Public participation under the Canadian Environmental Assessment Act 2012: as good as it sounds?

Effective public participation is one of the key elements in the Environmental Assessment (EA) process. Historically, public participation has been proven to be very effective in the careful review of projects with significant public concern. One may assume that with the expansion and broader understanding of the EA process with time, public participation will become more and more meaningful.

Public participation may be defined as “the involvement of individuals and groups that are positively or negatively affected by a proposed intervention (e.g., a project, a program, a plan, a policy) subject to a decision-making process or are interested in it”[1].

The Canadian Environmental Assessment Act 2012 (CEAA 2012) has brought many changes to its predecessor act of 1992, the Canadian Environmental Assessment Act (CEAA). One particular change is the definition of “interested party”. According to the CEAA, an interested party is “any person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious”[2]. This definition was more open and inclusive.

In CEAA 2012, the responsible authority or review panel will determine “…with respect to a designated project, that a person is an interested party if, in its opinion, the person is directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise…” [3].

The second part that “the person has relevant information or expertise” keeps the chance of inclusiveness, but the fact that it is still under the discretion of the panel can restrict the participation. Some scholars suggest that this restriction can cause representative biasness in the process as business interests are generally “direct” and environmental values (e.g. air quality) are more diffuse in nature. Cases like New Prosperity Gold–Copper mine project, Enbridge Line 9B showed that the respective panels have not restricted participation. Yet, the fact remains that the panel can adopt more restrictive interpretation in future or might be aligned to do so if the government issues regulatory guidance to interpret the new definitions [4].

The CEAA 2012 narrows public participation by reducing the number of projects assessed and narrowing assessment scope. The tight time-frame for assessment steps further narrows down the effective public participation. Moreover, the provision for substitution of federal process by provincial process could create limited participation opportunities due to the diverse provincial processes and the lack of participant funding program for substituted processes [5].

Section 5.1(c) of CEAA 2012 states that activities that can affect the health, socio-economic, physical and cultural heritage, traditional use of land and resource, or any other object or place of historical, archeological, architectural interest have to be taken into consideration. Yet, the relatively short timeline for participation can make it difficult for people of these communities to participate effectively [6].

Here is a short video from a project called “Line in the sand” where community organizer Nadia Nowak expresses concern about the participation prospect:

In 2012, federal government announced a 10% cut on core funding for aboriginal national organizations while regional organizations will have either a 10% core funding cut or highest funding limit of $500,000. This shows that although the CEAA 2012 promises better aboriginal participation, but other government initiatives can weaken the effective participation of aboriginal groups in the environmental assessment process [7].

Downgrading the effectiveness of environmental assessment process on the hands of politicians is not new. The “environment” of environmental assessment has always been a challenging one to live in. When the environmental decision-making fails to address public concern, it puts a big question mark on the success of the process. The CEAA 2012 is relatively new, so we might have to wait a while to see how effective the public participation process would be under this act.

…. Your thoughts are welcome.

References:

[1]  André, P., B. Enserink, D. Connor and P. Croal. 2006. Public Participation International Best Practice Principles. Special Publication Series No. 4. Fargo, USA: International Association for Impact Assessment.

[2]  Government of Canada. 1992. Canadian Environmental Assessment Act, S.C. 1992, c. 37.(current to June 10, 2012). Available from: http://laws-lois.justice.gc.ca/eng/acts/c-15.2/20100712/P1TT3xt3.html

[3]  Government of Canada. 2012. Canadian Environmental Assessment Act 2012, S.C. 2012, c. 19, s. 52. Available from: http://laws-lois.justice.gc.ca/eng/acts/C-15.21/index.html

[4]  Salomons G. H. and Hoberg G.2013. Setting boundaries of participation in environmental impact assessment (In presss). Environmental Impact Assessment Review. Available from: http://dx.doi.org/10.1016/j.eiar.2013.11.001

[5]  Gibson R. B. 2012. In full retreat: the Canadian government’s new environmental assessment law undoes decades of progress. Impact Assessment and Project Appraisal 30(3): 179–188.

[6]  Bond A.,  Pope J., Morrison-Saunders A., Retief F., Gunn J. A. E. 2014. Impact assessment: Eroding benefits through streamlining? Environmental Impact Assessment Review 45: 46-53. Available from: http://dx.doi.org/10.1016/j.eiar.2013.12.002

[7]  Kirchhoff D. , Gardner H. L., Tsuji L. J. 2013. The Canadian Environmental Assessment Act, 2012 and Associated Policy: Implications for Aboriginal Peoples. The International Indigenous Policy Journal 4(3). Available from: http://ir.lib.uwo.ca/iipj/vol4/iss3/1

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