1. Environmental Dispute Resolution The Chuck Norris Approach

2. What Is Environmental Dispute Resolution and Why Is It Important?

3. What is Environmental Dispute Resolution (EDR)?  EDR is the shift we are seeing in natural resource management decision making processes away from command and control methods to a less authoritarian form of conflict resolution  Unlike traditional methods that often end in litigation in which a judge or jury makes the final decision EDR techniques use various forms of assisted negotiation to help parties reach a mutually satisfactory agreement on their own terms  With the exception of binding arbitration all EDR processes are based on the idea of negotiation that allows for a give-and-take among disputants who want to find a solution to a common problem

4. Why is EDR Important?  EDR is an important deliberative process that allows everyone a voice. The “round table” approach often results in a more balanced decision that benefits not only the stakeholders but often the natural well being of the land as well  It is also important to bring together on a consistent basis groups with differing agendas as these meetings will often result in a broadening of their respective horizons as they are forced to take into consideration the importance of other viewpoints

5. What defines an environmental conflict?  Environmental conflicts exist when there are ongoing differences among parties concerning values and behavior as they relate to the environment, natural resources, and public lands  These conflicts are usually disputed among multiple parties who are engaged in a decision making process and disagree about one or more issues traceable to an action or policy with potential environmental impacts

6. Where did EDR find its roots?  Environmental Dispute Resolution as a practiced technique evolved from a program initiated in the United States called Alternative Dispute Resolution (ADR) that utilizes mediators working in community mediation centers, institutionalized programs in courts, public agencies, nonprofit organizations, and corporations  In no field have the application of ADR techniques been more pronounced than in the field of environmental decision making

7. The Canadian Approach: The Dispute Resolution Office (DRO)  The Ministry of Attorney General established the Dispute Resolution Office (DRO) in 1996 with a view to developing and implementing the widest possible range of dispute resolution options in the court system and in government generally.  To this end, the DRO provides advice and information, develops dispute resolution policy and programs, conducts research into dispute resolution-related issues, and acts as a liaison between dispute resolution resources both inside and outside of government.  The DRO exists to help people use mediation and other dispute resolution processes better and more often.

8. What types of conflicts are appropriate for EDR?  Environmental disputes can be classified as upstream or downstream  Upstream conflicts are those involving planning or policymaking such as the implementation of governmental policy at the national, provincial, or local level  Downstream conflicts are those involving compliance and enforcement such as site specific disputes involving ways that lands are used, how natural resources are allocated or distributed, and where industrial or other large facilities are sited, etc…  Therefore the context of an environmental dispute is determined by whether it is upstream or downstream or whether it is at the policy level or whether it is site specific

9. When Is EDR Most Helpful?  Each participant views the outcome as very important  The issue is relatively clear  The relevant laws are flexible enough to permit a negotiated settlement  EDR is started at an early stage of the conflict before going to public hearings  The actual decision makers are willing to participate or to designate representatives  There is no inherent danger to the participants’ safety

10. When Is EDR Least Helpful?  Precedent setting is important  Participants do not recognize the other side’s rights  The party providing financial support insists on complete control over the process  The process is being used as a means to delay real action or to create an illusion that something is being done

11. The Consensus Process

12.  A consensus process is one of coming to a communally acceptable agreement through group participation in formulating the outcome. Consensus processes give a voice to all participants and allow parties to craft enduring outcomes that reflect the interests of everyone at the table.

13. Guiding Principles for Consensus  People need a reason to participate in the process The parties should have a common concern and believe that a consensus process offers the best opportunity for addressing it. This belief requires an informed understanding of consensus processes and a realistic view of available alternatives The parties should have a common concern and believe that a consensus process offers the best opportunity for addressing it. This belief requires an informed understanding of consensus processes and a realistic view of available alternatives  All parties with a significant interest in the issues should be involved in the consensus process Care needs to be taken to identify and involve all parties with a significant interest in the outcome. This includes those parties affected by any agreement that may be reached, those needed to successfully implement it, or who could undermine it if not included in the process. Care needs to be taken to identify and involve all parties with a significant interest in the outcome. This includes those parties affected by any agreement that may be reached, those needed to successfully implement it, or who could undermine it if not included in the process.  The parties who are affected or interested participate voluntarily The strength of a consensus process flows from its voluntary nature. All parties must be supportive of the process and willing to work to invest the time necessary to make it work. The strength of a consensus process flows from its voluntary nature. All parties must be supportive of the process and willing to work to invest the time necessary to make it work.  The parties design the consensus process All parties must have an equal opportunity to participate in designing the process. There is no "single" consensus approach. All parties must have an equal opportunity to participate in designing the process. There is no "single" consensus approach.  Flexibility should be designed into the process It is impossible to anticipate everything in a consensus process. By designing flexibility into the process, participants can anticipate and better handle change when it faces them. It is impossible to anticipate everything in a consensus process. By designing flexibility into the process, participants can anticipate and better handle change when it faces them.

