what is necessary to ensure natural justice in eia decision-making? angus morrison-saunders senior...
TRANSCRIPT
What is Necessary to Ensure Natural Justice in EIA Decision-making?
Angus Morrison-Saunders
Senior Lecturer in Environmental Assessment
School of Environmental Science
Murdoch University
Perth, Western Australia
Presented at: IAIA07 Growth, Conservation and Responsibility: Promoting Good Governance
and Corporate Stewardship through Impact Assessment – Seoul, Korea
Gerard Early
First Assistant Secretary
Approvals and Wildlife Division
Department of the Environment andWater Resources
Canberra, ACT, Australia
Outline1. Background
– What is natural justice?
– The issue
– Steps in a generic EIA process
2. Research aims/questions
3. International examples
4. ConclusionsAcknowledgements: This research was funded by the Department of the Environment and Water Resources, Canberra. The input of the EIA practitioners that contributed to the research is greatly appreciated.
What is natural justice*?• decisions by public officials should be
made in an unbiased manner
• people should be given an opportunity to participate in decisions that affect them
*also known as ‘procedural fairness’
1. Background
The issue (i)
[recent EIA decision in Australia – rejection of wind farm proposal by Environment Minister]
Steps in a generic EIA process
Screening Scoping
Environmental Impact Statement (EIS)
Public Review
Evaluation
Approval decision
Project implementation & follow-up
New Proposal
need for EIAidentify significant issues
predict impacts/propose mitigation
any person may comment
report by EIA agency or Panel
government minister (e.g. for environment)
proponent announces new action
proponent manages and reports
2. Research aims/questions
Prior to the final approval decision, what should be the status of information that has been generated outside the publicly available assessment process?
– Are decision-makers obliged to share information with stakeholders?
– What are the implications for timeliness, efficiency and certainty of process?
Screening Scoping
Environmental Impact Statement (EIS)
Public Review
Evaluation
Approval decision
Project implementation & follow-up
New Proposal
How is ‘new’ information
at the Evaluation
stage treatedwith respect
to natural justice?
In other words...
Study methodology
• survey of international EIA practitioners– 45 practitioners, 23 EIA jurisdictions, 17 countries
• examination of legislation, EIA guidance, case law etc wherever possible
3. International examples
• Review panels • Canada, New Zealand
• Assessment report/draft decision• Australia, Netherlands, South Africa, UK
• Approval decision • Australia, Canada, NZ, SA, UK, USA
Review Panel (i)
Public Review
Panel advice to decision-maker
Approval decision
Public hearings by Panel
Review Panel (ii)
• No ‘new’ information can enter the process– Canada: all information presented to Panel is
public– New Zealand: Panel shares all information with
proponent & people who made a submission on EIS and wished to be heard by Panel
• Advice of Panel to decision-maker is public– new information available to Panel after hearings
is either ignored or shared with participants
Assessment Report/Draft Decision (i)
Public Review
Assessment Report/Draft Decision presented to decision-maker
Approval decision
[generic EIA approach]
• Assessment Report may only address issues raised in EIA process to date– i.e. no new issues
• Netherlands:– draft decision subject to public review
• UK: [case law rulings]– requirement to consider public submissions– mitigations required in approval conditions must
have been part of public review process
• South Africa: [case law rulings]– if new information (that affects decision) arises
after public review of EIS, then must be shared
Assessment Report/Draft Decision (ii)
Assessment Report/Draft Decision (iii)
[Western Australia
process]
Public Review
EPA advice to decision-maker
Proponent responds to public submissions
Public appeals against EPA advice
Approval decision
Appeals Convenor advice to decision-maker
• independent Appeals Convenor
– discussions with proponent, EPA & public (who lodged appeal or special interest)
– new information often enters process, but shared with all stakeholders
– report of Appeals Convenor to decision-maker is public
Assessment Report/Draft Decision (iv)Western Australia process
Approval Decision (i)
• international practice varies considerably
– approval decisions usually by a Minister
– some legislation directs decision-maker on what they can/cannot consider
– decision-making is less transparent than earlier steps in EIA process
Approval Decision (ii)
• often possible for new information to be introduced– e.g. non-environmental considerations (socio-
economic) + further enquiries at Minister’s request– no examples of (legal) requirement to consult
• but decision must normally be made public, including its basis – (even if this is after the decision has been made)
4. Conclusions
• EIA systems examined generally consistent with concept of natural justice
• but issue of ‘new information’ arising at decision point not addressed in EIA legislation• i.e. a ‘grey’ area
Reflections on natural justice & EIA (i)
• Natural justice is fundamental aspect of EIA (and sustainability)
• Concept is universal, but practice varies• needs to be interpreted in a given jurisdiction/culture
(e.g. statutes, case law, public expectations)
• Expectations higher for EIA agency and/or Panel assessments than for Ministerial decision-making
Reflections on natural justice & EIA (ii)
Can’t have endless public consultation - someone eventually has to make a decision!
• need to strike balance between process efficiency and fairness to public
• ultimately it is judgement of decision-makers to decide when/how much information should be disclosed to stakeholders on case by case basis
Conclusions regarding 'parrot' case
• case settled out of court (i.e. no legal test of 'natural justice' here)
• proponent submitted modified proposal – approved by Minister
BUT…• February 2007 amendments to EPBC
Act 1999 (Cth) – s131AA• requirements of natural justice for EIA
approval processes added• proponent invited to comment on draft
decision prior to Minister's final approval& public may be invited to comment too
THANK YOU!
questions...? discussion...?Angus Morrison-Saunders
http://wwwstaff.murdoch.edu.au/~angusms/
Gerard Early [email protected]