Undermining environmental assessment laws: post-assessment amendments for mines in British Columbia, Canada, and potential impacts on water resources

BC’s first environmental assessment law, the Environmental Assessment Act RSBC 1996 c. 119 (henceforth EAA (1996)), came into force in 1996 and was substituted in 2002 with the Environmental Assessment Act SBC 2002 c. 43 (henceforth EAA (2002)). This law was subject to criticism for its lack of stringency, lack of clarity on post-certificate monitoring, and insufficient opportunities for public or Indigenous engagement, among other elements (Haddock 2010; Booth and Skelton 2011; Murray et al. 2018; Smith et al. 2018). It was replaced in 2018 by the Environmental Assessment Act SBC 2018 c. 51 (henceforth EAA (2018)), enacted in December of 2019 with new objectives for advancing reconciliation with First Nations, enhancing public confidence, and emphasizing sustainable project approvals (Province of British Columbia 2021a).

Under the EAA (2002), once a project completed the EA process and was approved, it received an EA certificate (“approval certificate”) from the BC Environmental Assessment Office (BCEAO), allowing the proponent to commence project activities. However, after the EA process was completed, a certificate holder (e.g., the proponent) was eligible to apply for amendments requesting an addition or removal of conditions to or from the certificate. In these situations, an amendment application was prepared by the certificate holder stating the reasons for amending the certificate. The application was then sent to the BCEAO along with a prescribed fee which varied based on amendment type: simple ($2,000), typical ($10,000), or complex ($50,000) (BCEAO 2016a).

The degree of review for each type of amendment differed, where simple amendments such as name changes or certificate transfers did not involve engagement of the public, working groups, or Indigenous Peoples (BCEAO 2016a). A typical amendment was defined as a “material but limited change to the project”, in which guidelines stated that public consultation may be required (BCEAO 2016a). A complex amendment was categorized as a “material change to the processes and outputs of a facility with potential for significant adverse effects”, in which Indigenous and (or) public consultation was required (BCEAO 2016a). Once the amendment was submitted to the BCEAO, the executive director of the BCEAO and relevant Minister had three options: (1) amend the environmental assessment certificate, adding or removing certificate conditions; (2) refuse to amend the certificate and request further information for the amendment application to be resubmitted; or (3) refuse to amend the certificate entirely (BCEAO 2016a).

The proponent-requested amendment process remains the same under the EAA (2018), except with added conditions under ss. 32(7) and 32(8), where the chief EA officer must be satisfied that the certificate holder sought to achieve consensus with participating Indigenous nations prior to granting an amendment. Additionally, ss. 32(5) gives the chief EA officer authority to independently make amendments if required following a mining project audit, mitigation effectiveness report, 5-year anniversary of the issued certificate, or other criteria (BCEAO 2020a). The fees payable to the BCEAO for requesting simple, typical, and complex amendments increased to $5,000, $25 000, and $100 000 respectively (BCEAO 2020a). The EAA (2002) and EAA (2018) do not specifically mandate public consultation periods or offer step-by-step guidance for the BCEAO to follow during the amendment assessment process.

Although the general EA process in BC is explained through public-facing websites, presentations, and videos (Ministry of Environment and Climate Change Strategy (MECCS) 2021; Province of British Columbia 2021b), and calls for public consultation for projects are clearly posted on the project registry (BCEAO 2021a), there are fewer public-facing explanations or details about the amendment process. It is unclear if amendments are subject to equivalent public, scientific, and legal scrutiny as the main EA process precedes the awarding of a certificate. There is no limit to the number of post-assessment amendments a proponent can apply for under either statute.

Concerns regarding a lack of transparency and controversial decision-making by the BCEAO have been raised for the BC EA process in the past (Cox 2018; Yaylaci et al. 2020) and because of the gap of public-facing information about certificate amendments, these concerns apply to the amendment process. To date, there has not been any study on the amendments to mining project certificates in BC. We ask, of the mines awarded a certificate between 2002 and 2020 under the EAA (1996), EAA (2002), or EAA (2018), (1) how many applied for amendments?; (2) how many of these were issued amendments, and how does the volume of issued amendments vary based on the time elapsed from mining project certificate approval or the political party in power?; (3) do granted amendments relate to water resources, and do they pose risks of harm?; (4) does the categorization of amendments as simple, typical, or complex by BCEAO actually correspond to the complexity of project changes proposed in the text of the amendment?