14. Guiding Principles for Consensus Cont… All parties have equal access to relevant information and the opportunity to participate effectively throughout the process All parties have equal access to relevant information and the opportunity to participate effectively throughout the process All parties must be able to participate effectively in the consensus process. Unless the process is open, fair and equitable, agreement may not be reached and, if reached, may not last.  Acceptance of the diverse values, interests, and knowledge of the parties involved in the consensus process is essential A consensus process affords an opportunity for all participants to better understand one another’s diverse values, interests, and knowledge. This increased understanding fosters trust and openness which invaluably assists the participants to move beyond bargaining over positions to explore their underlying interests and needs. A consensus process affords an opportunity for all participants to better understand one another’s diverse values, interests, and knowledge. This increased understanding fosters trust and openness which invaluably assists the participants to move beyond bargaining over positions to explore their underlying interests and needs.  The participants are accountable both to their constituencies and to the process that they have agreed to establish It is important that the participants representing groups or organizations effectively speak for the interests they represent. Mechanisms and resources for timely feedback and reporting to constituencies are crucial and need to be established. This builds understanding and commitment among the constituencies and minimizes surprises. It is important that the participants representing groups or organizations effectively speak for the interests they represent. Mechanisms and resources for timely feedback and reporting to constituencies are crucial and need to be established. This builds understanding and commitment among the constituencies and minimizes surprises.  Realistic deadlines are necessary throughout the process Clear and reasonable time limits for working towards a conclusion and reporting on results should be established. Such milestones bring a focus to the process, marshal key resources, and make progress towards consensus. Clear and reasonable time limits for working towards a conclusion and reporting on results should be established. Such milestones bring a focus to the process, marshal key resources, and make progress towards consensus.  Commitment to implementation and effective monitoring are essential parts of any agreement Parties must be satisfied that their agreements will be implemented. As a result, all parties should discuss the goals of the process and how results will be handled. Clarifying a commitment to implementing the outcome of the process is essential. Parties must be satisfied that their agreements will be implemented. As a result, all parties should discuss the goals of the process and how results will be handled. Clarifying a commitment to implementing the outcome of the process is essential.

15. The Pros and Cons of Environmental Dispute Resolution?

16. What are the Pros of the EDR processes?  EDR stands in contrast to the traditionally adversarial methods of dispute resolution especially litigation  Advocates of EDR argue that handling of environmental conflicts at the legislative level has several key faults that lead to the wrong solution It is difficult for all of the interests affected by environmental decisions to be heard It is difficult for all of the interests affected by environmental decisions to be heard Many environmental interest groups cannot participate effectively in the legislative arena because they lack adequate financial resources Many environmental interest groups cannot participate effectively in the legislative arena because they lack adequate financial resources The process of litigation is extremely time consuming often taking months for cases to come to trial and when accounting for appeals the entire process can take years The process of litigation is extremely time consuming often taking months for cases to come to trial and when accounting for appeals the entire process can take years

17. What are the Pros of the EDR processes cont…  Advocates also suggest that the informal negotiation techniques have several advantages There is less risk for the parties than those associated with the uncertainty of win-all or lose-all litigation There is less risk for the parties than those associated with the uncertainty of win-all or lose-all litigation There is a reduction in court costs as well as a reduction in the time spent on the dispute There is a reduction in court costs as well as a reduction in the time spent on the dispute There is an increase in the efficiency of the outcome so that all disputants or stakeholders take something away from the table There is an increase in the efficiency of the outcome so that all disputants or stakeholders take something away from the table There is an increased likelihood of achieving a stable agreement There is an increased likelihood of achieving a stable agreement

18. What are the Pros of the EDR processes cont…  Advocates also suggest that full participation by all of the stakeholders promotes effective negotiation and is a key element in producing better and more equitable environmental decisions  They suggest that when all parties are at the table they have a better chance of raising all the relevant issues and of situating themselves to make more efficient tradeoffs, produce more stable outcomes, and reach decisions that effectively address the nature of the dispute in question

