FAILED EXPERIMENTS: AN EMPIRICAL ASSESSMENT OF ADAPTIVE MANAGEMENT IN ALBERTA'S ENERGY RESOURCES SECTOR.
A "tonic of natural resources policy." (1) "[T]he new paradigm in environmental law." (2) "[A]n almost universally acclaimed tool". (3) "[A] linchpin in both American and Canadian environmental and natural resources law and policy." (4) "[E]ssential to... environmental restoration." (5) "[A] popular answer". (6) "[R]outinely endorsed". (7) "[Pervading] federal lands management." (8) "[G]aining influence around the globe." (9) All of these phrases have been used by American, Canadian, and Australian legal scholars to describe adaptive management. Adaptive management is an experimental approach to environmental and natural resources management, which is sometimes distilled down to "learning by doing" (10). It is "supposed to be an iterative process in which decision outcomes are continually monitored and evaluated to determine whether they are achieving objectives." (11)
As noted by those very same scholars, however, the practice of adaptive management often diverges--sometimes drastically--from the theory. In a 2010 article surveying the treatment of adaptive management by US courts, Professors J.B. Ruhl and Robert L. Fischman observed that:
agencies in practice have employed what we call "a/m-lite," a stripped-down version of adaptive management that almost always neglects to develop testable hypotheses as the basis for management actions. Often a/m-lite fails even to structure a learning procedure, whether through experimentation, historical research, or modeling. Furthermore, lack of follow-through plagues implementation.... This a/m-lite approach, in its most extreme form, is open-ended contingency planning or "on-the-fly" management that promises some loosely described response to whatever circumstances arise. (12)
Similarly, Professor Holly Doremus has observed that, while enthusiasm for adaptive management in the US abounds, "[w]hen it comes to implementation... skepticism becomes the rule. Documented instances of successful adaptive management are rare, and many touted examples diverge significantly from the theoretical ideal." (13) In Australia, there is a general sense that "the thetoric of adaptive management has been used to justify the approval of projects with uncertain environmental impacts." (14)
This author has previously suggested that adaptive management in Canada "is at risk of being both oversold and under-delivered", (15) as it is "rarely planned or systemic". (16) But is this really the case? Though there have been evaluations of individual adaptive management proposals and plans, (17) it has been over a decade since a systematic assessment of adaptive management's implementation in Canada was conducted. The last such effort appears to have been in 2005, when a group of scholars led by University of Ottawa Professor Jamie Benidickson surveyed the application of both the precautionary principle and adaptive management by four federal departments. (18) The authors reported "[a] variation in the definitions and interpretations of the principles," (19) and noted that, with increased operationalization, it would be "important to monitor the process of implementation and its effects not only at the level of individual decisions, but in relation to the broader mandate and overall responsibilities of decision-making bodies." (20)
The timeliness of such an assessment would be difficult to overstate. Adaptive management has indeed become ubiquitous in Canadian environmental and natural resources policy. A recent survey of the Canadian Environmental Assessment Registry revealed that 91% of the projects listed there (e.g., mines [such as coal, metal, and oil sands], hydroelectric dams, liquefied natural gas terminals, highway construction, etc.) contained at least one reference--and usually several--to adaptive management. (21) References to adaptive management also abound in both federal and provincial government policies. Fisheries and Oceans Canada's "Sustainable Fisheries Framework", (22) its "Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments", (23) and its "National Framework for Canada's Network of Marine Protected Areas" (24) all purport to incorporate adaptive management. Similarly, various policies and frameworks developed by Environment and Climate Change Canada reference adaptive management. (25) Long a fixture of provincial forestry management, (26) adaptive management has more recently been incorporated into provincial climate change policy. (27) Alberta's land-use planning framework (28) under the recent Alberta Land Stewardship Act (29) is, perhaps, the most prominent provincial application to date. Pursuant to this legislation, the province was divided into seven planning regions, each of which should one day have a unique set of environmental management frameworks establishing ambient thresholds intended to guide local and regional decision making (e.g., fot air and water quality). (30) According to the government's policy, these frameworks will be adaptive; (31) their thresholds can and will be adjusted, should monitoring indicate the need to do so.
An assessment of the implementation and effectiveness of adaptive management is timely in another sense: the potential for law reform. There is broad consensus amongst legal scholars that, alongside resource constraints (mostly budgetary), effective adaptive management is being thwarted by gaps and constraints within existing legal regimes. Professor Ruhl has observed that "No other principle of natural resources management has so deeply permeated the practice on the basis of so little mention in the law", (32) an assessment that applies equally to Canadian environmental law. (33) The result, according to Professors Melinda Harm Benson and Courtney Schultz, is that "adaptive management is being thrown like a blanket on top of existing authorizations and requirements, with little attention to how practitioners balance this new mandate in relation to other legal and institutional requirements." (34) Citing earlier works by themselves and others,' (35) these scholars suggest that
unless adaptive management is given some legal definition and its application is enforceable in some way, the approach can be used as a smokescreen for open-ended and discretionary decision-making that fails to meet legal standards, lacks accountability, and fails to incorporate some of the most important aspects of the paradigm.... (36)
The potential for meaningful law reform has, arguably, never been greater in Canada. The October 2015 election of Justin Trudeau's Liberal Parry of Canada (the "Liberals") ended a decade of rule under the Conservative Party of Canada and Prime Minister Stephen Harper, whose tenure included a significant weakening of the Canadian environmental law regime. (37) The Liberals ran on a platform of "restor[ing] lost protections", and committed to reviewing those changes. (38) This review is now well underway: An independent expert panel began reviewing the changes to Canada's environmental assessment regime in the fall of 2016, during which time two parliamentary committees reviewed changes to the Fisheries Act (39) and the Navigation Protection Act, (40) respectively. (41) Similarly, in Alberta, voters recently ended four decades of conservative rule, and elected a social democratic government that ran on a platform of improved environmental performance. To date, the flagship of this new approach has been Alberta's much-touted "Climate Leadership Plan", (42) but the government has demonstrated a willingness to act with respect to other environmental matters as well. (43)
This paper's primary objective is to provide a systematic assessment of the implementation and effectiveness of adaptive management in one of Canada's most important, and controversial, industrial sectors: energy resources development. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, the author collected the environmental impact statements, statutory approvals, and required follow-up reports for 13 energy projects in Alberta (2 coal mines, 3 oil sands mines, and 8 in situ oil sands operations) wherein the proponent proposed adaptive management for at least 1 environmental issue or problem. The author then conducted content analysis of these various documents to determine the conception, implementation, and--to the extent possible--effectiveness of adaptive management, with respect to each project throughout the regulatory cycle (i.e., from the proposal stage through to approval and reporting). In other words, content analysis was conducted to determine how adaptive management is actually being applied in this context.
The results confirm longstanding concerns about the implementation of adaptive management in this context: definitions and conceptions of adaptive management vary, with most proponents erroneously invoking it as a general or routine strategy that ensures effective mitigation; little or no attention is being paid to experimental design; objectives, indicators, and thresholds for adaptation are generally missing, especially at the environmental assessment stage. There also appears to be a yawning gap between the number and type of issues for which proponents propose adaptive management, and what is ultimately required per the terms of their regulatory approvals. Where adaptive management is required, the relevant terms are generally vague and seemingly unenforceable. At the reporting stage, implementation is either non-existent or barely distinguishable from basic compliance monitoring, which can be useful in its own right but is not adaptive management. Not surprisingly, then, none of the projects assessed here had much to show in terms of actual learning.
This paper proceeds as follows. Part II provides a brief primer on adaptive management, an overview of Alberta's energy resources sector and the relevant regulatory regimes, and a summary of adaptive management's role in Canadian environmental law to date. Part III sets out the methodology used for this paper, including some limitations and potential sources of error. Part IV sets out the results of the analysis, both in quantitative and narrative terms. Part V sets out several recommendations for law and policy reform, at both the provincial and federal levels, on the premise that these results ate not mere outliers but rather are reflective of adaptive management practices in Canada generally. The discussion should also be relevant to other jurisdictions where adaptive management is prominent, including the United States and Australia. As will be seen, the results lend further support to existing calls for a more detailed legal basis for adaptive management at all stages of the regulatory life cycle.
II. BACKGROUND AND CONTEXT
A. ADAPTIVE MANAGEMENT
Most historical accounts of the origins of adaptive management begin with the publication of Adaptive Environmental Assessment and Management by Canadian ecologists CS. Holling and Carl J. Walters in the late 1970s. (44) Since that time, adaptive management has undergone considerable evolution, (45) and it is now commonly applied to a wide variety of resource issues. (46) The unfortunate, and perhaps inevitable, result of this evolution and variety of application, is that adaptive management has also become "a highly malleable term. It has been defined and applied in a variety of ways, ranging from highly detailed and rigorous to nearly vacuous." (47)
Nevertheless, most scholars agree on certain core principles: Adaptive management is supposed to be a structured or systemic process through which "decisions are made and modified as a function of what is known and learned about... the effect of previous management actions." (48) Most scholars also agree that adaptive management should not to be confused or conflated with "trial and error" approaches (49) (examples of which are discussed in Part IV). Current policy guidance from both the US Department of the Interior and the Canadian Environmental Assessment Agency appear to capture the essence of adaptive management adequately. The former defines adaptive management as "a systematic approach for improving resource management by learning from management outcomes". (50) The latter defines the term as "a planned and systematic process for continuously improving environmental management practices by learning about their outcomes." (51)
Adaptive management is also generally associated with a six-step cycle (see Figure 1), although the number of steps varies as some steps may be combined while others are separated. In their recent article examining the administrative law barriers to the implementation of adaptive management in the US, Professors Robin Kundis Craig and J.B. Ruhl set out the following basic elements of what they refer to as a "structured, multistep protocol: (1) definition of the problem, (2) determination of goals and objectives for management, (3) determination of the baseline, (4) development of conceptual models, (5) selection of future actions, (6) implementation and management actions, (7) monitoring, and (8) evaluation and return to step (1)" (52) (steps (1)-(5) constitute steps 1 and 2 in Figure 1).
Adaptive management practitioners and scholars distinguish between two kinds of adaptive management: active and passive. As explained by Professor Brad Karkkainen,
'Active' adaptive management... consists of conscious generation and testing of specific scientific hypotheses through narrowly tailored, scientifically designed management experiments. 'Passive' adaptive management, in contrast, involves heightened monitoring of key indicators and adjustment of policies in response to what may be learned through such careful observation, while foregoing the conscious experimental hypothesis-testing of the 'active' model. (54)
While a detailed discussion of the theory of adaptive management is beyond the scope of this paper, a few additional comments are warranted. First, and perhaps most importantly, adaptive management is not "failsafe": (55) "no form of adaptive management, no matter how rigorous, can guarantee successful resource protection.... Adaptive management can help us recognize management mistakes and limit the damage they cause... . But it does not prevent mistakes, nor does it guarantee that the mistakes we make will be reversible." (56) Second, adaptive management is not a panacea: There are environmental problems for which adaptive management is not suitable. (57) In fact, most US scholars now suggest that it is probably not appropriate for most environmental problems. (58) Ideal conditions for adaptive management have been described as those where the "management-problem context presents a dynamic system for which uncertainty and controllability are high and risk is low." (59) Finally, in order to be effective, adaptive management must be fully and rigorously implemented:
If the management actions are implemented in a way that strays from the design, if the experimental design does not isolate the signal of interest from background noise (through spatial/temporal contrasts, replicates and controls), or if monitoring focuses on the wrong variables, scale or frequency, it will be difficult if not impossible to learn anything meaningful. (60)
As will be seen, almost all of the actual and proposed applications of adaptive management considered in this paper do not reflect these limitations.
B. ALBERTA'S ENERGY RESOURCES SECTOR
1. ALBERTA'S COALMINES, OIL SANDS MINES, AND IN SITU OIL SANDS
There are presently nine coalmines in operation in Alberta. (61) Surface, or opencast, coal mining requires the breaking up and removal, usually by shovel and truck, of "overburden"; depending on the location, "overburden" may consist of just soil and rock, or it may include trees and other vegetation. The exposed coal seam is drilled, fractured, and systematically mined in strips. Large trucks or conveyors then transport the coal to a preparation plant or for shipping. (62) Although their significance varies depending on their exact location, the potential environmental effects of surface coal mines include: air pollution (especially dust), surface water pollution (including siltation, acid mine drainage [which forms when water reacts with sulfur-bearing minerals], and mine waste leaching), groundwater pollution, water resource depletion (due to active pumping), and landscape degradation (including both the destruction and fragmentation of wildlife habitat). (65) The industry considers landscape degradation to be a temporary impact, under the critical assumption that the mining area can, and will, be reclaimed. (64) In some instances (including some of the projects considered in this paper), the reclamation of mining areas involves the creation of so-called "end-pit lakes": lakes created out of mined-out pits. While there have been documented successes of reclamation, there is also recognition that "the restoration of viable soils and re-creation of authentic ecosystems on former opencast sites can prove very difficult". (65)
The environmental effects of oil sands mines are similar to coal mines, especially in terms of water pollution, land degradation, and the creation of end-pit lakes. However, the number (seven), (66) scale, and concentration of oil sands mines in the Lower Athabasca region of northeastern Alberta makes their impacts more significant on both an individual and cumulative basis. (67) These effects are also relatively well known, having been thrust into North Americans' consciousness following the publication of Robert Kunzig's article, "Scrapping Bottom", in National Geographic Magazine in 2011:
To extract each barrel of oil from a surface mine, the industry must first cut down the forest, then remove an average of two tons of peat and dirt that lie above the oil sands layer, then two tons of the sand itself. It must heat several barrels of water to strip the bitumen from the sand and upgrade it, and afterward it discharges contaminated water into tailings ponds.... [These] now cover around 50 square miles. (68)
In situ oil sands operations, of which there are currently thirty in operation, (69) are probably the least well-known: "[I]n situ extraction involve[s] drilling several wells into a deep oil sands deposit and then injecting high-pressure steam underground. The steam heats the bitumen so it can flow to a well and be pumped to the surface." (70) From the surface, the environmental impacts of in situ operations appear similar to those associated with hydraulic fracturing (or "Tracking"). These include, especially, habitat fragmentation and degradation as a result of seismic testing, well pad construction, and road construction and use. The important underground distinction is that fracking relies on pressure to fracture rock, whereas in situ oil sands operations rely on steam to melt the bitumen, which contributes to their higher greenhouse gas emissions (compared to conventional oil production). (71)
The environmental effects of both oil sands mines and in situ operations were recently considered by the Royal Society of Canada in its 2012 report, Environmental and Health Impacts of Canada's Oil Sands Industry. (72) Their findings are summarized as follows:
[T]he environmental footprint of bitumen production activities is considerable, with major air, water, and land dimensions.... Air emissions [including greenhouse gases]... are large both absolutely and in comparison to those associated with conventional crude oil production in the province and other industrial activities in Canada .... The management of water used in and generated by bitumen extraction processes also gives rise to environmental concerns, notably the storage and ultimate disposition of tailings generated by processing wastes from surface mining operations.... There are enormous land disturbance and reclamation issues that encompass dealing with the scarred landscape left by surface mines and the forest clearing that is characteristic of in situ production.... (73)
As will be seen in Part IV, the wildlife species of most concern in Alberta include grizzly bears and caribou, the latter being listed as "[t]hreatened" pursuant to the federal Species at Risk Act (SARA). (74) In situ oil sands operations also affect various species of migratory birds, which are protected by the federal Migratory Birds Convention Act, 1994, (75) and which occasionally land in the above-noted tailings ponds. (76)
2. THE REGULATORY FRAMEWORK
In Canada, the federal and provincial governments share environmental jurisdiction. The provinces have broad jurisdiction by virtue of their ownership of public lands (77) and natural resources, (78) as well as legislative jurisdiction over property and civil rights (79), and matters of a local nature. (80) Indeed, each of the projects considered here is subject to a specialized provincial regulatory regime, (81) including the Coal Conservation Act, (82) the Oil Sands Conservation Act (83)--and their associated regulations--as well as the general provisions of Alberta's Environmental Protection and Enhancement Act (EPEA) (84) and Water Act. (85)
Federal jurisdiction is almost entirely legislative. (86) The two most important legislative heads of power in this context are Parliament's jurisdiction over navigation (87) and fisheries. (88) The former grants Parliament the exclusive authority to regulate interferences with the public right of navigation, (89) which, in Canada, exists in both tidal and nontidal waters. (90) The latter forms the basis for federal regulation of impacts on fish and fish habitat (both marine and freshwater). More specifically, section 35 of the Fisheries Act prohibits the destruction of fish and the "permanent alteration to, or destruction of, fish habitat", except where authorized by the Minister or regulations. (91)
The federal government and most of the provinces have their own environmental assessment regimes. In Alberta, this regime is found in Part II of the EPEA (92) and its associated regulations. (93) The federal regime is set out in the Canadian Environmental Assessment Act, 2012 (CEAA, 2012). Both the federal and Alberta regimes currently operate on the basis of a project list. (94) However, most of the projects considered in this paper were assessed under the previous federal regime, the 1992 Canadian Environmental Assessment Act (CEAA, 1992), which was triggered by federal decision making generally, especially the granting of regulatory approvals. Applications for a section 5 navigable waters permit under the Navigation Protection Act (95), or a Fisheries Act authorization for effects on fish habitat were the two most common environmental assessment triggers under that regime.
Where both the federal and provincial regimes are triggered, federal and provincial departments generally strive to coordinate their respective reviews. (96) In the case of major resource projects (e.g., coal and oil sands mines), this can culminate in the establishment of a joint review panel. (97) Such panels review proponents' environmental impact statements, hold hearings, and prepare joint review panel reports ("JRP Reports") setting out their conclusions, rationales, and recommendations for subsequent government decision making. The final step under the provincial regime is usually a broad "public interest" determination, pursuant to the above-noted specialized regulatory regimes. Under the federal Canadian Environmental Assessment Act regime (both current and previous versions), the key test is whether a project is "not likely to cause significant adverse environmental effects" or, if it is, whether such effects are "justified in the circumstances." (98) If either of these determinations are answered in the affirmative, a project enters the regulatory approval stage. Once again, although subject to their own specialized regulatory regimes, the environmental effects of coal mines, oil sands mines, and in situ oil sands are primarily regulated provincially, pursuant to the terms of an EPEA approval. Federally, the regulating vehicle under the previous CEAA, 1992 regime was generally whichever regulatory permit or approval triggered the application of the CEAA, 1992 in the first place (e.g., a Fisheries Act section 35 authorization). (99) Under the current CEAA, 2012 regime, the Minister of Environment and Climate Change issues a Decision Statement under the CEAA, 2012, which is supposed to set out all applicable federal conditions.
As a general rule, the first step under any environmental assessment regime is the preparation of guidelines, or terms of reference, for the proponent to follow in preparing its environmental impact statement. Since at least 2002, Alberta has included references to adaptive management in its terms of reference for proponents, and these now form part of its recently updated standardized terms of reference for all coal mines, oil sands mines, and in situ projects. (100) Both then and now, these references have been fairly superficial, including, for example, instructions to "[p]rovide the adaptive management approach that will be implemented throughout the life of the Project" and "[i]nclude how monitoring, mitigation and evaluation were incorporated." (101) Similarly, the previous CEAA, 1992 made a singular reference to adaptive management in the context of follow-up programs, which were a mandatory consideration for projects undergoing panel review: "The results of follow-up programs may be used for implementing adaptive management measures or for improving the quality of future environmental assessments." (102) Undoubtedly, such cursory references have contributed to the confusion surrounding adaptive management displayed in the projects assessed in this paper, confusion that has also been reinforced by Canada's judiciary.
