September 2023 Bulletin

Casework

At Canadian Environmental Law Association (CELA), we have over 50 years of experience taking on groundbreaking legal cases seeking justice for individuals and communities. In many cases, decisions in favour of CELA’s clients have strengthened environmental laws and policies, and upheld citizens’ rights to participate in decision-making.

As an Ontario legal aid clinic, CELA’s appearances before courts or tribunals are on behalf of low-income individuals and community organizations. The impacts of climate change, pollution, and other environmental threats are deeply unfair; low-income communities are often the most impacted.

Controversial Asphalt Plant in Napanee

Keep Napanee Great (KNG), a non-profit residents’ advocacy group, was recently represented by CELA at an Ontario Land Tribunal (OLT) hearing about a proposed hot mix asphalt plant in Napanee. In this case, the proponent requested a rezoning of some its property to permit a permanent asphalt plant.

The Town denied the request, citing that it “is not in the best interests of the community, does not adequately protect drinking water sources and groundwater […].” The company then appealed the Town’s refusal to the OLT under the Planning Act. KNG supported the Town’s refusal at the OLT hearing. It is anticipated that after the parties file their written submissions in the fall, the OLT will decide whether to grant or dismiss the proponent’s appeal.

In the meantime, while the rezoning appeal remains undecided, Ontario’s Environment Ministry has recently issued an air/noise approval under the Environmental Protection Act to the proponent in relation to the asphalt plant and aggregate quarry. On behalf of KNG, CELA has applied to the Tribunal for leave (permission) to appeal the new approval pursuant to the Environmental Bill of Rights. Read more here.

Grassy Narrows First Nation and Environmental Injustice

Over many decades, Grassy Narrows First Nation in northwestern Ontario has experienced the direct and cumulative effects of many industrial and resource extraction activities that have adversely affected human health, degraded the environment, and impacted Grassy Narrows’ treaty rights and way of life.

This has included the massive discharge of mercury from an upstream mill into the English-Wabigoon river system that flows through Grassy Narrows territory, and the subsequent clearcutting of forests, which risks a further release of mercury into local water bodies.

More recently, the Ontario government issued permits that allow mining exploration activities to occur within Grassy Narrows territory. The Ontario government did not notify, consult with, or obtain consent of Grassy Narrows First Nation before issuing the permits. Accordingly, Grassy Narrows instructed lawyers at CELA and Cavalluzzo LLP to seek judicial review of these permits. Among other things, the judicial review application asks the court to quash or set aside the permits on the grounds that they contravene constitutional, administrative, and Grassy Narrows law. The matter remains in litigation at this writing. Read more here.

Elliot Lake and Radioactive Mine Waste

Families in Elliot Lake are demanding action by the federal government and mining company BHP to clean up radioactive waste found on their properties. The residents are calling the presence of uranium mine waste at their homes “an egregious failure of Canada’s nuclear regulatory system”.

CELA and Blaise Law served the federal government with an application for judicial review of the Canadian Nuclear Safey Commission’s recent decision that denies the families’ request for action. Read more here.

Proposed Near Surface Disposal Facility at Chalk River

In 2016, Canadian Nuclear Laboratories (CNL) applied to the Canadian Nuclear Safety Commission (CNSC) to amend its license to allow a Near Surface Disposal Facility (NSDF) at its Chalk River site. Before granting a licence, the NSDF had to undergo a federal environmental assessment.

The CNSC held a five-day hearing in May of 2022 to consider CNL’s application; CELA made a written submission and appeared before the Commission. Following the hearing, the CNSC extended the deadline for written comments to allow more time for consultation with Indigenous communities. The final day of the hearing took place in August of this year; CELA made an additional written submission and attended the hearing. A decision is pending. Read more here.

Summary Advice

In addition to litigation, CELA provides advice to individuals and organizations on matters relating to environmental justice. Subject to staff capacity, members of the public can access up to two hours of free legal assistance on an environmental matter. This includes basic legal research, information, and a list of resources you can use. Please reach out to articling@cela.ca or call 416-960-2284 ext.7216

Action Alert!

