Overview of BC’s Environmental Assessment Process

The provincial EA process occurs in two stages: pre-application and application review. ¹³

A.   Pre-Application Stage

1. The proponent submits a project description to the Environmental Assessment Office (EAO), containing the following information:¹⁴
   • proponent information;
   • general background information;
   • project overview;
   • land-use setting;
   • consultation activities;
   • proposed development schedule; and
   • list of required permits.
2. The EAO Executive Director determines whether the mine is a “reviewable project” in accordance with the threshold criteria set out in the Reviewable Projects Regulation (see: Thresholds for Reviewable Projects and Scope of Environmental Assessment, below). If a project is not reviewable under that regulation, the Minister of Environment may nevertheless exercise his/her discretion to designate a project as reviewable. Proponents may also choose to voluntarily “opt-in” to the EA process.
3. For “reviewable projects”, the EAO Executive Director then decides whether the project “may have a significant adverse environmental, economic, social, heritage or health effect”.¹⁵  The EAO makes this decision after circulating the project description to other government agencies and First Nations and making it publicly available on the EAO’s Electronic Project Information Centre (e-PIC).¹⁶
   • If the EAO Executive Director determines the project will not have significant adverse impacts, he or she will issue a section 10(1)(b) order that the project is not subject to an EA.
   • If the EAO Executive Director determines the project may have significant adverse impacts, he or she will issue a section 10(1)(c) order requiring the project to undergo an EA.
4. For projects that require an EA, the EAO Executive Director will also issue a draft section 11 order,¹⁷ specifying the project-specific scope, procedures and methods for conducting the EA review, which is circulated to the proponent and First Nations for comment. ¹⁸ Once the EAO Executive Director considers the comments, he or she will prepare a final section 11 order consisting of:¹⁹
   • An order listing the nature of the project; why it requires an EA; the role, if any, of the Canadian Environmental Assessment Agency; direction on public consultation; development of the Application Information Requirement (AIR) and Application; and the First Nations that the EAO directs the proponent to consult and report on. Recent case law indicates that the section 11 order must also describe any First Nations consultation included in the EA process. ²⁰
   • A schedule specifying the scope, procedures, and methods by which a review must be conducted.
5. The EAO will also form a working group  that includes federal and provincial government agencies, First Nations, local governments, and, where appropriate, officials from neighbouring jurisdictions, including representatives of the Canadian Environmental Assessment Agency (see: Public Consultation Process for Environmental Assessment discussion below).²¹
6.  The proponent must complete and submit a draft AIR to the EAO.²² The AIR serves as a roadmap for the information that must be included in the EA.
   • The EAO provides First Nations, the public and the working group with an opportunity to review and comment on the draft AIR;²³
   • After the public review, the proponent finalizes the AIR.
   • After the EAO approves the AIR, the proponent has 3 years to submit its EA (application).²⁴
7. The proponent carries out studies and completes information gathering as specified under the AIR.²⁵
8. The proponent finalizes the EA (application) and submits it to the EAO Executive Director for evaluation to determine whether it covers all matters required under the final AIR.²⁶ If the information provided by the proponent is lacking, the responsible ministers retain the authority to request additional information.
9. Where the EAO Executive Director determines that the EA contains all the required information, it is accepted for review.²⁷

B.   Application Review Stage

The EAO serves as the lead review agency when provincial EAs are required.²⁸ The EAO Executive Director has broad discretion to determine the procedures and methods for reviewing an EA for proposed mining activities²⁹ and often designates a Project Lead to conduct the review.

The EAO may also refer the application to a Minister to determine the scope, procedures and methods of the EA.³⁰ In such cases, the Minister has broad discretion to establish the procedures and methods for the EA review. This discretion includes the power to require that the review be conducted by:³¹

• a commission that the minister may constitute for the purpose of the assessment, consisting of one or more persons that the minister may appoint to the commission;
• a hearing panel, with a public hearing to be held by one or more persons that the minister may appoint to the hearing panel; or
• any other method or procedure that the minister considers appropriate and specifies in the order, and by the executive director or other person that the minister may appoint.

After the proponent’s EA application has been accepted for review, it undergoes the following review process:³²

1. Provincial policy requires distribution of the application to the working group, First Nations and public for review and comment. It is also posted on the e-PIC website and placed in local libraries near the proposed mine.³³ The public comment period typically ranges from 45 to 60 days. All written comments submitted to the EAO are included in a ‘tracking table’ for the proponent to respond to.
2. The EAO leads ‘open houses’ during the public comment period for members of the public to review the application, make comments (that are not recorded), and ask questions of the EAO and the proponent.³⁴
3. The EAO Executive Director begins to draft the assessment report. Provincial policy requires distribution of the draft assessment report to the proponent, working group and First Nations for input. Generally three weeks is provided for such comment.³⁵
   • Where First Nations do not agree with that report’s conclusions, they have an opportunity to provide their own submission directly to the responsible ministers (i.e., the Minister of Environment and the Minister of Energy and Mines).³⁶
4. The EAO then provides a final assessment report (which should include the views of all interested parties)³⁷ and recommendations with reasons, if any, to the Minister of Environment and to the Minister of Energy and Mines.³⁸ At this stage, provincial policy requires ministers to consider whether the province has fulfilled its legal obligations to First Nations.³⁹
5. After considering the final assessment report, any accompanying recommendations and any other matters considered relevant to the public interest, the Minister of Environment and Minister of Energy and Mines⁴⁰ must do one of the following:⁴¹

• certify the project by issuing an EA Certificate with any conditions that the ministers consider necessary;
• refuse to certify the project; or
• order that further assessment be carried out.

The following time limits for various stages of the EA are prescribed under BC law:⁴²

• 30 days for the evaluation of, and decision on accepting, an EA application for review;⁴³
• 180 days for review of an EA application by EAO Executive Director and preparation of EA report based on review;⁴⁴ and
• 45 days for the relevant ministries make a decision on the EA application.⁴⁵

These time limits are much shorter than the average time for review of two years that was provided under BC’s previous EA law (the 1994 Act).⁴⁶ The EAO Executive Director (or Minister if referred to) retains the discretion to extend these time limits, even where they have expired.⁴⁷ Although this deadline may be extended for up to a period of three years, it can only be extended upon request by the proponent or if the EAO requires additional information to complete the assessment.⁴⁸ It cannot be extended solely at the request of the public or First Nations.⁴⁹

Issue

Costs for reviewing an EA can place a heavy burden on the public purse where they are not recovered from the proponent. Under BC law, the payment of fees for reviewing EAs is contemplated, but is not established as a mandatory legal requirement.⁵⁰

Recommended Solution

Recover costs incurred in reviewing EA application

[Tags: EA; Costs; Review]

Other jurisdictions explicitly require recovery of public funds expended in the EA review process from the proponent. For example, under Canada’s new EA legislation, proponents must cover the costs incurred by the government for prescribed services during the EA process.⁵¹ Similarly, in Newfoundland and Labrador, the proponent must pay EA costs incurred by the Crown.⁵² Where these costs have not been paid, the regulatory authority may cease the review until they have been paid.⁵³ Specific items that may be covered include: the cost and expense of consultants, lodging, meals, salaries, remuneration and travel incurred by the provincial government and by boards or committees.⁵⁴ In New South Wales (Australia), public money expended in the EA process may also be recovered from the applicant for a mining lease.⁵⁵ In Mozambique, the proponent is responsible for the travel costs and out of office expenses of the regulatory authority’s technical staff and costs related to correspondence, consultancy fees for the environmental consultants, costs arising from public consultations and other fees related to the production of the documents required for the licensing process.⁵⁶