C. ADAPTIVE MANAGEMENT IN CANADIAN ENVIRONMENTAL LAW JURISPRUDENCE
Although references to adaptive management in Canadian environmental case law and scholarship predate 2008, (103) most Canadian scholars would agree that it was in that year--and, specifically, with the release of the Federal Court's decision in Pembina Institute for Appropriate Development v Canada (Attorney General) (104) ("Pembina Institute")--that adaptive management made its substantive debut. In that case, Tremblay-Lamer J described adaptive management as one of the "guiding tenets" in the interpretation of Canadian environmental assessment law. (105)
Pembina Institute involved a challenge by several environmental organizations to a 2007 report (106) by the Joint Review Panel on the Kearl Oil Sands Project proposed by Imperial Oil Resources ("Imperial Oil"), one of the oil sands mines analyzed in this paper. The Kearl Oil Sands Project (the "Kearl Project") is located along the Muskeg River, a tributary of Alberta's Lower Athabasca River. The Kearl Project includes, over the course of forty years, (107) the "construction, operation, and reclamation of four open pit truck and shovel mines and three trains of ore preparation and bitumen extraction facilities." (108) Like the other oil sands mines analyzed here, the Kearl Project triggered both the provincial and federal environmental assessment regimes. Consequently, and as has been the practice since, Alberta and Canada agreed to establish a joint review panel to conduct a single environmental assessment. Following several months of hearings, the JRP Report on the Kearl Project concluded that the project was "not likely to cause significant adverse environmental effects" and was "in the public interest." (109)
Adaptive management's role in Canadian environmental assessment law arose in response to the environmental groups' challenges to the Joint Review Panel's treatment of end-pit lakes and peatland restoration. The Court in Pembina Institute described adaptive management as countering "the potentially paralyzing effects of the precautionary principle" (110) by "permitting] projects with uncertain, yet potentially adverse environmental impacts to proceed based on flexible management strategies capable of adjusting to new information regarding adverse environmental impacts where sufficient information regarding those impacts and potential mitigation measures already exists." (111) Applying this approach to the Joint Review Panel's treatment of end-pit lakes--which the oil sands industry admits pose several additional challenges compared to the metal mining context (112)--the Court accepted that there was "some uncertainty with respect to end pit lake technology," but it was not "such that it should paralyze the entire project." (113) With respect to peatlands, the restoration of which the applicants argued was "not even known in general terms", (114) the Court held that "while uncertainties... remained, they could be addressed through adaptive management given the existence of generally known replacement measures contained in Imperial Oil's mine closure plan." (115)
The Pembina Institute decision was quickly and widely criticized. Professor Arlene Kwasniak argued that the Court's approach "[ran] contrary to the CEAA  for numerous reasons", (116) including the explicit and relatively minor role for adaptive management envisioned by the legislation at that time. (117) Professor Nathalie J. Chalifour pointed out that the Court's approach rendered "virtually meaningless" the statutory requirement that mitigation measures be "technically and economically feasible". (118) She also expressed doubts about its consistency with the statutory requirement to apply the precautionary principle: "A precautionary approach would place the onus on Imperial Oil to demonstrate that the reclamation technology relating to end pit lakes and peatlands was sufficient to ensure that they would not cause serious environmental impacts." (119) Reflecting on the absence of any detailed discussion surrounding the proposed application of adaptive management by the panel (e.g., objectives, indicators, alternative actions, or monitoring plans), this author suggested that in such instances there would be "little to no basis for concluding that the uncertainty associated with proposed mitigation measures will actually be reduced, let alone that these measures will prove effective". (120)
Anecdotally, at least, these concerns appear to have been well-founded. The reclamation of peatlands in the oil sands context is a good example. Five years after the Pembina Institute decision, this issue was revisited by the Joint Review Panel for Shell Canada's ("Shell") proposed expansion of the Jackpine Oil Sands Project, (121) which is also assessed in this paper (albeit it only at the environmental assessment stage because its construction has been postponed). This time around, adaptive management was discussed in the context of air quality, (122) climate change considerations, (123) end-pit lake remediation, (124) surface water quality, (125) and the loss of fish habitat. (126) However, Shell "acknowledged that peatlands cannot be reclaimed". (127) Consequently, the Joint Review Panel concluded that their loss (equivalent to approximately 8,500 football fields) was a significant adverse environmental effect. (128) Not surprisingly, environmental groups at the Jackpine Mine Expansion Project heatings argued against adaptive management generally, suggesting that it "has proven to be a failure." (129) The Athabasca Chipewyan First Nation also expressed its frustration that adaptive management "is often no more than a general commitment to do something if it becomes necessary." (130) Such perspectives were supported by the broad realization in 2012--first by the scientific community but, eventually, also by governments and industry--that environmental monitoring efforts in the oil sands region were badly inadequate. This realization prompted not just one, but two, expert advisory panels on environmental monitoring, and a 50-million-dollar (CAD) investment in monitoring activities. (131) As a process that fundamentally depends on rigorous monitoring, the implications of these findings for the effectiveness of then-existing adaptive management regimes were disconcerting to say the least.
Since Pembina Institute--and, arguably, because of it--reliance on adaptive management has only increased. In addition to those developments described in the introduction to this paper, there are now 25 judicial decisions referring to adaptive management, 60 percent of which postdate that decision. There are also over 80 administrative decisions by various boards and tribunals that refer to adaptive management. (132) But while tribunal understanding of adaptive management, especially the requisite conditions for actual learning, appears to have improved (as further discussed in Parts IV and V), judicial misunderstanding remains unchanged. In Sierra Club Canada v Ontario (Ministry of Natural Resources), the Ontario Superior Court of justice limited its understanding of adaptive management to "requiring] those engaged in the construction of [a road project] to continue to monitor how best to protect [certain] species and to adapt its management until the best answer is found." (133) In Greenpeace Canada v Canada (Attorney General), government respondents argued that Canadian courts "have endorsed 'adaptive management' as a necessary counterbalance [to the precautionary principle] to ensure that socially and economically desirable projects can come to fruition." (134) Thus, there appears to have emerged a quasi-common law of adaptive management that fails to reflect any of the principles and limitations of genuine adaptive management, i.e., that it is not fail-safe, that it is not a panacea, and that it must be rigorously implemented.
A Freedom of Information and Protection of Privacy Act (135) request was sent to Alberta Environment and Parks for all "permits, approvals and licenses issued under the Environmental Protection and Enhancement Act or the Water Act that contained the term adaptive management' between 1 January 2008 and 1 January 2015." (136) The time frame was selected to generate relatively recent results while at the same time going back far enough that some relevant monitoring data ought to have been generated. In response to this request, Alberta Environment and Parks provided a list of 176 approval numbers. These were then entered into the Alberta Energy Regulator's online "Authorization Viewer" (137) to generate the relevant approval documents. The vast majority of these approval numbers turned out to be duplicates (i.e., they were related to the same approval). Ultimately, 23 distinct EPEA project approvals, each containing at least one reference to adaptive management, were identified. This list included 3 coal mines, 4 oil sands mines, 15 in situ oil sands developments, and 1 quarry. No relevant Water Act licenses or approvals were identified.
Working backwards from the approvals, using Alberta Environment and Park's online archives, (138) the proponent-produced environmental impact statements (EISs) and, where applicable, government-produced environmental assessment reports (e.g., JRP Reports) for 22 of the projects were located. Using the keyword search function, every volume and any associated supplemental information request documents were searched for all references to "adaptive management". These references were compiled with sufficient surrounding context to enable coding for the purposes of content analysis.
Working forwards from the approvals, a request was then sent to the Alberta Energy Regulator (139) (AER), for copies of all reports related to adaptive management presently due per the terms of the originally requested EPEA approvals. This brought the number of projects for which a complete regulatory lifecycle analysis could be conducted down to 13: 5 of the in situ projects' reports were not due for at least another year, reporting deadlines for 2 in situ projects were extended, and the construction of 1 coalmine and 1 oil sands mine has been indefinitely postponed.
With all of the relevant documents collected, the next task was to develop the appropriate coding scheme for content analysis, defined here as "the systematic, objective, quantitative analysis of message characteristics." (140) As with many other content analyses, the goal was to discern both manifest and latent meaning with respect to adaptive management. (141) Following a review of the adaptive management scholarship, codes were developed for: different definitions of adaptive management used; the kind of environmental problem for which adaptive management was being proposed (e.g., wildlife management, groundwater management, reclamation, etc.); (142) whether a complete adaptive management plan was included or, if not, which of the steps in the adaptive management cycle were explicitly discussed; and, whether the proposed adaptive management measures generated any results and resulted in adaptive measures being taken. The full list of codes can be found in Appendix A. (143)
This approach of assessing the extent to which the adaptive management cycle has been implemented as a measure of its successful implementation has been described as "the most clearly articulated definition of successful adaptive management found in the literature to date." (144) It has also been lauded for "offer[ing] a potentially universal set of metrics since, regardless of context, all adaptive management efforts should be attempting to implement the adaptive management cycle." (145) That being said, several limitations and potential sources of error require acknowledgement. Firstly, the accuracy of this assessment is contingent on the adequacy of record-keeping at Alberta Environment and Parks. It is possible, for example, that some EPEA approvals were not captured by the initial Freedom of Information and Protection of Privacy Act request (e.g., if the approvals have not all been properly scanned and uploaded to Alberta Environment and Parks' databases). Given that there are 9 coal mines, 7 oil sands mines, and 30 in situ oil sands operations currently in operation in Alberta (46 projects in total), the only other explanation is that these are not all subject to the same terms and conditions, specifically with respect to adaptive management. A second potential source of error arises from the process of data extraction. As noted above, the keyword search function was used to locate all references to "adaptive management". It is possible, however, that some references were not recognized by the relevant software. Finally, it is also possible that there were parts contained within the various documents, especially the monitoring plans and data, which may have been relevant to proposed adaptive management but were not captured because they were not sufficiently proximate to the term adaptive management within the document.
A. THE PROJECTS AT A GLANCE
Tables 1, 2, and 3 list the relevant coal mines, oil sands mines, and in situ oil sands projects, as well as the issues for which adaptive management was invoked in their EISs and/or government reports/decisions (four JRP Reports and one AER Decision Statement), their EPEA project approvals, and any follow-up reports required by the terms of their EPEA approvals. For the purposes of assessing adaptive management at the environmental assessment stage only, these tables include projects for which no follow-up reports were available (1 coal mine, 1 oil sands mine, and 2 in situ projects, for a total of 3 coal mines, 4 oil sands mines, and 10 in situ projects).
As further discussed below, the number of proposed applications of adaptive management at the environmental assessment stage has increased over time for most project types, although the trend is most clear for oil sands mines. There is considerable variety in the kinds of environmental problems for which adaptive management was proposed, but also some consistency, especially with respect to reclamation. Generally speaking, there was little or no attention paid to experimental design at this stage: objectives, relevant uncertainties, hypotheses, indicators, triggers/thresholds, and alternative actions were almost universally missing, to say nothing of detailed monitoring plans.
At the EPEA approval stage, there was considerable consistency within project types. With one exception (Suncor Energy's Fort Hills Oil Sands Project), the EPEA approvals for all oil sands mines referred to adaptive management for one issue only: a requirement to prepare, as part of a groundwater management plan, a "Basal McMurray Depressurization Plan" that was supposed to include "adaptive management strategies". (146) Coalmine EPEA approvals also only referred to one issue per project, but this was different for each coalmine. For in situ projects, the general practice was to require the filing of a Comprehensive Wildlife Report (CWR) and in eight instances, a Reclamation Monitoring Program Proposal (RMPP), each of which refers generally to adaptive management.
At the reporting stage, all oil sands mine projects were noncompliant, and demonstrated no implementation of adaptive management. Both coalmines and in situ operations showed some compliance and implementation, but adaptive management in these contexts appears to have been reduced to straightforward compliance monitoring and correction i.e., monitoring intended to verify whether the proponents' operations comply with established regulatory standards (e.g., for noise levels). Adaptive management in these contexts has been conflated with what Professors Schultz and Nie have described as "adaptive mitigation": "although monitoring is incorporated, the opportunities for understanding causality are limited, and the primary focus is on adapting practices if conditions are less than desirable, even if [the] understanding of what is causing such resource conditions is not necessarily improved." (147)
B. ADAPTIVE MANAGEMENT AT THE ENVIRONMENTAL ASSESSMENT STAGE
Figures 2a, 2b, and 2c show the number of references to adaptive management in all EISs, JRP Reports, and AER Decision Statements for coalmines, oil sands mines, and in situ oil sands, respectively (arranged in chronological order based on their EIS filing date). Every reference to adaptive management was counted, including those found in supplemental information requests and responses. For the purposes of this analysis, as well as for the number of issues for which adaptive management was invoked (considered next), the EIS and JRP Report for Shell Canada's Jackpine Mine Expansion Project (briefly discussed in Part II.C) was also included as the most recent oil sands project to have undergone assessment, bringing the total number of oil sands mines to five.
The small number of coalmines makes it impossible to discern a statistically significant trend. However, there is a statistically significant trend of increasing references to adaptive management in the oil sands mines EISs ([R.sup.2] = 0.97). There is also a slight trend of increasing references in the EISs of in situ operations, although the trend is less clear as a result of the disproportionate number of references (59) in the Mackay River Project EIS (220) (this was the result of repeated references at the supplemental information request stage).
The above figures suggest that proponent reliance on adaptive management has increased over time. Another indication of the same is the number of issues for which proponents have proposed adaptive management, which has likewise increased over time (see Figures 3a, 3b, and 3c, below). For coal mines, the small number of projects makes identifying a trend difficult. With respect to oil sands mines, the number of issues for which adaptive management was being proposed clearly increased following Suncor Energy's ("Suncor") Fort Hills Oil Sands Project ("Fort Hills"), but subsequently remained relatively consistent (between five and nine issues). There are several possible explanations for the difference between the total number of references and the total number of issues. It may be that both proponents and government regulators are simply referring to adaptive management more frequently when discussing certain issues. It may also be the result of increasing scrutiny of proposed applications, including the supplemental information request process (this was the case for Suncor's MacKay River Project, as well as Shell's Jackpine Mine Expansion Project). Finally, it may be the result of increasing references to adaptive management as a "routine" component of proponents' approaches to environmental management (discussed below). Interestingly, both of Imperial Oil's projects, the Kearl Project and the in situ Cold Lake Oil Sands Project, represent the high-water mark of reliance on adaptive management in those respective contexts.
In terms of the kinds of issues for which adaptive management was proposed, returning only to those projects listed in Tables 1 -3 above, there was both variety and consistency. Coalmines were combined with oil sands mines in Figure 4a (below), due to their relatively low numbers and the previously noted similarities in their environmental effects. (221) Bearing in mind the theory of adaptive management, and the important role of uncertainty in driving its application, consistency within project types is the expected result, because the uncertainties faced by proponents of similar projects should be the same.
With respect to coal and oil sands mines, all documents referred to adaptive management in the context of reclamation, which, in both contexts, involves the remediation of large landscape disturbances, including the creation of end-pit lakes. The Cheviot Mine Project JRP Report stated that the proponent would be required "to use the necessary adaptive management techniques should studies indicate that end-pit lakes are causing currently unforeseen negative effects on native aquatic species in the area." (222) Suncor's Fort Hills EIS acknowledged that "there are several issues with regard to end pit lakes and reclamation wetlands that require further evaluation", but there is recognition that end-pit lakes "can be designed and operated to achieve various end uses and the industry is committed to realizing this goal through adaptive management." (223) The Kearl Project JRP Report stated that "reclamation is an important regional issue with uncertainties that require adaptive management". (224)
Adaptive management was also consistently referred to for managing project impacts on terrestrial wildlife (bears, caribou, birds, etc.), and on fish and fish habitat. For example, the Cheviot Mine Project ("Cheviot") JRP Report acknowledged Environment Canada's concerns regarding the project's effects on various bird species, but also noted that its review indicated "that many, if not all, of these impacts can be avoided through ongoing adaptive management and the protection of certain habitat types"; (225) "since this is already a requirement... the Panel believes that the conclusion that the risk of cumulative impacts to these species will be insignificant is a reasonable one." (226) This is one of the earliest examples of panel reliance on adaptive management to support a conclusion of nonsignificance under the then-applicable CEAA, 1992 regime. (227) With respect to fish habitat, adaptive management was referred to in the context of compensation habitat (i.e., habitat offsetting), which, until 2013, was part of the federal Department of Fisheries and Oceans' (DFO) official "no net loss principle" of habitat conservation. (228) For example, Imperial Oil stated that "[w]ith adaptive management, further assessment of the potential for predicted flow changes to affect habitat productivity in the Muskeg River will be conducted during the detailed no net loss planning stage." (229) In the Joslyn North Mine Project JRP Report, "the DFO expressed its concern about the uncertainty of the predictive models", stating that they were "based on limited data and a number of assumptions". (230) Consequently, the DFO indicated that it would require "validation and monitoring to ensure accurate fish habitat impact predictions and the achievement of fish habitat compensation goals... including the use of adaptive management if new information clarifies the uncertainties." (231)
All of the oil sands JRP Reports and several EISs refer to adaptive management in the context of surface water management. Under the heading "TrueNorth and Adaptive Environmental Management", True North Energy (now Suncor Energy) stated that it "will support and apply adaptive environmental management strategies", (232) an example of which was its participation in an industry working group examining in-stream flow needs for the Athabasca River. It was during the hearings for Shell's Jackpine Project, however, that concerns about the cumulative impact of water withdrawals on the Lower Athabasca River finally came to a head. Both that review panel and another from that period (the Joint Review Panel for Canadian Natural Resources' Horizon Oil Sands project (233)) directed the Cumulative Environmental Management Association (CEMA) (234) to tecommend--by 2005--a management system for maintaining in-stream flow needs, failing which Alberta Environment and Parks and the DFO were to step in and implement one. (235) CEMA failed to deliver on this direction, and the regulators released an initial phase in 2007. (236) This initial phase, known as the "Athabasca River Water Management Framework" (237), was intended to be temporary only. A Phase2 committee (known as P2FC) was struck within CEMA, but it too failed to teach consensus on the issue of ecological baseline flow. Consequently, the initial phase governed until 2015, when the provincial government finally released the "Lower Athabasca Region Surface Water Quantity Management Framework for the Lower Athabasca River" (the "Framework") (238) as one of the last outstanding environmental management frameworks under the "Lower Athabasca Regional Plan". (239) Although panned by critics, (240) the Framework does purport to incorporate adaptive management, with thresholds for various flow levels determining total allowable withdrawals, and a commitment to adjust these thresholds should monitoring indicate the need to do so. (241) Though determining whether such monitoring is finally taking place is outside the scope of this paper, it bears noting that none of the oil sands mines' Water Act licenses were caught by the initial Freedom of Information and Protection of Privacy Act request sent to Alberta Environment and Parks. (242)
It is also useful to consider the issue of groundwater management, bearing in mind the content of the EPEA approvals for oil sands mines (discussed next). Shell's Jackpine Mine Expansion Project EIS and JRP Report contain the most extensive discussion in this respect. In its EIS, Shell identified several" [a]daptive management strategies" for overburden dewatering and basal aquifer depressurization:
Overburden Dewatering Beyond the actual area to be mined, overburden dewatering affects only groundwater in shallow Quaternary deposits close to the perimeter of the open mine pit. Drawdown in these areas will be monitored as part of the groundwater monitoring program; however, no specific mitigation measures are anticipated to be required. Should a particularly sensitive area require protection from drawdown, it may be possible to install locally a grout wall or other low-permeability barrier to groundwater flow. Basal Aquifer Depressurization If drawdown in the Basal Aquifer causes unexpected effects on shallower groundwater resources or surface water, the location or pumping rates of depressurization wells might be adjusted to reduce the magnitude of drawdown in a particular area of concern. Alternatively, re-injection of depressurization water back into the Basal Aquifer could be done to mitigate drawdown in an area of concern. (243)
Notwithstanding the vagueness of the triggers (e.g., "[s]hould a particularly sensitive area require protection" and "[i]f drawdown...causes unexpected effects" (244)) and Shell's noncommittal posture (e.g., "it may be possible" and "could be done" (245)), the Jackpine Mine Expansion Project Joint Review Panel was satisfied that "Shell has identified adaptive management strategies to deal with any unexpected results", and concluded that no significant adverse environmental effects on groundwater are likely. (246)
With respect to in situ developments (Figure 4b, below), the same general pattern appears, albeit it with a few important differences. Reclamation was again a common issue but, for in situ developments, references to adaptive management were most common in the context of ongoing, as opposed to final, reclamation. This is consistent with the different kinds of environmental footprints that these two kinds of projects have: Oil sands mines can really only be remediated at the end of their productive life, whereas in situ projects can be--and are supposed to be--reclaimed progressively, as old wells are closed. In addition, the kinds of wildlife issues for which adaptive management was proposed in the context of coal and oil sands varied, whereas, in the context of in situ developments, it was consistently applied to caribou, which are listed as threatened under the federal Species at Risk Act. (247) Returning to the theory of adaptive management, it is questionable whether this is an appropriate context, as failure could result in serious and irreversible effects on the caribou species. American legal scholars appear mixed on the appropriateness of adaptive management in the context of Habitat Conservation Plans under the US' Endangered Specks Act of 1973. (248)
At this point, it is useful to consider how proponents and joint review panels have defined or conceived of adaptive management. Figure 5 shows the percentage of documents (EISs and JRP Reports) for which adaptive management was: (a) not defined at all; (b) defined in a general manner (often erroneously) without reference to the six-step cycle; (c) defined with reference to the six-step cycle; and (d) referred to as a general or routine management strategy. An example of (b) is Shell's Jackpine Mine Expansion Project EIS, which defines adaptive management as "[a] continuous improvement process of planning, implementing and evaluating results through monitoring and research programs and developing new plans from the lessons learned." (249) The fundamental problem with this definition is the notion of continuous improvement, which cannot be guaranteed Examples of the last category, (d), include: Coalspur Mines' indication that it "will incorporate adaptive management techniques as routine components in all of its environmental management activities"; (250) Suncor's indication that "[t]o help understand the evolving conditions related to environmental issues surrounding oil sands development, [it] will support and apply adaptive environmental management strategies"; (251) and MEG Energy ("MEG")'s statement that it "will consider incorporating applicable results from oil sands reclamation research programs as an adaptive management approach to its reclamation planning and completion processes." (252)
As can be seen, adaptive management is not actually defined in the majority of documents (55% for coalmines and oil sands mines, and 80% for in situ developments). However, 90% of coalmines and oil sands mines, and 70% of in situ operations, refer to it as a general approach or routine strategy. Somewhat surprisingly, this last category includes project documents in which adaptive management is defined rigorously (i.e., with reference to the six steps), such as Coalspur Mine's EIS. (253) Of course, adaptive management is not supposed to be routine; it should only be applied where there is an information gap and the potential for learning. (254) This is supposed to justify the additional resources that genuine adaptive management requires. (255) Routine invocation is suggestive of Professors Ruhl and Fischman's "a/m-lite... or 'on-the-fly' management that promisessome loosely described response to whatever circumstances arise." (256)
Not surprisingly, then, there was nothing resembling a complete adaptive management plan in any of the EISs, JRP Reports, or AER decisions examined. In fact, as Figure 6 (below) illustrates, most proposed applications did not include a single completed step.