For each mining project that met this filter criteria, we visited the individual project’s EPIC registry page and recorded information for our variables of interest (Table 1) in a Microsoft Excel spreadsheet.

For projects where presence of information about potential direct or indirect impacts of project amendments on water resources was identified, we recorded the date of the project’s awarded EA certificate, the date on which an amendment application related to water resources was submitted, and the amendment’s approval date (if approved). For each amendment deemed likely to impact water resources we qualitatively categorized the potential effects. To ensure we identified valued components for water resources that conformed with existing BC regulations, we used key words and definitions from the BCEAO’s 2020 Effects Assessment Policy (BCEAO 2020b):

For the purposes and scope of this research paper, “components of the biophysical environment” in relation to studied direct or indirect effects was limited to water resources. Potential impacts to water resources were broken down into three categories: (1) surface water quality (e.g., effluent discharge, sedimentation), (2) surface water quantity (e.g., diversion, extraction, retainment), and (3) valued components (e.g., groundwater extraction, acid rock precipitation, fish and fish habitat) (Table 2).

One member of the research team read the full text of each amendment request and its related approval documents and recorded activities that included any physical act during construction, operation, and (or) decommissioning of the mine that may classify as a water use purpose under s. 2 of BC’s Water Sustainability Act SBC 2014 c. 15. For each amendment, the authors consulted and summarized the long-form text describing activities that may have a potential impact on water. Some examples of activities impacting water that we encountered during examination of amendment documents included the following (refer to Table 3 for an exhaustive, project-specific list):

We completed a qualitative assessment of the ease of the clarity of amendments that were deemed likely to affect water resources directly or indirectly. For each amendment document, one reviewer specifically looked for the inclusion of numerical information and specific predictions to reinforce claims or decisions made by proponents or the BCEAO. Where claims or decisions appeared to be made without robust justification (meaning one or more of the following: did not cite any completed scientific studies, did not include quantitative data or predictions, or lacked sufficient clarity to understand the claim), the reviewer recorded the appropriate document title, page number, and section of text. Then the reviewer brought forth these identified sections of text to the remainder of the data collection team which consisted of four individuals with post-secondary education, academic training in environmental impact assessment, and partial completion of a Master’s degree. The team came to consensus as to whether each claim lacked robust justification and on what grounds. Each amendment application and assessment can be tens to hundreds of pages long, thus this analysis was only completed for amendments deemed to have potential to impact water resources and not all amendments.

All data analysis was conducted in Microsoft Excel for Microsoft 365 MSO. For each of the quantitative variables collected, we calculated descriptive statistics (frequency, range, maximum, minimum, mean, and median) for projects whose amendments indicated a potential direct or indirect impact on water quality or quantity. For each amendment deemed likely to impact water resources, we calculated the years elapsed between the amendment application, amendment approval, and the issue of its original EA certificate.

We also compared proposal and approval years for amendments to the political party in power at the time. BC’s New Democratic Party (NDP) presents itself as a progressive left-leaning political party, whereas the BC Liberal party presents itself as more moderate on the political spectrum (The Canadian Encyclopedia 2017). Such variations in political agendas can result in diverse decision-making processes that may favour or disfavour resource extraction corporations (Plourde et al. 2017; Duval 2018). Historically in BC, the Liberal Party had a clear commitment to mining development (e.g., in 2011 the Liberal premier promised eight new mines and nine upgrades to existing mining operations within 4 years (CBC 2015)). The NDP–Green Party coalition also made several promises to the mining sector, including permanent tax credits, an easier Mines Act permitting process, and a mining jobs task force (Horgan 2017). Since both of these parties were in power over the time period, we plotted the number of amendments and their approval against the tenure of the majority party to visually examine for trends as they may have been more or less favourable to approving amendments based on political leaning. We also compared whether the duration of time between application and approval differed based on which political party was in leadership in the provincial legislature.

We found a total of 23 mines approved by the BCEAO, with each mine receiving an EA certificate (full list in Appendix A). Twenty-two of the 23 mines were approved under the EAA (2002), with only one mine being approved under the EAA (1996) and none issued a certificate under the EAA (2018). Of the 23 approved mines, 15 proponents applied for amendments to alter their original certificate (65%). Of these 15 projects, 14 received approval for one or more amendments. Ten projects received approvals for amendments we deemed likely to directly or indirectly impact water resources (Fig. 1).

