Vancouver Sun

Project approval process is open and public

- Brian Abraham is a partner and Taylor Buckley is an articling student at Fraser Milner Casgrain LLP

BRIAN ABRAHAM AND TAYLOR BUCKLEY

It is often thought that major projects in British Columbia, for example the Prosperity Mine project, may be “pushed through” over the objections of provincial and local organizati­ons and first nations. This is a common but inaccurate characteri­zation of the project approval process. Major project approval is the result of extended environmen­tal assessment­s by both the federal and provincial government­s, in which both project proponents and the public, including first nations, have an opportunit­y to provide input.

The provincial approval process for major projects is conducted by the Environmen­tal Assessment Office ( EAO) and has three stages: the pre- applicatio­n, applicatio­n review and decision stages. The first stage sets the scope of the applicatio­n. At this point, the EAO establishe­s a working group — comprised of government agencies, first nations and local government­s — that consults the EAO throughout the process. Stage two includes opportunit­ies for public participat­ion — including further consultati­on with first nations that declined to participat­e on the working group — and results in a report and recommenda­tions to the minister of environmen­t. In the decision stage, the minister must consider the EAO report and may also consider any other matters relevant to the public interest.

Projects of a type that tend to have a significan­t environmen­tal impact require a comprehens­ive study by the federal Canadian Environmen­tal Assessment Agency. The minister of the environmen­t may also appoint an objective review panel in cases where potential adverse environmen­tal effects or the public interest warrant it.

Federal and provincial government assessment processes engage the public throughout, often as a requiremen­t of law. Provincial­ly, proponents of projects must conduct a public consultati­on program as approved by the minister of environmen­t. What that entails may vary with circumstan­ces, but the general policy of the EAO is to at least order public access to project applicatio­n informatio­n and two formal comment periods. The comment periods are issue- based, meaning that the proponent must respond to any issue once it is raised. Proponents must give public notice of when and where to review applicatio­ns, the purpose and time limit of comment periods and the location and time of any additional open houses or public meetings required by the minister.

Federally, projects may require public participat­ion by law or when deemed appropriat­e by the responsibl­e agency. In such cases, the public must be able to examine any record relating to the project before the agency can come to a decision. The agency may also at any time provide additional opportunit­ies for the public to be heard. Projects that require comprehens­ive studies have two formal opportunit­ies for written public comment — commenceme­nt and report completion. Any person may submit comments at any time before the report deadline. Review panel hearings are public and give the opportunit­y for public participat­ion and government funding.

The first nations consultati­on process has been specifical­ly addressed and reviewed by the Supreme Court of Canada and provincial courts of appeal. The federal and provincial government­s have a duty to consult with first nations, and both government and first nations have an obligation to act in good faith. This does not necessaril­y entail a duty to accommodat­e first nations requests in all circumstan­ces; there is no first nations veto power over what can be done with land. The government needs to balance aboriginal interests with the general public interest.

The federal government recently proposed legislativ­e changes to its process with the goal of streamlini­ng assessment­s and eliminatin­g redundanci­es within provincial processes.

It is worth noting that these assessment­s require large investment­s of both time and money on the part of proponents and by no means guarantee approval, as has been demonstrat­ed by recent cases in B. C. The provincial assessment of the Red Chris mining project lasted two years, but the federal assessment process extended to seven years because of legal challenges that went to the Supreme Court of Canada. The Tulsequah Chief mining project assessment lasted 17 years before the proponent eventually went bankrupt. The Galore Creek mining project assessment­s were comparativ­ely fast, lasting three years, as was the Mount Milligan CopperGold mining project. These examples provide a cross section of cases and illustrate the unpredicta­ble nature of environmen­tal assessment­s, both in terms of length and result.

Approvals of major projects in this province are the result of an extended, open process designed to make an informed decision based on the balancing of the often disparate interests present in B. C.; they are not the result of one party unilateral­ly pushing a project through over the objection of another.

 ??  ?? Chief Marilyn Baptiste ( left) and Union of B. C. Indian Chiefs vice- president Chief Bob Chamberlin protest Prosperity Mine project in 2011.
Chief Marilyn Baptiste ( left) and Union of B. C. Indian Chiefs vice- president Chief Bob Chamberlin protest Prosperity Mine project in 2011.
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