Evaluation of Effects

Overview of BC Law

One of the basic underlying purposes of the EA process is to assess possible effects of a proposed activity before it proceeds.³⁰⁶ Under BC law, the EAO Executive Director is granted broad discretion to order what potential effects should be considered in the EA.³⁰⁷

The “effects” assessment carried out under an EA has two main steps: (1) the prediction of adverse effects, and (2) the evaluation of the significance of these effects (taking into account mitigation measures). BC law does not prescribe the methodology for either of these steps or how these effects should be categorized, measured, or assessed.³⁰⁸ Instead, guidance is provided under provincial policy. This policy requires proponents to identify “Valued Components” (VCs) for each effect. Under BC law, “effects” include environmental, economic, social, heritage and health effects.³⁰⁹

Provincial policy recommends that potential effects be assessed for their associated ‘Valued Components’. For example:

• Valued Social Components are described as “activities or sites of social and cultural importance including, but not limited to, land and resource use, First Nation community interests, and other features or indicators of community wellbeing and quality of life”.³¹⁰
• Valued Heritage Components include personal property and land, including land covered by water, which has heritage value to BC, communities or First Nations.³¹¹
• Valued Health Components include worker health and safety, recreational or aesthetic features, levels of physical activities in the region, and other indicators of community health and healthy living. Key factors that are considered with respect to the proposed project are environmental health, health education, sports and physical activity.³¹²
• Valued Economic Components “could include contract and business opportunities, employment opportunities, labour income generated, local unemployment rate and trend, and employment and economic diversification”.³¹³

Valued components (VCs) are components considered important by the proponent, the public, First Nations, scientists and government agencies involved in the EA process.³¹⁴ For each VC, the proponent must determine whether the proposed project would have significant adverse effects, taking into account the proposed mitigation measures. The proponent must describe the assessment methodology used in making this determination.³¹⁵ This description should include a discussion of relevant background information, potential direct impacts, potential cumulative impacts for VCs, proposed mitigation measures, potential for residual effects and the significance of any such residual effects.³¹⁶

Provincial policy also lists the types of project benefits that should be included in the EA, including:

• employment estimates (direct and indirect employment, wage levels, source of labour (domestic v. international), employment policies and practices, potential to use local human resources currently underutilized);³¹⁷
• local purchasing strategy, if any;³¹⁸ and
• proposed project contributions to healthy living and community development.³¹⁹

Provincial policy further states that the assessment of the significance of any residual adverse effects, after mitigation, should be done by analyzing the following factors (impact characteristics):³²⁰

• magnitude or severity of the effect;
• geographic extent of change (i.e., local or regional);
• duration and frequency of effects;
• reversibility of effect;
• context and the environment’s ability to accept change (e.g., ecologically sensitive areas have little resilience to imposed stresses); and
• probability of adverse effect occurring.

The following sections review laws from other jurisdictions and highlight the weaknesses of BC’s current EA law with respect to evaluating a proposed project’s effects. In particular, the following approaches are considered:

• general evaluation of effects;
• cultural, social and economic effects;
• cumulative impacts;
• mitigation of adverse effects ; and
• analysis of alternatives.

General evaluation of effects

Assess direct and indirect effects in EA

[Tags: EA; Indirect Effects]

BC law only requires proponents to consider direct effects of a proposed project – there are no explicit legal requirements to consider indirect effects.³²¹ This narrow scope fails to adequately evaluate the full impacts of a project. For example, the effects of a project on neighbouring First Nation community or First Nations with overlapping traditional territories may not adequately be considered.³²²

Other jurisdictions require that direct and indirect effects both be assessed in EAs. For example, under European Union law, the EA assessment must identify, describe and assess the direct and indirect effects of a project on various factors, including:

• human beings, fauna and flora;
• soil, water, air, climate and the landscape;
• the interaction between the aforementioned factors; and
• material assets and cultural heritage.³²³

United Kingdom law also requires that the effects of the proposed development on the environment be considered in EA. This includes the direct and any indirect effects of the development resulting from: the existence of the development; the use of natural resources; the emission of pollutants; the creation of nuisances; or the disposal of waste.³²⁴ Under US federal law, both direct and indirect effects, and their significance, must also be considered in EAs.³²⁵

