the environmental petitions process - enhancing environmental governance through transparency,...

7/29/2019 The Environmental Petitions Process - Enhancing environmental governance through transparency, public participa

1/68

The Environmental Petitions Process:

Enhancing environmental governance through

transparency, public participation and accountability

Liohn Sherer

Office of the Auditor General,

Commissioner of the Environment and Sustainable Development

September 23, 2011

Word Count: 13,000

Abstract: Measuring the effectiveness of sustainable development policies and programs

is a challenge for governments worldwide. The aim of this paper is to contribute to the

measurement of Canadian efforts to achieve sustainable development by evaluating the

Environmental Petitions Process (EPP). The EPP allows Canadian citizens to submitquestions and requests regarding the environment and sustainable development to the

Federal Government. The evaluation is based on three pillars of effective environmentalgovernance: transparency, public participation, and accountability. Definitions of theconcepts are developed with reference to the environmental governance literature, and

their complex interrelationships are explored. The EPP contributes to transparency by

providing the public with a mechanism to access a wide variety of information aboutdecision-making rationales, processes and impacts. The public can use the Process to

directly influence decisions and to feed information into the decision-making systems of

both Government and Parliament. Finally, the Process gives both Parliamentarians and

citizens the information they need to hold the Government accountable, and gives citizensa mechanism for doing so by requiring Ministers to respond to the publics questions.

Despite the effective design and strong potential, the Process effectiveness is dependent

on the participation of the public. Few petitions are received (the number peaked at 47 in2008) and participation is declining (only 19 were received in 2010). As such, the valueof the Process outputs is questionable at best. Further research is recommended to

measure the extent of its contribution to sustainable development in Canada.


2/68


3/68

Contents

1. INTRODUCTION ................................................................................................................ 1

2. BACKGROUND ................................................................................................................... 2

3. THREE PILLARS OF ENVIRONMENTAL GOVERNANCE ....................................... 6

3.1. TRANSPARENCY ............................................................................................................. 7

3.2. PUBLIC PARTICIPATION ................................................................................................... 93.3. ACCOUNTABILITY ........................................................................................................ 10

4. EVALUATING THE ENVIRONMENTAL PETITIONS PROCESS ............................ 13

4.1. TRANSPARENCY ........................................................................................................... 134.2. PUBLIC PARTICIPATION ................................................................................................. 16

4.3. ACCOUNTABILITY ........................................................................................................ 19

5. CONCLUSIONS ................................................................................................................. 22

6. RECOMMENDATIONS FOR FURTHER RESEARCH ............................................... 24

A. DESCRIPTION OF INTERNSHIP ................................................................................ A-1

B. HOUSING DEVELOPMENT NEAR MISSION, BRITISH COLUMBIA ................. A-3

C. FOLLOW-UP PETITION ON A HOUSING DEVELOPMENT NEAR MISSION,

BRITISH COLUMBIA ............................................................................................................. A-8

D. FOLLOW-UP PETITION ON A HOUSING DEVELOPMENT NEAR MISSION,

BRITISH COLUMBIA ........................................................................................................... A-12

E. FOLLOW-UP PETITION ON THE SILVERMERE HOUSING DEVELOPMENT IN

MISSION, BRITISH COLUMBIA ........................................................................................ A-18

F. FOLLOW-UP PETITION ON A HOUSING DEVELOPMENT NEAR MISSION,BRITISH COLUMBIA ........................................................................................................... A-26

G. BIBLIOGRAPHY ........................................................................................................... A-31


4/68


5/68

Liohn Sherer Environmental Petitions Process

1 of 26

1. IntroductionIncreased study in recent years of the policies needed to move towards sustainabledevelopment has shed new light on the shortcomings of national and international

attempts to achieve it. These shortcomings include unaccountability of officials, lack of

transparency, limited opportunities for participation and dissatisfaction with performance(Markell, 2006, p. 653). The result has been a growing emphasis on governance as a

critical underpinning of policy success generally and environmental progress more

specifically (Esty et al., 2005, p. 28). The concept of governance has come to refer tothe totality of mechanisms and instruments available for influencing social change in

preordained directions (Lafferty, 2004, p. 5). Once the available mechanisms and

instruments are identified and implemented, the challenge becomes how to measure theirprogress and effectiveness. The aim of this paper is to contribute to the measurement of

the success of Canadas efforts to achieve sustainable development by evaluating one of

Canadas mechanisms for doing so, the Environmental Petitions Process (EPP).

In their 1993 campaign platform, the Liberal party of Canada promised to strive to meet

the vision of the 1987 Brundtland report (Liberal Party, 1993, p. 64).

The proposedmeasures included a mechanism that would allow individuals to submit petitions

requesting action when environmental policies or laws were being ignored or violated. In

1995, amendments to the Auditor General Act laid out the guidelines for theEnvironmental Petitions Process, establishing the Commissioner of the Environment and

Sustainable Development (CESD), responsible for providing sustainable development

monitoring and reporting, and the Environmental Petitions Process as one of his tools

(Canada, 2010). Through the EPP, citizens can direct questions or requests for action tofederal departments and agencies with environmental portfolios, and these departments

and agencies are obligated to respond.

One response to the question of how to achieve sustainable development has been

recognition at the international level of three prerequisites for effective environmentalgovernance. Principle 10 of the Rio Declaration on Environment and Development set

out three requirements for effectively addressing environmental issues: Access to

information, the opportunity to participate, and access to redress and remedy (UN, 1992).The Aarhus Convention, the primary affirmation of which is to protect the state of the

environment and ensure sustainable development (UNECE, 1998, p. 2), emphasizes

transparency, public participation, and accountability (Stec & Casey-Lefkowitz, 2000, p.

1 par. 3). The objective of this report is to develop clear definitions of the three pillars transparency, public participation, and accountabilityand to evaluate how the EPP can

contribute to sustainable development in Canada by enhancing them. In doing so, this

report will identify measurable outcomes of the Process, which can be used in the future

to assess its progress and effectiveness.

Canada is not immune to the indictments of democratic institutions mentioned above. It

has been accused of having a deeply entrenched culture of secrecy and of favouring

bureaucratic control over public participation (AIRTF, 2002; Warriner, 1997, p. 176). The

EPP, despite its potential to address such accusations, has faded into obscurity in theyears since its creation. Though the CESD submits annual status reports on the Process, it

has never been the subject of independent review, and no significant changes have been


6/68


2 of 26

made since its original implementation. It has gone essentially unnoticed by the academic

and professional communities, and reviews of the environmental and governance

literature return only a few brief and fleeting mentions of the CESD and the EPP. TheEPPs absence from the critical study of environmental governance in Canada is a

significant omission, one that must be remedied if the Process is to remain relevant and

effective, and if Canada is to continue to progress towards sustainable development.This paper begins by providing a background and overview of the EPP and the CESD inSection 2. Section 3 develops the lens through which the EPP is evaluated in Section 4.

Finally, Section 5 offers conclusions and recommendations for further research and

analysis.

2. BackgroundWith the 1987 publication of the Brundtland Report Our Common Future, sustainable

development was launched onto the world stage (World Commission on Environment and

Sustainable Development, 1987). At the same time that the Brundtland Commission waspublishing its report, CanadasNational Task Force on the Environment and the Economy

was publishing a report calling on Canadian government, industry, academics and NGOsto develop information-generation systems, public involvement processes and formalmechanisms for holding Ministers and departments accountable for environmentally-

sound development (National Task Force on the Environment and the Economy, 1987,

pp. 5, 8). These recommendations were eventually adopted by the Government inamendments to theAuditor General Actin 1995.

