Environmental law

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        The Canadian Environmental Assessment Act (CEAA) is a proactive planning tool which enables the federal government to identify the potential adverse affects of federal projects and activities, evaluate their significance, as well as develop mitigation strategies before a proposed project is undertaken. Considering the environment is one of the public's greatest concerns, it is no surprise that providing the opportunity for public participation is one of the main objectives of the CEAA. However, an examination of the role public participation has played in past CEAA assessments demonstrates that the endeavours to incorporate the public into the assessment process have been unsuccessful. Changes need to be made in order to foster public involvement and improve the ways in which public participation benefits the assessment process.

        This paper will assess how the CEAA has attempted to incorporate public participation in conducting environmental assessments and will provide some recommendations on how to improve the level of public participation and the effectiveness of public involvement. To begin I will provide a brief overview of the CEAA, describing the goals in the CEAA Act, outlining the way environmental assessments are conducted, and noting the relevant provisions pertaining to public participation. Secondly, I will examine how the CEAA enables public participation has to play a role in environmental assessments, analyzing case law dealing with public participation in the CEAA, and will demonstrate that the level of public participation has been inadequate on the whole. The benefits of public participation will then be discussed in order to highlight the importance of having effective public involvement in the assessment process. Finally, I will review some suggested reforms and will make some recommendations on how the CEAA Act should be amended to improve public participation.

Overview of the CEAA

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        The preamble of the CEAA sets out its goals and objectives. The primary objective is to "achieve sustainable development by conserving and enhancing environmental quality and by encouraging and promoting economic development that conserves and enhances environmental quality." The preamble then goes on to state that environmental assessments are an effective method to ensure an informed decision making process that promotes sustainable development. The importance of public participation in the CEAA is evidenced by its reference in the preamble of the Act.It is apparent that the CEAA recognizes the importance of the environment and sustainable development to the general public and thus strives to integrate public participation in the assessment process.

        Environmental assessments under the CEAA are not always required. Pursuant to s.5(1), an environmental assessment is only triggered by the CEAA in four circumstances: 1. When the federal authority is responsible for carrying out the project, in part or in whole; 2. The federal authority funds the project through payments or loans, in part or in whole; 3. A federal authority has administration of federal lands and sells or leases them for the purpose of enabling the project to be carried out; and 4. A federal authority issues a permit, licence, or grant for the purpose of enabling the project to be carried out.The fact that federal involvement is required in order to necessitate an environmental assessment conducted by the CEAA indicates that generally the projects being assessed are likely to be broad in scope and involving significant development. The larger the project is, the greater the environmental impact is likely to be, and therefore, there is a greater need for public participation in the environmental assessment of these initiatives.

        Once a proposed project is determined to require an environmental assessment, there are four different types of assessments available. Although there are four different types of assessments available, the objective of each is the same, to determine whether or not the proposed project will result in significant adverse environmental effects after taking into consideration proposed mitigation measures, if any are presented. The four types of assessments provided by the CEAA are screening, comprehensive study, assessment by a review panel, and mediation. Once an assessment is completed and a project is approved, the CEAA requires a follow-up program to be implemented to determine the accuracy of the assessment and assess the success of mitigation measures. Each of the four different types of environmental assessments which may be conducted by the CEAA will be discussed individually as the level and extent of public participation varies depending upon which assessment is being conducted.

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        The first type of assessment, the screening level review, is also the most common. Once a screening is completed the responsible authority is able to exercise three options: Refuse to allow a project to proceed if it is to likely result in significant adverse environmental effects (and these effects are not justified), allow a project to proceed if it is unlikely to result in significant adverse environmental effects, or refer the project to a mediation or joint panel review if uncertainty still remains regarding the potential environmental impact of the project. At the screening level, the responsible authority is granted the discretion to determine whether or not public participation is appropriate. This discretion has proved to be highly problematic in terms of adequately involving the public at the screening level. It is often the case that in most screenings the responsible authority declines to involve the public, this is extremely concerning due to the fact that 99% of environmental assessments are screenings. This problem is compounded by the fact public notice is only provided for an estimated 10-15% of screenings as well as the attitudes of federal departments which view this level of public participation as satisfactory. The discretion of the responsible authority undermines the ability of the public to voice their concerns which can result in a project being referred to mediation in accordance with s.20(1)(c)(iii). Recently there was an audit of CEAA to determine if these screening were in accordance with the Act, it turned out it was indeterminable because there was no information about them.

