Intervenor: vol. 27, no. 3 - 4, July - December 2002

Environmental Assessment - Update

The environmental assessment (EA) project of CELA and the Resource Library for the Environment and the Law involves a review of EA in Ontario as practiced under the revised Environmental Assessment Act (EA Act). The long-term objective of the review is to develop a consensus among stakeholders on how to improve EA in Ontario. Fundraising efforts began in the fall of 1999 and work commenced after the summer of 2000 when sufficient support was secured for Phase 1. (See Related Information below)

The project's first phase included the creation of, and consultation with, a project Advisory Committee (including professionals, consultants and CELA staff), research into various aspects of EA, distribution of a survey questionnaire to stakeholders, discussions with various people and groups involved in EA issues, and preparation of two papers on Ontario EA. The first of these was a 40-page case study ("Scoping Issues and Imposing Time Limits by Ontario's Environment Minister at Environmental Assessment Hearings - A History and Case Study") published in May 2001 in the Journal of Environmental Law and Practice (Carswell, Toronto). It dealt with the use of two new Ministerial powers (to limit the issues which the Environmental Review Tribunal can consider at a hearing, and restrict the time available to the Tribunal to conduct the hearing and submit its decision) as well as wider but related issues of concern.

This study analyzed and compared the process and outcome of the only two EA matters sent to hearing by the current government since it was first elected in 1995: Adams Mine and Quinte Landfill. Both cases were referred for hearing in 1997, the same year in which the overhaul of the EA Act by Bill 76 came into effect. The paper identified problems with the use of these new powers of the Environment Minister, the manner in which they were implemented, and a number of general concerns including the conflicted role of the Minister, process transparency, and the role of discretion in decision-making. Its conclusions included the following comments:

Critics say that these two ministerial powers do much more than just tinker or repair - they contribute to a major and potentially harmful alteration in the process. Their criticism of the Minister's exercise of these powers raises questions of fairness, Tribunal independence and accountability. They worry that use of these new powers will contribute to the erosion of public confidence and participation in the hearing process. Supporters say that environmental assessment in Ontario had been in difficulty, if not disrepute, for a long time and needed substantial overhaul. These powers were part of the toolkit devised to attempt to make EA work in a more acceptable fashion. (p.186)

It ended with the suggestion that "experience gained from just two hearings appears to indicate that the necessary task of developing constructive recommendations is both important and timely."

Paul Muldoon and I met with Minister Elizabeth Witmer along with her staff and Ministry representatives on May 10, 2001 to discuss the work of the EA Project. After the first paper was published, Paul and I attended a meeting on December 3, 2001 at the MOE's Environmental Assessment and Approvals Branch (including its Director, senior staff, and a MOE staff lawyer) to discuss the paper, the Project, and potential programmatic improvements.

"A Review of Environmental Assessment in Ontario" (Carswell, 110 pages) is the title of the second paper, published in June 2002. It explained the important role of EA in environmental protection, described the components of the EA process when used as a comprehensive decision-making tool, developed a series of snapshots of the Ontario EA process from its inception in 1975 through to the current regime, provided an analysis of where and why improvements may be appropriate and suggestions for further study, and referred to a considerable compendium of related information and documentation.

This reference material is collected in 14 separate appendices (128 pages) which have been reproduced by CELA in a companion volume to the paper. The publisher has granted permission to upload the paper onto CELA's website. Both papers and the appendices will be available on CELA's website in the near future to provide easy access to those interested.

The second paper described a series of legislative, regulatory, budgetary and other administrative changes, together with a radical policy shift on EA which has never been articulated or announced by the government. The result is described in the following excerpt from the paper's abstract:

[The paper] describes a system which now entails much more political intervention in decision-making, and far less environmental planning. EA in Ontario currently resembles a project approval regime and reflects the narrow approach which existed before the Act was passed almost three decades ago, namely that of identifying and mitigating the adverse environmental effects of individual projects. Commitment to protecting and enhancing environmental values has apparently given way to a single-minded campaign to deregulate, reduce the size and role of government, and grow the economy quickly and at all costs. (p.173)

On a positive note, it "concludes that although many of these recent reform measures are flawed, the system can be improved substantially and quickly by an immediate and interim step," and also "identifies numerous areas which are in need of immediate investigation, discussion and change." The interim measure includes support for an immediate program review, acceptance of fundamental EA principles and practices, and reinstatement of an adequate level of personnel and funding required for a comprehensive EA program.

The second paper was released at a Queen's Park press conference on June 12th. Along with Paul Muldoon (CELA's Executive Director) and Theresa McClenaghan (CELA staff lawyer), Dr. Philip H. Byer met with the press, politicians and their staff and discussed the scope and significance of the changes to Ontario EA. Dr. Byer, a professor of civil engineering and the Chair of the Division of Environmental Engineering at the University of Toronto, wrote a preface to the paper for distribution at the press conference. He had been Chair of the Ontario Environmental Assessment Advisory Committee (an independent committee created to advise the Environment Minister on EA issues and policy) from 1986 to 1995, when it was abolished by the current government shortly after it was elected. His preface concludes:

Unfortunately, while the EA process has become more efficient for proponents, it has become less effective in protecting the environment and less fair for those affected by proposed projects. By pointing out the current weaknesses in both the Act and its administration, the report provides valuable advice on how to begin to improve the program and live up to the government's promise of improving environmental assessments in Ontario.

Immediately after its release the paper was distributed to several government departments and agencies (federal, provincial and municipal), business and industry groups, institutions, community and environmental groups, consultants, lawyers, and other individuals interested and involved in EA in this province. The Ontario government has not yet commented publicly on this paper, nor has it contacted CELA to discuss its contents.

The second phase of the EA Project will involve a stakeholder consultation process using the two papers as a springboard for dialogue and debate about the future of provincial EA. Individuals representing stakeholders from most important sectors will be invited, and a roundtable discussion format will be developed. The objective is to develop consensus on supportable, sustainable and affordable recommendations for improvement to Ontario EA. Fund-raising efforts for Phase 2 are currently underway.

The third and final phase of the Project will involve efforts to educate the public and gain support at all levels for implementation of the recommendations flowing out of Phase 2.

As far as we are aware, CELA's EA Project is the only ongoing study of environmental assessment in Ontario which is independent of government. We know of no other review being undertaken by the Ontario government or within the Ministry, or by any other environmental organizations, professional associations, academic institutions, or other groups within this province. We continue to be very interested in receiving reports from community members, practitioners and others on specific EA cases which might illuminate the process and highlight issues which require examination. Anonymity is provided to anyone who wishes to report to us in this respect. Please contact Fé de Leon, Researcher at CELA at (416) 960-2284 ext. 223 or email at deleonf@lao.on.ca, or Alan D. Levy through CELA or directly at telephone (416) 929-8282 or email aldb@interlog.com.

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Alan D. Levy is a CELA board member whose Toronto practice includes environmental law, mediation and arbitration. He was a full-time Vice-Chair of the Ontario Environmental Assessment Board between 1990-1998. He is the project manager for CELA and the Resource Library for the Environment and the Law's project to review the Environmental Assessment Act in Ontario.