West Coast Enviornmental Law
Research Foundation
NewsletterWest Coast Enviornmental Law
Research Foundation
NewsletterThe long-awaited Environmental Assessment Act for B.C. was introduced in the provincial legislature May 5 as Bill 29. The Act contains a unified environmental assessment process for projects and activities undertaken in the province, including projects and activities previously assessed under the Major Project Review Process, the Mine Development Assessment Process and the Energy Project Review Process. It will be applied to a range of industrial, energy, mining, waste and water management, aquaculture, food processing, transportation, and tourism projects. The specific application of the Act will be set out in regulations that were tabled in draft form and will be finalized over the next months.
WCELA Staff Counsel Ann Hillyer participated in a consultation process headed by the Deputy Minister of Environmental Assessment to develop proposed amendments to the legislation and draft regulations. Three representatives of the Environmental Assessment Caucus of the B.C. Environmental Network also participated.
Bill 29 contains many improvements over the legislation introduced in 1993 and later withdrawn, including:
However, Bill 29 could be improved significantly by introducing a small number of simple, but important, amendments. WCELA has submitted a brief to government with recommendations for the key areas of the Act requiring change and is urging the government to introduce amendments to strengthen the legislation prior to enactment. Our recommendations include:
The Act sets out a review process with three stages: an application stage, a project report stage, where detailed studies are done, and a public hearing stage. Not all projects will go through all three stages. At the end of the first and the second stage the environment minister and another designated minister have the opportunity to approve or reject a reviewable project, or send it on for further review.
The decisions of the ministers should be subject to a threshold test for when reviewable projects must undergo further review. This will eliminate needless uncertainty for both the public and the proponent regarding the criteria governing when a project will require further assessment.
It will also better harmonize the Act with the approach adopted in the Canadian Environmental Assessment Act.
Specifically, the Act should provide that reviewable projects that will likely have significant adverse environmental effects or that generate significant public concern must be referred on by the ministers for further review.
The Act should provide for mandatory review by the Environmental Assessment Board of projects that, because of their potential impact or size, obviously will require full review with public hearings. Therefore, the Act should contain the authority to define, by way of regulations, reviewable projects that must be subject to full assessment by the Environmental Assessment Board. This will ensure greater certainty for all parties regarding the operation of the Act and will allow proponents to plan in advance in relation to those projects that will be required to go through the full review process. It will also eliminate any public debate in relation to those projects about whether or not a project should go to the public hearing stage and, instead, focus the attention of all parties on the potential impacts of the project.
To ensure the assessment process is conducted using unbiased, objective data and to ensure maximum public confidence in the data used in the process, data collection and information gathering in relation to the reviewable project and its potential impacts should be conducted by experts selected and operating at arm's length to the proponent.
Therefore, the project committee should be authorized to oversee these aspects of the review by selecting appropriate experts, directing the impact studies and the data collection, and charging back to the proponent the cost of this work. The project committee should also be authorized to obtain information directly from the proponent or to direct the proponent to supply data, as necessary.
The purpose of the project committee now includes providing expertise, advice, analysis and recommendations to the executive director and the ministers and advising about the potential effects of the reviewable project. Another purpose should be added to deal with the collection of data at arm's length from the proponent.
The project committee has considerable power under the Act. To ensure the assessment process operates on an unbiased basis and enjoys full community support, the Act should require the executive director to include public interest representation on the project committee.
The Act establishes a project registry and lists what must be filed and kept at the project registry. These requirements should make the operation of the Act much more effective for the public. The public registry should include a modern, electronic information system with the requirement that information be submitted to the executive director or the board in electronic format, where feasible.
The application of the Act is crucial to its effectiveness: it should be comprehensive and very broad. The regulations should require that all physical works and activities -- regardless of size -- with the potential to cause an environmental impact or for which there is a significant level of public concern must be reviewed under the Act.
The Act now provides that timelines will be set out in regulations. This is a significant improvement over Bill 32. It is essential that timeframes for public input are consistent, to avoid unnecessary confusion, and sufficiently long enough to facilitate meaningful public participation.
-- Ann Hillyer
Canada, having signed free trade agreements with Mexico and the United States and having completed negotiations for worldwide liberalized trade under the General Agreement of Tariffs and Trade (GATT), has turned to the issue of interprovincial trade barriers. While the internal trade negotiations have not attracted the attention that NAFTA, the Canada-U.S. Free Trade Agreement or GATT have attracted, an internal trade agreement is potentially as threatening to innovative environmental protection as NAFTA.
Even though environmental protection measures have not historically been a block to interprovincial trade, there are indications that the internal trade agreement will require that environmental protection measures -- laws, regulations and policies -- be no more trade restrictive than necessary. There have also been suggestions that any trade effects must be in proportion to the environmental protection measure's environmental goals.