        If a project is listed under the 'comprehensive study list' it must receive a comprehensive study as these types of projects are assumed to have significant adverse environmental effects. Public participation at this level is quite high as the public involvement is required. Unlike the screening level, the responsible authority has no discretion, as s.21(1) states, "the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project." Although public participation is required at this stage, which is commendable, out of twenty-five thousand environmental assessments conducted between 1995 and 2000; only 46 projects were subjected to comprehensive studies. After consulting with the public the responsible authority then reports to the Minister of the Environment (the Minister) and makes a recommendation to either keep the assessment proceeding as a comprehensive study or refer the project to a mediation or joint panel.

        If a project is referred to a joint review panel the public will have an opportunity to play much a larger role than what is offered in the previous two forms of assessment. Review panels entail holding hearings which provide the public the ability to observe the deliberations and become actively involve by voicing their concerns and providing feedback. Also, s.34(a) of the CEAA requires that all of the information required by the review panel to conduct the assessment be made available to the public. It has been observed that public participation in joint panel hearings have been effective and have had positive impacts on the outcomes of environmental assessments. Public concerns and ideas were found to reflected in panel deliberations and recommendations and have resulted in projects being altered and improved.Considering that joint review panels are the most comprehensive form of environmental assessment used by the CEAA and are generally reserved for relatively important projects which may result in significant adverse environmental effects, it is highly appropriate for public participation to be required at this level. Due to the hearings, public involvement, and the disclosure of all information relating to the assessment, panel hearings are much more transparent than screenings and comprehensive studies. Unfortunately, joint panel reviews are rarely used which limits the potential for the public to effectively participate in assessments at this level

        Unlike a joint review panel which consists of an independent panel of experts, mediation involves a single individual who is unbiased and possesses the qualifications to assume the role of mediator. Mediation requires 'interested parties' to participate in the assessment and can only take place if the interested parties are identified and willing to participate. Mediation involves both proponents of the project and opponents presenting their respective opinions and recommendations in an attempt to reach an agreement. Due to the fact that any member of the public can potentially be an 'interested party' for the purposes of a mediation, this level of assessment offers the greatest amount of public participation, both in terms of extent and potential to significantly impact the assessment process. Again, although the potential for public participation at this level is very high, the drawback is that very few mediations are actually conducted. It is evident that there is a correlation between the intensive scope of an assessment type and the potential for public participation. However, at each level of assessment, with potential for public participation increasing, the number of assessments conducted at those levels decreases as they become more extensive.

Public Participation in the CEAA

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        In addition to the preamble stressing the importance of public participation, the rest of the CEAA Act contains numerous provisions for public participation, making it evident that public participation is one of the primary objectives of the CEAA. Section 4(1) lists the purposes of the Act and includes public participation, stating one of the purposes is "to ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process." After establishing the importance of public participation in the CEAA the Act then contains various provisions dealing with the form and process of public involvement. As demonstrated by the previous section covering the various types of assessments that can be conducted by the CEAA, one of the ways the public participates is through the submission of comments. Section 16(1) lists the factors that all types of assessment must take into consideration; one of the factors specified is comments received from the public. Acknowledging that Canada is home to an assortment of indigenous groups with traditional forms of knowledge and respecting the fact that communities situated in the region where a project will take place are likely to have a better understanding of the region than outsiders, the Act provides that this type of knowledge may be considered. One thing missing from the Act, which one might expect to find, is what role the public plays when it comes to making a decision on whether or not a project should be allowed to proceed. Another provision in the Act which attempts to encourage public participation is the participation funding program which was established to facilitate participation for all types of assessments except for screenings. Funding is laudable as many members of the public may not otherwise be able to afford to take time off to participate in assessments, it is also logical that funding is confined to comprehensive studies, mediation and joint panels as they require a relatively substantial amount of time to be spent by participants. It is apparent that the public is granted the opportunity to voice their opinion in certain circumstances and this may be taken into account but it is uncertain to what extent the public can impact the decision making process.