The highest rate of completion (20%) was stating an objective and a relevant uncertainty, but even these were generally stated in vague and ambiguous terms. As noted above, the Cheviot JRP Report required the proponent "to use the necessary adaptive management techniques should studies indicate that end-pit lakes are causing currently unforeseen negative effects on native aquatic species in the area." (257) In other instances, proponents relied on boilerplate language borrowed from government policy, especially with respect to reclamation. For example, citing a 2007 Government of Alberta policy, Coalspur Mines stated that "[t]he goal of reclamation in Alberta is to achieve a land capability that is equivalent to what existed prior to disturbance" (258) At the same time, most proponents recognized that this is insufficient for the purposes of adaptive management. Thus, in the same EIS, Coalspur Mines indicated that its "adaptive management approach will involve establishing end land use objectives according to predevelopment land use capability, site-specific conditions, improved practices based on research and monitoring results". (259) In other words, an actual adaptive management plan was something that would be prepared and finalized at a later time. Several in situ proponents explicitly deferred the setting of any detailed adaptive management plan at the EIS stage, (260) even when pressed for more details through the supplemental information request process. (261) Somewhat ironically, several proponents also acknowledged the benefits of applying adaptive management early in the process. (262)
The foregoing suggests that, at least at the environmental assessment stage, adaptive management has been badly misconstrued by both proponents and review panels alike. The singular exception of increased tribunal understanding of adaptive management (which is part of the trend noted in Part II.C) was the AER's decision on Coalspur Mines' Vista Coal Mine Project. Consistent with the analysis herein, the AER noted that "while Coalspur made reference to the use of an adaptive management approach in its evidence... details concerning how Coalspur would employ an adaptive management approach were not provided." (263) It then went on to explain its view as to what adaptive management meant and required:
It is the panel's view that adaptive management is mote than simply monitoring to ensure that regulatory compliance is achieved and a general commitment to do something when and if it becomes necessary. Adaptive management should be a rigorous process of scientifically valid measurement, evaluation, and modification of adaptation of management practices to achieve the best possible outcomes regardless of regulatory thresholds. Adaptive management requires identifying the desired outcomes of environmental management; examining alternative ways of meeting the outcomes; selecting management actions and mitigations to implement; selecting indicators, criteria, and thresholds for monitoring environmental change and performance; evaluating when outcomes are not being achieved; and adjusting management objectives of actions when necessary. (264)
The AER's Coalspur Mines decision was also singularly responsible for the 20% occurrence of uncertainties being stated for coalmines in Figure 6 (above). This is considered further in Part V of this paper.
c. ADAPTIVE MANAGEMENT AT THE EPEA APPROVAL STAGE
Figures 7a and 7b (below) illustrate the trend noted at the outset of this part of the paper: The significant gap between the number of issues for which a proponent proposes to apply adaptive management, and the number of issues for which the regulator requires adaptive management. (265)
With the important exception of Suncor's Fort Hills, there is only one term for each oil sands mine referring to adaptive management in its EPEA approval, and that is with respect to groundwater management. On the one hand, this disconnect is concerning, especially when one considers that Imperial Oil invoked adaptive management nine times in its EIS for the Kearl Project. (266) Other than fish and fish habitat issues (which one would expect to find in the relevant federal Fisheries Act authorizations (267)), most of the environmental issues for which adaptive management was proposed fall squarely within provincial jurisdiction, especially reclamation. It is also puzzling. It is not at all clear why the regulator requires adaptive management for one issue and not for others. (268) On the other hand, the number of issues (five) for which adaptive management was proposed in Suncor's most recent approval for the Fort Hills project (269) easily exceeds the number of issues for which adaptive management was proposed in its EIS, and appears to reflect the evidence and concerns raised in more recent oil sands reviews. (270) This is a good illustration of Alberta's phased approach to project approvals. The phased approach seems to satisfy one of Professor Doremus' criteria for applying adaptive management: the ability to adjust decisions over time in response to learning. (271)
The approval terms for the in situ projects were largely consistent. All of the in situ projects refer to a Comprehensive Wildlife Report and, 80% refer to a Reclamation Monitoring Program proposal, both of which contain references to adaptive management. Reliance on "comprehensive" reports means that there is probably less of a gap between proponent EISs and EPEA approvals in this context, because all wildlife issues are potentially caught by such a term. (272)
Finally, the wording of the adaptive management conditions merits some discussion. With the exception of the Cheviot coalmine approval, which explicitly calls for an "improved adaptive management section" including "methods and objectives to quantify success of the reclamation plan", (273) the EPEA approvals do not require proponents to prepare anything resembling an adaptive management plan. Rather, they require "adaptive management strategies" (274) for dealing with an unexpected result, descriptions of "how adaptive management principles will be used to foster continuous improvement", (275) "adaptive management measures taken" (276) or planned, and descriptions about "how... data will be used in adaptive management" (277) in the future. None of these conditions ate particularly clear or enforceable. As discussed in the next section, the result is follow-up reports that vary considerably in terms of their approaches to adaptive management.
D. ADAPTIVE MANAGEMENT AT THE REPORTING STAGE
Figures 8a and 8b (below) illustrate the number of issues for which adaptive management was applied, at least purportedly, at the reporting stage, as compared to the environmental assessment and approval stages. Aside from the issue of correct application of adaptive management, both coalmines and in situ developments were at least partially compliant with their EPEA approvals. Oil sands mines were basically noncompliant. With the exception of that latter group, this stage proved most difficult to assess and code because of proponents' tendencies to conflate adaptive management with compliance monitoring and a general commitment to adjust. (278) The result, especially with respect to the in situ developments, is the misleading impression that adaptive management is being widely applied to numerous issues. As will be seen, most of these purported applications do not even meet the test for passive adaptive management.
1. OIL SANDS MINES
Assessing and coding oil sands mines was the most straight forward because not a single proponent (i.e., Suncor, Imperial Oil, Shell) appears to have complied with the singular adaptive management requirement of their respective EPEA approvals, i.e., to include adaptive management strategies as part of their required groundwater management plans. (279) For example, despite the fact that Suncor increased its adaptive management requirements following its most recent AER approval, its "Wildlife Mitigation and Monitoring Plan" for the Fort Hills project merely describes a series of initiatives that Suncor is involved in. (280) These initiatives include a wildlife reporting system that "may be used to assess the effectiveness of wildlife mitigation measures and identify opportunities for improvement", (281) and research into wildlife corridors in the project area. (282) Suncor also states that, "[t]hrough Canada's Oil Sands Innovation Alliance (COSIA), [it] is supporting the proposed development of a 5-year wildlife monitoring joint industry project". (283) This project is intended to address, inter alia, "the requirements for reclamation certification", and "[e]valuate wildlife use of the reclamation areas and areas adjacent to the development". (284) Finally, Suncor's "Bird Protection Plan" makes no explicit reference to adaptive management; (285) nevertheless, in a section entitled "Continuous Improvement", Suncor reiterates its "commitment to continuous improvement" and states that "[f]indings from the implementation of the Bird Protection Plan and academic research will direct adjustments to [the] plan." (286) Although not required by the terms of its EPEA approval, Shells Jackpine Mine 2014 Environment Report also makes references to adaptive management in the context of reclamation and surface water management, but these are as cursory as those made at the environmental assessment stage. (287)
Figure 9a illustrates the extent to which coalmine proponents have implemented the full adaptive management cycle at the reportingstage(oil sands mines have also been included although, as above, they do not actually appear). The coalmine results are by far the most positive by project type, but two caveats are in order. First, each proponent had only one adaptive-management-related requirement: a "Grizzly Bear 10-Year Management Plan for the Cheviot Mine Permit Area" (288) for Teck Coal Limited's ("Teck") Cheviot Mine Project, and a Selenium Management Proposal (289) for the Grande Cache Coal Mine. Thus, 100% compliance at the objective stage simply means that both proponents identified at least one objective as part of their approach to adaptive management. Second, Figure 9a does not reflect the adequacy or correctness of proponents' efforts with respect to the adaptive management cycle, as discussed below.
Teck's "Grizzly Bear 10-Year Management Plan for the Cheviot Mine Permit Area" (the "Plan") sets out two broad goals: "1. To ensure that the Cheviot mine... contribute[s] positively to the long-term viability of... [the regional] grizzly bear population" and "2. To continue to encourage regional land managers to develop... [effective regional plans] and to be a key partner in this process." (290) The Plan then sets out five objectives, (291) some of which could be used for adaptive management, (292) while others could not. (293) The Plan then goes on to list various "on-site management actions and strategies that will be implemented" to meet the first four objectives (294) (objective 5 is omitted because its implementation depends on other parties). Generally speaking, these actions and strategies consist of various approaches to reclamation and effects mitigation. Their lists of measures incorporate non-specific terms like "promptly", (295) "where possible", (296) "appropriate", (297) "strategic", (298) etc. This list of measures is then followed by more specific "[m]easures of [s]uccess" which set out what could be indicators for adaptive management, although these also lack specificity (e.g., "[i]ncreasing trajectory of the proportion of native plant species" or "[e]ffective control of white clover... on the haul road [rights of way]". (299) Finally, these measures of success are followed by various monitoring plans. (300) Some of this monitoring is annual and ongoing (e.g., an "on-going wildlife mortality monitoring control and reporting program" (301)), while, in other cases, it is proposed every three to five years, beginning after specific sites have been reclaimed. (302)
Somewhat surprisingly, adaptive management is not discussed until page 18 of the Plan. (303) Teck begins by defining adaptive management in a rigorous way, including the six-step cycle. (304) However, it then abruptly states that the entire Plan "constitutes Steps # 1 ["Assess the problem"],2 ["Design the Plan"] and 4 ["Monitoring"] in the adaptive management process". (305) It is not clear whether Teck is referring to its two main goals or the related five objectives (only some of which could be used for adaptive management), or to some other overarching problem that this author was unable to identify. The remainder of the Plan sets out baseline information regarding grizzly bears in the Cheviot Mine Permit Area, as well as key uncertainties. These uncertainties include the current status of the regional population (306) (e.g. is the population stable, declining, or increasing ?), and " [h]ow quickly and to what extent will high quality forage [including ungulates] for grizzly bears arise from the reclamation proposed". (307) Teck also provides a list of five "[a]daptive management framework and approaches" (308) that it will apply, subject to further discussion with regulators. The following table displays two such frameworks:
In some respects, these kinds of frameworks appear rigorous. They set out management actions ("Strategies" in the table above), some indicators of success, some monitoring details, and some alternative actions ("Potential Plan Adjustments"). (310) At best, they ate an example of passive adaptive management, of Professors Schultz and Nie's "adaptive mitigation". (311) Unfortunately, the two examples provided here do not contain clear objectives or hypotheses. (312) The alternative actions are not binding (they are potential adjustments), and the triggers for adaptation are missing or vague (e.g., "not exhibiting a positive trajectory" (313)). Further, though the author is not a monitoring expert, annual monitoring seems exceedingly coarse in this context.
Cheviot's "Annual Grizzly Bear Management Program Summary" (314) contains a qualitative and high-level description of ongoing progress towards the five objectives set out in the Plan. With respect to its first objective (to reclaim grizzly bear habitat), Teck simply reports that "mine level landscaping to reduce line-of-site and the use of native vegetation species continues to be a corner stone for reclamation planning and implementation." (315) With respect to its second objective (to identify, track, and minimize habitat disturbance), Teck reports a 49% decrease from the planned disturbance in its 1996 approval, which is, apparently, primarily attributable to the removal of coal reserves. (316) This is ostensibly good news, but there is no indication that this is the result of adaptive management, nor of what has been learned in the process. With respect to its third objective (to improve knowledge of grizzly bear responses to mining), Teck provided several abstracts of co-authored or otherwise supported research. (317) Teck also reported zero bear mortalities due to mining activity (part of objective four (318)); however, again there is no indication that this is the result of adaptive management. To the contrary, in section 2.3, "Summary of Adaptive Management and Changes to Program", Teck reported that no changes to the program were implemented in 2014, and none were expected during 2015. (319) A wildlife survey (320) was included in the Cheviot Annual Grizzly Bear Program Survey, but this data did not appear to tie back to any of the adaptive management frameworks or approaches listed in its Plan.
Grande Cache Coal's updated Selenium Management Proposal (321) and "Selenium Water Quality Monitoring Results" (322) also contain some adaptive management elements. Grande Cache Coal states four objectives in its Selenium Program, including identifying changes in selenium concentrations in mine wastewaters and receiving environments, as well as changes to aquatic habitats, benthic invertebrates, and fish populations in the vicinity of the mine. (323) Its objectives also include "establish[ing] an adaptive management approach for the protection of aquatic habitats" based on the results of its monitoring programs. (324) However, no specific uncertainties are identified, nor are any hypotheses stated. With respect to triggers, the Selenium Program includes a tiered, risk-based strategy for triggering a management response to selenium levels, which distinguishes between mere effects (i.e., an increase in selenium concentrations) and potential negative impacts. Only the latter would trigger a management response. (325) As with Teck's "Grizzly Bear 10-Year Management Plan for the Cheviot Mine Permit Area", Grande Cache Coal's trigger is vague. The strategy is also noncommittal with respect to alternatives: It provides a relatively long and detailed list of possible actions, (326) but their selection depends on the "specific potential impact (magnitude and significance); characteristics, selenium pathway(s); and, appropriate, available mitigation/compensation options." (327)
Both of these deficiencies (i.e., vague and noncommittal triggers) came to a head when Grande Cache Coal reported "higher than background levels" of selenium at its Beaverdam Creek location. (328) The elevated selenium levels "reflect[ed] the influence of surface mining," and provided "a potentially high risk to native fish populations." (329) Nevertheless, Grande Cache Coal concluded that it "does not consider the implementation of selenium treatment technology to be appropriate at this time" because it "does not appear to be cost effective or fitted to the circumstances at Beaverdam Creek." (330) From the records provided to the author by the AER, it is clear that the AER was of the view that alternative actions should have been implemented, but it is unclear whether this ultimately occurred. (331) This is reflected in Figure 9a, above, which demonstrates that no adaptive management measures were taken even though an adaptive management trigger was exceeded.
3. IN SITU OIL SANDS DEVELOPMENTS
The Comprehensive Wildlife Reports submitted by in situ operators consist of two parts: a wildlife mitigation program and a wildlife monitoring program. (332) The overall goal, according to one proponent, was "to ensure effects on wildlife are reduced and that adaptive management measures to control effects are undertaken." (333) Unfortunately, upon closer examination, it became clear that the wildlife mitigation programs are essentially examples of compliance monitoring or, where a mitigation objective has no basis in law or regulation, performance monitoring, (334) with no firm linkage to the results of the wildlife monitoring programs or the projects' effects on wildlife.
As noted in Table 3 (above), all in situ operators adopted some variation of an "objective/target/indicator/result" format for their wildlife mitigation programs. Table 5 (below) sets out the ten most common wildlife mitigation objectives, along with the most commonly encountered metrics, targets, monitoring methods, and individual results for half of these (in the interest of conserving space). Unfortunately, like the adaptive management plans encountered by Professors Schultz and Nie, (335) the approach taken does not, and cannot, clarify or establish any relationships between the projects' various mitigation efforts and their effects on wildlife in the area. At best, the first two objectives (to reduce/minimize collisions and human--wildlife conflicts, respectively) and their measurement may reveal something about the amount of wildlife in an area, but nothing about the potential reasons for this. The following objectives are purely compliance or performance oriented: (3) reducing noise, the metric and target for which are the former Energy Resource Conservation Board's established noise directive; (336) (4) reducing light, the metric for which is simply the number of lights with mitigation; (5) providing opportunities for wildlife crossings, the metric and target for which are various ratios, often regulation based; (7) reducing impacts during restricted activity periods, the metric and target for which are the number of days during which clearing or some other activity took place; (8) impacts to fish habitat, the metric and target for which are compliance based, including the number of perched culverts; (9) reducing direct habitat loss, and (10) maximizing reclamation, the respective metrics and targets for which are not reflective or their actual effectiveness, but are rather various ratios or percentages of land reclaimed. The monitoring results for these measures have been coded as (C) (compliance, or target met), (NC) (non-compliant), or (NR) (nonresponsive to the chosen metric(s)). None of the monitoring results for these measures shed any light on their effects on wildlife.
To make matters worse, relevant results were not always provided (cells marked NR in Table 5, above). (420) Further, where targets were exceeded (cells marked NC) proponents did not always take corrective measures. With respect to its Christina Lake Regional Project, MEG reported that the frequency of crossing opportunities along some lines to well pads exceeded regulatory requirements. (421) Regardless, MEG stated that "additional overpipe crossings along [that] segment were considered of little value to wildlife due to the configuration of planned infrastfucture." (422) Such exceedances were particularly common with respect to reducing direct habitat loss, and maximizing reclamation (objectives 9 and 10, respectively, in Table 5). Similar to the projects listed in Table 5, Cenovus Energy stated its target was to "initiate reclamation on 35 ha (7%) of the cleared commercial footprint during the first 3 year reporting period", but it reported that "[t]here are currently no candidate sites available for permanent/final reclamation." (423)
With respect to adaptive management specifically, some reports included a standard "Adaptive Management" subsection following each mitigation objective. The vast majority of these cases stated that no such measures were taken or contemplated. Where such measures were taken, they often appeared haphazard or ad hoc. For example, MEG reported that following some incidents of raven electrocution at a substation in 2013, it "experimented with shutting off substation lights to discourage ravens concentrating at the substation, which appeared to be effective adaptive mitigation as no further incidents were documented at that substation." (424) Other proponents put their purported adaptive management efforts in a single section of their report, usually towards the end. For example, regarding its Cold Lake Oil Sands Project, under the heading "Adaptive Management Measures Taken", Imperial Oil stated that it "continues to apply improved drilling and recovery technology to minimize the footprint while maximizing the amount of resource accessed", and listed a small number of techniques that, apparently, limit habitat fragmentation. (425) Statoil Canada ("Statoil") reported that it is "committed to adaptive management of wildlife mitigation throughout construction, operations, closure and reclamation" of the Kai Kos Dehseh Project. (426) Statoil then proceeded to list the following, presumably as examples of adaptive management: maintenance of culverts, deployment of bird deterrents on its wastewater pond, wildlife awareness education of staff and contractors, and continued enforcement of its speed policy on all project roads. (427)
Most in situ proponents also referred to various research initiatives that they are involved in or support. Imperial Oil noted its founding role in COSIA (referred to, above, by Suncor in the context of its Fort Hills report), which it describes as "a collaborative network of 13 oil sands companies with a mandate of accelerating the pace of improvement in environmental performance in Canada's oil sands through capturing, developing and sharing innovative approaches and best practices." (428) Imperial Oil, Devon, and Cenovus Energy also referred to their participation in the Regional Industry Caribou Collaboration (RICC), (429) which is "intended to engage in a program to coordinate research, habitat restoration and effectiveness monitoring". (430) Though the RICC is in its early stages, it will include not only research on caribou, but also "broad-scaled, active adaptive management study design (treatment vs. control) across large areas." (431)
This last reference to "active adaptive management" and the idea of "treatment vs. control" design is important because it--coupled with the sporadic inclusion of proper definitions of adaptive management, and references to the full six-step cycle, in some of the other documents considered here--confirms that proponents have at least some sense of what genuine adaptive management is, and what it requires. The fundamental problem identified in this paper is that most of them are simply not doing it.
If adaptive management is to play a useful role in Canadian environmental and natural resources management, the course of its implementation must be righted. Below are several recommendations for law reform. Many of these recommendations have been previously made by other scholars in other contexts. These recommendations take the form of a series of provisions that could be inserted into virtually any provincial, or federal, environmental or natural resources law in Canada. (432) Some of what follows could perhaps be implemented as a matter of policy, as some regulators have demonstrated a willingness to require genuine adaptive management; (433) however, the reality is that there is now, in Canada, a quasi-common law of "maladaptive management" (434) that proponents can, understandably, be expected to cling to until it is modified by the judiciary or superseded by legislation. Bearing in mind adaptive management's technical nature and the Canadian judiciary's reluctance to engage with such issues, (435) the prospects for judicial correction appear limited.
