Thresholds for Reviewable Projects
Overview of BC Law
Under BC’s current EA Act, EAs are not required for all mining activities; EAs are only mandatory for projects that exceed the legislated EA threshold or those that are specifically designated by the Minister as “reviewable projects”.57 Unless exempt by the EAO Executive Director,58 all projects that meet the following thresholds must submit an EA application and obtain an EA Certificate before operations can begin:59
- new projects where the mine will have a production capacity greater than 75,000 tonnes/year of mineral ore;60 and
- modifications to existing mines where the:
- mine will have a production capacity greater than 75,000 tonnes/year of mineral ore; and
- modification will result in the disturbance of either:
- 750 hectares of land not previously permitted for disturbance; or
- an increase of at least 50% of the area permitted for disturbance.61
Where a proposed project does not meet the above thresholds, a proponent itself may request that the mine undergo an EA.62 Also, the Minister of the Environment may designate mines that do not meet the threshold requirements as reviewable projects if satisfied that:63
- the mine may have a significant adverse environmental, economic, social, heritage or health effect;
- the designation is in the public interest; and
- the mine is not substantially started at the time of the designation.
Designation of otherwise non-reviewable projects by the Minister of the Environment is extremely rare and as of the date of this publication, the power had only been exercised to designate a project at the proponent’s request.64
The current thresholds to trigger EAs are much higher than those listed under BC’s former EA Act. For example:
- Under the former legislation, the threshold for new projects was 25,000 tonnes of ore/year. This threshold that has been increased by 300%.65
- Under the former legislation, modifications to existing mines had to be assessed if the area of new disturbance was 250 hectares or over 35% of the original mine area. This threshold has been increased to 750 hectares or 50% of the original mine area.66
These amendments mean that smaller-scale, but still significant mining activities are no longer required to undergo an EA before being permitted. These thresholds also allow small mines (with an initial production capacity less than 75,000 tonnes/year) to incrementally expand into larger mines (exceeding the 75,000 tonnes/year threshold) without triggering an EA. Such a scenario could occur where a proponent states that its production capacity will be less than the capacity of its on-ground infrastructure, only to later increase the level of production without changing the initial physical footprint.67 Finally, these thresholds systematically exclude certain mining activities, such as mineral exploration, which can involve high-impact drilling, road construction and waste generation.
Issue
BC’s legislated EA thresholds do not always correlate to the potential environmental or social impacts of proposed mining activities.
Recommended Solutions
Require EAs for all mining activities irrespective of size or production capacity
[Tags: EA; Threshold; Reviewable Project]
EA laws in other jurisdictions recognize that, irrespective of the size or production capacity of the operation, all mining projects have the potential for significant adverse social and environmental impacts that must be considered before deciding whether to approve proposed projects. For example, in Washington, EAs must be prepared for all proposed metals mining and milling operations.68 Similarly, in Sweden, mining activities are defined as environmentally hazardous activities that require EAs.69 In Nova Scotia, mining facilities for the extraction or processing of metallic minerals are all subject to EA requirements.70
First Nations have also criticized BC’s legislated EA thresholds as being inadequate, and have called for mandatory EAs for all mining activities. This is reflected in many First Nations’ resource policies, that state that the community will treat mining activities that do not trigger an EA under the provincial law in the same way that they would treat the proposed project if it exceeded the triggering thresholds.71
Require EA for advanced mineral exploration activities
[Tags: EA; Exploration]
Mineral exploration activities can have significant environmental and social impacts. BC’s laws, however, do not require EAs for advanced exploration activities. Conversely, the importance of conducting EAs of exploration activities is recognized elsewhere, including the Yukon,72 Colombia73 and the Philippines.74
Notably, within in BC’s current legal framework, a review of the environmental and social effects of exploration activities could be achieved if the Minister of Environment exercised his or her discretion to conduct a strategic environmental assessment of exploration activities across a region or the province.75 This strategic EA could identify thresholds for what types of exploration activities would require a project-based EA.
Add thresholds to reflect environmental, wildlife and social values
[Tags: EA; Thresholds; Reviewable Project]
Although the EAO has the discretion to designate projects as reviewable based on environmental or social considerations, it has never exercised this discretion. To better ensure that appropriate projects undergo an EA, BC’s threshold criteria should at minimum be expanded to require EAs based on the location of a project (e.g. environmentally sensitive area, fisheries watersheds, community watershed, critical wildlife habitat, highly fragmented landscapes, trans-boundary waters, etc.) and the environmental values at stake (e.g. threatened or endangered species, drinking water aquifer, etc.).76 Notably, BC’s Environmental Assessment Act specifically empowers the Lieutenant Governor in Council to enact regulations that use these factors to determine whether an EA is necessary.77
Other jurisdictions do consider factors beyond mere project size and production capacity. For example, Finland has adopted a broad approach by requiring EAs where projects may have adverse environmental impacts due to the special features of Finland’s nature and environment.78 In Nunavut, more detailed criteria are used to determine whether a proposed project should require an EA. For example, the Nunavut Impact Review Board will consider whether the proposed project:79
- may have significant adverse effects on the ecosystem, wildlife habitat or Inuit harvesting activities;
- may have significant adverse socio-economic effects on northerners;
- will cause significant public concern; or
- involves technological innovations for which the effects are unknown.
Permit First Nations and local governments to request EAs for a non-reviewable project
[Tags: EA; Indigenous Rights]
In BC, only the Minister of Environment is empowered to require an EA for a non-reviewable project.80 Conversely, in other jurisdictions, aboriginal peoples and other stakeholders are permitted to determine whether a project, which does not meet statutory thresholds, should nevertheless be subject to an EA. For example, in the Northwest Territories, the Mackenzie Valley Resource Management Act provides that local governments and the Gwich’in First Nation, the Sahtu First Nation or the Tlicho Government are entitled to conduct a preliminary screening of a proposal to determine whether to refer it for an EA.81 The Review Board is then required to perform an EA for any proposal that the local government or First Nation consider warrants one.82
Provide for public involvement in designating and exempting reviewable projects
[Tags: EA; Public Consultation; Reviewable Project]
In Alberta, the regulatory authority must consider “any concerns in respect of the proposed activity that have been expressed by the public” when deciding whether an activity that does not automatically trigger an EA should still undergo one.83
California law mandates a minimum 20-day public review period of a regulatory authority’s decision to exempt a mining activity from the EA requirement.84 This is accomplished through an on-line posting system which receives all EA reviews of mining proposals in the state.85 The public can access these documents online and post comments during the notification period. These provisions increase transparency and provide accessible public oversight.