Consultation, Alternative Dispute Resolution, and Voluntary Measures

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 339-357

339

chA Pter 16

CONSULTATION,

ALTERNATIVE DISPUTE

RESOLUTION, AND

VOLUNTARY MEASURES

Interest in innovative mechanism s for managing environmental con-

f‌licts has been stimulated by distinctive features of environmental deci-

sion maki ng, notably those rel ated to the element of uncertainty, and

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

proceedings, either civil or criminal, in which legal adversaries endeav-

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

entif‌ic ex perience, th at a particular standard of proof of controversial

and uncertai n 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 con-

strained by r ules of standing, and the comparatively narrow range of

remedial powers traditionally available to judicial deci sion makers has

often frustrated the design of appropriate solutions. Administrative de-

cision making by off‌icials, boards, and tribunals is ty pically more f‌lex-

ible, but it often remains cumbersome and unsatisfy ing as well as being

vulnerable to the complexities of judicia l review. Further pressures for

new approaches derive from f‌inancial constrai nts that severely re strict

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 di alogue, mutual learning, and the continual

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

terized by high uncertainty,” for only arrangements of t his type “enable

ENVIRONMENTA L LAW340

individuals, organizations and communities to construct legitimate end

points, identif y appropriate technologies for reaching those end points,

and navigate through the complexities of huma n-nature interactions.”1

In t he conte xt of di spute s, sever al mech anis ms und er the u mbrell a of

alternative dispute resolution (ADR) have become quite common. Nego-

ti atio n bet ween or amo ng in tere sted par ties , tho ugh c ert ainl y not a rece nt

in novat ion , and medi ati on in volv ing a dis inte res ted t hir d pa rty are p rom-

ine nt ex ample s. In addit ion, e xpe rime nts w ith o ther mecha nis ms su ch as

roun d tabl es, co -mana gement counci ls, a nd comm issi ons ha ve bee n used

to avoid conf‌licts or to minimize t heir scope and consequences.

A. consuLtAtiv e Procedures And the

round tABLe movem ent

As discussed elsewhere i n this text, environmental assessment pro-

cesses, envi ronmental bills of rights, intervenor status, standing rules,

and so on facilitate public participation especially in relation to specif-

ic projects or development initiatives.2 But a s Canada’s National Task

Force on Environment a nd Economy h as emphasized, t he participa-

tory aspirations of constituencies such as business, labour, aborigin-

al peoples, and environmentali sts extend beyond the project level to

include an interest in the fundamental policy-making and pla nning

processes that determ ine the framework for more concrete initiatives.

The ta sk force recommended that senior decision m akers 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 c an bring information and

different views to the debate. The process should be desi gned to work

towards con sensus a nd to exert direct inf‌luence on policy and deci-

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

government organiz ations.3

1 Alan Diduck, “Inc orporating Participator y Approaches and Social L earning” in

Bruce Mitchell, e d., Resource and Environmental Managemen t in Canada, 3d ed.

(Don Mills, ON: Oxford Univer sity Press, 2004) at 498.

2 For examples from t he environmental ass essment context, see Can adian

Environment al Assessment Agency, “Report s from Consultation Activ ities” (Ot-

tawa: CEA A, 2001), online: w ww.ceaa.gc.ca/index_ e.htm.

3 Canadia n Council of Resource and Envi ronment Ministers, Rep ort of the Nation-

al Task Force on Environment and Economy (Down sview, ON: Ca nadian Council

of Resource and Env ironment Ministers, 1987) at 10.