Consultation, Alternative Dispute Resolution, and Voluntary Measures

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 286-301

286

CHAPTER 16

CONSULTATION,

ALTERNATIVE DISPUTE

RESOLUTION, AND

VOLUNTARY MEASURES

Interest in innovative mechanisms for managing environmental con-

flicts has been stimulated by distinctive features of environmental deci-

sion making and by the limitations of conventional forms of

adjudication. Court-based proceedings, either civil or criminal, in

which legal adversaries endeavour to persuade decision makers who

often lack environmental or scientific experience that a particular stan-

dard of proof of controversial and uncertain scientific hypotheses has

or has not been met, are both costly and slow. The scope for participa-

tion by interested parties who are not immediately affected by the mat-

ters in question is typically constrained by rules of standing, and the

comparatively narrow range of remedial powers traditionally available

to judicial decision makers has often frustrated the design of appropri-

ate solutions. Administrative decision making by officials, boards, and

tribunals is typically more flexible, but it often remains cumbersome

and unsatisfying as well as being vulnerable to the complexities of judi-

cial review. Further pressures for new approaches derive from financial

constraints that severely restrict the ability of governments to pursue

traditional enforcement strategies culminating in prosecution.

Several procedures clustered under the umbrella of alternative dis-

pute resolution (ADR) have become quite common in the context of

environmental disputes. Negotiation between or among interested par-

ties, though certainly not a recent innovation, and mediation involving

a disinterested third party are prominent examples. In addition, exper-

iments with other mechanisms such as round tables, co-management

Consultation, Alternative Dispute Resolution, and Voluntary Measures 287

1 Canadian Council of Resource and Environment Ministers, Report of the

National Task Force on Environment and Economy (Downsview: 1987) at 10.

2Ibid.

councils, and commissions have been used to avoid conflicts or to min-

imize their scope and consequences.

A. CONSULTATIVE PROCEDURES AND THE

ROUND TABLE MOVEMENT

As discussed elsewhere in this text, environmental assessment

processes, environmental bills of rights, intervenor status, standing

rules, and so on facilitate public participation especially in relation to

specific projects or development initiatives. But as the National Task

Force on Environment and Economy recognized in 1987, the partici-

patory aspirations of constituencies such as business, labour, aborigi-

nal peoples, and environmentalists extend beyond the project level to

include an interest in the fundamental policy-making and planning

processes that determine the framework for more concrete initiatives.

The task force recommended that senior decision makers from these

diverse groups be involved in a new process of consultations known as

“round tables.” It explained that

[t]his process must involve individuals who exercise influence over

policy and planning decisions and who can bring information and

different views to the debate. The process should be designed to work

towards consensus and to exert direct influence on policy and deci-

sion makers at the highest levels of government, industry, and non-

government organizations.1

On the basis of deliberations concerning environment-economy issues,

task force members concluded that round tables — each of which

would include environment, resource, and economic development

ministers — should make recommendations “directly to the First

Ministers of their respective jurisdictions.”2

Endorsement by a national task force whose membership included

Cabinet ministers from seven jurisdictions contributed to the rapid

adoption of the proposal. Round tables, however, were not imple-

mented on a uniform basis across Canada, and some early observers

doubted the ability of these new institutions as originally constituted

to remedy the deficiencies that inspired their creation: