Project approval, environmental assessment and public participation

Project Approval, Environmental Assessment and Public Participation P. S. ELDER*

Faculty of Environmental Design, The University of Calgary, Alberta, Canada

SUMMARY Assessing the desirability o f large scale resource development is an extremely complicated process. In the past, the presumption has been that economic criteria were decisive. Lately, however, we have accepted the idea that social and environmental factors will affect the design and procedures o f development, and, in extreme cases, may even indicate the abandonment o f a project. Public input and formal environmental and social impact assessment have been accepted in principle, and the challenge is to incorporate them within an orderly and expeditious governmental decision process. This is a case study o f such a process for Esso Resources Canada Limited's proposed heavy oil project at Cold Lake, Alberta, Canada.

A case study--Public participation in Esso Project of heavy oil sands exploitation, Cold Lake, Canada

DESCRIPTION AND BACKGROUND OF THE PROJECT 1 The Cold Lake region is one of the oil sands areas of Alberta. The lake itself is on the Alberta -Saskatchewan border, northeast of Edmonton, Alberta and northwest of Prince Albert, Saskatchewan. It is approximately 260 km south of Fort McMurray, the site of the Syncrude and Suncor (formerly Great Canadian Oil Sands) surface mining operations (Fig. 1). In December 1976, Imperial Oil Limited proposed to the Government of Alberta a major facil*P. S. Elder was Gold MedaUist and Law Review Editor upon graduating from the Faculty of Law, University of British Columbia (1965). Following his call to the Bar and graduate work at the University of London (London School of Economics), he was an aide to various Canadian federal cabinet ministers (1967-70) and taught law at the University of Western Ontario (1970-73). In 1973 Professor Elder joined the Faculty of Environmental Design, University of Calgary, Alberta, Canada where he teaches legally related subjects. He has written widely in environmental law and policy, and public participation. In his free time Elder engages in municipal and provincial politics. 0251-1088/82/0000-0000/$02.75

ity for the in situ recovery of crude bitumen from the Clearwater formation of the Cold Lake heavy oil sands. A preliminary application for approval of the project was submitted to the Alberta Energy Resources Conservation Board (ERCB) in November 1977. The scheme proposed the recovery of 25,000 cubic metres per day (m3/d) or 160,000 barrels per day (bbls/d) of crude bitumen by alternately injecting vast quantities of unsaturated steam at greater than fracture pressures into wells and then reversing the process and pumping the heated bitumen/water emulsion from the ground. This cycle of some months' duration ( 1 - 2 months of injection, 3 - 6 months of production) could be repeated several times per well, and approximately 2,000 wells would be operating at once. Over the 25-year life of the project, about 8,000 wells would be used. Once the crude bitumen is extracted, and dehydrated, it would be upgraded on site to produce 22,300 m3/d (140,000 bbls/d) of synthetic crude oil (Fig. 2). The scale of the project is obviously vast. Approximately 28,000 m 3 (175,000 bbls) would be recovered from each of the 8,000 wells, which would be spaced at about 1.6 ha (4 acres) per well. Thus, the project area would comprise 12,800 ha (32,000 acres). The project would cost over $11 billion, and would consume some 92,800 m3/d (584,000 bbls/d) of water, 6,800 m3/d (43,000 bbls/d) of fuel on a fuel oil equivalent basis, and 1Much of the material in this case study comes from personal interviews, the transcripts of the Energy Resources Conservation Board's public hearing ("Transcript") on the application, and the ERCB report ("Report") following this hearing. All people interviewed had an opportunity to comment on the draft of this study, but it should not be inferred that my conclusions are necessarily shared by any of them. This article is a condensed version of a longer study done for the Canadian Institute of Resources Law. The complete text is available in the "Occasional Papers" series published by the Faculty of Environmental Design, The University of Calgary, under the title "Heating Up Cold Lake: Public Participation and Esso Resources Heavy Oil Pro/ect " (1981 ).

The Environ men talist, 2 (1982 ) 55 - 71

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The Environmentalist

approximately 4.6% of the present Alberta net electrical generating capacity (Report, p. 29, 41, 43). Environmental impacts would include not only the project site but thousands of square kilometers of Saskatchewan, which is downwind and downstream of the project. Impact on the region will be considerable. Construction will need a labour force of between 4,500 and 6,600 workers, and the region's population will balloon from 19,500 in 1976 to 44,100 at the peak of construction, stabilizing at about 35,000. About 2,000 permanent employees will operate the project.

THE APPROVAL PROCESS Esso Resources Canada Limited, a wholly owned and newly incorporated subsidiary of Imperial Oil, applied to the ERCB t'or approval under section 45(1) of Alberta's Oil and Gas Conservation Act 2. Section 43(2) of this Act requires a public hearing, at which a number of aspects of the application (including environmental matters) are considered. The Board's approval is subject to the authorization of the Lieutenant Governor in Council. Because coal was intended to be used as the primary makeup fuel, an application was also submitted under the Coal Conservation Act for an Industrial Development Permit. (The Board later revised its approval to permit the use of gas.) Separate applications and ERCB hearings will be required in respect of electricity transmission lines and pipelines. A parallel and overlapping approval process is the responsibility of the Alberta Department of the Environment. Under section 8 of The Land Surface Conservation and Reclamation Act, and Regulations thereunder, an applicant for approval of a project involving significant surface disturbance may be required to prepare an environmental impact assessment. This requirement was imposed on the Cold Lake Project in December 1977. Guidelines for the preparation of such an assessment were released in early 1978 and included social impact assessment and a comprehensive public participation program. This assessment itself is normally not intended to be the subject of public hearings. The Environmental Impact Assessment (EIA) fulfills various purposes. It helps the relevant authorities to assess an application for a permit under the surface disturbance legislation. It also helps the Department of the Environment (DOE) 2 Citations of the Acts and Regulations referre~l to in the text will be found in Part 2 of the References.

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in the assessment of the many permits to construct, licences to operate and other approvals under such Alberta statutes as The Clean Air Act, The Clean Water Act, The Ground Water Control Act and The Water Resources Act. In cases such as the Cold Lake project, approvals are also required from the Department of Energy and Natural Resources under The Public Lands Act, because the project will operate on land leased from the Crown. Submissions to the ERCB must include information on environmental impact, and sometimes the EIA (or a draft thereof, as in this case) is filed with the Board to meet this requirement. As well, EIA's are useful to government departments who must respond to applications which are referred to them. Finally, the assessment is weighed by Cabinet and its advisors in considering whether to grant final approval to a project. Under the Land Surface Conservation and Reclamation Act, and Regulations thereunder, the Minister of the Environment must give a Development and Reclamation Approval before any operation, alteration, extension or abandonment of an oil sands site takes place. This approval process may include reference of the application to the Development and Reclamation Review Committee (comprising representatives of various departments) for recommendations. A public hearing may be held. The Land Conservation and Reclamation Council, the DOE, and the Department of Energy and Natural Resources have published jointly "Guide-

lines for the Reclamation of Land Affected by Surface Disturbance" (December 1977), describing the criteria which will be used to assess development and reclamation applications.

