Canada: B.C. Introduces New Environmental Assessment Legislation

The British Columbia government has introduced legislation to modernize the environmental assessment ("EA") of major resource projects. If passed, it would be the first legislation in B.C. to directly support the implementation of the United Nations Declaration on the Rights of Indigenous People ("UNDRIP") and to recognize the inherent jurisdiction of Indigenous nations.

How Did This Come About?

The notion of revitalizing the provincial EA process first emerged in 2017 in the Confidence and Supply Agreement between the BC Green Party and the BC NDP, which paved the way for the NDP's ascension to power. It eventually made its way into Minister George Heyman's mandate letter, which directed him to, among other things, "[r]evitalize the Environmental Assessment process and review the professional reliance model to ensure the legal rights of First Nations are respected, and the public's expectation of a strong, transparent process is met." On March 7th, 2018, Minister Heyman officially kicked off the revitalization process, which has included creating an independent advisory committee, holding workshops with Indigenous nations, and direct engagement with stakeholders.

Indigenous nations have played a key role throughout the development process. Examples of this include: the First Nations Energy and Mining Council, on behalf of the First Nations Leadership Council, leading the Indigenous workshop process, Indigenous perspectives being meaningfully reflected in the composition and mandate of the independent advisory committee, and the Environmental Assessment Office ("EAO") carrying out direct engagement with 67 Indigenous nations. As a result of this progressive process, the proposed legislation addresses many of the common concerns raised by Indigenous nations. While there is still room for further advocacy from Indigenous nations, this process provides a good example of how Indigenous perspectives can be accounted for when developing new legislation that may impact Indigenous interests.

What's New?

The new EA process includes a number of noteworthy changes, including:

  • A defined purpose for the EAO that includes supporting reconciliation with Indigenous peoples in British Columbia and implementing the United Nations Declaration on the Rights of Indigenous Peoples.
  • A process for seeking consensus with participating Indigenous nations, including a number of opportunities identified throughout the process that aim to secure consent on decisions.
  • A commitment to ensuring adequate funding for all participating Indigenous nations.
  • An early engagement phase to identify interests, issues and concerns of Indigenous nations, stakeholders and the public, followed by a determination on whether a project is ready to proceed with an EA.
  • A mechanism for dispute resolution with Indigenous nations, which will be established in subsequent regulation (subject of future engagement).
  • Flexibility in establishing an assessment process to scale to individual projects based on potential effects and identified issues.
  • Requirements on what needs to be assessed and considered in decisions (including cumulative effects).
  • Modernized compliance and enforcement tools.

What Are the EA Phases?

The new legislation proposes a 6 phase process leading to decision on whether to issue an EA certificate:

  1. Early Engagement: This phase begins when an initial project description is submitted and ends when a final detailed project description is accepted by the EAO. Based on the initial project description, Indigenous and provincial governments, as well as local communities and the public will have the opportunity to identify key issues. Feedback from the EAO then informs the proponent's development of a detailed project description, which demonstrates how these concerns have or will be considered in the project's design or the assessment process. Indigenous participation will no longer be driven by reference to a strength of claim analysis. Instead, Indigenous nations wishing to participate in the EA will identify themselves by filing their intention to participate during this phase.
  2. EA Readiness Decision: This phase begins when the detailed project description is accepted and ends when a decision is made to commence an EA (the vast majority of cases), exempt the project from EA, require a revised detailed project description, or terminate the EA process. During this phase, the EAO will seek consensus with participating Indigenous nations aiming to secure consent.
  3. Process Planning: This phase begins when the EA process commences and ends when a process order is issued. During this phase the EAO will work with the proponent, government agencies and other EA participants to sets out the scope, procedures and methods for the EA, and how provincial and Indigenous processes and decision-making will align, including information requirements, timelines, and public engagement opportunities. The EAO will seek consensus with participating Indigenous nations throughout this phase.
  4. Application Development and Review: This phase begins when the process order is issued and ends when the EAO determines that issues have been adequately responded to by the proponent and directs the proponent to prepare a final application. During the application development, the proponent will receive feedback from the EAO, participating Indigenous nations and a technical advisory committee, who will also have an opportunity to review and comment on the complete draft application.
  5. Effects Assessment and Recommendation: This phase begins with the acceptance of the final application and ends with the referral to Ministers as the provincial decision-makers. The EAO will complete an assessment of the project and develop proposed conditions, seeking consensus with participating Indigenous nations and engaging the technical advisory committee. Before referral to the Ministers, the public will have an opportunity to comment on the EAO's assessment and proposed conditions and participating Indigenous nations will have an opportunity to express their consent, or lack of consent.
  6. Decision: This phase begins when a referral is made to provincial decision makers and ends when Ministers decide whether to issue an EA certificate, and issue reasons for their decision. Ministers must consider the participating Indigenous nations' consent and other decision factors. In the case where a decision does not align with the position of participating Indigenous nations, reasons for issuing the certificate in the absence of consent must be provided.

What Does it Mean for Indigenous Nations Specifically?

The province has positioned the new legalization as advancing reconciliation in various ways, including:

  • Identifying Participating Nations: Indigenous nation participation in EAs will no longer be driven by reference to strength of claim. Instead, Indigenous nations will identify themselves during the early engagement phase.
  • Building Consensus: The EAO will work with technical staff of participating Indigenous nations throughout the EA process with the aim of building consensus and seeking consensus will be codified throughout the new legislation.
  • Seeking Consent: In addition to seeking consensus with Indigenous nations at a technical level throughout the EA process, the new legislation recognizes Indigenous decision making by providing an opportunity for participating Indigenous nations to communicate their consent or lack of consent at two decision points in the EA: the EA readiness phase and the recommendation phase. In the event that an EA certificate is issued despite the opposition of a participating Indigenous nation, reasons for issuing the certificate in the absence of consent will need to be provided.
  • Indigenous-led Assessments: The new legislation includes provisions for an Indigenous nation to enter into an agreement with the Minister to conduct the entire assessment on behalf of the Province (provided certain conditions are met) or to conduct part of the assessment (i.e. the potential effects of the proposed project on the Indigenous nation). This approach will allow for government-to-government agreements that are compatible with each Indigenous nation's approach to governance.
  • Indigenous Knowledge: The new legislation includes requirements to apply Indigenous knowledge to decision-making in EAs and provisions to protect confidentiality of Indigenous knowledge considered in the EA.

What's Next?

If all goes according to plan and the legislation is passed, the modernized EA process will be brought into force in late 2019. Until then, the EAO will be engaging directly with Indigenous nations, industry, non-governmental organizations and broadly with the public to develop various related regulations and policies. This will present continued opportunities for Indigenous nations to advocate for their interests – opportunities that our team is uniquely positioned to support.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions