November 26 2012 Notes BC EA Law

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BRITISH COLUMBIA
ENVIRONMENTAL
ASSESSMENT LAW
NOVEMBER 26, 2012
Overview
• Environmental Assessment Act Elements
• Environmental Assessment Act – Issues
• BC Auditor General Report
• Northwest Institute Report comparing
Federal/Provincial EAs for Prosperity
Mine
Environmental Assessment Act
• Environmental Assessment Act (EAA)
passed in 1994, amended in 2002
• Environmental Assessment Office
(EAO) established under EAA to
provide “open, accountable and
neutrally administered process” to
assess “reviewable projects”
• Reviewable Projects Regulation
identified projects to be reviewed
(energy, mining, industry)
Purposes
• “promote sustainability by protecting the
environment and fostering a sound
economy and social well-being”
• “prevent or mitigate adverse effects of
reviewable projects”
• Repealed in 2002 amendments
Key Elements
• Projects reviewable by virtue of
regulation, EAO executive director
discretion, ministerial order
• Reviewable projects not be constructed
without provincial EA certificate
• EAO reviewable project determination
• EAO makes order on scope,
procedures, methods for project EA
• Proponent proposes terms of reference
for EAO approval
Key Elements
• Proponent assembles required
information and public input, applies for
EA certificate
• EAO reviews application and
assessment report for two or more
ministers with jurisdiction
• Ministers decide to issue certificate,
specify conditions, or refer for further
assessment
Key Elements (1994)
• Mandatory project committees to advise
ministers (provincial, federal, municipal,
regional, First Nations representatives)
• Public advisory committee to make
recommendations to project committee
• Mandatory public notice provisions at
each of four EA process stages
• Environmental Assessment Board to
conduct hearings on projects referred
by Ministers
Key Amendments (2002)
• Provided decision-making flexibillity for
EAO and Ministers (“less regimented”
“more timely and cost-efficient”)
• Mandatory project committees replaced
by working groups with reduced role
• Public advisory committees eliminated
• Public consultation mainly by proponent
• Mandatory public notice provisions
replaced by policy guidance
Reviewable Project Regulations
• Coal Mine – 100,000 t/yr (1994),
250,000 t/yr (2002)
• Mineral Mine - 25,000 t/yr (1994),
75,000 to/yr (2002)
• Energy Project - 20 MW (1994), 50 MW
(2002)
• Urban Transit Rail - 8 km (1994), 20 km
(2002)
Implications of Thresholds for
Reviewable Project Regulations
• Vancouver Airport Light Rail Project
would not have been reviewed (less
than 20km)
• BC Energy Plan opened up hydro
development to private sector
– January 2009 – 145 water power licences
plus 621 applications (many at 49MW);
only 25 subject to BC EA process
Key Issues
•
•
•
•
Project Thresholds
Links to land use planning, strategic EA
Adequacy of public participation
Suitability of EA to meet Crown
consultation responsibilities
• Rigour of Process
Prosperity Gold/Copper Mine
Prosperity Mine
Prosperity Mine
• Proponent Taseko re-activated BC EA
process in 2002, federal process in 2006
• RAs: DFO, Transport Canada, NRCan
• DFO referred project to Environment
Minister for panel review in February 2007
• BC decided to proceed with provincial
review in June 2008 not joint panel review
• Environment Minister referred to federal
review panel in January 2009
Prosperity Mine
• EA processes conducted separately with
province approving project before federal
panel review completed
• BC approved mine; feds rejected mine on
recommendation of federal panel
• Why different findings and conclusions?
Comparison of BC and
Federal EA Processes
• Analysis by Northwest Institute July 2011
• BC EAO “only one significant adverse
effect” “limited to a discrete location” loss
of fish and fish habitat at Fish Lake/Little
Fish Lake
• BC ministers advised adverse effects
justified by “very significant employment
and economic benefits” and proponent’s
fish habitat compensation program
Comparison of BC and
Federal EA Processes
• Federal panel found eight additional
significant eight adverse effects: grizzly
bears, navigation ,local tourism, grazing,
First Nation’s trapline, First Nations’
traditional land use and cultural heritage,
Aboriginal rights, future generations.
• Proponent’s fish habitat compensation
program not viable, mitigation not
sufficient
Comparison of BC and
Federal EA Processes
• Why divergent outcomes?
• Process: BC “review and comment”
process vs. federal panel hearings
• Information: Federal panel had more
complete information (DFO, First Nations)
• Expertise: Federal panel members highly
qualified (chair with 27 years experience);
EAO four staff on working group
Comparison of BC and
Federal EA Processes
• Participant Funding – feds yes; BC no
• Significance Determination - EAO used
large geographic area as baseline; feds,
CEA Agency guidelines
• Mitigation: BC lacked clear mitigation and
compensation policies, deferred to future
planning efforts; feds “no net loss” fish
habitat policy
Comparison of BC and
Federal EA Processes
• Standards and Criteria: BC lacks
standards/criteria to guide decisionmaking comparable to Fisheries
Act/SARA
• Legislation: BC Environmental
Assessment largely procedural, lacked
many substantive aspects of CEAA
• Independence: Federal Panel
independent unlike EAO Working Group
Comparison of BC and
Federal EA Processes
• Federal panel found eight additional
significant eight adverse effects: grizzly
bears, navigation,local tourism, grazing,
First Nation’s trapline, First Nations’
traditional land use and cultural heritage,
Aboriginal rights, and future generations.
• Proponent’s fish habitat compensation
program not viable, mitigation not
adequateWhat accounts for such
divergent outcomes? This report reviews
Report of BC Auditor General on
BC EAO July 2011
• Focused on post-certification
• EAO’s oversight of certified projects not
sufficient to ensure that potential
significant effects are avoided/mitigated
• EAO not ensuring that:
– certificate commitments are measureable,
enforceable
– monitoring responsibilities are clearly defined
– compliance and enforcement actions are
effective
Report of BC Auditor General on
BC EAO
• EAO not evaluating effectiveness of
environmental assessment mitigation
measures to ensure projects are achieving
desired outcomes
• EAO not making appropriate monitoring,
compliance and outcome information
available to public to ensure accountability
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