What is Necessary to Ensure Natural Justice in EIA Decision-making?

Angus Morrison-Saunders

Senior Lecturer in Environmental Assessment

School of Environmental Science

Murdoch University

Perth, Western Australia

a.morrison-saunders@murdoch.edu.au

Presented at: IAIA07 Growth, Conservation and Responsibility: Promoting Good Governance

and Corporate Stewardship through Impact Assessment – Seoul, Korea

Gerard Early

First Assistant Secretary

Approvals and Wildlife Division

Department of the Environment andWater Resources

Canberra, ACT, Australia

Gerard.Early@environment.gov.au

Outline1. Background

– What is natural justice?

– The issue

– Steps in a generic EIA process

2. Research aims/questions

3. International examples

4. ConclusionsAcknowledgements: This research was funded by the Department of the Environment and Water Resources, Canberra. The input of the EIA practitioners that contributed to the research is greatly appreciated.

What is natural justice*?• decisions by public officials should be

made in an unbiased manner

• people should be given an opportunity to participate in decisions that affect them

*also known as ‘procedural fairness’

1. Background

The issue (i)

[recent EIA decision in Australia – rejection of wind farm proposal by Environment Minister]

The issue (ii)

Steps in a generic EIA process

Screening Scoping

Environmental Impact Statement (EIS)

Public Review

Evaluation

Approval decision

Project implementation & follow-up

New Proposal

need for EIAidentify significant issues

predict impacts/propose mitigation

any person may comment

report by EIA agency or Panel

government minister (e.g. for environment)

proponent announces new action

proponent manages and reports

2. Research aims/questions

Prior to the final approval decision, what should be the status of information that has been generated outside the publicly available assessment process?

– Are decision-makers obliged to share information with stakeholders?

– What are the implications for timeliness, efficiency and certainty of process?

Screening Scoping

Environmental Impact Statement (EIS)

Public Review

Evaluation

Approval decision

Project implementation & follow-up

New Proposal

How is ‘new’ information

at the Evaluation

stage treatedwith respect

to natural justice?

In other words...

Study methodology

• survey of international EIA practitioners– 45 practitioners, 23 EIA jurisdictions, 17 countries

• examination of legislation, EIA guidance, case law etc wherever possible

3. International examples

• Review panels • Canada, New Zealand

• Assessment report/draft decision• Australia, Netherlands, South Africa, UK

• Approval decision • Australia, Canada, NZ, SA, UK, USA

Review Panel (i)

Public Review

Panel advice to decision-maker

Approval decision

Public hearings by Panel

Review Panel (ii)

• No ‘new’ information can enter the process– Canada: all information presented to Panel is

public– New Zealand: Panel shares all information with

proponent & people who made a submission on EIS and wished to be heard by Panel

• Advice of Panel to decision-maker is public– new information available to Panel after hearings

is either ignored or shared with participants

Assessment Report/Draft Decision (i)

Public Review

Assessment Report/Draft Decision presented to decision-maker

Approval decision

[generic EIA approach]

• Assessment Report may only address issues raised in EIA process to date– i.e. no new issues

• Netherlands:– draft decision subject to public review

• UK: [case law rulings]– requirement to consider public submissions– mitigations required in approval conditions must

have been part of public review process

• South Africa: [case law rulings]– if new information (that affects decision) arises

after public review of EIS, then must be shared

Assessment Report/Draft Decision (ii)

Assessment Report/Draft Decision (iii)

[Western Australia

process]

Public Review

EPA advice to decision-maker

Proponent responds to public submissions

Public appeals against EPA advice

Approval decision

Appeals Convenor advice to decision-maker

• independent Appeals Convenor

– discussions with proponent, EPA & public (who lodged appeal or special interest)

– new information often enters process, but shared with all stakeholders

– report of Appeals Convenor to decision-maker is public

Assessment Report/Draft Decision (iv)Western Australia process

Approval Decision (i)

• international practice varies considerably

– approval decisions usually by a Minister

– some legislation directs decision-maker on what they can/cannot consider

– decision-making is less transparent than earlier steps in EIA process

Approval Decision (ii)

• often possible for new information to be introduced– e.g. non-environmental considerations (socio-

economic) + further enquiries at Minister’s request– no examples of (legal) requirement to consult

• but decision must normally be made public, including its basis – (even if this is after the decision has been made)

4. Conclusions

• EIA systems examined generally consistent with concept of natural justice

• but issue of ‘new information’ arising at decision point not addressed in EIA legislation• i.e. a ‘grey’ area

Reflections on natural justice & EIA (i)

• Natural justice is fundamental aspect of EIA (and sustainability)

• Concept is universal, but practice varies• needs to be interpreted in a given jurisdiction/culture

(e.g. statutes, case law, public expectations)

• Expectations higher for EIA agency and/or Panel assessments than for Ministerial decision-making

Reflections on natural justice & EIA (ii)

Can’t have endless public consultation - someone eventually has to make a decision!

• need to strike balance between process efficiency and fairness to public

• ultimately it is judgement of decision-makers to decide when/how much information should be disclosed to stakeholders on case by case basis

Conclusions regarding 'parrot' case

• case settled out of court (i.e. no legal test of 'natural justice' here)

• proponent submitted modified proposal – approved by Minister

BUT…• February 2007 amendments to EPBC

Act 1999 (Cth) – s131AA• requirements of natural justice for EIA

approval processes added• proponent invited to comment on draft

decision prior to Minister's final approval& public may be invited to comment too

THANK YOU!

questions...? discussion...?Angus Morrison-Saunders

http://wwwstaff.murdoch.edu.au/~angusms/

A.Morrison-Saunders@murdoch.edu.au

Gerard Early Gerard.Early@environment.gov.au