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Published in Fall 2001
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Citizen submission process proves valuable in BC Hydro case
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To date, the CEC has published two factual records in response to citizen submissions, one on the Cozumel Pier in Mexico, the other on BC Hydro. In this second article gauging the effectiveness of the process, as seen through the eyes of the submitters, Jamie Bowman reports that the BC Hydro factual record gets good reviews.
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By Jamie Bowman
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The citizen submission process is showing a wealth of value beyond being a whistle to blow on governments that fail to enforce their own environmental laws. That’s the experience of submitters who alleged the Canadian government has been failing in its obligations under the Fisheries Act and the National Energy Board Act to protect fish habitat from environmental damage due to hydroelectric dams owned by BC Hydro. A diverse group of fisheries, wildlife and environmental organizations made the submission in 1997, eventually resulting in a final factual record released by the CEC in June 2000. (See summary on the CEC web site.)
"Substantive commitments," made by the Canadian and British Columbian governments in responses to the submitters’ claims, and recorded in the factual record, have "proven extremely valuable to us," says Bill Green, executive director of the British Columbia Inter-Tribal Fisheries Commission. "Those commitments have become a very potent tool for us."
Green said he often uses quotes from the factual record to remind the two governments of their pledges whenever he sees them backing away from promised protections for the environment.
Under the direction of the provincial and federal governments, BC Hydro has now embarked on a comprehensive Water-Use Plan (WUP) covering each of its hydroelectric facilities. It includes a stakeholder process to find ways to lighten the environmental cost to the rivers that provide BC Hydro with energy. While the WUP would probably have gone ahead anyway, Green believes that without the factual record the WUP would have been a "much weaker" program. "It would have been a very different balance than what we’re moving toward now," he said.
And although it took just over three years to have a final factual record produced and released, the submitters found results began appearing almost immediately upon filing. The submission garnered increased media attention and greater public interest focused on the twin issues of BC Hydro’s environmental damage and the lack of government enforcement. And soon after that began happening, it became clear government was taking note of that higher public profile, says Randy Christensen, a staff lawyer at the Sierra Legal Defence Fund (SLDF) and the counsel for the submitting groups.
"We saw a change in the approach of government," he said. That was further reinforced when Christensen received a government document arguing for the WUP process to proceed, citing the group’s submission to the CEC as a clear example of growing public concern. "I think the filing of the submission crystallized for the government the building of public awareness; it put it in concrete terms for them."
While nongovernmental organizations have found the factual record valuable in keeping bureaucrats and politicians to their word, the SLDF lawyers have used the document’s findings as a reference in pursuing unrelated legal proceedings on environmental issues. "It has had utility beyond that process itself," said Christensen.
The overall success of the BC Hydro submission has since prompted other groups to seek SLDF assistance in navigating the process with their cases. Two of those, BC Mining and BC Logging, have now been filed and the CEC Secretariat has recommended to the Council—made up of the environment ministers of Canada, the United States and Mexico—that factual records be produced for each case. "The interest by the client groups in filing BC Mining and BC Logging was a direct result of what happened when we filed BC Hydro," said Christensen.
The lengthy turnaround time has been a concern for the submitting groups and the SDLF. However, changes at the CEC are making a difference, Christensen noted. "BC Logging, which is our most recent, has moved through comparatively quickly, as opposed to the time BC Hydro took," he said. The BC Logging submission was filed 15 March 2000, the Secretariat’s recommendation came on 27 July 2001, and now the case is awaiting a decision by the Council on whether a factual record will go ahead.
While environmental groups are finding the process valuable, many are also suggesting the governments of the three countries should do more, including committing enough funding to the CEC to match the issues brought forward by an increased public interest, ensuring greater transparency in the process, guaranteeing full independence for the Secretariat, and demonstrating greater commitment to rectifying environmental wrongs detailed in factual records.
A fully independent Secretariat could compile all relevant information, free of any limitations posed by a government uncomfortable with having its environmental records scrutinized, said Christensen.
"One of the major criticisms [of the process] is that there are no specific means for a country to improve, if a factual record says it has not been meeting its own environmental law," he said. "We think the countries could do a lot more with the findings." But overall, the citizen submission process is improving and "showing a lot of promise," according to Christensen. "There are ways it could be made stronger, but we’re building something new with this mechanism. It’s going to take some time to reach its full potential."
Geoffrey Garver, the CEC’s director of submissions on enforcement matters (SEM) unit, says similarly valuable input also came from a recent review by the Commission’s Joint Public Advisory Committee (JPAC). And, he notes, the CEC Council responded to the JPAC review with positive steps on transparency and timeliness at their June 2001 meeting in Guadalajara, Mexico.
"As the citizen submission process evolves, governments, submitters and the CEC alike are increasingly recognizing what has to be done to improve the efficiency and transparency of the process," Garver said. "At the same time, we’re beginning to hear more and more positive results of the process," he said. "Submissions and factual records shine a light on issues of concern to the public, and it’s clear they are making a difference."
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Lessons Learned: Citizen Submissions under Articles 14 and 15 of the North American Agreement on Environmental Cooperation
Final Factual Record of the Cruise Ship Pier Project in Cozumel, Quintana Roo