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New legislation makes it easy for feds to ignore public and Aboriginal input on resource development

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Last week the Minister of the Environment, Leona Aglukkaq bent to the desire of B.C. to go it alone on the environmental assessment of another major resource development project -- in this case, the proposed Ruddock Creek Lead and Zinc Mine.

On May 30, the Canadian Environmental Assessment Agency posted a request for public comment on whether there should be a federal review of the project and whether the federal government should accept B.C.'s request to substitute the B.C. process for the federal process.

Responses to the consultation process were overwhelmingly in favour of a federal assessment and against the substitution. I obtained copies of the submissions (they are public documents) and reviewed the 30  comments that were filed (in addition to ours). Only three supported substitution. We and ten others explicitly cited a lack of confidence in the B.C. assessment process as an important reason for the feds to stay involved. The example of B.C.'s acceptance of the now twice rejected Prosperity Gold-Copper Mine was used as an example of why people don’t put much confidence in the B.C. process. The First Nations' submissions also noted the importance of having the federal government at the table as they have primary responsibility for relationships with Aboriginal peoples.

A range of concerns about the project were expressed. The First Nations noted their unextinguished Aboriginal Rights and Title to the area. Potential impacts on the Adams River Watershed and the Pacific salmon populations that inhabit it were the most common concerns but impacts on the South Mountain Caribou  and other wildlife were repeated in several submissions.

The submissions appear to have had no effect. This is not that suprising give the Harper government's track record but it's also hard to imagine how comments opposing substitution could have an impact given Conservatives re-wrote the Environmental Assessment Act in 2012. The changes to the Act and an agreement with B.C. allow, and practically require, the feds to step away from their responsibilities for environmental assessment if asked to do so by a province.

While most of our environmental legislation gives considerable discretionary authority to the Minister, CEAA 2012 is strict on substitution: it includes an "obligation" that the Minister must accept a substitution request if a province meets certain general criteria. (Sec 32) A case can be made for failure to satisfy the criteria but the current federal government is more than happy to concede. This is the eighth  request from B.C. to be granted, and none have been turned down. (These include one other metal mine, four coal mines and two Liquified Natural Gas (LNG) terminals.)

It is important to remember that the Ruddock Creek project is on unceded Secwepemc territory, and is subject to Aboriginal Title. Given the recent decision from the Supreme Court of Canada in the Tsilhqot'in case, the province, federal government and proponent (Imperial Metals) ought to reconsider the approach taken with this substitution request and reflect on whether ignoring the input of First Nations is a wise move. According to the Supreme Court:

 [92] Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing….

[97] Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

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