November 2022 Bulletin

The Value of Public Participation

Democracy in a free society is based on citizens actively participating and having their voices heard.

When it comes to environmental justice, meaningful public consultation helps to ensure that environmental decision-making (e.g., passing laws, setting standards, issuing approvals, etc.) is equitable, effective, and precautionary. As public concerns about safe, sustainable communities and environmental pollution increase, low-income or vulnerable communities may be disproportionately impacted by contaminant discharges.

It is especially crucial, therefore, that our governing bodies communicate and engage with the people who are on the ground, experiencing these circumstances. Local citizens and community organizers know which systems work, and which do not, as well as have unique, first-hand knowledge of the impacts those systems have on their communities.

Since governmental decision-making has real-life consequences, our legal framework should include enforceable obligations to consult the people who are interested in, or potentially impacted by, such decisions before they are made. Moreover, enabling the public to provide evidence, opinions and perspectives to governmental officials may lead to better and more credible decisions.

Read more about how public consultation can be improved in this blog post.

Case Updates

CELA Intervenes in Supreme Court Appeal

CELA and two Ontario-based clients are intervening in an important test case in the Supreme Court of Canada regarding the constitutionality of the federal Impact Assessment Act (IAA). CELA’s position is that the environmental assessment regime established by the IAA can be upheld under various heads of federal jurisdiction under the Constitution Act, 1867. The appeal will be heard on March 21-22, 2023, and the Court will receive submissions from the two main parties (Attorney General of Canada and Attorney General of Alberta), nine provincial Attorneys General, and almost two dozen intervenors (e.g., non-governmental organizations, industry associations, and Indigenous representatives).

Summary Advice & Information Services

As part of CELA’s legal services, we provide representation or advice to individuals and organizations. These services can range from ongoing, solicitor-client relationships to one-time written messages explaining how environmental laws might apply to your situation.

Summary advice and information services enable members of the public to access two hours of legal assistance on a particular environmental matter free of cost. This includes basic legal research and information and a list of other resources you can use. We can also provide you with a lawyer referral list if you need one. If, after that, you are still seeking legal representation from CELA, you need to go through the formal application process.

Examples of the types of the areas of environmental law that are typically provided in summary advice include: appeals under the Environmental Bill of Rights, becoming a party at the Ontario Land Tribunal, ensuring safe, sustainable development planning in your community, assisting with understanding decision-making processes, or advising about recent changes to federal or provincial legislation.

Photo Credit – Theresa McClenaghan

Law Reform Updates

Bill 23 Passed… What’s Next?

In late October, the Ontario government introduced Bill 23, More Homes Built Faster Act, 2022 in the Legislature. Numerous associated notices for public comment were posted on the Environmental Registry of Ontario (ERO) and Ontario Regulatory Registry (ORR) the same day. Subsequently, three additional notices were posted relating to the Greenbelt and the Oak Ridges Moraine. Together, the proposed legislative amendments and associated policy and regulatory changes are an extensive and alarming package; one of the most extensive such sets of changes that CELA has seen in decades.

The bill was sent to the Standing Committee on Heritage, Infrastructure and Cultural Policy for review in early November. CELA appeared at Standing Committee on November 17th, and our Executive Director, Theresa McClenaghan presented an oral statement. CELA subsequently submitted written comments to the Standing Committee for their consideration, as well as submitting comments in response to several of the ERO and ORR postings. A significant amendment made by the Standing Committee, and approved by the legislature, was the decision to restore third party rights of appeal.

All of CELA’s comments address four primary areas of concern:

The need for climate-safe communities;
The need to preserve the essential roles of conservation authorities and upper-tier municipalities in protecting water and natural heritage;
The need for robust community engagement;
The need for affordable, equitable quality housing supply.

Despite significant criticism from many sectors, Bill 23 was passed in the Ontario Legislature on Monday, November 28th. As a result of its passage, CELA has been fielding calls asking “what’s next?”. What is the legal effect? Do the changes within that Bill take effect immediately?

