Reviewing the Environmental Bill of Rights, 1993: An Opportunity for Renewed Engagement
The passage of the Environmental Bill of Rights, 1993 (EBR) introduced a new regime for environmental decision making in Ontario – one that involved increased public participation in and greater government accountability for environmentally significant decisions. However, the EBR has never undergone a formal review since coming into force almost 18 years ago. While the ECO’s mandate has been expanded considerably, the EBR has otherwise remained largely unchanged despite calls for improvements to the legislation.
In December 2010, the ECO received an application requesting that the Ministry of the Environment (MOE) undertake a formal public review of the EBR to solicit input on key statutory and regulatory changes that would better achieve the broad purposes of the legislation.
As the ECO does not review applications in progress, we will reserve our comments on this application until MOE has completed its review. However, this application has prompted the ECO to reflect on how the EBR process is working as a whole and whether it is living up to the original vision of the Legislature. How well the EBR works is not just about what the Act and its regulations say; it is also about how the law is used, interpreted and applied by the ministries responsible for giving it effect.
Here, the ECO highlights the critical role that prescribed ministries play in the ultimate success of the EBR process, and considers the opportunity that MOE’s review presents for renewing engagement – by the public and the government itself – in this unique and important legislation.
| Reviewing the EBR |
|---|
| Over the years, the EBR has been scrutinized closely by its many stakeholders. In recent years, specific aspects of the legislation have been the subject of applications for review. To mark the EBR’s 10-year anniversary, the ECO undertook a review of the EBR, with input from a wide range of stakeholders, to consider the effectiveness of the legislation and potential reforms. Based on that review, in March 2005 the ECO submitted a Special Report to the Ontario Legislature including 16 recommendations that the ECO believed would “advance the purposes of the EBR, enhance the effectiveness of the Office of the Environmental Commissioner, and improve government decision making on environmentally significant proposals.” To date, those recommendations have gone largely unfulfilled.
The application for review submitted to the ECO in December 2010 asserts that, after 17 years of “operational experience,” it is time to evaluate the efficacy of the EBR and consider potential improvements to the legislation. The applicants note that, while there have been cases that demonstrate that “the EBR can be used effectively to inform and empower the public to protect the environment and conserve resources, particularly at the local level,” there have also been problematic cases that point to the need for EBR reform. The applicants identify ten key issues that they believe should be formally reviewed by MOE in an open and public review of the EBR:
In deciding to undertake the review, MOE agreed with the applicants that “the EBR is generally sound and it would not be appropriate to conduct a wholesale reconsideration of the Act in its entirety.” The ministry stated that its review “will examine certain components of the EBR, as determined necessary by the Ministry after further deliberation and references to some of the matters raised in your application.” |
Putting the EBR to Work
Ministries that are prescribed under the EBR play a crucial role in ensuring that the EBR functions as the Legislature intended. How these ministries carry out their obligations under the Act bears directly on the effectiveness of the EBR process.
Every year, the ECO monitors and reports on ministry compliance with various aspects of the EBR. For example, the ECO reports on ministries’ performance and progress in their use of the online Environmental Registry (e.g., use of the different types of notices, quality of the information posted, and time provided to comment) and ministry co-operation with the ECO’s requests for information, among other things (for this year’s evaluation, see Part 8 of this Annual Report). The ECO also reports on ministry handling of applications for review and investigation made under the EBR (for this year’s review, see Sections 5 and 6 of the Supplement to this Annual Report). Although the EBR does not compel ministries to follow ECO recommendations, from time to time the ECO also reports on ministry implementation of our past recommendations.
The EBR requires each prescribed ministry to develop a Statement of Environmental Values (SEV) – a description of the principles that guide the ministry when making decisions that might significantly affect the environment. Concerned that many ministries were not giving due regard to their SEVs, the ECO undertook a project in our 2009/2010 reporting year to identify and promote examples of best practices for applying SEVs and integrating them into day-to-day ministry operations. Developing SEVs that more fully integrate the intent of the EBR and that include details about the ministries’ SEV consideration process would make environmental decision making more accountable and transparent to the public. (For the ECO’s analysis of SEV best practices, see Part 8.2 of the ECO’s 2009/2010 Annual Report.)