THE ENERGY RESOURCES CONSERVATION BOARD MANDATE (ERCB) A variety of jurisdictional problems present themselves. Both the ERCB and DOE have environmental mandates. Firstly, how broad are these powers, and what level of detail is required to discharge them ? The present situation is unclear, and has been the subject of delicate interagency maneuvering. Secondly, did the Board have the jurisdiction to hear social impact evidence (which took almost one-half of the hearing) ? Its statutes did not mention the term, and the Board specifically stated that it would not use either the cost-benefit or the social impact analysis in its consideration of the application under section 43 of The Oil and Gas Conservation Act. It purported, however, to investigate these matters under section 24 of The 57

Energy Resources Conservation Act, which permits the Board to make investigations and reports on any matter within the purview o f any Act which it administers and to recommend to the Lieutenant Governor in Council "such measures as it considers necessary or advisable in the public interest related (inter alia) to the ... production, development, conservation, control ... o f energy resources and energy". This section, it is submitted, gives the necessary authority. In Athabasca Tribal Council v. Amoco Canada Petroleum Company 3, the Alberta C o u r t ' o f Appeal held that the ERCB has jurisdiction under The Energy Resources Conservation Act and The Oil and Gas Conservation Act to consider social problems likely to be directly created by oil sands projects and to order remedial requirements as conditions to plant approval. Laycraft J. A., speaking for the majority, said:

The present situation is unclear and has been the subject of delicate interagency maneuvering "That jurisdiction is limited to considerations arising from the direct impact of the project on the area affected and to a solution of the problems which the project itself might be expected to create. Where, for example, a community whose economy is based on hunting and trapping will be overwhelmed by a massive high technology project, programs ... designed to ease the transformation of that community to its inevitable new life style are within the Board's jurisdiction. In my opinion, however . . . . programs primarily designed to ... solve problems not created by the project itself are not within the Board's jurisdiction ...". The Court left open the possibility that the Board could also advise the Lieutenant Governor in Council under section 24 of the Energy Resources Conservation Act on broader social issues not directly or solely attributable to the project. Another problem is the jurisdiction o f the federal government, which o f course is keenly interested in large scale energy projects. The project will involve the extraction of huge amounts o f water from an interprovincial b o d y o f water (the Board prefers the North Saskatchewan River over Cold Lake, although it agrees that the final decision on this point rests with the Alberta DOE). But does either provincial body have the final power o f decision? It was also noted that there is federal property in the area affected by the project (Canadian Forces Base Cold Lake and several Indian reserves). Further, much of the air poilu3(1980) 5W.W.R. 165.

58

tion from the project will cross the A l b e r t a Saskatchewan border. Pigeon J., speaking for three o f the four majority members in the Supreme Court o f Canada decision in Interprovincial Cooperatives Ltd. v. The Queen, analogized interprovincial water pollution to interprovincial trade in asserting that the province lacked jurisdiction 4. He was able in that case to base federal jurisdiction upon section 91(12) o f the British North America Act ("Sea Coast and Inland Fisheries"), but he also stated that "the basic rule is that general legislative authority that is not within the provincial field is federal", s On the other hand, since the federal government has not chosen to require permits for activities involving extraction from interprovincial bodies o f water, or interprovincial air pollution, a project developer is entitled to proceed without federal permission. If he chooses to apply for provincial permits (even those which m a y not be constitutionally required), how is he to blame? The interprovincial and federal aspects of this project are underscored by the fact that both federal and Saskatchewan government departments intervened to testify and cross-examine in respect o f particular aspects o f the proposal (especially related to environmental and native peoples' concerns). Some aspects o f the Board's jurisdiction will now be examined.

The Overall Mandate o f the Board Several intervenors, notably the Ad hoc Citizens Committee of Cold Lake and Save Tomorrow Oppose Pollution (STOP) tried to persuade the Board that such items as the following were properly within its purview: (1) The need for the project given the possibility o f reducing demand through conservation measures like: - r e t r o f i t t i n g o f insulation in Canadian homes; -utilizing alternative (soft) energy sources like solar power. (2) Alternative used of the capital involved in the project which could create more jobs. (3) The need to consider the impact o f t h e C o l d Lake project in the context of reasonably foreseeable additional heavy oil projects. The Board dealt with these broad issues briefly. It accepted the demand projections o f the National Energy Board which included some savings from conservation (Report, p. 109), and used a variety o f sources for supply projections 6 . The Board appeared to believe that it is better to have 4(1976) 1 S.C.R. 477, pp. 5 1 3 4 . Sld., pp. 514.

The Environmentalist

some excess capacity if conservation works better than forecast than to have a shortfall o f production if more modest gains are achieved. The Board refused to consider (2). In relation to (3), it chose generally to deal with the impact o f this project in isolation, although it is notew o r t h y that Esso claimed that at least one additional plant could be built in the area without provincial air emission standards being exceeded. Also, the Board's preferred water source was chosen partly because it could supply more than one plant. Was the Board correct in these jurisdictional decisions? A reading o f the relevant statutes suggests somewhat wider powers. Under section 24 o f The Energy Resources Conservation Act, the ERCB may study any matter within the purview of any Act administered b y it relating to energy and m a y recommend to the Lieutenant Governor in Council: "such measures as it considers necessary or advisable in the public interest related to the ... production, development, conservation, control ... use and marketing of energy resources and energy". Recommendations under these powers could suggest the 'development' o f energy resources other than oil and gas, the limitation o f various kinds of energy to appropriate purposes (high grade energy for high grade needs) or the minimization of wasteful uses through energy conservation measures. Regarding alternative energy sources or technologies, Dr N. Berkowitz, Board Member, during the Cold Lake hearing stated: "I would just like ... to offer the comment that, and I am sure my colleagues would agree with me, that it is very much part of the mandate of the ERCB to look at (energy) alternatives". (Transcript, p. 3175) The author concurs. It is submitted that the Board would have been within its mandate to recommend to the Lieutenant Governor in Council that all steps within provincial authority be taken to bring about a reduction in energy demand. As well, it could be argued that it would be within the public interest to recommend that the Lieutenant Governor in 6 It should be borne in m i n d that the ERCB regularly for Alberta holds hearings to consider the overall energy supply and d e m a n d situation. Although it m a y be appropriate to allow an intervenor in a particular application the o p p o r t u n i t y to question the figures, it is not reasonable to expect each applicant to make the complete case on supply and d e m a n d projections. Indeed, it would seem preferable to have groups who question the projections to intervene in the hearings on the overall situation although to argue in a national context would require intervention in National Energy Board hearings.

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Council take the regional context and possible future development into account when considering the Board's report. Thus, it is submitted, the Board could have made recommendations on items one and three raised b y the intervenors. Item two (the economic impact o f various alternative ways to invest the capital needed b y the project) is clearly not included in the Board's mandate. Such overall matters, however, could be (and are) considered b y the Lieutenant Governor in Council. (Premier Peter Lougheed has stated that the province would not approve this project until Alberta gets a fair price for its energy resources (Calgary Albertan, Nov. 6, 1979)).

The Environmental Mandate o f the Board As has already been pointed out, the Department o f the Environment administers the environmental assessment process (which includes a socioeconomic impact analysis) under The Land Surface Conservation and Reclamation Act, and is responsible for numerous permits and licences under environmental legislation. The impact assessment helps DOE determine the broad environmental ramifications o f a proposed project and what terms and conditions should be attached to these approvals, even if the legal relevance o f socioeconomic analysis to this stage o f the approval process is not entirely clear. It is clear, however, that DOE expects a rigorous and complete environmental impact assessment (where the Minister requires one) and goes over application information with a fine t o o t h comb.

