Chapter 12: Using administrative decision-making processes to protect the environment

what are administrative decisions

made by government officials or tribunals derived from a statute that sets out the decision making process

who can make decisions (people)

government employees or the cabinet minister (e.g., project approvals)

what is fairness of procedure/natural justice

the right to be heard/right to procedure/the ability to follow due process/ the fundamental principle ensuring fair procedures in administrative decision making

who can make decisions (body)

decisions can also be made by an impartial decision maker (tribunal or board) - typically involve some form of hearing

give an example of an administrative decision

approval or rejection of an environmental project

what public involvement is usually required in administrative decisions

applicants must inform and engage the public and provide feedback to decision makers, but public hearings are uncommon

how do tribunal hearings compare to court hearings

they are quasi judicial, similar to courts but less formal, with relaxed rules of procedure and evidence

what are examples of less formal tribunals

environmental appeal boards and review panels

what is the goal of law governing administrative procedures

to balance efficiency and fairness

what are the advantages of informal administrative processes

faster, cheaper, and allow a broader range of evidence and sources to be admitted

what are the disadvantages of informal process

they may be less fair and less impartial than formal court processes

when do common law procedural fairness rights apply

when statutes are silent, unless those rights are specifically changed or excluded by statute

what are the three main elements of procedural fariness

1. reasonable notice of proposed decision and key issues against affected parties

2. a fair opportunity to be heard, orally or in writing

3. an impartial and independent decision maker

what is evidence in administrative proceedings

facts, objects, and sometimes opinions presented to help reach a decision

what standards must evidence meet

it must be relevant and reasonable reliable

how do tribunal rules differ from courts

tribunals often allow hearsay and opinion evidence

what is the record of proceedings

the challenged decision plus all evidence and arguments presented at the hearing

what is party status and how is it determined

the right to participate in a tribunal process. determined often through a statutory test (e.g., being “directly affected”); if none exists, tribunals may create their own tests

what must tribunals do at the end of a process

reach an explicit final decision

are written reasons always required for tribunal decisions

no, but they are often provided depending on the statute

can tribunals order parties to pay costs and what is a major criterion

yes, some tribunals can require unsuccessful parties to pay the costs of successful parties. whether the applicant made a substantial contribution to the appeal and focused on the important issues

what is participation funding and when must requests be made

funding awarded by some tribunals to support participation in a hearing, regardless of whether the participant wins or loses. requests must be made in advance of the hearing

is there an automatic right to appeal in an administrative decision

no, a right to appeal must be provided for in the statute

what may be required before an appeal can proceed

leave to appeal - where lower court has to authorize you to appeal

what are the two forums for appeal of administrative decisions

1. appeals to another administrative tribunal (e.g., environmental appeal board)

2. appeals to court

what are the two types of appeals

1. appeals de novo (new hearings where the decision is fully reheard and reconsidered, new evidence or arguments may be presented)

2. appeals on questions of law and jurisdiction (no new evidence, limited to legal arguments)

what has provincial legislation established for administrative appeals

specialized tribunals to hear appeals from administrative decisions

• e.g., alberta’s environmental appeals board, ontario’s environmental review board

who has the right to appeal an environmental appeal board

• operators against whom orders have been made

• individuals who meet statutory standing requirements

what are advantages of environmental appeal boards

• members have environmental expertise

• less formal procedures

• well developed mediation processes

what is a key disadvantage of environment appeal boards

appeals may be subject to approval by environment ministers (e.g., in alberta)

is it easy to challenge tribunal decisions in court and how broad are the grounds for judicial review

no, it is possible but not easy. they are narrow

when might a court deny judicial review

if an adequate alternative remedy exists and has not been pursued (e.g., a statutory appeal to an environmental appeal board)

what is required to have standing for judicial review

1. a serious legal issue that directly affects the applicant

2. a genuine interest as a citizen

3. no other reasonable and effective way to bring the issue before the court

what are the two standards of review used by courts when reviewing administrative decisions

correctness and reasonableness

what does standard of review mean

the depth of the review carried out by the court and the level of deference given to the administrative decision maker

what factors does a court consider when determining the applicable standard of review

• whether the tribunal interpreted its empowering statute

• relevant case law

what specific factors do courts consider when selecting a standard of review

• privative clause

• expertise of the decision maker

• policy versus technical issue

• law versus fact

what is a reviewable error in administrative law and give examples

an error made by an administrative decision maker that justifies judicial review

• substantive ultra vires (overstepping authority-not in their jurisdiction)

• real or apprehended bias

• breach of procedural fairness (violates legal rights protected by natural justice)

what constitutional grounds exist for judicial review in environmental law

• acting outside constitutional authority

• infringing charter rights

how successful have charter based arguments been in environmental judicial review

they have gained little traction - takes a lot of resources to go to court

when may governments establish public inquiries

under public pressure, in response to environmentally sensitive issues such as disasters or problems - rare tho and occurs only in the case of significant proposed development

do public inquiries operate independently of government

yes