Canada: The New Environmental Assessment Act (BC) Comes Into Force December 16, 2019

On December 16, 2019, the long awaited Environmental Assessment Act, R.S.B.C. 2018, c. 51 (the “New BCEAA”) will come into force. Despite having received royal assent on November 27, 2018, the New BCEAA was not brought into force for over a year largely due to the need for further development of policies and regulations to support it. While questions remain about potential changes to the regulations accompanying the New BCEAA, the statute itself remains unchanged since the granting of royal assent.

Bill 51 and the New Environmental Assessment Act

As we detailed in our November 7, 2018 post on the New BCEAA, the Act introduces significant new changes into the environmental assessment (“EA”) process for industrial and resource projects in BC. Included among those changes are new rules surrounding project notifications, early engagement and increased public participation, along with new timelines dictating when certain steps must be taken throughout the EA process.

One of the most prominent features of the New BCEAA is that it provides new avenues for indigenous involvement throughout the EA process as a means through which to achieve consensus with affected Indigenous nations. These consensus seeking mechanisms align with the recent passage of Bill 41 (the “UNDRIP Act”) which affirmed the application of the United Nations Declaration on the Rights of Indigenous Peoples (the “Declaration”) to the laws of British Columbia, and the provincial government’s commitment to consult with indigenous peoples and ensure that the laws of BC are consistent with the Declaration.

Under the old Environmental Assessment Act, the Environmental Assessment Office (“EAO”) identified which indigenous groups the proponent and the EAO had to consult with on any given project. The New BCEAA allows Indigenous nations to identify which project assessments they wish to participate in, and requires the EAO to seek to achieve consensus with the participating Indigenous nations at various stages of the EA process.

Status of Accompanying Regulations

The replacement of the BCEAA also anticipated changes to the accompanying regulations. This includes the development of a new Reviewable Projects Regulation (“RPR”) to replace the current regulation. While the final text of the RPR is not yet available, the Environmental Assessment Office released an Interim Report on December 2, 2019, detailing anticipated changes to the RPR. Expected changes include the addition of certain “effects thresholds” for GHG emissions, linear disturbance, area of disturbance, and projects in protected areas. Other changes include more stringent EA thresholds for placer mines and certain types of electrical generation projects, new EA thresholds for oil refineries, adjusted EA thresholds for resorts, and new notification thresholds for new and modified projects. These are just a few examples. Certain thresholds and definitions will be aligned with the federal requirements under the new Impact Assessment Act, supporting substitution of the provincial EA process for the federal IA process for those projects. The Interim Report is found here.

What’s Next?

Many questions remain, particularly regarding potential dispute resolution mechanisms, revisions to the Environmental Assessment Fee Regulation, regulations on regional and strategic assessments, the presence and prevalence of agreements between the provincial government and Indigenous nations regarding the conduct of EAs, and the practical effect of the UNDRIP Act.

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