By T. Murray Rankin, Q.C.
The question of whether the federal and provincial moratoria that now apply to offshore oil and gas exploration in the waters of coastal British Columbia should be lifted is perhaps the most controversial issue of our time.
On the one hand, the estimated value of the offshore resources is staggering. For example, in 1998 the Geological Survey of Canada estimated that the Queen Charlotte Basin could contain up to 9.8 billion barrels of oil and 25.9 trillion cubic feet (TCF) of natural gas. The Tofino and Winona Basin likewise might account for 9.4 TCF, and the Georgia Basin (onshore and offshore) up to 6.5 TCF of natural gas. The value of this resource could be as much as US $55 billion for oil and US $40 billion for gas. If accurate, these projections would make offshore oil and gas the second largest industry in B.C., behind tourism at US $8.3 billion annually but ahead of forestry (US $2.2 billion) and all other sectors of the economy.
In the February 1, 2004 speech from the throne, the provincial government stated that it wants the industry to be "up and running" by 2010 - less than six years from today. The province believes that technology has come a long way. Many of the earlier known risks can now be minimized if not avoided completely. There are new and safer ways of conducting offshore activities. "First Nations' rights and interests" will be addressed and First Nations' support obtained. In a similar vein, the Vancouver Sun opined on January 15, 2004, that it is "time to stop stalling on offshore energy". It applauds the new federal natural resources minister, John Efford, for his apparent endorsement of the project. A Pacific Offshore Energy Association has been created chaired by the former mayor of Port Hardy, Ross Hellberg, who states: "People don't realize the amount of jobs offshore energy will bring." 1
On the other hand, environmental organizations such as the Living Oceans Society and the David Suzuki Foundation have been outspoken in their opposition to lilting the moratoria. They assert that research demonstrates that "the wide range of social, ecological and economic concerns related to the offshore oil and gas industry outweigh any potential benefits".2 They also point out that the dramatic economic figures remain unproven. The First Nations in coastal B.C. have also expressed their opposition in no uncertain terms. UBC professor Mary Lynn Young wrote in The Globe and Mail on January 5, 2004, that there will be very few new B.C. jobs in the start-up phase and, even in the best-case scenario, that it would take more than 15 years to develop the industry, with any jobs that were created postponed until long into the future. Environmentalists have noted that unlike Hibernia, which is located more that 300 kilometres off Newfoundland, the proposed B.C. oil and gas development would be located as close as 20 kilometres from shore and that any oil spills would destroy herring spawn areas and important fish habitat in as little as a few hours. They also note that the financial incentives that were provided in Atlantic Canada - grants, tax exemptions and loan guarantees mean that the amount of money invested in creating whatever employment results seems unwarranted. They also note that there are significant gaps in baseline data for species in the Queen Charlotte Basin and point out the serious impacts from seismic testing on fish species, which include mortality of fish with swim bladders, disturbance to the behaviour of fish and marine animals and the possible reduction of fish catch rates. Queen Charlotte Sound and Dixon Entrance are a migration corridor for millions of Canadian juvenile and adult salmon, and this region is said to account for over half of the landed value of all commercial fishery products in B.C.
This article canvasses, in necessarily cursory form, the three key dimensions of the framework of environmental law that underpin any proposal for offshore oil and gas exploration and development in British Columbia. Federalism and Aboriginal rights are the twin components of Canadian constitutional law that are central to this issue. They in turn are reflected in the third important dimension, the overlapping statutory law of environmental assessment.
