Doug Tupper QC
Doug Tupper QC, Lawyer, McInnes Cooper
Harvey Morrison QC
Harvey Morrison QC, Lawyer, McInnes Cooper
 

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.
  2. Plan and budget accordingly for all the time and expense necessary to meet the anticipated challenges.
  3. In a ‘clear eyed’ manner, ask who might be affected and how. Anticipate the concerns of those who may be affected. Be realistic.
  4. 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.
  5. Identify the influential leaders among the citizens, and citizen groups, probably affected.
  6. Communicate with those citizens and the citizen groups as soon as possible, but only when properly prepared to do so.
  7. The communication should be constant, transparent, and sincere.
  8. 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.
  9. 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.
  10. Maintain a professional and respectful relationship with the regulatory authorities, at all times. They are not the ‘enemy’.

About the authors:

Doug Tupper QC is a member of our McInnes Cooper’s Business Dispute Resolution Group and has over 30 years of experience in all types of litigation, in all levels of court in Nova Scotia and the Supreme Court of Canada. Doug specializes in business and corporate & commercial litigation and has been lead counsel in numerous cases, including shareholder disputes, securities litigation, professional liability claims, estate litigation, product liability disputes, aircraft and railway litigation and class actions. You can reach Doug at doug.tupper@mcinnescooper.com.

Harvey L. Morrison QC is a member of McInnes Cooper’s Business Dispute Resolution Group. Harvey’s litigation practice concentrates on aboriginal and construction law cases, as well as complex commercial law cases and toxic torts. He has presented cases before all levels of court in Nova Scotia and the Supreme Court of Canada. He has also negotiated large construction and wind turbine supply contracts. You can reach Harvey at harvey.morrison@mcinnescooper.com.