Blog post by CELA Communications Intern Sahara Mehdi
Why is public engagement so important?
Democracy in a free society is based on citizens actively participating and having their voices heard.
When it comes to environmental justice, meaningful public consultation helps to ensure that environmental decision-making (e.g., passing laws, setting standards, issuing approvals, etc.) is equitable, effective, and precautionary. As public concerns about safe, sustainable communities and environmental pollution increase, low-income or vulnerable communities may be disproportionately impacted by contaminant discharges.
It is especially crucial, therefore, that our governing bodies communicate and engage with the people who are on the ground, experiencing these circumstances. Local citizens and community organizers know which systems work, and which do not, as well as have unique, first-hand knowledge of the impacts those systems have on their communities.
Since governmental decision-making has real-life consequences, our legal framework should include enforceable obligations to consult the people who are interested in, or potentially impacted by, such decisions before they are made. Moreover, enabling the public to provide evidence, opinions, and perspectives to governmental officials may lead to better and more credible decisions.
Can the public engage?
The Environmental Registry of Ontario (ERO) serves to create opportunities for meaningful public consultation. The Environmental Bill of Rights (EBR) outlines the minimum level of public participation that must be met by the Ontario government before an environmentally significant law, regulation, policy or approval can be implemented.
In late September, the Law Commission of Ontario (LCO) launched public consultations on the effectiveness of the current EBR, which was enacted over 25 years ago. Concerned Ontarians and CELA have long recognized the importance of the legal tools within the EBR, but experience has demonstrated that the EBR needs to be updated and strengthened to adapt to our changing environment.
For example, in 2020, CELA went to court (on behalf of several clients) to challenge the province’s lack of public consultation on Ontario’s Bill 197. Among other things, Bill 197 enhanced the authority to issue Ministerial zoning orders (MZO) under the Planning Act, but this significant amendment was passed without any public consultation under the EBR. In 2021, the Divisional Court ruled that the Ministry of Municipal Affairs and Housing acted “unreasonably and unlawfully” when the MZO changes were enacted without consulting the public. However, the MZO amendments to Bill 197 were not changed or set aside because the EBR currently states that governmental non-compliance does not make the decision invalid. The question of whether this restriction should be amended or removed is being considered in the LCO’s EBR project.
More recently, CELA Executive Director Theresa McClenaghan spoke to the Standing Committee on Heritage, Infrastructure and Cultural Policy about proposed legislative amendments in Bill 23. She addressed four areas of concern with the bill: the importance of climate-safe communities, the preservation of conservation authorities, affordable and equitable housing supply, and the critical need for citizen engagement.
Although the Standing Committee engaged with the community by allowing some – but not all – interested persons to appear as witnesses before the law was passed, there were also numerous notices posted on the ERO for public comment on Bill 23 and related proposals. The concerning part of this approach to public engagement is that there were multiple comment processes, with different dates posted for when comments were due. More critically, the ERO’s deadline for public comment on Bill 23 was extended to December 9th but in the meantime, Bill 23 was amended and enacted before this revised deadline expired. This unfortunate disconnect between the legislative and EBR processes should also be considered in the LCO’s EBR project.
Society is worse off if the public cannot bring forward information, concerns, or expert reports to be considered and acted upon by governmental decision-makers in a fair and timely manner. We must continue to advocate for improved public engagement in all areas of government decision-making that affect environmental justice. To strengthen the effectiveness of public consultation, the EBR needs to be substantially amended to more fully achieve its public interest purposes and to address threats to the environment and public health and safety.