Board correct i n jurisdictional d e c i s i o n s ? Was the

these

What mandate does the ERCB have in its approval process to weigh environmental impacts and to impose terms and conditions for environmental reasons ? The statutes do not clarify the Board's environmental mandate. The Board can or must investigate and consider to some degree o f depth measures "to control pollution and ensure environment conservation in the exploration for, processing, development and transportation o f the energy resources and energy" (Energy Resources Conservation Act, Section 2(d)). But how far does this go? Broad or narrow interpretations are possible. The Board tried to solve this dilemma b y saying it "intends to fully inquire into such matters ... in arriving at its decision on the application" (Board Letter). But this did not amount to re59

quifing an environmental impact assessment of the same detail and rigour as DOE. Indeed, the "Draft Final Environmental Impact Assessment", although clearly inadequate for DOE, was acceptable to the Board which was: "satisfied, that the material it has before it, with respect to the environment, although it is conceptual in certain areas, and with respect to certain details that may be missing, is nevertheless adequate for purposes of this hearing, and for the Board's appraisal of the application". (Transcript, p. 262) Esso argued that since the two sets o f approvals were separate, there was no need to t'lle the Final EIA with the Board. The intervenors, however, had a far more robust view o f the Board's need for detailed information. James Hope-Ross, a lawyer hired b y the Board to assist citizen intervenors, in his Closing Statement argued that: "The Board intends to assess the environmental evidence as thoroughly as that of a technical nature. Having arrived at that resolve, and the Board having added Mr Solodzuk as a specialist in environmental matters to assist it in the assessment of that evidence it is respectfully submitted that if there is not sufficient evidence before the Board to satisfy the Alberta Department of Environment, nor to satisfy Environment Canada, nor to satisfy the Saskatchewan Department of Environment, then there is not sufficient evidence to satisfy this Board". (Closing Statement, Feb. 15, 1979) The Board considered that its d u t y was to assess environmental impacts to see whether in principle they would be acceptable with certain mitigative measures. However, it was careful to say that DOE would be responsible to set terms and conditions at the permit stage. "The Board believes, however, that it is not the proper authority to make final determinations respecting environmental impacts, standards or reclamation, and that such determinations are the responsibility of the Department of the Environment ...". (Report, p. 5) Its report merely stated its 'preference' for the North Saskatchewan River as the water source for the project, and that its conditions on release o f certain waste waters would be consistent with DOE's requirements (Report pp. 97 and 100). Analogizing from the Athabasca Tribal Council case, it can be argued that this is t o o timid a view o f the Board's jurisdiction and that it could impose its own environmental conditions. The problem o f duplication with DOE would, however, almost certainly arise. If detailed consideration o f approvals for construction and operating are left to DOE, it might be asked what the Board can do with its mandate which would not be done in the 60

DOE process. What does an environmental approval in principle add, if it is based on incomplete design and environmental information ? The ERCB hearing did give the public a structured forum in which to express its environmental concerns (which is important), but as Jean Poulin o f STOP said, a conceptual description o f the project does n o t suffice because: "if the Board is to decide what the environmental impact is then we have to know for sure what it is they are proposing. Without that it becomes close to a farce for ourselves". (Transcript,p. 624) Government officials expressed the same frustration that decisions such as whether coal would be transported b y slurry pipeline or railroad had not yet been made. Because this hearing was the only planned opportunity in the approval process for the public to test the project's impacts, the information filed does not seem adequate for full public participation. A later undertaking was given b y DOE that the public would have a chance to react to the Final EIA, b u t it was not contemplated to be through a public heating, and there are strong arguments that one comprehensive heating is more efficient than splitting up (and dissipating) public participation opportunities. The best way o f handling the issue might be to require an applicant to f'fle a Final EIA acceptable to DOE before a hearing is called b y the Board 7. This would also have expedited the heating b y giving the intervenors all the necessary information in advance. To summarize, the present division o f jurisdiction over environmental matters is ambiguous, and the situation must be clarified b y legislation. Later in this study some overall recommendations to improve the approval process will be made. PUBLIC PARTICIPATION IN THE COLD LAKE

APPROVAL PROCESS

Before the Hearing Immediately after the application for approval was made, public meetings were held in the communities affected. The second step was the formation of the C o m m u n i t y Advisory Committee, (CAC), representing the communities, Indian Bands and the Metis Association. Its function was to provide an information focus for the planning of expanded c o m m u n i t y facilities and advising on employment and business opportunities. 7As of July 1980, this change in procedure seems to have been made--see Energy Resources Conservation Board and Alberta Environment, "Environmental Impact Assessments", Information Letter IL 80-19 (July 24, 1980).

The Environmentalist

As well as these activities, Esso opened community offices staffed by local residents. Before the public hearing, company representatives attended well over 100 meetings and discussed the project with upwards of 1000 people. Many residents believe that at this stage Esso was engaging in a traditional public relations exercise, and that benefits of the project were overstressed and possible negative impacts down played. During the early summer months of 1978, events occurred which began to change the attitudes both of the applicant and the community. The Community Impact Coordinator from Alberta DOE, Brian Plesuk, was sent to Cold Lake to assist residents in preparing for the public hearing. It is worth looking at his role and achievements, because generally, the author believes, a catalyst is needed to spark widespread citizen participation. Few citizens in regions where large scale resource development occurs have the necessary training in community animation and knowledge of the regulatory process. Further, the initial response to development projects centres around their positive economic benefits. All of the actors in the hearing process concede that Plesuk played an important role in facilitating community interest and participation. His duties were variously described. The official DOE view was that he was to act as a non-partisan provider of information, to help the local citizens understand the approval process and government standards, and, if requested, to help groups organize and prepare submissions 8.

A catalyst is needed to spark widespread citizen participation On the other hand, both Esso and some com-munity people (from different points of view) saw Plesuk as a kind of master mind, an agitator or someone who 'stirred the pot' to get it boiling. As one Esso representative pointed out, however, if your job is to encourage community participation, then, given the tendency of people to remain apathetic unless they get mad, you get them mad. And he conceded that Plesuk had certainly encouraged participation. Usually, DOE's community impact coordinator helps the applicant as well as the residents. In this case, however, animating the community made such demands on Plesuk's time and energy that s At this time, the position o f C o m m u n i t y Impact Coordinator was fairly new and DOE's coordinators were still gaining experience and developing their role.

