The NRCB hearing : get involved - here's how

16 Pages·1996·6.2 MB·English

by  Alberta. Natural Resources Conservation Board

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NATURAL RESOURCES CONSERVATION BOARD
The NRCB Hearing
Get Involved - H ere's How
TABLE OF CONTENTS |
INTRODUCTION 1
The Purpose of the NRCB 1
The NRCB Organization . . . 1
The Function of a P ublic Hearing 1
Making The Review Process Effective 1
Obtaining Information Concerning a R eview 1
Should you Make a S ubmission? . .....' 2
Standing to Make a S ubmission. — 2
What to Include in Your Written Submission 2
Need for. Legal Counsel and Experts 3
Notice of Hearing 4
The Timing and Location of the Hearing 4
Intervener Coalitions. ... \ . . ..... 4
Filing Intervener Submissions. .4
The Conduct of the Hearing 4
The Role of the Applicant ,7 5
The Role of Interveners 5
The Role of Government 6
Hearing Participation and Oral Presentation of Evidence 6
Tendering Documents. . . ...... .... 7
Cross-Examination 7
Final Argument 7
The Board's Decision-Making Authority 7
The Decision Report 8
The NRCB Decision and Other Approval Processes , 8
Appeals -. 8
Joint Reviews 8
APPENDIX A: NRCB Hearing Procedure .9
APPENDIX B: Suggested Participant Checklist 10
APPENDIX C: Points for Intervener Consideration \ 11
APPENDIX D: Cross-Examination Rules and Suggestions: 12
Introduction The NRCB has a small support Making The Review Process
Effective
staff to provide legal, clerical,
This guide provides an
administrative and expert technical
overview and explanation for the services. The NRCB is concerned with
general hearing procedure used by the effectiveness and efficiency of
Two coordinators are appointed
Alberta's Natural Resources from NRCB staff to oversee the the decision-making process. The
NRCB is accountable to the Alberta
Conservation Board (the "NRCB" or process involved in each project
Legislature and, ultimately, to the
the "Board'). It w ill assist members
review. If y ou are interested in
of the public who wish to participate taxpayers of the province for the
participating in a r eview, contact a
careful use of public funds. It m ust
(the legal term is "intervene") in an coordinator as early as possible. The
NRCB hearing. Those requiring a ensure that the project review
coordinators can inform you of new
more detailed, legal description of process does not impose
developments and familiarize you
unnecessary costs and delays on
the NRCB's process, should refer to with the various stages of the
the NRCB Act and the Rules of review process. project proponents or interveners.
Practice Regulation. All participants in the NRCB process,
The Function of a P ublic including the Board itself, are
Hearing
The Purpose of the NRCB responsible for the effective use of
limited resources (both time and
The NRCB was established by
the Government of Alberta to The public hearing allows money). This guide includes specific
individual members of the public,
suggestions on how participants can
provide an impartial, open review
coalitions of people having a maximize the effectiveness of their
process for projects that will or may
affect the natural resources of common position on a p roject, participation and, at the same time,
organized public interest groups, contribute to the efficiency of the
Alberta. The NRCB's mandate, as and federal, provincial and
established by the Natural Resources NRCB process.
municipal representatives to make
Conservation Board Act, is to
representations to the Board and to Obtaining Information
determine whether, in the Board's examine the evidence presented by Concerning a R eview
opinion, these projects are in the
other parties. Public participation
public interest, having regard for the
helps ensure that the Board has The general content
social, economic and environmental requirements of applications to the
access to relevant and reliable
effects of the proposed projects. Board are set out in the NRCB Rules
information from different
of P ractice. Applicants are
perspectives when determining if a
The NRCB Organization encouraged to place greater
project is in the public interest.
emphasis on those elements which
The NRCB is a q uasi-judicial The Board's process will include
are expected to be central to the
tribunal created by the Natural a p ublic hearing in cases where the
Resources Conservation Board Act. Board has determined that a decision-making process.
