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What is Necessary to Ensure Natural Justice in EIA Decision-making?. Gerard Early First Assistant Secretary Approvals and Wildlife Division Department of the Environment and Water Resources Canberra, ACT, Australia Gerard.Early@environment.gov .au.
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What is Necessary to Ensure Natural Justice in EIA Decision-making? Gerard EarlyFirst Assistant SecretaryApprovals and Wildlife DivisionDepartment of the Environment andWater ResourcesCanberra, ACT, AustraliaGerard.Early@environment.gov.au Angus Morrison-SaundersSenior Lecturer in Environmental AssessmentSchool of Environmental ScienceMurdoch UniversityPerth, Western Australiaa.morrison-saunders@murdoch.edu.au Presented at: IAIA07 Growth, Conservation and Responsibility: Promoting Good Governance and Corporate Stewardship through Impact Assessment– Seoul, Korea
Outline • Background • What is natural justice? • The issue • Steps in a generic EIA process • Research aims/questions • International examples • Conclusions Acknowledgements: 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.
1. Background • 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’
The issue (i) [recent EIA decision in Australia – rejection of wind farm proposal by Environment Minister]
Steps in a generic EIA process New Proposal proponent announces new action Screening Scoping need for EIAidentify significant issues Environmental Impact Statement (EIS) predict impacts/propose mitigation Public Review any person may comment Evaluation report by EIA agency or Panel Approval decision government minister (e.g. for environment) Project implementation & follow-up 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?
New Proposal Screening Scoping Environmental Impact Statement (EIS) Public Review Evaluation Approval decision Project implementation & follow-up In other words... How is ‘new’ information at the Evaluation stage treatedwith respect to natural justice?
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
Public Review Public hearings by Panel Panel advice to decision-maker Approval decision Review Panel (i)
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/Draft Decision (ii) • 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 (iii) Public Review Proponent responds to public submissions EPA advice to decision-maker Public appeals against EPA advice Appeals Convenor advice to decision-maker Approval decision [Western Australia process]
Assessment Report/Draft Decision (iv)Western Australia process • 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
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/ A.Morrison-Saunders@murdoch.edu.au Gerard Early Gerard.Early@environment.gov.au