On 27 November 2018, the Province of BC passed the new Environmental Assessment Act. Characterizing the new law as “revitalizing the environmental assessment process,” the Province has revised the process to more effectively consider First Nations legal rights and advance reconciliation; improve transparency and participation; and protect the environment. A notable element of the new provincial EAA is the requirement that proponents obtain Indigenous consent at various stages of the review process.
The new federal Impact Assessment Act, expected to be enacted in June 2019, shares some similarities with the new provincial EA Act, with respect to requirements for public and Indigenous participation and a focus on sustainability, but does not go as far as requiring Indigenous consent.
Hemmera’s regulatory experts have examined the impending EIA legislation and offer the following summary of the key features of these regulatory changes.
Provincial Environmental Assessment Act
- Facilitating reconciliation with Indigenous people has been added as one of objectives of the legislation. For some proponents, this will mean changes in the way they plan consultation as well as higher levels of effort during the conduct of consultation.
- Consistent with objective of facilitating reconciliation, Indigenous nation consent is now required at multiple stages in the new process. In order to maintain timelines for reviews, a time-bound facilitated dispute resolution process has also been added. This process will enable the EAO to make key process decisions even if consensus is not reached with Indigenous nations.
- More early-stage scoping and consultation with Indigenous and public groups will be needed from proponents. For some proponents, such requirements formalize best practices that have been proven effective at proactively finding solutions.
- The documentation requirements, especially during scoping when the Project Description and Assessment Plan are developed, have changed. Such changes are closely linked to requirements for more engagement periods throughout the assessment process.
- There will be a more stringent process for testing whether a project can be exempted from the EA process. Exemption requests will take into account a number of factors including the reconciliation and sustainability objectives of the revised act.
- New co-management requirements with Indigenous nations have been added. In addition, in some cases, self-assessments by Indigenous nations will be permitted. Both of these changes are aligned with UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
- The “trigger” for projects to require assessment remains with the Reviewable Projects Regulation, but the specific thresholds within the regulation are expected to change.
- The requirement for proponents of non-threshold projects within certain categories to notify the Environmental Assessment Office (EAO) and seek a decision on whether an assessment maybe necessary is a new feature of the Act.
- The one-project, one-process approach will remain available for projects triggering both provincial and federal review. Similar to the new federal “kill switch”, the EAO can decline project review before the process starts if “extraordinarily adverse effects” incompatible with climate or other policy are identified.
- The required content to be provided in an Application will be enshrined in the legislation, rather than in guidance and proponents need to develop a project-specific Assessment Plan that outlines scope, process, and methods.
- The revised Act will allow assessments to consider both adverse and positive effects and require consideration of other factors that are becoming common in many jurisdictions: gender, climate change, and sustainability for future generations.
- The Minister will have the power to introduce commissions, hearing panels, and Indigenous nation assessments as an alternative to EAO-led assessments.
- Proponents will no longer be allowed to provide a determination of the significance of effects in EA applications. The EAO and Indigenous nations will determine the level of effects with the Ministers making ultimate decisions on project approval.
- Transition provisions will enable approved projects to continue if they are substantially started or operational. Projects with section 11 Orders under the old legislation may continue to be managed under those provisions, within stated time constraints.
Federal Bill C-69 – Impact Assessment Act
- Early and ongoing consultation will be required, starting before determination of the assessment scope. This change aligns with existing requirements for scoping documentation and consultation under British Columbia legislation, and is proposed for the NW Territories.
- The National Energy Board will be abolished, replaced with the Canadian Energy Regulator; allied to this change, the new federal Act removes limitations for “directly affected parties” only to participate in impact assessment processes.
- More factors will be considered during impact assessment, including positive effects, sustainability, gender, and climate change, considerations.
- The “trigger” for assessment remains in the Regulations Designating Physical Activities, which will be revised and will likely provide for assessment of a wider range of projects.
- Project approval decisions, made by the Minister, will be supported by a public interest test that considers effects on Indigenous peoples, sustainability measures, extent of effects and mitigation, and climate change implications.
- A new ministerial power will allow government to veto a project during early stages of regulatory engagement if there are clearly unacceptable effects.
- An improved online information system will be launched, similar to BC’s ePIC document hosting portal.
- Advisory bodies will be established to support the Canadian Environmental Assessment Agency, renamed the Impact Assessment Agency, during the review process.
- The substitution process will remain in place for streamlining federal and provincial reviews.
- Similar to provisions that are already in law in other jurisdictions, the new federal Act will include a process for obtaining amendments to approvals, timelines for initiating construction, regional and strategic assessments, and enhanced compliance and monitoring.
What does this mean? Implications for new projects in BC
While the intent of the early scoping and a consent-based approach may be to resolve issues early and streamline processes, it is unlikely that such processes will result in substantive reductions in proponent costs or expedited approval times.
It is more likely, most notably in the short term, that costs for EIA preparation and review will rise as a result of more process steps, broader scope of issues to be considered and increased consultation requirements at multiple points before, during, and after approval processes. Both federal and provincial legislation retain the benefits of legislated timelines, substitution, and the one-project, one-process approach that does streamline assessments.
The introduction of a “kill switch” in both the federal and provincial Acts, may help to limit investment in projects that may be considered unacceptable due to adverse effects that cannot be fully mitigated, particularly to Indigenous groups. In addition, the inclusion of a process for seeking amendments to federal approvals will be a welcome, and long overdue, change that will benefit project proponents.
Provincial and federal governments have acted on their election promises to revise and modernize environmental impact assessment legislation to reflect contemporary issues and feedback from interests that participated in the change processes. The changes include some of the best elements of the previous laws, new elements like sustainability and gender considerations, that will require changes in thinking, and in the case of BC’s new legislation, very bold Indigenous nation consent thresholds and reconciliation goals.