On November 5, 2018, the British Columbia (BC) government introduced Bill 51 – 2018 Environmental Assessment Act (Bill-51), its proposal to reform British Columbia’s environmental assessment (EA) process for resource projects.
Bill 51, if passed, will introduce some significant changes to the EA process in BC. In particular, Bill 51 creates a new early engagement process, increases opportunities for public participation and prescribes measures to meet the government’s commitment to reconciliation and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
A New Process – Notifications, Early Engagement and Increased Public Participation
One of the key features of Bill 51 is a requirement for proponents of projects in certain categories to submit a project notification to the Environmental Assessment Office (EAO) even if the project does not meet the prescribed requirements for review. The purpose of the Notification is for the Minister to determine whether the project should be designated as a reviewable project. To some extent, this happens voluntarily under the current Act when proponents with projects that are below but close to the reviewability threshold notify the EAO and provide a brief description of the project. Bill 51 will make this step a requirement, and does not necessarily limit the categories of notifiable projects to the categories of reviewable projects designated in the regulations. Furthermore, Bill 51 is quite prescriptive in specifying the considerations that the Minister must take into account when deciding whether to designate a project. The Notification requirement appears to be specifically intended to cast a wider net to facilitate Ministerial designation of more projects.
For reviewable projects, Bill 51 prescribes a new early engagement process with several new steps:
- Submission of an Initial Project Description and an engagement plan that addresses engagement with the EAO, Indigenous nations, municipalities, government agencies and the public.
- The Initial Project Description is posted for public comment, and 90 days after the Initial Project Description is posted the proponent will receive a summary of the public comments and a list of the participating Indigenous nations.
- In order for the assessment to move forward, the proponent must then submit a Detailed Project Description. The intent is that comments on the Initial Project Description will provide an early indication of issues that may be of public concern, and the proponent will have an opportunity to respond in the Detailed Project Description.
- Once the Detailed Project Description has been submitted, the EAO must make a determination on whether the project is ready to proceed through the EA process, or whether an exemption or termination of the EA process is appropriate.
- If the EA is ready to proceed, then the EAO will engage in public consultation for 30 days on the proposed process order.
This early engagement/planning process differs from the current process in several significant ways. Currently,
- there is no public consultation required leading up to the decision as to whether an EA is required;
- the EAO generally determines which Indigenous nations ought to be consulted, whereas in Bill 51 Indigenous nations have an opportunity to indicate their intention to participate (but the chief executive assessment officer has authority to determine whether there is no reasonable possibility that the Indigenous nation or its rights recognized or affirmed under s. 35 of the Constitution Act, 1982 will be adversely affected by the project);
- the test that a project needs to meet to be exempted from the EA process is more stringent under Bill 51 (more considerations must be taken into account, including the reconciliation purpose set out in section 2); and
- the EAO cannot terminate an EA for a project before a project proponent has submitted an Application, whereas under Bill 51 the Minister can terminate the EA process after the Detailed Project Description is submitted and before the Application is submitted.
The early engagement/planning process in Bill 51 is similar in several respects to proposed federal legislation, specifically the Planning Phase under the proposed federal Impact Assessment Act in Bill C-69. For example, both bills require an Initial Project Description for early public comment. After a more Detailed Project Description is submitted, both bills allow the applicable Minister to terminate the process early on if the project would have unacceptable effects.
Seeking to Achieve Consensus with Indigenous Nations
In accordance with the Minister of Environment and Climate Change’s mandate to support the government’s commitment to the principles of UNDRIP, Bill 51 requires the EAO to seek to achieve consensus with Indigenous nations at various stages of the EA process, including before the EAO determines:
- whether a project has demonstrated its readiness to proceed with the EA process based on the EAO review of the Detailed Project Description;
- the process planning order for the EA for a project, including the scope of the required assessment for the project; and
- whether or not an EA Certificate should be issued.
Participating Indigenous nations will have the opportunity at two decision points to indicate whether the Indigenous nation consents or does not consent to a proposed EAO decision: (1) whether to exempt a project from EA or terminate the EA process for a project; and (2) whether an EA Certificate should be issued. If the EAO proceeds with a decision that does not have the consent of a participating Indigenous nation, then the EAO must provide a written response.
Bill 51 also contemplates a codified dispute resolution process (DR)(yet to be fully prescribed) to be followed if consent is not secured or if there are disputes as to which Indigenous nations should be participating in the EA process for any given project.
Finally, Bill 51 permits the EAO to enter into agreements with Indigenous nations regarding the conduct of EAs with the idea that such agreements may or may not be project-specific. An agreement with an Indigenous nation could also permit a substituted EA process with the EAO relying, in whole or in part, on an EA conducted by an Indigenous nation provided certain conditions are met.
Minister Heyman has asserted that Bill 51 will result in good projects (that respect the environment, Indigenous peoples and the public) being approved more quickly. This intention is laudable, but it seems somewhat unlikely that assessments will take less time. Practically speaking, the current process is already heavily front-loaded, with a great deal of technical work being done in the pre-application phase, in consultation with the multi-stakeholder working group that is established for each project. Bill 51 will add more public consultation, particularly in the initial stage, and will provide more off-ramps for projects, including where the proponent fails to meet newly imposed deadlines. For example, the EA may be terminated if the proponent fails to:
- submit the Detailed Project Description within 1 year of being provided with the summary of public comments on the Initial Project Description;
- provide required information within three years of an order under sections 19 or 24 (similar to the current legislation);
- submit a revised application within one year of being notified of the result of the public comment period on the initial application and advice from the technical advisory committee and community advisory committee;
- do something required under the Act by the time required.
Furthermore, Bill 51 adds work products that must be submitted by the proponent, including a second level of project description and a revised application, and goes from two public consultation periods to four.
The government’s Intentions Paper compares the average actual timeline data for 34 projects assessed under the current Act with the proposed legislated timelines in Bill 51. However, the proposed timeline does not count “proponent time” to respond at certain critical steps, nor does it show the delays that will be incurred if the new Dispute Resolution process is invoked. The new DR process appears to be intended to result in greater Indigenous collaboration, and to reduce the potential for legal challenges of project approvals. These are very worthwhile goals, but the price tag may be an increase in the time needed to complete the EA process.
While Bill 51 progresses through the legislative process, the EAO has identified several other areas on which it is still engaging and where we can expect to see new regulations. In particular, we are watching for changes to the Reviewable Projects Regulation.
Currently, the Reviewable Projects Regulation identifies categories and size-based or production capacity-based triggers to determine whether a project is reviewable through an EA. The EAO will be engaging on potential amendments to the Reviewable Projects Regulation and has indicated it is exploring the development of specific triggers and thresholds for distinct geographic areas and ways of moving away from production capacity-based triggers to other criteria. In addition, the EAO will also be consulting on the appropriate threshold for requiring projects that do not meet an automatic reviewability threshold to submit a project notification so that the Minister can determine whether the project should be considered for designation.
Bill 51 introduces many changes to BC’s environmental assessment regime, but potentially the most significant are the provisions to address the government’s commitment to reconciliation and the implementation of UNDRIP. Many details are still under consultation and are expected to be refined through proposed regulations. Stay tuned for more news as Bill 51 progresses and proposed regulations emerge.
With special thanks to Articling Student Andrew Beechinor for his assistance.
Lawson Lundell's Environmental, Indigenous and Natural Resources Blog focuses on environmental, indigenous and natural resources law, as well as related litigation. Included are summaries of significant cases from Canadian appellate courts, changes in the legal framework governing resource development including energy and climate change policy, and key decisions from the more influential regulatory bodies in Canada.
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