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Guest Blog: So What If We Lose the Environmental Commissioner?

Background: Ontario is about to lose its independent Environmental Commissioner, as part of cuts announced by the Ford government on November 15, 2018. The details were laid out in Bill 57, an omnibus bill. The government cut three independent watchdogs all in the same announcement; Ontario’s Child Advocate, the French-Language Services Commissioner and the Environmental Commissioner, with some aspects of their work to be passed off to other agencies. The government’s stated rationale for Bill 57 was “to restore trust, transparency and accountability in government.”

Ontarians need a clear tally of what we will lose when the Environmental Commissioner shuts its doors. For almost 25 years, this small agency has shone a bright light on the province’s environmental challenges and opportunities. It has served the Legislature and the public with careful research, clear explanations and early warnings on issues ranging from air quality through pollinators to wetlands. This service has cost Ontarians about thirty cents per person, per year.

When the doors close, we lose

- the protection of an independent, expert voice speaking up for nature and the environment at Queen’s Park:

The Environmental Commissioner (ECO) reports directly to the Legislature, through the Speaker. The ECO is selected by an all-party committee of the Legislature. The ECO can only be removed from office for cause by Cabinet with the Legislature’s approval.

For the past 25 years, the ECO has issued reports to the Legislative Assembly and hosted media conferences at Queen’s Park, typically several times each year. The ECO has also spoken before Legislative Committees of MPPs on numerous occasions. The ECO also gives over 100 talks and numerous media interviews per year, explaining report findings to all kinds of audiences, from agriculture, banking and the chemical industry, to insurance executives, seniors groups and waste management companies.

Under Bill 57, the ECO will be eliminated; a new Commissioner of the Environment position will be created within the Auditor General’s Office, but that Commissioner will be an employee of the Auditor General, with no legislated duties. The Auditor General’s mandate is to watch over the administration of the province’s finances and to carry out “value-for-money” audits; this is a markedly different evaluation lens from that of the Environmental Commissioner.

- annual updates on environmental protection, climate change and energy efficiency

The ECO reports to the Legislature and the public in three separate annual reports: environmental protection, energy conservation, and greenhouse gas emissions. As well, the ECO has often used its discretion to issue special reports, which alert the Legislature and the public to urgent or critical environmental issues (such as species at risk). The annual environmental protection report must contain information about all aspects of the EBR and the ECO’s duties, including:

  • ECO’s work, including how ministries cooperate with the ECO
  • Summary of information gathered under duties, including how ministries comply with their Statements of Environmental Values
  • Any information the ECO considers appropriate

Under Bill 57, the Auditor General will be required to submit only one narrowly scoped report annually (which may be folded into the regular annual report of the Auditor General) The Auditor General’s report will only need to include information about: progress on energy conservation, progress on reducing greenhouse gas emissions and any information the Auditor General considers appropriate. There will no longer be Special Reports about urgent or critical environmental issues.

- a guardian over our right to be consulted through the Environmental Registry

The ECO monitors government compliance with the Environmental Bill of Rights, 1993 (EBR).

Each year, the public submits tens of thousands of comments about environmental concerns, using the online Environmental Registry. Each year, the ECO reports on how the ministries consult with the public, using the Environmental Registry and other consultation tools. The ECO reports on cases when ministries fail outright to consult the public; when ministries fail to give the public enough information or enough time to provide meaningful comment; when ministries fail to consider public comments, and other problems with consultation, as they arise.

Under Bill 57, there will no longer be public reporting on how ministries implement and comply with the Environmental Bill of Rights.

- an independent review of how ministries handle our requests for review and investigation under the Environmental Bill of Rights

Each year, Ontarians submit dozens of requests under the EBR (called “applications”), typically asking that specific environmental laws or policies be improved, or asking ministries to properly enforce existing laws and regulations. Currently, the ECO tracks and acts as a clearinghouse for such requests. Each year, the ECO reports to the public how ministries are handling these requests, including whether ministries have responded adequately to the key concerns of applicants; whether ministries have followed up and inspected site-specific problems, and which ministries have failed to respond within legislated deadlines.

Under Bill 57, such public requests for review or investigation (“applications”) go directly to the relevant ministry or ministries and there will no longer be a requirement for public reporting on the outcomes.

- independent information and advice about our environmental rights

Currently, the ECO is responsible for public education about the Environmental Bill of Rights, including its toolkit of citizen rights. Citizens use the EBR to nudge ministries into action. The ECO features plain-language information about the EBR on its website, and also gives dozens of EBR-focused talks, workshops and webinars to interested groups all over the province each year. The ECO encourages the public to understand and use the EBR tools, by showcasing success stories and explaining the underlying context.

Under Bill 57, responsibility for public education about the EBR will fall to the Minister of Environment, creating a clear conflict of interest, since that ministry has been the subject of the majority of citizen requests for action under the EBR.

For more information:

All past reports and activities of the Environmental Commissioner are available online at www.eco.on.ca.

Two legal analyses of Bill 57 (Schedule 15) are available online: Richard D. Lindgren has prepared a brief for the Canadian Environmental Law Association: http://www.cela.ca/sites/cela.ca/files/CELA-Legal-Analysis-Bill-57.pdf

Anastasia Lintner has prepared a brief for Lintner Law: http://wildlandsleague.org/media/Briefing-Note-re-Bill-57-and-ECO-20181117.pdf

Ellen Schwartzel’s career included advising three Environmental Commissioners, and she was Deputy Environmental Commissioner from 2013 until retiring in July 2018.