The Tyee ? Reinvent Environmental Assessment in BC, Say Critics

The process is broken say First Nations and others, citing the Northwest Transmission Line as a perfect example.

Timber stacks line the Stewart Cassiar Highway, clearing the way for the Northwest Transmission Line and a resource boom for that part of the province. Photo: C. Pollon.

The air is sweet with freshly cut spruce way up on the Stewart Cassiar Highway, about 1,600 kilometres north of Vancouver, a sign that the northwest transmission line (NTL) has finally broken ground. Lining the road just south of Bell 2 are seven tepee-like piles of wood, each looming four stories high -- the detritus cleared for a right of way that will eventually see the B.C. power grid extended 450 km into the north-western corner of the province.

The power line has moved forward largely under the public radar, overshadowed by the intrigues of the proposed Enbridge Northern Gateway pipeline. No one seemed to notice earlier this year when the total cost of the line grew to $561 million -- a more than 40 per cent increase of $166 million from the 2011 budget estimate of $395 million. The original winter of 2013 completion date has also been pushed back to spring 2014.

Whenever it's completed, the transmission line will be a gateway to much more development in the region.

And therein lies the biggest challenge in gauging its impact on the ground. At least five proposed resource projects will become possible once the northwest transmission line is complete. Most are large open pit mines and run-of-river hydro projects, which require either cheap grid power to be economical, or a connection to the grid to sell electricity. There is the $725 million Forrest Kerr hydro project, one of the largest private run-of-river power projects ever attempted in the province. Then there's the proposed Kerr-Sulphurets-Mitchell mine (KSM), which plans to extract about $70 billion worth of gold, silver and copper from the Unuk Valley. If that happens, KSM will need to store two billion tons of potentially acid-generating tailings in perpetuity, all in a pristine salmon-rich watershed subject to high seismic activity and truly extreme weather events.

British Columbia's environmental assessment legislation exists to identify the damage that projects like the NTL and its offspring could create, while laying out as well how such impacts can be avoided. It is a fact-finding process that, on paper at least, has the power to say 'no' if the project's environmental, social or economic impacts are found likely to damage the public interest.

But on the ground where it matters, B.C.'s environmental assessment (EA) process is much different. Since B.C.'s EA legislation was created in 1994, its effectiveness has been eroded by policy changes and political tinkering.

The current process is so broken, say some, that drastic measures are needed. "A new assessment agency is required to replace the EAO [Environmental Assessment Office]," reads a First Nations Energy and Mining Council report that was endorsed by the First Nations Summit in November 2009. "Far from being the independent, neutrally administered, technically robust, transparent and accountable process it needs to be," the report asserts, "the Act is constructed to achieve the opposite of these characteristics in its implementation."

The solution? They say, rip up B.C.'s EA legislation and start again from scratch.

Government still stinging

The Environmental Assessment Office is still stinging from a July 2011 investigation by the auditor general, which condemned the office's record of following up after an EA certificate is issued.

BC Hydro's new Northwest Transmission Line will bring power to -- or from -- a flurry of new power and resource developments. Map by BC Hydro.

"[A]dequate monitoring is not occurring and follow-up evaluations are not being conducted," concluded Auditor General John Doyle. He added that the information currently provided to the public "is not sufficient to ensure accountability."

The B.C. EAO has since responded, claiming to have fulfilled four of the AG's six recommendations. For example, 169 staff of the Forest, Lands and Natural Resource Operations Ministry have now been "authorized" to inspect EA-certified projects for compliance with certificate conditions.

"My goal is to have an environmental assessment process that is held up as a model around the world," said Environment Minister Terry Lake in a September 2012 news release. "These improvements take us a long way toward that goal."

CUMULATIVE UNCERTAINTY: ASSESSING ALL IMPACTS OF THE NTL

The NTL (see map, above) underwent a crude cumulative effects assessment in advance of earning its EA certificate in February 2011, but this scan did little more than summarize the five most developed mine proposals planning to use the NTL.