        On top of the provisions in the Act enabling the public to participate in all levels of the assessment process, the Act also includes procedures pertaining to the disclosure of information that is to be made available to the public. Perhaps one of the strongest aspects of the CEAA in regards to public participation is the Canadian Environmental Assessment Registry (the Registry). Section 55(1) of the Act states that the purpose of the Registry is for "facilitating public access to records relating to environmental assessments and providing notice in a timely manner of the assessments [...]." Yet, notice provision in the CEAA are weak as they do not require notice before decisions are made which is a considerable problem when it comes to screening as decisions are often made before the public is able to review and comment on the information uploaded to the Registry or available in project files. The internet site containing the registry allows for convenient access which encourages participation as most of the public has access to the internet and information can be acquired efficiently from the comfort of their homes. In regards to providing public notice of follow-up programs, there is a requirement that the results of the follow-up programs be made available to the public. However, there is no requirement that the information relating to the follow-up process and the information gathered from the follow-up program be made publically available. For the most part, the Registry has proven to be an effective mechanism for informing the public of the results of assessments but has fallen short when it comes to providing information in a timely fashion which would allow for greater feedback from the public in order to impact the decision making process.

Case Law

        Despite the fact there has not been many cases dealing with public participation in the CEAA, there have been enough reviewed to provide an understanding of how the courts have interpreted the provisions of the Act dealing with the public. It is important to bear in mind that the role of the courts in judicial review is to interpret the provisions statute and determine if they have been complied with during an environmental assessment. Therefore, the courts will likely not offer suggestions for reform or critique the way public participation is handled by the statute.

        Miningwatch Canada v. Canada (Minister of Fisheries & Oceans)dealt with the issue of the responsible authority's discretion in determining what type of assessment a project should be subject to and provided some discussion of Bill C-19 which was implemented in order to increase public participation. The applicants in this case argued that the project in question should have been subject to a comprehensive study rather than a screening as the project was analogous to one of the types of projects listed in the comprehensive study list. The court held that the responsible authority erred in subjecting the project to a screening, acting beyond the ambit of their powers, and prohibited the project from proceeding until a comprehensive study was conducted. Martineau J., speaking for the court, noted that Bill C-19 was introduced to improve public participation and made public participation mandatory for all comprehensive studies, and stated that public participation "undoubtedly improves the EA and decision-making process." It would appear that the court felt that since projects listed under the comprehensive study list have the potential for significant adverse environmental effects, the public needs to be involved, which would not have happened here under a screening since the responsible authority determined public participation was not necessary. Another aspect of Bill C-19 which increased the effectiveness of public participation is that the public is now able to participate prior to the Minister's ruling on what type of assessment the project should take after a comprehensive study and during the comprehensive study itself.

        Miningwatch seemed to have limited the power the responsible authority wields over determining the type of assessment a project should be subjected to. However, the Federal Court of Appeal recently overturned the decision. This means that the responsible authority's discretion to scope a project first and then determine if the project was included in the comprehensive study list is restored. The responsible authority's discretion has been a contested issue, especially in the context of determining whether public participation should be required at the screening level.

        Public participation in the screening level of an assessment is left to the discretion of the responsible authority. This has led to some questions concerning how this discretion should be exercised. The leading case which dealt with this issue is Lavoie v Canada (Minister of the Environment). Here, the court unsurprisingly confirmed that the responsible authority has the discretion to determine whether the public should be involved during a screening. Mr. Lavoie argued that in exercising this duty the common law doctrine of fairness should be used to determine if the public should be involved. Lemieux J., speaking on behalf of the court, rejected this argument but held that this power cannot be exercised arbitrarily as it would be antithetical to the Act's objective of fostering public participation. Lemieux J.'s judgement seems to affirm that public participation is an integral component of the CEAA and is not something that should not be ignored. Yet, there was no guidance offered pertaining to the scope of the responsible authority's discretion to determine if public participation is required, indicating that the discretion is unrestrained so long as it is not arbitrary.

