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.

What we are doing is looking at the nuts and bolts of the CEC process, but many of the issues stem from flaws in the Commission's mandate. That's what I see is missing. We are wasting time talking about the nuts and bolts if you don't have the mandate to look at the purpose...The Commission must have some measurable goals, and clear criteria for proponents to meet before a project is undertaken. In what way does the project address the Crown's fiduciary obligations? And how does the project contribute to sustainable development?

At the workshops, the general ideas for improvement mentioned above were supplemented with the suggestion that the CEC should have the authority to reverse, or at least review, earlier decisions. As well, it was suggested that project proposals be subjected to sustainable development screenings before hearings are initiated, and that these reports be part of the hearing record.

Decisions were foregone conclusions

A strong theme, related to the question of mandate, was that normative and strategic issues (e.g. project need, purposes and alternatives, including the go/no-go option) were largely foregone conclusions:

I guess I want to say something, because I thought this would come up. It's a little controversial. I had a sense that sometimes, in some ways, not completely, but sometimes in some ways, the outcome was preordained.

I never felt that it was a go or no-go based on a CEC report.

The outcomes of these hearings are foregone conclusions because often, for instance, the mill or the infrastructure has already been licensed, and often there is a legal agreement in place that actually drives or forces the government to license in a certain way.

I think that the decision was made before the hearings. It gave people the chance to express things but I don't think there was any chance at all that they were going to modify what happened.

A subtheme was that normative and strategic questions were predetermined because of historical, structural or economic constraints:

You've had an operation here that has been operating for 30 years. Are you going to turn around and say after 30 years, you are not going to be licensed? I think you would have to be very impractical to think that?

It depends what people's expectations are. If you are talking about go/no-go, then in a sense I guess the decision is foregone. Not that the CEC is schooled, but if you take into account the economic system and the way we make decisions, it is hard to say no.

With respect to solutions, the ideas regarding mandate discussed above have relevance for the problem of foregone decisions. For example, changing the Commission's mandate to require the application of sustainability criteria could address the concern that CEC recommendations are often predetermined in favour of project approval. Similarly, specifically recognizing treaty and fiduciary obligations of the Crown to Aboriginal people could help address the concern that it was foregone that CEC outcomes would not adequately take into account Aboriginal issues.

In addition, the participants identified ideas for improvement that do not require broad changes to mandate. These ideas included limiting the use of staged or phased assessments. Alternatively, if a staged process is used, the first stage should address normative questions, such as project need and purpose and the go/no-go alternative. A further idea for improvement was that Technical Advisory Committee (TAC) minutes should be part of the public record at CEC hearings, and should be subject to cross-examination.

Inadequate range of participants

Another strong theme was that CEC hearings did not include an adequate range of participants. The following concerns were raised:

* environmentalists were excluded in favour of local communities -- "There has been a tendency in the past to try and exclude the environmentalists on the basis that they are from the city and they don't count. 'Lets just have hearings that have to do with the local people who are affected.'"

* ENGOs lacked members with sufficient technical expertise -- "I don't know that there was enough really solid professional experience available to the intervenors so they could get into more technical and complex issues in an effective way."

* ENGOs were represented by the "usual cast of characters" -- "Certain people that you almost see from one event to the next, who are always on the cause. Almost without consideration for the real application, but more a case of just wanting to be heard."

* inactive publics were underrepresented -- "They get fairly good attendance -- but don't get enough of common people, concerned citizens: just academics, lawyers, consultants."

* Aboriginal people were underrepresented -- "The people who are affected by it most directly -- the Aboriginal communities in the north -- we heard from some, but I have the nagging feeling that the majority of people, the kind of silent majority we didn't hear from."

* project supporters Were underrepresented -- "The hearing tends to put too much on the negative side. You don't get too many people standing up and saying we need this thing."

