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Who is silenced under Canada’s new environmental assessment act?

April 26, 2012

Earlier this week we warned that there were signals that amendments to the Canadian Environmental Assessment Act (CEAA) might silence not just environmentalists, also but hunters, fishers, land owners, and others by restricting public participation to those who are “directly affected.” 

We found out more when the 2012 Budget Implementation Bill was introduced to the House of Commons on April 26th. Rolled up into the Bill is an entirely new Canadian Environmental Assessment Act 2012, drafted behind closed doors and without any public consultation.  In contrast, the original CEAA was drafted after robust consultations (in which West Coast Environmental Law is proud to have played a significant role).

The Budget Implementation Bill still needs to be debated in the House of Commons; however, our initial analysis of Bill C-38 suggests that there is cause for concern:  If this new CEAA becomes law, then for some types of environmental assessments, the public will still have a right to participate – but for others (notably pipeline projects) – the government may not want to hear from you unless the pipeline goes through your property or you have a degree (or other special qualifications or information). 

Some members of the public are more equal than others

Early in the Act, before even assuring us that a purpose of the Act is to ensure that “opportunities are provided for meaningful public participation,” the new CEAA creates the concept of an “interested party.”  An interested party is someone who, in the opinion of the body conducting the assessment:

  • is directly affected by the carrying out of the designated project; or
  • has relevant information or expertise.

This is a bit broader than the test that Natural Resources Minister, Joe Oliver, suggested last week.  He spoke only about the “directly affected” part of the test.  As we pointed out “directly affected” can be an extraordinarily narrow test that has sometimes been used to exclude a great many affected and interested individuals from government processes. 

With many environmental assessments considering geographically remote projects, requiring that the public be “directly affected” is a big problem. … [T]he term is clearly a narrow one (narrower even than simply “affected”).  It continues to exclude the public in many cases.  Recently the Alberta Energy Resources Conservation Board held that local landowners were not “directly affected” by a nearby (toxic) gas well; fortunately the Alberta Court of Appeal disagreed, but members of the public should not have to go to court to prove that they are “directly affected.” …

These types of restrictions put the onus (which necessarily means more time and money) on members of the public to convince the tribunal that they are “affected” enough, and in doing so it silences them.

But “interested party”, under the new CEAA, also includes individuals with “relevant information or expertise.”

This is a bit odd, since an expert may have a degree, expertise and/or information, but no personal interest in whether a project goes ahead (except to the extent that someone is paying his or her bills), whereas someone who lives down the street from a project but doesn’t have “official” expertise may have great interest, but still not be able to satisfy the directly affected test.  (Given their constitutional status, First Nations will often be able to satisfy the “interested party” test, although individual members of a Nation may or may not.)  

Meanwhile industry will generally be “directly affected” as a project proponent, and will also be able to afford to hire experts with fancy letters after their names, who will also qualify as “interested parties” – so they’re well covered. 

In some cases people without formal training may be able to convince the government that they have knowledge about the area that is relevant, or that they are affected “enough” to have an interest.  We even hope that most bodies holding environmental assessments will take a broad view as to what “directly affected” means.  However, if the narrowest interpretation of the new test were used, Minister Oliver may be wrong to confidently imply that “ordinary citizens” who “live or work near the project” will generally be able to meet this test

Some environmental assessments are more equal than others

However, the test only applies to two types of environmental assessments at present. 

  • It applies to assessments of pipelines being considered by the National Energy Board (NEB) (such as the Enbridge hearings); and
  • It applies to assessments which have been referred to a review panel (typically large projects of public importance). 

And it applies somewhat differently to each process. 

For environmental assessments conducted by the Canadian Environmental Assessment Agency or the Canadian Nuclear Safety Commission, as well as assessments conducted by the NEB that involve energy projects other than pipelines, the Act does not set up this separate class of “interested parties” and public participation is public participation.  So that’s a relief. 

National Energy Board assessments

Environmental assessments being held by the National Energy Board concern pipeline projects –and setting up a separate, more exclusive process for the oil and gas industry suggests that the government is not overly concerned by allegations that it is aligning itself too closely with that industry

For most environmental assessments, the new CEAA requires agencies to “ensure that the public is provided with an opportunity to participate in the environmental assessment of a designated project.”  For assessments conducted by the National Energy Board, only “any interested party” has such an opportunity.  Not only that, but, unlike Review Panels, the National Energy Board need not even consider written comments received from those lesser mortals who were unable to prove that they were “interested”, a.k.a., the public:

19. (1) The environmental assessment of a designated project must take into account the following factors: …

(c) comments from the public — or, with respect to a designated project … [under] the National Energy Board Act, any interested party — that are received in accordance with this Act; [Emphasis added]

It doesn’t take Minister Oliver’s comments about not letting Enbridge’s process get “hijacked” by concerned members of the public to make one think that this might have something to do with Enbridge, and the perception that such outpourings of public concern are somehow a threat to the oil and gas industry.   

But let’s think for a moment about what the narrowest interpretation of "interested party" - not even considering comments by members of the public who live in the neighbourhoods affected by these large pipelines and oil and gas infrastructure - would do to the perceived legitimacy of our environmental assessment process.   

Review Panels

Large and controversial projects can be referred to a review panel.  Review panels are arms-length from the government, and have more extensive hearings and process.  Even though public concern about a project may be a reason that the project is referred to a review panel, the role of the general public in this process will now be somewhat limited.

A review panel must, in accordance with its terms of reference … hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment;

Fortunately (and unlike the NEB reviews), a review panel is still required to receive and consider “comments” from the general public – presumably written letters or submissions – and to summarize the comments in their final report.  So this still gives nearby residents and other interested members of the public some role – but not an ability to actually speak to the panel, ask questions of the experts hired to justify the project or to provide oral evidence as to their perspectives or the level of public concern. 

Quality of assessments

For review panel and NEB assessments, the new CEAA seems to buy into a false distinction between those who have relevant information or are affected enough to be worth listening to, and those who do not and who can be limited to letter writing, or shut out altogether.  

But the reality is that the environment doesn’t fit in neat boxes.  Air and water flow, and fish and wildlife move.  The fish, wildlife and ecosystems that are very directly affected by development don’t have a voice to speak for them, if concerned citizens are not allowed to take on that role.  

As well, it can be impossible to know who will be impacted by the risks associated with a development, and how.  Was a person living downwind from an industrial factory “directly affected” if years later she contracts lung cancer?  

Finally, it is easy to undervalue and discount the local knowledge, experiences and general public values that members of the public may want to bring to the table, but study after study shows that these voices result in better environmental assessments, and more public acceptance of the results.  A 2008 study by the U.S. National Research Council found that:

Substantial evidence indicate(s) that public participation is more likely to improve than to undermine the quality of decisions… Although scientists are usually in the best position to analyze the effects of environmental processes and actions, good analysis often requires information about local conditions, which is most likely to come from residents.  Moreover, public values and concerns are important to frame the scientific questions asked, to ensure that the analyses address all of the issues relevant to those affected.

It also suggests that public participation increases the legitimacy of agency decisions and builds citizens' knowledge of the scientific aspects of environmental issues assisting the effectiveness and efficiency of implementation.

Industry will always be able to pay for “experts”, who will be able to qualify as an “interested party” by virtue of their training and expert studies.  Local citizens and members of the public should be allowed to rely upon their values and concerns to challenge the experts and ask hard questions.  Unfortunately, at least in the NEB and review panel hearings, the new CEAA doesn’t value this type of input. 

By Andrew Gage, Staff Lawyer