Policy Analysis

Know Your Rights: The Environmental Bill of Rights

A brief overview of Ontario's Environmental Bill of Rights

A brief overview of Ontario’s Environmental Bill of Rights

The Environmental Bill of Rights (EBR) is a law that was passed in Ontario in 1993 that formalizes a healthy environment as a right for all residents. The government is responsible for creating and maintaining said healthy environment, but the public has a right to participate in the decision-making process. Furthermore, this bill allows residents to hold the government accountable for said decisions. Basically, under the EBR, the Government of Ontario must notify and allow comments from the public on all decisions that would significantly affect the environment (ostensibly… but we will come back to that).

Until 2019, the Environmental Commissioner of Ontario was responsible for upholding the EBR. The ECO was one of the independent offices of the Legislative Assembly that would also publish annual reports on the state of the environment in Ontario and, critically, climate change. The ECO was abolished by the Ford government in 2019 and responsibility for the EBR was transferred to the office of the Auditor General, which conducts independent audits of Province of Ontario operations. A Commissioner of the Environment as an employee of the Auditor General is now responsible for the EBR. The Commissioner must also provide an annual report as ECO did. Reports in 2020 were largely focused on finance with a series of environmental “value-for-money” audits.

Some of the key components of the EBR are as follows:

Duties of the Environment MinisterThe Minister must explain the EBR to the public and educate them when asked.
Environmental RegistryThis is the place to look for what environmentally significant changes are happening to policies, acts, regulations, and other “instruments”, which are any legal document issued under an Act that is not a regulation.
Environmentally significant government proposalsThe public has the right to be notified of and give comment on environmentally significant government proposals, which must be posted on the Environmental Registry. This applies to any proposal for policies, acts, regulations, and other instruments. The ministries must take your comments into account when making their decisions.
Appeals of DecisionsAny resident of Ontario may challenge decisions made on environmentally significant proposals. However, to formally file the appeal you must get permission from the appellate body (usually the Environmental Review Tribunal or Ontario Municipal Board).
Application for ReviewAny resident of Ontario may request that the Minister conduct a formal review of an existing policy, Act, regulation, or other instrument in the interests of protecting the environment. Under this process, you can ask for a change or for the instrument to be removed entirely. New instruments can also be requested through this process.
Application for InvestigationYou can ask the government to investigate if you think that an environment-related policy, act, regulation, or other instrument is being violated.
Right to SueResidents have the right to sue someone who has violated a public instrument and caused damage/harm to a public resource. In this case, you cannot collect damages from the suit. If, however, the environmental harm also caused you direct economic loss and/or personal injury, then you may be able to collect damages. For more on the EBR lawsuit process, see the guide from the ECO.
Employer ReprisalsThis section protects whistleblowers. Employers cannot punish, harass, intimidate, or attempt to punish, harass, or intimidate you for reporting violations of environmental instruments.

Also included in the EBR is the section on “Statements of Environmental Values” (SEV). These are statements that listed ministries must create to guide their decision-making when considering proposals that may significantly affect the environment. The SEVs should also explain how decisions of the environment will be integrated with social, economic, and scientific considerations. Public participation on SEVs is mandatory; within three months of preparation of the statement, public notice must be given in the Environmental Registry. The ministries that must have SEVs and consult on the Environmental Registry are:

The main issue here is that the EBR does not identify any standard for the level of consideration of the environment for each ministry, only that it should be a consideration. This gives the ministries a lot of wiggle room in terms of how much they must actually take environmental concerns into account, to the point where the Canadian Environmental Law Association (CELA) found that even the Ministry of the Environment, Conservation, and Parks has a weak SEV that does not adequately address environmental concerns.

In April 2020, Doug Ford’s government added an exemption to the EBR that suspended the requirement for public consultation on proposals for laws, policies, regulations, and projects of any level of environmental significance. Ministries also did not have to comply with the Statements of Environmental Values. While the exemption was repealed in June 2020 following public backlash, it followed the trend of the Ford government’s attempts to undermine and reduce the powers of environmental regulations in Ontario.

It is because environmental regulations are under attack that the EBR becomes even more important. That the backlash against the 2020 exemption actually resulted in revocation speaks to the power of public participation. However, there are some issues with it that could be improved.

The EBR grants residents the right to transparency and efficiency in government decisions but, like many other policies, lacks the strong language to prevent its circumvention and self-serving interpretation. Liberally sprinkled throughout the document are phrases such as “take reasonable steps” and “within power” without explicit description of expectations and/or guidelines. As a result, in some cases public notice of environmentally significant proposals does not need to be given and the public can simply be notified once the decision is made.

Notice for proposals also does not need to be given during declared emergencies or in cases where there are concerns for public and/or environmental safety. Nor is public notice mandatory in cases where the Minister believes that the environmentally significant aspects of the proposal have already been considered in other arenas of public participation or are required to be considered under another act. This could be considered as removing redundancy from the public participation process, but it is unknown how thorough the processes under other public participation channels are compared with those of the EBR. Furthermore – and this is potentially how changes to the Conservation Authorities Act were slipped into the COVID-19 Recovery Act – notice of proposals does not need to be given if the implementation of said proposals were to be part of a budget or other economic statement.

The last area where the EBR is lacking is another exception to the notice for participation rule. Section 32 of the EBR states that normal requirements and processes of the EBR do not apply to those instruments that are necessary to implement proposals or projects that have already been exempted or approved under the Environmental Assessment Act (EAA). CELA conducted a review of this section and the approval processes of the EAA and found that they were insufficient compared to the processes of the EBR. CELA recommended that this section be removed entirely. To date, this has not been done. Instead, the most recent update of the EBR in 2020 added another exception for a specific type of project under the EAA.

While it has a few issues, the EBR is vitally important to holding the government accountable for its decisions relating to the environment. It affords residents the opportunity to engage with and challenge the government in ways in which we might not otherwise be able. To stay up to date on upcoming proposals, visit the Environmental Registry of Ontario.

References

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