The total number of amendment applications submitted by the 15 mining project proponents (including multiple applications for the same project) was 49. Amendment applications included certificate ownership transfers, certificate language or statement changes, and major or minor physical changes to the project itself. Of the 49 amendment applications filed, 48 were subsequently approved by the BCEAO, with 20 of those amendments resulting in project changes we deemed likely to have direct or indirect effects on water resources. Potential impacts to water resources varied across projects and were categorized based on likely negative effects to or from water-related variables by project (Fig. 2) with a brief description of each amendment (Table 3).

Of the 49 amendment applications submitted, all but one amendment was approved by the BCEAO. There were no amendments approved between 2002 and 2005, a varied level of amendment approval for mining projects between 2006 and 2015, and a spike in amendment approvals beginning in 2016 (Fig. 3).

Both the Liberal and NDP provincial political parties were in power over the course of our study period. The Liberal government was elected in 2001 and mandated decisions under the BCEAO under two different premiers until 2017, at which time the NDP once again gained control (The Canadian Encyclopedia 2017). During these shifts in power, the Liberals held power for roughly 16 years while the NDP held power for approximately 3 years. Over their tenures in office, 19 of the 23 mining project certificates were approved under a Liberal government, whereas the remaining four were approved by the NDP. Twenty-five individual amendments were approved during the Liberal’s 15-year governing tenure, whereas 23 amendments were approved during the NDP’s 4-year governing tenure up to 2021. The BCEAO approved 42 amendments while the EAA (2002) was active, and 6 amendments after the enactment of the EAA (2018).

There were 10 mining projects that requested amendments with potential to impact water resources directly or indirectly, for a total of 20 unique amendments. Five (50%) of the mining projects applied for their first water-related amendment less than one year after being granted an EA certificate, with 50% of all water-related amendments being requested within three years of certificate approvals (median of 2.9 years; Fig. 4). The time between application and approval for each individual water-related amendment ranged from 6 to 502 days with a mean of 188 days. The number of water-related amendments per project varied from one to four (Table 3).

The use of language in project amendment documents was generally inconsistent, vague, and nonquantitative in nature. This trend was noted in both amendment applications from proponents and the subsequent BCEAO assessment reports of these applications. Both types of documents provided broad overviews of the criteria that were added, removed, or amended to the project certificates. Despite many of these documents being lengthy, there was a lack in numerical information or publicly accessible data used to reinforce claims and decisions made by proponents or the BCEAO (Table 4).

The categorization of amendments as simple, typical, or complex varied significantly in the process used by the BCEAO to assess each type of amendment, and their requirements for proponent applications of each type. A surprising finding was the use of “nonmaterial” in amendment categorization, an amendment type not explained in the amendment process guide (BCEAO 2016a) or defined in the EAA (2002) and EAA (2018). For example, amendment #1 for the Murray River Coal project was classified as a “nonmaterial amendment”, yet there were six physical project changes that were amended to the certificate conditions including the addition of new stockpiles for unsuitable materials, the realignment of a water discharge pipeline, and the relocation of a creek crossing (BCEAO 2018c). Some of the reasons given to justify that this amendment was nonmaterial in nature were that the changes were “largely within the assessment footprint area”, “no concerns [were] raised by First Nations groups regarding the proposed changes”, and “potential adverse effects” were addressed in the original EA certificate approval (BCEAO 2018c). The word nonmaterial is defined as “not of a physical nature” (Merriam-Webster n.d.); therefore, it is unclear why this term would be used in amendment assessment documents that outlines physical changes to mining projects. The 48 approved amendments across 14 mining projects were classified by the BCEAO as: seven nonmaterial, 18 simple, 20 typical, one complex, and two unspecified (Fig. 5).

