Blog posted by Joseph F. Castrilli, CELA Counsel
In December 2020, Ontario’s Ministry of the Environment, Conservation and Parks (“MECP”) proposed amendments to its Statement of Environmental Values (“SEV”) that fail to address long-standing problems with the document envisioned as a key pillar in ensuring environmental protection and governmental accountability under the Environmental Bill of Rights (“EBR”).
The MECP proposal (ERO 019-2826) commits MECP to: (1) working with various stakeholders to advance the province’s core climate change goals of reducing, mitigating the impacts of, and adapting to, greenhouse gas emissions; and (2) providing opportunities for involvement of Indigenous peoples in environmentally significant government decisions so their interests can be considered.
However, the SEV proposals may be of limited impact since the provincial auditor general recently found the province is not taking the action necessary to meet greenhouse gas reduction goals. Moreover, while the notice accompanying the SEV proposal indicates that the SEV switches from using the term “Aboriginal” to “Indigenous” to reflect current terminology in the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), the notice does not indicate MECP is adopting UNDRIP.
Furthermore, MECP failed to rectify a long-standing problem; signalling that it finally recognizes its SEV is applicable to instruments (e.g., permits, licences, approvals) it issues to industry. Considering the independent office of the Environmental Commissioner of Ontario (“ECO”), the Environmental Review Tribunal (“ERT”), and the courts have long pointed this out, it is disappointing MECP failed to address it in the proposed SEV. MECP recognition that it is required to consider its SEV before issuing instruments under laws it administers that are subject to the EBR would be a meaningful commitment to the goals it espouses on climate change and Indigenous interests. It would also be consistent with ERT and judicial interpretation of MECP’s SEV obligations under the EBR.
Background: High Hopes for, But Disappointing Performance on, SEV Development
Each ministry subject to the EBR is required to produce an SEV that addresses how the purposes of the law are to be applied when decisions that might significantly affect the environment are made in the ministry. Once an SEV is finalized, the EBR requires each minister to take every reasonable step to ensure that the ministry’s SEV is considered whenever environmentally significant decisions are made in the ministry.
Since MECP is responsible for administering the EBR, one might reasonably expect it to be a leader in SEV development and implementation. However, this has not been the case.
The Ontario Task Force that developed the EBR in the early 1990s, anticipated SEVs becoming key components in establishing and maintaining governmental accountability in environmental decision-making. The SEV (along with EBR oversight provided by the ECO) was primarily intended to serve as Ontario’s substitute approach for the public trust doctrine – a 19th century doctrine developed by, and enforced in, the courts of the United States that has since evolved to hold federal, state, and local governments in that country to what amounts to a fiduciary standard of conduct with respect to protection of public natural resources. The concept of a public trust enforceable in the courts is not foreign to Canadian law; the Yukon has had such a regime for decades under its Environment Act. The Ontario Task Force, seeking alternative means of ensuring governmental accountability, envisioned a ministry’s SEV to be a statement of environmental ethic, plan, practice, or mission that would help integrate environmental considerations into overall decision-making for a ministry.
However, SEVs first developed after the EBR’s enactment in the mid-1990s were disappointing. Ministries subject to the requirement to produce an SEV, the MECP chief among them, produced vague statements of philosophy that lacked implementation details, measurable targets, or clear timelines, and had little or no discernible impact on their existing programs. The legislature’s and the public’s expectations of SEVs as strong action plans went largely unmet in the first generation of SEVs.
Giving SEVs a Second Chance: The 2008 Lafarge Decision
Years after their initial creation SEVs, such as MECP’s, remained largely non-factors in efforts to improve Ontario environmental decision-making. That changed with the 2008 Divisional Court decision in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal). In that case, the court upheld an ERT ruling that MECP’s SEV, (which identified the need to incorporate an ecosystem approach, including consideration of cumulative impacts, and the precautionary principle, regarding decision-making in the face of uncertainty of risk), constituted relevant policy under the EBR’s leave to appeal provisions, which must be considered by MECP officials before they issue instruments under EBR-prescribed laws, such as Ontario’s Environmental Protection Act.
The Lafarge principles have been considered and applied in many cases before the ERT since 2008. Lafarge ended MECP’s narrow interpretation that its SEV only applied to Acts, regulations, and policies. Henceforth, instruments issued directly to companies would be subject to the SEV requirement.
Unfortunately, MECP continued to chip-away at its SEV obligations by:
- Releasing a new SEV in October 2008 that still did not mention instruments, let alone SEV application to them, despite the June 2008 Lafarge judgment;
- Arguing before the ERT in 2009, a year after the Lafarge judgment, that there is no requirement to consider the SEV with respect to instruments;
- Introducing a permit-by-rule (“PBR”) regime in 2010 that eliminates the need for industry to obtain instruments when engaging in certain types of activities and, thereby, eliminates the opportunity for the public to seek leave to appeal under the EBR activities previously covered by such instruments; and
- Expanding the PBR initiative under successive provincial governments.
The 2020 MECP Draft SEV: Continuing a Failing Approach
The 2020 MECP SEV continues the approach of failing to acknowledge Lafarge’s requirements to consider the SEV before instruments are issued. There is no mention of instruments in the 2020 draft SEV and the language used about what the SEV applies to has not varied from what the first SEVs stated in the 1990s when this issue had not been settled by the court. Furthermore, the 2020 SEV does not acknowledge that the ever-expanding PBR regime, which post-dated the EBR, would necessitate amendment of that Act before PBRs could be made subject to the SEV requirement.
If MECP will not recognize its SEV is meant to be a key part of establishing and maintaining government environmental accountability, perhaps a future Ontario legislature will jettison it in favour of incorporating an Ontario version of the public trust doctrine in the EBR. That might attract MECP’s attention – and compliance.
See also our Profile of this case – Casework: Citizen Opposition to Tire-Burning Plans Leads to Strong Legal Precedent Supporting Public Participation