The answer is that it depends – for a full answer, read this new blog post by CELA’s Executive Director, Theresa McClenaghan.

Some schedules and sections of the Bill are now in effect, since the Bill received Royal Assent on November 28, 2022. However, proclamation of other specific sections awaits the development of implementing policy or regulations that will give more shape and specifics as to how that new provision of the law will work in practice. Several of the postings by the government as part of the Bill 23 housing package are seeking public input in terms of those related policies and regulations.

That’s why we strongly encourage you to share your concerns with the Ontario government regarding Bill 23 and its impact on our health and environment. There are still open ERO notices you can comment on; a full listing along with information on how to comment can be found on CELA’s Bill 23 page here.

Photo Credit – Jacqueline Nix, Getty Images

Review and Reform of the Canadian Environmental Protection Act

The Standing Committee on Environment and Sustainable Development is reviewing Bill S-5, An Act to amend the Canadian Environmental Protection Act, 1999. CELA presented to the Committee on November 25th – our testimony can be found on our website. For more information about the review of the Canadian Environmental Protection Act (CEPA), you can read our CEPA law reform page or view the recorded webinar series we co-hosted with Nature Canada this fall.

CELA is calling for significant amendments to strengthen CEPA and ensure it protects human health and the environment from toxic substances.

Update on Standing Committee on Nuclear Waste Governance

This fall, the Standing Committee on Environment and Sustainable Development released its report on Canada and Radioactive Waste Management: Important Decisions for the Future, which recommends that the Auditor General of Canada conduct a public audit of Canada’s radioactive waste governance.

CELA had provided submissions to that Committee calling for better separation of cabinet oversight of the nuclear regulator from the crown corporation responsible for promoting the utilization and development of nuclear technology, and encourages the Auditor General to follow through on the recommendations in the report.

The issue of trust in the nuclear regulator is urgent, and given the myriad projects and proposals underway in Canada, it is necessary to correct the cabinet oversight of that agency. For more detail, see this recent blog post with the complete update.

Canada Must Scale Up Funding to Meet Climate and Nature Goals

Amidst global and nature summits, the Green Budget Coalition – including CELA – just released comprehensive fiscal recommendations, dedicated to simultaneously addressing the related climate and biodiversity crises, while strengthening Canada’s economy and improving equity, affordability, and quality of life for Canadians.

The Green Budget Coalition’s five feature recommendations will create jobs, enhance affordability, and support Indigenous leadership and well-being:

Advancing a zero-emissions electricity grid based on renewables, including generation, transmission, and demand side programs ($21 billion over five years);
Renovation wave: a plan for jobs and climate – Upgrading residential energy efficiency and comfort (with provinces: $10-15 billion per year for ten years);
Delivering on Canada’s land and ocean protection commitments, including Indigenous-led conservation and permanent funding ($18 billion over eight years);
Advancing sustainable agriculture – Helping producers and Canada be leaders in sustainable and innovative agriculture ($3.5 billion over five years); and
Building institutional capacity to ensure environmental justice – Establishing an Office of Environmental Justice ($130 million over five years).

The Green Budget Coalition also recommends strengthening carbon pricing, reducing climate- and nature-damaging subsidies, and funding implementation of the forthcoming National Adaptation Strategy, as well as further investments in municipal climate action, transportation, nature restoration, freshwater, fisheries management, action on toxics, and other important environmental issues.

The Green Budget Coalition, active since 1999, brings together 21 of Canada’s leading environmental organizations, collectively with over one million members and supporters, and decades of experience solving Canada’s biggest environmental challenges.

Collaborative Action

Government of Canada’s Role in Development of Radioactive Waste Management Strategy
83 civil society organizations, including CELA, have signed a letter penned by Nuclear Waste Watch that voices concerns about the Draft Integrated Strategy for Radioactive Waste Management (ISRW) issued by the Nuclear Waste Management Organization (NWMO), and urges that a new policy on radioactive waste and decommissioning be developed with the full engagement of the Canadian public and Indigenous Peoples.