The B.C. Environmental Assessment Office says there is an ongoing cumulative impacts "pilot program" in areas surrounding the NTL, "testing methods for CEA [cumulative effects assessment] at a broad scale." Details remain vague. The pilot is led by the Ministries of the Environment and Forests Lands and Natural Resource Operations to "explore" the future development of a framework and tools for CEA, with workshops continuing into December.

Recent amendments to the BC EA Act have also created a discretionary power to consider cumulative effects, but such scans are not mandatory in the province today.

Yet it remains unclear how B.C. will get to such a place. The changes Lake refers to address only the back end of the process: what happens after an EA approval. What wasn't addressed was what happens -- or doesn't -- in the process before a project is certified.

The B.C. EAO faces a flood of new projects to assess, particularly from the northwest. The workload for the recently increased staff of 80 will only get worse as the federal government scales back the rigour of its independent EA process and downloads additional responsibility onto provinces. Yet the EAO is already stretched to the limit on a bare-bones budget of $8.7 million, frozen until at least 2015.

Legislation gutted

British Columbia's EA legislation was first created in 1994, with the stated purpose that it would "promote sustainability by protecting the environment."

In 2002, the BC Liberal government rewrote the legislation, erasing that statement of purpose. It had the same effect as removing the rudder from a ship in rough weather. Gone suddenly was any mention of objectives. "This situation [has] the perverse result that processes and procedure are being designed and implemented without knowing what the ultimate objective is," states the Council report I mentioned earlier.

After the amendments, the EAO executive director acquired the sole responsibility and discretion to conduct assessments and advise ministers in any fashion deemed appropriate. The rewritten legislation also required that the B.C. process be consistent with the policies of the government of the day -- a death knell, say critics, to the independence of the office and its work.

Project splitting

The changes made in 2002 had another effect. They made it easier for projects to avoid EA reviews altogether by upping the thresholds necessary to require scrutiny. The thresholds that trigger EA assessments established by the NDP in the 1994 were in most cases increased. This meant adding to a huge gray zone of projects that currently do not require an EA at all in B.C., such as mining exploration and aquaculture. (See table on page 18 of this document.)

More than 10 years later, the interpretation of these changes continues to be controversial. In September 2012, environmental law NGO Ecojustice announced it was seeking a judicial review of the province's failure to conduct a formal environmental assessment in the case of Holmes Hydro Inc., a company planning to build at least 10 small hydro plants on tributaries of the Holmes River near McBride. At issue is the alleged practice of "project splitting" -- where larger projects are broken into smaller pieces to avoid environmental assessment.

Ecojustice maintains the capacity of the project is the sum of all the smaller parts (about 85 megawatts), which is well over the 50 megawatt threshold that triggers a B.C. EA process for hydro projects. On the other side is the B.C. EAO, which told the company no assessment was required as each plant in isolation is below the threshold.

Letting such thresholds determine what gets reviewed ignores the reality that smaller projects can have huge impacts depending on where they are sited, says Rachel Forbes, a lawyer with West Coast Environmental Law. "Basing the system on arbitrary thresholds is where you get the abuses of the EA system," she says. Forbes points to the glut of proposed run-of-river projects that have been designed to exactly 49 megawatts, expressly to avoid the 50 megawatt threshold necessitating an EA process.

The best solution, she says, is to combine B.C.'s threshold approach with one that relies on certain "triggers" (for example, if a project will destroy salmon habitat it requires an EA). Forbes says it could work like this: start with a basic list of projects and activities that qualify for an EA based on the existing thresholds, and then adopt and apply additional legal triggers to ensure activities below the threshold, but with real potential to cause serious impacts, do not fall through the cracks.

Until recently, the federal Canadian Environmental Assessment Act -- the federal counterpart to the B.C. EA legislation which has been widely criticized by business groups as a duplication of effort -- relied on such a "triggering" approach. But the Conservative government repealed the act as part of its omnibus Budget Bill C-38, and has replaced it with a new act that adopts BC's threshold approach.