A. DEFINING ADAPTIVE MANAGEMENT
Reflecting on the confusion surrounding what adaptive management is and what it requires, a first and obvious step would be to clearly distinguish adaptive management from its lesser cousins (i.e., a/m-lite, adaptive mitigation, and compliance monitoring). One way to accomplish this would be to legislate a definition of adaptive management that reflects the necessary elements of structured learning. For example: "Adaptive management" means a planned and systematic process that enables the improvement of environmental management practices by learning about their outcomes, and includes the six-step cycle of (i) problem identification, (ii) plan design, (iii) plan implementation, (iv) plan monitoring, (v) evaluation of implementation, and (vi) adjustment based on monitoring results as per the plan, and further repetition of the cycle as required. The term "enables" in the first line is deliberate. It is intended to distinguish this definition from those that erroneously cast adaptive management as fail-safe: Improved management practices are the goal, but they are not ensured. (436) That being said, even this definition would not have necessarily prevented the occurrence of the kinds of adaptive management strategies and frameworks encountered in this paper (e.g., Teck's "Grizzly Bear 10-Year Management Plan for the Cheviot Mine Permit Area", Grande Cache Coal's Selenium Program, or the mitigation objective frameworks found in the in situ reports). In the interest of clarity, it may be necessary to go further and explicitly define what adaptive management is not. For example: adaptive management is not that same as compliance monitoring or contingency planning.
B. REQUIRING DISCRETE, ENFORCEABLE, AND PEER-REVIEWED ADAPTIVE MANAGEMENT PLANS
In addition to defining adaptive management, legislative provisions should require government departments or proponents (whichever party is actually going carry out adaptive management) to prepare and submit peer-reviewed adaptive management plans (437) that address key steps and substeps (438). Reflecting on the examples considered in this paper, one strong indicator of real adaptive management is the identification of the right kind of uncertainty. Merely being unable to predict the precise effect of a mitigation measure in a given context, which is tantamount to not being able to predict the future, is not sufficient. It is suggestive of adaptive mitigation, at best, and ad hoc contingency planning at worst. Rather, the uncertainty should be of a conceptual nature. This is also more consistent with the existence of the hypothesis stage. As suggested by Professors Schultz and Nie (439), and confirmed by the Grande Cache Coal Mine and in situ projects, at the design stage, triggers or thresholds must be clear, objective, and enforceable. Finally, all elements--including monitoring plans--should be bound together; interested parties and other stakeholders should not have to scour reports for monitoring plans and data that may or may not be relevant to the adaptive management plan.
Requirements for an adaptive management plan should also include a section setting out the rationale for why adaptive management is appropriate in the given context. (440) This will have both scientific and socio-legal dimensions. The former speaks to the limits of experimentation in the natural world, and will overlap with the contents of the adaptive management plan itself. The latter speaks to resources, stakeholder commitment, and the ability to adjust decisions over time. (441)
C. ADAPTING THE SURROUNDING LEGISLATIVE CONTEXT
Depending on the context, adaptive management mayor may not, come up against other legislative imperatives. For example--as currently written, at least--there would seem to be no obstacle preventing the Minister of Fisheries, Oceans and the Canadian Coast Guard from incorporating adaptive management into a section 35 Fisheries Act authorization for impacts on fish habitat. While he or she is supposed to consider fisheries management objectives, and the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries, this is essentially a "public interest" determination. (442) The same applies under Alberta's EPEA and Water Act, which do not impose any substantive limits or set any legislated benchmarks for government decision makers to meet when authorizing various activities and their associated environmental harms. In such instances, adaptive management may be considered in the public interest as a sort of quid pro quo: some risk of environmental harm now, in exchange for learning and better decision making in the future. Bearing in mind, always, that this does not necessarily mean positive environmental outcomes but, rather, having a basis for saying either "this management action or mitigation measure works" or "this action does not work and should be discontinued".
Conversely, as in the US, adaptive management seems inconsistent with Canada's "incidental take" regime, (443) under its endangered species legislation; pursuant to this legislation, the relevant Minister must form the opinion that the activity in question "will not jeopardize the survival or recovery of the species." (444) Most Canadian environmental law scholars would also agree that adaptive management does not fit comfortably within the context of the current federal environmental assessment regime, the Pembina Institute decision and its progeny notwithstanding. Setting aside the fact that the singular reference to adaptive management was removed from the CEAA, 2012, (445) there is the requirement that the mitigation measures relied upon be "technically and economically feasible", as noted by Professor Chalifour. (446) The CEAA, 2012 also contains the imperative that government agencies "exercise their powers in a manner that... applies the precautionary principle." (447) While some scholars and courts have suggested that adaptive management is consistent with, or even a response to, the precautionary principle, (448) I agree with Professor Chalifour that adaptive management is not a general substitute for precaution. (449) At the very least, the matter should be understood as one of degree: The more uncertain a management action or mitigation measure is, the less precautionary a decision to proceed with potentially serious and/or irreversible environmental effects will be.
If adaptive management is going to be available in such contexts, the surrounding legislation should be amended to set out the relationship between it and other legislative imperatives. For example, under the CEAA, 2012 (or any successor), Parliament could clarify that adaptive management cannot be relied upon for the determination of environmental effects where uncertainty with respect to mitigation effectiveness is moderate to high; it might also require adaptive management for such measures, should the project ultimately be approved. This is essentially the approach that the Joint Review Panel for the Lower Churchill Project took in 2011. (450) Similarly, the SARA's incidental take regime could be amended to allow reliance on adaptive management where the value of the potential learning is significant and the overall risks are low. (451)
D. PUBLIC REGISTRIES FOR ADAPTIVE MANAGEMENT PLANS AND MONITORING RESULTS
Finally, in order to address concerns about transparency and accountability, provisions should be included to facilitate public participation in all aspects of the adaptive management cycle. (452) Just as interested parties and other stakeholders should not have to scour reports for monitoring plans and data, they should not be required to rely on freedom of information processes to get access to those plans and reports in the first place. Thus, inclusion of adaptive management into environmental or natural resources statutes should be accompanied with provisions for a public registry that would contain the relevant plans and monitoring data. In some cases, such as the CEAA, 2012 and the SARA, such registries already exist and would need only to be amended for this purpose. Alberta Environment and Parks also hosts several public registries online, including the EIS registry that was used for the purposes of this paper. (453) In other cases, such as under the Fisheries Act, no public registry currently exists; therefore, one would have to be created.
The results in this paper confirm that adaptive management, as it is applied in Alberta's energy resources sector, is suffering from most, if not all, of the shortcomings currently identified in the literature. At the environmental assessment stage, adaptive management has erroneously been cast as a routine and fail-safe strategy that will ensure the effective mitigation of any and all adverse environmental effects. Virtually no attention is being paid to experimental design (i.e., the selection of objectives, indicators, uncertainties, and hypotheses), nor is consideration being given to whether adaptive management is even an appropriate response to the problem for which it is being proposed. At the approval stage, there appears to be a significant gap in terms of the number and kinds of issues for which adaptive management is being required, as compared to those for which it has been proposed. Where it is required, approval terms are generally vague and ambiguous; none require the preparation of a detailed adaptive management plan. Finally, at the reporting stage, implementation is generally poor: It was nonexistent for the oil sands mines considered here. Coalmines and in situ developments demonstrated some compliance and implementation but were beset by deficiencies, including vague and unenforceable triggers, and the conflation of adaptive management with mere compliance monitoring or, at best, adaptive mitigation.
The consequences of this state of affairs are far from academic. Caribou populations in Alberta remain listed as threatened under the SARA? (454) with several herds "in real danger of rapid decline or extirpation." (455) Approximately 30 end-pit lakes are planned for the Lower Athabasca region, yet there is presently only 1 full-scale demonstration project in operation--Syncrude's Base Mine Lake, which has only been monitored since 2012. (456) As recently noted in a report by the Council of Canadian Academies, "it will take at least a decade of monitoring to demonstrate whether this [single] technology can be effective in producing safe, ecologically productive lakes that do not require perpetual care and maintenance. Risks of groundwater seepage and contamination and breaches temain". (457) Reclamation, in general, remains uncertain: "While mine reclamation for upland uses is a mature technology, lake, wetland and riparian reclamation technologies are still under development. Technologies to enhance reclamation for wildlife habitat and traditional land uses by First Nations... are limited." (458)
There are apparently plans for a "Demonstration Pit Lakes Project" to begin operating sometime in 2017, although the current status of this project is unclear. (459) Nevertheless, it does provide a pretty good illustration of what genuine adaptive management would look like. According to an "artist's rendering" on COSIA's website, the project will include up to three pit lakes, each with a nominal width of 200 metres, as well as a series of smaller (20m by 20m) "Experimental Ponds". (460) Whether this number of lakes and ponds is sufficient is unclear. This is precisely the kind of detail that the reforms outlined above, especially peer review, are intended to capture. Feasibility studies are apparently being conducted
to assess how best to address the diversity of characteristics that require research across the breadth of proposed pit lakes, including various pit lake/pond configurations (depths, size and widths), combinations of materials used (tailings deposits, seepage, cap water and reclamation runoff), and will test the hydrologic uniqueness of each planned pit lake. (461)
Should the reforms outlined above be made, this is the kind of adaptive management project that could be expected to be implemented. The other thing that should be expected is a noticeable decline in the number of purported applications of adaptive management. While this may seem like a negative development, it would not be. Adaptive management has indeed been "oversold and under-delivered." (462) This has undermined confidence in adaptive management as a useful process capable of reducing uncertainty, and in the processes of legal and political accountability that are supposed to be the hallmarks of government decision making in environmental and natural resources law. (463)
MARTIN Z.P. OLSZYNSKI ([dagger])
([dagger]) Assistant Professor, University of Calgary Faculty of Law. I am grateful to Alex Grigg, Ephraim Welle, Vivian Tran, David Rennie, and Scarlett Zhu for their outstanding research assistance at various stages of this project, as well as to the Canadian Institute of Resources Law and the Alberta Law Foundation for funding some of that research. I am also grateful to J.B. Ruhl, Robert Fischman, Robin Craig, James Coleman, Al Lucas, Sharon Mascher, Melinda Harm Benson, George Roman, David Laidlaw, and Jason Unger for their comments and suggestions on earlier drafts of this paper, as well as for the views and insights of participants at the 4th annual Sabin Colloquium on Innovative Environmental Law Scholarship held at Columbia Law School, New York, New York (May 2016).
(1) Robert L Fischman & JB Ruhl, "Adaptive Management in the Courts" (2010) 95:2 Minn L Rev 424 at 424 [Fischman & Ruhl, "AM in the Courts"].
(2) Eric Biber, "Adaptive Management and the Future of Environmental Law" (2013) 46:4 Akron L Rev 933 at 933.
(3) Robert L Fischman & JB Ruhl, "Judging Adaptive Management Practices of U.S. Agencies" (2016) 30:2 Conservation Biology 268 at 269 [Fischman & Ruhl, "Judging AM Practices"].
(4) Martin Olszynski, "The Trend Toward 'Adaptive Management'", The Lawyer's Weekly (24 January 2014) (Lexis).
(5) Holly Doremus, "Adaptive Management, the Endangered Species Act, and the Institutional Challenges of New Age Environmental Protection" (2001) 41:1 Washburn LJ 50 at 52 [Doremus, "New Age Environmental Protection"].
(6) Jessica Lee, "Theory to Practice: Adaptive Management of the Groundwater Impacts of Australian Mining Projects" (2014) 31:4 Environmental & Planning LJ 251 at 251.
(7) Holly Doremus, "Adaptive Management as an Information Problem" (2010) 89:5 NCL Rev 1455 at 1457 [Doremus, "Information Problem"].
(8) Courtney Schultz & Martin Nie, "Decision-Making Triggers, Adaptive Management, and Natural Resources Law and Planning" (2012) 52:2 Nat Resources J 443 at 444.
(9) Melinda Harm Benson, "Adaptive Management Approaches by Resource Management Agencies in the United States: Implications for Energy Development in the Interior West" (2010) 28:1 Journal Energy & Natural Resources Law 87 at 88.
(10) Doremus, "New Age Environmental Protection", supra note 5 at 52, citing Carl J Walters & CS Holling, "Large Scale Management Experiments and Learning by Doing" (1990) 71:6 Ecology 2060 at 2060. See also Holly Doremus, "Precaution, Science, and Learning While Doing in Natural Resource Management" (2007) 82 Wash L Rev 547 at 550; Fischman & Ruhl, "AM in the Courts", supra note 1 at 424.
(11) Fischman & Ruhl, "Judging AM Practices", supra note 3 at 269.
(12) Fischman & Ruhl, "AM in the Courts", supra note 1 at 441 [footnotes omitted]. This assessment was mostly unchanged following a 2015 reappraisal of the case law. See Fischman & Ruhl, "Judging AM Practices", supra note 3.
(13) Doremus, "Information Problem", supra note 7 at 1457.
(14) Jessica Lee & Alex Gardner, "A Peek Around Kevin's Corner: Adapting Away Substantive Limits?", Comment (2014) 31:4 Environmental & Planning LJ 247 at 250.
(15) Martin ZP Olszynski, "Adaptive Management in Canadian Environmental Assessment Law: Exploring Uses and Limitations" (2010) 21 J Envtl L & Prac 1 at 17 [Olszynski, "Uses and Limitations"].
(16) Martin ZP Olszynski, "Environmental Assessment as Planning and Disclosure Tool: Greenpeace Canada v. Canada (A.G.)" (2015) 38:1 Dal LJ 207 at 230 [Olszynski, "Planning and Disclosure"].
(17) See e.g. Fisheries and Oceans Canada, "Review of Diavik and EKATI Adaptive Management Plans", by Carol Murray & Marc Nelitz (Vancouver, BC: ESSA Technologies Ltd, 12 May 2008).
(18) SSHRC & Law Commission of Canada, "Practicing Precaution and Adaprive Management: Legal, Institutional and Procedural Dimensions of Scientific Uncertainty" by Jamie Benidickson et al, Final Report (Ottawa: University of Ottawa Institute of the Environment, June 2005).
(19) Ibid at A-7.
(20) Ibid at F-23.
(21) These projects are listed online. See Canadian Environmental Assessment Agency, "Canadian Environmental Assessment Registry" (31 May 2017), online: <www.ceaa.gc.ca/050/index-eng.cfm>. The 91% figure is based on a search of the registry in August 2015, which yielded 60 such projects. This number was then divided by the average total number of active projects on the registry in the preceding three years (66).
(22) Fisheries and Oceans Canada, "Sustainable Fisheries Framework" (28 June 2013), online: <www.dfo-mpo.gc.ca/fm-gp/sustainable-durable/fisheries-peches/framework-eng.htm>.
(23) Fisheries and Oceans Canada, "Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada" (Ottawa: DFO, 2002), online: <waves-vagues.dfo-mpo.gc.ca/Library/264678.pdf>.
(24) Fisheries and Oceans Canada, "National Framework for Canada's Network of Marine Protected Areas" (Ottawa: DFO, 2011), online: <waves-vagues.dfo-mpo.gc.ca/Library/345207.pdf>.
(25) See e.g. Environment and Climate Change Canada, "Guide for Developing Beneficial Management Practices for Migratory Bird Conservation" (25 May 2017), online: <www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=E9B8C86C-1>; Environment Canada and Climate Change Canada, Lake Ontario Lakewide Management Plan (LaMP): Annual Report (Ottawa: Environment Canada, 2012), online: <publications.gc.ca/collections/collection_2013/ec/En161-8-2012-eng.pdf>.
(26) For British Columbia, see e.g. Government of British Columbia, "Extension Note 1-Introduction to Adaptive Management" (April 2008), online: <www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/land-based-investment/forests-for-tomotrow/forests-for-tomorrow-_extnotel_apr-29-2008.pdf>. For Ontario, see e.g. Government of Ontario, "Forest Management Planning" (9 May 2016), online: <www.ontario.ca/page/forest-management-planning>; Government of Ontario, "Forest Monitoring" (1 October 2015), online: <www.mnr.gov.on.ca/en/Business/Forests/2ColumnSubPage/STEL02_166359.html>. For Quebec, see e.g. Nelson Thiffault et al, "Adaptive Fotest Management in Quebec: Bits of the Big and Small Pictures", Canadian Silviculture Spring 2007 (May 2007) 26, online: <www.cef-cfr.ca/uploads/Membres/Thiffaultetal.-2007-CanadianSilviculmre.pdf>. For Manitoba, see e.g. Province of Manitoba, Environmental Impact Statement of the Forest Management Licence 012010 -- 2029 Forest Stewardship Plan, GeoSpatial International, Miette Environmental & Tembec, s 11 (Winnipeg: Province of Manitoba, 22 September 2009), online: <www.gov.mb.ca/conservation/eal/registries/4572tembec/tembec_eis/ll_lintro.pdf>; Province of Manitoba, "Forest Management Guidelines for Riparian Management Areas", reviewed September 2009 (Winnipeg: Manitoba Conservation and Manitoba Water Stewardship, January 2008), online: <digitalcollection.gov.mb.ca/awweb/pdfopenet?smd=l&did=20867&md=1>.
(27) For Quebec, see Government of Quebec, "2013-2020 Government Strategy for Climate Change Adaptation" (Quebec City: Government of Quebec, June 2012), online: <www.mddefp.gouv.qc.ca/changements/plan_action/stategie-adaptarion2013-2020-en.pdf>. For Ontario, see e.g. Ontario Ministry of Natutal Resources, "A Practitioner's Guide to Climate Change Adaptation in Ontario's Ecosystems", by J Gleeson et al, version 1.0 (Sudbury: Ontario Centre for Climate Impacts and Adaptation Resources, 2011), online: <www.climateontario.ca/doc/Tools/A%20Practitioners%20Guide(0)/o20to%20ClimateChange%20Adaptation%20in%20Ontario%27s%20Ecosystems%20Ver%201%202011.pdf>.
(28) Government of Alberta, "Land-Use Framework" (Edmonton: Government of Alberta, December 2008), online: <landuse.alberta.ca/LandUse%20Documents/Land-use%20Framework%20-%202008-12.pdf> [Alberta, "Land-Use Framework"].
(29) Alberta Land Stewardship Act, SA 2009, c A-26.8.
(30) See Alberta, "Land-Use Framework", supra note 28 at 19.
(31) Ibid at 38.
(32) JB Ruhl, "Adaptive Management for Natural Resources--Inevitable, Impossible, or Both?" in Proceedings of the Rocky Mountain Mineral Law Fifty-Fourth Annual Institute, vol 54 (Westminster: Rocky Mountain Mineral Law Foundation, 2008) 11-1 at 11-3.
(33) There was once a reference to adaptive management in the Canadian Environmental Assessment Act, SC 1992, c 37, s 38(5), as amended by SC 2003, c9, s18 [CEAA, 1992] (further discussed below). However, it was removed with the repeal of the CEAA, 1992 and its replacement with the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 [CEAA, 2012]. A search of all federal, provincial, and territorial statutes and regulations in CanLII's online databases yielded just four references to adaptive management: see Great Lakes Protection Act, SO 2015, c 2 (Ontario's Great Lakes Strategy must set out, amongst other things, "[a]n adaptive management approach": s 6(4)(iii)); Yukon's Wildlife Regulation, Y OIC 2012/84 (sections 30.01 and 61.01 ate titled "Adaptive management" and "Adaptive management for special guide licences", and set out the relevant Minister's power to change hunting times and to make determinations with respect to special guide licenses, respectively); Yukon's Waters Regulation, Y OIC 2003/58, as amended by Y OIC 2014/110 (section 16(1)(j) sets out the documents that a licensing board may require from an applicant, including "an adaptive management plan"); and the Stillwater Pilot Project Regulation, BC Reg 96/2001 (which simply defines "adaptive management" as "a systematic process for continually improving management policies and practices by learning from the outcomes of operational programs": s 1). See Canadian Legal Information Institute, online: <www.canlii.otg>.
(34) Melinda Harm Benson & Courtney Schultz, "Adaptive Management and Law" in Craig R Allen & Ahjond S Garmestani, eds, Adaptive Management of Social-Ecological Systems (Dordrecht: Springer, 2015) 39 at 41.
(35) See e.g. Schultz & Nie, supra note 8; Bradley C Karkkainen, "Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism" (2003) 87:4 Minn L Rev 943.
(36) Benson & Schultz, supra note 34 at 41.
(37) See e.g. Meinhard Doelle, "CEAA 2012: The End of Federal EA As We Know It ?" (2012) 24:1 J Envtl L & Prac 1; Jason Unger, "Lamenting What We HADD? A Fisheries Act Habitat Dirge or Much Ado About Nothing?" (2016) 29:1 J Envtl L & Prac 1; Jocelyn Stacey, "The Environmental, Democratic, and Rule-of-Law Implications of Harper's Environmental Assessment Legacy" (2016) 21:2 Rev Const Stud.
(38) Liberal Party of Canada, "Environmental Assessments", online: <www.liberal.ca/realchange/environmental-assessments>. The complete list of mandate letters is available online. See Office of the Prime Ministet, "Mandate Letters", Justin Trudeau, Prime Minister of Canada, online: <pm.gc.ca/eng/ministerial-mandate-lettets>.
(39) RSC 1985, c F-14.
(40) RSC 1985, c N-22.
(41) For an overview of these reviews, readers are directed to the following: Government of Canada, "Review of Environmental and Regulatory Processes" (16 May 2017), online: <www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews.hrml>.
