Consultation, Alternative Dispute Resolution, and Voluntary Measures

• Author: Jamie Benidickson
• Pages: 347-366

347

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, notably those related to the element of uncertainty, and

by the limitations of conventional forms of adjudication. Court-based

proceedings, either civil or cr iminal, in which legal adversaries endeav-

our to persuade decision makers, who often lack environmental or sci-

entif‌ic experience, that a particular standard of proof of controversial

and uncertain scientif‌ic hypotheses has or has not been met, are both

costly and slow. The scope for participation by interested parties who

are not immediately affected by the matters 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 frust rated the design of appropriate 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 judicial review. Further pres-

sures for new approaches derive from f‌inancial constraints that severe-

ly restrict the ability of governments to pursue traditional enforcement

strategies culminating in prosecution.

Several procedures associated with new forms of participation, or

even “social learning” have been seen as increasingly attractive. Such

approaches “emphasizing dialogue, mutual learning, and the contin-

ual evolution of ideas” are considered well-suited to “circumstances

characterized by high uncertainty,” for only arrangements of this type

ENVIRONMENTAL L AW

348

“enable individuals, organizations and communities to construct legit-

imate end points, identify appropriate technologies for reaching those

end points, and navigate through the complexities of human-nature

interactions.”1

In the context of disputes, several mechanisms under the umbrella

of alternative dispute resolution (ADR) have become quite common.

Negotiation between or among interested parties, though certainly

not a recent innovation, and mediation involving a disinterested third

party are prominent examples. In addition, experiments with other

mechanisms such as round tables, co-management councils, and com-

missions have been used to avoid conf‌licts or to minimize their scope

and consequences.

A. consuLtAtive Procedures And the

round tABLe movement

As discussed elsewhere in this text, environmental assessment pro-

cesses, environmental bills of rights, intervenor status, standing rules,

and so on facilitate public participat ion esp ecially in relation to specif‌ic

projects or development initiatives.2 But as a National Task Force on

Environment and Economy emphasized some twenty-f‌ive years ago,

the participatory aspirations of constituencies such as business, labour,

Aboriginal peoples, and environmentalists extend beyond the project

level to include an interest in the fundamental policy-making and plan-

ning processes that determine the framework for more concrete initia-

tives. 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 t he debate. The process should be designed to work

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

1 A Diduck, “Incorpor ating Participatory Approac hes and Social Lear ning” in

B Mitchell, ed, Reso urce and Environmental Management in Can ada, 3d ed (Don

Mills, ON: Oxford UP, 2004) at 498.

2 For informat ion on public participation in connec tion with federal environ mental

assess ment procedures under the Canadi an Environmental Assessment Ac t, 2012,

SC 2012, c 19, s 52, see “Public Participation,” online : www.ceaa-acee.gc.ca/

default.asp?lang=En&n=8A52D8E4-1.