Blog posted by Richard Lindgren, CELA Counsel
When Ontario’s Auditor General recently released her money-for-value audits and annual report under the Environmental Bill of Rights (EBR), considerable media, public, and political attention focused on her findings regarding species at risk, spills of hazardous chemicals, waste management, and climate change matters.
However, the Auditor General’s EBR report also flagged a little-known but significant problem: the Ontario government’s ongoing failure to conduct any public education or outreach programs to inform Ontarians about how to use their important rights under the EBR.
These EBR rights have existed for over 25 years, and they enable Ontario residents to:
- participate in governmental decision-making in relation to environmental laws, regulations, policies, and approvals.
- apply for leave (permission) to appeal certain approvals to the Ontario Land Tribunal.
- file an Application for Review of outdated or inadequate environmental laws, regulations, policies, and approvals.
- file an Application for Investigation of suspected environmental offences.
- commence a civil action to safeguard public resources (i.e., air, water, public lands, wildlife, etc.) from contamination or degradation.
The Auditor General commissioned a polling firm to survey 1,000 Ontarians about their knowledge of the EBR and its suite of public legal rights. Alarmingly, over half of the persons questioned had never even heard of the EBR, and 84% were unaware of the online Registry established under the EBR for public notice/comment purposes (2021 Report, page 63).
Similarly, after the Auditor General’s staff contacted the Ministry’s general inquiry lines to ask questions about the EBR, they found “little assurance that Ontarians seeking information about their environmental rights – or matters that may be subject to the EBR Act – will receive helpful and informative assistance from the Ministry” (2021 Report, page 65).
These discouraging results undoubtedly help to explain the Auditor’s General’s conclusion that fewer and fewer Ontarians are exercising their EBR rights these days (2021 Report, Appendix 7 and 8).
After the EBR was amended in 2018, the mandatory duty to provide public education and outreach about the EBR was assigned to Ontario’s Environment Minister:
2.1 In addition to fulfilling the Environment Minister’s other duties under this Act, the Environment Minister shall,
(a) at the request of a minister, assist a ministry in providing educational programs about this Act;
(b) provide educational programs about this Act to the public; and
(c) provide general information about this Act to members of the public who wish to participate in decision-making about a proposal as provided in this Act.
Unfortunately, the Auditor General reported in 2020 and again in 2021 that “even though required under the EBR Act, the Environment Ministry did not provide educational programs to Ontarians about their environmental rights under the EBR Act” (2021 Report, page 6).
This Ministerial inaction was predicted by CELA in its blog on the 2018 amendments to the EBR:
Schedule 15 [of Bill 57] attempts to take away the ECO’s [Environmental Commissioner of Ontario] existing public education/outreach functions, and to instead assign them to the Environment Minister. In CELA’s view, this is an inappropriate and misguided reform. Since the Environment Minister and other ministers are typically on the receiving end of EBR tools (e.g. applications, appeals, civil actions, etc.), it is unrealistic to expect these elected officials to provide independent, credible and comprehensive advice on how to effectively use the EBR to hold the provincial government’s feet to the fire.
To increase public awareness of EBR rights, CELA lawyers have written books, articles, and blogs on the EBR; participated in educational and professional webinars about EBR tools; provided legal services to clients involving the EBR; offered summary advice to numerous Ontario residents who contact CELA about EBR rights; and posted EBR precedents and other explanatory information on our website. We will continue to do so in the coming years.
Nevertheless, it is Ontario’s Environment Minister – not CELA – that has the statutory duty to undertake public education and outreach about the EBR. Given the public interest purposes of the EBR, CELA calls upon the Minister to take all necessary steps to immediately develop and implement comprehensive, effective, and accessible educational programs on the EBR.
After all, Ontarians cannot meaningfully exercise environmental rights that they do not know exist, or do not know how to use effectively to protect the environment.