Require assessment of whether short-term use outweighs long-term effects

[Tags: EA; Impacts]

Under BC law, there are no explicit requirements to consider the long-term impacts of a proposed project. In contrast, under US federal law, the regulatory authority must include a detailed statement for every major federal action that significantly affects the quality of the human environment on “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity”.³²⁶

Consider impact of catastrophic events even if probability of occurrence is low

[Tags: EA; Effects]

Under BC law, there are no explicit requirements to consider the potential impact of catastrophic events on the prediction of adverse effects. For example, despite BC’s location on a fault line, there is no requirement to consider the potential impact of a high magnitude earthquake in EAs. Conversely, under Oregon law, EAs of chemical process mines must include an analysis of catastrophic consequences even if the probability of occurrence is low. This analysis cannot be based on conjecture, but must be supported by credible scientific evidence.³²⁷ Under Alberta law, EAs must include contingency plans developed to respond to unpredicted negative impacts.³²⁸ These types of legal provisions are particularly important in the mining sector which often relies on the use of large dams for managing tailings; structures, containing toxic wastes, that are vulnerable to earthquakes.

Cultural, Social & Economic Effects

Assess cultural effects of project in the EA

[Tags: EA; Cultural Awareness; Cultural Protection]

Under BC’s former EA Act “cultural” effects of a proposed project had to be considered in addition to the assessment of the environmental, economic, social, heritage and health effects currently required.³²⁹ Even though “cultural effects” are now recognized in policy as a Valued Social Component,³³⁰ the removal of cultural effects from BC’s EA law has been criticized by some First Nations.³³¹

In contrast, European Union law continues to recognize the need to assess cultural effects. EU law requires that the direct and indirect effects of a project on “the cultural heritage” be identified, described and assessed in an appropriate manner.³³² Similarly, under the Mackenzie Valley Resource Management Act, “impact on the environment” is broadly defined to include “any effect on the social and cultural environment”.³³³ Under Alberta law, the EA must include a “description of potential positive and negative […] social, economic and cultural impacts of the proposed activity”.³³⁴ South African law also requires an analysis of the cultural aspects of the environment that may be affected by a proposed mine.³³⁵

Assess effects of project on First Nations’ traditional land use

[Tags: EA; Cultural Protection]

BC law does not explicitly take into account First Nations’ traditional practices in the EA process. In contrast, under the Mackenzie Valley Resource Management Act “impact on the environment” is broadly defined to include any effect on wildlife harvesting.³³⁶ Similarly, under the federal CEAA 2012, the definition of “environmental effects” includes any effect on the current use of lands and resources for traditional purposes by First Nations.³³⁷ It has been recommended that the future needs of First Nations should also be considered as part of EAs, rather than limiting the focus to subsistence activities.³³⁸

Assess effects of project on species-at-risk, biodiversity, and species important to First Nations

[Tags: EA; Environmental Protection; Habitat; Species-at-Risk; Cultural Awareness]

BC law does not require an assessment of a project’s effects on species-at-risk or biodiversity. Species-at-risk are referred to in provincial policy descriptions of Valued Components; however, as policy rather than law, there is no guarantee that these will be consistently considered in the effects analysis of EAs in the province. Similarly, there are no legal requirements to assess the effects of a proposed project on species important to First Nations.³³⁹

In contrast, ensuring the preservation of species is recognized under Pakistani law, where the definition of “adverse environmental effect” includes impairment or damage to biodiversity.³⁴⁰ Until recently, this provision was also explicitly included in Canada’s CEAA, which defined “environmental effects” as including any change that the project may cause on a listed wildlife species, their critical habitat, or the residences of individuals of that species.³⁴¹ CEAA 2012, however, drastically narrowed the definition of environmental effects. Now, only effects on fish habitat or aquatic species-at-risk will be assessed.³⁴² CEAA 2012 appears, therefore, to exclude any assessment of land-based species-at-risk, such as Woodland Caribou, which are of significant importance to many of Canada’s Aboriginal peoples, including First Nations.

