While the Government of Canada’s review of federal environmental assessment (EA) legislation is well underway, the Ontario government has not announced or commenced a comprehensive public review of its own problematic EA regime.
Ontario’s continuing inaction is both puzzling and unacceptable since the province’s EA Act was enacted in 1975, amended in 1996, and is now in dire need of updating and strengthening. This is particularly true since the EA Act generally applies to some of the most environmentally significant undertakings in Ontario, such as landfills, incinerators, sewers, highways and electrical infrastructure. Therefore, Ontarians need a provincial EA process that is robust, effective and efficient.
Over the past two decades, the need for provincial EA reform has been frequently identified by CELA and other environmental groups. Similarly, the Environmental Commissioner of Ontario hascriticized the lamentable state of the province’s EA regime, and has called for an immediate public review of the EA Act and regulations. Nevertheless, the provincial government has not acted on this sound advice to date.
There are, however, some recent glimmers of hope. In January 2016, for example, the Minister of the Environment and Climate Change advised CELA and other groups that Ministry staff were conducting an internal review of the EA Act. In addition, the Minister invited members of the Ontario Association of Impact Assessors (OAIA) to provide recommendations for improving the provincial EA process.
Unfortunately, the Minister’s professed interest in EA reform has not translated into any legislative or regulatory changes, and has not been accompanied by a firm Ministerial commitment to conduct a rigorous public review aimed at fixing the numerous problems that plague Ontario’s current EA regime. These problems include:
excessive number of projects, plans and programs exempted from EA requirements [including mining];
implementation difficulties in the notification, documentation and “bump-up” provisions of approved Class EAs;
need to modernize the purposes and principles of the EA Act, especially in relation to transitioning to a low carbon economy;
general exclusion of key planning considerations – such as project “need” and alternatives – from the EA process; - inadequate (or non-existent) consideration of cumulative effects;
various barriers to meaningful public and indigenous participation in EA processes; and
- lack of public hearings by the Environmental Review Tribunal under the EA Act.
In light of these and other serious deficiencies in the province’s EA regime, it is incumbent upon Ontario to follow the federal lead by commencing a comprehensive public review of the EA Act and regulations. Otherwise, the EA Act will remain incapable of achieving its public interest purpose: providing for the betterment of Ontarians by protecting, conserving and wisely managing the environment.
By Richard D. Lindgren, Counsel on October 4, 2016, Canadian Environmental Law Association,