The British Columbia Government's Cabinet recently approved an "exemption regulation"
under the Environmental Assessment Act (EAA)
that will exempt previously approved and constructed projects from
requiring an environmental assessment certificate.
The "exemption regulation" is made in response to the
British Columbia Supreme Court (BCSC) decision in Coastal First Nations v. British Columbia
(Environment). In that case (as discussed in our prior post), the BCSC set aside an "Equivalency
Agreement" between the B.C. Government and the National Energy
Board (NEB), pursuant to which the B.C. Government agreed to accept
any NEB environmental assessment of an NEB-regulated project. Under
the "Equivalency Agreement," there would be no provincial
environmental review. The BCSC set aside the "Equivalency
Agreement" because it improperly takes away the B.C.
Government's obligation to exercise discretion to issue an
"environmental assessment certificate" under section 17
of the B.C. Environmental Assessment Act (EAA).
The BCSC also indicated that the "Equivalency Agreement"
failed to recognize the Province's duty to consult with First
In practical terms, the "exemption regulation" applies
to five NEB-approved projects (Spectra South Peace Pipeline; Nova
Gas Transmission Groundbirch Pipeline; Nova Gas Transmission Horn
River Mainline Extension; Spectra Dawson Gas Plant; and Spectra
Fort Nelson North Plant) that had been treated as being subject to
the "Equivalency Agreement" and had not received any B.C.
environmental assessment certificate. The stated reason for the
exemption of these projects is that it would not be practical or
procedurally fair to impose post-construction requirements on these
On the other hand, the "exemption regulation" does not
apply to projects that have not yet been constructed, but that had
been treated as being subject to the "Equivalency
Agreement." This includes the Enbridge Northern Gateway
Project (for which a three-year extension to the NEB approval is
currently being requested) and the Trans Mountain Expansion
Project (which very recently received a recommendation for conditional approval from
the NEB). According to the B.C. Government's news release, there will be a process convened
by the B.C. Environmental Assessment Office that will make
environmental assessment decisions on these projects. This will
include consultation with Aboriginal groups. Presumably, these
environmental assessment decisions will take the form of either
endorsing or adding conditions to any NEB approvals for the
projects. Otherwise, as we discussed in our prior post, issues of paramountcy could arise where
the B.C. Government decided to deny environmental approval for a
project that had already been approved by the NEB.
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