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Public participation in Canadian environmental decision-making : form without function? Kasai, Erika 2000

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PUBLIC PARTICIPATION IN C A N A D I A N E N V I R O N M E N T A L DECISION-MAKING: F O R M W I T H O U T FUNCTION? by ERIKA KASAI B.A., The University of British Columbia, 1991 LL.B., The University of Auckland, 1997 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 2000 © Erika Kasai, 2000 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Faculty , A . -BepartfFfer-rt of L^ftiVN The University of British Columbia Vancouver, Canada Date i9 A P R I L - Z O O O DE-6 (2/88) A B S T R A C T The purpose of this thesis is to critically examine elements of public participation in environmental decision-making and to propose that public participation processes may be made more meaningful through the provision of comprehensive and flexible procedural mechanisms coupled with a true ability to affect the outcome of the process, rather than through simply granting more rights. Over the years, natural resources management has grown as a response to ecological concerns over the state and future of our environment. The law too, has developed to accommodate environmental concerns and define legal rights and procedures. Public participation becomes a vehicle for ensuring that affected interests are taken into account in environmental decision-making. In Chapter 1, the established and traditional means of involving the public in environmental decision-making such as litigation and public hearings are examined; however, they have been characterized as too restrictive, not only in terms of the parties who are included, but also the issues. Furthermore, agency administration of complex resource management issues has fuelled public discontent, as many groups understand it is an inherently political process and doubt its legitimacy. In exploring this phenomenon, this paper is first placed in a theoretical context, drawing upon ecological, legal, and ethical philosophies. However, it is also informed by the perspectives of local environmental groups and residents. The turn to other techniques, or Alternative Dispute Resolution, may seem a logical and appropriate evolution, suggesting ways for all affected parties to be involved. Chapter 2 reviews ii different forms of Alternative Dispute Resolution which provide some principles about the use of mediation and agreements to supplement the regulatory processes of resource management. It is important to consider the mediation process itself, the desire to remedy what is considered to be the failings of the traditional adversarial system, the psychological dynamics of the process, and the parameters for successful negotiations leading to implementation. Chapter 3 commences with an analysis of the legal context of public participation in British Columbia. It determines the discretionary authority of the administrative agencies, and the formal window of opportunity for public input, under the (federal) Canadian Environmental Assessment Act and the (provincial) British Columbia Environmental Assessment Act. This chapter also discusses an additional and interesting vehicle for public participation, although not yet implemented in British Columbia - the Environmental Bill of Rights. Chapter 4 provides a more concrete setting for the use of public participation processes, through the use of a case study - the British Columbia Transit Sky Train Extension Project. The "NIMBY", or "Not In My Backyard" scenario involved has the potential to facilitate negotiation; however, real inroads will be made through improving existing legal avenues of participation such as consultation. In fact, this key concern has been the sore point with respect to the Sky Train Project for many residents of Vancouver. In conclusion, the utility of public participation processes expressed in environmental legislation is reliant not only upon the ability of the law to be flexible enough to serve the various natural resource interests of all stakeholders, but also to be conducted in a manner that is inclusory and substantive. iii TABLE OF CONTENTS Abstract ii Table of Contents iv Acknowledgements viii Dedication ix CHAPTER I INTRODUCTION 1 1.1 Purpose 1 1.2 Background 6 1.3 Tracing Environmental Protection Legislation and Public Participation 8 1.4 Methodology 16 1.4.1 Deep Ecology 16 1.4.2 Transformative Governance 17 1.4.3 Civil Rights 20 (i) A Constitutional Right 21 (ii) Procedural Rights 22 CHAPTER II DISPUTE RESOLUTION APPROACHES IN BRITISH COLUMBIA, AND THE ENVIRONMENT 25 2.1 Introduction 25 2.2 Legal Barriers 26 2.2.1 Standing 26 2.2.2 Costs Awards 27 2.2.3 Strategic Lawsuits Against Public Participation (SLAPP) 29 2.3 Administrative Barriers 30 2.3.1 Agency management of decision-making process 30 2.3.2 Notification 31 2.3.3 Public Participation in Setting Environmental Standards 32 2.3.4 Access to Information 33 2.3.5 Funding 34 2.4 Environmental Conflicts 35 2.5 Conflicts and the Environment 37 2.5.1 Causes of Conflict 38 (i) Misunderstanding Model 39 (ii) Conflicting Interests Model 40 iv (iii) Basic Principles Model 41 2.5.2 Dimensions of the Conflict 42 2.5.3 Parties to the Conflict 43 2.5.4 Timing (When and why conflict arises)...: 43 2.6 Types of Disputes 44 2.7 Conceptual Analysis of Disputes and Dispute Resolution 45 2.8 Forms of Environmental Decision-Making 46 2.8.1 Traditional mechanisms for addressing environmental disputes 46 2.8.2 "Alternative Dispute Resolution" 50 (i) ADR Mechanisms for addressing Environmental Disputes 51 (ii) ADR Methods 51 (iii) Data Disputes 52 (iv) Interest Conflicts 53 2.9 History and Evolution of ADR in Environmental Law 54 2.10 Origins of ADR 56 2.11 Advantages of Informality 56 2.11.1 Adjudication 57 2.11.2 Conflict and Social Dynamics 58 2.12 Application of ADR to Environmental Disputes 60 2.12.1 Environmental Dispute Settlement 60 2.12.2 Dispute Resolution Alternatives and the Law 63 (i) Rights of Participation 63 (ii) Improper Delegation/Fettering of Discretion 64 (iii) Enforcement of Negotiated Agreements 65 (iv) Confidentiality and Privilege 65 2.13 The Beginnings - the Snoqualmie River Mediation 66 2.13.1 British Columbia Roundtable on Environment and Economy 67 2.13.2 Legal Provisions 69 (i) Mediation in the CEAA 70 2.13.3 Other applications - the Environmental Bill of Rights and Administrative Tribunal Hearings 75 2.14 Case Studies 77 2.14.1 BC Case Study in Environmental Mediation 77 2.14.2 Sandspit Small Craft Harbour Mediation Process 78 2.15 Application of Dispute Resolution Alternatives in British Columbia.81 2.15.1 Interparty Disputes 81 2.15.2 Permits and Licenses 81 2.15.3 In Principle Approvals 82 2.15.4 Environmental Law and Policy 83 2.15.5 Compliance and Enforcement 84 2.16 Features of a Successful Consensus Process 85 2.17 When to Use Mediation 86 2.18 Role of ADR Today 86 2.18.1 Post Roundtable Progress in BC 86 2.18.2 The Current Framework Under BC Legislation 90 2.18.3 Criticism 90 2.19 Conclusion 93 CHAPTER III STATUTORY SCHEME FOR PUBLIC PARTICIPATION 95 3.1 Introduction 95 3.2 The Approach to Project Review 97 3.3 Opportunities for Public Participation 99 3.3.1 Canadian Environmental Assessment Act ...99 (i) Environmental Assessment Process - General 100 (ii) Comprehensive Study 104 (iii) Mediation and Panel Reviews 105 (iv) Follow-up Program 106 (v) Access to Information 106 3.3.2 British Columbia Environmental Assessment Act 107 (i) Principles 108 (ii) Public Participation in the BCEAA Review Process 109 (iii) Participation of First Nations 117 3.3.3 The Environmental Bill of Rights 119 CHAPTER IV SKYTRAIN CASE STUDY 131 4.1 Introduction 131 4.2 Background 132 4.3 Chronological History 133 4.4 SkyTrain Extension Review, Special Commission 138 4.4.1 Coalition for SkyTrain Review 138 4.4.2 Decision-making Process 139 4.4.3 Choice of SkyTrain Technology 140 4.4.4 Fast Track 141 4.4.5 Choice of Phases 141 4.4.6 Effect on Bus Service 142 4.4.7 Consistency with Existing Transportation Plans 142 4.4.8 Environmental Benefits 143 4.5 SkyTrain Extension Review, Special Commission, Terms of Reference • 146 4.6 SkyTrain Extension Review, Special Commission, Interim Report..l48 4.7 SkyTrain Extension Review, Special Commission, Final Report 149 4.7.1 Public Process 150 (i) Goals for Public Participation 150 (ii) Public Participation Opportunities 151 (iii) Public Meetings 151 4.7.2 BioPhysical Environment 152 vi 4.7.3 Noise and Vibration 152 4.7.4 Connectivity and Operational Issues 155 4.7.5 Station Guideway Design 156 4.7.6 Legacy 156 4.7.7 Decision-making Process 157 4.7.8 Project Timing 159 4.7.9 Project Justification 159 4.7.10 Future Expansion to Port Coquitlam and Port Moody 160 4.7.11 Overview of Significant Concerns Within the Special Commission's Mandate 161 4.7.12 Overview of Significant Concerns Outside the Special Commission's Mandate 162 4.7.13 Input on the Sky Train Extension Review 163 4.8 Public Consultation Overview Backgrounder 165 4.8.1 Local Government .-165 4.8.2 Interest Groups and Stakeholders 166 4.8.3 Neighborhoods 166 4.8.4 First Nations 167 4.8.5 General Public 168 4.8.6 Responses 169 4.9 Conclusion 169 CHAPTER V CONCLUSION 171 5.1 Summary 171 5.2 Future Directions 173 5.3 The Way Forward 176 Appendix I Models of Environmental Conflict 178 Appendix II BCEAA Process Overview 180 Appendix III Sample Notice of Application, BCEAA 182 Appendix IV Sample Notice of Amendments, BCEAA 184 Appendix V Sample Notice of Project Report, BCEAA 186 Appendix VI Map, Greater Vancouver Regional District 188 Appendix VII SkyTrain Vehicle and Other BC Transit Technology 191 Appendix VIII Sample SkyTrain Brochure at Mall Displays 193 Bibliography 198 vii ACKNOWLEDGEMENTS I am indebted to Professor Ian Townsend-Gault, my thesis supervisor, for his extraordinary enthusiasm, support and direction throughout the completion of this thesis. I am also most grateful to Professor Karin Mickelson for her encouragement and helpful comments, as my second reader. Also, I would like to express my gratitude to Professor Joseph Weiler, Professor Robin Elliot and Professor Joel Bakan, at the University of British Columbia Faculty of Law, for their guidance and input in relation to various drafts of chapters of this thesis. I wish to thank Justice Peter Salmon, Judge of the High Court of New Zealand, and Professors Ken Palmer and Benjamin Richardson at the University of Auckland Faculty of Law, whose intellectual stimulation, support and encouragement have provided the inspiration for embarking on this research. I am extremely thankful to Glenn Sigurdson at the CSE Group Vancouver, John Mathers at the Canadian Environmental Assessment Agency, Deming Smith at Better Environmentally Sound Transportation, and Chris Rolfe at the West Coast Environmental Law Association for their time and interview comments, which have been a key component of this research. Many thanks to Andrea and David Raine, and the various other individuals who provided their views on the SkyTrain participation process. These comments have been instrumental in bringing a voice to many public concerns that are reflected in data collected. I also wish to acknowledge the assistance of Lillian Ong and Deanna Clark -Graduate Program Secretaries, Joanne Chung - Centre for Asian Legal Studies Secretary, Professor Claire Young, the Curtis Law Library staff, and Joyce Robinson - Student Affairs Officer. Many thanks also to friends and family: Ana, Chris & Ali Mya Mohammed Bolan, the Jansen Family, and the Kasai Family. Finally, words cannot express my gratitude to Dierk Ullrich, whose tremendous support and kindness has meant so much - thank you for being there for me. viii DEDICATION This thesis is dedicated to my parents, Hiroji and Natsumi Kasai, whose unconditional support and encouragement has assisted in making this paper possible. CHAPTER I INTRODUCTION 1.1 PURPOSE Public participation represents an aspect of environmental decision-making which has seen a gradual evolution from its role in the protection of private property interests, to the achievement of integrated resource management. Recognition of the earth as a finite entity is significant in this regard. One of the key principles of sustainability, intergenerational equity, or preserving our environment for future generations, underscores the role of humans as caretakers of the environment, and the need to take active measures to this end. Relevant to the discussion of participation in environmental decision-making are two views of democracy: one that limits participation to the election of representatives who act in government institutions on behalf of those they represent, or "representative democracy". Modern forms of participation processes are however, more closely aligned with a democratic process where those who will be affected by a government decision should have an opportunity to participate in the government decision-making process, or "direct/participatory democracy". There are a number of views on the merits of participatory democracy; the dissatisfaction with elected officials, the concern over the amount of discretion and lack of accountability afforded to administrative agencies, and that participants become an active part of society and educated on an issue - inclusion and education leading to more support for the result or for change. Knowledge is invaluable to decision makers. People who have a close association with their immediate environment might not be "expert" in an academic sense, but they often have practical experience. Observations and local knowledge can be crucial inputs to the decision-making 1 process. Public participation in resource management issues always assists the process because evidence is presented which might not otherwise be taken into account. The more a decision maker knows about a subject, the better a decision will be. The decision-making body (usually a local authority committee) is not your opponent. Its function is to make a decision based on the evidence presented and the application of relevant legal principles. In most cases a resource management committee or tribunal knows little about the issues upon which it has to make decisions. Increased citizen involvement means more information, which should result in better decision making. Public participation processes may take a variety of forms, each with their own peculiar characteristics, and each circumscribing participation to a different extent. At one end of the spectrum are typically those forms of participation where citizens are engaged only to the point of being recipients of information, such as some citizen advisory committees, advertising, pamphleting, and postering. Further along the continuum are other modes of participation such as consultation and its methods - surveys, neighborhood meetings, and public hearings, for example. Even further along the continuum are participation methods that have an even greater degree of citizen influence, such as the establishment of specialized Agencies with policymaking boards comprised of a wide range of representatives or leaders, such as school representatives, business and civic leaders, health and welfare officials, and so on. In partnership arrangements such as joint policy boards and planning committees, decision-makers and citizens agree to share planning and decision-making responsibilities. Negotiation between citizens and public officials is another example where citizens play a dominant role in decision-making. At the end of the spectrum are methods which guarantee power or control over a program to participants. This includes governing policy and managerial aspects. K. Chappie, "Effective Environmental Advocacy", in: C. Milne, ed., Handbook of Environmental Law (Wellington: Royal Forest and Bird Protection Society of New Zealand, 1992) at 11. 2 This thesis refers to the term "public" to mean the public at large:2 this may include concerned individuals and local residents, community organizations, special interest groups,3 First Nations, and local and regional government officials. The increased participation of the public and its relationship to the role of the State in addressing environmental matters and decision-making, will be outlined later in this Chapter. It is proposed that public participation in environmental decision-making should be situated to a greater extent in three main ideologies: Deep Ecology, Transformative Governance, and Civil Rights. Chapter Two canvasses important factors to be considered which constitute barriers to public participation. High costs of funding proceedings, determining legal standing to bring an action, limitation periods, evidentiary issues, the scope of available remedies, the range of available defences, and getting access to information are all issues which tie into formal or legal impediments to participation. Non-legal, or informal barriers include the perception of the courts and litigation, the language of the law, delay, cultural obstacles, and perceived intractable value clashes. In contrast to traditional forms of decision-making, the role of Alternative Dispute Resolution techniques, with emphasis on environmental mediation, will be discussed. Mediation is a process that reveals as much about the real issues, as the parties themselves. Since environmental conflicts cannot be divorced from social dynamics, the causes of environmental conflict and benefits of alternative processes will be examined. Parameters This broad category of people is also envisaged in the application of the British Columbia Environmental Assessment Act, R.S. 1996, c.119 and the Canadian Environmental Assessment Act, S.C. 1992, c.37. Such as environmental organizations, women's groups, outdoor recreation clubs, homeowner groups, senior citizen organizations, service clubs, educational institutions, business groups, and the media. 3 for success in environmental mediation and limitations will also be necessary for a critical analysis. Chapter Three sets out the legal context for public participation in Canada, and in particular, British Columbia. Many of our environmental statutes work towards the goal of sustainability; a notion whose prominence has largely been achieved through developments in the international environmental law community. In British Columbia, public participation is explicitly provided for through the Canadian Environmental Assessment Act4 and the British Columbia Environmental Assessment Act.5 The provisions in each of the Acts provide for different opportunities for participation at different stages. These include such means as the establishment of a Public Registry, the carrying out of Screenings or Comprehensive Studies, Access to Information requirements, and inviting public comment during specified periods. While participation in environmental decision-making is formally provided for in legislation, there must be corresponding substantive participation in order to avoid participation being hollowed out. This is clearly illustrated in the local SkyTrain Extension project, described in Chapter Four. The SkyTrain case study endorses the imperative of changing our consumption patterns; reduction of air pollution caused by vehicle emissions requires fewer cars on the road, which will mean offering public transport that is as reliable and efficient as private vehicles. The choice of SkyTrain technology involves a variety of environmental considerations, from station design to noise and vibration. Such matters have become the subject of various public participation opportunities; however, the decision itself to use SkyTrain over other transit options was one made in exclusion of public input. As a 4 S.C. 1992, c.37: [hereinafter CEA A]. 4 result, feeling of mistrust and questions of legitimacy are engendered by such unilateral action, and the opportunities that do exist may be seen to be devalued or intended as pacification.6 It will be argued that the participatory process needs a more "user friendly" basis, and it will also be suggested that creative thinking, such as the establishment of a formal and legally recognized "environmental right" may be a step in the right direction; however, some other impetus, or personal transformation of attitude is necessary to take public participation processes beyond a "grocery list" type of practice. Finally, some conclusions about the nature and effect of public participation, and suggestions for future study will be made. This thesis does not argue necessarily for more public participation opportunities in environmental decision-making across the board; it articulates the need for comprehensive and substantive participation, keeping in mind that participation strategies should be tailored to the circumstances of each case; factors to be considered include the nature, size and complexity of the project and its effects, and the needs and location of the community or region affected. "Comprehensive and substantive" R.S. 1996, c.119: [hereinafter BCEAA]. The exclusionary nature of non-negotiable "project givens" and the failure to give a hard look at issues such as the financial implications - long term costs to the Greater Vancouver Transportation Authority and ridership figures, has been a sore point for many members of the public from the start of the project. The fallout of fast-tracking the project is already visible: "With the doubling of the cost of the fast ferries causing the government political as well as financial grief, it is understandable that Victoria wants to hold the cost of the first phase of the SkyTrain extension to $ 1.2 billion and the total, including the second phase, to $1.8 billion. The problem is that those costs were dubious from the beginning when then-premier Glen Clark surprised local politicians with his intention to build SkyTrain and not the light rail transit they had originally agreed upon, and to have it well under way before the next election. Mr. Clark insisted SkyTrain would cost only eight-per-cent more than light rail transit. Skeptics immediately surfaced, arguing the cost could be 50-per-cent or more higher, an argument given credence by an internal government document which contained an estimate of $2.8 billion. The transit minister, Joy McPhail, clung to the $1.8 billion figure. Now Burnaby city staff report cutbacks in the original plan: fewer stations, narrower sidewalks, a smaller public plaza at four stations, and an elevator and escalator eliminated at two stations. A station planned for Lougheed Mall has been shifted to a less desirable location. In response, the SkyTrain builders emphasize the need to keep within budget. But these cutbacks raise concerns. Fewer stations could reduce transit riders and revenues. Narrower sidewalks and smaller plazas could make the stations less inviting, defeating anti-5 participation is proposed as a reference to moving beyond a "grocery list" of participation opportunities to a combination of structured processes that genuinely follow through with core and peripheral issues before, during, and after a given project. Thus, this thesis seeks to find answers to the following questions: What is public participation? Who, exactly, is contemplated under the term "public" participation? Why is public participation important? How much participation should be afforded? Given that statutory recognition of participatory processes exists, why is there still public dissatisfaction? What do we make of innovative developments in the law designed to encourage non-traditional means of participation, such as environmental mediation? What can be done to improve public participation processes? 1.2 B A C K G R O U N D Recent headlines in British Columbia7 news media capture a familiar theme. "Antilogging protesters sentenced; some to serve jail time - Eighteen protesters from around the world were sentenced Friday to 21 days in jail after they blocked logging at three sites last summer in spite of an order to stay away. But only four will actually serve the time. They had chained themselves to machinery 30 metres above the ground."8 "Natives, environmentalists join forces to protect resources - Native officials and environmentalists emerged from a weekend conference promising more co-operation to protect British Columbia's land and resources."9 "Bad times for B.C. environment, green groups say - The B.C. government's environmental protection record is taking a battering from green groups. Conditions are quickly deteriorating, say a growing list of environmental groups. The Western Canada Wilderness Committee gave crime initiatives...": "The SkyTrain budget needs a reality check", The Vancouver Sun (January 26, 2000) at A16. Hereinafter BC. April 3, 1998: National general news, Quicklaw News & Wire Services, Canadian Press NewsText, global (CP98). April 5, 1998: Western regional general news, Quicklaw, ibid. 6 Premier Glen Clark's government a failing grade Monday for its environmental performance over the last year." "SkyTrain expansion greeted by skepticism - Critics say Premier Glen Clark is trying to pull off a fast one on rapid transit by quietly launching talks to acquire an expanded, $1.5 billion SkyTrain system."1 "Forestry giant will stop clearcutting B.C. coastal forests - Forestry giant MacMillan Bloedel is bowing to international pressure from environmental groups and will stop clearcut logging in old-growth B.C. coastal forests." "Mega-project, mega-problems: neighbourhood opposition and environmental regulations could derail SkyTrain expansion - Premier Glen Clark's June announcement of a 21-kilometre, $1.2-billion SkyTrain expansion may yet prove to be Viagra to the NDP's sagging popularity, but so far 13 it has given the government nothing but debilitating side effects." How times have changed: looking back fifty years ago, the principal means to challenge a development on environmental grounds was through common law actions based on nuisance, negligence, strict liability, trespass, and riparian rights. Although federal pollution prevention statutes date back to Confederation,14 under common law tort actions,15 a Plaintiff may be able to recover damages for injury or loss, or obtain an injunction prohibiting specific activity by the Defendant. However, common law actions have been severely restricted by a collection of substantive and procedural problems. To begin with, April 27, 1998: National general news, Quicklaw, supra at note 8. June 3, 1998: Western regional general news, Quicklaw, supra at note 8. June 10, 1998: National general news, Quicklaw, supra at note 8. August 10, 1998: 9(46) British Columbia Report at 30-31. For example, the Fisheries Act, S.C. 1867-68, c.60, section 1.4(2). For example, pollution of a stream: Hadden v. North Vancouver (Municipality), [1922] 1 WWR 655 (BCCA); seepage of oil into harbour: Canada (National Harbours Board) v. Hilden Hotel, (1967) 61 WWR 75 (BCSC); noise and smell: Kenny v. Schuster Real Estate, (1992) 10 BCAC 126 (CA); and noxious fumes: Heard v. Woodward, (1954) 12 WWR 312 (BCSC). Bringing an action in nuisance was based on the unreasonable or unnecessary interference with the enjoyment of property (see Canadian Encyclopedic Digest (Western) 3rd ed., vol.25). Other causes of action include riparian rights, which protected downstream owners of property from interference with the flow or quality of water from upstream users; trespass, involving the unauthorized entry into or damage to property; and strict liability, which made individuals responsible for damage done by the escape of dangerous materials from their property. 7 the high cost of civil litigation prevents many would-be plaintiffs from getting near the courts. Add to that the task of gaining access to information on the problem from government or the Defendant, and the bar against bringing class actions16 in private nuisance. 1 7 Even those who would sue in public nuisance must not run afoul of the rules of standing. A 18 person who does bring an action may also face the problem of dealing with uncertainties: [The Court] told those who struggled to prove that which was inherently unprovable because of the uncertain nature of the problem, that until the harm was done, that they had failed to discharge the onus of proof or that they had, on a balance of probabilities, failed to persuade the court that there was a reasonable likelihood that the apprehended fear of environmental calamity would become a reality. While resort to the common law remains, much of its usefulness resides where specific property rights or direct property interests are affected. 1.3 TRACING ENVIRONMENTAL PROTECTION LEGISLATION AND PUBLIC PARTICIPATION Legal regimes created for environmental protection have a long history. Feudal landholding carried not only proprietary rights, but also certain obligations.19 Even the absolute rights doctrine of property ownership20 has always been subject to limitation21. The unique effect of the Defendant's activity on individual Plaintiffs renders such a strategy inappropriate: Preston v. Hilton (1920) 48 OLR 172. Hickey v. Electric Reduction Company of Canada (1970) 21 DLR (3d) 368. P. Emond, "Introduction to Environmental Law" in Environmental Law Practice: The Challenge For The '90's (Manitoba: Law Society of Manitoba, 1992) at 7. For example the obligation of the tenant to the grantor to maintain the land and to avoid committing waste or damage. In William Blackstone's Commentaries on the Laws of England, W. Jones ed., (London: Sweet & Maxwell, 1915) vol.1, at 137: the prima facie rule at common law that ownership of property carried with it absolute rights of use and enjoyment, as expressed by "cujus est solum ejus est usque ad coelum et ad inferos". 8 The twentieth century marked the beginning of the modern environmental era. Overpopulation and increasing pressure on the environment have as its consequence pollution, deforestation, desertification, ecological disruption, climate change, and resource exploitation. The original avenue for broader citizen participation in the environmental arena was through public opinion polls, which reflected widespread support for environmental activism and protection advanced by the proliferation of environmental advocacy groups in the 1960s and 1970s. Organizations such as Greenpeace and the Sierra Club of Western Canada, among others, have helped elevate community awareness of environmental problems and the possibility of challenging environmental decisions. With public concern for immediate threats to health and the environment, a number of environmental laws in the 1960s and 1970s were created. New priorities were set as part of the national and international agenda. Initially what emerged was a new concept of an environmental policy, and recognition of environmental measures as a coherent body of The prima facie rule is qualified by the maxim "sic utere tuo ut alienum non laedas": use your own property in such a manner as not to injure that of another. See William Aldred's case (1611) 9 Co. Rep. 576, 77 ER 816. 22 Alastair Lucas identifies three generations of environmental statutes: A. Lucas, "Federal Regulatory Controls" in Canadian Environmental Law, 2nd ed. (Toronto: Butterworths Canada, 1993) at §§ 4.3 to 4.12: (1) 1st generation: these statutes are generally concerned with the control of waste deposited on land or discharged into water or air. Government recognized that civil legal actions designed to resolve disputes between private parties and compensate persons damaged were an ineffective tool for systematic control of environmentally harmful waste discharges. Regulatory regimes were thus established to identify waste sources and bring them under some type of permit or approval. Terms . and conditions attached to approvals would then control the quality and quantity of waste discharged. (2) 2nd generation: these statutes have been emerging as a response to overwhelming evidence that the waste control approach is merely one aspect of an effective environmental protection regime. In recognizing that environmental protection is a long term process that must address potential intergenerational effects of environmental damage and that scientific knowledge of substance toxicity is continually developing, the laws must be flexible, preventative, and anticipatory. (3) 3rd generation: laws that go so far as to implement the concept of sustainable development. This principle was recommended by the United Nations World Commission on Environment and Development in its 1987 report, Our Common Future (or Brundtland Report). 9 legislation. Basic air and water pollution control statutes and Departments of the Environment were established. Environment Canada commenced operations in 1971. The advance of federal environmental regulation of industrial operations in the provinces, including management and exploitation of natural resources on provincial public lands was marked by new federal legislation such as the Fisheries Act 197023, Canada Water Act 197024, and Clean Air Act 1970 (1971/1972).25 International recognition of environmental problems was also apparent, and in 1972, government leaders gathered at the Stockholm Conference to discuss the environmental consequences of industrial expansion. The first comprehensive action plan for the conservation of the world's resources was developed in 1980: the World Conservation Strategy21. The WCS identified the three components of sustainable development: environment; economy; and social systems. It also linked the limited carrying capacities of ecosystems to the future of economic development and social well-being. In the mid-1980s, when opinion poll pressure reached a high water mark, government reacted by enforcing laws that already existed, as environmental officers were dispatched to sites to monitor compliance with environmental legislation. In 1983, the pivotal work of the Brundtland Commission was unveiled in its report entitled Our Common Future, which concluded that continued development, particularly in underdeveloped nations, was necessary, but that humans also had to act decisively to protect the environment through improved technology 2 3 R.S.C. 1970, c. F-14. 2 4 R.S.C. 1970, c.5. 2 5 S.C. 1970-71-72, c.47. 26 See Stockholm Declaration on the Human Environment 1972, notably the sustainability concept in Principle 13. 2 7 Hereinafter WCS. 10 and better social organization, institutions and political leadership. Following the Brundtland Commission's visit to Canada, the National Task Force on Environment and Economy (Canada) was formed by the Canadian Council of Resource and Environment in 1986. Two key recommendations were the establishment of national and provincial round tables (multi-sectoral advisory bodies to promote cooperation on environment-economy integration) and increased public participation and education in "sustainable economic development". One of the major objectives during this time was to regulate common sources of pollutants. Various pollution control statutes at federal and provincial levels, regulated environmental damage by prohibiting discharges into water, air, or on land,28 unless a government permit or approval was obtained. Such statutes were aimed at controlling environmental harm by restricting what could be discharged - or, "end of pipe" regulations. The regulatory reforms of the late 1980s promoted a shift in approach from "end of pipe" regulation to more proactive environmental protection measures, which sought not only to regulate discharges through permits, but also to manage toxics with the aim of eventually reducing or eliminating certain discharges. These initiatives include "pollution prevention planning", and "3-Rs" (reduce, reuse and recycle). Since then, continuing pressure has led to more severe penalties29 and a wider net of liability 3 0. The sustainability concept remains a Also reflecting a recognition of the fact that pollution is not restricted to geographical borders. For instance, a company President was sent to jail for 15 days for an environmental offence: R v. Blackbird Holdings (1991) 6 CELR (NS) 138; two company Directors personally received $16,000 fines each: R v. Bata Industries (1992) 9 OR (3d) 329. Private actions were pursued through the courts, typically based on common law concepts such as negligence, nuisance, and the rule in Rylands v. Fletcher. These actions are limited in scope, however, as their use is typically reliant upon the existence of property rights. For example, federal statutory provisions allowing prosecution of officers and directors of a company, regardless of whether the company is charged or convicted: Canadian Environmental Protection Act, R.S.C. 1985, c.16. 11 central theme, and is highlighted in Caring For the Earth: A Strategy for Sustainable 31 32 Living and The Rio Declaration . There are also other formal avenues of citizen participation now: complaints may be made to Environment Canada or its agencies; similarly complaints may be taken to the Office of the Environmental Commissioner. A private individual may initiate a prosecution on his or her own initiative with respect to both summary conviction and indictable offences.33 An individual may also be pursued under certain statutes to prevent loss or injury from occurring. The loss or injury may include personal injury, death, loss of the use or enjoyment of property, financial loss, and loss of income.34 However, questions have surfaced not only over procedural issues,35 but also administrative issues.36 The increase in governmental authority was generally accepted as necessary to protect health and the environment, and was a reflection of the technocratic nature of our The World Conservation Union, United Nations Environment Programme (Switzerland: Worldwide Fund for Nature, October 1991). United Nations Conference on Environment and Development (Rio de Janeiro, Brazil, June 1992) principle 4. Supra note 22, at §19.16. Note also the possibility of class actions. This is defined as a procedural device whereby a group of individuals with a common complaint, which have arisen out of a common occurrence, join together to bring a single action instead of pursuing their remedies independently: G. Bates, Environmental Law in Australia, 4 th ed., (Australia: Butterworths, 1995) at 484. See also Ontario Class Proceedings Act, S.O. 1992, c.6, which also created a class proceedings fund to alleviate some of the costs of undertaking class actions. The main advantage of a class action is more equal distribution of costs of an action. This may suit Plaintiffs who, collectively, have good cause for complaint as opposed to harm suffered individually, for example, air pollution. However, there is a danger of unrealistic claims and abuses of the procedure (for example claiming billions in damages or representing citizens who are not even aware of the action). Supra note 22, at § 19.24. See also section 136(1) Canadian Environmental Protection Act, R.S. 1985, c.16, and section 42(3) Fisheries Act, R.S.C. 1985, c.F-14. For example, the absence of clear environmental objectives, too much regulation in plans and procedures, the delays experienced in approval procedures. For example the tension between agency discretion and accountability, and the role df citizen participation. 12 political system of representative democracy . Subsequently, there was little room for common law actions, and the private rights and powers of citizens to legally assert their interests were receding.38 Not surprisingly, the discretion afforded to administrative management and the lack of accountability has resulted in a problem of political legitimacy. The global environmental crisis has been devastating in its effects: deforestation, air pollution, greenhouse effect, ozone depletion, toxic chemicals and wastes, impacts on water regimes, resource exploitation, species loss, natural disasters, and the economic and social costs of environmental degradation. We face pollution and environmental problems every day. We have also witnessed more and tougher laws to respond to this growing crisis. However, despite a recent spate of new environmental laws and regulations, the crisis appears to be worsening, and political assurances that we have adequate laws to regulate and prohibit pollution are cold comfort. The finite nature of many essential natural resources and the cumulative effects on a global scale of their unrestrained use have been graphically spelt out in various publications and reflected in numerous international conventions40. Instead of arguing the need for Where elected representatives are entitled to make all decisions themselves, as they have been elected for this purpose. It is a system based on the delegation of power over the refinement and implementation of environmental policy to expert bodies. With regulatory permits and approvals being negotiated between government regulators and industry regulatees. G. Hardin, "The Tragedy of the Commons" (1968) 62 Science 1243. Stockholm Declaration 1972 - the principles in Stockholm were the forerunner to the current concept of sustainable development and reflected an awareness of the relationship between the environment and development issues, notably, the effects of desertification, endangered species, wetlands protection, and ozone depletion; World Commission on Environment and Development (Brundtland) Report 1987 - reminded governments of their responsibility as stewards holding resources in trust for future generations, and encouraged governments to reformulate legislation so that the rights and responsibilities of citizens and states with respect to sustainable development are recognized; Rio Declaration 1992 - contained the basic principles to govern the economic and environmental behaviour of peoples and nations to ensure sustainable development. "Sustainable development is a multi-faceted concept consisting of three main components or themes: ecological sustainability [the ability of a 13 appropriate environmental laws, we now evaluate the efficacy of modern environmental laws and ask what the best techniques for environmental management are. The myriad of issues identified by Jaffe and Tribe almost thirty years ago continue to plague us:41 In a society increasingly influenced by science and technology, how should choices be made among alternative forms of private litigation and public regulation as modes of social control? How can conflicting interests best be identified and represented in processes of lawmaking and administration? Who should have the responsibility to consider the future and how much weight should such considerations be given? By what criteria should the factual and economic burdens of uncertainty be allocated among the prospective beneficiaries and victims of environmental alterations? How can the use of expertise and of systematic, quantitative analysis in decision making be reconciled with the goals of pluralism and participation? With the preservation of intangible, unquantifiable values? Through what institutional arrangements and under what assumptions, are such competing values as "economic growth" and "quality of life" best reconciled? Over the last two decades, Canada has taken up the challenge of making changes to environmental law which reflect increased environmental awareness and the emergence of a new environmental ethic.42 Existing legislation is not seen to prevent significant environmental degradation in terms of air, land, and water quality standards. The typical ad hoc approach of environmental regulation in controlling aspects of a project in isolation is flawed because of the complexity of the interrelatedness of the various elements of the system to continue indefinitely, the absence of permanent change caused in an ecosystem by human activity] sustainability and economic sustainability. It is not merely an environmental concept, but incorporates the ideals of social justice and well-being, and qualitative improvement in living standards. It is based on the principles of intergenerational equity, intragenerational and interregional equity. The concept questions the "straight line" version of economic growth, the industrial assumption of ever-increasing expansion and consumption, and the infinite capacity of the environment to supply raw material and absorb waste ...It is conflict with the principle of discounting and the calculation of present value in economic theory. ...[T]he report [Our Common Future] identifies the objectives that follow from sustainable development as reviving growth, changing the quality of growth, meeting essential needs for jobs, food, energy, water and sanitation, conserving and enhancing the resource base, reorienting technology and managing risk and merging environmental and economic decision making. See B. Pardy, Environmental Law, A Guide to Concepts (Toronto: Butterworths, 1996) at 267-268. L. Jaffe, Environmental Protection (Chicago: Bracton Press, 1971) at Preface. Or, a moral obligation of administrations to actively recognize collective responsibility towards the environment. 14 in one medium may lead to an increase in another. Taking environmental legislation to the next level may involve comprehensive integration of legislation, administrative responsibilities and operational management, or "integrated resource management"43. A fully integrated system of resource management may be delineated into normative, strategic, and operational levels:44 The normative level of resource management involves the consideration of the premises and priorities underlying resource management systems and decision-making processes; the definition of desired goals and ideals; and the setting of higher level objectives and policies for natural resources use and management. Examples of normative objective setting and implementation include the assimilation of international resource management principles such as sustainability into domestic legislation; the protection of areas identified as having World Heritage status; and the setting of minimum common property resource (air, water, wilderness) quality standards by central government. The strategic level of integrated resource management refers to the detailed analysis and evaluation of alternative goals and objectives, and the selection and design of means to achieve them. The operational level of integrated resource management concerns the implementation of normative and strategic policies, objectives, and plans. At the normative level of integrated resource management, public participation has become a desired goal. Under an integrated system of resource management, the implications of the desirability of public participation should translate into strategic Or, a moral obligation of administrations to actively recognize collective responsibility towards the environment. Mitchell defines this as "the sharing and coordination of the values and inputs of a broad range of agencies, publics, and other interests when conceiving, designing and implementing policies, programs or projects": in "The Evolution of Integrated Resource Management" in R. Lang, ed., Integrated Approaches to Resource Planning and Management (Banff: Resource Management Programs, 1986) at 13. Three components of integrated resource management have been identified. The first component is integration across media. For example, policy on water issues needs to be developed in conjunction with policy on land matters that affect water, and links need to be made to the policy on natural hazards. Secondly, there is a need for integration across agencies, which involves joint decisionmaking, joint management methods and responses, and co-ordinated action in pursuit of shared environmental goals. A third component is integration with other legislation. Since a variety of legislation and management agencies may be involved, for example in relation to the coastal environment, cohesive policies need to be developed which co-ordinate information held by all the affected agencies. The fourth component is integration of actions across time. This component recognizes that activities accumulate over time and that effects can be temporary or permanent. Cumulative effects may not be restricted to the area in which the activity has taken place and may well cross boundaries. See D.A.R. Williams, Environmental and Resource Management Law (Wellington: 15 measures, specifically through its inclusion in environmental protection and dispute resolution legislation, and also implementation. It may be useful to preface this proposition with a preliminary discussion of the roots of public participation. 1.4 METHODOLOGY This thesis presupposes that the dominant theoretical underpinnings of public participation in environmental decision-making find their sources in three areas: Deep Ecology, Transformative Governance, and Civil Rights. 