19. What are the Cons of the EDR process?  Critics of EDR challenge it on many fronts including… That the image of EDR is an exaggerated one and that negotiation sessions are not all “lovey dovey” and can be just as adversarial and combative as legislation That the image of EDR is an exaggerated one and that negotiation sessions are not all “lovey dovey” and can be just as adversarial and combative as legislation That comparing EDR with litigation in terms of time is misguided as most disputes never make it to court That comparing EDR with litigation in terms of time is misguided as most disputes never make it to court There is no proof that EDR is faster or better in terms of the quality of the decision There is no proof that EDR is faster or better in terms of the quality of the decision Depending on the case EDR can be just as expensive as going to court Depending on the case EDR can be just as expensive as going to court Mediators may “reframe” the issues for disputants and ultimately distort the issues Mediators may “reframe” the issues for disputants and ultimately distort the issues EDR can be no fairer than the larger political context in which the dispute takes place as much of politics is about power struggles and EDR cannot solve a festering political issue EDR can be no fairer than the larger political context in which the dispute takes place as much of politics is about power struggles and EDR cannot solve a festering political issue

20. Conspiracy Theory…  One of the most successful attacks on EDR has come from environmental groups who claim that EDR is a form of political control that exploits weaker political groups who are seduced into thinking that they are being treated fairly. The face to face nature of the interaction encourages trust and ultimately invites abuse of that trust. Mediators are said to disarm participants and serve as catalysts for compromises that are not always in the participants’ best interests. Many in the EDR arena see signs that the George W. Bush administration may be promoting EDR in an effort to calm and seduce environmentalists

21. Who Are The Stakeholders and Why Are They Important?

22. Who are the stakeholders?  Given the breadth of contextual issues and potential philosophical differences, many government, public, and private interest groups have a stake in an environmental conflict  Environmental disputes themselves are products of differences in values, worldviews, and conflicting interests that surround environmental courses of action

23. Government Stakeholders  Elected and appointed government officials at all levels of office are usually involved in many ongoing environmental conflicts due to the fact that many conflicts arise from the implementation of legislation policies at these levels of office  Often these government officials will represent different agencies such as the Ministry of Sustainable Resource Management here in British Columbia and therefore have a key interest in the environmental sector

24. Public Stakeholders  There are numerous public interests represented in environmental conflicts including community residents, NGO’s, and private interest groups  These groups are often interested in the maintenance of natural lands that serve to beautify their surroundings and often oppose the development of this existing natural environment for the sake of industry or residential expansion

25. Private Stakeholders  Industry, commercial, and other interests in the business community often become combatants in environmental conflicts such as those involving siting facilities, establishing pollution abatement policies, or the granting of various permits necessary to their function  While primary focus on the well being of the natural environment is more evident in modern industrial and commercial enterprises these groups often find themselves in dispute with public stakeholders

26. The International Level: Canadian and U.S. Environmental Disputes  At any one time politicians on both sides of the border are dealing with multiple issues involving air quality, water quality, transfer of water, species and habitats, impacts of development projects, and changes in the structure of mechanisms for dispute resolution  Some of the core issues that we are all somewhat aware of are the Pacific Salmon dispute, acid rain and other air quality issues, removal of water from the Great Lakes, and transfer of water across drainage basins  environmental issues and decisions about their resolution directly and immediately affect the lives of citizens by hitting citizens in their backyards and affecting their pocketbooks and their health  Managing the environmental relationship takes a good deal of attention on both sides of the border  The major efforts in this regard have been those of quiet diplomacy, which most often results in problem mitigation before crisis. There is a complex web of interactions on many levels including increasingly important state/provincial relationships which holds most issues at bay as minor, behind-the- scenes irritants rather than allowing them to develop into full-blown crises  Currently EDR has not been fully utilized to address these large disputes but rather has been limited to solving small scale conflicts at a more localized level

27. The Cowichan Valley

28. Relevance to the Cowichan Valley  With so many prevailing disputes existing in the Cowichan Valley over such issues as the Cowichan Watershed, the Cowichan Estuary, or the development of Mount Tzouhalem, EDR practices seem to be a very viable way to approach these conflicts

