Quiz #2 Flashcards
Three ways a project becomes reviewable under EAA
1.The criteria of the Reviewable Projects Regulation (RPR) are met - new projects and modifications are reviewable if they meet certain criteria
- Ministerial designation by way of the Ministers own initiative, a request, or referral from the CEAO following a project notification (Section 11 Order) - Minister of E&CCS has the authority to require an EA for projects that aren’t reviewable under RPR. Minister can do this:
a. Through a request to designate a project that is not substantially started and not reviewable under RPR
b. By the minister’s own initiative
3.A proponent requests that project that is not automatically reviewable under the RPR is designated as reviewable based on the potential for adverse effects (CEAO must grant this request in order for it to occur) - the proponent submits an application to the CEAO and if they approve application the project becomes reviewable (under conditions that the project itself does not trigger a review).
What does the Reviewable Projects Regulation do
• Sets criteria for what projects are reviewable. Defines categories and sets thresholds that indicate adverse affects.
• If its reviewable, the project either:
1. Undergo an EA
2. Be exempted from an EA (and go directly to permitting reviews conducted by other agencies)
3. Be terminated from the EA process
What is Effects Threshold
- The RPR includes effects thresholds that apply to all project categories and are directly linked to the effects of projects
- Effects thresholds must be reasonably measurable and known at the early stages of the initial project description
- If a project in a prescribed category meets one or more of the effects thresholds, then it is reviewabl
Categories of reviewable projects
- Industrial Projects: chemical manufacturing, primary metal and forest product industries
- Electricity, Petroleum, and Natural Gas Projects: power plants, electric transmission lines, natural gas processing or storage plants and transmission pipelines
- Mine Projects: coal and mineral mines, sand and gravel pits, placer mineral mines, construction stone and industrial mineral quarries and off-shore mines
- Water Management Projects: water diversions, dams, dykes, groundwater extraction
- Waste Disposal Projects: special waste facilities, local government solid and liquid waste management facilities
- Transportation Projects: large public highway and railway, large ferry terminal and marine ports
- Tourist Destination Resort Projects: large golf, marine, and ski hill destination resorts.
Thresholds and notifications
- The RPR includes effects thresholds that apply to all project categories and are directly linked to the effects of projects
- Effects thresholds must be reasonably measurable and known at the early stages of the initial project description
- If a project in a prescribed category meets one or more of the effects thresholds, then it is reviewable
-design or effects threshold - has a buffer zone, for example is a coal mine was within 15% of the threshold for emissions would be required to notify EAO
Types of Pubic Involvement
Consultation: Two-way information flow between proponent and public,
with opportunities for public to provide comment on the proposal.
Participation: Interactive exchange between proponent and
public. Involves setting an agenda and developing a shared
understanding of positions regarding the proposal and its impacts.
Negotiation: Face-to-face discussion between proponent and key
stakeholders to build consensus and reach mutually acceptable
Cost / Benefits of public engagement
Benefits:
•Source of knowledge (corrective and creative)
•Affirmation of democracy and elimination of hostility, lack of faith, or alienation
•Informed public
•Identification of different points of view
•Better decision-making
Disadvantages:
•Only those with scientific or technical backgrounds
are able to make positive and constructive contributions
•Limiting the number of people involved in decision-making is more efficient (both in terms of time and decisiveness)
•Members of the public are more subjective compared to professionals (both technical or bureaucratic), who are perceived as more objective
•Public participation is not truly representative of public opinion
•Public participation adds to the costs of governing or project
Public engagement in the BC EA process
- Increased emphasis on public engagement after the BC Environmental Assessment Act 2018. The act outlines legal guidelines for the engagement process:
- CEAO MUST hold a minimum of four public comment periods (but can be less if public has not shown sufficient interest, can also add additional public engagement and comment period if needed)
- Proponent to submit an Engagement Plan during the early engagement process
- CEAO MUST establish a community advisory committee unless the public is not that interested
- CEAO to maintain EPIC to facilitate information access
•Four legislated comment periods are held at the following phases in the EA process: •Early Engagement - on the Initial Project Description submitted by the proponent •Process Planning - on the draft Process Order •Application Development and Review - on the draft Application submitted by the proponent •Recommendation - on the draft Assessment Report and draft Certificate
Aboriginal rights and title
- Right to self-determination/Self Government
- Differs from personal ownership. Basically land is held communally and preserved for future generations
- Rights enshrined in Sec. 35 of the Canadian Constitution (not created!)