In response to these concerns, several ideas were suggested for improving the diversity of hearing participants. These solutions have merit individually, but viewed together they encompass a comprehensive approach and could result in a more consistent effort to engage stakeholders. In addition, as a package these suggestions help address concerns related to predetermined decisions. First, it was suggested that CEC panels should become familiar with public involvement activities conducted by the proponent during the EA process. Similarly, it was noted that the Commission should attend these public involvement activities to answer questions and introduce the hearings process. Further, the Commission should hold pre-hearing meetings to determine the nature of community concerns, and to promote and scope the hearings. It was also suggested that the CEC should change the way it relates to and perceives distinct rural communities. Rather than traveling to such communities and inviting people to participate in a pro cess "owned" by the CEC, it should ask to be invited to participate in informal processes "owned" by the communities. On a related note, the Commission should enhance its institutional capacity to better address Aboriginal needs, e.g. appointing Aboriginal commissioners, undertaking cross-cultural training, and forming an Aboriginal advisory committee. At the same time, the Commission needs to ensure that the results of pre-hearing activities are incorporated formally into subsequent stages of the process so that questions and concerns raised by the community are addressed in the hearings. Finally, the commission should provide participant funding.

Incomplete and inaccessible public registry

Although provision of information was a strength of the CEC hearings process, concerns were raised about the completeness and accessibility of the public registry. Participants suggested a need to ensure that all information on the registry is complete and current, at all registry locations.

In fact, not all the registries in Manitoba contain the same information. Stuff gets archived before it should be archived, and there is no detailed kind of bibliography for each project of what is or isn't in the registry.

There's been correspondence with the Minister on this matter and it's not in the registry. And that's simply a fact that they haven't kept their stuff up to date.

It was also suggested that a decision not to include local correspondence on the registry should be reversed. Numerous interview participants identified the accessibility of the registry as a concern. Housing the registry in public libraries was thought to be problematic, with respondents saying that libraries have overly restrictive hours of operation. As well, people thought that high demand among library users made it difficult to find specific data. Additionally, two people complained of limitations in terms of copying information (i.e. size of documents, costs of copying). These issues are magnified during the hearings, as material is continually submitted to the public registry, and participants are faced with tight deadlines.

Ideas for improvement included the following suggestions:

* the Commission should encourage a commitment to the notion of government on-line, an idea adopted recently by the Government of Canada;

* the Commission should provide guidelines about the form and content of all submissions to the public registry;

* in addition to hard copies, all submissions to the Commission should be provided electronically, in a pre-determined format;

* the public registry should be available at the hearings, housed in a separate room from the proceedings and with staff available to assist users;

* all exhibits submitted during the hearings should be included on the public registry;

* CEC hearing reports should be available in electronic format; and,

* the findings of the Commission and the licence granted should be posted together in the public registry.

Costly participation

Most respondents agreed there were significant costs for all stakeholders involved in hearings. Important dimensions of this issue related to providing participant funding, minimizing costs to proponents, and maintaining a timely and cost-effective process.

With regard to participant funding, respondents indicated that:

I have heard from people that they do not like some of the conditions of participating. For example, there is no participant funding.

It is also hard to participate for some if no resources are provided.

The value of some of these developments are in the multimillion dollars, and I think that a cost of doing business is some small percentage of that cost: intervenor funding. It is a cost of doing business. You can't have public participation processes for free.

A number of suggestions for improvements were made, and while the focus was participant funding other ideas were also provided. These included using video-conferencing, providing free on-site photocopying, using inexpensive meeting facilities for the hearings, ensuring submissions are within the scope of the hearings, retaining independent expertise, providing a firm schedule for presentations, and promoting greater public participation before the hearings stage.

The issue of participant funding was approached at two levels: supporting participants to attend hearings and supporting independent research. Ideas for improvements included the following:

* the Government of Manitoba should consider following the model used in the Canadian Environmental Assessment Act (CEAA) for the distribution of participant funding;

* the CEC should be responsible for distributing the funding, and for ensuring, as far as practicable, that there is no duplication in research efforts;

* there should be a funding cap based on a percentage of the total cost of the project being considered;

* cost recovery mechanisms and existing environmental and application fees should be considered as methods of financing participant funding; and,

* the CEC should decide who gets funding and how much, but it was noted that this should be contingent upon panelists having appropriate expertise and qualifications.

Inadequate pre-hearing activities

Echoing solutions pertaining to the range of participants, respondents underscored the importance of pre-hearing activities, including providing information about the CEC and the specific case being heard, making scoping decisions, establishing central questions of concern that must be addressed at the hearings, and having the ability to review materials. Respondents also agreed that establishing consistent pre-hearing activities would improve the process. Their ideas included the following:

* the CEC should become familiar with affected communities prior to the hearing;

* the issues to be discussed by proponents should be reviewed in order to shorten and improve their presentations at hearings;

* scoping of issues should be a mandatory pre-hearing activity, essentially a formal review of the EIS guidelines; and,

* pre-hearing activities could increase the time and cost of hearings for all participants, but in the end decisions will likely be more acceptable to all stakeholders.

