Authenticity and Connectivity: Two Words for the Enhancement of Corporate Social Responsibility!

By Paula Cortes

CSR has been controversial because of how corporations have failed with their green logos. An example is Terra Cycle, a recycling company whose tagline is “Eliminating the Idea of Waste”. For example, the company makes plastic lumber products out of single-use coffee pods. But many environmentalists are unconvinced: “if TerraCycle really wanted to eliminate waste, it would suggest consumers make coffee the old fashioned way”  (1.)

Untitled

Many brands are using corporate social responsibility (CSR) as a communication strategy to improve their corporate image; consumers, however, are often overwhelmed by these more or less well-founded CSR claims and can have trouble identifying what distinguishes a truly responsible firm. This confusion has promoted ‘greenwashing’ practices and may make CSR initiatives less effective (2), despite their rise as a prominent international interest. It has also become a research priority in public relations and has been considered as one of the key aspects of that field for decades (3).

In a TED talk video Dr. Mc Elhaney proposes the use of her four core values when consultants are working for a company doing CSR: “Authentic, Bold, Connected and (Damn) Useful” are the strategies for better CSR programs according to her.  In the talk she points out Authenticity as an initiative that represent economic benefits because being the author of one’s own innovation shows a higher self-awareness and engagement from the shareholders. Additionally, it will improve the consumer’s perception. To put this into perspective the CSR of every company should demonstrate a realistic concern for the implication of their processes. For example a company in the mining sector after achieving EIA approval should be authentic in its CSR design, including realistic needs of the community on its guidelines, for example training local people to be employed by the mining enterprise, creating better access to basic resources as water and aliments and ensuring healthy labor conditions in order to demonstrate that the company understands the particular needs of the community where the mine is located.

Dr. Mac Elhaney focuses on the importance of being authentic and, despite the fact that she does not rationalise the other core values mentioned before, I would like to take into consideration the importance of being “Connected”. Firms involved in repeated interactions with stakeholders that are based on trust and cooperation have an incentive to be honest and ethical. They have demonstrated that this behaviour is beneficial to the company; therefore, it is important to generate permanent bonds between people as we care better the ones that we know (5). Being connected includes having effective communication. Informing the public about the company management of environmental challenges and the preventive and corrective actions to environmental threats brings trust and a better perception from the public. In the example of noise annoyance, a refinery that Irving Oil developed a reducing noise program which has been decreasing noise in the neighbourhood around the refinery, minimizing the use of flaring as well as installing a range of noise silencer technologies. (7) This demonstrates that the company is connected enough to hear and be aware of community needs and to respond to improve people’s quality of life.

CSR is a challenging process that requires a comprehensive approach on the part of the people who are creating the strategy. In this article I briefly explored two of the core values mentioned for the Dr Mc Elhaney; however, it is important to take into consideration that all companies have different missions and visions, which makes them unique. Authenticity might be sometimes hard to achieve as it is necessary to have a budget to implement new practices, if the company has many standardized processes probably would prefer to maintain its traditional ways. To be able to be authentic requires engagement from the workers, open communication and a committed disposition of the shareholders.

If there is an opportunity to modify and improve a process in a company, it should be easy to communicate to the main chair about it. When companies have quality systems they have an advantage in this process as these protocols have continuous improvement guidelines. Social responsibility requires a real engagement to achieve all the company goals expressed in a mission and vision. It should exist as a participatory mechanism for any person to take part of it and cooperate in the enhancement of the different processes. With real consistency and authenticity communicated, the company’s relations with consumers will be smoother because the public will better trust a company that shows that what they promote agrees with what they do, and then CSR wouldn’t look like just another greenwashing initiative.

Sources:

(1) http://www.theguardian.com/sustainable-business/2014/aug/25/5-sustainability-greenwash-products-ecofriendly-boondoggles-design

(2) Parguel, B. Benoît-Moreau, F.Larceneux F. 2011. How Sustainability Ratings Might Deter ‘Greenwashing’: A Closer Look at Ethical Corporate Communication.August 2011, Volume 102, Issue 1, pp 15-28.Journal of Business Ethics

(3) 2007. Capriottia, P. Moreno, A. 2007.bCorporate citizenship and public relations: The importance and interactivity of social responsibility issues on corporate websitesPublic Relations Review Volume 33, Issue 1, March 2007, Pages 84–91

(4) Arenas,D Lozano, M & Albareda L.2009. he Role of NGOs in CSR: Mutual Perceptions Among Stakeholders Journal of Business EthicsAugust Volume 88, Issue 1, pp 175-197Date: 05 Aug 2009.