- Includes metis, inuit and FN in Canada
- These rights were around before colonization. They do not exist JUST because Canada put it in legislation
The duty to consult
- Canada is legally bound to respect the relationship that Indigenous Peoples have with the land they inhabit, and to protect their rights to use their traditional land
- The Crown’s duty to consult and, where appropriate, accommodate, Indigenous interests, flows from the concept of the honour of the Crown and “the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty”
- The honour of the Crown and the need for reconciliation in turn flow from Section 35 of the Constitution Act and the historical relationship between First Nations and the Crown
Regina v. Sparrow
Sparrow used a net that was too long and got convicted
Musqueam Argued that this infringed on their rights through Section 35 of the constitution act (Rights to fishing).
Musqueam also argued their title/rights had NEVER BEEN EXTINGUISHED
Created the sparrow test (questions to ask before infringing on rights):
• Is there existing Aboriginal right?
• Has a right been infringed upon? A government activity threatens to infringe on an
Indigenous right if:
• What might justify an infringement on an Indigenous right?
**Set out infringement criteria, and foundation for decision makers, created sparrow test
Delgamuukw v. BC
-Hereditary chiefs argued they have claim to a huge area to protect from forestry/other industry
-Argued their claim comes from traditional territories they have used.
Courts said they did NOT have rights/title to the area
Nations tried to appeal. The supreme court rejected the lower court ruling and established aborignal title DOES exist and DOES NOT give ultimate authority but gives exclusive use of that land. Title land can only be extinguished through the crown and can not be used for anything that may mess up the land for FSC
•To make a successful claim of Aboriginal title:•The land must have been occupied prior to European sovereignty (1849 in B.C.)•There must be continuity between pre-sovereignty and present occupation (but not an unbroken chain)•At the time that European sovereignty was established, Aboriginal occupancy must have been exclusive (but it could have been jointly exclusive by more than one party or tribe)
**Set a precedent for oral histories to be used in court, defines aboriginal title and requirements for title, seen as turning point for negotiations, clarified duty to consult for the Crown and not third parties,
Haida v. BC
BC Gov issued tree farm license in 1961 permitting tree harvesting. Minister approved a transfer of Tree Farm license
Jan 2000, the First Nation’s asked that the replacements and transfer be set aside. They argued legal encumbrance, equitable encumbrance and breach of fiduciary duty, all grounded in their assertion of Aboriginal title.
The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida.
**The extent and nature of consultation depends on two factors:1.The asserted claim’s strength - if the claim is strong, then the Crown has to accommodate the Indigenous group and allow them to participate in the decision-making process, but weak claims require only notification2.The extent to which the right may be adversely affected by the government decision or action
**FN do not have veto power, Crown has to consult IP even if title is not yet proven in court
Taku River Tlingit FN v.BC
Mining company sought permission from BC to reopen old mine
1984 - create mining access road through the territory
Taku river challenge the certificate
**Semi nomadic FN can get rights b/c they followed moving recourses
Regina v. Douglas
4 members cheam FN were charged with unlawful fishing (no licence)
They argued the Fisheries Act infringed in FSC which is guaranteed Section 35
USED SPARROW TEST:
The justification of the “infringement” was conservation. Legislative objective = Conservation
DFO had tried to consult with all the Fraser River nations and Cheam did not fulfiill their end of the consultations. (cheam did not respond to DFO when setting conservation)
DFO said Cheam had enough allocation of fish and so the infringement WAS justified.
Shortly after, commercial people were illegally fishing and did NOT get convicted. Yay Canada.
Is there a claim?
How strong is the claim?
How much will it actually infringe?
Did the government actually consult properly?
**No veto power for FN, FN need to respond to consultation