Unanswered participant questions

There was widespread agreement that very little, if any, discussion occurs around the issues and concerns raised by hearing participants. For some, this lack of discussion was one of their strongest impressions of the CEC hearing process:

The impression that I was left with was that after all was said and done any of the items of real substance that were important and might cause impacts, and deserved to have some attention at the hearings really did not end up getting in.

The perspective the proponent takes is answer the question and don't do any more than that. So there is not much discussion.

Some attributed the lack of discussion to the fact that the issues raised were "outside of the purview of the CEC hearing," but there was also a concern that questions were often left unanswered. Only three respondents felt, without qualification, that answers were provided to the questions asked by participants, all of whom were proponents or their consultants. The majority of respondents felt that most questions were left unanswered, or that strategic responses were provided:

There were a number of issues for which there was no clear indication that they ever got addressed or that any further assessment work would be done.

Most often the answers are just not there during the hearing. As a participant it is very hard to call a witness.

There is not a resolution of issues. There is no in-depth discussion and resolution. You have to wait for the release of the decision document to see if you were heard.

The company would try to answer but the company was always very; very careful how to answer. So it wouldn't, how shall I put it, I don't want to use the word compromise its position, but put itself in what it might consider to be a position it didn't want to be in. So you've got a lot of strategic answers.

In response to these concerns, respondents recommended that the Commission hold pre-hearings into the scoping decision and to establish central questions of concern that deserve attention at the hearings:

Instead of engaging in an 'our experts versus your experts' type of debate, I would be interested to see how it could work if there were scoping meetings before the hearing, well before it, to agree on the terms and issues.

Further, it was suggested that various alternative dispute resolution techniques, such as mediation, should be used to allow a more complete discussion of issues: "More of a mediation model might work here. Allow discussion on issues and try to resolve them in the open." It was also noted that several ideas for improvement pertaining to pre-hearing activities, participant funding, panel qualifications, and CEC research could help address this issue.

Lack of transparency and monitoring of decisions

Concern was expressed by a majority of the respondents that the process that led to the commission's decision was not transparent:

From my observation I understand the process of getting information from the public. After that I would be using my imagination to describe the decision-making process.

There is a lot of vagueness about how the final decision was made. I was left uneasy about this.

I have no idea what the decision-making apparatus is for the final outcome and recommendations. There is no transparency in that process.

Some felt that the commission's report offered the only measure of transparency in this regard -- "Yes, sure. They go to a lot of trouble, a good deal of trouble to make sure that the report gets out to the people who appeared at the hearings"; "...there is only one report -- all the recommendations the CEC made are listed. I guess in that respect, it is fairly transparent..." Further, two respondents felt that the decision process was "of course not transparent" because it was an "internal process" and making the process "more public would not necessarily improve the decision document."

In terms of monitoring, respondents were also in general agreement there was no follow-up and monitoring of the implementation of the recommendations.

I don't think that all of the panel recommendations were implemented or enforced. This is one of my primary concerns.

And sometimes, like with Louisiana Pacific, it was sort of like the fox running the hen house. Louisiana Pacific was the one who was going to enforce it. But you have to have someone who is going to check on what they said they were going to do. And then it was always an issue. And manpower is an issue, as well as economics, the government stuff comes in too.

The department has a structure and is somewhat positive toward enforcement but resources have always been a problem. 150-200 licences awarded and there are 15/20 officers. Each licence is not monitored closely.

Potential solutions regarding transparency and monitoring included:

* the CEC should review the licence issued by Manitoba Conservation and report publicly on whether the licence is consistent with the Commission's report and recommendations;

* the Commission should also follow-up and report on implementation of the licence and whether the implementation is consistent with its report and recommendations;

* alternatively, an Environmental Auditor should be appointed to review implementation of CEC recommendations and other decisions under The Environment Act; and,

* the CEC should present its recommendations at public venues in communities where hearings were held, allowing the opportunity for interaction with affected publics and other stakeholders.

Unqualified panelists

Although respondents made positive remarks about specific panel members, they also provided numerous general, critical statements regarding the qualifications of panelists:

The other strong impression that I had is one that I think has also been corrected. That is, that the people who were on the CEC were incompetent to deal with the matter, and it was very obvious from the kinds of questions that they asked that they didn't know what was important and what wasn't important.

