Serge Dupont is former deputy clerk of the Privy Council and former deputy minister, Natural Resources Canada. Edward Greenspon is president of the Public Policy Forum and former editor-in-chief of The Globe and Mail.
The recent decision by TransCanada Corp. to abandon the Energy East pipeline coupled with continued conflict over the approved Kinder Morgan line to the Pacific makes this a necessary time to refashion Canada's process of reviewing major resource projects.
The system still lacks the legitimacy Natural Resources Minister Jim Carr says he is seeking. According to a recent Nanos poll, Canadians believe by a three-to-one margin that a poor job is being done generating public confidence in energy decision making and by a two-to-one margin in creating a vision for Canada's energy sector. This is so even though the same respondents identify governments of one sort or another as the appropriate authorities to render such judgments. So it's the decision-making process that's broken, not, as in some countries, the fundamental relationship between citizen and government.
What's required is a reset of the entire review process with the goals of ensuring inclusion, transparency, scientific rigour and good-faith discussions within a predictable, reasonable time frame.
It is useful to think of three distinct parts of a decision-making process, together contributing to renewed legitimacy:
The scientific fact finding, where environmental, health and safety and economic evidence, including traditional knowledge, is rigorously assembled from authoritative sources and studied by an independent and inclusive agency housing professionals;
The engagement, where proponents and the publicly interested intervene to discuss this evidence under the guidance of a diverse panel of experts at arm's length to government and mandated to make recommendations;
The political determination, where the evidence is weighed and the final arbitrage of competing views and interests is rendered in the public interest by accountable authorities.
The federal government recognizes the need to rewrite the terms by which this public interest is determined, which is why it issued a discussion paper in June with stated objectives to regain public trust, protect the environment, advance reconciliation with Indigenous peoples and ensure good projects proceed and bad projects don't.
The changes we propose are evolutionary not revolutionary. They require strong institutional commitment and leadership and inclusion every step of the way.
On the science, credibility must be restored. Too many disputes come down to mistrust of the fact base. Where knowledge is contributed by scientists in government and from outside, it must be under a governance arrangement that is grounded in rigour and transparency.
The federal government's new chief scientist should come into play by using her office to bolster confidence findings that are factual and serve the public interest. There must be stem-to-stern collaboration with provincial and Indigenous governments as well as the research and academic communities. The task is to create and make publicly available the body of knowledge that will support informed engagement and trustful decision-making.
The engagement is where parties pronounce on the implications and consequences of facts, not the facts themselves. This is not a place to debate energy or climate polices per se.
Policy in a democracy is the purview of governments, and provides context for regulators. At this juncture, intervenors will lay out their perspectives on the proposed project: commenting on benefits and how they can be shared; risks and how they might be mitigated; partnerships and how they may be facilitated. The expert board will weigh the arguments, derive conclusions and formulate recommendations to government.
The final determination resides with elected officials whose job it is to work off the base of the previous two stages and act on what's politically possible, only as circumscribed by law. Too little discretion leads to a lack of democratic accountability. Too much undermines the care and inclusiveness of earlier steps. Above all, the government must proceed transparently and commit to upholding its decisions. It also falls to elected governments to ensure the duty to consult has been fulfilled end to end and that the decision respects the free, prior and informed consent called for in the United Nations Declaration on the Rights of Indigenous Peoples.
The essence of democracy is that everyone gets a hearing and, at the end of the day, abides by lawful and legitimate decisions. Social licence derives from fair process. If steps along the way lead to a Yes, there ought be no obstruction or override. If the answer is No, then proponents will be expected to fold their tents.
In putting forward reforms flowing from its consultation exercises, the federal government has an opportunity to re-establish the legitimacy of the country's project review architecture. Debate never ends in a robust democracy, but with sound reforms we can hope that deadlock will.