(5) McWilliams A, Donald S.Wright, P 2006. Corporate Social Responsibility: Strategic Implications.Journal of Management Studies Volume 43, Issue 1, pages 1–18, January 2006.

(6) Reinhardt, F. 1998. ‘Environmental product differentiation. California Management Review, 40, Summer, 43–73. Web of Science® Times

(7) http://irvingoil.com/

(8) www.cartoonstock.com

Citizen Science: Monitoring in the EIA Process

“Citizen science is a process by which everyday people take an active role in scientific discovery, joining forces with researchers to answer important science questions” (MASH)

Historically, science was a task that could only be carried out by a couple of advantaged people who had that background training to carry out experiments and the multiple tests it required. What is distinct about Citizen Science (CS) is that it appeals to individuals who would not have been traditionally associated with the field of research.  It is the development of new learning communities that sidestep institutions and tradition as a means of acquiring knowledge that make it possible for individuals to have an impact in the scientific field. In the ’70s activists adopted the saying ‘Science for the People’ but it has been suggested by Silvertown (2009) that “’Science by the people’ is a more inclusive aim”. The publication in 1962 of Silent Spring by Rachel Carlson brought with it a movement which brought to the attention of the people that sciences needed to become accessible to everyone. It is important to note that at the moment, CS now includes participation in many fields such as projects on climate change, invasive species, conservation biology, ecological restoration, water quality monitoring, population ecology and monitoring (Greaves, 2013; Silvertown, 2009).

Terms

Amateurs: A person who does something (such as a sport or hobby) for pleasure and not as a job.

Volunteer: A person who does work without getting paid to do it

Protocol: A system of rules that explain the correct conduct and procedures to be followed in formal situations

Video

Why is Citizen Science accomplished?

I would recommend watching the whole video, but what is most relevant to the field of CS and its ability to attract participants emerges five minutes into the video.

Three factors that lead to better performance & personal satisfaction

  • Autonomy: Desire to be self-directed; management is good for compliance but autonomy is good for engagement.
  • Mastery: The urge to get better at stuff, because it’s fun, because you get better at it and that’s satisfying.
  • Purpose: Transcendence purpose – it makes coming to work better; it’s the way to become more talented.

A question that is brought forward in this video is pertaining to the type of individuals CS attracts. It is stated by the video that technically sophisticated highly skilled people who have jobs are the ones carrying out these tasks. But why are they willing to do so? What does CS give back to individuals as an incentive for them to carry out these tasks? According to the video the answer are straight forwards and simple: “the science shows that we want to be self-directed, make the world a little bit better”.

Tools

What tools makes participation in CS possible?

According to Silvertown (2009), it is any technology that makes it possible for information to be shared. The range for such tools is wide, starting by innovations such as the telephone to more modern ideas of Social Medias. The tools he suggest vary from “Twitter, Facebook, Flickr, Google maps, iPod apps, YouTube and wiki” he goes further to state that the tools can be anything that “can be used to reach and engage with a large audience”. To this list I would also add: Smart phones, GPS and open GIS soft-wares.

Limitations

It is noted that some projects such as monitoring can become very complicated. Such projects would typically attract fewer individuals. The literature also suggest that if proper protocols and standardization are put in place then, even very complicated scientific questions can be addressed. (Bonney et al, 2009). Protocols used for citizen science should be easy to perform, explainable in a clear and straightforward manner, and engaging for volunteer participants” ( Silvertown, 2009; Bonney et al, 2009).

Monitoring in Environmental Impact Assessment Process.

A movement towards a new model of industrial performance, which integrates “transcendence purpose”, leaving behind the sole aim for profit by adding a contribution to the social environment is on the go.  The Environmental Assessment Impact process should emulate what the market has started to embrace. Including citizen science in the monitoring process would do just that: it would add a second purpose to the process, revitalize it, and improve public involvement and public concern towards such questions as to whether what happens in and the quality of what is included in an EIA report.