The only amendment application that was not approved by the BCEAO within our research timeline was submitted over 10 years ago by the proponent, Taseko Mines Ltd. (BCEAO 2021b). The proposed Prosperity Gold-Copper Mine was a highly controversial project from the beginning (Lavoie 2019; Smith 2021). In 2007, the federal and provincial governments planned a joint EA review of the Prosperity project (Haddock 2012). However, after Taseko Mines’ proposed Kemess North Gold-Copper project was rejected by a joint assessment in 2008, Taseko objected to another joint review panel (Haddock 2012). The BCEAO then proposed two separate EA reviews of the Prosperity Mine (Mehdic et al. 2020) and granted a project certificate to the Prosperity Mine in early 2010, signifying project approval. The BCEAO’s approval has been accused of underestimating negative irreversible environmental impacts on water systems (Levy 2009; MacDonald et al. 2013; Selbie et al. 2013) and ignoring the strong opposition from the Tsilhqot’in Nation (Haddock 2012; Bhattacharyya 2013; Hamelin 2019; Lavoie 2019) whose “Aboriginal rights and title” (Constitution Act, 1982, s. 35) were affirmed in a 2014 landmark Supreme Court of Canada decision (Tsilhqot’in Nation v. British Columbia 2014 SCC 44, (2014) 2 S.C.R. 256).

Later in the same year, the Canadian Minister of the Environment rejected the project under federal EA law, stating that “the significant adverse environmental effects cannot be justified in the circumstances” (Canadian Environmental Assessment Registry Office 2010). Taseko Mines tried again three months later in 2011, and the project was federally rejected once again in 2014 due to potential for significant adverse effects (Aglukkaq 2014). Despite two federal environmental impact assessment rejections, the BCEAO continued to provide certificate extensions to this project over the course of 12 years until they allowed the certificate to finally expire on 14 January 2022, unofficially signifying the project’s demise. (BCEAO 2021b; Smith 2021; Heyman 2022). To continue to extend the certificate, the province had to specifically add an regulation to the EAA (2018) (Exemption Regulation No. 2), as the EAA (2002) (ss. 18(4a)) and EAA (2018) (ss. 31(4a)) both state that certificates can only be extended once for a maximum of five years. Given that the only unapproved mining project amendment (of 49) is due to federal legal blockades (and that the province specifically introduced legal tools to allow it to potentially approve this amendment in future; Smith 2021), this brings into question whether or not rejection of amendments is a real option that would be utilized by BCEAO.

The sheer number of mining project amendments being approved undermines the stringency of the issued certificate as well as the amendment application and review process. As stated in both the EAA 2002 (ss. 37(3)) and EAA 2018 (ss. 56(3)), “any amendment made or condition attached to an environmental assessment certificate is conclusively deemed to be part of the certificate, whether contained in or attached to it or contained in a separate document”. This living document characteristic to the certificate raises concerns that an original EA certificate can evolve throughout a project’s lifespan, while carrying the risk of drifting away from the conditions initially set out in the certificate. We posit that if mining project proponents believe with certainty that any post-certificate amendment they put forth will be approved (as the evidence suggests), it may be rational for them to plan to enter the EA process with one project description and then submit substantial alterations to the project as amendments after the fact. If it is not the intention of proponents to put forward an initial EA certificate application with a simultaneous objective of making future amendments, the high rate of amendments still brings into question proponents’ abilities to accurately predict uncertainties and project conditions.

Of the 48 total amendments across 14 mines, 42% showed potential for direct or indirect negative impacts on water. One example is at the Wolverine Coal Mine, where an amendment request (#1) sought permission to expand mining activities to increase overall production by 50% (Western Canadian Coal, 2005). Changes to water quality and aquatic life were predicted for the amendment request due to increased potential for metal leaching, particularly selenium, and acid rock drainage from increased overburden (Western Canadian Coal 2005). Permission was given at the same mine almost 15 years later through amendment #7, to incorporate an additional pit with predicted changes in surface water quality due to release of parameters of potential concern from waste rock dumps, coal storage areas, and from the storage of tailings (Conuma Coal Resources Limited 2019).

