EA Certificate

BC Mining 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.

Fair Mining Best Practice:Provide reasons for all EA decisions, a right to appeal those decisions, and require written responses to First Nations’ and public comments.

The final stage of the EA process is the Minter of Environment and Minster of Energy and Mine’s decision on whether to approve the project. If a project is approved, it is issued and EA Certificate which remains in effect for the life of the project.

The following aspects of the EA Certificate require greater clarity to ensure that this stage of the EA process is open and sustainable:

1.  Government Accountability
2. Right to Appeal EA Decisions
3. Use of Adaptive Management to Amend to EA certificates
4. Monitoring and Enforcement of EA Conditions and Commitments

Government Accountability

While it is standard practice for the government to provide reasons for its EA recommendations and decisions, it is not required. Under BC law, neither the EAO nor the ministers need to give reasons for their decisions or respond to public comments.

This lack of transparency reduce public confidence in the process and could be remedied by requiring written reasons for all EA decisions and written feedback to public and First Nations comments.

Right to Appeal Decisions

BC law also lacks an appeal process by which the public, including affected First Nations, can appeal an EA decision. Without a substantive legislated appeal process, complaints are only dealt with in a judicial review process, or litigated in court.

Use of Adaptive Management to Amend EA Certificates

Under BC law, a proponent can apply to the EAO for an amendment to an EA Certificate. If granted, none of the public consultation requirements under BC law apply to these applications for amendments. Another issue with this process is that current legislation does not encourage the government to amend the EA certificate for adaptive management or environmental concerns.

 Adaptive management uses the results of monitoring techniques to improve mitigation efforts.

Monitoring and Enforcement of EA Conditions and Commitments

A proponent’s legal obligations under an EA are described as conditions or commitments. Conditions address the procedural issues, such as adherence to the details of an EA application, while commitments address project-specific concerns.

Enforcement is required to ensure both EA conditions and commitments are upheld. However, serious concerns have been raised about the implementation of EA commitments because BC law does not, for example, require monitoring plans for adverse effects or promote First Nations’ participation in EA follow-up activities.