Exemption of forestry from the Environmental Assessment Act sets a bad precedent

Posted by Joseph F. Castrilli, CELA Counsel

On July 1, 2020, Ontario exempted forestry activities from the requirements of the Environmental Assessment Act (“EAA”) [see: O. Reg. 337/20; and Forestry-EA-Exemption-Letter-MECP_2020_07-06] In CELA’s view, this will negatively impact Ontario’s forests, Indigenous people who depend on the health of those forests to protect their own health, and all the rest of us.

The history leading up to this decision is familiar to many. The province had long managed the province’s forests using the Crown Timber Act, an antiquated one-dimensional statute dating back to almost the 19th century in terms of its wording and design and dedicated to only one result; log production from the Crown forests. All other values of the forest – for wildlife, for recreation, for sustaining traditional cultural practices, etc. – were ignored as a matter of law, and suffered as a matter of practice.

However, in the mid-1970s, the province, under Premier Bill Davis, enacted the EAA, whose purpose included protection, conservation, and wise management of Ontario’s environment. The EAA defined environment to include not only air, land and water, but also plant and animal life, including humans, as well as social, economic, and cultural conditions. The Act applied to all undertakings of the public sector, or occurring on public land. On its face, the EAA applied to logging in the Crown forests. In practice, the province granted the provincial natural resources ministry and the logging industry by extension, over a decade’s worth of exemptions from having the EAA apply to timber management in the Crown forests on the condition that the ministry would prepare and submit a class environmental assessment (“EA”).

By the late 1980s, the string of exemptions had run-out, the class EA was submitted, and Ontario embarked on a major hearing before the Environmental Assessment Board (“Board”) (now the Environmental Review Tribunal) under the EAA examining how timber management activities would be conducted in future in the Boreal forests of northern Ontario; an area roughly the size of Sweden (see map: Schedule 1, Area of the Undertaking).

The hearing included all the major players with an interest in the future of Ontario’s forests, the provincial natural resources and environment ministries, the logging industry, Indigenous people, environmental and conservation groups (many represented by CELA), tourism businesses, recreationalists, and others in a multi-year examination of clear-cutting practices (the industry’s and the province’s preferred logging approach), other logging practices, log-road building activities, pesticide spraying, and related activities.

The hearing culminated in a decision in the mid-1990s by the Board that included a series of conditions backed by a government declaration order under the EAA (which order has been periodically reviewed and amended over the years) on the practice of clear-cutting in the Crown forests that sought to balance logging production with other, non-logging values of the forest in keeping with the purposes of the Act. In 1995, a Crown Forest Sustainability Act (“CFSA”) replaced the old Crown Timber Act designed to bring forestry into the 21st century and operate in tandem with the EAA order.

Fast forward to the present. A refrain heard frequently from governments over the past several decades (and a causal factor in the Walkerton tragedy), “avoid red tape”, continues to drive government environmental policy. The 2020 justification for the decision to exempt forestry from the EAA is that it will “eliminate duplication and administrative burden” between that Act and natural resource policies, regulations, and guidelines developed under the CFSA, which are said to have incorporated the requirements of the EAA order [see Environmental Registry #019-0961]. The justification reads like it was lifted verbatim from the 1995 Red Tape Commission objectives, particulars of which, and the tragic consequences of, can be read in Part One of the Walkerton Inquiry Report.

The truth of the matter is that the CFSA does not address, for example, the human health effects of clear-cut logging practices. Many studies have shown that such practices release mercury to timber area watersheds, contaminate fish, and harm humans eating the fish, particularly Indigenous people who should not be forced to choose between practicing their traditional activities or protecting their health and well-being. Moreover, these human health impacts originate from clear-cut logging practices authorized by the very policies, manuals, and procedures approved under the auspices of the CFSA. Indeed, protecting human health is nowhere mentioned in the CFSA so why would one expect such a law to protect from such harm? The EAA because of its broad definition of environment, which includes human life, can address this problem and has been invoked in litigation in the recent past to ensure such human health impacts of clear-cut logging are not overlooked [see: further-amended-notice-of-application-for-judicial-review-Grassy-Narrows-August-2016]. But with the EAA no longer applicable to forestry since Canada Day, 2020, what statutory barrier will prevent this harm in future?

In a similar vein, there are no hearings now authorized before forest management plans, the vehicle for allowing clear-cutting, are approved under the CFSA. The authority for such hearings to be established by regulation does exist under the Act, but no such regulations have ever been promulgated by Ontario and so no hearings have ever occurred under that law. The EAA authorizes bump-ups for class activities like timber management that could result in hearings on particular forest management plans that threaten health harm or infringement of the s. 35 rights of Indigenous people under the Constitution. But with the EAA written out of the picture this will no longer be possible.

What we are left with is a theory of legislative duplication that does not exist in reality. Nor is a theory of duplication a theory of environmental justice. What should be recognized is that like the need for a multi-barrier approach to the protection of drinking water and its sources reflected in the combination of the Safe Drinking Water Act and the Clean Water Act, for example, the Crown forests must be managed to sustain not just the forests through the CFSA but the health of people, particularly Indigenous people, through the EAA who could otherwise be harmed by forestry activities. The Canada Day regulation exempting forestry activities from the EAA has not absorbed this lesson.