Note: This post was prepared jointly with my colleague, Professor John Sinclair at the University of Manitoba.
Meaningful public participation has been a goal of environmental assessment (EA) processes for a long time. The implementation of this goal has, however been mixed, and the federal environmental assessment process is no exception. While jurisdictions have struggled to reform their EA processes over time to improve public participation, the role of the public in EA has evolved significantly. As the focus of EA has shifted from a technical exercise of predicting biophysical impacts of proposed undertakings to a consideration of a full range of social, economic, health and cultural impacts of proposals, the need for effective and meaningful public engagement has become more and more pressing. The Multi-Interest Advisory Committee (MIAC), established by the Canadian Environmental Assessment Agency for input into the federal law reform effort, developed the following principles for meaningful participation:
- Participation begins early in the decision process, is meaningful, and builds public confidence;
- Public input can influence or change the outcome/project being considered;
- Opportunities for public comment are open to all interested parties, are varied, flexible, include openings for face to face discussions and involve the public in the actual design of an appropriate participation program;
- Formal processes of engagement, such as hearings and various fora of dispute resolution, are specified and principles of natural justice and procedural fairness are considered in formal processes;
- Adequate and appropriate notice is provided;
- Ready access to the information and the decisions at hand is available and in local languages spoken, read and understood in the area;
- Participant assistance and capacity building is available for informed dialogue and discussion;
- Participation programs are learning oriented to ensure outcomes for all participants, governments, and proponents;
- Programs recognize the knowledge and acumen of the public; and
- Processes need to be fair and open in order for the public to be able to accept a decision.
In this post, we consider the changes to the federal assessment process reflected in Bill C-69 through the lens of meaningful public participation. We do so in three steps. We first look at what the Expert Panel on federal EA reform recommended with respect to public participation. We then consider the changes reflected in Bill C-69. Finally, we conclude with our assessment of the effectiveness of the proposed changes, and recommend adjustments to realize the goal of meaningful public participation.
What the Expert Panel Said About Public Participation
The Expert Panel concluded that significant improvements are needed to achieve the goal of meaningful public participation in EA:
Current practices in Canada situate public participation in federal EA in the “Inform” and “Consult” categories. Current engagement practices, while varied, lean toward information dissemination rather than mutual learning and inclusive dialogue, and information gathering rather than clear integration of this information into project design or approval requirements.
The Expert Panel offered three key recommendations on how to improve public participation in the assessment process:
- IA legislation require that IA provide early and ongoing public participation opportunities that are open to all. Results of public participation should have the potential to impact decisions.
- The participant funding program for IA be commensurate with the costs associated with meaningful participation in all phases of IA, including monitoring and follow-up.
- IA legislation require that IA information be easily accessible, and permanently and publicly available.
What Bill C-69 says about Public Participation
Much of the attention has been on the fact that Bill C-69 removes the “standing clause” in CEAA 2012, thereby restoring the right of any interested member of the public to participate in the assessment process. Of course, there are many other provisions in the Bill dealing with public participation, from the purpose section to notice requirements, opportunities for public input in the various phases of the process, access to information and participant funding.
The purpose section dealing with public participation is similar to CEAA 2012. Section 6 1(h) proposes a purpose of the Act will be to ensure “opportunities are provided for meaningful public participation during an impact assessment, a regional assessment or a strategic assessment”.
The process for project assessments can be broken into its key phases, the planning phase, the Agency assessment phase, and the Panel Review phase, the decision-making phase, and the follow-up phase. The planning phase will be carried out for all projects assessed. The Agency process and Panel review process are alternative options for the actual assessment phase of the process. This is then followed by the decision making and follow-up phases. Each phase (except for follow-up) includes legislative timelines (180 days for the planning phase, 300 days for the Agency assessment process, and 600 days for the Panel Review), notice requirements and a legislative opportunity for public participation. There is limited detail in the Bill on how to ensure that the public participation will be meaningful.
There is no explicit provision for mediation, alternate dispute resolution or other forms of public engagement. Section 54, however, does allow panels some flexibility in the conduct of hearings. Overall, beyond provisions for notice, access to information, and funding, there is little direction on how meaningful public participation is to be achieved.
There is no legislative requirement for public participation in follow-up and monitoring. Follow-up is, however mentioned in the funding provisions. Under section 75(1), funding can be provided for the implementation of follow-up programs.
Law Reform Recommendations
The main changes to public participation under Bill C-69 are the elimination of the “standing” test and the opportunity for public participation in the new planning phase of the EA process. Of course, the challenge of ensuring meaningful public participation in the federal assessment process predate the introduction of CEAA 2012, and are therefore not addressed by undoing the constraints imposed in that Act. We have identified the following additional changes that we feel are needed to provide a proper legislative framework for meaningful public participation.
Section 2 of the proposed IA should be amended to include the following definition of meaningful public participation. The term “meaningful public participation” should then be used throughout the Act in place of “public participation”.