FEDERALISM
Aboriginal peoples may have regulatory entitlements either flowing from a free standing right to self-government or because of their Aboriginal title, which would include the right to make decisions about the use of land that is subject to Aboriginal title: Campbell v. British Columbia (Attorney General), 2000 BCSC 1123. In addition, resource rights may include a regulatory component: R .v Nikla, [1996] I.S.C.R 1013. However, this section will consider solely the division of legislative authority over the offshore as between the federal and provincial governments. As the very existence of both federal and provincial moratoria demonstrates, both levels of government assert a jurisdiction to make laws in relation to some aspect of offshore oil and gas initiatives. The twin prohibitions underscore the federalism dimension of the legal framework for offshore exploration. Under Canadian federalism, the federal and provincial governments each have been assigned, by the Constitutional Act, 1867, specified classes of subjects over which they are entitled to legislate. This "division of powers", of course, does not neatly fit within the modern world regulation; for example, the field of environmental protection was largely unknown in the mid-Victorian era, when the old British North America Act was enacted by the British Parliament. Section 91 of that Act sets out the federal heads of lawmaking power, while s. 92 outlines those lying within the provinces. Many specific matters fall under each of these heads of power. The heads of power are set out in quite general terms, and the jurisdiction over offshore natural resources is not explicitly enumerated as falling within either government's jurisdiction.
The Territorial Sea and the Continental Shelf
Insofar as the projects contemplated would exploit natural resources in the seabed and subsoil under Canada's territorial sea or beyond (i.e., in the continental shelf) it is only the federal government that has jurisdiction over them. This fact has been made clear by the Supreme Court in Reference re: Ownership of Off Shore Mineral Rights (British Columbia), [1967] S.C.R. 792.
Whereas Canadian territory includes the territorial sea - which extends for 12 nautical miles beyond the low water mark of the outer coastline3 - these waters and the seabed and subsoil below them lie outside provincial boundaries. Thus, it is the Canadian government that owns the land beneath the territorial sea, and only it can authorize exploration and exploitation of its resources: B.C. Offshore Mineral Rights Reference at pages 816-817.
Beyond the territorial sea lies what is called at international law the "continental shelf". It is not owned by any national government. However, under the 1958 Geneva Convention, sovereign coastal states do hold exclusive exploration and exploitation rights over the continental shelf. Since it is only Canada, and not B.C., that is a sovereign state and a signatory to the Geneva Convention, the Supreme Court reasoned that Canada alone holds the rights and obligations enumerated in that convention: B.C. Offshore Mineral Rights Reference at page 821. Beyond the territorial sea is the "exclusive economic zone", which gives Canada sovereignty over, although not ownership of, the natural resources, from the baseline to a distance of 200 nautical miles out to sea. The federal government has property rights and jurisdiction over the territorial sea and seabed, being 12 nautical miles offshore from the "baseline". This baseline is a line drawn along the coastal low water mark and across the indents in the coast. Waters inside this area are termed "the inland marine zone" and there, where most but not all of the oil and gas resources are likely to be located, may be subject to provincial jurisdiction. Within the territorial sea (12 nautical miles out from the "baseline") Canada has absolute ownership of the seabed as well as legislative jurisdiction. In the exclusive economic zone, Canada has sovereignty but not ownership.
Turning to the formal division of powers in the Constitution Act, 1867, Canada's jurisdiction over the territorial sea is explained by s. 91 (1A ) and the residual s. 91 "peace, order and good government power" (the "POGG power"): B.C. Offshore Mineral Rights Reference, at page 816. Section 91 (1A) gives Canada jurisdiction over public property, while the POGG power allows the federal government to legislate with respect to matters not falling under any of the specific heads of power where such laws further the peace, order and good government of the country as a whole. The federal government's legislative authority with respect to the continental shelf is based only on the POGG power, since the seabed and subsoil beyond the territorial sea are not Canadian territory.
Internal Waters
Ocean waters within the low-water mark of B.C.'s outer coastline do not count as the territorial sea. Thus, if offshore oil and gas projects are ever located within these internal ocean waters, they will be subject to joint jurisdiction. The provincial government's ownership of the seabed and subsoil below internal waters was confirmed by the Supreme Court of Canada in Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas (Georgia Strait Reference, [1984] 1 S.C.R. 388 (the "Georgia Strait Reference").4 A majority of the court held that as of 1866, the western boundary of the Colony of British Columbia was the Pacific Ocean off the west coast of Vancouver Island, and that ocean waters east of that boundary belonged to the colony. The province retained the same boundaries upon joining Confederation, and thus the seabed under these internal waters belongs to it, not the federal government: Georgia Strait Reference at pages 426-427, The oil and gas reserves seem more likely to be found within what has been termed this "internal" or "inland" sea of B.C.
