Is there a right to a healthful environment in Ontario? Who has that right and what does it entail? Does the public have any say in the government’s ability to make environmentally significant decisions? These questions are the subject of longstanding and ongoing debates in Canadian environmental law. While no Canadian court has recognized constitutional protection for the right to a healthful environment, the closest thing that Ontarians have to a codification of this right is the Environmental Bill of Rights, 1993.
The Environmental Bill of Rights, 1993 (“Environmental Bill of Rights” or “EBR”) is a provincial statute whose primary purpose is to entrench environmental protection as a fundamental value in Ontario, and to increase the role of the public in protecting the environment. The Environmental Bill of Rights recognizes that the public should be given the opportunity to participate in governmental decisions affecting the environment.
Below is a brief overview of some of the fundamental features of the Environmental Bill of Rights. This brief summary outlines some of the ways in which the public can use the Environmental Bill of Rights to participate in, and even challenge, environmental law and policy in Ontario.
Recognizing a Right to a Healthful Environment
The preamble of the Environmental Bill of Rights recognizes a right to a healthful environmental in Ontario. The Preamble of the EBR states as follows:
The people of Ontario recognize the inherent value of the natural environment.
The people of Ontario have a right to a healthful environment.
The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.
While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner. [Emphasis added]
Notwithstanding this acknowledgement of a right to a healthful environment, the Preamble does not in itself create such a substantive right. The Ontario Superior Court of Justice in Clean Train Coalition Inc. v. Metrolinx, 2012 ONSC 6593 found that the EBR does not confer an independent right to a healthful environment. The Court clarified that the rights in the EBR are limited to the specific “means provided in this Act”.
While the preamble does not have independent legal effect, the preamble is a crucial interpretative tool in understanding the scheme and purpose of the statute. The substantive rights that are created by the Act are informed by the preamble’ recognition of a right to a healthful environment. The Act’s clear intention to promote this right arguably strengthens the content of the substantive rights that are created by the EBR.
Robust Public Consultation
A fundamental feature of the Environmental Bill of Rights is the set of robust public consultation rights given to the public for governmental decisions affecting the environment. General Regulation 73/94 subjects various prescribed ministries, including the Ministry of the Environment, Conservation and Parks (“MECP”), to the public consultation requirements in the EBR.
Part II of the EBR creates a series of public notice requirements for ministries that make environmentally significant decisions. Section 5 creates an online “Environmental Registry”, where prescribed ministers are required to post (or at least consider posting) notification of prescribed instruments, policies, regulations, and Acts under their consideration. Posting notice of a proposed instrument, policy, regulation or Act involves allowing the public to review the proposal and provide written comments to be considered by the minister. Depending on the nature of the environmental decision to be made, the requirement for the minister to consult the public varies in stringency.
For instance, section 15 of the EBR states that if a minister considers a that proposal for a policy or Act under his or her consideration will have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal, then the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented. This provision gives ministers a considerable about of discretion in deciding whether to provide notice of the policy or Act. Under this provision, whether the policy or Act will have a significant impact on the environment is at the discretion of the minister. Similarly, even if the minister does determine that the policy or Act will have a significant impact on the environment, the minister retains discretion to decide whether the public should be able to provide comments.
A related but slightly less deferential provision in the EBR is section 16, which requires a minister to do everything in his or her power to provide 30 days’ public notice of a proposed regulation if the minister considers that the regulation will have a significant impact on the environment. While this section gives the minister discretion to decide whether or not the proposed regulation will have a significant impact on the environment, once the minister has made that determination, the minister is required to provide 30 days’ public notice before the implementation of the Regulation. There is no mechanism provided in the EBR to challenge decisions made under sections 15 and 16.
In contrast to the ministerial discretion granted under sections 15 and 16 of the EBR, section 22 imposes a mandatory and unconditional obligation on ministers to provide 30 days’ public notice of a decision to issue an “instrument”. The EBR defines “instrument” as any document of legal effect issued under an Act and includes a permit, licence, approval, authorization, direction or order issued under an Act. Common instruments under section 22 include environmental compliance approvals (“ECA”) and Permits to Take Water (“PTTW”). Every time a proponent applies to the MECP for an ECA, the Minister “shall do everything in his or her power to give notice to the public” at least 30 days before the issuance of the instrument [emphasis added].
Despite the mandatory nature of the notice requirements under s.22, the EBR allows ministers to rely on alternative opportunities for public consultation in certain circumstances. For instance, section 30 provides that sections 15, 16, and 22 do not apply where, the minister’s opinion, a proposal has already been considered in a substantially equivalent process of public consultation. Similarly, s.32(1) states that the notice requirements under section 22 do not apply where, in the minister’s opinion, the issuance of the instrument would be a step towards implementing a project approved by an administrative tribunal after affording an opportunity for public consultation. Considering the primacy placed on public participation in the scheme and purpose of the EBR, these “exceptions” appear merely to allow for substitute forms of consultation for instruments, as opposed to doing away with public consultation in these narrow circumstances altogether.
The EBR protects the public’s right to be consulted on instruments by providing the public with direct access to judicial oversight. Section 118(2) of the EBR states:
Any person resident in Ontario may make an application for judicial review under the Judicial Review Procedure Act on the grounds that a minister or his or her delegate failed in a fundamental way to comply with the requirements of Part II respecting a proposal for an instrument.
