among relevant government agencies, development partners, and other stakeholders (e.g. NGOs).

The subproject will require a total of 20.75 person-months of consulting services. Two international consultants; a Team Leader/EIA Specialist for 7.5 person-months and an Environmental Legal Specialist for 1.25 months, and one national (junior) consultant (total of 12 person-months) will form the Consultant Team as per the TOR (Attachment 1). The international consultants will have expertise in respective areas of safeguards (i.e., EIA, environmental management, monitoring and capacity building) and environmental law. The national (junior) consultant will assist in overall implementation of the subproject and participate in capacity building and training provision opportunities from the international. As the local consulting pool in Vanuatu is exceptionally small there is a need to start developing this, supported through projects and TA wherever possible. The consultants will be recruited as individuals and engaged by ADB in accordance with its Guidelines on the Use of Consultants (2010, as amended from time to time). Disbursements will conform to ADB’s Technical Assistance Disbursement Handbook (2010, as amended from time to time). Procurement of equipment, if any, will follow ADB’s Procurement Guidelines (2010, as amended from time to time). Engagement of the ELS could be through single source selection given that the assignment is relatively small (i.e. 66 working days) and a job level that is below international level 6 or its equivalent.

The consultants will submit semi-annual progress reports and a subproject completion report, including subproject outputs by target dates as stipulated in the monitoring framework to be attached to the subproject proposal. For each report, the consultants will submit first a draft report for review by ADB and the government focal agencies, and then a final report after incorporating ADB’s and the government focal agencies’ comments on the draft report.

D. Subproject Eligibility

See Annex

E. Cost Estimate (USD)

Item Partner

Contribution1

SSTA Contribution

Total

1. Consultants2

a. Remuneration and Per Diem 190,000 190,000

i) Remuneration - international (TLES) 107,500 107,500

ii) Remuneration - international (ELS) 18,000 18,000

iii) Remuneration - national (junior) 18,000 18,000

iv) Per diem3 46,500 46,500

b. International and local travel 20,500 20,500

i) International airfares 9,200 9,200

ii) Local travel 11,300 11,300

c. Reports and communications 10,000 10,000

2. Trainings, workshops, seminars4 20,000 20,000

3. Administration and support costs (communications, equipment) 10,000 9,600 19,600

4. Contingency 14,900 14,900

TOTAL 265,000 275,000

Notes: 1 No cash contribution. Contribution will be in kind (office accommodation, office hours internet access, counterpart

staff). 2 The estimates are for 7.75 person-months for international consultants and 12 person-months for a national

consultant. 3 The per diem budget item could be significantly reduced (by 5 months) if an international consultant based in

Vanuatu can be engaged for the role of Team Leader/EIA Specialist. This would also increase in-country inputs from 5 months to the full 7.5 months allocated to this role.

4 For at least six formal workshops/training sessions and eight informal sessions.

F. Proposed Subproject Monitoring Framework

Design Summary Performance Targets and Indicators with Baselines

Data Sources and Reporting Mechanisms

Assumptions and Risks

Outcome Strengthened capacity to implement environmental safeguards in the infrastructure sector

By Aug 2015: Action Plan endorsed by the government; Safeguards strengthening procedures produced and implemented within DEPC and key stakeholders; Level of service of DEPC in respect of EPCA implementation improved over 2014 levels

DEPC Annual Report; Environmental Registry (number of projects properly vetted through EPCA procedures)

Assumption DEPC has the capacity to adequately implement and enforce a strengthened system (environment)

Outputs

Output 1: Institutional capacity assessment

Capacity assessment report completed; Staff roles and activities aligned with core functions under EPCA

Capacity self-assessments for UN conventions; Job descriptions

Assumption Limited staff turnover of local counterparts Risk Stakeholders have different priorities on actions to strengthen CSS

Output 2: Strengthened procedures, capacity building and outreach

Adoption of DEPC operations manual; 75% of DEPC staff participate in training sessions (50% of female employees)

Guidelines and checklists used by DEPC; Availability of materials; Uptake and application of strengthened procedures

Output 3: Diagnostic and comparison of legal regulatory framework for environment with SPS

Inventory and diagnostic report completed; Recommendations of diagnostic study submitted to DEPC

GOV circulation of recommendations and reports

Output 4: Action Plan Action plan endorsed by GOV As above

Activities with Milestones

Inception report and work plan (31 Jul 2014)

