Earth Day report: Perils of reducing environmental rights during COVID-19

by Kerrie Blaise

Reprint from The Lawyer’s Daily, published on Earth Day, April 22, 2020.

Taking action to protect the health and well-being of Ontarians is well founded. So too are emergency measures and swift government responses to safeguard those most at risk. The extraordinary measures being taken by the government to keep us safe, protect income streams of many vulnerable and newly vulnerable communities is also recognized and appreciated.

But as the Ontario government attempts to control COVID-19, a division is emerging characterized by regulatory actions which have a nexus to COVID-19 and those where no factual connection exists. The Ontario government’s decision to suspend Ontario’s Environmental Bill of Rights is an example of the latter.

On April 3, the provincial government passed a regulation temporarily suspending the most fundamental of environmental rights provided to Ontarians under the Environmental Bill of Rights, 1994 (EBR). Citing the unprecedented nature of COVID-19, the regulation sets out two sweeping exemptions which will remain in force until 30 days after the emergency declaration on COVID-19 has ended.

The first exemption provides that all governmental proposals such as decisions to make, amend or revoke environmental laws, regulations, policies or instruments (e.g. licences, permits and approvals) are exempt from mandatory public notice and comment requirements under the EBR. The Environmental Registry, established under the EBR, has served as the primary public notice forum for government actions that are environmentally significant, ranging from discussion papers on environmental assessment law reform, bills amending land use planning, to applications to take water for bottling.

Accordingly, the regulation not only halts postings on the Environmental Registry and the minimum 30-day public comment period which follows but resultantly removes the accompanying right to appeal decisions which could result in significant harm to the environment.

The second exemption set out in the regulation provides that ministers and government decision makers do not have to consider their respective commitments to protect the environment, as set out in their Statements of Environmental Values (SEVs) under the EBR. SEVs are means for government ministries to record their commitment to the environment as they reveal how they view their environmental responsibilities when making decisions. The abrupt removal of the legal obligation for ministries to consider their SEVs unjustifiably changes how Ontario approaches its environmental policy and undermines safeguards put in place to advance the credibility and transparency of its decision and lawmaking powers.

Arguably, circumstances do not permit “business as usual.” Furthermore, communities cannot meaningfully engage when their capacity to respond to matters of interest is greatly diminished. This regulation, however, does not alleviate the capacity constraints and burdens currently facing both government staffers and the public in engaging on matters of environmental importance. Instead, it uses the COVID-19 pandemic as a reason to diminish and eliminate the ability of Ontarians to know of and engage in matters of profound public interest.

Ontario could have chosen to extend all public comment periods currently posted on the Environmental Registry and defer all decision making on all environmental law matters until the cessation of the emergency declaration issued in March 2020. Indeed, this would have aligned with COVID-19 actions being taken by other judicial and administrative decision makers in Ontario who, in response to the significant difficulties facing members of the bar and parties, recognize that attempts must be made to maintain access to justice and a right to a fair hearing. As a result, courts in Ontario have suspended their regular operations and are adjourning hearings, and limitation periods have been extended.

Inexplicably, this regulation is not limited to measures related to COVID-19. If it were, the province could have exercised its existing authority under s. 29 of the EBR to exempt the specific proposal from public participation obligations imposed by law. The EBR already contemplates emergency-based exceptions and s. 29 could have been relied upon to dispense with EBR requirements for COVID-19 matters.

Passing a regulation which allows the government to make decisions absent an opportunity for the public to review and comment, means that Ontarians will not have the opportunity to feed into the government’s decisions and environmental lawmaking. It also deprives government decision makers of a key mechanism for gathering information on the related Indigenous, social and environmental values and interests relevant to their decision and lawmaking powers.

Safeguarding the environment and the public’s ability to participate in decision making are not legal rights that should be indefinitely suspended for the duration of the province’s emergency declaration. To the contrary, Ontario should implement its COVID-19 emergency response in ways which prevent undue harm to our environment and uphold the public’s right to know. Anything less excludes directly affected communities from participating in decision making and deprives Ontarians and Indigenous people of their right to a healthful environment.

Kerrie Blaise is northern legal counsel at the Canadian Environmental Law Association.

Photo credit / Rainer Lesniewski ISTOCKPHOTO.COM

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