Concerns raised about Ontario’s environmental assessment changes

Original article published August 19, 2020 in The Lawyer’s Daily by Richard Lindgren, CELA Counsel

photo credit: Nottawasaga River, Dufferin County, Ontario – Linda Pim

On July 21, 2020, the Ontario government enacted Bill 197 (COVID-19 Economic Recovery Act, 2020), which received royal assent on the same day.

Bill 197 is wide-ranging omnibus legislation that amends almost two dozen provincial laws, including the Building Code Act, Development Charges Act, Drainage Act, Education Act, Occupational Health and Safety Act and Planning Act.

However, a number of individuals, non-governmental organizations, First Nations and MPPs have expressed strong concerns about Schedule 6 of Bill 197, which contains approximately 80 pages of amendments to the Environmental Assessment Act (EAA).

These concerns focus on both the process used to pass Bill 197 (i.e., no standing committee hearings, no public notice or comment opportunities under the Environmental Bill of Rights, etc.) as well as the substance of the proposed EAA changes, as described below.

The EAA is one of Ontario’s oldest and most important environmental statutes, and it establishes different types of information-gathering and decision-making processes (i.e., individual EAs, Class EAs and sectoral screening processes) that include opportunities for public and Indigenous engagement at key stages.

In essence, the EAA is a prudent “look before you leap” statute since the legislation requires an upfront public examination of the potential ecological, socioeconomic and cultural impacts of proposed undertakings (i.e., landfills, hazardous waste facilities, electricity projects and municipal roads and sewage works, etc.) before they proceed.

This precautionary approach enables informed decisions by provincial officials on whether such undertakings should be approved (or not), and whether terms or conditions should be imposed to safeguard the public interest.

Over the years, many stakeholders, practitioners and independent observers (including the auditor general of Ontario and the former environmental commissioner of Ontario) have proposed various reforms to make the EAA more effective, efficient and equitable.

Unfortunately, the Schedule 6 amendments to the EAA do not address these proposed reforms and instead contain a number of controversial changes that fundamentally alter the current EA regime in Ontario.

Most of the Schedule 6 changes to the EAA are not yet proclaimed into force. However, if implemented, Schedule 6 will:

  • Remove the automatic application of the EAA to public sector undertakings, and instead the provincial cabinet will have unfettered discretion to pass a new regulation that lists which types of projects are (or are not) subject to the Act;
  • Rename individual EAs as “comprehensive” EAs, but the environment minister will still be empowered to approve EA terms of reference that exclude, or “scope,” key environmental planning matters (i.e. “need” and alternatives) from consideration in the EA process;
  • Terminate the 10 currently approved Class EAs, and replace them with as-yet unknown “streamlined” regulatory requirements; and
  • Significantly restrict the grounds upon which Ontarians can request “bump-up” or “elevation” of contentious infrastructure projects from a streamlined EA to a comprehensive EA.

These and other changes in Schedule 6 of Bill 197 follow other recent rollbacks that have been passed or proposed in relation to Ontario’s EA program, including (but not limited to):

  • removing EAA requirements from forest management planning;
  • exempting projects in all provincial parks and conservation reserves from any EAA requirements;
  • streamlining EAA requirements for certain provincial highways and transportation corridors; and
  • modifying EAA requirements for proposed transit projects in the Greater Toronto Area.

In these circumstances, it appears that the Ontario government is proceeding on the mistaken premise that EAA processes are simply “red tape” that may delay or stop the province’s economic recovery from the COVID-19 crisis.

However, it should be noted that several of the EAA changes proposed in Bill 197 were generically described in a governmental discussion paper in mid-2019, long before COVID-19 emerged in Ontario.

In light of the foregoing concerns, judicial review proceedings have recently been commenced in relation to Bill 197, particularly the Schedule 6 changes to the EAA. At present, it is unknown when the Divisional Court will hear and decide the matter, but persons interested in, or affected by, the EAA changes should pay close attention to this court case.