Output 1: Institutional capacity assessment a) Assessment of the capacity and performance (track record) of DEPC (30 Sep 2014) b) Review of DEPC vis-a-vis international best practice and other Pacific DMCs (31 Oct 2014) c) Assessment of the implementation capacity of MIPU-DPW (31 Oct 2014)

Output 2: Strengthened procedures, capacity building and outreach a) Operations manual for EIA and environmental management in infrastructure sector (Nov-Dec 2014) b) Recommendations for improving effectiveness of Environmental Registry (Dec 2014) c) Training sessions and informal workshops with DEPC (Jan-May 2015) d) Outreach and awareness raising on CSS incl. information materials/pamphlets (Feb-Jun 2015)

Output 3: Diagnostic of legal framework for environment a) Legal inventory by (31 Aug 2014); b) Comparative analysis (through “lite” diagnostic) of legal framework with SPS SR1 and

recommendations for gap-filling measures (15 Sep 2014) c) Consideration of need for additional enabling regulations and recommendations (Sep 2014) d) Provision of support to capacity review of DEPC (15 Sep 2014) e) Preparation and submission of final diagnostic report (Oct 2014)

Output 4: Action plan (gap-filling measures) a) Prepare consultation draft of action plan by (Jan 2015) b) Conduct consultations (Feb-May 2015) c) Prepare final action plan (30 Jun 2015) d) Endorsement of the action plan by the Government (Aug 2015)

Inputs

ADB: RETA 7566-REG $265,000 Consultants: 20.75 person months

Annex 1

ELIGIBILITY CRITERIA CHECKLIST

4 This may include the environmental assessment process, pollution prevention and abatement, biodiversity conservation and

sustainable natural resources management, occupational and community health and safety, and physical cultural resources. 5 This may include activities for improved institutional arrangement and administrative procedures, inter-agency coordination and

governance, and for effective compliance monitoring and enforcement. 6 This may include activities for enhanced corporate environmental and social policies, project safeguard review, and monitoring and

reporting system.

Eligibility Criteria State how the proposed subproject meets the TA’s subproject

eligibility criteria

RSES Comments

1.) Intervention is in one or more of the TA's priority areas (please mark one or more of the following criteria):

[X] legal and regulatory framework, rules, and/or procedures on environmental assessment and management,

4

involuntary resettlement, and Indigenous Peoples safeguards

Lite diagnostic to be undertaken for comparison of CSS (environment) with SPS

[X] institutional strengthening and capacity development of relevant government institutions or agencies, CSOs, and/or other stakeholder groups to implement, enforce, and comply with national laws and regulations on environmental assessment and management, involuntary resettlement, and Indigenous Peoples;

5

The subproject will undertake a capacity assessment to identify and deliver prioritized capacity building measures identified during the TA and agreed by DEPC and MIPU. The subproject will prepare an action plan for longer term strengthening of capacity on environmental safeguards in the infrastructure sector.

[ ] state-owned and/or private sector companies' environmental and social management systems;

6

[ X ] public awareness and participation in environmental and social assessment, planning, and implementation processes;

Outreach and awareness building measures will be part of the strengthening of CSS procedures

[ ] targeted training programs and/or studies on environmental and social safeguards for governments including the judiciary, CSOs, media, academia, and/or other stakeholder groups;

[ ] demonstration activities (“South-South initiatives", such as through twinning arrangements).

2.) The subproject is fully in line with and supportive of DMCs' priorities identified in their development plans and programs and with ADB's country partnership strategies.

Infrastructure development is a priority of Vanuatu’s national development plans. It is also consistent with ADB’s Pacific Approach (2010-2014), and Country Partnership Strategy for Vanuatu.

3.) The subproject balances the use of international and national consultants and emphasizes the transfer of international experience and knowledge to governments, CSOs, and staff of other domestic organizations in the DMC.

A balance team of international and national consultants is proposed, who will work with and transfer international knowledge and experience to GOV agencies and other stakeholders.

4.) The subprojects is complementary but does not substitute nor duplicate ADB ongoing or pipeline activities (i.e., the TA does not finance subprojects that are normally financed by project preparatory TA work or by other funds managed by ADB, including the Japan Special Fund).

The TA will support ADB’s operation in the country, but will not substitute or duplicate ADB’s (or other development partner) ongoing or pipeline activities.