Cumulative Effects

Overview of BC Law

Cumulative effects are the combined, incremental effects of human activity. Under BC law, however, the assessment of cumulative effects is not a requirement of provincial EAs. Instead, the EAO Executive Director has the discretion to decide whether to require the assessment of cumulative effects.³⁴³ The EAO Executive Director also has the discretion to determine how cumulative effects are to be assessed, since the law provides no guidance on what effects should be assessed or the scope of such assessments.

Some guidance is provided under provincial policy, which states that the EAO will consider cumulative impacts when evaluating projects and the impacts for Valued Components, where relevant.³⁴⁴ According to this policy, the relevance of the cumulative impacts is based on the extent to which past or proposed actions may combine with the project to make adverse impacts ‘significant’.³⁴⁵ The policy provides no further guidance or methodology for determining whether the impacts are significant. In practice, with one exception, the only projects for which the EAO has considered cumulative impacts are those projects that also underwent federal EAs.³⁴⁶ Therefore, unless a project is subject to a federal EA, there is little chance that cumulative effects will be assessed in the EA. Without an assessment of cumulative effect, an informed decision on the full impacts of a proposed project cannot be made.

Issues

Without an assessment of cumulative effects, the impacts of a project may be viewed in isolation from other activities and without consideration of whether project impacts can be adequately mitigated in the local region. In addition, the failure to evaluate and assess cumulative impacts from past, current and future projects puts First Nations at risk, particularly where they face several simultaneous large-scale resource development proposals on their traditional territories.³⁴⁷ The lack of legal guidance on the scope of a cumulative effects assessment has also resulted in proponents using inappropriately large study areas to assess cumulative impacts, which do not reflect the true incremental impact of a particular project.³⁴⁸

Recommended Solutions

Assess cumulative effects as part of all EAs

[Tags: EA; Cumulative Impacts]

Unlike BC, the assessment of cumulative impacts is mandatory in several jurisdictions. For example:

• Under CEAA 2012, the EA must include a consideration of “any cumulative environmental impacts that are likely to result from the project in combination with other projects or activities that have been or will be carried out”.³⁴⁹
• In the Yukon, information on the “significance of any adverse cumulative environmental or socio-economic effects of project with other projects or existing activities” must be included in the EA.³⁵⁰
• Under the Mackenzie Valley Resource Management Act, every EA review must include a consideration of “any cumulative impact that is likely to result from the development in combination with other developments”.³⁵¹
• In Alberta, the EA must include “a description of potential positive and negative environmental, social, economic and cultural impacts of the proposed activity, including cumulative, regional, temporal and spatial considerations”.³⁵²
• In Ontario, cumulative impacts are incorporated into the Ministry of Environment’s Statement of Environmental Values (under the Environmental Bill of Rights) and must be considered in all decision-making, including EAs.³⁵³
• In Quebec, the impacts on the environment that must be evaluated in an EA for a mine include “indirect, cumulative, latent and irreversible effects”.³⁵⁴
• In the US, cumulative impacts must be considered as part of the scope of a project. To assist federal agencies analyze cumulative effects, the government has produced a handbook that outlines general principles, cumulative effects assessment methodologies, and resources for additional information and background data.³⁵⁵ This evaluation also requires analysis of cumulative impact effects of past actions.³⁵⁶
• In Oregon, broad assessments of cumulative impacts are required in EAs for chemical process mines. This assessment must evaluate “the total cumulative impact on the environment that results from the incremental impact of an action when added with other past, present and reasonably foreseeable future actions, regardless of the agency or persons that undertake the other action, or whether the actions are on private, state or federal land”.³⁵⁷
• Under South Africa law, cumulative impact assessments are also a mandatory requirement.³⁵⁸

Assess cumulative effects of different types of activities in project area

[Tags: EA; Cumulative Impacts]

Under BC law, there are no mandatory requirements to consider cumulative effects of multiple activities in a given area. Conversely, consideration of other types of activities in assessing cumulative impacts is required under South African law, which defines “cumulative impact” as “the impact of an activity that in itself may not be significant, but may become significant when added to the existing and potential impacts eventuating from similar or diverse activities or undertakings in the area”.³⁵⁹

Assess cumulative socio-economic effects

[Tags: EA; Cumulative Impacts]

