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Province Proposes to Abolish Ontario’s Environmental Watchdog

Ontario’s Finance Minister recently introduced Bill 57, which is omnibus legislation intended to implement the provincial government’s 2018 Fall Economic Statement.

However, Bill 57 goes well beyond routine budgetary matters, as Schedule 15 of Bill 57 proposes various amendments to the province’s long-standing Environmental Bill of Rights (EBR). Alarmingly, Schedule 15 includes provisions which, if enacted, will eliminate the Environmental Commissioner of Ontario (ECO).

For the past 25 years, the ECO has existed under the EBR as an independent officer who is appointed by the Ontario Legislature, not the party in power. In addition, the EBR assigns a number of important powers, duties and responsibilities to the specialized ECO, including:

- carefully reviewing governmental compliance with legal requirements imposed by the EBR (e.g. ensuring adequate public notice/comment opportunities, assessing the application of  ministries’ Statements of Environmental Values during decision-making processes, etc.);

- filing annual and special reports with the Legislature on a wide range of environmental protection issues prescribed by the EBR, including energy conservation and climate change; and

- providing helpful advice and assistance to Ontarians who want to use the EBR’s legal tools to safeguard the environment (e.g. filing applications for review or investigation, commencing third-party appeals of environmental approvals, etc.).

In short, for over two decades, the non-partisan ECO has been instrumental in holding successive Ontario governments accountable for their acts and omissions under the EBR and other environmental laws. In addition, the ECO has intervened in Ontario court cases involving the interpretation of key EBR provisions.

Given this important track record, CELA concludes that Bill 57’s proposed abolition of the ECO will inevitably result in a profound loss of independence, transparency and accountability under the EBR.

For example, Schedule 15 proposes that the Auditor General of Ontario (AGO) will perform certain duties and functions under Part III of the EBR. Nevertheless, these duties and functions may be delegated by the AGO to a new appointee (e.g. “Commissioner of the Environment”) who is identified by Schedule 15 as a mere “employee” of the AGO.

At first glance, this proposed institutional arrangement appears to reflect a simple transfer of existing ECO authority to the AGO. However, a close review of Schedule 15 reveals that the ECO’s current powers and functions are being diminished, narrowed and, in some aspects, eliminated.

For example, while Part III of the EBR presently empowers the ECO to file special reports as may be appropriate or necessary, Schedule 15 wholly eliminates this important safety valve.  Instead, only a single annual report is required by Bill 57 on limited topics, and Schedule 15 permits this streamlined reporting to be subsumed within the AGO’s fiscal reports to the Ontario Legislature.

Similarly, while the current EBR provides a lengthy list of specific matters to be addressed in the ECO’s annual reports, there are no mandatory legislated requirements for the annual reports to be filed under Bill 57. Instead, Schedule 15 vaguely indicates that the annual reports should address the “operation of the Act,” including any matters “considered appropriate” by the AGO. It further appears that the AGO (or the as-yet unnamed “Commissioner”) will no longer be filing stand-alone reports on specified topics, which currently occurs under the EBR. 

Aside from the proposed abolition of the ECO and the scoping of its reporting functions, there are other regressive EBR changes proposed under Bill 57. For example, EBR applications for review or application will no longer land on the desk of the ECO for review and tracking purposes, as is the case right now. Instead, under Bill 57, the AGO will be bypassed since these EBR applications will be initially filed with the ministries, which will not be subject to the same degree of oversight presently exercised by the ECO under the EBR. 

Moreover, Schedule 15 attempts to take away the ECO’s existing public education/outreach functions, and to instead assign them to the Environment Minister. In CELA’s view, this is an inappropriate and misguided reform. Since the Environment Minister and other ministers are typically on the receiving end of EBR tools (e.g. applications, appeals, civil actions, etc.), it is unrealistic to expect these elected officials to provide independent, credible and comprehensive advice on how to effectively use the EBR to hold the provincial government’s feet to the fire.

Ironically, Bill 57 is entitled the Restoring Trust, Transparency and Accountability Act, 2018. For the above-noted reasons, CELA concludes that eliminating the ECO and downgrading the EBR will erode – not restore – public trust, transparency and accountability in the environmental context. 

In addition, the ECO’s acknowledged expertise in sifting through and addressing complex matters of environmental law and policy is not replicated by the office of the AGO. In addition, the focused value-for-money audits typically performed by the AGO are not comparable to the forward-looking environmental advocacy role played by the ECO. 

In practical terms, the government’s unjustifiable proposal to remove the ECO’s role under the EBR deprives the environment of a strong and effective defender, and impairs Ontarians’ ability to obtain independent advice about their environmental rights. In fact and in law, the ECO is the guardian of the EBR. Therefore, the ECO should continue to provide detailed, evidence-based recommendations to the Ontario Legislature in order to protect the public interest, conserve natural heritage features and functions, and safeguard public health and safety.

Accordingly, CELA, commentators and numerous other groups are calling upon the Ontario government to withdraw the ill-conceived EBR amendments set out in Schedule 15 of Bill 57. Ontarians who share this view are urged to immediately sign an online petition to Premier Ford.