1.4.1 Deep Ecology Deep Ecology has been defined as "an ethical stance which assigns value to non-human life and environmental elements".45 The Deep Ecology awareness was first suggested by Arne Nasss, a Norwegian philosopher, as one of two probable camps dividing the environmental movement - the other being those protectors of the environment with an anthropocentric46 view of the world. Deep Ecology describes a fundamental change at a personal and social level: it inspirits change in personal, spiritual, ethical, and political attitudes and behaviour 4 7 Na?ss describes the tenets of deep ecology as:48 Butterworths, 1997) at 62-64. The integrated resource management principle has also been a key building block for environmental legislation in New Zealand: see the Resource Management Act 1991. B. Pardy, supra note 35, at 57. This perspective places humanity and nature in a relationship with humans at the centre and the environment at the periphery - human needs are satisfied by exploiting the environment. In contrast to the view of humans at the centre and separate from the natural world, deep ecology embraces a different concept of "self: a connectedness as part of an interrelated whole. A. Naess, Ecology, community and lifestyle, Outline of an Ecosophy (Cambridge: Cambridge University Press, 1989) at 29. 16 1. The flourishing of human and non-human life on Earth has inherent value. The value of non-human life forms is independent of the usefulness these may have for narrow human purposes; 2. Richness and diversity of life forms are values in themselves and contribute to the flourishing of human and non-human life on Earth; 3. Humans have no right to reduce this richness and diversity except to satisfy vital needs; 4. Present human interference with the non-human world is excessive, and the situation is rapidly worsening; 5. The flourishing of human life and cultures is compatible with a substantial decrease of the human population. The flourishing of non-human life requires such a decrease; 6. Significant change of life conditions for the better requires change in policies. These affect basic economic, technological and ideological structures; 7. The ideological change is mainly that of appreciating life quality (dwelling in situations of intrinsic value) rather than adhering to a high standard of living. There will be a profound awareness of the difference between big and great; 8. Those who subscribe to the foregoing points have an obligation directly or indirectly to participate in the attempt to implement the necessary changes. Thus, it involves a realization of the intrinsic value of all things in the ecosphere, which in practical terms, plays out in a personal behaviour change, one which recognizes the impact of one's behaviour on the environment, and the need to lessen that impact through a change in consumption patterns. 1.4.2 Transformative Governance [A] sustainable democratic society requires more than good public policy. It requires neighborhoods and communities where people care about, as well as care for, one another. And it requires processes of governance which both demand and reward such qualities as honesty and integrity, respect and tolerance, fairness and compassion, and individual arid corporate 49 responsibility. One writer, Franklin Dukes, operates on the premise that traditional institutions of governance are unable to address problems of contemporary democratic society and the potential offered by public conflict resolution practices. Three particular problems of contemporary democratic society are identified: the disintegration of community and the F.E. Dukes, Resolving public conflict: transforming community and governance (New York: Manchester University Press, 1996) at viii. 17 meaning found in community life; 5 0 alienation from the institutions and practices of 51 52 governance; and the inability to solve public problems and resolve public conflicts. Dukes advocates challenging the vision of human nature, society, and governance offered by the "ideology of management",53 and embracing a rethinking of modernity away from possessive individualism. This foundation of public conflict resolution practice is based on the need for affiliation and community and the ways in which to more fully engage the Where the communal and civic ties among people are weakened or undermined by factors like increased mobility (individuals able to seek work and housing); advanced technology (allows easy and inexpensive communication across great physical distances and in isolation of each other); and, "top-down" decision-making (decisions made by the political bureaucracy) - arguably contributing to competitive materialism, increasing alienation, and shattered social cohesiveness through the devaluation of relationships. The problem of alienation finds its sources in the mistrust of the political process and the public realm; the domination by the bureaucratic welfare state; and inadequate vehicles for authentic and effective public participation. The decline in the quality of involvement in democratic institutions is attributed to, for example, by the sense of impotence concerning politics, felt by citizens: they do not feel that they make a difference. "A society which no longer supports community or common purpose has resulted in flight from public life. People have fewer common activities and feel fewer obligations towards others Dukes, supra, note 49 , at 130. This is cited by Dukes as one of the major conundrums of any representative democracy: representation serves efficiency and accountability ends, but results in the disempowering of individual initiative. The alienation of the public is achieved through the ways public officials and institutions handle affairs: when information about a controversy is limited or slow to be revealed, confusion and uncertainty may fuel public suspicion and antagonism; early deadlines and time limits may also heighten uncertainty and suspicion about the motivations of parties responsible; when citizens learn of an action which will affect then after such action has already been initiated or confirmed, they may feel an exclusion from decision-making processes and a devaluation of their input. Since conflict is a natural part of human existence, even in close communities, Dukes argues the ability to resolve conflict productively requires understanding of the nature, sources, and dynamics of disputes. A way of viewing the world, society and human nature and behaviour whose main theme is "the crisis of governance", or the inability of authorities to govern legislative, judicial and administrative gridlock. This worldview is perhaps predicated on what Dukes argues is a misconception - a fundamental division between liberals and conservatives (Dukes, supra note 49, at 4). Also implicit in this worldview is the idea of a society of Hobbesian individuals "brought together into temporary associations in order to best pursue their own self interest, a pursuit that is celebrated as the basis of economic and social well-being" (supra note 49, at 5). The public good will be best realized through the process of private competition and freedom from state intervention. Public life becomes an area characterized by the adversarialism of politicians or special interest groups, and the disengagement of citizens. Dukes offers that public conflict resolution in this context is limited by the efficiency and productivity ends of management practice and by the range of issues that become suitable for public intervention (i.e. public disputes within the domain of responsible governing bodies, as opposed to private matters such as community, identity, or quality of life). 18 citizenry. Dukes suggests a more significant role for public conflict resolution than the ideology of management. He sees public conflict resolution as not being limited to the settlement of disputes, but also as a "vehicle for transforming citizenry, communities, and the private and public institutions of contemporary democratic society".54 It involves re-evaluating who we are as humans in relationship with one another, and re-conceiving how democratic institutions and communities may be sustained.55 Three goals provide the foundation of a practice of public conflict resolution: inspiring, nurturing, and sustaining a vital communal life - an engaged community; invigorating the institutions and practices of governance - a responsive governance; and, enhancing society's ability to solve problems and resolve conflicts - a capacity for problem solving and conflict resolution:56 And beyond the practical need for agreement is the moral need to move beyond the type of fighting which characterizes so much public conflict. This moral need has led to the search not only for common ground, but for higher ground: a ground for engagement in public issues on terms such as fairness, integrity, openness, compassion, and responsibility. It is the search for forums and processes where individuals and organizations can be forceful advocates without being adversarial, where public officials can make effective decisions without being dictatorial, and where communities come together rather than split apart when faced with tough problems and divisive conflicts. Supra note 49, at 7. Note: Mattson advises contemporary organizers trying to create the institutional basis for a democratic public. Drawing on the works of such political thinkers as Mary Parker Follett, he states: "Involving citizens in democratic deliberation is crucial, but this debate must lead to actual political decision-making. To create such a situation, though, takes time and patience - a second lesson to be learned from social centers activists. . . . A certain amount of independence from political choice and power is needed if open deliberation is going to evolve. Thus, a very difficult balance must be struck between making an impact on political power and retaining openness and freedom from deliberation - a balance that the social centers failed to make, resulting in their failure to transform American politics. Finally, to ensure open and free discussion, organizers must make sure that citizens themselves institute the processes of deliberation": K. Mattson, Creating a Democratic Public, The Struggle for Urban Participatory Democracy During the Progressive Era (Pennsylvania: The Pennsylvania University Press, 1998), at 133-134. Supra note 49, at 2. 19 1.4.3 Civil Rights The concept of civil rights has evolved to include two distinct conceptions of environmental protection - the recognition of the intrinsic value of the environment, and the giving of a voice to public interest groups. Christopher Stone proposed that legal rights be extended beyond humans to the environment: to forests, oceans, rivers, and other so-called natural objects in the environment.57 The guardian - or friend - of a natural object, who perceives it to be endangered, represents its affairs and speaks for it in court. The cost of harm to the environment is to be taken into account, and the environment itself may become the beneficiary of a money judgment, perhaps through a fund being established to preserve the natural object. Civil rights, as a means of protecting the interests of minority groups, have been suggested to extend to environmental quality.58 However:59 Thus far neither our courts nor our legislatures have significantly faced up to the implications of public rights. They continue to be fixated on the administrative process as the mechanism for identifying and enforcing the public interest. The public remains an outsider, to be tolerated as a recipient of notices and participant at formal hearings, but not as a central player. Elaborate schemes are devised for studies by agencies and for coordination amongst them, but the administrative agency continues to the viewed as the key instrument of decision-making. Even the most sympathetic courts today recoil at the prospect of questioning an agency's discretion or its supposed expertise about the public interest. The public itself is thought to possess no expertise about the public interest. Consequently, the right to a clean and healthy environment has been considered through two means: a constitutional right, and a procedural right. Christopher Stone, "Should Trees Have Standing?-Toward Legal Rights for Natural Objects" (1972) 45 Southern California Law Review 450, 456. Joseph Sax, Defending the Environment: a strategy for citizen action (New York: A A Knopf, 1971). Sax also explores the public trust doctrine which may also provide a foundation for Environmental Bills of Rights. See infra, Chapter 3, note 94. Sax, ibid, at 60. 20 (i) A Constitutional Right The concept of entrenched environmental rights in the constitution has also been proposed, as a substantive right to environmental quality. Such a right would constrain government actions that harm the environment. Professor Gibson's proposal of constitutionally entrenched environmental rights has been formulated as follows:61 Environmental Rights 15.1(1) Right to a Beneficial Environment Everyone has the right to a beneficial environment, and to enjoy its use for recreational, aesthetic, historical, scientific and economic purposes, to the extent reasonably consistent with: (a) the equivalent rights of others; (b) the health and safety of others; and (c) the preservation of a beneficial environment in accordance with subsection (2). (2) Everyone has a right to the preservation of a beneficial environment, so as to ensure its future enjoyment for the uses set out in subsection (1). (3) For the purposes of this section, "environment" includes land, water, air and space, and the living things that inhabit them, as well as artificial structures and spaces that are beneficial to humans or to other components of the environment. Some environmentalists have advocated the entrenchment in the Canadian Constitution of a fundamental right to safe environmental quality, for example by establishing an entirely new right in the Charter of Rights and Freedoms.62 Although a constitutional guarantee would have the advantage that it prevails over all federal and It is also interesting to note that a draft Charter of Environmental Rights was to be considered for signing at the 1992 meeting of the Economic Commission for Europe: K. Douglas: infra note 65. D. Gibson, "Constitutional Entrenchment of Environmental Rights" in N. Duple, ed., Le droit a la qualite de I'environnement (Montreal: Quebec Amerique, 1988) at 287. Constitution Act 1982, R.S.C. 1985, App. II, n.44. The right might also be linked to the Charter by including a declaration in the Preamble of the Charter, although the disadvantage would be that a preambular declaration may be of uncertain effect, and likely to be effective as a guide to judicial interpretation only. Alternatively, existing Charter rights may be expanded by judicial interpretation to include a constitutional guarantee of environmental health: for example, section 7 - the right to "life, liberty and security of the person", may protect against environmental hazards that threaten human life or health; under section 35 - the affirmation of aboriginal peoples' treaty rights that existed at the time the Charter was passed, environmental rights could be included in their negotiations of land claims with the federal government. However, the discovery of an existing constitutional guarantee awaits the long process of litigating cases leading to judicial interpretation and application. 21 provincial legislation and would constrain government action, the disadvantage is that it may be effective only as against the government, and not private polluters. (ii) Procedural rights Proposals for procedural rights, in the form of statutory bills of rights, have also been advanced. A Bill of Rights may make changes in relation to procedure, such as it pertains to standing, onus of proof, remedies, and costs, for example. Environmental Bills of Rights63 roughly approximate provincial human rights statutes, and accord individuals a right to a reasonable level of environmental quality. Since the 1970s, various attempts have been made, and the first Canadian Environmental Bill of Rights was enacted in 1990, with the passage of the Northwest Territories' Environmental Rights Act.M Since then, other provinces have successfully followed suit; however, British Columbia has yet to come to the party. An environmental bill of rights would be a law seeking to remove obstacles that have prevented individuals and public interest groups from participating in the environmental decision-making process and litigating issues of environmental degradation.65 Most EBR statutes include some statement as to a right to environmental quality, or a right66 to a clean and healthy environment. As one writer notes, "Such a right would create judicially 6 3 Hereinafter EBR. 6 4 S.N.W.T. 1990, c.28. 6 5 K. Douglas, "An Environmental Bill of Rights for Canada", 1991 Background Paper BP-281E. 6 6 A right is a power or privilege inherent in one person and incident upon another, and expresses justice, ethical correctness, or consonance with the rules of law or the principles of morals. It describes the potential for the right holder to seek a judicial remedy against the actions of another who has interfered with the right: Black's Law Dictionary, 6th ed., (Minnesota: West Publishing Company, 1990). See also R. Dworkin, Taking Rights Seriously, (London: Duckworth, 1977). 6 7 However, knowing exactly what an EBR is designed to protect and to what extent is difficult because words such as "healthy" and "quality" are relative and subjective and may be hard to agree upon. 22 enforceable remedies for environmental damage caused by government agencies or private actors in cases where courts found that the right had been infringed".68 Just as property rights have their origin in the common law, it is possible for a new environmental right to be drawn from emerging case law,69 specifically through the public nuisance doctrine. In British Columbia, the case of A. G. of British Columbia, ex rel. Eaton v. Haney Speedways™ hinted at such a right, when the plaintiffs successfully brought an action in public nuisance to enjoin the defendant's motor car racing activities.71 However, although an environmental right is a possibility, there it remains, as the courts are yet to create a definition of property that flows from environmental rights. Another way of creating the right is directly by legislation, in the form of a new statute whose sole purpose is the recognition and protection of new environmental rights.72 Canada began entertaining the idea in 1974,73 and the political posturing in respect of the adoption of environmental protection legislation reform came to a head in 199074 when the P. Muldoon, "The Fight for an Environmental Bill of Rights" (1988) 15 Alternatives 35. William Aldred's case: supra, note 21, St Helens Smelting Co v. Tipping [1861-73] All ER Ext 1389. (1963) 39 DLR (2d) 48 (BCSC). The court made references to the reasonable use and enjoyment of property being adversely affected by the defendant's activities: "their reasonable comfort and convenience of life have been materially affected" and "there has been an inconvenience materially interfering with the ordinary physical comfort of human existence". Ibid at 54. Such was the Michigan Environmental Protection Act 1970, the first EBR statute. See section 691-1201(1): "... any person ... may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against... any person ... for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". Although, in 1971, Bill 101 was introduced as a private members bill in the BC Legislature. Its three main sections included one to create the rights; one to state that violations of the right constituted a tort; and one that described a person's right entitlement as that which was reasonable in the circumstances. Although Quebec has had a substantive right to environmental quality in their Environmental Quality Act 1977, sections 19.1 and 19.2; where every person has the right to a healthy environment and to its 23 Northwest Territories passed Bill 17, the Environmental Rights Act. The Act gives individuals the right to clean air, water and soil; public access to government information; whistleblower protection; the right to demand government inspection of a suspected environmental problem; and the power to sue polluters if the government fails to act. The Northwest Territories Environmental Rights Act was followed by the Yukon Territory in 1991, with the enactment of the Environment Act.15 The EBR concepts are enunciated in sections 6 to 8: 6 Environmental right - The people of the Yukon have the right to a healthful natural environment. 7 Declaration - It is hereby declared that it is in the.public interest to provide every person resident in the Yukon with a remedy adequate to protect the natural environment and the public trust. 8 Right of action - (1) Every adult or corporate person resident in the Yukon who has reasonable grounds to believe that a person has impaired or is likely to impair the natural environment... may commence an action in the Supreme Court. Although existing and proposed environmental bills of rights contain different provisions, many of the same concepts appear throughout, such as: a right to environmental quality; a public trust doctrine; a right to protect the environment76; and a cause of action for violation of an Act or standard. A discussion of the Environmental Bill of Rights based on the Ontario model is further provided in Chapter Three of this thesis. protection, with recourse to the Superior Court where an injunction may be granted to prohibit any act that interferes with the right. Other Canadian jurisdictions have also tabled environmental bills of rights, including Alberta: see the (1992) Bills 261 and 302 - Environmental Bill of Rights Act; and Saskatchewan: see the (1992) Bill 48 - Charter of Environmental Rights and Responsibilities. Such a provision attempts to remove some of the obstacles to pursuing private actions, such as standing rules. 24 CHAPTER II DISPUTE RESOLUTION APPROACHES IN BRITISH COLUMBIA AND THE ENVIRONMENT 2.1 INTRODUCTION Canada has a history of being rich in and economically dependent upon its natural resources. Concern over our natural environment is an interplay of a wide range of factors involving natural, human, economic, social and political forces. Natural resources face increasing pressure from developers and conservationists, and also between various competing groups among different industries. The complexity of interrelated environmental, social and economic activities must also be considered. Decisions which affect the environment affect all of us. Since the environment is a matter of public concern , there is an increasing awareness that a key aspect of environmental protection and preservation is the role of public participation in and access to environmental decision making. The processes for making decisions that affect the environment to a significant extent should include or permit the participation of all persons potentially affected by the decision.1 In relation to environmental decision making, there are many levels at which public participation may occur or be appropriate: national policies and legislation; regional and district policies, plans and consents; other government administrative decisions or consent; and legal appeals o f decisions. Involvement may be by individuals directly, or through representatives or groups. ... If conflict is not resolved in the decision making process it will remain, manifesting in such forms as perennial relitigation o f issues, public distrust, anger and cynicism, civi l disobedience, and In fact, international environmental agreements such as the Rio Declaration allude to importance o f access to information, public awareness, and public participation in decision making processes: see Principle 10, Rio Declaration, United Nations Conference on Environment and Development (June 1992). 25 political instability. Generally, communities are more supportive of programs and decisions that they have been involved in developing than those they feel have been imposed without consideration of their concerns. Community "ownership" of environmental problems also helps ensure sustainable solutions. This in turn, means addressing some of the legal and practical barriers to achieving environmental goals. Significant judicial barriers include the rule of awarding costs and judicial review limitations; while administrative barriers involve issues of notification and access to information. 2.2. L E G A L BARRIERS 2.2.1 Standing The right of a person or body to ask a court or tribunal for relief is referred to as locus standi (standing to sue). The right may be a statutory right or a common law right.3 An applicant seeking judicial review of environmental administrative action must satisfy the rules of standing. These rules concern the relationship between the applicant and the subject matter of the proceedings, as opposed to the merits of that applicant's case. ...[T]he courts must keep a proper restraint upon the ability of individuals to seek review since public administration may become unworkable if individuals have the ability to seek review of environmental administrative action, regardless of any particular interest in the action in question. However, to ensure the proper workings of the democratic process, it must be that, at the very least, environmental interest groups have standing to legitimately represent the public in circumstances where environmental administrative actions effects the public at large.4 The traditional rule regarding standing in private actions is that the Plaintiff is to have a direct proprietary, personal, or pecuniary interest in the matter. With regard to public Basic principles of public participation in Appendix 1 of Public Participation Under the Resource Management Act 1991, The Management of Conflict (Wellington: Office of the Parliamentary Commissioner for the Environment, 1996) at A15-16. As such, the applicant must show some special interest over and above the members of the general public in order to show standing to appeal. "Special interest" typically signifies some property or economic interest, but may also extend to a spiritual or cultural interest, or special relationship with a particular environment. 26 rights, the Plaintiff is to show he or she is affected differently from the rest of the public. The denial of standing removes the right to initiate litigation and all of the decisions that accompany that right. In Canada there has been a liberalization of standing rules to allow those with a "genuine interest" in the validity of the legislation5, but also a contraction6 to limit where there is an "other reasonable and effective manner" in which the issue may be brought before the Courts. Advances have been made not through legislation but through a less restrictive application of the standing barrier by the courts.7 2.2.2 Costs Awards The traditional approach to costs is that a successful party is entitled to payment of costs on a partial indemnity basis by the unsuccessful party. Some8 argue that this may have a "chilling" effect on innovative litigation that could be brought to address environmental problems because Plaintiffs have little to gain financially from winning a case, but risks a great deal from losing. Relaxing the traditional requirements for standing may be of little significance unless other procedural reforms are made. Particularly is this so in the area of funding of environmental litigation and the awarding of costs. There is little point in opening the doors to the courts if litigants cannot afford to come in. The general rule in litigation that "costs follow the event" is in point. The fear, if unsuccessful, of having to pay the costs of the other side (often a government S. Rigney, "The Role of Procedural Fairness and Ultra Vires in the Judicial Review of Environmental Disputes" (1993) Environmental and Planning Law Journal 136 at 148. Canada (Min. of Justice) v. Borowski, 130 DLR (3d) 588. Canadian Council of Churches v. Canada, (1992) 88 DLR (4th) 193. Hickey v. Electric Reduction Co (1970) 21 DLR (3d) 368, 2 Nfld & PEIR 246; a growing recognition that public interest groups should have access to the courts in certain circumstances to protect the environment. Marcia Valiante and Paul Muldoon, "A Foot in the Door: A Survey of Recent Trends in Access to Environmental Justice", in Steven Kennett, ed., Law and Process in Environmental Management, (Calgary: Canadian Institute of Resources Law, 1993). 27 instrumentality or wealthy private corporation), with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of cases to court. In any event, it will be a factor that looms large in any consideration to initiate litigation.9 On one hand, if a party is successful, and no blameworthiness is attributed to the conduct of the litigation, then it is unfair to require the party to bear any costs in prosecuting or defending the action. However, if the unsuccessful party is to bear all the costs of the successful party, citizens will be unduly reluctant to sue or to assert or defend their rights. Costs are discretionary, thus it is up to the courts to use its costs powers to assist successful environmental groups.10 It is possible to argue that the Crown should not recover costs from public interest applicants at all, 1 1 or only when applicants were frivolous, vexatious, or involved in an abuse of process. However, it may be argued that taxpayers should not have that burden imposed on them in favour of groups which, without solicitation by taxpayers to do so, have decided to launch and pursue legal proceedings which were ultimately held to be without foundation12. Although it may be unwise to endorse a rule of law excluding costs awards against public interest litigants acting bona fide, a more flexible Per Toohey J., "Environmental Law - Its Place in the System" in Proceedings of the 1st NELAfLAWASIA International Conference on Environmental Law (June 14-18, 1989) Sydney, Australia. Apart from the decision in Friends of the Oldman River Society v. Canada: (1992) 7 CELR (NS) 1, it seems there is no Canadian trend to do so. However, there is a Class Proceedings Fund in Ontario with a $500,000 startup from the Ontario Law Foundation which is operated by a Class Proceedings Committee. The Committee considers the extent to which the issue affects the public interest, the merits of the Plaintiffs case, whether the Plaintiff has made reasonable efforts to raise funds from other sources. Funding is available at any stage of the proceedings and notably the emergence of a one-way costs rule allows Plaintiffs who receive any amount of assistance from the Fund to be immune from paying adverse costs awards. Winning Defendants are entitled to recover a costs award from the Fund and "may not recover any part of the award from the Plaintiff. Ontario Law Reform Commission, "Report on the Law of Standing", Toronto (1989) at 137-176. Per McDonald J. in Reese v. Alberta, (1992) 9 CELR (NS) 65. The court should not fetter the exercise of its discretion, and should retain the ability to award costs against voluntary organisations. 28 approach has been suggested in another jurisdiction to allow more leniency in the award of costs where the litigation concerns a higher class of appeal within a hierarchy of appeals.14 2.2.3 SLAPP The importance of public participation in environmental decision making is vital to both maintaining and enhancing the state of our environment. Despite wide acceptance of this principle, there is a growing threat that those individuals and groups who advocate for greater environmental protection may be subject to private litigation designed to retaliate against them for past advocacy and participation.15 This concern was highlighted in a report submitted by the West Coast Environmental Law Association with respect to the proposed British Columbia Environmental Protection Act. The West Coast Environmental Law Association states that Strategic Lawsuits Against Public Participation are lawsuits by private interests against individuals or non-government organizations alleging injury based on some form of tort due to the individual's or organization's efforts to influence public decision-making on an issue of public concern. The resources and costs required to defend a SLAPP can produce an effective chill on the activities of individuals and organizations involved in public interest advocacy.16 Salmon J. in Peninsula Watchdog Group v. Coeur Gold New Zealand, (1997) New Zealand Resource Management Appeals 501 at 508-509. For example, a hierarchy with appeals on references relating to proposed policy statements at the top, followed by applications for a non-complying activity under the Resource Management Act, and applications for consent to a discretionary activity at the bottom. A. Hillyer et al., "Recommendations For the Proposed British Columbia Environmental Protection Act" (Vancouver: West Coast Environmental Law Association, 1993) at 32. On file with author. Ibid, at 32-33. It recommended that the province consider anti-SLAPP legislation, in the BCEPA or elsewhere, to protect those groups and individuals active in public interest advocacy from lawsuits designed to deter their participation. Several states in the United States, including New York and California, have recently passed such legislation. The legislation should: -define what constitutes a SLAPP and the parameters for protection; -consider remedies against SLAPPs such as: - a right to petition the court to determine whether a particular legal action is a SLAPP and if so, a right to petition to dismiss the action; 29 2.3 ADMINISTRATIVE BARRIERS 2.3.1 Agency management of decision-making processes Pre-hearing meetings and hearings have been criticized for the imbalance in the way information is presented, adversarial approaches, and unfriendly attitudes and venues. Arrangements affecting the management of conflict vary between agencies and often agency staff are not properly trained for the specialized roles required of them at pre-hearing and other meetings. Initiatives which could assist in alleviating these concerns may include the development of guidelines by local government on the conduct of pre-hearing meetings and 17 18 hearings, the establishment by local authorities of policies for the management of conflict , and the establishment of an environmental dispute resolution training program.19 As a response to environmental conflict arising out of: lack of trust between interested parties and decision-makers; lack of information about the decision-making process; lack of technical information, or lack of assistance to interpret complex information; - in a dismissal petition, the plaintiff should bear the burden to show that the cause of action has a substantial basis in law or has a substantial probability of success; - where an action is dismissed because it is determined to be an unjustifiable SLAPP, an automatic court award of costs to the defendant as a penalty to SLAPP filers and as a strong disincentive to those who consider filing a SLAPP; - special funding to provide financial assistance for SLAPP defendants. See the Environmental Assessment and Review Process Guidelines Order, Canada Gazette Part 11, July 11, 1984. So as to ensure that planning documents are clearly written, performance objectives may be reviewed to ensure they are consistent with effective conflict management, criteria for determining how particular disputes will be handled are developed, pre-application consultation by applicants is actively encouraged, a framework is in place to ensure that agencies can identify First Nations concerns before decisions are made, decisions are delegated in such a way that delegations are fully understood, officers delegated to manage pre-hearing meetings are sufficiently skilled and trained and that officers involved in making the final decision are not involved in pre-hearing meetings unless all parties agree, and options for the public to have access to information about the decision making process are assessed and implemented. See Department of Justice Agency Training Workshop, infra at note 164. 30 structural problems such as statutory time frames and the way decision-making processes are established and managed; and different beliefs and values as to how environmental effects should be managed, the value of guidelines on the conduct of pre-hearing meetings and hearings is significant. By developing policies on the management of conflict through mediation and facilitation as well, the possible benefits may include: developing a relationship of trust with members of the public; making the process less threatening; more robust and durable decisions; ensuring that full information is available before decisions are made; a likely increase on cost effectiveness; and improving the effectiveness of 20 environmental management through the decisions made. 2.3.2 Notification Section 18(3) of the CEAA provides a consent authority with the power to decide whether or not a resource consent application will be notified at the Project Screening stage. In making such a decision, section 16 requires the following factors to be considered in a screening: 16(l)(a) the environmental effects of the project including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out... 16(l)(d) mitigation measures. Where a resource consent application is not notified, the consequence is that potential objectors are not able to make submissions on the application. In the absence of a 20 G. Bates, Environmental Law in Australia (Sydney, Butterworths, 1995), at 66. 21 For example, under section 7(1 )(a) of the Act where a project may be excluded because it is known to have insignificant environmental effects. Note: the British Columbia Environmental Assessment Act only applies to reviewable projects pertaining to categories of: Industrial projects, Mine projects, Energy projects, Water Management Containment and Diversion projects, Waste Disposal projects, Aquaculture and Food Processing 31 right to appeal, persons wishing to challenge an agency's decision not to notify are left with the recourse of bringing judicial review22 proceedings against the agency - a remedy which is not only uncertain but also costly and requires standing. Nor does the CEAA provide an express duty on decision makers to give reasons for their decisions, despite there being good policy grounds for doing so: First, it results in a properly thought out decision and hence a better quality decision. Secondly, if the person has a right of appeal, the facility of reasons will enable the person to determine whether to appeal and on what basis. Thirdly, reasons will make the decision maker more amenable to the supervisory jurisdiction of the courts and provide assurance that it has acted within its powers. Fourthly, reasoned decisions will help promote public confidence in the administrative process. Fifthly, reasons constitute a check on the exercise of discretion, prevent arbitrary action and provide guidance for future cases. 2.3.3 Public Participation in Setting Environmental Standards Law reform efforts have not really addressed public involvement in environmental decision-making activities especially standard setting and permit-issuing matters.24 There is projects, Transportation projects, and Tourism and Recreation projects, which exceed a specified size threshold as indicate in Appendix IV of the Reviewable Projects Regulation. "Judicial review of government action (or inaction) may also be available. In a judicial review, the court examines whether a government agency, administrative body or public official has acted (or failed to act) fairly, reasonably, impartially and within its authority. Such a review, however, cannot be pursued until there has been a final decision by an administrative body from which there is no further right of appeal": R. Cotton et al., Canadian Environmental Law, 2nd ed. (Toronto: Butterworths, 1994) at §19.44. Note: in "the environmental context, actions for judicial review have produced some contradictory and confusing results": at §19.46. Per Kirby P. in Osmond v. Public Service Board of New South Wales, [1984] 3 New South Wales Law Reports 447, in B. Preston, "Judicial Review in Environmental Cases" [1993] 10 Australian Bar Review 147 at 159. Under the CEPA, proposed regulations are to be published in the Canada Gazette Part I: section 48. A person then has 60 days to file a notice of objection with the Ministry of Environment, requesting that a board of review be set up and stating reasons for the objection. The Minister then decides whether the circumstances warrant the establishment of a board of review to inquire into the nature and extent of the danger posed by the substance pertaining to the proposed regulation: section 89. After such an inquiry is concluded, the board of review submits a report to the Minister along with its recommendations and evidence. The report is to be made public once it has been received and after the Minister considers the recommendations, the proposed regulation may be amended. 32 some statutory provision requiring public notification and comment, but such consultation process remain discretionary and inconsistently applied: Current consultations on regulations lack uniformity. Further, the government has no requirement to take the comments received into account or to respond in any way. Also, many groups do not have the resources to seek out the background information, or undertake independent studies to test and challenge assumptions being |>ut forth by the proponent or otherwise participate in the process on a long term sustained basis. 5 Potentially, there are public and political benefits for Ministers to ensure that proposed policies and statutes proceed under notice and comment provisions: the quality of the proposal is improved, the credibility of the decision-making process is enhanced, opposition to the proposed policy is reduced, and potential problems/loopholes are identified in advance. 2.3.4 Access to Information In order to participate, the public must take time out of their ordinary daily activities to gather information, make inquiries, and prepare submissions. Not only does this represent a cost sacrifice where parties must coordinate such activities during business hours, but getting access to the relevant information, so as to enable fully informed involvement, may be difficult as well as expensive. In order for such environmental information to facilitate political participation, the information must be accurate, affordable, accessible, timely, comprehensible and available across state boundaries. At the same time, however, the government should be permitted to withhold carefully circumscribed types of information in order to protect individual privacy, recognized trade secrets and particularly sensitive national security information. ...In order to effectively support political participation, freedom of environmental information has to be "user friendly". To accomplish this, the government must furnish a mechanism by which members of the public can request government-held information that relates to the environment. The mechanism must not interpose WCELA Recommendations, supra note 15. 33 financial or administrative obstacles that would frustrate the public's ability to obtain environmental information.26 Some initiatives designed to provide accessible information about C E A A procedures include public information booklets, fact sheets, bulletins, a Citizen's Guide, 2 7 an annual report to Parliament, and an email address28 for obtaining information and advice about procedures, and also services offered by certain Community Law Centres. Providing the public with the right to obtain greater access to information has occurred largely through legislative and policy initiatives such as the federal Access to Information Act29. There remains however, some difficulty in obtaining timely access to environmental information because of photocopy charges, delays, and the complexity of the system. Requests under the Act for information remains largely "hit and miss": giving the applicants exactly what they want may be circumvented depending on how the request is worded.30 2.3.5 Funding With regard to the defence of the environment at a reasonable cost, a practical barrier to public participation is the funding of litigation. Concerned citizens often lack the financial and professional resources to participate effectively in the judicial processes.31 The Ontario N. Popovic, "The Right to Participate in Decisions That Affect the Environment" [1993] 10 Pace Environmental Law Review 683 at 695. The Citizen's Guide is also online at: Email address at: R.S.C. 1985, c.A-1. Comments from interview with C. Rolfe, West Coast Environmental Law Association, Vancouver, January 2000. Legal proceedings are often complex and the trial process may extend over a long period of time. Costs also arise before legal proceedings even begin, such as collecting information about a proposed project and hiring experts to evaluate scientific and technical data related to the project, legal fees, and 34 Intervenor Funding Project Act provided public interest objectors appearing before certain tribunals with funds to pay disbursements and hire lawyers and consultants, provided they satisfy funding eligibility criteria. This however, still leaves the root of the problem in costs rules which make access to courts expensive and risky. 2.4 ENVIRONMENTAL CONFLICTS Environmental conflict arises when one or more parties involved in a decision-making process 33 disagree about an action which has potential to have an impact upon the environment. Most of us do not like conflict, yet it is a common element of our day-to-day lives. Conflict is also an essential element of a dynamic society. It is through conflict that issues are raised, new constituencies are formed, and social changes are effected. ... A society with a lack of tolerance 34 for conflict, and no acceptable means of reconciling it, will often lurch from crisis to crisis. The traditional method for resolving environmental conflicts was litigation. However, the unfamiliarity and nature of the litigation process to the disputants may lead to feelings of isolation, lack of control over the process, and being barred from participating in the crafting of the solution. The dynamics surrounding the handling of a dispute are described as follows:36 A person or business that has a dispute with another party based upon some sort of actual or perceived rights typically knows little about how to solve it. There are a variety of reasons for this, but as soon as an element called law is injected into a dispute most individuals and businesses disbursements - lack of funds is always an impediment: comments from interview with D. Smith, Better Environmentally Sound Transportation, Vancouver, October 1999. 3 2 R.S.O. 1990, c.113. 33 W. Blackburn and W. Bruce, eds., Mediating Environmental Conflicts. Theory and Practice, (Connecticut: Quorum Books, 1994) at 1-2. 34 Reaching Agreement: Volume I Consensus Processes in British Columbia (Victoria: British Columbia Round Table on the Environment and the Economy, 1990) at 3. 35 R.H. McLaren and J.P. Sanderson, Innovative Dispute Resolution: The Alternative (Ontario: Carswell, 1994) at 1-1, 1-2. 3 6 Ibid, at 1-1, 1-2. 