Section 118(2) is a powerful tool that allows any person resident in Ontario to judicially review a decision of a Minister for lack of public consultation. Section 118(2) only allows for judicial review in respect of “instruments” and does not apply to regulations, policies or Acts. This provision further speaks to the importance of public consultation in the EBR. Not only does the EBR dedicate an entire Part to the right to public consultation, it safeguards that right by ensuring judicial oversight of environmentally significant decisions.
The Case of Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629, 2019 CarswellOnt 16447
The Divisional Court recently considered the public consultation requirements under Part II in Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629. In that case, Greenpeace Canada initiated an application for judicial review of the Environment Minister’s decision to promulgate a regulation temporarily freezing the cap and trade program pending the repeal of the cap and trade program (“Regulation”). The Minister did not provide 30 days’ notice of the Regulation pursuant to section 16 of the EBR. The Minister argued that it was exempted by section 30(1)(a) from providing notice of the Regulation, claiming that the recent provincial election had constituted a “substantially equivalent” process of public consultation. In response to Greenpeace’s Application, the Minister posted the proposal for the Cap and Trade Cancellation Act, 2018, S.O. 2018, c.13 on the Environmental Registry for a 30-day period of consultation. The Minister subsequently enacted the Cap and Trade Cancellation Act, 2018, which barred any relief against the government arising from the cancelation of cap and trade. After the Cap and Trade Cancellation Act, 2018 was enacted, the impugned Regulation was repealed.
The majority of the Divisional Court dismissed Greenpeace’s application, reasoning that the application was now barred by the immunity provisions in the Cap and Trade Cancellation Act, 2018. In addition, while the majority did not make an express finding on mootness, the majority concluded that because the Regulation had been repealed, there was no practical purpose in the declaration sought by the Applicant. The Honourable Myers J. clarified as follows:
“This is not an issue of mootness or loss of the substratum of the case. Rather, I deny relief because the declaratory relief sought is incapable of having any legal effect”.
Despite the Court’s conclusion concerning the appropriateness of the requested relief, both Mews J. (concurring) and Corbett J. (dissenting) opined that the general election was not a “substantially equivalent” process of public consultation pursuant to section 30(1)(a). Corbett J. reasoned that the Minister’s decision not to post was not supported by the evidence and it was reached without considering the appropriate factors. According to Corbett J., despite the discretion given to ministerial decision, the Minister was still required to follow the process mandated by the EBR.
This case demonstrates the significant hurdles that can be faced by those seeking to enforce their public participation rights under the EBR. However, the dissent in this case provides a useful analysis for determining the scope of the Minister’s obligations under the Act and the circumstances (if any) under which the Minister may refuse to post notice of a proposal on the Environmental Registry.
Where a minister has issued an instrument and has complied with the public notice requirements under section 22, any person resident in Ontario may nevertheless seek leave to appeal to challenge the substantive merits of the instrument. Section 38 of the EBR allows any person resident in Ontario to seek leave to appeal a decision whether or not to implement an instrument if the following two conditions are met: 1) The person seeking leave to appeal has an interest in the decision; and 2) Another person has a right under another Act to appeal from a decision whether or not to implement the proposal. According to section 38(3), the fact that a person has participated in the public consultation process is sufficient evidence that a person has an interest in the decision. Only instruments subject to the posting requirements under section 22 can be appealed under this section.
Once a person has demonstrated standing to seek leave to appeal under section 38, they must then meet the test for leave to appeal under section 41. A person will not be granted leave to appeal an instrument under section 41 unless:
(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and
(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.
This test presents a high threshold for leave to appeal. The wording of section 41(a) grants a high degree of deference to the decision-maker such that leave will only be granted if “no reasonable person” could have made the decision.
Appeals under section 38 are heard by the Environmental Review Tribunal.
In addition to the judicial oversight provided for by s.118(2), the EBR tasks the Office of the Auditor General with ensuring governmental compliance with the EBR. Prior to April 1, 2019 this independent oversight function was performed by the Office of the Environmental Commissioner. On April 1, 2019, Schedule 15 of the Restoring Trust, Transparency and Accountability Act transferred some of the responsibilities of the former Office of the Environmental Commissioner to the Auditor General. Despite the dissolution of the Office of the Environmental Commissioner, ministries are still accountable to the Auditor General for certain decisions under the EBR, including decisions not to review a policy, Act, regulation or instrument on application under s.61. Where a Minister decides whether or not to conduct a review under section 61, he or she is required to provide reasons to the Auditor General for the decision. Similarly, if a minister refuses a request to investigate the contravention of a policy, Act, regulation, or instrument under section 74, the minister must provide notice and reasons of the decision to the Auditor General.
How to Participate
The easiest way to stay informed of environmental decision-making in Ontario is to review the online Environmental Registry. The Registry is an online repository of issued instruments and policies, regulations, instruments and Acts that are under consideration by the government. By typing in any Ontario address at www.accessenvironment.ene.gov.on.ca, it is possible to view what instruments have been issued for that property. Where an instrument, policy, regulation or Act is under consideration by a ministry, the public may be able to review the proposal and submit written comments to the minister for consideration. If a person wishes to challenge a decision of the Minister under the EBR, it is essential for that person to first avail his or herself of the participatory opportunities provided for in the EBR.