Commissioner’s Message: Getting to K(no)w

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Twenty-five years ago, when I first started working in pollution abatement for the Ontario Ministry of the Environment, my colleagues and I – the technical experts and bureaucrats of the ministry – made all the decisions about what were acceptable environmental protection procedures and what amount of pollution should be allowed to be discharged into the environment. Ministry staff made these decisions by themselves, behind the closed doors of their offices, without bothering either to let the public know what was happening or to ask their opinion on what should be done. Now don’t get me wrong. To a very great extent, the decisions made turned out to be correct, responsible and in the public interest. The point is: nobody asked, because nobody thought the public needed to know. The ministry and its expert staff, including me at that time, thought it was our job alone to protect the environment.

But that’s not the right way to do things and, eventually, everyone realized it. The public has to be involved because the decisions being made during the processing of various environmental and planning approvals have profound implications for our land, our water and our ecosystems, all part of the natural heritage that the public owns and upon which the economy and our quality of life depend. Further, the consequences of these types of decisions often extend far into the future, with important implications for generations yet to come.

There was an interesting exception to the general approach of making decisions in private. The Environmental Assessment Act was passed in 1976 and it required a lot of public involvement and consultation. But, the Act only applied to a limited number of public sector projects; the thousands of environmental decisions and approvals made throughout the years relating to private sector activity were explicitly exempted from its purview. Nonetheless, it was visionary legislation, and well ahead of its time. Unfortunately, as we discuss in this report, that vision may have become muddled, if not lost entirely, in the more than 30 years since the passage of the Environmental Assessment Act.

Support for meaningful public consultation on environmental decisions increased gradually through the 1980s and early 1990s. With the passage of the Environmental Bill of Rights, 1993, the right to transparency in government decision-making relating to the environment was crystallized into law.

Today, it is generally recognized that public consultation in environmental decision making is important and necessary. But is Ontario conducting successful consultations? There seems to be a lot of public dissatisfaction with the nature of the current consultation opportunities offered during environmental approval processes.

Recent proposals for quarries, landfills, and various energy projects provide illuminating examples of a growing public frustration with approvals processes. So, what is Ontario doing right, and where has it gone wrong? Is there a better model for proper public consultation?

The concept of meaningful consultation is clearly evolving in our society, and there is a lot of uncertainty and confusion about what needs to be done. Most interestingly, that evolution is not being driven by internal efforts to improve Ontario’s frustrating environmental approvals mechanisms, but by the initiatives of aboriginal peoples in the courts. Perhaps it is too early to define what full and meaningful consultation involves, but a couple of aspects are becoming clear.

First, consultation is not simply telling people what you intend to do and, then, listening to their comments. Consultation begins with engaging all the parties that have an interest in the proposed project and determining to what degree they understand what the project is, the full range of its potential impacts and how it may be important to them. If the audience doesn’t understand the nature and complexities of the project and/or how it may impact their interests, however subtly, then meaningful consultation can’t occur. In such a situation, it is necessary to step back and first help to educate the impacted constituencies and build their capacity to fully participate in and comprehend the decision that is being made. The parties have to get to a position where they all know the full implications of a proposal before a meaningful dialogue can occur.

The second crucial aspect of public consultation relates to the perceived sincerity of that dialogue. There have been many occasions where affected people have dedicated tremendous time and effort to the consultation process, in the sincere belief that their rational arguments could change or stop the proposed undertaking, only to have their expectations dashed when the project was approved unchanged. Despite all their work – participating in a process that will hear, but still ignore, their arguments – they discover that it can be impossible to get to a “No” outcome. This is very damaging to the credibility of environmental approval processes. It alienates the people in society who can speak for the integrity of our decision making systems. It encourages those who reject participatory processes and endorse less constructive and more costly strategies, such as litigation or civil disobedience, as a mechanism of public decision making.

To be legitimate, an approval process must be able to reach a decision not to proceed. I’m not saying that this should be a common outcome. Quite the contrary, one would expect that the vast majority of proposed undertakings would be well-designed and well-considered, even before they reach the public consultation stage, so as to be likely candidates for approval. But, in a valid and meaningful consultation process, we would expect that sometimes rational arguments or contrasting societal value systems would and should lead to a “No”. Without that possibility, there is no value in consultation.

Gord Miller

Environmental Commissioner of Ontario

This is an article from the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario.

Citing This Article:
Environmental Commissioner of Ontario. 2008. "Commissioner's Message: Getting to K(No)w." Getting to K(No)w, ECO Annual Report, 2007-08. Toronto, ON : Environmental Commissioner of Ontario. 4-5.

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