Court clarifies threshold requirement to trigger BC environmental assessment

A recent decision of the B.C. Court of Appeal provides some reassurance to project proponents because it clarifies the threshold requirement to trigger a B.C. environmental assessment. The decision also provides the Crown and project proponents with certainty that the Environmental Assessment Office’s confirmation of the reviewability threshold of a project does not trigger a duty to consult First Nations.

Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2016 BCCA 500, overturned a B.C. Supreme Court ruling on whether a proposed frac sand mine near Fort Nelson, B.C., was subject to provincial environmental assessment.

The proponent wrote to the EAO providing a description of the project and the applicable environmental assessment trigger, and asked for the EAO’s confirmation that the project was below the trigger threshold. The Reviewable Projects Regulation outlines thresholds for categories of projects that are “reviewable projects” and therefore must receive an environmental assessment certificate before development commences.

The EAO wrote a letter confirming that the project as described would not exceed the trigger threshold. However, the EAO was clear that “[p]roject proponents are responsible for making their own determination as to whether or not their proposed project falls within the thresholds set out in the [Regulation].” The Fort Nelson First Nation disagreed – its position was that the project would exceed this threshold. It brought a petition for judicial review on the grounds that the EAO’s interpretation was unreasonable, arguing that all of the excavated material, including waste, should count towards the production capacity. The First Nation further argued that the EAO’s interpretation of the provision and consequent confirmation that the project did not exceed the trigger threshold was Crown conduct that attracted the duty to consult, and that consultation on these points had been inadequate.

The Chambers judge agreed with the First Nation’s interpretation of the threshold criteria, finding that the Crown had a legal duty to consult on the subject matter of the letter, and declared that the Crown had failed to fulfill this duty to meaningfully consult with the First Nation in good faith and to seek to accommodate the First Nation’s Aboriginal rights under Treaty 8. The executive director of the EAO and the project proponent appealed the decision.

Under the environmental assessment scheme in B.C., the onus is on the proponent to determine whether a project is reviewable based on the criteria set out in the Regulation. The legislation contains no mandated decision by the EAO regarding whether a project is reviewable under the Regulation.

The Court of Appeal therefore concluded that the letter was not a decision by a statutory delegate about whether the project was a reviewable project under the Regulation. The Court characterized the letter as a “non-binding opinion” that was not subject to judicial review.

The Court also considered the merits of the appeal and interpreted the threshold necessary to trigger an environmental assessment for a sand and gravel mine.

The EAO’s interpretation and application of the Regulation was upheld as reasonable. Importantly, the Court concluded that the EAO’s articulation of the threshold did not undermine the statutory scheme and objectives. Although the object of the Act is environmental protection, the overall scheme balances the need for environmental protection against encouraging economic development. The thresholds in the Regulations are intended to be easily applied by proponents.

Finally, the Court considered whether the Crown’s duty to consult had been triggered. One of the key issues was whether the EAO’s interpretation and application of the reviewability threshold constituted “Crown contemplated conduct.” Both the proponent and the EAO argued that statutory interpretation is not “Crown conduct” capable of attracting a duty to consult. The Fort Nelson First Nation argued that interpreting and applying the reviewability threshold was “Crown contemplated conduct” and, in this case, the adverse impact was that the project would be subject to reduced environmental oversight, and would therefore expose the First Nation to greater potential impacts to its aboriginal or Treaty rights.

The Court dismissed the First Nation’s claim that a duty to consult was triggered by the EAO’s interpretation. The Court held that the Regulations are rules of general application intended to apply universally throughout British Columbia. Imposing a duty to consult over the interpretation of the Regulation may lead to different interpretations applying to different projects.

The Court found that had the duty to consult been engaged, the EAO had fulfilled its duty.

This decision confirms that the proponent, not the EAO, is responsible for determining whether a project meets the thresholds for triggering an environmental assessment, and clarifies how the thresholds are to be interpreted.

Jennifer Nyland and Laura Duke are associates at Lawson Lundell LLP. Jennifer can be reached at jnyland@lawsonlundell.com; Laura can be reached at lduke@lawsonlundell.com.