In constitutional law, a clear distinction must be drawn between ownership and jurisdiction. In the Georgia Strait Reference, the Supreme Court merely ruled on ownership of the internal ocean's seabed and subsoil. It did not explore the question of which s. 92 heads of power authorize B.C. to legislate over these submerged lands. However, the two most obvious sources of provincial jurisdiction are ss. 92 (13) and 92A. Section 92 (13) grants the provinces legislative power over property and civil rights, whereas s. 92A permits them to legislate with respect to, among other things, the "exploration for non-renewable natural resources in the province" and the "development, conservation and management of non-renewable resources. in the province." Thus, at the very least, B.C. must have the power to assign exploration and exploitation rights with respect to resources located in the internal ocean's seabed and subsoil. In addition, the Supreme Court of Canada last year unanimously reaffirmed that it is constitutionally permissible for a validly enacted provincial statute of general application to incidentally affect matters coming within the exclusive jurisdiction of Parliament: Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55.
However, the federal government would also have jurisdiction over offshore oil and gas projects located in internal waters. Its authority is more indirect, stemming from the following heads of power:
As a result, should any offshore oil and gas projects be undertaken in internal waters, the proponents would be subjected to the authority of at least two levels of government. The result could be overlapping legislation i.e., two valid laws regulating the same thing or activity, each on the basis of a different head of power. Where this occurs, the courts generally allow both laws to coexist. Only if there is a truly unavoidable conflict between the two will they uphold one to the exclusion of the others. Under what is known as the "paramountcy doctrine", it is the federal law that prevails in this circumstance.
Increasingly, however, the federal and provincial governments have succeeded in avoiding turf battles waged in courtrooms, Instead, the executive branches enter into power allocation or sharing agreements. These agreements are the product of what has been termed "co-operative federalism", and one example of this approach, discussed below, is the Canada British Columbia Agreement for Environmental Assessment Cooperation. Under this agreement (akin to those the federal government has reached with many other provinces), both levels of government attempt to harmonize their environmental assessment processes so that a given proposal is subjected to a "single window" review process.
Co-operative Federalism
If offshore energy projects proceed, we can expect federal-provincial co-operation even where, as a matter of strict constitutional law, only the federal government has legislative jurisdiction over the activity. For example, Newfoundland and Nova Scotia have both entered into agreements with the federal government pursuant to which both have a say in and the opportunity to profit from the exploitation of offshore resources.6 The Canadian government agreed to share power and revenues in this key field, even though the Supreme Court explicitly reconfirmed in Reference re: Seabed and Subsoil of the Continental Shelf Offshore Newfoundland (Hibernia Reference), [1984] 1 S.C.R. 86 (the "Hibernia Reference"), that Canada holds the exclusive right to explore and exploit the continental shelf (at page 127). Thus, it seems reasonable to expect that the federal government would take the same approach if ever it lifted its moratorium on offshore oil and gas exploration off the coast of British Columbia.
Concluding Remarks on Federalism
Regardless of the exact location of proposed offshore energy projects, it seems likely that the legislative framework would involve both the federal and provincial governments. Given the likely complexity of regulation, lawmaking will no doubt be achieved co-operatively, so as to maximize streamlining and minimize the need for preliminary disputes over jurisdiction.
ABORIGINAL RIGHTS AND TITLE
The Aboriginal-rights component of the Canadian Constitution has implications for stakeholders that are potentially as significant as those arising from considerations of federalism. This is because any move to allow offshore oil and gas exploration or development may well be challenged in court on the basis that they infringe the Aboriginal rights and title of First Nations in the area.
Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal rights, including Aboriginal title and treaty rights. In the context of offshore drilling, it is fishing rights, as well as transportation, cultural and spiritual activities, that are most likely to be at issue. The test for establishing these rights will first be sketched briefly; then, consideration will be given to how infringement might be justified, following which the practical implications of Aboriginal rights claims for project proponents will be outlined.
Rights
The courts have elaborated the test for determining whether an Aboriginal right to be involved in an activity exists.7 The activity in question must be found to be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right. The Supreme Court of Canada has fleshed out this test by stating that the practice must be one that the Aboriginal group in question engaged in prior to contact with European settlers. Also, the practice must have continued into the present, though it need not have been carried out constantly over the years and need not have retained its exact "pre-contact" form. The practice need not be unique to the claimant group, but it must be something central to the particular Aboriginal culture.
Fishing has been recognized as an Aboriginal right, and the courts have specifically included commercial fishing rights as an Aboriginal right.8 Thus, an off-shore oil and gas project might well be found to interfere with an Aboriginal fishing right if it is located in waters where an Aboriginal fishing right is exercised and in a manner that potentially threatens fish habitat.
Title
Aboriginal title is also protected by s. 35 of the Constitution Act, 1982. Again, it is the courts that have elaborated the test for determining whether an Aboriginal group holds title to a given territory.9 First, the claimant group must have occupied the territory at the time the Crown asserted sovereignty over the land in question; for B.C. territory, that date is 1846.10 Second, although the use of the land pursuant to Aboriginal title is not to be restricted to traditional uses, such use must not destroy the basis of the Aboriginal connection to the land. Third, the occupation must have been exclusive. Thus, the claimant group must demonstrate an intention and capacity to retain exclusive control of the land though this requirement does not exclude the possibility that other Aboriginal groups or even settlers were also present on and making use of the territory at issue. Because Aboriginal title is a right to exclusive use and occupation, locating offshore oil and gas projects on waters included within Aboriginal territory could constitute an interference with that title.
A historic claim for Aboriginal title to the seabed is currently being made by the Haida First Nation as part of its claim to Haida Gwaii. In the treaty process, some First Nations have also made title claims to ocean waters. For example, the Nuu-chah-nulth Tribal Council, consisting of several First Nations located on the west coast of Vancouver Island, initially asserted a claim as part of the treaty process. Their asserted territory was claimed to include the waters beyond a specific portion of the shoreline up to the furthest point where land can still be seen from the ocean. To date, however, the federal and B.C governments participating in the treaty process have refused to recognize Aboriginal title claims to ocean territory.
Justification of s. 35 Infringements
The federal and provincial governments are both bound by s. 35. Accordingly, an infringement might occur where either government approves an offshore oil and gas project that (a) jeopardizes the fish supply which an Aboriginal group has the constitutional right to fish or that (b) is located in waters subject to Aboriginal title. However, there remains the possibility that a government can justify the infringement of s. 35, pursuant to a test elaborated by the Supreme Court of Canada.11 It is this test that will next be considered.
First, the government would have to demonstrate that the infringement occurs pursuant to a valid legislative objective. The courts have provided little additional guidance on this requirement to date. A conservation measure certainly would represent a valid objective: Sparrow at page 1115. However, conservation would obviously not be the objective underlying the approval of an offshore energy development project. The Supreme Court has made sonic allusions to the fact that the pursuit of economic development objectives might justify the infringement of an Aboriginal right12 or title.13 However, this suggestion is most tentative and, furthermore, is open to strong criticism.14 It must also be kept in mind that precedents in this domain are often of limited assistance, as each case will be judged on its own facts: Sparrow, at page 1111.