CEC appointments often don't have the capacity and background to understand issues, and they have shown this in some of their comments.

In fairness, I think that some of the panel members are as overwhelmed by the technical complexity of some of the issues that they are being asked to review, as are the general public.

Another notable critical theme, perhaps linked to the issue of qualifications, was that panel members were often inactive during hearings:

More often than not they seem to be there all night, but not really adding to the dialogue or making any particular contribution.

But there were one or two others that were really out of their depth, or were just sort of sitting there, and didn't contribute very much..

There has been a pattern in the past in terms of sets of hearings that I've been in, where there have been very, very few questions from the panelists.

It was certainly my experience that, for the most part, panel members were minimally involved in the process itself, or at least in the questioning. They mostly listened, made notes, and presumably asked for clarification on occasion. They were not actively involved in the questioning process as much.

Research participants offered the following ideas for improvement:

* CEC panels should have greater access to a wide assortment of professional expertise;

* the Commission should establish qualifications for panelists, and these should include the ability to apply good judgment and make balanced decisions, excellent listening skills, the capacity to grasp abstract and complex issues, the ability to consider and weigh diverse and conflicting values (e.g. social, economic, and environmental criteria), knowledge of cross cultural issues and the views of people in isolated communities, abilities to participate in hearings (i.e. ask a question and ensure that it is answered) and interact well with participants.

* panelists should be appointed through an all-party process;

* the Commission should consider following the model used for the appointment of panelists under CEAA; and,

* the Commission should provide training and education for panelists, particularly while hearings are not being held.

Lack of resources for technical assistance

An important prescription for change coming out of the interview process dealt with the provision of resources for technical assistance to the CEC.

I have participated in EPA hearings in the United States, and I think we can learn some things from what they do. The project was in North Dakota, and the body had the authority and the budget to bring in, on any issues that were clearly unresolved, independent, external expertise.

I'll just refer back to my earlier comments about having an ability for the panel to obtain professional opinions within which they could review the representations made to them. More so as a checkpoint, or to help them assess the validity of representations made to them, both by the proponent and by others.

Many saw this point linking directly with panel qualifications. The sentiment being that panel qualifications could be more flexible if the panel had access to expert assistance. Workshop participants agreed and suggested that there is a need, in some instances, for objective, balanced, peer-reviewed study of issues raised at CEC hearings. Procedures developed by the Manitoba Public Utilities Board and the National Energy Board were offered as models for ways to bring expertise to the table.

Reforming the process

Despite the numerous deficiencies identified, almost all research participants viewed CEC hearings as beneficial. Further, most participants spent a considerable amount of time in a genuine effort to identify ways the process could be improved. Building on these efforts, this section presents a series of recommendations for reforming Manitoba's EA hearings.

The civics approach

The recommendations were informed by the civics approach described by Gordon Nelson and colleagues at the University of Waterloo and elsewhere (Nelson, 1994, 1995; Nelson and Serafin, 1995, 1996; Needham, 1998; Lawrence and Nelson, 1999; Nelson, Butler, and Wall, 1999). The civics approach represents a holistic, human ecological orientation to interactions between social and natural systems. It shares features with Lee's (1993) civic science, which emphasizes adaptive management, bounded conflict and social learning. A further civics characteristic is reliance on transactive models of planning and decision making, centering on dialogue, cooperation and mutual learning (Friedmann, 1973, 1987). The civics approach is consistent with an emerging research agenda in sustainability science, which advocates transdisciplinary understanding of coupled socio-ecosystems, reconciliation of diverse social interests, and synthesis of competing epistemologies (Kates et al., 2001). For some, a civics-type approach is appropr iate for resource management problems characterized by high levels of uncertainty and conflict (Funtowicz and Ravetz, 1993; Cardinall and Day, 1998).

The civics approach comprises seven key interactive and iterative decision processes, focusing on the development of a comprehensive, yet selective, understanding of the "range of choices available for improving conservation and development activities' (Figure 1) (Nelson and Serafin, 1995: 8). "Understanding is made possible by: communication in its various forms; assessment activities of a regular or irregular type; strategic and other types of planning; implementation involving research and experiment; monitoring of different kinds of information; and, adapting" (Nelson and Serafin, 1995: 8).

