Should Ontarians have a legally enforceable right to a clean and healthy environment? How can Ontarians meaningfully participate in environmental decision-making and hold provincial officials accountable? Which environmental approvals should be subject to public notice/comment, or appeal by concerned residents?
These and other fundamental issues are now being considered during the provincial government’s formal review of Ontario’s Environmental Bill of Rights (EBR), which has remained essentially unchanged since it was first enacted in 1993.
In particular, Ontario is currently soliciting public feedback on a short discussion paper that poses various questions on how to improve and strengthen the EBR. The deadline for public comment is November 8, 2016.
CELA regards the EBR review as an important opportunity to address widespread concerns about critical gaps in the content and implementation of this ground-breaking legislation. These concerns have been repeatedly expressed over the years by CELA, private citizens, environmental groups, and the Environmental Commissioner of Ontario, but have not been adequately resolved to date.
During the review process, CELA will be advocating numerous EBR reforms, including:
1. The purposes and principles of the EBR should be expanded to include key environmental considerations which have evolved since the early 1990s and which enjoy a considerable degree of stakeholder consensus (e.g. precautionary principle, polluter pays, intergenerational equity, etc.).
2. The expanded suite of EBR purposes and principles should, in turn, be fully incorporated into all provincial ministries’ “Statements of Environmental Values” (SEVs) issued under the EBR in order to help structure the exercise of governmental discretion when developing environmental laws, issuing statutory approvals, or setting standards, policies and guidelines.
3. The current EBR provisions which empower residents to apply for investigations of alleged environmental offences, or to apply for review of environmental laws, regulations, policies or instruments, should be amended to ensure that ministries respond to such applications in a timely, appropriate and credible manner.
4. The procedural rights entrenched in the EBR should be supplemented by the establishment of a new substantive right to a clean and healthy environment, which must be reflected in ministries’ SEVs and be made enforceable in the courts and/or appellate bodies exercising jurisdiction under the EBR.
5. The current list of statutory instruments which are subject to EBR notice, comment and third-party appeal should be extended to include additional types of environmentally significant authorizations (e.g. site-specific or sectoral variances from air pollution standards under O.Reg. 419/05; facility registrations under the Environmental Activity and Sector Registry under the Environmental Protection Act, etc.)
6. The much-criticized “environmental assessment (EA) exception” in section 32 of the EBR (which wholly exempts EA-related instruments from the public notice, comment and appeal provisions under Part II of the EBR) should be deleted on the grounds that it is inconsistent with the legislative purposes of the EBR.
7. The current (and overly stringent) EBR test that must be satisfied by residents seeking leave (permission) to appeal an instrument to an appellate body (e.g. the Environmental Review Tribunal) should be deleted on the grounds that it unduly constrains access to environmental justice.
8. The deadline for residents seeking leave-to-appeal under the EBR should be extended from 15 days to at least 20 days (and preferably 30 days). Immediately upon request by residents, ministries must be legally required under the EBR to disclose all supporting documentation filed by proponents in relation to applications for new or amended instruments.
9. The political accountability mechanisms under the EBR should be enhanced (e.g. expansion of the Environmental Commissioner’s statutory powers). In addition, the EBR should include new or revised mechanisms for ensuring judicial accountability (e.g. establishment of public trust duties/remedies; streamlining the section 84 action intended to protect public resources; removing the privative clause in section 118 that unjustifiably restricts the availability of judicial review, etc.).
In CELA’s view, if these and other necessary EBR reforms are quickly developed and fully implemented, then the legislation will become more user-friendly, more effective in achieving EBR’s public interest goals, and more capable of addressing Ontario’s daunting environmental challenges of the 21st century.