2005 Special Report

Looking Forward

The Environmental Bill of Rights

A Special Report to the Legislative Assembly of Ontario

Submitted by Gord Miller, Environmental Commissioner of Ontario

March 1, 2005

Introduction
On February 15, 2004, the Office of the Environmental Commissioner of Ontario (ECO) held a celebration at the Ontario Legislature to mark the tenth anniversary of the Environmental Bill of Rights (EBR). During preparations for this event, discussion arose among ECO staff and stakeholder groups on the merits of undertaking a 10-year review of the EBR legislation.

Such a review would focus not only on theEBR and its regulations, but would also examine ECO procedures and processes in order to determine whether the EBR had achieved its intended purposes as proposed by the Task Force on the EBR. In its 1992 report to the Ontario Minister of the Environment, the Task Force had recommended that the ECO actively monitor public use of certain provisions in the legislation – such as the right to sue for public nuisance and the right to sue for harm to a public resource – and that recommendations be made on an ongoing basis if the ECO saw the need for further reform to the proposed legislation.

I made the decision to proceed with such a review. In spring 2004, with the assistance of an outside consultant, I conducted an arms-length survey to scope the concerns of stakeholders. I heard from more than 70 stakeholders and individuals and received many thoughtful and valuable suggestions, which were summarized in a report received in my office in July 2004. I also engaged legal experts to draft discussion papers on a range of topics and held a law reform workshop in June at which leading experts on environmental law and policy offered excellent presentations and workshop comments on those aspects of the EBR they believed were working – and those that were not. In fall 2004, my staff and I produced a synthesis paper that reflected the full range of the review work of the preceding months. This paper, with links to supporting documents, was posted in November 2004 for 74 days of public review on Ontario’s Environmental Registry. I am now releasing a revised version of this paper as a Special Report to the Ontario Legislature.

A plethora of issues, concerns and suggestions were raised and discussed during the 10-year review process. There was broad consensus on some matters, such as the need to improve the content and use of ministry Statements of Environmental Values to make them more integral to ministerial decision-making. On other issues, such as the right to sue for harm to a public resource, stakeholder views were quite polarized, reflecting fundamental differences of opinion on when and how often legal actions challenging ministry and proponent decision-making should be undertaken.

Considerable effort was expended by my office to keep the whole review process open, objective and as free from bias as possible. The main text of this Special Report discusses and presents ideas in a neutral and academic manner. I urge the reader to read this brief report in its entirety in order to appreciate the range of opinions and the level of commitment to and involvement in the EBR process that exists in Ontario. But in the end, this work is valuable only if all that was brought forward is considered and condensed into a set of recommendations that are workable, improve the EBR and allow it to continue to be relevant to future generations.

I believe that responsibility falls to me as the Environmental Commissioner. What follows is a series of 16 recommendations that I am prepared to put before the Legislative Assembly of Ontario which I believe will advance the purposes of the EBR, enhance the effectiveness of the Office of the Environmental Commissioner, and improve government decision-making on environmentally significant proposals. These recommendations are provided to the members of the Legislative Assembly not as an urgent call for legislative reform, but rather as a thoughtful listing of matters to be considered once the Legislature turns its attention to a review of this innovative and progressive statute.

Recommendations

Relating to the Purposes of the Act

1. It is recommended that the purposes of the EBR be reviewed to give consideration to the inclusion of new concepts that inform the decision-making in environmental protection matters that have evolved in the past decade. Specifically, these include the precautionary principle, the polluter pays principle, and the principle of intergenerational equity.

Relating to Statements of Environmental Values

2. It is recommended that ministries exhort staff to adhere to their Statements of Environmental Values (SEVs) and that the SEVs be posted in the workplace with the endorsing signatures of the current minister and deputy minister.

3. It is recommended that SEVs be subject to a specified periodic review to ensure that they reflect current government environmental priorities and policies.

4. It is recommended that the EBR be amended to set out more detailed requirements for SEVs and to include expectations that they be considered in making environmentally significant decisions, whether on a policy, Act, regulation or instrument.

Relating to Ministry Use of the Environmental Registry

5. It is recommended that as a matter of general practice, ministries provide the public with longer comment periods on proposals by posting proposals earlier in the process of development, or in the case of environmental approvals, concurrent with other aspects of the approvals process.

6. It is recommended that ministries be encouraged to make more use of the enhanced public participation provisions of the EBR for proposals that are controversial or of broad public interest.

7. It is recommended that all significant environmental decisions, including all prescribed instruments, be traceable on the Environmental Registry, whether as regular notices or as exception notices that are promptly filed.

8. It is recommended that instruments relating to an undertaking that is subject to the environmental assessment process not be exempted from normal posting as proposals on the Environmental Registry unless it is demonstrated by the proponent that there has been substantially equivalent public consultation on the nature and terms of that instrument.

9. It is recommended that ministries be given explicit discretion to post regular Environmental Registry proposal notices for any instrument covered under s. 32 of theEBR that, in the view of that ministry, deserves public input.

Relating to Seeking Leave to Appeal to the Environmental Review Tribunal

10. It is recommended that public access to the right to seek leave to appeal be improved by extending the deadline for filing a request for leave to appeal from 15 to 20 days.

Relating to the Office of the Environmental Commissioner

11. It is recommended that in order to facilitate complete and accurate reports to the Legislature, the Environmental Commissioner be given the power, similar to the power given to the Ombudsman of Ontario, to require that ministry staff provide information or produce documents relevant to matters under review by the Commissioner.

12. It is recommended that in order to protect the dignity and integrity of the Office, theEBR be amended to state specifically that the Environmental Commissioner and his or her staff cannot be compelled to give evidence in a court of proceedings of a judicial nature concerning information related to the Commissioner’s role or functions.

13. It is recommended that in order to engage the Legislature fully in the complex nature of environmental decision-making, a standing committee on the environment be struck for the purposes of receiving and discussing reports of the Environmental Commissioner and other concerns relating to the purposes of the EBR.

14. It is recommended that a committee of the Legislature review the salary compensation of the position of Environmental Commissioner of Ontario.

Relating to the Right to Sue for Harm to a Public Resource

15. It is recommended that the EBR be amended to modify the test for bringing a court action regarding harm to a public resource so that it presents less of a barrier to potential plaintiffs seeking to bring such an action.

16. It is recommended that the test in ss. 84(2) of the EBR be amended to require that a plaintiff in an action regarding harm to a public resource need only show that the ministry’s response failed to protect the environment adequately.

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