35 feel paralyzed to deal with this dispute and resolve it. At this point the dispute is taken to a lawyer. It is thought that through the lawyer access is gained to the dispute resolution processes required to reach a solution to the dispute. What happens when the facts are described to the lawyer? The lawyer translates them into legal issues. This is nothing more than taking known principles of law and identifying how they may be applied to the facts of the dispute... [Translating the dispute into its legal clothing makes it unrecognizable to the person who brought the dispute to the lawyer. As the transformation process takes hold and legal research, legal analysis, and fact gathering get underway, the dispute is slowly and subtly removed from the disputant's world and transported into the legal world. When the transformation is complete, the next effect is that the client... is reduced to receiving predictions as to outcome, [and] providing instructions... Eventually resolution occurs, [but the process has been] slow, expensive, and [has left] disputants [as] "winners" or "losers"... Several shortcomings of traditional methods of environmental decision-making have been identified: litigation and hearing processes focus on procedure rather than the crucial environmental issues; they exclude those who will be affected by or who are interested in the decision; "top-down" decision making processes often run into difficulty at the implementation stage; decisions rendered by courts or boards do not necessarily signal the end of conflict; adversarial proceedings discourage open communication between disputing parties and thus reduce opportunity for reconciliation; adversarial proceedings can lead to a "battle between the experts" leaving the decision-maker (who may be ill equipped to do so) to choose between them; traditional processes tend to be rigid and exclusive, shutting out both relevant information and parties; and traditional processes preserve the status quo, leaving the balance of power unchanged. For the past two decades, researchers and practitioners have argued for the need to develop innovative methods to avoid and manage environmental controversies.38 Largely, See E. Swanson, Environmental Conflict and Alternative Dispute Resolution (Edmonton: Environmental Law Center (Alberta) Society, 1995) at 25. See the work of L. Susskind and J. Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes (New York: Basic Books, 1987); L. Susskind and P. Field, Dealing With an Angry Public (New York: The Free Press, 1996); J.A.S. McGlennon and L. Susskind, "The Place of Negotiation in Environmental Assessment" in Responsibility, Accountability and Liability in the Conduct of Environmental Negotiations (Hull, Quebec: Canadian Environmental Assessment Research Council, 1989); G. Bingham, Resolving Environmental Disputes - A Decade of Experience 36 this in response to the impediments of litigation as a dispute resolution process, specifically, the difficulties people face in the court system.39 Managing our natural resources, it would seem, should benefit from the encouragement of cooperation between competing stakeholders. This principle accords with "Alternative Dispute Resolution"40 Models, such as negotiation and environmental mediation. The next part of this chapter discusses dispute resolution techniques, with emphasis on mediation of environmental disputes, and the path dispute resolution has taken in environmental law 4 1 It will draw upon empirical data such as theoretically informed case studies and interviews, as well as conceptual works and observations by authors in the field. However, it is useful to preface a discussion of Alternative Dispute Resolution by outlining the concepts of conflict and disputes. 2 .5 C O N F L I C T S A N D T H E E N V I R O N M E N T One writer has made a distinction between conflicts and disputes: conflicts occur where there is a disagreement over values or scarce resources, whereas a dispute is an (Washington: The Conservation Foundation, 1986); and L.S. Bacow and M. Wheeler, Environmental Dispute Resolution (New York: Plenum Press, 1984). Although, for a discussion of the impact of "rights talk" which has entered public culture, see J. MacFarlane, "The Mediation Alternative" in Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery Publications, 1997) at 1,2. Hereinafter: ADR. The term will be used throughout this paper in its popular sense - referring to dispute resolution techniques other than litigation (for example, mediation, negotiation, arbitration, etc). Although, "ADR" implies a presumption that is misleading - "alternative" implies something about "traditional" decision-making, where there is a third party imposition of a decision. In reality, the use of negotiation to arrive at an outcome pre-dates the advent of the courts. It is not the purpose of this paper to advocate for or against continued or extended use of ADR in the environmental area. Although, in order to clarify ADR theory and practice, it will be necessary to discuss the considerable diversity of opinion and try to distinguish between fact and fiction. 37 encounter involving a specific issue over which the conflict in values is joined. Disputes are seldom if ever static; like the factors that give rise to the dispute and the parties to the dispute, they are continually changing.43 Although disputes vary widely, four typical characteristics of disputes include: causes of conflict, dimensions of the conflict, parties to the conflict, and timing.44 These are discussed below. 2.5.1 Causes of Conflict A frequent criticism of traditional decision-making processes is that they frame or distort environmental conflicts in a way that enables those conflicts to be dealt with more easily by those institutions.45 To determine whether ADR techniques suffer the same flaw, it is necessary to consider the various sources of environmental conflict:46 (i) uncertainty based conflict 47 (ii) stakes based conflict;48 and 42 43 44 45 46 47 G.W. Cormick, "The Myth, the Reality, and the Future of Environmental Mediation" (1982) 24:7 Environment 14. P. Emond, ed., Commercial Dispute Resolution: Alternatives to Litigation (Ontario: Canada Law Book, 1989) at 12. Ibid. For example, in the process of litigation, the courts may consider the dispute in terms of procedural issues, rather than substantive ones - those issues already having been disposed of by the regulatory agencies. J.E. Crowfoot and J.M. Wondolleck, Environmental Disputes - Community Involvement in Conflict Resolution (Washington: Island Press, 1990) at 10-15. Uncertainty of effects and risks associated with the subject of dispute. Lord calls this "cognitive conflict" and observes that this arises from different understandings of the conflict situation, citing the example of engineers who may disagree over the possibility of a dam failure when shown the same hydrological data. This may be a simple reflection of different life experiences, or characteristic of the uncertainty surrounding environmental issues (for example, the lack of timely, accurate information). See D.A. Shrubsole, "The Context of Environmental Mediation Within the Field of Conflict Resolution" in R.S. Dorney and L.E. Smith, eds., Environmental Mediation - Proceedings of a Symposium Sponsored by The Ontario Society for Environmental Management, Working Paper No. 19 (Ontario: School of Urban and Regional Planning, University of Waterloo, 1985) at 12. 38 (iii) value based conflict. These three sources of environmental conflict may or may not occur simultaneously, and also feed into different models50 of environmental conflict, around which dispute resolution processes like mediation operate. (i) Misunderstanding Model This model primarily serves as a problem-solving mechanism and assumes that environmental disputes are largely caused by misunderstandings and miscommunications, rather than by basic conflicts of interests, and therefore, many of these conflicts are unnecessary. The assumption of the basic compatibility of developmental and environmental interests makes possible the whole notion of a non-adversarial, "win-win" approach to environmental controversies. This depoliticized view of environmental conflicts may be appealing and comforting, but it flies in the face of the reality that many disputes typically involve fundamental value and interest conflicts.51 Amy speculates that one of the dangers of this particular model is that it may mislead parties into using mediation out of a false sense of security and therefore waste valuable resources that should be used pursuing other Those affected by the outcome of a decision become party to the dispute. Lord suggests that "interest or goal conflict" occurs when costs or benefits of a project are distributed unevenly among various parts of the community. For example, a water project may have a positive impact on one sector of a community and a detrimental economic impact on another. (Lord, ibid.) Intrinsic value of nature and the environment is in dispute. Lord perceives value conflict as ideological in nature, being derived from different assessments of the desirability of ends to be accomplished by the action contemplated; conflict may be ascribed to differences in value judgments over the relative desirability of competing ends. (Lord, supra note 47.) Value conflicts involve disputes arising out of different religious and cultural values, as our society is made up of individuals and special interest groups each with its own set of priorities and agenda: Emond, supra note 43, at 13-14. See Appendix 1 for Models of Environmental Conflict Table. For example, pollution (economic self-interest of polluters versus environmental interests of the public); development of wilderness areas; endangered species protection; resource exploitation, to name a few. 39 adversarial approaches. Citizen and environmental organizations face difficult choices in deciding whether or not to participate in environmental dispute settlement processes and how to proceed if they decide to do so. Making strategy choices requires that attention be paid to alternative actions that could also be pursued to achieve the changes desired by the group53 (ii) Conflicting Interests Model The "hot tub" perspective above has been greeted with skepticism; rather, fundamental conflicts of interest usually lie at the heart of many environmental disputes. This model is essentially a pluralist theory of environmental politics - one that assumes that interest conflicts in this area are natural and inevitable. It also presumes that often the best solutions to these kinds of conflicts are ones that split the difference between these equally valid interests: compromises in which each side gets some of what it wants (because all views are seen as equally valid). This approach may be seen as misleading because it does not see disputes in moral terms, in other words, where one party is right and the other is wrong. It maintains that in a model where moral arguments become irrelevant, the concept of a wronged party does not fit in. 5 4 Another criticism of this model is that it assumes that compromise is the most appropriate solution to most conflicts. While compromise may be seen as logical and desirable as a moderate political path, some argue that compromise may not be in the public's best interest, and that it is undesirable to compromise where disputes D. Amy, The Politics of Environmental Mediation (New York: Columbia University Press, 1987) at 172: emphasising the need for parties with limited resources to bring an informed basis to their strategic planning in dispute resolution. G. Bingham, supra note 38, at xvi. For example, in a pollution dispute where the public argues that it has been wronged by the polluter. 40 are based on principle or right and wrong positions. Those who oppose development and resource exploitation56 on fundamental principles may see compromise as capitulation and a violation of their basic principles and goals. Although not all environmental issues involve choices between basic sets of values or ways of life, it may be posited that where important principles are at stake, there may be times when some issues are non-negotiable. One commentator argues that the Conflicting Interests Model encourages participants to see all issues as negotiable and amenable to compromise, which may distract participants from using "other, more appropriate political forums to address their problems",57 for example, the courts, administrative agencies, and legislatures. "After all, it is the purpose of these political institutions to establish and enforce certain societal norms and principles".58 (iii) Basic Principles Model This view established that some environmental controversies involve conflicts between basic values and principles of the disputants. For example, involvement in environmental issues may come about through a strong commitment to a certain set of environmental, philosophical, and ethical principles. The protection of such "world view" 5 5 Amy, supra note 52, at 181-182. 5 6 For example, grass-roots anti-nuclear groups in the USA; the Greens in Germany. 57 Amy, supra note 52, at 185. 58 Amy (supra note 52) draws on the view of Owen Fiss. Fiss is thought of as perhaps the most eloquent defender of the mainstream position of modern liberal legal scholars. He argues that law and adjudication express a public morality and an objective process for discovering law's legitimacy: see also, G. Minda, Postmodern Legal Movements (New York: New York University Press, 1995) at 213. To critically engage in this argument is to acknowledge the serious debate involved between modern legal jurisprudence and postmodern legal thought. While at first glance it may appear entirely acceptable that the need to create a societal norm is more suited to the courts or legislature, there are questions as to whether courts are objective and unbiased in establishing societal norms (look at the role of judges - are they really in a position to know what those norms are or should be), or rather, do dominant norms overshadow weaker ones? Furthermore, are legislatures representative, and if so, 41 perspectives or ideologies often translates to getting basic ethical and ecological principles embodied in law; thus, legislatures, and courts become the institutions through which to achieve this goal. Given that the outcome of a conflict may be positive or negative, it has been noted that resource managers face a difficult task in effectively integrating the competing demands of interest groups, developing coordinated programs, and maintaining a "healthy" intensity of conflict.59 2.5.2 Dimensions of the Conflict Disputes may range in complexity from relatively simple disputes between two private parties over a well-defined issue—to—more complex disputes which may be multi-party, have a high level of interdependency among parties and issues, may be polycentric, have unclear linkages, and poor understanding of the issues by the parties. A conflict may representative of whom; do less dominant norms get further marginalized in a majority/minority characterization? Some of the positive outcomes of conflict include: the discovery of creative solutions to problems initially thought to be sources of serious conflict; the achievement of viable compromises in real and persistent conflict of interest issues through improved communication; a better understanding of broader issues by participants; and providing a foundation for future negotiations between participants. Negative outcomes, in cases of too much conflict, may include: producing antagonism and hostility between participants; restricting the flow of information between participants; and providing no foundation for future negotiations. While, negative outcomes in cases of too little conflict include: the need to mobilize resources to create compromise solutions is lacking; maintenance of the status quo is unchallenged; and the exchange of information does not take place. See Shrubsole, supra note 47 at 13, 15. 42 also be distributive or integrative, and the consequences that flow from agreement or lack thereof may be trivial 6 2 or significant63. 2.5.3 Parties to the Conflict Conflicts may involve two or more parties, some or all of which may have an ongoing relationship with one another. An increase in the number of parties amplifies the complexity of the dispute. 2.5.4 Timing (when and why the conflict arises) Courts and the judicial process are generally only invoked after an issue has matured into a dispute; conflict is responded to only after it as arisen. Dispute resolution alternatives, however, may anticipate conflict64 and either seek to avoid disputes or attempt to structure or manage them in ways that minimize conflict.65 60 61 62 63 64 65 In other words, parties have opposing interests framed in terms of "win/lose"; value-claiming-parties desire to have as good a deal as possible. Parties' interests are not necessarily in opposition; "win/win" term is used; the conflict is value-creating and relies on the parties' ability to structure a settlement to better meet their needs. For example, determining the price of a particular commodity. For example, the resolution of a land-planning dispute involving the siting of a new facility or utilization of a non-renewable resource. For example, consultation. For example, through direct negotiations, and consensus seeking outcomes. 43 2.6 TYPES O F DISPUTES Environmental disputes generally involve disagreements between parties, which are about or directly related to the natural environment, and can be roughly divided into two categories: private disputes and public disputes. Typically, in private disputes, parties are identifiable and legally entitled to compromise their dispute. The essential issue often relates to responsibility for an environmental problem or its resolution, not the degree of harm to the environment. A conflict of "values" is usually more apparent, as opposed to a conflict of "interest".66 Government is not directly involved, and there is no legal requirement that general public be consulted as to the resolution of the dispute nor be provided a public hearing. Private disputes are suited to mediation/arbitration because: the parties "own" their dispute (control); the technical nature of environmental disputes and evidence or information may be more easily and better understood by a technically qualified arbitrator/mediator than a judge; flexibility (resolution of private environmental disputes may be achieved through direct negotiation, mediation, arbitration, and if all else fails - litigation). For example, under the tort of nuisance, the law recognizes and affords a legal process (civil litigation) and remedy (damages) to the interests of property. Disputes may arise between vendor and purchaser over cost of cleanup of contaminated land, landlord and tenant, lenders and borrowers, and fuel companies and customers. In contrast, a key characteristic of public disputes is that it affects the public interest. Thus, parties may not be able to resolve it in complete privacy and there may be large numbers of actual or potential parties. Public environmental disputes are generally decided 6 6 See supra note 47. Value conflicts stem from different preferences about the outcome; interest conflicts occur when there are disagreements about the distribution of the costs and benefits. 44 by a decision-maker who is not a party to the dispute and who is exercising a statutory power of decision-making (namely an administrator or regulator). Since the ultimate decision-maker cannot delegate his decision-making power, arbitration is almost never used. Public environmental disputes usually relate to prosecutions,67 policy,68 approvals,69 orders,70 or assessments that are actually or potentially the subject of a public hearing71. 2.7 CONCEPTUAL ANALYSIS OF DISPUTES AND DISPUTE RESOLUTION The typical environmental dispute paradigm often involves the developer (project proponent), a natural resource or ecosystem, and opponents. At the early stages of the dispute, questions may be both broad and political. For example, should an activity with potential environmental impacts be undertaken in the first place; how do we reconcile resource development with conservation; who should bear the costs of the project? When the project proposal moves to the siting stage, the question is still political; questions asked may include whether the project should be sited where it is proposed or whether alternative sites ADR may be integrated here in terms of the private negotiations over the charges that will proceed and the penalty. Governments have the legal authority to enact legislation and develop policy. Various forms of consultation have become an expected part of the legislative and policy making process, such that departure from it might call into question the political legitimacy of resulting law and policy. Various parties, each of whom hopes to influence the ultimate decision-maker and "win the day", advance positions. See Swanson, supra note 37, at 12. Environmental legislation typically authorizes the "approval" of pollution through the issuance of licenses and permits. Disputes are likely to occur between: applicants and government; members of the directly affected public and government; and applicants and members of the public, because the approval process may involve public and private interests and public values. A tension can arise between the private interest of an individual hoping to avoid conviction for failing to comply with the law vs. the public interest in the effective and fair prosecution of offenders. There are also situations between private individuals (for example, non compliance with the terms of a license, which results in loss or damage to another party); private individuals have an expectation of enforcement action by government. 45 have been considered and evaluated in terms of environmental sensitivity. Even when the project proposal reaches the Approval-in-Principle stage, political questions remain, and may involve issues of avoiding, remedying or mitigating environmental problems which may arise, and what techniques will be applied with respect to project construction. Moreover, environmental issues do not necessarily come to a conclusion even after project approval has been given - regard must be given to such activities as accidents and, in some cases, decommissioning. 2.8 FORMS OF ENVIRONMENTAL DECISION-MAKING Environmental decision-making processes commonly include Authoritative Decision-making,72 Regulation,73 and ADR.74 2.8.1 Traditional mechanisms for addressing environmental disputes Negotiation may be described as a problem-solving process in which two or more parties voluntarily discuss their differences and attempt to reach a shared decision on their common concerns. It is a back-and-forth communication between the parties, and requires 71 Such approvals are usually sought through informal channels (for example, direct consultation with the regulating agency or "understandings" reached at the political level). Now, environmental assessment procedures augment and sometimes replace these practices. 72 Where a neutral decision-maker receives input from parties in the way of evidence, submissions and argument; very structured process. 73 Where the decision-maker is charged with carrying out some policy; some consultation and submissions. 74 For example: Negotiation - solutions arrived at voluntarily by the disputants; parties control the process and the final resolution of the issues; Conciliation - passive third party provides a neutral forum in which negotiations may be conducted and transmits positions/concessions from one side to another; and, Mediation - third party may take an active or passive role by establishing a constructive environment for negotiation, collecting information, helping parties clarify their issues, keeping negotiations going, and articulating the rationale for agreement. 46 participants to identify issues about which they differ, to inform each other about their needs and interests, to generate settlement options, and bargain over the terms of the final agreement.75 This process may occur over settlements,76 Regulatory Conditions,77 and 78 enforcement action. Litigation involves legal action taken to either enforce a right and secure a remedy or 79 to determine the guilt or innocence of someone accused of an offense. The courts act in accordance with the law and administer the outcome. Since the 1970s, the a growing number of environmental disputes found their way into the courts as a result of the proliferation of 80 environmental laws which gave environmental and citizen groups the right to sue. However, the court process is not without its criticisms. Claims that access to the courts is limited are founded on the fact that resorting to the courts is expensive, particularly for small local environmental and citizen groups with few resources, and given the costs of prolonged court battles and appeals.81 The view that the courts tend not to address the real issues at stake in many environmental disputes, is held predominantly because the courts are narrowly 75 CR. Darling, ed., Reaching Agreement. Negotiating in the Public Interest (Victoria: Dispute Resolution Office of Attorney General, October 1998) at 22. 7 6 Bargaining between parties through which a mutually acceptable deal is found to resolve a dispute between them. Last minute settlement negotiations can and often avoid resort to litigation: supra note 37, at 15. 7 7 In settling regulatory terms and conditions, the regulator may be motivated for a variety of reasons to accommodate the needs and expectations of the others. 78 Between enforcers and offenders. May sometimes determine the terms of an administrative order or may result in joint recommendations to the court with respect to disposition of the case. 7 9 Also, judicial review is a form of civil litigation where those seeking to challenge the validity of administrative decision making can invoke the supervisory authority of the courts. 80 Note however, that in recent times, the amount of litigation has not escalated as many would believe: see research carried out by M. Galanter, "Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society" (1983) 31 UCLA Law Review A. 81 The concern over cost is just as valid for developers who may be faced with increased construction and capital costs due to inflation while projects are on hold. 47 and strictly constrained by a consideration only of rights, responsibilities, and interests recognized by law and for which the law affords a remedy. The ability of judges to digest and deal with the complex and highly technical information raised by environmental issues, and the "zero sum" nature of the court system is also questioned. Top Down Decision-Making refers to the termination of disputes through unilateral action by authorized decision-makers, such as administrative agencies. Though consistent with principles of representative democracy82, the "top down" approach of dealing with environmental disputes has been questioned in terms of its consistency with principles of participative democracy. Decisions may also be made through the enactment of legislation or development of policy. For example, interpretation and application of the Environmental Assessment and Review Procedures led to replacement legislation: the CEAA. Consultation occurs when a decision-maker, usually government, seeks input and advice from third parties before a decision is made.84 A detailed definition of "consultation" is, however, not provided in either the CEAA or the BCEAA.85 Furthermore: Where elected representatives are entitled to make all decisions themselves, as they have been elected for this purpose, and a system based on the delegation of power over the refinement and implementation of environmental policy to expert bodies. Contrast this with direct or participatory democracy - where disputants participate directly in the decision-making process. Hereinafter EARP. Swanson, supra note 37, at 21. Leading cases on consultation from other jurisdictions, for example New Zealand, have attempted to shed some light. The elements of consultation include: the statement of a proposal not yet finally decided upon; listening to what others have to say and considering responses; sufficient time must be allowed and genuine effort must be made; must be made available to the party obliged to consult, enough information must be given to enable consultees to be adequately informed so as to be able to make intelligent and useful responses; party obliged to consult must keep its mind open and be ready to exchange and even start afresh although it is entitled to have a working plan already in mind; it is an intermediate situation involving meaningful discussion; the party obliged to consult holds meetings, provides relevant information, and waits until those being consulted have had a say before making a decision; and consultation is not merely telling or presenting. See Wellington International Airport v. 48 The public consultation does not have a direct role in the decision, the decision being reserved for elected officials. None of the forms of consultation has any power of authority over the final decision-maker, with respect either to the decision or to follow-up. At most, the decision-maker undertakes to inform the citizens consulted of the decision. In practice, the consultation is oriented not toward the decision itself, over which it has no control, but toward the terms and conditions which should accompany the decision to adopt or authorize the project: the^protection of acquired rights, safeguards and compensation, subsequent monitoring and follow-up. While it is possible that the inclusive and participatory nature of consultation may lead to more support for and compliance with law and policy, "unless decision-makers are genuine in their pursuit of input and willing to account for departures therefrom, those consulted are likely to become (even more) disaffected".87 Lobbying, as another process, is initiated by third parties who wish to influence the decision-maker. Lobbying can be effective for a skilled and well resourced party, but few public interest environmental groups in reality have access to sufficient funds. The courts are not alone as regards inefficiency, as legislative and administrative avenues of participation have largely proven unsatisfactory. In administrative processes such as public hearings, interested stakeholders are typically limited to expressing their concerns and registering their complaints through one-way communications (as opposed to face-to-face dialogue). "There's no guarantee that testimony will have any influence at all on administrators' decisions...Rather project plans are placed on the docket as a fait accompli by agency managers who challenge the competence of laymen to find fault with their documents". Air New Zealand [1991] 1 New Zealand Law Reports 671 (CA) and "Case Law on Consultation" Working Paper 3 (Wellington: Ministry for the Environment, 1995). R. Parenteau, Public Participation in Environmental Decision-Making (Ottawa: Minister of Supply and Services Canada, 1988) at 57. Swanson, supra note 37, at 22. Supra note 52, at 25. 49 Thus, traditional approaches encourage groups to decide an issue rather than resolve their differences. The side that loses the dispute has a strong incentive therefore to continue its efforts to delay or obstruct the implementation of the decisions.89 This is where the appeal of dispute resolution alternatives is argued to exist. 2.8.2 "Alternative Dispute Resolution"90 Alternative Dispute Resolution describes voluntary collaborative processes through which parties to a dispute try to resolve their differences, and includes consensus building, negotiation, and mediation. ADR "realists" see the need and a role for ADR in the management and resolution of conflict, but not at the expense of valued rights and interests or to the exclusion of existing processes.91 The ADR movement challenges traditional modes of dispute resolution and invites disputants to search for new and more effective ways of resolving disputes. ADR breaks down preconceived and largely outmoded notions of how disputes are best resolved. It challenges the dominant role of judicial litigation in the dispute resolution process and legitimizes alternative processes and 92 alternative ways of resolving disputes, particularly in the private sphere. Supra note 52, at 34. This term refers to collaborative processes through which parties to a dispute attempt to resolve their differences; some methods are voluntary and may involve an attempt to settle disputes and reach consensus by engaging in consensus building, joint problem solving or negotiation: supra note 52, at 29. See Cormick, supra note 42, and Amy, supra note 52. Emond, supra note 43, at 24. 50 (i) ADR Mechanisms for addressing Environmental Disputes Alternatives to litigation include mediation, fact-finding93, mini-trials94, and arbitration95, and are based on the concept of disputants having maximum participation in the processes over which and through which the resolution of the dispute will be achieved.96 (ii) ADR Methods Consensus Building is a problem solving approach that emphasizes the common interest of the participants in jointly defining and solving problems. The primary outcome need not be decision-making, and can be to improve communications and relationships between groups that are normally opposed to one another, or to improve the quality and legitimacy of decision-making. It seeks to encourage agreement or foster understanding This is defined as a "non-binding process by which the facts of a dispute are determined or clarified... An investigation, even a form of inquisitorial process, is conducted by an appointed neutral third party person or panel... A determination is made as to what are the facts of the issues and the extent of the reasonableness of the parties' positions in relation to those facts... A written report may be issued which typically is not binding on the disputants at this stage, but it may be if used later in a different process such as arbitration": McLaren and Sanderson, supra note 35, at 2-1. This is a non-binding private process used to settle potential or pending court litigation. The "two sides present arguments to a panel of dispute resolution facilitators that will either resolve the dispute or offer a recommendation for settlement... [Where the dispute] results only in recommendations from the panel of facilitators, resolution of the dispute will depend on ratification by both sides... [It is] ideal for disputants with a desire to maintain future business relations": supra note 35, at 7-1. "A binding process of dispute resolution in which the facts of a dispute are presented to an independent, neutral arbitrator, or panel of arbitrators, chosen by the disputants or appointed by an agency selected by them... The neutral arbitrator then provides either an award with reasons and an order or direction; or in some cases the arbitrator gives a conclusion and, if appropriate, an order as to a remedy": supra note 35, at 5-1. Note: some writers refer to "Environmental Dispute Resolution", a term which does not include arbitration. "Environmental dispute resolution refers collectively to a variety of approaches that allow the parties to meet face to face to reach a mutually acceptable resolution of the issues in a dispute or potentially controversial situation. Although there are differences among the approaches, all are voluntary processes that involve some form of consensus building, joint problem solving, or negotiation. Litigation, administrative procedures, and arbitration are not included in this definition ... because the objective in those processes is not a consensus among the parties": G. Bingham, Resolving Environmental Disputes (Washington DC, The Conservation Foundation, 1986) at xv. Supra note 35, at 1-2. 51 between participants (in contrast with consultation, where parties express their individual positions in an attempt to influence or inform a decision-maker). Negotiation describes a process of bargaining between parties adverse in interest, in order to make a decision or provide recommendations based upon their consensus. It is directed towards decision-making; parties either have the authority to make the decision themselves or are confident that their consensus based recommendations will influence decision-making by another. It may provide an alternative to top-down decision-making, litigation and lobbying. Regulatory Negotiation refers to negotiations intended to result directly or through recommendations, in legislation or policy. As a Dispute Resolution technique, negotiation may be an effective tool to reach agreement, especially where the number of parties (who are easily identifiable) is relatively small and implementation of any agreement reached is either assured or highly likely. Mediation refers to the use of a neutral third party to support consensus building or negotiation. (iii) Data disputes Sometimes the substantive disagreements between environmentalists and developers are primarily factual, given that environmental disputes have a tendency to revolve around complex technical and scientific issues. In mediation, parties are required to disclose and defend their findings in front of each other and the mediator. So, each side is exposed to new information developed by the other side, and becomes more aware of the inadequacies of their own data and methods. One technique used by mediators to encourage resolution of 97 Swanson, supra note 37, at 31. 52 data disputes is to get them to view the negotiations as a joint problem solving effort. Instead of reducing the situation of two different sets of technical data into a political dispute involving conflicting interests, the problem may be cast as a technical one amenable to rational analysis (by viewing the technical questions as a mutual problem). Another technique is agreeing on a neutral expert or procedure, for example, by using a mathematical model to determine for fish stock depletion. (iv) Interest conflicts Some environmental disputes inevitably involve conflicting interests, but sometimes there may be other kinds of interests present including different interests and common interests. Just because two parties have different interests does not mean that those interests are incompatible. A solution may be found that satisfies both sets of different interests. This recognition allows for mediation to settle many disputes.98 The informal dialogue of mediation enables parties to reflect upon and even change their minds about what their basic interests are (thus the re-evaluation process may lead one or both parties to move away from their original conception of their interests, paving the way for an agreement). Negotiated compensation, or mitigating the damages suffered by the "losing" group by having the winning party compensate the losing party for their loss, has been an approach used where there are very real and direct conflicts of interests between developers, environmentalists and government. For example, state governments trying to site hazardous waste treatment facilities may try to negotiate with affected communities. See the Snoqualmie River Mediation,, for example, at section 2.13 of this paper. 53 It is important to note that having opposing interests does not mean that there are not also important interests that the parties share. The argument is that emphasizing those common interests may be a useful way to encourage parties to sit down and negotiate resolutions to environmental controversies. There are also a large number of interests involved in environmental controversies, to complicate things further. "Mediation does not rely on one person's understanding of all the various interests involved. Instead it relies on the participants themselves, who are best qualified to understand and bargain over their own interests".99 Those in favour of mediation argue that mediation's participatory nature increases the legitimacy100 of environmental decisions and therefore increases the likelihood that they will not be challenged in the future. 2.9 HISTORY AND EVOLUTION OF ADR IN ENVIRONMENTAL LAW Until the 1980s, environmental protection was largely a collateral effect of various natural resource statutes such as forest acts, mining acts, oil and gas laws, and fisheries laws.101 Following the regulatory reforms of the 1980s, fertile ground was also found for innovations in the area of dispute resolution, as consensus-based processes came to the 102 10*3 fore. The British Columbia Round Table for Economy and Environment published a 9  Amy, supra note 52, at 36. 1 0 0 Here, what is meant by legitimacy is that decisions are not arbitrary, not handed down by decision-makers with little appreciation for the merits of the case, and parties to a dispute do not engage in a situation where the final decision is viewed with suspicion and resentment. 1 0 1 In fact, environmental legislation dates back to Confederation. For example, see the Fisheries Act, S.C. 1867-68, c.60, section 14(2). 102 Although the practice of techniques such as negotiation has existed long before formal court systems had developed. In contrast, the United States has a more visibly consolidated history of dispute resolution alternatives, beginning with mediation of site-specific disputes, to the sponsorship by groups such as the Ford Foundation, to the establishment of policy guidelines for negotiated rulemaking, to the professionalization of the field of alternative dispute resolution, such as the National Institute for 54 Report in 1991 which contained ten key guiding principles of consensus processes and still form the basis for the structuring current dispute resolution processes. The Commissioner on Resources and Environment Act also entered into force in 1992, and mandated the appointed Commissioner to advise executive council on land use and related resource and environmental issues in an independent manner and to recommend legislation, policies, and practices respecting these issues. At present, environmental laws are pushing forward to actively consider environmental protection, cleanup of contaminated sites, environmental assessment, clean air and water requirements, wildlife and species protection, and land use/park/wilderness protection, against the backdrop of continual informal negotiation and consensus-based processes as well as formal avenues for mediation.. With sustainability104 as the foundation, the need now is for implementation of a comprehensive, laterally and vertically integrated environmental and resource management system.105 Dispute Resolution (Harvard Law School). See Bingham and Haygood, "Environmental Dispute Resolutions: The First Ten Years" (1986) 41:4 The Arbitration Journal 3, 4. Hereinafter Roundtable. "It draws on well understood principles of conservation of scarce resources, protection of the biosphere from, and mitigation of environmental pollution, and the need to consider the requirements of future generations in resource management decision-making. Thus it incorporates the notion of "intergenerational equity" and the conservation of biological diversity and ecological integrity": D. Grinlinton, "Natural Resources Law Reform in New Zealand - Integrating Law, Policy and Sustainability" (1995) 2:1 Australasian Journal of Natural Resources Law and Policy 1, at 10. This means comprehensive integration of legislation, administrative responsibilities and operational management relating to natural resources and the environment. It requires action at various levels of government and the use of various types of management instruments in relation to policymaking and planning, administrative procedures, legislation and regulation, processes of participation and decision-making, and operational implementation including monitoring, auditing and enforcement of actions and responsibilities. See D.A.R. Williams, Environmental and Resource Management Law (Wellington: Butterworths, 1997) at 62. 55 2.10 ORIGINS OF ADR Most of the experience with conflict resolution using consensus approaches in BC lies in the field of labour relations and family law. The application of consensus-based approaches to environmental law is part of an informal development, that is, government or private initiative, rather than law or policy. In general, the labour law tradition may be characterized as follows: the issues of the dispute are usually clear; the parties are well established; and the systems for resolving such disputes are developed and understood. In contrast, in the environmental field, land and resource issues are often difficult to define; appropriate representatives of the conflicting interests may be difficult to identify and there may be a multiplicity of stakeholders; these parties often lack a previous relationship of communication or working together; and natural resource issues are subject to (scientific) uncertainty as to impacts and irreversibility. Thus, experience from the labour relations field must be applied with caution to the natural resources area. 2.11 ADVANTAGES OF INFORMALITY What is wrong with conflict in general and the adjudicative process in particular? One writer states that in general, there is nothing wrong with using adjudication and judicial processes; however, these processes should not be used for all problems:106 Thus, the search for ADR processes is perhaps better described as a search to more precisely locate adjudication and in particular judicial adjudication on the continuum of dispute resolution mechanisms. Instead of regarding it as the principal or perhaps even the only effective process for resolving disputes, the search represents an effort to carve out a more limited role for adjudication, and to remedy some of the more obvious inefficiencies of adjudication, while at the same time identifying how and where other less adversarial techniques might be used and expanded. 56 Conflict may not necessarily be a "bad thing"; it is through conflict that energy may be created, energy which is needed to move the parties to build a process to suit their problem. "It is important to understand the parties' differences and the drivers behind those differences."107 2.11.1 Adjudication The search for dispute resolution options has been somewhat influenced by some perceived deficiencies of adjudication. Procedural constraints may surface: standing, or the right to participate in a judicial proceeding, is limited to those with a relatively narrow and direct (usually proprietary or economic) interest. Would-be participants face a double obstacle, since participating in their own right can be frustrated by standing rules and participating as part of a class of affected persons is hindered by narrow class action rules. Processes such as litigation involve the indirect participation of the parties: communication is channeled through hired professionals whose strategy is characterized by adversarialness and competition. Furthermore, this formalistic setting results for many, in alienation and frustration. Fact finding and decision-making aspects of the process are polarized in nature and decision-making is given over to extremes, for example, right/wrong, win/lose. The parties also have little control over the outcome: the result is decided by an outside third party and a remedy is imposed from a limited range of options. The extent to which judges have the expertise to adequately address environmental disputes involving complex scientific and 1 0 6 Emond, supra note 43, at 4. 107 Interview comments given by mediator Glenn Sigurdson, CSE Group, Vancouver, 14 June 1999: document on file with author. 57 technical data is questioned. The effectiveness of judicial review of administrative action is limited by administrative law principles,108 which emphasize the Court's supervisory jurisdiction.109 Resorting to the courts for dispute resolution also requires the parties to frame the issues specifically and narrowly, leaving little, if any, room to address underlying political, environmental, social or economic values. 2.11.2 Confl ict and Social Dynamics In the mediation process, not only is direct participation of the disputants allowed, but also their participation is relatively unencumbered by formal rules of procedure, such as are found in a court-room setting. The advantage of informality is that it enables disputants to identify and discuss the real sources of their conflict. Contrast how the formal constraints of most administrative and judicial approaches often work to obscure or distort the true nature of environmental conflicts. For example, officials often restrict testimony only to that which addresses the specific law or regulation being considered. Also, often in litigation the real source of a conflict cannot serve as the legal basis for a court challenge; parties must have some legal grounds on which to challenge a project, but often the legal grounds available are quite different from the issues at the heart of the dispute. Thus, environmental disputes are often framed in ways that inhibit their resolution; mediation, not being constrained by the formal rules of traditional approaches, may give room to understanding and resolving what the real issues are. For example, ultra vires, natural justice, and fairness. As opposed to looking at the substantive merits. 