Environmental Assessment Laws & Jurisdictions
In Canada, environmental assessments are governed by both provincial and federal laws. In BC, EA legislation was first enacted in 1994 (1994 Act) after extensive consultation with First Nations and the public. Without a similar consultation process, the 1994 Act was replaced in 2002 with the current Environmental Assessment Act (EA Act).5 At the federal level, EAs are governed by the Canadian Environmental Assessment Act (CEAA). Until recently, the CEAA was viewed as requiring a relatively rigorous EA process. However, the federal government recently repealed the 1992 enactment of CEAA and replaced it with the controversial new CEAA 2012.6
The provincial and federal EA requirements have often meant that a proposed mine may have to undergo two separate EAs, one under the provincial legislation and another under the federal legislation. A federal EA was required if the project was planned by a federal authority, on federal crown land, funded by the federal government, or required federal approval by, for example, a federal license or permit. In the past, approximately two-thirds of projects subject to review under the provincial EA process were also required to undergo a federal EA.7 Taseko’s proposed Prosperity Mine at Fish Lake is one such example that highlighted the differences between the two regimes. In that case, the proposed mine was granted approval under the provincial EA process, but was denied approval through the federal EA process.
Although provincial and federal EAs evaluated different aspects of a proposed project, the dual approach was heavily criticized as inefficient. As a result, streamlining efforts have been underway to minimize duplication, avoid process uncertainty and increase efficiency and effectiveness.8 Although federal-provincial cooperation was already encouraged under the old CEAA,9 CEAA 2012 introduced new provisions regarding coordination of provincial-federal EAs, whereby a single regulator may be responsible for the conduct of an EA. Under CEAA 2012, where a federal authority is satisfied that a provincial EA would satisfy federal EA requirements, the federal authority must, in certain circumstances, substitute the provincial EA for the federal one if requested to do so by the province.10 What remains to be determined is whether this delegation of authority is constitutional and adequately addresses all relevant aspects of a proposed project.
EAs in BC may also be subject to agreements between the government and those First Nations who have signed treaties and final agreements.11 These agreements may provide for the harmonization of procedures for evaluating proposed developments on treaty lands.12