Scope and Scale of Environmental Assessment
BC Mining Issue:There is no mandatory EA content provided under BC Law. Without prescribed minimum standards, there is a risk that important factors will not be consistently assessed.
Fair Mining Best Practice:Develop minimum content for EAs.
In BC, when a proposed mining activity triggers an EA, the Executive Director of the Environmental Assessment Office (EAO), must specify its scope and scale.
The scoping stage identifies issues and aspects that will be considered in the EA Review, such as the persons and organizations to notify and potential cumulative environmental effects of the proposed activity. The scaling stage allows the EAO Executive Director to choose which mining activities that will be considered.
Both processes need legislative improvements:
- The development of minimum content requirements for EAs and the inclusion of all activities related to the mining project in the scoping stage.
- Mandated input from First Nations and the general public in the scaling stage.
BC does not have legal provisions to guide the EAO’s discretion in determining the scale of the EA, nor are there legal provisions that say what activities are should be included in the assessment process.
The following sections discuss and recommend solutions to the laws governing EAs.
Information Required for EAs
The EAO’s Application Information Requirements form (AIR) identifies information that the proponent should provide in the EA, but does not require baseline data; nor does the form itself carry much legal weight. Baseline data is the sum of all assessments of environmental impacts and plans for the treatment of long-term problems. It is integral in making informed decisions about the project.
US federal law describes alternative analyses as being the ‘heart of the EA process.’
The identification, analysis and consideration of potential alternatives to a proposed project are an important part of the EA process. However, BC law does not require that any alternative analyses take place.
Public Consultation Process for EAs
As part of the EA process in BC, mining companies must conduct a public consultation program that includes: public consultation, public notice, public access to information and comment periods.
Each stage of this consultation process is limited by lack of formal mechanisms for involvement that could, for example, allow the public to participate on EA advisory boards, or access funds needed to retain experts to clarify key issues within EAs.
“…public consultations provide a democratic legitimacy to the decision making process, by ensuring that unelected officials account for public views and public (environmental) values in their decisions.”– Neil Craik
First Nations Consultation in EAs
BC Mining Issue:The current EA process fails to ensure meaningful participation of First Nations.
Fair Mining Best Practice:Develop meaningful participation by creating separate First Nations consultation protocols and providing adequate financial, technical, and legal assistance to First Nations.
Denying [First Nations] a role within the assessment process is denying it access to an important part of the high-level planning process. Case law makes it clear that involving First Nations at the early stages of high-level planning can be essential to proper consultation. – Justice Groberman (BC Court of Appeal, 2011)
Modern treaties (“Final Agreements”) have been signed by the Nisga’a, Tsawwassen, Maa-nulth, Yale and Tla’amin First Nations.
In BC, the government consults with First Nations in the EA process based on whether or not the First Nation has entered into a treaty. For treaty First Nations, BC law mandates that no reviewable project may proceed without consent,. This consent is only required for Treaty Settlement Land, and not for the rest of lands within a First Nation’s traditional territory.
Due to the governments the failure to legally formalize the duty to consult (as discussed in Chapter 3) and having no mandated consultation requirements, First Nations without an agreement or Treaty (the vast majority in BC) are effectively left out of the EA Act and the processes it governs.
This lack of certainty in process makes it difficult for First Nations to “meaningfully participate” in the EA process.
Recommended solutions include:
- Developing separate First Nations protocols and agreements for EA review, and
- Consulting affected First Nations before beginning of the EA review process.
Ideally, a revised process would address Aboriginal rights separately from the EA process and develop best practices for talks between both parties.
BC law should also change to:
- Provide time extensions for EA reviews based on project complexity and First Nations’ consultation needs; and
- Provide adequate financial assistance to First Nations for meaningful participation in EA review
Extending BC’s strict EA timelines and clearly requiring that adequate funding be made available to, for example, traditional use studies and training of dedicated review staff, will ensure that First Nations can meaningfully engage in EA reviews.
The Assembly of First Nations has defined “meaningful participation” in the EA process as including:
- A role in choosing the appropriate class of EA
- Involvement in research design and implementation
- Involvement in design and implementation of monitoring programs
- Decision-making authority concerning whether and under what conditions a project is approved.