MASTHEAD-2

While it has become popular with politicians, the concept of requiring 'social licence' for resource projects is entirely at odds with the rule of law.

By Paul Cassidy, Monika Sawicka and Leah Whitworth, Aug. 31, 2016

INTRODUCTION

As protests mount against proposed resource projects across the country, it has become clear that some Canadians simply won’t respect any environmental assessment process which might produce a result they don’t like. This is of particular relevance to the continuing debate about the concept of “social licence”, and its potential impact on the rule of law in Canada.

Enshrined in the preamble of the Charter, the rule of law is a cornerstone of the Canadian legal system, a constitutional principle that all citizens, including government officials, are governed by the same laws. The principle mandates the existence of general legal rules that are created without preference for a specific case, and that these rules are applied without influence from personal interest or individual conceptions of justice. In the context of government decision-making, the rule of law mandates government action to be based in legal authority and prohibits upholding an irrational decision[1]. Decisions are not irrational when they are reasonable, and reasonableness is demonstrated through defensibility in terms of fact and law.

As a means of bringing credibility to environmental assessments, the current Federal Government has signalled its intent to reform the Canadian Environmental Assessment Act (the “CEAA, 2012”) to include a mandatory “social licence” requirement. The term “social licence” refers to community acceptance and approval of major development projects[2], and was used throughout the 2015 federal Liberal Party’s campaign platform. In a speech to the Calgary Petroleum Club in October of 2013, Prime Minister Justin Trudeau stated, “[s]ocial licence is more important than ever.… Governments may be able to issue permits, but only communities can grant permission.”

Decisions are not irrational when they are reasonable, and reasonableness is demonstrated through defensibility in terms of fact and law.

While public opinion has a place in environmental assessment, it should not serve as the stamp of approval, condition precedent, or a superseding consideration for a minister’s decision under the law. Procedurally, “social licence” is plagued by personal interest, inconsistency, and unpredictability. Thus, amending the CEAA, 2012 to include a “social licence” requirement would be a violation of the rule of law.

MINISTERS MUST CONSIDER ALL FACTORS RELEVANT TO A DISCRETIONARY DECISION

A requirement that project proponents obtain “social licence” before receiving government approval allows one factor to be determinative in the ministerial decision-making process. When one factor is determinative, other relevant factors that must be considered are effectively overridden and ignored. If a minister has failed to consider a relevant factor, upon judicial review the court will deem the decision to be “unreasonable”. As the rule of law does not permit upholding an irrational decision, the decision will be quashed and sent back to the minister for reconsideration.[3]

Procedurally, “social licence” is plagued by personal interest, inconsistency, and unpredictability.

In the case of Chamberlain,[4] a school board passed a resolution on the sole basis of parental opinion to ban educational materials depicting same-sex couples. Based on the school board’s failure to consider factors relevant to the decision, the Supreme Court of Canada held the decision to be unreasonable and sent the matter back for reconsideration. Writing for the majority, Chief Justice Beverley McLachlin noted that while parent views are important, they cannot override considerations of diversity and tolerance as mandated by the statutory context.

In the context of environmental assessment, there are factors in addition to public opinion that ministers must consider in deciding whether to approve a development project. Both the text and purpose of the CEAA, 2012 mandate ministers to consider assessment reports and accompanying recommendations. While the Minister retains discretion to allocate weight given to each factor in the balancing process, they cannot ignore environmental (scientific), economic, and additional social concerns in their entirety. If it were demonstrated that a project would bring economic benefit and pose low environmental risk, but was disallowed because the public withheld “social licence”, the minister’s ultimate decision to deny approval would be unreasonable. Subsequently, it would be contrary to the rule of law for the courts to uphold such a decision.

