One expects a certain amount of rhetoric from the Speech from the Throne, but nonetheless, it takes a bit of gall to describe the Canadian Environmental Assessment Act (CEAA), one of Canada’s most important environmental laws, as a “Byzantine bureaucratic practice” that holds “jobs and investment hostage.”
What’s got the BC government so worked up? Currently environmental assessments are carried out in some cases by both the federal and provincial governments. The province wants the federal government to deal with the current “hostage situation” by amending CEAA to “create a unified federal‑provincial review process that does away with redundancy and unnecessary costs.” – i.e., a “one-stop shop”.
The environmental community gets a bad rap for defending unnecessary regulation. Sooner or later someone from government or industry is going to suggest that West Coast Environmental Law’s support of CEAA amounts to red tape and duplication. So let me say up front: West Coast has always supported a streamlined and harmonized process that avoids duplication IF, and this is a BIG IF, the process is strong, protecting the environment and recognizing that both the federal and provincial governments need to work together. All indications are that the type of unified process that the province is calling in its Throne Speech for would not be an improvement.
To a large extent the federal and provincial governments already work together to reduce or eliminate duplication between the two levels of government. But current agreements recognize that, while both the federal and provincial governments have an important obligation in protecting the environment, they also have different responsibilities under Canada’s Constitution. Canada is responsible, for example, for protecting fish habitat, while BC is responsible for protecting water quality. Any joint-process must make sure that the Canadian government gets all the information it needs to protect fish habitat and that the BC government gets all the information it needs to protect water quality. We cannot support a call for “One project, one process” if that single process is led by one level of government while the other is given a back-seat role in environmental protection.
The throne speech, by calling for amendments to CEAA but not also to the provincial environmental assessment process, implies that the federal process should be harmonized with the provincial process. This is an argument that the province has been making repeatedly. There is nothing stopping the BC government from amending the BC legislation to avoid duplicating the requirements of the CEAA. But that’s not what’s being proposed in the throne speech.
A harmonized process should not involve weakening either the federal or provincial environmental assessment processes, but should be based on the best of both processes. And it should allow both levels of government to fulfill their constitutionally mandated role. However, in many ways the BC environmental assessment process is weaker than the federal process and more difficult for the public to participate in. That’s not to say that the federal process is perfect, or even adequate. Environmental assessment processes at both levels have a disturbing tendency to find that major, environmentally destructive projects will not cause a significant adverse effect.
However, let’s compare some key features:
|Feature||BC Envirt’l Assessment Act||Canadian Envirt’l Assessment Act|
|Predictable process?||No – The Executive Director of the Environmental Assessment Office fashions a new process for each assessment.||Yes, all of the basic approaches to assessment are set out in the Act.|
|Guaranteed public process?||Not required by the Act, although as a matter of policy it is usually offered.||Yes; clear requirements for public notice for all projects, and specific opportunities for public input for larger projects|
|Funding to help the public participate in EA processes?||No||Yes for larger projects|
|Requires government to consider the environmental impacts of their decisions?||BC’s environmental assessment process generally only requires the assessment of very large-scale projects, and ignores other projects altogether.||Yes. The federal government generally does at least a minimal assessment for all projects falling within its authority.|
|Access to information||Yes – the Act is a bit weak on requiring that EA documents be made available, but in fact the Environmental Assessment office has made most documents available.||Yes – The Act is fairly strong in terms of requiring documents to be publicly available, but in actual fact these documents are generally removed after the assessment is completed – in our view in violation of the Act.|
For those looking for more detailed analysis, West Coast Environmental Law published a backgrounder on the flaws with the current BC Environmental Assessment Act when it was first enacted, in 2002. The opposition – at the time numbering just 2 MLAs – actually read this analysis out in the legislative debates.
The province did not reply to our concerns at the time, although more recently, after our backgrounder was raised in California’s debates over whether power generated in BC was truly “green” or not, the BC Environmental Assessment Office (BCEAO) wrote a reply. Interestingly, the BCEAO’s response for the most part does not disagree with our concerns about the legislation, but rather asserts that they have chosen to conduct environmental assessments more responsibly than our Backgrounder feared might be the case.
While I have not conducted a systematic quality review of BC’s environmental assessment decisions (the UVic Environmental Law Centre is planning to, but has not yet done so), I have concerns about some assessments being conducted under the BC process.
- The assessment of the proposed Garibaldi At Squamish resort is being characterized by major changes and continuing uncertainty about how water, waste disposal and other impacts of the proposed 22,000 bed unit ski development will be handled. Despite the EAO’s concerns, the Act requires the EAO to prepare its report in accordance with the Act’s time-lines. The lack of information undermines the public’s ability to comment meaningfully on the project.
- Opponents of the proposed Blue Pearl Molybdenum mine, near Smithers, report that the EA process will respond to their concerns, as long as the public repeatedly insists on being involved early on and throughout the process. This is grueling for the public and means that projects that do not receive the same level of public scrutiny can slip through with a less thorough assessment.
- In the case of the controversial Jumbo Ski Resort, the EAO apparently based its conclusions about the impact of a resort on grizzly bear populations on an e-mail from one Ministry of Environment employee, while ignoring the opinion of a grizzly expert from the Ministry who had expressed the view that the it should be assumed that the project would pose a “substantial risk” to local grizzly populations.
- It is difficult to believe that a rigorous environmental assessment process would allow the Prosperity Mine, recently approved by BC’s EA process, which will see the destruction of 2 fish bearing lakes if it goes ahead.
The BC process is ill-defined and hugely malleable, yet at the same time must be completed under tight time-lines. That’s a recipe for assessments that are confusing and of inconsistent quality and accuracy.
While one could envision a harmonized Process that had high environmental standards, West Coast is very concerned about a call for harmonization that characterizes environmental assessment, as the throne speech did, as a barrier to job creation, rather than recognizing the need for a strong assessment process. In addition, some industries have been calling for a single process handled by the province that ignores the federal government’s environmental responsibilities. West Coast would support a harmonized process that would:
- Reject projects that fail to meet environmental criteria or which negatively impact human health;
- Include opportunities for public involvement, including participant funding where appropriate;
- Require that project proponents provide enough detail for the government and the public to properly evaluate the project;
- Consider the cumulative impacts of projects across the landscape;
- Provide for a clear, transparent process, which, while efficient, does not impose artificial deadlines;
- Eliminate political interference in assessments; and
- Respect the constitutional power and responsibility of both the federal and provincial governments to protect the environment.
The Throne Speech promises none of these things. And until the province commits to these criteria, we cannot support a one-stop environmental assessment process.
Fortunately the Throne Speech did contain good news as well as bad. Kudos to the BC government for its decision to protect the Flathead Valley from mining.
By Andrew Gage