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
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
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
In addition, the panel warned participants that it will not
listen to wide ranging evidence about the cumulative impacts of the
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
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