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no time was left for Esso. It also appeared that at this time, at least, Esso did not feel the need for assistance. The company thought things were in hand. Being an outsider, mandated to help the local people, creates a very delicate situation. Plesul~ was doubly handicapped as a government employee, because he was seen as a member of the visitors' team in 'the only game in town'. Some people wondered if he could give the local citizens objective advice when his Deputy Minister was helping to hear the case, and when his Assistant Deputy Minister was appearing before the Board on behalf of the Department. DOE was not seen as a vigorous champion either of the environment or the residents. At this time, most residents of the region were either completely for the project, or else they felt fatalistic about it. They did not believe they could have an impact. Plesuk and his two assistants soon changed that perception. The dynamics involved were fascinating. The team took copies of the company's draft EIA around to communities in the region and discussed it with individuals and groups. They then assisted groups in preparing interventions to be submitted to the ERCB (and Esso). When Esso received copies of these interventions, company representatives spent many hours and much effort explaining the project and attempting to meet the expressed concerns. The more effort they put in, the more questions arose in people's minds. It would seem, however, that little concrete action would have resulted without the team's activities. A more important development was the newspaper supplement to the Bonnyville Nouvelle and the Cold Lake-Grand Centre Sun for the week of July 9, 1978. It gave the facts about the proposed project and the approval process. It identified what proved during the hearing to be important issues of social impact, and mentioned the environment. It also told people how to get involved. Most of this text was written by the public participation team, but the supplement was reviewed by the CAC executive. Certain other features of the supplement roused considerable emotion. The supplement was headed by a sketch of the project, on the shores of Cold Lake, with intake and effluent pipes sticking into the water, and a plume of air pollution. On the lake, people were shown fishing and sailing. The second controversial feature was a number of interviews with a cross section of prominent citizens, some of whom expressed serious reservations about the social and environmental impacts which the project would bring. When the supplement was published, company officials were very angry, especially about the 61

misrepresentation implicit in the sketch that effluent from the project would be dumped into Cold Lake. The Minister of the Environment was phoned about the supplement, claims were made that citizens had been misquoted, a citizen wrote to the Minister demanding Plesuk be fired, and Esso suggested that a second, more balanced flyer be produced. One was produced in late November 1978, which gave a more muted description of the issues involved. Needless to say, this storm of controversy engendered more interest in the project. As well, many citizens developed greater confidence in Plesuk. In late July, a meeting organized by the participation team attracted more than 200 people. Largely farmers, they were incensed by statements in the draft EIA that their farms were not very productive, conclusions Esso's consultants had reached by using the Canada Land Inventory. The Farmer's Advocate (an appointee of the provincial government under surface rights legislation) and the District Agriculturalist both spoke at the meeting. When Esso representatives told the people, among other things, that they could sell their farms at a profit because of the project and come and work at the plant for more money, an organization, the Lakeland Environmental and Agricultural Protection Society (LEAPS), was quickly constituted--with the help of the participation team. At a later meeting, this group was encouraged by representatives from farmers who had participated in the Genesee coal hearings held by the ERCB. (Again, the team brought these people in.)

This storm of controversy engendered more interest in the project Local residents were also involved in early organization efforts which resulted in a citizens' group called the Ad hoc Citizens' Committee of Cold Lake. The participation team worked with local groups, helping them organize briefs and describing the heating process. But few people expected their efforts to have much impact. In August, it became clear that an overall meeting of the citizen groups was desirable. So the team organized one. This meeting had important results and was probably the turning point for the citizens. About 30 groups sent representatives, and the feeling of strength and unity created by their presence gave 62

great encouragement. It was decided to apply for an adjournment of the hearing, on two main grounds. The "Draft Final EIA" had just been released and it was felt that people needed more time to study it and prepare a response. Secondly, the farmers would be in the midst of harvest in September and would not be able to attend the hearings and make their submission. Very few people thought the application for an adjournment would be successful.

Public Participation During the Hearing In the preliminary meetings with Board staff, complaints were made by some citizen groups that they lacked the resources and the experts to challenge Esso's staff. They used their need for legal advice as one example of their problem. The Board was sensitive to this problem and made two announcements. The first, in late August 1978, was that it had hired James HopeRoss to give legal advice as required to local and regional intervenors. The second was that the government would consider: "suitable documented applications for reimbursement of a share of costs for individuals or groups of individuals who fmd it necessary to file an intervention because of possible impact of an energy development on their property". (Transcript pp. 17-18) This apparently narrow eligibility might be generously interpreted to include economic or social as well as physical impact upon property. The retaining by the Board of lawyer James Hope-Ross was one of the most interesting aspects of the public participation process in the Cold Lake hearings. Several obvious problems presented themselves, although they were successfully overcome. The first problem was the relationship between Hope-Ross and the 'client' who was paying the bill, the ERCB. Both he and the Board agreed from the outset that the Board could not, and would not attempt to instruct him as to his role. His general instructions were that he was to act on behalf of intervenors, and that he could not act for one intervenor to the detriment of another. Another problem was the distrust of the local intervenors. Could they depend on an outside lawyer who was paid by the body holding the hearing? How could anyone come in at the last moment and give informed advice to people he had hardly met? Hope-Ross had only two days in the region before the hearing convened on September 5. In that visit, he had just enough time for introductory meetings with the groups to go over procedures. Another problem that Hope-Ross faced was the possibility that two of the intervenors would

The Environmentalist

develop conflicts of interest and that he would be expected to advise and represent each. Indeed, during the hearing of the application for an adjournment, he asked for a three-month delay in the hearing on behalf of a number of intervenors, and immediately said he was instructed by others to urge the Board to proceed at an early date (Transcript p. 29). Fortunately, this untenable position did not arise again and he was able to help intervenors with different points of view explain their views to the Board. If other such conflicts of interest had arisen, Hope-Ross had decided that he would advise each group on procedure, but would not have acted in the matter in question for either side. It is agreed on all sides that Hope-Ross carried out his assignment with great ability. On September 5, 1978, the Board convened the heating, and LEAPS applied for an immediate adjournment. Even through a reading of the transcript, the emotion of the morning comes through. Selfstyled 'ordinary people' were about to face experts from a huge corporate enterprise before a sophisticated and able Board. Could they have any impact, or was the whole exercise just a statutorily required ritual ? James Hope-Ross described his reactions: "Upon looking back on it, all of the regional interest intervenors showed amazing self-control. The room was jammed. The Board sat on a raised platform. Interested oil company personnel occupied most of the seats. Television lights, flash bulbs and microphones imposed themselves on bewildered, upset, even angry individuals. Yet everyone awaited quietly". One by one, local groups and individuals got up and said their piece, the Board then announced a delay of at least two months. The Board gave a reception the evening of September 5, and it turned into a victory party for the elated local citizens. One of the most meaningful and educational periods in many people's lives was well under w a y - - b o t h in terms of the subject matter and the friendships made. Nearly everyone feels that the hearing resulted not in an adversarial confrontation, but in the creation of attitudes of mutual respect and of working together as equals. Some felt that Esso, having had the weakness of some of its material exposed (not through incompetence, it will be submitted, but due to its deliberate corporate strategy), redoubled its efforts at public participation and at being welcomed as an important part of the region. When the hearing reconvened on December 4, DOE's performance was watched skeptically by the intervenors. Whether or not DOE representaVol. 2~ No. 1 (1982)

tives felt they had something to prove, they began vigorously. The Department had decided to help the intervenors show the deficiencies in Esso's EIA, and the cross-examination by Assistant Deputy Minister Henry Thiessen was very searching. The Department acted as questioner for all interested government departments, and did a wide ranging and effective job. DOE opened up lines of questioning for intervenors to pursue (Department representatives did their best, however, not to steal the intervenors' thunder), and through Plesuk, there were attempts at coordination. DOE also made an important contribution by demonstrating how to conduct effective cross-examination and by 'breaking the ice', that is, creating an atmosphere in which intervenors felt it acceptable to persist in their questioning. It might be asked why DOE persisted in putting detailed deficiencies on the record. One reason was that it obtained specific public commitments from Esso in response to various deficiencies. This, it is felt, will remove the need to negotiate these points in the future. Several clear impressions may be gathered from the transcript. The first is that a number of intervenors were more frustrated with the government than with the applicant. But because government representatives did not testify, and because the proposed project would be the occasion for the growth of the communities and many social impacts, many intervenors wanted Esso t o undertake that future social problems would be solved. Continually, Bob Peterson, Vice-President of Esso Resources, was asked what the company planned to do about such items as day care centres, schools, preventive social services, and recreation facilities. Continually, Peterson responded that the company would pay huge taxes (approximately $10 million per year), that millions of dollars would be spent in Alberta concerning the project, and in turn, would be taxed as income in the hands of the recipients. He thought that it was the government's role to provide these kinds of facilities in Cold Lake, the same as anywhere else. Overall, the company believed that its responsibility in social areas was to prepare a suitable social impact assessment, and to suggest mitigative strategies. It should not be called upon to finance these public facilities, nor should it presume to know better than local and provincial governments what specific types, sizes and scheduling of facilities would be appropriate. On the other hand, as a good corporate citizen, Esso would give to worthy causes in the communities, such as a park or recreation facilities being planned by the local people. 63

