ONTARIO AND BC ENVIRONMENTAL ASSESSMENT LAW MARCH 21, 2013

Overview: Environmental Assessment Act (Ontario) Application of EAA Preparation of Terms of Reference and Environmental Assessment EA Hearing Process Class Environmental Assessments Ontario Hydro DSM EA) Public participation (Intervenor Act)

Application of Environmental Assessment Act (Ontario) Enacted in 1975, substantially amended in 1996 Aka “Environmental Exemptions Act” Purpose: “the betterment” of the people of Ontario by providing for the “protection, conservation and wise management” of the environment s. 2

Application of Environmental Assessment Act (Ontario) Requires proponents to Consider range of reasonable alternatives Assess environmental effects of alternatives Demonstrate that preferred alternative is environmentally superior and necessary Minister of Environment has overall authority (EA and Approvals Branch) Broad definition of “environment” (biophysical, socio-economic, cultural and their interrelationships) s.1.(1)

Application of Environmental Assessment Act (Ontario) Distinguishes between public and private sector proponents Applies to public sector undertakings unless exempt by order/regulation s.3.(c) Doesn’t apply to private sector undertakings unless designated by regulation, voluntarily included s Minister authorized to dispense with statutory requirements to harmonize with other jurisdiction s. 3.(1)

General Regulatory Exemptions Renewable energy projects Municipal undertakings less than $3.5 million Drainage works Some waste disposal sites (pilot projects, mobile PCB destruction facilities) Subdivision agreements Undertakings by conservation authorities Financial assistance programs Research undertakings

Other Regulatory Exemptions Project-specific Exemptions Other municipal and provincial undertakings Long-term Electricity Supply Plan Sectoral Exemptions Electricity Projects Regulation Waste Management Projects Regulation Transportation Authority Undertakings Regulation

Class Environmental Assessments 11 categories of Class EAs (municipal roads, forest management activities, commuter rail stations) Represent 90% of undertakings subject to EAA Provides for pre-approval of undertaking, self-regulation Authority to “bump up” Class EA undertaking to individual EA rarely exercised

Process for Individual Environmental Assessments Intended for “large-scale, complex undertakings with the potential for significant environmental effects and major public interest” (Ministry of Environment website)

Process for Individual Environmental Assessments Proponent submits terms of reference for public consultation, Ministerial approval Proponent submits environmental assessment Ministry coordinates public, Aboriginal, community, government comments Ministry prepares Ministry review Public inspection of Ministry Review Minister’s decision (or referral for hearings) Proponent implements projects and monitors for compliance

Public Hearings EAA empowers Minister to refer an application to Environmental Review Tribunal for public hearing/decision Public hearings held for high-profile undertakings: landfills, incinerators, highways, timber management, provincial energy demand-supply plan Only 2 hearings since 1996

Ontario Energy Demand-Supply Hearings Ontario Hydro 25-year Demand /Supply Plan (DSP) Report released in 1989 DSP projected a supply/demand gap opening up in mid-1990s, reaching 9,700 MW by 2005 DSP proposed several additional nuclear, coal-fired generation plants

Ontario Energy Demand-Supply Hearings DSP referred to EAA hearings by Environmental Assessment Board Persuasive evidence at hearings that energy demand growth overestimated (total demand in 2009 same as 1989) DSP revised in 1992 then abandoned Hearings last several years—longest in Ontario history

Ontario Energy Demand-Supply Hearings No additional generating facilities built saving Ontario taxpayers billions Yet DSP hearings considered a failure due to their length and cost

Ottawa River Bridge and Highway Corridor Project National Capital Commission proposing new bridge across Ottawa River, 6-lane highway corridor linking Highway 417 in Ottawa and Autoroute 50 in Gatineau Estimated cost (2008) of $ m Corridor options: –Kettle Island (8.5 km) –Lower Duck Island (12 km) –Gatineau Airport/McLaurin Bay (12 km)

Ottawa River Bridge and Highway Corridor Project

Stated purpose to divert some heavy truck traffic from King Edward corridor No transportation study has been completed to assess level of diversion Second purpose to provide more access to Ottawa for Gatineau auto commuters

Ottawa River Bridge and Highway Corridor Project NCC commenced screening under CEAA, which was terminated when CEAA came into force in July 2012 CEAA 2012 doesn’t apply to Ottawa River bridge NCC plans to continue with ad hoc EA Quebec EA regime applies with Bureau d’audiences publiques sur l’environnement (BAPE) hearings

Ottawa River Bridge and Highway Corridor Project Environmental threats worse for Kettle Island due to higher population density in quiet, well-established neighbourhood –Truck noise and pollution (within 15 m of school, 20 m of hospital, homes) –Increase in automobile traffic in Ottawa from Gatineau (Kettle Island corridor not suited to transit) –Increased burning of fossil fuels, increased greenhouse gas and other air emissions –Urban sprawl in Gatineau