The primary products of the Office of the Auditor General of Canada (OAG) are audits:

performance, annual, and special examinations (OAG, 2004, p. 89).1

The OAG defines a

performance audit as a systematic examination of government activities that provides

Parliament with information and recommendations designed to promote accountable

government, good governance, and sustainable development (OAG, 2004, p. 13). Anaudits scope includes the examination of economy, efficiency, cost effectiveness and

environmental effects of government activities. Audit reports are made public ensuringthat citizens have access to the information and the recommendations provided to

Parliament.

The 1995 amendments established the Commissioner of the Environment and Sustainable

Development (CESD) in the OAG, and within his mandate the Environmental PetitionsProcess (EPP). The goal was to increase government legitimacy and support a turn

towards sustainable development by enhancing transparency, public participation, and

accountability. The CESD is one of the first such offices in the world, and has beenreferred to as Canadas comparative advantage in the early twenty-first-century

experiments with institutional change (Toner & Frey, 2004, pp. 214-215).

1The Office of the Auditor General of Canada has one business line legislative auditingand six

product lines: annual audit of the summary financial statements of the Government of Canada; annual

audits of Crown corporations and other entities (federal, territorial, and international); special examinations

of Crown corporations; performance audits of departments and agencies; environment and sustainable

development monitoring activities; and assessments of agency performance reports. (OAG, 2004, p. 9)


7/68


3 of 26

Canadas Access to Information Act (ATIA) was enacted in 1983, more than 10 years

before the EPP, ostensibly to enhance government transparency. Freedom of information

laws are a common response to transparency needs, and as of 2006 had beenimplemented in nearly 70 countries worldwide (more than half of those in the preceding

decade) (Banisar, 2006, p. 6). Two significant distinctions explain why the petitions

process was established despite, or to complement, ATIA. First, ATIA makes accessibleonly documented information such as letters, memos, e-mails, photographs and maps. Asopposed to countries such as New Zealand and Denmark, unrecorded information

telephone calls, oral conversations, or the contents of meetings is not covered. Second,

to be truly transparent, decisions must include all the potentially relevant information thatwas taken into account in making them, in such a way that others are able to reconstruct

the decision processes and intended outcomes (Drew & Nyerges, 2004, p. 34). If such

information exists, then ATIA ensures its accessibility. Unfortunately, such information is

difficult to compile, time consuming to maintain, and is unlikely to exist for the majorityof government decisions. The EPP fills these gaps, as will be seen in section 4.1.

The position of Commissioner of the Environment and Sustainable Development was

created in 1995 following the recommendations of the First Report of The StandingCommittee on Environment and Sustainable Development (1994). In response to thisreport, the government made commitments to openness, transparency and leadership in

the pursuit of sustainable development (Minister of the Environment, 1994, p. 4). The

Commissioner is responsible for a range of activities related to providing parliament withinformation, analysis and recommendations on the governments efforts to protect the

environment and move towards sustainable development (CESD, 2008). These activities

include auditing the environmental performance of federal departments, agencies, and

crown corporations; assessing the federal governments sustainable development strategyand whether federal departments are meeting their sustainable development objectives;

managing the environmental petitions process; and reporting on Canadas progress

towards meeting its obligations under the Kyoto Protocol.

The environmental petitions process is intended to be a way for Canadians to bring theirconcerns about environmental issues to the attention of the federal government (CESD,

2008, p. 5).It is managed by the Commissioner of the Environment and Sustainable

Development, who reports annually to Parliament on the number, nature, and status ofpetitions, and on departmental compliance with the statutory requirements. Petitions may

also become the subject of audits undertaken either by the CESD or other teams in the

Office of the Auditor General.

Environmental petitions are unlike other public petitions in that they do not need to havea minimum number of signatures, nor do they need to demand action. In fact, petitions

are essentially no more than a letter addressed to the CESD. They can be sent by anindividual or a group and can request a wide variety of responses, including:

Investigations into alleged violations of federal laws or regulations; Action on matters of federal environmental management; Explanations of federal policy or involvement in particular issues; Reviews and improvements of federal laws; Responses to comments or suggestions;


8/68


4 of 26

Explanations of actions in response to public commitments; Information on efforts to reduce environmental impacts of operations; or Outlines of how international commitments are being met (CESD, 2008, p. 7).

The Commissioner does not respond to petitions or validate, investigate, or substantiatethe responses from Ministers. In managing the process, the Commissioner reviews

petitions to ensure they are eligible, determines the relevant Ministers and forwards thepetitions, and monitors the status of responses. Petitioners can identify explicitly the

Ministers to which they would like their questions forwarded, but can also leave the letter

open-ended and allow the CESD to forward questions to any and all relevant Ministries.

The requirements for a petition to be considered admissible are minimal:

They must be received in writing; They must be sent from a resident of Canada; and They must relate to an environmental matter in the context of sustainable

development under the responsibility of a category I department.

2

Ministers are required to acknowledge receipt of the petition within 15 days and provide

a response within 120 days.

Once a year, the Commissioner provides Parliament with a summary of the petitionsreceived and tables the petitions. The Commissioner also maintains an online registry of

all petitions and responses received.3

Since the process was established in 1996, more

than 350 petitions have been received (see Figure 2).

The CESD can, and does, use petitions to inform the choice of entities to audit, case

studies to examine, and criteria to assess. For instance, between 2007 and 2010 theCommissioner received twenty petitions associated with the use of science in decision-

making,4

resulting in an audit of science-informed decision making to supportenvironmental management planned for late 2011. In many cases, responses to petitionsaddress the questions raised and satisfy the petitioners expectations (CESD, 2007, p. 78).

In some cases, however, the issues raised warrant further investigation, and in these cases

the CESD has the tools and powers necessary to delve deeper, seek answers, and makethe results public.

Because petitions are often submitted not by experts but by average citizens concerned

with a local issue, clarityof context, information, and requestswas a significant issue

for many years. Unclear questions prevented ministers from responding in ways thatsatisfied petitioners. To address this issue, the CESD published a guide to writing

petitions in 2008, which included advice, suggestions, and a standard template to follow.

In that guide, the CESD also recognized that petitioners may find it difficult to identifythe departments or agencies responsible for the issue in question. In those cases, the

2 There are 28 category I departments as defined in Section 2 of theAct. A list of federal departments and

agencies subject to the environmental petitions process can be found in (CESD, 2008, p. 6).3 The petitions Catalogue can be accessed at http://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html4 Petitions no. 100b, 192, 194, 200, 203, 215, 220, 221e, 224, 238, 259, 262, 283, 290, 291, 292, 294, 297,

298, and 300. The petitions catalog can be found athttp://www.oag-

bvg.gc.ca/internet/English/pet_fs_e_929.html
http://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html


9/68


5 of 26

CESD advised that petitioners use wording that would allow the Commissioner to

forward the petition to additional departments or agencies. Petitioners are also advised to

anticipate likely responses from ministers and to include follow-up questions, to avoidthe necessity of submitting follow-up petitions and extending even more the timeframe

for receiving the responses they want. The guide discourages petitioners from phrasing

questions in a manner that can be answered with a simple yes or no, as those types ofresponses are both easier for the ministers to offer and unlikely to satisfy the petitioner.Other outreach attempts to raise awareness of the EPP have included a video posted on

YouTube.5

To better demonstrate the characteristics of a petition and responses, consider the

following example. The petitions and responses are included in the Appendix. In 2003,the Genstar Development Company proposed to develop 100 single family residences on

Silvermere Island, B.C., and the adjacent peninsula (Bertelsen, 2003). The island was part

of an ecosystem that hosted an annual salmon run and spawning ground and was home to

a number of endangered species and species at risk. In July 2004, an area residentsubmitted a petition claiming that the proposed development would cause significant

damage to the ecosystem. The majority of the petitions two pages consisted ofbackground information. It included no specific questions, but rather the statement thatthe petitioner believed a statutory review/Canadian Environment Assessment Actreview

is required before any further environmental damage is done (Lyster, Housing

development near Mission, British Columbia: No. 122A, 2004). The joint response fromthe Minister of the Environment and the Minister of Fisheries and Oceans did not address

the majority of the petitioners concerns (environmental degradation, loss of biodiversity,

threats to fish habitat), but focused instead on the statutory requirements for

environmental assessments and how, in the case, none of those requirements had beentriggered (Dion, 2004). In the ensuing years, the petitioner has submitted four follow-up

petitions.

