Environmental Assessment for Forest Management
In June 2003, the Ministry of the Environment approved a “declaration order” under the Environmental Assessment Act (EAA) allowing the Ministry of Natural Resources to continue managing Ontario’s forests, subject to 55 terms and conditions. The Declaration Order Regarding MNR’s Class Environmental Assessment for Forest Management replaces the 1994 Timber Class EA Approval issued by the Environmental Assessment (EA) Board. The EA Board had included a process for reviewing and possibly extending the approval in 2003, noting that its temporary term meant the approval would be tested in the forest.
The Declaration Order applies to the forest management planning process and the activities of access, harvest, renewal and tending. The activities include road building and using pesticides. Most of the work is carried out by the forest industry, but regulated by MNR under the Crown Forest Sustainability Act (CFSA).
The other conditions of the Declaration Order cover public advisory committees, scientific research and technical development, monitoring and reporting and administration of the approval.
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Proposed Changes to the Declaration Order
In proposing changes, MNR removed much of the detail from the EA terms and conditions on the basis that the Crown Forest Sustainability Act, 1994, and its regulated manuals provide a more rigorous regime than did the former Crown Timber Act and the manuals in place when the 1994 Timber Class EA Approval was issued. MNR reasoned that the Declaration Order could now function as “enabling planning direction” and the detailed, technical direction would be provided in MNR’s manuals.
The forest management planning requirements of the Declaration Order will be incorporated into the Forest Management Planning Manual (FMPM) by June 2004, (see the ECO review of MNR’s public consultation process for the manual in the Supplement on pages 149-156). The requirements are fairly high-level; the details, for example the timing and specifics of public consultation opportunities, will be set out in the FMPM. This allows the ministry more flexibility to amend the FMPM from time to time, and to continue reviewing and amalgamating its existing forest management guides without having to amend the Declaration Order as well.
Significant Proposed Changes to Forest Management Planning Process
At the same time that MNR argued that the CFSA and its manuals now provide a more rigorous regime, it proposed some major changes to the forest management planning process which arguably make it less rigorous. These changes were proposed to reduce costs and “significantly reduce the planning effort and staff resources required.” Other revisions reflect the transfer of responsibilities from MNR to the industry in the late 1990s. MOE accepted MNR’s approach and rationales for the revisions to the terms and conditions.
The new Declaration Order replaces 115 terms and conditions and 25 appendices with 55 terms and conditions. The major changes include:
- Forest Management Plans will be prepared every 10 years instead of every five years.
- Details were removed from the public consultation, inventory, and data requirements
- The EA Board’s restrictions on clearcut size were removed and replaced with the direction to follow MNR’s current guide, as revised from time to time.
- No expiry date to the Declaration Order, but MNR has to prepare a report every five years.
Some products must be developed by June 2004:
- A regulation governing the conduct of independent audits.
- An action plan describing scientific studies on the effectiveness of the clearcut guide.
- A new provincial wood supply policy.
- Improvements to the forest compliance program.
- Revisions to the FMPM.
MOE’s consideration of public comments
MOE said it received 58 letters about the proposed Declaration Order from aboriginal organizations, individual communities, members of the public and stakeholder organizations, as well as 545 form letters. MOE characterized the stakeholders’ main issues as the wood supply strategy; clearcut size; roadless wilderness areas; old growth conservation; aboriginal consultation; expiry date for the Declaration Order; and accountability issues. MOE did not adequately respond to all of the issues that were raised. In some cases, the ministry simply repeated the terms and conditions or MNR’s rationale for wanting the change.
A broad range of stakeholders, including environmental groups, First Nations, professional associations and government ministries, complained that their previous comments to MNR and MOE had not been addressed. Environment Canada said they had provided comments on three occasions to MNR and MOE, that their earlier comments had not been addressed and that the terms and conditions were still inadequate to protect non-timber values. However, the forest industry expressed support for the review process and the substantive changes to the terms and conditions.