Recommendations

Guided by the broad civics framework, the ensuing recommendations attempt to reorient Manitoba's EA hearings as pluralist forums of social learning for sustainable development. The recommendations are organized around the decision-making processes noted in Figure 1. Some of the recommendations require legislative changes, and are directed to the Government of Manitoba. Others require changes to CEC policies and procedures, and are directed to the Clean Environment Commission.

With respect to communicating, the CEC should improve the information resources available to hearings participants, starting with developing guidelines for the form and content of all submissions to the public registry. In addition, the Commission should hear from as many key publics as possible to ensure the best information is available before its recommendations are made. In this regard, it should be more proactive in encouraging participation by advertising hearings through innovative means in local media, including television and radio. To facilitate robust information exchange and sharing of diverse points of view, hearings should be held not only near affected communities but also in the City of Winnipeg (home to 70% of Manitoba's population). Further, the Government of Manitoba should make greater use of the participant funding provisions of its EA legislation. As well, it should amend the legislation to allow for the administration of funding programs by the CEC, and to allow for funding awards in tw o main areas: (i) facilitating participation (e.g. covering the cost of travel) and (ii) funding research by participants as sanctioned by the CEC panel.

These participant funding suggestions are also relevant to assessing information. Credible research by intervenors can help assess information submitted by project proponents and government agencies. On a related note, the CEC should lobby or negotiate with government for clarification of the special investigations provisions of The Environment Act to provide for the resources needed for panels to undertake independent research on an as needed basis either before or during a hearing. To further enhance capacity for systematic assessment, the government should avert patronage appointments by amending The Environment Act to require panel appointments be made on the advice of an all-party legislative committee. Appointments should not be limited to technical experts, and should consider the criteria or qualifications suggested by the research participants, as noted in the discussion above.

Process deficiencies pertaining to planning are related to timing and mechanisms of public involvement. To help address concerns that decisions were foregone conclusions, the CEC should engage in pre-hearing activities, including community meetings on the scope of upcoming hearings and the central questions to be addressed. The Commission should also increase opportunities for informal, deliberative discussion of issues to ensure that adequate attention has been given to resolution of those issues. This could include using alternative dispute resolution during the course of a hearing. Still regarding the foregone conclusion sentiment, Manitoba should amend The Environment Act by removing the provision permitting staged assessments, or should not convene hearings when such assessments are done. Staging an assessment involves dividing a proposal into stages (e.g. preconstruction, construction, operation) and conducting assessments of each stage rather than conducting a comprehensive assessment of the entire pro posal. Finally, to provide greater certainty to planners, the CEC should strike a working group to provide further clarification on the issue of when hearings should be triggered. The current legislation is vague and leaves considerable discretion in the hands of the provincial environment ministry's Director of Approvals.

By way of implementing and monitoring, CEC staff should play a more active role in monitoring proponent consultations leading to a hearing. Further, the results should be reported to the hearing panel, and should be included in the public record. Following a hearing, the Commission should increase its accountability by presenting its findings in a public forum, and justifying its recommendations both orally and in a detailed written report. In its final reports, the CEC should address the provincial principles and guidelines in The Sustainable Development Act, providing justification for recommendations that are contrary to the legislation. In addition, the Commission should monitor the implementation of their recommendations by government departments and proponents, and report on these to the public. This should be formalized through appointment of an environmental or sustainable development auditor to oversee, and report publicly on, the implementation and monitoring of licences given under The Environment Act.

Adapting was also an important theme in the results. Research participants suggested that the hearings process needed to be more flexible and open to respond adeptly to change, and to encourage broader participation. They also indicated that CEC hearings panels were, for the most part, willing to listen to alternative perspectives but were not necessarily open to considering those perspectives. Several of the recommendations already noted would enhance the CEC's adaptive capacity. For example, community-based, pre-hearing activities would highlight local issues, and improve the Commission's ability to respond to local needs. The same can be said for informal, deliberative hearing procedures. As well, the authority and capability to take on independent research could increase the Commission's capacity to adapt to emerging concerns or issues.

Finally, in addition to most of the foregoing recommendations, taking steps to strengthen the overall mandate of the CEC would improve understanding. Manitoba should amend The Environment Act to require proponents to consider project purpose, need and alternatives. This would clarify, at least partly, the scope of the issues that are open for discussion at public hearings. The government should also clarify the role of the CEC in fulfilling the Crown's fiduciary and treaty obligations to Aboriginal peoples.

