West Coast Environmental Law Research Foundation Newsletter

New Environmental Assessment Law A Mixed Blessing

For many years, WCELA has strongly supported the concept of legislating a comprehensive provincial environmental assessment process. Bill 32, the Environmental Assessment Act recently introduced into the Legislature, is a mixed blessing in that regard. On the one hand, it integrates existing provincial environmental assessment processes into one legislated regime. On the other hand, it fails to implement many needed reforms to the existing processes. We urge the government to introduce amendments to strengthen the legislation before it is finalized.

These are the key positive features of the Act:

• it makes it an offence to implement a reviewable project without approval through the environmental assessment process; offenders can be required to pay compensation or restitution if they do not abide by the approval process;
• the Minister of Environment joins the "responsible minister" (Energy, Mines and Petroleum Resources, etc.) to make joint decisions on project approval;
• the establishment of an Environmental Assessment Board;
• the establishment of an Environmental Assessment Office, with an executive director;
• provision for the possibility of intervenor funding;
• provisions for requiring proponents to pay for the costs of a review;
• the establishment of a public registry;
• some ability to enforce the terms of approval;
• the listing of details required to be included in project reports.

However, the Act should be strengthened in a number of areas. Our key recommendations for improvement of the Act are as follows:

• the Act should apply to all works and activities that may have significant adverse environmental effects, and it should be designed to handle small and medium-sized projects, not just the large projects that are already covered by the three existing assessment processes;
• the Act should provide that public consultation and public involvement in the assessment of a project and in mediation in relation to the project are the responsibility of the Environmental Assessment Office and the Environmental Assessment Board, not the proponent;
• the Act should provide authority for a public participant funding program, the details of which should be set out in regulations;
• the Act should provide a mechanism to ensure that projects that will likely have significant adverse effects or that require major capital expenditures will be automatically referred to the Environmental Assessment Board, which would then take charge of a full public review at the earliest opportunity;
• the Act should require mandatory, not optional, consideration of the need for, and alternatives to, a project;
• the Act should require public notice and an opportunity for comment at the very beginning of the process, not after the proponent has already completed detailed, government-directed and government-approved impact studies;
• short, rigid deadlines applying only to the public and not to government agencies or the proponent should be deleted from the draft Act; and replaced by consistent, fair time deadlines applying equally to all parties should be set out in regulations, with provision for extensions where warranted;

Tatshenshini Protected As Provincial Park

One million hectares of land surrounding the remote Tatshenshini River in northwestern B.C. has been preserved as a park by the provincial government. The spectacular scenery, pristine wilderness, wildlife and biodiversity of the area will now be preserved for future generations. Downstream from the Tatsheshini is Alaska's Glacier Bay, a UNESCO World Heritage Site. Preservation of the Tat completes the largest international preserve in the world.

This decision puts a halt to the proposed Windy Craggy copper mine development. The threat to the river and its fisheries from acid mine drainage was substantial, particularly since Windy Craggy was located in the most active earthquake zone in North America.

The government has promised to pay fair compensation to the mine owners, but hopefully will not bow to pressure from Royal Oak Mines. Royal Oak bought a 40% interest in Geddes Resources, the company that has been developing the mine site, only two months ago. Royal Oak Mines says it is entitled to $500 million, the value of the mine if was successfully developed. Royal Oak paid $10 million for its 40% share of Geddes Resources. Even the Vancouver Sun's business reporter rejects this idea, saying there is a big moral difference between a shareholder that inadvertently encounters an environmental problem and one who knowingly buys into one. Royal Oak Mines is trying to make a huge profit from the taxpayers, not through any calculated business risk. It is also hoped that compensation will reflect that the Windy Craggy mine may never have been able to meet environmental conditions because of the particular problems associated with long term control of acid drainage at that site.

We applaud the provincial government's decision to preserve the magnificent Tat, and hope for a speedy and just resolution to the issue of compensation.

Environmental Mining Council of B.C.

Major conservation organizations work towards an environmentally sound mining industry

Groups like the B.C. Wildlife Federation, Western Canada Wilderness Committee, Sierra Club of Western Canada, Tatshenshini Wild and East Kootenay Environmental Society formed the Environmental Mining Council of B.C. in December 1992 to generate cooperative solutions to conflicts between the industry and environmentalists. There are 12 member groups with a combined membership of 75,000. The EMCBC is the first forum of its kind in North America, and is specifically designed to avoid the type of hostility between that has characterized the relationship between the forestry and environmental communities.

The EMCBC recognizes industry's concerns about its economic viability, and has a plan to move towards a solutions-oriented, environmentally acceptable mining industry. The plan has four components:

1. Environmental/Mining Issues Scoping Session

2. GIS Land Base Environmental Mining/Mapping Project

3. Low Impact Mineral Exploration Working Group, and

4. Pro-Active New Mine Pilot Project.

Preliminary work done by the Council shows that the majority of wilderness areas proposed for B.C. are in low conflict with mining issues. Of the proposed protected areas in B.C., about 80% have low potential for conflict with mining deposits, 10-12% have moderate potential and 5% have high potential. The Tatshenshini/Windy Craggy conflict is the exception, rather than the rule!

For more information, contact: Ed Mankelow, 246-3109 and Ric Careless, 886-8605.

Fisheries Violation Nets Big Fine -- Tioxide Co. Fined $4 Million For Discharges Into The St. Lawrence Seaway

On June 10, 1993, Tioxide Co. plead guilty to charges laid under the Fisheries Act of depositing deleterious substances in water frequented by fish. A judge of the Cour de Quebec ordered the company to pay $4 million: $1 million in fines, and $3 million for projects that protect fish and fish habitat. This is the largest fine ever levied against a Canadian company for breach of an environmental statute.