CONSIDERATION OF PUBLIC INTEREST IS NOT A PUBLIC VETO

Due to the defining characteristics of public opinion, amending the CEAA, 2012 to allow the presence of “social licence” to be determinative or unduly considered in the decision-making process would be an affront to the rule of law. Public opinion is a realm historically dominated by the opposition and frequently only the loudest voices count. In the context of development, public opinion is riddled with personal interest, framed by individualized conceptions of justice, and influenced by the “Not-In-My-Backyard syndrome (“NIMBYism”)[5]. As the rule of law forbids these personal interests and considerations to wade into the application of the law, it would be inconsistent with this constitutional principle for “social licence” to be determinative of a project’s approval.

Consideration of public opinion at various stages of the environmental assessment process is warranted and prescribed by the CEAA, 2012. However, the Canadian courts have noted the purpose of public opinion is to serve as a mechanism for bringing government attention to factors that will ultimately be considered by democratically elected officials. This also applies to the consideration of public interest, as the Courts have noted public interest is not based exclusively on public desire, opinions, or enthusiasm[6]. Instead, the term has been interpreted as including the broad economic and social considerations relevant to the statutory context[7]. The only context where public opinion should be determinative is a referendum or plebiscite, as there are procedural safeguards that accompany both of these voting mechanisms to ensure they are carried out in line with Canadian democratic values.

COST OF PROCEDURAL REMEDIES OUTWEIGH NOTIONAL BENEFIT

If safeguards were implemented to bring the “social licence” procedure into alignment with the rule of law and democracy, the cost and inefficiency would significantly outweigh any claimed notional benefit. The method used by communities to withhold “social licence” often comes in the form of public protest and disruptive behaviour. As inferred by one commentator, the result is an application of the law by a potentially unbridled opposition: nothing short of “mob rule”. Only the safeguards utilized in a referendum or plebiscite would suffice as a remedy to ensure every person in a defined population is entitled to equal input. However, both the cost and procedural inefficiencies associated with this process are vast.

Citizens have the right to participate in the Canadian political process as voters and candidates, but not as individual decision-makers.

The infrequency of referendums and Canada’s tradition of a representative democracy illustrate these concerns. The efficiency and transparency of the decision-making process is heightened when authority is centralized, resulting in a stronger ability to scrutinize decisions and hold government officials accountable under the law. To allow an undefined and unelected population to decide individual matters is non-transparent and anti-democratic. Citizens have the right to participate in the Canadian political process as voters and candidates, but not as individual decision-makers.

CONCLUSION

Credibility is integral to the legitimacy of the environmental assessment process and all other facets of Canadian law. Credibility is fostered when democratically-elected officials exercise decision-making powers transparently and pursuant to prescribed statutory authority. A transparent process allows the public to monitor and scrutinize government decision-making, and, when necessary, apply to an impartial court for judicial review.

Credibility is not fostered through “social licence”. Rather, the requirement for “social licence” endorses unpredictability, partiality, and a violation of the rule of law.

Paul Cassidy and Monika Sawicka practice environmental law in Vancouver. Leah Whitworth is a law student. The views above are expressed solely on the author’s own behalf. A condensed version of this article appeared earlier in the Lawyers Weekly.

[1] Dunsmuir v New Brunswick, 2008 SCC 9 at para 42, 1 SCR 190 [Dunsmuir].

[2] John Colton et al, “Energy Projects, Social Licence, Public Acceptance and Regulatory Systems in Canada: A White Paper” (2016) 9:20 SPP Research Papers at 9-23.

[3] Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at para 73, 174 DLR (4th) 193 [Baker].

[4] Chamberlain v Surrey School District, 2002 SCC 86 at para 33, 4 SCR 710 [Chamberlain].

[5] Colton, supra note 7 at 17, 28 (NIMBYism refers to citizens supporting development projects as long as they are not near their own residence, and is particularly problematic for renewable energy, such as wind farms and hydroelectric dams, as these initiatives involve elevated noise and altered scenery).

[6] Tchaperoff v Victoria (City) (No. 2), [1948] 2 WWR 924 at para 2 (BCSC).

[7] R v Zundel, [1992] 2 SCR 731 at para 134, 95 DLR (4th) 202 (SCC).