On July 9, 2024, the Environmental Assessment Dispute Resolution Facilitators Regulation (the “Regulation”) came into force in British Columbia. The Regulation arrives almost five years after the “new” Environmental Assessment Act (the “EAA”) came into force in 2019.
The Regulation follows years of engagement regarding its development including the release of the Dispute Resolution Regulation Discussion Paper in May 2023, Dispute Resolution Interim Approach in June 2023 and a What We Heard and Summary of Engagement report in March 2024.
Dispute Resolution under the EAA
Section 5 of the EAA provides the ability for a participating Indigenous nation or the chief executive assessment officer (the “CEAO”) to refer certain matters during the environmental assessment process to facilitated dispute resolution to help the parties reach consensus. Dispute resolution can be sought related to certain pending decisions including, among others, whether to proceed to an environmental assessment, the process to be used for the assessment, and the conclusions of the assessment and conditions.
If a matter pending decision is referred to dispute resolution, the decision may not be made until after the facilitator has provided a report to the participants and either the CEAO or the Minister upon completion of the facilitation (subsections 5(3) & (5)).
Key Aspects of the Regulation
The Regulation was developed in consultation between the B.C. Environmental Assessment Office (the “EAO”) and Indigenous nations. The facilitator's obligations include: assisting the parties to achieve consensus respecting the issue under facilitation and discussing issues with the parties including the potential role of the proponent in the facilitation (if the parties agree that the proponent may participate) and confidentiality requirements of the facilitation. If the parties to the facilitation consent, the facilitator may provide updates respecting the facilitation to the proponent.
Three key aspects of the Regulation for proponents to be aware of are: i) timeline requirements for facilitations; ii) information about when facilitators can end facilitations; and iii) mandatory factors to consider in preparing facilitation reports.
Timelines
Under the Regulation, the dispute resolution facilitator:
- must complete a facilitation and provide a facilitator report to the parties no later than 90 days after the applicable referral date (subject to one possible time extension); and
- may grant a single extension to the 90 day time limit. The extension may be: i) up to 15 business days if the parties do not agree to an extension; or ii) up to 30 business days either with agreement of the parties or if extenuating circumstances exist (such circumstances include natural disasters, public health emergencies, and deaths in an Indigenous nation).
When Facilitators May End Facilitations
Dispute resolution facilitators must end a facilitation if all Indigenous nations that are parties withdraw from the facilitation.
Dispute resolution facilitators may end a facilitation early without resolution of the dispute where:
- the dispute is not related to the reviewable project;
- the facilitation should be deferred to a later stage of project assessment;
- there have not been reasonable efforts to achieve consensus in relation to the dispute between the CEAO and the participating Indigenous nation prior to the referral of the dispute;
- there has already been a facilitation relating to the dispute involving the same parties with no significant change in the parties' positions;
- the parties are unable to agree to terms of reference for the facilitation; or
- despite having undertaken reasonable efforts, it is unlikely that the dispute resolution facilitator will be able to assist the parties to reach a consensus in the dispute.
However, facilitators cannot elect to end a facilitation as noted if it appears all parties wish to continue with the facilitation. If a facilitator elects to end a facilitation, they must first notify the parties in writing that they are considering ending the facilitation, provide a reasonable period of time to respond and consider any responses they received before ending the facilitation. Where the facilitation was ended without resolution, the dispute resolution facilitator must include the reasons for ending the facilitation in their facilitator report.
Mandatory Factors for Facilitator Reports
The Regulation sets out factors that must be given consideration by a dispute resolution facilitator in preparing their facilitator report. These factors are:
- whether consensus was reached by the parties;
- the perspectives of each party;
- submissions made by the parties during the facilitation (including by an Indigenous nation regarding Aboriginal rights or title and the United Nations Declaration on the Rights of Indigenous Peoples);
- materials that were developed jointly by the parties during the facilitation;
- the purposes of the EAO to promote sustainability and to support reconciliation with Indigenous peoples in British Columbia;
- confidentiality requirements (imposed by s. 75 of the EAA and otherwise); and
- other matters considered necessary by the dispute resolution facilitator.
In addition to these key issues, the Regulation covers other issues including necessary qualifications for facilitators and other procedural aspects of the facilitation process.
What Next?
The Regulation forms part of a larger policy framework for the implementation of dispute resolution within the environmental assessment process. The EAO has signalled that opportunities to consult on other policy developments including with respect to the process to appoint facilitators will be forthcoming. Additionally, the Minister is expected to initiate the 5-year review of the EAA by December 2024 to determine what changes, if any, should be made to the EAA.
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