Chapter 11 - Using Administrative Decision-making to Protect the Environment Flashcards

1
Q

Define Administrative Decisions:

A

Decisions made by government officials or tribunals pursuant to a statute that sets out the decision-making process​

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2
Q

What 3 roles can make decisions?

A
  • Government Employee
  • Cabinet Minister
  • Impartial decision-maker
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3
Q

What procedure are public hearings similar to?

A

Quasi-judicial

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4
Q

Law governing administrative procedures attempts to balance ____________ and ___________

A

efficiency, fairness

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5
Q

What is the fundamental procedural concept?

A

Natural Justice (AKA procedural fairness)

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6
Q

What do the common law rights of procedural fairness do?

A

They apply and fill any gaps

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7
Q

What are the three main elements of Tribunal Procedures?

A
  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
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8
Q

Define Evidence

A

Facts, objects, and (sometimes) opinions that are presented to decision-maker for the purpose of reaching a decision

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9
Q

True or false: Heresay evidence and opinions are not allowed in tribunals

A

True

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10
Q

What does the record of tribunal proceeding include?

A

Includes the decision challenged and all evidence and arguments presented at a hearing​

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11
Q

Obtaining party status may depend on __________________

A

meeting a statutory test (being “directly affected” by a decision)

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12
Q

What may tribunals do if there is no statutory test?

A

May create their won tests / categories

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13
Q

Tribunals must (as their statutes require) reach explicit _______________

A

final decisions

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14
Q

True or false: Some tribunals can force unsuccessful parties to pay the costs of successful parties

A

True

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15
Q

What is a major criterion of assessing costs in tribunal procedures?

A

Assessing cost requests is whether the applicant has made a substantial contribution to the appeal and has focused on the important issues​

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16
Q

True or false: There is an automatic right to appeal an administrative decision; an appeal must be provided for in the statute​

A

False, there is no automatic right to appeal.

17
Q

What are the two forums of appeal?

A
  1. Appeals to another administrative tribunal (e.g., environmental appeal board)​
  2. Appeals to a court
18
Q

What are two types of appeals?

A
  1. Appeals de novo (new hearings where everything is reheard and reconsidered and new evidence or arguments may be presented)​
  2. Appeals on questions of law and jurisdiction (no new evidence, limited to legal arguments)
19
Q

What has established a number of specialized tribunals to hear appeals from administrative decisions?

A

Provincial Legislation

20
Q

What are three advantages of environmental appeal boards?

A
  1. Members have environmental expertise​
  2. Less formal procedures​
  3. Usually include a well-developed mediation process
21
Q

What is the main disadvantage of appeals?

A

Sometimes (as in Alberta) appeals are subject to approval by environment ministers​

22
Q

Define Substantive Judicial Review:

A

judicial review of the merits, or substance, of administrative decision-making

23
Q

Standing for judicial review requires what three things?

A
  1. That there is a serious legal issue to be determined that affects the applicant directly​
  2. That the applicant has a “genuine interest as a citizen” in the decision​
  3. That there is no other reasonable and effective manner in which the issue may be brought before the court
24
Q

What are the two standards of review involved when reviewing an administrative decision?

A
  1. Correctness
  2. Reasonableness
25
Q

Define Standard of Review:

A

The depth of the review done by the court and reflects how much deference will be afforded to the administrative decision-maker

26
Q

What does the court look at when determining which standard of review applies?

A

Whether the tribunal interpreted its empowering statute and at any relevant cases

27
Q

What four factors are considered by the court when determining standard of review?

A
  1. Privative clause​
  2. Expertise of the decision-maker​
  3. Policy versus technical issue​
  4. Law versus fact
28
Q

Because procedural fairness involves legal rights, the standard of review associated with judicial reviews based on procedural fairness is always ______________

A

correctness

29
Q

A court may find that an environmental decision-maker made a reviewable error on grounds asserted by the applicant by what three determining factors?

A
  1. Substantive ultra vires​
  2. Real or apprehended bias​
  3. Breach of procedural fairness, etc.
30
Q

True or false: There are limited constitutional grounds for judicial review in environmental law

31
Q

Government may establish _____________ into environmentally sensitive topics

A

public inquiries

32
Q

When do public inquires often appear?

A

More often arise when environmental problems emerge or disasters occur

33
Q

True or false: Public inquiries operate independently of governments