Broken Promises: MNR’s Failure to Safeguard Environmental Rights
This Special Report was submitted to the Legislative Assembly of Ontario on June 21, 2001. For more information, including appendices, please click here.
Contents |
Introduction
Ontario’s Environmental Bill of Rights (EBR) was established to protect the right of Ontarians to a healthful environment and to promote public participation in environmental decision-making. The EBR explicitly states that the Ontario government has the primary responsibility for achieving these goals.
My mandate as Environmental Commissioner of Ontario is to review how provincial ministries carry out the requirements of the EBR and to report to the Legislative Assembly annually. The EBR also enables me to issue a special report at any time on matters that, in my view, should not wait until the release of my annual report.
This is my second special report since I assumed my duties as Environmental Commissioner on February 1, 2000. I am reporting that the Ministry of Natural Resources (MNR) is thwarting public participation and public scrutiny of environmental decision-making by effectively blocking the final steps in a legal process set out in the EBR. I see the need to issue this special report to respond publicly to the long string of broken promises that MNR has made to my office since 1995, each time asserting that the ministry would very shortly be complying with the EBR by “classifying its instruments” – in other words, opening its instruments to public comment and review. Other Ontario ministries classified their instruments years ago. The Ministry of the Environment (MOE) completed this process as early as 1994. MNR’s persistent failure to do the same is not only a breach of the letter and spirit of the EBR, it also frustrates the rights of the public.
The practical effect of MNR’s failure to classify its instruments is that the public cannot use the EBR as it was intended. Over the past five years, our office has been contacted by many Ontario residents with concerns about instruments administered by MNR. Many express shock and disappointment when they learn that MNR’s instruments are still not subject to the public comment, review and appeal rights of the EBR.
Instruments
What are instruments?
Instruments are legal documents issued to companies and individuals granting them permission to undertake certain activities. For example, MNR issues over a hundred different types of instruments, variously permitting the operation of sand or gravel pits, dredging or other construction work around lakes or rivers, or trapping wildlife. Most of these activities have environmental impacts, both positive and negative. Instruments include licences, orders, permits and certificates of approval.
Classifying Instruments
When the EBR came into effect, certain ministries were required to evaluate all the types of instruments that they issued, to identify those which had environmental effects, and to divide them into three classes according to their level of environmental significance. The EBR also established deadlines for each ministry to complete this “instrument classification” process. MNR was to complete this process “within a reasonable time” after April 1 1996.
The classification process is important for Ontario residents wishing to exercise their rights under the EBR. The public has no rights under the EBR to comment on any environmentally significant instruments until the ministry has formally classified them and finalized the decision as a regulation. How an instrument is classified (Class I, II or III) is also important, since it determines what level of public participation will be allowed, whether through making comments or applying for appeals, reviews or investigations under the EBR.
All new proposals for Class I, Class II or Class III instruments must receive at least a 30 day comment period on the Environmental Registry. The Registry is the key public consultation tool for the EBR. Above and beyond this minimum public comment opportunity, the ministry must provide additional notice, such as a newspaper ad for Class II instruments, and Class III instruments usually require a hearing.
The Registry is one of the major success stories of the EBR. Between 1994 and early 2001, Ontarians made good use of the Registry, and Registry use continues to rise steadily. Registry users can customize their searches and have access to an extensive database of Registry instrument postings. Registry instrument notices increasingly include links to the full text of approvals and permits, providing a cost-effective means by which ministries can solicit public input into environmental decision-making.
What kinds of instruments does MNR administer?
MNR administers and oversees a number of environmentally significant laws, and issues thousands of instruments each year. In late 1997, MNR predicted it would post approximately 2,500 instrument proposal notices on the Registry each year, under 10 different Acts. The MNR Acts that are prescribed under the EBR and that contain instrument granting powers include: the Aggregate Resources Act; the Conservation Authorities Act; the Crown Forest Sustainability Act; the Fish and Wildlife Conservation Act; the Lakes and Rivers Improvement Act; the Mining Act; the Niagara Escarpment Planning and Development Act; the Oil, Gas, and Salt Resources Act; the Provincial Parks Act; and the Public Lands Act. MNR also shares administration of the Fisheries Act (federal) for the purposes of applications for investigation under the EBR.
MNR does, of course, already use the Environmental Registry to post proposals for changes to these laws, as well as changes or additions to the ministry’s policies and regulations. But consultation on province-wide policies does not replace the need for transparency and public review of the ministry’s many site-specific instruments. Ontarians often have a strong interest and personal stake when changes are proposed that affect a specific piece of land. For example, they may live near a proposed quarry expansion, or they may be accustomed to fishing or hiking near a proposed waterway project, or their business may be affected by proposed forestry operations. When the EBR was enacted, it was intended that all Ontarians would have rights to comment on such proposals, but, unfortunately, the public is still waiting for these rights.
