In the late days of December, the Canadian Environmental Law Association submitted an application for review of Ontario's Environmental Bill of Rights. If the Ontario government accepts CELA's application - which it should - there will be a much-needed review of this important provincial law. This week, Waterkeeper.ca Weekly is a Top 10 list of the reasons why the EBR needs a tune-up, summarized from CELA's important submission.
Quick background: The Environmental Bill of Rights (EBR) is an Ontario law that came into force in 1994. The law is supposed to protect Ontarians' right to a healthy environment by guaranteeing procedural rights, including these ones:
you are notified about important policies or development projects
you have a chance to appeal certain decisions
you can ask for a review of existing laws or policies
you can ask for new laws
you can ask for an investigation if you think someone is breaking the law
Top 10 problems with our environmental "rights" ... and CELA's solution
#1: The purposes of the EBR are out-of-date. A lot has changed in environmental law since the EBR was written. The purpose section is important because it explains how a law is supposed to be interpreted. The EBR's purposes are sadly out of date and are missing many of the most commonly-accepted principles in environmental law today, including the “polluter pays” principle, “precautionary principle”, and the “principle of intergenerational equity.”
#2: The Environmental Bill of Rights does not actually provide any enforceable rights. At best, the law gives us some procedural rights, so decisions have to be made in a certain way.
#3: Statements of Environmental Values are not working. These are supposed to be the binding principles that guide most ministries' decision-making. The problem is, even the Ministry of the Environment has steadfastly argued that it can make decisions that contradict its Statement of Environmental Values.
#4: Problems with the Environmental Registry. This is the website where the Ontario government posts notices about new laws, policies, and permits so that you can comment on them if you want to. The problem is, there is usually not enough time to prepare a thoughtful written submission, background information is missing, and many major proposals (such as mining projects) are not published to the registry at all.
#5: Environmental assessments are not posted to the registry, either. Back in 1994, this did not seem to be a problem because it was assumed that projects undergoing an environmental assessment would have even more public notice and consultation than smaller projects. In the days of "modernized" approvals and "red tape commissions", however, the opposite is true.
#6: The appeals process is flawed. The law is written in such a way that a small technical error with a filing will result in an appeal being tossed out, regardless of the merits of the case or the possible impact on the environment. Only 21% of leave-to-appeal requests are granted and, if an individual or organization makes it that far, they can expect to pay hundreds of thousands of dollars in expenses that cannot be recouped (as was the case in our Lafarge alternative fuels appeal).
#7: The Environmental Commissioner is toothless. Year after year, the ECO prepares a report to the Ontario legislature summarizing important trends in decision-making and analyzing how well the EBR is working. Year after year, the Ontario government ignores the ECO's recommendations without penalty.
#8: Only some Ontario government departments have to comply with the EBR. Drainage, building, and water conservation are just a few examples of the decision-making areas that are not subject to the EBR.
#9: Ministries are not doing a good job responding to requests for reviews. If you think a ministry is not following one of its policies or not enforcing an environmental law, you can submit an application for review or investigation. The problem is that the ministry that may be responsible for the problem is the ministry that decides whether or not to act on your request. Not surprisingly, many applications are rejected and many review processes are delayed.
#10: The environmental justice protections in the law are "essentially useless". Statements of Environmental Values and the Environmental Registry have not prevented the Ontario government from making very poor environmental decisions at times. The fail-safes - legal recourses such as judicial reviews and lawsuits - are generally ineffective or non-existent. Only one action has ever been brought in the EBR's seventeen-year history, just another sign that the law creates more burdens than rights.
For each problem, CELA proposes a number of possible reforms. We encourage you to read CELA's submission for the full analysis. Lake Ontario Waterkeeper sent a letter of support to the Environmental Commissioner of Ontario today expressing our informed support for CELA's recommendations and encouraging the government to take a first step towards resolving the problem: accept CELA's application for review.