Recommendations

  • Make data resulting from citizen science accessible ( Increasing transparency and public motivation for involvement )
  • Integration of public participation (section) in post project implementation during the monitoring phase of the EIA process.

Links pertinent to Citizen Science

What is citizen science?

Scientific American: List of projects looking for involvement.

Citizen science: Monitoring, Education and Volunteering.

Seek free knowledge (MIT free courses)

Ongoing projects

Christmas bird count-National Audubon Society in the USA –since 1900, 63 million bird observations

The British trust for ornithology -founded in 1932

National Biodiversity network– 31 million records of over 27 000 UK species of animals and plants in majority collected by amateur naturalist

References

Bonney, R., Cooper, C. B., Dickinson, J., Kelling, S., Phillips, T., Rosenberg, K. V., & Shirk, J. (2009). Citizen science: a developing tool for expanding science knowledge and scientific literacy. BioScience, 59(11), 977-984. http://bioscience.oxfordjournals.org/content/59/11/977.full. Retrieved March 9th, 2015.

MASH(NA)Leaning is open. Toolkit Citizen Sciences. California Academy of Sciences http://alpha.projectmash.org/groups/citizen-science Retrieved March 9th, 2015.

Greaves, S (2013)Citizen Science Musings: The Rise of Citizen Science. http://citizenscientistsleague.com/2013/01/14/citizen-science-musings-the-rise-of-citizen-science/ Retrieved March 9th, 2015.

Silvertown, J. (2009). A new dawn for citizen science. Trends in ecology & evolution, 24(9), 467-471. 

The crucial need of EIA for logging projects in Québec: the woodland caribou’s conservation in danger

The woodland caribou is one of the most important species of the North America boreal forest, being a unique cultural icon in Canada but also a mean of assessing the health of Canada’s boreal ecosystem. Indeed, this species is perceived as being a “focal” species, because woodland caribou “are wide-ranging, sensitive to landscape disturbances and considered by many scientists to be an umbrella species (Lee et al, 2010).

image

Source: Rudolph et al (2012)

Unfortunately, the Species At Risk Act (SARA) classifies the different subspecies of the woodland caribou as endangered, of special concern, or threatened, as it is the case for the boreal population (Lee, 2012).  Today, as the CPAWS (2013) states, only 30% of the boreal woodland populations (17 of 57) are considered self-sustaining throughout the Canada’s boreal ecosystem.

Figure1:

caribourange

Source: CPAWS, 2006

And the observed continuous declining trends of the populations are mainly due to “large-scale disturbance to high quality caribou habitats from development projects”, as Matthew Hawco summarizes in his recent MEIA blog post. For Beauchesne et al (2014), the major human activity in the Boreal forest is forest harvesting, which causes tremendous adverse effect on the woodland caribou populations by altering their habitats and increasing the landscape’s fragmentation. Therefore, attention toward the regulation and the sustainable management of logging activities is critical in order to maintain and safeguard the viability of woodland caribou populations. This is specifically the case in Quebec, where the forest industry is largely contributing to the economic and social development of the province by creating direct jobs and forest products (Ministère des Ressources naturelles et de la Faune, 2008), while in the same time the percent of caribou habitat protected is low, compared to other Canadian’s provinces (see figure 2).

Figure 2: Percentage of caribou habitat protected by province, in Canada

caribouprotected

Source: CPAWS, 2006

As I said before, logging can have damaging effects on the woodland caribou populations, both direct and indirect. Indeed, logging reduces the amount of old growth forest, and therefore it decreases the quality and quantity of lichen, the principal source of food for caribou. Moreover, caribou are very sensitive to disturbances, and studies have shown the displacement of populations at a minimum of 13 km from logging areas (Nature Québec, 2007). Also, the logging activities increase the occurrence of predator populations such as wolves, which further threatens the viability of the woodland caribou.

Then, what could be the solution to deal with this critical situation?? EIA…!

Indeed, the Environmental Impact assessment process, which is project-driven, could assess the forestry and logging projects and activities, and it could determine the resulting environmental impacts from them, emphasizing the need of preserving the woodland caribou habitat from any disturbance.

