Canada: Modernizing Hearings – Facilitating Public Engagement In Decision Making

Last Updated: May 17 2017
Article by David Stevens

On May 9, 2017, a panel titled "Modernizing Hearings – Facilitating Public Engagement in Decision Making" was presented at the 2017 CAMPUT Conference. The question discussed by the panel was how to address changes in public expectations in the face of important issues such as climate change, local impact of energy projects and rights of Indigenous peoples. The panelists spoke to their personal experience around the issues raised by this question.

As a preliminary item, the moderator of the panel (Michael Cleland of the Positive Energy Program at the University of Ottawa) noted that current regulatory and policy approaches are not well-aligned with meeting emerging new challenges. Confusion arises because it's not always clear who should make decisions about energy issues – there are local and higher-level impacts and many levels of authority (local, provincial and federal) want to be involved. Beyond these issues, there is also the question of how to make decisions – determining what level of engagement and information required is key. The fundamental concern is that the decisions are not accepted as legitimate when the perception is that they are made without adequate information and consultation, and where they do not line up with existing policy (often because it does not exist).

Peter Watson, the Chair and CEO of the National Energy Board (NEB), focused on the challenges with facilitating public participation in decision-making processes, with reference to recent experience at the NEB. He began by noting the immense level of public interest in large-scale long-lasting pipeline projects, including local, environmental and Indigenous groups. There is much more demand for involvement in hearing processes than in the past. To address this, the NEB has sought to innovate and add to past processes, including through allowing Indigenous peoples to share traditional knowledge, expanding the public comment process and allowing "automatic standing" to some groups. This is meant to expand opportunities for people who have previously found it challenging to participate in hearing processes. With this evolution though, the NEB has also heard that interested parties want to be involved earlier in the processes (at the planning stage for projects) and in the long-term monitoring and oversight of the completed projects. As explained, members of the public want to be engaged in decision-making and working collaboratively with proponents and the regulator to make sure that their interests are understood and respected at every stage of the project, from design and approval to operation. Mr. Watson noted that making fundamental changes to the way that decision-making processes are conducted requires changes in the systems used by the NEB. He then highlighted that this is a question of government policy and direction. To that end, Mr. Watson underlined the importance of having the government reaffirm the role and importance of the NEB in making decisions that take issues such as climate change and rights of Indigenous peoples into account. Where the government provides "transparent policy direction," then the public can have faith and confidence in the decisions the NEB makes in response. As a key point, Mr. Watson highlighted that the reviews that are currently underway to "modernize" the NEB (described in earlier posts here and here) are "critical" to enhancing and reinforcing public confidence in the work and decisions of the NEB.

Rob Powelson, the Chair of the National Association of Regulatory Utility Commissioners (NARUC) in the United States, spoke about transparency in the public hearing process in the United States. He noted that poorly-defined mandates and conflicting goals for regulators leave their decisions under attack by the public, the government and even the courts, and that this is an issue in both the United States and Canada. This issue contributes to more combative hearing processes and ever-increasing expectations from the public. One way that this can be ameliorated is through better and more frequent communications with customers, both from utilities and regulators, as customers want real-time information. Another key is to find broader ways to solicit and consider public input in ways that are more accessible, such as teleconference attendances for members of the public, streaming public processes online and (as is the case for the NEB) hearings in affected communities.

Paul Cassidy, an environmental lawyer based in Vancouver, spoke about his experience acting on behalf of project proponents seeking regulatory approvals. The context for his comments was to respond to the growing expectations of a wide range of groups to be able to participate in project approval processes. Mr. Cassidy spoke about his experience with very long hearings, and the way that they can become unwieldy and expensive. He sounded a note of caution for those who wish to expand the opportunities and scope of public participation in future processes – where such participation is unfettered, the hearing process can become unmanageable. Mr. Cassidy then looked at the question of "who decides" on a project approval. There is great debate about whether it is necessary to obtain "social licence" from local affected groups and, if so, whether there should be local approval for projects in addition to high-level approval from federal and provincial regulators. In Mr. Cassidy's view, requiring additional permissions beyond the legally-mandated project approval from the federal (or provincial) regulator may violate the rule of law (and certainly imposes uncertainty). That is not to say that local concerns should be ignored, only that the local communities ought not to be seen to have a veto by withholding "social licence."

The panel finished by addressing questions from CAMPUT delegates. A key message was that there is a need for "informed reform" to the regulatory system in order to enhance public confidence and participation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Stevens
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.