        In the case of West Vancouver (District) v. British Columbia (Ministry of Transportation), the issue of public participation at the screening level was readdressed. West Vancouver argued that the public should have been involved because the responsible authority rashly concluded that the project was not to result in significant adverse environmental effects. Lemieux J., once again spoke for the court, making reference to the decision in Lavoie and held that the responsible authority was acting within its authority and made no error. One interesting aspect of the case was the response to another argument made by West Vancouver which posited that meeting with an interested party triggered s.18(3) of the Act and thus necessitated public participation. Not surprisingly the court rejected this argument and held that "the structure of subsection 18(3) contemplates participation by the public at large [...]" and therefore meeting with one party does not constitute public participation. Once again, it would appear that the responsible authority's power is essentially incontestable when it comes to determining if public participation should be included in the screening process.

        One of the earliest cases dealing with the issue of public participation in the CEAA is Union of Nova Scotia Indians v. Canada (Attorney General). The Union of Nova Scotia Indians argued that since a project was approved before they were able to provide their input in a previously arranged meeting with the responsible authority, the decision should be overturned due to procedural unfairness. The court overturned the decision due to the failure to assess the potential adverse effects on the fish relied on by the Mi'kmaq as a tradition source of food and because the Minister did not consider the fiduciary duty owed to the indigenous group.

This case illustrates the ambiguity in the Act concerning public participation which has led to confusion for both decision makers and the public regarding the nature of the public's involvement. This case may be distinguished from future cases involving situations where the public is informed they will be provided an opportunity to participate and later not involved as the decision is already reached since this case involves the Crown's fiduciary duty to Aboriginal peoples.

Benefits of Public Participation

        The importance of environmental matters to the general public makes it important for them to be included in the assessment process as a matter of fairness, but public participation also has numerous benefits on the assessments themselves, ranging from increasing the effectiveness of the process to providing accountability and increasing the credibility of the decision reached.

        One of the main advantages of public participation is the identification of potential impacts of the project. Indigenous forms of traditional knowledge provide a good example of this, as it is often the case that the unique adverse impacts on indigenous communities are not taken into account. The public are often in a better position to assess significance of 'non-use' losses which are inherently difficult to place monetary values on, such as the damages to cultural or heritage sites, or the loss of natural features like lakes, mountains, and wildlife. Also, the public can play an important role in assessing the uncertainties and risks and weight them against the perceived benefits. The public, especially in the community the project is to take place, are in a good position to identify potential impacts of projects which otherwise would not have been considered and are better able to value 'non-use' losses as they may be the ones who suffer these losses and do not benefit from the project undertaking. As well as identifying potential impacts of the project, the public will be able to present a broad range of information which will allow the responsible authority to reach a more informed and sound decision. Analysis of Canadian, American, and European environmental assessments have demonstrated that generally public participation improves the quality of the assessment process and affects the quality of the decision reached.

        Another benefit of public participation is allowing those individuals who are concerned with the environment to voice their opinion in the spirit of democracy. Since the environment is something which affects the public as a whole and has become an increasingly hot topic, it is only logical to allow the public to participate in environmental assessments in order to voice their concerns or express their sentiments of approval. Also, allowing the public to participate in environmental assessments will hopefully result in participating individuals becoming more informed and better aware of environmental, economic and social issues.