But, as I speak, as incredible as it may seem, forest or logging activities/projects are not subjected to Quebec’s EIA process; only road infrastructures built for the purpose of logging require a mandatory EIA, which is indicated in Section II, f) of the “Réglement sur l’évaluation et l’examen des impacts sur l’environnement” (Government of Quebec, 2015).

I really think that it’s absurd, especially regarding the potential impacts and threats that can be induced for the woodland caribou populations. I highly recommend the inclusion of forest and logging activities in the list of projects requiring a mandatory EIA, which will primarily emphasize and focus on the conservation of the woodland caribou. Otherwise, its populations will continue to decrease dangerously until…

References:

Beauchesne, D., Jaeger, J., St-laurent, M-H. (2014). Thresholds in the capacity of boreal caribou to cope with cumulative disturbances : evidence from space use patterns. Biological Conservation.172. (2014). 190-199.

Canadian Parks And Wilderness Society (CPAWS) .(2013). Population critical: how are caribou faring?. First annual report on government’s efforts to conserve Canada’s declining Boreal caribou populations.

Canadian Parks and Wilderness Society (CPAWS). (2006). Uncertain Future: Woodland Caribou and Canada’s Boreal Forest: A report on government action. Ottawa, ON: Canadian Parks and Wilderness Society and Sierra Club of Canada.

Lee, P. (2012). Canada’s woodland caribou: industrial disturbances in their ranges and implications for their survival. Edmonton.

Lee, P., Hanneman, M., Gysbers, J., Cheng, R . (2010). Atlas of Key Ecological Areas Within Canada’s Intact Forest Landscapes. Edmonton, Alberta: Global Forest Watch Canada. 10th Anniversary Publication #4. 54 pages.

Ministère des Ressources naturelles et de la Faune. (2008). Sustainable Management in the Boreal

Forest: A Real Response to Environmental Challenges, Québec, Ministère des Ressources naturelles et de la Faune, Direction de l’environnement et de la protection des forêts, 51 p.

Nature Québec. (2007). Revue de littérature des connaissances sur le Caribou forestier, réalisée dans le cadre du projet « Critères et propositions d’aires protégées pour le Caribou forestier ». 24 pages.

Règlement sur l’évaluation et l’examen des impacts sur l’environnement, 2015 . Section 2, f. Retrieved from http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=3&file=/Q_2/Q2R23.htm

Rudolph,  T.  D.,  Drapeau,  P.,  St-­‐Laurent,  M-­‐H.  and Imbeau,  L.  (2012). Status of Woodland Caribou (Rangifer tarandus caribou) in the James Bay Region of Northern Quebec. Scientific report presented to the Ministère des Ressources naturelles et de la Faune du Québec and the Grand Council of the Crees (Eeyou Istchee). Montreal, QC. 77pp.

The Status Quo of Apple’s CSR

Apple Inc. is the world’s second largest information technology company in the world (by revenue), and largest as a publicly traded corporation internationally [1]. According to the Financial Post last November, Apple became the first US company to be valued at $700 billion [1]Statista reports the company maintains 437 retail location in fifteen countries, and employing almost 73,000 permanent staff [2]. As well as it is doing financially, one may wonder where its corporate social responsibility (CSR) agenda lies in relation to its immense economic growth.

It turns out, Apple has quite a comprehensive environmental campaign and CSR policy incorporated into its business model. The company prides itself on continuous improvement and transparency; in this respect, its projects and practices are publicly accessible on the net.

Apple Inc. has two separate pages affirming CSR initiatives: Environment and Supplier Responsibility. The Environment page discloses its annual carbon footprint (in metric tons) according to its facilities, product use, transportation, recycling, and production. Falling under its combatting climate change campaign, it also highlights energy efficiency endeavors, namely its strive towards 100% renewable energy facilities, and its progress thus far switching to solar, wind, and geothermal power (more info). Its Clean Water Program and LEED Platinum certifications are also documented here. Other links provided within the Environment page document toxins reduction and highlight product design improvements as part of Apple’s doing more with less waste reduction campaign. Impressive was Apple’s local recycling campaign which encourages the return of old devices to stores through gift card rewards. Investing $850 million into a solar farm project in California was not too shabby either [3].