A r eview is initiated when a
Board members are appointed by hearing is appropriate or where a
Cabinet. In addition, the Chair may bona fide written objection has been project proponent discloses a
reviewable project to the Board.
select acting Board members from a submitted by a p erson whom the
When a f ormal application is
list of individuals nominated by Board considers would be directly
received, the Board publishes a
Cabinet to assist in the performance affected.
Preliminary Notice of A pplication in
of NRCB duties. ’
local and regional newspapers. The
notice indicates where a copy of the
GUIDE TO
T H NRCB HEARING
What to Include in Your
application is available for viewing Standing to Make a
(usually at regional public libraries Submission Written Submission
and the NRCB office). It a lso
The NRCB Act states that status The legai rules under which the
indicates that persons with an
shall be granted to individuals Board operates require that parties
established interest in the
whom the Board determines to be to the process not be surprised by
reviewable project may obtain a
directly affected by the proposed new or unfamiliar information
copy of the application and asks
project and that the Board may at during the hearing; therefore,
that parties interested in
its discretion recognize the status of written submissions are requested,
participating in the review or
others. by the Board on or before a d ate
receiving further notices concerning
The Board has stated that all aHenadr i ntgi.m e specified, in the Notice of
the project contact the NRCB.
individuals or groups of individuals
that wish to provide relevant The NRCB wishes to receive
Should you Make a
Submission? evidence about an application information that will assist it t o
before the Board, or ask questions reach a d ecision regarding the
To fulfill its mandate, the Board of other participants, are entitled to public interest relevant to the
relies on the information provided do so. All that is required is that
proposed project. A d istinction
should be made between
in a p roponent's application and they register and make themselves
information in submissions from available to participate in the public information that is interesting and
interested or concerned individuals, hearing. Those wishing to information which the Board must
provincial and federal government participate must register with the know to reach its p ublic interest
departments, municipal authorities, Board within the time set out in the decision.
and interest groups. Only Notice of H earing. In many cases, the Board will
information brought forward during Obtaining standing to make a have convened a P re-Hearing
the review process can be submission to the NRCB should be Conference to consider preliminary
considered by the Board in its distinguished from being eligible for and procedural matters regarding
determination of the public interest. the application and issued a R eport
funding under the Act's intervener
You should make a s ubmission
funding provisions. Funding to assist ofPre- Hearing Conference. This report
if y ou believe that you have in the preparation and presentation may deal with a variety of issues
information that. will assist the of a submission to the NRCB may including the scope of the review
Board in determining whether the be available to certain interveners. and major issues to be discussed at
proposed project is in the public The Board has prepared a separate the hearing on the application. You
interest. guide on this subject (Cuide to should review this document prior
Your submission may include Intervener Funding) which may be
to preparing your hearing
expert or lay evidence, a response obtained on request. submission.
. t o or critique of the application, or The Board strongly encourages It i s important to ensure that .
opinion and suggestions as to the all p articipants intending to seek your submission clearly deals with
appropriate disposition of the those issues that represent your key
funding as a " directly affected" party
application by the Board. to seek a d etermination from the concerns regarding the application
Board regarding their eligibility as in the most effective manner.
early as possible.
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GUIDE TO
THE N R C B HEARING
Your written submission is t he and information related to Need for Legal Counsel and
principal means for you to put issues that are likely to have a
Experts
information and arguments before significant impact on that It i s not necessary that you
the Board. Your participation in the
diencfiosrimoant i o(nf)o;c us on "pertinent" retain the services of a l awyer to
hearing process may be limited to a
represent your interests. However,
brief summary of the written (d) fully supported factual
you may wish to retain the services
submission and responses to cross- statements where possible.
of a l awyer if t here will be issues
examination by other parties. . Avoid arguments based on
that involve legal complexities. In
Written submissions are read unsubstantiated assumptions or
intuitions; this event, you may want to
by the Board and taken into
consider retaining legal counsel only
consideration when the Decision
(e) a summary of y our submission
for those portions of y our
Report is p repared. Consequently, it i s outlining the major issues to be
submission that require such
essential for effective participation that addressed and your conclusion
assistance. Some applicants do
your submission contain a c lear and on each issue;
retain legal counsel, at least to
concise statement of y our position on (f) ail the information you propose
represent their position during the
the application, the reasons for that to present in evidence including
position, and all the information a l ist of all exhibits to be filed public hearing.
