Quebec’s Energy, Mining Sectors Searching for Clarity on Social Acceptability
On February 16, 2016, Quebec’s Energy and Natural Resource Minister Pierre Arcand tabled a green paper (referred to in French as the “Livre Vert”) at the National Assembly, outlining five guidelines regarding social acceptability as it relates to the use of public lands and the development of natural resource projects in Quebec (Green Paper). This Green Paper is the latest development in an initiative launched by the Ministry of Energy and Natural Resources (MERN) in 2014 on social acceptability for natural resource projects in Quebec (referred to in French as “le chantier de l’acceptabilité sociale”).
The notion of social acceptability has been raised in a number of natural resource development projects that recently made headlines in Quebec. It is a similar concept to a social licence to operate, an expression more commonly used outside of Quebec. Despite being popular and often considered imperative for approval of certain projects, social acceptability remains a vague concept.
There is no universally recognized definition of social acceptability. The Bureau des audiences publiques sur l’environnement (BAPE), in its report on shale gas, recently cited a definition (from Julie Caron-Malenfant and Thierry Conraud’s book, Guide pratique de l’acceptabilité sociale : pistes de réflexion et d’action) that provides that social acceptability is: “The result of a process by which the concerned parties together decide the minimum requirements under which a project, program, or a policy be harmoniously integrated, at a given time, with its natural and human environment.”
Referring to a lack of consensus on the definition of social acceptability, the Green Paper provides the following definition: “Social acceptability is essentially the result of a consultation process through which the developer, elected officials, organizations, groups and citizens discuss together the conditions that will permit or not the realization of a project.” The Green Paper attempts to clarify the Quebec government’s approach to the concept of social acceptability, focusing on five guidelines for modernizing the government’s tools and practices in this regard. These five guidelines are:
- Make the MERN’s roles and responsibilities in the area of land use planning and land management better known
- Make the mechanisms for land planning and land use harmonization contained in public land use plans (PATPs) more transparent, participatory and up-to-date
- Establish predictable information and consultation processes at all project stages
- Promote the sharing of benefits from energy and mining development projects with host communities
- Enhance the MERN’s ability to analyze the impacts, economic benefits and repercussions of projects by taking social acceptability factors into account
The Green Paper provides details as to how these guidelines will translate into practice and sets out a number of actions the Quebec government intends to take. Companies operating in the mining and energy sectors in Quebec should have these on their radar. We will focus on guidelines 3, 4 and 5, under which several actions are proposed as follows.
GUIDELINE 3: ESTABLISHING CONSULTATION PROCESSES
The Green Paper emphasizes the need to begin a consultation process on key project issues, including concerns of the host communities, First Nations and the project sponsors as early as possible, at the project design stage. This approach is meant to allow the project developer to improve a given project and thereby encourage its acceptance by the local community. The Green Paper includes a cautionary note, stating that the implementation of a consultation process by a developer in no way implies that the project will be accepted and authorized by the Quebec government.
There are indications that, according to the MERN, the focus of social acceptability should only be on the host community. This is significant for projects that may be controversial in urban centres but are welcome in smaller regional communities that place greater emphasis on job creation or, alternatively, for projects that are favoured by the public generally but opposed by local stakeholders. The Green Paper refers to the possibility that an approval may be refused if the host community opposes a project. However, is also clearly affirms that the government is ultimately responsible for decision-making and setting the conditions for a project’s authorization.
The MERN will draft guidelines for best practices for the consultation of the general public, as well as guidelines for use by developers that take social acceptability factors into account.
In addition, the Green Paper specifically states that the MERN’s existing obligation of consultation and accommodation towards First Nations, where applicable, prior to issuing project authorizations, remains intact. This is also the case with respect to the MERN’s other existing obligations towards First Nations. The government will update the interim guide on the consultation of First Nations, which was prepared by the Quebec government in 2008.
GUIDELINE 4: BENEFITS SHARING
Another key point highlighted in the Green Paper is the need to establish mechanisms to share the benefits derived from energy development and mining projects with host communities. The Green Paper proposes establishing workforce training programs adapted to the host community’s members. It also stresses the importance for companies to conclude agreements both with First Nations and local communities. The MERN appears to draw a link between reaching an agreement with the local community and gaining social acceptability. Note that the recently adopted Act Respecting Transparency Measures in the Mining, Oil and Gas Industries in Quebec requires that such agreements be made public if the monetary value is over C$100,000. For more information, see our November 2014 Blakes Bulletin: Extracting Transparency: New Bill Creates Mandatory Reporting Standards for Canada’s Extractive Industries and our June 2015 Blakes Update: Extractive Sector Transparency Measures Act Now in Force.
GUIDELINE 5: ANALYZING PROJECTS’ IMPACTS, REPERCUSSIONS
The MERN announced that an independent office of economic impact analysis for projects will be created (in French, the “bureau indépendant d’analyse des retombées économiques et financières des projets majeurs”) (Office of Economic Impact Analysis). Once established, certain projects in Quebec will be reviewed by the BAPE for environmental impacts and also reviewed by this new Office of Economic Impact Analysis for their economic impacts. No details have been provided as to how this new Office of Economic Impact Analysis will be set up. The Green Paper indicates that the findings of the new Office of Economic Impact and Analysis with respect to a given project will be made public. The establishment of this office follows the recommendation of the Fédération des chambres de commerce du Québec, which has long advocated for its creation.
In addition, the Green Paper proposes the creation of an office of coordination for major projects (in French, the “bureau des projets majeurs”), which would help projects navigate through the system and ensure coordination between the different authorities responsible for delivering authorizations. This idea seems to be inspired by British Columbia’s FrontCounterBC, a single window service where clients of provincial natural resource ministries and agencies can obtain all of the information and authorizations they require.
The next step with respect to addressing and, hopefully, achieving more clarity on social acceptability will be the holding of a parliamentary commission to develop the five guidelines and the key proposals outlined above.
For further information, please contact:
or any other member of our Environmental & Aboriginal group.
Blakes periodically provides materials on our services and developments in the law to interested persons. For additional information on our privacy practices, please contact us at firstname.lastname@example.org. Blakes Bulletin is intended for informational purposes only and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired.
For permission to reprint articles, please contact the Blakes Client Relations & Marketing Department at 416-863-4345 or email@example.com. © 2018 Blake, Cassels & Graydon LLP