Apple products are rated based on four categories: climate change, restricted substances, energy, and material efficiency; all market products (ex: iPhone 6 Plus) are subject to a Life Cycle Assessment and archived accordingly. The process adheres to the Electronic Product Environmental Assessment Tool format (EPEAT) [4].

The Supplier Responsibility page addresses supplier accountability, namely environmental effects, worker empowerment, labor and human rights, and health and safety. All such factors are audited. They also claim to map their supply chain for use of harmful chemicals, down to individual smelters; non-compliance with standards to any of the above require corrective action. Allegedly, the monitoring and remediation measures following annual audits take place in 30-60-90 day intervals [5].

Overall, Apple’s CSR initiatives are quite impressive. It seems that in terms of current standards of CSR they are doing everything they need to do. I am just not convinced the supplier responsibility side is any more than a marketing strategy. This is a concern, considering they outsource a lot to China where human rights abuses, pollution and safety violations are notorious. Apple only provides generic figures of number of suppliers audited. Do we really have legitimate information about where and how raw materials are sourced and the actual environmental pollution coming from its production facilities? Are internal audits at outsourced locations sufficient enough to comply with the standards Apple claims to adhere to?

References

[1] “Apple Inc market cap tops US$700B, double what it was when Tim Cook took over as CEO”. Financial Post. November 25, 2014. Retrieved November 25,2014.

[2] “Number of Apple stores worldwide 2005-2014”. Statista. RetrievedDecember 6, 2014.

[3] Reuters, Apple investing $850 million in California solar farm, retrieved from http://www.reuters.com/article/2015/02/10/us-apple-cook-idUSKBN0LE2RN20150210

[4] Apple Inc. – Environmental Responsibility. Retrieved from https://www.apple.com/ca/environment/climate-change/

[5] Apple Inc. – Supplier Responsibility. Retrieved from https://www.apple.com/ca/supplier-responsibility/pdf/Apple_Progress_Report_2015.pdf

[6] “Corporate Social Responsibility in the Consumer Electronics Industry: A Case Study of Apple Inc.” [Article] Retrieved from http://lwp.georgetown.edu/wp-content/uploads/Connor-Myers.pdf

$2.25, or $0, The Bigger Issue at Hand to the Recent B.C. – Nestle Ground Water Sale.

The recent sale of groundwater extraction rights to Nestle by the B.C Government [1] does not simply outline the gross undervaluation of an essential resource but actually goes a step further and introduces a much more complex debate: how or if we should be assigning a price tag to these natural resources.

The current price on groundwater in B.C. for large-scale uses is set at $0, so while the increase to $2.25/million litres is an improvement (¢10/TRILLION litres would be as well), it is still a ridiculous pricing when compared with other provinces.

This undervaluation of natural resources is nothing new. In fact it happens all the time, and everywhere across the globe. It is especially the case in underdeveloped nations that have few working industries but the natural goods and services their environment have, which becomes easier and cheaper for corrupt governing bodies to sell off to the extraction sector than to properly develop themselves. At least in Canada, and other developed nations, we have the resources and institutions to make these extractive processes less damaging and more accountable, i.e. the Environmental Impact Assessment process.

Aside from the under cutting of essential resources for human life, in case that wasn’t exciting enough, this sale has highlighted a broader and much more complex debate on whether we should be assigning a price for natural goods like water and how could/should it be done.

This option is problematic but is continuously backed by policy makers and international governing bodies such as the World Bank, the UN Convention on Biological Diversity, and the IUCN.[2] They see the global market as a way to regulate resources and avoid their mistreatment. Most importantly the issue lies in this simply being the a continuation of the neoliberal agenda thinking process that a market value can solve every issue known to humans.

This ideology has promoted environmental injustice in under developed nations by exporting the extraction sector to countries without any other industry on which to rely. Some corrupt officials will choose to sell off natural resources cheaply, without any protective services, instead of developing them safely for the benefit of their own constituents. This often occurs because it seems as if it is their only option in part, if not wholly, because of the neoliberal structure.

