What is Necessary to Ensure Natural Justice in EIA Decision-making? Angus Morrison-Saunders Senior Lecturer in Environmental Assessment School of Environmental Science Murdoch University Perth, Western Australia a.morrison-saunders@murdoch.edu.au Gerard Early First Assistant Secretary Approvals and Wildlife Division Department of the Environment and Water Resources Canberra, ACT, Australia Gerard.Early@environment.gov.au Presented at: IAIA07 Growth, Conservation and Responsibility: Promoting Good Governance and Corporate Stewardship through Impact Assessment – Seoul, Korea

Outline Background Research aims/questions International examples What is natural justice? The issue Steps in a generic EIA process Research aims/questions International examples Conclusions Acknowledgements: This research was funded by the Department of the Environment and Water Resources, Canberra. The input of the EIA practitioners that contributed to the research is greatly appreciated.

1. Background What is natural justice*? decisions by public officials should be made in an unbiased manner people should be given an opportunity to participate in decisions that affect them *also known as ‘procedural fairness’

The issue (i) [recent EIA decision in Australia – rejection of wind farm proposal by Environment Minister]

The issue (ii)

Steps in a generic EIA process Screening Scoping Environmental Impact Statement (EIS) Public Review Evaluation Approval decision Project implementation & follow-up New Proposal need for EIA identify significant issues predict impacts/propose mitigation any person may comment report by EIA agency or Panel government minister (e.g. for environment) proponent announces new action proponent manages and reports

2. Research aims/questions Prior to the final approval decision, what should be the status of information that has been generated outside the publicly available assessment process? – Are decision-makers obliged to share information with stakeholders? – What are the implications for timeliness, efficiency and certainty of process?

In other words... Screening Scoping Environmental Impact Statement (EIS) Public Review Evaluation Approval decision Project implementation & follow-up New Proposal How is ‘new’ information at the Evaluation stage treated with respect to natural justice?

Study methodology survey of international EIA practitioners 45 practitioners, 23 EIA jurisdictions, 17 countries examination of legislation, EIA guidance, case law etc wherever possible

3. International examples Review panels Canada, New Zealand Assessment report/draft decision Australia, Netherlands, South Africa, UK Approval decision Australia, Canada, NZ, SA, UK, USA

Panel advice to decision-maker Public hearings by Panel Review Panel (i) Public Review Panel advice to decision-maker Approval decision Public hearings by Panel

Review Panel (ii) No ‘new’ information can enter the process Canada: all information presented to Panel is public New Zealand: Panel shares all information with proponent & people who made a submission on EIS and wished to be heard by Panel Advice of Panel to decision-maker is public new information available to Panel after hearings is either ignored or shared with participants

Assessment Report/Draft Decision presented to decision-maker Assessment Report/Draft Decision (i) [generic EIA approach] Public Review Assessment Report/Draft Decision presented to decision-maker Approval decision

Assessment Report/Draft Decision (ii) Assessment Report may only address issues raised in EIA process to date i.e. no new issues Netherlands: draft decision subject to public review UK: [case law rulings] requirement to consider public submissions mitigations required in approval conditions must have been part of public review process South Africa: [case law rulings] if new information (that affects decision) arises after public review of EIS, then must be shared

Assessment Report/Draft Decision (iii) Public Review EPA advice to decision-maker Proponent responds to public submissions Public appeals against EPA advice Approval decision Appeals Convenor advice to decision-maker [Western Australia process]

Assessment Report/Draft Decision (iv) Western Australia process independent Appeals Convenor discussions with proponent, EPA & public (who lodged appeal or special interest) new information often enters process, but shared with all stakeholders report of Appeals Convenor to decision-maker is public

Approval Decision (i) international practice varies considerably approval decisions usually by a Minister some legislation directs decision-maker on what they can/cannot consider decision-making is less transparent than earlier steps in EIA process

Approval Decision (ii) often possible for new information to be introduced e.g. non-environmental considerations (socio-economic) + further enquiries at Minister’s request no examples of (legal) requirement to consult but decision must normally be made public, including its basis (even if this is after the decision has been made)

4. Conclusions EIA systems examined generally consistent with concept of natural justice but issue of ‘new information’ arising at decision point not addressed in EIA legislation i.e. a ‘grey’ area

Reflections on natural justice & EIA (i) Natural justice is fundamental aspect of EIA (and sustainability) Concept is universal, but practice varies needs to be interpreted in a given jurisdiction/culture (e.g. statutes, case law, public expectations) Expectations higher for EIA agency and/or Panel assessments than for Ministerial decision-making

Reflections on natural justice & EIA (ii) Can’t have endless public consultation - someone eventually has to make a decision! need to strike balance between process efficiency and fairness to public ultimately it is judgement of decision-makers to decide when/how much information should be disclosed to stakeholders on case by case basis

Conclusions regarding 'parrot' case case settled out of court (i.e. no legal test of 'natural justice' here) proponent submitted modified proposal – approved by Minister BUT… February 2007 amendments to EPBC Act 1999 (Cth) – s131AA requirements of natural justice for EIA approval processes added proponent invited to comment on draft decision prior to Minister's final approval & public may be invited to comment too

THANK YOU! questions...? discussion...? Angus Morrison-Saunders http://wwwstaff.murdoch.edu.au/~angusms/ A.Morrison-Saunders@murdoch.edu.au Gerard Early Gerard.Early@environment.gov.au