Writing in the Globe and Mail, MLI Managing Director Brian Lee Crowley questions the frequently cited requirement for companies to have a "social licence" to operate. He writes that the term is either "meaningless or a polite term for mob rule". Crowley explains that while there no forms to fill out for such a licence and no appeal process if one was denied such a thing, genuine reviews of activities such as mining or pipeline building should be based on clear rules that treat all parties fairly. Crowley writes: "The proponents of 'social licence', however, sneeringly dismiss this as mere legalism. According to them, some abstract entity called 'society' must be satisfied or else it is illegitimate to build the mine or the pipeline or the plant". Crowley argues that this must never be the basis "on which civilized societies make decisions".

Brian Lee Crowley, May 2, 2014

The need for "social licence" before major development projects can proceed seems increasingly accepted as self-evident despite the fact that it is either meaningless or a polite term for mob rule.

Wherever there is organised opposition to new pipelines, mines, railroads, manufacturing plants or tree cutting, to mention just a few examples, the opponents repeat the mantra that such projects must obtain social licence or else they must not be allowed.

No one, however, seems to be able to answer a few basic questions about the need for such licence.

What, for instance, is the address to which you need to write to obtain it? What form must be used? Who are the authorities entitled to decide if your application meets the rules and to whom are they accountable? In fact, what are the rules? What are the procedures followed in determining if you satisfy them? What appeal procedures exist if a project proponent feels their project has not been fairly assessed?

These are not silly questions. They go right to the heart of how a society that lives under the rule of law operates.

The very vagueness of the term social licence means we cannot know what the rules are, when you're in compliance or when you've still got work to do. And project opponents like that vagueness just fine because it gives them unilateral authority to claim that the need for social licence has not been met. Who can prove them wrong since no one knows the tests that must be satisfied?

Change always creates winners and losers. That is why we hedge economic development around with many restrictions and requirements, including the need to consult and compensate people whose legitimate interests may be damaged, including, properly, Aboriginal peoples. We must minimize any unavoidable harms to the greatest extent possible. But we have to balance the harm created against the benefits that development may create for others in terms of jobs, business and investment and opportunity.

When the benefit outweighs the costs, every society must have ways to allow a decision to be made to proceed, even in the face of opposition. But we don't just allow those who benefit to ride roughshod over their opponents.

In a civilized society we create numerous institutions that are domiciled at known addresses that are given specific authority to examine impartially the issues that are raised according to known rules, outfits like the National Energy Board (NEB) or various environmental assessment agencies. Those organisations apply laws they have not themselves made, but that are determined by legislators. These boards and commissions are accountable to the governments that appoint them as well as to the courts, to whom aggrieved parties may appeal when they think the rules have been broken. The legislators who pass the laws creating these agencies must submit themselves periodically to the verdict of the voters. The rules generally require public consultations of some kind and compensation for damaged interests. The NEB recently granted a permit to the Northern Gateway pipeline, subject to 209 conditions designed to respond to rising expectations around the stringency of approvals for such major developments.

It is under this painstakingly built up institutional edifice that many of the great nation-building decisions of Canada have occurred in the teeth of opposition. The building of canals, the railways, the first pan-Canadian pipelines, highways and more. Sometimes mistakes are made and there are consequences, such as the way the great Pipeline Debate sowed the seeds of the defeat of the St. Laurent government in the 1950s. We are always revising the rules as we learn more about public expectations, innovative technologies, risks and opportunities. In other words these are the procedures by which our society has decided such painful but necessary decisions shall be made, both because they make progress possible and they treat all the parties fairly.  If this is "social licence," who can object?

The proponents of "social licence", however, sneeringly dismiss this as mere legalism. According to them, some abstract entity called "society" must be satisfied or else it is illegitimate to build the mine or the pipeline or the plant.

What they really mean is that change must be approved by its opponents who decide whether "social licence" has been achieved, while its absence is documented by angry media releases or hand-lettered signs waved on the evening news. "Social licence" ought properly to be called "opponents' permission". And a moment's thought reveals why such open-ended, undefined, biased and unaccountable tests can never be the basis on which civilized societies make such decisions.

Brian Lee Crowley (twitter.com/brianleecrowley) is the Managing Director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.


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