58 It is important to understand that any situation involving conflict has a history and context, and that dispute resolution does not occur in a vacuum. Participants in environmental disputes do not always bring a calm and collected attitude; they may often be agitated and emotional. It is a very human and natural problem that can interfere with negotiations. The mediation setting allows the mediator to get a good sense of how non-substantive factors like personal and group dynamics can play an important role in a particular conflict. Another common example of social barriers to environmental conflict resolution is negative stereotyping:110 When groups become enmeshed in prolonged adversarial relationships, they usually develop stereotypical views of each other - reassuring oversimplifications which emphasize the negative aspects of the adversary. Such stereotyping fuels adversarial approaches by exaggerating the difference between the parties and increasing the polarization. Mediation tries to break the cycle of stereotyping and adversarial approaches feeding each other by direct discussion to provide better means of communication and clear up misunderstandings, and by enabling parties to meet and experience each other as real human beings. In mediation, parties are face-to-face with each other and learn more about each other. As the parties do this and understand each other's concerns, this may enhance their respect and trust for one another. Such trust is necessary for meaningful negotiations because mediated agreements are unlikely to be entered into without some form of mutual trust between the parties. 1 1 0 Amy, supra note 52, at 48. Typical stereotyping characterises environmentalists as "radical crazies and hippies; government officials as insensitive bureaucrats; and businessmen as greedy capitalists and environmental rapists". 59 Although mediation cannot always succeed in overcoming the deep social barriers that separate some adversaries, it is intriguing in that it is sometimes able to generate breakthroughs in what seem to be hopelessly deadlocked controversies. It does this by bringing the disputants together in a relatively informal atmosphere. The informal nature of environmental mediation allows for the examination and reframing of environmental disputes and this seems to account for much of mediation's ability to generate mutually satisfactory agreements. 2.12 APPLICATION OF ADR TO ENVIRONMENTAL DISPUTES ADR has been used with varying degrees of success in many areas of environmental policy-making, standard setting, the determination of development and choices, and in the enforcement of environmental standards. 2.12.1 Environmental Dispute Settlement111 Having identified the sources and nature of environmental conflict, how does this relate to decision-making? Three key characteristics that distinguish the processes involved in EDS have been suggested: (i) voluntary participation by the parties involved in the dispute; (ii) direct, face-to-face group interaction among the representatives of these parties; and, (iii) mutual agreement on consensus decisions by the parties on the process to be used and any settlement that may emerge. 1 1 1 Hereinafter EDS. 60 Some key steps to EDS include identifying the affected parties (who must volunteer to participate); developing and agreeing on a process for discussion and decision-making (such as brainstorming, identifying issues, scheduling of meeting, coming up with process guidelines specifying when to use all representatives and when to use sub-groups); establishing norms for communication and related behaviour (such as media handling); and also setting down guidelines for sharing information, gathering additional information, interpreting the meaning of existing data, and educating representatives who may be 1 1 "X unfamiliar with parts of the information. EDS involves a collaborative problem-solving effort of all parties to a dispute. In pursuing a more cooperative process, the hope is to arrive at a decision that makes better use of available information and is more acceptable to the parties, and to do this decision-making in ways that result in deeper commitment to implementation by all those involved. The major difference between alternative and traditional processes is rooted in the structure of the process itself: who is involved, how they are involved, and how issues are framed then acted upon in making or implementing decisions. Based on a number of case studies, the following observations about participation in EDS processes for citizens groups have been made:114 • citizen organizations, as one of the major parties in environmental disputes, need information about environmental negotiations and mediation. They need to understand 112 Bingham, supra note 38, at xv. 1 1 3 Crowfoot and Wondolleck, supra note 46, at 20-22. Other considerations may include specifying the identity of the mediator, mandating some level of mediator discretion and control in the discussions (for example to convene meetings, adjourn proceedings, or meet separately with the parties), getting the parties to put into writing what the disagreement is about, and addressing the issue of finding the process. 1 1 4 Supra note 46, at 255-259. 61 the structure and dynamics of these processes, how they might most effectively be involved in a dispute settlement process and when participation may not be in their best interests; • citizen and environmental organizations face difficult choices in whether or not to participate in environmental dispute settlement processes and how to proceed if they decide to do so. Making strategy choices requires that attention be paid to alternative actions that could also be pursued to achieve the changes desired by the group; • citizen groups can gain power in the form of political education by developing skills in negotiation, communication, group process, and coalition-building; • confidence, credibility, negotiation skills and political savvy gained can translate to greater effectiveness and legitimacy for the group as a whole (the group gains an enhanced image with public officials); citizen groups may find greater access to key decision-makers; • citizen groups must devote more personal and organizational time to the process; • citizen groups may have to challenge well-financed, generously staffed agencies and industries (note the contrast to volunteer citizens who might have to commit outside of work responsibilities); • problem solving and information digestion can be very time consuming; • citizen groups often lack the necessary skills to participate effectively, and may need to consider pre-negotiation training; and, • the EDS process often demands the formation of strong coalitions. Bingham suggests that the presumption that litigation is "bad" is erroneous, and that voluntary, environmental dispute resolution processes are perhaps better viewed as additional 62 tools that might or might not be more effective or more efficient in particular circumstances. Litigation and other traditional decision-making processes remain important options.115 2.12.2 Dispute Resolution Alternatives and the Law The interaction between law and dispute resolution alternatives raises a number of broad legal issues, including rights of participation, improper delegation, fettering of discretion, enforcement of negotiated agreements, and confidentiality and privilege. Also, legislation incorporating dispute resolution alternatives has been enacted (CEAA). (i) Rights of Participation Developments in common and constitutional law have supported a limited right of consultation for those affected by government decision-making. The emergence and development of the common law doctrine of reasonable or legitimate expectation has resulted in an enforceable right to be consulted in advance of decision-making where consultation has been either explicitly promised or established as a customary or routine practice.116 However, in the context of environmental decision-making, it has been less successful.117 The doctrine of legitimate expectation gives rise to procedural rights only; those who will be affected by a decision have the right to be heard or consulted in advance if, in the circumstances, such expectations are reasonable. Meaningful participation in decision-1 1 5 G. Bingham, supra note 38, at xvi. 1 1 6 See Swanson, supra note 37, at 41. 1 1 7 Sierra Club of Western Canada v. British Columbia (A-G) (1991) 83 DLR (4th) 708 (BCSC). An environmental organization sought judicial review of an administrative decision to grant timber-cutting permits on the basis that the permits were granted without prior consultation with the group, as had been promised. Their application was declined on the narrow grounds that the promise alleged did not apply to the issuance of the permit in question. 63 making processes may be a constitutionally protected right pursuant to section 7 of the Charter of Rights and Freedoms.118 The constitutionally protected right of freedom of expression may include the right to participate in consultation processes initiated by government. This would be in keeping with an interpretation of section 7, which guarantees fundamental rights of life, liberty and security of the person, as applicable when Parliament legislates in relation to the environment. (ii) Improper Delegation/Fettering of Discretion There may be compelling reasons to open up law and decision-making processes to the public. However, this may raise issues of improper delegation and fettering of authority. From an administrative law perspective, both the federal Parliament and provincial legislatures have the right to enact legislation in accordance with the division of powers set out in the Constitution Act 1867.119 Each may delegate legislative authority as they see fit, and those entrusted with delegated legislative authority must exercise the power directly and may not delegate it further unless subdelegation is expressly authorized by statute, wartime or emergency powers are involved, or the courts are willing to infer or imply the right of subdelegation in order to save an otherwise valid legislative scheme.120 Improper delegation particularly occurs where the delegate acted solely on the advice of a third party. However, with regard to consultation, a delegate might consult with members of the public and take public input into account, but the exercise of legislative authority remains, and must be seen 118 See Martha Jackson, "Rights and Participation: The Use of the Charter to Supervise the Regulatory Process" (1990) 4 Canadian Journal of Administrative Law & Practice 23. Jackson suggests that the guarantee offered by section 7 involves both access to the decision-maker and to information. 1 1 9 (UK) 30 & 31 Vict., c.3. 120 See Swanson, supra note 37, at 46. 64 to remain in the delegate's control. As with delegated legislative authority, a public official exercising discretionary decision-making must do so directly and independently. Unless expressly permitted to do so, statutory decision-makers cannot commit themselves to implement the results of negotiations or consensus building any more than they could substitute thoughtless application of policy for independent decision-making.121 (iii) Enforcement of Negotiated Agreements Where private interests are involved, the parties to a dispute may enter into agreements that will be governed by existing contract law. Privity of contract limits the ability of third parties to enforce a private contract. When however, the public interest is involved and the government enters into private deals, a tension between privity of contract and the need for openness and accountability in matters affecting the public interest may arise. (iv) Confidentiality and Privilege In general, the courts may not treat matters of confidence between parties as confidential. Those seeking to protect information generated by or acquired through ADR might attempt to do so by: satisfying the common law test qualifying information as "privileged"; convincing the court that there are sufficient policy reasons for recognizing the information as being confidential; establishing that the information was given on a "without S u p r a no te 37, at 47. 65 prejudice" basis; or invoking contractual undertakings where the parties to a process have agreed to restrict their rights to call witnesses or rely on particular evidence.122 The "without prejudice rule", which protects communications made in the course of settlement discussions where litigation is pending or under way, may also be used to support confidential treatment of mediator information. In fact, it is common for mediation services use some form of waiver and consent which must be signed by parties before entering into a process of mediation. Typically the parties undertake not to call the mediator to act as a witness in any court proceedings to testify to facts concerning or related to the subject matter being mediated, nor to compel the production of relevant documents or information that may be in the mediator's possession.123 2.13 THE BEGINNINGS - THE SNOQUALMIE RIVER MEDIATION It has been said that environmental mediation is "a response to the negative attributes of the litigation model".124 The first documented case of environmental mediation occurred in 1974. Governor of Washington State, Daniel Evans, asked mediators Gerald Cormick and Jane McCarthy to help settle a longstanding and bitter dispute over a proposed flood control dam on the Snoqualmie River in Seattle. A serious flood in 1959 prompted the local county to sponsor a US Army Corps of Engineers to conduct a study which resulted in a proposal to build a flood control dam. A coalition of environmental and citizen groups opposed the dam 122 Supra note 37, at 54. For example, Sigurdson notes that some mediators prefer, in their mediation efforts, to include an element of confidentiality by having the parties agree that any document that is generated through the process cannot be used against one of the parties involved in an administrative proceeding. Similarly, mediators and participants are not to be compellable as witnesses as to their statements. Supra note 107. 123 Comments from Glenn Sigurdson, supra note 107. 124 D. Shrubsole, supra note 47, at 21. 66 because they feared it would open the flood plain to urban sprawl, interrupt a free-flowing river, and could not be justified on a cost-benefit basis. The mediation process involved farmers, sportsmen, government agency representatives, developers, environmentalists, and citizens to negotiate an agreement providing for flood and growth control in conjunction with the building of the dam on the Snohomish River. By 1984, mediation in the United States was used in more than 160 environmental disputes, and a number of states enacted legislation to require or permit negotiation among 125 parties. The attraction to consensus-based processes has attracted favour in recent times, and has even extended to consultation among interested parties in rulemaking126 (this procedure may be institutionalized through federal and provincial statutes, or followed voluntarily by rulemakers). Although environmental mediation cannot solve all environmental troubles, it may at least in some cases facilitate agreement through negotiation and compromise, rather than confrontation. 2.13.1 British Columbia Roundtable on Environment and Economy The BC Roundtable on Environment and Economy is an independent advisory body representing industry, labour, environmental interests, aboriginal organizations, academia, and government. A Dispute Resolution Core Group was formed to carry out the mandate of the Roundtable. The mandate was to recommend processes and mechanisms for the resolution of environmental conflicts through methods based on consensus, and to promote In contrast, the predominant mode of settling environmental conflicts in Canada has been judicial or quasi-judicial decision-making (courts, regulatory agencies, government departments and bureaucrats, or even provincial or federal cabinets have been the primary adjudicators). Known as "regulatory negotiation". 67 the application of these methods in the public domain as alternatives to political intervention or litigation. Broad policy recommendations were published by the Round Table in January 1992:'27 1) "Sustainability" principles should be applied in decision-making by all levels of government and by the private sector in BC; 2) Participatory and consensus-based decision-making processes should be included as an integral part of the planning and management of the environment, economy and social systems in BC; 3) The BC Government should encourage the establishment of local roundtables as a means of public involvement in achieving sustainability; 4) The BC Government should review the balance of decision-making responsibilities among provincial, regional and local bodies and seek to enhance local and regional decision-making mandates where appropriate; 5) The BC Government should establish the Sustainable Development Foundation to co-ordinate research and analysis on sustainability issues; and, 6) The BC Government should adopt the principles of full cost accounting and use-pays in the assessment and approval of uses of land, water, air and resources. Also, market mechanisms and economic incentives should be used to the greatest possible extent to support the planning, management and administrative programs required to achieve sustainability. Reaching Agreement: Volume 2 Implementing Consensus Processes in BC, (Victoria: British Columbia Round Table on the Environment and the Economy, 1991) at 24. 68 2.13.2 Legal Provisions On a provincial level, various legislative references to mediation may be found in the environmental protection statutes of Nova Scotia, Ontario, Manitoba, the Yukon, and the Northwest Territories. In British Columbia, a mediation option is briefly contained in the BCEAA, and is also part of proposed legislation,128 which is yet to be introduced. The CEAA incorporates ADR provisions in a statute dealing with environmental assessment, and is currently the only piece of federal environmental legislation specifically providing for the use of ADR. The Act requires all federal authorities to undertake an environmental assessment of projects to which the Act applies. Two options exist for public review of projects which pose significant risks to the environment and about which the public has serious concerns. Mediation can be used in cases where those involved in and affected by a project are willing to attempt to reach a consensus on the identification and control of its environmental effects. Cases that are not amenable to mediation will be subject to a full panel review. Following mandatory study, the Environment Minister will determine whether a mediator or a panel should be appointed. Following receipt of a report from a mediator or a panel the responsible authority will determine the fate of a project. If a mediation effort fails, the Environment Minister has the option of appointing a panel. Mediation is the preferred choice whenever all of the stakeholders are willing to participate and a consensus is considered to be possible. This process will most likely be used in situations where there are a limited number of readily identifiable stakeholders. The environmental issues will also have to be limited in scope and number for a mediation to be 128 The BC Environmental Protection Act, Bill. 69 successful. The Minister of the Environment will appoint the mediator. The mediator will assist and advise participants but will not make decisions for them. Once a consensus has been reached, the mediator will report the results and recommendations to the Minister of the Environment and to the responsible authority for the project. There are a number of advantages to mediation. It is sensitive to local concerns; those involved with and most concerned about a proposal can communicate directly with each other.129 The other option for public review is the panel review. As under the current Guidelines Order, a review panel is an advisory not a decision-making body. The Minister of the Environment will establish a panel, appoint the members and the chair and set its terms of reference. While dependent upon the Agency for logistical and technical support, review panels will continue to conduct their deliberations independently of government. Although panels will have subpoena powers, panel reviews will remain informal processes for investigating the potential environmental effects of project proposals. Panels will hold hearings and review material brought before them, and may refuse to proceed with hearings until they are satisfied with the environmental assessment information that is available to them. Once a panel has reached a conclusion, it will make its recommendations to the Minister of the Environment and the responsible authority. (i) Mediation in the CEAA A mediator appointed pursuant to the Act will be authorized to include all "interested parties" in the mediation process. The Act defines "interested parties" in section 2(1) as any See Federal Environmental Assessment Review Office Fact Sheet #6: Public Review - Mediation and Panel Reviews, September 1990. Document held on file with author. 70 "person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious".130 Mediation may be thought of as an environmental assessment conducted with the assistance of a mediator. Under the Act, mediation may be an alternative to, or conducted in conjunction with, a panel review. Mediation under the Act is a form of assessment in which any member of the public who qualifies as an "interested party" may participate. Mediation of all or part of the issues raised in the environmental assessment of a project can only occur when all interested parties have been identified and have indicated their willingness to participate in the mediation. Failure of the mediation process results in the project being referred to a panel review. Section 25 gives the responsible authority a discretionary power to request that the Minister refer a project to a mediator or a review panel at any time. The purpose of the provision is to permit an immediate referral of a project to mediation or panel review notwithstanding an ongoing screening or comprehensive study. The discretion may be exercised when the responsible authority is of the opinion that the project may cause significant adverse environmental effects, even with mitigation (section 25(1)) or when the responsible authority is of the opinion that public concern warrants a referral (section 25(b)). Section 25 prevents the unnecessary delay and effort that would occur if a referral had to await completion of a screening or comprehensive study. This is to be distinguished from the mandatory power of the Minister to refer a project after taking into account a comprehensive study report and any public comments on 130 See B. Hobby, D. Ricard, M. Bourry, and J. dePencier, Canadian Environmental Assessment Act: An Annotated Guide, (Ontario: Canada Law Book Inc, 1999), at 1-6. 1 3 1 Ibid, at 11-18. 71 it: section 23(b)(ii) and (iii). The Minister, however, also has the discretion to refer a project even before it is screened or subject to a comprehensive study in special cases: section 28.132 Section 28 gives the Minister of the Environment an overriding but discretionary power to refer a project to a mediator or review panel (pursuant to section 29) at any time, whether or not a screening or comprehensive study has commenced. This provision gives the Minister a measure of control over the environmental assessment process and enables the public to seek direct ministerial action on projects which create particular public concern. This discretion may be compared to the discretionary power of a responsible authority to seek as referral at any time by virtue of section 25. It may be contrasted with the mandatory power of the Minister to refer a project after taking into account a comprehensive study report and the comment on it: sections 23(b)(ii) and (iii). The Minister may exercise the discretion under section 28 when he or she is of the opinion that the project may cause significant adverse environmental effects, even with mitigation (section 28(1)) or when of the opinion that public concern warrants a reference (section 28(b)). The Minister must offer to consult with the jurisdiction where the project is to be carried out, and must consult with the responsible authority, or the appropriate federal authority if there is no responsible authority. For this purpose, "jurisdiction" is defined in section 12(5) of the Act to include the government of a province or one of its agencies or bodies, or an aboriginal environmental assessment body or government. The power to refer a project to a mediator or review panel, even where there is no responsible authority, may appear unusual and at odds with the process set out in the rest of the Act. Such a power is consistent with the central and substantial role of the Minister under the Act, particularly 1 3 2 Supra note 130, at 11-79,11-80. 72 when compared with the Environmental Assessment and Review Procedures Guideline Orders. For instance, this power enables the Minister to establish a joint review panel with another jurisdiction for the purpose of assessing the adverse environmental effects of a project for which no responsible authority has yet been identified. This would be useful where a provincial or other environmental assessment of the same project is already well underway.133 Section 29 is among the most unique of the Act. It provides for mediation as an alternative for the resolution of part or all of the issues in an environmental assessment that might otherwise be subject to panel review. When a project is to be referred for mediation or panel review, section 29 requires the Minister to refer the project's environmental assessment to a mediator and/or panel.134 Since recourse to mediation requires identification of the interested parties and their concurrence: section 29(2), mediation will be less of a public process than a panel review where public hearings are open to all regardless of whether they are an interested party. Because of the definition in section 2(1), however, a "mediation" requires consideration of all of the factors listed in section 16(1) and (2), like a comprehensive study or panel review. A mediated resolution of environmental and related socio-economic issues arising from a project among interested parties, the proponent and the responsible authority, is more likely to be accepted and respected by the participants. A mediation must also be terminated by the Minister where either the Minister of the mediator determine that it is not likely to produce a result satisfactory to all the participants in the 1 3 3 S u p r a note 130, at 11-82, II-82.1. 73 mediation. In that case, any issues subject to mediation shall be referred to a review panel: section 29(4). Section 30 governs the appointment of a mediator and the scope of the environmental assessment the mediator is to conduct. The Minister makes the appointment, after consulting with the responsible authority and all parties who are to participate in the mediation: section 30(1). The appointee must be unbiased, free of conflict and have experience as a mediator: section 30(l)(a). The Minister may establish a roster of possible mediators, and may appoint a mediator from that roster: s30(2) and (l)(a)(ii), respectively. Section 58(l)(g) authorizes the Minister to establish criteria for the appointment of mediators. None have been issued to date. Terms of reference of the mediation must be fixed by the Minister, under section 30(l)(b). The Act seeks consistent methodologies for mediations and other forms of environmental assessment. The factors and their scope set out in section 16 for other forms of environmental assessment are to be utilized in mediations. Similarly, the general scoping provisions of section 15 requires the Minister, in consultation with the responsible authority, to determine the scope of the project subject to mediation and whether projects are so closely related that they can be considered a single project for mediation.135 Section 31 authorizes a mediator to allow, at any time, additional interested parties to participate in the mediation. This might include, for example, a downstream landowner whose water quality could be affected by a project some distance upstream and who only The Minister has the power to refer part of the environmental assessment to a review panel and part to a mediator: section 29(1 )(b). The Minister may also refer any issue arising in the course of an environmental assessment by a review panel to a mediator: section 29(3). Supra note 130, at 11-86. 74 becomes aware of the project through the publicity generated by the environmental assessment.136 Section 32(1) requires a mediator to prepare a report at the end of the mediation and submit it to the Minister and the responsible authority. This report has the same status as a comprehensive study or public panel report: it is to be taken into account by the responsible authority in the course of making a project decision under section 37. Like the mediation itself, the report must also cover the factors described in sections 16(1) and (2). Section 36 requires the Minister to make mediators' reports public in any manner the Minister considers appropriate. Section 32 establishes a privilege for statements made by mediators and participants in a mediation, prohibiting their admissibility in subsequent proceedings, whether before a panel, court, tribunal or any other body or person with the power to compel production of evidence. The maker of the statement may waive this privilege. This subsection is necessary to ensure effective mediation through open and frank dialogue among participants.137 Section 63(1) requires the Agency to provide administrative support for mediators and for review panels. 2.13.3 Other applications - the Environmental Bill of Rights and Administrative Tribunal Hearings Although BC does not currently have an "Environmental Bill of Rights", as in other provinces such as Ontario, a mediation option could be incorporated into such legislation, 1 3 6 Supra note 130, at 11-86. Supra note 130, at 11-87. 75 modeled on the Ontario Environmental Bill of Rights Act The provisions for mediation in the Ontario EBR include the appointment of a mediator in sections 34(1)139 and (2)140,and the ability to make regulations respecting mediation under section 34, including costs, confidentiality, and procedures to be followed. Some environmental tribunals have considered pre-hearing mediation in the hope of reducing the number and length of their hearings. For example the Quebec Bureau d'audiences publiques sur l'environement has resolved cases this way since 1993. Such mediation has several special features; participation in such is not a wholly voluntary process (every person has the right to refuse to participate in the public hearing however participants refusing to participate cannot thereby prevent a decision from being made with which they disagree). Parties cannot pick the mediator, choose other participants, or define the scope of the issues (the Tribunal appoints the mediator; procedures are formally established for selecting participants; terms of the mediation are also set by Tribunal). Refusing to participate brings risks: other parties may agree and present united front to the ultimate decision-maker; may be seen as a lack of good faith. Note: mediation of a proceeding before an administrative tribunal is not a method for completely resolving the dispute because the tribunal is mandated to hold a public hearing. Some public means will be required to review any settlement, even if all parties have agreed upon all matters in dispute. So these are very different in character and procedure from private or commercial mediations.141 S.O. 1993, c.28, [hereinafter EBR]. A Minister may appoint a mediator to assist in the resolution of issues related to a proposal for an instrument. The Minister may appoint a mediator, but not without the consent of the person applying for the instrument or person who would be subject to the instrument. For further information on Quebec Bureau d'audiences publiques sur l'environement, see: D. Sax, "Environmental ADR", in: A.J. Stitt, ed., CCH Alternative Dispute Resolution Practice Manual 76 2.14. CASE STUDIES 2.14.1 BC Case Study in Environmental Mediation Even though there was no explicit legislative authority under the Environmental Assessment and Review Procedures Guideline Orders142, at least one environmental assessment mediation took place on an ad hoc basis for a proposal subject to the EARPGO. The first full scale use of mediation within the federal environmental assessment process involved a fourteen month mediation process to resolve environmental and socio-economic issues surrounding a proposed small craft harbour for Sandspit, British Columbia.143 The Federal Environmental Assessment and Review Process, under which the mediation was conducted as part of an initial assessment, has since been replaced by the CEAA in January 1995. The Act provides for mediation as an alternative or adjunct to a public review by an environmental assessment panel.144 (Ontario: CCH Canadian Ltd, 1998) at §22,585. For further information on the Ontario Environmental Assessment Board see §22,595. Hereinafter EARPGO. See J. Mathers, Canadian Environmental Assessment Agency, Sandspit Small Craft Harbour Mediation Process: A Review (Ottawa, Minister of Supply and Services, March 1995). For projects requiring a public review under the Act, the Minister of the Environment will decide whether the project will proceed to a panel review, mediation or a combination of the two options. 77 2.14.2 Sandspit Small Craft Harbour Mediation Process The proposal for construction of a small craft harbour in the vicinity of Sandspit, BC was provided for as part of a Canada-British Columbia South Moresby Agreement, and was primarily intended to serve recreational boaters and create new economic opportunities. Since it is an undertaking of the federal government, the proposal was subject to the Environmental Assessment and Review Process. Under the process, an Initial Environmental Evaluation145 of the Sandspit community's preferred site was conducted and identified potentially significant environmental effects related to over-wintering Brant geese and fish habitat. Given the environmental and socio-economic considerations, it was agreed by the various parties involved in the project development and assessment that a mediation process should be used as a tool to address and resolve related issues. In consultation with participants, the Federal Environmental and Assessment Review Office developed the initial terms of reference for the process. The terms of reference became the starting point for the development of Ground Rules by the participants, which guided the process. A Vancouver-based mediator, Glenn Sigurdson, was appointed and facilitated discussion at the mediation table of a series of questions for consideration in the development of the Ground Rules. Participants in the mediation process included key stakeholders such as Fisheries & Oceans Canada, Environment Canada, BC Environment Lands & Parks, "Islands Representation"146, Planning and Coordination Committee Co-Chairs; and other stakeholders Hereinafter IEE. Representing some interests on Haida Gwaii/Queen Charlotte Islands. 78 such as Western Economic Diversification Canada, BC Economic Development Small Business & Trade, and Tourism Canada. The objective of the mediation process was:148 To define a commonly acceptable way to provide the community of Sandspit, British Columbia with a small craft harbour pursuant to the provisions of Part II of the Canada-British Columbia South Moresby Agreement and consistent with the principles of sustainable development and the Federal Environmental Assessment and Review Process. The Terms of Reference and Ground Rules also provided for the opportunity unlimited options that may be considered during the mediation. The IEE identified environmental concerns regarding the primary site, so the team widened the scope of the review to include seven additional alternatives. Following an examination of environmental, engineering and socio-economic information, including technical advice from external experts engaged by the team, the team agreed to focus its efforts on two sites, the Wharf and Haans Creek site. Additional engineering and environmental studies were also conducted on these two sites. Following careful consideration of all factors the team agreed to focus its efforts on the Haans Creek site. The team provided for public consultation and opportunity to comment through public meetings, open houses and workshops. The mediation process involved 15 major meetings of the full mediation team, meetings of working groups, and discussions between and among the participants and the mediator. Approximately 14 months later, a consensus was achieved by all participants and the signed final report was submitted to ministers. Although allowance was made for additional parties to participate where approved by the Principal Participants. Defined in Ground Rules, see Appendix B, supra note 143. 79 As part of the evaluation of the Sandspit process, participants were interviewed using questions specifically developed for this exercise. The results of the interviews highlighted some common themes;149 the advantages included: the parties have greater control over the process and the outcome, as compared to panel reviews or other consultative processes, since in mediation those directly affected by the issue define the problem and devise the solution; since the parties work together to develop a solution, time is spent building trust among the parties and tends to be less adversarial; • positions are not merely presented, but developed over time, and working together with community and government representatives allows the public more direct access to decision makers; • mediation allows for joint fact finding; and, • relationships developed during the mediation process will assist during the implementation phase of the project. The disadvantages were: the process may be open to failure if a key party walks away from the table; it is difficulty to identify all interests at the start of the process; and an individual representing an agency or interest will need to develop mechanisms for getting approval and input from their constituents for positions taken. C E A A document, supra note 143, at 5. 80 2.15 APPLICATION OF DISPUTE RESOLUTION ALTERNATIVES IN BRITISH COLUMBIA 1 5 0 2.15.1 Interparty Disputes The use of negotiation to mitigate conflict within the environmental community appeared in the Galiano Island Logging Mediated Negotiation. The issue involved objections by the citizens of Galiano Island to logging and development plans by MacMillan Bloedel. The issue stemmed from a project-specific context (MacMillan Bloedel's plans) but extended to a broader planning and multiple-use context. Negotiations occurred at the initiative of private (non-government) parties; government agencies were involved peripherally. Participants included representatives of the two main parties initially, but then extended to an established committee created by the parties. A mutually agreed facilitator was appointed by the parties also. Agreement was reached regarding the logging, and involved the submission of annual cut plans to a working group of the Forest and Land Use Council. However, the issue of further development of the property was not resolved, and was felt to lead to the undermining of the process through MacMillan Bloedel's subsequent announcement of its decision to sell its Galiano holdings. 2.15.2 Permits and Licenses Water Licensing in the Puntzi Watershed became the subject of dispute when conflicts in water use, and water shortages and potential threat of increase water withdrawal on fish populations was experienced. The decision of the Deputy Comptroller of Water See Appendix 1, 2 and 3 in Reaching Agreement, supra note 34. 81 Rights in Victoria to issue a license to ranchers was appealed to the Environmental Appeal Board by the riparian owners holding the unused irrigation license, on the basis that the flood irrigation would still detrimentally impact the fishery in Puntzi Lake. Discussions occurred between government and non-government parties: informal and formal meetings were convened by the Appeals Unit of the Water Management Branch (Ministry of Environment); direct discussions occurred between staff from the Appeals Unit and the parties concerned (ranchers and riparian owners); and Appeals Unit staff also acted to some extent as fact-finder and facilitator in the matter. 2.15.3 In Principle Approvals Disputes with respect to in-principle approvals may arise under environmental impact assessment procedures, and opportunities for public input mainly in the form of public hearings may be provided. One example of this concerned the Golden Bear Access Road, located roughly 153 km northwest of Telegraph Creek, and involved the construction of a mine and access road into a remote area of exceptional wilderness value that was subject to a 1 land claim . The requirement to complete an initial impact assessment of alternative transportation options provided the framework for bringing the parties together. Negotiations occurred within the context of that process, and were multi-party, involving government, development interests, and native councils. The Ministry of Native Affairs acted as mediator in negotiations between Tahltan Tribal Council and the project proponents. Although the initial route for the road development was objected to by the Tahltans, they did not rule out 1 5 1 The licensing and appeal process were set out under the BC Water Act, R.S.B.C. 1979, c.429. 152 The proposed route went through traditional Tahltan lands. 82 the proposal entirely. Alternative options were considered and a modified route was accepted by the parties; the involvement of the Tahltans in the review process was instrumental to the outcome, and subsequently, were awarded BC Mines Minister's Environmental Awards for their contributions. 2.15.4 Environmental Law and Policy The Quadra Island Shoreline Land Use Bylaw owes largely to the federal government experimenting with a modified version of "reg-neg", the development of regulation through consensus decision-making (by using a multi-stakeholder group to help develop regulations in the form of a bylaw). The residents of Quadra Island were concerned about the future of the foreshore and shoreline areas of the Island and surrounding areas due to a perceived rapid proliferation of salmon farms around the Island and pressures from marine log handling, marine-based tourism and recreation, commercial fishing, and shellfish aquaculture. The process was initiated by the Regional Director for Quadra Island in response to the resident's concerns. Negotiations occurred within the Ratepayers Association and the committees that were formed by it, as well as between the Association, the Regional Director, and other stakeholders. They involved representatives of community, development interests and government agencies. The Quadra Island Zoning Bylaw was later passed and.set out specific objective and policies regarding shoreline protection, public access, upland owners interests, native peoples' interests, economic development (including aquaculture of all types, marine log handling, tourism and commercial fishing) and public participation. 83 2.15.5 Compliance and Enforcement The use of negotiated settlements to address noncompliance with environmental legislation was demonstrated in the Waste Management Branch's Northern Region, where large industrial permit holders were in non-compliance with waste management permits.153 A number of factors contributed to this situation: industry and government lacked detailed knowledge of the nature of emission, their impacts, and the appropriate technology to control them; there were few established standards and little experience in BC; the provincial regulatory system was still experiencing teething problems; and, there was uncertainty as the willingness of senior and political levels of government to support strict enforcement. Negotiations occurred directly between regulatory staff and company managers and executives, and focused for instance, in the Westcoast Energy permit, on a staged compliance schedule which led to considerable revamping of equipment at the plant to achieve sulphur recovery that met and eventually exceeded required levels. Two strategies instrumental to the success of negotiations leading to compliance included: a common perspective on the meaning of compliance, the significance of the non-compliance situation, and the consequences of its continuation; and, agreement on the facts - the nature and extent of non-compliance154. The passage of the Pollution Control Act in 1967 required industrial operations to obtain permits for any emissions to air, land or water. Most industries had obtained permits, but some were operating out of compliance with the terms and conditions of the permits. This involved the compilation of annual summaries of the compliance record of each mill, and annual meetings with executives, plant management and regional and headquarters staff of the Waste Management Branch. 84 2.16 FEATURES OF A SUCCESSFUL CONSENSUS PROCESS The Roundtable suggests the following parameters as key to the success of a consensus process:155 an unresolved conflict or potential for conflict; key stakeholders must have an incentive to seek a decision by consensus; stakeholders must support the consensus process; must be political will to see the process through; and, the presence of a credible intermediary. Some characteristics of successful processes include the following: consensus based; identification of parties; process designed by the participants; principals (representatives' with authority) to be involved; equal opportunities of participants to participate; equal access to information; flexibility of forum for developing the process; allowance for timely implementation of process; incentives for use; role of public agencies and decision-makers; role of process managers (assistant negotiators); and, education of public and public understanding. The negotiation process may also be aided by a scoping process in advance of public meetings, informal meetings and citizen discussions, formal hearings and public meetings, final meeting and forum for public negotiations, and reporting, feedback and reflection. These activities may allow for the interaction with citizens at the earliest possible stages of project planning; the participatory process will be more visible and easily accessible to all citizens; a number of avenues and modes for citizens to engage in dialogue and negotiations will be provided; participants will be allowed to collaborate in fact finding and establishing the scope of the dispute resolution process; attention may be focused on the regulatory process by educating citizens as to what is to happen in future, when citizens can affect decisions, when regulatory actions will occur; and ground rules for exchanging 1 5 5 Supra note 34, at 15. 85 information openly, sharing data, and guiding the development of the dispute resolution process may be set. 1 5 6 2.17 WHEN TO USE MEDIATION A dispute is more suitable for mediation than litigation when the parties have a desire for control and are willing to share responsibility for resolving the dispute, relationships between the parties are worth saving or enhancing, no single party centrally decides "the right answer", highly technical disputes are involved, everyone with an interest comes to the table, and all parties want the issue resolved. Environmental disputes may be more difficult or unsuitable to mediate when a large number of parties exists, where government is considered the only legitimate decision-maker; where parties deny each others' legitimacy, and where a party's objective is to prevent agreement or obtain publicity. 2.18 ROLE OF ADR TODAY 2.18.1 Post Roundtable Progress in BC Since CEAA was proclaimed in 1995, the provision for a formal mediation process as established by the Minister of the Environment has never been used. Even given the advances made by the BC Roundtable in 1992, there has been a notable absence in the formal 157 use of environmental mediation. In British Columbia, Government agencies have a J.R. Richardson, "Negotiating Community Consensus in Preparing Environmental Impact Statements", in Blackburn and Bruce, supra note 33, at 139-150. See P. Mercer, "Environmental Mediation in Canada" in: E.L. Hughes, A.R. Lucas, and W.A. Tilleman, eds., Environmental Law and Policy (Toronto: Emond Montgomery Publications, 1993), at 490. 