10 Steps to Anticipate Citizens’ Challenges to New Developments
Published:
7 décembre 2016
Author(s):
Updated February 7, 2024.
We live in a world of change. New ideas and new industries are rapidly developing and the list keeps growing: tidal devices, wind turbines, hydrogen, fracking, aquaculture, gas storage, drones, redevelopment or elimination of dams, and more. Each involves new developments that could (and likely will) impact the status quo. Federal, provincial and municipal governments are facing the challenge of regulating these new developments. And citizens and citizen groups are increasingly voicing opposition to these new developments by challenging government decisions and the processes leading to them in courts and before regulatory tribunals.
Technically, project proponents aren’t under a legal duty to consult except in specific circumstances: there is a constitutional requirement to consultation Indigenous groups whose Aboriginal rights are affected; specific statutes could impose duties to consult other groups; where governments impose consultation conditions on a project proponent; and where governments have made promises of consultation, courts in some cases have recognized duties of some reasonable consultation. Practically, however, public consultation often does occur, whether at the behest of project proponents or the relevant authority making the decision. But that doesn’t end matters: unhappy citizens and citizens’ groups, whether consulted or not, can still turn to the courts or regulatory tribunals to challenge the ultimate government decision. These challenges are typically via:
Judicial Review & (in certain cases) Statutory Appeals. These are processes in which a party opposes a decision of a government authorities, such as licensing, granting of permits with conditions, and so on, and asks a court asked to quash the decision.
Stays of Proceeding & Injunctions. These are processes in which a party asks a court to hold developments up pending applications for judicial review and statutory appeals. In some cases, they ask for permanent injunctions to end proposed new developments altogether.
Examples of such challenges include:
Wind Turbines. In its January 2024 decision in Foley Lake-Wentworth Valley v. NS Minister of Environment, the N.S. Supreme Court denied the Folley Lake-Wentworth Valley Environmental Preservation Society’s request via a judicial review that it quash the N.S. Minister of Environment’s decision conditionally approving a windfarm development. The Court found the Minister’s decision was reasonable and considered all factors they were required to consider – the applicable standard of judicial review.
Land Development. In its July 2021 decision in Bancroft v. Nova Scotia (Lands and Forestry), the N.S. Supreme Court denied an individual and the Eastern Shore Forest Watch Association’s request via a judicial review that it quash the N.S. Treasury and Policy Board’s decision to remove provincial Crown land from the N.S. Parks and Protected Areas Plan for potential sale to a land developer. The Court found there is no “public interest doctrine” in Canada thus the Crown owes no general duty of procedural fairness the public at large and the Board’s decision was both within its statutory authority and was reasonable – despite noting the Minister “misrepresented” on the Plan that the land was a designated provincial park and withdrew it from the Plan without informing the public.
Tidal Devices. In its 2016 decision in Bay of Fundy Inshore Fisherman’s Association v. Nova Scotia (Environment), the N.S. Supreme Court denied the Fishermen’s Association’s request for a temporary stay of proceedings to prevent the deployment of certain tidal devices in Nova Scotia’s Minas Basin. The Court found the Association failed to prove irreparable harm would result if deployment of the experimental tidal devices were allowed to proceed immediately.
Consider these 10 steps so you’re prepared for citizen challenges to your proposed development.
1. Hope for the Best & Plan for the Worst
Individual citizens or citizens’ groups won’t necessarily challenge your proposed development. But it’s safe to assume they will and to build that expectation into project planning.
2. Factor in the Cost
Plan for and budget accordingly for the time and the out-of-pocket expenses that will be necessary to meet the challenges you anticipate.
3. Be Realistic
In a ‘clear eyed’ manner, ask who your proposed development might affect and how. Anticipate their concerns.
4. Have a Game Plan
Have a plan for how you will address the anticipated concerns. Hire the expertise necessary early in the process. Consider seeking public relations advice in certain circumstances. And consider hiring legal counsel early in the development process; they can assist in identifying areas susceptible to challenge, in dealing with regulatory authorities and in representing your interests if legal challenges are ultimately launched.
5. Find the Leader
Identify the influential leaders among the citizens and citizen groups you anticipate could raise concerns.
6. Reach Out
Communicate with the identified citizens and citizen group leaders as early soon as possible – but only when you’re properly prepared to do so.
7. Be Honest
Ensure your communication is constant, transparent and sincere.
8. Silence Isn’t Always Golden
Respond to media reports, including incorrect statements in the public domain, when appropriate. Do not abandon the field to others – and do not assume your silence will suffice.
9. Engage With Regulators
Engage fully with the applicable regulatory authorities. Provide complete responses in writing when requested to do so. Document and record interactions with the various regulatory authorities. And remember that if there are eventually legal challenges, all communications will be subject to disclosure.
10. Be Professional
Maintain a professional and respectful relationship with the regulatory authorities and the citizens or citizen groups at all times, even if things get heated. They are not the ‘enemy’ and responding in an inappropriate manner won’t advance your cause – and could even harm it.
Please contact your McInnes Cooper lawyer or any member of the Energy & Natural Resources Team @ McInnes Cooper to discuss how we can help you anticipate and plan for citizen challenges to your development project.
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