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Keeping It Flowing: 10 Steps to Anticipate Citizens’ Challenges to New Developments

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December 7, 2016

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Recently, the Nova Scotia Supreme Court denied a motion for a temporary stay of proceedings to prevent the deployment of certain tidal devices in Nova Scotia’s Minas Basin. In Bay of Fundy Inshore Fisherman’s Association v. Nova Scotia (Environment), the court held the Fishermen’s Association, which had sought the stay, had failed to prove that irreparable harm would result if deployment of the experimental tidal devices were allowed to proceed immediately. McInnes Cooper’s Doug Tupper, QC and Harvey Morrison QC represented the successful tidal power proponent.

We are living in a world of increasing change, with the rapid development of new ideas and proposed new industries. The list of examples keeps growing: tidal devices, wind turbines, fracking, aquaculture, gas storage, drones, redevelopment or elimination of dams, and more. Each of these involve new developments that could impact the status quo. Federal, provincial and municipal governments are making decisions on how the development of these changes should be regulated. Citizens and citizen groups who oppose the proposed developments are increasingly challenging those decisions and the processes leading to them.

There is a constitutional requirement for a duty to consult in the Aboriginal context. In specific statutes, there may be some duties to consult other groups. Where governments have made promises of consultation, courts in some cases have recognized duties of some reasonable consultation.

Today’s government decisions are typically being challenged by judicial review, and in certain cases, statutory appeals, and by stays of proceeding and injunctions. Judicial reviews and statutory appeals are processes whereby the decisions of government authorities, such as licensing, granting of permits with conditions, and so on, are being opposed and courts are being asked to quash those decisions. Stays of proceedings and injunctions are being requested in the courts to hold developments up pending applications for judicial review and statutory appeals, and in some cases, permanent injunctions are being requested to end proposed new developments.

Here are 10 steps for developers to consider to be prepared for these anticipated citizen challenges.

  1. Assume the proposed development will be challenged, and build that expectation into the planning.
  1. Plan and budget accordingly for all the time and expense necessary to meet the anticipated challenges.
  1. In a ‘clear eyed’ manner, ask who might be affected and how. Anticipate the concerns of those who may be affected. Be realistic.
  1. Plan how to address these anticipated concerns. Hire the expertise that will be 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 made.
  1. Identify the influential leaders among the citizens, and citizen groups, probably affected.
  1. Communicate with those citizens and the citizen groups as soon as possible, but only when properly prepared to do so.
  1. The communication should be constant, transparent, and sincere.
  1. Respond to articles, including incorrect statements in the public domain, when appropriate. Do not abandon the field to others, and do not assume your silence will suffice.
  1. 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. Remember that all communications will be subject to later disclosure, if there are challenges.
  1. Maintain a professional and respectful relationship with the regulatory authorities, at all times. They are not the ‘enemy’.

Please contact your McInnes Cooper lawyer or any member of the Energy & Natural Resources Team @ McInnes Cooper to discuss this topic or any other legal issue

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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