A second impression is that the Draft Final EIA was clearly deficient. It is the author's impression that Esso chose a minimum effort strategy. Rather than spend a fortune preparing an encyclopedic and complete applic/ttion, Esso appears to have used an 'incremental process' of submission and amendment in response to feedback from the regulators. In the light of the $60 million that Arctic Gas is alleged to have spent doing studies for its now defunct MacKenzie Valley pipeline proposal, this is an intelligent strategy, although it leaves an applicant open to delay because of inadequacies in its submission. I

The company believed that its responsibility in social areas was to prepare a suitable social impact assessment It is the opinion of several respondents that Esso's application was clearly premature, having been made in the midst of ongoing discussions with several government departments about possible contents. In spite of the series of amendments to the application and the three-month adjournment of the ERCB hearing, however, it is the author's impression that the approval process was no longer than if more time and money had been spent in preparing a definitive application before submitting it. If the approval process was actually lengthened by these delays, it is believed to be the result of a calculated risk by E S S O 9 . The level of goodwill during the hearing was quite high. Numerous people commended the company for aspects of its application. Individuals were praised for their cooperation, and intervenors often commended the Board for its patience and fair mindedness. Indeed, company and Board personnel were often invited to private homes for dinner after the day's proceedings. This is not to deny that there were criticisms. One important point was made by Jean Poulin of STOP, who pointed out that the public would be absent from the later licensing phase of DOE. Licence applications are confidential and Esso refused to agree to release any confidential material. Furthermore, Poulin expressed fears that enforcement would not be vigorous without public involvement. He claimed that some of the worst violations of environmental standards in Alberta had been brought to light by interest groups such as STOP, not by DOE. 9Esso disputes this interpretation of events.

64

Elmer Kure of the Alberta Fish~ and Game Association agreed: "The fact is that most of the problems that have been discovered relative to pollution in this province have been discovered by other than government agencies, and it has been brought to their attention by citizens." (Transcript, p. 3050.) From the transcript, it is clear that the vast majority of citizens in the region favour the project if their concerns are met. Some of these concerns, such as the desire of the native people for affirmative action training and employment programs are extremely important, and it is not known at this point whether their demands will be met. Certainly the ERCB's Report expressed great concern that considerable efforts be made in this regard. Finally, it should be noted that a total of 67 different organizations or individuals intervened in the hearing and that about one half of the 4000 page transcript was devoted to economic and social impact matters.

Public Participation After the Hearing It should not be thought that the hearing was the end of public participation in the Cold Lake project. The hearing just began the process. Esso conducted an intensive series of workshops and open houses to obtain input for the preparation of the Final EIA. As well, the company looks forward to a fully cooperative process involving regional residents and their representatives, provincial government officials and their own staff over the life of the project. Most of the consultation is expected to occur through the Community Advisory Committee. This body's original raison d'rtre ended with the hearing, but there was considerable discussion during the proceedings about the need for a monitoring committee involving citizen input. It was not contemplated that this group monitor effluent, but that any problems (including high effluent readings by company or DOE personnel) would be fully discussed and action demanded through a liaison committee with strong citizen input. Another ongoing mechanism of crucial importance is the Intergovernmental Task Force, chaired by AI Craig of the Executive Council. Although (in common with nearly everyone else we have met) he was not appointed until the last m o m e n t (August 15, 1978), Craig's task force provides coordination of Governmental activities regarding Cold Lake at the highest level, since either Deputy Ministers of the relevant provincial departments or their personal appointees sit on the coordinating body, and since Craig reports directThe Environmentalist

ly to the Chairman of the Economic Planning and Resource Development Committee of Cabinet, Hon. L. D. Hyndman. This mechanism, together with the roasting of social service departments during the hearing, has encouraged 'proactive' instead of 'reactive' planning within government departments, and as a result future projects will see a far higher standard of social impact analysis and social service planning by the provincial government. Several other opportunities for future public participation will arise. An undertaking has been given by DOE that the Final EIA will be issued to the public for reaction before DOE approvals are issued. Formal hearings are not contemplated, but seminars and meetings will be held. In the context of the rapport and respect already built up by the ERCB hearing, this arrangement seems adequate. Without this climate of trust and the opportunities which existed at the hearing for cross-examination, such a plan would be inadequate. THE ERCB's DECISION

The project was recommended for approval by the Board to the Lieutenant Governor in Council, subject of course to specific approvals by government departments under all relevant legislation. The Board also attached its own terms and conditions both technical and environmental, but acknowledged the role o f DOE in the latter sphere. A separate part of the report made vigorous recommendations based on the social impact evidence the Board had heard. The simplest way of summarizing this part o f its Report is to quote from its press release of October 29, 1979 (at page 3): "One of the more significant social impacts would be the need for additional infrastructure facilities to accommodate an increased population which might range as high as 18,000 during the construction period and 10,000 during the operating life. Planning by Provincial and local authorities and the provision of frontend funds by the Government for these facilities is required. Such planning must also deal with ways of minimizing the negativeeffects of the proposed project on townspeople, local native people, trappers, fishermen, farmers, and other residents. Similarly,a considerable degree of planning would be required to ensure that appropriate and timely training is made available to local residents, particularly from the native communities, to allow them to take advantage of employment and business opportunities created by the project. The coordination of these planning efforts should be handled by senior Government officers of concerned departments, but should also involve the applicant and regional public interest groups. The Board believes Vol. 2, No. 1 (1982)

that the Cold Lake Regional Coordinatingoffice would be one appropriate vehicle by which such coordinated planning could be accomplished." EVALUATION OF THE CASE STUDY Both process and product must be assessed in evaluating the success of public participation. The costs of delay must be weighed against the improvement of the project and its acceptability to the people concerned. Intangibles like the personal growth and satisfaction of the participants must also be considered, as must other benefits o f democratic decision making.

Participation Before the Hearing The pre-hearing participation phase was unsatisfactory. Virtually every respondent felt that Esso's decision to prepare the draft EIA with minimal community input was wrong. Whether correctly or not, the company was perceived by many citizens as trying to 'snow' the communities by stressing positive benefits and downplaying potential harms. Esso seems at this stage to have used the one-way approach of disseminating information instead of trying to engage the citizens in a cooperative, two-way dialogue to foresee future problems and to plan solutions together. Esso's staff, however, were almost universally admired as sincere, and the perception of most respondents is that its present attitude toward participation is good.

