Published In

Dalhousie Law Journal

Document Type

Article

Publication Date

2020

Subjects

environmental law, environmental assessment, deliberative democracy, rule of law, public law, Aboriginal law, duty to consult

Abstract

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further argues that these three public law frames share features of deliberative decision making that can and should inform the implementation and interpretation of new design features in British Columbia and Canada’s reformed EA legislation.

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