The Liberal Platform promises to renew the Environmental Assessment Process. The old one is broken, but not just because Stephen Harper gutted it. The EAP was in trouble long before that and if the Trudeau government is going to fix it, they need to be clear on the problem.
The EAP is a typical consultation process. The government names a panel of experts, who hold hearings on a proposed project and invite stakeholders and citizens to come and make their case.
The Harper government tried to reign in EAP hearings by keeping them narrowly focused, ideally on technical questions. That way, thorny issues around sustainable development wouldn’t get raised.
Indeed, Harper went so far as to remove the preamble from the Environmental Assessment Act, which explained that the point of the hearings was to promote sustainable development.
Natural Resources Minister Jim Carr’s mandate letter tasks him with rebuilding the EAP. In particular, he is instructed to make decisions more evidence-based, and participation more meaningful for communities, Indigenous Peoples and stakeholders.
It’s a welcome reversal from the Harper years and focuses attention back where it belongs: on making development sustainable.
However, it also raises issues of a different sort. Big projects like a pipeline affect communities and people in all kinds of ways, as a glance at this list shows:
- Engineering issues: Can the pipeline withstand a large earthquake?
- Security issues: How vulnerable is it to terrorist attacks?
- Environmental impact: How much harm would a spill cause to wildlife or vegetation?
- Economic benefits/losses: How many jobs will be created and how much damage might be done to tourism?
- Health risks: Will any damage be done to local water supplies in the event of a spill?
- Social change: How might the pipeline change the lifestyle in communities along its path?
- Cultural impact: What is the loss to First Nation communities whose way of life goes back thousands of years?
- Aesthetic value: What will compensate for the loss of pristine wilderness?
These issues range from highly technical matters to aesthetic values. As a result, panelists will often find themselves weighing competing interests of very different kinds—effectively, apples and oranges.
As the list of issues grows, so will the trade-offs between them. This, in turn, will make it increasingly difficult to follow the rationale behind the trade-offs.
At some point, the choices can start looking arbitrary or even irrational, leaving the impression that the panel’s conclusions have no clear connection to the consultation stage of the process—or worse, that they were decided long before and the process was a sham.
This scenario is already playing out in consultation processes around the world, and in policy fields from security to health. As a result, conventional consultations are suffering a serious loss of credibility. They leave people feeling that participation is meaningless, rather than meaningful.
The Trudeau government appears ready to take a stand on the EAP. But can it turn the process into a model of democratic participation?
The first thing to see is that, despite what some say, the main problem is not transparency. At some point, the thread of decisions gets so long and complicated that the minister can no longer explain how a decision came about. Making the process more transparent, say, by publishing transcripts of all the meetings, won’t solve this.
At bottom, this is about trust. Participants no longer see a clear link between the consultation phase and the panel’s deliberations and they lose faith in the process.
If Carr really wants to make consultation meaningful again, this link must be rebuilt; and there is only one way to do that. This elite panel of experts must be transformed into an advisory body that is inclusive and deliberative.
To say this body is “inclusive” means the membership must reasonably reflect the interests at stake in the project, including affected communities and key stakeholders.
When this body sits down to deliberate, participants need to know that their views will still be on the table and treated fairly. This, in turn, means people with similar interests and perspectives must be involved in making the trade-offs. Nor need this body be unwieldy. Fifteen to 25 members is usually enough.
To say this body is “deliberative” means that these discussions would be facilitated and required to follow clear rules, including protocols for weighing evidence.
Some people will be sceptical, insisting that these deliberations would quickly reach an impasse, as stakeholders refused to compromise with each other. In fact, this rarely happens and there are lots of ways to promote compromise.
For example, there can be a rule that if the group fails to reach agreement, the government will step in and decide. This makes people far more reasonable and flexible because they usually prefer to have some say on an issue rather than none. Where government has to step in, the rule lends legitimacy to the choices it is now forced to make.
For the most part, however, decisions on trade-offs are usually voted on and resolved. Members will sometimes disagree with the decisions, but this rarely leads to an impasse. They usually agree with enough of the decisions that they are willing to stick with the process and to sign off on the set of recommendations as a whole.
Having all the members sign off is critical. It sends a signal that, while no one may have got everything they wanted, on balance, everyone got enough that they felt the process was fair. This serves as public declaration of the members’ confidence in the process, which, in turn, goes a long way to restoring the participants’ belief that their participation was meaningful.
Final decisions, of course, will be made by the government, but processes like these usually carry enough legitimacy and a balanced enough set of decisions that governments are inclined to heed the advice. Where they don’t, the differences are usually clear enough that the government can, and should, provide its reasons.
In the end, no process is perfect, but the good news is that there are effective ways to improve legitimacy and trust and to make people feel that participation is meaningful.
If this is what Carr wants to achieve with the EAP, he should start by experimenting with some version of this model.
Dr. Don Lenihan is Senior Associate, Policy and Engagement, at Canada 2020, Canada’s leading, independent progressive think-tank. Don is an internationally recognized expert on democracy and Open Government. He is currently the Government of Ontario’s principal advisor on its Open Dialogue Initiative. The views expressed here are those of the columnist alone. Don can be reached at:Don.Lenihan@Canada2020.ca or follow him on Twitter at: @DonLenihan