2003/2004 Environmental Protection Report

Choosing our Legacy

The 2003/2004 ECO report was submitted to the Speaker of the Legislative Assembly on October 21, 2004. Click to download the entire report and Errata, (.pdf) or download the Supplement to the report.

Commissioner’s Introductory Remarks to the Legislature

This year, I am happy to report that there has been progress in some of the areas that I have highlighted in previous ECO reports. There has been improvement in the monitoring of aquatic ecosystems by the Ministry of the Environment. Wolf and coyote hunting in the townships surrounding Algonquin Park has ended. People applied to have the Fish and Wildlife Conservation Act prescribed for reviews under the EBR – and that has been done. The Kawartha Highlands Signature Site has been created. This is the first provincial park in Ontario that has ecological integrity as its legal priority. And the recently announced Five-Point Plan for Cleaner Air could address many of my concerns relating to air quality.

Most important, a commitment has been made to develop a biodiversity strategy for Ontario. If such a strategy is developed and implemented, I believe it will be one of the most environmentally significant policy initiatives in some years.

With such positive developments to report, you may suspect that there is little to criticize about government decision-making with respect to the environment over the last fiscal year. Unfortunately, that is not the case.

In this year’s report, there is a cluster of issues associated with the monitoring of and compliance with the Environmental Assessment Act.

We had a request for an EBR investigation from landowners whose property was flooded during the construction of Highway 69. The actual field investigation was well handled by MOE district staff. But during our full review of the case, it became evident that members of the public are having considerable difficulty obtaining environmental assessment approval documents to find out if work is being correctly done. It was also revealed that MOE had no mechanism to audit compliance with the terms and conditions of approved environmental assessments. Verifying compliance appears to rely solely on citizen complaints. No charges could be considered in this case because the six-month statue of limitations under the Environmental Assessment Act had expired, an unrealistically short period, considering that most other environmental offences have a two-year limit.

Another case is also related to an EBR investigation. A private citizen, using his own lawyer, did lay charges and prosecute the Ontario Realty Corporation for failing to follow the legal requirements of a class environmental assessment in regard to a land transfer. Despite evidence that the Ministry of the Environment found no fault with the class EA process, the Justice of the Peace found the Ontario Realty Corporation guilty of violating the Environmental Assessment Act.

A new Environmental Assessment for Forest Management was approved this year by MOE. The ministry disappointed many stakeholders by withdrawing from the role it was assigned in 1994 by the Environmental Assessment Board as watchdog over the progress of the Ministry of Natural Resources in implementing improvements in forest management. This new environmental assessment approval has no expiry date and no system of independent public review, a problem that Ontario Professional Foresters describe as “a serious credibility issue.”

My greatest concern regarding environmental assessment matters, however, relates to the loss of EBR rights under Section 32 of the EBR itself. There are certain exemptions under the EBR that were included because the framers of the law wanted to avoid situations where there would be duplicate public consultation on projects under both the Environmental Assessment Act and the EBR. In practice, however, the exemptions mean that some environmental approvals and permits are getting no public scrutiny at all. Our research suggests that there are probably many thousands of permits and approvals that are exempted from the EBR’s public notice and comment provisions each year, because they hide behind the veil of Section 32. I don’t believe the framers of the law intended such an outcome, and I don’t believe it is good policy to shroud environmentally significant decisions from public scrutiny.

On another matter, I have been disappointed over the past year by the failure by a number of ministries to review and update their Statements of Environmental Values – or SEVs. These SEV’s are required by the EBR as guidance documents that ministries are to consult when making decisions that will impact the environment. They are like environmental vision statements or statements of environmental principles that allow both the public and the staff of the ministries to be aware of the values that the ministries hold. Regrettably, these SEV’s have fallen into disuse and disrepair. I am again recommending that prescribed ministries review, update and strengthen their Statements of Environmental Values as soon as possible.