The second petition was one page long, and similarly did not contain explicit questions.

The Department of Fisheries and Oceans (DFO) response to the second petition,submitted in January 2005, noted that DFO had in fact objected to a proposal by the

proponent to conduct a large scale drawdown of the Silvermere Lake:

With respect to the large scale drawdown, it was DFOs assessment that theEnvironmental Management Plan did not provide sufficient information to ensure aclear understanding of the extent of the works and potential impacts to fisheriesresources in Silvermere Lake, and the Stave River watershed. The proponent wasrequested to submit further detail regarding project design and mitigation. (Regan,

2005)

The response also noted that while no requirement for a federal EIA had been triggered,the Department would complete the appropriate reviews if and when they became

necessary.

The third petition was submitted in February 2006, again without explicit questions andfocusing on the necessity of an EIA, to which the Ministers responded that the proponent

5http://www.youtube.com/watch?v=rqqo4AO4WZE
http://www.youtube.com/watch?v=rqqo4AO4WZEhttp://www.youtube.com/watch?v=rqqo4AO4WZEhttp://www.youtube.com/watch?v=rqqo4AO4WZEhttp://www.youtube.com/watch?v=rqqo4AO4WZE


10/68


6 of 26

was in the process of preparing an environmental assessment (Lyster, Ambrose, Hearn, &

Cannon, 2006).

The fourth and fifth petitions were submitted in March 2007 and August 2010,

respectively. Each contained explicit questions directed at specific Ministries, addressinga variety of concerns including EIAs, wildlife impacts, and environmental degradation.

The response to the fourth petition was detailed and addressed each question individually.At the time of writing, the response to the fifth petition had not yet been published to theonline catalogue.

This example parallels the evolution of the petitions process. Between 2003 and 2010,

petitions progressed from short letters expressing concern with an activity to include

detailed background information, clear statements of concern, and explicit questionsrequesting detailed responses and actions. However, it also shows the frustration that can

be experienced by petitioners. Six years later, the petitioners questions and concerns

have still not been satisfied, the proponent continues to develop the proposal, and the

alleged environmental degradation persists.

The 2005 study Benchmarking National Environmental Stewardship used anenvironmental sustainability index based on 21 indicators. Of the 21 indicators,

environmental governance correlated most strongly to the 76 underlying variables,

suggesting that countries that pay the most attention to environmental policy are morelikely to produce successful environmental outcomes. The study ranked Canada 24

thout

of 146 in environmental governance, and made no mention of the Environmental

Petitions Process (Esty et al., 2005, p. 371).

One reason the process goes unnoticed by the international community may be that thereare no other mechanisms to which it can be directly compared. The United States has no

environmental commissioner or ombudsman and no formal process for the public to

provide input into or request information about environmental matters. Nor are

comparable petitions processes or environmental ombudsmen identified in Scandinavia,often seen as a bastion of environmental progress. The response from a Swedish contact

is telling, noting that the closest comparison to the EPP in that country is a well-

entrenched culture of transparency and strong access to information legislation. Petitionscommittees exist in many Parliamentary democracies, though none that are dedicated

solely to environmental matters or are as well defined as the Canadian example.

Environmental commissioners exist in Ontario and New Zealand, but there are significant

differences with these institutions as well. Many of these comparable, though different,mechanisms will be presented in the following sections as examples, or to provide a

contrast or frame of reference for the EPP.

3. Three Pillars of Environmental GovernanceThis section provides the lens through which the EPP will be evaluated in Section 4. It

does so by defining the concepts of transparency, accountability, and public participation

in reference to the environmental governance literature, as well as other literatures relatedto sustainable development and environmental policy. The concepts consistently reappear

across the literature in different forms and different contexts, but almost always in

relation to each other. Baumert and Petkova, for instance, interpret the term public


11/68


7 of 26

participation as referring to a set of core principles that, broadly speaking, promote

transparency, public engagement, and accountability (2000, p. 2). Voisey and ORiordan

identify the same three ideas as requirements for institutional movement towardssustainable development (1997, p. 48). Their relationship is summed up best by Hood:

Transparency in the sense of general disclosure of information about the affairs of

government provides necessary raw material for democratic accountability because it enables concerned citizens and interest groups to be sufficiently informedabout the activities of executive government to be able to feed their views effectivelyinto the legislature or other forums. (2010, p. 992)

Due to the sheer extent of the literature exploring these three concepts, the work reviewedfor and presented in this paper is by necessity not exhaustive. Rather, the goal is to define

the terms in relation to effective environmental governance, and to explore them in a way

that makes their interdependencies and interrelationships are clear.

3.1.TransparencyTransparency has been referred to as the buzzword solution to the gamut of governance

issues together known as the democracy deficit (Hale, 2008, p. 73). It has been creditedwith a catalogue of benefits, including enhancing the equity, effectiveness, and efficiency

of participation; narrowing the gap between the public and decision-makers; leading to

more informed decisions; empowering the weak; and holding decision-makersaccountable (Drew & Nyerges, 2004, p. 35; Gupta, 2010, p. 1). Carolyn Ball has traced

its evolution from an etymological perspective, concluding that the term has many

meanings, but overall is about open decision-making and the ease of access and use of

government and nonprofit information (2009, p. 303).

While a significant body of literature has been developed around the concept of

transparency, no single, formal definition of the term is offered in relation to

environmental governance (Drew & Nyerges, 2004, p. 36). Principle 10 of the RioDeclaration reads that each individual shall have appropriate access to informationconcerning the environment that is held by public authorities but does not define of what

such information consists nor how it should be made accessible (UN, 1992). The Aarhus

Convention, despite providing detailed definitions of Environmental Information andhow and under what circumstances it shall be made accessible, as well as making many

explicit references to the desirability of transparency, does not define the term itself

(UNECE, 1998). At its most fundamental level, though, transparency is about the

normative right to know (Gupta, 2010, p. 4).

Drew and Nyerges (2004) identify a range of concepts often discussed in association with

transparency, from which they isolate seven objectives including accessibility,

accountability, and openness. 6 A more useful context in which to place transparency forthe purposes of this paper is offered by the first pillar of the Aarhus Convention, Accessto Information. In this context, two forms of access to information are defined: Passive,

where public authorities provide information in response to requests; and Active, where

6 The seven objectives for transparency are: Integration into broader decision context; Accessibility; Logic

and rationale; Accountability; Truth and accuracy; Openness; Stakeholder involvement; and Clarity (Drew

& Nyerges, 2004, p. 36)


12/68


13/68


9 of 26

3.2.Public ParticipationDespite the grand hopes for transparency, information does not in and of itself guarantee

a shift towards sustainable development. While information can empower individuals to

exert influence on decision-makers (Dingwerth & Eichinger, 2010, p. 74), disclosurepolicies can be designed in ways that sidestep real, meaningful citizen empowerment

(Florini, 2008).This, it has been argued, is the case with Canadas Access to InformationAct(Worthy, 2010, p. 567). To truly enhance environmental governance, the informationmade available by sunshine laws must be wielded by the public to affect change (Fuentes,

2008, p. 2; Flscher, 2007, p. 100).

