PUBLIC PARTICIPATION IN ENVIRONMENTAL

ASSESSMENT

MARCH 15, 2012

Overview

• Calgary Herald Editorial

• Rationale for Public Participation

• Public Participation under CEAA

• Public Participation Alberta, Ontario

• Does Public Participation make for better decisions?

• Improving Public Participation

Is Public Participation essential to EA? Calgary Herald Editorial

• Why give taxpayer money to groups who oppose Northern Gateway?

• Aren’t laws requiring public participation and funding counterproductive, as well as an impediment to the regulatory process?

• “Democracy is cumbersome; government shouldn’t be finding ways to make it more so”

Calgary Herald Editorial: Assumptions and Issues

• Does the Harper government “ardently support” Northern Gateway? If true, is this unlawful under CEAA s. 4.(2), s.11?

• What is the point of EA if government has already decided project will go forward?

• Editorial assumes Northern Gateway should be built (oil sands as “lifeblood of the provincial economy”)

• What evidence to support assumption?

Calgary Herald Editorial: Assumptions and Issues

• Should it matter for rights to participate or funding that publics participating in an EA oppose a project?

• Should it matter for providing funding that a participating groups is a chapter or branch of a U.S. organization?

• What rights do U.S. citizens/organizations have to participate in Canadian EAs?

Calgary Herald Editorial: Assumptions and Issues

• What about risks of spills from tankers, pipelines, greenhouse gas emissions from induced tar sands development?

• What about rights of First Nations?• Doesn’t the idea of an independent review

panel help to avoid pre-judging of issues on all sides?

• Should resources be available to allow balance in introducing and testing evidence?

Calgary Herald Editorial: Assumptions and Issues

• What is the nature of the Northern Gateway decision?

• Is it a “wicked” problem? (Frank Fischer -“no solutions, only temporary and imperfect resolutions”)

• Does it call for “communicative” not “instrumental” rationality? (John Dryzek)

• Is public participation fundamental to rational decision-making?

Rationale for Public Participation(Sinclair, Doelle)

• Individual empowerment• Ensure project meets public needs• Assigns legitimacy to project• Provides avenues for conflict resolution• Provides forum for local knowledge• Provides for more comprehensive

consideration of factors in decisions• Recognizes legitimate role of affected

public in decisions

Public Participation in CEAAPreamble

AND WHEREAS the Government of Canada is committed to facilitating public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada and providing access to the information on which those environmental assessments are based

Public Participation in CEAAPurposes

S. 4 The purposes of the Act are . . .

(b.3) to promote communication and cooperation between responsible authorities and Aboriginal peoples with respect to environmental assessment . . .

(d) To ensure that there be timely and meaningful opportunities for public participation throughout the environmental assessment process

Access to Information

• Registry operated in manner to ensure convenient public access s.55.(2)

• Right of access in addition to other statutory access rights s. 55.(2)

• Agency to establish and maintain Internet site including prescribed categories of project information s.55.1

• Notice of environmental assessment prior to decision not required

Public Participation Screenings

• Not required under CEAA

• RA may provide participation opportunities “where appropriate in the circumstances” s. 18.(3)

• RA to include screening information on Internet site prior to comment s.18.(3)(a)

• RA to provide opportunity to comment on screening report, and give notice of that opportunity s.18.(3)(b)

Public Participation Comprehensive Studies

• RA to ensure public participation with respect to scope of project, factors to be considered, scope of factors, and ability of comp. study to address issues s.21.(1)

• RA to report to Minister on public concerns s.21.(2)

• RA to ensure public with opportunity to participate in comp. study s. 21.2

Public Participation Comprehensive Studies

• Agency to publish notice to facilitate public access to comprehensive study report s. 22.(1)

• Any person may file concerns with Agency relating to conclusions and recommendations of comprehensive study report s. 22.(2)

Public Participation Panel Reviews

• Review panel to ensure that information required for assessment is obtained and made available to public s.34.(a)

• Review panel to hold hearings that afford public opportunity to participate s.34.(b)

• Hearings to be public subject to exceptions s. 34.(3)

• Review panel to prepare report including summary of public comments s. 34.(c)

Public Participation in Decision-making

• Public concerns a listed factor to be considered by RA in referring project to Minister to review panel s. 25.(b)

• Public concerns a listed factor to be considered by Minister in referring project to review panel s. 28.(b)

Public Participation Funding Requirement

• Minister required to “establish participant funding program to facilitate the participation of the public in comprehensive studies, mediations and assessments by review panels” s.58(1.1)

Ontario Environmental Assessment Act

• Proponent duty to consult with “such persons as may be interested” in preparing terms of reference and environmental assessment s.5.1

• Public notice, inspection, comments on proposed terms of reference s. 6.(3.1), (3.5),(3.6)

• Public notice, inspection, comments on environmental assessment s.6.3, 6.4

Ontario Environmental Assessment Act

• No participant funding

• Hearings are rare, exemptions are frequent

Alberta Energy Resources Conservation Board

• Quasi-judicial body with full-time members• Evidentiary rules, full opportunity to

introduce and test evidence• No intervenor funding, except to local

intervenors after hearings based on test of utility of intervention

• Commitment to public participation suspect: has carried security checks on intevenors

Does Public Participation make for better decisions?

• A “qualified yes” (Rutherford, Campbell)

• Public role in review panels “for the most part, effective” “positive impacts on the outcome of the EA”

• Indicators:– References to public input in reports– Procedural changes prompted by public– Public scrutiny led to recommendations or

changes, changes by proponent

Impediments to Public Participation in Panel Reviews

• Limits on participant funding (funding and resources are scarce)

• Poorly developed processes with short timelines

• Narrow project scope

• Conclusion: More panel reviews please!

(Rutherford, Campbell)

Improving Public Participation (House Environment Committee)

• “Public participation during EAs was widely acknowledged as part of process for achieving a social licence to operate”

• “Public participation in EA is therefore a necessary tool in enabling projects”

• “Committee recommends that the federal government develop guidelines for selection of panel members” (in order to improve transparency during public participation)

Improving Public Participation (Sinclair, Doelle)

• Integrate public participation throughout process

• Allow for more collaborative techniques of participation (ADR, mediation)

• Governments (not proponents) responsible for public participation

• Accountability for how public input used

• Government ensure that the public has basic tools to serve as guardian