As announced in the Green Paper issued in February 2016, the Ministry of Energy and Natural Resources (MENR) is committed to creating an office for major projects coordination and economic benefits and impacts assessment (the Major Projects Office) to coordinate ministerial and interdepartmental action with respect to major projects and assess economic benefits and impacts of major projects for local communities. Read our bulletin dated March 9, 2016, entitled Québec Ministry of Energy Tables Green Paper Setting Out Social Acceptability Guidelines.
The creation of the Major Projects Office is the key feature of the MENR's recent orientations with respect to social acceptability made public on January 24, 2017 (the Orientation Paper). Other orientations include enhancing transparency and access to information on major projects, especially as it relates to the monitoring of major projects as well as to the benefits and impacts of those projects for local communities. The MENR also commits to strengthening its presence in local communities and its role as liaison for all stakeholders.
Orientation 1 - Increase knowledge of the public on the role of the MENR with respect to land use planning and development
Land use planning and management are among the key powers of the MENR, however the role and responsibilities of this department in terms of these responsibilities is not well understood by project developers and the general public. For some, the MENR's role in the promotion of the economic development of resources may seem contradictory to its responsibility as custodian of the territory. By issuing permits, rights and authorizations to project developers, the MENR is often called upon to manage conflicts of use involving economic actors and local communities. Through this orientation, the MENR intends to clarify its role and responsibilities by developing a communication plan for all stakeholders. This plan will include a description of the legislative and regulatory framework applicable to MENR activities, as well as the public participation mechanisms in place. In addition, the MENR intends to disseminate information on the processes of analysis and authorization of projects for the development of the territory and natural resources. From the point of view of project developers, this orientation should allow for a better understanding of MENR's responsibilities for development projects.
Orientation 2 - Enhance transparency and public participation of public land use plan processes
Public land use plans (PLUPs) allow the MENR to define the government's orientations with respect to use and protection of public lands. PLUPs are elaborated at the regional level and establish public lands and natural resources protection, conservation and development goals. The MENR acknowledges that the PLUP elaboration process is unknown to the public and recognizes significant needs for enhanced public participation. In order to remediate those deficiencies, the MENR intends to adopt the following measures:
- Review all PLUPs over a 5-year period;
- Publish the assessment of the PLUPs;
- Assess the possibility of further specifying the scope of the PLUPs, in particular regarding energy and mining projects.
The MENR is also responsible for elaborating regional land use development plans (RLUDPs), which prescribe where, when and how land rights may be awarded so as to avoid land use conflicts. Energy and mining projects are not covered by the current RLUDPs. The MENR therefore intends to assess the feasibility of expanding the application of the RLUDPs to cover energy and mining projects. It will be interesting to monitor the impact of such expansion on the permitting process applicable to energy and mining projects.
Orientation 3 - Implement standard public participation processes applicable to each phases of a project
In addition to the existing consultation processes prescribed by law such as the environmental impact assessment and review procedure (including public hearing before the Bureau d'audiences publiques sur l'environnement (BAPE)), the public consultation provided under the Regulation respecting the application of the Environment Quality Act (CQLR c Q-2, r 3) with respect to drilling and fracturing to explore for or produce oil and gas in shale and the monitoring committees created pursuant to the Mining Act (CQLR c M-13.1), the MENR favours the implementation of public consultations lead by project developers which would be tailored to the specific project and local community hosting the project. Once a specific project is authorized, it is the MENR's intent to create a process through which local communities could have access to information and provide feedback on the conditions attached to the authorizations granted. The MENR also proposes to strengthen the role of the monitoring committees created pursuant to the Mining Act to cover all stages of a mining project, from the very beginning of the elaboration of the mining project throughout the post-closure phase, therefore requiring significant engagement of the project developer at a very early stage of the mining project. Those additional public consultation and engagement requirements could lead to practical difficulties and increase project costs, especially at the very early stage of the project and during post-closure phase as project developers generally allocate less resources at the local level at those stages of the project (for ex. less employees on site) and therefore would need to allocate additional resources to carry out those consultation and engagement activities.
The MENR further commits to adopt a ministerial policy respecting the participation of local communities to the development of public lands and energy and mining resources as well as a ministerial policy respecting consultation with aboriginal communities. Please note that the elaboration by the MENR of an aboriginal consultation policy specific to the mining sector is prescribed by the Mining Act. A draft policy was prepared and circulated to stakeholders in 2015 but the MENR has yet to issue the final document.
We wish to bring to your attention the MENR's commitment to promote best practices at large, which could be a great opportunity for project developers to put forward successful community engagement experiences in past and current projects.
Orientation 4 - Promote benefits sharing of energy and mining projects with local communities
The only real commitment made by the MENR regarding this orientation is to make public the information collected from mining companies pursuant to the Act Respecting Transparency Measures in the Mining, Oil and Gas Industries (CQLR c M-11.5), which is the provincial equivalent to Extractive Sector Transparency Measures Act (SC 2014, c 39, s 376). Such information would include payments of prescribed categories (for ex. royalties) made to municipal, provincial or aboriginal (starting June 2017) bodies or governments.
In addition, the MENR commits to elaborate guidelines and programs aiming at fostering project developers' engagement with local communities.
Orientation 5 - Strengthen the MENR's role in the assessment of economic benefits and impacts of projects with a view to take into account social acceptability
In this orientation, the MENR announces the creation of the Major Projects Office. The Major Projects Office will coordinate ministerial and interdepartmental action with respect to major projects and assess economic benefits and impacts of major projects for local communities. The Major Projects Office will assess the information provided by project developers and make the information and further assessment available to the public for consultation. This orientation has yet to be further clarified: as explained in the Orientation Paper, the Major Projects Office would in a way complement the environmental impact assessment and review procedure (including public hearing before the BAPE, whose mandate is limited to environmental matters) by assessing the economic aspects of a project, more precisely benefits and impacts on local communities. It remains unclear whether this additional consultation process will influence the regulatory approval process, i.e. whether a project having been well received by the BAPE could nevertheless fail to be granted the required authorization for not having passed the "social acceptability test".
In addition to the creation of the Major Projects Office, the MENR commits to allocating more resources into the monitoring of projects, more precisely through an enhanced presence of MENR representatives within local communities. The MENR will create interdepartmental tables for each major project and will appoint a local coordinator in all regional offices of the MENR whose mandate will be to act as a contact point and liaison for all stakeholders with respect to major projects.
We also wish to bring to your attention the MENR's commitment to revisit the legal framework applicable to financial guaranties and environmental protection measures concerning impacts of energy projects and rehabilitation of sites at the end of the project. Similar rules already apply to mining project so this would enhance coherence by making all major natural resources projects subject to similar requirements with respect to financial guaranties and environmental protection measures. It is also expected that project developers be required to create monitoring committees in the case of energy projects, not only mining projects.
Finally, we find it very unfortunate that the Orientation Paper fails to propose a definition of "social acceptability". The importance of "social acceptability" of major projects is discussed at length in the Orientation Paper without being defined. It will be interesting to follow the next developments of the Québec Government's implementation of the orientations presented in the Orientation Paper, more precisely whether or not a definition of "social acceptability" will ever make its way in a draft bill.