More Environmental Assessment Rollbacks
As part of its contentious “EA modernization” initiative, the Ontario government has recently proposed more regressive changes under the Environmental Assessment Act.
These changes would further narrow the scope of the Act and allow projects such as large-scale provincial freeways or high-voltage transmission lines to proceed with less rigorous streamlined environmental assessments (EA), where they once required individual or comprehensive EA’s. The Registry notice provides no environmental reasons or compelling evidence to support these revisions.
In CELA’s view, this is an inappropriate, unjustified, and unacceptable rollback of current EA requirements for these environmentally significant projects for several reasons:
- the Streamlined EA process is not as robust, accountable, or participatory as the Comprehensive EA process;
- the Streamlined EA process does not result in a project-specific approval with binding and enforceable conditions imposed by the Minister and/or Cabinet;
- pursuant to the Bill 197 changes, it is no longer possible for Ontarians to file a “bump-up” (or “elevation”) request on environmental grounds to ask the Minister to move a particularly significant project from the Streamlined EA process to the Comprehensive EA process; and
- People in Ontario cannot request the Minister to refer a Streamlined Class EA project to the independent Ontario Land Tribunal for a public hearing and decision.
Members of the public have until May 9, 2023 to submit comments to the Ontario government about this alarming proposal.
CELA will respond to this and related EA postings. Based on our decades-long experience representing clients in environmental assessment matters throughout the province, CELA concludes that these changes, if implemented, will further diminish the scope, application, and credibility of Ontario’s EA program, and they are inconsistent with environmental justice principles and the public interest purpose of the Act.
For more information and links to all the related Registry postings, read this blog post by CELA Counsel Richard Lindgren.
Photo credit: Canva images
Case Updates
Grassy Narrows Logging Litigation
In 2015, CELA commenced Charter-based litigation on behalf of Grassy Narrows First Nation to stop provincially approved clearcutting of forest stands within its traditional territory. This legal proceeding eventually led to a decision by the Ontario government to establish a “no harvest” area on these lands under the Forest Management Plan (FMP) then in effect. In April 2023, the Ontario government announced the continuation of the logging prohibition on these extensive lands under the 2024-2034 FMP.
CELA commends our client for obtaining this important precedent, and we call upon the Ontario government to work with Grassy Narrows First Nation to secure permanent protection of these lands against commercial logging, mining, and other resource-based activities.
Proposed SMR at Darlington Nuclear Generating Station
Ontario Power Generation (OPG) is seeking approval to put a new nuclear generator at the Darlington Nuclear Generating Station; the generator would be a type called a Small Modular Reactor or SMR. The OPG will need to persuade the Canadian Nuclear Safety Commission (CNSC) that this new generator should be allowed under a decade-old environmental assessment. CELA and its clients are of the view that this old environmental assessment does not apply to an SMR, and with participant funding from the Canadian Nuclear Safety Commission, and the assistance of lawyer Sara Libman, provided written submissions to the CNSC. Anyone interested in seeking participant funding can apply before the May 26, 2023 deadline.
For more information about CELA’s concerns regarding the reprocessing of nuclear waste below, see the article under Law Reform titled “Concerns About Reprocessing of Nuclear Fuel Waste in Canada”.
Radioactive Waste Dump Proposed in Chalk River
CELA will soon be submitting written comments in the ongoing Canadian Nuclear Safety Commission (CNSC) hearing for a radioactive waste dump at the Chalk River Laboratories Site. Last year CELA participated in the CNSC hearing on an application by Chalk River Nuclear Laboratories to construct a near-surface disposal facility for low-level waste at Chalk River, which would also include some intermediate-level waste. While the hearing took place last May, the CNSC extended the deadline for written comments to allow more time for feedback from Indigenous communities. The hearing will continue in June and can be accessed virtually.
Aggregate Activities Approved after Groundwater Issues Addressed
In separate decisions issued by the Ontario Land Tribunal (OLT) in February and April 2023, the OLT approved the expansion of aggregate activities in Tiny Township. This comes after successful efforts by CELA lawyers and experts retained on behalf of the Federation of Tiny Township Shoreline Associations (FoTTSA) to resolve outstanding groundwater protection, aggregate licensing, and land use planning issues with the aggregate company proponent.
