By Richard Lindgren
The Law Commission of Ontario (LCO) recently released its much-anticipated final report on updating and strengthening the province’s 30-year-old Environmental Bill of Rights (EBR).
The final report notes that the EBR “is a ground-breaking piece of legislation that transformed environmental accountability in Ontario” when it was enacted in 1993 and proclaimed into force in 1994.
However, the report correctly concludes that circumstances have materially changed and new environmental challenges have arisen over the past three decades, which underscores the need to review and revise the EBR:
“The EBR has a long track record against which Ontarians can assess its strengths, weaknesses, and limitations. The LCO has concluded that the EBR, despite its many successes, has fallen short of its potential in meeting its stated objectives…
The environmental, policy, and legal landscape in Ontario has changed considerably since the EBR was proclaimed in 1994. These developments underscore the need to re-examine the substantive and procedural requirements of the EBR to ensure it reflects, and is responsive to, current realities.”
To identify and evaluate potential EBR reforms, the LCO undertook public consultation, established a multi-stakeholder advisory committee, and released a discussion paper containing numerous questions about how to enhance environmental accountability in Ontario.
CELA’s detailed response to the LCO discussion paper outlined various amendments to the EBR that would establish stronger legal tools that Ontarians can use to advance the important purposes of the EBR (i.e., environmental protection, public participation in environmental decision-making, and government accountability). We are pleased to see that many of CELA’s proposed changes are reflected in the 58 recommendations made in the LCO’s final report.
In particular, the final report finds that EBR amendments have become necessary and appropriate:
“The LCO has also concluded that major law reforms are needed to ensure environmental accountability in Ontario, meet the challenge of climate change, and improve the functioning of the EBR for all Ontarians.”
Accordingly, the LCO report sets out three broad categories of recommended EBR reforms:
“Update the EBR to reflect contemporary environmental accountability principles and priorities by:
- Incorporating a right to a healthy environment into the EBR.
- Establishing a right for residents to commence environmental protection actions.
- Incorporating environmental justice principles and practices into the EBR.
- Updating the purposes of the EBR.
Improve public participation in provincial environmental decision-making by:
- Improving Statements of Environmental Values.
- Enhancing the role of the Commissioner of the Environment.
- Improving Ontarian’s access to environmental information.
- Improving environmental data collection and transparency
Update and clarify EBR procedures by:
- Updating rules for standing and judicial review.
- Clarifying EBR exceptions.
- Deleting the EBR statutory cause of action for harm to a public resource.”
CELA strongly endorses these recommended EBR amendments, and we believe that they set out a workable and well-founded blueprint for improving the EBR to meet the key environmental challenges of the 21st century (i.e., climate change, biodiversity loss, and pollution).
The final report also recommends that further research and discussion should be undertaken in relation to other potential areas of EBR reform:
“Finally, the LCO is recommending that provincial environmental policymakers and stakeholders continue to study and monitor several new and evolving strategies to improve environmental accountability, such as the public trust doctrine and the rights of nature.”
The above-noted LCO recommendations are both welcome and timely, particularly since CELA and the Auditor General of Ontario continue to observe and raise concerns about rollbacks in, and governmental non-compliance with, current EBR provisions, including public participation rights under Part II of the legislation.
As a long-term advocate of the EBR, CELA served as a member of the Environment Minister’s Task Force that helped to draft and consult on the EBR in the early 1990s. We have also frequently used the EBR tools on behalf of CELA clients in the courts and before tribunals. In addition, CELA filed an Application for Review of the EBR that spawned some brief public consultation in 2016 by the Environment Ministry but resulted in no changes to the EBR.
Given our experience over the decades, CELA concurs with the LCO’s conclusion that it is now time to enact long overdue improvements in the EBR. Accordingly, we call upon the Ontario government to start developing (with public input) the statutory amendments that will turn the LCO recommendations into legislative reality for the benefit of all Ontarians.
Image courtesy of @1xpert via Canva.com
Blog: CELA Applauds New Report by Law Commission of Ontario
By Richard Lindgren
The Law Commission of Ontario (LCO) recently released its much-anticipated final report on updating and strengthening the province’s 30-year-old Environmental Bill of Rights (EBR).
The final report notes that the EBR “is a ground-breaking piece of legislation that transformed environmental accountability in Ontario” when it was enacted in 1993 and proclaimed into force in 1994.
However, the report correctly concludes that circumstances have materially changed and new environmental challenges have arisen over the past three decades, which underscores the need to review and revise the EBR:
“The EBR has a long track record against which Ontarians can assess its strengths, weaknesses, and limitations. The LCO has concluded that the EBR, despite its many successes, has fallen short of its potential in meeting its stated objectives…
The environmental, policy, and legal landscape in Ontario has changed considerably since the EBR was proclaimed in 1994. These developments underscore the need to re-examine the substantive and procedural requirements of the EBR to ensure it reflects, and is responsive to, current realities.”
To identify and evaluate potential EBR reforms, the LCO undertook public consultation, established a multi-stakeholder advisory committee, and released a discussion paper containing numerous questions about how to enhance environmental accountability in Ontario.
CELA’s detailed response to the LCO discussion paper outlined various amendments to the EBR that would establish stronger legal tools that Ontarians can use to advance the important purposes of the EBR (i.e., environmental protection, public participation in environmental decision-making, and government accountability). We are pleased to see that many of CELA’s proposed changes are reflected in the 58 recommendations made in the LCO’s final report.
In particular, the final report finds that EBR amendments have become necessary and appropriate:
“The LCO has also concluded that major law reforms are needed to ensure environmental accountability in Ontario, meet the challenge of climate change, and improve the functioning of the EBR for all Ontarians.”
Accordingly, the LCO report sets out three broad categories of recommended EBR reforms:
“Update the EBR to reflect contemporary environmental accountability principles and priorities by:
Improve public participation in provincial environmental decision-making by:
Update and clarify EBR procedures by:
CELA strongly endorses these recommended EBR amendments, and we believe that they set out a workable and well-founded blueprint for improving the EBR to meet the key environmental challenges of the 21st century (i.e., climate change, biodiversity loss, and pollution).
The final report also recommends that further research and discussion should be undertaken in relation to other potential areas of EBR reform:
“Finally, the LCO is recommending that provincial environmental policymakers and stakeholders continue to study and monitor several new and evolving strategies to improve environmental accountability, such as the public trust doctrine and the rights of nature.”
The above-noted LCO recommendations are both welcome and timely, particularly since CELA and the Auditor General of Ontario continue to observe and raise concerns about rollbacks in, and governmental non-compliance with, current EBR provisions, including public participation rights under Part II of the legislation.
As a long-term advocate of the EBR, CELA served as a member of the Environment Minister’s Task Force that helped to draft and consult on the EBR in the early 1990s. We have also frequently used the EBR tools on behalf of CELA clients in the courts and before tribunals. In addition, CELA filed an Application for Review of the EBR that spawned some brief public consultation in 2016 by the Environment Ministry but resulted in no changes to the EBR.
Given our experience over the decades, CELA concurs with the LCO’s conclusion that it is now time to enact long overdue improvements in the EBR. Accordingly, we call upon the Ontario government to start developing (with public input) the statutory amendments that will turn the LCO recommendations into legislative reality for the benefit of all Ontarians.
Image courtesy of @1xpert via Canva.com
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