The costs of delay must be weighed against the improvement of the project and its acceptability to the people concerned Another weakness concerned the provincial government's delays in sending Plesuk into the community. With more time, he could have helped to stimulate more interest and involvement, and he would have been able to devote more effort to working with the applicant. The public participation coordinator's role is meant to be nonpartisan, and in a later project such as Alsands the worker was able to keep the desired balance. Lessons have been learned from these deficiencies in the Cold Lake pre-hearing participation phase.

The Hearing Phase Citizens probably had direct influence on some project details. For example, traffic routes were changed to reflect community concern, as were 65

other plans to change 'construction campcommunity interaction'. Compensation was to be provided for trappers. The amount of water to be recycled was increased, and public input strongly supported the extraction of water for the project from the North Saskatchewan River instead of from Cold Lake. Further, emission of effluent to Beaver River was opposed. On the other hand, decisions on the use of water ultimately depend on DOE, which strongly favours these positions. Both the company and a majority of intervenors favoured the use of natural gas as the makeup fuel, but the Board opted for coal. This reinforces the suggestion of one Board member that participation made some decisions easier, and some harder. He felt that the main impacts of participation were on government departments who were quite severely criticized, and on Board procedures. The insistence by Indian and Metis leaders on positive action to recruit, train and hire native workers certainly attracted the support of the Board. It seems fair to conclude that this type of program will owe its existence directly to these submissions. It seems, therefore, that the Cold Lake experience supports various justifications of public participation offered in the complete text of this study (see note p. 1). The Post-hearing Phase Tlae unsatisfactory relationship between the EIA process and the ERCB hearing and approval process must be kept in mind. If one treats the ERCB hearing as the only opportunity for public examination of the EIA (instead of as a more limited assessment for Board purposes), then clearly sufficient and timely information was not available. The Final EIA was released nine months after the hearings ended. It will be recalled, however, that DOE undertook that public input would be permitted while this document is being assessed. The participatory process was accessible. No one was refused the right to intervene, the failure to file documents on time was not used as a ground to exclude participation, and a total of 67 individuals or groups with diverse points of view intervened. People could have used more time and resources to prepare submissions, although it is recognized that there must be reasonable limits on the length o f ' t h e process. Although only affected property owners (or an organization speaking for them) were eligible for awards of costs, the total assessed was almost $20,000 and one organization (Lakeland Environmental Agricultural Protection Socie-

66

ty, LEAPS) received more than $5,400, not an insignificant sum. But clearly intervenors in the approval process of multi-billion dollar projects cannot fairly be expected to be well prepared and effective on volunteer time and resources. Whether or not they truly represent the public interest, it is in the public interest that they be heard. As for representativeness, the tenor of the remarks of the intervenors (who covered a range of environmental, business and social concerns) seemed consistent.

No one was refused the fight to intervene If the provincial government implements the observations of the ERCB regarding social impact matters, the people of the region believe that they will benefit from the project. For this reason, few of them desired to mount a fundamental attack on the project or the values underlying it. Of those who did present such evidence, they were allowed to present most of their points. It is the author's impression, however, that the Board listened more out of courtesy than of a willingness to assess the project with the criteria suggested by such intervenors as STOP. Recommendations on this point will be made later. The hearing process, although less formal and less confrontation-oriented than the usual public hearing in the approval process, were still found intimidating by some groups. It is very difficult to solve this problem completely. If supporters of public participation want a public forum in which to make their case before an approving agency, there are noJ; many options. The Berger inquiry (1976) on the proposed MacKenzie Valley pipeline did go somewhat further than the Board, in holding informal community hearings without lawyers and cross-examination, but here the hearing was in the region affected, on the home turf of the intervenors. Furthermore, the applicant cross-examined very rarely. It may be that people just have to learn to make their submissions in an atmosphere which is made as comfortable as possible, but which retains the features of a public hearing. As for the effectiveness of public participation techniques, it must first be said that no one sequence is universally applicable. The techniques will vary with the size and complexity of the project, the type of people who wish to participate, whether the project involves a planning exercise, or a policy question where more basic values should be debated, and so forth. If deep value or interest clashes are involved, clearly conflict or The Environmentalist

confrontation should be anticipated in choosing the appropriate participation vehicle. Previous remarks have suggested deficiencies in the pre-hearing phase. The public hearing itself was quite satisfactory procedurally, except that the public did not have a chance to react to the Final EIA. Although DOE undertook to allow public input during their assessment of this document, it would have been more efficient (from the point of view of public participation) to give this opportunity at the ERCB hearing. The contributions of Plesuk and his team ,and Hope-Ross to the hearing process were considerable, but the approval agencies should not necessarily be the ones to employ or retain people to fill these roles. Perhaps a better alternative from the point of view of the citizen intervenors would be to give them sufficient resources and let them decide how to use them. The techniques used in the post-hearing phase appear to be quite suitable. It is hard to measure the cost-effectiveness of the approval process, let alone the public participation component. For example, the mere existence of the process may improve the quality of the project, even without significant changes in projects during their consideration. It is also difficult to attribute costs in delay and money of public participation as part of the approval process. G. J. DeSorcy, Chairman of the Board Panel for this project, estimates that the public hearing process cost the Board more than $100,000 in direct expenses, plus salaries for the Board panel and its staff until the report was issued. The total cost to the Board would be over $250,000. Much of the DOE's and Esso's efforts can be attributed to the EIA and information for the approval process, rather than strictly for public participation. Both had people in the community, however, and staff at the hearings. The author believes that DOE's expenses were less than the Board's, but that Esso's were more. Even if the public participation process for the hearing cost $1 million and if efforts before the hearing and on an ongoing basis costs another million dollars, this cost appears m i n i s c u l e - 0 . 0 1 8 % - - i n comparison with a project cost of $11 billion. As for delay, it is again difficult to disaggregate the amount caused by public participation. Without public participation, there still would have been a hearing. It might have taken eight days instead of more than thirty, a delay of approximately one month. In addition, the three-month adjournment of the hearing is largely attributable to public participation. Vol. 2, No. 1 (1982)

Some of the delay occurred as part of the regulatory process. For example, DOE took somewhat longer than necessary to synthesize the comments of numerous departments and to respond t o the Draft EIA submitted in February 1978 (although part of the reason given for the delay was that much information was so sketchy that it was hard to review at all). DOE's official response occurred in July, although most of their concerns were communicated well before this. The delay due to adjournment of the hearing can be partly said to Esso's unsuccessful efforts to 'fast-track'. Similarly, although the Board took a comparatively long time to make its decision (until October 1979), the applicant caused some of this delay (January to May) with its amended submission for permission to use gas, which required a reopening of the hearing. Furthermore, for reasons of state, the provincial government obviously is ready to accept a greater delay than the one-year delay in the approval process claimed, not entirely convincingly, by Esso. The provincial government did not appear to believe that it would be in Alberta's interest to see this or any new tar sands project go forward until the energy pricing controversy with the federal government was settled. Although this controversy has since been settled, Esso has indefinitely postponed the project, claiming that the pricing and taxation regimes under the agreement do not render it economic. As for questions about the product of the public participation process, the public did have an impact on the plans for the project. Those groups who tried to challenge the values and philosophy underlying the project were not satisfied with their reception. This was partly due to the ERCB's legal mandate as well as the fact that groups like STOP or the Ad hoc Citizens Committee represent a minority 'world view'. Many citizens counted their experience as educational, and there was a considerable increase of self-confidence and in leadership abilities of many intervenors. Subsequent experience indicates that community solidarity was increased, the general level of involvement in the community rose considerably, and the outcome of the hearing made the project more acceptable to many citizens. It cannot be argued that the hearing process resulted in any power sharing, if power is to be defined as the "ability to exercise one's will even over the opposition of others" (Burke, 1968 p. 272). Influence, however, was shared, and this consulting of community people will continue in the post-hearing phase. In the Canadian context, 67