Before we start slapping price tags on our one and only planet’s gifts, we should start rethinking the structures that have led us to this point, and who are still entrenched in their seats of power, more than willing to allow the status quo to continue. If we push nature into the global market then we run the risk of simply continuing the mechanisms that have brought us to this point of expected environmental collapse.

On a final note, just to add some confusion to the matter, would putting a price on the environment be all bad? The answer is likely no. Nature is already being exploited so if we were to start assigning prices, a concept that corporations and those who are adding to the planet’s destruction can understand, it may actually influence them to implement better practices and cleaner mechanisms. In EIA, the precautionary principle to environmental development, monitoring and compliance checking is one of the core ideals, but is often the source of most of the processes downfalls. If we were to monetize nature, maybe the penalties would finally begin to prop these steps up to the forefront of EIA.

Before completely ending I would like to suggest further readings, found within the following references section into the matter as this post has barely even skimmed the surface of the entire debate, especially [3] which has an excellent write up on the debate as well as a lively commentary rebuttal by several expert professionals, and [4] which is a transcript of a lecture on this topic, also offering the recording of said lecture (be warned it is lengthy at 1 hour and 18 minutes, but absolutely worth it).

[1] Fumano, Dan. (2015, March 9th). Outrage Boils Over as B.C. Government Plans to Sell Groundwater for $2.25 per Million Litres. The Province. Retrieved from http://www.theprovince.com/news/Outrage+boils+over+government+plans+sell+groundwater+million+litres/10865416/story.html

[2] McAfee, Kathleen. (1999). Selling Nature to Save it? Biodiversity and the Rise of Green Development. Environment and Planning D: Society and Space, 17:2. 133-154.

[3] Unmüßig, Barbara. (2014, August). Monetizing Nature: Taking Precaution on a Slippery Slope. Great Transition Initiative. Retrieved from http://www.greattransition.org/publication/monetizing-nature-taking-precaution-on-a-slippery-slope

[4] Monbiot, George. (2014, July). Put a Price on Nature? We Must stop this Neoliberal Road to Ruin. The Guardian. Retrieved from http://www.theguardian.com/environment/georgemonbiot/2014/jul/24/price-nature-neoliberal-capital-road-ruin

Pipeline Busts and the Laissez-Faire Environmental Protection Provided by the EIA Process

arkansas oil spill

Photo taken in the wake of the pipeline leak in Mayflower, Arkansas, 2013

Environmental emergency crises requiring swift containment and recovery actions have become synonymous with the oil and gas industry, because of their history of spills. There are countless examples where monitoring checks were called into question, such as the the spill in Mayflower, Arkansas, or the Lac-Mégantic tragic train derailment, or  the seepage into the Yellowstone River or the diesel spill that affected Longeuil, and bigger disasters, with widespread damage to massive systems like the BP Deepwater Horizon spill or the continual damage to the Nigerian Delta. These are but a few examples out of hundreds.

oilinfographics

The amount of these calamities show they are more than simple coincidence and are indicative of a more serious issue within the industry of environmental protection during the post development stages, during operations and the dismantling of a project. This is not restricted to the oil and gas industry. In the early stages of development, the process of Environmental Impact Assessment (EIA) helps to guide a project to environmental responsibility. However it has been widely documented by EIA experts that the later stages of the process have fallen by the wayside. The rigidity of checks and standards during the early EIA stages become more relaxed as regular operations begin and responsibility falls on the proponent of the original project.[i] [ii] Recognizing this need for better industry monitoring practices, many critical studies have looked into its improvements and have suggested numerous possibilities.[iii] [iv] [v] The dilemma of the monitoring phase is the lack of commitment on the proponent’s part to responsible monitoring programs. Reactive measures prevail. This is opposite to the rest of the EIA process, which is geared towards prevention.

bpoilspill infographicThe misstep of EIA is that there is a “build it and forget about it syndrome” (Noble, 2010), which has allowed many corporations to profit in spite of disastrous events, by arguing the extent of the damage and paying less fines, as well as getting away with less than required remedial processes again and again. Tighter regulations and standards need to be adopted during the monitoring and follow-up stages in order to prevent these types of disasters from happening. Transparency within the project’s operations is also vital in maintaining an environmentally safe project. Greater involvement of citizens in the immediate area of the project can also have a beneficial relationship between corporation and community, promoting a greater corporate social responsibility and a mutual trust,[vi] though such programs still hinge on the effort of the proponent and their commitment to preventing environmental damage, and providing proper clean up if such issues do occur.[vii]

EIA as a whole needs to be refocused to the entire life-cycle of a project, not only the beginning stages, otherwise it fails its main prerogative of environmentally protective development, and mitigating serious ecological disasters.