(42) Government of Alberta, "Climate Leadership Plan", online at: <www.alberta.ca/climate-leadership-plan.aspx>. See also "Alberta's Climate Change Strategy Targets Carbon, Coal, Emissions", CBC News (22 November 2015), online: <www.cbc.ca>.
(43) See e.g. Government of Alberta, "Province to Fully Protect Castle Area" (4 September 2015), online: <www.alberta.ca/release.cfm?xID=38482FA615015-A6AF-C4F5-E44F02DA5A2DC0B8> (describing the decision to designate as a provincial park a biologically diverse but also resource-rich area in the province's southwest); "Alberta Government to Take Reins of Environmental Monitoring Agency", CBC News (5 April 2016), online: <www.cbc.ca> (describing Alberta's recent decision to disband the independent environmental monitoring agency set up by the previous government and to roll its activities into the province's environment department).
(44) CS Holling, ed, Adaptive Environmental Assessment and Management, International Series on Applied Systems Analysis, vol 3 (Chichester: Wiley, 1978). Contra Allen & Garmestani, supra note 34 at 3, who trace its origins back to the fisheries management work of Beverton and Holt in the 1950s.
(45) See John Jackson, Lubna Walayat & Bill Ross, "Adaptive Environmental Management Approaches in Relation to Environmental Assessment and Follow-up Programs for Environment Canada" (2006) at 3 (with petmission from Professor Ross, University of Calgary) [unpublished, on file with author].
(46) See Allen & Garmestani, supra note 34 at 3.
(47) Doremus, "New Age of Environmental Protection", supra note 5 at 52.
(48) Ana M Parma & NCEAS Working Group on Population Management, "What Can Adaptive Management Do for Our Fish, Forests, Food, and Biodiversity?" (1998) 1:1 Integrative Biology 16 at 19, cited in Doremus, "Information Problem", supra note 5. See also Schultz & Nie, supra note 8; Lance Gunderson, "Lessons from Adaptive Management: Obstacles and Outcomes" in Allen & Garmestani, supra note 34 at 28.
(49) Gunderson, supra note 48 at 27.
(50) Byron K Williams, Robert C Szaro & Carol D Shapiro, Adaptive Management: The U.S. Department of the Interior Technical Guide (Washington, DC: Adaptive Management Working Group, 2009,) at 1, online: <www2.usgs.gov/sdc/doc/DOI-%20Adaptive%20ManagementTechGuide.pdf>.
(51) Canadian Environmental Assessment Agency, "Operational Policy Statement: Adaptive Management Measures Under the Canadian Environmental Assessment Act", Canadian Environmental Assessment Agency (6 July 2016), online: <www.ceaa-acee.gc.ca/default.asp?lang=En&n=50139251-1&pedisable=true>.
(52) Robert Kundis Craig & JB Ruhl, "Designing Administrative Law for Adaprive Management" (2014) 67:1 Vand L Rev 1 at 7.
(53) Figure reproduced with permission from Carol Murray & David R Marmorek, "Adaptive Management: A Spoonful of Rigour Helps the Uncertainty Go Down" (Paper delivered at the 16th International Annual Meeting of the Society for Ecological Restoration, Victoria, 23-27 August 2004) at 2.
(54) Supra, note 35 at 950 [footnotes omitted].
(55) Rather, these authors describe adaptive management as "safe-fail", i.e. it should only be applied when failure is an acceptable outcome: Lorne Grieg & Carol Murray, "Peer Review of Rockfort Quarry Adaptive Management Plan", prepared for Caledon Coalition of Concerned Citizens (Terra Cotta: ESSA Technologies, 20 November 2008) at 6.
(56) Doremus, "New Age of Environmental Protection", supra 5 at 53.
(57) See Doremus, "Information Problem", supra note 7 at 1458 (in order for adaptive management to be useful there must be sufficient opportunities for learning).
(58) See Craig & Ruhl, supra note 52 at 13; Eric Biber, "Craig and Ruhl's Model Adaptive Management Procedures Act: Proposed Amendments" (2014) 51:1 Idaho L Rev 257 at 258.
(59) Craig & Ruhl, supra note 52 at 19.
(60) Murray & Marmorek, supra note 53 at 1.
(61) See Government of Alberta, Coal and Mineral Development in Alberta: 2015 Year in Review (Edmonton: Alberta Energy, 2016) at 12, online: <open.alberta.ca/publications/2291-1553>.
(62) See World Coal Association, "Coal Mining" (2017), online: <www.worldcoal.org/coal/coal-mining>.
(63) See PL Younger, "Environmental Impacts of Coal Mining and Associated Wastes: A Geochemical Perspective" in R Giere & P Stille, eds, Energy, Waste and the Environment: A Geochemical Perspective (London, UK: The Geological Society, 2004) 169 at 180-84.
(64) See World Coal Association, "Coal Mining", supra note 62.
(65) Ibid at 184.
(66) See Government of Alberta, Oil Sands Information Portal (2017), online: <osip.alberta.ca/map> [Government of Alberta, OSIP].
(67) For a discussion of these, see Canada, Office of the Auditor General, Report of the Commissioner of the Environment and Sustainable Development to the House of Commons. Chapter 2: Assessing Cumulative Environmental Effects of Oil Sands Projects (Ottawa: Office of the Auditor General, 2011), online: <www.publications.gc.ca/site/eng/9.569815/publication.html>.
(68) Robert Kunzig, "The Canadian Oil Boom: Scraping Bottom", National Geographic Magazine 215:3 (March 2009) 42 at 44, online: <ngm.nationalgeographic.com/2009/03/canadian-oil-sands/kunzig-text>.
(69) See Government of Alberta, OSIP, supra note 66.
(70) Simon Dyer & Marc Huot, "Mining vs In Situ" by Pembina Institute, fact sheet (27 May 2010), online: <www.pembina.org/reports/mining-vs-in-situ.pdf>.
(71) See Adam R Brandt, "Upstream Greenhouse Gas (GHG) Emissions from Canadian Oil Sands as a Feedstock for European Refineries" (2011) [unpublished, archived at Stanford University Department of Energy Resources Engineering] at 8.
(72) The Royal Society of Canada, Environmental and Health Impacts of Canada's Oil Sands Industry by Pierre Gosselin et al (Ottawa: Royal Society of Canada, 2010), online: <rsc-src.ca/sites/default/files/pdf/RSCreportcompletesecured9Mb_Mar28_ll.pdf>.
(73) Ibid at 29.
(74) SC 2002, c 29, Schedule 1, Par: 3 [SARA].
(75) SC 1994, c 22.
(76) The most high-profile such incident resulted in R v Syncrude Canada Ltd, 2010 ABPC 229 at para 45, 30 Alta LR (5th) 97. Syncrude was sentenced to pay approximately $3 million (CAD) following its conviction for the death of approximately 1,600 birds. See R v Syncrude Canada Ltd (22 October 2010), St Albert 090157926P1 (Alta Prov Ct), online: <www.mccatthy.ca/pubs/Syncrude_Ducks_Sentencing_Oct22_2010.pdf>.
(77) See Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 109, reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867].
(78) See ibid, s 92A.
(79) See ibid, s 92(13),
(80) See ibid, s 92(16).
(81) For a comprehensive analysis of the oil sands regime, see Nickie Vlavianos, The Legislative and Regulatory Framework for Oil Sands Development in Alberta: A Detailed Review and Analysis, Occasional Paper, vol 21 (Calgary: Canadian Institute of Resource Law, 2007).
(82) RSA 2000, c C-17.
(83) RSA 2000, c 0-7.
(84) RSA 2000, c E-12 [EPEA].
(85) RSA 2000, c W-3. Alberta has a "first in time, first in fight" water license allocation regime.
(86) The two exceptions are the northern territories (Yukon, the Northwest Territories, and Nunavut) and Canada's national parks system.
(87) See Constitution Act, 1867, supra note 77, s 91(10).
(88) See ibid, s 91(12).
(89) See Navigation Protection Act, supra note 40, s 8.
(90) See ibid, s 2 "navigable water".
(91) Supra note 40, ss 2(2), 35(1), 35(2).
(92) Supra note 85.
(93) See Environmental Assessment Regulation, Alta Reg 112/1993. This scheme was explained by the Alberta Court of Appeal in Castle-Crown Wilderness Coalition v Alberta (Director of Regulatory Assurance Division, Alberta Environment), 2005 ABC A 283 at paras 5-10, 52 Alta LR (4th) 17.
(94) For the EPEA, see Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta Reg 111/1993. For the CEAA, 2012, see Regulations Designating Physical Activities, SOR/2012-147.
(95) Supra note 40.
(96) See Canadian Council of Ministers of the Environment, "Canada-Wide Accord on Environmental Harmonization" (Ottawa: CCME, 29 January 1998), online: <www.ccme.ca/en/resources/harmonization/index.html>.
(97) See CEAA, 2012,supra note 33, ss 38-51.
(98) Ibid, s 53(1). See generally ibid, ss 52-54.
(99) According to Environmental Resource Centre v Canada (Minister of Environment), 2001 FCT 1423 at para 158, 214 FTR 94, there was a non-delegable duty to ensure the implementation of any mitigation measures relied upon in making a determination as to the significance of any adverse environmental effects, regardless of whether or not these fit within the mandate of the permitting agency.
(100) Alberta's standardized terms of reference were updated in 2016. See Alberta Environment and Parks, "Coal Mine Project" (July 2016), online: <aep.alberta.ca/land/land-industrial/programs-and-services/environmenral-assessment/default.aspx> [Alberta Environment and Parks, "Coal Mine Project"]; Albetta Environment and Parks, "In-Situ Project" (July 2016), online: <aep.alberta.ca/land/land-industtial/programs-and-services/environmental-assessment/default.aspx>; Alberta Environment and Parks, "Oil Sands Mine Project" (July 2016), online: <aep.alberta.ca/land/land-industrial/programs-and-services/environmental-assessment/default.aspx>.
(101) Alberta Environment and Parks, "Coal Mine Project", supra note 100 at 5.
(102) CEAA, 1992, supra note 33, s 38(5), as amended by SC 2003, c 9, s18. The reference to adaptive management in the context of follow-up programs is absent from the 2012 version.
(103) See e.g. Canadian Parks & Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197,  4 FC 672; Homalco Indian Band v British Columbia (Minister of Agriculture, Food & Fisheries), 2005 BCSC 283, 39 BCLR (4th) 263; Western Canada Wilderness Committee v British Columbia (Ministry of Forests, South Island Forestry District), 2003 BCCA 403,15 BCLR (4th) 229; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2002 BCCA 59, 98 BCLR (3d) 16; Environmental Resource Centre v Canada (Minister of Environment), 2001 FCT 1423, 214 FTR 94; Newfoundland & Labrador Wildlife Federation v Newfoundland (Minister of Environment & Labour), 2001 CarswellNFLD 129, 105 ACWS (3d) 90 (Nfld SC (TD)).
(104) 2008 FC 302, 165 ACWS (3d) 857 [Pembina Institute].
(105) Ibid at para 33.
(106) Alberta, Alberta Energy and Utilities Board & Government of Canada, EUB Decision 2007-013: Imperial Oil Resources Ventures Limited, Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) in the Fort McMurray Area, Report of the Joint Review Panel (Calgary: EUB & CEAA, 27 February 2007), online: <www.ceaa.gc.ca/050/documents/21349/21349E.pdf> [EUB, Kearl JRP Report], (Imperial Oil Resources Ventures Limited is a subsidiary of ExxonMobil.)
(107) Imperial Oil Resources Ventures, "Kearl" online: <www.imperialoil.ca/en-ca/company/operations/oil-sands/kearl>.
(108) Ibid at vii.
(109) Ibid n 5.
(110) Supra note 104 at para 32 (Tremblay-Lamer J paraphrasing Evans JA in Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197 at para 24,  FCJ No 703).
(111) Supra note 104 at pata 32.
(112) See Canada's Oil Sands Innovation Alliance, "Pit Lake Research", online: <www.cosia.ca/initiatives/watet/watet-projects/pit-lake-research> [COSIA].
(113) Pembina Institute, supra note 104 at para 56.
(114) Ibid at para 59.
(115) Ibid at para 62.
(116) Arlene J Kwasniak, "Use and Abuse of Adaptive Management in Environmental Assessment Law and Practice: A Canadian Example and General Lessons" (2010) 12:4J Environmental Assessment Policy & Management 425 at 450.
(117) Ibid at 451-52.
(118) Nathalie J Chalifout, "Case Comment: A (Pre)Cautionary Tale About the Kearl Decision--The Significance of Pembina Institute for Appropriate Development et al. v. Canada (Attorney-General) for the Future of Environmental Assessment" (2009) 5:2 JSDLP 251 at 280. CEAA, 2012, supra note 33, s 19(1) sets out this and other requirements.
(119) Ibid at 281.
(120) Olszynski, "Uses and Limitations", supra note 15 at 3.
(121) See Alberta, Federal Minister of the Environment & Energy Resources Conservation Board, Decision 2013 ABAER 011: Shell Canada Energy, Jackpine Mine Expansion Project, Application to Amend Approval 9756, Fort McMurray Area (Calgary: Alberta Energy Regulator & Canadian Environmental Assessment Agency, 9July2013),online: <www.ceaa.gc.ca/050/documents/p59540/90873E.pdf>.
(122) See ibid at para 278.
(123) See ibid at paras 318, 324.
(124) See ibid at paras 432-62.
(125) See ibid at para 489.
(126) See ibid at paras 547, 552.
(127) Ibid at para 641.
(128) See ibid at paras 652-53.
(129) Ibid at para 437.
(130) Ibid at para 1366.
(131) See Environment Canada, A Foundation for the Future: Building an Environmental Monitoring System for the Oil Sands, by Liz Dowdeswell et al, Report submitted to the Minister of Environment (Ottawa: Oilsands Advisot y Panel, December 2010); Alberta Environmental Monitoring Panel, A World Class Environmental Monitoring, Evaluation and Reporting System for Alberta: The Report of the Alberta Environmental Monitoring Panel (Edmonton: Alberta Environmental Monitoring Panel, June 2011).
(132) These numbers are based on a search of Westlaw eCarswell's database in the summer of 2016.
(133) 2011 ONSC 4655 at para 88,344 DLR (4th) 148.
(134) 2014 FC 463 at para 104,242 ACWS (3d) 842.
(135) RSA 2000, c F-25.
(136) Letter of Confirmation re: Access Request E15-G-0516 from Donna Harasymec, Access and Privacy Advisor, to Martin Olszynski (28 April 2015) [on file with author].
(137) The viewer is available online. See Alberta Environment and Parks, "Authorization Viewer" (2017), online: <avw.alberta.ca/ApprovalViewer.aspx>.
(138) A list of current and historic environmental impact assessments in Alberta is available online. See Alberta Environment and Parks, "Environmental Impact Assessments", Alberta Environment and Parks, online: <exts2.aep.alberta.ca/DocArc/EIA/Pages/default.aspx> [Alberta Environment and Parks, "Environmental Impact Assessments"].
(139) The Alberta Energy Regulator [AER] took over responsibility for all aspects of energy regulation in Alberta in 2013. See Responsible Energy Development Act, SA 2012, cR-17.3.
(140) Kimberly A Neuendorf, The Content Analysis Guidebook (Thousand Oaks: Sage Publications, 2002) at 1.
(141) See Vincent J Duriau, Rhonda K Reger & Michael D Pfarrer, "A Content Analysis of the Content Analysis Literature in Organization Studies: Research Themes, Data Sources, and Methodological Refinements" (2007) 10:1 Organizational Research Methods 5.
(142) These codes were developed following an initial scan of all the documents. The goal was to identify the primary issues for which adaptive management was being proposed. Where only one or two projects referred to a particular management issue, this was generally coded as "other".
(143) Intercoder reliability was assessed at 91 % for adaptive management definitions and the identification of management issues. Due to time and resource constraints, the remainder of the coding was carried out by the author alone.
(144) Brian C Chaffin & Hannah Gosnell, "Measuring Success of Adaptive Management Projects" in Allen & Garmestani, supra note 34 at 90.
(146) See Alberta Environment and Parks, "Document 00153125-00-00 Jackpine Oilsands Mine--Phase 1" (Edmonton: Alberta Environment and Parks, 23 June 2004) at 36 [Alberta Environment and Parks, "Jackpine--Phase 1"]; Alberta Environment and Parks, "Document 00046586-00-00 Kearl Oils Sands Mine Project" (Edmonton: Alberta Environment and Parks, 9 November 2007) at 41 [Alberta Environment and Parks, "Kearl Project"].
(147) Schultz & Nie, supra note 8 at 492.
(148) See Alberta Energy and Utilities Board & Government of Canada, Report of the EUB-CEAA Joint Review Panel, Cheviot Coal Project, Mountain Park Area, Alberta: EUB Applications No. 960313 and 960314, Cardinal River Coals Ltd., August 2000. Catalogue No Enl05-61/2000E (Calgary: EUB & CEAA, September 2000).
(149) Alberta Environment and Parks, "Document 00046972-01-00 Cheviot Coal Mine" (Edmonton: Alberta Environment and Parks, 1 November 2010) at 13-14 [Alberta Environment and Parks, "Cheviot"]. All EPEA approvals are available online on Alberta Environment and Parks' "Authorization Viewer", supra note 137.
(150) Alberta Environment and Parks, "Cheviot", supra note 149 at 14.
(151) Teck Coal Limited & Cardinal River Operations, "Grizzly Bear 10-Year Management Plan for the Cheviot Mine Permit Area" (Hinton: Teck Coal Limited, 15 April2011) at 18 [on file with author] [Teck, "Grizzly Bear Management Plan"].
(152) Teck, "2014 Annual Report on Mining and Reclamation" (31 March 2015), s 2.0 [on file with author] ["Cheviot Annual Grizzly Bear Program Summary"].
(153) Grande Cache Coal Company, Environmental Impact Statement for the Proposed No. 7 and 8 Mine Developments and Coal Processing Facility (October 2001).
(154) Alberta Environment and Parks, "Document 00155804-00-05 Grande Cache Coal Mine--Total Suspended Solids & Inspection Frequency" (Edmonton, Alberta Environment and Parks, 29 June 2012) at 10-11.
(155) Ibid at 12.
(156) Grande Cache Coal, "Updated Selenium Monitoring and Management Program Proposal" (30 September 2010) [on file with author] [Grande Cache Coal, "Selenium Management Proposal"].
(157) Grande Cache Coal, "Selenium Water Quality Monitoring Results" [on file with author] [Grande Cache Coal, "Selenium Monitoring Results"].
(158) Coalspur Mines Ltd, Application for Environmental Protection and Enhancement Act (EPEA) and Water Act Approvals for the Coalspur Mines--Vista Coal Project (June 2012).
(159) See Alberta Energy Regulator, Decision 2014ABAER 004: Coalspur Mines (Operations) Ltd., Applications for a Mine Permit Amendment, Coal Processing Plant Approval Amendment, Coal Mine Pit Licence, and Coal Mine Dump Licences, McLeod River Coal Field (Calgary: AER, 27 February 2014) [AER, Coalspur Mines Approval].
(160) Alberta Environment and Parks, "Document 00301345-00-00 Vista Coal Mine" (Edmonton: Alberta Environment and Parks, 22 August 2014) at 22.
(161) No joint review panel was struck for this project because of the Department of Fisheries and Oceans' [DFO] decision to "scope to trigger" for the purposes of the federal environmental assessment. This decision was unsuccessfully challenged in Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2006 FCA 31,  3 FCR610.
(162) True North Energy, Application for Approval of the Fort Hills Oil Sands Project (June 2001) [True North, Suncor Fort Hills EIS].
(163) Alberta Environment and Parks, "Document 00151469-00-01 Fort Hills Oilsands Project--Consolidate Overburden and Tailings to a New OPTA Area" (Edmonton: Alberta Environment and Parks, 15 May 2009) at 41-42; Alberta Environment and Parks, "Document 00151469-01-00 Fort Hills Oilsands Project", (Edmonton: Alberta Environment and Parks, 18 November 2014) at 46-48 [Alberta Environment and Parks, "Fort Hills"].
(164) Ibid at 52.
(165) Ibid at 53-54.
(166) Ibid at 55-56.
(167) Ibid at 66.
(168) See Letter from Michael Robinson, Senior Environmental Advisor, Suncor Energy to Don Weleschuk, Contaminant Hydrogeologist, Alberta Energy Regulator (10 June 2015) [on file with author] ["Letter from Michael Robinson"].
(169) Fort Hills Energy Corporation, "Bird Protection Plan" (Suncor Energy Operating, 5 February 2015) [on file with author] [Fort Hills, "Bird Protection Plan"].
(170) Suncor Energy Operating, "Wildlife Mitigation and Monitoring Plan" (Calgary, Suncor Energy Operating, February 2016 [on file with author].
(171) Shell Canada Limited, Application for Approval of the Jackpine Mine--Phase 1 (Calgary: Shell Canada, 31 May 2002) [Shell, Jackpine EIS].
(172) See Alberta Energy and Utilities Board & Government of Canada, Decision 2004-009: Shell Canada Limited, Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, Report of the Joint Review Panel (Calgary: EUB & CEAA, 5 February 2004), at 38,45,54,58,61,83,88.
(173) Alberta Environment and Parks, "Jackpine--Phase 1", supra note 146 at 35-36.