You may decide that the
required to support your position. In and a copy of each exhibit.
services of an expert would increase
addition, you may want to include Your oral presentation to the
the effectiveness of a submission.
reasonable alternatives to the Board (if y ou wish to make one)
Under such circumstances, you may
project design as proposed, should only highlight the key
wish to consider whether other
suggestions to alleviate impacts, and points in the written material;
interveners have similar interests
conditions that might be imposed and
and would wish to share the costs
on the project to satisfy the public (g) an estimate of the time associated with retaining the
interest should it b e approved. You required for your oral
services of an expert. Becoming
should keep in mind that the presentation and any time
aware of the intentions of other
constraints, on the availability of
Board's responsibility to decide interveners may allow you to
whether or not a p roject is in the expert witnesses.
reduce your expense. The Board will
public interest means that it m ust If y our participation is to be
circulate a copy of submission
take into account the interests of all confined to cross-examination and
summaries for all registered parties
Albertans. argument at the hearing, please
to assist you.
The following information notify the Board, in writing, by the
Obtain clear information from
should be included in y our hearing submission deadline date. If y our
submission: submission contains a t echnical any experts you choose to retain
concerning the costs of their
(a) a clear statement as to whether report or material of a t echnical
services, including the cost to
you believe the application nature, outline the qualifications of
appear at the hearing. If y ou are
should be approved or rejected the person signing or taking
interested in p ursuing funding to
and your arguments supporting responsibility for the report or
assist with the preparation and
that position; material. .
presentation of a h earing
(b) a f ocus on a f ew key issues or Finally, if y our submission is
submission, please refer to the
arguments. An approach that lengthy, provide a copy on
attempts to cover all bases is computer diskette. This will assist Board's Funding For Eligible Interveners
not effective; the Board to review the material Regulation and Guide to Intervener
Funding, both of which may be
(c) information that is essential for and prepare its Decision Report.
the Board to reach a d ecision obtained by contacting the NRCB.
a
GUIDE TO
THE N R C B H E A R I N G
"V i i . j—iMMMWIiiilMi -INMHNHHMi
Notice of Hearing Intervener Coalitions submissions are made available by
the Board for public examination at
If a h earing.on an application is Since participation in the NRCB
the public locations set out in the
to.be held, a N otice of H earing will be process can take considerable time Notice of H earing.
published in local and regional and effort, it m ay be advantageous
newspapers at least thirty days prior for you to form a coalition with The Conduct of the Hearing
to the hearing date. In addition to others sharing the same views. In
this formal notification procedure, addition to sharing the work load NRCB hearings provide an
copies of the notice may be mailed among participants, intervener open and fair public forum for the
directly to individuals who have coalitions can increase the efficiency presentation and testing of
contacted NRCB staff and expressed of the NRCB process by reducing technical, environmental, social, and
an interest in a p articular project. the number of individual economic evidence relating to
The Notice of H earing includes: submissions to be considered. proposed projects. They also permit
(a) a b rief description of the the orderly expression of differing
subject of the application; Filing Intervener Submissions points of view by interested parties
(b) the time, date, and place of the and an opportunity to present and
The NRCB Rules of P ractice
hearing; defend evidence in support of those
require that all p ersons wishing to
(c) information on how to obtain views. In p articular, hearings allow
intervene in a h earing must file
copies of the application and applicants to explain the project and
seven copies of their submission
supporting information; with the Board within the time people affected by it t o' state their
(d) the deadline and location for support or objections in detail. Since
specified in the Notice of H earing. (In
filing submissions with the participants are expected to present
some cases the Board may request
Board; their evidence and arguments as
additional copies be provided). A
(e) date, time and location of the clearly and completely as possible in
. c opy of y our submission must also their written submissions, a p rincipal
Participant Information Session
be provided to the applicant. Most
regarding the hearing (if o ne is
submissions are short, often a f ew
purpose of t he hearing is t o 'permit
to be held). cross - e xamination as a m eans of
pages. Where a s ubmission is c omplex,
reviewing, contradicting or explaining
you will be required to submit a
The Timing and Location of information, furnishing evidence, or
the Hearing summary of t he major issues identified making representations by way of
and the conclusion you have reached
The NRCB attempts to hold its on each issue. Board staff will argument.