Public participation has been highlighted as another strategy for achieving many of the

same goals as transparency, including increasing government legitimacy andaccountability, strengthening democratic principles, and enhancing equity (Markell, 2006,

p. 653; Warriner, 1997, pp. 176, 181). This second pillar operationalizes the first:

information gained through improved transparency leads to changes in the actions of

policy-makers when it is used by the public to bring about those changes (Weil et al.,2006, p. 156). At the same time, this second pillar relies on the first: true participation is

possible only when the public has information about the government, its policies and its

decision-making practices (Stec & Casey-Lefkowitz, 2000, p. 6) (Banisar D. , 2006, p. 6).

Alone, neither is sufficient, but in conjunction with transparency, public participationoffers the substantive improvements in environmental performance identified by Gupta

to inform, empower, and improve (2010, p. 4).

Significant study of participation is conducted at the project-specific level within

environmental impact assessment, which faces recurrent criticism for outcomes that areunfair, unjust, and inequitable (Lawrence, 2005). The insights revealed by this literature

have broader implications for the more ongoing, process-level concerns in public policy

and governance (O'Faircheallaigh, 2010). Regardless of the discipline, the work falls into

two distinct categories: distributive justice, which is concerned with the fairness of theoutcomes of decisions; and procedural justice, which is concerned with the fairness of the

decision-making process (Illsley, 2003).

Broadly defined, public participation is about how people communicate their views topolicymakers in a purposeful and organized manner, and can refer to anything from

voting in general elections to public demonstrations (Warriner, 1997, p. 173). In the

context of environmental governance, however, it is more useful to conceive of public

participation as structured mechanisms whereby citizens influence decisions about plans,policies and programs.

Depending on the body of literature, the core differentiating components of participation

can include the degrees of participation (as in Arnsteins hierarchical ladder), thedirection of communication flows, or the objectives for which participation is used (Reed,2008). The environmental governance community has often cited Langtons typology of

participation (1978, p. 21), which divides participation mechanisms into four classes

based on the nature of the roles played by the citizens: (1) Obligatory participation; (2)

Electoral participation; (3) Citizen involvement; and (4) Citizen action (Warriner, 1997).In this paper I examine a group of mechanisms that falls between Langtons third and

fourth levels: processes that are controlled and managed by government, but initiated by


14/68


10 of 26

individuals or groups of citizens. The major purpose of the former is to improve decision-

making, and of the latter to influence decisions (Langton, 1978).

The degree to which an environmental governance mechanism encourages or enhances

participation is dependent on many factors. One such factor is a central point of contactfor citizens. Germany, Scotland, the CEC, New Zealand, Ontario and the EU each have a

central point of contact, which is responsible to varying degrees for receivingpetitions and complaints from citizens, forwarding them to appropriate bodies forresponse, and following up where appropriate.

8These bodies enhance participation by

simplifying the submission or complaint procedure and making it more accessible. Where

such bodies do not exist, it becomes more difficult for citizens to participate. In Quebec

and the United Kingdom, for example, where parliamentary petitions must be submittedthrough members of parliament, potential petitioners must identify members of

parliament who might be willing to accept and present the petition, and contact the

members directly (Quebec, 2010; Cavanagh et al., 2000, p. 71).

Another factor that affects how a process enhances public participation is the definition ofa request. Under Ontarios Environmental Bill of Rights (EBR) for instance, citizens

can apply for either a policy review or an investigation of an alleged violation (Ontario,

1993).9

This allows them to directly influence policy-making and environmental

management processes, but prevents them from submitting other types of requests. Incontrast, the Scottish Parliament must consider any petition addressed to it (Scottish

Parliament, 2009).10

This allows petitioners to request, for example, explanations of how

a decision was reached (enhancing procedural justice) without precluding the types ofrequests explicitly identified under Ontarios EBR. The trade-off is between efficiency

and flexibility: A system with an explicit regulatory aim may be more efficient than an

open system at achieving that specific aim, but an open system may be effective at

addressing a broader range of governance issues.

The results of enhanced public participation fall into two categories: improvements indecisions themselves and improvements in the decision-making process. The concept of

procedural justice suggests that they are equally important, and transparency helps to

shed light on both. The study of public participation is about how citizens useinformation to engage in the decision-making process and influence decisions and their

outcomes. Participation mechanisms, together with enhanced transparency, allow the

public to hold the Government accountable, as will be seen in the next section.

3.3.AccountabilityJust as with transparency and public participation, accountability has been adopted as thevehicle for a wide range of governance improvements, as described by Abels in her

exploration of the links between citizen involvement, legitimacy and accountability(2007, p. 106). Again, the relationships between accountability and the other two pillars

are complex and multidirectional. Transparency itself becomes a tool for holding thepowerful accountable (Dingwerth & Eichinger, 2010, p. 74), and citizen participation

8 (German Bundestag) Basic Law of the Federal Republic of Germany: Article 45c(1); (Scottish Parliament,

2009) Rule 6.1.5(g); (CEC, 2000); (New Zealand, 2011); (Ontario, 1993) Article 74.(1); (EC, 2010)9 Articles 61.(1), 74.(1)10 Rule 15.4.1


15/68


11 of 26

often becomes equated with better accountability (Abels, 2007, p. 103). Accountability

was identified by Canadas Standing Committee on Environment and Sustainable

Development as one of the key principles for promoting sustainable development infederal decision-making (Minister of the Environment, 1994, p. 4).

Bovens has described it as a principle filled with good intentions, loosely defined

concepts, and vague images of good governance (2006, p. 7). In contrast to the first twoterms, though, the study of accountability is well developed, and a number of formaldefinitions has been offered (Fearon, 1999, p. 55; Przeworski et al., 1999, p. 10; Schedler,

1999, p. 17). In attempting to provide a definition of government accountability that

avoids the ambiguity and confusion of defining the term based on its anticipated results,

Philp offers the following:

A is accountable with respect to M when some individual, body or institution, Y,can require A to inform and explain/justify his or her conduct with respect to M.

(Philp, 2009, p. 32)

What is unique about Philps definition is the absence of explicit sanctions and rewards.

Across a wide array of accountability mechanisms, the ability to sanction plays a centralrole: from the bottom-up, the public can choose not to re-elect governors who havefailed; from the top-down, Parliaments can defeat governments and governments can

replace ministers. According to Philp, though the possibility of reward or sanction may be

desirable for further enhancing accountability, it is not essential to accountabilityper se.

Philp builds on Bovens exploration of accountability. Bovens argues that thoughsanctions are prerequisites of an accountability relation, the term itself is too narrow and

exclusionary, and prefers instead the broader expression the actor may face

consequences (Bovens, 2006, pp. 10-11).

As opposed to formal sanctions, such

consequences can be informal or implicit, including requiring decision-makers to explainor justify their conduct.

The effectiveness of such informal sanctions or consequences may be an extension of the

importance of procedural justice, the predominance of process over outcome in

establishing legitimacy. While one might assume that the outcomes of decisions are thecritical factor in influencing perceptions of legitimacy and thus that sanctioning the

makers of poor decisions is a prerequisite for holding decision-makers accountable this

is not necessarily the case. In fact, the work on procedural justice calls this assumptioninto question, and asserts that people are just as, if not more, concerned with how

decisions are made and the fairness of the process (Markell, 2006, pp. 677-678).

Understanding of the reasons behind decisions can generate support for them and reduce

dissatisfaction (Banisar D. , 2006, p. 7). As such, holding decision-makers accountableand safeguarding the legitimacy of government decisions may depend more on exposing

the decision-making processrequiring decision-makers to inform and explain or justify

their conductthan on punishing or rewarding them for the outcomes of those decisions.

Abels introduces the term accountability communication, referring to communicationthat includes explanations, justifications, debate and the possibility of questions and

answers (2007, p. 106).