MOE did respond to some of the other concerns identified by commenters, and restored to the Declaration Order some of the detail to terms and conditions that MNR had simplified. The ECO commends MOE’s provisions: strengthening the compliance monitoring and forest operations inspections program; requiring scientific studies of the clearcuts guideline; improving the wildlife monitoring program; and requiring public review of the independent forest audit procedures.
ECO Comment
MOE’s approval of this Declaration Order significantly weakens MOE’s role in forest management. It does this by relaxing the terms and conditions, and by removing the requirement for MNR to re-seek approval. The public’s ability to have MNR held accountable under environmental assessment rules has been lessened.
The public may still use the EBR investigation process to ask MOE to investigate alleged MNR contraventions of terms and conditions of the Declaration Order. Unfortunately, because most terms and conditions are less prescriptive than in the 1994 Class EA approval, it will be harder to allege non-compliance. For example, where a 1994 Class EA condition may have required MNR to meet a specific standard, the same condition in the 2003 Declaration Order may simply require MNR to follow its own guideline, as revised from time to time.
MOE has withdrawn from the role it was assigned in 1994 by the EA Board as watchdog over MNR’s progress in implementing improvements in forest management. MOE rationalized this by asserting that the CFSA and its regulated manuals provide a rigorous framework for protecting forest sustainability, and any future changes to the manuals must be subject to public consultation. MOE and MNR make a valid point – that the CFSA and its regulated manuals set out an accountable regulatory framework for forest management activities. But MNR is currently revising and amalgamating its many guidelines and policies. As we report in our review of the Old Growth Policy, MNR is also moving policy direction out of the regulated FMPM and into “notes” and other less binding documents for flexibility.
MOE should probably have incorporated additional accountability checks and balances, especially given the concerns about MNR’s past compliance. It is true that MOE’s current approach is to approve Class EAs without an expiry date, but the other Class EAs require the equivalent to the Five-Year Report to be approved by MOE. MNR also has a poor record on submitting annual reports, yet MOE did not insert a deadline to require that reports be submitted on a more timely basis. This is something MOE has done in other recently revised and new Class EAs. And despite MOE’s 2001 commitment to the ECO in response to several EBR investigations that it would carry out a third party review of MNR’s annual reports, MOE did not carry out these reviews. The ECO reminds MOE that it is still important for the ministry to review MNR’s annual reports and monitor MNR’s compliance with the approval.
Because there is no expiry date to the Declaration Order, many commenters argued that the use of an “everlasting” approval with no expiry date allows MNR to escape accountability. The Ontario Professional Foresters Association noted that the Declaration Order’s requirement for a five-year report contains no provision for independent verification, stakeholder challenge or even response and stressed that “an interactive independent public review must be a part of this Declaration Order. It is the most serious credibility issue in this entire process.” The ECO finds this argument particularly persuasive and suggests that MOE propose an amendment to the approval to revise Condition 52 , which describes the five-year report on the Declaration Order, in order to provide for an opportunity for public input and response to the Report and a mechanism for MOE approval of the Report. The ECO also suggests that MOE use a third party to assist with their review of MNR’s report.
The ECO is pleased that mandatory use of the Registry has been enshrined in several terms and conditions. Several policies and regulations have already been posted on the Registry, and MNR will still post information notices at each stage of public consultation during the development of Forest Management Plans. But because the term of these Plans has been changed from five to 10 years, there will be a longer gap between public consultation opportunities. The ECO will review the impact of the changes to the forest management planning process on public consultation in our review of the revised FMPM in our 2004/2005 annual report.
(The ECO has several other articles related to this decision in this annual report, including Ontario’s Forest Compliance System, Forest Management Policy for Old Growth, and Monitoring of Aquatic Ecosystem Indicators .) (For mininstry comments, see page 202.)
| Recommendation 9:
The ECO recommends that MOE amend MNR’s Declaration Order for Forest Management to provide an opportunity for public response to MNR’s Five-year Environmental Assessment Report and to incorporate a requirement for MOE to approve the Report. |
| This is an article from the 2003/04 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2004. "Environmental Assessment for Forest Management." Choosing our Legacy, ECO Annual Report, 2003-04. Toronto, ON : Environmental Commissioner of Ontario. 94-99.
