Losing Its Way: Environmental Impact Assessment in British Columbia,Canada

Introduction

Despite its technocratic nature, environmental impact assessment (EIA) is a valuable tool for communities struggling to achieve environmental justice. With a fundamental purpose of determining the potential consequences of a proposed industrial project on the biophysical and human environments, an EIA provides an important opportunity for individuals and groups to challenge the scientific accuracy of the assessment in pursuit of proper land use decisions for their community.1 The EIA and environmental justice literature, however, point to a need to view a proposed project cumulatively,2 that is, to consider the impacts of past projects and those likely to occur as a result of the proposed project, in addition to reasonably foreseeable subsequent anthropocentric activities. While environmental justice theories document the sources of cumulative effects that minority groups experience more so than white, affluent groups, particularly in the case of Native and African Americans,3 the institutional causes of the disproportionate exposure to cumulative impacts experienced by indigenous groups in Canada is presently understudied.

Using a case study design, we examine an approach of the provincial government of British Columbia (BC), specifically the Environmental Assessment Office (EAO), that excludes the cultural and social values4 of West Moberly First Nations (an indigenous group in Canada) from a cumulative effects assessment (CEA) of the proposed Central South Coal Mine Project (the “proposed Coal Mine”), while choosing to include the social values of mainstream society within the CEA. We first review the concept of equality as it is conceptualized in Canada to theoretically ground our environmental justice analysis. We then draw upon primary and secondary literature sources regarding this case study as a basis for the application of the theories of environmental justice. We conclude that the injustice in this case is grounded in the EAO's application of its discretionary power with an outcome that marginalizes the cultural values of West Moberly within the EIA process when compared with the values held by mainstream society.

Equality Framework

Civil liberties in the form of equality rights for minorities groups are by and large protected from being adjudicated by the values of mainstream society through section 15 of Canada's Constitution Act, 1982.5 Including the equality provision in Canada's Constitution comes from the recognition that, for example, the “growth of industry…[and the] contact of European immigrants with indigenous populations” was leading to a significant amount of discrimination, requiring a legal instrument to address the matter.6 Its inclusion is, in part, designed to guarantee that minorities have “equal protection and equal benefit of the law without discrimination,”7 which are substantive rights. Fundamental to the provision is the protection of minorities “against the evil of discrimination by the state [in] whatever form it takes,”8 particularly when a situation involving a government decision includes an outcome that amounts to

Equality in this sense is all encompassing, applying to the enactment and implementation of laws, regulations, and policies by the government, in addition to the discretionary power derived from such instruments that decision makers rely upon.10 The government thus bears a considerable legal obligation to ensure that it is not creating or furthering an existing disadvantage and ought to take advantage of opportunities to purge existing inequalities and/or ameliorate disadvantages that are present in society rather than allowing them to persist.11

BC's EIA Process and the Proposed Coal Mine

Within BC, the EIA process occurs when a specific industrial project requires an authorization pursuant to the Environmental Assessment Act (EAA) in order to proceed to construction and operation.12 The EAO has a considerable amount of discretionary power under the EAA in this regard, much of which is strategically set out in the section 11 Order (“Order”) for a proposed project, which, among other things, determines the scope of the assessment.13

In the case of the proposed Coal Mine, the scope of the assessment in the Order as currently prepared is subdivided into two categories. The first pertains to mainstream society and reads, in part, that the EIA will determine the “potential adverse environmental, social, economic, health and heritage effects, and potential cumulative effects” and will determine “practical means to prevent or reduce to an acceptable level any such potential adverse effects.”14 The second pertains specifically to First Nations, and reads, in part, that the EIA will determine the “potential adverse effects on First Nations' treaty rights, and other interests, and to the extent appropriate” determine “ways to avoid, mitigate or otherwise accommodate such potential adverse effects.”15

When the scope of assessment for mainstream society is compared to that of West Moberly, a noticeable difference emerges. The EAO decided to exclude a CEA from the scope regarding potential consequences of the proposed Coal Mine on West Moberly's cultural values.16 The assessment of impacts was limited to only project-specific effects; generally speaking, such an approach assesses the project's effects in a spatial/temporal vacuum ignoring other anthropogenic activities and their synergistic effects.

Few would argue that First Nations are not a vulnerable segment of the Canadian community. The necessity of conducting a CEA is vital to protecting their indigeneity,17 as it is a substantive component of EIA18 that combines data from various sources (e.g., consultation activities and studies based on social and natural sciences) whereby data is analyzed and articulated in terms of the potential impacts. When appropriately designed, therefore, the CEA-based approach to EIA differs considerably from the project-specific approach by taking into account “the accumulation of human-induced changes in…[valued components] across space and time,” which may be the “result of individually minor but collectively significant actions” that have occurred “in combination with other past, present, and future actions.”19 Therefore, including an analysis of the cumulative effects of a proposed project is “EIA done right,”20 as it provides a more complete picture of the situation.

Based on the above, the exclusion of CEA from the scope pertaining to West Moberly is quite troubling, especially given the circumstances faced by the First Nation in their local environment. Significant impacts to the biophysical and human environments are expected, as the proposed Coal Mine is located within what is considered to be the “critical habitat” of a “threatened” herd of caribou, a species protected under Canada's Species at Risk Act.21 Further, caribou are essential in maintaining the cultural subsistence of this First Nation, which has an established treaty right to specifically harvest caribou.22 The cumulative effects noted in various portions of the First Nation's territory from industrial development,23 coupled with the corresponding decline of the caribou's population that has resulted in the First Nation implementing on its own recognizance a conservation measure (harvesting moratorium) approximately 40 years ago to try and save the species, makes the need for a CEA on cultural values even more pertinent in situations where a proposed project places caribou and the culture at further risk.

