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Public interest standing and the environment : setting boundaries of participation in energy and natural resource decision making Salomons, Geoffrey H.

Abstract

Public participation processes are touted as an effective way to increase the capacity and legitimacy of policy making. Yet the focus in the public participation literature is primarily on issues of design, assuming a neutral, unbiased public that can be inserted into any public participation process. Consequently, attention is rarely given to who gets to participate in such processes. Recent changes to the Canadian environmental assessment process, an environmental decision making process with a strong public participation component, raise critical questions about who gets to participate. Specifically, the process narrowed the criteria of who can participate to those who are “directly affected”. The result is that a process designed to determine whether a particular project is in the public’s interest has restricted participation from any who were interested to those with the most direct material interests. The directly affected criteria, however, is not new. It is known in the context of administrative law as the test of standing. The test of standing asks who can legitimately bring forth a complaint before the court. As such, it is design to exclude more than include. Through a discussion of the theoretical relationship of representation this thesis presents arguments for why one might seek particular kinds of input for particular kinds of decisions. Analysis of several court cases where the standing test is applied is then used to illustrate both the restrictive nature of the test, as well as ambiguities regarding what constitutes being ‘affected’. This analysis suggests that the consequences of this criterion are that it undermines the ability of participants to effectively represent the public interest. The thesis concludes that restricting participation to the “directly affected” is far too narrow a test for processes like environmental assessment that are designed to determine the public interest.

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