Monitoring and Enforcement of Certificate Conditions and Commitments

The EAO’s oversight of certified projects is not sufficient to ensure that potential significant adverse effects are avoided or mitigated.

– BC Auditor General (2011)⁴³⁶

Overview of BC Law

A proponent’s legal obligations under an EA are provided as either conditions or commitments.

Conditions, which address procedural issues common to every project, are attached the EA Certificates. Once an EA Certificate has been issued, all authorized activities must be carried out in accordance with these conditions.⁴³⁷ Most EA Certificates have approximately ten conditions. These commonly include: the requirement to adhere to the details of the application, compliance reporting requirements, duration of the Certificate, and reasons for their suspension, cancellation or amendment.⁴³⁸

Commitments, on the other hand, are intended to address project-specific issues raised by the working group and others.⁴³⁹  These are included in a “Table of Commitments”, often prepared by the proponent and appended to the EA Certificate.⁴⁴⁰ There are no legal requirements guiding proponents in developing these commitments.⁴⁴¹ Thus, the commitments are often criticized for:⁴⁴²

• being qualified as “where feasible”, “where possible” and “where economically feasible”;
• using vague or unenforceable language to avoid verification and measurement;
• lacking clarity on timing obligations; and
• lacking clarity on how decisions will be made on unresolved issues.

Enforcement is required to ensure EA conditions and commitments are upheld. This includes four types of follow-up processes: monitoring, evaluation, management and communications.⁴⁴³

Effective follow-up programs have several benefits that can help both the present and future projects – including the ability to:⁴⁴⁴

• monitor whether expected impacts materialize;
• respond to unanticipated impacts;
• take advantage of unexpected opportunities to enhance environmental outcomes;
• learn from experience;
• adapt to post-EA changes in project design, project operating characteristics and environmental knowledge; and
• manage the risk and uncertainty involved in predicting the future impacts of human activity on complex and dynamic environmental and social systems.

In BC, if the Minister considers that the project is not being carried out, constructed, operated, modified, dismantled or abandoned in accordance with the EA Certificate, he or she may order that the project cease until it does so comply, or that the proponent takes measures to mitigate the effect of the non-compliance within a specified time frame.⁴⁴⁵ EA Certificates may also be suspended, cancelled or amended where the proponent is in default of a requirement under the Certificate, a Supreme Court order, or convicted of an offence under the EA Act.⁴⁴⁶

Issue

Although BC law provides some recourse for incidents of non-compliance, it fails to require the necessary follow-up plans and actions to identify those incidents. The BC Auditor General has criticized the EAO for failing to evaluate the effectiveness of EA mitigation measures to ensure that the conditions and commitments are being met.⁴⁴⁷ This raises serious concerns about the implementation of EA commitments.

Recommended Solutions

Require monitoring plans for all potential adverse effects

[Tags: EA; Monitoring Plan; EA Certificate; Conditions; Commitments]

Without some formalized system of follow-up to an EA,                                                                                                         the process risks being nothing more than a pro forma exercise designed to secure project implementation rather than an environmental management tool                                                                                     for mitigating impacts, enhancing intended benefits & contributing to sustainability.

– First Nations Energy and Mining Council (2009)⁴⁴⁸

BC law does not require monitoring plans to assess compliance with EA conditions and commitments.⁴⁴⁹ As recommended by BC’s Auditor General, post-certification monitoring responsibilities should be clearly set out, along with compliance mechanisms for each commitment.⁴⁵⁰ As the most directly affected by proposed activities, local communities and First Nations should be directly involved in developing and implementing monitoring plans.⁴⁵¹

The importance of requiring monitoring plans is recognized in several jurisdictions. In Nova Scotia, the EA must include a program to monitor the environmental effects during construction, operation, and abandonment stages of a project.⁴⁵² In Manitoba, the EA must include a description of the planned monitoring of efforts to mitigate adverse environmental impacts.⁴⁵³ In Nunavut, the EA must include the monitoring program that the proponent proposes to establish, or that should be established, for ecosystem and socio-economic impacts.⁴⁵⁴ In Alberta, the EA must include plans to monitor both predicted environmental impacts and proposed mitigation measures.⁴⁵⁵

Require mandatory follow-up programs

[Tags: EA; Monitoring; Enforcement]

Unlike BC, many jurisdictions have enacted laws that mandate follow-up programs – for example:

• Under CEAA 2012, an EA must take into account a project’s follow-up program.⁴⁵⁶ Where follow-up plans are developed, the regulatory authority has broad powers to ensure their implementation.⁴⁵⁷
• Under the Mackenzie Valley Resource Management Act, follow-up programs must be undertaken to evaluate the soundness of the EA and the effectiveness of the mitigation or remediation measures imposed as conditions of the EA approval.⁴⁵⁸
• In the Northwest Territories, environmental agreements signed for the Ekati, Diavik and Snap Lake diamond mines establish environmental monitoring agencies / boards whose mandates include monitoring to verify the accuracy of the EA and the effectiveness of mitigation measures.⁴⁵⁹

Follow-up is also legally required in the Netherlands.⁴⁶⁰

Monitor and compare predicted versus actual effects

[Tags: EA; Monitoring; Enforcement; Effects]

Although monitoring the actual, versus predicted, impacts of a project is critical to the EA process,⁴⁶¹ it is not a legal requirement in BC. Conversely, under European Union law, member states are required to monitor environmental effects and compare the predicted effects with those that actually occur. These activities must be carried out with the goal of identifying – early on – any unforeseen adverse effects.⁴⁶² Under CEAA, follow-up programs are defined as programs for verifying the accuracy of the EA and determining the effectiveness of any measures taken to mitigate the adverse environmental effects of the project.⁴⁶³ These studies are essential, especially to account for and respond to unexpected and/or cumulative effects.⁴⁶⁴

Mandate periodic investigations to assess compliance

[Tags: EA; Monitoring; Enforcement; Effects; Compliance]

On-site visits and investigations are essential for obtaining an on-the-ground understanding of the practical implementation of EA obligations. In China, staff from the environmental protection bureaus must randomly conduct a minimum of three on-site investigations during the operational phase to assess the implementation of EA obligations.⁴⁶⁵

Promote on-going First Nations’ participation in EA follow-up activities

[Tags: EA; Indigenous Rights]

First Nations should have the opportunity to participate in follow-up and monitoring programs, including their initial design, implementation, and analysis of results.⁴⁶⁶ To support such on-going participation, funding is necessary. The Canadian Environmental Assessment Agency provides ‘participant funding’ to support the participation of First Nations in the EA process.⁴⁶⁷ This funding, however, is minimal and short-lived and does not cover participation in any follow-up activities.⁴⁶⁸ Better practice is to provide adequate participant funding throughout the entire project life.