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The Vices and Virtues of Public Consultation

by Mark Sabourin

July 8th, 2019

The St. Lawrence Seaway, 60 years after its official opening by Queen Elizabeth and US President Dwight Eisenhower, is still regarded as an engineering marvel. Few today who live along its shores can imagine a world without it. A 2017 study of its economic impact found that it supported 237,000 Canadian and American jobs, and generated CAN$45.4 billion in economic activity.

To build it, entire villages had to be relocated. Indigenous land was flooded. If it were proposed today, there is little chance a shovel would ever touch the ground.

“There was a time and a place when the government did get away with that,” says Andrew Reeves, a lead researcher at MASS LBP, a company that manages civic engagement. “It doesn’t strike me as the kind of project that consultation, even the best consultation, could really get to work [today].”

Governments are no longer free to make decisions unilaterally. The 1982 redrafting and patriation of the constitution has given rise to a duty to consult Indigenous peoples on matters that touch upon Aboriginal and treaty rights. Governments across the country are still working through the implications of that constitutional requirement.

There has also emerged an expectation that the public will be widely involved in decisions that touch on the environment, and it’s tough to argue that’s a bad thing. The pendulum has swung, though many now ask if it has swung too far.

“The whole reason for the Environmental Bill of Rights is the recognition that you can’t blindly trust the government to look after the environment,” says Dianne Saxe, Environmental Commissioner of Ontario from December 2015 to March 2019. Among her duties, Saxe oversaw the province’s Environmental Registry, where government proposals on environmental matters, thousands every year, are posted for public feedback. Yet even she concedes that the record on public consultation is uneven. “Public consultation can and sometimes does lead to better decisions,” she says.

On local issues – developments involving neighbourhoods and communities – public consultation can be valuable. “Local people know things that the government doesn’t know,” says Saxe, things like where people like to walk their dogs, or where neighbours gather on a summer afternoon.

On local matters, the public often becomes involved early in the decision-making process. The purpose of the consultation is to help arrive at the best possible outcome. John Miller, President of ICA Associates, worked on redevelopments in British Columbia where consultations began with residents being asked, “what are the values that need to be reflected in any development in our downtown?” It’s a high-level question, he says, and it’s something the audience is qualified to answer. The answer can serve as a foundation for more focussed questions. The full set of answers helped guide land use planners in their more granular decisions about design. “It didn’t tell them what to do. It just pointed them in the right direction.” The plans sailed through the approval process, says Miller.

But when consultation begins after a plan has been drawn up, “it becomes a lightning rod or a dartboard and people throw things at it,” says Miller. “Your last remaining power is the power to say no.”

This is the model that often finds a place on a newspaper’s front page and that leads the evening newscast, with contorted faces and screaming voices. Here consultation is mostly about mitigating harm. It doesn’t allow people to voice opposition to the concept itself, “so it all gets dumped into the hearing,” says Saxe. “That’s an example of a consultation expected to do a job it can’t do.”

For big pieces of public infrastructure – pipelines, dams, highways – public consultation is often about acquiring a social license, which Reeves calls mandatory in the era of social media, when opponents can organize and mobilize in an instant. At its worst, consultation is a box that needs to be ticked, says Reeves, but at its best it can bring sides together to achieve buy-in. It can involve an element of theatre, but it can’t just be theatre.

“The kinds of consultations that take on that theatrical air are often done to mask the fact that decisions have already been made,” says Reeves. If they’re to have any value, consultations must be underpinned by a commitment from government or the project proponent to consider the recommendations. They must give rise to the possibility that things just might be done differently, Saxe adds. If they don’t hold that possibility, it’s greenwashing.

Ipsos UU (Understanding Unlimited) is the arm of the Ipsos research firm that manages public consultations. Brad Griffin, Ipsos UU president, says the company would turn down an offer to manage a consultation that was pure public relations. The process must be inclusive, giving a voice to as many people as possible. It must allow for multiple points of view and include a commitment to follow up on the results.

“Sometimes the minority in the room can also be the most vocal,” says Griffin, but “we don’t want to make it seem like we’re gerrymandering things to exclude the poles of the argument.” There are tricks of the trade to keep consultations from being hijacked by what he calls “the squeaky wheels,” but they don’t always work.

People who might lose are more likely to become emotionally charged than people who might gain, says Saxe, but that doesn’t necessarily mean that consultations are dominated by the opposition. Project proponents are usually powerful organizations with a contingent of paid staff ready to respond. They may not yell at public meetings, but their opinions do get heard.

“Public consultation is not an opinion poll and it is not a substitute for government decision-making. That is one of the tensions,” adds Saxe, and perhaps one of the reasons why big infrastructure projects that are preceded by extensive consultation are followed by expensive litigation. An open, inclusive consultation process may give rise to an expectation that everyone’s objection will somehow be addressed.

Participants have to be reminded that the purpose of a consultation is to provide a source of input to decision-making from an audience engaged in the issue. “It’s another source of data,” says Griffin.

The flaws of our current consultation models notwithstanding, “any decision that is reached by using a more inclusive and deliberative process is arguably going to be far better than anything that is based from the top down,” says Reeves.

It can have a prophylactic effect, adds Saxe. “If people know they have to consult, they are often a little more careful.”

Maybe the Seaway would not have been built, and the economies of the provinces and states that surround the Great Lakes-St. Lawrence River system would have grown along a different path. Municipal infrastructure would have been spared billions of dollars of cost from zebra mussels introduced in the ballast of ocean-going ships, and lake trout, decimated by the invasive sea lamprey, would likely still thrive in the Great Lakes. To the Mohawks of Akwesasne, whose lands were expropriated, and to the residents of the villages of Aultsville and Mille Roches, Moulinette and Wales, whose streets now lie underwater, that would have been a good thing.