Note: This post was prepared jointly with my colleague, Professor John Sinclair at the University of Manitoba.
A historically neglected but critical part of any assessment process is what happens after project approval to ensure the project is implemented in the manner envisaged during the assessment, to ensure adjustments are made to regulatory requirements in case predictions about project impacts turn out to be inaccurate, and to ensure we learn from past assessments to improve future assessments. We sometimes refer to these elements collectively as follow-up. It is important to note, however, that this term is often used in a more narrow sense to refer only to post-approval monitoring and reporting.
We conceive of the post-approval process as a process that would include the collection and reporting of information, but would also include evaluation, public reporting, and appropriate responses for the approved project and for future assessments. All too often in assessment processes, critical elements of follow-up are either neglected altogether or are left to project regulators or proponents without formal accountability and without ongoing coordination or transparency. This is not surprising given that historically participants have tended to consider the assessment process to be completed once the project decision is made. However, the cost of not paying adequate attention to this part of the process has been high.
Key for an effective follow-up program is that it has to track whether predictions made during the assessment turn out to have been accurate, whether mitigation measures are as effective as predicted, and whether terms and conditions are complied with and prove to be adequate. Effective follow-up requires the results of this analysis to feed into adaptive regulatory approaches for approved projects, and learning processes for future assessments. We have identified the following key elements of an appropriate legislative approach to follow-up:
- Clear and adequate monitoring and reporting requirements for project proponents
- A clear plan for engaging affected communities and the interested public in the design and implementation of follow up programs
- Appropriate public registry requirements with respect to follow-up
- Appropriate enforcement provisions to ensure compliance with terms & conditions of approval
- Mechanisms to ensure appropriate learning and clear responsibility to implement lessons learned through adaptive management of approved projects
- Mechanisms to ensure implementation of lessons learned for future assessments
- Cooperation on follow-up with federal regulators, and a clear allocation of responsibilities
- Cooperation with other jurisdictions involved in the life cycle of approved projects without delegating federal responsibilities.
What the Expert Panel Said About Follow-up
The Expert Panel made a number of important recommendations for better follow-up. Key among them are recommendations for improved transparency, such as the sharing of monitoring and reporting results with the public by means of a federal public electronic database. The Expert Panel also recommended enhanced compliance through better coordination among participating jurisdictions. Among the key conclusions and recommendations of the Expert Panel with respect to follow-up are the following:
- Baseline and monitoring data should be standardized and made available through a federal public electronic database (p.44).
- Decision statements should use outcome-based conditions, and the Act should contain a formal process for amending terms and conditions (p. 68).
- The process for amending conditions should be transparent and inclusive, and should allow for comments from the public (p.68).
- All monitoring and reporting results (including the raw data) and actions taken in response should be made available to the public through a federal public electronic database (p. 70).
- Indigenous groups and local communities should be involved in monitoring and follow-up programs (p. 70).
- An annual report on compliance with terms and conditions of approval for all approved projects should be published (p. 71).
- There should be clear powers to enforce, and the power to amend terms and conditions and to revoke approvals (p. 71).
- The Act should provide for jurisdictional cooperation on compliance, ensuring that the results are made public through the federal public electronic database (p. 72).
- The Expert Panel recognized the important role of the public in reporting alleged violations, whistleblower protection and independent oversight (p.72).
What Bill C-69 Says About Follow-up
A follow-up program is defined under section 2 of Bill C-69 to mean a program for verifying the accuracy of the impact assessment of a designated project and for determining the effectiveness of any mitigation measures. Follow-up programs are included in participant funding programs under section 75, and are mandatory for all assessments of designated projects. The Bill includes the power under section 112 to make regulations respecting the procedures, requirements and time periods relating to designing a follow-up program.
Section 64 provides for conditions with respect to adverse effects within federal jurisdiction. Such conditions include the implementation of follow-up, and where these are set out in a section 65 decision statement, proponents are required to comply with the conditions imposed. Under section 68, the Minister may amend a decision statement, including by adding, removing or amending a condition.
Sections 120 to 128 provide for the designation of enforcement officers and establish broad powers of inspection to verify compliance and prevent non-compliance. This would include the ability to verify compliance with any of the terms and conditions imposed under section 64, including the requirements of the follow-up program.