These decisions follow a companion 2022 issuance of an environmental compliance approval to the same company that again followed efforts by CELA lawyers and experts retained by FoTTSA that resolved outstanding groundwater quality issues for the existing site’s operations. The measures included in the Environmental Compliance Approval, in particular installation of an impermeable liner in connection with aggregate washing activities at the site, though frequently used for domestic landfill sites, may constitute a first for aggregate operations in Ontario.
Ontario Land Tribunal Sets Hearing Date for Controversial Development in Kingston
CELA represents No Clearcuts Kingston, a non-profit organization that has been engaged in a lengthy community-based fight against the proposed development of a former tannery site beside the Cataraqui River.
The developer is appealing Kingston’s refusal to approve the development to the Ontario Land Tribunal (OLT) under the Planning Act. Our client has been granted party status by the OLT, and agrees with the City that the current development proposal does not adequately protect ecological systems, natural heritage, water, and public safety, particularly given the risk of natural hazards and climate change impacts.
After conducting a Case Management Conference in April 2023, the OLT has scheduled a five week videoconference hearing on the appeal, which will commence in late January 2024.
Photo credit: Linda Pim
Law Reform Updates
Concerning Amendment Proposed in Bill 97
CELA is concerned with an amendment to the Planning Act proposed in Bill 97, Helping Homebuyers, Protecting Tenants Act, 2023 that would provide the Minister of Municipal Affairs and Housing the ability to exempt any lands that are subject to a Minister’s land use Order from the application of any municipal Official Plan; the Provincial Policy Statement; the Oak Ridges Moraine Conservation Plan; or certain policies under the Great Lakes Protection Act or the Lake Simcoe Protection Act.
CELA will provide a submission to the Standing Committee on Heritage, Infrastructure and Cultural Policy arguing that allowing for this broad sweep of exemptions from provincial policy and land use plans is contrary to the purpose of the Planning Act, and inconsistent with provincial interests defined in the Planning Act. Written submissions to the Standing Committee are due May 11, 2023, at 7:00 pm ET. Comments on the Registry notice are due May 6, 2023.
The province also posted a Registry notice relating to the formation of a new provincial planning policy instrument. Comments on this posting are due by June 5, 2023
PFAS in Drinking Water
CELA, along with four other organizations, recently responded to the federal government’s consultation on a proposed objective for Per-and poly-fluoroalkyl substances (PFAS) in drinking water. While CELA supports Canada’s progress to propose an objective of 30 ng/L for a number of PFAS, we shared concerns and recommendations to improve the proposal. Our full submission can be found here.
PFAS are a class of chemicals consisting of over 12,000 substances that persist in the environment for hundreds of years. PFAS are used in many applications including firefighting foam, non-stick coatings, textiles, food packaging and wrapping, and many other products. In addition to a map of potentially contaminated sites, CELA recently produced this infographic that discusses the health impacts and sources of PFAS in our drinking water.
CELA Gives New Radioactive Waste Policy a Failing Grade
Earlier this month, the federal government released its long overdue Policy on Radioactive Waste and Decommissioning. CELA has reviewed the policy and compared it to the clear expectations stated by the public during the federal consultation held between 2020 and 2022. CELA gives the new policy a failing grade.
CELA and colleagues called on the government to ensure that the following five principles be met:
- Canada needs an independent agency, arms-length from government and industry, to oversee radioactive waste management and decommissioning
- Radioactive waste should NOT be abandoned; policy should direct perpetual care and monitoring
- Government and industry must be open and transparent in the management of radioactive waste and its transportation; Indigenous Peoples and Canadians have a right to access information, engage in decision-making, and know the risks
- No importing of radioactive waste from other countries
- No plutonium extraction (reprocessing or pyro-processing) of radioactive fuel waste
Read the full media release here.
Concerns About Reprocessing of Nuclear Fuel Waste in Canada
On April 19, 2023, CELA’s Executive Director Theresa McClenaghan provided a written submission and appeared before the Industry and Trade Committee of the House of Commons in respect of its study on the Development and Support of the Electronics, Metals and Plastics Recycling Industry.
