In terms of news about Environmental Assessment, it never rains but it pours.
On 20 July 2011, only a week after a recent audit into the post-certification stage of B.C.’s environmental assessment process, the Northwest Institute for Bioregional Research released a report by long-time environmental lawyer, Mark Haddock, comparing the British Columbia and Federal Environmental Assessments for the controversial Prosperity Mine and concluding that the provincial process lacked many of the strengths of the federal process. The Northwest Institute’s report was funded through our Environmental Dispute Resolution Fund (EDRF).
There has been talk from both levels of government about streamlining the environmental assessment process, arguing that duplication should be reduced or eliminated. West Coast Environmental Law has expressed concern that a streamlined process may involve abandoning stronger federal environmental assessment processes. However, cuts to the federal process may also undermine environmental protection.
Provincial and Federal Reviews of the Prosperity Mine
Prosperity Mine was a controversial copper and gold mine proposed by Taseko Mines Ltd.. This project would have destroyed Fish Lake, or Teztan Biny (near Williams Lake), habitat for an estimated 85,000 trout and of great cultural importance to the Tsilhquot’in First Nation.
As the project was reviewed by both provincial and federal agencies (who in this case came to significantly different conclusions), it has been widely recognized that the project gives an opportunity to compare the pre-certification stage of the two environmental assessment processes (ie. the stage before government approval is given). Indeed, we made some comparisons ourselves shortly after the federal assessment was released. Mark Haddock’s report provides a new level of detail.
To recap: The B.C. Environmental Assessment Office(EAO) reviewed the Prosperity Mine proposal and its Executive Director determined that there “is only one significant adverse effect and it is limited to a discrete location” – the loss of fish and fish habitat at Fish Lake and Little Fish Lake.The Assessment Report also highlighted the perceived economic benefits of the project, and in January 2010, the B.C. government approved the project, taking into account the recommendations of the B.C. EAO and its Executive Director.
By contrast the federal process, which involved an independent panel, identified adverse effects in eight areas: grizzly bears, navigation, local tourism, grazing, a First Nation’s trapline, First Nations’ traditional land use and cultural heritage, Aboriginal rights, and future generations. The federal government rejected the Prosperity Mine in November 2010, with the Environment Minister describing the report’s assessment of the proposed mine as “scathing”.
The Northwest Institute Report
Mark Haddock’s report looks at each of the eight areas where the federal panel found that there were significant adverse effects, and examines the approach taken in the federal and provincial assessment reports for each. For each he identifies differences in the federal and provincial approach, trying to identify why the two reports reached different conclusions.
Haddock is critical of the BC EAO on many of these fronts. It is important to note that the BC EAO was not actually interviewed in preparing the report, and in some cases Haddock is forced to infer why decisions were made from the reports and other available documents. That being said, several of the differences that he uncovers seem shocking. For example, in the case of the mine’s impacts on grizzly bears and their habitat, provincial Ministry of Environment staff persisted in their view that the mine would significantly impact the bears, making statements like:
MOE does not agree with the conclusion of no significant residual effect on grizzly bears in this area. There is permanent loss of habitat at the mine site and there is considerable risk that more than 1 bear will be lost to human‐caused mortality related to the mine operations, road use and increased access along the transmission line. In our view, mitigation and/or compensation should be enhanced to address these residual effects and help ensure that the mine development does not increase risk to this already threatened GB population.
Independent grizzly biologists and the Canadian Wildlife Service also expressed similar views, while Taseko’s experts downplayed the significance of the impacts. Ultimately the federal EA accepted these concerns, while the BC EAO did not. Haddock writes:
The EAO’s own evaluation of grizzly bear impacts is very thin. The grizzly bear issues are only briefly addressed in the EAO Assessment Report and are not specifically mentioned in the Executive Director’s Recommendations Report to the ministers. … The EAO acknowledged that “MOE has expressed concern that a commitment to wildlife compensation should provide more certainty with respect to scheduling, planning and coordinating delivery of compensation measures.”
