Blog posted by Richard D. Lindgren, CELA Counsel and originally published December 2, 2020 at The Lawyer’s Daily
Ontario’s auditor general Bonnie Lysyk recently released her annual report on the provincial government’s environmental record in 2019-20. The report was prepared in conjunction with Ontario’s commissioner of the environment and assistant auditor general Jerry DeMarco.
This wide-ranging independent report, which was filed with the Ontario legislature pursuant to Part III of the Environmental Bill of Rights (EBR),
addresses the government’s operation of, and compliance with, the EBR. In addition, the report contains value-for-money audits that focus on
three key topics:
- programs aimed at conserving the natural environment with protected areas;
- measures to reduce greenhouse gas emissions from energy use in buildings; and
- establishment of indicators and targets for monitoring the state of Ontario’s environment.
In relation to the EBR, the report identifies high-profile instances where provincial ministries did not ensure meaningful public participation in environmental decision making in accordance with EBR requirements. For example, Ontario’s Environment Ministry and other ministries were criticized by the auditor general for failing to properly engage the public before making controversial changes to the Endangered Species Act 2007, Environmental Assessment Act, Planning Act and Crown Forest Sustainability Act.
The auditor general also expresses concern that while the Environment Ministry temporarily suspended all public notice/comment rights under the EBR due to the COVID-19 pandemic, “only 9 of the 276 exempted proposals were urgent and related to COVID-19.” Moreover, the auditor general finds that this “overly broad” exemption deprived Ontarians of their EBR right to seek leave to appeal 197 permits and approvals that were issued during this timeframe to allow “industrial plants to pollute the air and water [and] companies to pump or remove water from the ground, lakes and rivers.”
These and other examples prompted the auditor general to conclude that it was “surprising” and “concerning” to observe “the consistent and significant level of non-compliance” with the EBR by the Environment Ministry, which has administered the EBR for over 25 years.
Similarly, the report finds a number of shortcomings in governmental efforts with respect to creating, managing and safeguarding protected areas throughout the province. For example, the audit reveals that “the Environment Ministry and Natural Resources Ministry need to do more to protect biodiversity in Ontario’s network of provincial parks, conservation reserves and other protected areas, especially in southern Ontario where biodiversity is most at risk.”
In relation to mitigating climate change impacts, the auditor general notes that although the relevant ministries and the Ontario Energy Board “are concerned in a general way with energy efficiency and reducing energy use, they do not focus specifically on reducing fossil fuel use or greenhouse gas emissions [and] have not updated or put in place programs to support future reductions in building emissions.” Since buildings are the third-largest source of emissions in Ontario, this audit finds that “the province risks missing its 2030 emission-reduction target, in part because climate change and the reduction of greenhouse gas emissions is not yet a cross-government priority.”
Finally, with respect to environmental monitoring, the report concludes that the Environment Ministry and other ministries “have not put into place effective systems and processes for setting targets for certain aspects of Ontario’s environment, carrying out effective monitoring practices for the achievement of those targets, and ensuring the quality of environmental data and the sharing of that data.”
For example, the audit finds that provincial “targets are not in place for: conserving water; decreasing hazardous and toxic substances in products; improving the water quality of lakes (other than Lake Simcoe and Lake Erie); protecting and recovering species at risk; protecting and restoring aquatic ecosystems; protecting the Niagara Escarpment; preventing and controlling the spread of invasive species; improving the health of Ontario’s soil; and improving the health of Ontario’s pollinators.”
In light of these and other significant issues identified in her 2020 report, the auditor general makes numerous recommendations for action by the Ontario government. While provincial ministries have generally indicated that they will act on many of the report’s recommendations, it remains to be seen whether or — to what extent — the recommendations will be implemented in a timely and effective manner.