NOTE: This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc. on January 8, 2019
The Ontario government recently passed Bill 57(Restoring Trust, Transparency and Accountability Act, 2018), which is omnibus legislation intended to implement the government’s 2018 Fall Economic Statement.
However, Bill 57 goes beyond routine fiscal matters since Schedule 15 of Bill 57 amends the province’s Environmental Bill of Rights, 1993 (EBR). For example, Schedule 15 wholly eliminates the Office of the Environmental Commissioner of Ontario (ECO) under the EBR.
For over two decades, the ECO has existed under Part III of the EBR as an independent officer appointed by the Ontario Legislature, not the party in power. In addition, the EBR assigned a number of specific powers, duties and responsibilities to the ECO, including:
- reviewing governmental compliance with legal requirements imposed by the EBR, including provisions that establish public participation rights in environmental decision-making;
- filing annual and special reports with the Legislature on a wide range of environmental protection issues prescribed by the EBR, including energy conservation and climate change matters; and
- assisting Ontarians who want to use the EBR’s legal tools to safeguard the environment and public health and safety.
Over the years, the non-partisan ECO has held successive Ontario governments accountable for their acts and omissions under the EBR and other environmental laws. In addition, the ECO has testified in administrative hearings, participated in the Walkerton Inquiry, and intervened in Ontario court cases involving the interpretation of key EBR provisions.
Given the ECO’s solid track record in providing environmental oversight, many Ontarians and non-governmental organizations remain concerned that the abrupt abolition of the ECO will result in a profound loss of independence, transparency and accountability under the EBR.
For example, Schedule 15 provides that the Auditor General of Ontario (AGO) will now perform powers, duties and functions under the EBR. At the same time, the AGO, in her discretion, may delegate these duties to a new (and as-yet unnamed) “Commissioner of the Environment.” Schedule 15 expressly states that this new Commissioner is a mere “employee” of the AGO, rather than an independent officer who is appointed by, and reports directly to, the Ontario Legislature.
At first glance, Schedule 15 of Bill 57 appears to reflect a simple transfer of previous EBR responsibilities from the ECO to the AGO. However, a close review of Schedule 15 reveals that the ECO’s former duties and functions have been substantially narrowed under Schedule 15.
For example, the EBR previously required the ECO to file three detailed annual reports on environmental protection, energy conservation and climate change. In contrast, Schedule 15 simply directs the AGO to file a single annual report, which can be buried within the AGO’s annual audit reports to the Legislature.
Similarly, the EBR previously listed the mandatory content requirements for the ECO’s annual reports. However, Schedule 15 now vaguely indicates that AGO’s annual report should address the “operation of the Act,” which “may” (or may not) include reviews of “progress on activities” to promote energy conservation and reduce greenhouse gas emissions.
Aside from axing the ECO and limiting EBR reporting functions, Schedule 15 contains other questionable changes to the EBR. For example, EBR applications filed by Ontarians to request formal reviews of environmental laws, regulations or policies (or EBR applications for investigation of suspected environmental offences) will no longer land on the desk of the ECO for review and tracking purposes.
Instead, Schedule 15 stipulates that these EBR applications will be now be filed with the “appropriate” ministries. Since this arrangement bypasses the AGO, the ministries’ handling of, and eventual response to, these applications will not be subject to the same degree of oversight previously exercised by the ECO.
In addition, Schedule 15 assigns the ECO’s public education functions to Ontario’s Environment Minister. This is a misguided and unworkable reform since the Environment Minister and other Cabinet ministers are typically on the receiving end of EBR tools, such as third-party appeals of environmental approvals issued by provincial ministries.
In these circumstances, it is unrealistic to expect elected officials to provide credible and comprehensive advice to the people of Ontario on how to effectively use EBR tools to hold the provincial government accountable in the environmental context.
Finally, the ECO’s institutional expertise in evaluating complex matters of environmental law and policy will be lost under Schedule 15, and this expertise is not replicated by the office of the AGO. In short, the focused value-for-money audits typically performed by the AGO are not comparable to the forward-looking environmental advocacy role played by the ECO.
In practical terms, the government’s removal of the ECO means taking away nature’s voice and diminishing the public’s EBR rights in Ontario. In fact and in law, the ECO has been an effective guardian of the EBR, and has served as our environmental conscience by raising important public interest issues – such as species at risk, wetlands protection, wilderness preservation and safe drinking water – that require urgent attention within the province.
Accordingly, it is anticipated that when Schedule 15 is proclaimed into force, the elimination of the ECO under the EBR will likely erode – not restore – public trust, transparency and environmental accountability in Ontario.