(174) See Shell Canada Energy, Jackpine Mine 2014 Environment Report, at 135-36 [on file with author] [Shell, 2014 Environment Report].
(175) Imperial Oil Resources Ventures Limited, Kearl Oil Sands Project--Mine Development, "Supplemental Information", s 8 (July 2005) at 8-100 [Imperial Oil, Kearl EIS].
(176) See EUB, Kearl JRP Report, supra note 106 at 16,43,49, 50,71.
(177) Alberta Environment and Parks, "Kearl Project", supra note 146 at 40-42.
(178) See Imperial Oil Resources Ventures Ltd, "2013 Annual Groundwater Monitoring Summary Report, Appendix 4: Basal McMurray Depressurization Plan", Kearl Oil Sands (179) Project (14 April 2014).
(179) Deer Creek Energy Limited, Application for Approval of the Joslyn North Mine Project (February 2006) (subsequently owned by Total E&P Canada Ltd) [Deer Creek, Joslyn EIS].
(180) See Federal Minister of the Environment & Energy Resources Conservation Board, Decision 2011-005: Total E&P Joslyn Ltd., Application for the Joslyn North Mine Project, Report of the Joint Review Panel, Decision 2011 ABERCB 005, CEAA Reference No 08-05-37519 (Calgary: ERCB & CEAA, 27 January 2011) at 36, 46, 65, 98, 157 [Joslyn JRP Report].
(181) Alberta Environment and Parks, "Document 00228044-00-00 Joslyn North Mine Project" (Edmonton: Alberta Environment and Parks, 6 September 2011) at 70 [Alberta Environment and Parks, "Joslyn North Mine"].
(182) Suncor Energy Inc, Application for Approval of the Firebag In-Situ Oil Sands Project(May 2000).
(183) Alberta Environment and Parks, "Document 00080105-01-00 Firebag Commercial In-Situ Oil Sands Project & Include Approval 82973-00-00" (Edmonton: Alberta Environment and Parks, 3 August 2012) at 37-38.
(184) Ibid at 48-49.
(185) For the purposes of their Comprehensive Wildlife Reports, all in situ proponents identified numerous mitigation objectives, with respect to which proponents committed to several measures. In their reports, these are usually expressed in tabular form, beginning with an overarching objective, metric, or indicator for assessing the extent of congruity with that objective, and followed by some information about the extent of monitoring, and the results of monitoring. See Table 5, below.
(186) Suncor Energy Inc, Firebag 2015 Comprehensive Wildlife Report (Calgary: Suncor Energy, 15 May 2015) [Suncor, Firebag CWR].
(187) Imperial Oil Resources, Application for the Cold Lake Expansion Projects Nabiye and Mahihkan North (April 2003).
(188) Alberta Environment and Parks, "Document 00073534-01-00 Cold Lake Operations" (Edmonton, Alberta Environment and Parks, 29 March 2011) at 38 [Alberta Environment and Parks, "Cold Lake"].
(189) Imperial Oil Resources, Comprehensive Wildlife Report(Imperial Oil Resources, 15May 2015) [on file with author] [emphasis added].
(190) Ibid at 61.
(191) Devon Canada Corporation, Application for Approval of the Devon Jackfish Project (November 2003).
(192) Alberta Environment and Parks, "Document 00224816-00-03 Jackfish 2 Project--Add Jackfish 3 Project & Amalgamate Approval 183875" (Edmonton, Alberta Environment and Parks, 28 November 2011) at 29 [Alberta Environment and Parks, "Jackfish 2 Project"].
(193) Ibid at 38.
(194) Devon Canada Corporation, Jackfish Enhanced Recovery In Situ Project: Comprehensive Wildlife Report--2015 Draft (Devon Canada Corporation, 30 June 2015) at 4 [on file with author] [emphasis added].
(195) MEG Energy Corp, Application for Approval of the Christina Lake Regional Project (July 2005).
(196) Alberta Environment and Parks, "Document 00216466-00-04 Christina Lake Regional Project--Phase 3 (Expansion)" (Edmonton, Alberta Environment and Parks, 9 February 2012) at 36-37 [Alberta Environment and Parks, "Christina Lake Project"].
(197) Ibid at 48.
(198) MEG Energy Corporation, Christina Lake Regional Project: Comprehensive Wildlife Report, Report No 1404610 (MEG Energy Corporation, 31 March 2015) at 7-43 [on file with author] [MEG, Christina Lake CWR].
(199) North American Oil Sands Corporation, Application for Approval of the Kai Kos Dehseh Project (August 2007) (now owned by Statoil).
(200) Alberta Environment and Parks, "Document 00241311-00-03 Leismer Project--Phase 2 (LAP2)" (Edmonton, Alberta Environment and Parks, 14 March 2014) at 42-43 [Alberta Environment and Parks, "Leismer Project"].
(201) Ibid at 55.
(202) Matrix Solutions, Comprehensive Wildlife Mitigation and Monitoring Report (2012 to 2014) Statoil Kai Kos Dehseh: EPEA Approval No. 00241311-00-03 (Calgary: Statoil Canada, May 2015) at 8-31, 33 [on file with author] [Statoil, CWR Kai Kos Dehseh].
(203) Athabasca Oil Sands Corp, Application for the MacKay River Commercial Project (December 2009) (now owned by Suncor Energy Inc) [MacKay River EIS].
(204) Alberta Environment and Parks, "Document 00048408-01-00 MacKay River SAGD In-Situ Project" (Edmonton, Alberta Environment and Parks, 10 August 2012) at 31.
(205) Ibid at 42.
(206) WorleyParsons, 2015 Comprehensive Wildlife Report Suncor Energy MacKay River SAGD Project (Calgary, Suncor Energy, 14 May 2015) at 115-139 [on file with author].
(207) Korea National Oil Corporation, Application for Approval of the Blackgold Expansion Project (December 2009).
(208) Alberta Environment and Parks, "Document 00246984-00-02 BlackGold SAGD Ptoject--Expansion Project" (Edmonton, Alberta Environment and Parks, 5 December 2013) at 27 [Alberta Environment and Parks, "BlackGold Project"].
(209) Ibid at 36-37.
(210) Cenovus FCCL Ltd, Application for Approval of the Narrow Lake Project (June 2010).
(211) Alberta Environment and Parks, "Document 00265959-00-00 Narrows Lake Project" (Edmonton, Alberta Environment and Parks, 13 August 2012) at 32-33 [Alberta Environment and Parks, "Narrows Lake Project"].
(212) Cenovus Enetgy, Narrows Lake Thermal Project: Three Year Comprehensive Wildlife Report (2012-2014) (Cenovus Energy, 15 May 2015) at 6-42 [on file with authot] [Cenovus, Narrows Lake CWR].
(213) Japan Canada Oil Sands Ltd, Application for Approval of the JACOS Hangingstone Expansion Project (April 2010) [JACOS, Japan Hangingstone EIA].
(214) Alberta Environment and Parks, "Document 00153105-00-00 Hangingstone Expansion Project" (Edmonton, Alberta Environment and Parks, 17 January 2013) at 32-33 [Alberta Environment and Parks, "Hangingstone Project"].
(215) Ibid at 43-44.
(216) Matrix Solutions Inc, 2015 Comprehensive Wildlife Report for the JACOS Hangingstone Expansion Project (Calgary: Matrix Solutions Inc, 15 May 2015).
(217) Osum Oil Sands Corp, Application for Approval of the Taiga Project (December 2009) [Osum, Taiga EIA].
(218) Alberta Environment and Parks, "Document 00253979-00-00 Taiga In-Situ Project" (Edmonton, Alberta Environment and Parks, 30 November 2012) at 32-33 [Alberta Environment and Parks, "Taiga Project"].
(219) Ibid at 43.
(220) See MacKay River Project EIS, supra note 203.
(221) For the purposes of these figures, only the issues that received two or more mentionsare presented. The rest were grouped together under the "Other Issues" category.
(222) Alberta Energy and Utilities Board & Canadian Environmental Assessment Agency, Report of the EUB-CEAA Joint Review Panel, Cheviot Coal Project, Mountain Park Area, Alberta: EUB Applications No. 960313 and 960314, Cardinal River Coals Ltd., August 2000, Catalogue No En 105-61/2000E (Calgary: Alberta Energy and Utilities Board & Canadian Environmental Assessment Agency, September 2000) at 64 [EUB, Cheviot JRP Report].
(223) True North, Suncor Fort Hills EIS, supra note 162 at 7-79-7-80.
(224) EUB, Kearl JRP Report, supra note 106 at 50.
(225) EUB, Cheviot JRP Report, supra note 222 at 101.
(227) The earliest reference to adaptive management in the Canadian environmental assessment context was "in the 1997 Panel Report of the Ekati Diamond Mine in the Northwest Territories, not pursuant to CEAA but rather the previous Federal Environmental Assessment and Review Process": Olszynski, "Uses and Limitations", supra note 15, n 7. See Canadian Environmental Assessment Agency, NWT Diamonds Project, Report of the Environmental Assessment Panel (Ottawa: CEAA, June 1996).
(228) For the history of this policy and its implementation, see David W Poulton, "Offsetting for 'Serious Harm': The Recent Evolution of Section 35 of the Fisheries Act, 1985" (2016) 29 J Envtl L & Prac 19 at 27, citing Fisheries and Oceans Canada, Policy for the Management of Fish Habitat (Ottawa: DFO, 1986) at 7.
(229) Imperial Oil, Kearl EIS, supra note 175, s 8 at 8-100.
(230) Joslyn JRP Report, supra note 180 at 65.
(231) Ibid. While outside the scope of this paper, the author has filed an access to information request with the Department of Fisheries and Oceans (DFO) for copies of the section 35 authorizations issued for the oil sands projects listed in this paper. The department has indicated that this request will take approximately 24 months to process.
(232) True North, Suncor Fort Hills EIS, supra note 162, vol 1, s 6.2 at 6-2.
(233) See Alberta Energy and Utilities Board & Government of Canada, EUB Decision 2004-005: Canadian Natural Resources Limited, Application for an Oil Sands Mine, Bitumen Extraction Plant, and Bitumen Upgrading Plant in the Fort McMurray Area, Report of the Joint Review Panel (Calgary, EUB, 5 February 2004) at 1, 41.
(234) The Cumulative Environmental Management Agency (CEMA) describes itself as "the leading multi-stakeholder group" advising governments on the management of the cumulative effects of regional development in the oil sands region: Cumulative Environmental Management Agency, "About CEMA", CEMA: Studying Cumulative Effects in Wood Buffalo (2012), online: <cemaonline.ca/index.php/about-us>. However, CEMA has been widely criticized as ineffective. See Chalifour, supra note 118 at 282; Steven A Kennett, Closing the Performance Gap: The Challenge for Cumulative Effects Management in Alberta's Athabasca Oil Sands Region, Occasional Paper, vol 18 (Calgary: Canadian Institute of Resources Law, 2007), online: <dspace.ucalgary.ca/bitstream/1880/47191/1/OP18Athabasca.pdf>.
(235) See Alberta Energy and Utilities Board & Government of Canada, Decision 2004-009: Shell Canada Limited, Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, Report of the Joint Review Panel (Calgary: EUB, CEAA, 5 February 2004) at 1, 30, 41 [EUB, Shell Jackpine JRP Report].
(236) See Martin ZP Olszynski, "Environmental Monitoring and Ecosystem Management in the Oil Sands: Spaceship Earth or Escort Tugboat?" (2014) 10:1 JSDLP 11 at 31.
(237) See Alberta Environment and Parks, "Athabasca Rivet Water Management Framework" (Edmonton: Alberta Environment and Parks, 11 March 2011).
(238) Alberta Environment and Parks, "Lower Athabasca Region Surface Water Quantity Management Framework for the Lower Athabasca River" (Edmonton: Alberta Environment and Parks, February 2015), online: <aep.alberta.ca/land/cumulative-effects/regional-planning/documents/LARP-SurfaceWaterQuantity-Feb2015.pdf>.
(239) Alberta Environment and Parks, "Lower Athabasca Regional Plan 2012-2022" (Edmonton: Alberta Environment and Parks, 2012), online: <landuse.alberta.ca/LandUse%20Documents/Lower%20Athabasca%20Regional%20Plan%202012-2022%20Approved%202012-08.pdf>.
(240) See Bob Weber, "Alberta's Plan for Athabasca River 'Pathetic,' Not Science-Based: Critics", Canadian Press (19 March 2014), online: <www.ctvnews.ca>.
(241) See Alberta Environment and Parks, "Lower Athabasca Region Surface Water Quantity Management Framework for the Lower Athabasca River", supra note 238 at 30.
(242) It is possible that these licenses incorporate some elements of adaptive management without explicitly referring to the term (e.g. monitoring), but such an approach renders the exercise exceedingly opaque, furthering concerns about transparency and accountability.
(243) Shell, Jackpine EIS, supra note 171, vol 3, s 126.96.36.199, at 4-113-4-114 [emphasis added].
(244) Ibid at 4-113.
(245) Ibid at 4-114.
(246) EUB, Shell Jackpine JRP Report, supra note 235 at 49.
(247) Supra note 74, Schedule 1, Part 3.
(248) 16 USC [section][section] 1531-34 (2010). See e.g. Doremus, "New Age Environmental Protection" supra note 5 at 66-74 (cautioning against the use of adaptive management in this context). Contra JB Ruhl, "Taking Adaptive Management Seriously: A Case Study of the Endangered Species Act" (2003-04) 52 U Kan L Rev 1249 at 1277-80 (advocating the use of adaptive management in this context).
(249) Shell Canada Limited, Application for Approval of the Pierre River Mine Project Volume 2: Project Description (Calgary: Shell Canada Limited, December 2007) at GL-1 [emphasis added]. To be considered a "definition" the document had to describe adaptive management in the abstract as opposed to in the context of a specific application.
(250) Coalspur Mines (Operations), Vista Coal Mine Project Application for Approval, s F (Hinton: Coalspur Mines, 30 April 2012) at F-14 [Coalspur, Vista Mines EIS].
(251) True North, Suncor Fort Hills EIS, supra note 162, vol 1, s 6.2 at 6-2.
(252) MEG Energy, MEG Energy Corp. Christina Lake Regional Project Supplemental Information (Calgary: MEG Energy, May 2006) at 199.
(253) Coalspur, Vista Mines EIS, supra note 250 at s 9.2.
(254) See Doremus, "Information Problem", supra note 7 at 1479.
(255) See ibid at 1478-79.
(256) Fischman & Ruhl, "AM in the Courts 2010", supra note 1 at 441.
(257) EUB, Cheviot JRP Report, supra note 222 at 64 [emphasis added]. See also True North, Suncor Fort Hills EIS, supra note 162, vol 3, s 7 (end-pit lakes are "likely to support viable aquatic ecosystems" but also "can be designed... to achieve various end uses" at 7-79-7-80); EUB, Kearl JRP Report, supra note 106 (refers to end-pit lake watet being "of acceptable quality" at 43).
(258) Coalspur Mines (Operations), Vista Coal Mine Project EPEA and Water Act Application, s 8 (Hinton: Coalspur Mines, June 2012) at 8-1 [emphasis added].
(259) Ibid, s 8 at 8-9 [emphasis added]. Sec also Shell, Jackpine EIS, supra note 171 at 16.3.1 (with respect to reclamation).
(260) See e.g. Imperial Oil Resources, Cold Lake Expansion Projects Nabiye and Mahihkan North: Supplemental Information, s 10 (Calgary: Imperial Oil Resources, April 2003) ("Imperial Oil... will initiate such a program after further consultation with [the regulator]" at 10-16); JACOS, Japan Hangingstone EIA, supra note 213: ("[t]he frequency of surface water monitoring would be designed to evaluate the potential impacts.... More frequent monitoring might be implemented in cases where more immediate impacts are possible.... The criteria used to evaluate data obtained by these monitoring programs would be developed and authorized by [the regulator]": ibid, vol 2A, s 8.7 at 8-60); Osum, Taiga EIA, supra note 217 ("Osum will develop appropriate vegetation and wetland monitoring programs in consultation with provincial regulators... once the Project has been approved. These programs will allow for adaptive management strategies to be incorporated": ibid, vol 4, s 10 at 10-83).
(261) See e.g. Management and Solutions in Environmental Science, "Review of Japan Canada Oil Sands Limited's Hangingstone Expansion Draft EIA Application" in Japan Canada Oil Sands, JACOS Hangingstone Expansion Project Supplemental Submission, Appendix 18A (Calgary: JACOS, December 2010) at 76; MacKay River EIS, supra note 203 at SIR 1.5.4: "...typically, detailed monitoring programs for each of these disciplines are developed in consultation with [the regulator] once scheme approval of the project has been granted".
(262) See e.g. Coalspur, Vista Mines EIS, supra note 250, s F ("[a]daptive management may be used at any point throughout the project life cycle, but will have the greatest benefit in the early planning stages when the location and compositions of landforms are still to be decided" at F-14); Shell, Jackpine EIS, supra note 171 at 16.3.1 (with respect to reclamation).
(263) AER, Coalspur Mine Approval, supra note 159 at para 77.
(264) Ibid at para 78.
(265) This gap is in addition to the gap between the number of operating mines and in situ projects in Alberta and the number of projects containing adaptive management in their EPEA approvals.
(266) Imperial Oil, Kearl EIS, supra note 175.
(267) The author sent an access to information request to the DFO for copies of all Fisheries Act section 35 authorizations issued to the oil sands mines considered here. The DFO responded that the request would take up to two years.
(268) The scholarship might point to budgetary or other resource constraints (see e.g. Fischman & Ruhl, "AM in the Courts", supra note 1 at 442). Alternatively, the regulator may have determined that adaptive management was not appropriate in those circumstances. Unfortunately, the documents considered here did not shed any light on this issue.
(269) Alberta Environment and Parks, "Fort Hills", supra note 163 at 48, 52, 54, 56, 66.
(270) Readers may have noted that the Total E&P Canada Joslyn North Mine Project EPEA approval (the most recent oil sands mine in Table 2) is the only other approval to refer to adaptive management in the context of a bird protection plan. See Alberta Environment and Parks, "Joslyn North Mine", supra note 181 at 70.
(271) See Doremus, "Information Problem", supra note 7 at 1477.
(272) As will be seen, the required reports can include a broad range of wildlife matters, including: vehicle-wildlife collisions and other human-wildlife interactions, noise and light pollution, direct habitat loss, etc.
(273) Alberta Environment and Parks, "Cheviot", supra note 149 at 14.
(274) Alberta Environment and Parks, "Fort Hills", supra note 163 at 42; Alberta Environment and Parks, "Jackpine--Phase 1", supra note 146 at 36; Alberta Environment and Parks, "Kearl Project", supra note 146 at 41.
(275) Alberta Environment and Parks, "Joslyn North Mine", supra note 181 at 70.
(276) Alberta Environment and Parks, "Document 00080105-01-00 Firebag Commercial In-Situ Oil Sands Project & Include Approval 82973-00-00" (Edmonton: Alberta Environment and Parks, 3 August 2012) at 38 [Alberta Environment and Parks, "Firebag Project"]; Alberta Environment and Parks, "Cold Lake", supra note 188 at 38; Alberta Environment and Parks, "Jackfish 2 Project, supra note 192 at 29; Alberta Environment and Parks, "Christina Lake Project, supra note 196 at 37; Alberta Environment and Parks, "Leismer Project", supra note 200at 43 [Alberta Environment and Parks, "Leismer Project"]; Alberta Environment and Parks, "Document 00048408-01-00 MacKay River SAGD In-Situ Project" (Edmonton, Alberta Environment and Parks, 10 August 2012) at 31 [Alberta Environment and Parks, "Mackay River Project"]; Alberta Environment and Parks, "BlackGold Project", supra note 208 at 27; Alberta Environment and Parks, "Narrows Lake Project", supra note 211 at 33; Alberta Environment and Parks, "Hangingstone Project~ supra note 214 at 33; Alberta Environment and Parks, "Taiga Project" supra note 218 at 33.
(277) Alberta Environment and Parks, "Firebag Project", supra note 276 at 49; Alberta Environment and Parks, "Jackfish 2 Project", supra note 192 at 38; Alberta Environment and Parks, "Christina Lake Project", supra note 196 at 48; Alberta Environment and Parks, "Leismer Project", supra note 200 at 55; Alberta Environment and Parks, "Mackay River Project", supra note 276 at 42; Alberta Environment and Parks, "BlackGold Project", supra note 208 at 37; Alberta Environemnt and Parks, "Narrows Lake Project" supra note 211 at 43; Alberta Environment and Parks, "Hangingstone Project", supra note 214 at 44; Alberta Environment and Parks, "Taiga Project", supra note 218 at 43.
(278) The tendency to conflate adaptive management with compliance monitoring and a general commitment to adjust is discussed by Professors Schultz and Nie, supra note 8, and warned against by the AER in its decision on Coalspur's Vista mine. See AER, Coalspur Mine Approval, supra note 263 at 78.
(279) In a letter to the AER, Suncor Energy ("Suncor") indicated that its Basal McMurray Depressurization Plan "will be provided under a separate covet" and that this plan will "tequire authorization as part of the Groundwater Management Plan, as required in sections 4.5.1 (o) and (p) of the EPEA Approval": Letter from Michael Robinson, supra note 168.
