Posted by Richard Lindgren, CELA Counsel. This article was originally published in The Lawyer’s Daily on September 27, 2019
Considerable public and political debate continues to accompany the Impact Assessment Act, which was enacted by Parliament in June 2019 as part of the omnibus Bill C-69.
This Act is now in force, and establishes a new statutory process for reviewing and approving major projects (e.g. mines, pipelines, radioactive waste facilities, etc.) that may adversely affect areas of federal jurisdiction.
However, the future of the new legislation may hinge on the outcome of the current federal election, particularly since the Conservative Party of Canada has vowed to repeal the Act if it forms the next government. Similarly, the Alberta government has recently commenced a judicial reference in the province’s Court of Appeal in order to challenge the constitutionality of the Act and an implementing regulation.
In contrast to this high-profile controversy about the new federal law, the current Ontario government has been quietly passing or proposing significant changes to its own environmental assessment (EA) program.
Ontario’s Environmental Assessment Act (EA Act) dates back to the 1970s, but was overhauled in 1996. Since that time, the legislation has remained largely unchanged.
Over the past two decades, EA practitioners, stakeholders, the Environmental Commissioner of Ontario, the Auditor General of Ontario and a government-appointed advisory panel on EA reform have recommended various changes to make the provincial EA program more effective, efficient and equitable. To date, few (if any) of these recommendations have been acted upon by Ontario.
However, in late 2018, the Ontario government released an Environment Plan that contained a one-sentence commitment to “modernize” the province’s EA program. This Plan was followed by a provincial Discussion Paper in April 2019 that proposed a number of “early actions” and long-term reforms, such as:
- reducing or removing EA requirements from projects that are deemed by the Ontario government to pose no (or low) environmental risks;
- imposing time limits and specifying criteria for Ministerial decisions on public requests to elevate (or “bump up”) particularly significant or contentious projects from a streamlined Class EA planning process to a more robust individual EA under Part II of the EA Act;
- revising the current application of the EA Act by creating a project list that identifies which types of public or private undertakings will trigger EA requirements;
- eliminating “duplication” between the EA Act and other provincial or municipal planning processes;
- creating a more coordinated “one window approach” where an undertaking subject to the EA Act may also require multiple permits or approvals in order to proceed;
- setting or clarifying the Ontario government’s “expectations” about proponents’ EA documentation and public consultation programs;
- using templated terms of reference to serve as the “work plan” for the content and conduct of individual EAs in certain sectors;
- creating a new online registry and enabling electronic submission of proponents’ EA documentation; and
- “finding efficiencies” (or creating new service standards) to reduce the length of time needed for governmental reviews of EA documentation in order to “shorten the timelines from start to finish.
At present, some of these reforms have now been passed or are awaiting proclamation. For example, Schedule 6 of the recently enacted Bill 108 (More Homes, More Choice Act, 2019) contains several amendments to the EA Act which:
- clarify the scope of the Ministerial power under subsection 11.4 of the EA Act to reconsider approvals that have been previously issued under the current Act and its predecessor;
- add new provisions regarding the approval and amendment of Class EAs, including empowering the Environment Minister to exempt certain projects from Class EA requirements; and
- establish new standing requirements for persons who file elevation requests under Class EAs, and restrict the grounds for such requests to: (a) “existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act, 1982”; or (b) “a prescribed matter of provincial importance.”
In addition, Regulation 334 under the EA Act has been amended to exempt certain undertakings involving provincial Crown property, including the disposition “of any interest in land or the severance of land.”
The selective changes implemented so far in Ontario are intended to streamline and expedite provincial EA processes. However, it remains to be seen whether the new or proposed EA reforms will result in credible, transparent and evidence-based decisions about environmentally significant undertakings that remain subject to the EA Act.