Public Consultation Process for Environmental Assessment

Given the policy discretion that agency officials exercise in respect of environmental decision-making, public consultation and participation through EIA processes provide democratic legitimacy to the decision-making process, by ensuring that unelected officials account for public views and public (environmental) values in their decisions¹⁵²

– Neil Craik (2008)

In BC, proponents must conduct a public consultation program and include the following in an EA application:¹⁵³

• summary and evaluation of any public consultation activities already completed; and
• proposal for a public consultation program that the proponent will carry out for the review of the EA.

The EAO Executive Director must ensure that the policies on public participation prescribed by regulation are reflected in the EA.¹⁵⁴ These policies include requirements for:

• public consultation;
• public notice;
• access to information; and
• formal public comment periods.

These requirements are discussed separately in the following sections.

Public Consultation

In BC, proponents must conduct a public consultation program as part of the EA process.¹⁵⁵ Within the prescribed time for deciding whether an EA is required (30 days), the EAO Executive Director must prepare a written assessment of the adequacy of any public consultation activities that the proponent has conducted or proposes to conduct for the EA.¹⁵⁶ This written assessment must specify any additional public consultation activities that the EAO Executive Director considers necessary to ensure adequate public consultation is carried out. Such activities could include the provision of public notice, access to information, general public consultation or consultation with specified persons or organizations.¹⁵⁷ In addition, where warranted, the written assessment must establish a time limit for carrying out these activities, and assign responsibility for carrying out these activities to either the proponent or the EAO.¹⁵⁸

Issue

Public participation in the EA process is limited by lack of formal involvement mechanisms, lack of funds and lack of expertise.

Recommended Solution

Involve the public by way of EA Advisory Committees

[Tags: EA; Public Consultation; Advisory Committee]

Although the EAO has the power to do so, BC’s current EA law does not explicitly provide for public involvement in advisory committees.¹⁵⁹ Instead, membership in working groups is limited to representatives of the Canadian Environmental Assessment Agency, federal and provincial government agencies, First Nations, and local governments.¹⁶⁰ Conversely, under BC’s previous EA laws, the EAO Executive Director was empowered to establish public advisory committees.¹⁶¹ These committees were authorised “to advise and make recommendations to the project committee on matters of public concern”.¹⁶² Membership on these committees included interested individuals, or individuals representing interested organizations.¹⁶³ Clear legal provisions also empowered these committees to determine their own procedures, and invite others to provide advice and make recommendations.¹⁶⁴ Other jurisdictions permit public involvement by way of advisory committees. Quebec law, for example, provides that proposed mines in the northern portion of the province are subject to public involvement in advisory committees.¹⁶⁵

Provide assistance to public participation in EA review

[Tags: EA; Public Consultation; Duty to Consult; Funds]

Participation in an EA review by members of the public may be limited by their available time. In addition, the general public may not have the necessary expertise to adequately review lengthy technical EA documents, and they may therefore need funds to retain independent experts to clarify key issues and evaluate proposed impact mitigation methods. Unfortunately, no explicit provision of financial assistance for public participation is provided under BC EA law.

In Manitoba, the regulatory authority may require the proponent to provide financial or other assistance to any person or group participating in the EA process.¹⁶⁶ Clear guidance is provided regarding which expenditures may be paid for, including: professional fees for advice or assistance; salaries of persons employed for the purpose of coordination, research and the preparation of materials, including secretarial services; purchase of relevant information material such as maps, documents and reports for the purpose of information, presentation and analysis; and information collection and dissemination.¹⁶⁷ Financial assistance is also provided to the public in other jurisdictions, including under CEAA 2012¹⁶⁸ and under Saskatchewan law.¹⁶⁹

Public Notice

BC policy requires the EAO Executive Director to order the proponent (or the EAO itself) to provide public notice of the following public consultation activities:¹⁷⁰

• where and when the public may review the EA (and other documents, including pre-EA documents, AIR, etc.);
• purpose and time limit for any formal public comment period; and
• where and when any open house or public meeting will be held.

The form of public notice must be by newspaper advertisement, open letters or any other manner satisfactory to the EAO Executive Director.¹⁷¹ The public notice must be given at least seven days before the start of a formal public comment period, or before the date on which an open house or public meeting is scheduled.¹⁷²

Issue

Members of the public may not receive adequate notice.

