BC's take on a modern-style environmental assessment

14 minute read
21 November 2018


BC recently advanced plans to modernize its EA (environmental assessment) process by passing first reading of Bill 51 - the new Environmental Assessment Act.

The new Act would:

  • expand the Environmental Assessment Office's ("EAO's") role and purpose (to promoting sustainability and supporting United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") implementation);
  • flush out early planning processes (before EA certificate ("EAC") applications are submitted);
  • prohibit projects that cause "extraordinarily adverse effects";
  • recognize Indigenous land use plans; and
  • provide for cost recovery to the Province and Indigenous nations.

The Province is aiming to have the new Act come into force in late 2019 - if that timeline is met, there could be implications for both new and existing major resource projects across the Province around this time next year.

A Revamped Role and Purpose for the EAO

Bill 51 significantly expands the EAO's role and purpose in the provincial EA regime.

The first new purpose of the EAO is to "promote sustainability" by "protecting the environment and fostering a sound economy and the well-being of British Columbians and their communities". The language used - "to promote" - suggests that the EAO must actively carry out its duties, including:

  • carry out assessments in a thorough, timely, transparent and impartial way;
  • facilitate meaningful public participation throughout assessments;
  • use the best available science, Indigenous knowledge and local knowledge in decision making; and
  • coordinate assessments with other governments, including Indigenous nations.

A clear focus on local community interests emerges from these new requirements.

The second new purpose of the EAO is to support reconciliation with Indigenous peoples - to do so, the EAO must:

  • support the implementation of the UNDRIP;
  • recognize the inherent jurisdiction of Indigenous nations and their right to participate in decision making in matters that would affect their rights;
  • collaborate with Indigenous nations in relation to reviewable projects; and
  • acknowledge Indigenous peoples' constitutionally protected rights.

Notably, language from some key relevant Articles of UNDRIP is incorporated into provisions of the new Act.

The EAO's New Lead

The new lead of the EAO is the Chief Executive Assessment Officer, or CEAO, (as compared to the existing Executive Director under the current law). Notably, Bill 51 empowers this CEAO to delegate any of its powers and duties to a person that is assigned to, but not employed in, the EAO. The open-ended language used suggests that the CEAO could delegate its powers to persons employed in other Provincial government capacities, as well as persons not employed by the Province, such as members of Indigenous nations, persons with specific technical expertise, or others.

Committees to Assist the EAO

Bill 51 also contemplates two new committees to advise the CEAO on assessments:

  1. a mandatory Technical Advisory Committee, to which participating Indigenous nations must be invited; and
  2. a Community Advisory Committee, to be formed where the CEAO determines that there is sufficient community interest in a project.

Bill 51 provides limited details on the specific roles of these committees; instead, specific details regarding their roles will be incorporated into the requisite assessment plan that sets out the procedures and methods for conducting the assessment of a particular project. Notably, multi-stakeholder technical committees are already being used in several EAs across the Province, and their experiences may inform these new committees.

Separating Early Engagement from the Assessment Process

Bill 51 specifically recognizes the importance of early engagement - before the substantive assessment process begins. The focus of this early stage is on the project description and a plan for early engagement between the proponent, EAO, Indigenous nations, municipalities, government agencies and the public.

The current approach to identifying which Indigenous nations may participate in a particular EA based on their strength of claim is also altered. Instead, Indigenous nations may themselves provide notice to the CEAO that they intend to participate in the project assessment. After giving such nations an opportunity to be heard, however, the CEAO may nevertheless determine that "there is no reasonable possibility the Indigenous nation or its rights recognized and affirmed by section 35 of the Constitution Act, 1982 will be adversely affected by the project", and thereby deny them status as a "participating Indigenous nation" for a particular project.

A Prohibited Project - the Termination Order

The current draft of the proposed Act also includes the phrase "extraordinarily adverse effects". There is no such phrase used in any other Canadian legislation, nor in any case law. Nevertheless, it could have significant impacts on proposed projects.

Where the CEAO considers that a proposed project will have extraordinarily adverse effects (i) generally, (ii) on Indigenous rights, or (iii) on specified protected areas, the CEAO may recommend that the Minister issue a termination order (which effectively terminates the project, as proposed).

New Express Considerations

Bill 51 significantly expands on the matters that must be considered in every assessment.

Some of the new provisions expressly incorporate constitutional requirements that already should be considered by the Province under the current regime - for example, Bill 51 explicitly states that the effects of a project on Indigenous nations and their constitutionally-protected rights "must be assessed in every assessment."

Other new requirements reflect a more sensitive approach to the assessment of effects than under the current regime, and the inherent risk and uncertainties associated with predicting such effects. For example, every assessment must consider the risks and uncertainties associated with specified effects,[1] as well as the results of any interaction between effects.