Amendment abuse and 'capacity creep'

In theory at least, an EA certificate lays out what's necessary to avoid and mitigate ecological impacts from a proposed project. These become legally binding commitments for the project's developer. But currently it is legal for a company to make an unlimited number of changes or "amendments" to the certificate and its commitments.

An extreme example illustrates how this practice opens a high-capacity loophole, enabling companies to avoid the full glare of EA scrutiny.

Northwest B.C.'s Forrest Kerr is one of the biggest run-of-river hydro projects ever attempted in B.C., but it was not always that way. It was originally much smaller, conceived as a source of power for a proposed open pit gold-copper mine called Galore Creek. At the time, the local Tahltan Nation decided Galore was a project they could live with, as did most local conservation groups. The project passed through EA in 2003, and all systems were go until the Galore plan was abandoned amid escalating costs. In the summer of 2008, Alta Gas Income Fund, scooped up the hydro project for $40 million.

In the hands of Alta Gas, Forrest Kerr was reborn. Less than two years after taking it over, the company approached the B.C. Environmental Assessment Office and requested an amendment to their EA certificate that would see a near doubling of its capacity -- increasing the volume of water diverted from the salmon-bearing Iskut River by more than 60 per cent -- all without a new environmental assessment.

To date this single project has had five amendments to its EA certificate, including a five-year extension to its actual certificate when it was about to expire back in 2008. The water licence has also been amended, to allow the project to draw significantly more flow from the Iskut River.

Cumulative impacts and land use

In November 2010, Mark Haddock, an environmental lawyer with the University of Victoria's Environmental Law Centre, brought together fellow industry, government, First Nations and assessment pros to brainstorm a question: how can the B.C. EA process be improved? The final report, which consolidated his UVic research with the focus group results, found that dealing with "cumulative impacts" was one of the priorities.

The issue of "cumulative effects" -- changes to an area caused by the combination of past, present and future actions -- came to the fore in B.C. when the government opened hydro generation to the private sector after 2002. A mad rush ensued as investors raced to acquire water licences and propose run-of-river projects across the province, including competing clusters of projects within single watersheds. At the time, government provided no guidance to companies about which locations had high fisheries, cultural, and/or recreational values. The result was a public backlash that continues to this day, and continues to jeopardize what companies call their "social licence" -- basically the willingness of the rest of us to go along with their activity.

The province does not currently require cumulative impacts to be considered as part of its EA process. This even though such assessments are standard practice in much of the world today. In the U.S., despite other warts, consideration of accumulating impacts has been hard-wired into environmental assessment since the 1970s.

NO ASSESSMENT REQUIRED

Major development activities currently exempt from the EA process in British Columbia include:

? Logging, road building and associated forestry practices
? Seismic lines, roads and exploratory drilling by the oil and gas industry
? Mineral exploration
? Agricultural industries, such as intensive livestock operations and intensively managed crops
? Aquaculture -- fish farms and shellfish aquaculture
? Land conversion not associated with reviewable projects

(Source: Environmental Assessment in British Columbia, page 17)

In March of 2011, the B.C. Forest Practices Board published a special report that concluded that BC's current methods for cumulative effects assessment, "are largely ineffective in contributing to the management of those effects."

Haddock says the solution for dealing with cumulative effects is already here. Assessment pros call it "strategic environmental assessment," and in practice, it means that the government initiates all the up-front work to determine where development can occur, what impacts are acceptable, and how potential impacts can be avoided and mitigated.

Such approaches include planning for land use across entire regions, something initiated in B.C. during the early 1990s as a means of reducing conflict between user groups on the land base. Separate land use plans were created for many regions of the province (see map, here), bringing together the public, governments, First Nations, and industry into a single room where the "where and how" of development could be hammered out. The goal, though not always attained, was to create a level of consensus about how resource development would proceed.

The sun set on land use planning under the BC Liberals, who shifted away from this consensus-based process. "While recent studies show the benefits of strategic planning," reads an ambivalent policy direction document published by the province in 2006, "there are also high costs and limited resources available."

