Consultation, Alternative Dispute Resolution, and Voluntary Measures

• Author: Jamie Benidickson
• Pages: 353-374

353

CH AP TER 16

CONSULTATION,

ALTERNATIVE DISPUTE

RESOLUTION, AND

VOLUNTARY MEASURES

Interest in innovative mechani sms for managing environment al con-

f‌licts has been stimulated by distinctive features of env ironmental 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, that 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 nar row 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 tribunals is typically more

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

being vulnerable to the idiosyncrasies of judicial review. Further pres-

sures for new approaches derive from f‌inancial con straints that severely

restrict the ability of governments to pursue traditional enforcement

strategies culminating in prosecution.

Several procedures associated with new forms of participation, or

even “social learni ng,” have been seen as increasingly attractive. Such

approaches “emphasizing dialogue, mutual learning, and the continual

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

terized by high uncer tainty,” for only arrangements of this t ype “enable

ENVIRONMENTAL L AW354

individuals, organi zations and communities to construct legitimate end

points, identify appropriate technologies for reachi ng 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 partie s, though certainly

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

party are prominent examples. In addition, experiments w ith 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 especially in re lation to specif‌ic

projects or development initi atives.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,

Indigenous peoples, and environmentali sts 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 maker s 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 consensu s and to exert direct in f‌luence on policy and

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

(Toronto: Oxford University Press, 2 004) 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 Act , 2012,

SC 2012, c 19, s 52, see Government of Canad a, “Public Participation,” online:

www.cea a-acee.gc.c a/default .asp?lang=E n&n=8A52 D8E4-1.