86 mandate to consult with the public on major planning and development issues158 and to try to resolve conflicts on a one-to-one basis at a local level, for example, through consultation and direct negotiation. These other mechanisms adequately provide for the resolution of environmental issues in most cases. In fact, much of current practice in the field of ADR is implicit and "behind the scenes".159 Thus, the need to resort to the formal process of mediation under the Act 1 6 0 is largely diminished. The use of consensus-based processes and dispute resolution alternatives allows for greater participation and involvement of the parties to an environmental dispute or issue. This is not to say that approaches such as mediation create a "level playing field". Power imbalances are brought to the table by the participants, and may come in different forms, including financial resources, legal authority, legal expertise, legal rights, knowledge and skills, organization and membership, political influence, and negotiating skills. 1 6 1 One important step in empowering parties is to ensure they have assessed where they have been and what their options are, including those options away from the table. However, some There are operating procedures, though not really guidelines per se, which the department follows as a matter of course. See for example, the establishment of Land Resource Management Plans in consultation with stakeholders; the inclusion of industry, government and environmentalists in the convening of a climate change roundtable for Alberta; and other negotiated plans and strategies for the corporate sector. The formal nature of the structure under CEAA (mediation process is initiated by the Minister) may frighten parties and impede its use, and lead to a feeling that control over the process is lost. "Through ADR practice we have come to better understand that how we go about resolving disputes is critical to whether or not we get them resolved at all. We have come to know that empowering parties to build a process for the problem is the engine of dispute resolution. The question is, can you persuade people to create a safe place to have a conversation where power is temporarily parked - a place where parties are at least not put in a worse position. Meaningful negotiations will only take place when the parties perceive that their own interests may be better fulfilled through a process of negotiation than elsewhere. Making it safe for the parties to explore that possibility without putting those very interests at risk is the challenge". Comments from G. Sigurdson, supra note 107. 87 parties will still be more powerful than others. Thus, the concern that the identification of stakeholders may raise an inequity for those who do not "belong" to an organized group with enough resources and clout to be considered for involvement in the whole process, may not be without foundation. However, this predicament is intended to be overcome by ensuring the relevant process is flexible enough to allow for opportunities to run public meetings and open houses, and for parties to join at a later stage even after the process has been initiated.163 Conformity with the ten principles of the BC Roundtable appears to provide a solid basis for achieving a stable and safe forum for problem solving and dispute resolution. Information gaps may take time; new designs or alternate sites may need to be explored and assessed; and costs for travel, expert evidence, engineering studies, and mediator fees may be incurred. These factors must be considered as part of the overall package when parties are faced with an environmental dispute or issue and are weighing up all of their options. Following the Roundtable Guidelines, the typically little tradition or positive reinforcement from senior levels of government or public to use participative, third party techniques has shifted to reflect not just ecological sustainability, but sustainability of decision-making and outcomes. In fact, the CEA Agency is moving forward with a new initiative to educate its staff about consensus-based techniques: the Department of Justice is promoting mediation through an agency training workshop designed to promote the use of See also: Amy, supra note 52, at 129-162. Interested or affected parties should also feel they can talk freely to those involved in the mediation. Comments from interview with John Mathers, Canadian Environmental Assessment Agency, Vancouver, May 1999, document on file with author. Mathers points out that Project Committees do not include environmental groups - only government and First Nations. However, there may be opportunities for funding of representatives to participate, owing to an amendment to the Act (as in the Sandspit mediation, where funding was created for "SMEG", Sandspit Mediation Environmental Group). 88 mediation164 more as a tool, and to increase awareness and expertise of ADR in federal government. Although the formal use of mediation of environmental issues has been conservative, it remains one of many important options. Purpose driven, it allows participants to have more control over the problem solving process, and flexibility. 1 6 5 Taking this one step further, a sustainable democratic society requires much more than good public policy: 1 6 6 It requires neighborhoods and communities where people care about, as well as care for, one another. And it requires processes of governance which both demand and reward such qualities as honesty and integrity, respect and tolerance, fairness and compassion, and individual and corporate responsibility. A transformative practice which would be consistent with the visions of humanity, of society and of governance is outlined by Dukes, through: [I]nspiring, nurturing, and sustaining a vital community life: and engaged community; invigorating the institutions and practices of governance: a responsive governance; and enhancing Mediation in all fields, not just for environmental issues. "Alternative Dispute Resolution in Environmental Assessment Workshop for REAC Members" (1999) unpublished, document held by author. Compare this with, for example, panel hearings, which likewise have utility in certain circumstances: hard core environmental bottom lines, may be more suitable to a panel hearing, as they inherently conflict with negotiation-based processes like mediation. E.F. Dukes, Resolving public conflict - Transforming community and governance (Manchester, UK: Manchester University Press, 1996) at viii. "In the broad context of sustainability challenges and problem-solving approaches, the challenge is the fundamental reshaping of our institutional order. Society has a new kind of informed citizenry; correspondingly, we need new forms of governance. [Through the application of various dispute resolution approaches] we are seeing a new additional way that governance is transformed into realities. We still need authority-driven outcomes, but we also need new and more vigorous ways to make dispute resolution more meaningful...", comments from G. Sigurdson, supra note 107. Environmental conflicts are shifting from well defined existing problems to the examination of future impacts - by their nature stretching the capability of government to make decisions which account for the concerns of all stakeholders. The pluralism of our governmental system and the persistence of conflicts within it has brought about a proliferation of governmental agency objectives. Mediators find themselves helping communities make decisions that government cannot or will not make. This partnership by default is cumulative and alternative governance as an integrative concept, rather than alternative dispute resolution and public involvement combinations, most accurately describes what is happening in the governing of our resources: V.L. Scharf, "Environmental Dispute Resolution", (1997-1998) 4:5 National Institute for Dispute Resolution News 1, at 1, 14. Ibid, at 172-174. 89 society's ability to solve problems and resolve conflicts: a capacity for problem solving and conflict resolution... A transformative practice seeks to nurture a strong democracy by helping constitute and support communities of dialogic relations at local, state, regional, and national levels. It seeks to establish and sustain a standard of public discourse that empowers people to articulate their needs freely and to explore their differences fairly. It moderates powerlessness and alienation by insisting on inclusion and participation. It opposes the polarization and demonizing which too often accompany conflict by offering recognition of shared humanity and purpose... While not ignoring the need for improved capabilities of public management, the transformative practice conceives of these desired capabilities as responsive to, rather than directive of, the public. A transformative practice acknowledges the importance of well-functioning administrative, legislative, and legal institutions. It recognizes their expanding role in a society whose problems are rapidly increasing in complexity and in scope. It views these institutions as potential channels of participation by an engaged citizenry. It wishes to enhance their capabilities by sensitizing them to public needs and by facilitating appropriate responses to public demands. And it strives to strengthen these public institutions by encouraging active, lasting and meaningful public participation in decisions made on that public's behalf. 2.18.2 The Current Framework Under BC Legislation168 The BCEAA places strong emphasis on consultation, notification, and hearings. It authorizes mediation in sections 66(1), (2)(a)-(c), and section 84, and is discussed in further detail in Chapter III of this paper. 2.18.3 Criticism The growth of the use of dispute resolution alternatives has provided the basis for its evaluation by both practitioners and theoreticians. If environmental mediation is to be used properly, participants must be informed -they must have an accurate idea of how it works, what can be expected out of it, and what their options are.169 When potential users see mediation for what it really is versus what they hope it will be (say, a cheaper solution, an escape from the unpleasantness of adversarial R.S.B.C. 1996, c l 19. See Chapter Three of this paper. Comments from interview with Glenn Sigurdson, supra note 107. 90 politics), they will be able to make strategic and intelligent decisions about its appropriate use. Although the informality of mediation can sometimes lessen the feeling of an adversarial dispute, it is not necessarily true to say that mediation is non-adversarial. Environmental mediation can be an intensely adversarial and combative process, where each side tries to get the most for itself and only compromises when it is forced to. The emphasis on the continuing importance of power politics in mediation efforts is often referred to as the "hard-ball" approach.170 Are litigation and mediation strict alternatives? In many cases the opposite is true; they are complementary approaches. Risks and costs of going to court can be an incentive to negotiate. Litigation plays a useful role in encouraging the ripening process of conflicts for mediation. The informal processes may offer greater flexibility, but may also invite abuse or manipulation. Claims of fairness in mediation should be tempered by the recognition that the formality of litigation and its procedures were designed to ensure due process and protect the interests of the participants. Taking the informality of the mediation process too far, and making the atmosphere too congenial (the "hot-tub approach") is a danger stressed by Cormick, who argues that participants often forget that the give and take of joint sessions, which can build understanding, trust, and even affection for those across the table, is not shared by constituents who may see accommodations as capitulation rather than as carefully developed positions. So, he sees the constituents as being a safeguard against selling out. Amy believes that inept or inexperienced parties in negotiations are more liable to be seduced See Bellman and Cormick, who argue that where there are political stalemates, successful mediation efforts can take place in an atmosphere of mutual hostility, so long as each party has a strong incentive to negotiate and compromise: in Amy, supra note 52, at 86-87. 91 and exploited by the process - and this undermines the political fairness of this approach. But he does not advocate that professionalization (employing professional negotiators) is the solution, since they may be too expensive, not devoted to the environmental cause, and just as susceptible to co-optation. Amy rather suggests that the only real safeguard may be "that the participants become more aware of what seduction is and the various ways it can take place. Potential participants need to realize that the innovative, informal procedures of environmental mediation may do them as much harm as good".171 In fact, the whole claim about mediation as being accessible is questioned in terms of power imbalances and voluntariness. Environmental policy is an area where technical data, especially concerning the exact environmental effects of certain pollutants and activities, plays a particularly large part. This however, puts a premium on expertise and research, and can be a powerful advantage for some groups. The counter-argument to this is that mediation is an information-sharing and collaborative decision-making process, in effect leveling the information playing field. What this does not account for however, is that the ability of some groups to generate large amounts of research and analysis on a given environmental topic may have also provide a psychological advantage in negotiations, as such groups can authoritatively and credibly claim to be in accord with current scientific thinking, and thus are more convincing in negotiations.172 To this extent, it is questionable whether mediation is fairer than traditional political approaches such as litigation. Thus, while we criticize courts and legislatures for substantial power imbalances in policymaking, we must not shut our eyes to the possibility that such imbalances are possible in environmental mediation as well. "It is important that potential participants in 171 Amy, supra note 52, at 120. 92 environmental mediation keep in mind that mediation can be no more fair than the larger political context in which it takes place...the only short-term safeguard against the problems of power in environmental mediation is a growing public awareness of their existence".173 2.19 C O N C L U S I O N To say litigation, as a dispute resolution technique, is no longer a viable option misses the point; it simply may not be satisfactory for resolving all disputes. It is a matter of finding a way to provide more effective dispute resolution, by looking at all the choices and choosing the most appropriate one to suit the particular circumstance, with a full understanding of how each process works. Whether the parties are likely to negotiate depends largely on the presence or absence of certain political conditions, such as common interests and shared risks. For example, successful mediation is more likely to take place where there is a basic consensus over environmental values and goals, and when the dispute centres around different approaches to achieving them. The quality of negotiation efforts as well as their quantity must be assessed. Whether the expansion of mediation is a good thing depends largely on the fairness of the negotiation efforts and the legitimacy of the resulting agreements. It would hardly be desirable to see the expansion of mediation solely in response to the waning power and limited options of environmentalists. Citizen organizations, as one of the major parties in environmental disputes, need information about environmental negotiations and mediation. They need to understand the Contrast environmental groups who often operate on shoestring budgets and limited staff. Amy, supra note 52, at 161-162. 93 structure and dynamics of these processes, how they might most effectively be involved in a dispute settlement process, and when participation may not be in their best interests. Mediation is a complex and contradictory political phenomenon. The empirical question is: will the use of mediation and other consensus-based approaches expand? The normative question is: should it expand? In Canada, the quest for sustainability has piqued the appetite for dispute resolution in the environmental community. Admittedly, compared to our neighbours in the United States, our efforts are not as visibly consolidated. Nevertheless, in practice, it appears to be pervasive and continuing, as evidenced by the demand for managers to handle complex public disputes and build dispute resolution processes within organizations. Premier Klein has given Alberta's commitment to convene a climate change roundtable with industry, government and environmentalists, for a joint plan aimed at reducing Alberta's greenhouse gas emissions. Closer to home, in British Columbia, the impacts of the Kyoto Protocol are being managed through consultation and stakeholder participation through Climate Change Forums and Strategies. Also, Land Resource Management Plans, influenced by the Commission On Resources Environment work, have been drawn up for areas across our province. Roundtable consensus building activities continue to play a significant role in the way people approach certain environmental issues. Although we have the mediation option institutionalized under the Canadian Environmental Assessment Act, dispute resolution alternatives, in practice, will likely continue to benefit, and flourish from the flexibility of a more implicit interaction. It is this momentum that is needed to be nurtured if the goal of sustainability is to be achieved. 94 CHAPTER III STATUTORY SCHEME FOR PUBLIC PARTICIPATION 3.1 INTRODUCTION The "environment'' is not a matter explicitly assigned by the Canadian Constitution to any single order of government. The division of powers envisaged by the Constitution Act 1867,' represents a sharing of responsibility over environmental matters, between the Federal government and the Provincial government. For example, the Federal government was given powers over such matters as taxation, trade and commerce, international and interprovincial transportation, communications powers, and the criminal law. Other heads of Federal power which may affect environmental protection and sustainable development included public debt and property, census and statistics, navigation and shipping, sea coast and inland fisheries, Indians and lands reserved for the Indians, interprovincial systems of transportation, and agriculture. Parliament furthermore was assigned all legislative powers not specifically given to the Provinces.2 In contrast, the Provincial legislatures were vested with jurisdiction over matters typically of a more local nature, such as property and civil rights, the courts and police, public lands, and local works and undertakings. Other Provincial powers relating to the environment include the more limited taxation/spending power, the management and sale of the public lands belonging to the Province and of the timber and wood thereon, municipal institutions, the incorporation of provincial companies, provincial offences, matters of a 1 ( U K ) 30 & 31 Vict . , c.3: [hereinafter C o A ] . 95 merely local or private nature, non-renewable natural resources, forestry resources and electrical energy, education, agriculture, and property in lands and mines.3 In the years following World War II, the furtherance of programs to implement social policy objectives and some economic development projects became the responsibility of the Federal government.4 At the same time, an increase in shared jurisdiction developed, with overlap in a number of areas, including international trade, taxation, consumer protection, and notably, the environment. Indeed:5 It must be recognized that the environment is not an independent matter of legislation under the Constitution Act 1867. It is a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty. Under its constitutional legislative authority, the Federal government has enacted environmental laws, including the Canadian Environmental Protection Act6, and the Canadian Environmental Assessment Act1. In British Columbia, the Provincial Government has used its powers to introduce several environmental statutes, such as: the Forest Act*, Mines Act9, Waste Management Act10, Water Act11; Environment Management Act12, and the 13 Environmental Assessment Act . 6 7 8 9 10 Sections 91(1) - (29), 95, 92(10)(a), (b) CoA. Sections 92(1) - (16), 92A(1) - (6), 93, 95, 109 CoA. For further detail, see K. Norrie et al., Federalism and the Economic Union (Toronto: University of Toronto Press, 1986) at 49. Per LaForest J. in Friends of the Oldman River Society v. Canada (Ministry of Transportation) [1992] 1 SCR 3, at 64. S.C. 1999, c.33: regulates toxic substances: [hereinafter CEPA]. S.C. 1992, c.37: a federal environmental assessment process for economic development in the context of sustainable development and integrated resource management. R.S.B.C. 1979, c.140: regulates harvesting and management of timber on Crown land. S.B.C. 1980, c.28: licensing of mines in British Columbia. S.B.C. 1982, c.41: regulates air, water and land pollution. 96 3.2 THE APPROACH TO PROJECT REVIEW In British Columbia, the jurisdictional overlaps in the environmental area has made it necessary for both levels of government to be involved in the regulation of British Columbia's major resource industries as well as in every industrial development involving water use or pollution. To simplify the assessment of environmental and other impacts of projects, a "one window" approach has been developed and established in British Columbia, where one agency takes responsibility for coordinating a review of a development and input from a number of agencies is sought through a "referral process". Federal and provincial Ministries have developed a system which includes the federal agencies in this referral process. In general, the Federal Departments provide their comments to the provincial agency which acts as lead agency, although there are often direct meetings between the proponents and Federal agencies. For major projects, the result of these inter-agency reviews is an approval-in-principle from the provincial and federal governments. The project proponent is then sent to specific agencies to obtain necessary permits. If a project is not a major development but will result in environmental impacts, the Ministry of Environment will normally serve as lead agency and referrals will be made to appropriate Ministries including the Federal government. The purpose of the review processes is to provide certainty to project proponents by clarifying the 1 1 R.S.B.C. 1979. c.425: regulates use and diversion of water in British Columbia. 12 R.S.B.C. 1981, c.14: provincial environmental emergencies, establishes the Environmental Appeal Board for appeals against the issuance of water, pesticide and waste management permits. 13 R.S. 1996, c.119: a provincial environmental assessment process for projects and activities within the context of sustainability and integrated resource management. 97 steps that had to be taken in the review process and by allowing one agency to co-ordinate the response from all government agencies. The categories in which projects may be classified reflect the various types of projects necessitating differing assessment demands. For instance, the category of "excluded projects" denotes that projects excluded from further review include those which are known not to pose any risk or harm to the environment or for which the environmental effects are negligible: for example, routine operations, minor construction and simple renovations. "Class assessments" will be used for projects which are routine and repetitive in nature and are known not to cause significant or unmitigable effects: for example, dredging, highway maintenance, and rebuilding of facilities on the same site. All class assessments will be tailored to account for local circumstances, and post-project monitoring will be important for guidance for future projects in the same class. "Listed major projects" entails that where the environmental impacts of projects are known to be serious, a mandatory study will be required and such projects will be published on official lists. For example, this may include large oil and gas developments, uranium mines, major hydro-electric developments, and large industrial plants. After the responsible agency has compiled and submitted a mandatory study report, the Ministry of Environment will determine whether public review is necessary. "All other projects" covers the category where projects not falling into one of the above categories will be screened to determine the existence and extent of possible environmental effects. Projects found to have potentially significant effects or where major public concerns exist will be subject to public review. Full public reviews require public notification, consultation, and the publication of a final environmental assessment report to the responsible authority and the Ministry of Environment. 98 This chapter examines the scope of public participation in the context of the federal CEAA, and the provincial BCEAA, as they provide the statutory foundations for public participation. Both environmental assessment schemes recognize the imperatives of sustainability and integrated resource management, as discussed previously in Chapter I. 3.3 OPPORTUNITIES F O R PUBLIC P A R T I C I P A T I O N 1 4 3.3.1 Canadian Environmental Assessment Actxs The purposes of the CEAA are: (a) to ensure that the environmental effects of projects receive careful consideration before responsible authorities take actions in connection with them; (b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy; (c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; (d) to ensure that there be an opportunity for public participation in the environmental assessment process. Purpose (d) reflects the federal government's commitment to promoting public participation in its environmental assessment process. Active public participation is encouraged by providing numerous opportunities for public feedback and input throughout the assessment process, by making all information relevant to the project easily accessible Given the comparatively limited participation provisions in the CEPA, the focus in this paper will be on the provisions of the CEAA and BCEAA. Most of the consultation provisions in CEPA are discretionary; the Minister may consult with interested or affected parties in carrying out its responsibilities: sections 8(3), 9(2), 12(3). Also, the Minister is required to publish the Domestic Substances List and the Non-Domestic Substances List in the Canada Gazette: section 25(4). Any person may file a notice of objection with the Minster requesting a board of review be established where the Ministers decide not to recommend that a substance be added to the list of Toxic Substances in Schedule I, or where a substance has been specified on the Priority Substances List for five years and the Ministers have not yet assessed whether the substance is toxic: sections 13(2), 14. Also, any two residents of Canada may apply to the Minister for an investigation of an alleged offence under the Act: section 108. Private prosecutions for loss or injury to a person or property resulting from contraventions under the CEPA, may also be brought: section 136. Supra note 7. 99 through the public registry, and by creating a participant funding program to facilitate participation in the public review phase of the environmental assessment process.16 The assessment of projects requiring mandatory review must include consideration of cumulative effects, project rationale, project alternatives, effects on resource sustainability,17 and public views through formalized public consultation. Thus the process of environmental assessment has a potentially broad scope. Four key principles underline the improvements to the environmental assessment process: 1. The process must be clear consistent and effective, eliminating all uncertainties 2. The process must be conducive to open decision-making and public participation 3. The process must be predictable, efficient and just, with the kind of assessments being tailored to the project's assessment requirements 4. The process must be designed to start as an integral part of the early, pre-project planning process. (i) Environmental Assessment Process - General The basic elements of the environmental assessment process are provided in section 14: a screening or comprehensive study and the preparation of a screening report or a comprehensive study report is carried out; the process may progress to mediation or assessment by a review panel; and the design and implementation of a follow-up program could flow from either the screening or mediation. B. Hobby et al., Canadian Environmental Assessment Act, An Annotated Guide (Ontario: Canada Law Book Inc, 1999) at 11-2,11-3. "Sustainable development" is defined in the Act as development that meets the needs of the present, without compromising the ability of future generations to meet their own needs: section 2. 100 The scope of projects is outlined in section 15(3), which ensures that an environmental assessment will be conducted over the entire life cycle of an undertaking or project. In other words, the assessment must consider the operation, modification, decommissioning, abandonment, or other undertaking carried out with respect to the project. Section 16(1) is the core of the Act in terms of its operation. It establishes the scope of an assessment of a project which includes a number of specific factors to be considered in every screening or comprehensive study and every mediation or panel review: 16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors: (a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out; (b) the significance of the effects referred to in paragraph (a); (c) comments from the public that are received in accordance with this Act and the regulations; (d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and (e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered. (2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors: (a) the purpose of the project; (b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means; (c) the need for, and the requirements of, any follow-up program in respect of the project; and (d) the capacity of renewable resources that are likely to the significantly affected by the project to meet the needs of the present and those of the future. The definition of "environmental effects" involves three factors:18 (1) any change that the project may cause in the environment; (2) the effect of any change in the environment on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing hat is of historical, archaeological, palaeontological or architectural significance; and (3) an change to the project that may be caused by the environment. 101 "Environmental effect" covers changes that a project may cause in the environment and changes that the environment (such as floods, storms, and winds) may cause to a project. It also includes effects on the environment outside Canada. Impacts of a project on social, economic, and cultural environments are included in the environmental assessment. The definition only captures those impacts brought about by a change in the biophysical environment caused by the project; for example, the effect of the loss of local employment in community resulting from the destruction of a fishery, brought about by water pollution caused by the project. The definition is also designed to capture changes to the environment caused by the project resulting in changes in the modern day use that aboriginal people make of the land, flora, fauna, and other natural resources for traditional purposes such as fishing, hunting, trapping, gathering, and ceremony. This part of the definition has been crafted to focus on any changes in the current use of the land and natural resources resulting from the environmental effects of the project, and not on whether the land and natural resources were in fact historically used for traditional purposes by aboriginal people. Section 18(3) provides a responsible authority discretion to decide whether there will be an opportunity for public consultation in the screening20 before a final decision is made in respect of the project. In the case of simple routine screenings, a responsible authority will likely not invite public consultation before a project decision is made. However, a responsible authority may choose to encourage public comments in the case of screenings of 1 8 Section 2. 19 "Environment" is broadly defined in section 2(1) to mean the components of the Earth, and includes land, water, air; all organic and inorganic matter and living organisms; and the interacting natural systems that include the components of the earth. 20 Screening is a systematic approach to documenting the environmental effects of a proposed project and determining the need to eliminate or mitigate these effects, to modify the project plan, or recommend further assessment. 102 more complex and controversial projects. Nevertheless, even in such a case, the Federal Court has confirmed that there is no statutory requirement for public consultation.21 Opportunity for public comment is also provided in sections 19(1), (2) - the establishment and notice of class screening reports. Where an Agency determines that a screening report could be used as a model in conducting screenings of other projects within the same class, it may declare that report to be a class screening report. The benefit of this would be to eliminate or reduce unnecessary duplication in the environmental assessment process where projects are carried out routinely and the environmental effects and mitigation measures are well known. Once the Agency is of the view that a report is suitable for class screening, it will: 19. (2) (a) publish in the Canada Gazette a notice setting out the following information, namely, (i) the date on which the screening report will be available to the public, (ii) the place ate which copies of the screening report may be obtained, and (iii) the deadline and address for filing comments on the appropriateness of the use of the screening report as a model in conducting screenings of other projects within the same class; and (b) take into consideration any comments filed in respect of the screening report. Following the consideration of the screening report in respect of a project, the responsible authority engages in one the fundamental decision-making provisions of the Act: in section 20, the responsible authority must take one of three basic courses of action: (1) exercise its authority permitting the project to be carried out; (2) decline to exercise its authority permitting a project to be carried out; or (3) refer the project to a mediator or a review panel. Union of Nova Scotia Indians v. Canada (A-G) [1997] 1 FC 325 (TD). The responsible authority is to base its decision to take a certain course of action on significant adverse environmental effects, the implementation of any mitigation measures, and public concern. (Note: "significant adverse environmental effects" is not defined in the Act. However, the Federal Court has held that potentially adverse environmental effects described as of "moderate significance" were by 103 (ii) Comprehensive Study A "comprehensive study" is defined in section 2 as the environmental assessment process required for projects or classes of projects that are listed on the comprehensive study list, which outlines projects that are likely to have significant adverse environmental effects and require a more in-depth study than a screening under the Act.23 Section 21(b) also authorizes the responsible authority to refer a project described on the comprehensive study list for mediation or panel review. The responsible authority is required to give public notice that a comprehensive study report is available for public comment, with flexibility in the manner in which the report will be made available.24 The notice must include the date the report will be available to the public, the place at which copies of the report may be obtained, and the deadline and address for filing comments on the report25 After the Minister has taken into consideration the comprehensive study report and any public comments received, he or she determines the future course of action. The Minister determines whether the responsible authority should take action on the project pursuant to section 37, or whether the definition not "insignificant" and should therefore be considered "significant" under the predecessor to the CEAA, the Environmental Assessment and Review Process Guidelines Order: Canadian Wildlife Federation v. Canada (Minister of Environment) [1991] 1 FC 641 (CA). There are three instances where the project must be referred for mediation or panel review: where there is uncertainty about the likelihood of significant adverse environmental effects, once mitigation is accounted for - section 20(l)(c)(i); where the project as mitigated is likely to cause significant adverse environmental effects that can be justified - section 20(l)(c)(ii); or where public concerns warrant a reference - section 20(l)(c)(iii). ("Public concern" is not defined in the Act; however, the Federal Court has held that there would be no new concerns for a public panel to consider that had not already been considered in the environmental screening or initial assessment: Cantwell v. Canada (Minister of Environment) (1991) 41 FTR 18 (TD), Vancouver Island Peace Society v. Canada [1992] 3 FC 42 (TD)). Section 21. Such as where the proposed decommissioning of works in a national park is contrary to its management plan: Bowen v. Canada (A-G) [1998] 2 FC 395 (TD). Section 22(1). This flexibility allows for the tailoring of specific communication needs of each community. 104 project should undergo mediation or panel review. Barring any public concern warranting referral to a mediator, if the project is not likely to cause significant adverse environmental effects, or is likely to cause them and they cannot be justified in the circumstances, the Minister must refer the project back to the responsible authority for a decision under section 37.26 (iii) Mediation and Panel Reviews As mentioned earlier in Chapter II of this thesis, the CEAA contains a variety of mediation provisions. Section 29 provides for mediation as an alternative for the resolution of part or all of the issues in an environmental assessment that might otherwise be subject to panel review. Mediation requires identification of the interested parties27 and their concurrence. Therefore, mediation will be less of a public process that panel review with public hearings open to all regardless of whether they are an interested party. Requirements for when a project is referred to a review panel under section 33, are given in sections 34(a) - (d). With respect to the preparation of a panel report, the Federal Court has been prepared to show deference to the panel's appreciation of the adequacy of the evidence before it, because of the panel's expertise.28 Public access to a mediator's report or a panel report, and disclosure provisions, are provided for in sections 36 and 18(3), (19(2), 19(3), and 22. 2 5 Section 22(2). 2 6 Section 23(a). 27 "Interested party" in sections 29-31 excludes only persons or bodies whose interests in the outcome of the environmental assessment is frivolous or vexatious. Additional interested parties may be allowed by the mediator at any time to participate in the mediation: section 31. 28 Alberta Wilderness Association v. Express Pipelines (1996) 137 DLR (4th) 177 (FCA). 105 (iv) Follow-up Program The Act makes provision for the design and implementation of a follow-up program for the project in section 38(1). Public notice requirements are also established for follow-up programs: the public is to be advised of the course of action taken by the responsible authority, any mitigation measures to be implemented, the extent to which mediator or panel review report recommendations have been adopted, any follow-up program designed for the project, and the results of any such program.29 (v) Access to Information Public access to all information relating to the environmental assessments of projects that are under the control of that responsible authority or the Agency, is to be facilitated through the establishment and operation of a public registry. The system is based on the OA Access to Information Act with the difference that responsible authorities are to take the initiative to make as much information available to the public by placing it on the public registry rather than waiting for and responding to public requests for information under the Act.31 Sections 55(4)-(7) contemplate the inclusion of documents created by a third party such as a private sector, or provincial or foreign government proponent, but which is held by a responsible authority or the Agency. Each responsible authority is required to establish a 29 Sections 38(2)(a)-(c). For more information on monitoring/follow-up publications, see the Annotated Bibliography provided by the Canadian Environmental Assessment Agency, online at 30 R.S.C. 1985, c.A-1: [hereinafter AIA]. 31 Hobby, supra note 16, at 11-130. 32 Third party information is handled in a manner consistent with the AIA. Section 27 of that Act requires a government institution to give adequate notice to a third party when it intends to release 106 public registry so that Canadians from every region can have access to those records relating to the specific environmental assessment of a project subject to the Act. A number of cases have demonstrated that the failure to give proper access to information is reviewable; however, it may be counterproductive to small environmental groups or parties whose financial resources are usually very limited, to have to bring litigation to enforce these provisions.33 The type of information that will ordinarily be filed by the responsible authority in a public registry includes any environmental assessment reports and supporting records, comments filed by the public with respect to the environmental assessment of the project, reports on follow-up programs, terms of reference for a mediation or panel review, and documents requiring mitigation measures to be implemented.34 3.3.2 British Columbia Environmental Assessment Ac?5 The purposes of the BCEAA are: [T]o promote sustainability by protecting the environment and fostering a sound economy arid social well-being; to provide for the thorough, timely, and integrated assessment of the environmental, economic, social, cultural, heritage, and health effects of reviewable projects; to prevent or mitigate adverse effects of reviewable projects; to provide an open, accountable and neutrally administered process for the assessment of reviewable projects and activities ...; information that could affect the interests of that third party. Third party information includes trade secrets, confidential financial, commercial, scientific or technical information, information that would prejudice competitive positions or result in financial loss or gain for a third party, and information that would interfere with contractual or other negotiations. Friends of the West Country Association v. Canada (Ministry of Fisheries and Oceans) [1998] 4 FC 340 (TD); Lavoie v. Canada (Minister of the Environment) FCTD File Number T-1586-98; Castle-Crown Wilderness Coalition v. Canada (Ministry of Fisheries and Oceans) FCTD File Number T-1727-98. Section 55(3). Supra note 13. 107 to provide for participation, in an assessment under this Act, by the public, proponents, First Nations, municipalities and regional districts, the government and its agencies, the government of Canada and its agencies, and British Columbia's neighboring jurisdictions. The term "public" under the Act, means the public at large, including concerned individuals, community organizations, special interest groups,36 and First Nations. (i) Principles When a public participation program is designed around the following principles, the goals of public participation listed above are said to be more readily attained:37 • [Effectively identifying and reaching "the public" (i.e. the full range of individuals and groups who will want to be involved in the participation process); • providing the public with enough time to meaningfully respond; • tailoring participation strategies so as to effectively gain meaningful public input at different stages of the review process, beginning with the pre-application phase; • two-way communication which promotes understanding and problems solving; • on-going consultation and follow-up of issues. by:38 The proponent is also assisted in planning their projects through public consultation • [Identifying and addressing public concerns before they become significant issues in the review process; • providing useful local information and knowledge for completing the required impact assessment studies; • identifying ways to avoid or mitigate adverse impacts (a key element of the review process); • avoiding or minimizing unnecessary delays in the project review and permitting processes; • preparing local communities and residents for managing the social, economic and land use impacts of a project; • preparing British Columbia workers and suppliers for training, employment and business opportunities related to the project; and • developing overall community and public understanding of the project. Such as environmental, women's outdoor recreation, and business groups. Guide to the British Columbia Environmental Assessment Process (Victoria: Environmental Assessment Office, 1995) at Appendix II. Guide, ibid, at Appendix II-2. 108 (ii) Public Participation in the BCEAA Review Process There are four major stages39 in the Environmental Assessment process with opportunities for participation at each stage: (1) Pre-Application Stage (2) Application Stage (3) Project Report Stage (4) Public Hearing Stage. (a) Pre-Application Stage Preliminary contacts should be made and initial consultations with the public begun by the proponent before applying for a project approval certificate from the Environmental Assessment Office.40 Scoping of public interests and concerns, becoming familiar with the "key publics" who will need to be consulted, holding preliminary discussions with key contacts, and gaining insights regarding aspects of the project that may be a source of concern, will be the primary focus of consultations at this stage. Notification in the form of newspaper or radio advertisements, and invitations to information sessions41 to known stakeholder groups in the community should also take place. Included in the application for a project approval certificate should be an updated mailing list of all agency and public contacts, and neighboring landowners and business, a summary of the information and consultation activities conducted. Some commonly used consultation techniques include 39 For a flowchart overview of the whole process, see Appendix 2. 4 0 Hereinafter EA Office. 41 Different techniques for distributing information to and consulting with the public include: brochures or direct mail, exhibits or displays, media information kits, newsletters, targeted communication, open 109 open houses, public meetings, site visits, workshops, focus group sessions, and invited presentations to stakeholder groups.42 Typically, an open house is an informal setting for the public to drop in to obtain information at their pleasure, and for the proponent to provide information about the project and receive feedback. It typically consists of a display complemented by hand-out materials. Representatives of the proponent are available to meet with people and answer questions one-on-one. Attendees may be asked to complete a questionnaire before leaving or via mail. An open house may be used as a lead-in for another activity like a public meeting, or as a follow-up to previous activities. Although an open house does not necessarily lead to a representative understanding of larger community or specific group concerns, it is sensitive to people's schedules, and allows then to go through the presentation materials at their own pace, and to ask questions they may not want to ask at a public meeting. It also allows the proponent to give more detailed responses to questions. A public meeting is an opportunity to make a formal presentation to the public and for the public to obtain answers to questions and provide feedback. Public meetings follow a set agenda and are chaired by a neutral party. Large numbers of people can be accommodated at these meetings, but this may not be suitable for conveying very detailed or technical information, nor for obtaining an in-depth understanding of a particular group's concerns. The Chair should be effective, so as to allow for a good cross-section of audience questions and feedback, and to focus the session of information-sharing rather than confrontation. house, public meetings, panels, workshops, focus groups, field offices, survey questionnaires, interviews, phone lines, television or radio call-in programs, and mediation or negotiation. 