Action Alert - Protecting Public Consultation Rights under Ontario's Environmental Bill of Rights

ACTION ALERT:

Protecting Public Consultation Rights under Ontario's Environmental Bill of Rights

The Ontario government proposes to remove public consultation rights for dam-related orders under the Lakes and Rivers Improvement Act

The Ontario Ministry of Natural Resources and Forestry (MNRF) is advancing regulatory amendments under the Environmental Bill of Rights (EBR) that would exempt five types of orders from current legal requirements to post notice of proposed orders on the online Environmental Registry of Ontario (ERO), to provide a minimum 30 day public comment period, and to consider public comments before final decisions are made on the issuance or content of such orders.

If the regulatory amendments proceed, then notice of these Lakes and Rivers Improvement Act (LRIA) orders would no longer be posted by the MNRF on the ERO for consultation purposes. Similarly, there would be no EBR opportunity for public input on such orders, and there would be no obligation on the Minister to consider public comments or explain how they affected the decision. Instead, according to the MNRF proposal, public notice would only be posted on the ERO after the Minister has already decided whether to issue the LRIA order.

The MNRF’s proposal to wholly exclude these orders from consultation requirements under Part II of the EBR also means that there will be no legal duty on the Minister to consider the MNRF’s Statement of Environmental Values (SEV) under the EBR when making decisions on LRIA orders. Among other things, the SEV contains important environmental principles and commitments by the MNRF, such as ensuring healthy, resilient and diverse ecosystems, relying on science and Traditional Ecological Knowledge, taking a cautionary approach if there is uncertainty, and sustainably managing natural resources in a changing climate.

The public notice and comment regime under the EBR contains significant environmental rights that have been available to all Ontario residents for the past three decades. As described below, there is no persuasive or compelling rationale to exclude these critically important rights in relation to Ministerial decisions about LRIA orders. Area residents and Indigenous communities have rights, interests, and local knowledge that should be considered in Ministerial decision-making about LRIA orders.

The public comment period on the MNRF’s proposed regulatory amendments closed on April 19, 2024. You can still contact your MPP and express concern over this MNRF proposal, and urge them to ask the province not to proceed with the exclusion of these important environmental rights under the EBR in relation to LRIA orders.

UPDATE: CELA submitted a brief opposing the Ontario government’s proposal to exempt certain orders under the Lakes and Rivers Improvement Act from the public consultation requirements of Part II of the Environmental Bill of Rights. Click here to access the full submission.

TAKE ACTION

Submit a Comment

There are TWO ways to submit a comment in response to the postings on the Environmental Registry of Ontario.

Start by clicking on the link to the ERO posting: https://ero.ontario.ca/notice/019-4300. Then, after reviewing the proposal summary and the attached information, submit your comment one of two ways:

Click on the “Submit a Comment” button. You can choose to sign-in, register for an account, or submit a comment without registering, OR
Send comments by mail to the contact person listed in the ERO notice.

Whichever method you choose, be sure to include the ERO number (#019-4300) in your written comments. As noted above, the government is expressly required by the EBR to consider your comments. It’s important that your comments be individual or personalized; form letters are more easily overlooked or discounted.

Please refer to the section below titled “Concerns about Excluding….” for ideas on what to include in your comments. The deadline for comments is Friday, April 19th, 2024.

Concerns about Excluding Public Notice/Comment from LRIA Orders

Following are some of the concerns relating to this regulatory proposal. Please feel free to reference this content (or supplement it with your additional concerns) when creating your own submission.

Note that more detail will be added to this webpage as CELA’s review of the proposal continues prior to the April 19th deadline for public comment.