Hearings on complex projects
hearings at times and locations distribute a copy of submission
convenient for those who wish to summaries to all registered can be costly and time-consuming
for both the Board and the
participate. Scheduling of the participants for information.
participants. Consequently, the
hearing will also depend on the Your submission must be
NRCB is conscious of the need to
complexity of the project and the signed (by you or your lawyer or
ensure that, in addition to being
length of time required for adequate agent) and must contain your name
open and fair, the public hearing
preparation of submissions and on and address in Alberta where
process is as efficient as possible.
the resource implications for the communications may be sent.
From this perspective, the purpose of
applicant and other parties. Ensure that your submission is
the hearing is t o p rovide the Board with
filed prior to the date specified in .
the evidence, arguments and points of
the Notice of H earing. After that date,
view that are necessary for it t o
additional material may be filed
determine whether the project is i n the
only at the request of, or with leave
public interest. The efficiency and
of, the Board. Interveners'
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effectiveness of the process depends The NRCB records the applicant believes an approval of
on all p articipants keeping this proceedings; therefore, it i s the project is in the public interest.
objective in mind. important to come forward to the
The applicant's role at the hearing
Although NRCB hearings are microphones provided, identify also involves responding to
considerably less formal than yourself and speak at a relaxed questions and cross-examination
courtroom proceedings, they do pace. You will be requested to from the other participants.
provide a structured format for the provide a seating plan for any Applicants may also seek to rebut
presentation of information and witness panels brought forward. evidence presented by interveners
argument. The hearing begins with NRCB staff are available to assist (or their expert witnesses) who
opening remarks from the Board with any questions you may have oppose the proposed project.
Chair. These may include a throughout the hearing (they will be
The Role of Interveners
statement of the purpose of the seated at a separate table from the
hearing, the introduction of Board Board members). Staff make an
You may participate in a
members and staff, and formal effort to be available during meals
hearing either to support or oppose
registration of participants. If and coffee breaks. Staff will also
an application, or to provide
required, preliminary matters such assist you with matters of p rocess, information to the Board relevant to
as procedural or legal issues are such as scheduling of presentations,
its consideration of the public
considered next. Each participant, or questions concerning evidence
interest. Participation may involve
beginning with the applicant, then that a p arty has an interest in (for
putting detailed written submissions
presents evidence to the Board and example, requesting access to before the Board, or it m ay be
review an exhibit that has been
responds to questions or cross- limited to cross-examination of
examination by other parties. filed). Inquiries should be directed to
other parties and presentation of
Following all submissions by the designated Project Coordinators.
final arguments. Since the written .
interveners, the applicant is
submissions should contain the
permitted to present rebuttal The Role of the Applicant
substance of interveners' evidence
evidence. All parties then present
Applicants are expected to and argument, a p rincipal function of
final arguments to the Board,
address all the matters that the the hearing is t o p rovide a fo rum for
summarizing the principal issues
Board must consider to arrive at its
publicly challenging or corroborating
and evidence and outlining the
decision. In addition to describing these submissions in the presence of t he
reasons why they believe that the
the technical features of the project, Board. The Board is p articularly
Board should reach a p articular
applicants should submit evidence interested in the validity of the
conclusion regarding the
and arguments regarding the social, evidence before it a nd in the extent
application. The interveners' final economic, and environmental to which the assumptions and
arguments are heard first, and the
effects that are relevant to the arguments made in submissions can
applicant is then given an
be substantiated. Consequently,
Board's determination of the public
opportunity to present a rebuttal.
interest. Like any other participant, interveners make an important
Finally, the Board Chair will close
the Board expects applicants to limit contribution at hearings through
the hearing and, in most cases,
their presentation at a h earing to a their responses to questions and
announce the deferral of the
brief description of the project and a cross-examination, and their role in
Board's decision until the release of summary of the evidence contained testing the validity of submissions
the decision report. The flow chart
in the materials filed in advance of made by other parties,
in Appendix A s ummarizes the
the hearing. The applicant must also
NRCB hearing procedure.
provide a summary of why the
GUIDE TO
THE N R C B HEARING
The Role of Government Hearing Participation and material, the technical qualifications
Oral Presentation of Evidence of the witness must be presented.
