Monitoring, Follow-Up, Adaptive Management, and Compliance in the Post-decision Phase

• Author: Martin Olszynski
• Pages: 346-371

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Monitoring, Follow-Up, Adaptive

Management, and Compliance in the

Post-decision Phase

Martin Olszynski

A. INTRODUCTION

This chapter considers the critical and yet oen overlooked “post-de-

cision phase” of impact assessment,1 following planning, assessment,

and decision making.2 Section B briey explains monitoring, follow-up,

adaptive management, and compliance in the impact assessment con-

text and sets out the manner in which these are treated under the Impact

Assessment Act (IAA).3 Where useful for comparison, this section also

considers how they were treated under Canada’s previous assessment

1 See, for example, Carol A Hunsberger, Robert B Gibson & Susan K Wismer, “Citizen

Involvement in Sustainability-Centred Environmental Assessment Follow-Up” (2005)

25:6 Environmental Impact Assessment Review 609 at 610: “In Canada, . . . follow-up mon-

itoring has been well recognized as a crucial component of environmental assessment

but, at least until recently, seldom required or allocated potentially sucient resources.”

2 Alana Westwood et al, “The Role of Science in Contemporary Canadian Environmental

Decision Making: The Example of Environmental Assessment” (2019) 52:1 UBC Law

Review 243 at 249 (describing the post-decision phase as the fourth and nal phase in

impact assessment). For its part, the Canadian Impact Assessment Agency has taken to

describing this as the h phase, adding a proponent-led “impact statement” phase

between planning and assessment; see Impact Assessment Agency of Canada, “Impact

Assessment Process Overview,” online: Government of Canada www.canada.ca/en/impact-

assessment-agency/services/policy-guidance/impact-assessment-process-overview.html.

3 SC 2019, c 28, s 1.

Monitoring, Follow-Up, Adaptive Management, and Compliance in the Post-decision Phase | 347

regimes, the Canadian Environmental Assessment Act (CEAA 1995)4 and the

Canadian Environmental Assessment Act, 2012 (CEAA 2012).5 Section C then

considers the federal government’s track record with respect to these

matters, including the ndings and recommendations of the Expert

Panel for the Review of Environmental Assessment Processes (Expert

Panel).6 Although much was said during the IAA’s development about

increasing the quality, transparency, and accessibility of monitoring and

follow-up results, as well as addressing the misuse of adaptive manage-

ment, the Act itself is only marginally distinguishable from CEAA 1995

and CEAA 2012 with respect to most of these issues. The one exception

appears to be with respect to adaptive management, which has been

reintroduced following its deletion from CEAA 2012. SectionD considers

some of the steps that could be taken to bolster the implementation of

the post-decision phase under the IAA to bring it closer to best practice.

B. THE POSTDECISION PHASE UNDER THE IAA AND PREVIOUS

REGIMES

1) Monitoring

In the impact assessment context, there are at least three kinds of mon-

itoring that we are concerned with, all of which can and do overlap:

(1) traditional compliance monitoring, for example, to determine

whether a given condition is being met; (2) monitoring for the purposes

of conrming predicted eects (as part of a follow-up program or adapt-

ive management plan), contributing to project management or broader

learning;7 and (3) ambient environmental monitoring, including col-

laboration in the context of regional eorts.8 Ambient environmental

monitoring is “the monitoring of . . . the state of the environment at the

4 SC 1992, c 37. The entry into force of the Act was delayed until 1995 to allow for key

regulations to be developed and passed.

5 SC 2012, c 19, s 52.

6 Expert Panel for the Review of Environmental Assessment Processes, Building Common

Ground: A New Vision for Impact Assessment in Canada (Ottawa: Canadian Environ-

mental Assessment Agency, 2017), online (pdf): Government of Canada www.canada.ca/

content/dam/themes/environment/conservation/environmental-reviews/building-

common-ground/building-common-ground.pdf [Building Common Ground].

7 See also Chapter 22.

8 See also Bram F Noble, Introduction to Environmental Impact Assessment: A Guide to

Principles and Practice, 2d ed (Don Mills, ON: Oxford University Press, 2010), describing