Environmental Monitoring and Ecosystem Management in the Oil Sands: Spaceship Earth or Escort Tugboat?

By Olszynski, Martin Zp | McGill Journal of Sustainable Development Law, Fall 2014 | Go to article overview

Environmental Monitoring and Ecosystem Management in the Oil Sands: Spaceship Earth or Escort Tugboat?


Olszynski, Martin Zp, McGill Journal of Sustainable Development Law


2.1.3 SOME POTENTIAL SOLUTIONS

In the final part of his paper, Biber explores various solutions to the above-noted constraints, similarly divided into internal and external ones. On the internal side, adequate and appropriately structured funding (e.g., "dedicated funding streams that are more resistant to political whims" (72)) is clearly a necessary part of the solution, as experience with the independent monitoring agencies in the Northwest Territories and the WBEA has also borne out. (73) Funding itself, however, will not ensure that monitoring is effective. Where monitoring results are relevant not just to multiple departments and agencies but also at least two levels of government, as is the case in the oil sands, better coordination and collaboration will also be necessary. (74) Collaboration addresses "the compatibility of monitoring data and protocols across multiple agencies conducting similar monitoring programs." (75)

Recognizing that internal solutions do not adequately address "the reluctance ... of agency officials to pursue effective monitoring programs," (76) two potential external solutions are judicial and--in Canada--parliamentary oversight. Judicial oversight is essentially a legislative issue. Subject to certain caveats and limitations, legislating a requirement to monitor could assist its effectiveness by enabling stakeholders to hold agencies accountable through judicial review. (77) Acknowledging that monitoring requirements are not included in most major American environmental laws, Biber identifies two rationales for "judicial reluctance to compel monitoring" in those instances where such a duty exists that seem equally applicable in the Canadian context: "the level of compliance by an agency with a mandatory duty is not for the court to review, as long as at least some compliance exists [or] the apparently mandatory language in the statute, regulation, or plan is in fact only hortatory." (78) Even where the statutory language is as precise as possible, "it is very difficult for courts to analyze whether an agency truly has done all it can in developing an effective monitoring program." (79)

Any or all of these limitations may explain the absence in Canada of any litigation with respect to environmental monitoring, notwithstanding that several statutes and regulatory schemes require some kind of monitoring that is either being inadequately performed or not performed at all. (80) A recent and particularly troubling example of the latter is the Ontario Ministry of Natural Resources' ("MNR") total failure to implement its Provincial Wildlife Population Monitoring Program ("PWPMP"), notwithstanding that this program has been a legal requirement of MNR's class environmental assessment approval for forest management in Ontario since 1994. (81)

Parliamentary oversight, through parliamentary committees for example, could arguably improve monitoring efforts, but this seems unlikely given the dynamics of the Canadian parliamentary system and the contentious nature of the oil sands. (82) More promising-indeed, already tried and tested-is the role of Officers of Parliament and the CESD in particular. With respect to the oil sands specifically, in Chapter 2 of its 2011 October Report to Parliament, the CESD's report further challenged industry and governments-who by then had already initiated an international campaign to improve the image of the oil sands (83)--by finding that cumulative effects analysis of oil sands projects has been hindered by "[i]ncomplete environmental baselines and environmental data monitoring systems." (84) Even the CESD's potential role is limited, however, because, while that office may shed important light on an issue and identify program deficiencies and solutions with remarkable simplicity, it has no power to force the implementation of measures that it might deem necessary.

In light of all of these lingering limitations, Biber suggests that agencies focused primarily on monitoring could be the solution, whether they carry it out themselves or provide an independent expert review function for other agencies' monitoring efforts. …

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