The ECO also closely monitors the progress made in keeping the EBR current with new laws, regulations, instruments and other government initiatives. It is essential for these to be swiftly prescribed under the EBR so that the public is not deprived of the right to participate in environmentally significant decisions, file leave to appeal applications, and request EBR investigations and reviews. For the EBR process to function as intended, prescribed ministries – and the Ontario government as a whole – must keep the EBR in mind when passing new laws or making changes to ministries. While the ECO has observed some progress in expanding EBR coverage in recent years, many needed updates and changes remain unaddressed. (For this year’s update on “Keeping the EBR in Sync with New Laws,” see Part 8.1 of this Annual Report.)
The ECO also comes across more specific issues with EBR implementation in the course of our daily work. For example, on several occasions the ECO has expressed concern with the way ministries interpret and apply section 32 of the EBR, which excuses them from posting instrument notices on the Environmental Registry if the instrument is part of a project either approved or exempted under the Environmental Assessment Act. This year, the ECO noted a troubling trend in the way ministries use the Environmental Registry to consult on various environmental permits and licences (for one example, see Part 8.2.2 of this Annual Report).
Recipe for Successful Consultation
One of the most important roles of prescribed ministries under the EBR is their obligation to notify and consult the public about environmentally significant proposals using the Environmental Registry. The public’s ability to meaningfully exercise their EBR rights is dependent on diligent implementation of this duty.
By and large, ministries are meeting or even exceeding the basic notification and consultation requirements of the EBR. However, year after year we continue to see some instances of poor compliance that frustrate the EBR consultation process: environmentally significant proposals not posted on the Environmental Registry or posted using the wrong type of notice; lack of information or clarity in notices; insufficient time provided to comment on complex matters; and failure to give notice of a decision promptly or at all. All of these problems hinder the public’s ability to exercise their rights under the EBR, and point to a lack of respect by the responsible ministries for the legislation and its users.
Based on the ECO’s observations and experience over the years, some key ingredients for successful EBR consultation include: Identifying a proposal as “environmentally significant” early in its development;
- Considering the ministry’s SEV early and throughout the development of a proposal;
- Posting proposal notices on the Environmental Registry as early as possible in the decision-making process;
- Posting multiple notices for comment (i.e., multi-stage consultation) for the development of more complex or significant proposals;
- Ensuring that all Environmental Registry notices are written clearly, explain the environmental impacts of the proposal, include links to supporting documentation and include sufficient detail for members of the public to make informed comments on the proposal;
- Ensuring that the amount of time provided to comment on a proposal is appropriate, given the proposal’s complexity and other circumstances;
- Giving meaningful consideration to all comments received during consultation before making an internal decision; and
- Promptly posting a decision notice once the ministry has made a decision, including a clear explanation of how the public’s comments were considered and highlighting any changes that have been made since the proposal was posted.
The Environmental Registry is where many of the public’s EBR participatory rights – the right to notice, the right to comment, and the right to seek leave to appeal – are given effect. Ministries must not lose sight of the underlying purposes of their EBR consultation duties or the consequences of inadequately performing them.
An Opportunity for Renewed Engagement
Ontarians should feel proud to have an EBR. It is a unique law that bestows a powerful set of rights on the public. After 18 years, though, it can be easy to take this for granted, to become complacent. The recently submitted application for review offers an opportunity for the government to renew engagement and interest in the EBR and what it represents.
If, as requested, MOE undertakes formal public consultation on potential EBR reform, Ontarians will have a longawaited opportunity to provide input on updating and improving the legislation so that it can more effectively achieve its laudable goals.
The ECO hopes that this review will also inspire MOE to examine how the EBR process is functioning within government, and to encourage prescribed ministries and their staff to review internal approaches to meeting their EBR obligations and consider whether they are advancing the purposes of the legislation. Given the record numbers of ministry staff that attended ECO-hosted EBR training sessions this past year, the ECO believes that ministry staff are eager to ensure that internal practices further the principles of the EBR.
With a strong EBR and a strong commitment from ministries to give it effect – by not only fulfilling their EBR obligations in a technical way, but by upholding the spirit and intent of the legislation – Ontario will continue to be a leader in public participation, citizen empowerment and government accountability for protecting and preserving the province’s ecosystems for future generations.
For ministry comments, please see Appendix C.
| Previous section: Part 7 – Public Concerns Raised: Applications |
| Next section: Tapping into the Oak Ridges Moraine |
| 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. "Reviewing the Environmental Bill of Rights, 1993: An Opportunity for Renewed Engagement." Engaging Solutions, ECO Annual Report, 2010/11. Toronto: The Queen's Printer for Ontario. 116-119.