(280) Suncor Energy Operating, "Wildlife Mitigation and Monitoring Plan" (Calgary, Suncor Energy Operating, February 2016 [on file with author].
(281) Ibid, s 3.1.1 [emphasis added]. Suncor also refers to adaptive management as part of its mitigation of vehicle-wildlife collisions, but provides no details: "Adaptive management of wildlife signage and speed limits based on data from the interactive, online wildlife reporting system" (at s 2.2.2).
(282) See ibid at s 3.1.5.
(283) Ibid at s 3.1.4 [emphasis added].
(285) Fort Hills, "Bird Protection Plan", supra note 169.
(287) Shell, 2014 Environment Report, supra note 174at81-82, 145.
(288) Teck, "Grizzly Bear Management Plan", supra note 151.
(289) Grande Cache Coal, "Selenium Management Proposal", supra note 156.
(290) Teck, "Grizzly Bear Management Plan", supra note 151 at 3.
(291) Ibid at 4.
(292) For example, objective one is to "[m]ine and reclaim the landscape to return safe and effective habitat for grizzly bears"; objective four is to minimize conflicts between humans and grizzly bears. See ibid.
(293) For example, objective three is to "[i]mprove knowledge of grizzly bear response to mining land use during active mining and at varying stages of reclamation"; objective five is to "[e]ncourage and support grizzly bear... management initiatives": ibid at 3. To be clear, improving knowledge is a laudable goal, and the primary goal of adaptive management, but improving knowledge is not in and of itself adaptive management. Without a tether to a proposed management action or mitigation measure, it is simply research.
(294) Teck, "Grizzly Bear Management Plan", supra note 151 at 4-10.
(295) Ibid at 4, 5.
(296) Ibid at 5.
(297) Ibid at 5.
(298) Ibid at 5.
(299) Ibid at 12 [emphasis added]. See ibid at 12-17.
(300) See ibid at 14, 15, 16.
(301) Ibid at 16.
(302) See e.g. ibid at 15.
(303) See ibid at 18.
(304) See ibid:
Through the adaptive management process, management intervention becomes a tool to understand the effects of a given management action on the ecosystem. Interventions and related management strategies are typically designed to test predictions about the functioning of less certain aspects of the ecosystem. Adaptive management permits the assessment of ecosystem response to identify uncertainties; methodologies can then be established to test predictions concerning those uncertainties.
(306) See Ibid, Appendix A at A-7.
(307) Ibid, Appendix A at A-32.
(308) Ibid at 21.
(309) Table 4 is a reproduction of two of the "Adaptive management framework and approaches" provided in Table 5.1 of Teck's "Grizzly Bear 10-Year Management Plan for the Cheviot Mine Permit Area", supra note 151 at 21.
(310) These kinds of frameworks were also encountered for all of the in situ reports.
(311) Supra note 8 at 491. See text accompanying note 147.
(312) The "Ptediction" column in Table 4 seems to serve as a hypothesis in the first tow (for ungulate occurrence), but as an objective in the second tow (for incidental use by the public).
(313) Teck, "Grizzly Bear Management Plan", supra note 151 at 21.
(314) Cheviot Annual Grizzly Beat Program Summary, supra note 152.
(315) Ibid at 2.
(316) See ibid at 3.
(317) See B Cristescu et al, "Ecological Effects of Mine Reclamation on Grizzly Bears" (Paper delivered at the British Columbia Mine Reclamation Symposium, September 2012), online: <open.library.ubc.ca/cIRcle/collections/59367/items/1.0042626> [unpublished, archived at University of British Columbia Library's Open Collections]; Bogdan Cristescu, Grizzly Bear Response to Open-Pit Mining in Western Alberta, Canada (PhD Thesis, University of Alberta Department of Biological Sciences, 2013) [unpublished, archived at University of Alberta Libraries]; Bogdan Cristescu et al, "An RSF Framework for Assessing Wildlife Occurrence on Industrially Modified Landscapes" (2013) [on file with authot].
(318) See Teck, "Grizzly Bear Management Plan", supra note 151 at 4.
(319) See Cheviot Annual Grizzly Bear Program Summary, supra note 152 at 6.
(320) Ibid at 5.
(321) Grande Cache Coal, "Selenium Management Proposal", supra note 156.
(322) Grande Cache Coal, "Selenium Monitoring Results", supra note 157.
(323) See ibid.
(324) Grande Cache Coal, "Selenium Management Proposal", supra note 156 at 1.
(325) See ibid at 43. The precise wording, found in Peter M Chapman's Selenium Monitoring and Management--New Mines and included by Grande Cache Coal as part of their plan, is as follows: "This [management response] tier will only be triggered if the results of Tier 2 indicate that adverse effects are occurring to resident fish and/or waterbirds related to selenium, and there is reasonable certainty that, if appropriate management actions are not taken, impacts will ensue": Peter M Chapman, Selenium Monitoring and Management--New Mines (Paper delivered at the British Columbia Mine Reclamation Symposium, September 2005) [unpublished, archived at University of British Columbia Library's Open Collections] under "Tier 3: What Management Actions are Necessary When There is a Realistic Risk of Impact(s)?" [emphasis added].
(326) See Grande Cache Coal, "Selenium Management Proposal", supra note 156 at 43. See also Table 2 in Peter M Chapman, Selenium Monitoring and Management--New Mines, supra note 325 under "Table 2. Selenium Management Options".
(327) Grande Cache Coal, Selenium Management Proposal, supra note 156 at 43.
(328) Ibid at 35.
(330) Ibid at 41.
(331) See "Comments/Questions from SRD Foothills Area Re: Updated Selenium Monitoring and Management Program" at 1 [on file with author]:
Since Beaverdam Creek is affected by mining and risk has been assessed as high and likely to continue without the mitigation to Se release, and [Grande Cache Coal] has taken the approach that treatment is too expensive. Describe how adaptive management actually being used to support better mining practices that support ecological recovery and health?
(332) Reclamation Monitoring Program proposals were not assessed due to time and resource constraints.
(333) WorleyParsons, 2015 Comprehensive Wildlife Report Suncor Energy MacKay River SAGD Project (Calgary, Suncor Energy, 14 May 2015) at v [on file with author].
(334) Performance monitoring is, essentially, the extent to which a proponent has conformed to some policy-based standard.
(335) See supra note 8.
(336) See Alberta Energy Regulator, "Directive 038: Noise Control" (Calgary: ERCB, 16 February 2007).
(337) See WorleyParsons, 2015 Comprehensive Wildlife Report Suncor Energy MacKay River SAGD Project (Calgary, Suncor Energy, 14 May 2015) at 115 [on file with author] [Suncor, CWR MacKay River].
(338) See Imperial Oil Resources, Comprehensive Wildlife Report (Imperial Oil Resources, 15 May 2015) at 36 [on file with author] [Imperial Oil, CWR].
(339) See Suncor, CWR MacKay River, supra note 337 at 115; Devon Canada Corporation, Jackfish Enhanced Recovery In Situ Project: Comprehensive Wildlife Report--2015 Draft (Devon Canada Corporation, 30 June 2015) at 13 [on file with author] [Devon, Jackfish CWR]; Imperial Oil, CWR, supra note 339 at 36.
(340) See Suncor, CWR MacKay River, supra note 337 at 116.
(341) See Suncor, Firebag CWR, supra note 186.
(372) See ibid.
(343) See Devon, Jackfish CWR at 13, supra note 339.
(344) See Imperial Oil, CWR, supra note 338 at 36.
(345) See ibid at 36.
(346) See Suncor, CWR MacKay River, supra note 337 at 116.
(347) See ibid.
(348) See Devon, Jackfish CWR, supra note 339 at 18.
(349) See Suncor, CWR MacKay River, supra note 337 at 117.
(350) See Suncor, Firebag CWR, supra note 186.
(351) See ibid.
(352) Devon, Jackfish CWR, supra note 339 at 18.
(353) Suncor, CWR MacKay River, supra note 337 at 127. See also Imperial Oil, CWR, supra note 338 at 46.
(354) Suncor, CWR MacKay River, supra note 337 at 127.
(355) See Suncor, CWR MacKay River, supra note 340 at 128.
(356) See Suncor, Firebag CWR, supra note 186.
(357) See Imperial Oil Resources, CWR, supra note 338 at 46.
(358) See ibid.
(359) Suncor, CWR MacKay River, supra note 337 at 128.
(360) Imperial Oil, CWR, supra note 338 at 44.
(361) Suncor, CWR MacKay River, supra note 337 at 128.
(362) Imperial Oil, CWR, supra note 338 at 44.
(363) See Suncor, CWR MacKay River, supra note 337 at 129.
(364) See Suncor, Firebag CWR, supra note 186.
(365) See Imperial Oil, CWR, supra note 338 at 45.
(366) Suncor, CWR MacKay River, supra note 337 at 130.
(371) Devon, Jackfish CWR, supra note 339 at 32.
(372) Imperial Oil, CWR, supra note 338 at 49. t
(373) See Suncor, CWR MacKay River, supra note 337 at 132.
(374) See Suncor, Firebag CWR, supra note 186.
(375) See Devon, Jackfish CWR, supra note 339 at 32.
(376) See Imperial Oil, CWR, supra note 338 at 50.
(377) Suncor, CWR MacKay River, supra note 337 at 124.
(378) Seeibid; Devon, Jackfish CWR,supra note339 at 16; Imperial Oil, CWR,supra note 338 at 33.
(379) See Suncor, CWR MacKay River, supra note 337 at 125.
(380) See Suncor, Firebag CWR, supra note 186.
(382) See Devon, Jackfish CWR, supra note 339 at 16.
(383) See ibid at 17.
(384) See Imperial Oil, CWR, supra note 338 at 33.
(385) ibid at 122.
(387) See Devon, Jackfish CWR, supra note 339 at 21.
(388) See Imperial Oil, CWR, supra note 338 at 51.
(389) See Suncor, CWR MacKay River, supra note 333 at 123.
(390) See Suncor, Firebag CWR, supra note 186.
(391) See Devon, Jackfish CWR, supra note 339 at 21.
(392) See Imperial Oil, CWR, supra note 338 at 52.
(393) See Suncot, CWR MacKay River, supra note 337 at 120.
(394) See ibid.
(395) Devon, Jackfish CWR, supra note 339 at 27.
(396) See Suncor, CWR MacKay River, supra note 337 at 121.
(397) See Suncor, Firebag CWR, supra note 186.
(398) See Devon, Jackfish CWR, supra note 339 at 27.
(399) Suncor, CWR MacKay River, supra note 337 at 135.
(401) Imperial Oil, CWR, supra note 338 at 48.
(402) See Suncor, CWR MacKay River, supra note 337 at 135.
(403) Suncor, CWRMacKay River, supra note 337 at 135.
(404) See Devon, Jackfish CWR, supra note 339 at 37.
(405) See Imperial Oil, CWR, supra note 338 at 47.
(406) See Suncor, CWR MacKay River, supra note 337 at 136.
(407) See Suncor, Firebag CWR, supra note 186.
(408) See ibid.
(409) See Devon, Jackfish CWR, supra note 339 at 37.
(410) Suncor, CWR MacKay River, supra note 337 at 138.
(411) Imperial Oil, CWR, supra note 338 at 22.
(413) Devon, Jackfish CWR, supra note 339 at 40.
(414) Imperial Oil, CWR, supra note 338 at 22.
(415) See ibid at 139.
(416) See Suncor, Firebag CWR, supra note 186.
(417) See ibid.
(418) See Devon, Jackfish CWR, supra note 339 at 40.
(419) See Imperial Oil, CWR, supra note 338 at 23.
(420) With respect to "adaptive mitigation", Schultz & Nie, supra note 8, observe that "in some cases the link between monitoring information and adapting management actions is not entirely clear": ibid at 492.
(421) See MEG, Christina Lake CWR, supra note 198 at iii.
(423) Cenovus, Narrows Lake CWR, supra note 212 at 10.
(424) MEG, Christina Lake CWR, supra note 198 at iv [emphasis added].
(425) Imperial Oil, CWR, supra note 338 at 61.
(426) Statoil, CWR Kai Kos Dehseh, supra note 202 at 33 [on file with author].
(427) See ibid.
(428) Imperial Oil, CWR, supra note 338 at 54.
(429) See Imperial Oil, CWR, supra note 338 at 55; Devon, Jackfish CWR, supra note 339 at 50; Cenovus, Narrows Lake CWR, supra note 212 at 9.
(430) Imperial Oil, CWR, supra note 338 at 55.
(431) Cenovus, Narrows Lake CWR, supra note 212 at 9.
(432) At this time, there does not appear to be a need in Canada for a unified, administrative-law-focussed Adaptive Management Act such as that proposed by Professors Craig and Ruhl in their recent article, "Designing Administrative Law for Adaptive Management", supra note 52 at 49. First and foremost, unlike their American counterparts, Canadian departments and agencies are not governed by a single federal administrative law statute that sets out binding rules regarding statutory decision making or the promulgation of regulations. Some such statutes do exist at the provincial level, but their scope is often limited (see e.g. Alberta's Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, which, per section 2, only applies to a handful of decision-making tribunals). That being said, Professors Craig and Ruhl's model legislation does contain numerous provisions that should be considered in drafting any such legislation in Canada.
(433) See e.g. AER, Coalspur Mine Approval, supra note 233 at para 77. See also Ontario, Office of Consolidated Hearings, 08-094 Walker Aggregates Inc. (Clearview: Environment and Land Tribunals Ontario, 18 June 2012), online: <www.woodbull.ca/docs/default-source/omb/walker-aggregates-inc-v-niagara-escarpment-commission-et-al> (requiting an adaptive management plan to be an enforceable condition of a permit), and most recently National Energy Board, Trans Mountain Expansion Project, OH-001-2014 (Calgary, National Energy Board, May 2016) at 165-66 (recognizing that adaptive management should not be relied upon in determining significant adverse environmental effects under the CEAA, 2012).
(434) This term is borrowed from Alejandro E Camacho, "Can Regulation Evolve? Lessons from a Study in Maladaptive Management" (2007) 55:2 UCLA L Rev 293.
(435) For two recent examples in the environmental assessment context, see Gitxaala Nation v Canada, 2016 FCA 187 at paras 124-25,  FCJ No 705 (holding that the adequacy of the environmental assessment of a controversial pipeline project was for Cabinet, not the courts, to determine) and Ontario Power Generation Inc v Greenpeace Canada, 2015 FCA 186, 388 DLR (4th) 685 (holding that federal environmental assessment legislation only requires "some consideration" of environmental effects, and that the court is not to act as "an academy of science": at para 126, quoting Inverhuron & District Ratepayers' Assn v Canada (Minister of the Environment), 191 FTR20 at para 71,  FCJ No 682 (FCTD)).
(436) See Craig & Ruhl, supra note 52 at 63: "'Adaptive management' means a decisionmaking process based on the structured and iterative implementation of management measures, with comprehensive monitoring of relevant system indicators, in the attempt to achieve specific management goals or objectives, reduce uncertainty, or increase knowledge about the system that an agency is charged with managing" [emphasis added]. See also Grieg & Murray, supra note 55 at 6.
(437) See Doremus, "Information Problem", supra note 7 at 1481.
(438) See Fischman & Ruhl, "AM in the Courts", supra note 1 at 482: "Congress should explicitly require adaptive management plans to (1) clearly articulate measurable goals, (2) identify testable hypotheses (of some other method of structured learning from conceptual models), and (3) state exactly what criteria should apply in evaluating the management experiments. These requirements would address the vast majority of nonbudgetary problems with a/m-lite." See also Robin Kundis Craig, "'Stationarity is Dead'--Long Live Ttansformation: Five Principles for Climate Change Adaptation Law" (2010) 34:1 Harv Envtl L Rev 9 at 65 (discussing the challenges associated with climate change): "Legislatures and policymakers should thus incorporate comprehensive and pervasive adaptive management requirements and procedures into natural resource management statutes."
(439) See Schultz & Nie, supra note 8 at 516.
(440) See Doremus, "Information Problem" supra note 7 at 1478-83.
(441) See ibid.
(442) See Fisheries Act, supra note 39, ss 6, 6.1, 35.
(443) See SARA, supra note 74, s 73(2)(c).
(444) SARA, supra note 74, s73(3)(c). See e.g. Doremus, "Information Problem", supra note 7 at 1485 (regarding the US Endangered Species Act of 1973).
(445) Supra note 33, s 38(5). See the text accompanying note 102.
(446) CEAA, 2012, supra note 33, s 19(d); Chalifour, supra note 118 at 269-71.
(447) CEAA, 2012, supra note 33, s 4(2).
(448) See e.g. Benidickson et al, supra note 18 at B-9-B-10.
(449) See Chalifour, supra note 118 at 283.
(450) See Canadian Environmental Assessment Agency, Report of the Joint Review Panel--Lower Churchill Hydroelectric Generation Project, Nalcor Energy, Newfoundland and Labrador (Ottawa: CEAA, August 2011).
(451) Some such provisions are already provided for in the SARA. See e.g. the first two allowable purposes for issuing an incidental take permit are related to research and conservation goals: "The agreement may be entered into, of the permit issued, only if the competent minister is of the opinion that (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; [or] (b) the activity benefits the species of is required to enhance its chance of survival in the wild": SARA, supra note 74, s 73(2)(a)-(b).
(452) See Ctaig & Ruhl, supra note 52 at 31.
(453) See supra note 138.
(454) Supra note 74, Schedule 1, Part 3.
(455) Alberta Environment and Parks, Setting Alberta on the Path to Caribou Recovery, by Eric Denhoff (Edmonton: Alberta Environment and Parks, 30 May 2016) at iii (Mr. Denhoff was appointed as a mediator "to engage stakeholders and provide advice and recommendations" to the provincial government: Alberta Environment and Parks, "Caribou Action and Range Planning" (25 May 2017), online: <aep.alberta.ca/fish-wildlife/wildlife-management/caribou-management/caribou-action-range-planning/default.aspx>).
(456) See Council of Canadian Academies, Technological Prospects for Reducing the Environmental Footprint of Canadian Oil Sands: The Expert Panel on the Potential for New and Emerging Technologies to Reduce the Environmental Impacts of Oil Sands Development (Ottawa: Council of Canadian Academies, 2015) at xvii-xviii.
(458) Ibid at xviii.
(459) See COSIA, supra note 112.
(462) Olszynski, "Uses and Limitations" supra note 15 at 30.
(463) See A Dan Tarlock, "Is There a There There in Environmental Law?" (2004) 19:2 J Land Use & Envtl L 213.
