What is Necessary to Ensure Natural Justice in EIA Decision-making?

1. 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

2. 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.

3. 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’

4. The issue (i) [recent EIA decision in Australia – rejection of wind farm proposal by Environment Minister]

5. The issue (ii)

6. 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

7. 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?

8. 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?

9. Study methodology • survey of international EIA practitioners • 45 practitioners, 23 EIA jurisdictions, 17 countries • examination of legislation, EIA guidance, case law etc wherever possible

10. 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

11. Public Review Public hearings by Panel Panel advice to decision-maker Approval decision Review Panel (i)

12. 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

13. Assessment Report/Draft Decision (i) Public Review Assessment Report/Draft Decision presented to decision-maker Approval decision [generic EIA approach]

14. 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

15. 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]

16. 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

17. 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

18. 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)

19. 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

20. 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

21. 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

22. 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

23. 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