HillNotes

On 26 April, as the Enbridge Northern Gateway Project Joint Review Panel sat down to its 40^th day of public hearings, Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, was introduced in the House of Commons. Bill C-38 contains significant changes to a number of Canada’s environmental laws, including the Canadian Environmental Assessment Act and the National Energy Board Act, which govern the assessment of natural resource development projects such as the Northern Gateway Project.

Two of the stated reasons for the changes are to reduce regulatory delays and confine the sometimes lengthy hearings, like some that have taken place during recent high-profile project reviews. However, while both critics and proponents of the amendments largely agree that changes to the environmental assessment process were likely due, their agreement appears to end there.

As Bill C-38 makes its way through the legislative process, one issue that has garnered attention is the possible effects of the proposed amendments on public participation in the environmental assessment process.

Public participation in environmental decision making

Public participation in environmental decision-making is a major area of study  (188 kB, 30 pages), and many efforts have been made to evaluate  (289 kB, 66 pages) the effectiveness of these programs. As noted by the federal Commissioner of the Environment, public consultation has always been a bedrock of environmental policy in Canada. Some form of public participation is provided for in the environmental assessment statutes of all provinces and territories across Canada, and it is enshrined in a number of international agreements, including the Aarhus Convention and the North American Agreement on Environmental Cooperation.

The debate surrounding Bill C-38, however, is not over whether there should be public participation in environmental assessments: public participation is currently a part of the Canadian Environmental Assessment Act and will remain a part of federal environmental assessments under Bill C-38. The debate may be more accurately characterized as a disagreement over who should be permitted to participate, which projects those participants should have input into, and what form that participation should take.

Public participation under the Canadian Environmental Assessment Act

Different types and degrees of public participation are required (ranging from simply providing notice to the public on a website, to holding formal public hearings on a project), depending on the type of environmental assessment being conducted (screenings, comprehensive studies, review panels, etc.). A Ministerial Guideline  (54 kB, 10 pages) and a Public Participation Guide  (1.4 MB, 227 pages) exist to provide consistent criteria on these matters, with more robust participation afforded where the anticipated environmental effects of the project or public concern are greater. In nearly all instances where the current Act provides for public participation, however, participation is extended to the public at large.

Public participation under Bill C-38

While the list of projects that will be subject to the new federal environmental assessment regime will only be revealed in yet-to-be-developed regulations, it is expected that many of the projects currently subject to screenings will no longer be required to undergo the federal environmental assessment process. Nevertheless, it should be noted that where these projects are subject to a provincial or territorial environmental assessment, public participation may still be afforded within the limits of that jurisdiction’s legislation (which in some cases allows for broad public participation, but in others may limit the timing or manner of participation, or eligible participants).

Public participation for projects currently subject to comprehensive studies is not likely to change significantly with the passage of Bill C-38. The public will still be permitted to submit written comments to the responsible authority, and such comments will have to be taken into consideration when a decision is made.

However, Bill C-38 will significantly change the opportunities for public participation for projects that must undergo panel reviews, or for pipeline projects that require a certificate from the National Energy Board. For panel reviews, while the public at large will still be permitted to submit written comments regarding a project, only “interested parties” will be permitted to participate at hearings. This will, essentially, restrict participation at hearings to those types of parties who currently participate as intervenors, while eliminating the right that currently exists for members of the public (broadly speaking) to make 10-minute oral statements to voice their concerns. Similarly, for pipelines, only “interested parties” will be given an opportunity to participate in the assessment.

Who are “interested parties”?

“Interested party” is defined in the proposed amendments as a person who, in the opinion of the responsible authority or the review panel:

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

While administrative guidelines may be developed in the future to provide additional guidance on the meaning of this provision, if there is disagreement between the relevant government agencies and those who perceive themselves to be interested parties, a court may ultimately be tasked with interpreting the language. The phrase “directly affected” is used in many pieces of legislation, and as a result, existing court decisions may be looked to in order to understand who is “directly affected” by a project.

The Alberta Court of Appeal has held, for example, that the phrase “directly affected” indicates a legislative intent to circumscribe the right to participate at hearings or appeals, and that this right is therefore confined to those having a personal or individual interest in the matter that is more than the general interest of the whole community. Persons who have a genuine interest are not sufficiently affected to fall within this definition, nor are those who merely use the area adjacent to a proposed project for hunting and recreation, or who assert that an activity may be disrespectful to their way of life. Rather, it is necessary to demonstrate that there is a direct or immediate chain of causality between the project and the effect upon the person who claims to be directly affected. The case law suggests that individuals who own or occupy land in the vicinity of a proposed project and those whose economic rights could be affected by a project, all likely fall within the definition of persons directly affected by the project.

Other jurisdictions and Canadian provinces have also struggled with the issue of public participation in environmental assessment regimes. While some argue that limiting participation at hearings to those “directly affected” by a project (as well as to those who can provide Aboriginal traditional knowledge or scientific expertise) will help to reduce regulatory costs and delays, others  (1.3 MB, 12 pages) question whether agencies or boards tasked with making decisions “in the public interest” can legitimately ascertain what the public interest is without hearing from a broad spectrum of the public.