Courtesy of McCarthy Tetrault. View original article here.
In March 2018, the BC government launched the process for revitalizing the province’s environmental assessment (EA) process. More background information is available in our earlier blog. Following the release of the Discussion Paper in June 2018 and public consultations over the summer, the BC government introduced Bill 51 – 2018 Environmental Assessment Act in November 2018. which is designed to replace the current provincial Environmental Assessment Act. An overview of the changes proposed in Bill 51 is set out in the BC government’s Intentions Paper. If passed, Bill 51 will introduce significant changes to the provincial EA process including the creation of an early engagement process, increased opportunities for public participation, and prescriptive measures to meet the BC government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
What will the New EA Process Mean for Proponents?
While the proposed new EA process will retain certain components of the current EA process, including the “one project, one assessment” approach and the concept of a project description, new elements will be introduced into existing processes along with entirely new concepts. A comparison of the key differences between the current EA process and the proposed changes under Bill 51 is set out below. As currently proposed, the new EA process would entail the following for proponents:
- As part of the proposed new early planning process, an early go/no go decision by the Environmental Assessment Office (EAO) about whether the proposed project should proceed to an EA review. Proponents will need to be aware of potential scope creep and increased information requirements resulting from issues flagged during enhanced public consultations.
- Bill 51 enhances public participation at all stages of the EA review, from the early planning phase all the way to the draft certificate stage. While increased public participation can help to reduce conflicts, it can also lead to increased costs and process complexity for proponents, government departments and stakeholders. Diligence will be required to ensure that projects are objectively evaluated.
- Bill 51 sets out a list of factors that must be considered in every EA. This is similar to the approach set out by the federal government in its proposed impact assessment legislation. Such an approach could lead to inefficiencies in the review process. The preferred legislative approach would be to provide decision-makers with greater discretion to take into consideration the factors that are most relevant to a proposed project, rather than imposing a “one size fits all” approach.
Comparing the Key Differences
The following table sets out the key differences between the current EA process and Bill 51:
|Issue||Current EA Process||Revitalized EA Process|
|Triggers for EA Review||Projects are reviewable in three ways:
(1) Projects are automatically reviewable if they fall within certain categories and meet certain triggers and thresholds under the Reviewable Projects Regulation (RPR).
(2) Projects that are not automatically reviewable may be designated by the Minister as being reviewable.
(3) A proponent may request that the EAO designate a project as reviewable.
|Under Bill 51, projects will still become reviewable in the three ways identified in the column to the left. However, EAO may consider potential changes to the RPR once Bill 51 comes into force. In particular, EAO will consider ways to move away from reviewable projects being strictly identified based on production capacity-based triggers, to consideration of other criteria that reflect the potential adverse effects of a given project.
EAO is also considering the need for certain projects to submit a project notification to EAO, which will allow the Minister to determine whether the project should be considered for designation (currently, EAO does not track projects that do not meet the thresholders in the RPR).
The new EAO lead will the Chief Executive Assessment Officer, or CEAO (as compared to the Executive Director under the current law).
|Early Engagement Process||There is no legislated early engagement process and no requirement for formal public consultation prior to the decision being made as to whether an EA review is required. As a practical matter, proponents typically engage stakeholders during the early stages of project development, including engagement with Indigenous communities.||Bill 51 establishes an early engagement phase to identify interests, issues and concerns of Indigenous nations, stakeholders and the public for the purposes of informing project design, siting and alternative approaches to developing the project, including identifying serious issues with the project proceeding through an EA or issues that need to be resolved in the EA process.
|Early Decision Making||EAO cannot terminate an EA process before an EA application is submitted by a project proponent.||Under Bill 51, the Minister can terminate the EA process after the Detailed Project Description is submitted and before the application is submitted.|
|One Project, One Assessment||The current EA process operates on the concept of one project, one assessment among provincial, federal and Indigenous jurisdictions, based on a single process to support separate provincial, federal and Indigenous decisions.||Revised EA legislation will continue to support the concept of one project, one assessment.|
|Other Types of Assessments||Regional Assessments: There is currently no mechanism for regional assessments.