Overall:

The MNRF states in the ERO notice that the reason for the amendments is to “prevent harm to people, property, and the environment” because “expedient action to avoid injury or further damage to the environment is often required.” However, no information or data has been presented in the ERO notice (or the sparse Regulatory Impact Statement) to describe the number, nature, or frequency of LRIA orders that have been deemed necessary and issued on an expedited basis (while presumably still complying with current EBR notice/comment requirements).
The LRIA already empowers the Minister to issue “an immediate order” if it is “necessary to protect any person from injury or property from damage” (see section 11(5) of the LRIA). These types of orders remain available for use by the Minister and are expressly excluded from EBR notice/comment requirements (see Ontario Regulation 681/94, section 10.10). Given that the Minister enjoys this wide-ranging discretion, there is no justification for the MNRF proposal to exclude most types of LRIA orders from the consultation requirements of Part II of the EBR.
Similarly, the EBR already has a built-in exception to public consultation for instruments (such as LRIA orders) that may be needed on an urgent basis to address an emergency that poses: (a) danger to the health or safety of any person; (b) harm or serious risk of harm to the environment; or (c) injury or damage or serious risk of injury or damage to any property (see section 29 of the EBR). Again, this undermines the MNRF position that LRIA orders should be wholly excluded from Part II of the EBR in order to address emergency situations.
The five types of LRIA orders listed in the ERO notice are classified as Class II proposals under the EBR. This classification exercise considered the environmental significance of proposed instruments, including: (a) the extent and nature of the measures that might be required to mitigate or prevent any harm to the environment that could result from the decision; (b) the geographic extent, whether local, regional or provincial, of any harm to the environment that could result from the decision; (c) the nature of the private and public interests, including governmental interests, involved in the decision, and (d) any other matter that the minister considers relevant (see EBR section 20(2), clause 5 ). Moreover, the EBR expressly required the MNRF to “classify a type of proposal as a Class II type of proposal if the minister considers that the public notice and public participation requirements of sections 23 to 25 ought to apply to it because of the level of risk and extent of potential harm to the environment involved” (see EBR section 20(2), clause 7). Since the LRIA orders have been correctly classified as Class II instruments due to their environmental significance, they should not be wholly excluded from Part II of the EBR.
Other site-specific environmental orders that are available under other provincial statutes remain fully subject to Part II of the EBR despite the occasional need to issue one on an expedited basis where warranted. For example, Directors within the Ministry of the Environment, Conservation and Parks have authority to issue binding orders to require the control, remediation, prevention of harm to the environment or people (see sections 7, 10, 17 and 18 of the Environmental Protection Act), but all of these orders are properly classified as Class II instruments (see section 5 of Ontario Regulation 681/87) and therefore remain subject to Part II of the EBR (unless the above-noted “emergency” exception is invoked via an ERO notice). In these circumstances, there appears to be no public interest rationale for exempting LRIA orders while other Ministries’ orders still trigger public/notice opportunities under the EBR.
The MNRF’s own SEV contains several commitments to public and Indigenous engagement whenever the Ministry is making environmentally significant decisions. For example, the SEV states that “MNRF believes that public consultation and participation is vital to sound environmental decision-making”, and that “the ministry will provide opportunities for an open and consultative process when making decisions that might significantly affect the environment.” Accordingly, the proposal to exclude the five LRIA orders from public notice/comment requirements under the EBR is clearly inconsistent with the MNRF’s SEV.

More Information

What is the Environmental Bill of Rights?

The EBR is a provincial law that was enacted in 1994 to create various legal tools which residents of Ontario can use to protect the environment, participate in environmental decision-making, and ensure governmental accountability for its environmental decisions. The establishment and operation of the ERO is mandated by the EBR, and the ERO is used as the primary means for providing notice and soliciting comments on environmentally significant decisions under consideration by prescribed Ministries, including the MNRF.

What is the Lakes and Rivers Improvement Act?

Administered by the MNRF, the LRIA is used to regulate the location, construction, operation, and maintenance of dams and other structures (e.g., tailings dams, dikes, diversions, culverts, causeways, etc.) that forward, hold back, or divert water on lakes and rivers throughout Ontario. The LRIA also prohibits people from throwing, discharging, or depositing substances into lakes, rivers, shores, or banks in circumstances that conflict with the Act’s purposes, which include: protecting, preserving, and using lakes and rivers; protecting the equitable exercise of public rights in or over of lakes and rivers; safeguarding riparian rights of landowners; managing fish, wildlife and other natural resources dependent on lakes and rivers; protecting natural amenities of lakes, rivers, shores and banks; and ensuring protection of property and public safety.