The British Columbia Environmental Assessment Office (BC EAO) has entered into a memorandum of understanding (MOU) with the Canadian Environmental Assessment Agency (the Agency) regarding the "substitution" of the BC environmental assessment process for the Canadian process for projects that would require both a federal and provincial environmental assessment. The MOU sets out the administrative framework to enable the use of the substitution provisions (sections 32-26) of the Canadian Environmental Assessment Act, 2012 (CEAA 2012).
Under the MOU, the BC EAO will conduct environmental assessments for specific projects for both BC and Canada, including the procedural aspects of Aboriginal consultation. Though the Agency will not conduct its own environmental assessment, federal ministries will contribute their expertise to the BC process. Once the environmental assessment is complete, the respective federal and provincial decision-makers will make separate decisions on whether the project will be allowed to proceed and under what conditions, and the adequacy of Aboriginal consultation, based on the environmental assessment report prepared by the BC EAO.
This process is intended to improve efficiency while maintaining standards of environmental assessments and Aboriginal consultation. In a March 15, 2013 press release, British Columbia Environment Minister Terry Lake said "Both Canada and British Columbia have rigorous environmental assessment systems. The province's businesses and communities alike will benefit from the elimination of the duplication involved in having two assessments for a single project." Lake further stated that "[s]ubstitution does not mean less rigorous assessment or consultation. In fact, a guiding principle of substitution is the protection of strong environmental assessment and Aboriginal consultation" and that "[s]ubstitution allows the assessment process to be conducted more effectively and efficiently."
Key Administrative Aspects of the MOU
- The BC Minister of Environment or his delegate may write to the Agency requesting substitution for a project or a class of designated projects and the Federal Minister will advise the BC Minister in writing of his decision.
- In the event that the Federal Minister does not approve substitution for a project, the federal and provincial governments will discuss arrangements to conduct a cooperative assessment or a joint review panel.
- The BC EAO has committed to inform the Agency of key federal interests in the environmental assessment and Aboriginal consultation.
- The BC EAO will request that federal departments with specialist or expert information or knowledge regarding the proposed project participate in the environmental assessment process.
- At the conclusion of the substituted environmental assessment, Canada and British Columbia maintain the responsibility to make their respective environmental assessment decisions1.
- To the extent possible, the BC EAO and the Agency will coordinate the announcement of the environmental assessment decisions by the federal and provincial ministers.
- An implementation steering committee will be set up by the parties to support and monitor the implementation and resolve differences in interpretation of the MOU.
Procedural Delegation of Aboriginal Consultation
Under the MOU, Canada and BC each retain the responsibility to ensure that the duty to consult has been satisfied but Canada would delegate the procedural aspects of consultation to the Province.
The details of the procedural delegation of Aboriginal Consultation to the BC EAO are found in the Annex to the MOU and include:
- The BC EAO will work with the Agency to identify which Aboriginal groups to consult and the nature of the proposed consultation.
- Consultation throughout the environmental assessment process may be conducted by the BC EAO and a proponent, as directed by the BC EAO.
- The nature of consultation will depend on the circumstances, including assessment of the strength of any claimed Aboriginal rights and the seriousness of potential impacts.
- The BC EAO will share the notification letters to Aboriginal groups, the Consultation Plan and reports prepared by the proponent, and the Issues Tracking Table (identifying Aboriginal groups' concerns and how these concerns have been addressed) with the Agency throughout the process. Further, federal departments participating in the assessment will also have the opportunity to review and respond to issues raised by Aboriginal groups through their participation on project working groups and review of Aboriginal groups' comments to environmental assessment documents.
- The Agency will continue to provide funding for Aboriginal groups participating in the substituted environmental assessment. This funding will be made available through the BC EAO in addition to the funding the BC EAO currently provides.
The MOU between BC and Canada takes the next step towards the "one project, one assessment" approach and provides insight into the administrative process to be used in substituting the BC environmental assessment process for the federal process. The MOU has clearly anticipated some of the issues with substitution, such as providing for federal expertise to be taken into account during the course of the substituted process rather than risk the substituted process not meeting necessary requirements on federal issues. However, the MOU also leaves some questions outstanding. For example, how will the delegation of the procedural aspects of consultation work in practice? Does this mean anything more than the federal government effectively adopting the procedural steps taken in consultation as part of the BC EAO process? Will the federal government maintain a substantive role in consultation during the course of the BC EAO process or will this wait until after the BC EAO process is completed? The first substituted environmental assessments should flesh out further details on how the substituted process will work in practice over the coming months.
Regardless, given the widespread opposition to many of the federal government's recent environmental initiatives, including CEAA 2012, it seems likely that the first substituted processes will be closely watched by both Aboriginal groups and NGOs for potential opportunities to either criticize or challenge these processes. Given this, project proponents in substituted processes will have to be even more vigilant to ensure that all of the proverbial i's are dotted and t's are crossed as the BC EAO and the Agency go through the necessary learning associated with the new process. Ultimately, given what appears to be the continued role of the federal government in the proposed substitution it will be interesting to see if the perceived benefits of this process outweigh the additional risks associated with it.
British Columbia's Press Release regarding the MOU was accompanied by three factsheets that:
a) summarize the MOU,
b) describe the first two projects that the BC EAO has requested to undergo the substituted process, and
c) provide an overview of the BC environmental assessment process for major projects.
The press release and factsheets are available on the British Columbia Newsroom website.
1.The MOU focuses on substitution but includes a commitment to explore implementation of equivalency (where a single environmental assessment is conducted and a single decision would be made by BC about whether the project should be granted approval to proceed).
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