Letter to the Government of Canada to Report and Reduce GHG Emissions from Logging
CELA and more than 70 conservation, climate, and health groups have written an open letter to the Government of Canada expressing concern about the lack of government transparency regarding greenhouse gas emissions from logging. Recent reports show emissions are on par with emissions from oil sands production.

Letter of Support – Request for Impact Assessment for SMR Demonstration Project
CELA, together with Dr. M. V Ramana, at the University of British voice their support for the request from the Coalition for Responsible Energy Development in New Brunswick (CRED-NB) to designate the Small Modular Reactor (SMR) demonstration project in New Brunswick for an impact assessment.

Transparency requirements on chemicals in plastics will support the effectiveness of the Plastic Treaty
CELA and more than 70 NGOs are calling on countries to ensure the Plastic Treaty includes ambitious, binding, and harmonized requirements for transparency of information on chemicals in plastics.

From the Foundation

TBCG Young Lawyers Mentorship Fund Awards

On November 10th, the Canadian Environmental Law Foundation hosted a celebration of the next generation of environmental lawyers.

The TBCG Young Lawyers Mentorship Fund Awards were presented to three outstanding lawyers, all of whom trained as articling (or equivalent) students with Canadian Environmental Law Association: Maneka Kaur, Krystal-Anne Roussel, and Maria Lucas. All three recipients are incredibly passionate and talented and will go on to affect monumental change in the environmental law field.

You can meet the award recipients and learn more about their work in this video on CELA’s YouTube channel.

“Tree Wins Assault Case”

We were pleased to learn that removal of the lovely, mature trees at Osgoode Hall has been staved off – and it reminded us of an article from the Canadian Environmental Law Foundation Archives about a similar tree victory. These articles from 1975 are about a precedent-setting court decision fining a contractor for damaging a tree; the first time on record there was a conviction under the Ontario Trees Act of 1883.

Webinars & Resources

MZO’s: A Barrier to Access to Environmental Justice

One of CELA’s central strategic priorities centers on promoting access to environmental justice, particularly for those most harmed by pollution or poor decision-making — 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 environmental justice 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 environmental justice principles.

Recording – Enhancing Environmental Accountability under the EBR: Review of the Law Commission of Ontario’s Discussion Paper

The Law Commission of Ontario (LCO) released a consultation paper earlier this Fall that identifies issues and poses questions about how the province’s Environmental Bill of Rights could be amended to enhance environmental accountability. While the consultation period closed on November 25th, the LCO indicated they would consider submissions filed beyond the closing date.

A recording of the webinar is available on CELA’s website.

Resource – Climate Change Impacts and Vulnerable Communities

CELA has recently added new resources to our Climate Change Impacts and Vulnerable Communities collection. Both reports are geared toward municipalities – one shares recommendations for flood protection, and the other discusses transportation for rural communities.

COP15 Events in Montreal

The 15th Conference of the Parties (COP15) to the United Nations Convention on Biological Diversity (CBD) is an international meeting bringing together governments from around the world. COP15 will focus on protecting nature and halting biodiversity loss around the world.

The conference will be held in Montreal, Quebec, the seat of the UN CBD Secretariat, from December 7 – 19, 2022. There are a number of side events happening during the Conference, and many are virtual or hybrid events. More information can be found here.

Looking for a Publication?

In addition to the search function on our website, all our publications are listed in reverse chronological order on our website here, or you can view a full list here. Looking for an older publication? CELA’s archives contain all of CELA’s documents up until 2017.

You might also be interested in perusing the library housed by the CELA Foundation.

The CELA Foundation website is also home to the Environmental History Program, which includes interesting projects such as Environmental Beginnings and all the publications from the former Environmental Commissioner of Ontario.