2016
Jul
14
Reforming the Environmental Bill of Rights

EBR-Booklet (cover)Last month I wrote to the Honourable Glen Murray, Minister of the Environment and Climate Change, to thank him for agreeing to undertake a reform of Ontario’s Environmental Bill of Rights, 1993 (EBR) (Click here to read the letter). This comes in response to Applications for Review asking for a review of the EBR (see an earlier blog post on these applications). The Ministry of Environment and Climate Change (MOECC) committed to undertake this review five years ago, and has now confirmed that it will begin the process.

I also took the opportunity to give the Minister some advice on needed reforms based on our office’s over 20 years as guardian of the EBR.

The EBR has been critical in enabling many positive environmental outcomes in Ontario (see some success stories here), but strengthening the EBR is long overdue. Key areas in need of reform include:

  • removing or narrowing EBR exceptions,
  • extending appeal deadlines,
  • strengthening Statements of Environmental Values,
  • strengthening the ECO’s investigative and reporting powers, and
  • allowing for stays pending applications for leave to appeal.

Below is a brief overview of the recommendations I made.

Removing or narrowing EBR exceptions

The EBR helps ensure the public can be notified of important environmental proposals and have an opportunity to comment. Unfortunately, this part of the EBR is subject to exceptions. Section 32 exempts some proposals from the Act's public notice and consultation requirements if they are subject to the Environmental Assessment Act (EAA), or result from a decision made by a tribunal under an Act that affords an opportunity for public participation. The practical effect of section 32 is that the public has no rights to receive notice or comment on many proposals for environmentally significant instruments (e.g., permits, licences and other approvals). For example, this exception applies to many proposals covered by the EAA, such as municipal water taking permits, sewage and water works, provincial roads, and the use of natural resources or public land. I advised the Minister that this exemption should be eliminated or scoped so that Ontarians can participate fully in these important decisions.

Another section of the EBR, section 33, exempts proposals that, if implemented, would form part of or give effect to budgets or economic statements presented to the Legislature. This exemption, intended to protect budget secrecy, has been used to exempt important non-financial environmental proposals from public participation. For example, Bill 55, Strong Action for Ontario Act (Budget Measures), 2012 amended six EBR-prescribed acts without notifying or consulting the public. While the elimination of this exemption would be preferable, this issue could also be solved if prescribed ministries committed to posting any non-financial environmentally significant proposals from budget bills on the Environmental Registry for meaningful public consultation — before it is too late in the legislative process.

Extending appeal deadlines

As it stands, the EBR requires that applicants seeking permission to appeal a decision on an instrument file an application within 15 days of a decision notice being posted on the Environmental Registry. This 15-day timeline is very tight, and a significant deterrent to members of the public hoping to exercise their appeal rights under the EBR. A 20-day timeline would be more reasonable, and would align with timelines for third party appeal rights under the Planning Act.

Allowing for stays pending applications for leave to appeal

Currently there is no mechanism to stay (i.e., temporarily suspend) a decision on a site-specific instrument pending the outcome of a leave to appeal application. A substantial amount of time can lapse between the submission of an application for leave to appeal and a decision on whether leave to appeal is granted. Harm to the environment could occur if an instrument is acted upon during the time that a leave to appeal application is in progress. For example, by the time an appeal of a water taking permit is decided, the water takings allowed for in the permit could be completed. The EBR already provides regulation-making power to allow for stays pending leave to appeal, but this power has not yet been exercised. It should be.

Strengthening SEVs

Each ministry has a Statement of Environmental Values (SEV). An SEV outlines how designated government ministries are accountable for ensuring consideration of the environment in their decisions. Unfortunately, SEVs have not been effective in changing environmental outcomes to date. This feature of the EBR requires reform based on public consultation. One small step would be to require additional transparency; as part of every decision posted on the Environmental Registry, a ministry should be required to explain to the public how its SEV had been considered. The substantive contents of SEVs also require improvement.

Expanding ECO’s investigative powers

In fulfilling the duties established under the EBR, the ECO frequently requires relevant information from government. However, the ECO largely relies on ministries and agencies to voluntarily comply with requests for information, as the EBR does not expressly require cooperation with such requests (with some specific exceptions). The act should be amended to include an express power for the ECO to compel the production of government documents pertaining to environmental protection, energy conservation and climate change. This is a reasonable request as other officers of the Legislature have such power.

Broader ECO reporting powers

The effectiveness of the ECO would be enhanced by providing broader reporting powers and more flexibility in its reporting. In order to allow the ECO to issue timely, focused and relevant reports on rapidly evolving issues, the EBR should be amended to explicitly provide the ECO with power to report on matters relating to energy, climate and environment at any point in the year; such reports could be of great value to the Legislative Assembly and to Ontarians. It would also be appropriate to explicitly provide for our oversight role in relation to the Greenhouse Gas Reduction Account- the government’s account for cap-and-trade revenue.

The EBR is a powerful tool to engage Ontarians in environmental decision making, but it could be much stronger. To ensure this reform process is as effective as possible I encourage you to participate in the EBR reform consultation process. The MOECC has posted a Discussion Guide to assist those interested in commenting. MOECC will be receiving comments until November 8, 2016.

Dianne Saxe
Environmental Commissioner of Ontario

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