Traditionally, government has been subjected to political accountability: Ministers

answering to Parliament on a retrospective basis to justify the actions they have taken


16/68


12 of 26

(arrow 5 in figure 3) (Joss, 2010, p. 409). Governments worldwide are increasingly being

subjected to conceptions of managerial accountability: Downward responsibility to

clients (citizens), in both retrospective and prospective manners, on a performance basis(arrow 6 in figure 3) (Joss, 2010, p. 409). For instance, as part of Devolution, Scotlands

petitions system was designed in the late 1990s specifically to make parliament more

accountable to the people (Carman C. , 2010, p. 735). The citizen submissions process ofthe CEC was created as well to make North American countries more accountable withregards to their environmental laws (Markell, 2006, p. 656).

The mechanisms researched for this paper petitions, complaints, and compliance

proceduresall perform the function of requiring governments to inform the public or to

explain and justify their actions. Where the obligation to respond is strongest, thecontribution to accountability is greatest. In Scotland and Germany, though the Petitions

Committees must consider all admissible petitions, they are not required to take any

further action, and where petitions are not pursued, petitioners may be provided only with

notice that the matter has been closed.11

In these cases, holding the Government toaccount is at the discretion of the Committee, not the citizen. In Quebec and the United

Kingdom, where petitions must be submitted to members of parliament, MPs are underno obligation to accept petitions, the result being that there is no guarantee that citizensare able to communicate their concerns to the Minister, department, or body in question

(Quebec, 2010; Cavanagh et al., 2000, p. 71). In contrast, requests in Ontario must at the

least be forwarded to the appropriate Ministry or Committee, and citizens are providedwith either the results of subsequent investigations or an explanation of why no further

investigations were undertaken (Ontario, 1993).12

The obligation to respond goes hand-in-hand with mandated or suggested timelines.

Though in most cases the systems I examined guaranteed that the submitter would

receive a response, the nature and timeliness of the response varied, and as a result thenature of the systems contribution varied.

While some of the comparable mechanisms offer the possibility of sanctions from the

European Commissions capacity to litigate to the CESD's power to make

recommendations to Parliamentnone include explicit powers to sanction. Regardless, itis by no means self-evident that this characteristic impedes their effectiveness at holding

governments accountable. Government accountability is about more than sanctions. It is

about responsibility to the people affected by decisions, and in Canada, to the Parliamentthat charges Government with those decisions. As we will see, the mechanisms allow the

public to make effective use of the information to which they provide access, and in

doing so contribute to the global governance movement towards sustainabledevelopment.

This section identified three concepts as pillars of environmental governance, and definedthem in the context of that literature. While transparency, public participation and

accountability have each been highlighted as the key to effective environmental policies,

11 (Scottish Parliament, 2009) Rule 15.4 Bringing petitions: "1. The parliament shall consider, in

accordance with the provisions of the Rule and Rules 15.5 to 15.8, any petition addressed to it. ;

(German Bundestag) Principles of the Petitions Committee governing the Treatment of Requests and

Complaints: Article 7.14.712 Articles 7780


17/68


13 of 26

here I have demonstrated that this is possible for all three only in conjunction with each

other. Transparency provides the information which the public can use to engage in the

decision-making process, influence decisions, and hold the Government accountable.Based on this, the next section will evaluate the EPP to determine how it contributes to all

three pillars.

4. Evaluating the Environmental Petitions ProcessThis section evaluates the EPP through the lens developed in Section 3, examining how

each facet of the Process enhances transparency, public participation, and/or

accountability. I address each pillar in order, first exploring how the EPP contributesdirectly, and then elaborating on how housing the Process within the Office of the Auditor

General allows the CESD to enhance the process contributions to each pillar by

integrating petitions into his other roles.

4.1.TransparencyThe contribution of the petitions process to transparency in Canada is, to some extent,

self-evident: Fundamentally, the process is about getting information to the public, orrather, allowing the public to get information from the government. The distinctions

drawn in Section 2 between passive transparency / sunshine laws on the one hand, and

active transparency / regulatory disclosure on the other, are based on two characteristics:The primary actor, and goal specificity. In the case of the petitions process, neither is

clear cut.

Regarding the first characteristic, the primary actor, petitions are submitted by individuals

and responded to by ministers, suggesting that the process is passive. Petitions anddepartmental responses are subsequently published in the petitions catalogue,

13a

proactive disclosure that blurs the line between passive and active. However, inasmuch as

the petitions catalogue invokes aspects of active disclosure, the Auditor General Actdoesnot go far enough in establishing an active publication role within the petitions process.There is no regulatory definition or specification of information that must be published

on a routine basis. Rather, it is left to citizens to request information from the

Government, which plays an exclusively passive role. The information that getspublished through the process is entirely dependent on the activity of citizens. Perhaps a

better analogy for the line between active and passive is not that it is blurred, but rather

that it is redrawn to include disclosure in the passive camp.

Regarding the second characteristic, goal specificity, though there is no specificregulatory aim to the process, its scope is limited to specific environmental and

sustainable development issues (CESD, 2010). While the regulatory improvements the

process was designed to achieve are ill-defined if at all, the general goal of the processcan be narrowed down: The environmental petitions process can play a key role inensuring good federal management of environmental and sustainable development

issues (CESD, 2008, p. 1).To place it in context, the EPP falls somewhere between the

petitions processes of Germany and Scotland, which are open to any and all matters

under parliamentary jurisdiction, and the citizen submission process of the CEC, which is

13 The petitions Catalogue can be accessed athttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html
http://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.htmlhttp://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html


18/68


14 of 26

restricted to studying matters that advance the ten objectives set out in the NAAEC

(NAAEC, 1993).14

The Scottish Petitions Committee received 960 petitions between 1999 and 2006,

distributed across 24 subject areas. Of those, just over six percent (61 petitions) related tothe environment (Carman C. J., 2006). In contrast, the CESD received 170 petitions

between 1999 and 2006, all related to environment and sustainable development. At thesame time, the EPP has avoided the criticisms directed at the citizen submissions processthat the scope of investigations is so severely limited that they no longer address the

submitters main concerns (Garver, 2008). By addressing a range of goals narrower than

that ofScotlands petitions committee but broader than that of the CEC, the EPP may be

able to target issues specifically relating to sustainable development in a broad enoughmanner that it remains relevant and effective.

The EPP fills two gaps left by ATIA, as discussed in section 2. The first is access to

information that may not have been recorded: information transmitted in phone calls, oral

conversations, or meetings. In this case, the two processes complement, rather thancompete with, one another. While Ministers sometimes refer petitioners to recorded

documentation available throughAccess to Information requests,15 the petitions process is

intended to provide views and positions, and the majority of responses to petitions are

explanatory rather than documentary (CESD, 2009, p. 18).

The second gap, insight into the decision-making process, is filled explicitly by the

petitions process, at least for decisions related to environment and sustainable

development. The petitions process can be used to directly address and question decision-

making rationales.16

Since petitions and responses are made publicly accessible, theprocess itself contributes to the creation and publication of the type of information that

makes decisions transparent.

In addition to making decisions more transparent by allowing citizens to question the

rationales and access undocumented information that contributed to them, petitions canbe used to make decision-making processes on the whole more transparent. By drawing

attention to situations where decisions are consistently opaque, petitioners can encourage

the government to make the processes more transparent. A petition submitted in 2002dealt with cases in which a recommendation by the Committee on the Status of

Endangered Wildlife in Canada (COSEWIC) to add a species to the List of Wildlife

Species at Risk would be ignored (Millls & Wiwcharuk, 2002). At the time, no criteria for

such decisions were publicly available, and in his response, the Minister stated thatguidelines for such decisions were in development. In 2005, the CESD followed up with

the Minister, confirming that draft guidelines had been prepared in 2003, presented in

November 2004, and were to be finalized in 2006 (CESD, 2005, pp. 13-14).