5.) The proposed subproject cost does not exceed $500,000.

The budget doesn’t exceed the ceiling.

6.) Counterpart funds for the subproject (in cash and/or in kind) are expected to be committed by the DMC.

The government will provide in-kind contribution such as office space and counterpart staff.

7.) The DMC has been requested to endorse the TA and to appoint a focal point.

The DEPC has provided in principle agreement to participate in the TA. GOV will be requested to endorse participation in the TA 7566 after it is approved by RSDD.

Prepared by:

Jean Williams, Senior Environment Specialist, PATE, PARD

11 March 2014

Endorsed by Division Director:

Robert Guild, Director, PATE, PARD

11 March 2014

Reviewed by RSES TA Team:

(Name, Signature and Date)

Attachment 1

RETA 7566-REG: Strengthening and Use of Country Safeguard Systems

Subproject: Strengthening Implementation Capacity for EIA in Vanuatu

TERMS OF REFERENCE FOR THE CONSULTANTS

A. Introduction

1. A team of individual international (two) and national (one) consultants will be recruited for a total of 20.75 person-months by the Asian Development Bank (ADB) in accordance with ADB’s Guidelines on the Use of Consultants (2010, as amended from time to time). The purpose of the technical assistance (TA) is to support the Department of Environmental Protection and Conservation (DEPC), within Ministry of Lands and Natural Resources, in fully implementing and understanding the requirements of the country safeguards system (CSS) which includes the Environmental Protection and Conservation Act (EPCA) as amended in 2010 and the supporting Environmental Impact Assessment (EIA) Regulations 2011. The EPCA and EIA Regulations seek to prevent negative impacts on the environment through a system of environmental permitting based on the environmental assessment, review, and certification, of public and private interventions.

2. Under the EPCA, proponents of projects or activities that may impact the environment are required to undertake a process of environmental assessment, which includes preparing a preliminary environmental assessment (PEA)1 and/or environmental impact assessment (EIA), depending on the significance of likely impact of the activity or project. While all costs are to borne by proponent, staffing and capacity constraints within DEPC often mean delays in determinations, preparation of TOR for EIA, EIA review, and information/recommendations provided to Director for application decisions (i.e. whether to (a) approve the application with or without terms and conditions; (b) refer the matter back to the review committee for further assessment; or (c) reject the application). From time to time DEPC engages an external advisor to assist with EIA review and submission of background information to assist with a decision.

3. The TA proposes activities that will address gaps in the regulatory framework, capacity and awareness of public and private sector agencies on the purpose and requirements of the EPCA. The areas of capacity building required are: (i) technical strengthening of DEPC in the application of CSS procedures; (ii) institutional capacity strengthening of Ministry of Infrastructure and Public Utilities (MIPU) and Department of Public Works (DPW) and selected capacity building outside MIPU and DPW in understanding and implementing CSS in GOV financed and development partner supported infrastructure projects.

4. The composition of the Consultant Team is provided in Table 1 with indicative inputs assigned. The terms of reference for the Consultant Team is described in Section B. The Consultant Team will be guided and supported by (i) DEPC; and (ii) ADB. The main outputs of the subproject will be:

1. Institutional capacity assessment;

2. Strengthened procedures, capacity building and outreach;

3. Diagnostic of the legal regulatory framework for environment; and

4. Action plan.

1 Based on the PEA and application, DEPC makes a determination whether an EIA is required.

Table 1 - Consultant Team Members and Assigned Inputs

Consultant Team Members Person-months

(no.)

Team Leader & EIA Specialist (international) 1. 7.50

Environmental Legal Specialist (international) 2. 1.25

Safeguards Specialist (national) 3. 12.00

TOTAL 4. 20.75

B. Terms of Reference

1. Team leader/EIA Specialist (international, 7.5 person-months)

5. The objective/purpose of the role of the Team Leader/EIA Specialist (TLES) is to work closely with DEPC and the Consultant Team and coordinate the main outputs and deliverables of the TA.

6. Qualifications and experience. The TLES will be an international specialist with a postgraduate degree in environmental science, planning or policy. At least 15 years of work experience in environmental management planning and implementation is required. Experience in preparing EIA and/or drafting EIA procedural guidelines or manuals is required. International experience working/liaising with multi-stakeholders (government, development partners, private sector, and civil society) in environmental management and policy issues in several developing countries is required. EIA preparation and/or implementation experience on a range of large projects to small projects would be an advantage. Previous experience in the Pacific is essential and experience in Vanuatu will be considered and advantage.

