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Have your say on the future of environmental assessment in BC

June 28, 2018

Last week the BC government launched a public engagement period for reform of the province’s environmental assessment process. The engagement period lasts until July 30, 2018. The government is asking for your views on what the future of environmental assessment in BC should look like – including seeking input on the province’s Environmental Assessment Revitalization Discussion Paper.

West Coast, in partnership with allies, has set out why a major overhaul of BC’s environmental assessment law is needed to support reconciliation with Indigenous peoples, regain public confidence and enhance sustainability (see Why it's Time to Reform Environmental Assessment in British Columbia and A Blueprint for Revitalizing Environmental Assessment in British Columbia).

The province’s commitment to revitalize the environmental assessment process is a big opportunity to make this change happen. BC needs a new environmental assessment law that reflects the Vision for Next Generation Environmental Assessment in BC, which has been supported by numerous citizen groups and organizations, including West Coast.

West Coast has released a detailed backgrounder comparing the assessment reform proposals in BC’s Discussion Paper to the recommendations in the Vision for Next Generation Environmental Assessment in BC. Key points from our analysis our summarized below.

Have your say – How to provide input

BC is accepting input on assessment reform through its online comment form (or by mail or fax). Input must be submitted by 4 p.m. on July 30, 2018.

To use BC’s online comment form, you will need to click “submit a comment” and then enter your name, your city/location, and write your input into the comment box provided. You may also upload one or more files (e.g., a longer written submission) to support your comments, using the upload button provided (uploads of Word documents are apparently not allowed, but other file types such as PDF are supported). All public comments will be posted online. Comments will be posted anonymously by default, unless you click the box asking that your name be made visible.

Key points summary – How do BC’s proposals for assessment reform measure up?

Below is a summary of our analysis on how BC’s proposals measure up, and what needs to be strengthened. For the full analysis, see here. If you are submitting your own input through BC’s online comment form (which we hope you do), you are welcome to draw from any of these points.

It’s time for a new environmental assessment (EA) law that lives up to the Vision for Next Generation Environmental Assessment in BC. BC’s Discussion Paper opens the door for a number of positive and sorely needed assessment reforms that are consistent with the Vision’s recommendations, for example, by committing to implementation of the UN Declaration on the Rights of Indigenous People (UNDRIP) in the context of assessment. However, BC’s proposed approach is lacking on certain key issues that will determine whether BC succeeds or fails in enhancing public confidence, advancing reconciliation with First Nations and protecting the environment with new assessment legislation.  

In summary, to address these gaps, a next-generation environmental assessment law must:

  • Ensure independent evidence and oversight of assessments
  • Provide more meaningful public participation and participant funding
  • Address cumulative effects within a region, through more project assessments and mandatory regional assessments
  • Ensure projects that don’t meet important legal criteria – including a climate test and Indigenous consent – are rejected

Share your views on the future of BC’s environmental assessment process here.

Key points in more detail – What are the positives?

We encourage BC to follow through on its proposals to legally establish:

  • a purpose provision in the new assessment law that includes protection of the environment, fostering sustainability, and implementation of UNDRIP as core purposes of assessment;
  • an early engagement phase for each assessment that results in a collaboratively-developed Assessment Plan, informed by public engagement, to set out the scope, procedures and methods for assessment, as well as how provincial and Indigenous processes and decision-making will align, including funding, timelines, and opportunities for public participation;
  • legislative factors and criteria that assessments and assessment decisions must be based on, as well as a requirement to give reasons for a decision, to ensure transparency and accountability;
  • more opportunities for early and ongoing public participation, including types of engagement beyond traditional comment periods, and a public participation funding program;
  • transparent online posting of all assessment information (except sensitive Indigenous knowledge), including plain language materials and monitoring and compliance information;
  • recognition of Indigenous nations as decision-makers in environmental assessment;
  • a new Reconciliation Commission to assist with dispute resolution regarding implementation of UNDRIP in assessments;
  • requirements to assess effects on vulnerable populations, including gender analysis and impacts specific to Indigenous women and girls;
  • a legal framework and funding for regional and strategic assessment to address “big picture” issues such as managing cumulative effects, including criteria for prioritizing regions for assessment; and
  • new tools for monitoring, compliance and enforcement, including links with the role of Indigenous guardian programs, and continuing engagement of public participants in compliance and enforcement.

Key points in more detail – What needs to be strengthened?

If the following issues are not meaningfully addressed through legislative reform, BC will fail to meet its goals of enhancing public confidence, advancing reconciliation, and protecting the environment in relation to assessments. BC needs to go further to ensure:

  • Independent evidence and oversight of assessments
    • The current approach to assessment in BC – whereby the proponent generates virtually all the evidence, which is reviewed by an informal technical advisory group – is inadequate and needs to end.
      • A new assessment law must ensure a mandatory role in assessments for experts independent of provincial regulators and the proponent, as well as rigorous peer review of scientific and technical information. It must also provide for Indigenous-led studies, and provide mechanisms to enable public participants to engage experts and test evidence, including early engagement requirements to ensure public participants proactively shape how this occurs.
    • Regional “Reconciliation” or “Sustainability” offices proposed in the Discussion Paper should be implemented as independent science centres to assist with generating, overseeing and/or peer reviewing scientific evidence in project and regional assessments, in balance with Indigenous knowledge.
    • Unless otherwise determined through collaboratively developed Assessment Plans and related government-to-government agreements, independent or Indigenous-led panels should be the default for assessment.
    • Outcomes from key assessment stages, such as the assessment report and recommendations, and Ministers’ decision on whether to approve a project, should be clearly subject to appeal to ensure transparency and accountability.

 

  • More meaningful public participation and participant funding
    • Legislation should establish public hearings as a default component of the assessment process.
    • Public engagement must be led by the body conducting the assessment – not the proponent.
    • A public participation funding program should be established in legislation to ensure sufficient funding is reliably and independently distributed.

 

  • Cumulative effects are addressed through more project assessments and mandatory regional assessments
    • The legal criteria for which projects get assessed must be broadened beyond current, narrow thresholds based on production-capacity (e.g. the amount of mineral ore that a mine plans to produce each year). Instead, all projects that stand to impact sustainability must be assessed; to help ensure this, legislation should provide a mechanism for the public and Indigenous peoples to trigger assessments.
    • The ability to exempt projects from assessment must be removed.
    • Legislation should provide triggers and requirements for regional assessments, which would establish a legally binding “floor” for environmental protection that applies to project assessments and provincial decisions in the region.

 

  • Projects are rejected if they don’t meet important legal criteria, including a climate test and Indigenous consent
    • Assessment can’t continue to just be a process for making bad projects less bad before approving them. A new assessment law should require decision-makers to select the option from among reasonable alternatives that best protects Indigenous title and rights and safeguards ecological, cultural, social, economic and health values. This must include the option of not proceeding with the proposal.
    • Projects that fail to meet defined legislative sustainability and reconciliation criteria – including Indigenous consent, a climate test and respecting ecological limits – must not be approved under a new assessment law.

 

Take action

BC’s current process to reform environmental assessment may be a once-in-a-generation opportunity to improve the “rules of the game” in the province. This is our chance to change how we make environmental decisions in a way that supports sustainability, respects the rights and jurisdiction of Indigenous peoples, and enhances public participation and trust.

We encourage you to draw from the key points listed above when making your personalized submission on the BC government’s online comment form.

Click here to have your say on the future of environmental assessment in BC today.

Top Photo Credit: Anna Johnston.

Author: 
Gavin Smith, Staff Lawyer