Whatever the theoretical potential for the Process to enhance transparency in Canada,certain realities suggest that this potential may be limited. With few exceptions, the

Process goes essentially unmentioned in the academic and institutional literature. The

plethora of studies on transparency, governance processes, and engagement in sustainable

14 Art14:2.(b) ;Art1:(a)-(j)15 For examples of referrals to ATIA, see (Whelan, 2002); (Clement, 2007)16 For examples, see (Lischewski & Love, 2005); (Blodgett, 2004)


19/68


15 of 26

development either ignore or are simply ignorant of the EPP. Beyond the literature, a

2010 Parliamentary study found that constituents outside of parliament had a low

awareness of petitions (Stokes, 2010, p. 9). Transparency can only be effective if thereare receptors capable of processing, digesting, and using the information (Heald, 2006,

p. 35). If the public, academics, and professionals who might effectively make use of the

information revealed through the process are unaware of it, then the value of its outputsand its overall contribution to transparency may be questionable at best.

The Commissioners annual petitions report to Parliament ensures the transparency of the

process itself while enhancing its contribution to transparency in environmental

governance. The report contains basic information about the quantity of petitions

received, their subject matter and their status, and highlights emerging issues that attractnumerous petitions issues that might otherwise go unnoticed (Canada, 2010, p. 14).

17

The report also includes an audit of the process itself, exposing weaknesses and

shortcomings. The 2004 report revealed that although departments were committing to

launch investigations into issues raised by petitions, petitioners were not being informedof the outcomes of these investigations (CESD, 2004, p. 1). It also noted that some

departments were portraying their petition responses more positively than was warranted.

These features are similar, though not identical, to other parliamentary petitions

processes. The Scottish Parliamentary Petitions Committee, for example, has a widerange of actions it can pursue in addressing petitions (Carman C. J., 2006, pp. 2.3-18). It

submits annual reports and has conducted inquiries into the petitions process, though it

does not do so annually (Scotland, 2009). It may consult with or request information fromother government bodies, but it has no official mandate to conduct audits.

The petitions process contributes to transparency by providing citizens with access to

information, requiring Ministers to respond to the questions and concerns of citizens, and

making all the information public. The CESD furthers this goal by investigating the

issues where warranted, analysing and interpreting the results of the process, andexposing its shortcomings to the public.

However, awareness is not only a problem externally (as mentioned above), but internally

as well. In a survey of seven Parliamentarians conducted as part of the 2010 study, onlytwo identified petitions as part of the CESD mandate (Stokes, 2010). As was noted in that

study, this draws into question the value of the contributions made to transparency by the

tabling of the petitions and the CESDs annual report on petitions. That study noted that

overall, the visibility of the Commissioners office appears to be low, with poor tomedium understanding of the Offices mandate (Stokes, 2010, p. 9). This may dilute the

essence the ability of the Commissioner to enhance the contribution of the EPP to

environmental governance.

The Environmental Petitions Process provides the public with a mechanism to access awide variety of information, including the rationale for a decision, the process used to

make decisions, or results and impacts of those decisions. However, though the EPP

provides that mechanism, there are questions about the extent to which that mechanism is

17 See, for example (CESD, 2008, p. 7)


20/68


16 of 26

used. The next section explores how the public engages with the process and the

information that it makes accessible.

4.2.Public ParticipationThe Standing Committee on Environment and Sustainable Developments 1994 report

noted that the public should be given the opportunity to provide input into and to informthe policy debate. In contrast to most public participation mechanisms, which provide forcitizen input into or involvement with a particular project or decision, the Environmental

Petitions Process is an on-going mechanism that allows the public to participate in the

general management of the environment and sustainable development in Canada (CESD,2009, p. 1). On Langtons scale, described in Section 2.2, it falls in between Citizen

Involvement and Citizen Action. Public participation is facilitated by the EPP both by

improving decision-making processes and by influencing decisions.

Citizens can directly influence decisions by making explicit comments and suggestions to

Government on decision-issues, as well as in other ways, for example by requestingreviews and improvements of laws (CESD, 2008). Citizens can also improve the

decision-making process simply by generating more information for the Government touse. In addition to the downward flow of information created by the transparencymechanism of the EPP, information flows upwards from petitioners to the Government

and Parliament (CESD, 2009, p. 1). By making known the issues that concern them,

expressing their opinions on the issues, and providing information relating to them,citizens can improve the information base on which Government makes decisions.

18

The developing shale gas issue provides examples of both avenues for participation

through petitions. As an example of explicit requests influencing decisions, a petition

received by the Quebec National Assembly dated January 2011 demanded a moratorium

on shale gas exploration in the province (Anonymous, 2011), which led to the Quebec

government freezing new exploration and development until a full study on theenvironmental impacts could be completed (Marotte, 2011). Two petitions received by

the CESD display how information flows upwards from citizens to Parliament andGovernment, improving the decision-making process. Petitions number 307 (Breton,

2010) and 308 (Bdard, 2010) concerned the federal governments role in regulating the

shale gas industry in Quebec. These petitions were part of a general public outcry whichled to Parliamentary debate on the matter, and statements by the Environment Minister

which indicated that the federal government was examining its responsibilities in

regulating the issue, which would normally fall under provincial jurisdiction (Canada,2011). In the latter case, petitions did not influence a decision, but impacted the decision-

making process.

18 For an example of the impact of public participation through petitions, see Military dumpsites off

Canadas Atlantic coast (CESD, 2004, pp. 14-19)


21/68


17 of 26

While the flow of information is bidirectional, form citizens to Government (public

participation) and from Government to citizens (transparency) the impacts of public

participation are multidirectional (see Figure 1). Petitioners can influence governmentdecision-makers directly, in a bottom-up direction, by making requests and expressing

their opinions (arrow 1). They can also influence Parliamentary policy-makers in the

same way, as petitions are tabled annually in Parliament (arrow 2). There is a third flow,

through the Commissioner of the Environment and Sustainable Development, whoreports annually on the process and provides Parliament with recommendations on the

governments management of the environment and sustainable development (arrow 3).

Finally, a fourth direction of influence exists, as petitioners influence on Parliament canbe translated into top-down oversight of government (arrow 4). The multidirectionalinfluences that the EPP offers for public engagement, while enhancing the potential

impacts of the process, also make it difficult to assess the results it achieves. Though

anecdotal examples of each can easily be identified, any study attempting to aggregateand assess the overall impacts of the process will have to include a framework that can

categorize, standardize, identify, and measure the impacts through four directions of

every petition and response.

Citizens

Government

Parliament

CESD

Figure 1 Multi-directional participation & accountability through the Environmental Petitions Proces

1

2

34

6

5PoliticalAccountabilit

ManagerialAccountabilit


22/68


18 of 26

Again, as with transparency, the process in theory holds great potential to enhance public

participation in environmental governance in Canada, but the facts on the ground cast

doubt on its ability to fulfill this potential. Throughout its 15 year history, the CESD hasreceived 350 petitions. The majority of these, however (more than 70%), were received in

the 6-year period between 2003 and 2008. It is understandable, even to be expected, that

few petitions might be received in the early years of the process before 2003. Of greaterconcern is the precipitous decline in the number of petitions received since 2008 (seefigure 2). In 2009 only 27 were received, and in 2010 only 19, the fewest in a decade.

The low number of petitions is cause enough to raise questions about the effectiveness of

the process: Can the activity of 19 petitioners truly be considered enhanced publicparticipation?

Figure 2 - Petitions received by the CESD since being established

If the number of petitions alone isnt enough to cast doubt, the question of what has

caused the sudden drop is. The peak in petition activity of 2008 was followed by a study

that found an overall lack of awareness of the process. Since then, petition activity hasdropped by more than half, suggesting a further degradation of awareness. More

importantly, the drop in activity could be a negative reaction to the perceived(in)effectiveness of the process among the admittedly small community that is evenaware of its existence.