If it is concluded that there is a valid objective underlying the approval of an impugned project, the court will then ask whether the approval was given in a manner consistent with the government's fiduciary obligation toward the Aboriginal claimants. The courts have characterized the Crown-Aboriginal relationship as being trust-like in nature.15 The Supreme Court has refrained from setting a rigid list of requirements that must be satisfied pursuant to the Crown's fiduciary duty. However, the following possible obligations have been identified in the case law and would likely apply where the government needs to justify a s. 35 violation resulting from its approval of an offshore energy project:
Concluding Remarks on Aboriginal Rights and Title
There is a very strong chance that offshore oil and gas initiatives will trigger lawsuits by First Nations claiming a violation of as Aboriginal right or title. Indeed, challenges have already been brought against project certificates issued in B.C. following environmental assessments: see the Huckleberry Mine case and Tsay Keh Dene Band v. British Columbia, [1997] B.C.J. No. 1482. If it were too late to do so, the claimants would probably seek an injunction with respect to such projects. Where a claim has merit, it is far from clear what the outcome would be. Consequently, project proponents should assess the risk that their projects might lead to a s. 35 violation. Where this risk is real, project proponents should enter into dialogue with the relevant Aboriginal group(s) at an early stage, with the hope of coming to an amicable understanding. So-called "Impact and Benefit Agreements" ("IBAs") have often resulted from such negotiations. In fact, consultation with affected Aboriginal peoples may already be a legal requirement under environmental assessment legislation, as will be discussed below.
If coastal First Nations negotiate self-government treaties with the governments of Canada and B.C., proponents seeking to undertake offshore drilling within the lands identified in one of these treaties may well need to obtain formal approval from First Nation governments. This is suggested by the Nisga'a Treaty, B.C.'s first Aboriginal self-government agreement and a likely model for future treaties.19 The Nisga'a Treaty specifies that projects undertaken on Nisga'a lands are to be subjected to that government's environmental assessment ("EA") process. Indeed, if the B.C. and federal governments agree (assuming that both also have jurisdiction to conduct an EA), the Nisga'a EA could well be the only one conducted on behalf of all governments.
ENVIRONMENTAL ASSESSMENTS
Were the offshore moratoria lifted and exploration to be proposed, the aspect of the legal framework with perhaps the greatest immediate impact would likely be the law pertaining to environmental assessment. Federal and provincial legislation now governs EA procedure: see the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (the "CEAA") and the recently revised B.C. Environmental Assessment Act, S.B.C. 2002, c. 43 (the "BCEAA").
Application of EA Legislation to Offshore Oil and Gas Projects
Offshore oil and gas projects fall under both the federal and provincial EA statutes. Part 4 of BCEAA's Reviewable Projects Regulation, B.C. Reg. 276/95 (the "Regulation"), defines an "off-shore oil or gas facility" and deems reviewable any such new facility as well as certain modifications to such facilities. The regulation, therefore, purports to establish a blanket EA requirement for projects involving the construction of an offshore facility.
However, in actual practice, exploration does not usually involve facility construction, Rather, a drilling company usually contracts for a seismic survey to be conducted from a drilling ship or semi-submersible, Thus, in practical terms, most oil and gas exploration projects would not trigger an environmental assessment under the regulation. However, despite this the minister of sustainable resource management may still exercise discretionary power to designate a project as reviewable, pursuant to s. 6 (1), which provides as follows:
Even though a project does not constitute a reviewable project under the regulations, the minister by order may designate the project as a renewable project if
(a) the minister is satisfied that the project may have a significant adverse environmental, economic, social, heritage or health effect, and that the designation is in the public interest, and (b) the minister believes on reasonable grounds that the project is not substantially started at the time of the designation.
