Public Participation in Resource Development Decisions

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Una Jefferson: Do you think Bill C-69, in its current form significantly changes the level of public participation in resource development and environmental decision making in Canada?

Shaun Fluker: No. But it will certainly add opportunities for participation from the public in these decisions and there’s two reasons for that.

One Bill C-69 is going to remove the reference about someone needing to establish that they’re directly affected by a project. So they don’t have that initial constraint or hurdle to overcome. The bill talks about responsible authorities having to ensure that meaningful public participation incurs in relation to the decision making process. And those sort of shifts in the language would open the door for more public participation.

The second reason why it will increase the amount of participation is because the nature of the criteria that responsible authorities have to take into account when they’re assessing the impact of a project have been broadened. And so we’re talking about sustainability, we’re talking about much broader impacts in terms of climate change and things like that. So those factors lend themselves to hearing more voices in relation to what the impact of a project is going to be.

Is it going to be significant? I’m not sure.

You do already see parties making those sorts of submissions even within the current regime with federal environmental impact assessment. I don’t think we can say that Bill C-69 as it is currently working its way through the legislative process is going to have a significant change. Also, the structure of the environmental assessment process isn’t shifting a lot, which is to say we will still have a two track approach where you either have a review that takes place more or less on paper or a review that takes place in the context of an in-person hearing or really no review at all if it’s not a designated project. I don’t see Bill C-69 is doing much to change that overall structure. If there’s going to be enhanced participation, it’s probably still only going to be in the sort of larger projects like the national pipeline projects which have garnered most of the attention in the last five or so years. There’s a lot of other projects that occur other than those and they don’t seem to track the same attention. So I guess my answer is yes it has certainly opened the door. Will it be significant? I’m not sure.

Una Jefferson: You mentioned that currently people who have a more general interest in a project are already able to participate under the Canadian Environmental Assessment Act, 2012. Why is that?

Shaun Fluker: One reason for that is that again, each of these particular reviews is a case by case assessment. You have a different set of panel members who are charged with conducting the assessment and it is really their discretionary decision in terms of who is or is not directly affected. Some of my research has suggested in the past, these panels certainly have their own take on what directly affected means. And so some have a very narrow view of that and others less so. It’s going to be a case by case assessment, I would suspect. Some of that going to depend on just the volume of interest in the project. Smaller project with less apparent interest from the public, maybe there’s a better chance that everybody who expresses an interest gets their opportunity to participate.

Una Jefferson: Do any examples of past panel decisions come to mind that have taken up a broader view versus that have come up with a narrower interpretation of directly affected?

Shaun Fluker: One of the publications that I coauthored a couple of years ago looked at two federal environmental assessments in British Columbia. The New Prosperity mine and the Site C dam process. A colleague and I looked at the participatory materials and we didn’t see much constraint from the panel in terms of who would be entitled to participate in the process. We didn’t see any use of the directly affected text to exclude people. We did see some of that into processes that ran through Alberta. One for sure is Shell’s Jack Pine oil sands buying that was concluded so early on in the tenure of 2012. In that context the panel which was a joint panel with the Alberta Energy regulator limited public involvement at the hearing to under 20 individuals. The record shows that a number of interested parties had been told that they wouldn’t be able to participate in the hearing. They were relying on the directly affected test there for sure.

Una Jefferson: You mentioned about the widening scope of what is considered in impact assessments, like more social factors being considered. Will that lead to some increase in public participation? Does that create a legal basis for more public participation or does it just indicate a trend in what is considered important?

Shaun Fluker: Well, it certainly makes it arguable for someone to say, look this panel is charged with considering how the project will contribute to sustainability and if they only hear from the project proponent and a small circle of people who can show they will be physically impacted by the project, how is it that they are hearing evidence or getting information that would allow them to make a conclusion on sustainability which is very open ended concept? I think this would give people who want to be participants a legal basis upon which to argue it was unlawful or unreasonable for this panel to not hear from us or others in the same position. That’s a significant difference from the current CA 2012.

Una Jefferson: You mentioned that there wasn’t a significant change in public participation in Bill C-69 because the essential structure is still the same. But there is this new planning phase where there is supposed to be public participation in determining what the scope of an assessment will be. Why do you think that doesn’t lead to a significant change?

Shaun Fluker: Because there still is a sort of a phase like that now, maybe not quite as formally legislated, but there’s still an opportunity with projects. The CA agency for example on its website asks for public comment at a very relatively preliminary stage where they’ll say, look, we welcome feedback on whether or not we should even conduct an environmental assessment on this project. It’s all written comments and at the planning stage. So, we’re not talking about in person entitlements. We’re talking about written submissions. The current process has something along those lines. Admittedly, it’s not quite the same, but there are a lot of steps along the way where anybody who’s interested, as a member of the public can provide comments to the agency as they run through their process from deciding whether there’s going to be an environmental impact assessment and if it gets across what factors or particular impacts should be considered. And then as it moves down the process, federally it is a relatively open process. And all of the material that gets followed with the agency are put online and again the agency takes public comments on whether or not that information is sufficient or if the proponent is failing to address a particular issue. So that all happens now under the current regime, but the difference is assuming that the agency decides to hold an in-person hearing, multi-week hearings where there’s a set of panel members and people that are actually there in person who get to attend. That’s a different consideration.

Una Jefferson: How do you see this question of who should be able to participate in a resource and environmental decision making in Canada evolving over time? With full participatory rights in SAGE oil drilling license hearing and with this Bill C-69, do you see a trend towards more public participation?

Shaun Fluker: A lot of these energy and resource projects have a technical side and a broader socio-political side. You’ve got all the technical aspects of pipeline safety, but you’ve got these broader social issues like indigenous rights or climate change. The push for broader participation in these projects is a symptom of issues that we’re having at a democratic level. I see us probably moving towards more of a participatory model. Challenge is going to be how to work that into a process that does have to spend good time looking at the technical aspects of the project. So how do you merge those two needs together. And I have not seen the answer to that yet. I don’t see it in Bill C-69. To me that’s the challenge going forward.