Strategic Assessments: The Minister has authority to order a strategic assessment of any policy, enactment, plan, practice or procedure of the government and make recommendations.
Class Assessments: The Executive Director may approve a class assessment that addresses the potential impacts of a specified category of reviewable projects.
|Regional Assessments: Regional assessments will be enabled under the new legislation. When directed by the Minister, targeted regional assessments can be used to fill information gaps and provide recommendations for future project-specific EAs in that region. The Minister will be enabled to enter into agreements with other agencies or jurisdictions, including Indigenous groups, in relation to developing, undertaking and implementing a regional assessment.
Strategic Assessments: The authority of the Minister to order a strategic assessment will be retained.
Class Assessments: Class assessment is a streamlined assessment option to address specified potential environmental, economic, social, and cultural or health effects of a specified category of reviewable projects. For each specified class, standard information requirements and certificate conditions will be applicable to that class of projects and posted publicly, supporting the goal of predictability and transparency.
|Assessment Requirements||Under the current EA process, the potential effects to be considered in an EA assessment are determined by the Executive Director and set out in a Section 11 order.||Bill 51 articulates the list of matters that must be assessed in every assessment:
(a) effects of a project on Indigenous nations and rights;
(b) positive and negative direct and indirect effects of the reviewable project, including environmental, economic, social, cultural and health effects and adverse cumulative effects;
(c) risks and uncertainties associated with those effects;
(d) risks of malfunctions or accidents;
(e) disproportionate effects on distinct human populations, including populations identified by gender;
(f) effects on biophysical factors that support ecosystem function;
(g) effects on current and future generations;
(h) consistency with any land-use plan of the government or an Indigenous nation if the plan is relevant to the assessment;
(i) greenhouse gas emissions, including the potential effects on the province being able to meet its targets under the Greenhouse Gas Reduction Targets Act;
(j) 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;
(k) potential changes to the reviewable project that may be caused by the environment; and
(k) other prescribed matters.
|Indigenous Consultation||Consultation requirements are driven by reference to strength of claim.||Indigenous participation in EAs will no longer be driven by reference to strength of claim. Indigenous nations will identify themselves during the Early Engagement phase. Indigenous nations can still engage in the EA process without being a participating Indigenous nation.|
|UNDRIP||No UNDRIP-specific provisions are included in the current Environmental Assessment Act (EAA).||Bill 51 proposes to advance reconciliation and support implementation of UNDRIP. The following tools will be enabled:
– The new Act will allow the Minister to enter into agreements with Indigenous nations for the purposes of conducting any aspect of an EA.
– Provision for an Indigenous nation to enter into an agreement with the Minister to conduct the entire assessment on behalf of the Province (substitution) provided certain conditions are met. Ministers will still make a decision after a substituted process.
– Provision for an Indigenous nation to conduct part of the assessment, e.g. the potential effects of the proposed project on the Indigenous nation. Indigenous-led assessments will be required to be transparent and timely.
– Requirement to apply Indigenous knowledge to decision-making in EAs and provisions to protect confidentiality of Indigenous knowledge considered in the EA.
|Consensus Building & Dispute Resolution with Indigenous Groups||The EAA does not contain consensus-building provisions or any dispute resolution mechanism.||Participating Indigenous groups will have the opportunity to communicate their consent or lack of consent at two decision points in the EA: (i) at the EA readiness phase, to exempt the project from an EA and go straight to permitting, or terminate the process; and (b) whether to issue an EA certificate for the proposed project.
In the event consensus cannot be achieved, a dispute resolution mechanism will be available, the details of which will be established in subsequent regulations.
|Public Comment Periods||Under the current EA process, there are two public comment periods: (i) on the assessment plan and information requirements, and (ii) on the draft application.||Bill 51 introduces two additional public comment periods compared to the current EA process, including (i) early engagement phase, and (ii) on the draft Assessment Report and certificate conditions.|
|Expert and Peer Reviews||While EAO seeks input from scientific professionals, Indigenous groups and other agencies as part of its review, there is no independent technical review of the proponent’s and technical studies.||Bill 51 would establish a Technical Advisory Committee to conduct an independent review of all the proponent’s and technical studies. During the Process Planning phase, EAO will identify whether if independent experts will be used.