Provincial, federal and
The Rules of P ractice also place
municipal government officials have NRCB hearings are not as
limits on the content of
formal as court proceedings,
participated in the NRCB's process presentations. Oral presentations
to present information regarding although the Board does apply
must be confined to matters set out
social, economic or environmental some rules and guidelines to
in the written submission, unless the
matters within their jurisdiction maintain order, efficiency and
Board directs otherwise. Your
and/or areas of expertise. In some effectiveness of the hearing process.
submission must be available for
cases, government officials can During the hearing, your oral
review by all p arties in advance of
provide information about presentation should highlight the
the hearing (a d eadline for
approvals likely to be required by a key points contained in y our written
submissions is set by the Board in
project proponent and the effect of submission, the Board will have
its Notice of H earing). Finally, the
these approvals on an NRCB read all submissions and will not
Board will not hear arguments
decision. Most often federal and require a d etailed reiteration. At this
unless they are based on evidence
provincial government submissions stage you should stress evidence before it.
neither support nor oppose an that will best reflect your desired
A w ritten submission alone is an
application. Municipal submissions disposition of the review. Generally
acceptable form of p articipation in
may or may not state a p osition. the presentation of y our direct
NRCB hearings. Oral presentation is
Government interventions, like evidence should not exceed 20
not necessary in all circumstances, if
those of other participants, must minutes. Interventions that include
the Board or other participants
include the technical qualifications detailed testimony and expert
require clarification on a w ritten
of the person signing or taking evidence may require more time.
submission, the party making that
responsibility for a report or the On application, the Board may.
submission may be asked to
material contained in it. O ral consider providing you with more
respond to questions and should be
presentations must be confined to time if y our particular circumstances
available for that purpose. Requests
matters set out in the written merit such consideration. The
of this type from other participants
submission and cross-examination Project Coordinators will confirm
are channelled through the Board.
limited to the scope of the evidence with you the time you require for
Presentations at NRCB hearings
provided in the submission. your oral presentation and, based can be an effective way of
Government officials would not be on this input, will create a t entative
available for cross-examination order and time schedule for highlighting important information
and arguments, and testing the
about matters unrelated to their presentations. It is important that
submissions of other parties.
submissions or matters already you adhere to the time schedule.
Appendixes B a nd C c ontain some
decided by an approval authority. The NRCB Rules of P ractice
guidelines to follow when preparing
Additionally, government officials establish basic guidelines for
fhoera r ainngd. participating in an NRCB
would not be required to respond to presentations at NRCB hearings. As
questions more properly placed a g eneral rule, presentations must
before elected representatives. be made by witnesses who
prepared the submission, supervised
or participated substantially in its
preparation, or otherwise have
special knowledge of the
submission. In the case of technical
6
G U ID E T O
T H : NRCB HEARING
ss
Tendering Documents assumptions upon which it i s Final Argument
based, or its logic and internal
You will be required to provide consistency; All participants have the
the Project Coordinator with a l ist of opportunity to present a f inal
(b) to show that evidence
exhibits and one copy of each argument to the Board. In
presented by the opposing
exhibit to be tendered on a d ate presenting final arguments, you
witness can in fact support
specified in the Notice of H earing. should clearly and succinctly state
one's own case; and
Since the NRCB process seeks to avoid what you view as the most
(c) to question the opposing
surprise by requiring full disclosure of important issues before the Board.
witness by challenging his or
evidence and arguments prior to the You should also briefly summarize
her professional qualifications,
hearing, documents to be entered as the conclusion you believe the
expertise, objectivity, direct
exhibits should generally be tendered at Board should reach on these issues,
knowledge of the particular
the same time as your written and on the application as a whole.
issues before the Board,
submission (i.e., by the deadline Final argument should not introduce
recollection of relevant events,
established for those submissions). new evidence or revisit in detail the
etc.
