Major projects in British Columbia are usually required to undergo an environmental assessment process. The environmental assessment process is a form of review that is done before the permitting stage. It is intended to ensure that projects entering the permitting stage are not likely to have significant adverse effects or, if they are, that due consideration has been given to whether they should be allowed to proceed in light of the benefits they may provide.
Both the provincial and federal governments have environmental assessment legislation, and in most cases a major project will require assessment under each. While provincial and federal officials work to "harmonize" those processes, the two regimes remain distinct for legal purposes, such that the requirements of each act must be met and (with one exception discussed below) two separate environmental assessment decisions must ultimately be made.
The environmental assessment process is important and a cornerstone of sustainable development. It is also complex, time-consuming and expensive. Most environmental assessments take at least 18 months to complete and some can take substantially longer. A simple and inexpensive environmental assessment will likely require hundreds of thousands of dollars in environmental consultant fees, study expenses, consultation costs and legal expenses. Larger and more complex projects will likely costs millions of dollars – sometimes tens of millions. As such, it is important for proponents to understand the process and be able to take appropriate steps to manage the time frames and expenses where possible, while still making sure that all interests and perspectives are duly considered and addressed. The following are some ways in which these goals can best be achieved.
1. ensure a senior official in the company fully understands and oversees the environmental assessment process.
Many of the decisions that a proponent may be required to make in the environmental assessment process can have profound effects on timeframes, costs and related matters such as project financing and commercial partnerships. It can also have important impacts on public support for or opposition to a project. Given the importance of the environmental assessment process to the development of a major project, it is usually beneficial for a senior member of the proponent's company to understand and be directly engaged in the environmental assessment process. While the process is somewhat complex, it need not and does not require specialized training to understand. It can be learned, to a sufficient degree, with a reasonable amount of time and effort.
Some of the significant environmental assessment questions that a proponent may be called upon to ask, and which generally warrant senior involvement, include the following:
- How far can / should the company go in terms of mitigation measures?
- Should the proposed project be modified in light of concerns identified?
- Should the environmental assessment process be voluntarily delayed by the proponent in order to build more common ground with aboriginal groups, stakeholders or the general public, even if that is not required by environmental assessment officials?
- Should the decisions of environmental assessment officials be challenged if the proponent believes the officials are requiring more information and more process than the law requires?
These are important questions, typically made at the senior levels of a company, but they are difficult to answer unless a person has a solid understanding of, and familiarity with, the environmental assessment process.
2. choose a well-regarded environmental consultant and establish clear responsibilities for the consultant, company officials and legal counsel
Most of the actual work undertaken in an environmental assessment is done by environmental consultants. They undertake or commission research (e.g. determining the presence of species of fish in a particular watercourse) and propose mitigation measures to avoid or minimize any adverse impacts. They also typically write the documents that are submitted to the environmental assessment officials on behalf of the proponent. It is important to choose an environmental consultant with a strong reputation in the environmental assessment world, and one that has demonstrated ability to complete work that is sound and respected. This will minimize back and forth and delay between the consultants, environmental assessment officials, government agencies and other interested parties.
The environmental consultants also play an important role in managing environmental assessment process questions, as they are usually the first line of contact with officials and other interested parties. For example, proponents will often give environmental consultants responsibility for preparing tracking tables, which are requested by environmental assessment officials, to track comments by aboriginal groups and interested parties and to specify how the proponent intends to address those comments.
However, not all environmental assessment process issues will be addressed by the environmental consultants. Some will require attention from the proponent directly, and the proponent may also wish to have input from legal counsel on such matters. This may be appropriate where, for example, the proponent feels the environmental assessment officials are not properly applying their statutes; where they are issuing directions that go beyond the scope of the environmental assessment; or, where there are questions regarding the Crown's duty to consult aboriginal groups and how that impacts on the proponent's obligations under the environmental assessment.
The allocation of responsibilities between the environmental consultants, the proponent and legal counsel may vary depending on the project, the parties involved and the nature of the issues that arise. In all cases however, it is important that there is a clear understanding between these parties about who is responsible for certain tasks. This will avoid duplication of effort and help to maintain an efficient troubleshooting process.
3. establish early and constructive relations with aboriginal groups, local governments, government agencies, stakeholders and the general public
Most successful proponents have started engagement with aboriginal groups and other potentially interested parties long before they formally file anything with environmental assessment officials. This initial ground work can help build support for a project and can also help ensure that, even where there is concern or opposition, the engagement is as effective and constructive as possible. There are many ways in which such engagement can occur and many choices for who will represent the proponent in such dealings. Some companies choose to have one or more of its staff perform this outreach role. Others choose to bring in someone with relevant expertise in communications, aboriginal consultation or otherwise. There are pros and cons to each approach that need to be carefully considered in light of the specific facts of any proposed project.
In general, before undertaking such outreach work, it is beneficial to have developed an engagement plan that addresses things like:
- Who will be engaged and in what order?
- In the case of aboriginal groups, which band, tribal council or other organization is the appropriate representative? How will overlapping claims be addressed?
- What key messages are to be delivered?
- To what extent is the project design still under consideration and subject to adjustment based on input?