The CEAA and its accompanying regulations include provisions that would likewise trigger an EA for proposed offshore oil and gas projects. The most important one is in the Law List Regulations, SOR/99-330. Schedule 1, Part 1 identifies provisions of the Fisheries Act that confer powers, duties or functions on the Governor in Council and minister of fisheries and oceans that cannot be exercised without the prior completion of an EA. This requirement is stipulated by paras. 5 (1) (d) and 59 (f) jointly of the CEAA. The Fisheries Act provisions most likely to trigger an EA requirement in the case of offshore oil and gas projects are ss. 35 (2) and 37 (2).20 These provisions would likely even capture exploration projects conducted by means of seismic surveying. It is noteworthy that the critical definition of "federal lands" in the CEAA includes "the internal waters of Canada, the territorial sea of Canada, and the exclusive economic zone of Canada, and the continental shelf of Canada".
Section 5 (1) (b) of the CEAA might also trigger a mandatory LA for offshore oil and gas projects. It mandates EAs where the federal government is providing financial assistance to the projects.
Finally, as is the case with the provincial legislation, the CEAA confers upon the minister of the environment a residual discretion to order an EA. Section 48 provides that the minister may do so for any development project in Canada's territorial sea when he or she is "of the opinion that the project may cause significant adverse environmental effects".21
Jurisdiction
As is noted above, the regulation enacted pursuant to the BCEAA purports to bring all new oil and offshore gas facilities within the statute's ambit. However, the federalism analysis set out earlier confirms that B.C. in fact has no jurisdiction over projects taking place in Canada's territorial sea or beyond. Thus, it seems that to the extent that the regulation purports to deem these projects reviewable, the legislation might well be ultra vires the provincial government. Equally questionable would be the validity of minister-ordered EAs for exploration projects not covered by the regulation.
Nevertheless, B.C.'s asserted blanket jurisdiction over offshore oil and gas facilities appears not to have been challenged by the federal government. As mentioned earlier, the two levels of government have agreed to co-operate on EAs where one is mandated by both governments' legislation. The Canada-British Columbia Agreement for Environmental Assessment Cooperation (2003) (the "agreement") establishes the concept of "lead party'" in the following way:
12. (1) The Lead Party for the purposes of cooperative environmental assessments will generally be determined as follows:
1. Canada will be the Lead Party for proposed projects on federal lands where Canada has an environmental assessment responsibility; 2. British Columbia will be the Lead Party for proposed projects on lands within its provincial boundary, not covered under paragraph (a), where British Columbia has an environmental assessment responsibility; and
3. If a project is located on both federal and provincial lands and both Parties have an environmental assessment responsibility, the Lead Party will be determined by mutual agreement of the Parties.
Accordingly, the application of the agreement to offshore oil and gas exploration and development is far from clear. That being said, the federal government already participates in EAs under the B.C. legislation, and the legal requirements of federal legislation must still be satisfied by proponents. Ultimately, therefore, project proponents must obtain the approval of both governments. At a more practical level as well, the Canadian Association of Petroleum Producers ("CAPP" ) would likely not advise its members to undertake a drilling program if, at the conclusion of whatever EA process is established, they were unable to obtain the necessary authorizations from both governments. They have consistently sought a clear and comprehensive regulatory scheme in this regard.
Assuming there is no challenge to B.C.'s authority to carry out EAs for all offshore energy projects (or assuming that the federal government delegates to provincial agencies the power to conduct them22), such projects will normally be assessed under the B.C. legislation. Accordingly, it is the BCEAA that will be the focus of the discussion below. After briefly outlining the provincial scheme, we will turn to a few key considerations that arise from the CEAA.
The BCEAA
It is the proponent of a project who must set the LA process in motion by applying to the Environmental Assessment Office (the "EAO") for a project's approval. The precise requirements in the application are determined by the executive director of the EAO. If a project is referred to "the ministers" (the minister of sustainable resource management, the minister of water, land and air protection and the responsible minister - here, presumably the minister of energy and mines), they must issue an "environmental assessment certificate" (with any conditions attached that they deem necessary), refuse to issue a certificate or order that the project be subjected to further review (s.17(3)). In approving the project, the ministers may attach any conditions to the certificate they deem necessary. These conditions might pertain to the construction of the project, as well as its operation, modification, dismantling and/or abandonment. In particular, the certificate holder might be obliged to monitor the effects of the project and compare these with those that were anticipated.
