Moving towards Consent: British Columbia’s Proposed New Environmental Assessment Act

By Kate Gunn and Bruce McIvor

The BC provincial government recently introduced new environmental assessment legislation for proposed resource projects. The legislation sets out a revised approach to environmental assessments which places Indigenous Peoples’ participation and consent at the forefront of the approvals process.

What it is

In BC proposed major resource development projects are required to undergo an environmental assessment pursuant to the Environmental Assessment Act prior to proceeding. Under the current Act, the BC Environmental Assessment Office reviews the potential effects of the project and provides its assessment to provincial Ministers to inform their decision as to whether and on what conditions a project should proceed.

If passed into law, Bill 51 – 2018: Environmental Assessment Act will replace the current Act and reform the BC environmental assessment process. Unlike the existing Act, the new legislation sets out a process for environmental assessments requiring government to seek to achieve the consent of Indigenous Peoples prior to authorizing development projects which would affect their rights and ancestral lands.

The legislation will also require the Environmental Assessment Office to support reconciliation with Indigenous Peoples, including by supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples; recognizing the inherent jurisdiction of Indigenous nations; collaborating with Indigenous nations in relation to reviewable projects; and acknowledging Indigenous Peoples’ rights under section 35 of the Constitution Act, 1982 in the review and decision-making process.

Although the new legislation emphasizes the importance of seeking Indigenous Peoples’ consent, the Minister retains the right to issue authorizations even when consent is not given unless the Indigenous nation in question is a signatory to a modern treaty or has entered into a government-to-government agreement as set out in the regulations.

Why it matters

By placing Indigenous Peoples’ participation and consent in environmental decision-making front and centre, Bill 51 represents an important step towards bringing environmental assessments in BC in line with the direction of the Supreme Court of Canada and the UN Declaration.

Importantly, the new legislation largely affirms the Crown’s existing obligations, rather than imposing new ones. The Supreme Court has already encouraged government and industry to seek Indigenous Peoples’ consent prior to developing their lands and resources in order to avoid the prospect of authorizations being quashed and projects cancelled.

That courts are prepared to enforce the Crown’s obligations in the context of environmental assessments was made clear by the Federal Court of Appeal’s recent decision in Tsleil-Waututh quashing the federal government’s approval of the Trans Mountain project. The courts have also been clear the Crown’s duty to consult with Indigenous Peoples about projects which affect their rights or lands is ‘upstream’ of legislation – that is, the Crown must fulfil its constitutional obligations to Indigenous Peoples regardless of whether the requirement is set out in a statute.

The Bill marks an effort to address significant shortcomings in the environmental assessment process which arose as a result of legislative amendments introduced by the previous liberal government in 2002. Those amendments removed references in the legislation to Indigenous Peoples’ distinct constitutional status and reduced the scope of Indigenous involvement in the environmental assessment process. As a result, Indigenous Peoples have faced substantial barriers in participating in environmental assessments since 2002, even while the provincial government has consistently sought to rely on those assessments to fulfil all or part of its duty to consult.

Looking ahead

Bill 51 addresses many of the challenges created as a consequence of the 2002 amendments. It also sends a message that there is a clear expectation in BC that government and industry seek the consent of Indigenous Peoples before resource projects can proceed. These are important changes that will hopefully set the stage for a new era of consent-based decision making as part of the environmental assessment process.

The new legislation also demonstrates that there is much work to be done if the provincial government intends to make good on its commitment to fully implement the UN Declaration. Despite the repeated references to the importance of consent, under the new legislation the province retains final decision-making authority on the question of whether a project will proceed. As Indigenous organizations have already pointed out, this falls short of the standard of free prior and informed consent called for in the UN Declaration.

Ultimately, the extent to which the new environmental assessment legislation will lead to increased recognition and respect for the rights of Indigenous Peoples will depend on its implementation. The legislation suggests a commitment on the part of the government to renew its relationship with Indigenous Peoples and implement the UN Declaration. At the same time, the province has been careful to preserve its own decision-making authority in relation to the review of major projects. Going forward, Indigenous Peoples, industry and the public will be watching carefully to see how this government implements the new legislation and the extent to which it is prepared to carry out the important work necessary to secure Indigenous consent.

Kate Gunn is a lawyer at First Peoples Law Corporation. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.

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Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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