Open for Business, Closed to Public Comment: Omnibus Legislation and the EBR
Sometimes the government will introduce a bill in the Legislature that proposes to enact, repeal or make changes to a number of different laws. These “omnibus bills” can be an expedient way for the government to make law. However, the practice of combining multiple, complex and sometimes unrelated matters into one bill has been criticized as undermining the usual process of parliamentary legislative debate. Omnibus bills that make changes to Ontario’s environmental laws can also pose particular challenges to the Environmental Bill of Rights, 1993 (EBR) process.
Bill 68 – Open for Business Act, 2010
In this reporting year, the Ontario government introduced and passed Bill 68, the Open for Business Act, 2010. This 166-page bill made changes to approximately 50 statutes affecting 10 ministries. Introduced by the Minister of Economic Development and Trade, Bill 68 was intended to “support economic growth and foster simpler, better and faster interaction between government and business.” In particular, the bill made many environmentally significant amendments to acts administered by the Ministries of the Environment (MOE), Natural Resources (MNR) and Agriculture, Food and Rural Affairs (OMAFRA), all of which are prescribed under the EBR.
Under the EBR, the Ministry of Economic Development and Trade (MEDT), as a prescribed ministry, should have used the Environmental Registry to give notice to the public of the environmentally significant matters contained in Bill 68. It did not do so.
MOE, MNR and OMAFRA were also responsible for ensuring that the public was consulted on environmentally significant changes that Bill 68 would make to their respective statutes. However, only after the ECO wrote to remind MOE and OMAFRA of their EBR obligations did those ministries post proposal notices on the Environmental Registry, over a month after Bill 68 was introduced (for more information about these “unposted” decisions, see Sections 1.1.1 and 1.3.1 of the Supplement to this Annual Report). While both ministries provided an opportunity for the public to submit comments, the delay in posting the proposals reduced the likelihood that the public’s comments would be received in time to be meaningfully considered before the Bill passed.
By contrast, MNR gave notice on the Registry – without prompting by the ECO – very shortly after Bill 68 was introduced. However, the ministry posted just one proposal notice, using a generic title, to consult with the public about significant environmental amendments to four separate MNR statutes affected by Bill 68. Ideally, MNR would have posted and consulted on each proposal separately – or at least named each of the acts affected in the proposal title – to ensure that the public was fully aware of the proposed changes and had sufficient time to comment on each one.
More generally, the ECO is concerned that combining so many different matters in this omnibus bill may have allowed some significant changes to pass into law with minimal scrutiny. For example, if amendments to the Oil, Gas and Salt Resources Act applicable to shale gas exploration and extraction had not been rolled up in Bill 68, that proposal may have garnered considerably more public interest. As a stand-alone bill, it would also have received a more focused debate and dedicated vote in the Legislature. For more information about shale gas, see Part 6.1 of this Annual Report.
A Recurring Problem
The ECO has long expressed concerns about the use of omnibus legislation to reform environmental laws. As far back as 1996, the ECO recommended that omnibus-style legislation only be used for housekeeping matters. Nevertheless, the Ontario government has continued to use omnibus bills to make substantive changes to the province’s environmental laws, and the ECO has continued to identify problems with this approach.
In particular, the ECO has found that it has had to remind some ministries to give notice of environmentally significant amendments when they are contained in omnibus bills. A prescribed ministry that introduces an omnibus bill, such as MEDT, must remember to consider the EBR implications of including any environmentally significant matters in the bill. When the ministry introducing an omnibus bill is not prescribed under the EBR (e.g., Ministry of Finance, Ministry of the Attorney General), which is often the case, it becomes even more important for prescribed ministries to ensure the public is consulted on any environmentally significant changes to their legislation that are proposed in the bill.
Commenters have also complained that the number and variety of amendments proposed in some omnibus legislation make it more difficult to review and comment. Further, in one case, important environmentally significant amendments relating to brownfields were quickly passed into law – without the usual EBR consultation – by including them within a vast budget bill (section 33 of the EBR specifically exempts proposals that form part of a budget from the usual notice and consultation requirements of the EBR).
Omnibus legislation can pass through the Legislature relatively quickly – sometimes too swiftly to allow for a 30-day comment period on the Registry. The ECO has reiterated on several occasions that ministry staff should explain in the Registry notice when consultation may be truncated due to the legislative timetable. Early, multi-stage consultation using the EBR could also ensure the public has sufficient time to review and comment on proposals and for the ministry to consider those comments before making a final decision.
Proceed With Care
At best, using omnibus legislation to amend environmental laws complicates the EBR process. At worst, it can obstruct the public’s right to participate in environmental decision making. Environmentally significant decisions must be made in a transparent and accountable manner. The ECO urges prescribed ministries to ensure that any environmentally significant proposals included in omnibus bills undergo the same degree and quality of notice and consultation on the Environmental Registry that would occur if those proposals were contained in stand-alone bills.
For ministry comments, please see Appendix C.
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|This is an article from the 2010/11 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2011. "Open for Business, Closed to Public Comment: Omnibus Legislation and the EBR." Engaging Solutions, ECO Annual Report, 2010/11. Toronto: The Queen's Printer for Ontario. 170.