Brief comments on the participation of First Nations and the general public are warranted, Under the previous EA regime, there was a very important "project committee", which had to include in its ranks "representatives of any First Nation whose traditional territory includes the site of the project or is in the vicinity of the project". Furthermore, the application was previously required to address project effects (s. 7(2) (f)) that included not only environmental, economic and health effects, but social, cultural and heritage effects as well. Finally, the application also required the proponent to identify First Nation outreach and consultation activities already undertaken and planned (s. 7(2) (k) and (l)), meaning that the EAO expected proponents themselves to solicit Aboriginal participation. Therefore, participation in the EA by potentially affected Aboriginal peoples was of critical importance. Although the legislation stopped short of requiring that the project proponent and First Nations reach a consensus, it was in their interest to do so, As is noted above, failure to reach agreement at this preliminary stage could generate the high costs, delays and rancour of litigation. It is unclear what the new, "more flexible" EA process will provide in this regard.
The CEAA
Perhaps the most important substantive (as opposed to procedural difference between the CEAA and the provincial legislation is the provision of guidelines for deciding whether a project merits approval. Whether the decision follows a mere "screening" or a more in-depth "comprehensive study", the responsible federal authority must, taking into account the mitigation measures that he or she considers appropriate, decide whether the project is likely to cause "significant adverse environmental effects". This includes not only the impact on the plant and animal ecosystem, but also the impact on
health and socioeconomic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes by Aboriginal persons, or on any structure, site or thing that is of historical, archeological, paleontological or architectural significance.
(definition of "environmental effect", found in s. 2)
If significant adverse effects are not anticipated, the responsible authority may exercise the power or duty he or she has to permit the project to be carried out. The authority must also ensure the implementation of any mitigation measures that are considered necessary. If significant adverse effects are anticipated, the responsible authority must decide whether these can be justified in the circumstances. If so, approval can be given, but otherwise it cannot be (see the stipulations in s. 20(1) for screenings and s, 37(1) for comprehensive studies). Thus, the federal authorities are somewhat more constricted in their decision making (though, of course, even these instructions leave ample room for personal judgment.
The CEAA also sets out some information requirements that the BCEAA does not mandate for all project applications or reports. Screenings and comprehensive studies alike must include an assessment of the proposed project's cumulative environmental effects (s. 16(1)(a)). Comprehensive studies also require consideration of (a) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of these alternatives; (b) the need for and requirements of a follow-up program in respect of the project; as well as (c) whether renewable resources that will likely be in heavy demand for the project will be able to meet present and future needs (s. 16(2)). The federal legislation makes no greater provision for Aboriginal and public participation in the EA process than does the BCEAA.
CONCLUSION
How this will all play out, of course, should offshore oil and gas exploration and development ever be subjected to environmental assessment, remains to be seen. At the provincial level, an offshore oil and gas team has been established, with a mandate "to enable offshore oil and gas development to occur in British Columbia in a scientifically sound and environmentally responsible manner". The February 11, 2003, throne speech outlined the provincial government's direction, stating: "By 2010, your government wants to have an offshore oil and gas industry that is up and running, environmentally sound and booming with job creation."
At the time of writing, the new federal minister of energy and resources, the Honourable John Efford, is quoted as seeing no major obstacles to offshore drilling, citing the experience in Atlantic Canada.23 The minister of the environment, the Honourable David Anderson, is less enthusiastic about lifting the federal moratorium. A federal panel chaired by Roland Priddle is conducting public hearings in B.C. communities to review the federal moratorium, and a science panel chaired by Dr. Jeremy Hall is "to identify gaps in scientific knowledge". Although discussions are taking place with Aboriginal leaders and among various governments, the future of offshore oil and gas exploration and development remains shrouded in uncertainty.
