Written by David Bursey, Radha D. Curpen, Brad Gilmour, Sharon G.K. Singh and Charlotte Teal
In November 2018, British Columbia passed legislation designed to “revitalize” its Environmental Assessment Act as well as "to ensure the legal rights of First Nations are respected, and the public's expectation of a strong transparent process is met."
The new framework legislation—Bill 51—is scheduled to come into force in the fall of 2019. Leading up to the implementation of the new Act, the government will consult with the public on the development of policy and regulations to elaborate on several core elements of the regime.
This commentary outlines the main changes and the implications for those involved with environmental assessments.
1. What Are the Goals and How Does the New Regime Measure Up?
The government says it focused on these three goals1:
- enhancing public confidence;
- advancing reconciliation with First Nations; and
- protecting the environment while offering clear pathways to sustainable project approvals.
While these goals are positive, the new regime creates several fundamental challenges to achieving them:
- The new regime broadens the application of the Act to more projects and expands who may participate, both of which will increase uncertainty in project planning.
- Neither Bill 51—Environmental Assessment Act nor the Intentions Paper list efficiency as a goal. New measures in the Act will most certainly add time and complication to project reviews, yet it is not apparent how the extra process will lead to better informed or more efficient decisions.
- Despite the emphasis on “sustainable” development, the new regime outlines few details on assessing the economic benefits of a project, especially at the government economic policy level. Yet, "fostering a sound economy" is one of the defined purposes of the Environmental Assessment Office ("EAO).
2. What’s Changing?
The basic structure and many core features of the current assessment regime have been carried forward, including:
- Decision by the Minister. Ultimate decisions on the projects remain at the political level. Decisions will be based on a public interest test.
- Definition of Reviewable Project. The definition of a project and its ancillary components—on site and off—remains essentially the same.
- Three Ways a Project Becomes Reviewable. A project will be reviewable if: 1) it falls within a defined category and exceeds the specified threshold, 2) the minister designates a project for review, or 3) a project proponent opts into the project
- Reviewable Project Thresholds. The concept of categories and thresholds for reviewable projects remains, although the threshold will no longer be clear. A project proponent must file a project notice for any project that falls within the established categories, even if its parameters fall below the prescribed threshold (see the project notice description below). The amendments to the Reviewable Projects Regulation may clarify this critical aspect of the Act.
- The Environmental Assessment Office (EAO). The EAO will continue to lead the project review and draw in the technical resources from the other government agencies, federal and provincial. The Act defines the purpose of the EAO with more precision.
- Technical Advisory Committee. The EAO will continue to be assisted by a Technical Advisory Committee, the members of which the EAO will select from government agencies, Indigenous nations and affected local communities.
- Timelines. The regulations will set time limits for each phase of the assessment leading to a decision. The early planning and scoping phase will receive more attention though. The Ministry expects the overall timeline to be shorter than the current one because of the increased work at the front-end, in the range of 570 days, assuming no delays or complications.
The notable changes include the following. The regulations and policy will add further detail around the new elements in the Act.
- The basic steps of the assessment process will be: 1) initial project description/early engagement, 2) EA readiness decision, 3) process planning, 4) application development and review, 5) effects assessment, 6) recommendations, 7) decision, and 8) post-certificate compliance. Revised time lines will apply to each of the steps leading to the final decision.
- Project Notice—A Screening Test. Anyone who proposes a project within one of the prescribed categories must file a notice and description with the EAO, even if the project does not exceed the review thresholds.2 The minister may designate any project for review if the public interest is sufficient. Further, section 11 allows greater opportunity for any person to apply to the minister to designate a project for review. The Intentions Paper explains that if a project is within a prescribed margin of the threshold,3 then the proponent should submit a project notice, but the Act does not have this “close to the threshold” concept. This project notice/screening requirement will add substantial uncertainty to project planning. The regulations may clarify this aspect further.
- Early Decision on Readiness for Review. After reviewing a detailed project description filed under section 15, the EAO may ask for more information or recommend that the minister either exempt or terminate a project review. This early decision will help indicate whether a project certificate is achievable or faces “show-stoppers”, before more time and effort is spent on a full project review.
- Emphasis on the Planning Phase. The Act emphasizes the planning phase to assess public interest and set the scope of the assessment. This emphasis is potentially positive, however, those involved must do their homework at the early stage to be ready to “sign off” on the scope of the review. Project proponents will be ready, but government agencies are typically under-resourced and often cannot or will not commit their views at the early stages of a project.
- Participating Indigenous Nation. The criteria to qualify as a “participating Indigenous nation” will no longer be “driven by reference to strength of claim4”. Under section 14, an Indigenous nation may simply file a notice that it wishes to participate. The EAO may exclude an Indigenous nation if there is “no reasonable possibility” of adverse impact.
- UNDRIP, FPIC, and Consent. The Intentions Paper and Act talk about the United Nations Declaration on Rights of Indigenous Persons (UNDRIP), Free, Prior and Informed Consent (FPIC), and Indigenous nation consent, and also seeking consensus throughout the process. The Act requires the minister to give reasons when the minister disagrees with the Indigenous nation view, implying the minister may override Indigenous nation opposition with sufficient public interest justification.
- Indigenous Traditional Knowledge. The Act increases the emphasis on considering the interests and traditional knowledge of Indigenous Peoples and allowing opportunity for input.
