Public hearings in environmental assessment: towards a civics approach.

Abstract

This research explored transactive aspects of public hearings in environmental assessment (EA). The Environment Act of Manitoba establishes a quasi-judicial hearings process through which members of the public can participate in EA decision making. The Clean Environment Commission is the main vehicle through which this opportunity is provided. Using a qualitative approach, this study documented the experiences of hearing participants. Analysis took a grounded approach, and relied on QSR N4 software. Various strengths and weaknesses of the hearings process were identified, and diverse suggestions for improvement were made. Building on these results and guided by the civics framework, a more adaptive approach to EA hearings is explored, emphasizing dialogue, communication, understanding and mutual learning. Recommendations for reform pertain to conceptual adjustments and methods for transforming hearings from an analytical to an interpretive, adaptive assessment process. Grounding hearings in civics ideas helps ensure that EA remains a viable tool in the transition to sustainability.

Cette recherche a explore les aspects transactifs des audiences publiques realisees lors d'evaluations environnementales. La loi sur l'environnement du Manitoba prevoit un processus daudience quasi-judiciaire, la Clean Environment Commission, grace auquel le public peut participer aux prises de decisions associees aux evaluations environnementales. Lors de la recherche, une approche qualitative a utilisee pour evaluer l'experience des participants aux audiences. L'approche empirique a ete a la base de l'analyse, qui a ete faite l'aide du logiciel QSR N4. Elle a permis d'identifier de nombreuses forces et faiblesses dans le processus d'audience et de proposer des ameliorations qui mettent l'accent sur le dialogue, la communication, la comprehension et l'apprentissage mutuel. Des methodes et ajustements conceptuels ont ete proposes afin de que le processus analytique utilise lors des audiences soit plus interpretatif et adaptatif. Les propositions des citoyens lors des audiences sont un apport qui contribue a a ssurer que les evaluations environnementales demeurent un outil de transition vers la durabilite.

Keywords

Environmental assessment, hearings, public involvement, civics approach

Introduction

The need for public involvement in environmental assessment (EA) is well established in both theoretical and applied assessment literatures. It is also recognized that public involvement can actualize principles of participatory democracy (Gellhorn, 1972; Pateman, 1972; Fox, 1979; Lafferty and Meadowcraft, 1996; Lummis, 1996). The opportunities for EA participants to influence project development is, however, dependent on procedural requirements for public involvement in specific EA processes.

Hearings form an integral part of EA public involvement programs, and provide opportunities to improve planning and decision making. They also offer a means to manage political conflict and represent a public good in high demand in the political market place (Grima, 1985; Sinclair and Diduck, 1995). A recent public opinion poll for the Canadian Environmental Assessment Agency indicated that "Canadians are almost unanimous in saying that projects such as mines, pipelines, dams or high voltage lines should be subject to hearings by an independent review panel" (Angus Reid Group Inc., 1998).

Public hearings also furnish opportunities to develop social rationality, and learn civic responsibility (Friedmann, 1987; Petts, 1999). They provide venues for social learning by bringing together a community of people with diverse interests to share views and ideas aimed at finding acceptable solutions (Alexander, 1999). Consistent with ongoing interest in social learning and collaborative approaches to resource management, this paper explores transactive aspects of public hearings (e.g. Palerm, 2000; Blatner et al., 2001; Petts, 2001; Sinclair and Diduck, 2001; Smith and McDonough, 2001; Ward, 2001). We analyze the provincial EA hearings process from Manitoba, Canada, and offer a set of recommendations for process reform. Consistent with a civics perspective, we advocate a more adaptive approach, emphasizing mediation, communication, understanding and mutual learning.

Methods

Our approach was qualitative, and relied on purposeful, stratified sampling (Patton, 1990; Creswell, 1994; Maxwell, 1996). From March to May 2001, semi-structured interviews were held with 31 key participants from the seven most recent provincial hearings in Manitoba, which occurred between 1994 and 1997 (Table 1). All participants were involved in at least one of the hearings, and some took part in two or more. Others had also participated prior to 1994 or in joint federal/provincial hearings. The participants included two former hearing panel members, four environmental consultants, six individuals affiliated with nongovernmental organizations (NGOs), one representative of an Aboriginal organization, nine government officials (including municipal, provincial and federal), two lawyers, four proponents, and three members of the general public. The interviews took anywhere from 30 to 90 minutes, and most were recorded and transcribed verbatim. A review of documents, focusing on hearing reports, supplemented th e interview data. As well, two workshops were held in June 2001 to check and refine the interview findings. All interview participants were invited, with six attending each session. Analysis followed a grounded approach, and relied on QSR N4 software (Merriam, 1998; QSR, 1998).

The Manitoba hearings process

Environmental assessment in Manitoba parallels a comprehensive, rational planning process (Nelson and Serafin, 1995; Lawrence, 2000), and is governed by The Environment Act (1988) and accompanying regulations. The law applies to all developments, both public and private, that have potential adverse environmental effects. It requires project proponents to conduct an EA before beginning construction and operation. For the purposes of the Act, projects are classified according to their environmental impact. In the case of Class 3 developments, or those with the highest likelihood of having adverse environmental impacts, the legislation provides for an optional arms-length, quasi-judicial hearing process. It is at the discretion of the Minister of Conservation to convene the hearings. The Clean Environment Commission (CEC) is the tribunal that conducts the hearings. The CEC is made up of a full-time Chairperson and part-time Commissioners appointed by Order-in-Council. Hearing panels typically consist of three Co mmissioners.

Public notice of hearings is usually not more than 60 days. Although participant funding is permitted by the legislation, funding has never been granted in a provincial hearing. Information regarding cases being considered is made available through a public registry system. At hearings, the Commission receives representations from the project proponent, the general public, including both supporters and opponents, and various government departments responsible for reviewing the proposal. Public presentations are usually limited to not more than 20 minutes. Presenters can be questioned by fellow participants and the hearing panel. The Commission reviews the evidence and prepares a report containing advice and recommendations for the Minister, who can accept or reject all or part of the recommendations.

Process deficiencies and potential solutions

Research participants were asked a set of questions about their experiences with CEC hearings, and both positive and negative responses were provided. The latter coalesced around key process deficiencies, listed in Table 2 and summarized in the ensuing discussion. Analysis further identified diverse potential solutions, also noted below.

Weak and unclear mandate

Participants raised concerns about the CEC's mandate or purpose. Some made explicit comments about the need to clarify and strengthen the environmental protection mandate of the Commission, for example:

[The CEC] did not see its mandate as being an arbiter of the environmental justification of a project. The Chairman himself during those hearings explicitly stated that the purpose of his commission was to facilitate development. Now, there is a very sharp difference in philosophy between that and what I believe should be the role of the CEC. It should be, to me, an impartial arbiter of the desirability of certain developments according to certain rules, and according to certain laws and so on. And its primary focus should be on the environment.

Another participant expressed a need to clarify and strengthen the Commission's mandate vis-a-vis Aboriginal people:

Our main concern is that we don't see the CEC process as having any purpose in respect to First Nation interests, period.... It's an awkward situation to comment on the CEC process, because the process isn't even designed to examine the interests of First Nations in a purposeful, meaningful way.

The participants also provided several general ideas for improving the mandate:

The government needs to establish where the CEC fits into the province's overall role in exercising federal responsibility The CEC could be a contact point in helping to carry out federal/provincial responsibilities for Aboriginal people. The Nunavut Impact Review Board provides a good point of reference because part of their job is to carry out the responsibilities of the federal government, If there was a clear overall objective for the CEC the details would start to fall out.