Described as the most widely used environmental management tool in the mineral sector, environmental assessments (EAs) are the process of identifying, evaluating and mitigating the biophysical, social, and other relevant effects of a proposed activity prior to deciding whether to authorize, require modifications, or reject it.
Mine projects in BC may be subject to EAs under both provincial and federal laws. Chapter 6: Environmental Assessment for Mining Activities provides a brief description of the federal EA regime and then focuses on BC’s EA laws by comparing BC’s current EA laws with legislation from other jurisdictions in Canada and abroad.
In BC, EAs of mining activities are generally conducted after the mineral exploration stage and before the mine development stage. In the first step of the process the proponent submits a project description to the Environmental Assessment Office (EAO). Next, the EAO Executive Director determines whether a project is a reviewable project. A project is reviewable if it falls within the threshold criteria set out in the Reviewable Projects Regulation or if the Executive Director designates a project as reviewable. Proponents may also ask to have a project reviewed.
Mines with an initial production capacity of under 75 000 tons per year are not required to undergo an EA before being permitted. They are also not required to undergo an EA if they increase in size by less than 750 hectares or 50% of the mine area. Thus, mines may incrementally expand into mines that exceed the 75,000 tonnes of ore per year without undergoing an EA. Moreover, certain classes of activity, such as mineral exploration, are excluded from the EA process..
Other jurisdictions require EAs for all mining activities and advanced mineral exploration, or have thresholds that reflect environmental, wildlife, and social values by considering factors beyond mere project size and capacity. Some also allow local governments, including Indigenous governments, to determine that projects should be subject to an EA or provide for public participation in the determination of whether a project is exempted from review. To ensure that BC’s thresholds correlate to the potential environmental and social impacts of proposed mining activities, BC should similarly require EAs for all mining and advanced mineral exploration activities. At a minimum, BC should add thresholds to reflect environmental, wildlife and social values and provide for First Nations and public involvement in project designation.
The next step in the EA process is for the EAO Executive Director or Minister of Environment to determine the scope of the review, including its geographical scale, the information and analysis to be included, the issues and effects that will be considered and who will be consulted during the EA. Apart from a requirement to undergo public consultation, there are no legal requirements for the scope of an EA. Without prescribed minimum standards, important factors may not be consistently assessed across the province. Accordingly, BC should follow the example of other jurisdictions, which have specific EA content requirements. Specifically, BC laws should require that all activities likely to be undertaken in relation to a proposed mining project are considered.
Also, BC laws should prescribe what information must be included in an EA. In particular, BC laws should require the following:
- Consideration of adequate baseline data. BC laws do not require baseline studies as part of the EA process or ensure the adequacy of baseline studies that are provided. Other jurisdictions prescribe minimum time periods over which baseline data must be collected, require that baseline data collected for individual EAs be included in a larger database, require baseline data to include socio-economic information and require that local communities and First Nations be engaged in the collection of baseline data.
- That information and analysis provided by proponents be unbiased. EAs in BC are largely founded on information and analysis provided by the proponent. BC law should require that qualified professionals prepare baseline studies and assessments to be used in EAs and that any gaps or uncertainties in data be disclosed.
- An alternatives analysis. The identification, analysis and consideration of potential alternatives to a proposed project are an important part of an EA. An alternatives analysis of proposed mining projects which considers alternative mining processes, facilities and locations, and land uses should be legally required in BC. The types of alternatives to be considered should be specified, including the alternative of not proceeding with the proposed mine. Other jurisdictions require specific information that must be provided for each alternative; establish standards for carrying out the alternatives analysis, consider impacts on Aboriginal people and wildlife resources, prohibit the justification of activities that harm the environment solely on economic bases; prohibit the use of public resources to pursue a particular alternative before a project is approved and require the provision of clear reasons for eliminating alternatives in the EA.
While public consultation is required in EAs in BC, public participation in the EA process is limited by lack of formal involvement mechanisms, lack of funds and lack of expertise. Laws in other jurisdictions encourage public participation by providing for public involvement in advisory committees, requiring the proponent to provide financial assistance to parties participating in EAs, requiring special or alternative notice provisions where individual accommodation is required, requiring EA reports to be written in clear language with a concise and non-technical summary, requiring that proponents’ experts attend public meetings and hearings and requiring the recording and consideration of verbal comments.
The government’s role in consulting First Nations in the EA process is informed by whether or not the First Nation has entered into a treaty. For treaty First Nations, if the treaty requires First Nations’ consent, BC law prescribes that no reviewable project may proceed without that consent. For non-treaty First Nations (the vast majority in BC), the EA Act does not prescribe consultation requirements. Consultation is still required, however, pursuant to the government’s constitutional and common law duty to consult First Nations on matters that may affect their Aboriginal rights (see: Chapter 3: Indigenous Rights, Consultation and Consent). Many First Nations and proponents have criticized BC’s failure to legally formalize the process and scope of the consultation process. Due to lack of certainty in process, decision-making authority and resources, BC fails to ensure meaningful consultation. BC should develop a separate First Nations consultation protocol and agreements for EA review. It should also consult potentially affected First Nations at the beginning of the EA process, provide time extensions for EAs based on project complexity and First Nations’ consultation needs and provide adequate financial assistance to First Nations for their meaningful participation. Funding should also be made available for traditional land use studies, translation services where needed, and capacity building.
Another important weakness in BC’s EA process is its lack of an explicit purpose provision and guiding principles in the Environmental Assessment Act (“EA Act”). Many other jurisdictions have clearly defined and enforceable purpose provisions, as well as clearly defined and substantive decision-making criteria and guiding principles. Additional guidance may be provided to decision makers through laws that set clear legal standards for determining the significance of adverse effects and that define clear levels of EA review.
