On February 16, 2016, Pierre Arcand, Minister of Energy and Natural Resources and Minister responsible for the Plan Nord (the “Minister”), tabled in the National Assembly a Green Paper setting out the Guidelines of the Ministère de l'Énergie et des Ressources naturelles (the “MERN”) regarding social acceptability.
The goal of the Minister is clear: “ensure that all the necessary steps are taken to promote a dialogue between the parties and reconcile economic prosperity with respect for living environments. To achieve this, we must take into account the expectations and interests of local populations when planning and implementing land and resource development projects. The benefits of this process will be felt in the Québec of the future!”
Workshop on Social Acceptability
The Green Paper results from the workshop process on social acceptability (the “Workshop”) launched by the Minister in November 2014 whose objectives were to (i) identify ways forward and define guidelines in order to modernize the tools and methods used by the MERN, and (ii) adapt existing tools to ensure more consideration of the factors influencing social acceptability when public land and energy and mineral resources are developed.
During the Workshop, 25 discussion panels with municipal representatives, stakeholders, citizens and Aboriginal communities were held. In all, over 200 people took part and 41 briefs were submitted.
The following general observations resulted from these discussions:
- There is no consensus as to how to define the social acceptability of a project. One thing is certain: social acceptability does not unanimity. Rather, a socially acceptable project will be a project for which a consensus as broad as possible is obtained in the community.
- The MERN’s current responsibilities are not well known to the general public, or are perceived as being contradictory and needing clarification. The MERN must make its responsibilities better known with respect to the gathering of knowledge about the land base and its development potential, plans land uses, the harmonization of public land uses, and its role to support promoters of potential projects on the Québec territory.
- The MERN must develop land planning mechanisms that give stakeholders and citizens a more active role, in particular during the drafting and updating of public land use plans (“PATPs”).
- The social acceptability of a project involves the participation of other government departments and bodies to which promoters and local authorities must be able to refer as part of the environmental authorization process. Accordingly, promoters, RCMs and local municipalities should receive more support throughout the process. In addition, there should be a public feedback process when government authorizations are issued to ensure that the project conditions are clearly explained to the public.
MERN Guidelines on Social Acceptability
Based on these observations and the recommendations made during the Workshop, the MERN proposed 5 major guidelines in the area of social acceptability:
- Make the MERN’s roles and responsibilities in the area of land use planning and land management better known.
The MERN plans to use its strategic plan, website, guides to good practice and reference documents and a list of “model projects” it will create to raise awareness of its roles and responsibilities in the energy, mining and land use sectors.
- Make the mechanisms for land planning and land use harmonization contained in PATPs more transparent, participatory and up-to-date.
The current process does not allow for community and citizen involvement in preparing the PATPs. Considering how important PATPs are when planning public land use, the MERN suggests reviewing, simplifying and updating the process used to prepare, adopt and update PATPs to ensure that the development issues of the affected communities and the concerns of their citizens will be taken into account and to help identify any potential land use conflicts.
The MERN also plans to assess the possibility of broadening the scope of PATPs to take mining and energy activities into account more effectively.
Lastly, the MERN could integrate the regional plans for public land development (“PRDTP”) into existing PATPs.
- Establish predictable information and consultation processes at all project stages.
The MERN suggests that the following principles be put in place to govern the process for informing and consulting citizens and Aboriginal communities:
- The promoter should launch the information and consultation process as soon as possible, at the project design stage, and continue the process throughout all subsequent stages;
- The MERN must produce and disseminate clear, user-friendly information about the project to make it easier to understand;
- The MERN will organize public feedback sessions in the host community after the government issues authorization for a project to present to the citizens the conditions to which the project will be subject;
- The MERN must ensure that the promoter establishes a monitoring and liaison committee after obtaining the government authorizations to implement its project.
The MERN also intends to specify to the promoter the information that must be provided concerning the project’s progress. Good practice guides and reference documents will also be produced by the MERN and distributed to promoters, municipal authorities, stakeholders, citizens and Aboriginal communities to ensure that as many players as possible participate.
More specifically, with respect to the consultation of Aboriginal communities, the MERN plans to extend the current provisions of the Mining Act to its other sectors of activity. In addition, the MERN is currently preparing a guide for the consultation of Aboriginal communities for mining projects that will also be extended to projects in other sectors under its responsibility.
- Promote the sharing of benefits from energy and mining development projects with host communities.
The MERN intends to take advantage of the good practices and knowledge acquired from the current benefit-sharing mechanisms applied for wind farm and small-scale hydroelectric projects to maximize the project’s economic benefits in the host communities.
In addition, the 2016-2019 partnership agreement between the Québec government and municipalities increases financial benefits for host communities. In its action plan, the Québec government also reiterated its commitment to establishing a royalty regime for hydrocarbon extraction. It is important to note that partnership agreements are now required to be more transparent, given that the Act respecting transparency measures in the mining, oil and gas industries has been in force since October 21, 2015.
- Enhance the MERN’s ability to analyze the impacts, economic benefits and impacts of projects by taking social acceptability factors into account.
The MERN intends to set up an independent office to analyze the economic and financial benefits of major projects, to be located in Québec, to ensure that projects progress smoothly and that their issues are properly understood, with the results for each project to be released in the form of a project file.
It is also the MERN’ intention to set up a project office that will coordinate the work of the various departments responsible for issuing authorizations or notices concerning the project and ensure inter-departmental coordination with the other government departments and bodies concerned. The project office will also be responsible for making publicly available the project file and the results of the analysis by the independent office responsible for analyzing the economic benefits of each project.
Given the importance for the social acceptability of a project that a promoter complies with its obligations regarding site restoration, the MERN will, in accordance with the Mining Act, ensure that during the first two years of operation, promoters deposit 100% of the amounts needed to restore the site.
Firstly, it is important to note that the Green Paper is intended to supplement the existing normative framework relating to the MERN’s obligation to consult and, where applicable, accommodate Aboriginal communities before issuing an authorization. The MERN’s practices therefore remain the same: it will assess the need to consult and the scope of the consultation, and determine the process to be followed. Moreover, the Green Paper has no effect on any agreement or contract that has been duly signed and is in force.
Note also that the MERN is still open to the signing of impact and benefit agreements, not only with Aboriginal communities affected by a project, but with communities in the broader sense as well.
Social acceptability must certainly be central to the concerns of both the MERN and promoters in designing and developing energy and mining projects in Québec. The social acceptability of a project depends, first and foremost, on implementing an effective and workable participatory process.
The guidelines proposed by the MERN will be submitted for consultation to the Committee on Agriculture, Fisheries, Energy and Natural Resources of the National Assembly. We will keep you informed on the advancement of the proposed departmental guidelines and on the integration of those guidelines in the MERN’s activities.
 CQLR, c. M-13.1
 CQLR, c. M-11.5