Government of British Columbia Introduces Indigenous Consent Requirement for Major Projects

On November 5, 2018, the B.C. government introduced Bill 51 – 2018: Environmental Assessment Act (Bill 51), which looks to replace the province’s current Environmental Assessment Act. Bill 51 proposes a dramatic shift in the project approval process in B.C. that, if passed, would create consent-based participation rights for Indigenous peoples. 

BACKGROUND

On March 7, 2018, the B.C. government announced a revitalization of the B.C. environmental assessment (EA) process. As part of this announcement, the government indicated that one of its objectives was to advance reconciliation with Indigenous people, including contributing to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Following an initial engagement phase that included significant Indigenous consultation — the government released a discussion paper in June 2018.

Direct engagements with Indigenous groups and industry associations continued through the summer and included a public comment period from June 18 until July 30, 2018. In the fall, the government summarized the results of its engagement in a “What We Heard” report and outlined its direction in what it called an Intentions Paper.

Bill 51 is the current result of this process. The proposed legislation contemplates far-reaching changes that will dramatically shift the major project approval process in British Columbia.

PROPOSED INDIGENOUS INVOLVEMENT

The B.C. government has introduced what it is calling a “consent-based” EA model, which is intended to support reconciliation and the implementation of UNDRIP in B.C.

The primary Indigenous involvement components in the proposed EA process are:

• An express requirement that the B.C. Environmental Assessment Office (EAO) will support reconciliation with Indigenous peoples, including the implementation of UNDRIP, when it carries out its statutory requirements.
• The opportunity for an Indigenous group to apply to have a project that would not otherwise be assessed under the new EA process to be designated as a reviewable project. If the minister declines to make such a designation, the minister must provide reasons for that decision.
• Indigenous participation will no longer be driven by strength of claim assessments. Instead, Bill 51 contemplates that Indigenous groups may formally apply to opt-in to the EA process as “participating Indigenous nations”. However, the EAO may determine, after giving the Indigenous nation an opportunity to be heard, that there is no “reasonable possibility” the nation or its rights will be adversely affected by the proposed project. This is a low bar to meet and, if the Indigenous nation disagrees with this conclusion, it can go to a yet-to-be-defined dispute resolution process. In practice, most project assessments will involve multiple participating Indigenous nations.
• A legal obligation to “seek to reach consensus” with participating Indigenous nations on key decisions during the EA process. Notably, while there is a definition of consensus in the Intentions Paper, there is no definition in Bill 51 itself. If consensus is not reached, this will again trigger the to-be defined dispute resolution process. It is unclear what role proponents will play in achieving this consensus or how conflicting positions among participating Indigenous nations about a project will be resolved.  
• A requirement to seek participating Indigenous nations’ consent at two decision points:

1. The “EA readiness stage”: This is a decision on whether to exempt a project from the EA process, terminate an EA, require more information, or proceed to the next step in the EA process.
2. Whether to grant an EA Certificate (e.g., project approval).

The EAO or ministers, as appropriate, must consider the Indigenous nations consent (or lack thereof) in making these decisions and are expressly required to address Indigenous consent in their reasons for these decisions. Except in limited circumstances where there is a treaty or agreement with government that specifically requires Indigenous consent, the requirement is not absolute and the EAO or ministers can proceed without consent.   

• The requirement to consider and protect the confidentiality of Indigenous knowledge.
• The ability to enter into agreements with participating Indigenous nations on integrating Indigenous laws, customs and interests in the EA process and for an Indigenous nation to conduct all or part of an assessment.
• Requirements for proponents to contribute to the costs incurred by participating Indigenous nations.
• The entitlement for a decision-maker to consider any “arrangements” reached with participating Indigenous nations in relation to the potential effects of a project, raising the spectre of commercial agreements between proponents and Indigenous groups forming part of the assessment process.

WHAT’S NEXT?

Bill 51 still needs to go through the remainder of the B.C. legislative process. If Bill 51 becomes law, the government has indicated that supporting regulations will be developed, engaged on, and refined between late fall 2018 and spring 2019 and that the new EA process will come into force in late 2019.

CONCLUSION

If passed, Bill 51 would make significant changes to the participation of Indigenous people in the B.C. EA process.

While it has the laudable goal of supporting reconciliation with Indigenous groups, the proposed changes are sweeping and untested. At a time when regulatory processes across Canada are constantly challenged for failing to meet the Crown’s constitutional obligations to Indigenous peoples, it is notable that the existing B.C. EA regime has been repeatedly upheld by the courts, including where “deep consultation” with Indigenous people is required.

Bill 51 provides a further example of how governments in Canada may seek to implement UNDRIP, in particular the concept of “free, prior and informed consent”. We have previously expressed our concerns about the implementation of UNDRIP in the absence of defining what this means. Please see our June 2018 Blakes Bulletin: Bill Backing UNDRIP Heads to Senate, Moves One Step Closer to Becoming Law in Canada for more information. As noted, there are widely divergent views on the meaning of a number of key provisions of UNDRIP. Leaving these undefined simply means that they will eventually have to be interpreted by the courts, an approach that will create uncertainty that does not exist under the current EA regime and ultimately litigation until these requirements are defined.

Ironically, and despite the rhetoric, the existing EA process more often than not achieves consensus and consent, by leading proponents and Indigenous groups to negotiated agreements. Casting this process aside in favour of wholly new and complex standards may be a solution in search of a problem. It is one thing to attempt to achieve consent as a norm of behaviour, but imposing it as an undefined legal requirement necessarily changes the nature of this exercise, and introduces new potential legal challenges. It is far from clear that this will lead to better outcomes and decision-making on projects or serve the interests of any participants, whether Indigenous or non-Indigenous.

For further information, please contact any member of our Aboriginal Law group.