1. 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
Gerard Early First Assistant Secretary Approvals and Wildlife Division Department of the Environment and Water Resources Canberra, ACT, Australia
Presented at: IAIA07 Growth, Conservation and Responsibility: Promoting Good Governance and Corporate Stewardship through Impact Assessment – Seoul, Korea

2. 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.

3. 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’

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

5. The issue (ii)

6. 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

7. 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?

8. 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?

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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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]

16. 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

17. 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

18. 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)

19. 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

20. 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

21. 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

22. 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

23. THANK YOU! questions...? discussion...?
Angus Morrison-Saunders
Gerard Early