42 See supra note 37, at Appendix 11-22. 110 Site visits are an opportunity for the public to visit a particular development site in order to obtain a first-hand orientation and impression about a project or specific issues of concern. Typically, participants will be invited by the proponent to meet and receive a verbal orientation to the site, a review of the development proposal, and a tour. A site visit is more effective as a direct and immediate exchange of information between proponents and the public, rather than as a means for informing and hearing from a large number of people. Good communication skills are advised of those meeting with the public, especially if the project if controversial. Arranging a site visit also requires the consideration of public safety and access to the facilities. A workshop is a structured forum where one or more small groups of people work together on a common problem or task. Workshops are most effectively run by neutral facilitators, and should be introduced and concluded with plenary sessions. Group discussions are best in a round table of hollow square format. Workshops may be useful for problem-solving and building consensus, but participants need to be committed to achieving the workshop goals in order for it to be successful. Participants should have a clear understanding of what is to be accomplished during the workshop, and workshop expectations should be clarified at the start. Sessions may be more effective where participants are provided with material prior to the meeting. Facilitators play an important role in working through disagreement or confrontation between stakeholder groups. In focus group sessions, specifically selected participants representing particular groups or stakeholder interests are invited to a meeting intended to gauge the probable response of one or more groups to a proposed action or initiative. Professional facilitators run a focus group by presenting one or more proposals and questioning participants to find 111 out more about the nature and intensity of their views, and the substance of any recommendations that they would make. A focus group can last from a few hours to a full day. It is not designed to provide information to the general public, nor is it a forum to respond directly to questions, build consensus, or make decisions. It is a technique for gaining a detailed understanding of people's perspectives, values and concerns. Focus groups are useful when preliminary ideas have already been developed and information is need on potential reactions and refinements. The information and ideas may be used in other consultation activities such as public meetings and workshops. A presentation is an opportunity to provide information and address the questions of a specific audience. It involves the presentation of specific topics by the proponent's representatives. It is important to be clear on the expectations for the presentation, in terms of scope, level of detail, issues to be covered, and the audience, so that the material and style of the presentation can be tailored accordingly. The primary focus of the presentation is to provide information, but the session may also give the presenter a better understanding of the concerns and issues of the audience. Where the presentation is part of a larger agenda or meeting, the presenter should obtain clarification of his or her role in the session beyond the presentation itself. The application should describe the number of meeting attendees, the stakeholder groups who participated, the public response to the project and the issues they identified, and future consultation activities planned and their timing. 112 (b) Application Review Stage Once the proponent has submitted the application for a project approval certificate to the Environmental Assessment Office, a Project Committee is established, which determines the timeline for formal public notification and input in accordance with the Prescribed Time Limits Regulation, which allows between 30 and 75 days for review and public comment. In order to reach individuals who may wish to participate in the review or may be affected in some way by the project, the proponent will have the responsibility for advertising43 the notice regarding the availability of the application for comment, and for implementing any further notification procedures indicated by the Environmental Assessment Office, such as flyers and signs posted in public places. The Environmental Assessment Office recommends the making of preliminary plans on the proponent's part with respect to advertising, since there will be a relatively short time frame for arranging advertising once the application is accepted for review. Undue delay in providing public notification may lead to an extension of the public comment period. The Environmental Assessment Office is responsible for notifying a wide range of stakeholders and interested members of the public by letter, and comments received regarding the application are placed on the Project Registry. Additional public notification measures may be given in the event that the proponent wishes to make substantive amendments44 to the project as documented in the application. Advertising should appear in at least two issues of a widely distributed newspaper such as the Vancouver Sun, the Province, or the Victoria Times Colonist, as well as local or special interest newspapers. Local radio or television advertising may also be used. The advertised notice is to inform the public of the application, the location of a reference copy of the application, the date by which to submit comments, and the address to which public comments concerning the application should be sent. See Appendix 3 of this paper for a sample reproduction. See Appendix 4 of this paper for a sample reproduction. 113 The Executive Director, in consultation with the Project Committee, evaluates the proponent's consultation plans as described in the application, and advises of any additional measures deemed necessary to meet the public participation goals and principles established for the environmental assessment process (described above). This may include further advertising of the application, wider distribution of copies of the application, or other special consultation measures. Review of an application cannot be completed by the Environmental Assessment Office until the proponent has conducted the consultation activities in the approved consultation program. The public should be able to expect that the proponent is prepared to present the project proposal and address initial public responses to the project.45 To enable ongoing dialogue with the public, the proponent may undertake more in-depth discussions through workshops, information sessions, and follow-up discussions.46 The Act makes provision for financial or technical assistance to individuals and public interest groups to facilitate participation in project reviews. Requests for assistance are directed to the Executive Director as needed to assist in the review of a proposed project. Membership is drawn from local stakeholder groups and interested members of the public. Participant funding: a yearly sum has been allocated per year to assist affected parties in particular in the assessment process. Distribution of funds depend on various criteria such as need, public interest association, personal commitment, and presentation of views. Where the Environmental Assessment Office has established a PAC for the project, the proponent may be asked to make presentations to or take part in PAC meetings. The Public Advisory Committee ("PAC") is intended as a public forum for the identification and discussion of local issues and concerns about the project. The PAC provides advice from a public perspective to the Project Committee, which sets the overall terms of reference for the PAC. The proponent will then be allotted time to prepare a written reply to comments submitted. 114 (c) Project Report Review Stage The Environmental Assessment Office prepares draft project report specifications using the feedback received during the Application review stage, and identifies the issues to be addressed by the proponent in a detailed Project Report.47 The Office then sends out notice of the draft specifications and invites public comments within a period of between 15 and 30 days. Once the public comments are received, the proponent is afforded an opportunity to reply to the comments. Included in the proponent's Project Report should be an updated mailing list of contacts and neighboring tenants or landowners, a summary of consultation activities conducted, and plans for future consultation activities. The public is notified once the Project Report is submitted to the Environmental Assessment Office, and is invited to review and comment on the Report by a date specified by the Project Committee (between 45 and 60 days). Advertising the notice of the availability of the Project Report for comment may take the form of newspaper, radio, television, flyers or signs posted in public areas, or other appropriate forms of media, and is to inform the public of the project report, the location of a reference copy, the date by which to submit comments, and the address to which public comments should be sent.48 As in the Application Review Stage, there is a relatively short time frame for arranging advertising once the report has been accepted for review, and thus the making of preliminary plans regarding advertising is advised; the public comment period may be extended to accommodate undue delay in providing public Public feedback and Environmental Assessment Office comments will assist the proponent in preparing the report, especially with regard to the mitigation of potential adverse effects and the identification of community services or infrastructure that will be necessary. See Appendix 5 of this paper for a sample reproduction. 115 notification. Comments received by the public concerning the project report are also placed on the Project Registry.49 Upon receiving the Project Report, the Executive Director of the Environmental Assessment Office advises the proponent of any additional measures for public consultation. The focus should also be on clarifying and resolving specific issues which remained outstanding after the Application Review Stage discussions. After the Public Review period, the proponent may submit its responses to public comments to the Environmental Assessment Office for its consideration. (d) Public Hearing Stage A public hearing by the Environmental Assessment Board may be required where major issues and concerns have not been resolved in previous review stages. Where the issues referred to the Environmental Assessment Board are complex in nature, a quasi-judicial forum for resolution may be required, while more informal proceedings may be possible at other hearings. The Minister of Environment, Lands and Parks and the responsible Minister (generally from the lead ministry for the sector in which the project occurs) will prepare draft Terms of Reference for the hearing. The Environmental Assessment Office then notifies the public of the draft and invites comments within a specified period (between 30 and 60 days). Public input is taken into account in finalizing the Terms of Reference for the hearing and once the Terms of Reference have been finalized, 49 The public can access documents pertaining to projects at a central Project Registry established by the Environmental Assessment Office. Documents placed on the registry include applications, project reports, comments received in respect of the proposed project, recommendations and decisions. The central Project Registry is located in Victoria. However, key documents pertaining to projects will be made available in local communities near the site of the proposed project (for example, at a government agent, municipal or band office, or at a local library). 116 it will be placed on the Project Registry and advertised in newspapers. At the hearing, the proponent is expected to be able to address the issues raised in the Terms of Reference, and the public, proponent and expert witnesses may present submissions and briefs. Another feature of the Act is the use of mediation on projects associated with a small number of stakeholders and where those with an immediate interest in a project are seen as being willing to attempt a consensus. If consensus through mediation does not appear achievable, a full public review under the direction of a panel will be required. (iii) Participation of First Nations In recognizing that First Nations have an integral role to play in the management of land, air, water, fish, wildlife, and other natural resources and in ensuring the conservation and sustainability of these resources for future generations,50 a number of effects identified by First Nations people should be considered.51 Some economic effects of a project may include for example: the number of new local jobs for which First Nations people could be eligible and are qualified; potential benefits to First Nations communities in the vicinity of the project, such as subsidized power supply and opportunities for service contracts; the impacts on First Nations people's ability to continue traditional fishing, hunting, and trapping activities in the area; and loss of land, foreshore, and mineral use. Environmental effects may involve impacts on medicinal plants gathered in the area as well as traditional food sources; impacts on water quality and water supply necessary to maintain First Nations community life; and cumulative effects of small projects on the environment. 5 0 Environmental Assessment Office Principles, supra note 37, at Appendix III-1. 117 Among the social effects are impacts on services for First Nations people, such as education, housing, health care, recreation, fire protection, and judicial; impacts on isolated communities of a major development that would introduce an outside workforce unfamiliar with First Nations culture; and negative impacts on community cohesion and family breakdown. Heritage and cultural effects include, for example, impacts on archeological sites of interest to First Nations people; the issue of documented but not designated sites; secret sites (such as ritual bathing pools); and the need to be able to assess effects on undocumented First Nations and cultural sites with no physical presence (such as two-week berry picking). Consideration of health effects is also significant, and includes the long term cumulative impact of emissions and discharges on First Nations people living in the area; taking account of extended exposures based on typical water consumption, food ingestion, and air exposure; and the need for a holistic view of health, applying the World Health Organization definition. To ensure that the consultation process provides for First Nations people's concerns to be treated with respect, some specific points have been raised.53 Consultation should begin as soon as possible in the planning of any development, and will depend upon the EA Office, supra note 37, at Appendix 111-20,111-21,111-22. "Health ultimately depends on the ability to manage successfully the interaction between the physical, spiritual, biological, and economic/social environment. ... [A healthy environment includes the] provision of a safe water supply and sanitation and the promotion of a safe food supply and proper nutrition. Particular attention should be directed towards food safety, with priority placed on the elimination of food contamination; comprehensive and sustainable water policies to ensure safe drinking water and sanitation to preclude both microbial and chemical contamination; and promotion of health education, immunization and provisions of essential drugs": see World Health Organization, Earth Summit, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, (June 3-14, 1992). EA Office, supra note 37, at Appendix 111-24. 118 unique political, traditional, and social structure and organization of the particular First Nation potentially affected by the project. In addition to contacting Band Councils or Tribal Councils, First Nations people and communities need to be informed of the project directly, keeping in mind that First Nations leaders and advisors need advance notice to organize meetings. One-way communication, such as a presentation, is not always effective; a two-way dialogue with opportunities for questions and answers from knowledgeable company officials is needed. Adequate time to reflect on the project, digest information, discuss the project amongst themselves and also with their expert advisors, and for written and oral feedback on projects, is also important. Project proponents should also be able to accommodate the strong visual and oral orientation of First Nations people by incorporating visuals into their presentations. 3.3.3 The Environmental Bill of Rights As mentioned earlier in Chapter I, one way of ensuring the participation of the public in environmental decision-making is through the creation of an Environmental Bill of Rights. Although an EBR does not currently exist in British Columbia, other provinces, notably Ontario, have such legislation. As a model, the Ontario Environmental Bill of Rights consists of eight parts: the bill's definition and purposes; the environmental registry and Statements of Environmental Values; the Office of the Environmental Commissioner; the ability of citizens to request reviews of laws, regulations, policies and instruments; the ability to request investigations of suspected violations of environmental laws; a right to sue; whistleblower protection; and a privative clause. 119 The Ontario EBR is a complex and challenging piece of legislation, giving citizens "unprecedented powers" to safeguard the environment and described as the "most far-reaching bill of its kind in Canada"54. However, upon closer analysis, it appears these rights may be hindered by significant limitations and qualifications. The Preamble states in part that: "The people of Ontario have a right to a healthful environment". Although a Preamble is a part of an Act and may assist in interpretation of the statute, it does not constitute part of the text of the law; it is not able to be enforced. Furthermore, this is the only reference to such a substantive right in the Act; the rest of the text does not spell out this right55. The purposes of the Act are set out in section 2, namely, to protect, conserve and, where reasonable, restore the integrity of the environment; provide for the sustainability of the environment; and protect the right to a healthful environment. However, the purpose in section 2(1 )(c) to protect the right to a healthy environment, is qualified by the phrase "by the means provided in this Act"; therefore the right may exist only to the extent that the Act's mechanisms can provide for it. The EBR system for public participation is contained in Part 2 of the Act, and establishes minimum levels of public participation that must be met before Acts, regulations, policies and other instruments are made. Comments of Ontario Environment Minister, Ruth Grier: Quicklaw, Quebec-Ontario Regional General News, News & Wire Services, July 8,1992. The absence of an explicit statement of substantive environmental rights and limited legal enforceability of the procedural rights is said to be very much a product of the EBR Task Force's decision to emphasize mechanisms of political, as opposed to judicial, accountability in the bill: M. Winfield, G. Ford and G. Crann, Achieving the Holy Grail? A Legal and Political Analysis of Ontario's Environmental Bill of Rights (Toronto: Canadian Institute for Environmental Law and Policy, 1995) at 13. 120 Through public notice and consultation, the minister of each prescribed ministry in section 7 of the EBR must prepare a Statement of Environmental Values (SEV), indicating how each ministry intends to implement the EBR's provisions. The draft statements were, however, regarded as a disappointment to environmentalists because the statements did not contain specific comments from ministries about "how they would operationalize the EBR's purposes of promoting pollution prevention, biodiversity protection, natural resources conservation, wise management of natural resources and the protection of ecologically sensitive areas or process in their operations and activities"56. Access to information and public consultation is provided for in the creation of the Environmental Registry, an electronic bulletin board which notifies the public when ministries in the government are proposing activities which could potentially affect the environment. Notices placed on the Registry will be available for a minimum of 30 days and will include a description of the proposal. Public access to the Registry allows any individual to have the opportunity to review and offer views about the proposal during a specific comment period. Those comments are received, reviewed and considered for inclusion in the decision-making process by the ministry. The types of proposed decisions that are subject to the public participation regime of Part 2 include policies, Acts, regulations, and instruments. Policies and Acts are treated similarly for the purposes of Part 2: the notice requirement applies where proposals may have a significant57 effect on the environment, and where the minister considers the public should 5 6 Ibid, at 16. 57 Factors to be considered in determining significance include: 1) the extent and nature of the measures that might be required to mitigate or prevent any harm to the environment; 2) the geographic extent, whether local, regional or provincial, of any harm to the environment; 121 have an opportunity to comment. Part 2 also applies to proposals for all regulations that could have a significant effect on the environment. However, a Regulatory Impact Statement (RIS)58 may be included in the notice for a regulation to permit more informed public consultation on the proposal. An instrument refers to a license, permit, certificate of approval, control order or other legal authorization issued under an Act prescribed for the purposes of the EBR. Each instrument is classified as Class I, II, or III; the notification requirements for an instrument depend on the classification of the instrument.59 An appeal process for decisions made under proposals for Class I or II instruments is also established. Once notice of a decision with regard to a proposal for such an instrument is placed on the Environmental Registry, an individual may seek leave to appeal the decision 3) the nature of the public and private interests involved in the decision; 4) any other matter that the minister considers relevant. An RIS will include: a) a brief statement of the objectives of the proposal; b) a preliminary assessment of the environmental, social and economic consequences of implementing the proposal; and c) an explanation of why the environmental objectives of the proposal would be more appropriately achieved by making, amending or revoking a regulation. Class I - formal public hearings are neither compulsory nor available; a minimum of 30 days notice on the Registry is required. Examples include approvals for air or noise emissions under the (Ontario) Environmental Protection Act (R.S.O. 1990, C.E19), [hereinafter EPA]. Class II - formal hearing may be held at the discretion of the minister; a minimum of 30 days notice on the Registry; additional notice is also to be provided (eg. news releases, door to door flyers, and other such means). Note: further opportunities to enhance public participation rights at the minister's discretion may include public meetings, or a mediation option. An example of a Class II instrument would be an approval for a waste disposal site with no hearing under the EPA. Class III - a public hearing is required, as is a minimum of 30 days notice on the Registry. An example of such an instrument would be the approval of a waste disposal site with a hearing under the EPA. Note: there are four exceptions to the requirements of the EBR: emergency situations; where equivalent public participation has already taken place; instruments resulting from decisions made under an Environmental Assessment process; environmentally insignificant amendments or revocations. 122 if an appeal process already exists for that instrument under another Act and the person seeking leave to appeal has an interest in the decision.60 Although the notice and comment requirements provide the public with broader access to decision-making in the province, some significant limitations should be pointed out. The Act does not permit ministers to provide formal hearings where there are currently no provisions for such hearings. Ministers are also granted a great deal of discretion in the application of the EBR provisions, for example with respect to what constitutes an "environmentally significant" decision. There are provisions for third party appeals; however the appeal provisions are subject to a real limitation.61 Leave to appeal will be granted only if there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and the decision in respect of which an appeal is sought could result in significant harm to the environment. Finally, failure to comply with the public notice and comment requirements does not invalidate the new policy, Act, regulation, or instrument62. A sanction for exemptions of environmentally significant decisions from the EBR's requirements or for failures to follow EBR requirements fully, take the form of a negative comment in the Environmental Commissioner's annual or special report. The EBR provides for the establishment of an Environmental Commissioner, who is an independent body responsible for reviewing and assessing government policies and programs with respect to their effects on the environment. The Commissioner carries a five 6 0 See section 38(1). 6 1 See section 41. 62 Except that such failure in relation to an instrument may be appealed or judicially reviewed: section 37. 123 year term and is appointed by the Legislative Assembly. It is the duty of the Environmental Commissioner to submit annual reports to the Legislature relating to the performance of ministries' functions under the EBR, with particular emphasis on ministry compliance with their SEVs. Some limited investigative powers in the way of examining any person on oath and requiring the production of documents and other evidence from these persons, are also given in section 60. However, the Commissioner has no clear mandate to review specific environmental decisions or investigate complaints, and its ability to review the effects of statutes, regulations, policies and programs of prescribed ministries on the environment appears limited to assessing the degree to which decision-making involving such instruments and activities considers the Ministry's SEVs. Furthermore, constraints on time and resources for fulfilling its substantive process and policy review functions may be an issue, given the significant administrative and reporting functions required of the Office. "In many ways, the Office appears to be intended to carry out reactive, auditing functions, as opposed to more pro-active activities."64 Any two citizens may apply together for an investigation of an alleged contravention of an Act, regulation, instrument, or policy by the appropriate minister.65 The minister must determine whether the decision referred to in the application is subject to review.66 An 63 For example, in relation to the handling of requests for reviews and investigations and public education responsibilities. 64 Supra note 55, at 19. 6 5 Section 61. 6 6 Section 63(2). The applicant must be notified where the minister determines that the decision is not subject to review: section 63(3). Note: section 68 provides that the minister must not review a decision made within the last five years that was consistent with the public participation process in Part II of the EBR, unless there is "social, economic, scientific or other evidence to suggest that a failure to undertake the review could result in significant harm to the environment". 124 application may be referred to another ministry where the minister believes its ministry is not the appropriate ministry.67 The next step for a minister is to determine in a preliminary manner whether "the public interest warrants a review of matters raised in the application".68 Upon receiving the application for review the minister has sixty days to decide whether to undertake the review and provide a brief statement of the reasons, to the applicants, Environmental Commissioner, and any other person who might be directly affected by the decision.69 The review must be conducted within a reasonable time,70 and the outcome of the completed review must be notified to the persons who were notified of the decision whether to conduct the review71. On reflection, the request for review process appears structured and formalized. This is not necessarily to say, however, that effect of the process will be substantial: the minister's duty to investigate all matters in relation to a contravention alleged in an application is limited to "the extent that the minister considers necessary";72 and the minister is not required to conduct an investigation if the application is frivolous or vexatious, or is not serious enough to warrant an investigation, or the alleged contravention is not likely to cause harm to the environment . Even the stipulated sixty-day time frame for response by the minister is 6 7 Section 64(1). 68 Section 67. The EBR lists a variety of factors the minister may consider, including the SEV, potential for harm to the environment if the review is refused, its otherwise periodic reviewability, relevant social, economic, scientific or other evidence, submissions, resources required, and other relevant matters: section 67(2). 69 Section 70. 7 0 Section 69(1). 71 Section 71(1). Also, the notice must state the action the minister has taken or proposes to take as a result of the review: section 71(2). 7 2 Section 77(1). 7 3 Section 77(2). 125 not legally enforceable; the only recourse for the applicant would be to complain to the Environmental Commissioner. But most importantly, in principle, a review which is undertaken will be one which the ministry conducts of itself. The EBR provides the means for private citizens to request government action, for instance the ability to apply for a review or investigation in Parts 4 and 5; however, these mechanisms are just that - they are not rights, since their violation does not provide a remedy. In other words, the privative clause of section 1 1874 limits the reviewability of non-compliance by the courts. In terms of the right to sue for harm to a public environmental resource, any resident of Ontario may bring an action where there has been a contravention or imminent contravention of an Act, regulation or instrument to which the EBR applies, and "where the contravention has caused or will imminently cause significant harm to a public resource".75 For an actual contravention, the plaintiff must have applied for an investigation under Part V and either not received a response from the appropriate minister within a reasonable time77 or received a response that is not reasonable78. The onus is on the plaintiff to prove the contravention on a balance of probabilities, and in the end, the response to applications brought under the Act must be unreasonable; the defendant may rely on any reasonable "Except as provided for in section 84 ... and subsection (2) of this section, no action, decision, failure to take action or failure to make a decision by a minister ... under this Act shall be reviewed in any court"; although, "[a]ny person resident in Ontario may make an application for judicial review ... on the grounds that a minister ... failed in a fundamental way to comply with the requirements of Part II respecting a proposal for an instrument". Section 84(1). Section 84(2). Section 84(2)(a). Section 84(2)(b). Section 84(8). 126 interpretation of the Act, even if the interpretation is erroneous. The court may award remedies including the grant of an injunction, an order to negotiate a restoration plan, a grant for declaratory relief, or any other order that the court considers appropriate.81 However, no damages awards are available. The EBR defines "harm" as:83 Any contamination or degradation and includes harm caused by the release of any solid, liquid, gas, odour, heat, sound, vibration or radiation. The term "public resource" has also been defined in section 82 to include air and certain bodies of water, land, and ecosystems. However, there is a notable absence of a definition for what constitutes "significant" harm. The result is that it will be up to the courts to develop a common law standard as to what constitutes "significant" harm to a public resource. Perhaps the most significant obstacle to citizen suits is the economic reality that pursuing litigation is prohibitively expensive. This is compounded by the fact that public interest plaintiffs bringing EBR lawsuits cannot apply for funding under the Intervenor OA Funding Project Act . Furthermore, since citizens in civil actions are subject to the normal rules of costs recovery, there is a real disincentive for community groups and individuals to bring actions: they stand to lose a great deal if they are unsuccessful in the litigation (they Sections 85(l)-(3). Section 93(1). Section 93(2). Section 1. R.S.O. 1990, c.113. 127 may be exposed to costs awards against them), but do not gain much apart from a moral 85 victory. The amelioration of the standing rule in public nuisance actions is another aspect of the EBR. A public nuisance is "one which inflicts damage, injury or inconvenience on all the Queen's subjects or on all members of a class who come within the sphere or neighborhood 86 of its operation". At common law, under the public nuisance standing rule, a private individual must suffer special damage which is different in kind and not merely in degree, to damage suffered by the rest of the public, or have a proprietary interest in the subject matter affected, in order to bring an action in public nuisance.87 The effect of this rule is to limit the availability of public nuisance for environmental harm to public resources. The EBR moderates this limitation in section 103: No person who has suffered or may suffer a direct economic loss or direct personal injury as a result of a public nuisance that caused harm to the environment shall be barred from bringing an action without the consent of the Attorney General in respect of the loss or injury only because the person has suffered or may suffer direct economic loss or direct personal injury of the same kind or to the same degree as other persons. Although the EBR reforms the common law standing barrier, which was thought to be outdated and should be replaced with more flexible tools for environmental protection,88 environmental public nuisance actions still remain subject to some limitations. A plaintiff no longer has to show damage different to the damage suffered by others, but must demonstrate a direct economic loss or personal injury. This situation counters fears that the citizen suit provisions opens the floodgates to litigation. Halsbury's Laws of England, 4th ed., (London: Butterworths, 1997) vol.34. Hickey v. Electric Reduction (1970) 21 DLR (3d) 368 (Nfld SC). Report of the Task Force on the Ontario Environmental Bill of Rights (Toronto: Ministry of Environment, 1992) at 92-93. 128 The EBR also provides for "whistleblower protection": employers are prohibited from taking reprisals against an employee who has participated in decision-making, applied for a review or investigation, complied with or sought enforcement, or given information or evidence under the EBR. The protection afforded by this provision must be noted to apply only to circumstances where the information is provided to an appropriate authority;90 information provided to third parties such as NGOs and the media is not included. In summary, although the Ontario EBR was designed to improve public participation in environmental decision-making, it is not a collection of enforceable substantive rights:91 Instead, it provides mechanisms which may be used by private persons to encourage government agencies to act. Government non-compliance with many of these provisions is not reviewable by the courts. ...The EBR is essentially a watchdog statute; it allows the public to watch and question government (in)activity. The benefits of such a statute include transparency in decision-making, taking public participation seriously, and environmental obligations to more areas of government; while its limitations include a lack of fundamental environmental rights or principles, no protection from government intervention, no judicial review,92 large hurdles in establishing a proper cause of action, and informal/unpublished guidelines which have no binding force of law 9 3 Sections 105(l)-(3). This includes government agencies, or situations where the employee is subpoenaed to give evidence in a private prosecution or an EBR citizen suit. B. Pardy, "Environmental Rights: Mitigating Flaws of the Management Model" (1996) New Zealand Law Review 239, at 244-245. Judicial review is a process which involves interference by a Court with the decision made by a person or body empowered by Parliament or the governing law to reach that decision in the public interest. The principles upon which the Court is permitted to interfere with the decision of the decision-maker are unreasonableness, bad faith, and improper or ulterior motives: P. Spiller, New Zealand Law Dictionary (Wellington: Butterworths, 1995). Ibid, at 248-250. One statutory initiative to enhance the accountability of government agencies was the Statutory Powers Proceedings Act 1971 (Ont) which requires an Ontario tribunal to first hold a hearing when making a decision that affects peoples' rights under a statute. The courts have also made inroads by tending to override "privative clauses" in legislation; imposing a duty of procedural fairness 129 In British Columbia, the province has shelved the majority of the Environmental Bill of Rights provisions in the proposed BC Environmental Protection Act. After temporarily dropping the public trust doctrine94 (under which the provincial government has a duty to conserve and protect the environment as trustee), the civil cause of action (the right of the public to bring a civil action against a party who has caused an adverse effect on the environment, unless that party was authorized to do so by a permit or regulation), transboundary pollution rights, and whistleblower protection, all that remained was the right to apply for an investigation of an environmental violation, and the setting up of a mechanism for mediation of certain environmental disputes. Clearly, the EBR is no revolutionary cure for all that ails the environment. What it does, however, is represent a step forward, providing some important direction for future environmental law reform. An Environmental Bill of Rights in British Columbia would provide one model for moving closer to sustainability, integrated resource management, and greater public participation, were it not for the province's legislative retreat. on government agencies (795833 Ontario v. Ontario (A-G) (December 4, 1990) unreported, Ontario Court J - General Division, per Corbett J.); and developing a doctrine of legitimate expectations (if the government grants a person a benefit, it cannot take it away even if a person has no enforcement right to continue to receive it, without first giving notice of its intention and an opportunity to make submissions. Schmidt v. Secretary of State for Home Affairs [1969] 1 All ER 904 (CA)) as part of the procedural fairness duty (Ontario Nursing Home Association v. Ontario (1990) 74 OR (2d) 365 (HCJ)). Under a public trust doctrine, natural resources are said to be held in trust by the government for the benefit of future generations, having the obligation to manage, protect and preserve the lands or resources for the public good, and if environmental degradation occurs, a citizen can bring an action for damages against the government for violation of the trust: see also B. Pardy, supra note 91, at 213. The public trust doctrine is specifically incorporated in the Northwest Territories Environmental Rights Act ( S.N.W.T. 1990, c.38): defined as "the collective interest of the people of the Northwest Territories in the quality of the environment and the protection of the environment for future generations" (section 1); and also in the Yukon Environment Act (S.Y.T. 1992, c.5): a person is not permitted to commence an action for the violation of the public trust until a regulation governing the activity in question comes into force (section 8). The Ontario Environmental Bill of Rights does not contain a specific provision for the public trust doctrine, but rather alludes to the concept in the Preamble: "the people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations". 130 CHAPTER IV SKYTRAIN CASE STUDY 4.1 INTRODUCTION The Greater Vancouver Region is located along the southwestern coast of British Columbia. The metropolitan core is centred in the City of Vancouver on the Burrard Peninsula. The adjoining municipalities to the east, Burnaby, New Westminster, Coquitlam, Port Coquitlam, and Port Moody share the Burrard Peninsula. West Vancouver, Lions Bay, North Vancouver City and District, Belcarra and Anmore are located on the south slope of the coastal mountain range separated from the peninsular communities by Burrard Inlet. South of the peninsula are the municipalities of Richmond, Delta, Surrey, White Rock, Langley City and Township. Maple Ridge and Pitt Meadows, located to the northeast, are separated from the peninsula by the Pitt River. The Greater Vancouver Regional District spans 2,930 square kilometres at the mouth of the Fraser River.1 Greater Vancouver is home to over 2 million people.2 Its natural setting and importance as a centre of international trade, offers significant opportunities for investment and business development. The region is expected to grow to almost three million residents by the year 2021. This will have dire consequences if current trends are followed: the suburban shift of jobs and housing currently taking place, will lead to increased commuting trips and a deeper dependency on automobile use. To make regional growth more 1 See Appendix 6. 2 Population: 2,016,600 people: Statistics Canada, 1999. See website at 131 sustainable, a Livable Region Strategy has been offered. The Strategy highlights the need to give higher priority to travel alternatives such as walking, cycling or public transit, and emphasizes the creation of more complete communities to reduce the need for travel by providing work, goods and services within easy reach of local residents. Public transit in Greater Vancouver includes buses, a Seabus, and Automated Light Rail Transit or "SkyTrain". Although SkyTrain has already been operating in Vancouver since 1986, fresh concerns have arisen largely in response to the proposed extension of the SkyTrain line to Lougheed Mall, New Westminster, and Coquitlam. The purpose of the case study is to evaluate the framework for public participation in a major local public project impacting on the environment. In doing so, the case study will look at the chronological history of the project; the Special Commission for SkyTrain Extension Review Terms of Reference, and Interim and Final Reports; and, the Consultation Overview Backgrounder. 4.2 BACKGROUND Population growth in Vancouver through the last decade has been matched with corresponding pressures on infrastructure: traffic, congestion, pollution, urban development. The Greater Vancouver region has become increasingly vehicle oriented and characterized by sprawling suburbs, low density housing. Another 50,000 people will arrive in Greater Vancouver this year, according to recent population patterns. Those same indicators show the rate of automobile growth increases even more rapidly. 3 SkyTrain is a fully automated, medium - to - high capacity rapid transit system. The principal features of the technology include linear induction motor propulsion (which provides direct linear movement, eliminating the need for gearboxes - a major source of noise) combined with a steerable axle suspension, and SkyTrain vehicles use magnetic force to accelerate and brake. The use of this light rail technology may be seen internationally, for example, in Detroit, Ontario, and Kuala Lumpur. See Appendix 7 for an example of the SkyTrain vehicle. 132 Between 1985 and 1992, the number of registered vehicles exceeded population growth by 32%. The number of cars on the road during rush hour jumped by 42% over the same period. Consequently, transit services which are blocked or delayed by traffic congestion are becoming increasingly unreliable and filled to capacity; air quality is suffering under the weight of excessive automobile emissions; and drivers are finding their personal time and patience eroded by the daily commute. ... The Greater Vancouver Regional District produced the Livable Region Strategic Plan ["LRSP"] in 1992 to coordinate plans to protect green spaces and build well functioning communities in every municipality. To achieve this, the LRSP identifies the need to improve air quality and reduce traffic by increasing transportation choice. To slow and reverse the trend of automobile growth, a good source of public transit must be provided. Since the decision of the British Columbia Provincial Government to choose SkyTrain technology, the Rapid Transit Project Office6 has attempted to recognize and deal with public concerns about crime and security, noise, station design, and connectivity issues. However, there is still some apprehension about the way the project is being delivered - particularly whether community interests are being given due consideration and whether environmental commitments will be followed through. From the perspective of the public, clear, timely, and open communications are needed about project details and the timetable. 4.3 CHRONOLOGICAL HISTORY 1991 Provincial government and GVRD jointly launched Transport 2021 project7 The 2021 Medium Range Plan included a series of staged improvements to the region's transit system, with the objective being to increase the transit mode share in the region from 13% of peak trips to 17% by 2006.8 4 Hereinafter GVRD. 5 Fact Sheet 98024 "Urban Sustainability" (October 1998) Rapid Transit 2000 Ltd: on file with author. 6 Hereinafter RTPO. 7 Objective: to develop a long range transportation plan for Greater Vancouver, with associated policies, demand management measures and priorities for transportation investment. 133 s ransport 2021 adopted BC Transit gives every indication that when rapid transit expansion is required, Light Rail Transit9 - not SkyTrain - would be the preferred transit technology. 1995- Local Meetings 1997 BC Transit conducted an extensive series of meetings with municipal councils, business, community and neighborhood groups to discuss transit development in the two preferred corridors. 996 GVRD Livable Region Strategic Plan Extensive public consultation review and input went into the GVRD' Livable Region Strategic Plan, adopted in 1996, which broadly define< the Broadway-Lougheed-Coquitlam-New Westminster corridors fo] rapid transit. As part of its Ten Year Development Plan, BC Transit conducted a study comparing the relevant benefits of the three corridors identified in the Livable Region Strategic Plan. This revic concluded that the Broadway-Lougheed and Coquitlam-New Westminster corridors should proceed first. 