The internet site to be established under Section 105 would have to include a description or summary of the results of the follow-up program that is implemented with respect to a designated project. Project files under section 106 would have to be kept until the follow-up program is completed. The project files must include any records relating to the design and implementation of follow-up.
Law Reform Recommendations
The proposed elements of follow-up and compliance under Bill C-69 offer some of the key components of an effective approach, and include notable steps forward from CEAA 2012. In particular, it is commendable that follow-up programs would be mandatory for all approved projects, that the level of transparency with respect to the results of follow-up monitoring would improve under the Bill, and that there is a clear link between the terms and conditions of approval and the enforcement provisions. The Bill also includes a clear legislative power to amend the terms and conditions of approval, a power that could be exercised in response to monitoring results that demonstrate that predictions made about impacts, or about the effectiveness of mitigation measures, were wrong.
However, past experience suggests that the improvements proposed in the Bill still fall far short of what is needed to ensure appropriate actions are actually taken after assessed projects are approved and implemented. Among the key missing pieces in the Bill are the following:
- There should be a clear responsibility to amend terms of approval in the event predictions about impacts or mitigation turn out to be wrong, and the Bill should include legislated criteria for when and how the power to amend the terms and conditions for approval is to be exercised. Decades of experience with EA shows that in the absence of clear responsibility and criteria, the mere power to act on the results of follow-up will not be enough.
- While there is an obligation to publish results of follow-up in some form, there is not enough clarity in the Bill that all data collected on the actual impacts of an approved project will be publicly accessible. The Bill should clarify that all data collected are public, and that all data and all documents prepared will be permanently publicly accessible.
- There is no clarity on how inter-jurisdictional cooperation will be achieved in a way that will ensure clear accountability for implementing the follow-up program, sharing the results, and ensuring appropriate action in response. The Bill should include requirements for the Agency to negotiate implementation agreements with any jurisdiction that takes on follow-up responsibilities, with the goal of ensuring full transparency and accountability.
- Federal authorities should have clear legislative responsibility to carry out their regulatory or other duty, power or function with respect to approved projects in such a manner as to ensure the effective implementation of the follow-up programs, full transparency of the results through a central federal registry, and appropriate action in response.
- There should be clear legislative provisions that require the active engagement of affected Indigenous and local communities in the implementation of follow-up programs, including monitoring programs for any impacts of particular concern to an affected community, regardless of which authority oversees the implementation of the follow-up program.
- There should be a clear legislative responsibility for the Agency to track compliance with monitoring and reporting obligations regardless of the lead authority, to report annually on resulting conclusions about compliance and about the lessons learned about predictions made during the assessment, and about the resulting actions in terms of adaptive management of the approved project.
- There should be a clear legislative accountability for the Agency to ensure that any lessons learned about the accuracy of predictions made and about the effectiveness of mitigation measures are reflected in any future assessment where those lessons may be relevant. Reviewing and comparing the analysis carried out during the assessment against actual impacts tracked during the follow-up stage and sharing the results of this analysis with the public and in future assessments will be a critical part of this responsibility.
Without the additional elements outlined in this post, there is every reason to conclude that the poor performance of follow-up and other related post-approval efforts under the federal assessment process will continue. The spotlight tends to shine on proposed projects for the duration of the project assessment. After that, it is frequently difficult for affected communities to get the attention of regulators and overcome the inertia of proponents and regulators, who are set on proceeding with the project as approved, rather than on making appropriate adjustments in light of the results of post-approval monitoring.
It is critical to remind ourselves that until we see the monitoring results during the implementation of the project, our conclusions about the benefits and impacts of projects are largely based on predictions, which in some cases can amount to best guesses based on limited information. Data collection during follow-up can be the first time real scientific data is available to check the predictions made during the assessment. Rigorous science during the implementation stage is critical if we are to have any hope of realizing the goal of the proposed new assessment process, which is to ensure that approved projects actually contribute to sustainability, that they are in fact in the public interest, and that we have made all reasonable efforts to maximize benefits and minimize impacts and risks. A credible, rigorous and accountable follow-up and compliance system can also serve to motivate more realistic predictions during the assessment stage, and, critically, can and should improve the predictive capacity of assessments over time.
Professor, Schulich School of Law