Project approval process is open and public
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.