Promises made by MNR
In May 9, 1995, the ECO wrote to the Deputy Minister of MNR requesting an update on the ministry’s progress on instrument classification (IC), and urging that the ministry start work on its IC regulation as soon as possible. Between May 1995 and May 2001, senior management and staff at MNR have made numerous commitments to the ECO on this issue. A detailed chronology of the interactions between the ECO and MNR staff is attached to this Special Report as Appendix 1. The following excerpts illustrate the nature of promises made to the ECO by MNR over the years.
| May 29, 1996 | MNR’s Deputy Minister informs the ECO that a draft regulation to classify MNR’s instruments is expected by the autumn of 1996, and a regulation is to be in place by the end of 1996. |
| March 11, 1997 | MNR posts its first proposal for a regulation to classify its instruments, and invites public comment |
| Nov. 10, 1997 | MNR posts its second proposal for a regulation to classify its instruments, and invites public comment |
| January 25, 1999 | The Minister of Natural Resources informs the ECO that “While the Ministry had hoped that issues could be resolved and that the [instrument classification] regulation could be moved along for the government’s consideration in the fall of 1998, this has not come to be.” |
| Sept. 1999 | MNR’s Deputy Minister informs the ECO that a new instrument classification regulation will be ready in early 2000. |
| Jan. 26, 2000 | MNR staff tell the ECO that they hope the regulation will be forwarded to 4 MOE by the end of February. |
| Feb. 2000 | MNR staff tell the ECO that the regulation will be ready by the end of 2000. |
| Dec. 21, 2000 | MNR’s Deputy Minister tells the ECO that the instrument classification regulation will be ready in early 2001. |
| March, 2001 | MNR informed the ECO that the regulation had received approval from MNR management and had been forwarded to the Red Tape Committee and the Statutory Business Committee of Cabinet. |
| June 2001 | MNR has still not posted its instrument classification regulation on the Environmental Registry. |
What other ministries have done
Three ministries and one agency — the Ministry of the Environment, the Ministry of Northern Development and Mines, the Ministry of Municipal Affairs and Housing and the Technical Safety and Standards Authority — have posted proposals for instruments on the Registry for public comment for years. Indeed, MOE has posted more than 10,000 instrument proposal notices for public comment since November 1994. Appendix 2 provides more detail on how these other ministries successfully classified their instruments under the EBR.
Which other EBR rights have been curtailed?
MNR’s delay in finalizing its instrument classification regulation has also prevented Ontarians from using other EBR rights in the way that the drafters of the law had intended. For example, the public has not been able to ask for reviews of older MNR permits for aggregate operations, or apply for investigations of contraventions related to conditions of these permits. In addition, the public has been denied the right to request appeals of certain MNR instruments before review tribunals.
Moreover, until MNR’s instrument classification regulation is finalized, MNR staff are not required to consider the ministry’s Statement of Environmental Values (SEV) in making decisions to issue new instruments under MNR’s prescribed Acts. The SEV spells out core values that are to guide the ministry in making decisions that might affect the environment. It is also a tool that Ontarians can use to see how each ministry complies with the EBR. For example, MNR’s SEV requires that ministry staff consider ecosystems values, but until the ministry’s instruments are classified, this requirement does not extend to decisions on instruments.
How has MNR done on its instrument classification regulation so far?
Since the autumn of 1992, MNR management has known that the instrument classification requirements would soon apply to the ministry. The EBR was introduced for first reading in the Ontario Legislature in May 1993. The legislation was proclaimed in force in February 1994. Under O. Reg. 73/94, the General Regulation under the EBR that was filed when the EBR was proclaimed in 1994, MNR was required to complete work on its instrument classification regulation within a reasonable time after April 1, 1996.
In December 1996, the Canadian Environmental Law Association launched a judicial review of the failure of MNR to file its IC regulation proposal. MNR advised the ECO in early 1997 that the ministry would quickly proceed with development on an IC regulation proposal rather than attempt to deal with the judicial review in the courts.
MNR posted a preliminary proposal for a regulation in March 1997, which received extensive public comment, including criticism on a number of issues. MNR staff undertook significant changes to both the regulation and the text of the posted proposal, and its proposal was re-posted in November 1997.
In the fall of 2000 MNR staff advised the ECO that they had completed planning work for implementation of MNR’s instrument classification regulation. MNR also has undertaken a considerable amount of mandatory training for field staff, planners and managers in the ministry to ensure that staff are aware of overall EBR requirements and specific procedures relating to the posting of instrument proposal and decision notices.
Nevertheless, the core fact remains that MNR has still not classified its instruments, and I no longer have confidence that the ministry will carry out its legal obligation of its own accord.
Conclusion
Despite working on its instrument classification process for more than five years, MNR has not yet fulfilled its EBR obligation to finalize a regulation classifying environmentally significant instruments under the various Acts it administers. O. Reg. 73/94 under the EBR requires the ministry to develop an instrument proposal within a reasonable time after April 1, 1996. The ministry has circulated two proposals for an instrument classification regulation, the first issued in March 1997, and the second issued in November, 1997, with a comment period ending in January 1998. For the last three and a half years, MNR has not communicated with the public about its intentions on this matter.
MNR’s delay in completing its instrument classification regulation is unreasonable and unacceptable. The ministry should finalize and publish its classification regulation in the Ontario Gazette before September 1, 2001.
Citing this article:
Environmental Commissioner of Ontario. 2001. Broken Promises: MNR’s Failure to Safeguard Environmental Rights, ECO Special Report, 2001. Toronto, ON : Environmental Commissioner of Ontario