Each of the following effects must also be considered in every assessment:

  • risks of malfunctions and accidents;
  • disproportionate effects on distinct human populations;
  • effects on biophysical factors that support ecosystem functions;
  • effects on current and future generations;
  • greenhouse gas emissions, including the effect on the Province being able to meet its legislative targets; and
  • alternative means of carrying out the project that considers BATs (best available technologies).

Approach to Implementing UNDRIP Consent

"As part of our commitment to true, lasting reconciliation with First Nations in British Columbia our government will be fully adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the Calls to Action of the Truth and Reconciliation Commission."

(BC Premier Horgan's mandate letter to the Minister of Indigenous Relations and Reconciliation, July 2017)

"States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."

(UNDRIP, Article 32(2))

As indicated in the excerpt above, the Province of British Columbia has clearly committed to fully adopting and implementing UNDRIP. This includes Article 32, which speaks to the good faith efforts required of states to obtain the free, prior and informed consent of Indigenous peoples before approving projects that affect their lands and resources.

The Province has proposed 3 main approaches to implement the UNDRIP consent mandate within the revised EA process:

  1. Mandatory Consent Requirement. Consent of Indigenous nations is required in two situations:
    1. where a reviewable project is proposed on treaty lands, and the final agreement requires such consent; and
    2. where an agreement between an Indigenous nation and the government requires such consent (such as nation-specific Government-to-Government agreements).

In addition, Bill 51 contemplates Indigenous nations carrying out their own assessment with respect to the potential effects of the project on the nation and on its constitutionally protected rights. Where applicable, the corresponding process order will set out the specific portion of the assessment that is to be carried out by the nation, and the date by which such assessment must be completed.

  1. Provision / Denial of Consent considered. Decision-makers, such as the CEAO and the Minister, must take into account a participating Indigenous nations' consent, or lack of consent, in the following instances:
    1. the issuance of exemption and termination orders; and
    2. referrals of an EAC application to the Minister for a decision.

In addition, if a recommendation regarding an EAC application is contrary to the consent decision of a participating Indigenous nation, the ministers must offer to meet with the applicable nations; such nations, however, only have 3 days to accept such offer to meet.

  1. Consensus-Driven Discussions. Finally, several provisions of Bill 51 require the seeking to achieve consensus with participating Indigenous nations before finalizing a decision, with reasons generally required where the decision is made without such consensus being reached. These include consensus-seeking opportunities before each of the following occurs:
    1. revisions to a detailed project description;
    2. issuance of exemption and termination orders;
    3. issuance of an assessment process order, with consensus-seeking opportunities to be incorporated in the assessment plan;
    4. drafting of the assessment report and the EAC (including its conditions);
    5. drafting of the recommendation to the Minister on an EAC application;
    6. amendments to, and extensions of (along with any new conditions), an EAC; and
    7. the undertaking or approval of class assessments, as well as regional assessments.

Bill 51 also specifically recognizes a role for land-use plans developed by Indigenous nations - where such plans are relevant to a particular assessment, they must be considered in the issuance of exemption orders as well as in the requisite assessment of effects.

Finally, Bill 51 empowers the CEAO to establish a tariff of costs to be paid by proponents to participating Indigenous nations to defray the nations' costs of participating in an assessment and assisting with inspections. Costs may differ based on various criteria, including the size and complexity of the projects, and the potential effects of the projects on Indigenous nations.

Disputes between Indigenous Nations and Regulators

Bill 51 also contemplates a dispute resolution process for various matters that may arise between the province and an Indigenous nation in the conduct of the assessment process or a decision on the grant of an EAC. This process entails the appointment of a Dispute Resolution Facilitator by the Minister, after considering the recommendation of the applicable Indigenous nation.

The specific powers and obligations of such Dispute Resolution Facilitator will be emerge in a future regulation, however some safeguards are built into Bill 51 - including that:

  • no decision on a matter referred to a Dispute Resolution Facilitator may be made until such facilitator has provided its report;
  • the facilitator's report may not be relied on to guide other projects or other decision-makers; and
  • the dispute resolution process will not in any way limit Indigenous nations' rights to seek a remedy in court.

What's Happening at the Federal Level?

Several of the new concepts under Bill 51 align with provisions under Canada's proposed Impact Assessment Act, which is currently undergoing Senate review. This includes new provisions on regional assessments (i.e., assessments of effects of all projects within a specified region; notably, BC's Bill 51 empowers Indigenous nations to propose such an assessment), impacts of EA orders on other project approvals, cost recovery opportunities (including by way of bonds) and compliance and enforcement powers.

More to Come

Stay tuned, as we will be publishing further articles in the near future on other key changes and implications of ongoing reforms to EA regimes across Canada.

In the meantime, if you are interested in understanding the implications of the new laws, and means to effectively advance your rights and interests, please feel free to contact one of our environmental or Indigenous law experts.

[1] These include the "positive and negative direct and indirect effects of the reviewable project, including environmental, economic, social, cultural and health effects and adverse cumulative effects."

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