Conclusions

The research participants identified a range of strengths and weaknesses of Manitoba's EA hearings process, and suggested numerous improvements. Building on these results, we offered a series of recommendations for reorienting the process toward a civics approach. The recommendations included specific conceptual and methodological tools for transforming hearings from an analytical to an interpretive, adaptive assessment process. They also included suggestions encouraging earlier public involvement, higher degrees of participation, mutual learning through deliberative discussion of key issues, greater collaborative resolution of conflicting interests, and greater sensitivity to alternative perspectives.

While it may be problematic to recast quasi-judicial hearings in a civics framework, the research participants saw value in doing so. This could be reflective of experiences with the more inclusive, less top-down styles of decision making being attempted in various fields of resource and environmental management (Mitchell, 2002). It could also be a manifestation of a broader increase in public reliance on civil society in matters of community governance. Some of the participants' suggestions are indicative of this, such as the call for the CEC to participate in "community-owned" events.

A challenge in reforming hearings in a civics mold is finding mechanisms for protecting legal rights, particularly for participants whose interests conflict with those of proponents and government. Since protection of rights is a strength of the quasi-judicial approach, practical civics models must offer a similar level of protection. Reliance on the growing theory and practice of alternative dispute resolution holds promise in this regard. Another challenge is to manage the transaction costs associated with promoting and implementing a civics approach (Mitchell, 1998). Financial and human resources are likely required to prepare citizens to deal with the rigorous demands of participating in ongoing decision making. As well, significant public investments are likely needed to offset time constraints preventing more extensive citizen participation in community governance (Nelson and Serafin, 1995). A further challenge lies in managing the organizational change required for a transition from a quasi-judicial to a civics approach. In addition to transaction costs, the change agents need to consider the level of trust among their key publics, the degree of behavioural conflict among the publics, and the amount of public interest in the entire issue (White, 2001).

In spite of these challenges, grounding hearings in civics ideas could help ensure that EA remains a viable tool for social change toward a sustainable future. Equity, empowerment and participation, which are implicit in the civics framework and its key decision processes, are central to leading conceptions of sustainable development. Further, a civics approach, with its emphasis on ongoing involvement and mutual learning, could result in more socially and environmentally aware EA decisions and greater community satisfaction with those decisions.

Table 1: Provincial hearings examined in the study

Pembina Valley Regional Water Supply Proposal (1994)

Louisiana-Pacific Corporation Oriented Strand Board Plant (1994)

Browning Ferris Industries Integrated Waste Management Facility (1995)

Asessippi Ski Hill Project (1995)

Solid Waste Management -- Capital Region (1995)

Louisiana-Pacific Canada Ltd. Ten Year Forest Management Plan (1996)

Tolko Manitoba Inc. Forest Management Plan (1997)

Table 2: Key process deficiencies identified by research participants

Weak and unclear mandate

Decisions were foregone conclusions

Inadequate range of participants

Incomplete and inaccessible public registry

Costly participation

Inadequate pre-hearing activities

Unanswered participant questions

Lack of transparency and monitoring of decisions

Unqualified panelists

Lack of resources for technical assistance

Acknowledgements

The authors would like to acknowledge the financial support of the Manitoba Clean Environment Commission and the Social Sciences and Humanities Research Council of Canada.

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Author Biography

A. John Sinclair, PhD, is an Associate Professor in the Natural Resources Institute at the University of Manitoba, in Winnipeg, Manitoba. His research interests focus on community involvement in resource and environmental decision-making. He can be reached at jsincla@ms.umanitoba.ca.

Alan Diduck, PhD, is Assistant Professor and Director of Environmental Studies at the University of Winnipeg, in Winnipeg, Manitoba. His research interests relate to linkages between institutions and resource systems, particularly the dynamics of such interactions, such as social learning and socio-political empowerment. He can be reached at A.Diduck@uwinnipeg.ca.

Patricia Fitzpatrick is a recent graduate of the masters program in the Natural Resources Institute at the University of Manitoba, in Winnipeg, Manitoba. She is currently pursuing her PhD at the University of Waterloo, Waterloo, Ontario. Her research focuses on the application of adult educational theory to the design and implementation of public engagement programs. She can be reached at fitzpatrickpj@hotmail.com.