this seems to be all which reasonably could be expected. It is not a trivial accomplishment, however, for community groups to have credibility among and access to both company and governmental personnel. Overall, then, it may be s a i d that many of the objectives of the participants (who largely addressed amelioration questions) have been achieved. One further point should be discussed. Many of the results of public participation in this project contributed to consensus rather than conflict. The project was reasonably acceptable, community solidarity increased, and mutual respect estabfished between the applicant and the region. The government and the company were both seen to respond to the citizen's concems, and this reduced the possibility of conflict.

The public did have an impact on the plans for the project The advantages of a public hearing include its known tradition and legitimacy, its relative dispatch, economy and ease of administration, and the fact that it can be made accessible to wouldbe intervenors and to the general public through the reporting of its proceedings. It is important, as already stressed, that the hearing should be part of an overall participation process, that confrontation not be encouraged by the procedures followed, and that these procedures be as informal as possible in order to avoid intimidation. The public hearing process itself is specifically designed for confrontation, with provisions for the trial type of adversary process. On the other hand, many participants felt that the hearing was not truly a confrontation, but that there was a give and take. Several respondents expressed the view that confrontation can be a counter productive form of public participation. The author fundamentally agrees that as a general principle abrasive, competitive forms of public participation should be avoided. This is quite feasible in a situation where a basic consensus exists and mere details, not basic values, are in dispute. Where, however, there are important basic disagreements among protagonists, it is naive to talk about consensus and cooperation. Participatory techniques which seek to defuse basic disagreements which rational debate between protagonists cannot resolve, amount to attempts at cooption. It is submitted that the hearing model, assuming there is participatory planning before and after as in the Cold Lake case, is realistic and desirable in the assessment of large scale resource developments. For there must be provision for 68

debate and negotiation as well as confrontation. But without the hearing, it would be possible to wear down intervenors in private meetings.

RECOMMENDATIONS APPROVAL PROCESS

REGARDING THE

A number of deficiencies have been identified in the overall approval process. The most important conclusion is the need for clarification, by legislation, of the mandates of DOE and the ERCB. Assessment of social, environmental and economic impacts must be made more orderly and structured to permit timely public involvement based upon adequate information. The conclusion of this study may be summarized as follows: (1) Elected, accountable representatives should retain the fight to decide on resource development projects. If they choose either in legislation or policy documents to create general policies, participation should be fully allowed in the process of making these policies. If the government chooses not to create general policies, the mandate of the public hearing body should be expanded to permit fundamental issues of values or overall energy policy to be argued before it, so that the views of members of the public can be reported to the decision makers. (2) Since the assessment of particular project applications does not consider the adequacy of the province's pollution emission standards, it is recommended that the public be given a structured opportunity to participate in general standard setting. (3) Although, theoretically, conceptual design might suffice for approval in principle to be considered, one overall public hearing, and only one, should occur in the approval process. Therefore, this hearing should be scheduled only after all required studies and material are submitted in a form satisfactory to the relevant departments. A number of deficiencies have

been identified in the overall approval process (4) Because of the variety of subjects which must be covered in one hearing, no one approval agency such as the ERCB, with prime responsibility for a sector of the project, should take the lead role for the whole public hearing, with representatives of the others appearing to be tacked on. In the Cold Lake hearing, the applicant presented evidence through three different panels of The Environmentalist

experts who covered engineering and technical aspects, environmental effects and socioeconomic impacts on the region. Since different government approval agencies or departments have prime responsibility in each of these areas, their representatives should have sat on the panel as well. All members of the hearing tribunal should hear all the evidence and be able to ask relevant questions thereon, but representatives of the lead departments in each area would set approval conditions or make recommendations within their sphere to the Lieutenant Governor in Council (Cabinet). In this way, the environmental and socioeconomic evidence would not be heard in public on incomplete information (as in the Cold Lake case), with the real decision making and negotiation with the applicant taking place afterward behind closed doors in the various government departments. (5) Provided that a full opportunity for public participation has been given in general standard setting and at the project approval stage, no formal participation opportunity need be included in the licensing or permit stage. (6) The Cold Lake approval process would have gone more smoothly if the government had provided more guidance to the applicant. It is recommended that the government provide clear and detailed guidance to applicants for approval of large scale projects, particularly in the environmental and social impact assessment areas, but also concerning public participation. (7) Whether in periodic general hearings (as the ERCB presently holds) or on a particular application, the hearing body must have the responsibility to hear evidence on philosophical, ethical and public policy issues, even if the discussion becomes quite abstract. For example, evidence should be permitted on what 'need' for energy means, or what quantities are needed given this definition, and on the desirability and means of reducing demand through vigorous conservation measures. Indeed, the author would also mandate evidence on alternative sources of energy, and their implications both economically and socially. (8) The hearing panel must be empowered to hear evidence and make recommendations on social, environmental, and cost-benefit analyses of the proposal. (9) At the discretion of the panel, witnesses could be called from relevant government departments. This would avoid the use of the applicant as a proxy for absent departmental representatives who at times should have been given the chance to testify, instead of being pilloried in absentia. Vol. 2. No. 1 (1982)

A further possibility would be to invite ministers to testify, just as they do before committees of the legislature on such items as their departmental budget. (10) The Alberta Government should strive to develop further its interdepartmental integrated planning. Complaints were made during the hearing (Transcript, Kure p. 3038) that it had largely amounted to paper shuffling, and greater attempts should be made to produce overall regional development plans. (11) The mandate of the approving authorities should be expanded to make it clear that approval should be considered in an overall regional context. In the Cold Lake case, the Board was not willing to question DOE emission standards which are set without reference to other possible pollution sources in the air or watershed. Yet if more than one huge project is reasonably likely in a region, the possible combined pollution effects deserve careful consideration during the approval of the first as well as subsequent plants. This recommendation is considered extremely important.

This case study supports the need for strong governmental supervision of large scale development projects (12) Someone like DOE's Community Impact Coordinator is an important part of the public participation process, although the person might preferably be employed by groups in the community. The coordinator should be appointed well before the project moves into the formal approval process, and should work closely with the applicant as well with citizens and public interest groups. If the coordinator is a civil servant, provision should be made, as in the Cold Lake case, to hire local assistance. (13) The present inadequate statutory provisions for financial assistance for intervenors should be expanded. The requirement of a property interest in order to be eligible should be supplemented by broader criteria which go to the ability of relevant interest groups to sustain a meaningful intervention. Perhaps the criteria used by Justice Thomas Berger during the MacKenzie Valley Pipeline Inquiry would be useful here: 1. There should be a clearly ascertainable interest that ought to be represented at the Inquiry. 2. It should be clear that separate and adequate representation of that interest will make a necessaryand substantial contribution to the Inquiry. 69

3. Those seeking funds should have an established record of concern for, and should have demonstrated their own commitment to, the interest they seek to represent. 4. It should be shown that those seeking funds do not have sufficient financial resources to enable them adequately to represent that interest, and will require funds to do so. 5. Those seeking funds should have a clearly delineated proposal as to the use they intend to make of the funds, and should be sufficiently wellorganized to account for the funds. (Berger, 1976, p. 6).