- How will the company deal with common issues such as requests from aboriginal groups for capacity funding or that initial meetings not be considered "consultation"?
There are a number of practices and techniques that can be used to address these issues in a candid and principled way. For example, it could include a practice of not acquiescing in a request that meetings not be considered "consultation", and instead allowing each party the right to take their own position on that matter (even if they differ). There are also many other practical techniques that should be considered and tailored to the circumstances of specific project, based on advice from experienced consultants and legal counsel.
4. ask environmental assessment officials to be creative and flexible - make process suggestions
Although federal and provincial environmental assessment officials typically apply a standard form of process, it is important to be aware that there is considerable flexibility under both the provincial and federal legislation to make a review as efficient and effective as possible. This is especially true for the provincial environmental assessment process, as the Environmental Assessment Act contains very few procedural requirements. Instead, most requirements are set out in a "procedural order" issued by the Executive Director or a delegate for every project that is subject to review.
This means that the procedural order can be created in any way the Executive Director determines is appropriate, and almost none of the traditional process is etched in legal stone. For example, a proponent may wish to suggest to environmental assessment officials that certain information from another environmental assessment be used to limit the amount of information that a proponent is required to assemble. Or the proponent may wish to make a submission and request under section 10(1)(b) of the Environmental Assessment Act that a project not be subject to environmental assessment, even if it triggers the Reviewable Projects Regulation, on the basis that it is not expected to have significant adverse effects. There are a variety of options that exist in this regard, and while some are fairly technical, they can prove very significant. This is not to say that environmental assessment officials will easily or frequently depart from the standard process, but these are fair questions to consider and ask. Put another way, no one should default to the standard process without first giving some early and creative thought to whether a modified process may be more timely and efficient while still meeting all the underlying objectives of the legislation.
Similarly, even on the federal side, considerable room for creativity exists. For example, the Canadian Environmental Assessment Act was amended in 2010 to, among other things, give the federal minister the power to define the "scope" of a federal comprehensive study environmental assessment. Through this power, the minister could set the scope of the federal assessment to focus only on matters pertaining to federal jurisdiction (example fisheries). This may be an appropriate thing to do, especially in cases where the project is also going through a parallel provincial environmental assessment. Similarly, the federal legislation gives the federal government the power to delegate its environmental assessment functions to a province if it wishes to do so. Although that power has only been used twice to date, it is something worth considering and, if a persuasive case can be made that the power should be used for a particular project, the proponent should raise the idea.
Whether or to what extent some form of modified environmental assessment occurs will be up to environmental assessment officials and will depend on the circumstances of the project in question. But one thing is clear – the early stages of the environmental assessment are the time to contemplate these questions and to propose innovations to government. If the proponent does not raise them, it is less likely that they will be given consideration at all.
5. help the Crown fulfill its duty to consult and engage aboriginal groups
While the law is clear that the duty to consult aboriginal groups rests with the Crown, it is equally clear that the Crown can assign certain procedural aspects of that to proponents. Nowhere is this more the case than in the environmental assessment process, given the extensive dialogue that is required. It would be highly inefficient and likely less effective if all of the engagement between the Crown and aboriginal groups occurred directly, with the Crown in turn engaging the proponent about aboriginal rights and title interests and the means to avoid or minimize impact on them.
The most effective engagement therefore occurs when the Crown facilitates direct engagement between the proponent and the relevant aboriginal group(s) and provides clear guidelines as to its expectations. The proponent can then ensure there is meaningful consultation with aboriginal groups and that there is an appropriate record of such.
It is also important to note that, in the environmental assessment context, engagement with aboriginal groups will not be limited to matters that are subject of the Crown's duty to consult, such as the impact on asserted or established rights. Rather, it will also include more general engagement in respect of other matters that may have nothing to do with aboriginal rights. For example, an aboriginal group (like any other group) may raise issues regarding a project's potential impact on air quality, even if that is not tied to a specific aboriginal right such as the right to hunt or fish.
The nature of the engagement will differ somewhat, depending on whether it relates to the Crown's duty to consult, or more general environmental assessment issues, and as such the potential for confusion to arise is significant. Yet it is imperative that the proponent engage actively and meaningfully with aboriginal groups on both the "consultation" issues and more generally.
The best way to address this and to avoid these challenges is to have a very early and clear discussion with environmental assessment officials and with aboriginal groups about what the proponent is expected to do, and which expectations relate to aboriginal consultation duties as opposed to more general engagement. In doing so, the proponent should not be afraid or reluctant to separate these two categories of engagement. In some cases an aboriginal group may have a different position than the Crown or the proponent as to what is required as part of the duty to consult. While this can be a delicate issue, having a clear understanding and candid discussion early on is almost certain to avoid or minimize problems in the long run.
6. consider economic benefits agreements with aboriginal groups but keep them distinct from the environmental assessment process and the duty to consult
Many major project proponents see fit to enter into some form of economic benefits agreement with aboriginal groups that have or assert rights or title in respect of lands affected by a major project. Such agreement can build strong relations and good will, and can help streamline the environmental assessment process if it results in support for the project by interested aboriginal groups.
