The new standing rules in the Canadian Environmental Assessment Act, 2012, have now been interpreted the first two times, with contradictory results. The Prosperity Mine panel, in BC, has wisely interpreted the new standing rules broadly, including experts, Non-Governmental Organizations, First Nations, local residents, and those who use the area for recreation. The Jackpine panel, in Alberta, refused standing to most of the public applicants, saying they had not correctly completed the application forms. The panel is therefore launching a “public hearing” today from which many of the project opponents have been shut out. Even those who have been allowed to participate have been warned that the Panel will not listen to evidence about other projects, i.e. about cumulative impacts. What use is an “environmental assessment” like that? CEAA 2012 narrowed the right to participate fully in environmental assessment hearings. It now provides:
- Subsection 2(2) defines an “interested party” as a person who, in the opinion of the Panel, is either “directly affected by the carrying out of the designated project” or “has relevant information or expertise.”
- Paragraph 19(1)(c) requires the Panel to take comments from the public into account as part of the environmental assessment.
- Paragraph 43(1)(c) of the Act requires the Panel to “hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment.”
The explicit definition of “interested party” and the requirement for the Panel to determine whether a person qualifies as an interested party are new under the Act.
The Prosperity deposit is a gold-copper porphyry with a one billion tonne measured and indicated resource containing 5.3 billion pounds of copper and 13.3 million ounces of gold. A previous EA for the project was rejected. The new EA proposes $300 million of environmental improvements, including the preservation of Fish Lake. The Prosperity Mine panel received 31 requests for standing, and appears to have granted them all. I think this is wise- how will the project ever obtain its social right to operate, if opponents are silenced and excluded when all the decisions are being made?
In contrast, the Jackpine oil sands panel rejected 28 applications for standing from the public (including many First Nations people), although it accepted a handful of others. The Jackpine hearing will therefore start today without their participation, (and has also refused to hear the First Nations’ challenge that they have not been properly consulted.) Although the panel decision does not explain what was wrong with the 28 applications, they apparently lacked a written summary of the applicant’s planned evidence. The applicants say they were not told this summary was essential until after the deadline. In contrast, the panel gave standing to an oil company, Total E&P Canada Ltd, which also failed to file a written summary of its evidence.
In addition, the panel warned participants that it will not listen to wide ranging evidence about the cumulative impacts of the oil sands:
The Panel wishes to provide further comments and direction to interested parties. A number of Hearing submissions, from both interested parties and others who do not qualify as an interested party, address the impacts of projects or operations far removed from the Athabasca Oil Sands Area. The Panel has decided that such information is not relevant to its review and will not be considered in the Hearing. In addition, some of the projects identified by interested parties (e.g., Northern Gateway Pipeline, Keystone XL Pipeline) are at the application stage (or preapplication stage) and are being (or will be) reviewed by other regulators. The Panel does not intend to allow evidence on or discussion about those projects.
A full and fair environmental assessment can give legitimacy to an unpopular decision. How much legitimacy will the Jackpine panel decision have?