Meaningful public participation establishes the needs, values, and concerns of the public, provides a genuine opportunity to influence decisions, and uses multiple and customized methods of engagement that promote and sustain fair and open two-way dialogue.
Many of the critical decision about the assessment will be made during the planning phase of the assessment, including whether a full assessment will be required, what the scope of the assessment will be, what information will be gathered to inform the assessment, and what process option will be selected for the assessment.
Meaningful public engagement will be critical to the credibility and effectiveness of this phase, and for the assessment as a whole. To ensure an appropriate legislative framework for meaningful public participation in the planning phase, we recommend the following:
- A legislative requirement to initiate the planning phase by establishing a multi interest planning committee (MIPC), to include representatives of all interested jurisdictions, affected indigenous communities, local communities, and organizations that represent key stakeholders and public interests. The selection and precise role of non-government members, including the proponent and members of the public, should be set out in regulations. We feel this is the best way to effectively and efficiently engage the range of interests in the early planning phase. It will coordinate input in this phase, ensure there are meaningful opportunities for input (not rely on default mechanisms of notice and 30 day opportunity to comment) and will enhance the steps of the process that follow.
- Replace the 180 day timeline with a project specific timeline to be set based on advice from the MIPC. The 180 days can serve as the default, but the process will apply to a wide range of projects, and it is unthinkable that the timeline will be appropriate for the range of projects it will apply to. When timelines are inappropriate, public participation suffers greatly.
- The MIPC should have responsibility to advise the Agency on all aspects of the planning phase, including scope, terms of reference for the impact statement, process options, and the design of appropriate public engagement program.
With respect to the Agency led assessment process, our main concern is with the 300 day time limit. This requirement may be quite adequate for some assessments, but will not be adequate for more complex project assessments, and will in those situations serve to undermine meaningful public participation. The solution we offer is to set 300 days as a default, but to allow the appropriate timeline to be set by the Agency, on advice from the MIPC, at the conclusion of the planning phase of the assessment. The remaining issues on how to ensure meaningful public participation in an Agency lead assessment should be addressed through regulations (see Recommendation 6 below).
With respect to the panel review process, we similarly suggest that the 600 day timeline be changed from a legislative timeline to a default, and to allow the Minister to set a longer timeline based on advice from the MIPC. We also suggest that the discretion to suspend time while the proponent responds to information requests should rest with the panel, not with the Minister. Alternatively, we suggest returning to the approach in CEAA 2012 of suspending time automatically, perhaps with the ability to pass a regulation to clarify how the suspension of time is to work. The remaining issues on how to ensure meaningful public participation in panel reviews should be addressed through regulations.
With respect to follow-up, the Act should offer a legislative right to meaningful public participation. It should also clarify that all results of follow-up (not just summaries), including monitoring data and reported information, is public information, and that all data will be made publicly available promptly and permanently. Similarly, all information used during the course of an assessment must be made publicly available promptly and permanently. This is critical to ensure transparency and accountability for the implementation of the results of the assessments, for adaptive management, and for the efficiency and effectiveness of future assessments.
No amount of voluntary guidance on its own is going to ensure that meaningful participation is achieved. The CEA Agency in fact has some very good guidance material already available on meaningful participation, but it is simply routinely not followed. We therefore recommend that clear direction on meaningful public participation be given in regulations. To facilitate this, the regulation making power in section 112 should be amended to provide for regulations dealing with the following subject matters:
- Details on how to ensure meaningful public participation in each of the key phases of the impact assessment process, including the planning phase, the Agency assessment phase, the panel review phase, the decision-making phase, and the follow up phase.
- The key purposes of participation in the early planning phase (e.g., participation in the development of the final project plan to be submitted, the development of guidelines and the establishment of a public participation plan).
- Meaningful public participation in each of the key phases (planning, assessment, decision making and follow-up) of regional and strategic assessments.
- Meaningful public participation that is culturally appropriate and appropriate to the circumstances, such as the right to cross examine expert witnesses, while allowing for information processes to learn about the values, priorities, and aspirations of affected communities.
- The design and implementation of the participant funding program.
- The manner in which information relevant to the assessment, and all follow-up data and information will be made permanently publicly accessible.
These suggested reforms apply to all tiers of IA, including strategic, regional and project IA, and to all associated stages from discussion of the need for and alternatives to the undertaking, through to the monitoring, follow-up and decommissioning stages. Meaningful participation needs to be operational at all tiers of assessment and in the ongoing review of the IA law, regulations and policies. A key element of effective implementation and continuous improvement will be a regular review of the new legislative provisions and the establishment of effective mechanisms for encouraging public involvement in this review.
Professor, Schulich School of Law
 Building Common Ground, at 37.
 Building Common Ground, at 4 and 39.
 Building Common Ground, at 40.
 Building Common Ground, at 4 and 42.