In addition to lacking legal guidance on which to base decisions, the Minister is not required to take into account the working group’s recommendations, First Nations’ positions, or public opinion. BC’s former EA Act, and laws in other jurisdictions, require public comments to be taken into consideration when reviewing and issuing decisions on EA applications. Additionally, the Final Agreements signed with some First Nations require an agreement between First Nations and proponent as a pre-requisite for EA approval. Other jurisdictions require the involvement of concerned communities in significance determinations in EAs and consideration of traditional knowledge in decision-making. Making these considerations mandatory would make the BC’s EA process more transparent, democratic and fair.
BC’s EA law should also include requirements regarding the evaluation of a proposed project’s effects. Currently, the EAO Director has broad discretion to order what potential effects will be considered in an EA. Provincial policy recommends that potential effects be assessed for their valued components, including social, heritage, health and economic components. This policy lists the types of project benefits that should be considered and the factors that should be analyzed in evaluating the significance of residual adverse effects after mitigation.
At minimum, BC law should require the assessment of direct and indirect effects, whether short-term use outweighs long-term effects, the impact of catastrophic events even where the probability of an occurrence is low, cultural effects, the effects of a proposed project on First Nations’ traditional land uses, and the effects on species-at risk, biodiversity and species important to First Nations.
The assessment of cumulative effects is not required for provincial EAs. Rather, the EAO Executive Director has discretion to determine whether and how cumulative effects are assessed. While provincial policy states that the EAO will consider cumulative impacts when evaluating projects and the impacts for valued components, where relevant, in practice, there has only been one project in BC where the EAO considered cumulative impacts that did not also undergo a federal EA. Further, the only guidance or methodology that the policy provides for determining whether the impacts are significant is that the relevance of the cumulative impacts is to be based on the extent to which past or proposed actions may combine with the project to make adverse impacts ‘significant’.
Without an assessment of cumulative effects, the impacts of a project may be viewed in isolation from other activities and without consideration of whether project impacts can be adequately mitigated in the local region. Many other jurisdictions require that cumulative impacts be assessed, including assessment of the cumulative effects of different types of activities in the project area, assessment of cumulative socio-economic effects, and consideration of cumulative effects when determining the significance of effects.
BC’s laws also lack sufficient guidance on environmental mitigation requirements. Defining what constitutes acceptable mitigation of adverse effects in the EA Act would help provide clarity.BC should also involve First Nations and local communities in developing appropriate mitigation measures.
The final stage of the EA process is when the Minister of Environment and Minister of Energy and Mines decide whether to approve the project by issuing it an Environmental Assessment Certificate (an “EA Certificate”). At the time of writing, only two mining projects have ever been denied an EA Certificate in BC (although projects are regularly withdrawn or terminated by the proponents).
Neither the EAO Executive Director nor the ministers are required to give reasons for their decisions or respond to the public’s comments. This lack of transparency reduces public confidence. BC should enact laws similar to those in other jurisdictions which require the regulatory authority to provide reasons for its EA decision and written responses to comments submitted by the public and Aboriginal groups.
Once the EA Certificate is issued, the only way the public can appeal the decision is through a judicial review. Many jurisdictions have incorporated appeal mechanisms in their Environmental Assessment laws to permit members of the public to challenge the Environmental Assessment decisions. BC’s EA Act should include a similar appeal mechanism.
A proponent can apply to the EAO for an amendment to an EA Certificate. However, public consultation requirements under BC law do not apply to applications to amend EA Certificates. Also, the legislation does not explicitly contemplate the right to amend an EA Certificate for environmental protection or adaptive management purposes or require amendment of an EA Certificate if research or monitoring determines that impacts are greater than anticipated, or that additional mitigation or other measures are required. Other jurisdictions provide for participation by the public and Aboriginal groups in applications for major amendments. BC law should also require that the EA Certificate be reviewed regularly and encourage adaptive management in decision-making and through research and development.
An EA Certificate is issued with attached conditions and commitments, which set out a proponent’s legal obligations under an EA. Conditions address procedural issues common to every project whereas commitments are intended to address project-specific issues raised in the EA. There are no legal requirements guiding proponents in developing these commitments.
Enforcement of conditions and commitments occurs through monitoring, evaluation, management and communications. Although BC law provides some recourse for non-compliance, it fails to require the necessary follow-up plans and actions to identify those incidents. Accordingly, BC’s EA laws should require monitoring plans for all potential adverse effects, monitoring of actual effects and comparison of actual and predicted effects, follow-up programs and periodic investigations to assess compliance. Further, BC should promote the participation by First Nations in such follow-up activities.
Finally, BC’s current EA model does not adequately evaluate long-term risks and benefits associated with projects and ignores broader issues, such as society’s need for the project and whether minerals might be better left for use by future generations. One potential solution is the “sustainability assessment” model, which attempts to balance current needs with the needs of future generations. The sustainability assessment model moves away from merely determining the likelihood of significant adverse effects to the use of an evaluation matrix that compares predicted beneficial results of a project with likely negative effects.
- Introduction & Background
- Environmental Assessment Laws & Jurisdictions
- Overview of BC’s Environmental Assessment Process
- Thresholds for Reviewable Projects
- Scope of Environmental Assessment
- Scale of Environmental Assessment
- Information Required for Environmental Assessments
- Alternatives Analysis
- Public Consultation Process for Environmental Assessment
- First Nations Consultation in Environmental Assessments
- Performance of Environmental Assessment
- Stakeholder Input
- Evaluation of Effects
- EA Certificate
- Government Accountability
- Monitoring and Enforcement of Certificate Conditions and Commitments
- Sustainability Assessment Model