By Sawyer Fobert, CELA Law Student and Zoé St Pierre, CELA Student-at-Law
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. One of CELA’s central strategic priorities centers on promoting access to environmental justice (“EJ”).
Ministerial Zoning Orders (“MZO”) are contrary to this core priority; CELA is working to inform the public about the drawbacks of MZOs, while encouraging law reform in order to ensure that the principles of EJ are reflected in land-use planning decisions. This blog outlines the intersection between access to justice and environmental justice, and explains how the MZO process subverts EJ principles.
Access to Justice
Access to justice calls for a reform of the formal and informal processes of the justice system to create more equitable outcomes for all. Formal processes refer to the judicial system itself, such as simplifying the complex process of navigating the judicial system and reducing the cost of accessing the judicial system. Informal reforms refer to non-judicial processes, including the expansion of opportunities for public consultation and participation in decision-making processes, such as in the cases of the issuance of permits and licenses.
Racialized groups, Indigenous peoples, low-income earners, women, children, the elderly, and people with disabilities, as well as the people who live at the intersection of these groups, are among the most vulnerable groups when it comes to access to justice. Their experience of injustice increases the likelihood that they will continue to be left behind in Canada’s justice system.
Access to Environmental Justice
Environmental Justice is a concept defined by the US Environmental Protection Agency as, “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” In short, EJ calls for equitable involvement in the creation and application of environmental laws, regulations, and policies.
There is a link between race, socioeconomic status, and environmental risk, as well as a link between hazardous sites and negative health outcomes in communities where racialized, black, and Indigenous people live. Often, projects with high levels of contamination, such as polluting landfills, pulp and paper mills, and petrochemical facilities, are disproportionately located in low-income communities and are linked to health problems such as asthma, cancer, and birth defects. Because these same communities often lack social, financial or political power, their concerns are not always heard, and governments are slower to respond.
As such, access to EJ calls for providing all persons with a meaningful opportunity to participate in all aspects of governmental decision-making that may affect their health or environment and ensuring that all persons have full and timely access to information that is being used for decision-making purposes, especially in the cases of land-use planning and development in their own communities.
So, what are MZOs?
A Minister’s Zoning Order is a tool that the Minister of Municipal Affairs and Housing (“the Minister”) can use to fast-track a planning application for a proposed development. It is an order issued by the Minister that overrides the local planning authority to approve developments without expert analysis, public input, or any chance of formal appeal.
Section 47 of the Planning Act allows the Minister to issue MZOs to govern land uses within areas subject to the order. An MZO prevails over any other zoning by-law in effect in the area, giving the Minister complete authority to regulate land use in the specified area.
In the process of issuing an MZO, the Minister does not need to give notice or hold a hearing before issuing an order. However, once a decision has been made, the Minister must give notice within 30 days of the decision in the manner the Minister deems appropriate. MZOs are enacted as regulations under the Planning Act and, therefore, notices are typically published in the Ontario Gazette. Notice of the decision must also be submitted to the office of the clerk of the municipality in which the lands are situated. There are questions as to the reach and accessibility of these ways to inform the public.
Additionally, Bill 257 – the Supporting Broadband and Infrastructure Expansion Act (“Bill 257”), has recently amended the Planning Act to make explicit that MZOs “are not required and are deemed to never have been required” to be consistent with Ontario’s Provincial Policy Statement (“PPS”). Therefore, arguments of incompatibility between MZOs and the PPS bear no weight and Bill 257 allows for even greater discretion on the part of the Minister.
MZOs: hindering access to Environmental Justice
MZOs are a major barrier to access to environmental justice. Access to EJ calls for meaningful public participation and consultation, legitimate appeal processes, and reduced costs of navigating the legal system; all characteristics that MZOs explicitly exclude through their legislative authority. In the past, MZOs were rarely used. However, the current provincial government has issued more MZOs than all other provincial governments in the last 20 years combined.
Municipalities create official plans that set out general planning goals and policies to guide land use in their community. They also enact zoning by-laws, which set out the rules and regulations that control development as it occurs.
Normally, to make a change to land use or to develop in Ontario, an applicant (for example, a developer) must make a planning application and seek approval from the appropriate decision maker, which is typically the municipality. Before the application is approved and a by-law is enacted, the local authority must hold a public consultation period. The purpose of the meeting is to allow for public input before a decision is made.
In contrast, an MZO can be issued without consultation. MZOs are obtained through requests from the municipality or if the Minister initiates the issuance of an MZO. In issuing an MZO, no public consultation is required, and the MZO circumvents all local planning authorities and therefore subverts EJ principles.
(ii) No appeal processes and high costs
There are no formal appeal routes under the Planning Act for an MZO prescribed under the legislation. The only formal route to review an MZO under the Planning Act is to make a request to the Minister.
Any person or public body may make a request to the Minister for an amendment to any order made or the revocation in whole or in part of an MZO.
This request is going to the same Minister who issued the MZO. We are not aware of this power ever having been used successfully.
It is also exorbitantly expensive for everyday citizens to make a request to the Minister. The fees for 2022 are as follows:
- Northern Ontario $2,191
- Southern Ontario $8,544
Even if someone were to disburse the above fees, there is no guarantee the MZO would be amended or revoked.
MZOs circumvent existing zoning and planning laws and bylaws, undermine the municipal planning process and disregard a central pillar of good planning principles: public engagement. MZOs are a major barrier to access to environmental justice as they can be and are issued without public consultation or participation, have no routes of appeal to the Ontario Land Tribunal, and require an exorbitantly high fee to initiate a request for an amendment or revocation to the Minister.
To find out about MZOs that have been issued in your community, you can check out the map, created by Ontario: Yours to Protect, here: https://yourstoprotect.ca/ministers-zoning-order-map/.
A note: this blog post was written before the passing of Bill 23. With the Bill’s recent passing, some procedural specifics may change.