Recently, Blakes Partner Sam Adkins and I commented on the Indigenous aspects of Bill 51, the proposed legislation to replace B.C.'s current Environmental Assessment Act (BCEAA). For more information, please see our November 2018 Blakes Bulletin: Government of British Columbia Introduces Indigenous Consent Requirement for Major Projects.
If you're considering a project in B.C., here are five more things you should know about Bill 51.
1. There's No Guarantee That You Won't Have to Go Through an Environmental Assessment (EA) Process
Under BCEAA, the EA process is triggered when someone proposes to build a "reviewable project". A reviewable project is a project that exceeds certain established thresholds, usually based on size or production capacity. While the responsible minister has the power to require other projects to go through an EA, this power is rarely exercised.
Under Bill 51, size won't matter – or at least as much as it used to. Bill 51 still anticipates predetermined thresholds that would automatically trigger an EA, which haven't been identified yet. However, Bill 51 also expands the minister's discretion to require other projects to go through an EA. In addition, anybody can apply to the minister for a project to be designated as a reviewable project.
To support this broader approach, Bill 51 effectively creates a further tier of projects that don't meet the established thresholds but fall within other (again yet-to-be-defined) categories. Someone proposing a project of this nature must formally notify the head of the B.C. Environmental Assessment Office (EAO). The project then can't proceed until the proponent has been told that no review is necessary, or any required review has been completed.
More significantly, regardless of whether a project has satisfied the notification requirements, the minister can still require it to go through an EA – and can also require any other project to go through an EA even if it's not on the second-tier list.
Ultimately, under the current draft of Bill 51, the minister would have the power to require a project to go through an EA at any time until construction of the project has been "substantially started". That's a long time for someone to wait to know what process they need to go through, how long the process will take, and what the requirements will be.
2. However, Even if You Have a Reviewable Project, You May Not Have to Go Through an EA
Just because a project triggers an EA doesn't mean that it will have to go through the full EA process.
One of the significant proposed changes under Bill 51 is the creation of a statutorily required "early engagement" process. While many proponents already undertake extensive informal early engagement, the codification of this phase of the process appears to add more bells and whistles to what often takes place – and turns these into formal legal requirements.
However, the new early engagement phase would conclude with an "EA readiness decision". That decision point requires the EAO or minister, as appropriate, to make one of four choices:
- To proceed to the next phase of the EA process;
- To require more information;
- To terminate the assessment; or
- To order that a project skip the remainder of the EA process and proceed straight to permitting.
This is clearly an opportunity. If you can design or adapt your project to avoid significant effects and any serious effects on Indigenous People, you could win a get-out-of-further-EA-process card.
According to the government's timelines, this would save about 360 days of further EA process time and the additional time and effort necessary to prepare a draft and final EA application. However, it should be noted that the EA readiness decision is one of the decisions discussed by Sam and me when the EAO must try to achieve consensus with participating Indigenous nations – and seek their consent. As a result, getting exempted from completing the remainder of the EA process is expected to be a high bar.
Curiously, under the current wording of Bill 51 this opportunity isn't available to everyone. If the minister designated a project as reviewable (rather than the project exceeding the defined thresholds), for some reason that project can't subsequently be exempted, regardless of its effects. It is unclear why this is the case; if a project can go through the early engagement process and satisfy the test for being exempted why should it be required to incur the significant time and expense to go through the remainder of the EA process?
3. If You Do Need to Go Through the New Process, It Will Almost Certainly Be Longer And More Costly
In its Intentions Paper, the government suggests that the overall new process will be shorter. Only experience will tell, but for now, it is difficult to reconcile this with the additional requirements in Bill 51.
Under Bill 51, there are: at least two more formal documents a proponent needs to complete; two more formal opportunities for public participation; significantly more opportunities for Indigenous involvement (for example there are five different government decisions that have the potential to trigger the Indigenous dispute resolution process); and more government decisions that need to be made.
In the absence of something that offsets these requirements, it seems likely that more process means more time and money.
4. Why Is It Still Being Called an EA Process?
Often people seem to spend a lot of time thinking about what to call proposed legislation. Given this, it's interesting that Bill 51 does not propose a new name for the replacement for the current Environmental Assessment Act.
Bill 51 does not just require a consideration of a proposed project's environmental effects. It also requires consideration of the project's potential economic, social, cultural and health effects; parenthetically, just like under the current BCEAA.
In recognition of the same issue under the Canadian Environmental Assessment Act, 2012, the federal government has proposed (in its much-debated Bill C-69), that its new assessment legislation would be called the Impact Assessment Act reflecting its true ambit – and reducing the potential that the public could be led to believe that an assessment was limited to only environmental effects. Given the broad range of considerations in Bill 51, it appears it would also be more accurately described as impact assessment (IA) legislation.
5. Don't Make Any Promises You Can't Keep
Another core feature of Bill 51 is expanded compliance and enforcement provisions. Under BCEAA, these provisions take up 15 sections. Under Bill 51, the compliance and enforcement provisions have been expanded to 23 sections and include both new investigation powers and administrative penalty powers.
Given that most EA/IA approvals contain an express provision requiring a proponent to live up to the commitments that they made during the EA/IA process, proponents should be careful about making promises that they may not be able to live up to.
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© 2018 Blake, Cassels & Graydon LLP.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