The problem with an agreement to avoid unnecessary trade restrictions and disproportionate effects on internal trade is that an unelected dispute resolution panel made up of trade bureaucrats will be the arbiters of whether an environmental protection measure is unnecessarily trade restrictive or has disproportionate effects on trade. Bureaucrats deeply imbued in the dogma of free trade may see any effect on the free movement of goods as being disproportionate, and may not appreciate why one policy is adopted over an alternative policy.
For instance, if the provincial government decides to rely on deposit refund systems rather than blue box systems to decrease its solid waste, this decision might be challenged by other provinces or beverage producers who argue that blue boxes are a less trade restrictive means of reducing municipal waste. Industry has even called different provincial standards for waste discharges -- such as B.C.'s higher pulp and paper effluent standards -- barriers to trade.
Even if a trade panel eventually rejects arguments that higher discharge standards or deposit refund systems are invalid under the trade agreement, the spectre of this sort of challenge has a chilling effect on policy makers. Government policy makers tend to be reluctant to push for any measures that run any risk of being successfully challenged. They may feel that they are required to act in tandem with other provinces. A perceived need for consensus among all provinces ensures that innovations in environmental protection will be infrequent.
An internal trade agreement is unacceptable if it allows measures which have been adopted for environmental protection reasons to be challenged by those who dislike the measures.
It is also essential that the agreement allow special measures which protect the economies of resource extraction dependent communities. In the move toward sustainable forestry or fisheries it is essential that provinces be able to encourage value added processing of timber, fish and other natural resources in order to realize both sustainable communities and a sustainable environment.
Federal negotiators have said that they want the internal trade agreement to go a step further than NAFTA and outlaw bans on raw log exports. This would mean that transition strategies like British Columbia's forest renewal strategy, which give preferential treatment to local communities, could be challenged. Without transition strategies which protect jobs in resource dependent communities, it becomes harder for governments to pursue wilderness preservation and improved logging practices.
Whether or not internal trade barriers as a whole are seen as a problem, studies by the Conference Board of Canada have indicated that environmental measures have not been significant barriers to trade in the past. The provincial and federal governments should not allow the holy grail of free trade to blind them to this fact, and should not sign any agreement which inhibits measures that elected governments (rather than unelected trade bureaucrats) consider advisable for environmental protection or sustainable communities.
Anyone interested in obtaining a copy of West Coast Environmental Law Association's comments on the Internal Trade Agreement should contact our office at (604) 684-7378.
-- Chris Rolfe
Longtime West Coast staff member Christine Lundberg died May 13 at the age of 43, succumbing to an infection following chemotherapy for breast cancer. Her family and friends held a memorial service at the Canadian Memorial United Church in Vancouver on May 18.
Chris was the office manager and research coordinator at WCELA/RF from September 1981 to June 1990. She 'did everything' at West Coast with unique enthusiasm and warmth -- the newsletter, the books, grant applications, volunteers, students, the library, fundraising appeals, AGMs, board meetings, purchasing, publications, personnel, phone calls, book tables, and much more.
Chris brought the West Coast office through a decade of great change. West Coast's services expanded exponentially to meet the sudden new public demand for environmental legal services. The number of people at WCELA/RF more than doubled. Office technology changed from typewriters to laser printers, from cut-and-paste to desktop publishing. Chris rose to meet each new challenge, and nurtured a strong cooperative spirit among the staff and volunteers.
Chris worked on hundreds of local issues, from the Site C dam to South Moresby, from pesticides to pollution from pulp mills. She made an invaluable contribution to protection of the environment in B.C. She was wonderful to work with. She is sorely missed.
The AGMs of WCELA and WCELRF will be held on the evening of Thursday, June 23rd. This year, the meetings and banquet will take place at the Granville Island Banquet Centre, in Vancouver. We are delighted to have Toby Vigod, the Assistant Deputy Minister of Environment, Lands and Parks, as our keynote speaker for the evening, and we are pleased to announce that the Zaniacs will be returning to provide live music.
This year marks the 20th anniversary of West Coast Environmental Law. We will be taking a look back at the events and forces that have shaped our first twenty years. This AGM will also provide an opportunity to look forward, and to contemplate the role of West Coast in the future.
The reception for the AGM will begin at 6 pm. The business meeting will start at 7. Dinner will follow. After dinner, recollections of, and visions for, the organizations will be shared. As well, Toby Vigod will discuss the state of the Ministry of Environment, and its current focus on policy development and consultations with the public.
Tickets for the evening are $25/person, and may be reserved by calling our office at 684-7378.
We hope you can join us for this special evening!
WCELRF Newsletter copyright 1994, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, Glenna Forrest, Chris Heald, Ann Hillyer, Catherine Ludgate, Denice Regnier, Carol Reardon, Chris Rolfe, and Kim Stanton. Subscription information is at left. West Coast Environmental Law Research Foundation does research and education and maintains an environmental law library. West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of West Coast Environmental Law Research Foundation and West Coast Environmental Law Association 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 West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to West Coast Environmental Law Research Foundation are tax creditable.