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Decline of environmental law, public oversight in Ontario’s North

Article originally published May 10, 2019 online in The Lawyer's Daily

Ontario is witnessing a swift and disturbing de-evolution of its key environmental laws. The province has proposed to further add to the already expansive list of projects exempt from the Environmental Assessment Act (EAA) and amend rather than fully implement the Endangered Species Act (ESA).

The combined effect of these recent announcements jeopardizes the sustainability of Ontario’s resources and leaves species at risk vulnerable. The impact of the suggested legislative reforms will be particularly pronounced in Ontario’s North, where mining developments such as the Ring of Fire, and the growth of the forestry sector appear to have been prioritized by the Ontario government.

In recent years, Ontario’s EAA and ESA have both been plagued by questionable implementation, non-transparent decision making and inadequate monitoring and reporting. In addition, the EAA does not generally apply to most private sector activities, such as mining projects, while forestry operations are exempt from the ESA’s core prohibitions against harming endangered or threatened species and their habitats.

At present, the province is proposing sweeping rollbacks to the EAA and ESA as part of its overall agenda of cutting alleged “red tape” and making Ontario “open for business.”

Significantly, the EAA strives to achieve “the betterment of people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” However, despite being substantially rewritten in 1996, the EAA still does not fully account for climate change impacts, or expressly require the consideration of cumulative environmental effects of multiple projects within the same geographic area. These and other gaps remain to be fixed under the EAA.

Moreover, the province has recently proposed to remove the leasing and disposition of some public lands from the EAA’s scope of application. While the government describes these projects as “transactional exercises” that “have low potential for adverse effect on the environment,” current government guidance classifies the majority of these undertakings as having “some potential for adverse environmental effects.” Therefore, the wholesale exemption of these activities appears contrary to the public interest purpose of the EAA.

Aside from this exemption proposal, the Ontario government has also released a discussion paper that outlines broad directions for reforming the province’s environmental assessment (EA) program. For example, the paper proposes to narrow the types of projects that are currently subject to the streamlined planning provisions of class EAs approved under the EAA. In addition, the paper proposes to constrain public opportunities to request the environment minister to elevate (or “bump-up”) particularly significant projects from a class EA to a more comprehensive and robust individual EA.

More generally, the paper describes the province’s vision for “modernizing” the EAA, including changes to which undertakings will (or will not) trigger the application of the Act. The paper also seeks public input on addressing so-called duplication or redundant processes or approvals at the provincial or municipal level that allegedly overlap with the EAA.

At the same time, the province is consulting on its controversial proposal to amend the ESA. These proposed amendments build on an earlier discussion paper that sought to advance landscape-level planning in place of species-specific assessments, and simplify authorizations, making it easier for proponents to act contrary to the ESA’s purpose of protecting and advancing the recovery of species at risk. Among the province’s proposed amendments is a proposal to impose a regulatory charge allowing proponents to pay into a fund instead of meeting species-based conditions of a permit.

Despite the need for science-based species assessment being a key theme from the almost 15,000 public comments received on the paper, the province is considering removing the requirement that the environment minister consult with experts in the event that an ESA regulation might “jeopardize” the survival of an at-risk species.

Northern Ontario serves as a refuge for many species whose southern counterparts are extirpated. Therefore, any decision to develop in an at-risk species’ northern range should be carefully considered expressly because it could be a tipping point for the entire population.

Recent government announcements confirm that implementation of the ESA’s fundamental purpose — namely the protection and recovery of species at risk — has not been prioritized, even at a time when the number of species listed as at-risk grows rather than declines.

While mining and forestry have made significant economic contributions in Ontario, we have had the misfortune of seeing the effects of legacy pollution and contaminated sites, resulting from an era in which there was a lack of environmental regulation, inadequate compliance monitoring and insufficient financial guarantees for site decommissioning or closure.

The mercury contamination at Grassy Narrows, the black-stained rocks in Sudbury from smelter emissions, the thousands of orphaned mines in Ontario — whose cleanup has been estimated in the billions — loom as reminders of the human health and environmental consequences which can accompany so-called red tape reductions.

By selectively dismantling current laws and regulations that enable us to assess, anticipate and prevent adverse human health and environment effects of development, Ontario is on a trajectory to expedite projects that may degrade the natural environment or adversely affect northern communities.

Instead of diluting or eliminating current EAA or ESA requirements, Ontario must ensure that these laws are strengthened to safeguard the public interest and provide mandatory opportunities for meaningful public participation in the standard-setting and permit-issuing processes under these laws.

In addition, Ontario should undertake (or co-operate in) strategic or regional EAs before permits are issued to region-opening new developments. Most importantly, Ontario should advance a legislative and regulatory agenda which prioritizes the public interest, protects the environment and enhances governmental accountability in environmental decision making.

Kerrie Blaise is Northern Legal Counsel at the Canadian Environmental Law Association.

Photo credit / Rainer Lesniewski ISTOCKPHOTO.COM