Blog post by Richard D. Lindgren, CELA Counsel
This article was originally published online by The Lawyer’s Daily (LexisNexis Canada) on November 15, 2019.
The Ontario government has recently introduced omnibus legislation that proposes to amend over a dozen laws that currently protect the environment, safeguard public health, manage wildlife and public lands, and regulate resource extraction throughout the province.
Bill 132 (Better for People, Smarter for Business Act, 2019) is almost 100 pages long and contains seventeen Schedules that, if enacted, will change numerous statutes, such as:
- Aggregate Resources Act;
- Crown Forest Sustainability Act;
- Environmental Protection Act;
- Fish and Wildlife Conservation Act;
- Lakes and Rivers Improvement Act;
- Mining Act;
- Nutrient Management Act;
- Oil, Gas and Salt Resources Act;
- Ontario Water Resources Act;
- Pesticides Act;
- Public Lands Act;
- Resource Recovery and Circular Economy Act;
- Safe Drinking Water Act; and
- Waste Diversion Transition Act.
When introducing Bill 132, the Associate Minister of Small Business and Red Tape Reduction stated that the legislation is intended to improve “upon our open-for-jobs policy of making Ontario more competitive.” Similarly, during second reading debate, the Associate Minister claimed that “cutting red tape for businesses” is the goal of Bill 132.
However, a close reading of Bill 132 suggests that several Schedules are aimed more at revising, weakening, or eliminating key environmental safeguards rather than improving competitiveness or removing unnecessary “red tape.”
For example, Schedule 9 of the Bill proposes to re-word the main anti-pollution prohibition in the Environmental Protection Act, although it is unclear how this change will create jobs or facilitate sustainable economic development.
Schedule 9 also proposes to empower provincial officials to impose administrative monetary penalties in relation to contraventions under various environmental statutes. However, non-governmental organizations have raised concerns that the maximum penalties under this revised regime have been inappropriately capped, and will therefore be ineffective in deterring polluting activities.
These organizations are also concerned that the Schedule 9 amendments to the Pesticides Act will loosen current provincial restrictions on the sale and use of neonic pesticides, which are highly toxic to pollinators such as bees. These proposed statutory changes may also result in the expanded use of cosmetic pesticides for non-agricultural purposes.
Similar concerns have been raised in relation to proposals in Schedule 16 that reduce or remove important oversight and accountability mechanisms under Ontario’s resource management statutes. For example, Schedule 16 proposes to amend the Crown Forest Sustainability Act by:
- removing the need for Ministerial approval of annual work schedules under forest management plans, and enabling forestry companies to make their own revisions to these schedules;
- establishing a new permitting process to allow proponents to remove forest resources from Crown land for non-forestry purposes, although it is unclear whether these permits will be subject to public notice, comment or appeal opportunities; and
- eliminating Ministerial reporting to the Ontario Legislature on forestry-related matters.
In addition, Schedule 16 contains a number of troubling changes to the Aggregate Resources Act, such as:
- providing that municipal by-laws are “inoperative” if they restrict the depth of aggregate extraction in pits or quarries in order to protect groundwater; and
- excluding municipal zoning by-laws from applying to pits and quarries on Crown land.
The Ontario government is also considering significant regulatory changes under the Aggregate Resources Act, including:
- allowing aggregate operators to “self-file” changes to existing site plans for unspecified “routine activities”;
- allowing unspecified “low-risk activities” to occur without a licence under certain conditions; and;
- “streamlining” requirements for compliance reporting by aggregate operators.
Bill 132 received Second Reading in early November, and has been referred to the Standing Committee on General Government. The Standing Committee will be holding public hearings on Bill 132 in five cities (London, Peterborough, Toronto, Kenora and Sault Ste. Marie) prior to reporting the Bill back to the Legislative Assembly by December 4th.
At the same time, the Ontario government is providing a 30 day public comment period on Bill 132 that expires on November 27th under the Environmental Bill of Rights. Given the complexity, significance and controversial nature of the environmental changes contained in the Bill, many observers view this time-limited consultation as unduly rushed and wholly inadequate.
Nevertheless, once the committee hearings and public consultations have been completed, it is possible that Bill 132 may receive Third Reading and Royal Assent by the time that the Ontario Legislature rises in mid-December for its seasonal break.
It should be further noted that Bill 132 is not the first attempt by the provincial government to make sweeping changes to Ontario’s environmental law framework.
For example, since taking office in mid-2018, the current government repealed the province’s highly regarded cap-and-trade program (Bill 4), abolished the independent office of the Environmental Commissioner of Ontario (Bill 57), phased out the Toxics Reduction Act (Bill 66), prohibited regulatory negligence actions against the Ontario Government (Bill 100), and made problematic changes to the Environmental Assessment Act, Endangered Species Act and Conservation Authorities Act (Bill 108).
More recently, the province has proposed to repeal all sectoral wastewater standards currently contained in the long-standing MISA (Municipal Industrial Strategy for Abatement) regulations under the Environmental Protection Act.
Viewed in this larger context, Bill 132 appears to be the latest chapter in the Ontario government’s substantive revision of environmental laws and regulations despite the fact that these public interest safeguards are not mere “red tape.”
Richard Lindgren is a lawyer at the Canadian Environmental Law Association (https://www.cela.ca/).