1997 Transaction 2002 (Current 5-year service plan) adopted States that regional transit development strategy calls for development of a light rail transit system in the Broadway-Lougheed-Coquitlam corridor by 2005. The next stage according to the plan is a subsequent extension of LRT from Lougheed to New Westminster by 2008. December Proposed LRT Project Description BC Transit produces a report, "Broadway-Lougheed LRT Project Summary Report" for the BC Environmental Assessment Office, the purpose being to provide a general project description of the LRT line I being proposed. 1998 The Rapid Transit Office opened Arthur Griffiths10 was appointed chair of public consultation and chief negotiator for the project. Mr Griffiths has met with municipal leaders, business leaders, real estate boards, and chambers of commerce. By expanding the region's bus services from approximately 900 vehicles to approximately 1600-1800, through the introduction of SuperBuses on four key transportation corridors, and the construction of one or more new light rapid transit (LRT) lines. Further expansion of SkyTrain was not referenced in 2021 Project or any subsequent transit plans. Hereinafter LRT. Arthur Griffiths' high profile in Vancouver has come about through his involvement in a variety of enterprises such as the Whistler bid to host the 2010 Winter Olympics, the ownership of the Vancouver Grizzlies NBA basketball team, and shareholdings in radio and television networks. 134 1998 June 24 Provincial government decision to use SkyTrain BC's Premier" announces that provincial government has chosen j SkyTrain over LRT technology, that SkyTrain technology would be j used on the Broadway-Lougheed-Coquitlam-New Westminster corridor; construction would begin almost immediately and proceed on a "fast-track" basis, and is comprised of two phases. The section of the line from the Columbia Street station in New Westminster to Lougheed Mall will be in operation by Fall 2000; the section between Lougheed Mall and Vancouver Community College will be operational in 2001, and the remaining section from Lougheed Mall and Coquitlam Centre for ^ ^^^^^^^^B^^^^S^S^^^mm^^m^SBm August RTPO Environmental Summary Report The Report assesses the preliminary alignment options, identifies possible environmental impacts associated with each, and recommends how to avoid or minimize these impacts. , . • • • September Project exemption from environmental assessment The Provincial government changed the Reviewable Project Regulation under the BC Environmental Assessment Act to eliminate the requirement for review of the SkyTrain Extension project. September • • 12 Province appoints a Special Commission on SkyTrain Review The Special Commission is headed by Derek Thompson. Environmental Management Compendium focuses on each of the potential impacts identified and prescribes how these impacts can be October Environmental Update Report completed The Report assesses the refined alignment options and again identifies possible impacts and ways to avoid or minimize these impacts. December Environmental Design Assessments A series of Specific Environmental Design Assessments concentrate on each of the specific environmental issues or sensitive areas in detail describing environmental conditions and values, impact assessment and mitigation strategy. 1999 January Construction Environmental Management Program The Program outlines the construction practices required for all ( N o w f o r m e r ) P r e m i e r G l e n C l a r k , N e w D e m o c r a t Pa r t y . Its p u r p o s e b e i n g to c o n d u c t an exped i t ed e n v i r o n m e n t a l assessment o f the p ro jec t , w i t h a n I n te r im R e p o r t b y the e n d o f D e c e m b e r a n d f o l l o w - u p and m o n i t o r i n g to c o n t i n u e i n 1999. 135 contractors as part of their contractual terms and conditions by the project, ranging from environmental monitoring requirements to a spill contingency plan. ! n 1 rebruary Environmental Assessment and Management Report A comprehensive Environmental Assessment and Management Report draws on the previous studies and spells out how die project will deal with environmental impacts. May 12 SkyTrain Extension Review Information Bulletin Special Commission submits a SkyTrain Extension Review Information Bulletin stating that the potential environmental impacts of the SkyTrain Extension project have been adequately identified. The Special Commission has described actions that the Rapid Transit Project Office should take to resolve remaining issues at the detailed design stage. If this work is completed satisfactorily, the project will meet federal and provincial standards. October 14 The long range transportation plan for the Greater Vancouver Regional District embodied in the Transport 2021 Plan, proceeded on the basis of Light Rapid Transit technology being implemented. A dialogue between public officials and environmental groups was exchanged preceding and following the decision to build Light Rapid Transit on the Broadway corridor. Under the BCEAA, a Project Office was set up and preparations to progress the project were made. The public consultation process came to an abrupt stop in June 1998 when (former) Premier Glen Clark made an announcement to dispense with the Light Rapid Transit plans and proceed with SkyTrain technology instead, and on a fast-track basis. Apart from the obvious disregard for the public consultation process on this subject, the decision also prompted an en-masse resignation of the government's panel of business advisers. The panel was appointed in February 1998 to ensure that business considerations, such as financing, 136 would be addressed in the planning of a rapid transit system. The resignations were motivated by the concerns that the fast-tracking of the project would obviate the original mandate of the committee, and also as to how the advisory board itself would be used politically. The unilateral nature of the management of the project in effect would create a redundancy for those involved with providing guidance and advice to the government, although their utility in terms of reputation and being associated with the project would remain - an alternative the panel was not prepared to accept.13 In 1998, the Greater Vancouver Transportation Authority was set up to provide a regional transportation system to move people and goods and support the regional growth strategy and the air quality objectives and economic development of the transportation service region. Among its responsibilities are: to manage and operate the regional transportation system; establish exhaust emission standards; and, review and advise the Greater Vancouver Regional District, the municipalities and the government regarding the implications to the regional transportation system of the regional growth strategy, official community plans applicable to the transportation service region, and major development proposals and provincial highway infrastructure plans in the transportation service region. The previous transportation governance and funding arrangements between the province and the region were not conducive to achieving regional growth strategy objectives. Transit and roadway decisions were the responsibility of multiple organizations, from local municipalities to provincial agencies and ministries. Previous governance and funding was cumbersome, confusing and constraining, making it difficult to manage the system and meet regional growth objectives. The new system, TransLink, is a single, accountable entity that 13 "Transit advisers say Clark's intervention led them to quit" Vancouver Sun, March 12, 1999, A1-A2. 137 will exercise local control over regional transportation, planning, policy, service levels, budgets and financial arrangements. Its responsibilities include transit, major roads, AirCare and Transportation Demand Management. As a single entity, TransLink will be able to integrate transportation planning with land use development and the achievement of air quality objectives.14 Also in 1998, a Special Commission was established; however, its mandate was somewhat narrow. A coalition of environmental groups met with the head of the Special Commission, however, many of their concerns could not be addressed, as they fell outside the Commission's mandate. The groups later met with Finance Minister Joy McPhail and Environment Minister Kathy MacGregor, who reiterated the government line: project "givens" such as general route and technology, were not negotiable. Input was largely limited to station design, crime and security, noise and vibration, and other secondary matters. 4.4 SKYTRAIN EXTENSION REVIEW, SPECIAL COMMISSION, DECEMBER 1998 4.4.1 Coalition for SkyTrain Review In response to a number of concerns about the proposed project, an ad-hoc coalition of environmental and transportation advocacy groups was formed. The coalition consisted of groups such as Better Environmentally Sound Transportation (BEST), Society Promoting Environmental Conservation (SPEC), Transport 2000, David Suzuki Foundation, West Coast Environmental Law Association, Sierra Legal Defence Fund, Transit Users Group, UBC See G V T A online at 138 Centre for Human Settlements, Stoney Creek Environment Committee, and the Burke Mountain Naturalist Society. Three basic issues were identified: (i) the manner in which the decision was made; (ii) Provincial Government's intention to proceed without carrying out a full environmental review under the terms of the BCEAA; and, (iii) whether SkyTrain was the most appropriate technology to use, given that the public had been led to believe that a street-level Light Rail Transit system would be built in the two corridors. The member groups in the Coalition have provided oral and written input to the Special Commission since its formation, and concerns have broadened to include additional issues.15 The SkyTrain Extension Review Brief outlines key problems with the Provincial Government's decision-making process regarding the SkyTrain Extension Project.16 4.4.2 Decision-making Process The decision-making process in general prompted the following criticisms. • The decision to choose SkyTrain technology instead of LRT was made in secret, without input from other stakeholders, within a very short period of time, without a written justification, and without putting out for tender. Concerns which arose out of the failure of Rapid Transit 2000 Ltd to defend the merits of the project, and provide important information about the project to the Special Commission and the public. Other questions remained: what is the basic project description? What are the ridership projections and revenue forecasts for the project? On what basis does the government claim that this project would be "good for the environment"? Why was such a major project not put out to tender? W.J. Andrews and D. Smith, "Looking a Gift Horse in the Mouth: An Examination of the SkyTrain Extension Proposal", SkyTrain Extension Review, Special Commission, December 1998. 139 • The Government's unilateral approach is inconsistent with the spirit of the Greater Vancouver Transportation Authority Act, which is intended to transfer responsibility for transportation to the Greater Vancouver Transportation Authority. • It is also inconsistent with BC Transit's commitment to consultation with major stakeholders, for example the TransAction 2002 strategy which alludes to public accountability and input. • The announcement to fast track misleadingly failed to inform the public that this would necessarily require exemption of the project from review under the British Columbia Environmental Assessment Act. • The Government's decision to exempt the project from review under the BCEAA has deprived the public and the project of scrutiny, and undermined its moral authority to require other projects to undergo proper environmental assessment under the Act. • The appointed Special Commissioner is undermined by the project proceeding at full speed. • The Government has frustrated the federal environmental assessment process by delaying notification to the federal government of information necessary to determine if the federal EIA process is triggered. • Full and timely disclosure of relevant information has not been made. • The Government's rationale for the project has not been justified in a defensible way. 4.4.3 Choice of SkyTrain Technology Concerns also arose over the choice of SkyTrain technology. 1 7 S.B.C. 1998, c.30. 140 • The capacity of SkyTrain system greatly exceeds current and potential future demand, and thus will command excess expense. • A cost comparison of SkyTrain and LRT is not useful because the comparisons mistakenly assume the cost of stations is the same for each technology, and maintenance costs do not take into account the expenses for facilities for other forms of transit in areas where SkyTrain is not suitable. • The community impact of SkyTrain versus LRT has not been documented. • The effect of SkyTrain versus LRT on employment has not been documented. 4.4.4 Fast track The decision to fast track the Project also raised concerns. • Public opinion polls used as the basis for concluding the public wants rapid transit sooner rather than later are misleading in the sense they did not accurately present the realistic pros and cons, and did not distinguish clearly between rapid transit generally and SkyTrain. • Plans for bringing rapid transit lines into service in 2005 and 2008 were based on increased ridership. Facilities built sooner may not be adequately utilized. • Fast tracking means the design of the project itself is less well thought out and that all related decisions are rushed. 4.4.5 Choice of Phases Problems regarding phasing were noted. 141 • The "stand alone" purpose of phasing the project is defeated in Phase 1 (New Westminster to VCC). Phase 1 duplicates the existing line from New West to Broadway. Furthermore, there are some parts of Phase 2 which have design problems: building the easy parts first will constrain the options for solving the hard parts; and, if Phase 2 does not, for whatever reason, get built, the transit system will be left with a line that does not make sense on its own. 4.4.6 Effect on Bus Service The negative implications for bus service should also be considered. • If the Province is not ready and willing to pay the full incremental cost of the SkyTrain project, then the GVTA may be forced into paying some portion of it, which would reduce its ability to pay for buses and other services, or the Province may defer a financial commitment on Phase 2. 4.4.7 Consistency with Existing Transportation Plans A further issue is that the project is not consistent with existing Transportation plans. • Existing transit expansion plans indicate that the addition of more buses in the region should be the first priority. The Transport 2021 Medium Range Plan indicates that Step A should be to provide improved bus service, and Step B - to introduce the Superbus service. • TransAction 2002 calls for a series of improvements to the bus system over the next 5 years. The Government has decided to ignore these comprehensive transit expansion plans in favour of SkyTrain. 142 4.4.8 Environmental Benefits The environmental benefits claimed have also been questioned. • The Government's rationale for the project is that it will reduce car trips, and consequently, pollution and traffic congestion. The studies conducted do not support a conclusion that car trips will be reduced significantly - it is estimated that more than 90% of the SkyTrain ridership would come from existing users. It is unclear whether there will be a reduction in the car trips significantly if the project achieves its goal of higher density residential, institutional and commercial development along the route. The following recommendations have been made to the Special Commission in reference to the December 1998 Interim Report:18 1. The Special Commission should identify the following issues associated with the construction and operation of the SkyTrain Extension Project: whether the project will have a net positive environmental impact; whether it will cause reduced car travel with associated reductions in vehicle emissions; whether it will reduce traffic congestion; whether it will promote the densification goals of the Livable Region Strategic Plan. 2. The Special Commission has not been able to design and implement a public consultation process to receive input in order to carry out this assignment due to the fact that sufficient information about the proposed project is not yet available. 3. The Special Commission should address the following points: observations regarding the objectivity with which input from people was summarized in Rapid Transit 2000 Ltd reports of open houses; the extent to which the public consultation process has enabled participants to understand and have input on both the local and regional significance of 1 8 Supra note 16. 143 this project; the percentage of the population of British Columbians and Greater Vancouverites who were consulted. 4. The Special Commission should make the following recommendations for preventing unnecessary adverse environmental impacts of the proposed project: • Provincial Government should postpone the commencement of construction at least until the Greater Vancouver Transit Authority19 has agreed to the design, scope and cost of the project pursuant to the Greater Vancouver Transportation Authority Act and environmental assessment of the project under the Canadian Environmental Assessment Act has been completed • Provincial Government should take the project off the "fast track" to allow sufficient time for proper ongoing planning and mitigation • Provincial Government should remove the Lougheed Mall to Vancouver Community College leg from Phase 1 to facilitate examination of the design of rapid transit for the entire Broadway-Lougheed corridor • Provincial Government should clarify its intentions and commitments regarding the choice of technology, the alignment and western terminus for the Vancouver Community College to central Broadway portion of Phase 2 • Provincial Government should disclose the full anticipated cost of both phases of the project, and the arrangements regarding which parties will pay for cost over-runs. 5. The Special Commission should address in its Interim Report the following points regarding its ability to harmonize its review of environmental issues related to the project with the environmental assessment of the project under CEAA: 1 9 Hereinafter GVTA. 144 • The extent to which the scope of the review is broader or narrower than the scope of review under CEAA • The extent to which the review by the Special Commission will meet some or all of the requirements of Environmental Assessment under the Canadian Environmental Assessment Act • The extent to which the regulatory requirements under CEAA, the Fisheries Act, the Navigable Waters Protection Act and other statutes may affect the project's fast track schedule. 6. The Special Commission should discuss the four aspects of its review process (open, transparent, neutral, and comprehensive), with the following comments in mind: the Special Commission process has been open, accessible, and transparent (with particular note to its website); regarding neutrality, the Commission has an inherent problem of institutional bias since its is led by a civil servant employed by the same government proposing the project; comprehensiveness will be determined by its decision on whether or not to include the overall environmental benefit of the project and its effect on air quality. 7. The Special Commission should conclude in its December Interim Report that it has been Of) unable to make "all relevant information" accessible to the public because it has not been provided by Rapid Transit Project 2000 Ltd and the Ministry of Finance. 8. The Special Commission should provide in the Interim Report a full and objective summary of public input regarding the SkyTrain project. 20 Specifically, how much it estimates for capital costs, operating costs, and debt servicing; who is going to pay how much and when, eg. the Provincial Government/GVTA/private companies/users; full information and analysis should be provided by Provincial Government on the pros and cons of 145 9. The Special Commission should discuss in its Interim Report how it plans to implement the objective of providing ongoing independent follow-up and monitoring through the design phase. It should include follow-up and monitoring of environmental conditions including vehicle use, transit ridership, traffic congestion and patterns of densification. Scope should include the SkyTrain footprint and also the full Greater Vancouver region where necessary. Monitoring should be integrated with existing activities such as the air quality monitoring program, and State of the Environment reporting, and be designed from the start to facilitate ongoing public access to the data (by internet, and regular bulletins). 4.5 SKYTRAIN EXTENSION REVIEW, SPECIAL COMMISSION TERMS OF REFERENCE The focus of the Special Commission, given the provincial government's decision to 91 99 use Automated Light Rail Transit technology, is to: 1. Review environmental issues related to construction and operation of the proposed SkyTrain project; 2. Design and implement a public consultation process to receive input in order to carry out this assignment; 3. Monitor and receive input from the Rapid Transit Project Office Neighbourhood Consultation process in order to provide advice and recommendations on SkyTrain routes and related environmental impacts; alternative approaches; Provincial Government should waive Freedom of Information request fees for participating in the public consultation process. 21 Hereinafter A L R T . 146 4. Develop recommendations for preventing and mitigating any environmental impacts; 5. Work with the Canadian Environmental Assessment Agency to develop and maintain a cooperative and harmonized review with federal agencies; 6. Ensure the review process is open, transparent, neutral and comprehensive; 8. Prepare an interim report to Cabinet summarizing the public input, and making specific recommendations with respect to the SkyTrain project by December 1998; and, 9. Provide ongoing independent follow-up and monitoring throughout the design phase of the project. In conducting the review process: 1. The Special Commission will have dedicated staffing resources assigned from the British Columbia Environmental Assessment Office; 2. The Special Commissioner and staff from the Environmental Assessment Office will have the full cooperation of, and access to information from, all relevant provincial ministries, authorities and agencies. The Special Commission was set up in September 1998 to conduct a comprehensive review of environmental and land-use impacts of the planned SkyTrain link. It is headed by Derek Thompson and is supported by a team from the Environmental Assessment Office who provide experience in assessment review logistics and problem-solving. 22 Terms of Reference may be found online at 23 Derek Thompson is currently the Deputy Minister of Environment, Lands and Parks, and has a background in Land Use planning. Specifically, he has worked for the provincial government since 1973 and has served at an executive level, including the establishment of the Land Use Coordination Office and chairing the Deputy Minister's Committee on Land Use. 147 Representatives of key provincial and federal agencies responsible for overseeing development and environmental protection, and of the Canadian Environmental Assessment Agency, form a technical advisory committee to assist in the identification and resolution of relevant issues and to ensure this review can meet federal requirements for approval. Ensuring the issues and concerns of the people in affected neighbourhoods are carefully considered, and making recommendations on how to avoid or mitigate adverse environmental or community impacts, will be key to completing a proper review. Access to the commission by interested people and groups will also be important. 4.6 S K Y T R A I N E X T E N S I O N REVIEW, SPECIAL COMMISSION I N T E R I M R E P O R T , D E C E M B E R 1998 The Special Commission, in its Interim Report, prepared a summary of work to date, presented the Commission's perspective on information received, and provided a discussion framework for open technical forums and public forums. The Interim Report is divided into four main sections: the Special Commission Overview, the SkyTrain Project, the Route Alignment Review, and the Project Impacts, Benefits, and Mitigation. The Special Commission Overview section introduces the Special Commission, defines its scope and purpose, and describes how it is fulfilling its mandate. Also outlined is the approach, process and products of the Special Commission SkyTrain Review, activities to date, and planned next steps. The SkyTrain Project section provides background on the work that preceded the accelerated project, and a history of the accelerated project itself. The roles and responsibilities of key participants in the accelerated project, and possible future plans and rapid transit corridors are identified. The Route Alignment Review section audits the Rapid Transit Project Office's program for the design 148 of route alignment and station locations for the accelerated project. Also reviewed are the technical and public processes of the Rapid Transit Project Office, and the criteria being used by the company to develop their preferred route alignment and station locations. Summary and conclusions are provided on public process for the remaining stages of the project and on what issues should be addressed. Sources of information and input used in the initial review contained in the Interim Report, and a preliminary report on system-wide and location specific issues that have been identified, are contained in the Project Impacts, Benefits and Mitigation section. Preliminary comments are given on potential project impacts, benefits and possible mitigation issues in order to provide direction to ongoing planning and consultation processes.24 In addition, concepts for a SkyTrain Community Legacy Program, including a conceptual map illustrating some possibilities for positive community benefits, have been put forward. 4.7 SKYTRAIN EXTENSION REVIEW, SPECIAL COMMISSION FINAL REPORT, MAY 1999 A "Public Consultation Report"25 was compiled from all public submissions received during the review process and contains input from public meetings following the release of the Interim Report in January 1999. It addressed the following areas: 1. Public Process 2. Biophysical Environment 3. Noise and Vibration 24 Issues identified as requiring further discussion include biophysical environment (issues relating to the natural environment, such as streams and fish habitat, vegetation and bird habitat), noise and vibration (including impacts related to both construction and operation), crime and safety (public safety and security), visual impacts and aesthetics (including the cityscape and community values), and station integration and connectivity (issues related to connectivity, or the efficient movement of people, and the manner in which a station fits within the local neighbourhood and community). 25 Based on reporting by Praxis Pacific, consultants to the Special Commission. On file with author. 149 4. Connectivity and Operational Issues 5. Station and Guideway Design 6. Legacy 7. Decision-making Processes 8. Project Timing 9. Project Justification 10. Future Expansion to Coquitlam and Port Moody 11. Significant Concerns Within the Special Commissioner's Mandate 12. Significant Concerns Beyond the Special Commissioner's Mandate Each of these is addressed in turn below. 4.7.1 Public Process The Special Commission's mandate is to design and implement a public consultation process to receive input in order to carry out a review of environmental issues related to construction and operation of the SkyTrain accelerated project. (i) Goals for public participation in the Special Commission Review The Review aims to ensure an open and accountable review process, to provide notification and information to the public at an early stage in the planning of the project, to ensure public input to the identification and resolution of concerns and issues about the project and their potential impacts, and to ensure that local information, knowledge and concerns contribute to both project design and decision-making processes. 2 6 Final Report, at 7. 150 (ii) Public Participation Opportunities The scope of public participation in the SkyTrain Review Process includes Rapid Transit Project Office attendance and speech at two public meetings, technical Workshops with open public question & answer sessions, a website with project review information and a bulletin board, ten public library viewing sites, a SkyTrain Project Registry, store front offices in the project area, local phone numbers for public enquiries, and mailing and email addresses to receive written submissions. (iii) Public Meetings Two public meetings were held on February 16 and 17, 1999, in Coquitlam, British Columbia. The objective of the public meetings was to ensure28 that the accelerated project and potential impacts have been identified and communicated to the public, that solutions for avoiding, minimizing or mitigating identified impacts are found, and that full advantage is taken of opportunities to enhance communities, the environment and the regional transit system. A total of 138 participants was recorded, with 25 ad hoc presentations during scheduled open comment periods. Comment forms were provided, and 39/138 forms were completed (28%). The public were notified of the meetings through paid advertisements in community newspapers, the Vancouver Sun and The Province daily newspapers, public service announcements, the "Buzzer" newsletter distributed by BC Transit, and newspaper and radio reports. Public meetings were recorded by a court reporter and full transcripts were prepared. These were made available for viewing at the SkyTrain Project Registry, public Final Report, at 7, 8. Final Report, at 8. 151 viewing sites, and online. Also, an open house area was set up in an adjoining section of the meeting room (for maps, display boards, project reports, and other materials). 4.7.2 Biophysical Environment The most common biophysical environment issue raised was that the proposed route alignment would infringe on green space and environmentally sensitive areas. Areas of particular concern were the Grandview Cut, stream crossings along the Lougheed corridor (Chubb Creek, Beecher Creek, Eagle Creek, Stoney Creek), the Brunette River, and Fraserview/Sapperton Reach. It was suggested the route alignment should use existing corridors and be planned around greenspace and trees. It was also recommended that caution be used in constructing works at or near stream crossings - Stoney Creek in particular, and along Fraser and Brunette Rivers. Slope stability along the Grandview Cut and on Clark Street Hill were noted as potential problems for construction, and more detailed environmental impact assessments were requested. It was considered crucial that this project result in improved air quality by getting people out of their cars. 4.7.3 Noise and Vibration Concerns regarding potential noise and vibration were raised primarily by residents of the Lougheed Mall area in Burnaby and the Fraserview area in New Westminster. Their comments focused on noise associated with stations, operations, maintenance, construction and tunnels. 152 Many residents of the Lougheed Mall area urged decision-makers to avoid placement of a station at Bell Avenue. If this station is built, residents asked that noise and other issues be addressed. They stressed that noise attenuation systems should be located in the station, at station entry and exit points, and on the guideway to keep noise from rising to the residential buildings. A request was made for compensation to residents in older nearby highrises to provide for triple glazed windows, which would alleviate the additional noise pollution. Residents were concerned about the variation in pitch during acceleration and deceleration of the trains in the Lougheed Mall area. Although a tunnel beginning west of Bell Avenue was suggested as a preferred approach for reducing neighbourhood impacts, it was generally recognized that this may be prohibitively expensive. Residents requested a high standard of noise and visual impact mitigation be employed and wanted to be involved in discussions on noise abatement in the area. There were concerns raised about the noise associated with the increased number of diesel buses that would idle and travel near the Lougheed station and the Broadway/Commercial Station. Concerns were expressed by people who live in Burquitlam near Clarke Road, that road widening to accommodate SkyTrain would almost double the traffic noise as traffic would be closer to the buildings. There was concern that the assumptions of the noise study were based on outdated standards of the 1972 Report of the United States Department of Housing and Urban Development. There were also questions about the accuracy of the noise studies for the original SkyTrain and this proposed expansion. The possibility of increased noise from the new, heavier MKII SkyTrain cars was questioned. Concerns were also conveyed about whether the mitigation options 153 recommended in the noise consultant's report would be implemented or not, particularly in the Grandview Cut. Residents near the proposed route noted that noise would be an issue during the evening and early morning hours, when traffic levels and thus background noise are low. Residents of the highrise buildings in the Lougheed Mall area believe they will experience noise impacts from SkyTrain passing through their neighborhood. Fears were expressed that the mature trees on the north side of Lougheed Highway would be removed when SkyTrain is built, resulting in loss of their aesthetic and noise buffer value. One resident of New Westminster was concerned about the effects of noise on her elderly neighbors from the frequency and the maintenance of SkyTrain. Another resident noted that noise from SkyTrain would make the Fraser riverfront area ineffective as a healing place for people. Suggestions were made that, due to existing high levels of truck and train traffic in the Fraserview area, local government should explore ways to reduce noise levels rather than increasing noise by adding SkyTrain to the area. Should noise be reduced and walkways improved, one person predicted a reduction in car use in the area. Several residents fear that additional noise from SkyTrain will greatly reduce the quality of life in their neighborhood and their property value. Public concerns were raised regarding the noise generated by the maintenance of the tracks by cars that grind the tracks. During the public meetings, an expert was not on hand to respond to these concerns adequately. The Special Commission has subsequently provided all meeting participants with a written clarification of the potential impacts of regular (approximately monthly) night-time rail grinding required to maintain a smooth ride and reduce SkyTrain vibration and noise. 154 The issue was raised of noise from tunnels, specifically, that a proactive approach should be taken to abate the noise. People who live in the Lougheed Mall area expressed concern that there would be vibration impacts to their buildings from SkyTrain. 4.7.4 Connectivity and Operational Issues Connectivity refers to how the SkyTrain links with the other systems such as roads, buses and bikeways. Public concerns regarding connectivity include: cyclist and pedestrian access to SkyTrain; connections with the bus system; transit ridership; integration with the communities near stations; functioning and location of transportation hubs; effects on the road transportation system; growth shaping issues associated with future stations; and, connections with existing and future SkyTrain lines. Many people believed the money earmarked for SkyTrain would be better spent by improving the bus system rather than expanding SkyTrain, and more specifically, concerns arose that the high costs of SkyTrain operation and future expansion would jeopardize the existing bus system. A number of people were concerned about a lack of need or lack of ridership for the proposed SkyTrain line. It was noted that the current ridership on bus routes that will become SkyTrain routes are too low to justify SkyTrain. A Fraserview area resident noted that it is difficult to commute by SkyTrain for people who live between or far from stations, because of the inadequacy of the bus system to carry people to and from the stations. Another person suggested that stations be located in areas where many people can walk to the station. There were several suggestions regarding "park and rides". One was that there be more of them in the SkyTrain system to encourage drivers to get out of their cars. Others were concerned about traffic congestion at park and 155 ride areas. It was suggested that station placement take into consideration community concerns about traffic and transportation issues. It was commented that municipal governments and formal community advisory groups should play an active role in station location decisions because of the influence that SkyTrain could have on land use. Also, public comments indicated the current phase being considered does not make sense, as the connections to densely populated areas are not included and much of the route alignment parallels or duplicates the existing SkyTrain line. 4.7.5 Station and Guideway Design This area covers the broad topic of project design and provides a summary of public concerns and issues regarding specific station design details, including visual and aesthetic considerations, and crime and safety. At one level, people emphasized the importance of community consultation in station design. They also suggested transit workers and local municipalities should be consulted. Also community plans for policing, zoning, traffic patterns and further development must be developed carefully in the vicinity of stations to combat some of the problems experienced on the current line. Some specific suggestions were made for noise attenuation systems, wheelchair access, larger elevators, and health and safety features. Also, suggestions on how to diffuse crime in and around stations and how to design for cyclists were included. 4.7.6 Legacy Public comments suggested legacy opportunities that could be built through the construction of community greenways of multi-use pathways along the SkyTrain corridor. It 156 was suggested that the Rapid Transit Project Office make provisions for a multi-use pathway in the overall design and that cyclists, pedestrians and in-line skaters be included in the design process of this pathway. 4.7.7 Decision-making Process Concerns over the decision-making process stemmed largely from the announcement of the Provincial Government to accelerate and exempt the project from the BC Environmental Assessment Act. Government then initiated public consultation activities to determine how - not whether - the project should go ahead. This led to the impression that the Provincial Government has ignored years of regional transportation planning and is not willing to listen to concerns about project "givens" such as timing, corridors and technology. Concerns over the Rapid Transit Project Office's approach to public consultation were varied. While some people were frustrated at the preliminary nature of the project information to date and wanted an opportunity to participate in a detailed assessment, others found that there was too much information to digest. Still, others were concerned about information gaps, such as details on costs, ridership, and project justification. The neighborhood-by-neighborhood approach to route alignment selection was criticized as an attempt to avoid looking at regional or overview issues. Inconsistencies were also noted with regard to how public consultation is taking place in each municipality. The style of the public process has also been criticized as being more akin to public relations than public consultation, the result of which is a one-way flow of information from the Rapid Transit Project Office to the public, but not the reverse. 157 Difficulties with the open house format were expressed in comments on the Rapid Transit Project Office public process. People felt that no one was listening to, recording or considering their viewpoints. The one-on-one style of discussion was felt to be unsatisfactory because different answers were received depending on who was spoken with, and because there was no public record of the discussion. Thus, concern was expressed that the Rapid Transit Project Office could not be held accountable for statements. Disappointment was also apparent regarding the fact that senior officials from Rapid Transit Project Office and local ML As were not available. Although open houses were intended to be informative, the large amount of detailed information to be digested in a short period of time made this impractical, and the overcrowding around the displays were a problem. Finally, the Special Commission's mandate and independence in reviewing the project were questioned. Some people were critical of whether politicians would listen to and follow the Special Commissioner's recommendations. The Special Commission's public review process was also commented on: as there was a concern that a scheduled Technical Workshop on the connectivity issue would be a closed session, a suggestion was made that some form of public involvement be incorporated. It was further added that the technical workshops held by the Special Commission were of a general nature and that more detailed studies and discussions were required. Complaints were also made about difficulties in accessing project information under the Freedom of Information Act, and through advertisements in local newspapers. Member of the Legislative Assembly. 158 4.7.8 Project Timing Many criticisms of the SkyTrain accelerated project arose from the fast track schedule. The most common concern was that the fast track schedule would result in poor planning, bad decision-making, engineering problems, negative environmental impacts, cost overruns, and a product that does not meet the needs of the Lower Mainland as well as it might if the project were built and planned at a slower pace. While people agreed that there is a need for rapid transit, they did not understand the rush. The accelerated schedule had already not provided enough time for proper consultation or adequate coordination of community plans around stations. 4.7.9 Project Justification The main categories regarding public comment on project justification included budget, technology, and routing. Comments highlighted that while there is a demand and need for improvements to the transit system, people want to be sure that the money spent buys the best system possible. Many people expressed the view that construction should not start nor billions of dollars be spent before the issues of project justification are resolved and the project is properly planned. Questions arose whether SkyTrain technology is the best technology to meet the Lower Mainland's transit needs, with some suggesting Light Rail Transit or more buses would be better alternatives. Concerns were also raised about the Province's contract with Bombardier for the assembly of the MKII vehicles, specifically pertaining to job creation and the dependency on Bombardier as the exclusive provider. Comments also indicated that people felt the SkyTrain extension could not be justified with the Rapid Transit Project Office's preferred route for the accelerated project, and they 159 questioned whether this is the best route alignment to serve the greatest number of commuters. In particular, the Lougheed Mall extension was seen by some as illogical given that it is on the least dense part of the corridor (while rapid bus is intended to serve the most dense portion), and that the 10 minute difference that would be saved over taking the existing bus system to Lougheed Mall does not justify the multi-million dollar cost of constructing the route. 4.7.10 Future Expansion to Port Coquitlam and Port Moody Residents in Port Moody and Coquitlam made presentations seeking a reassessment of the route options that are under consideration for a future extension to the Northeast sector, including comparative studies and an open public process. The high cost of the accelerated project prompted concern that further expansion east and west would be precluded and that the fast track process would have implications of future route considerations to Coquitlam and Port Moody. Others suggested that the accelerated project makes no sense without the connection to Coquitlam. More specifically, comments were received pertaining to the proposed route on Guildford Way and the potential impact on the schools, traffic, crime, visual impacts, privacy, and noise in the area. Stations at Landsdowne and Guildford were opposed. A number of people were also concerned about the route from Lougheed Mall to Coquitlam Centre. Opinions were divided as to whether the Lougheed Highway should be used, avoiding direct routing through Port Moody, or whether the Lougheed Highway should be avoided, given potential impacts on Riverview and other neighboring communities. Some ideas were received for Lougheed Highway routing, including a possible bridge across the 160 Fraser River to Guildford Town Centre and a line from Coquitlam Centre ending at Newport Village in Port Moody (this latter route being suggested to connect with West Coast Express to offer a route directly into downtown Vancouver). Dissatisfaction with the process to date was expressed by many people who live in Port Moody. The residents also stated their aversion to having SkyTrain in their city, and cited costs, lack of future growth opportunities, and lack of ridership as factors in their opposition to the currently proposed connection from Lougheed to Port Moody. Notwithstanding, the Lougheed Highway route to Coquitlam Centre was generally preferred with a possible connection to Newport village from Coquitlam Centre. 4.7.11 Overview of Significant Concerns Which are in the Special Commission's Mandate Significant public concerns conveyed to the Special Commissioner were both general and specific, critical and constructive, and inside and outside the mandate. Issues arising within the Special Commission's mandate related to the potential loss of trees and green space, as well as potential impacts on fish habitat and other environmentally sensitive areas. Residents near proposed route alignments and stations in certain locations, such as Bell-Lougheed and Fraserview, had significant concerns about noise, operation and maintenance of SkyTrain routes and stations. They wanted assurances that these concerns will be addressed. Design efforts should consider key factors such as crime and safety, noise and visual impacts, traffic patterns, and future development. Another key area of concern was the elevated guideways through, and stations near, residential areas and schools. A multi-use pathway along the length of the guideway and greenway along the Fraser River at Fraserview/Sapperton was suggested for legacy opportunities. The adequacy of the Rapid 161 Transit Project Office public consultation process, the limited mandate of the Special Commission, and the absence of a comprehensive environmental assessment process were also questioned. 