Environment Ministry Proposes to Exempt Harmful Activities from Licensing Requirements

Ontario’s Ministry of Environment, Conservation and Parks is proposing to exempt certain waste management systems that involve asbestos waste, biomedical waste, hazardous waste, liquid industrial waste, and treated waste that can not be disposed of by land. It would also exempt certain stormwater management activities, water-taking for construction sites dewatering activities, and foundation drains.

This means:

there would no longer be an upfront review by Ministry staff to assess the potential environmental impacts of the specified operations;
public participation and appeal rights under the Environmental Bill of Rights would no longer apply; and
the proposed activities would no longer be subject to either government or public scrutiny prior to commencing operation in Ontario.
CELA strongly urges the Ministry NOT to proceed with these proposals.

CELA is hosting a free webinar on Tuesday, October 17th at 1:00 pm ET. We encourage you to register and learn more about these alarming proposals, and the implications they could have for our communities.

We have created an action alert page on our website that contains more information, including links to the proposals and guidance on how to submit your own comments. It’s important that you share your concerns by commenting on the notices by October 30 and urging the government NOT to proceed with these proposals.

Law Reform Updates

Greenbelt Lands to be Returned

Last week, Premier Ford announced that all 7,400 acres of land that were removed from the Greenbelt in 2022, would be returned. It was also announced that the lands that were added in 2022, including the Paris-Galt Moraine lands, would remain in the Greenbelt. CELA has long supported the inclusion of these lands given local communities’ dependence on them for the protection of their groundwater sources.

CELA wrote a letter earlier this month to Premier Ford and Minister Calandra, requesting that they adopt all of the recommendations of the Auditor General of Ontario in her August report on the Greenbelt. This included recommendation #14, which recommended re-evaluating the 2022 decision to change the Greenbelt boundaries.

In the letter, CELA also recommended that once land is added to the Greenbelt, that the default planning rule is that it must remain designated as Greenbelt, and that any removal must be made onerous by design. Among other reasons, this avoids the temptation of land-owners to seek land removal; and avoids needless land speculation with the accompanying pressure on land prices, including essential agricultural lands in southern Ontario.

In light of Minister Calandra’s announcement of an upcoming bill regarding the Greenbelt, CELA will undertake a close analysis to ensure there is permanent protection of Greenbelt land and adequacy of public participation in all future decisions.

Waukesha Diversion

The City of Waukesha will begin supplying water from Lake Michigan to its residents in October. The City can divert up to 8.2 million gallons of water per day. The City first applied to the Department of Natural Resources for diversion approval in 2010 due to high radium concentrations in their groundwater wells. CELA made a number of submissions in the subsequent years expressing our concerns with the proposed diversion; they are summarized in this 2016 blog post by Jacqueline Wilson.

CELA believes that continued vigilance is needed to ensure unnecessary diversions are not allowed in the future, and that the Great Lakes Compact lives up to its promise to protect the Great Lakes.

Inside CELA

Welcome Kesi

We are excited to welcome Kesi Disha to the CELA team in the role of Legal Assistant and Information Coordinator. Kesi has previous experience working as an administrative assistant and intake worker within two Legal Aid Ontario clinics, namely Downsview Community Legal Services and ARCH Disability Law Centre. Read more about Kesi’s background here.

From the Foundation

September's Feature

This month’s feature from the Canadian Environmental Law Foundation is a 2008 report co-written by CIELAP and Ecojustice in response to Ontario’s move to reform the Ontario Mining Act.

It proposed eight groups of legislative amendments that should be included in a Mining Modernization Act. These amendments related to three imperatives:
1) Requiring consent of land owners and Aboriginal peoples before any prospecting, exploration or mining activities can occur on their lands;
2) Implementing regional land-use planning prior to allowing exploration or mining operations to proceed to ensure environmental, social and development needs are balanced; and,
3) Ensuring all exploration and mining projects face the scrutiny of environmental assessment to ensure that environmental and socio-economic impacts are minimized.