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In two cases we blogged about last month (Brimley Progress v. Director, MOE and Environment Hamilton v. Director, MOE), the ERT found that the public should have access to the documents that support Environmental Compliance Approval (ECA) applications, or form part of their the final ECA’s terms and conditions. The place where they should, in theory, have been able to access these documents was through the Environmental Registry.

However, in his most recent Annual Report, the Environmental Commissioner of Ontario, Gord Miller, critiqued the quality of the Registry notices and found that supporting documents are often not included in the postings.

Created by the Environmental Bill of Rights, 1993, the Environmental Registry is intended “to provide a means of giving information about the environment to the public”. Certain Ministries are required to post notices of proposals for environmentally significant policies, acts, regulations and instruments on the Registry, and to provide the public with a minimum of 30 days to comment on such proposals.

The ECO identified a number of problems with the quality of the entries on the Registry last year, such as:

  • Failure to include copies of key documents directly relevant to the proposals and decisions such as links to draft regulations in regulation proposal notices. For example, “although the ECO urged OMAFRA to post a link to the draft regulatory text for its proposal to amend the general regulation under the Bees Act, the ministry did not do so.”
  • Failure to attach copies of draft or finalized instruments (e.g., licences, permits and other authorizations) to instrument proposal and decision notices. “For example, MNR routinely failed to attach copies of licences issued under the Aggregate Resources Act to its decision notices.”
  • According to the ECO, MNR was “particularly egregious … in its failure to include relevant key documents in Environmental Registry notices.”

Without access to supporting documents, the public cannot meaningfully comment on the proposals. The ECO identified that, in particular, failing to post finalized approvals deprives the public of information about the specific activities authorized in an ECA as well as the conditions of approval. Without this information, how can they assess whether there are valid grounds for seeking leave to appeal the Director’s decision to issue the ECA?

In both Brimley Progress and Environment Hamilton, when members of the public requested documents relevant to an ECA, the MOE refused to provide them. The trend emerging from both the ECO and the ERT seems to suggest the MOE, and approval-holders, should be prepared to be more transparent.

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