Public participation in Canadian environmental decision-making : form without function?
University of British Columbia
Master of Laws - LLM
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 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.
Dispute resolution (Law); Dispute resolution (Law) -- British Columbia; Environmental mediation; Environmental policy -- British Columbia -- Citizen participation
Law, Peter A. Allard School of