Vancouver Sun

Improving the environmen­tal assessment process

- ROBIN JUNGER Robin Junger practises law as a partner in the Vancouver office of Mcmillan LLP. He was previously head of the B. C. Environmen­tal Assessment Office and deputy minister of energy, mines and petroleum resources.

As one hears on a near daily basis, developing most major projects faces significan­t regulatory challenges, most particular­ly in the area of environmen­tal assessment.

Some projects have been within the environmen­tal assessment process for longer than it took to fight the Second World War, and close to the time it took to put a man on the Moon. Should it really take this long just to decide if a mine or oil pipeline can go ahead?

Most people would say that the answer is no.

Yet most people also accept that environmen­tal assessment is an essential component of sustainabl­e developmen­t and must be a part of any major project developmen­t. How does one reconcile this? What are the reasons for the delays and how do we fix them?

• First and foremost, we must remain true to the purposes of environmen­tal assessment. It is to determine — before a major project enters the permitting phase — whether it is likely to have “significan­t adverse effects” despite whatever mitigation measures can be put in place. There are few cases where significan­t adverse effects are ultimately found. This is because proponents undertake extensive consultati­on with interested parties and develop a range of project refinement­s and mitigation measures to avoid such effects. Indeed, a major project in British Columbia can have more than 100 legally binding commitment­s attached to it even before it enters the permitting phase. However, this does not mean that every issue and last detail can or should be resolved at the environmen­tal assessment stage.

• Public input is necessary to ensure all relevant issues are duly assessed. Yet the environmen­tal assessment process must not be allowed to become a political forum to simply oppose or support a particular project. Nor should it be allowed to involve protests that physically prevent access to public meetings or that involve people appearing at public meetings in costumes and engaging in disruptive behaviour. Environmen­tal assessment officials must carefully ask themselves whether, and how, they must modify existing processes to avoid these problems. This may require some significan­t changes to the manner in which public input is sought and obtained.

• Stakeholde­rs must also be realistic about the limits of the environmen­tal assessment process. While emerging issues such as “cumulative environmen­tal effects” certainly warrant considerat­ion, there is significan­t disagreeme­nt as to what exactly that entails. Similar challenges exist in relation to aboriginal rights and claims of historic failures to consult aboriginal groups. The environmen­tal assessment process is simply not suited to or charged with resolving all social disagreeme­nts or conflicts, particular­ly historic ones. Instead, we must recognize that the environmen­tal assessment process can only go so far in building common ground or minimizing discord. At the end of the day, government­s will still need to make difficult decisions.

• Federal Minister of Natural Resources Joe Oliver has recently spoken strongly in favour of the need to reform federal environmen­tal legislatio­n, and to provide more certain time frames. These are laudable goals, and the Canadian Environmen­tal Assessment Act seriously needs reform. However, one should not believe that legislativ­e reform alone is the answer. More specifical­ly, one should not believe that imposing legislativ­e time frames will ensure that projects are completed within those time frames. The real answer is to have a process that is clear and, more importantl­y, will empower officials to make principled but difficult decisions as the environmen­tal assessment processes unfold.

Some of the greatest challenges with environmen­tal assessment­s are well known, and they do not stem from the legislatio­n or lack of time frames. They stem ( at least at times) from things like officials demanding permitting level detail at the environmen­tal assessment stage, a reluctance to make difficult decisions that may be opposed by stakeholde­rs or aboriginal groups ( even when the duty to consult has been met), and a bias toward inaction when there is a lack of consensus. These are matters that can only be addressed through strong leadership, policy direction and a willingnes­s to support officials when they make decisions that are never going to make everyone happy.

• Finally, it should be noted that effective management of the environmen­tal assessment process cannot be achieved simply through strong leadership in the bureaucrac­y or political direction. Rather, it requires commitment to the process by all interested parties. Proponents must be prepared to dedicate a significan­t, but not unreasonab­le, amount of time and resources, and to seriously consider issues and correspond­ing mitigation measures. Stakeholde­rs and expert agencies must engage earnestly and in a timely manner. Any participan­t must also be vigilant and willing to push back on environmen­tal officials if the process appears to be creeping off course on any individual file, which is a common occurrence in the difficult and challengin­g discipline that is environmen­tal assessment.

 ??  ?? The environmen­tal assessment process for major projects needs reform.
The environmen­tal assessment process for major projects needs reform.
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