Government Accountability

Although it is standard practice for the government to provide reasons for its EA recommendations and decisions, it is not required.³⁸⁵ Under BC law, the EAO Executive Director has broad discretion to decide whether to provide reasons for recommendations made in referring the EA to the ministers for their final decision.³⁸⁶ Similarly, the ministers are not required to provide reasons for their final decision on whether to issue or deny and EA Certificate.

Issue

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 in the process.

Recommended Solutions

Provide reasons for all EA decisions

[Tags: EA; Reasons; Decision; Certificate]

Unlike BC, the regulatory authority in other jurisdictions must provide reasons for its EA decision – for example:

• Under the Mackenzie Valley Resource Management Act, regulatory authorities must issue and make publicly available written reasons for decisions or recommendations that it makes.³⁸⁷
• Under Manitoba law, when a public hearing has been held on the EA of a proposed project, the regulatory authority must provide written reasons for its decision.³⁸⁸
• Under Yukon law, the Yukon Environmental and Socio-economic Assessment Board must provide a written report to the regulatory authority summarizing its recommendations on the EA review. The regulatory authority is then required to respond to the report in writing and describe any action they plan to take.³⁸⁹
• Until the former CEAA, the Minister was required to advise the public of the extent to which recommendations made in a mediator or review panel’s report had been adopted, and the reasons for not adopting recommendations.³⁹⁰
• Under European Union law, the regulatory authority must make reasonable efforts to inform the public about reasons for making decisions, and the consideration on which those decisions were based.³⁹¹

The Aarhus Convention states that the public should be provided reasons and informed about considerations on which a decision was based.³⁹² Although Canada is not a signatory of this Convention, this provision suggests that the requirement to provide reasons for government decisions is becoming a point of customary international law.

Require written responses to public comments

[Tags: EA; Public Consultation; Reasons]

In BC, it is standard practice for proponents to respond to public comments when providing information to the EAO. This is, however, not a legal requirement and neither the EAO nor the ministers must show if and how these public comments were considered.

In contrast, under California law the regulatory authority must prove that it has considered the public’s comments by responding in writing to all such comments.³⁹³ Under US federal law, the regulatory authority must assess and consider comments both individually and collectively, and must respond by one or more of the following means:³⁹⁴

• modify alternatives, including the proposed action;
• develop and evaluate alternatives not previously given serious consideration by the agency;
• supplement, improve, or modify its analyses;
• make factual corrections;
• explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency’s position; and
• if appropriate, indicate those circumstances that would trigger agency reappraisal or further response.

Require written responses to First Nations’ comments

[Tags: EA; Indigenous Rights; Reasons]

In a recent judgment, the BC Court of Appeal stated that for a consultation process to be considered reasonable, it should require “persuasive reasons why the course of action the petitioners proposed was either not necessary, was impractical, or was otherwise unreasonable. Without a reasoned basis for rejecting the petitioners’ position, there cannot be said to have been a meaningful consultation.”³⁹⁵ This reflects the recognized need to communicate how discussions with First Nations changed or altered the scope or elements of the EA.³⁹⁶ As follow up, it has been recommended that when an EA decision has been made, the regulatory authority should consult with affected Aboriginal communities to determine if, from their perspective, meaningful consultation has occurred.³⁹⁷

Some jurisdictions have enacted clear laws detailing how the comments of Aboriginal peoples should be considered in the EA review process. For example, in the Yukon, the regulatory authority must consider “fully and fairly” any views presented to it whenever exercising its duty to consult.³⁹⁸ Under several agreements signed with Aboriginal communities in northern Canada, decision-makers are explicitly required to consider recommendations from Aboriginal people; if they reject these recommendations, the decision-makers must provide explanations.³⁹⁹

Right to Appeal EA Decision

Issue

BC’s law does not provide an appeal process by which the public, including affected First Nations, can appeal an EA decision.⁴⁰⁰ This omission has been criticized for failing to provide a mechanism to deal with complaints about the rigour of the analysis.⁴⁰¹ Without a substantive appeal process, complaints are only dealt with in a court of law through judicial review. This process is not an appropriate substitute for the right to appeal because it generally fails to adequately review substantive issues for which greater accountability is needed.⁴⁰²

Recommended Solution

Provide appeal mechanism in EA legislation

[Tags: EA; Appeal; Review]

Many jurisdictions have incorporated appeal mechanisms in their EA laws to permit members of the public to challenge the EA decisions. Such appeal provisions can help address procedural flaws in the EA process, such as a failure to hold a required public hearing, and also highlight any substantive issues that the regulatory authority may have failed to consider.⁴⁰³

The right to appeal EA decisions is provided in numerous Canadian jurisdictions – for example:

• In Manitoba, any person who is affected by a director’s decision may file an appeal with the Minister of Environment. Ministerial decisions in turn may be appealed to Cabinet (Lieutenant Governor in Council).⁴⁰⁴
• In Quebec, “any order issued by the Minister…may be contested by the municipality or person concerned before the Administrative Tribunal of Quebec”.⁴⁰⁵
• In Newfoundland and Labrador, any person who is aggrieved of a decision or order made under the Environmental Protection Act may appeal to the Minister of Environment. Questions of law or mixed fact and law may be appealed to the Trial Division of the Supreme Court.⁴⁰⁶
• In Saskatchewan, there is a legal process for appealing EA screening matters.⁴⁰⁷

Outside Canada, appeals of EA decisions are provided in laws of Egypt,⁴⁰⁸ Jordan,⁴⁰⁹ Morocco,⁴¹⁰ Qatar,⁴¹¹ Pakistan,⁴¹² the US,⁴¹³ New Zealand,⁴¹⁴ India,⁴¹⁵ Kenya,⁴¹⁶ Mauritius,⁴¹⁷ and Guyana.⁴¹⁸

 Adaptive Management and Amendments to EA Certificates

Under BC law, a proponent can apply to the EAO for an amendment to an EA Certificate.⁴¹⁹ This application must include a statement of the reasons for the request.⁴²⁰ The regulatory authority has the discretion to determine the procedure for reviewing the application.⁴²¹ None of the public consultation requirements under BC law explicitly apply to applications to amend EA Certificates.⁴²² After reviewing the application, the regulatory authority may amend the EA Certificate by varying, deleting, or attaching new conditions to it.⁴²³ [Note that the EAO also retains the right to vary an EA Certificate in response to an emergency or other circumstance that warrants, or will warrant, a variation – this includes in cases of non-compliance.⁴²⁴]

Issue

In BC, EA Certificates are usually amended at the request of proponents to further their development goals.⁴²⁵ Although the EAO may amend the EA Certificate in exigent circumstances or in cases of non-compliance, the legislation does not explicitly contemplate the right to amend the EA Certificate for environmental protection or adaptive management purposes. Similarly, the law does not explicitly contemplate amendment of the EA Certificate when research or monitoring determines that impacts are greater than anticipated, or that additional mitigation or other measures are required.⁴²⁶ This legal structure thereby fails to provide the flexibility needed to implement adaptive management and ensure social and environmental protection throughout the life of the project.⁴²⁷

Recommended Solutions

Require public and First Nations engagement for major amendments to EA Certificate

[Tags: EA Certificate; Public Consultation; Amendment]

Unlike BC, Manitoba law requires that an amendment application for major proposed alterations be reviewed in accordance with the same process as the original EA application.⁴²⁸ This ensures that the public is able to comment and suggest areas for improvement based on its local knowledge and experiences with the project.

Regular EA reviews to encourage dynamic and responsive process

[Tags: EA Certificate; Amendment; Adaptive Management]

Adaptive management requires that information, processes and technologies are regularly reviewed and revised. In Mozambique, the EA Certificate (environmental licence) must be reviewed every five years.⁴²⁹ This mandatory review is an important follow-up tool as it provides a regular opportunity to amend the legally enforceable requirements in response to observed impacts and the success of mitigation efforts.

Encourage adaptive management in decision-making

[Tags: EA Certificate; Amendment; Adaptive Management; Environmental Protection]

Adaptive management entails the use of monitoring results to improve mitigation efforts, as needed.⁴³⁰ Such an approach can transform the EA process from a static process into a dynamic one.⁴³¹ US federal law recognizes the value of an adaptive management approach, in mandating that regulatory authorities:

[…] should use adaptive management, as appropriate, particularly in circumstances where long-term impacts may be uncertain and future monitoring will be needed to make adjustments in subsequent implementation decisions.⁴³²

There can be positive and negative aspects to adaptive management.  In some circumstances regulators and proponents have used the concept of adaptive management as an excuse to avoid necessary baseline and other studies.  In such cases, the argument is that the proponent can move ahead with the project in the absence of baseline information and studies as long as they provide information at some point in the future to allow for “adaptive management”.  This contrasts with the definition above which relates to true adaptive management where adequate baseline and other studies have been carried out but there is still a need for monitoring and review of long-term impacts to deal with uncertainties.

Under Alberta law, the regulatory authority may amend an approval on its own initiative if “an adverse effect that was not reasonably foreseeable at the time the approval was issued has occurred, is occurring or may occur”.⁴³³ Adaptive management was also explicitly recognized under the former CEAA, which provided that the results of follow-up programs (when adopted) could be used for adaptive management purposes.⁴³⁴ This provision is no longer present in CEAA 2012.

Encourage adaptive management through research and development

[Tags: EA; EA Certificate; Amendment; Adaptive Management]

Japan recognizes the importance of research for adaptive management, by legally requiring the national government to promote research and development of “technologies necessary for conducting environmental impact assessments” and “to disseminate the results thereof”.⁴³⁵