Consultation, Alternative Dispute Resolution, and Voluntary Measures

• Author: Jamie Benidickson
• Pages: 347-366

347

ch AP ter 16

CONSULTATION,

ALTERNATIVE DISPUTE

RESOLUTION, AND

VOLUNTARY MEASURES

Interest in innovative mechani sms 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 env ironmental or sci-

entif‌ic experience, th at a particular stand ard 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 m atters in question is typical ly

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 off‌icia ls, boards, and tribuna ls is typically more

f‌lexible, but it often remains cumbersome and unsatisfying as well a s

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 assoc iated with new forms of participation, or

even “social learni ng” have been seen as increasingly att ractive. Such

approaches “emphasizing dialog ue, mutual learning, and the contin-

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

characterize d by high uncertainty,” for only ar rangements of this type

ENVIRONMENTAL L AW

348

“enable individuals, organizations and communities to construct legit-

imate end points, identify appropriate tech nologies for reaching those

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

interaction s.”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 partie s, though certainly

not a recent innovation, and mediation involving a disintere sted third

party are prominent exa mples. In addition, experiments wit h 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. consuLtAtiv e Procedur es 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 a spirations of constituencies such as business, labour,

Aboriginal peoples, and env ironmentalists extend beyond the project

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

ning processes t hat 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 e xercise inf‌luence over

policy and plann ing decisions and who can br ing information and

different views to t he debate. The process should be designed to work

towards consen sus and to exert direct i nf‌luence 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=8 A52D8E4-1.