Recommended Solution

Provide special or alternative notice provisions where individual accommodation is required

[Tags: EA; Public Consultation; Language; Duty to Consult; Cultural Awareness]

Under South African law, a proponent must give written notice of a proposed activity to the owner or person in control of the land on which the activity is to be undertaken, and inform such a person of the public participation process. Special provisions are provided for persons unable to understand the content of a notice for the reasons of illiteracy, disability or other disadvantages. These special provisions mandate that where the person is unable to understand the content of the notice, alternative means of notifying the owner or person in control of the land must be agreed on with the regulatory authority.¹⁷³

Public Access to Information

Open houses (or public meetings) are a common forum for providing information about the project to the public. At these meetings, EAO representatives outline the EA process and proponents present on the proposed project.¹⁷⁴ The public may ask the EAO representative and the proponent questions about the proposed project.

In addition to these public information sessions, BC law requires the EAO to grant public access to the following records:¹⁷⁵

• information contained in the EA application;
• public notices;
• orders issued by the regulatory authority;
• assessments of adequacy of the proponent’s public consultation program;
• comments submitted as part of the formal public comment period, and the proponent’s response to these comments;
• EAO Executive Director’s EA assessment report, recommendations, final decision, and EA Certificate; and
• where required, reports on the proponent’s compliance with the EA Certificate.

Public access to these documents, except the EAO Executive Director’s EA report and recommendations, must be made publicly available within seven days of receipt by the EAO.¹⁷⁶ The EA report and recommendations must be made publicly available within 45 days of the EAO Executive Director submitting these to the minister.¹⁷⁷ All publicly available documents, including written public comments, can be accessed through the online e-PIC database.¹⁷⁸

Issue

The extensive technical language used in EA reports can challenge meaningful public engagement in the process.

Recommended Solutions

Require that EAs are written in clear language

[Tags: EA; Public Consultation; Notice; Information]

Several jurisdictions have adopted different approaches to facilitate more meaningful public engagement in the EA process. For example, US federal law has several provisions requiring information to be presented in a clear and concise manner, including:

• EAs must be written in “plain language” and the use of graphics (where appropriate) are encouraged.¹⁷⁹
• “Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses”.¹⁸⁰
• “Environmental impact statements shall be kept concise and shall be no longer than absolutely necessary to comply with NEPA and with these regulations. Length should vary first with potential environmental problems and then with project size”.¹⁸¹
• “Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on important issues. Verbose descriptions of the affected environment are themselves no measure of the adequacy of an environmental impact statement”.¹⁸²
• EAs shall not exceed 150 pages, and proposals of unusual scope or complexity shall normally be less than 300 pages.¹⁸³

Provide concise and non-technical summary of all EAs

[Tags: EA, Information; First Nations]

Technical language is often required to adequately describe a design or feature of a proposed project. Non-technical summaries can help members of the public better understand the project, its risks and benefits. The need for non-technical language has also been identified by aboriginal peoples as being necessary for meaningful consultation in the EA process.¹⁸⁴

The European Union has recognized the importance of making EAs more publicly accessible by requiring a “non-technical summary of the information” with the EA.¹⁸⁵ United Kingdom EA law also requires non-technical summaries.¹⁸⁶ Similarly, under US federal law, the EA must contain a summary, not exceeding 15 pages, that states the “major conclusions, areas of controversy (including issues raised by agencies and the public), and the issues to be resolved (including the choice among alternatives)”.¹⁸⁷

Require that proponent’s experts attend public meetings and hearings

[Tags: EA; Public Consultation]

Mining industry consultants have recognized the value in discussing issues face-to-face rather than producing masses of written text.¹⁸⁸ This is particularly important at open houses or public meetings, where experts can help answer questions and concerns of the public. Saskatchewan law explicitly recognizes this by empowering the regulatory authority to direct the proponent to make experts available at public meetings.¹⁸⁹

Public Comment Period

Under BC law, at least one formal public comment period, ranging from 30 to 75 days, must be established by the EAO Executive Director.¹⁹⁰ The EAO Executive Director must also order one or more formal public comment periods, unless he or she is satisfied that it is either impracticable due to insufficient time, or it is unnecessary because the public has not demonstrated sufficient interest in the assessment of the reviewable project.¹⁹¹ Provincial policy explains that one public comment period will generally be held at each of the provincial EA process stages (i.e. the pre-application stage and the application review stage). In addition, according to provincial policy, public comments will only be solicited during these formal comment periods.¹⁹²

Issue

Public comments may also be made at an open houses or public meetings. Although these comments may be considered by the EAO representative,¹⁹³ they are not officially ‘recorded’. According to the provincial policy, public comments are limited to “any written, legible communication (i.e. letter, online form, or fax)”.¹⁹⁴ Only written comments will be posted to the tracking table on the e-PIC.

Recommended Solution

Record and consider verbal comments made by the public

[Tags: EA; Public Consultation]

As mentioned above, neither BC law nor policy requires that verbal comments made by the public at open houses and public meetings be recorded. In contrast, under European Union law, the views presented in public meetings must be officially recorded and taken into account during subsequent EA stages.¹⁹⁵