Expanded Role for Indigenous Nations Under New Environmental Assessment Act

On November 5, 2018, the BC government introduced Bill 51: Environmental Assessment Act. This draft legislation makes significant changes to BC's environmental assessment ("EA") process.

Earlier this year, the government committed to revising the EA process "to ensure the legal rights of First Nations are respected, and the public's expectation of a strong transparent process is met."[1] The draft legislation increases opportunities for Indigenous participation, emphasizes seeking consensus and consent, and provides for a non-binding dispute resolution mechanism where consensus or consent is not achieved.

Indigenous Participation

Under the new act, Indigenous nations may notify the Environmental Assessment Office ("EAO") that they intend to participate in the EA process, rather than being identified based on the EAO's assessment of their "strength of claim". However, under the new system, the EAO may refuse participation if it determines there is no reasonable possibility that an Indigenous nation will be adversely affected by the project, but must provide reasons for this decision.

If there are disputes among Indigenous nations as to who should participate in the EA process, the new Act provides for a dispute resolution process (to be developed through future regulations).

Bill 51 provides for the creation of a tariff of costs to be paid by proponents to fund Indigenous participation in assessments, dispute resolution processes and compliance and enforcement activities.

Seeking Consensus and Consent

The purposes of the EAO under Bill 51, which must be taken into account in decision making, include supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples and recognizing the inherent jurisdiction of Indigenous nations.

In line with this objective, Bill 51 requires the seeking of consensus from participating Indigenous nations before a number of key points throughout the EA process, including before:

• deciding to proceed with an EA
• deciding to exempt a project from the EA process
• setting the procedural requirements of the EA (including extending time limits)
• accepting an application for an Environmental Assessment Certificate ("EAC")
• preparing draft assessment reports and EAC conditions
• recommending whether an EAC should be issued
• amending an existing EAC

Bill 51 also codifies two opportunities for participating Indigenous nations to indicate whether they consent to a proposed EAO decision:

• whether to exempt a project from EA or terminate the EA process for a project; and
• whether an EAC should be issued.

What Happens When Consensus or Consent is Not Achieved?

If there is a lack of consent (or consensus) where the Act requires seeking such consent (or consensus), an Indigenous nation may refer the matter to dispute resolution. If a matter is referred to dispute resolution, a decision on that matter cannot move forward until a non-binding report from the dispute resolution facilitator has been issued.

That being said, a lack of consent will not prevent the issuance of an EAC. Although consent (or a lack thereof) must be taken into account when making a decision whether to issue an EAC, it is not determinative (i.e. there is no veto) and a decision to issue may be made in the face of a lack of consent. However, on a practical level this new system will be much harder to navigate without that consent or in the face of Indigenous opposition.

Next Steps

A number of the proposed changes will be implemented by regulations and policies, which are subject to further engagement. The logistics of the dispute resolution mechanism, including its scope, the qualifications of facilitators, and timelines have not been established in the bill. Further, the proposed participation fee structure will be established by regulation over the next few months.

The new Environmental Assessment Act will only fully come into force after these supporting regulations are developed, which is anticipated for late 2019.

[1] Mandate letter to Minister of Environment and Climate Change Strategy, Georgy Heyman.