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Follow us on TwitterLast November Laura Bowman wrote a blog post about Alberta case law which might shed some light on how “interested party” status under the new federal Canadian Environmental Assessment Act, 2012 (CEAA 2012) might be interpreted, particularly as it relates to who is deemed to be “directly affected”. To have a right to participate in hearings under CEAA, parties must establish they are an “interested party”, and to be an interested party, the party must either be “directly affected by the carrying out of the designated project” or have “relevant information or expertise”.
Subsequent to Laura’s post, we learned of a decision of a Federal Review Panel (the Panel) constituted under CEAA which explored this question.
In the public hearing for the New Prosperity Gold-Copper Mine project, the Panel rejected a narrow definition of “directly affected,” and granted interested party status to all 31 of the parties that applied for status. The panel adopted a “public law” interpretation, taking a more flexible approach, stating that “an interest sufficient to support standing is interpreted more broadly and must be a “genuine interest”, a “real stake” or “substantial connection.”
This is welcome news for the environmental community, and a blow to the government’s intention, which was in no uncertain terms to narrow who could participate. Natural Resources Minister Oliver, in January 2012, commented that
Unfortunately, there are environmental and other radical groups that would seek to block [opportunities] to diversify our trade. Their goal is to stop any major project no matter what the cost to Canadian families in lost jobs and economic growth.
No forestry. No mining. No oil. No gas. No more hydro‑electric dams.
These groups threatened to hijack our regulatory system to achieve their radical ideological agenda. They seek to exploit any loophole they can find, stacking public hearings with bodies to ensure that delays kill good projects. [emphasis added]
The Prosperity panel apparently disagreed with Minister Oliver.
When assessing whether a person was an “interested party”, the Panel considered the effect the project had on the interests identified by the applicant and the contribution of information or expertise that the applicant offered to the review record. The specific types of factors the Panel considered included:
- Whether the applicant resides, works or spends substantial lengths of time in the Project area;
- Whether the applicant’s immediate interests may be affected by the Project, including the applicant’s social, safety, health, environmental, community, legal or economic interests;
- Whether the applicant can demonstrate a genuine interest in the Project or Project area that is distinct from the general public interest;
- Whether the applicant has relevant information or specific expertise that is relevant to the Project and would assist in informing the Panel;
- How the applicant intends to participate; and
- The extent to which the interests of applicants may overlap and those applicants may reasonably collaborate in their participation so the Review proceeds efficiently.
The groups that received participant status included local, provincial, national and international NGOs, local residents and business owners.
This liberal approach taken by the Panel bodes well for those wishing to participate in future panel hearings. However, there are still barriers.
While Andrew Gage, writing on the West Coast Environmental Law blog, welcomed the decision, in his post, he cited Jay Nelson’s views on a number of CEAA 2012 changes that are more problematic. These include fewer panel reviews being appointed, inadequate funding for EAs, much stricter time limits under CEAA 2012 for completing EAs, and a narrower definition of “environmental effects.”
“Environmental Effects”
The definition has been significantly narrowed in the new Act, to reflect the federal government’s position that it has a limited role in environmental protection in Canada. Largely, it has to be about fish or migratory birds.
Time Limits
CEAA 2012 requires environmental assessments to be completed in set time periods: one year for most, 18 months for those done by the National Energy Board, and 24 months for a panel review.
As noted in Gage’s blog, Nelson explains that these strict time limits reduce the incentive on proponents to provide complete information for the assessment. This is because these deadlines do not include time that a proponent takes to provide information, conduct studies or answer questions. Effectively the “clock is stopped” while they are gathering and preparing. This means that, “when the proponents receive an information request, there’s an incentive to answer that request quickly, rather than to answer it completely or comprehensively,” so that the next step of the process can begin and the information is placed in the hands of the government. Nelson explains, “in the original Prosperity hearings… there were four rounds of information requests, fairly comprehensive, that sent the proponent back for more information. It’s hard to imagine that this time around it would be that rigorous, because each one of those takes weeks off of the time that the panel has to do its job.”
Fewer Panel Reviews
Fewer review panels means less opportunity to receive impartial input from appointees who are independent experts rather than government employees.
It’s Nelson view that a pivotal aspect of the review was having “independent people come out to remote First Nations communities … and hear directly from the community, from the elders, from the young people, about the impact and concerns of the project.” He also explained that
It brings a life to the process, and a reality to the process, which I think is not possible to convey through written submissions or write in comments at an open house… And the end result is it’s just a much more rigorous process than these in-house reviews, because you have all this public participation and the opportunity to really question the proponent, government regulators and others in real time and get real answers. So it ends up being a much more thorough and I think productive process.
Funding
Gage notes Nelson’s view that the public, and First Nations, are able to access less funding to participate in environmental assessments than in previous years. While this began before the CEAA 2012, Nelson feels it will continue and explained
The participant funding program has been slashed in recent years… That has serious impacts on the ability of the public and First Nations to participate in environmental assessment, because, as you know if you’ve been involved in these processes, they’re complex, they’re highly technical, very demanding, and the reality is that to meaningfully participate, you need resources to do it. And the government agencies need resources as well, and we’re all aware of the funding cuts that they’ve experienced.
What results is that groups granted standing may not have the funding to actually participate adequately or even at all. This effectively replaces one barrier with another, making the broad interpretation of “directly affected” a small victory. Further, cuts to funding for government agencies responsible for protecting the environment will likely result in less thorough reviews of environmental assessment reports and less detailed input.
In sum, while this recent decision is welcome by the environmental community, there are other constraints in place, at least for now, which will limit effective participation and decision making.