4.7.12 Overview of Significant Concerns Which are Beyond the Special Commission's Mandate Presentations and written submissions share some common themes. One concern is that the decision-making process leading to the June 1998 SkyTrain announcement (choice of technology and accelerated project schedule) did not consider public interest and years of regional transportation planning. Regarding the current and future demand for the accelerated project, suggestions were made to encourage ridership through enhanced access for pedestrians, cyclists, cars, and buses. There is also concern that the accelerated SkyTrain extension project (New Westminster to Vancouver Community College via Lougheed Mall) represents only a portion of the full T-Line prescribed to achieve Greater Vancouver Regional District growth management objectives, and that there is no firm commitment in place for the subsequent completion of the full T-Line. It was also commented that the anticipated environmental benefits (such as reduced traffic, air quality improvements, etc) associated with major public transportation project would not be realized. Slowing down the project timeline - or fast track - was advocated as the single greatest opportunity to avoid or mitigate budget overruns, community and environmental impacts, and engineering problems. Some people noted the possibility that project and operational costs would negatively impact the rest of the Lower Mainland transit system (erosion of local bus service and future rapid transit expansions). Residents of Coquitlam and Port Moody wanted their concerns about 162 future expansion considered immediately and they wanted it done in an open way, for example through town hall meetings. 4.7.13 Input on the SkyTrain Extension Review Public comments were collected during the Review Process and a sample is reproduced verbatim below: • Ridership statistics: "where is the need, what are the biggest destinations? Cost /benefit studies need to be conducted to see if cost effective or if other options need exploring." • Safety Issues: "design of station to take into account access, be well-lit and be a good public space." • Environmental Issues: "what options were considered to improve the environment?" "Lack of environmental assessment before construction." • Station Design: "option boards are too difficult for people to grasp and visualize in the openhouse setting (need models)." • Participation: "how have you reflected feedback from the community, how will findings from the open house be integrated into plans, is this an exercise in public relations or a truly consultative process?" "If you are allowing a public process either be up front with what they can actually decide upon, or use in earnest their ideas when planning this project." "Inability of Asians and immobile elderly people to participate (many of whom are residents to be affected by the project)." "The decisions that are still open should be identified clearly so that people know what they can have input on." "Don't believe the communities impacted by the project have been informed of the plans early enough in the process." "Feel this is not genuine community participation - but token consultation to 163 identify concerns that may or may not be considered - there is not follow up for us." "Lack of public participation in choosing technologies." "Objection to project "givens", SkyTrain technology is imposed from above." "Advertise better - too short notice for the open house." "Project is good but process is useless." "Project website in desperate need of updating." "This is not a public process." "This open house only presents very superficial information and not the essential information that is required for the public to be informed." "Consultation needs to include other languages and be more "public friendly" in its presentation format." As mentioned in Chapter I, moving towards comprehensive environmental protection that embraces the notion of the environment as a value in its own right, involves a shift in personal philosophy and participation in Agency decisions affecting the environment. An essential feature of protecting the environment, as captured in the notion of transformative governance, is that ordinary people should be able to understand and to deal with new Acts of Parliament, and be involved in their realization/implementation. The more the public is informed and knowledgeable about environmental laws and regulations, their implementation, and the existing forms of and opportunities for participation, the more effective the public can be in terms of its role as guardians of the environment. What the SkyTrain Extension Project demonstrates is the absence of core elements of the public participation process and the neutralizing effect on environmental advocacy. In particular, the mystery and complexity of the participation process leaves big question marks over when and how to participate, significant language and mobility barriers impede certain group from participating, the notice requirements are essential to the public but the time limits imposed 164 are too narrow, and the non-negotiability of "project givens" defeat the very purpose of public consultation and participation. 4.7 PUBLIC CONSULTATION OVERVIEW BACKGROUNDER, JUNE - NOVEMBER 1998: ALIGNMENT & STATION LOCATION30 The Rapid Transit Project Office's public consultation program aims "to build awareness by providing information, encouraging public participation in the choice of route and station locations for rapid transit, and to receive input and collaborate on design".31 The Process intends to seek input, share information, and identify concerns by consulting in five "key" areas: (i) local government, (ii) interest groups and shareholders, (iii) neighborhoods, (iv) First Nations, and (v) the general public. 4.8.1 Local Government Rapid Transit Project Office staff participated in more than 80 meetings with local governments, municipal staff, community groups, and interest groups to review project progress, identify key issues, and review public consultation activities. Included were formal and informal meetings with mayors and councillors from Vancouver, Burnaby, Coquitlam, and New Westminster; sessions with Greater Vancouver Regional District and Greater Vancouver Transportation Authority board members and senior personnel, as well as the cities of Richmond and Port Moody; and, participation in the Union of BC Municipalities Backgrounder 98032, December 15, 1998, Rapid Transit Project Office: on file with author. Fact Sheet 98026, "Public Consultation History And Future Plans", October 1998, Rapid Transit Project 2000 Ltd: on file with author. 165 1998 Annual General Meeting. The Project Office expects to continue to consult with local governments throughout the project's planning and construction phases. 4.8.2 Interest Groups and Stakeholders The following groups have been included in meetings and presentations regarding the first phase of the SkyTrain extension: BC Automobile Association, BC Expropriation Association, BC Roadbuilders and Heavy Construction Association, BC Trucking Association, Broadway Crime Prevention Office, Burnaby Chamber of Commerce, Burnaby Seniors' Network, Burquitlam Residents' Association, Business Council of British Columbia, Cedar Cottage Neighbourhood House, Cedar Cottage Neighborhood Association, Coquitlam School Board, Fraserview Residents' Association, Lower Lougheed Residents' Association, New Westminster Chamber of Commerce, Real Estate Board of British Columbia, Retired Civil Servants of British Columbia, Sapperton-McBride Residents' Association, Society Promoting Environmental Conservation, Stoney Creek Environmental Committee, Transit Users Group, Transport 2000, Tri-Cities Chamber of Commerce, Urban Development Institute, Vancouver Airport Authority, Vancouver Board of Trade, Vancouver Electric Vehicles Association, and the Vancouver Port Corporation. 4.8.3 Neighbourhoods In July 1998, the project's Neighbourhood Consultation Program was launched. The first phase of the program looked at route, alignment, and station locations, and identified and incorporated neighbourhood issues and preferences in the evaluation of route alignment options. Choices such as building at the side or median of the road or whether or not the 166 guideway should be elevated or at grade, were included. The means to gather public input during this phase involved advertising in community newspapers, maildrops of informational newsletters, questionnaires, public information displays in high-volume areas, open houses, door-to-door and telephone interviews, and mini-workshops. Through the use of open 32 houses especially, numerous concerns have been identified, including: crime, safety and security, visual impacts, loss of privacy, noise and vibration, effects on property values. Additional consultation and studies were carried out to respond to these issues. Future neighborhood consultation phases will address station program, station design and guideway/alignment treatments, and construction planning and mitigation. The next phase of public consultation on Station Program and Design was marked by a public "Ideas Forum", held at Lougheed Mall in January 1999. The Forum lasted three weeks and presented conceptual models and storyboards for Station Program Design by architects and landscape architects. The Forum sough input and feedback from the public, and the aim of the Station Design Program is to obtain public comment to ensure that station designs fit with each neighbourhood. 4.8.4 First Nations The project area coincides with a number of First Nations communities: Kwantlen First Nation, Kwayhquitlum Nation, Musqueam Nation, New Westminster First Nation, Squamish Nation, Sto:lo Nation, Tsawassen First Nation, and Tsleil-Wauthuth First Nation. A First Nation Consultation Strategy was implemented by the Visions First Nations Planning 32 Factual Information: 11 open houses , over 3000 open house attendees, 1390 open house surveys returned; 18 mall display locations, over 31,000 mall display attendees; 3,559 interviews conducted (506 businesses, 3053 individuals, 915 door-to-door, 2644 by phone) from 10000 addresses within 167 Group from December 1998 to March 1999, and included an archaeological and impact assessment of the project, and examined opportunities for First Nations employment and economic development related to the project. 4.8.5 General public Public consultation with the general public has been conducted through various mechanisms. Market research was carried out through focus groups and public opinion surveys in early 1998, to determine public support for building more rapid transit, awareness of rapid transit issues, and views regarding technology and proposed corridors. Further polling was also conducted in 1999. Mall displays at 18 locations in the summer and fall of 1998 and spring of 1999 enabled people to speak with Rapid Transit Project Office representatives and offer their views of the project.33 The Project Office has also established a website which provides information on the project and allows the public to comment directly and request further information. The website34 is updated regularly as more information becomes available. A door-to-door census was carried out by the Angus Reid Group along the New Westminster to Lougheed Mall portion of the SkyTrain extension in September and October 1998. A total of 3,559 interviews were conducted. The Project Office also receives telephone calls from members of the public expressing concerns or requesting information. Further door-to-door consultation from Lougheed Mall to Vancouver Community College is intended throughout 1999. walking distance of corridor between Columbia Station in New Westminster and Lougheed Mall; and over 1000 information inquiries by phone, email and fax. For a sample SkyTrain Project brochure available at Mall displays, see Appendix 8. Website address is at 168 4.8.6 Responses In response to public input, 85 alignment changes, 31 station location modifications, safety and security studies, station design and operational recommendations, view analysis (input to guideway design), and noise and vibration studies (input to guideway design) have been have been implemented. 4.8 CONCLUSION The SkyTrain project illustrates that selective or non-qualitative participation adds little to the "public participation" process. The sentiment expressed by some members of the public is not very encouraging, and is reminiscent of the following lighthearted excerpt: M r Prosser said: ' Y o u were quite entitled to make any suggestions or protests at the appropriate time you know.' 'Appropriate time?' hooted Arthur. 'Appropriate time? The first I knew about it was when a workman arrived at my home yesterday. I asked him i f he'd come to clean the windows and he said no he'd come to demolish the house. He didn't tell me straight away o f course. O h no. First he wiped a couple o f windows and charged me a fiver. Then he told me.' 'But M r Dent, the plans have been available in the local planning office for the last nine months.' ' O h yes, well as soon as I heard I went straight round to see them, yesterday afternoon. Y o u hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anybody or anything.' ' But the plans were on display . . . ' ' O n display? I eventually had to go down to the cellar to find them.' 'That's the display department.' 'With a torch.' ' A h , well the lights had probably gone.' 'So had the stairs.' 'But look, you found the notice didn't you?' 'Yes, ' said Arthur, 'yes I did. It was on display in the bottom of a locked filing cabinet stuck in a 35 disused lavatory with a sign on the door saying Beware of the Leopard.' Without opportunities to express thoughts and views on the decision to use SkyTrain technology itself and the project "givens" that are precisely the main concern of the public, 169 the participation process becomes seen as "more for show" than for substance, and "the public consultation part is more for government to be able to say they did consult rather than for them to come with an open mind, ready to listen and modify their proposals if that's what people ask for". When public participation processes are seen in this token way, it is nor surprising that some of the public will feel inclined to walk away from the process. In some cases, public protest, lobbying, and public education campaigns may be seen as more effective. The resort to civil disobedience is not only a manifestation of public mistrust and dissatisfaction over the project, but it is also counterproductive to the project proponent who is certainly aware of the cost implications of delayed construction.37 D. Adams, The Hitch Hiker's Guide to the Galaxy (London: Pan Books, 1979) at 12. Unnamed source from a local community/public interest advocacy group. S. Simpson, "Burnaby residents threaten to take action over SkyTrain", The Vancouver Sun (December 15, 1999) at Bl. 170 CHAPTER V CONCLUSION 5.1 SUMMARY One significant characteristic of the natural environment is interdependence. All living things are tied together by an infinite web of linkages. All species, including humans, are dependent upon one another for their life-support.1 Events in one place are not always localized and may have physical, biological, chemical, and socio-economic impacts in other regions. Not to be overlooked is the uncertainty of knowledge surrounding the interaction between our natural and socio-economic environments. Scientific knowledge of environmental effects is not always conclusive, and conflicting opinions also exist based on different values, interests, and cognitive and behavioural processes of those involved. Managing natural resources in Canada, as in other common law jurisdictions2, has historically involved the recognition of property interests and contractual relations. Natural resources face increasing pressure from developers and conservationists, and also between various competing groups among different industries. The complexity ,of interrelated environmental, social and economic activities must also be considered. The challenge then becomes how conflicts among those with environmental interests and those with natural resource rights can be resolved, if at all. It is within this framework that the law is to operate and ideally achieve a balance of competing interests as far as possible. Currently resource management continues to be a matter of discretionary agency administration. Not 1 See supra, Chapter 1, note 22, at § 1.9 171 surprisingly, there has emerged concerns of agency accountability and legitimacy in decisions affecting the environment. One of the basic premises of this thesis is that if the law is to ensure that the human environmental interest of ecological preservation, vital to human survival and intergenerational equity, will serve a watchdog function of minimizing harmful effects of resource use, it will require the direct involvement in the decision-making process not only of affected parties, but also of concerned parties acting in the public interest. Interested groups and individuals can challenge the data upon which the proposed regulations are based, test the regulatory assumptions employed, and provide a new or different perspective. ...The public is essential in helping define the public interest through direct representations to regulators. This thesis has examined the current regime of public participation in environmental decision-making, and evaluated how parties are involved in the decision-making process through traditional mechanisms such as public consultation and hearings, as well as through mediation5 and negotiated agreements. It is proposed that the law only takes us so far in See for example, pre-Town and Country Planning Acts in New Zealand. See further, Justice D. Sheppard, Environment Court of New Zealand, "Doing Justice in Environmental Decision-Making" in Environmental Justice and Market Mechanisms Conference Papers (Auckland, March 1998), at 2. A. Hillyer et al., "Recommendations for the Proposed British Columbia Environmental Protection Act", West Coast Environmental Law Association (June 22, 1993) at 28 (on file with author). It has been said that environmental mediation is "a response to the negative attributes of the litigation model": D. Shrubsole, in R.S. Dorney and L.E. Smith, eds., "Environmental Mediation - Proceedings of a Symposium Sponsored by the Ontario Society for Environmental Management", Working Paper No. 19 (Ontario, University of Waterloo School of Urban and Regional Planning, 1985) at 21. The first documented case of environmental mediation occurred in 1973, and involved mediators Gerald Cormick and Jane McCarthy to help settle a longstanding dispute over a proposed flood control dam on the Snoqualmie River in Seattle. Cormick states, "Mediation is a voluntary process in which those involved in a dispute jointly explore and reconcile their differences. The mediator has no authority to impose a settlement. His or her strength lies in the ability to assist the parties in resolving their own differences. The mediated dispute is settled when the parties themselves reach what they consider a workable solution.": G.W. Cormick and L.K. Patton, "Environmental Mediation: Potentials and Limitations" (1977) Environmental Comment 14. In fact, the Canadian Environmental Assessment Act (sections 29-33) specifically provides for'the use of environmental mediation as part of its desire to 172 encouraging meaningful public participation where projects have a significant impact on the environment. In particular, the public consultation process has been considered with regard to the BC Transit SkyTrain Extension project. The conclusion drawn is that although the law facilitates public participation in environmental decision-making, this is not always sufficient; members of the public need to be able to take full advantage of existing and potential opportunities in order for public participation processes to be accepted as "real", and not mere exercises in public relations. 5.2 F U T U R E D I R E C T I O N S Although this paper does not advocate the complete reversal of "top-down" environmental decision-making, the success or failure of "bottom-up" approaches, such as community controlled programs or institutions seen in the United States, could have significant implications for the future of public participation. Other areas of inquiry which may prove significant include the development and impacts of participation rights; whether contained in the Charter of Rights and Freedoms, or an Environmental Bill of Rights. An entrenched Charter right to environmental quality similar to existing fundamental Charter rights is an area which has seen much less development than Environmental Bills of Rights. As British Columbia has yet to pass and Environmental Bill of Rights, direction and lessons will be gleaned from the experiences of other provinces, such as the Northwest and Yukon Territories, Quebec, Saskatchewan, Ontario, and Alberta. One point to keep in mind is that the potential for public participation in both areas will depend to some extent on the willingness of the courts to demarcate in make the environmental assessment process conducive to open decision-making and public participation. 173 some way an environmental bottom line or yardstick by which to measure the extent of public participation. Another possibility is the expansion or modification of the role of the Environmental Ombudsman, the Environmental Commissioner. In 1994, an Office of the Environmental Commissioner for Canada was appointed and created under the auspices of the federal Auditor General.6 The Commissioner's duties are to supervise and facilitate administration under the Canadian Environmental Protection Act.7 The Commissioner8 assists Ministries to prepare Statements of Environmental Values (SEVs), directs policy reviews or investigations to the proper ministry, and ensures the smooth running of the Act's participation provisions. Some limited investigative powers in the way of examining any person on oath and requiring the production of documents and other evidence from these persons, are also given in section 60. However, one wonders if the limited mandate of the Commissioner's Office belies its intention as an instrument of enhanced political accountability. For instance, the Commissioner has no clear mandate to review specific environmental decisions or investigate complaints, and its ability to review the effects of statutes, regulations, policies and programs of prescribed ministries on the environment appears limited to assessing the degree to which decision-making involving such instruments and activities considers the Ministry's SEVs. Furthermore, constraints on time and resources for fulfilling its substantive process and policy review functions may be an issue, given the significant administrative and The Commissioner carries a five year term and is appointed by the Legislative Assembly. Supra, Chapter 3, note 6. Contrast granting the court wider powers to review environmental decision-making by government, as in the United States environmental bills of rights. 174 reporting functions9 required of the Office. "In many ways, the Office appears to be intended to carry out reactive, auditing functions, as opposed to more pro-active activities."10 A wider interpretation of the Commissioner's mandate would be more consistent with models from other jurisdictions, such as New Zealand's Parliamentary Commissioner for the Environment;11 wide powers are given to investigate and enquire into environmental issues in section 16 of the New Zealand Environment Act 1986, and the broad range of matters that the Commissioner may consider are contained in section 17. For example, in relation to the handling of requests for reviews and investigations and public education responsibilities. M. Winfield, G. Ford and G. Crann, supra, chapter 3, note 55, at 19. See the Parliamentary Commissioner's empowering Act, the Environment Act:-An Act to provide for the establishment of the Office of the Parliamentary Commissioner for the Environment ...[t]o ensure that in the management of natural and physical resources, full and balanced account is taken of:-(i) The intrinsic value of ecosystems, and (ii) All values which are placed by individuals and groups on the quality of the environment; and (iii) The principles of the Treaty of Waitangi; and (iv) The sustainability of natural and physical resources; and (v) The need of future generations. Section 16: Functions and Powers -Functions of Commissioner -(1) The functions of the Commissioner shall be-ta) With the objective of maintaining and improving the quality of the environment, to review from time to time the system of agencies and processes established by the Government to manage the allocation, use, and preservation of natural and physical resources and to report the results of any review... (b) Where the Commissioner considers it necessary, to investigate the effectiveness of environmental planning and environmental management carried out by public authorities... (c) To- (i) Investigate any matter in respect of which... the Environment may be or has been adversely affected... Section 17: Matters to which regard to be given - In the performance of the Commissioner's functions the Commissioner, where the Commissioner considers it appropriate, shall have regard, in particular but not exclusively, to-(a) The maintenance and restoration of ecosystems of importance...; (b) Areas, landscapes, and structures of aesthetic, archaeological, cultural, historical, recreational, scenic, and scientific value; (c) Any ... physical or cultural resources, or interests associated with such areas, which are part of the heritage of the tangata whenua... ; (d) The effects on communities of people of [actual or proposed changes to natural and physical resources]; (e) Whether any proposals, policies, or other matters ... are likely to-175 5.3 T H E W A Y FORWARD Public participation is an important element of an open and balanced environmental assessment process. It strengthens the quality and credibility of environmental assessments. The public is an important source of local and traditional knowledge about a project's physical site and likely environmental effects. Through public participation activities, project proponents can obtain this information, better understand and respond to public concerns, and inform people about decisions. It is significant that the public is recognized in law as deserving opportunities for involvement in the decision-making process. "Public participation" means different things to many people: the utility of public participation processes depends in part on the individual interest of members of the public and what they are seeking to gain from participation, whether simply recognition, or an actual ability to influence the outcome of a decision or dispute. A variety of strategies for conflict resolution exist and may be developed in consideration of the underlying behavioural processes and nature of conflict involved. When and how much the public participates are fundamental to the value of participation as a process. Important also is the substance of the participation processes: without this, public participation becomes illusory, or likened to a "river that is a mile wide but an inch deep". It begs the question of whether public participation in Canadian environmental decision-(i) Result in or increase pollution; or ... natural hazards or hazardous substances; or ... [h]ave features, the environmental effects of which are not certain; (f) All reasonably foreseeable effects of any such proposal or policy, or other matter on the environment...; (g) Alternative means or methods of implementing or providing for any such proposal, policy, or matter ... of alternative sites. The Commissioner, who is answerable to Parliament rather than a minister, has full discretion on whether or not to investigate a complaint and has wide powers to obtain information or summon and examine on oath any person. "The Citizen's Guide, Canadian Environmental Assessment Process" (Ottawa: Ministry of Supply and Services, 1994), also online at: 176 making is "form without function". While developments in the law are instrumental to the shaping of participation opportunities and processes, now and into the future, if sustainability is to be achieved, it will also be essential that decision-makers, indeed all of us in society, change our attitudes not just about our consumption patterns, but correspondingly our roles and responsibilities as citizens and caretakers of the environment. 14 To paraphrase a famous US Architect, Louis Henry Sullivan, "Form ever follows function": see "The Tall Office Building Artistically Considered" in Lippincott's Magazine, March 1896. 177 APPENDIX I Models of Environmental Conflict "Perspectives of Environmental Conflict and Negotiations" Crowfoot and Wondolleck, eds., Environmental Disputes 178 Citizen Organizations and Environmental Conflict 11 TABLE 1.1 Three Perspectives on Environmental Conflict and Negotiations Perspective 1 Perspective 2 Perspective 3 View of environmental conflict Basic consensus that the environment and economic development are important and incompatible. Specific disputes grow out of ongoing need for adaptation, misunderstandings, and deviant behavior. Both conflicts and consensus exist among disparate interest groups. Political pluralism exists to promote and accommodate differences. Conflict is deep and pervasive in society, involving different economic groups and matters of principle. Established authorities de-emphasize and "cool out" conflict. Contending groups emphasize and escalate conflict. Preferred response to conflict Educate leaders. Problem-solving assisted by specialized courts. Legislation as supplemented by regulation and judication. Negotiation. Use of power to force compliance. Use whatever will win and enhance power. View of environmental negotiations. Supplementary tool. Collaboration to identify the common interests. Extension and refinement of long-established practice. Differences exist on how it should be institutionalized. Use as last resort. Sometimes use for delay and/or co-optation. 179 APPENDIX II British Columbia Environmental Assessment Act Process Overview British Columbia Environmental Assessment Office y 180 Figure 1: Public Input to Project Reviews Preliminary Consultation & Data Collection PUDSC Notification Public Consultation A P P L I C A T I O N T Pro|ect Committee EstabHshea Application Review Period (30 - 75 0oyi) 1 k Reject Project Pubfc ratification Draft Proiect Report Specltlcattons E fcjblc Input Specifications Review Period {15 - 30 Oav») Pubic Nottficatkxi PROJECT REPORT • Put*: Consultation Protect Report Review Period (45 - 60 Days) Reject Project PubBc Notification k-Draft Pubic Hearing Terms of Reference PU*; input Terms of Reference Review Period (30-60 Days) PUBLIC H E A R I N G Reject Project Project Approval Certificate 181 APPENDIX III Sample Notice of Application for Project Approval Certificate British Columbia Environmental Assessment Office 182 APPENDIX IV Sample Notice ofAmendments to Project for Project Approval Certificate British Columbia Environmental Assessment Office 184 APPENDIX V Sample Notice of Project Report for Project Approval Certificate British Columbia Environmental Assessment Office 186 APPENDIX VI Maps, Greater Vancouver Regional District Tourism Vancouver 188 189 o 190 APPENDIX VII SkyTrain Vehicle and Other BC Transit Technology 191 192 APPENDIX VIII Sample SkyTrain Brochure At Mall Displays Rapid Transit Project 2000 193 SttBoTTDesign First Person: jitatipn Easierjor Upoerway /Znt^r Stacey Peacock / 3 People Who Cet thtWtgrr?™. Make It You-Weed"' # Happen OLLUTI 0 N-FRE E • R E L I A B L E • F R E Q U E N T means SOMBAADIER B o m b a r d i e r Centra creates n e w jobs . Creating heal jobs and diversifying the economy are key benefits of the new Bombardier Centre for Advanced Transit Systems. The Centre will create more than 900 permanent direct and * Indirect jobs. On-site jobs will include project management systems engineering and procurement, marketing, research, develop-ment and production of SkyTrain vehicles. Indirect jobs will be created when Bombardier buys goods and services required for construction of new SkyTrain vehicles. Altogether, these jobs wiH generate more than S115 million in wages, salaries and benefits by 2003. Bombardier ansportation announces Burnaby as best choice for the Centre for Advanced Transit Systems. Construction will soon start on a state-of-the-an SkyTrain manufacturing plant in Burnaby-, bringing jobs and other economic and social benefits to B.C. Key amongst those is bolstering BC's export expansion into Pacific Rim markets Bombardier announced in mid-January that its Centre for Advanced Transit Systems would be built in Burnaby. On hand for the announcement were B.C. Finance Minister Joy MarPhail and Rapid Transit Project '2000 president Lecia Stew art. f r n p l o y l a g • t a t . - o f t h . . r t technology p o t s BC Jabs ctrt t jng .(1 y . With growth prei cures on citi.i around th . world, urhjn transit lyitemi h.vt brcomi key to »ddr. , i ing congestion. pollution and urban development SkyTrain technology is world-recognited and already operating in s.v.r.1 cities around the world. Vancouver's expanded SkyTrain wiD become a showcase for tomorrow's urban transit solutions. SkyTrain technology already operates in Kuala Lumpur and will soon run at New York's JFK International Airport ' is project furthers the common 'ioais o f uV Province of B r .u»l Bombardier." said Jacques Lapare. Bonititntier s pn-sident of Mass Transit • North America, *We are put-ting a leading-edge technology in place to meet the regions growing congestion problem, and launching a new. cumni:-e<!ge industry at the same time.' Importing this laaov.tlva technology from BC moons jobs a n d world lo.dor.hlp lo orb .a transit •y creating more than 900 direct and indiracl jobs, the Centre is . catalyst for expanding BC's export and manufacturing sectors. "We're pleased to be working with Bombardier on this key transit initiative," said MacPhail "Our new iwtnership will help British Columbia become a competitor in urban transit exports throughout the world, especially in Asian markets." • » i l * 0 « -SENSE. As an "all-in-one" facility, the Centre will be home for Sky Train manufacturing, production, research, technology develop-ment, operations and maintenance. In addition. Bombardier will use the Centre to market the region's SkyTrain system around the world focusing on meeting demand in Asia for urban transit technology. The rjO.000 sq. ft. facility, due to open in laie 1999. will be built adjacent to the existing SkyTrain operations, near Edmonds Station. Bombardier says the most important factor in making its final decision on the facility's location was access to the existing SkyTrain line, maintenance facilities and control room. c o n t i n u e d o n b a c k o a g r S * 194 P lann ing Together Key 10 •>•>•• * Route A l ignment and Stat ion Loca t ion - New Wea CCKJUITl Putru., The route of Greater Vancouver's new ! the location of new stations have been I 21-kilometre route from New Westminster's Columbia Station to Lougheed Mall to Vancouver Community College will include 11 stations, with another four planned for future expansion. The new line will serve key areas including the Lougheed and Brentwood malls, and Vancouver Community College. Your ideas and help build the (CONSULTING^) WITH YOU Your voice is making a real d i f ference in the way Greater Vancouver 's new SkyTrain line is be ing built. F o r several months. Rapid Transit Project JOOO has been asking for input, comments and advice through a massive public consultation program led by Vancouver businessperson Arthur Griffiths. "This has been the most comprehensive consultation program on rapid transit ever conducted in B.C. ." says Griffiths. "Partici-pation and interest have been absolutely terrific and the input has been invaluable. People have raised important issues that wi l l help make the new SkyTrain the most customer-friendly rapid transit system in the world." More than 40.000 people were contacted during the first phase Their participation both bolstered the work being done to build the new SkyTrain line and suggested wavs to make it better. This public consultation program is now ready to enter its second phase, following a successful first phase that asked for input on the path the new line wil l follow and the locations of the new line's stations. The second phase of consultation is asking the public what should go in and around the new SkyTrain line's stations. This process was given a boost in late January when the public got a sneak preview of how Greater Vancouver's new SkyTrain stations could be designed at a special "Ideas Fo rum" presentation a t Lougheed Mall . Sponsored by the Rapid Transit Project Office (RTPO) and the Architectural Institute of B.C., the Ideas Forum saw four architectural firms and three landscape firms present their ideas on how new SkyTrain stations can be design-ed to integrate well with, and complement the characier of neighborhoods along the route. Security consultants also contributed a number of ideas to enhance safety and security in the new stations, while L'rban Art Management submit ted ideas for station decorations. Scale models and drawings were presented to spark public interest in helping to design the new stations Everyone was encouraged to 195 Did you kn SkyTrain is: • F requent : Fully-automated SkyTrain cars can run as frequently as one-and-a-half minutes apart. _ • F a s t : SkyTrain will shave 20 minutes off the commute from Lougheed Mall to Broadway and Commercial Drive. E x p a n d a b l e : The system can grow as we need it to, by simply adding more cars. Clean : SkyTrain produces no air pollution and little noise, vibration and electromagnetic interference. T i m e l y : The first section of the SkyTrain * extension is targeted to be running by late 2000. input SkyTlrain. Ideas Forum S H I La rs * T u r n o u t -luioreds of .owe* M i i n u n f l . n -uvt attended ••HI ».jptd T r j n t i ! s.-2,t:• 20OC idea* i'urr. O" di»pu> ere ncdeit and drawings j' wnai me n e * i .ytratn stat ions ouid took Ilk* participate in upcoming station design open houses and work-shops during the second phase of public consultation for the new SkvTrain line. "Each neighbor-hood has a distinctive character. Each has a unique environment and particular esthet-ics. Each has an idea of the values its people cherish." say's Griffiths "< Hr challenge is 10 i*tic«Nirai!*' ;tt-opit in i i i * 1 -*- n e i i y i i K i r h ( M H l > in think alKiui not only wluti they want the new SkyTrain stations to look like, but the services, businesses and design fcai ures as well" ' "lnr I'llMli roliMlllaiKHi | . | U W - « l l l d i l l 1 W i l l i siiiiimi (k*sii*n. much-ways llltDlinenl treatment cnnsinirlion planning and LuMtvaiiifij. Public consultation on route alignment ensures community Input More than 40.000 people were contacted during the first phase of public consultation for Greater Vancouver's new SkyTrain line, which examined the line's alignment (vertical and horizontal position) and station locations. • More than 3,000 attended 12 neighborhood open houses • 3,600 took part in door-to-door interviews and phone canvassing in the New Westminster to Lougheed Mall corridor • 32,000 visited SkyTrain mall displays • 1.000 requested information by phone, fax and e-mail These contacts resulted in 85 changes to tne way the new line runs within its corridor, and 31 change: '.c station locations People also raised important issues that need to be aaaresseo. such as safety and security, noise, views and the effect SkyTrain will have on local traffic. All of these issues are now Demg ca'ef jlly examined Dv experts, ana the results of then investigations wV Dt mco'oo'ateC in the system's fina: design 196 Stacey Peacock and family "SkyTrain will make my life a little easier." For New Westminster resident Stacey Peacock, an extended SkyTra;n line will mean easier access to shopping, medical services and other necessities of a young parent With two young cnildren, ,r«- 'eels that SkyTrain will take the r.:-ess and difficulty out of getting around. Stacey, a stay-at-home mom, travels a couple of times a week to shop. She would like to get out more often, but with two young children and a stroller, sometimes the task is too difficult. "SkyTrain makes everything a little easier," Stacey says. "With SkyTrain, you just roll right in and put the brakes on the stroller. It's that simple." Living close to Metrotown. Stacey feels the new SkyTrain line will offer he' more shopping opportunities, sucn as visiting Lougheed and Brentwood malls for some variety Besides shopping, the new extension will help her manage her family's health. "With the little ones I go to the hospital pretty frequently for shots and other things," she says. "Having a SkyTrain line to Royal Columbian Hospital would make that much easier." Stacey also believes that the new line will bring new business to New Westminster from people who don't live in the area and find it hard to reach "I'm excited about the opportunities the new extension will give me." • P f People '- Who Make It Happen. As a SkyTrain nicrmation office', Benson Chin's most mocnar! ob s ans/,e' »~<g your nuestions. A source of information with the 91ft of gab. Benson is an important link between the public and the team building the SkyTrain extension. If you 'e looking for ar answer, -e profcaoly **as t or can cetainiy -le-c rou • no :' He ana his 'e'low nformation officers have spoken to thousands of people since the project started. "This 15 a ve/y Urge project with a lot of details." says Benson "From ooen houses "o spe^di events to gere'di r 'ofTidtion req^estj. ' " t ' r..or*njt:on line s an r c c f j n t resource for people m the Lowe r Md i n r j -Benson says that T i o s t of the auestic""* ie dno the other information officers deal with come from people who are glad the new SkyTrain line is being built and want to know more about what the service will provide Othc *rj»»3tj«jf*.tiv .jsked luestio'--jnev" the ocarcr 3* tre new 'ines stations, the route tne new line will follow, and personal safety. Have a question? 739-6985 jobs + cutting-edge technology Von cove' UijiMiii . : .lit*, riruuni; .hr * <*tiir*• > * \ | - ' . - . - | •( 1 • ri'.iii ^ ' M t n l c - ' l ->f (M-niuuHTii 1 i , : -ii r « l j.»ir> for i i r ' i sn • • mr t-uae-Thr i v f i u i ' s firM unit-r is tor "<•' \ l ; i rk II i .uv *'<<r Vu -• \ | I | . I M I « | ! M i l - •• - r-liUllllUs i,'illH»K-r*,»i. ' M i T • im- offered u V sanie |>njviniity to the Sky-Train guideway and the maintenance facility." said Lapare. 'We look forward to partif ipatine as an active member 1 i f i h t > fiunfttuni!'. L.-:II i-oniuuutiii ••< - i r . - t . i 3 V - "41 ;~ i r i i . - r - i . ,11 .\ii!> ' i i . " • . i n • • i f IJnu>n 1 < 'luint'ia. The company has also signed a facilities and procurement agreement with the B.C. govern-ment. I 'nder the agreement. Bombardier wiH invest in B.C. , including a strategy lo buy goods and services in the province. Businesses expected to benefit are those with expertise in propulsion, communications, safety monitoring equipment and transit power systems. Agreement with aomb.rdl .r Improves transit and builds an Industry •C F i n e r i e s M i n i s t e r J o y M a c P h a i l s i g n s t h . I C . - t o m o e r d i e r M e m o r a n d u m o f U n d e r s t a n d i n g w h i l e p r e m i e r G l e n C l a r k . BorrvMrrSer Transoortanop p r e s i d e n t s n d ZOO ittnivts - e o ' j n c j n d *~?0 m » * i d « n l . -1 '.".-Aart "The facilities and procurement agreement underlines the commitment that Bombardier is making to develop suppliers and a business base in B . C . , " said MacPha i l . "Our partnership with Bombardier wi l l offer lucrative opportunit ies for many B . C . businesses n o w and in the long term." Benson at work at an information . display at Lougheed Mall Special Commission delivers report The Special ( onirnission reviewing ihe e in i i ' i i imen ia l impacts of Greater Vancouver* SkyTrain extension .lave accolades and aihice to public consultation and planning work being done J A copy of the interim report is available J on the Special Commission's website • w l XK 1 % Your input counts! Building a project as large as Greater Vancouver's SkyTrain extension Is a hug* challenge. It relies on input and advice from everyone who may benefit from the new line, and from those who have concerns about It. If you would like to stay current by receiving future updates on the SkyTrain extension project, please mail/fax this form: Name: Address. City: Postal Code: Telephone: f mm --T I . • • sm •Scers> I would like more information on the following subjects (check all that apply): Environmental management f^ ) Bombardier @ Traffic and the environment ^ SkyTrain technology Q Public consultation Other Are you a current transit user? Q yes Q no RapidTransit Project2000 term i;_ia 197 EES K £ 3 BIBLIOGRAPHY BOOKS: D. Adams, The Hitch Hiker's Guide to the Galaxy (London: Pan Books, 1979). D. Amy, The Politics of Environmental Mediation, (New York: Columbia University Press, 1987). Anger Management in Legal Disputes (Vancouver: Continuing Legal Education Society of BC, April 30-May 1 1998). L.S. Bacow & M. Wheeler, Environmental Dispute Resolution (New York: Plenum Press, 1984). G. Bingham, Resolving Environmental Disputes - A Decade of Experience (Washington, DC: The Conservation Foundation, 1986). Black's Law Dictionary 6tn ed. (Minnesota: West Publishing Company, 1990). W. Blackburn & W. 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Poisner, "Essays: A Civic Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation" (1996) 26 Environmental Law 53. N.A.F. Popovic, "The Right to Participate in Decisions That Affect the Environment" (1993) 10 Pace Environmental Law Review 683. B.J. Preston, "Judicial Review in Environmental Cases" (1993) 10 Australian Bar Review 146. S. Rigney, "The Role of Procedural Fairness and Ultra Vires in the Judicial Review of Environmental Disputes" (1993) Environmental and Planning Law Journal 136. S. Rigney, "The Justiciability of Environmental Administrative Action" (1994) 10 Environmental and Planning Law Journal 61. D. Robinson, "Public Participation in Environmental Decision Making" (1993) Environmental and Planning Law Journal 320. D. Robinson, "The Environmental Defender's Office NSW, 1985 - 1995" (1996) 13 Environmental and Planning Law Journal 155. B. Sadler, "Mediation Provisions and Options in Canadian Environmental Assessment" (1993) 13 Environmental Impact Assessment Review 31'5. B. Sadler, "Environmental Conflict Resolution in Canada" (1986) Resolve 1. V.L. Scharf, "Environmental Dispute Resolution" (1997-1998) 4:5 National Institute for Dispute Resolution News 1. Justice D. Sheppard, "Doing Justice in Environmental Decision-Making" in Environmental Justice and Market Mechanisms Conference Papers (Auckland: March 1998). D.K. Slone, "The Michigan Environmental Protection Act: Bringing Citizen-Initiated Environmental Suits into the 1980s" (1985) 12 Ecology Law Quarterly 271. C. Stone, "Should Tress Have Standing?" (1972) 45 Southern California Law Review 450. 205 L. Susskind, "Environmental Mediation and the Accountability Problem" (1981) 6 Vermont Law Review 1. M. Valiante & W.A. 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Webb, "Taking Matters into their Own Hands: The Role of Citizens in Canadian Pollution Control Enforcement" (1991) McGill Law Journal 770. websi tes: British Columbia Environmental Assessment Office, at: The Citizen's Guide, at: http: // www. ceaa. gc. ca/publications_e/citizens/guide_e. htm Environmental Commissioner of Ontario, at: Monitoring / Follow-up Annotated Bibliography, at: http: //www. ceaa. gc. ca/publications_e/monitor/monitor. htm Ontario EBR Home Page, at: "Public Participation for Environmental Protection", at: "Proposals for Improving the Implementation and Enforcement of EU Environmental Law", at: Rapid Transit Project Office website, at: SkyTrain Extension Review, Special Commission Terms of Reference, at: Statistics Canada, at: 206 "The environmental balance", at: 1 .cfm Tourism Vancouver, at: Vancouver Community Network, at: INTERNATIONAL LAW DOCUMENTS: "The Stockholm Declaration on the Human Environment", Report of the United Nations Conference on the Human Environment (1972) 11 International Legal Materials 1416. "The Brundtland Report", World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987). "The Rio Declaration", United Nations Conference on Environment and Development, Agenda 21: Programme of action for sustainable development (New York: United Nations Department of Public Information, 1993). INTERVIEWS: John Mathers, Canadian Environmental Assessment Agency, Vancouver BC, May 1999. Chris Rolfe, West Coast Environmental Law Association, Vancouver BC, January 2000. Glenn Sigurdson, Mediator, The CSE Group, Vancouver BC, June 1999. Deming Smith, Better Environmentally Sound Transportation, Vancouver BC, October 1999. 207 


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