Another example, in the case of the Mt. Milligan Copper-Gold project certificate, the proponent held the following four water-use permits to operate their milling facility: surface water usage from King Richard Creek, use of direct precipitation onto the project area, water extraction from Meadows Creek water supply pond, and recycled tailings water from the tailings storage facility (TSF) (Stantec Consulting Ltd. 2020). Following a bathymetric survey of the TSF, the proponent determined that water volumes were critically low, forcing a shutdown of the milling facility. To address the issue, the proponent put forward their third amendment application to allow surface water withdrawals from the surrounding Phillip Lake and the Meadows Creek freshet. A year later in 2019, the project continued to experience water volume shortages, leading to further applications of amendments #4 through #6 to allow surface and ground water withdrawal for milling operations (Stantec Consulting Ltd. 2020). The proponent is currently conducting studies and investigations to find other viable water supply sources for the duration of the project. Clearly, the proponent did not accurately predict water shortage possibilities during the original EA certificate application, leading to multiple amendments requiring water extraction from the immediate environment. However, the use of high-quality science and monitoring in the EA process will be increasingly important with climate change impacts on water resources, which is already making future water supply data more difficult for engineers, hydrologists, and managers to predict (Milly et al. 2008).

Proponents have had the ability to request certificate amendments for the entire history of environmental assessment in BC (EAA 1996 (s. 12 and 13), EAA 2002 (s. 19), and EAA 2018 (s. 32)). However, it is unknown whether any explanation of the amendment process was publicly accessible prior to 2016, when the “Guidance for Certificate Holders” document was released (BCEAO 2016a). This document clearly stated the “EAO has considerable flexibility about the structure and design of the application review process”, most often for typical amendments (BCEAO 2016a). Furthermore, the BCEAO did not usually provide the explicit categorization (simple, typical, complex, etc.) in amendment assessments that were completed prior to 2016. The authors relied on published fee orders ($2,000, $10,000, or $50,000) for proponents corresponding to each amendment as a way to categorize amendments. Two amendments (approved in 2005 and 2012) were not categorized by the BCEAO, did not have published fee orders, and did not have enough relevant information in the amendment application or assessment for to assign a category, thus were left as “unspecified” in the analysis (Fig. 5). Both of these amendments were deemed to have potential impacts on water resources and once again, demonstrated that particularly prior to 2016, the BCEAO did not have a transparent, repeatable process to follow for project amendments, resulting in considerable inconsistencies in assessment methodology. A more detailed guidance document was released in 2020 to incorporate the new conditions for amending a project certificate under the EAA 2018 (BCEAO 2020a).

Given that the BCEAO is a provincial government agency, it is important to consider the implications of exchanges in power between political parties. As the decision-maker responsible for assessing the social, environmental, and economic impacts of proposed projects prior to their development, it is possible that direction given to the agency will change based on the mandate of the government in power. We found a record for number of amendment approvals in 2018, with 9 approved amendments. Although there was an influx of requests (and subsequent approvals) during the tenure of the NDP–Green coalition government, this may not be due to political environment. As mentioned previously, the EAA (2018), which received assent on 27 November 2018 and was enacted on 16 December 2019 (Government of British Columbia 2020) introduced higher fees (i.e., $5,000, $25,000, or $100,000) and additional steps to the amendment process (ss. 32(7) and ss. 32(8)). Despite this increase, these administrative fees pale in comparison to the multi-billion-dollar annual revenue for many mining corporations (Johnston 2021). However, the new legislation required that the BCEAO must “be satisfied that the applicable person, board, tribunal or agency referred to in that subsection sought to achieve, with respect to the amendment, consensus with participating Indigenous nations” (BCEAO 2020a). This additional step may cost extra funds and time as well as engender political complexities. While the added legal conditions and increase in amendment fees are not conclusive evidence, they likely contributed towards an explanation for the spike in amendments applied for and approved between 2016 and 2018, directly before the EAA (2018) was enacted.

Some level of public participation is a hallmark of EA processes, with experts in EA calling for modern laws to include robust provisions for public participation as well as open data (Sinclair and Fitzpatrick 2002; Gibson et al. 2016; Westwood et al. 2019), and better public engagement has been a focus for Canada’s recent revision of federal EA law (Expert Panel for the Review of Environmental Assessment Processes 2018; Government of Canada 2021).