However, without providing a rationale, the EAO adopted the proponent’s position that the project would have no significant adverse effects on wildlife, even though MOE biologists were not convinced of that. … Unfortunately, neither the EAO Assessment Report nor the Executive Director’s recommendations to the ministers provide any additional analysis or rationale to explain how or why the EAO came to a different conclusion than MOE on impacts to grizzly bears (or wildlife generally) other than finding that the proponent had “explained its conclusions” and mitigation and compensation measures had been adequately dealt with …
By contrast, the federal environmental assessment panel accepted the concerns of the Ministry of Environment experts, and other grizzly experts, in reaching the conclusion that, in combination with expected forestry activities in the area, the Prosperity Mine “would be likely to result in high magnitude, long-term effects on the South Chilcotin grizzly bear population.”
Using this type of compare-and-contrast analysis for each of the 8 areas where significant adverse effects were identified, Haddock ultimately identifies 9 differences between the provincial and federal processes which may help to explain and account for the two very divergent outcomes in the case of the Prosperity Mine assessments:
- 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 and, once the information base was found to be adequate, it held public hearings in early 2010. This led to more informed discussion from all sides.
- Information: The two different EA processes, and the timing of decision-making, meant that the Federal Review Panel (and hence federal Cabinet) had more complete information upon which to base their analysis.
- Expertise: The Federal Review Panel was highly qualified, with two members being impact assessment professionals on the federal Minister of the Environment’s roster, and the third having First Nations qualifications.
- Significance Determinations: 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.
- 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.
- Standards and Criteria: For many environmental values there are no standards or criteria to guide decision-making in BC provincial legislation. In this assessment, the BC EAO missed significant adverse cumulative effects to the threatened South Chilcotin grizzly bear population, and dismissed concerns expressed by the Ministry of Environment.
- 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 is not addressed or defined in the provincial legislation. There are no decision-making criteria such as those that guide responsible authorities under CEAA.
- Independence: The independence of the Federal Review Panel may account for some of the differences in the outcomes.
- Sustainability Objective: Sustainability is not explicitly addressed in either the EAO or Federal Review Panel assessments, but seems to be an implicit factor in the Federal Review Panel’s evaluation of impacts, and is one of the purposes CEAA.
What does this mean?
These vastly divergent outcomes – provincial approval and federal rejection – show how much the two processes differ in the pre-certification stage. On its face, the federal process seemed more rigorous than the provincial, at least in this case.
It’s important to note that the federal process is not immune from criticism. The Prosperity EA appears to have been a rigorous example of a strong federal panel review. Contrast this result with the Kearl Oil Sands Environmental Assessment, in which a federal panel concluded the fact that the oil sands project would by itself generate .51% of Canada’s Greenhouse Gas emissions (and 1.7% of Alberta’s emissions) did not constitute a significant adverse environmental effect, primarily on the basis of promised future regulation of such emissions. This conclusion surely raises questions related to significance determination, sustainability and standards and criteria similar to those identified by Haddock in his report.
And the federal process looks as if it may get worse, with cuts to funding and new constraints on how long an environmental assessment can take.
That being said, the Haddock Report clearly raises serious questions about the provincial process; questions that reinforce our own concerns discussed in Environmental Law Alert’s “Lessons from the Prosperity Mine Assessment”. We agree with the Northwest Institute and Mark Haddock that the Prosperity Mine EA represents a unique opportunity to compare the two processes, because of the two independent assessments which came to opposite conclusions.
What’s next on Prosperity
Following the federal rejection of its proposal, Taseko announced on 21 February 2011 that it resubmitted a revised proposalfor the Prosperity Mine. The proposal is not yet publicly available. However, the Tsilhqot’in National Government, which has reviewed the proposal, has reported that it still poses a great threat to Fish Lake (Teztan Biny), as well as destroying Little Fish Lake and other critical areas. As a recent resolution by the Assembly of First Nations in support of the Tsilhqot’in National government puts it:
The alternative proposal would still completely destroy the Nabas area, Little Fish Lake, Fish Creek, and surround Teztan Biny with a 2 km wide open pit, a massive tailings pond and other mine works, and would still threaten the integrity of Teztan Biny. … The Tsilhqot’in Nation view the latest revised proposal as equally or more destructive than the first, and one which does not address the severe environmental and cultural impacts identified by the Panel.
This seems to confirm the need to ask many of the questions we have raised about the supposedly revised Prosperity Mine proposal.
By Andrew Gage, Staff Lawyer, and Katrina Andres, Legal Intern
