By Richard Lindgren, CELA Counsel
The Law Commission of Ontario (LCO) has recently commenced public consultations on environmental accountability, rights, responsibilities, and access to justice.
According to the LCO’s media release:
The LCO believes the time is right for an independent, interdisciplinary, and balanced review of Ontario’s Environmental Bill of Rights (EBR) legislation and environmental accountability strategies generally. The EBR was enacted more than 25 years ago. Since then, concerns about the health of our environment and, indeed, the future of our planet, have become ever more urgent.
The LCO intends to consult various persons, organizations, and communities, such as legal and environmental experts, government and justice system leaders, industry representatives, Indigenous communities, and individuals interested in environmental issues. Accordingly, the LCO will be holding a series of meetings, workshops, and other consultative activities during the fall of 2022.
These ongoing consultations will focus on the LCO’s discussion paper, which essentially raises two related sets of questions for public feedback. First, the paper asks about potential reforms to the EBR, such as:
- Enhancing Ontario residents’ access to the courts
- Entrenching the public trust doctrine in the EBR
- Strengthening public participation rights in governmental decision-making
- Improving public access to information under the EBR
Second, the paper asks broader questions about the emerging legal concepts of “environmental justice” and the “right to a healthy environment,” and inquires how to recognize or integrate Indigenous rights, governance systems, and legal orders in Ontario’s environmental accountability framework to address past and current environmental injustices affecting Indigenous communities across the province.
As a long-time advocate of the EBR, Canadian Environmental Law Association (CELA) agrees that it is desirable to review the decades-old law, and we welcome this important initiative by the LCO. In 1991-92, for example, CELA served as a member of the Environment Minister’s Task Force that drafted and consulted on the EBR. Similarly, on behalf of our clients, CELA has frequently used the various legal tools in the EBR after it was enacted in 1993 and proclaimed into force in 1994.
Over the years, however, it became increasingly clear to CELA that the EBR required key updates and substantive amendments. To help advance EBR reform, CELA filed an EBR Application for Review of the EBR in 2010, which was granted by the Environment Ministry and resulted in a brief Ministry-led review of the EBR in 2016. Unfortunately, the Ministry’s limited review did not produce any improvements to the EBR.
In the meantime, the independent Environmental Commissioner of Ontario (ECO), established under Part III of the EBR, filed annual and special reports with the Ontario Legislature that repeatedly flagged EBR non-compliance by provincial ministries. In addition, the ECO released a 2005 special report that made 16 specific recommendations on EBR reform, but these have not been acted upon by the Ontario government to date.
Similar findings have been recently offered by Auditor General of Ontario, who now reports to the provincial Legislature under the EBR after the ECO office was abruptly terminated by Bill 57 (Restoring Trust, Transparency and Accountability Act, 2018). For example, the Auditor General’s EBR report in 2021 identified serious systemic problems under the EBR and its implementation by the province.
This track record supports CELA’s view that it is timely and necessary for the LCO to identify, evaluate, and recommend amendments to the EBR to ensure that this law effectively achieves its objectives of environmental protection, public participation, and governmental accountability.
The deadline for members of the public to submit written comments to the LCO on the discussion paper is November 25, 2022. CELA is holding a free one-hour webinar on November 2, 2022 at 12:00 pm ET to review and discuss the issues and questions raised in the LCO discussion paper. Registration for this event is required.
After the public comment period on the discussion paper has closed, the LCO intends to release a final report in early 2023. The LCO has stated that the report “will recommend reforms to laws, policies, and/or practices where it is appropriate to do so.”
CELA therefore encourages all Ontario residents to participate in this important consultation so that the LCO can receive evidence, opinions, and perspectives from all persons interested in ensuring environmental justice throughout the province.