29. Relevance to the Cowichan Valley Cont…  In regards to the Mount Tzouhalem region I received this information from Darrell Frank a Municipal Forester in the North Cowichan District A large portion of Mt Tzouhalem is privately owned by a developer currently constructing a new golf course and associated housing development known as the "Cliffs Over Maple Bay“ (currently developing 300 acres) and this development has been ongoing since the 70's A large portion of Mt Tzouhalem is privately owned by a developer currently constructing a new golf course and associated housing development known as the "Cliffs Over Maple Bay“ (currently developing 300 acres) and this development has been ongoing since the 70's The Municipality owns approximately 1100 acres that is managed as part of its Municipal Forest Reserve lands. The Municipality has a total 12000 acres in what we refer to as the Municipal Forest Reserve. North Cowichan Community Forest is managed on a long term sustainable basis that functions as both a working forest as well as a recreational forest supplying the residents of North Cowichan recreational and educational opportunities. The annual allowable cut on these lands is 20,000 cubic metres per year. The Municipality owns approximately 1100 acres that is managed as part of its Municipal Forest Reserve lands. The Municipality has a total 12000 acres in what we refer to as the Municipal Forest Reserve. North Cowichan Community Forest is managed on a long term sustainable basis that functions as both a working forest as well as a recreational forest supplying the residents of North Cowichan recreational and educational opportunities. The annual allowable cut on these lands is 20,000 cubic metres per year. The provincial government has an ecological reserve on Mt Tzouhalem located adjacent to the Properties Subdivision. The provincial government has an ecological reserve on Mt Tzouhalem located adjacent to the Properties Subdivision. Portions of the south face of Mt Tzouhalem are located in Indian Reserve lands. Portions of the south face of Mt Tzouhalem are located in Indian Reserve lands. Providence farm owns 400 acres of lands on the south face of Mt Tzouhalem. Providence farm owns 400 acres of lands on the south face of Mt Tzouhalem.

30. Relevance to the Cowichan Valley Cont…  Development in the Municipality of North Cowichan is controlled through the Official Community plan and through the zoning process.  Under the North Cowichan Regional District Community Charter, Council’s role is to provide good government, services its citizens need and want, stewardship for its public assets, and a positive economic, social and environmental climate.  With so many stakeholders it is virtually impossible to manage this natural region without some sort of “round table” process which is perhaps why there is so much conflict surrounding its future.  If the deciding power for the future of Mount Tzouhalem was removed from the ruling hand of the North Cowichan city council and placed in the hands of all interested stakeholders including the general public perhaps the future environmental integrity of the region would be more stable

31. Conclusion  A recent study found that acceptance among environmental attorneys, while still growing, still faces challenges as they are reluctant to participate in EDR for fear of losing control of the process as their strength lies in their training in the adversarial process  In the long term, the most compelling challenge facing the application of EDR as a tool for building a results based sense of common purpose is that proponents cannot convince stakeholders that EDR is viable as a dispute resolution tool to use to meet environmental governance challenges  This is due to the fact that there is a lack of strong conceptual research that in turn does not allow proponents the ability to answer questions and provide evidence to support their arguments  Consequently the future of EDR as a tool depends on researchers examining and documenting EDR in terms of its impact on environmental dispute decision making

32. Sources Bingham, Lisa, Nabatchi, Tina, O’Leary Rosemary. “Environmental Conflict Resolution”. Environmental Governance Reconsidered: Challenges, Choices, and Opportunities. MIT Press: Cambridge, Mass. 2004. British Columbia Dispute Resolution Office. Guiding Principles for Consensus Processes. Last Updated: Dec. 3, 2004. Date Accessed: March 15, 2006. http://www.ag.gov.bc.ca/dro/publications/buetins/consensus-processes.htm http://www.ag.gov.bc.ca/dro/publications/buetins/consensus-processes.htm British Columbia Dispute Resolution Office. A Guide to Designing Public Sector Dispute Resolution Systems. Last Updated: June 2003. Date Accessed March 15, 2006. http://www.ag.gov.bc.ca/dro/publications/guides/design.pdf http://www.ag.gov.bc.ca/dro/publications/guides/design.pdfhttp://www.ag.gov.bc.ca/dro/publications/guides/design.pdf Schwartz, Alan M. “The Canada-US Environmental Relationship at the Turn of the Century”. The American Review of Canadian Studies. Washington: Summer 2000. Vol. 30, Iss. 2; p. 207