The CESD enhances public participation in two ways. Firstly, the Commissioner canincrease the effectiveness of public participation through the petitions process by

highlighting petition topics in the annual reports to Parliament. Doing so heightens the

visibility of the issues that matter most to petitioners, encouraging relevant ministries toaddress them. Between 2001 and 2007, the Commissioner highlighted 40 petitions in

annual reports, and action was taken on 35 (CESD, 2007, p. 86). For example, the 2002

report highlighted the issue of mustard gas and other chemical warfare agents dumped offthe coasts of Nova Scotia and Newfoundland at the end of world war two (CESD, 2002).

In response, the Minister of National Defence initiated a project to assess the risks

1 711

1 6

17 19

36 37

26 28

41 39

2315

25

68

69

5 9

4

4

0

10

20

30

40

50

60

Petitions to the CESD 1996 - 2010

Repeat Petitions

New Petitions

Number of

petitions


23/68


19 of 26

presented by ocean dump sites of warfare agents to the environment and human health

and to engage in remediation, cleanup or other mitigation measures.

Secondly, the Commissioner provides an additional opportunity for citizen involvement

in government scrutiny. If transparency is enhanced by the Commissioner delving deeperinto petition issues, public participation is enhanced by petitioners informing the

Commissioners work. Audits and studies are powerful tools, and the petitions processpresents an additional opportunity for the public to get involved in the scrutiny ofgovernment entities, plans, policies and programs. The CESD uses the petitions catalogue

to systematically identify issues for audit, integrating the public into the planning process

(CESD, 2007, p. 86).

The right to request an investigation through the Environmental Commissioner ofOntario, though seemingly similar to the integration of petitions in the CESD audit

function, is in practice quite different. That right is explicitly stated in the Environmental

Bill of Rights (Environmental Commissioner of Ontario, 2003, p. 22), while the ability to

influence audits undertaken by the CESD is more implicit. As there is no requirement inthe Auditor General Act to pursue petition topics with audits of the relevant federal

agencies, the influence that petitions have on the CESD audit program is entirely

dependent on the extent to which the Commissioner takes petitions into account when

planning audits. On the other hand, investigations resulting from a request under the EBRare undertaken by the ministry concerned, not an independent audit office. The role of the

ECO in this case is more akin to the CESD's role in managing the petitions process, and

is limited to ensuring the request meets minimum criteria and forwarding requests to theappropriate ministry. Canadians are similarly able to request investigations in their

environmental petitions (CESD, 2008, p. 7), and it is up to the relevant ministries to

respond to such requests. The result of a CESD audit is more akin to an investigation by

the New Zealand Parliamentary Commissioner for the Environment, which results inpublicized reports to Parliament with analysis, advice, and recommendations (New

Zealand, 2011). While the New Zealand Commissioner offers an explicit mechanism to

Suggest an Investigation, the extent of public participation is not necessarily greater.Just as there is no requirement for the Commissioner to undertake audits of petition topics

in Canada, there is no guarantee in New Zealand that suggested investigations will be

undertaken.

Through the Environmental Petitions Process, citizens can directly influence decisions.The Process is also an avenue for information to enter the decision-making system,

allowing petitioners not only to make explicit requests but also to inform the Government

and Parliament about the issues that concern them. Once information has entered thesystem, it flows in many directions. It can impact Government decisions directly, and can

move Parliament to exert influence on the Government. The CESD can take up the causesof petitioners, highlighting important issues and giving citizens the opportunity to

influence audit choices.

4.3.AccountabilitySimilarly to public participation, accountability can be either top-down or bottom-up (seeFigure 1). The mandate of the Office of the Auditor General of Canada includes

contributing to political accountability (top-down) by providing Parliament with the


24/68


20 of 26

information it needs to scrutinize the governments performance (OAG, 2004, p. 17). The

petitions process performs a parallel function for managerial accountability (bottom-up)

by providing citizens with the information they need to scrutinize the governmentsperformance. While sanctions are not necessary components of accountability systems,

they can serve to enhance accountability, and citizens control the ultimate sanction.

Through general elections, they can hold politicians to account, removing from officethose that fail to meet expectations.

Accountability arises from other consequences of the petitions process as well, including

what Abels calls accountability communication (Abels, 2007, p. 106). The strength of

the petitions process is that it goes beyond transparency and provides justifications and

explanations, responses to specific questions, interpretations, and in some cases,commitments (CESD, 2005, p. 1). The process meets Abels other accountability

requirements as well it is open to the general public, allows the public to make

judgements which imply the imposition of sanctions, and deals with matters of public

interestand as such contributes to the legitimacy of the decision-making system (Abels,2007, p. 106).

What sets the Canadian process apart from similar processes in enhancing accountability

is the obligation for departments and agencies to respond. The German and Scottish

petitions systems, as well as the CEC citizen submissions and many others, offer centralpoints of contact to manage citizens concerns, similar to the Commissioner of the

Environment and Sustainable Development. Under these other systems, however, though

the central point of contact may be required to consider the petitions, there is nolegislated requirement that petition issues be investigated or that petitioners receive a

meaningful response.19

Whether or not any subsequent actions are taken with regard to a

petition is left to the discretion of a parliamentary office, the result of which is that these

bodies offer the potential for, but no guarantee of, accountability. Whereas theseprocesses provide a layer of insulation from accountability, Canadas process is mandated

and direct. The Commissioner of the Environment and Sustainable Development, the

central point of contact, ensures that the petitions meet admissibility requirements. If so,neither the CESD nor the department in question decides whether or not a response is

warranted; a response is mandated in the Auditor General Act, guaranteeing that the

minister will be held accountable to the public (at least to the extent of providingexplanations and justifications and facing implied consequences).

Despite the certainty provided by taking discretion out of the equation and mandating a

response to every admissible petition, the process cannot hold the Government to account

on its own; rather, it provides a mechanism for the people to do so. Because the thirdpillar is dependent on the first two, the process can only be effective if citizens make use

of it, and the doubts cast on the value of the transparency offered by the EPP and theextent of the public engagement with it result in doubts about whether it has in fact

contributed to accountability. The small number of petitions received in recent years not

19Scotlands and Germanys petitions committees may request responses from relevant parliamentary

committees or government agencies if they determine such a request is warranted: Regarding Scotland, see

(Carman C. J., 2006) 2.3.18; Regarding Germany, see (Bundestag Petitions Committee, 1991) 7.14. The

CEC Secretariat may request a response from a Party if they determine such a request is so warranted, and

the Party may respond if they wish: See (NAAEC, 1993) Art.14.2 and Art. 14.3.


25/68


21 of 26

only limits the amount of information being generated by the process, but also suggests

that too small a portion of the population may be aware of the information generated to

create meaningful accountability.

The petitions process contributes to political accountability through the Commissioner ofthe Environment and Sustainable Development, who provides Parliament with the

information it needs to hold government accountable. In Philps definition ofaccountability, a third party Y holds A accountable to M (Philp, 2009, p. 32). In the caseof environmental petitions, this third party is the CESD. Petitions are addressed to the

Commissioner, who is responsible for determining the relevant departments and agencies,

forwarding the petitions, and reviewing responses (CESD, 2008, pp. 8-9). The

Commissioner can also identify responses that fail to adequately address petitionersconcerns and bring them to the attention of either the responding organization or

Parliament (CESD, 2008, p. 9).

As outlined in the two preceding sections, CESD audits augment the petitions process

with respect to transparency and public participation, and the same is true foraccountability. The Commissioner does not investigate or substantiate the claims made in

every departmental response (CESD, 2008, p. 8), but does validate those claims when an

audit covers an issue on which petitions have been submitted, as well as on a sample

basis in annual reports. In 2007, the Commissioner wrote that the Office wassystematically using petitions to identify issues for audit (CESD, 2007, p. 86).