[i] Noble, B. (2010). Introduction to Environmental Impact ASsessment: A Guide to Principles and Practice (2nd ed.). Ontario, CA: Oxford University Press. p. 160.

[ii] Weston, J. (1997). Planning and Environmental Impact Assessment in Practice (1st ed.). New York, NY: Routledge. p. 141-142.

[iii] Hunsberger, C. A., Gibson, R. B., & Wismer, S. K. (2005). Citizen Involvement in Sustainability-Centered Environmental Assessment Follow-Up. Environmental Impact Assessment, Review 25. p. 609-627.

[iv] Arts, J., Marshall, R., & Morrison-Saunders, A. (2005). International Principles for Best Practice EIA Follow-Up. Impact Assessment and Project Appraisal, 23:3. p. 175-181.

[v] Marshall, R. (2012). Environmental Impact Assessment Follow-Up and its Benefits for Industry. Impact Assessment and Project Appraisal, 23:3. p. 191-196.

[vi]  Lawe, L. B., Wells, J. & Mikisew Cree First Nations Industry Relations Corporation (2005). Cumulative Effects Assessment and EIA Follow-Up: A Proposed Community-Based Monitoring Program in the Oil Sands Region, North Eastern Alberta. Impact Assessment and Project Appraisal, 23:3. p. 205-209.

[vii] Birk, J. & Noble, B. (2011). Comfort Monitoring? Environmental Assessment Follow-Up Under Community-Industry Negotiated Environmental Agreements. Environmental Impact Assessment, Review 31. p. 17-24.

Court Ruling Expands Duty to Consult to Law Making Process?


(9)

Late December 2014 the Federal Court ruled that the Canadian Government breached its duty to consult obligations to aboriginal groups when it drastically changed its federal environmental policies in 2012.(1)

The complaint was initiated by the Mikisew Cree of Alberta who argued that they were left out of the legislative development process of the 2 Omnibus Bills in 2012. The bills focused on budget cuts, including cuts in environmental protection, which had the potential to run contrary to First Nations treaty rights and constitutional guarantees protecting their lifestyle and livelihood. This triggered a duty to consult by Canada, the Mikisew claimed, a duty that Canada did not respect.(1)

The duty to consult had not been extended to the law making process before. Hence, I was intrigued when I first heard about it and wanted to see how the case would develop.

Back to the Mikisew, they were not merely speculating on the implications of these legislative proposals passing without adequate scrutiny. In the name of economic prosperity Bills C-38 and C-45 drastically skinned and gutted the protective substance of environmental legislation people like the Cree relied on as buffer from western development projects. These included the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, and the Canadian Environmental Impact Assessment Act. For the Mikisew, legislative alterations implied reduced protection of freshwater, impacting Treaty 8 territory, and in turn, Mikisew livelihood. Their dependence on generations of traditional fishing, trapping, and travel was now in jeopardy.(2)(3)

(8)

It is not the first time groups have turned to the Courts to reaffirm civil rights. The government’s duty to consult obligation is something that was established in the Haida Nation v. BC Minister of Forests case back in 2004, when the Supreme Court extended aboriginal rights considerations to contemplations by the government that have the potential to affect native or treaty rights (4).  Clearly, contemplations with wide sweeping results as those in question here ought to have triggered such a duty.