7. Scope of services. The TLES will provide mentoring and on-the-job training to staff of DEPC and the national safeguards specialist. The TLES will take the lead on the institutional capacity assessment, preparation of the action plan and training and awareness raising information materials, and delivery of the training and workshop program.

8. Detailed tasks. The detailed tasks of the TLES include:

i. Undertaking a capacity assessment and review of the track record of DEPC in respect of implementing the requirements of the EPCA, EIA Regulations (and other laws and regulations as required – to be agreed between DEPC and ADB);

ii. Reviewing EIA procedural manuals and guidelines including those of other Pacific DMCs such as Solomon Islands, Papua New Guinea (and others as agreed with DEPC and ADB), as well as any results from previous donor assistance to undertake; (a) review of international experiences and best practice in administrative, procedural and technical specifications for project/activity screening, scoping, consultation and engagement with stakeholders, EIA study and report preparation, EIA report review and evaluation, decision-making, monitoring, validation, and evaluation/audit; (b) comparative analysis of the procedures implemented by, and capacity of, DEPC in line with international best practices, and recommendations for strengthening consistent with international best practices; and (c) consultations with stakeholders to obtain information about CSS implementation;

iii. Adopt a case study approach to assess MIPU performance on environmental safeguards (including implementation of environmental management plan (EMP)

and monitoring of compliance with EMP) and capacity review of environmental safeguards application in the infrastructure sector including: (a) review of current practice and implementation capacity of MIPU/DPW and VPMU in respect of environmental safeguards; (b) consultation with development partners and VPMU and other sector stakeholders; and (c) recommendations for the institutional strengthening and capacity building of MIPU, DPW, and VPMU for improved implementation of safeguards (presented as an action plan);

iv. Strengthen procedures through development of specific tools for DEPC to improve capacity in implementing aspects of the EPCA and EIA Regulations. Key activities will include: (a) preparation of an operations manual for EIA and environmental management in the infrastructure sector; (b) recommendations for the improving effectiveness of the Environmental Registry; (c) training workshops with DEPC staff to focus on understanding and implementation of EPCA and EIA Regulations; and (d) outreach and awareness raising on CSS and requirements for line agencies, private sector, and other development partners through development and delivery of an awareness raising program targeting GOV staff and other stakeholders (private sector and civil society); and

v. Prepare an action plan based on the recommendations from the implementation capacity assessment and legal diagnostic. The draft action plan will be discussed with relevant stakeholders, including key government agencies, development partners and NGOs. The action plan will be finalized taking into account the results of stakeholder consultations and will be submitted to the government for approval. Key activities include: (a) organization of consultation workshops to discuss the draft action plan; (b) preparation of a final action plan taking into account the results of the stakeholder consultations; (c) submission of action plan (and any guidelines etc) for government approval; and (d) subproject completion and dissemination; and

vi. Prepare, submit, and revise based on comments, the reports as set out in Section C.

2. Environmental Legal Specialist (international, 1.25 person-months)

9. The objective/purpose of the role of the Environmental Legal Specialist (ELS) is to undertake a comparison of the legal regulatory framework with the ADB’s 2009 Safeguard Policy Statement (SPS) – Safeguard Requirement 1: Environment (SR1). 10. Qualifications and experience. The ELS will be an international with a postgraduate degree in law. At least 15 years of work experience in the area of legal practice and formulation/drafting of environmental laws and/or regulations is required. Experience working in developing countries and Pacific countries in particular is required. Previous experience in undertaking legal reviews and comparative analysis of CSS with development partner safeguards policies and international best practice will be considered an advantage. 11. Scope of services. The ELS will undertake a comparative analysis of the Vanuatu legal regulatory framework for environmental safeguards at the national level and the policy scope, triggers and applicable principles of SPS with respect to the specific thematic issue of EIA (including screening, EMP, consultation). While the analysis will focus on EIA, all eleven policy principles of SR1 will be included in the comparison. The purpose of the analysis is to determine whether provisions under the legal regulatory framework are equivalent to SPS and to recommend measures to address gaps where these are identified.