Ottawa River Bridge and Highway Corridor Project Ontario stated that EAA doesn’t apply although declaration for non-application procedure not been employed Agreed that all three options for a bridge and highway corridor are undertakings as defined by EAA, and no regulatory exemption applies EAA would not apply as Ontario is not a "proponent" but only "partner“ “Undertaking” not “proponent” triggers EAA

Ottawa River Bridge and Highway Corridor Project Possible application for judicial review against Ontario? S. 3.(a) contemplates including entities that do work (such as provincial road construction) on behalf of Her Majesty in right of Ontario Judicial confirmation needed that Ontario must apply EAA to undertakings proposed by public sector proponents unless exempted

Why the rush to evade Ontario Environmental Assessment? Costs of EA? Does carrying out analysis of alternatives make EA work in Ontario more onerous than CEAA 2012 EAs or those of other provinces? Other statutory schemes such as Planning Act duplicate EAs?

Overview – British Columbia Environmental Assessment Act - Elements Environmental Assessment Act – Issues BC Auditor General Report Northwest Institute Report comparing Federal/Provincial EAs for Prosperity Mine

Environmental Assessment Act Environmental Assessment Act (EAA) passed in 1994, amended in 2002 Environmental Assessment Office (EAO) established under EAA to provide “open, accountable and neutrally administered process” to assess “reviewable projects” Reviewable Projects Regulation identified projects to be reviewed (energy, mining, industry)

Purposes “promote sustainability by protecting the environment and fostering a sound economy and social well-being” “prevent or mitigate adverse effects of reviewable projects” Repealed in 2002 amendments

Key Elements Projects reviewable by virtue of regulation, EAO executive director discretion, ministerial order Reviewable projects not be constructed without provincial EA certificate EAO reviewable project determination EAO makes order on scope, procedures, methods for project EA Proponent proposes terms of reference for EAO approval

Key Elements Proponent assembles required information and public input, applies for EA certificate EAO reviews application and assessment report for two or more ministers with jurisdiction Ministers decide to issue certificate, specify conditions, or refer for further assessment

Key Elements (1994) Mandatory project committees to advise ministers (provincial, federal, municipal, regional, First Nations representatives) Public advisory committee to make recommendations to project committee Mandatory public notice provisions at each of four EA process stages Environmental Assessment Board to conduct hearings on projects referred by Ministers

Key Amendments (2002) Provided decision-making flexibillity for EAO and Ministers (“less regimented” “more timely and cost-efficient”) Mandatory project committees replaced by working groups with reduced role Public advisory committees eliminated Public consultation mainly by proponent Mandatory public notice provisions replaced by policy guidance

Reviewable Project Regulations Coal Mine – 100,000 t/yr (1994), 250,000 t/yr (2002) Mineral Mine - 25,000 t/yr (1994), 75,000 to/yr (2002) Energy Project - 20 MW (1994), 50 MW (2002) Urban Transit Rail - 8 km (1994), 20 km (2002)

Implications of Thresholds for Reviewable Project Regulations Vancouver Airport Light Rail Project would not have been reviewed (less than 20km) BC Energy Plan opened up hydro development to private sector –January 2009 – 145 water power licences plus 621 applications (many at 49MW); only 25 subject to BC EA process

Key Issues Project Thresholds Links to land use planning, strategic EA Adequacy of public participation Suitability of EA to meet Crown consultation responsibilities Rigour of Process

Prosperity Gold/Copper Mine

Prosperity Mine

Proponent Taseko re-activated BC EA process in 2002, federal process in 2006 RAs: DFO, Transport Canada, NRCan DFO referred project to Environment Minister for panel review in February 2007 BC decided to proceed with provincial review in June 2008 not joint panel review Environment Minister referred to federal review panel in January 2009

Prosperity Mine EA processes conducted separately with province approving project before federal panel review completed BC approved mine; feds rejected mine on recommendation of federal panel Why different findings and conclusions?

Comparison of BC and Federal EA Processes Analysis by Northwest Institute July 2011 BC EAO “only one significant adverse effect” “limited to a discrete location” loss of fish and fish habitat at Fish Lake/Little Fish Lake BC ministers advised adverse effects justified by “very significant employment and economic benefits” and proponent’s fish habitat compensation program

Comparison of BC and Federal EA Processes Federal panel found eight additional significant eight adverse effects: grizzly bears, navigation,local tourism, grazing, First Nation’s trapline, First Nations’ traditional land use and cultural heritage, Aboriginal rights, future generations. Proponent’s fish habitat compensation program not viable, mitigation not sufficient

Comparison of BC and Federal EA Processes Why divergent outcomes? Process: BC “review and comment” process vs. federal panel hearings Information: Federal panel had more complete information (DFO, First Nations) Expertise: Federal panel members highly qualified (chair with 27 years experience); EAO four staff on working group

Comparison of BC and Federal EA Processes Participant Funding – feds yes; BC no Significance Determination - EAO used large geographic area as baseline; feds, CEA Agency guidelines Mitigation: BC lacked clear mitigation and compensation policies, deferred to future planning efforts; feds “no net loss” fish habitat policy

