ONTARIO AND BC ENVIRONMENTAL ASSESSMENT LAW MARCH 21, 2013

1. ONTARIO AND BC ENVIRONMENTAL ASSESSMENT LAW MARCH 21, 2013

2. 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)

3. 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

4. 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)

5. 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. 3.0.1 • Minister authorized to dispense with statutory requirements to harmonize with other jurisdiction s. 3.(1)

6. 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

7. 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

8. 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

9. 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)

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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 $500-600m • Corridor options: • Kettle Island (8.5 km) • Lower Duck Island (12 km) • Gatineau Airport/McLaurin Bay (12 km)

16. Ottawa River Bridge and Highway Corridor Project

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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?

23. 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

24. 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)

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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)

31. 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

32. 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

33. Prosperity Gold/Copper Mine

34. Prosperity Mine

35. 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

36. 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?

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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 2010. 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.

43. 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

44. 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