12. The analysis will be conducted at the national level and will include at a minimum the EPCA (as amended in 2010) and the EIA Regulations 2011 and will cover other environmental laws and regulations as agreed with DEPC and ADB. 13. The comparative analysis of EPCA, EIA Regulations and other relevant laws and regulations will identify correspondence to ADB’s environmental safeguard policy principles, and their commonalities and gaps with the latter, including conduct of a “lite” diagnostic study of the legal and regulatory framework for environmental safeguards following the example from TA 7566-REG to be provided. 14. Detailed tasks. The responsibilities of the ELS include the preparation of a diagnostic report, setting out the (a) relevant SPS provisions, (b) corresponding legal provisions, (c) comparative analysis (extent of equivalence), and (d) recommended measures to fill any identified gaps. The detailed tasks of the ELS include:

i. Based on the methodology developed under RETA 7566-REG for a “lite” legal diagnostic, confirm the approach to be adopted for the comparative analysis;

ii. Collect all relevant documents – laws, regulations, policies, Cabinet papers, Government Orders, and other similar instruments and prepare an inventory and an assessment the relevance of specific laws/regulations to the analysis

iii. Conduct the lite diagnostic - a legal framework analysis in relation to the SPS SR1, indicating the full, partial or no equivalence of the specific provisions;

iv. Provision of support to the review of the capacity of DEPC to implement the EPCA and EIA regulations, particularly in respect of development of TOR for EIA, review and clearance of EIAs, and issue of approvals under the EPCA with conditions;

v. Recommend gap-filling measures where necessary;

vi. Consideration of the need, and recommendations, for additional enabling regulations;

vii. Submit the legal diagnostic report to ADB for review, address comments received and finalize the report; and

viii. Undertake other tasks necessary for the analysis that may be assigned by the TLES.

3. Safeguards Specialist (national, 12 person-months)

15. The objective/purpose of the role of the Safeguards Specialist (SS) is to support the TA tasks and participate in training and mentoring opportunities provided by the TLES and ELS throughout the TA. The SS can also provide support to DEPC. 16. Qualifications and experience. The SS will have a degree in sociology, environmental science or planning, development studies, human geography or related fields; and three to least five years of experience in environmental or social assessment, community development, and public participation. Experience working with government, civil society/NGOs and international agencies and a good command of English will be considered an advantage. 17. Detailed tasks. As part of the Consultant Team the SS will:

i. Contribute to the review of the EPCA and EIA Regulations;

ii. Review other environmental legislation, regulations and guidelines, as well as any results from previous donor assistance, as directed by the ELS, in relation to EIA processes and procedures;

iii. Contribute to the implementation and capacity assessments of DEPC and MIPU/DPW;

iv. Provide support to DEPC throughout the course of the TA and ensure maximum exposure to DEPC systems and operating practices;

v. Organize, with staff from DEPC, the formal and informal workshops2 and training sessions, and participate and give presentations as required;

vi. Avail of training and mentoring opportunities provided through working closely with the TLES and ELS throughout the course of the TA; and

vii. Contribute as required to the delivery of the reports stipulated in Section C including translation of the executive summary of final reports into Bislama.

C. Reporting and Delivery Schedule

18. The following deliverables and reports will be prepared by the Consultant Team and submitted to ADB and DEPC:

i. A detailed work plan (31 July 2014);

ii. An inception report after input by the ELS and draft legal diagnostic report (30 Sep 2014);

iii. Final legal diagnostic report and draft implementation capacity assessment report (31 Oct 2014);

iv. Draft operations manual for DEPC (31 Dec 2014);

v. Interim report (outlining program for training delivery, strengthened procedures and tools, and awareness raising and outreach, workshops) and draft action plan (31 Jan 2015); and

vi. Final implementation capacity assessment report, final report (outcomes of workshops, training and capacity building delivered over the TA), and final action plan (30 Jun 2015).

19. All of the reports will need to prepared in a format and style that meet ADB quality standards. All draft and final reports will be submitted electronically unless specified otherwise. Reports will be in English, each final report will contain an executive summary which will be translated into Bislama.

2 The target audiences of the workshops will be discussed with DEPC and agreed during the inception

phase and discussed in the inception report. The workshop participants will include: government agencies (line ministries with obligations under the EPCA and EIA Regulations), private sector representatives, NGO/CSO representatives, GOV development partners, and other stakeholders