Ontario’s EBR under scrutiny in law reform agency’s call for review

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The Law Commission of Ontario’s latest consultation paper says the Environmental Bill of Rights should be examined closely as part of an “independent, interdisciplinary, and balanced review” based on “evidence-based, and comprehensive analysis.” Photo credit: TarikVision, stock.adobe.com

After nearly 30 years of serving Ontarians, it’s time for a review of the Environmental Bill of Rights, says the Law Commission of Ontario (LCO), which is now asking the public and a broad array of stakeholders about how to strengthen and potentially rethink the legislation’s legal tools.

In its recent consultation paper, the LCO, a law reform agency, poses 16 questions about the EBR, which established important mechanisms to improve public participation, transparency, and accountability in environmental decision making, particularly through The Environmental Registry of Ontario, when it was introduced in 1994.

“Before the enactment of the EBR, environmental decision making in Ontario had been largely limited to ‘bipartite bargaining’ between government agencies and private proponents, or amongst various levels of government,” states the LCO consultation paper. “The public was not afforded any opportunity to provide input into the government’s decision to issue permits, licenses, or orders.”

But times have changed significantly, and environmental threats now have greater urgency, contends the LCO, suggesting the history of the EBR should be examined closely as part of an “independent, interdisciplinary, and balanced review” based on “evidence-based, and comprehensive analysis.”

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The EBR came into effect almost 30 years ago, meaning many questions have surfaced over the years, says the LCO.

“The passage of time means the EBR can be evaluated against its original objectives to assess its effectiveness in promoting environmental accountability for Ontarians,” the consultation paper begins.

Now, the LCO, founded in 2008, is posing questions such as why provincial ministries have often not implemented the EBR. It notes several legal cases where the courts, for instance, have been critical of ministries for not having a consultation process on some issues, or for making final decisions while consultation was ongoing. For instance, Greenpeace sued Ontario in 2019 over the cancellation of the province’s cap-and-trade program, aimed at reducing greenhouse gas emissions, without undertaking public consultation.

The EBR established the Office of the Environmental Commissioner of Ontario (ECO) to serve as a “watchdog” with responsibility for oversight of the operation and implementation of the EBR. Throughout the history of the position, which in 2019 was controversially folded into the Office of the Auditor General of Ontario, its function has been in part to oversee the operation and effectiveness of the EBR. The consultation paper poses several questions around the ECO, such as whether the role should be entrenched under the EBR as an independent officer of the Legislature.

The LCO consultation paper also considers that since the enactment of the EBR, there have been several new environmental accountability strategies that have been adopted or are under development in Canada.

The EBR may have also lacked environmental accountability on some fronts, LCO suggests.

“Most notably, the Task Force lacked Indigenous representation and did not discuss accountability mechanisms as they relate to Indigenous Peoples,” LCO states in its paper. “Nor does the EBR acknowledge Indigenous legal orders or perspectives as a principle, or even criteria, governing environmental accountability in Ontario.”

The consultation paper is also seeking input around emerging legal concepts of “environmental justice,” and the “right to a healthy environment,” which were not part of the cultural landscape in the mid-1990s or in the minds of those who drafted the EBR.

The LCO is also asking Ontarians whether they believe access to information should be improved going forward, and if so, how? For instance, the LCO suggests that the EBR could include provisions requiring the government to provide access to information in a reasonable, timely, and affordable way, or require the public be provided adequate time to comment when government ministries post major proposals on the registry.

The LCO says it is organizing a wide range of meetings, forums and workshops over the next several months to further explore the state and relevance of the EBR in today’s world.

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