PUBLIC PARTICIPATION IN RESOURCE DEVELOPMENT - LEGAL FRAMEWORK APRIL 2, 2013

Overview Public participation in resource development decision-making (participation rights, funding, interested party determination) Citizen rights to sue and petition for investigations Public interest standing to initiate legal action and judicial review

Why Public Participation? (Sinclair, Doelle) Individual empowerment Ensure project meets public needs Assigns legitimacy to project Provides avenues for conflict resolution Provides forum for local knowledge Provides for more comprehensive consideration of factors in decisions Recognizes legitimate role of affected public in decisions

Public Participation in CEAA 2012 “AND WHEREAS the Government of Canada is committed to facilitating public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada and providing access to the information on which those environmental assessments are based”

Public Participation in CEAA 2012 Purposes S. 4.(1) The purposes of this Act are... (d) to promote communication and cooperation with aboriginal peoples with respect to environmental assessments; (e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment

Access to Information Registry established to: –facilitate public access to records, includes Internet site and project files s. 78.(1) –be operated in a manner that “ensures convenient public access” s.78.(2) Copies of documents to be “provided in a timely manner on request” s. 78.(3)

Public Participation Screenings Public may provide “comments respecting the designated project within 20 days after the posting of the notice” s. 9.(c) Agency must consider public comments in screening s.10.(a)(iii)

Public Participation Environmental Assessment RA to publish notice of commencement of EA on Internet Site s.17 EA to take into account “comments from the public” s.19.(1)(c) RA to “ensure that the public is provided with an opportunity to participate in the environmental assessment” s.24 RA to post draft report on Internet site, take into account public comments on draft report s.25

Public Participation in Panel Reviews Public concerns a factor to be considered by Minister in determining public interest in referring project to review panel s.38.(2)(b) Informal petition for panel review

Public Participation Panel Reviews Review panel to ensure that “information it uses when conducting the EA is made available to the public” s.43.(1)(b) Review panel to hold “hearings in a manner that offers any interested party an opportunity to participate in EA” s.34.(b) Review panel to prepare report including summary of public comments s.43.(1)(d) Hearings to be public s. 45.(1)

Public Participation Funding Requirement Agency required to “establish participant funding program to facilitate the participation of the public in the environmental assessment of designated projects referred to a review panel” s.57 NEB, CNSC required to establish similar program for their projects s. 58 No funding requirement for substituted projects s.58.(2)

Ontario Environmental Assessment Act Proponent duty to consult with “such persons as may be interested” in preparing terms of reference and environmental assessment s.5.1 Public notice, inspection, comments on proposed terms of reference s. 6.(3.1), (3.5),(3.6) Public notice, inspection, comments on environmental assessment s.6.3, 6.4

Ontario Environmental Assessment Act No participant funding Hearings are rare, exemptions are frequent

Alberta Energy Resources Conservation Board Quasi-judicial body,full-time members Evidentiary rules, full opportunity to introduce and test evidence No intervenor funding, except to local intervenors after hearings based on test of utility of intervention Commitment to public participation suspect: has carried security checks on intevenors

Does Public Participation make for better decisions? A “qualified yes” (Rutherford, Campbell) Public role in review panels “for the most part, effective” “positive impacts on the outcome of the EA” Indicators: –References to public input in reports –Procedural changes prompted by public –Public scrutiny led to recommendations or changes, changes by proponent

Impediments to Public Participation in Panel Reviews Limits on participant funding (funding and resources are scarce) Poorly developed processes with short timelines Narrow project scope Conclusion: More panel reviews please! (Rutherford, Campbell)

Improving Public Participation (Sinclair, Doelle) Integrate public participation throughout process Allow for more collaborative techniques of participation (ADR, mediation) Governments (not proponents) responsible for public participation Accountability for how public input used Government ensure that the public has basic tools to serve as guardian

Citizen Rights to Sue and Petition for Investigation Canadian Environmental Protection Act, 1999 Species at Risk Act Auditor General Act North American Agreement on Environmental Cooperation

Canadian Environmental Protection Act, 1999 Right to request Minister to investigate an alleged violation Citizen right-to-sue provisions Whistle-blower protection Right to request addition of a substance to Priority Substances List Right to file notice of objection, request a Board of Review

Application for Investigation Species at Risk Act 93.(1) A person who is a resident of Canada and at least 18 years of age may apply to the competent minister for an investigation of whether an alleged offence has been committed or whether anything directed towards its commission has been done. 94.(1) The competent minister must acknowledge receipt of the application within 20 days after receiving it and, subject to subsections (2) and (3), investigate all matters that he or she considers necessary to determine the facts relating to the alleged offence. (2) No investigation is required if the competent minister decides that the application is frivolous or vexatious.

Petitions under Auditor General Act 22.(1) Where the Auditor General receives a petition in writing from a resident of Canada about an environmental matter in the context of sustainable development... the Auditor General shall make a record of the petition and forward the petition within fifteen days after the day on which it is received to the appropriate Minister... (2) Within fifteen days after the day on which the Minister receives the petition... the Minister shall send to the person who made the petition an acknowledgement of receipt of the petition and shall send a copy of the acknowledgement to the Auditor General.

Petitions under Auditor General Act 22.(3) The Minister shall consider the petition and send to the person who made it a reply that responds to it, and shall send a copy of the reply to the Auditor General, within –(a) one hundred and twenty days after the day on which the Minister receives the petition from the Auditor General; or –(b) any longer time, where the Minister personally, within those one hundred and twenty days, notifies the person who made the petition that it is not possible to reply within those one hundred and twenty days and sends a copy of that notification to the Auditor General.

North American Agreement on Environmental Cooperation Article 14: Submissions on Enforcement Matters 1.The Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law, if the Secretariat finds that the submission:... (d) appears to be aimed at promoting enforcement rather than at harassing industry

North American Agreement on Environmental Cooperation Article 15: Factual Record 1.If the Secretariat considers that the submission, in the light of any response provided by the Party, warrants developing a factual record, the Secretariat shall so inform the Council and provide its reasons. 2.The Secretariat shall prepare a factual record if the Council, by a two-thirds vote, instructs it to do so.

Law of Public Interest Standing What is standing? What is difference between private and public interest standing? “Private rights at stake” or “specially affected by the issue” Why open the courts to busybodies?

Downtown Eastside Decision – Supreme Court of Canada How did this case get into court? Three factors relating to standing: –Does case raise serious justiciable issue? –Does party bringing case have “a real stake in the proceedings or is engaged with the issues that it raises”? –Is case “a reasonable and effective means to bring the case to court”? How did law shift with this case? Why?

Downtown Eastside Decision – Supreme Court of Canada Considerations relating to “a reasonable and effective means” test: –Economical use of judicial resources? –Issues presented in context suitable for judicial determination in adversarial setting? –Uphold the principle of legality? Does Downtown Eastside decision have implications for “interested party” determinations?