Also, the CEAO may establish a Community Advisory Committee to consult with community members affected by a project and advise the CEAO of the effects of the project on the community.
The proponent will no longer conclude on the significant of effects in its application; EA will make all necessary conclusions regarding the significance of effects based on the information provided.
|Timelines||Legislated timelines are set out in the Prescribed Time Limits Regulation (which sets a time limit of 45 days for Ministers to make a decision on whether or not to certify a project), the Concurrent Approval Regulationand the Public Consultation Policy Regulation.
Project-specific timelines may be set out in procedural orders for steps not subject to legislated timelines.
The Minister of Environment or EAO may extend any time limits under the EAA.
|Statutory maximum timelines for major EA process phases will be set out in legislation. Project-specific timelines and processes will be developed to seek to ensure that project EAs are completed within appropriate timeframes. Project timelines will be tracked and reported publicly.
The CEAO will have discretion to extend or impose timelines; a proponent or a participating Indigenous nation can request an extension through application to the CEAO.
The intended outcome is an EA process which results in overall shorter timelines (570 days anticipated) due to a more efficient Process Planning phase. According to the BC government, the current EA average time is 1,414 days.
Steps in the Early Engagement Process
As noted above, Bill 51 proposes a new early engagement process. The following early engagement steps are envisioned:
- Submission of an Initial Project Description and an engagement plan that addresses engagement with the EAO, Indigenous groups, municipalities, government agencies and the public.
- The Initial Project Description will be posted for public comment; 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 groups.
- In order for the assessment to move forward, the proponent must then submit a Detailed Project Description. The idea is that comments on the Initial Project Description will provide an early indicator of the issues that may be of public concern, which the proponent can address in the Detailed Project Description.
- Once the Detailed Project Description has been submitted, 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 EAO determines that the EA is ready to proceed, it will engage in public consultation for a period of 30 days on the proposed EA process order.
Expanded Compliance & Enforcement Regime
In terms of compliance and enforcement, the EAO will continue to coordinate compliance and enforcement activity with its regulatory partners. The new EA regime will look to:
- define the powers/authorities of enforcement officers to conduct inspections and investigations;
- introduce authority to issue tickets and administrative monetary penalties;
- increase the range of fines for court-imposed penalties;
- enable creative sentencing including prohibitions and directions to take various actions, financial or otherwise; and
- enable agreements with Indigenous nations relating to compliance and enforcement, including working with Indigenous guardians.
Projects that are currently being assessed or have received EA certificates under the current EAA will be transitioned to the new Act. Any proponent may request that their project be brought into the new Act if an application has not yet been submitted. Projects that have been issued a Section 11 Order at the time the new Act is brought into force will proceed under the current EAA (a transitional project) for the purposes of obtaining an EA certificate. Projects that have not received a Section 11 Order under the current Act will need to submit an Initial Project Description under the new Act. Any transitional project will have six months to file a notice to indicate their desire to have an application accepted under the current Act and will be required to complete the EA process within three years. Upon expiry, the CEAO could terminate the assessment process or by Order set procedures to transition the project to the new Act.
Amendments and applications for exemption initiated by the proponent before the new Act comes into force will be processed in accordance with policy and procedures in place under the current Act. Any project with an existing EA certificate will be subject to the new Act with respect to amendments, compliance and enforcement and post certificate administration provisions. Cancellation of a non-operating project could only occur on the 20th anniversary of the issuance of the certificate, or on the 5th anniversary of the new EA Act coming into force, whichever is later.
As with most legislation at this stage, many details still need to be worked out. Bill 51 is expected to come into force in late 2019, once key supporting regulations and policies have been developed. As a priority, EAO will be developing the following regulations: (i) Reviewable Projects Regulation; (ii) Regional Assessments; (iii) Dispute Resolution; and (iv) Fees and Funding. Stay tuned for further developments.