The Federal Court’s decision on this matter is kind of a big deal. It officially declared to have shared the opinion that the Crown ought to have consulted with the Mikisew when the bills were introduced into Parliament due to the sweeping consequences argued. This reaffirms the potential of the mandated policies to have negative consequences and paves the way for further scrutiny on future legislation approval in favour of aboriginals and the environment.(1)(3)(5)

It is unfortunate though, that the Court did not go further. The Court drew a distinction between legislation development and legislation approval and emphasized its stance not to meddle with legislative matters as far as bills are still being drafted.(3)(5)

In my past experience studying judicial politics and constitutional legal matters this reluctance makes perfect sense. Courts are often cautious about tampering with Parliamentary jurisdiction. Judicial remedies on questions of rights breaching government conduct that some claim valid judicial mandates(6) and proper dialogue, are accused by others of judicial supremacy.(7) Issues of policy get especially controversial.(7)

This implies that the core of the controversy in passing an omnibus bill – namely the decision making process on its content – remains backdoor politics; aboriginal groups only get access to a legislation document (bill) already produced, with no chance to really influence what goes in the design that potentially impacts their lives.

At least though, as JFK law corporation also pointed out, it was a progress nevertheless: “This is the first time a court has squarely addressed the issue of whether the duty to consult attaches to any part of the law making process”…and concluded that it is in fact triggered once a completed bill is introduced.(5)

References

  1. West Coast Environmental Law. (2014, December 22). Federal Court: Canada Acted Unconstitutionally in Ramming Through 2012 Environmental Law Changes. Retrieved February 1st 2015, from http://wcel.org/media-centre/media-releases/federal-court-canada-acted-unconstitutionally-ramming-through-2012-envir
  2. Shared Value Solutions. (2014, December 21). 5 Reasons Why the Mikisew Legal Victory a Victory for Canada’s Environment. Retrieved February 4th, 2015, from http://info.sharedvaluesolutions.com/blog/5-reasons-the-mikisew-legal-victory-a-victory-for-canadas-environment
  3. Federal Court of Canada. (2014, December 19). Mikisew First Nations v. Canada, Judgement and Reasons. Retrieved February 1st, 2015, from http://wcel.org/sites/default/files/T-43-13%20RJJ%20RHD%20%28%20Dec%2019%202014%29.pdf
  4. Maria Morellato. Research Paper for the National Centre for First Nations Governance. (2008, February). The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights. Retrieved February 8th, 2015, from http://fngovernance.org/resources_docs/Crown_Duty_to_Consult__Accommodate.pdf
  5. JFK Law Corporation. (2015, January 18). Legislative Changes to Federal Environmental Laws – Duty to Consult Triggered. Retrieved February 8th, 2015, from http://www.jfklaw.ca/legislative-changes-to-federal-environmental-laws-duty-to-consult-triggered/
  6. After all, Section 52 of the Constitution and more precisely S. 24(1) of the Charter affirm judicial authority by claiming, interested parties may turn to a court of competent jurisdiction to have any matter of law reviewed and grant discretion for remedies rendered.
  7. James Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent (Vancouver, University of British Columbia Press, 2005
  8. Retrieved February 10th, 2014, from  https://www.google.ca/search?q=duty+to+consult&biw=1280&bih=923&source=lnms&tbm=isch&sa=X&ei=6NnaVJXtDYGgyATY2YGgDg&sqi=2&ved=0CAcQ_AUoAg#imgdii=_&imgrc=3P2-HmGJwGLCCM%253A%3BfBjIrDvA5iloXM%3Bhttp%253A%252F%252Fwww.troymedia.com%252Fwp-content%252Fuploads%252F2014%252F11%252Fcircle_gavel_head.png%3Bhttp%253A%252F%252Fwww.troymedia.com%252F2014%252F11%252F16%252Fcommon-misconceptions-about-the-duty-to-consult%252F%3B280%3B207   
  9. Retrieved February 10th, 2014, from https://www.google.ca/search?q=athabasca+river&biw=1280&bih=923&source=lnms&tbm=isch&sa=X&ei=zt3aVKiFDI78yQSH3YK4BQ&sqi=2&ved=0CAcQ_AUoAg#imgdii=_&imgrc=bp5m4hIBjP2XgM%253A%3BbyExlTcdURE5uM%3Bhttp%253A%252F%252Fwww.ramp-alberta.org%252F_system%252FThumbnailCache%252FUserFilesImageAthabasca~downstream~of~Muskegjpg.700.-1.2091386766.jpg%3Bhttp%253A%252F%252Fwww.ramp-alberta.org%252Friver%252Fgallery.aspx%3B700%3B525