Posted by Richard D. Lindgren, CELA Counsel on February 12, 2019
On February 15, 1994, Ontario’s ground-breaking Environmental Bill of Rights (EBR) was proclaimed into force by the provincial government.
From CELA’s perspective, this proclamation was a long overdue but momentous occasion. CELA had been pushing for an EBR in the 1970s and 1980s, and CELA served as a member of the Environment Minister’s Task Force on the EBR in the early 1990s.
The Task Force’s 1992 report contained a draft EBR, which provided the template for the EBR that was enacted by the Ontario Legislature in December 1993 with all-party support.
After the EBR went into effect two months later, the various legal tools in the EBR have been well-used by Ontario residents over the past 25 years to enhance environmental protection, facilitate public participation, and ensure governmental accountability.
Many of these EBR success stories have been catalogued in a booklet prepared by the Environmental Commissioner of Ontario (ECO) under Part III of the EBR. The ECO booklet contains numerous case studies (including some examples featuring CELA clients) that illustrate how the people of Ontario can effectively use EBR rights to protect public health, safeguard natural heritage and conserve biodiversity.
Among other things, these EBR rights entitle Ontarians to:
- receive notice of, and file comments on, governmental proposals to make, amend, repeal or revoke environmental laws, regulations, policies or instruments (e.g. licences, permits or approvals);
- seek leave (permission) to appeal government decisions regarding instruments to an independent appellate body (e.g. Environmental Review Tribunal);
- file applications for investigation of suspected environmental offences under Ontario legislation;
- file applications for review of outdated, incomplete or ineffective components of Ontario’s environmental law framework; and
- commence civil actions to protect natural resources or to address public nuisances causing environmental harm.
The ECO booklet also highlights the landmark Lafarge litigation in which CELA represented Lake Ontario Waterkeeper and Gord Downie (in his capacity as “Trustee of Lake Ontario”) in appeals against tire-burning approvals issued to a cement plant. In 2008, Ontario’s Divisional Court released a precedent-setting judgment that upheld important public participation rights under the EBR.
While Ontarians have enjoyed remarkable success in using the EBR over the years, it has been apparent to CELA, the ECO and other observers that there is still room for improvement in the purposes, provisions and implementation of the EBR.
For example, public notices placed by provincial officials on the online Environmental Registry are usually sparse and lack adequate information or supporting documentation. Similarly, public comment periods under the EBR are often too short for complex, controversial or large-scale proposals.
Moreover, the Ontario government sometimes refuses to provide public notice/comment opportunities on environmentally significant proposals, such as its recent decision to pass a regulation that abruptly terminated the province’s successful cap-and-trade program. This omission was sharply criticized by the ECO in September 2018, and prompted an ongoing judicial review application by an environmental group.
In addition, governmental decisions on EBR applications for review or investigations can be delayed for prolonged periods of time. In 2010, for example, CELA filed an EBR application for review of the EBR, which was granted by the Environment Ministry in 2011. While the Ministry carried out low-key public consultations in 2016 on potential EBR improvements, the outcome of the EBR review currently remains unknown eight years after CELA’s EBR application was first granted.
These and other instances of EBR non-compliance have been carefully reviewed and duly documented by the ECO in over 40 special and annual reports to the Legislature.
In CELA’s view, not only are these ECO reports vitally important for ensuring governmental accountability under the EBR, but they also contain a treasure trove of detailed information and solid analysis on virtually every environmental problem or challenge facing Ontario, including climate change.
Unfortunately, these hard-hitting ECO reports may have played a role in the provincial government’s decision to quickly enact Bill 57 in late 2018. As noted in a previous CELA blog, Schedule 15 of Bill 57 amends the EBR by abolishing the ECO as an independent officer of the Legislature, and by transferring some – but not all – of the ECO’s duties to the Auditor General and Environment Minister.
Ironically, while Bill 57 is supposed to restore public trust, transparency and accountability, the passage of Schedule 15 deprives Ontarians of the ECO’s expert oversight, authoritative reports and environmental advocacy under the EBR.
It is also clear that Bill 57 is part of the larger de-regulation agenda that is currently being undertaken by the Ontario government.
For example, in order to allegedly reduce “red tape” and “burdensome regulations,” the Ontario government introduced Bill 66 in December 2018. This Bill contains Schedule 10, which proposes to empower municipalities to enact “open-for-business planning by-laws” that would be exempt from key provisions of the Clean Water Act, Greenbelt Act, Oak Ridges Moraine Conservation Act, Lake Simcoe Protection Act and other provincial laws.
This risk-laden proposal was posted on the Environmental Registry for public review and comment. However, immediately after the EBR comment period ended in January 2019, the Ontario government announced that it will remove Schedule 10 from Bill 66 in light of widespread pushback from MPPs, municipalities and groups such as CELA. Nevertheless, Schedule 5 – which proposes to repeal the Toxics Reduction Act – remains intact in Bill 66.
Given these and other proposed rollbacks in Ontario’s environmental safety net, CELA concludes that current EBR tools need to be revitalized and strengthened, not diluted or streamlined by further statutory amendments.
Now more than ever, Ontario should update and expand the EBR (and reinstate the independent ECO) so that environmental democracy can continue to survive (if not thrive) across the province for the next 25 years and beyond.