This case is a signal that governments are finally listening to the public's demand for better enforcement of environmental laws. WCELA testified before a federal Parliamentary Committee in 1990 on the need to increase the fines for violations of the Fisheries Act, and the need to include provisions allowing a court to order an offender to pay for clean up projects. We are pleased to see that some of the changes we lobbied for were put to good use in the Tioxide case.

New Contaminated Sites Law in B.C.

At long last, B.C. has new contaminated sites legislation. Bill 26, an amendment to the Waste Management Act, is a detailed, 40 page law containing technical requirements for site identification and remediation, and defining who is liable for costs of contaminated site remediation. Responsibility for remediation is based on the "polluter pays" principle.

WCELA has been working on this issue for several years. In 1990, the Research Foundation published a three-volume series on toxic real estate, funded by the Real Estate Foundation of B.C., focussing on the uncertain state of the existing law and recommending changes, some of which have been incorporated into the new law.

WCELA has also been a member of the Canadian Council of Ministers of the Environment (CCME) Core Group on Liability for Contaminated Sites since 1992. The Core Group, made up of four provincial governments, the federal government, two environmental non-governmental organizations, and three industry groups, devised common principles that could be used across Canada for contaminated sites liability. The Core Group's final report was completed at the end of March 1993. The report outlines the need for legislation to cast a broad net to determine potential responsible parties for contaminated site clean-up and lists factors to be considered in the liability determination and allocation process. WCELA is pleased that the new B.C. legislation incorporates the principles outlined in the Core Group's final report.

Many key areas in the new B.C. bill will need to be further defined by regulations. The government will not proclaim the legislation until the regulations are completed.The estimated date for proclamation of the bill is January 1994.

The new bill clearly states that liability for clean-up costs will be "absolute, retroactive and joint and several". The bill sets out a comprehensive list of potential "responsible persons" who may be liable for remediation costs including current or previous owners of the site, as well as generators and transporters of substances that caused the contamination. There is also a long list of exemptions which removes liability from "innocent owners, operators and transporters" (defined by the bill), government bodies involuntarily acquiring ownership of a contaminated site and owners of sites where the contamination occurred only as a result of migration from another site.

Identification of contaminated sites will occur through the requirements placed on certain parties such as an applicant for municipal redevelopment approval to prepare a site profile; and the provisions for both preliminary and detailed site investigations. All information gathered through these procedures will be filed in an innovative electronic site registry which will serve as a record for all contaminated site decisions made by the Ministry of Environment. The public has a right of access to the site registry. On-line access to the registry will be similar to the current system in place for on-line access to property information from the land title office.

The new law provides more certainty about the procedure that must be followed to remediate a site to acceptable standards. An applicant may choose to seek one of three different approvals recognized by the bill: an approval in principle of a remediation plan which can be used as "comfort" for municipalities, developers and lenders, etc., because it allows work to proceed; a certificate of compliance issued after a site has been remediated in accordance with contaminant concentration standards; or a conditional certificate of compliance issued if some contamination remains on the site. All three of these types of approvals or certificates will be registered in the electronic site registry.

WCELA's main concerns with this legislation are that the bill leaves too much discretion with regional waste managers and does not provide enough opportunity for public involvement in the determination of, and remediation plans for contaminated sites. The section of the bill on public consultation into remediation options for contaminated site allows a regional manager to decide at his or her discretion whether a public hearing should take place.

However, over all, the government is to be congratulated for introducing this new legislation. The bill specifically directs managers to prefer permanent solutions for site clean-up to the maximum extent practicable. The province also retains the right to take future action in the event that contamination is discovered after a site has been cleaned up. The bill is an important new addition to the arsenal of environmental protection laws available to government to ensure protection of B.C.'s environment.

The Act should require that material submitted to the executive director or the Environmental Assessment Board is deemed to be public, except for material submitted separately for which confidentiality is requested, in writing, along with reasons and the section of the Freedom of Information and Protection of Privacy Act relied upon;

• the Act should not supersede the permitting and approval processes and appeals in the Waste Management Act and the Water Act, and the Act should state clearly that it is not possible for a project approval certificate to contain environmental standards that are less stringent than standards under those Acts;
• the Act should specify that the public registry will include a modern, electronic information system, and that information will be required to be submitted to the executive director or the board in electronic format where feasible;
• the Act should empower the executive director to invite experts or members of the public to serve on a project committee, and there should be provision for the project committee to receive public input, at the earliest possible opportunity;
• the Act should establish that the Environmental Assessment Board has an uneven number of regular members, whose terms are fixed to ensure the board is sufficiently independent of government and cabinet;
• the Act should embody positive purposes, such as promoting and ensuring sustainability, in addition to preventing or mitigating adverse effects;
• the Act should require effective follow-up monitoring in the event that a project receives a project approval certificate and should provide the authority for enforcement of environmental terms and conditions, including financial security provisions as one of the compliance enforcement options; and
• the Act should provide for public notice and an opportunity for comment regarding the amendment of a certificate of approval.

For a full copy of our brief to the government, please contact our office at 684-7378.

AND A GOOD TIME WAS HAD BY ALL...

The Annual General Meetings of West Coast Environmental Law Association (including the Environmental Dispute Resolution Fund) and West Coast Environmental Law Research Foundation were held on Tuesday, June 22nd, at the Maritime Labour Centre in Vancouver.

WCELRF Newsletter, copyright 1993, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Morgan Ashbridge, Ann Hillyer, Catherine Ludgate, Linda Nowlan, Denice Regnier, Chris Rolfe and Wendy Grandan. WCELRF does research and education and maintains an environmental law library. The West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of WCELRF and WCELA is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of the West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to WCELRF are tax creditable.

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End of West Coast Environmental Law Research Foundation Newsletter Vol 17:2, July 6, 1994

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