Intervenor: Volume 24 No.1 January - March 1999

Ontario Policy 1999: The Right to Participate

Every person who is interested in, or potentially affected by, an environmental decision should have a meaningful opportunity to become involved in the decision-making process. Public participation in environmental decision-making helps protect the environment and community health by:

  • improving the qualityof decision-making since all relevant facts, opinions and perspectives are presented;
  • enhancing the credibilityof decision-making since all persons have fair opportunity to make their views known; and
  • increasing the accountability of decision-making since decisions will be reached in an open manner.

In order to fully and fairly participate in environmental decision-making, members of the public must have:

  • Adequate public notice of the proposed decision.
  • Adequate time to review and comment on the proposed decision.
  • Timely access to all relevant documentation regarding the proposed decision.
  • Access to technical or legal expertise where necessary.
  • Opportunities to appeal environmentally unsound decisions to an independent adjudicator.

Ontario’s tools for
public participation

Ontario had set up several expert advisory committees which served as important vehicles for soliciting public input into environmental decisions and standard-setting. For example, the Advisory Committee on Environmental Standards (ACES) was a forum to bring various stakeholders (government, public, industry) together to develop new or more stringent environmental standards. Similarly, the Environmental Assessment Advisory Committee (EAAC) solicited public input and provided advice to the Minister of Environment on specific projects and on improving Ontario’s environmental assessment process. The MISA (Municipal-Industrial Strategy for Abatement) Advisory Committee received public and stakeholder input and provided advice to the Minister on water pollution standards for specific industrial sectors.

These advisory committees were extremely efficient: they were inexpensive to operate, thorough in their reports, and balanced in their recommendations. Unfortunately, the government abolished the advisory committees in 1995 without warning or public consultation.

The Intervenor Funding Project Act enabled the public to effectively participate in environmental hearings. Under this Act, eligible citizens’ groups received funding from project proponents (not the Ontario government) to retain independent experts to scrutinize the project’s environmental impacts. In 1996, however, the government allowed the Intervenor Funding Project Act to expire.

Public hearings are possible under Ontario’s Environmental Assessment Act, despite recent changes to this Act. Since 1995, however, the Minister has generally denied hearing requests filed by members of the public, even for contentious projects such as landfills. Moreover, Regulation 206/97, passed by the government in 1997, essentially eliminates the mandatory hearing requirement under Part V of the Environmental Protection Act for landfills subject to the Environmental Assessment Act. Rather than avoid duplication, these provisions are being used to avoid public hearings altogether.

The Environmental Bill of Rights (EBR) imposes a legal duty on government ministries to provide public notice and comment opportunities whenever environmentally significant decisions are being proposed. The EBR also set up the office of the Environmental Commissioner of Ontario (ECO), which remains a mechanism for receiving public complaints. The ECO is essentially the public’s watchdog on the environment and makes regular reports to the Legislature. In her 1996 Annual Report, the Commissioner endorsed public participation:

"Little is gained when decisions are made too quickly, omnibus-style and without adequate public consultation. Good decisions are more likely to happen, and be more acceptable to all Ontarians, when the process is effective, timely, open and fair." (page 17)

Recommendations

  • Re-enact the Intervenor Funding Project Act.
  • Retain the Environmental Bill of Rights in its present form and ensure there is full governmental compliance with the public participation requirements under the Environmental Bill of Rights.
  • Maintain the Office of the Environmental Commissioner at current funding and staffing levels.
  • Ensure that public hearings are held under the Environmental Assessment Actexcept where the hearing request is clearly frivolous or vexatious or made solely for the purposes of delay.
  • Amend Ontario Regulation 206/97 to ensure that public hearings are held under Part V of the Environmental Protection Act in relation to waste disposal sites and waste management facilities which have been approved under the Environmental Assessment Actwithout a public hearing.
  • Re-establish expert advisory committees in order to solicit public input on environmental decisions, particularly in relation to standard-setting.

_______________________________

Rick Lindgren is a lawyer at CELA