Although BC law requires consideration of social and economic effects in EAs, there is no requirement to assess the cumulative socio-economic effects of proposed projects. Given the problems with BC’s mineral tenure system (see: Chapter 4: Mineral Tenure and Land Use Planning), there is virtually no control over the concentration of mining activities in a particular region. As such, many BC First Nations face multiple, simultaneous projects across their traditional territories. For First Nations who do not have enough trained personnel to occupy multiple jobs, such simultaneous development results in proponents having to bring in labour from outside the local communities, which can have major socio-economic implications.³⁶⁰

Other jurisdictions clearly recognize the need to address cumulative socio-economic effects. In the Yukon for example, the regulatory authority may undertake studies of “socio-economic effects that are cumulative geographically or over time”.³⁶¹ In the US, cumulative impacts are defined as “the total effects on a resource, ecosystem, or human community of that action”.³⁶² One possible approach to assessing these effects is through the collection of evidence of impacts caused by previous development projects.³⁶³

Determine significance of effects based on cumulative impacts

[Tags: EA; Cumulative Impacts; Significance Determination]

Under BC law, there are no explicit requirements to consider cumulative impacts when assessing the significance of adverse effects. In contrast, under US federal law, it is explicitly recognized that although actions may be individually insignificant “significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment”.³⁶⁴ Similarly, under South African law, the assessment of the significance of cumulative impacts must also be included in the EA.³⁶⁵

Mitigation of Adverse Effects

There is an absence of provincial legislation or policy concerning options for mitigation, including offsetting of environmental impacts resulting from major projects. This often leads to disagreement between proponents and ministry staff during the development of environmental mitigation measures […]This situation generates disparate practices among provincial decision-makers, as well as uncertainty and frustration for the EAO, natural resource ministries and proponents.

– BC Auditor General (2011)³⁶⁶

 

Under BC law, the regulatory authority must consider whether the proposed project has significant adverse effects “taking into account practical means of preventing or reducing to an acceptable level any potential adverse effects of the project”.³⁶⁷

Issue

BC’s current laws lack sufficient guidance on environmental mitigation requirements.³⁶⁸ This leads to inconsistency in the ways that environmental impacts are addressed, which may result in arbitrary decisions about the acceptability of adverse effects. For example, the creation of employment opportunities may be used to mitigate other project-related social and economic impacts on First Nations.³⁶⁹ To address these issues, the government is currently developing an Environmental Mitigation Policy.³⁷⁰

Recommended Solutions

Define what constitutes adequate “mitigation”

[Tags: EA; Mitigation]

The United Nations Environment Programme has organized the elements of mitigation into a hierarchy of actions: ³⁷¹

1. Use preventative measures to avoid adverse impacts (as far as possible);
2. Minimize or reduce adverse impacts to “as low as practicable” levels; and
3. Remedy or compensate for adverse residual impacts that are unavoidable and cannot be reduced further.

BC law has been criticized for lack of clarity on what constitutes acceptable “mitigation” of adverse effects.³⁷²Mitigation measures attached to EA Certificates are also often expressed in overly general terms that make enforcement challenging.³⁷³ CEAA 2012 provides a clearer definition of what constitutes mitigation for the purposes of a federal EA: under that Act, mitigation measures are “measures for the elimination, reduction or control of the adverse environmental effects of a designated project, and includes restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means”.³⁷⁴

Involve First Nations and local communities in developing appropriate mitigation measures

[Tags: EA; Mitigation; Traditional Knowledge; Duty to Consult; Indigenous Rights; Public Consultation]

BC’s Ministry of Environment is currently consulting with First Nations in the development of its Environmental Mitigation Policy.³⁷⁵ Such consultation is also needed for determining appropriate mitigation measures for specific projects. Under Wyoming law, proponents must meet with local governments affected by a proposed facility to “determine the mitigation required to minimize any adverse impacts resulting from the proposed facility”.³⁷⁶ This encourages the development of effective and locally supported avoidance, management, and mitigation measures for potential impacts.³⁷⁷ Under Mexico’s Constitution, respect must be given to the wishes of Aboriginal peoples in “determining approaches for achieving the greatest benefit from the productive resources on their lands”.³⁷⁸