Not only do amendments receive a less thorough and publicized review as EAs under BC’s process for mining projects, but we also found that the dialogue in most amendment documents was generally vague and nonquantitative in nature. For example, an amendment was approved to allow greater above ground stockpiling of acid-generating waste rock at the Fording River – Swift Project, in which the Ministry of Environment offered a response that stated the “proposed amendment is unlikely to negatively affect the receiving environment beyond what has already been assessed [for the certificate]” (BCEAO 2017). However, the department cited that this statement was conditional on a water treatment facility being installed at the site “on schedule” and water quality predictions not declining as a result of this installation (BCEAO 2017). The specific information regarding when the water treatment plant was supposed to be installed was not provided in the amendment, and penalties associated with failure to abide by this condition were also not listed. Without all the relevant information in one place, it is difficult for even the informed reader to evaluate whether proposed mitigation measures will be sufficient to prevent serious environmental harm. This is especially true in a context of declining trust where mining companies have recently received serious fines for polluting the environment and harming species at risk and fish habitat, (Allen 2019; Environment and Climate Change Canada 2021; Hosgood 2021; Wood 2021b) while not complying with the conditions outlined in approved project amendments. Teck Resources’ amendment application for the Swift Project was approved in 2017 with conditions that the water treatment facility be operational by 2018 (Teck Resources 2015); no facility was in operation as of May of 2021 (Teck Resources 2020).

A related concern is the inconsistency as to how amendment assessments were categorized as simple, typical, or complex. There were situations where amendments that caused relatively substantial physical changes to the project were categorized as “typical” instead of complex. For example, amendment #6 of the Wolverine Coal Mine was approved by the BCEAO (2020a), allowing the proponent to conduct “early works” such as land clearing, soil removal, and soil overburden storage in 34.6 ha of area outside of the original project area stated in the certificate. Amendment #6 was approved “in order to efficiently sequence future construction activities in the event that the Wolverine Mine amendment #7 is approved”, (BCEAO 2020c) which was approved several months later (BCEAO 2021c). The approval of amendment #7 allowed the Wolverine Mine to expand, opening another pit for ore extraction, and install subsequent infrastructure with likely direct and indirect effects on water resources (BCEAO 2021c). Despite the BCEAO stating in the review that amendment #6’s “early works” area would lie outside of the Wolverine project footprint and has the potential to result in adverse effects, it was categorized as a typical amendment instead of a complex amendment (BCEAO 2020c). For reference, a typical amendment is categorized by the BCEAO as a “material but limited change to the project” (BCEAO 2016a). Although working group sessions were held by BCEAO members and Indigenous participants, there was no public comment period held prior to the approval of amendment #6, which subsequently led to a significant mine expansion. It is particularly concerning that 13/20 (65%) of typical amendments with “material but limited” project changes, and 4/7 (57%) of nonmaterial (not of a physical nature) amendments, resulted in potential direct or indirect impacts on water resources. Most amendments potentially capable of harming public water resources were classified as “typical” by the BCEAO, in which public consultation only may be required, and there is “considerable flexibility” with how these are reviewed (BCEAO, 2016a). Furthermore, classifying only one amendment among 20 deemed likely to impact water as being “complex” may demonstrate leniency towards mining proponents and a lack of clear guidelines for amendment review processes with considerable variability for how amendments are categorized and subsequently assessed.

Overall, our findings that the majority of mining projects granted a certificate by the BCEAO were later approved for amendments, and that many of these are deemed likely to have negative effects on water resources, are worrisome. We express concern that post-certificate amendments may have been used by proponents to bypass the regular EA process, whether intentionally or unintentionally, to add or change project elements in a way that receives less public or scientific scrutiny. Amendments for mining projects in BC may present a case of “path dependency” in environment decision-making where an initial certificate decision sets precedent for mines to expand.

In terms of immediate recommendations, we encourage the BC government to ensure that all documentation related to amendments is written in clear and enforceable language and that proponents are required to give detailed quantitative descriptions and predictions of proposed changes or activities in amendment applications. We also recommend that the BCEAO develop, publish, and enforce standardized definitions of amendment complexity. We echo the recommendation of the Auditor General of BC (2016) that calls for regulatory language that includes measurable criteria, such as thresholds and timing, to be implemented in all future mining permits and amendments. These elements would allow the public to more easily identify amendments with which they seek to intervene or request additional information.

Our scope was limited to evaluating the potential impacts of mining project amendments to water resources in BC. However, mines and other natural resource extraction projects can impact social, economic, health, and all other biophysical valued components. Our study should be repeated for other types of projects, other valued components, and in other jurisdictions to evaluate if this trend of frequent post-certificate amendments is specific to mining projects in BC or part of a larger pattern in EA laws in Canada and worldwide.