CONCLUSION M a n y lessons have b e e n learned f r o m t h e Cold L a k e e x p e r i e n c e . Since this was t h e first applicat i o n f o r a n y m a j o r oil sands p r o j e c t since 1 9 7 3 74 and t h e first ever f o r a m a j o r in situ oil sands d e v e l o p m e n t , it is e x p e c t e d t h a t m a n y o f t h e p r o b l e m s e x p e r i e n c e d will b e a v o i d e d in f u t u r e applications. A l t h o u g h n o detailed analysis was carried o u t o f t h e steps in t h e a p p r o v a l process, t h e e v i d e n c e g a t h e r e d in this case s t u d y s u p p o r t s t h e n e e d f o r s t r o n g g o v e r n m e n t a l supervision o f large scale d e v e l o p m e n t projects. C o n f u s i o n a b o u t t h e prese n t process was i d e n t i f i e d , a n d r e c o m m e n d a t i o n s w e r e m a d e to r e m o v e it. Deficiencies in t h e public p a r t i c i p a t i o n process w e r e s h o w n , a n d suggestions made for improvement. Delay due to the approval process was seen as a m i n o r irritant, r a t h e r t h a n a m a j o r o b s t a c l e , t o an a p p l i c a n t . S t r o n g geopolitical forces m a y cause far m o r e delay t h a n t h e n e c e s s a r y p l a n n i n g of, and a s s e s s m e n t for, m a j o r frontier energy developments. On t h e o t h e r h a n d , g o v e r n m e n t m u s t o f f e r clearer g u i d a n c e as to t h e a p p l i c a t i o n p r o c e s s and the i n f o r m a t i o n t h e r e f o r e required. With t h e changes suggested herein, it is concluded t h a t t h e a p p r o v a l process w o u l d b e b o t h e x p e d i t i o u s and effective. T h e i n f o r m a t i o n gained, and t h e supervision p r o v i d e d in t h e process m o r e t h a n justifies t h e t i m e and r e s o u r c e s required. This is, o f course, a value j u d g e m e n t resting on t h e analysis herein, b u t m o r e t h a n o n e r e s p o n d e n t suggested t h a t A l b e r t a ' s p r e s e n t e n v i r o n m e n t a l i m p a c t a s s e s s m e n t process m a y be the best in Canada. A r e a residents, w h o in m a n y cases had little f o r m a l e d u c a t i o n or training in t h e subjects b e i n g discussed, d e m o n s t r a t e d great ability to particip a t e in t h e f o r m a l p r o j e c t a s s e s s m e n t process. P r o p o n e n t s o f public i n v o l v e m e n t can p o i n t t o t h e Cold L a k e e x p e r i e n c e as a j u s t i f i c a t i o n f o r t h e i r p o s i t i o n . Relatively few resources were 70

necessary to provide the animation, procedural and t e c h n i c a l e x p e r t i s e n e c e s s a r y f o r the success o f t h e public hearing. REFERENCES 1. Books and Articles Alberta Energy Resources Conservation Board. Report 79-E. In the Matter ofan Application of Esso Resources Canada Limited Under Section 43 of the Oil and Gas Conservation Act and Section 27of the Coal Conservation Act. (Cited as "Report"),

Calgary. Alberta Energy Resources Conservation Board. Transcript of Hearing of Application 770866 of Esso Resources Canada Limited. (Cited as "Transcript"), Calgary. Berger, Thomas R., (1976), The MacKenzie Valley Pipeline Inquiry, Queen's Quarterly, 83, 1. Burke, E. M., (1968), Citizen Participation Strategies, Journal of American Institute of Planners, 34, (5) 287. Esso Resources Canada Limited (1979), Cold Lake Project Final Environmental Impact Assessment, Calgary. Homenuck, P., Dulah, J. and Morgenstern, J. (1978) Evaluation of public participation programs. In Barry Sadler (ed.), Involvemerit and Environment, Vol. 1. Janisch, H. N., (1979), Policy making in regulation: towards a new

definition of the status of independent regulatory agencies in Canada, Osgoode Hall Law Journal, 17, 46. Jenkins, D. J., (1979), Industrial development permits, Alberta Law Review, 17, 467. Kirby, M. J. L. and Kroeker, H. V., (1978), The politics of crisis management in government: Does planning make any difference? In C. F. Smart and W. T. Stanbury (eds.), Studies in Crisis Management, 1 79, Institute for Research on Public

Policy, Montreal. Lucas, Alastair R., (1976), Legal foundations for public participation in environmental decision making, Natural Resources Journal, 16, 73. Nelkin, Dorothy and Pollack, Michael (1979) Public participation in technological decisions: Reality or grand illusion, Technology Review, 81, (8) 54. O'Riordan, Jon, (1976), The public involvement program in the Okanagan Basin Study, Natural Resources Journal, 16, 177. O'Riordan, Timothy, (1976), Policy making and environmental management: some thoughts on processes and research issues, Natural Resources Journal, 19, 55. Plesuk, Brian (ed.), The Only Game in Town (A draft manuscript). Ross, W. A., (1980), Toward a soft energy future for Alberta, Alternatives, Winter. Sadler, Barry, (1978) (ed.), Involvement and Environment Vol. 1, lssues and Approaches; Vol. 2, Working Papers and Case Studies, Environment Council of Alberta, Edmonton.

Sewell, W. R. Derrick and Phillips, Susan D., (1976), Models for the evaluation of public participation programmes, Natural Resources Journal, 19, 337. Sewell, W. R. Derrick and O'Riordan, Timothy, (1976), The culture of participation in environmental decision making, Natural Resources Journal, 16, 1.

SeweU, W. and Coppock, J. T., (1977), Public Participation in Planning, John Wiley and Sons, London. Vendasius, D., (1975), Evaluation of the Okanagan Public Involvement Program, Environment Canada, Ottawa. Wengert, N., (1976), Citizen participation: practice in search of a theory, Natural Resources Journal, 16, 23. 2. Legislation and Regulations British North America Act, 1867, 30 & 31 Victoria, c. 3, as amended. Clean Air Act, S.A. 1971 c. 15, as amended. Clean Water Act, S.A. 1971 c. 17, as amended. Coal Conservation Act, S.A. 1973 c. 65, as amended (especially by S.A. 1978 c. 57). The Environmentalist

Ground Water Control Act, R.S.A. 1970 c. 162, as amended. Land Surface Conservation and Reclamation Act, S.A. 1973 c. 34. --, Land Surface Conservation Regulations, Alta. Reg. 125•74. --, Regulated Oil Sands Surface Operations Regulations, Alta. Reg. 159/76, as amended.

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Oil and Gas Conservation Act, R.S.A. 1970 c. 267, as amended (especially by S.A. 1972, c. 74 s. !0, and 1975 (2) c. 10 s.10 (1)). Public Lands Act, R.S.A. 1970 c. 297, as amended. Water Resources Act, R.S.A. 1970 c. 388, as amended.

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