I realize that the importance of SEVs may be an abstract matter to most people. However, there is an excellent example in this report of why SEVs are important. One of the most controversial decisions made this year was to approve a discharge of mine effluent into the Groundhog River in northeastern Ontario. The Groundhog River is a proposed new provincial waterway park. These parks are supposed to be protected for their natural wilderness-like qualities. The river is otherwise undeveloped, with no dams, no communities, and no industrial development of any kind. It is home to one of the few healthy and undisturbed populations of lake sturgeon, whose spawning habitat, unfortunately, is located very near the approved mine discharge point. Although the three ministries involved in this approval appear to have followed their policies and procedures in approving this discharge, MOE refuses to consider its SEV in such matters. I question whether this same decision would have been reached had the Ministry of the Environment followed its SEV commitment to “exercise a precautionary approach” in its decision-making.

Last year I reported on the status of sewage treatment plants in Ontario. This year, I took one step upstream of the STPs to look at sewer use bylaws. I found that Ontario seems to have lost sight of how important it is to control what goes into sewers in terms of overall sewage treatment. STPs are designed to treat human sewage, not the toxic metals and persistent organic molecules that find their way into the system. The best way to keep those toxins out of the environment is to keep them out of the sewers. Regrettably, the Ministry of the Environment has quietly backed away from its policy of requiring that all municipalities have sewer use bylaws. I believe that MOE should act on this policy.

In the area of waste management, there is a new Blue Box program for Ontario. We find no fatal flaws with the new system, but we are concerned about its “capture” rate. Currently, the only material in the Blue Box that actually pays its way is aluminum, primarily in the form of soft drink containers. Yet the recovery of aluminum cans at the present time is abysmally bad. We estimate that approximately one billion aluminum soft drink cans are not recycled by Ontarians each year. Most are going to landfill. While aluminum is one of the most recyclable materials we have, it is one of the worst materials to landfill because of the cost of producing new aluminum in terms of energy and greenhouse gases. We know that deposit-return systems used by our Beer Stores and by other jurisdictions in Canada capture high percentages of aluminum cans. I suggest the test of this new Blue Box program will be to see if it captures comparable amounts of soft drink containers.

The last issue that I would draw to your attention today relates to the plight of our remaining forest stands across southern Ontario. These woodlots are islands in a sea of cleared urban and agricultural land. They are the last refuges of much of the native biodiversity that originally blanketed the entire landscape. In 1997, the Ministry of Natural Resources announced a property tax reduction system for eligible forest properties called the Managed Forest Tax Incentive Program – or MFTIP. Its purpose was clear. Property taxes on rural land that was forested and properly managed would be the same as taxes on farm land – so that there would be no financial incentive to clear-cut the remnants of our forests. This appeared to work well for a few years. But recently an arbitrary administrative re-interpretation of property assessment methods has led to rapidly increasing property taxes for many forest owners. Thus, the central purpose of the program has been frustrated. Small woodlot owners now have a strong incentive to sell off their trees to opportunistic clear-cutters and to make their land agricultural. And owners of larger forests, who may have made long-term investments in sustainable forestry, are being punished for investing in our future forests – and are being forced to subdivide or sell out. The damage that is being done will have an impact on the landscape for generations. The original goal of the MFTIP program was laudable and necessary. This goal must be met by fixing MFTIP or replacing it.

Finally, I believe that we Ontarians have yet to make significant progress toward a sustainable future at the level of our personal lifestyles. This is ground on which governments fear to tread. We still do not charge the full cost of the treated water that is delivered to our homes, yet we know this would lead to conservation. Our home electricity consumption is excessive by any standard, and we don’t pay the full cost of its production. Gasoline remains cheap by world standards – and it seems to remain acceptable for governments to spend tax money on roads but not on transit.

In my message prefacing this year’s annual report, I ask whether we are prepared to face these issues. Or do we just blunder into the future, dealing with environmental problems on an ad hoc basis as they arise and letting the chips fall where they may? I have entitled this report “Choosing our Legacy.” And I hope that the people of Ontario recognize that they too have a role to play in choosing the environment we leave to future generations.

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