The role and significance of public participation in determining whether major energy development decisions are 'in the public interest': a comparative analysis of England & Wales and Canada

In both jurisdictions, executive decision-makers rely on a process and technical recommendation report of a specialist administrative public body. This administrative body also controls the nature and extent of public participation during the decision-making process, which largely values technical, science-based input. There are minimal legal mechanisms within either decision-making regime to ensure that participants' voices are not only heard, but also considered by decision-makers.<br>In terms of challenges to inadequate public consultation via judicial review, the threshold to enforce participatory rights is also high.

Unless there is blatant mistake, obvious disregard of statute, or a serious breach of a common law doctrine or constitutional duty, the voice of the public to represent what is in 'the public interest' is represented by, and ultimately at the discretion of, an executive decision-maker.<br><br>Although technically a form of representative democracy, it is clear that expertise, expediency and efficiency are favored at the expense of diverse and meaningful public participation in both jurisdictions.

Canada's indigenous population appear to have the strongest opportunity to meaningfully participate and 'negotiate' to a certain extent with decision-makers if a community's Aboriginal or Treaty rights are potentially impacted by a proposed project. This is by virtue of the duty of the Crown to consult, and if appropriate accommodate, which is enshrined in the Canadian Constitution. On the other hand, the regime in England & Wales is comparatively more inclusive for the general public to participate in decisions that may impact the environment, due in part to its signatory status of the Aarhus Convention and (current) membership in the European Union.

Ultimately however, the ability of the general, non-expert public to influence what the final decisionmaker determines to be 'in the public interest' is both minimal and weak under both regimes.