- Traditional Indigenous Review Process. The minister may allow an Indigenous governance process to substitute for aspects of the process established under the Act.
- Dispute Resolution. Section 5 allows the minister to appoint a person to facilitate a dispute involving an Indigenous nation in relation to a broad range of procedural and substantive issues. The numerous opportunities to engage this process have potential to add time to the review, but may reduce litigation. The dispute resolution process will be defined further in the regulations.
- Community Advisory Committee. The EAO may establish one or more community advisory committees to advise on the potential effects on the community.
- Assessment Criteria Defined. Section 25 lists the factors that must be assessed, adding more definition to the discretion allowed in the current Act:
(a) positive and negative direct and indirect effects of the reviewable project, including environmental, economic, social, cultural and health effects and adverse cumulative effects;
(b) risks and uncertainties associated with those effects, including the results of any interaction between effects;
(c) risks of malfunctions or accidents;
(d) disproportionate effects on distinct human populations, including populations identified by gender;
(e) effects on biophysical factors that support ecosystem function;
(f) effects on current and future generations;
(g) consistency with any land-use plan of the government or an Indigenous nation if the plan is relevant to the assessment and to any assessment conducted under section 35 or 73;
(h) greenhouse gas emissions, including the potential effects on the province being able to meet its targets under the Greenhouse Gas Reduction Targets Act;
(i) alternative means of carrying out the project that are technically and economically feasible, including through the use of the best available technologies, and the potential effects, risks and uncertainties of those alternatives;
(j) potential changes to the reviewable project that may be caused by the environment; and
(k) other prescribed matters.
- Enhanced Public Engagement. The Act allows for more opportunity for public participation and comment, including in the early scoping stage, on the application materials, and at the end on the draft EAO report.
- Reporting—Effectiveness of Mitigation. Section 30 of the Act requires a certificate holder to report on the effectiveness of the mitigation measures specified in the certificate. The minister may amend the certificate to change the mitigation measures. Policy guidance would help in this area. Any changes must be adaptive and reasonable, recognizing the practical limits on altering large works. Project operators should also be able to reduce mitigation if it is successful and less is needed.
- Class, Regional and Strategic Assessments. In addition to class assessments (section 34), the new Act allows for regional assessments (section 35) and strategic assessments (section 36). The concepts of regional planning, land-use policy, and higher level strategic assessment are positive, but they will take considerable time and money to implement. It also should be linked to a coherent economic development strategy so scarce government resources are allowed to the high priority areas.
- Participant Cost Tariff. Section 48 of the Act allows the EAO to establish a tariff of cost the proponents would pay to participating Indigenous nations for the cost of: 1) participating in an assessment, and 2) inspections. This tariff concept is welcome to help create some standard practice for participant funding.
- Coordination Between the British Columbia Regime and Other Regimes. The Act allows for B.C. to enter into agreements with the federal government, Indigenous nations, municipalities, and other non-B.C. government agencies to cooperate on or substitute all or part of the assessment process for a project.
- Transition from the Old to New Act. The EAO will transition environmental assessments that are in progress under the current regime to the new regime, with “practical transition provisions”. Additional details can be found on page 24 of the Intentions Paper.
3. Implications for Project Assessment in British Columbia
While many important details are being worked out in 2019, the new assessment regime will have several practical implications.
- Retaining the ultimate decision at the political level—i.e., Minister or Governor in Council—means the elected government officials will ultimately be accountable for decisions made under the new Act.
- The broad scope of compulsory assessment factors will complicate project assessments, adding cost and effort on project developers.
- The Ministry should establish measures and resources to assess positive social and economic effects of projects, rather than focusing mostly on the environmental impacts. A systematic over-emphasis on environmental risks, without weighing the positive benefits will favour the status quo over innovation and progress. That outcome harms B.C.'s interest in developing a sustainable economy.
- The strong emphasis on the planning phase will shift more work to the front-end of the review process, which must be factored into a project planning timeline. If the planning phase is implemented well, the early decisions on the scope and overall viability of a project will help with the balance of the review.
- Careful drafting of Reviewable Projects Regulation is essential to achieving the desired policy goals. Project screening under section 10 should focus on screening projects out that are close to the thresholds—above and below—unless there is a clear public interest in a review.
- Class and regional assessments could help respond to the interest in cumulative effects, far better than considering cumulative assessments on a project-by-project basis. Those assessments will take a strong commitment of time and resources to complete.
- Harmonizing the federal and B.C. assessments is always important. The B.C. process should lead where possible, since the EAO and the related agencies will have a deeper understanding and information base related to B.C. and its regions.
The changes introduced by Bill 51 will require substantial government resources—people and expertise—to achieve its goals of enhancing public confidence, reconciling Indigenous nation rights, and protecting the environment while offering a clear pathways to sustainable project approvals. The EAO will need to hire and retain more people with broader skills and expertise at all levels to accomplish the goals.
In a world where capital for resource development projects is mobile, British Columbia must have an efficient and effective project review process to compete to attract capital to develop our natural resources and civil infrastructure. The “clear pathways to sustainable approvals” must be supported with strong policies and resources to act on those policies. We will continue to watch the development on regulations over the course of 2019.
If you have an interest in shaping the regulations and policies that will support the new Act, our team at Bennett Jones LLP would be pleased to assist you.