In my view, meaningful public participation is the condition precedent to informed decision-making and to restoring public confidence in the process.
The problem with the bill as drafted is that it provides few, if any, details as to how public participation is going to be provided under this bill, particularly in relation to project-level assessments. For example, I draw your attention to proposed section 27 of the bill, which says that when conducting an assessment, the agency shall provide an opportunity for the public to participate.
That's it. There is no indication of how, when, through what mechanism, or when participant funding will be provided. Is it going to be provided in the planning phase? Those essential requirements are wholly absent from the bill. That's regrettable, because that's exactly the same provision that was in CEAA 2012, the one that was found to be wholly deficient by the environmental assessment expert panel. I would have expected further and better details about public participation in this bill, the proposed impact assessment act, yet they are almost wholly absent.
To fix that, do you want the long list or the short list? At the very minimum I would expect to see a good definition of meaningful public participation. I provided one in my submissions. The preamble and the statement of purposes should be expanded to breathe some life into the concept of meaningful public participation. Then, at each and every stage of the impact assessment process, there should be explicit requirements in terms of access to information, reasonable notice, and the ability for people to call and cross-examine witnesses. Those are the kinds of procedural safeguards that I say are essential to the timely, effective exercise of public participation rights. If you don't have those safeguards built into law, those public participation rights are hollow.
In terms of the preference for a tribunal, I've been practising environmental law in this province for over three decades. I've spent a lot of time before this province's environmental tribunals. I say to you, if you really are interested in having meaningful public participation, you want procedural fairness, and you want accountable, evidence-based decision-making, the tribunal route is the way to go. If you want over-politicized, highly controversial backroom deal-making, go the route of this act. You can't pretend to be restoring public trust by avoiding the public scrutiny of a tribunal and leaving it ultimately to the minister and/or cabinet to make a decision at the end of the day.
If this bill is passed intact without any amendments, I would be hard-pressed to advise a client to participate in the impact assessment process. I'd say, “Why bother? Why spin your wheels? Why spend literally months or years raising funds, making submissions, and doing everything you need to do at the agency level or the review panel level only to have that mean little or nothing when the decision actually gets to the decision-maker?”
That's why I strongly support the principle. There should be an administrative tribunal that's fully equipped and properly resourced to make the decisions. They hear the evidence; they can assess the credibility of the witnesses; they observe the demeanor of the witnesses. They're in the best position to make the decision. Unfortunately, that process is not reflected in this bill.