This policy shift occurred even though resource companies stand to benefit from improved certainty for their own planning purposes when there is wide consensus about where and how development should occur. Angela Waterman, VP of environment and technical affairs at the Mining Association of B.C., which represents the province's biggest mining companies, says land-use planning is something she supports as plain common sense.

"If we don't have a clear idea of an overall plan, it's very difficult to fine tune any of the things on the ground," she says. "It's a government responsibility to do these regional assessments where warranted, and from that, once project applications go through the process, it makes things far easier."

First Nations concerns

The most urgent calls for reform to B.C.'s current approach to environmental assessment comes from First Nations -- arguably the faction of Canadian society most directly affected by the outcome of the process.

Across B.C. today are recurring situations where First Nations look on without recourse as projects in their territory proceed through regulatory assessments, EA processes are completed, permits awarded, and construction of infrastructure proceeds, all without resolving fundamental First Nations concerns.

An example is Imperial Metals' proposed Red Chris open pit copper/gold project, one of the most advanced mines in the province, located 80 km south of Dease Lake in northwest BC. On the same day that the Red Chris mine was granted a provincial Mines Act permit in May 2012, Annita McPhee, president of the Tahltan Central Council, issued an angry press release denouncing the permit as premature.

"If you're announcing permits without adequately addressing our concerns, it doesn't set a very good precedent in our territory," McPhee said, after noting Tahltan concerns about unaddressed impacts to the "Sacred Headwaters" of the Nass, Skeena and Stikine rivers. "This puts us in a place where we don't trust the government."

STEPS TO A BETTER ASSESSMENT

? Create a new Sustainability Authority -- elected by and reporting to the legislature (not a cabinet minister as currently) -- to design the assessment process, standards and guidelines
? This authority hires an executive director, which in turn hires staff to develop the procedures and guidelines of the assessment regime to be approved by the authority
? Government and First Nations jointly determine "consultation guidelines," which establish principles, objectives and standards, and general procedures for consultation processes needed at the specific project and community level
? The authority designs and implements programs for monitoring, inspection and enforcement.
? The BC Environmental Assessment Act is repealed, and new legislation enacted to implement the institutional arrangements above.

(Adapted from Environmental Assessment and First Nations in BC: Proposals For Reform)

Three months later, in August 2012, the company began dozing a 17-km industrial haul road from the Stewart Cassiar Highway to the project site through the Iskut band's traditional moose hunting territory, creating the local impression that the project was a done deal.

Reinventing the EA process

The process is so dysfunctional in the way it deals with First Nations, the existing legislation should be scrapped altogether, writes Tony Pearse in the report he authored for the First Nations Energy and Mining Council. That hard-hitting document does much more than criticize the B.C. system. It seeks to replace it.

The new vision (see "STEPS TO A BETTER ASSESSMENT" sidebar, right) would see the B.C. Environmental Assessment Act repealed and a new "Sustainability Authority" created -- elected by and reporting directly to the legislature, not bureaucrats answerable to cabinet ministers. This body would design everything from the assessment process to monitoring and enforcement programs. Government and First Nations would jointly develop guidelines to oversee how consultation works at the project and community level.

On November 2009, the First Nations Summit Chiefs in Assembly adopted Pearse's discussion paper as the "basis for engagement with British Columbia."

Paul Blom, policy advisor for the council, says both the provincial and federal governments rebuffed their attempts to arrange meetings to discuss this new vision for assessing environmental impacts. "They said they would get back to us, but never did."

Christopher Pollon is a widely published freelance journalist and Tyee contributing editor. His website is here. Follow him on Twitter: @C-Pollon.

This article was produced by Tyee Solutions Society in collaboration with Tides Canada Initiatives (TCI). TCI neither influences nor endorses the particular content of TSS' reporting. Other publications wishing to publish this story or other Tyee Solutions Society-produced articles, please see this website for contacts and information.

Source: http://thetyee.ca/News/2012/11/08/Reinvent-Environmental-Assessment-in-BC/

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