Another alternative that may be
The N R C B R ules of P ractice state participant's submission.
acceptable in some cases is to
include the specific excerpt to be that witnesses can only be cross- TAhuet h oBroiatryd s D ecision-Making
examined by or on behalf of an
relied on with the written
applicant, an intervener, or the
submission. The entire document
Board. Cross-examination is an The Board has considerable
can then be presented at the
important component of the NRCB latitude in deciding on applications.
opening of the hearing if i t i s
hearing process because it a llows It m ay, with prior authorization from
required to put the excerpt in
participants to test conflicting Cabinet, grant an approval on any
context. Tendering the full
evidence and competing arguments terms and conditions that it
document prior to the hearing is
before the Board. The Natural considers appropriate. Alternately, it
less essential if i t i s clearly identified
Resources Conservation Board Act may refuse to grant an approval,
in the written submission and is
defer consideration of an
specifically provides that persons
publicly available. In contrast,
directly affected by a p roposed application (on terms and conditions
documents that are not readily
determined by the Board), or
project, and other persons where
available should be tendered in
the Board considers it n ecessary, dispose of the application in any
advance if t hey are to be entered as
shall be given the opportunity to Other way that it c onsiders to be
exhibits at the hearing.
contradict or explain information appropriate. In summary, the Board
presented by the applicant and has authority on its own to reject or
Cross-Examination
other interveners. defer applications, but the approval
Cross-examination is the As with other forms of of applications requires Cabinet .
questioning of a witness called by participation in the NRCB process, authorization. That authorization
an opposing participant in the cross-examination should follow may include terms and conditions
hearing, following the presentation certain guidelines if i t i s to be imposed by Cabinet.
of his or her evidence. There are conducted in an effective and
three principal reasons for cross- efficient manner. Appendix D
examination:
provides some general rules and
(a), to test evidence by challenging
suggestions concerning cross-
its soundness (e.g., scientific or examination.
technical validity), the
0
GUIDE TO
THE N R C B HEARING
The Decision Report The NRCB Decision and Other legal requirements of procedural
Approval Processes fairness in q uasi-judicial hearings. •
Following a p ublic hearing, the
The act contains specific provisions
NRCB reviews all the evidence
Approval by the NRCB does not
governing appeals.
presented prior to reaching a dispense with the need to obtain
decision. The decision is made any licenses, permits, approvals, or Joint Reviews
public in the form of a d ecision other authorizations from other
Given the nature and size of
report written by the Board government departments, agencies,
members. The time required for its or municipalities having regulatory projects the NRCB reviews,
release depends on its length and authority over the project. proposed projects may also be
complexity. subject to review processes
In its decision report, the Board conducted by other boards,
provides background information AppeBaolasrd decisions may only be commissions or agencies at the
on the project, summarizes the federal or provincial level. The NRCB
appealed on questions of
application and supporting Act provides that the NRCB may
jurisdiction or law. Appeals must be
information, reviews the positions of made to the Alberta Court of conduct its p roceeding jointly or in
the other participants, explains its conjunction with these other bodies
Appeal. For an appeal to succeed, it
conclusions on each of the issues (if t he proceeding involves a
is necessary to show that the Board
before it, a nd sets out its disposition reviewing agency of a j urisdiction
had misconstrued its authority
of the application. If t he application under the Natural Resources outside of Alberta, approval must be
obtained from Cabinet).
is approved, any terms and
Conservation Board Act (e.g., did not
conditions imposed by the Board
have legal authority to make the
are stated in the decision report
decision) or had failed to respect the
Our goal as identified in our Business Plan,
is t o contribute toward the achievement of
the sustainable development of A lberta's natural
resources through determining the public interest
in p rojects reviewed by the NRCB.
This guide describes the Board s p ractices at most Hearings. It i s i mportant to remember that this guide is
intended to provide general information and that the Board may choose to vary the general practice on a
review-specific basis.
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