Comparison of BC and Federal EA Processes Standards and Criteria: BC lacks standards/criteria to guide decision- making comparable to Fisheries Act/SARA Legislation: BC Environmental Assessment largely procedural, lacked many substantive aspects of CEAA Independence: Federal Panel independent unlike EAO Working Group

Comparison of BC and Federal EA Processes Federal panel found eight additional significant eight adverse effects: grizzly bears, navigation,local tourism, grazing, First Nation’s trapline, First Nations’ traditional land use and cultural heritage, Aboriginal rights, and future generations. Proponent’s fish habitat compensation program not viable, mitigation not adequateWhat accounts for such divergent outcomes? This report reviews and evaluates the provincial and federal EA processes as they are disclosed in the record provided by the BC EAO and Federal Review Panel. It concludes that the major differences between the two processes may be understood by the following differences: 1. Process: The BC EAO process involved information meetings and a “review and comment” period in 2009, based on Taseko Mines Ltd.’s initial application. By contrast, the Federal Review Panel required further information from Taseko 1 Recommendations of the Executive Director, December 17, 2009, p.22. Prosperity Mine EA Comparison Report, p.4 and, once the information base was found to be adequate, held public hearings in early This led to more informed discussion from all sides. 2. Information: The two different EA processes, and the timing of decisionmaking, meant that the Federal Review Panel (and hence federal Cabinet) had more complete information upon which to base their analysis. For example, the EAO did not wait for critical information from Fisheries and Oceans Canada, and from First Nations and their expert advisors, leading to deficiencies in the factual record placed before the provincial ministers. 3. Expertise: The Federal Review Panel was highly qualified, with each of its members being impact assessment professionals with experience of mining projects. In addition, federal agencies such as Fisheries and Oceans Canada brought considerable expertise to evaluation of the viability of proposed compensation measures (e.g. man-made Prosperity Lake), and participant funding provided by the Federal Review Panel enabled a form of peer review on several aspects of the project, neither of which were available at the time the Province approved the project. The provincial Assessment Report discloses four EAO staff on the working group for the assessment but does not indicate their qualifications or areas of expertise. 4. Significance Determinations: A key difference between the BC EAO and Federal Review Panel is how each assessed the significance of predicted adverse effects. Many of the impacts found to be significant by the Federal Review Panel were dismissed as insignificant by the EAO by measuring them against a large geographic area, in some cases the whole Cariboo-Chilcotin region. By contrast, the Federal Review Panel adopted established significance determination policies developed by the Canadian Environmental Assessment Authority. Some adverse effects found by the Federal Review Panel were not evaluated by the BC EAO. 5. Mitigation and Compensation: BC lacks clear mitigation and compensation policies, leaving the EAO somewhat rudderless when it comes to significance determinations because each and every adverse effect becomes an opportunity for negotiation. The BC Ministry of Environment developed broadly worded objectives and “performance measures” to guide compensation for the loss of Fish Lake, but key issues were deferred to future planning efforts. By contrast, the Federal Review Panel and Fisheries and Oceans Canada were guided by a long-established “no net loss” policy for the destruction of fish habitat. A July 2011 audit by the BC Auditor General recommends that the EAO “work with the Ministry of Environment to finalize a policy framework that will provide provincial guidance on environmental mitigation.” 6. Standards and Criteria: For many environmental values there are no standards or criteria to guide decision- making in BC provincial legislation, such as those found in Canada’s Fisheries Act and Species at Risk Act. This is leads to Prosperity Mine EA Comparison Report, p.5 significance determinations that are highly subjective and malleable. In this assessment, the BC EAO dismissed wildlife-related concerns expressed by the provincial Ministry of Environment and missed significant adverse cumulative effects to the threatened South Chilcotin grizzly bear population. 7. Legislation: The BC Environmental Assessment is largely procedural and lacks many of the substantive aspects of the Canadian Environmental Assessment Act (CEAA). Key impact assessment concepts and terminology are not addressed or defined in the provincial legislation. There are no decision-making criteria such as those that guide responsible authorities under CEAA. 8. Independence: The independence of the Federal Review Panel may account for some of the differences in the outcomes. Given that the EAO found no significant adverse effects to anything other than fish and fish habitat in the face of strong evidence to the contrary, the question inevitably arises as to whether the reporting relationship of the EAO to the relevant provincial ministers subtly or indirectly affects its judgment, objectivity and neutrality.

Report of BC Auditor General on BC EAO July 2011 Focused on post-certification EAO’s oversight of certified projects not sufficient to ensure that potential significant effects are avoided/mitigated EAO not ensuring that: –certificate commitments are measureable, enforceable –monitoring responsibilities are clearly defined –compliance and enforcement actions are effective

Report of BC Auditor General on BC EAO EAO not evaluating effectiveness of environmental assessment mitigation measures to ensure projects are achieving desired outcomes EAO not making appropriate monitoring, compliance and outcome information available to public to ensure accountability