CELA was invited to appear to speak to the Committee on the issue of our call for an explicit Canadian ban on reprocessing of nuclear fuel waste and the resulting extraction of plutonium. CELA’s brief echoed the research conducted by the Nuclear Waste Watch Radioactive Waste Policy Steering Committee, a group of civil society organizations across Canada. The concerns about Canada potentially allowing reprocessing nuclear fuel to extract plutonium arise from the advice and expertise of globally recognized nuclear non-proliferation experts including scientists at Princeton University.
Continuing with potential reprocessing of nuclear fuel would make Canada only the second non-atomic-weapons state in the world to allow nuclear fuel reprocessing; and there is heavy pressure on the other country presently doing so, namely Japan, to end this practice.
Reprocessing nuclear fuel and extraction of plutonium in any quantities raises risks of diversion for weapons proliferation, and would contradict Canada’s decades-long practice of not allowing commercial reprocessing in this country. CELA called on the Industry and Trade Committee to explicitly recommend that Canada expressly adopt a ban as part of its study on the material’s recycling.
Reprocessing nuclear fuel has no place in a sustainable circular economy.
Healthy Environments for Learning Day 2023 Campaign: Electric School Buses
CELA is a founding member and long-standing partner of the Canadian Partnership for Children’s Health and the Environment. Thursday, April 27 marked Healthy Environments for Learning Day and the launch of a campaign to encourage switching from diesel to electric school buses. Diesel-powered school buses are linked to local air pollution and health concerns like asthma and contribute to climate change. The worst impacts of air pollution are seen in low-income communities.
To learn more and find out what you can do to support the campaign, visit Healthy Environments for Learning Day: 2023 Campaign.
Photo credit: Linda Pim
Inside CELA
Welcome Back Ramani!
We are pleased to welcome Ramani Nadarajah back to the CELA team! Ramani was on secondment with the Law Commission of Ontario, working on their Environmental Accountability: Rights, Responsibilities and Access to Justice project.
Come work with us!
Are you interested in an articling opportunity in environmental, administrative law, and social justice? CELA is now accepting applications for our 2024-2025 Articling Student position. Click here for more information. The deadline for applications is June 30, 2023, at 5:00 PM EST.
CELA Summer Students, 2022
From the Foundation
Feature from the Archives
This Month’s feature from the archives is a 1993 publication written in response to a provincial consultation on land use planning. “Speaking through Policy” was authored in part by CELA articling student Karen Clark.
Webinars & Resources
Addressing Air Quality Issues in Aamjiwnaang First Nation
This series of webinars will discuss the critical air quality issues currently impacting Aamjiwnaang First Nation. These sessions are offered primarily to members of the Aamjiwnaang FN community, but anyone is welcome to attend.
The first session took place on April 25th and presented information about the health impacts of emissions from the surrounding industry, as well as an overview of the regulatory framework that governs air quality in Ontario, including the permitting system for air emissions. The slide deck and recording for this webinar are available on CELA’s website here.
Webinar #2 – May 2, 12:30 pm ET: In the second session, we’ll talk about what information about air emissions is available to the public and how you can access it.
Webinar #3 – May 9, 12:30 pm ET: In the third session, we’ll talk about what tools are available to report your environmental concerns, and why reporting is important.
Registration for these free webinars is required.
Public Legal Education Events
National Environment, Energy and Resources Law Summit
CELA lawyer Richard Lindgren will be speaking about environmental justice at the National Environment, Energy and Resources Law Summit being held by the Canadian Bar Association in Ottawa on May 4 and 5, 2023.
Eastern Region Legal Clinic Spring Conference
CELA staff enjoyed participating in the Eastern Region spring conference for legal aid clinic staff held in Kingston earlier this month. Jacqueline Wilson (CELA), Richard Lindgren (CELA), and Zeenat Banjhi (ACTO, LIEN) presented on environmental issues & poverty, including how issues like “heat poverty” and environmental contaminants are connected to living in poverty, and how poverty law clinics can help. Jacqui’s presentation deck is available here, and Rick’s can be found here.
Earth Week Presentations
CELA Executive Director Theresa McClenaghan gave two presentations to high school law classes at Stratford District Secondary School on the topic of environmental law.
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