Decision on Bill 197 legal challenge reaffirms right to participate in environmental decision-making
Toronto – The Ontario Divisional Court has determined that the Government of Ontario broke the law when it failed to comply with the public consultation requirements of Ontario’s Environmental Bill of Rights (EBR). Specifically, in a decision released on September 3, 2021, it declared that the Minister of Municipal Affairs and Housing acted “unreasonably and unlawfully” in failing to consult with the public on changes to the Planning Act regarding Minister’s Zoning Orders (MZOs).
“As Environmental Commissioner of Ontario for 15 years, I am heartened to see the Court uphold the rights of people to participate in government decision-making affecting the environment” says Gord Miller, Chair of Earthroots. “The Court’s declaration is clear – the Government of Ontario broke the law in violating those rights.”
“The Environmental Bill of Rights provides very significant tools for the people of Ontario to know about, and participate in, decisions that affect their environment. Complying with the Ontario EBR is not ‘optional,’” adds Theresa McClenaghan, Executive Director of the Canadian Environmental Law Association (CELA). “In this decision, the Divisional Court has reaffirmed the requirement for the Ontario government to ensure those rights are provided to the public.”
In August 2020, after the passage of Ontario’s controversial Bill 197, a legal challenge against the legislation was launched by: Earthroots, Ontario Nature, CELA, Cooper Price (a 17-year-old activist) and Michel Koostachin (who was born and raised in Attawapiskat).
“This judgement is a win for the involvement of young people in the political process. Our leaders must start listening to our voices when legislating our future,” says Cooper Price.
Represented by Joseph Castrilli, Richard Lindgren and David Estrin of CELA, the parties to the lawsuit alleged that Bill 197 was enacted in a manner that failed to comply with the public notice and comment requirements of the EBR. The court agreed that the Minister should have consulted the public on the MZO amendments, given their potentially significant environmental impact.
The court also noted that prior to the passing of Bill 197, the Auditor General of Ontario had informed the Minister that the public should be consulted on the MZO amendments, because of their environmental significance. But the Minister failed to do so.
“The government chose to expand its powers to issue MZOs without the required public consultation, even after a warning from the Auditor General. Such blatant disrespect for the law by our own government must not be taken lightly,” says Dr. Anne Bell, Ontario Nature’s Director of Conservation and Education. “Thankfully the court has declared the government’s actions unlawful.”
Regarding changes to the Environmental Assessment Act enacted through Bill 197, the Court found that the changes were lawful because Bill 197 included a “statutory exception” which retroactively exempted the changes from the consultation requirements of the EBR. The Court indicated that there is no prohibition against retroactive legislation in Canada, except in criminal law.
Theresa McClenaghan, CELA, Executive Director, 416-960-2284 ext. 7219, firstname.lastname@example.org
Gord Miller, Earthroots, Chair, 416-577-1775, email@example.com
Cooper Price, Fridays For Future Toronto and Climate Strike Canada, Youth climate activist, 416-371-3525, firstname.lastname@example.org
John Hassell, Ontario Nature, Director of Communications and Engagement, 416-786-2171, email@example.com
The Canadian Environmental Law Association (CELA) is a non-profit, public interest organization and legal aid clinic established in 1970 to use existing laws to protect the environment and to advocate environmental law reforms. CELA works toward protecting public health and the environment by seeking justice for those harmed by pollution or poor decision-making and by changing policies to prevent problems in the first place. As a specialty clinic funded by Legal Aid Ontario, our primary focus is on assisting low-income people and disadvantaged communities.
Earthroots is a grassroots conservation organization dedicated to the protection of Ontario’s wilderness, wildlife and watersheds, through research, education and action.
Ontario Nature protects wild species and wild spaces through conservation, education and public engagement. Ontario Nature is a charitable organization representing more than 30,000 members and supporters, and more than 155 member groups across Ontario.