        A benefit associated with the democratic value of public involvement is the increased legitimacy an environmental assessment receives as a result of public participation. Incorporating public participation into assessments increases the transparency of the process and in turn heightens the legitimacy of the ultimate decision. This sentiment was echoed by Iacobucci J. in Sierra Club of Canada v. Canada (Minister of Finance) who referred to the importance of public participation, stating, "openness and public participation are of fundamental importance under the CEAA. Indeed, by their very nature, environmental matters carry significant public import, and openness in judicial proceedings involving environmental issues will generally attract a high degree of protection."Providing an assessment with increased accountability with subsequently lead to greater acceptability of decisions made which may lead to less litigation, expedite the undertaking of the project, and generally better implementation of the decision.

        An examination of the CEAA Act indicates that the drafters were well aware of the various benefits of public participation and strived to ensure assessments were afforded these benefits. However, it is also evident that although the provisions have good intentions, the implementation of these provisions in actual assessments has proven to be inadequate as public participation is severely lacking.

Recommendations

        Recognizing the need to improve public participation in the CEAA, multiple studies have been conducted by the CEAA in order to identify problems and develop solutions. As previously mentioned, one of the studies conducted was the Five Year Review which resulted in Bill C-19 which amended the Act and provided for greater public participation in comprehensive studies.

        More recently, the CEAA released the "Ministerial Guideline on Assessing the Need for and Level of Public Participation in Screenings under the Canadian Environmental Assessment Act."The Guideline provides some suggested criteria for the responsible authority to consider when determining whether or not public participation should be included in an assessment. Most of the criteria listed seemed to simply be common sense factors that one would consider anyways, more than likely the responsible authorities already taken them into consideration without having to refer to a list. Also, the Guide makes it clear that it has no legal weight. However, even if Act were amended to include this criteria, this does not overcome the problem of the responsible authority have unfettered discretion in determining if the public should be involve. Since screenings comprise 99% of environmental assessments it would be advisable to make some form of public participation required at the screening level in order to ensure there is at least the potential for some public involvement.

        One of the main changes which need to be made concerns the timing issues which have limited the potential for public participation. One of the current problems regarding the timing of notification is that the public is often not notified until a decision has been made or the assessment is near completion. The Guide recognizes this and suggests that when notification is being given "it needs to be done early enough to allow the public to have the opportunity to influence the planning of a project and its environmental assessment process before any irrevocable decisions are made." In terms of screenings, when public participation is deemed to be necessary, there should be a minimum time period instated allowing the public to comment on the screening report before a decision is reached. One of the current problems with the release of screening reports is that the public declines to comment because they feel the decision is already a foregone conclusion. Timing issues for comprehensive studies, mediations, and joint panel reviews regarding the release of information and the period between the release of the information and the final decision being made could also be extended to ensure the public is allowed to voice their opinion.

        Funding for public participation is another area in need of reform. It has been noted that the current level of funding is typically not enough to cover participant's travel, accommodation, and food expenses. Inadequate funding may discourage the public from participating in protracted assessments dealing with projects that may be taking place in distant locations. Even with funding available it has been observed that many participants are aware of the funding program. In situations where it is obvious that members of the public will incur significant costs in order to participate, it should be mandatory to inform them of the funding program so they are able to benefit from it if they desire.

        In order to better understand the effectiveness and the desired level of public participation it would be advisable to prepare reports detailing how public involvement affected the decision. Through the process of making the report the responsible authority would gain a better understanding and appreciation of how the public has affected the assessment process and in turn would be able to identify the strengths and weaknesses of the current provisions. Making the report available to the public would encourage public participation as the public would also have a greater understanding on how they can impact the decision.

Conclusion

Public participation in environmental assessments provides numerous benefits and should be an integral part of the process. The environment is of great concern to the general public so it is only fitting that one of the main objectives of the CEAA is providing the opportunity for public participation. Unfortunately, the CEAA has not done enough to involve the public especially at the screening level which is especially concerning as they comprise the vast majority of assessments. In order for public participation to be effective and utilized regularly, amendments to the Act need to be made. Although the Act unequivocally advocates public participation and clearly is aware of its importance, the numerous provisions which deal with public involvement seem to be platitudinous in light of how the public has actually been incorporated into the assessment process.

Works Cited

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