In those cases, Ministers, departments and agencies are held accountable to the

commitments they have made to the public. In keeping with the definitions of

accountability found in Section 3, though the Commissioner cannot issue bindingsanctions or rewards, his work implies the possibility of sanctions and rewards because it

provides the public and Parliament with the raw information it needs to judge the

Governments performance. Where departments are effectively addressing issues raised

in petitions, their success is reported to Parliament and the public. Conversely, wheredepartments are failing or where there is room for improvement, the Commissioner

makes recommendations to Parliament on what can and should be done better.

In 2004, for instance, the Commissioner conducted audits of strategic environmentalassessment and the management of salmon fisheries. Petitions related to both those issues

had been received in the past, and the audits provided an opportunity for the

Commissioner to verify the responses to those petitions. The Commissioner found that in

the case of environmental assessments, most departments were not making serious effortsto apply cabinet directives, and in the case of the fisheriess that Fisheries and Oceans

Canada had missed all the timelines to which it had committed (CESD, 2004).

The Environmental Petitions Process gives both Parliamentarians and citizens theinformation they need to hold the Government accountable. It mandates that Ministersrespond to questions about their rationales and processes, the decisions they make, and

the impacts and results of those decisions. Both the CESD and petitioners can follow up

to hold the Government to account for commitments made through the Process. Overall,

the Process enhances the third pillar by subjecting the Government to the first two: bycombining the information it makes accessible through its transparency mechanisms with


26/68


22 of 26

the actions it makes possible through its public participation mechanisms. In this way, all

three intertwine, depending on and building on each other.

5. ConclusionsThe Environmental Petitions Process, as shown in this paper, has the potential to enhance

what the academic and international communities have identified as the bases foreffective environmental governance: transparency, public participation, andaccountability. It was established as the culmination of years of international progress and

a thorough Parliamentary legislative process. It is both surprising and unfortunate that it

has not been the subject of critical analysis until now, and that it is scarcely mentioned inthe media and academia.

The process can enhance transparency by complementing the Access to Information Act

and giving citizens the right to access not only documentary information but also

governmental views and positions, explanations, and decision-making rationales. Making

the decisions transparent and accessible can increase their legitimacy and provide amechanism for holding the government accountable. The Commissioner of the

Environment and Sustainable Development can further enhance transparency by auditingpetition subjects and petitioned agencies and providing independent analysis andinterpretation of the results of the process.

The ways in which the process contributes to public participation can be placed into two

categories. Citizens can make explicit requests or demands in the hopes of directly

influencing decisions taken by government, most closely aligned with the Citizen Actionconception of public participation. More closely aligned with the Citizen Involvement

conception of public participation, citizens can improve the decision-making process by

making known the issues that concern them and their opinions on those issues,

contributions that are aggregated in the Commissioners annual reports. Citizens can also

have a direct impact on the work undertaken by the Commissioner, and the annual reportfurther enhances the impacts of public participation by highlighting the emerging issues

most deserving of Parliamentary attention.

By increasing transparency and fostering public participation, the process enhancesgovernment accountability. It provides citizens with the information they need to

scrutinize governments performance, going beyond transparency to allow citizens to ask

specific questions, and mandating that the petitioned agencies respond. This allows thepublic to make judgements which imply the imposition of sanctions. In a parallel fashion,

the Commissioner provides Parliament with the information it needs to scrutinize

governments performance and hold it accountable. The CESD can identify responsesthat fail to meet requirements, verify and follow up on claims and commitments made in

response to petitions, and conduct audits and studies where necessary to hold governmentto account.

The EPP is a petitions process in the style of Scotland and Germany through which the

public can ask questions, make complaints, suggest improvements, and get responses oractions yet it is the only petitions process dedicated solely to matters of environment

and sustainable development. Housing it within the Office of the Auditor General under

the aegis of the CESD creates an independent investigator in the style of the CEC, and


27/68


23 of 26

the audit function gives it teeth more similar to New Zealands Parliamentary

Commissioner for the Environment. Where other petitions committees refer

investigations to the ministries being questioned, CESD audits are independent andobjective, with a mandate to identify shortcomings and inefficiencies. The process

straddles the lines between passive and active transparency; between the sunshine laws so

effective in Sweden and the regulatory disclosure found in the United States and Canada;and between citizen action controlled by the public, and citizen involvement initiated bygovernment.

With the exception of the 2010 study, where the process has been examined it has been

lauded. Federal department officials have said they believe that the petitions process has

had an impact on the federal management of environmental and sustainabledevelopment issues (CESD, 2007, p. 87). In providing recommendations for reshaping

environmental governance in Northern Ireland, Macrory suggests that governments can

enhance public influence and connection with government bodies by instituting a

petition system, under the auspices of the Audit body, along the lines of the Canadianmodel (Macrory, 2004, p. 43). However, these instances are few, and as such,

inconclusive.

The purpose of this paper was to examine how the process might contribute to

environmental governance as was intended, and it is clear from this examination that, asdesigned, it has the potential to do so. There is anecdotal evidence in the form of

individual petitions to suggest that they do have the intended effects: A petition on

military off-shore dump sites resulted in commitments by the Minister of NationalDefence to assess and clean up those sites; Audits conducted by the CESD have

uncovered instances where Departments have failed to follow through on their

commitments to petitioners; A petition regarding the requirements for EIAs in a housing

development in British Columbia elicited new information from the Department ofFisheries and Oceans about its responses to proposals by the proponent.

However, there is as yet no evidence that the process as a whole has fulfilled its potential.

Despite the anecdotal evidence, it is unclear what proportion of petitions has had the

intended impacts of enhancing transparency, public participation, or governmentaccountability. In fact, if there is any evidence as to the actual achievements of the

process, they may point to the contrary. The only data available about the process are the

raw numbers of petitions received over the years: 350 in total, nearly 70% of which werereceived in the six years between 2003 and 2008, after which the number drops by half in

only two years, despite increasing outreach efforts by the CESD. Without more data to

analyze, the implication is that the process is so unknown, so little used, that even ifevery petition submitted achieved each of the objectives for the process, the results might

still be inconsequential in terms of a significant national impact.It is impossible to say what impacts the 19 petitions received in 2010 have had. Take for

example the issue of shale gas development in Quebec. It is true that petitions on the

topic were received at both the provincial and federal levels; that the provincial petitiondemanded a moratorium on exploration and was followed by a freeze on exploration until

environmental studies were conducted; and that the federal petitions questioned the

federal governments role and were followed by Parliamentary debate and statements bythe Minister suggesting that the federal government was examining its role vis--vis


28/68


24 of 26

provincial jurisdiction. However, it is also true that the shale gas issue was popularized in

the mass media, was taken up by a number of citizen groups and NGOs, was recognized

at international levels, and that significant impacts had already been seen in otherjurisdictions.

20Without more careful study, it is impossible to attribute the actions of the

provincial and federal governments directly, or solely, to the petitions. This is but one

example of the difficulties posed in measuring the actual achievements of the process.

6. Recommendations for Further ResearchThe initial goal of this paper was to assess whether the Environmental Petitions Process

has met its objectives. After identifying the objectives of the process to contribute tosustainable development in Canada by improving environmental governance I

proceeded to identify suitable indicators and build a framework around them. These

indicators, transparency, public participation and accountability, engaged in complex

relationships and were not directly measurable. As a result, before an empiricalassessment would be possible, it was necessary to evaluate in what ways and through

what mechanisms the EPP could contribute to those three pillars. Due to a dearth in the

literature of evaluation or exploration of the petitions process, this paper has been aprimary attempt to critically examine its design, its intentions, and its potential. The next

step

the environmental petitions process - enhancing environmental governance through transparency,...

Documents