Discussion

Using a Canadian-based equality framework as the basis of an environmental justice analysis of BC's EIA process begins by examining the scope of the assessment as described in the Order prepared by the EAO. Scoping determines the valued components to be included in the assessment along with the parameters and boundaries within which to focus the analysis on the variables pertinent to a proposed project.24 Matters that are considered less relevant or extraneous are excluded from the scope to maximize the efficacy of the process.25 As such, the outcome of the exercise has a “major influence on the focus of the entire EIA and, therefore, upon the advice given to decision makers.”26 Scoping is thus an important procedural component as it delineates the parameters by which the seriousness of the impacts to the culture of First Nations is determined.

In BC, the particulars of the scope are open to the public. However, the procedures used to determine of the scope of the assessment and the rationale to include or exclude valued components, as well as the methodological approach that underscores the EIA, remains opaque and largely (if not entirely) at the discretion of the government, calling into question whether the scoping exercise in BC is open or closed in nature. Nevertheless, the release of the scope provides an affected group with a key opportunity to vet (and possibly seek a judicial review of) the decision if a distinction based upon personal characteristics was made that resulted in a breach of their equality rights regarding the protection and benefits of the law.

There is little question that the EAO made a distinction under the EAA, given that the Order as it is currently prepared clearly separates the values of mainstream society and West Moberly into two subsections. Since there is a considerable difference with respect to the rights the two groups possess, in particular the distinct constitutional rights held by First Nations27 in relation to substantive rights to the environment that are not held by mainstream society, this distinction is unlikely (in isolation) to be discriminatory. Where the distinction based on racial characteristics becomes problematic is the point at which the government makes the decision to include or exclude values and parameters. Without exception, in this case, the approach of the EAO to include an analysis of the cumulative effects on the social values of mainstream society within the scope while excluding28 the cultural values of West Moberly would diminish the protection and benefit that a scientifically rigorous EIA is capable of providing. Such differential treatment disproportionately removes and/or limits the ability of laws governing environmental assessments to protect cultural values.

Peripheral to the Order, however, the EAO held that the matter of cumulative effects would be handled procedurally via consultation activities between the parties,29 rather than through a scientific analysis. West Moberly took exception to the EAO's “double-standard” approach and insisted that the cumulative effects of the proposed Coal Mine on their cultural values be assessed, not simply talked about.30 Such an approach appears to be ideologically based, as it differs greatly from the fundamentals of impact assessment science: trading a substantive component for a procedural component does not increase or even maintain the breadth and thoroughness of the assessment, no matter how much discussion occurs between the parties.

Adding to the inequality was the EAO's indifference towards the existing case law, which removed/limited the benefit of the law for West Moberly. The British Columbia Court of Appeal (BCCA) had recently found that government-led environmental decision-making processes in West Moberly's territory must include an impact assessment that adequately takes into consideration cumulative effects.31 Further impugning the EAO's approach is the fact that the aforementioned court case was launched against BC in particular, and more importantly, actually pertained to the specific herd of caribou that would be adversely impacted by the proposed Coal Mine if it were constructed. How the EAO could be unaware of its overall legal duty to adequately assess the impacts to a constitutionally protected culture by means of conducting a CEA is difficult to comprehend. It seems more likely that the EAO rendered the applicable jurisprudence ineffectual in order to reduce the benefit bestowed by the BCCA to the First Nation, which, in turn, decreases/minimizes the seriousness (albeit incorrectly) of the impacts to cultural values.

Such token implementation of the benefit of the law in situations where cultural values are concerned reveals systemic discrimination within environmental decision-making processes affecting minorities in Canada. Often, according to Chief Roland Willson of West Moberly, the use of discretionary power by BC is relied upon to protect the interests of industry. He notes:

BC's dualistic approach to assessing the cumulative impacts raises a serious question as to whether the government is capable of upholding the fundamental principles of natural justice. After all, a sense of (biocentric and cultural) justice does not seem to underscore the manner in which BC and the EAO structure EIAs as a planning tool. EIAs ought to be used as a mechanism to assist in the purging of inequalities in society rather than as a conduit to further historic intolerances and existing disadvantages within a contemporary context.

Conclusion

For First Nations in Canada, the available options to achieve a just resolution in the face of overt government-based environmental discrimination are limited, as there are no environmental justice laws (such as U.S. Executive Order 12898) prohibiting such actions. First Nations may challenge a particular decision in court under existing laws, but that is costly in terms of time and finances and likely would not (in the interim) prohibit the environmental process from continuing. Another option is continuing to participate in the process all the while knowing that the government will most likely attempt to unreasonably minimize or exclude the substance of their concerns from the assessment aspect of the process, which, in the case of West Moberly, we would suggest is tantamount to a form of physiological torture by the worsening of the initial injustice.

As lamentable as is the situation West Moberly is entrenched within, it is not a unique phenomenon. Similar cases have emerged in British Columbia and have also been documented across the country. Viewed collectively, the historic and contemporary treatment of First Nations, both procedurally and substantively, clearly demonstrates the real need for environmental justice legislation in Canada, which is long past due.