At the same time, it is important to recognize that such agreements are not legally required. More specifically, the Crown's duty to consult and accommodate relates to avoiding or mitigating impacts on aboriginal rights or title, and balancing impacts with other societal interests. It does not impose an obligation on the proponent to provide revenue-sharing, equity interests, or any other form of financial benefits.
It is sometimes suggested that provision of such benefits is required practically (if not legally) for support from aboriginal groups, and if that is not obtained the environmental assessment process will linger for years and/or the project may be tied up by litigation. This is an overstatement for three reasons. First, proponents have the right to expect the Crown to complete the consultation process in a reasonably timely manner. Second, the law does not give aboriginal groups a veto. Third, the mere fact that a person may file a judicial challenge does not mean that it will succeed. In fact, there are relatively few cases in which courts have issued injunctions to stop projects from proceeding while legal challenges are brought.
However, none of this is to say that mutually beneficial arrangements (including economic benefits arrangements) should not be pursued, or that greater certainty is not achieved through such efforts. Rather, it to say that this must be kept separate and distinct from the duty to consult and proponents should be careful to not make any suggestion, or acquiesce in any statements, that the environmental assessment process and related consultation cannot be successfully concluded in the absence of an agreement with aboriginal groups. Finding common ground and mutual gain has considerable benefits for all parties, but it is not a prerequisite to completing the environmental assessment process. And if this is not understood from the outset, it has the potential to create undue expectations, negatively affect relationships and negotiating positions and ultimately lead to greater discord than might otherwise have existed.
7. monitor the environmental assessment process carefully - do not be afraid to question and challenge
A typical environmental assessment process involves numerous, complex technical issues and divergent, strongly held positions. There is also a requirement to share extensive information and consider comments from multiple aboriginal groups, government agencies and stakeholders. For all these reasons, the process necessarily takes a significant amount of time and resources, and this is understandable given the size and nature of the projects at issue.
At the same time, there is always some potential for the process to become longer and more demanding than is truly necessary, having regard to the issues and interests at stake. Faced with competing views about the adequacy of information, the easiest decision for environmental assessment officials is often to ask for more. Or, given lack of agreement on proposed mitigation measures, the easiest response may be to require more circulation of drafts with opportunities for comment and revision. Clearly these are appropriate steps to an extent - but when does one reach the point where there is little chance for finding further ground and a decision must be made about the adequacy of the proponent's response? When might the desire of environmental assessment officials to have every comment considered and responded to stray beyond the requirements of the environmental assessment as mandated by the legislation? When should environmental assessment officials be required to state a position on whether the Crown's duty of aboriginal consultation has been discharged, even if the proponent and aboriginal groups do not agree on the point?
Proponents often have these questions but are not always willing to ask them. Sometimes when they do raise them, it is only after the concerns have accumulated, or where they have stewed over them to the point that they can no longer resist expressing their frustration. This is regrettable, because at that point many of the opportunities for solutions and remedies may have passed. Moreover, proponents have every right to raise questions or concerns regarding the process that their proposed project is being subjected to – and other interested parties have similar rights, of course. Also, there is not always a clear line between what information or analysis is sufficient and what is not. Rather, much of this is a judgment call for environmental assessment officials to make. In a well-administered environmental assessment, officials should be open to discussing such matters in a respectful and constructive manner. They will not likely be persuaded to change course merely because a proponent wants to avoid cost and delay. However, they will likely be willing to consider concerns about process and expectations where the discussion is based on the environmental assessment legislation, its underlying purposes and related principles of law. And they are not likely to react negatively or work less effectively with a proponent that expresses such concerns, so long as that is done in an appropriate manner. To the contrary, this engagement can add value, help discipline the process (in an appropriate manner) and assist environmental assessment officials in ensuring the environmental assessment process stays on track.
There are, of course, many other issues that may arise in the course of an environmental assessment, and other practices and approaches that can help ensure the process is as effective and efficient as it can be. But these seven principles are among the most significant, and giving them due consideration even before entering the environmental assessment process will help put the proponent – and the environmental assessment generally – on solid footing.
1. For an excellent discussion of the distinction between the duty to consult and economic benefits agreements, see Peter Landmann, "Can the Crown Rely on your IBA?" (2011) 15:2 Ontario Bar Association Aboriginal Law Section. See also the BC Environmental Assessment Office Fairness and Service Code.
2. Robin Junger served as Associate Deputy Minister responsible for the BC Environmental Assessment Office from October 2007 to February 2010. He held statutory decision-making responsibilities under the BC Environmental Assessment Act and was actively involved in efforts to develop more efficient and effective environmental assessment processes. This included signing the first ever agreement to accept a federal environmental assessments as equivalent to provincial ones (for a port expansion and for interprovincial pipelines) and the first ever agreement whereby federal environmental assessment responsibilities were delegated to a provincial agency (Northwest Transmission Line). Mr. Junger subsequently served as the Deputy Minister of Energy, Mines and Petroleum Resources and is now a partner in McMillan's Business Law Group, where his practice focuses on major projects and related environmental and aboriginal law matters.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2011 McMillan LLP