Table 1: Coal Mine Projects Project EIS/JRP Report EPEA Approval Follow-Up Proposed Adaptive Number & AM Reports with Management Conditions AM ("AM") Applications 1. JRP Report (released No. 46972-01-00(1 The "Grizzly Cardinal in 2000): 4 proposed Nov 2010): Bear 10-Year River applications for (i) Section 2.6.12(b): A Management Coals grizzly bears, (ii) Grizzly Bear Plan for the (now bird species, (iii) Management Plan, Cheviot Mine fish Teck and fish habitat, which must include Permit Area" (iv) Coal reclamation "an improved adaptive included partial Limited) (including end-pit management section" AM plan. (151) Cheviot lakes), and as a (due 30 Jan 2011); (149) Annual Grizzly Mine general management Section 2.6.13(c): An Bear Project strategy. (148) Annual Grizzly Bear Management Management Program Program Summary Report, Summary Report which must include a provided for "summary of adaptive 2014 stated that management and no AM measures changes to program" were taken in (due 31 Mar). (150) 2014, and none were planned for 2015. (152) 2. EIS (filed in 2001): No. 155804-00-05 Selenium Grande 1 proposed (amendment 29 Jun Monitoring and Cache application for (i) 2012): Management Coal fragmentation, (ii) Section 4.3.34(m): Program Grande reclamation, and as An Annual Mine submitted and Cache a general management Wastewater Summary included an AM Coal strategy. (153) and Evaluation sttategy. Mine Report, including "the (156) Annual Selenium results and summary Monitoring report from the Report Selenium Monitoring submitted for and Management 2011, Program" (due 31 documenting an Mat); (154) exceedance of Section 4.3.37(e): selenium The Selenium concentration. Monitoring and No adaptive Management Program measures taken proposal must include as these were "continued research deemed and development "not cost- effective." (157) including... implementation of adaptive management". (155) 3. EIS (filed in 2012): No. 301345-00-00 Construction Coalspur 5 proposed (22 Aug 2014): postponed. Mines applications for (i) Section 4.2.21(b)(iii): Vista commercial A Revised Ambient Coal footprint effects, Surface Water Mine (ii) reclamation, soil Monitoring Plan, Project (iii) management, including (iv) re- vegetation, "[c]orrective and (v) erosion control, adaptive management and as a general measures" (due six management months prior to strategy. (158) construction). (160) AER Decision (released in 2014): 4 required applications for (i) wildlife, (ii) surface water management, (iii) fish and fish habitat, and (iv) reclamation (end-pit lakes and wetlands). (159) Table 2: Oil Sands Projects (Mines) Project EIS and/orJRP EPEA Approval Report Proposed Number and AM AM Applications Conditions 1. Suncor EIS(fdedin 2001): No. 151469-00-01 Energy/True 1 proposed (amendment 15 May application for (i) 2009) and No. 151469-01-00 North reclamation (18 Nov 2014): Energy (including end-pit Section 4.5.1 (p)(iv): A Fort lakes), and as a Groundwater Hills Oil general Monitoring Program, Sands management which must include a Project (161) strategy. (162) "Basal McMurray Depressurization Plan, including... adaptive management strategies to handle unexpected effects from magnitude of drawdown and/or tailings seepage" (due "at least 12 months prior to operation of the external tailings pond system"); (163) Section 4.6.4(a)(ix): A Bird Protection Plan, including "a description of how adaptive management principles will be used to foster continuous improvement of the bird deterrent program" (due 27 Feb 2016); (164) Section 4.6.10(b)(ii): A Wildlife Mitigation and Monitoring Plan, which must include "opportunities to incorporate adaptive management as necessary" (due 27 Feb 2016); (165) Section 4.6.14(e): A Comprehensive Wildlife Report, including "a description of the adaptive management measures related to wildlife mitigation and monitoring, taken and planned" (due 15 Jul 2017); (166) Section 6.5.1: Reclamation; "[t]he approval holder shall support the development and revision of guidelines for reclamation of upland ecosystems within an adaptive management framework by participating in the Integrated Task Group and the Terrestrial Sub-Group of CEMA, to the satisfaction of the Directot." (167) 2. Shell EIS (filed in 2002): No. 153125-00-00(23 Canada 4 proposed Jun 2004): Jackpine applications for (i) Section 4.7.1 (p): A Oil groundwater Groundwater Sands management, (ii) Monitoring Program, Project final reclamation which must include "a (including end-pit Basal McMurray lakes), (iii) health Depressurization Plan, and safety, (iv) including... adaptive emergency response management strategies planning, and as a to handle unexpected management effects from magnitude strategy generally. of drawdown and/or (171) tailings seepage flow" JRP Report (due "at least 24 months (released in 2004): prior to construction of 6 proposed the external tailings applications for (i) pond system"). (173) surface water management, (ii) groundwater management, (iii) fish and fish habitat, (iv) climate change impacts, (v) reclamation, (vi) socioeconomic and health issues, and as a general management strategy. (172) 3. EIS (filed in 2005): No. 46586-00-00 (9 Imperial 9 proposed Nov 2007): Oil Kearl applications for (i) Section 4.6.1 (o): A Oil wildlife Groundwatet Sands management, (ii) Monitoring Program, Project surface water which must include "a management, (iii) Basal McMurray groundwater Depressurization Plan, management, (iv) including... adaptive wastewater management strategies management to handle unexpected (tailings), (v) fish effects from magnitude and fish habitat, of drawdown and/of (vi) interim tailings seepage flow" reclamation, (vii) (due "at least 12 months final reclamation prior to construction of (including end-pit the external tailings lakes), (viii) climate pond system"). (177) change, (ix) cumulative effects, and as a general management sttategy. (175) JRP Report (released in 2007): 3 proposed applications for (i) wildlife management (moose), (ii) surface water management, (iii) final reclamation (including end-pit lakes), and as a general management strategy. (176) 4. Total EIS (filed in 2006): No. 228044-00-00 (6 E&P 5 proposed Sep 2011): Canada applications for (i) Section 6.4.30(a)(vii): A Joslyn wildlife (generally), Bird Protection Plan North (ii) fish and fish including " a description Mine habitat, (iii) air of how adaptive Project emissions, (iv) management principles reclamation, (v) will be used to foster other (historical continuous resources) and as a improvement of the general bird deterrent program" management (due "one year prior to sttategy. commencement of operations or December JRP Report 31, 2015, whichever (released in 2011): comes first"). (181) 4 proposed applications for (i) bird species, (ii) surface water management, (iii) fish and fish habitat, (iv) reclamation, and as a general management strategy. Project Follow-Up Reports with AM 1. Suncor Noncompliant. Energy/True Basal McMurray Depressutization North Plan, which was Energy supposed to Fort include AM Hills Oil strategies, was Sands not included Project (161) with the submitted Groundwater Monitoring Program. (168) "Bird Protection Plan" did not contain a description of how AM principles will foster improvement. (169) "Wildlife Mitigation and Monitoring Plan" did not include opportunities to incorporate AM. (170) Other reports are not yet due. 2. Shell Noncompliant. Canada Basal McMurray Jackpine Depressurization Oil Plan, which was Sands supposed to Project include AM strategies, was not included in Groundwater Monitoring Program. (174) 3. Noncompliant. Imperial Basal McMurray Oil Kearl Depressurization Oil Plan provided Sands but did not Project include AM sttategies. (178) 4. Total Construction E&P postponed. Canada Joslyn North Mine Project Table 3: Oil Sands Projects (In Situ) Project Environmental EPEA Approval Impact Assessment Number & AM ("EIA") and/or JRP Conditions Report Proposed AM Applications 1. Suncor EIA (filed in 2000): No. 80105-01-00 Energy 5 proposed (3 Aug 2012): ("Suncor") applications for (i) Section 18(d): A Firebag caribou, (ii) ongoing Comprehensive Project reclamation, (iii) Wildlife Report final reclamation, (CWR), including (iv) air emissions, "adaptive and (v) human management health and safety. (182) measures taken or planned" (due 15 May 2015); (183) Section 47(e): A Reclamation Monitoring Program proposal (RMPP), including "how the data will be used in adaptive management for future reclaimed areas" (due 31 Dec 2013). (184) 2. Imperial EIA (filed in 2002): No. 73534-01-00 Oil 9 proposed (29 Mar 2011): Resources applications for (i) Section 20(d): A ("Imperial wildlife (other), (ii) CWR, including Oil") Cold vehicle-wildlife "adaptive Lake Oil collisions, (iii) management Sands human--wildlife measures taken or Project interactions, (iv) planned" (due wildlife generally, (v) every three surface water years). (188) management, (vi) fish and fish habitat, (vii) other aquatic impacts, (viii) final reclamation, (ix) other management issues, and as a general management strategy. (187) 3. Devon EIA (filed in 2003): No. 224816-00-03 Canada 3 proposed (28 Nov 2011): Jackfish applications for (i) Section 20(d): A Project caribou, (ii) wildlife CWR, including (other), (iii) climate "adaptive change impacts, and management as a genet al measures taken" management (due every three strategy. (191) years); (192) Section 49(c): A RMPP, including "how the data will be used in adaptive management for future reclaimed areas" (due 30 Nov 2012). (193) 4. MEG EIA (filed in 2005): No. 216466-00-04 Energy 3 proposed and 216466-00-05 Christina applications for (i) (9 Feb 2012 and 29 Lake caribou, (ii) wildlife Aug 2013): Regional (other: biodiversity), Section 20(d): A Project (iii) ongoing CWR, including reclamation, and as a "adaptive general management management strategy. (195) measures taken" (due every three years); (196) Section 48(c): A RMPP, including "how the data will be used in adaptive management for future reclaimed areas" (due 30 Nov 2014). (197) 5. Statoil EIA (filed in 2007): No. 241311-00-03 Canada 5 proposed (14 Mar 2014): ("Statoil") applications for (i) Section 18(d): A Kai Kos caribou, (ii) ongoing CWR, including Dehseh reclamation, (iii) "adaptive Project final reclamation, management (iv) air emissions, measures taken or and (v) other issues planned" (due 15 (historical May 2015) ; (200) resources). (199) Section 46(c): A RMPP, including "how the data will be used in adaptive management for future reclaimed areas" (due 31 Dec 2012). (201) 6. Suncor EIA (filed in 2009): No. 48408-01-00 Mackay 8 proposed (10 Aug 2012): River applications for (i) Section 14(d): A Project wildlife (generally), CWR, including (ii) surface water "adaptive management, (iii) management groundwater measures taken or management, (iv) planned" (due 15 ongoing reclamation, May 2015); (204) (v) final reclamation, Section 48(e): A (vi) air emissions, RMPP, which (vii) climate change must include "how impacts on the the data will be project, (viii) other used in adaptive issues (historical management for resources), and as a future reclaimed general management areas" (due 31 Dec strategy. (203) 2013). (205) 7. Harvest EIA(filed in 2009): No. 246984-00-02 Operations 4 proposed (5 Dec 2013): BlackGold applications for (i) Section 17(d): A Oil Sands wildlife (generally), CWR, including Project (ii) ongoing "adaptive reclamation, (iii) management final reclamation, measures taken of and (iv) climate planned" (due 15 change impacts on Aug 2015) ; (208) the ptoject. (207) Section 45(d): A RMPP, including "how the data will be used in adaptive management for future reclaimed areas" (due 31 Jan 2016). (209) 8. Cenovus EIA (filed in 2010): No. 265959-00-00 Energy 5 proposed (13 Aug 2012): Narrows applications for (i) Section 17(d): A Lake caribou, (ii) CWR including Project groundwater "adaptive management, (iii) management fragmentation, (iv) measures taken or ongoing reclamation, planned" (due 15 (v) final reclamation, May 2015). (211) and as a general management strategy. (210) 9. Japan EIA (filed in 2010): No. 153105-00-00 Canada Oil 7 proposed (17 Jan 2013): Sands applications for (i) Section 18(d): A (JACOS) caribou, (ii) wildlife CWR, including Hangingst (generally), (iii) "adaptive one surface water management Demonstration management, (iv) measures taken of Project groundwater planned" (due 15 management, (v) May 2015); (214) ongoing a Section 46: A reclamation, (vi) RMPP including final reclamation, "how the data will (vii) climate change be used in adaptive impacts on the management for project, and as a future reclaimed general management areas" (due 31 Dec strategy. (213) 2014). (215) 10. Osum EIA (filed in 2010): No. 253979-00-00 Oil Sands 5 proposed (30 Nov 2012): Taiga In-Situ applications for (i) Section 13(d): A Oil wildlife (generally), CWR, including Sands (ii) surface water "adaptive Project management, (iii) management ongoing reclamation, measures taken or (iv) final planned" (due 15 reclamation, (v) Oct 2015); (218) climate change Section 46: A impacts on the RMPP, including project, and as a "how the data will general management be used in adaptive strategy. (217) management for future reclaimed areas" (due 30 Jun 2015). (219) Project Follow-Up Reports with AM 1. Suncor Like all in situ Energy projects, Suncor's ("Suncor") CWR adopts a Firebag "metric/target Project /results" (185) framework for 13 wildlife objectives to which AM is said to apply. (186) In most instances, AM has been reduced to compliance monitoring, contingency planning, or adaptive mitigation. 2. Imperial Imperial Oil's Oil CWR adopts a Resources "target/measure ("Imperial /metrics/status" Oil") Cold approach to 16 Lake Oil mitigation Sands measures. (189) Project Section 6 of the CWR, entitled "Adaptive Management Measures Taken" sets out a brief paragraph referring to improved drilling and recovery technologies that minimize the project's commercial footprint and limit habitat fragmentation. (190) No details are provided. 3. Devon Devon Canada's Canada CWR also Jackfish adopts a Project "metric/target /result" approach to 13 objectives and associated mitigation measures, including a description of performance and "corrective actions or adaptive management taken during the reporting period." (194) The remainder of report simply indicates whether and what changes were made, with "no changes" made in 72% of cases. 4. MEG MEG Energy's Energy CWR also Christina adop ts a Lake "metric/target Regional /result" approach Project to 14 objectives and associated mitigation measures. (198) AM has been reduced to compliance monitoring, contingency planning, of adaptive mitigation. 5. Statoil Statoil's CWR Canada adopts an ("Statoil") "objectives/target Kai Kos /metric Dehseh /assumptions" Project approach to 10 wildlife objectives, but also lists several examples of what Statoil considers to be adaptive management, such as culvert maintenance, speed policy enforcement, and awareness training. (202) 6. Suncor Suncor's CWR Mackay adopts a River "metrics/targets Project /assumptions /measures/evaluation method /results" framework for 13 wildlife objectives. (206) AM has been reduced to compliance monitoring, contingency planning, or adaptive mitigation. 7. Harvest Deadlines Operations extended. BlackGold Oil Sands Project 8. Cenovus Cenovus Energy Energy's CWR Narrows adopts a Lake "metric/target/as Project sumptions/results" framework for 13 objectives. (212) AM has been reduced to compliance monitoring, contingency planning, or adaptive mitigation. 9. Japan JACOS' CWR Canada Oil applies a Sands "metric/target/performance" (JACOS) Hangingst framework to 13 one objectives. (216) AM Demonstration has been reduced Project to compliance monitoring, contingency planning, of adaptive mitigation. 10. Osum Deadlines Oil Sands extended. Taiga In-Situ Oil Sands Project Table 4: Adaptive Management Strategies and Approaches (Teck's Cheviot Mine Project) (309) Prediction Strategies Monitoring Indicator/Measure Method Ungulate Direct # ungulates in and Aerial occurrence on placement of adjacent reclaimed /Ground-based reclaimed mine topsoil areas surveys lands will be similar to that of Woody adjacent debris/LFH undisturbed sites salvage at similar seral stages. Rough- mounded placement Site-specific Pellet groups/ha Pellet group seed mixes surveys stratified by treatment type No or incidental Clear # parties/persons On-site use of education/sign observed on MSL reporting MSL/reclaimed age prohibiting system areas by public use Prediction Potential Plan Adjustments Periodicity Ungulate Variable Modify strategies in occurrence on treatment areas not reclaimed mine exhibiting positive trajectory lands will be of key bear food response similar to that of adjacent undisturbed sites at similar seral stages. Annual Modify strategies in treatment areas not exhibiting positive trajectory of key bear food response No or incidental Annual Determine reason for use of use of MSL MSL/reclaimed areas by public Increase access restrictions to/on MSL Table 5: Common Mitigation Objectives (In Situ Comprehensive Wildlife Reports) Mitigation Metric Target/Threshold Objective 1. Reduce/ - No. reported -Zero collisions Minimize collisions and/or Vehicle-Wildlife (large mortalities (339) Collisions mammals (337)/ - Reduced no. (100%) wildlife (338)) compared to - No. personal baseline vehicles - Reduced no. personal vehicles 2. Reduce/ - No. reported - Zero conflicts, Minimize incidents, removals, or Human-Wildlife removals, mortalities (347) Interactions/ mortalities (346) - 25% reduction Conflicts - No. people -100% workers (88%) trained/educated receiving training -80% reduction/year (348) 3. Reduce/ - "[N]oise - "[M]aintain Minimize levels (dBA) compliance with Noise (88%) will be [Energy Resources determined Conservation from surveys Board] Directive 38 as required per ...(<40dBA at 1.5 [Energy km from Resources Project)" (354) Conservation Board] Directive 38" (353) 4. Reduce/ -"[N]umber -"100% of newly Minimize of newly installed lights have Light (88%) installed lights mitigation" (361) with - "Keep main pad mitigation" (359) lighting off at 90% - "Number of of pads (excluding field pads that have production increased pads with surveillance)" (362) lights turned off" (360) 5. Provide - "[D]esign of -"100% of new Wildlife with crossings crossing structures Crossing (above or to exceed minimum Opportunities below) regulatory design (100%) exceeding standard recommended requirements in minimums" (366) place at the time of construction [of "[P]ercentage new AGPs]" (369) of AGPs -"10% of all AGP [above-ground lengths permeable to pipelines] wildlife" (370) with crossing -"25% of [AGP] is > 1.8 m permeable to high" (367) wildlife" (371) - -"100% of [rights-of-way] "[P]ercentage will be of AGPs temporarily permeable to reclaimed" (372) wildlife" (368) 6. Reduce - "[N]umber - Zero incidents (378) Effects from of incidents at Process- process Affected ponds" (377) Water (100%) 7. Reduce -"[N]umber -"[N]o more than Impacts of days per 10% of all new During year, and area clearing... within Sensitive (ha), of... species-specific Wildlife clearing RAPs" (386) Periods occurring - Zero clearing (100%) within... between Feb 15-Aug 15 restricted (387) or activity between May 1 - Aug periods 15 (388) (RAP)" (385) - Area of clearing conducted between Feb 15-Aug 15 per year 8. Reduce -No. -Zero Impacts on noncompliant noncompliance (394) Fish Habitat crossings or - "Reduce number of (Primarily water hanging Connectivity) withdrawal culverts by 50% (88%) locations (393) every 3-year - No. fish reporting period" (395) mortalities - No. hanging culverts 9. Reduce -"[A]rea (ha) - Disturbance Direct of habitat footprint over Habitat Loss cleared per annual production = (100%) annual unit of or < (402) 0.00003 bitumen ha/barrel production" (399) - [D]eclining trend ... of the -"[A]rea (ha) or habitat disturbance cleared per footprint per unit of cumulative cumulative bitumen unit of production" (403) bitumen - Reduce caribou production" (440) habitat cleared to < -Area (ha) of 13.86 ha over EPEA cumulative approval period or suitable [less than or equal to] caribou 0.5% of baseline (404) habitat cleared -40% or 20% -"Percent reduction during reduction in pad construction surface (depending on disturbance" sice) (405) 401 10. - "Annual area - "[R]eclamation Reclamation/ (ha) of will be initiated Restoration existing annually on all (75%) footprint disturbed area (ha) progressively [not slated for reclaimed" (410) future reuse]" (412) - - Interim "[P]ercentage reclamation of new initiated on 50% of commercial well pads that were footprint... constructed progressively in the previous reclaimed... year"413 each year" (441) - "30% of the new, un-buffered footprint is progressively reclaimed" (414) Mitigation Monitoring Results (2012-14) AM Taken or Objective Method Proposed 1. Reduce/ - Incident Suncor Mackay None Minimize reporting River Project Vehicle-Wildlife ("SMR"):0 Collisions incidents in (100%) 2014 (340)(C) Suncor Firebag Reduced Project ("SF"): 6 speed limit, incidents (3 in increased each of 2013 monitoring, and 2014) (341) delicensing (C) company vehicles (342) Devon Canada None Jackfish Project ("DJ"): 1 incident in 2013 (343)(NC) Imperial Oil Raised Cold Lake Oil employee Sands Project awareness (345) ("IOCL"): ~10.7 incidents/year in 2012-2014 (344) (NC) 2. Reduce/ - Incident SMR: 106 None Minimize reporting incidents in Human-Wildlife 2014 (~double Interactions/ 2013 no.) (349) Conflicts (NC) (88%) SF:5 Training, incidents (350) reducing (NC) access to waste during transport (351) DJ: 1 "near None miss" in 2014 (352) (C) 3. Reduce/ - Surveys SMR: None Minimize Compliant (355) Noise (88%) (C) SF: None Compliant (356) (C) IOCL: Proposes to Compliant (357) reduce survey (C) frequency (358) 4. Reduce/ - Surveys SMR:0 new None Minimize permanent Light (88%) lighting in 2014; temporary lighting not tracked (363) (C) SF: 100% new None lights with mitigation (364) (C) IOCL: Lights None off at ~86% of pads (365) (C) 5. Provide -Review of SMR: Did not None Wildlife with crossing meet AGP Crossing design and directive (373) Opportunities construction (NC) (100%) - Project site SF: Targets None surveys met (374) (C) DJ: 22% AGP None permeable, but exceeds regulations (375) (C) IOCL: Targets None met (376)(C) 6. Reduce - Incident SMR: 1 None Effects from reporting incident in Process- - Daily 2014 (379)(NC) Affected inspection SF:5 Added Water (100%) during open incidents (380) "stringers", water (NR) additional effigies (EC visit) (381) DJ: 0.3 Scare-cannons incidents/year now used 24 (382)(NC) hours/day (383) IOCL:0 None incidents from 2012-2014 (384) (C) 7. Reduce - No. days SMR: 18.81 ha None Impacts and area (ha) cleared in During cleared 2014 (389) (NR) Sensitive within RAPs SF: 48 days None Wildlife (2013 & Periods 2014) (390)(NR) (100%) DJ: 0 clearing None during timing windows (391) (C) IOCL:0 None clearing during timing windows (392) (C) 8. Reduce - Incident SMR: Target None Impacts on reporting met (396) (C) Fish Habitat (fish SF: Target met None (Primarily mortalities) (2014) (397) (C) Connectivity) -weekly DJ: 76% None (88%) inspection of reduction in culverts and hanging intakes culverts (398) (C) - Annual culvert inspection 9. Reduce - Surveys SMR: Targets None Direct not being met (406) Habitat Loss (NC) (100%) SF: Caribou Re-evaluate habitat target caribou not met (407) habitat (NC) metrics/target s (s 4.1) (408) DJ: Caribou None target met (409) (C) IOCL: Results IOCL not provided (C) 10. - Surveys SMR: No None Reclamation/ reclamation (415) Restoration (NC) (75%) SF: 15 ha have Updated been reclamation reclaimed (416) (C) monitoring plan has been submitted to AER (417) DJ: Interim None reclamation projects ongoing (418) (C) IOCL: Target None met (419)(C)
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|Author:||Olszynski, Martin Z.P.|
|Publication:||University of British Columbia Law Review|
|Date:||Aug 1, 2017|
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