An Environmental Bill of Rights--Ontario Style1

D. Paul Emond, Osgoode Hall Law School, York University2

ABSTRACT: The Ontario Environmental Bill of Rights (S.O. 1993, c. 28) trades largely unenforceable substantive rights for expanded process rights. Multi-stakeholder meetings, sponsored by the New Democratic Party (NDP) government, produced a draft statute, which was passed by the legislature almost unchanged. The new statute enhances citizen participation and improves government accountability for decisions. Information to support public participation is provided under the Act through an Environmental Registry and other means of public notice.

RÉSUMÉ: La Charte ontarienne des droits environnementaux de l'Ontario (Statuts de l'Ontario de 1993, ch. 28) troque des droits sur les matières, qui sont en grande partie inapplicable, contre des droits étendus sur les processus. Des rencontres entre les multiples détenteurs d'enjeux, parrainées par le gouvernement néo-démocrate de l'Ontario, ont abouti à la rédaction d'une ébauche de statut, que la Législature ontarienne a adopté presque sans modifications. Ce nouveau statut accorde plus d'importance à la participation des citoyens et améliore l'imputabilité du gouvernement pour ses décisions. Cette loi pourvoit à la dispensation d'informations au moyen d'un registre environnemental et d'autres façons d'informer le grand public, pour soutenir la participation de ce dernier.

Ontario's new Environmental Bill of Rights3 is more than simply "the next Canadian provincial version of a well established idea." The Ontario bill makes a rather dramatic departure from what has become something of a formula for Canadian rights legislation. But before delving into a description of the Act, a brief foray into the history of this type of legislation is in order.

The impetus for rights legislation in Canada came from the 1970 Michigan Environmental Protection Act (MEPA)4, the brainchild of then University of Michigan law professor Joseph Sax. He had presented the argument for an environmental rights act in his book, Defending the Environment5 and then sold the idea to the Michigan legislature. The idea was quickly endorsed by environmentalists in Canada, particularly by the Canadian Environmental Law Association. Two Association spokespersons, John Swaigen and David Estrin, argued the case for "rights" legislation in Environment on Trial.6 Indeed, they advocated an even broader version of the Michigan model--one that would address a plethora of environmental ills ranging from the need for improved environmental assessment processes to access to information. The central theme, however, remained the same--an act that created new substantive as well as procedural rights.

What followed next in Canada was a series of private members bills as one provincial opposition party after another attempted to goad successive governments into passing an environmental bill of rights (EBR).7 Inspite of half a dozen private members bills, the Ontario government could not be embarrassed into passing rights legislation. Two events finally prompted Ontario to give serious consideration to the idea. The first was the election of the New Democratic Party to government, a party that had lead the demand for such legislation through the late 70's and 80's and had adopted the EBR as party policy. Secondly, the North West Territories Legislative Assembly lead the way by enacting its version of an EBR in 19908 and, to the relief of industry, the world did not come to an end. Indeed, the act has spawned no new civil actions!

Committed to the general concept, although open to the specific approach and content of an EBR, the Ontario government adopted a rather novel approach to the development of the legislation--a round table of stakeholders from all relevant groups who were charged the task of reaching consensus on the Bill. Much to the surprise of those who had characterized the issue as win/lose, the committee reached consensus and reported to government with both the rationale for the bill and a draft statute.9 After the usual legislative committee hearings, the Bill passed10 last year almost unchanged from that proposed by the consensus committee. Although much of the impetus for an EBR came from those who saw the Act as empowering a public that had lost its right to sue polluters in return for more or less ineffective bureaucratic regulation, the Ontario Bill has done little to restore or enhance that lost right.11 In fact, I would list increased access to the courts as the least significant achievement of the Bill. Far more important is the extent to which it promises to enhance citizen participation in the regulatory process and improve government accountability for its decisions. Thus the Ontario Bill relegates a new civil action to the end of the statute (s.84(1)), pretty much confines court action to those cases in which one has contravened or will imminently contravene an Act, regulation or instrument, offers a defendant the new defence of due diligence (s.85) (a defence that was available only to prosecutions, not civil actions) and gives the court the power to dismiss or stay an action if to do so "would be in the public interest" (s.90). Given the drafter's scepticism of ill-defined rights, the Bill does not recognize the concept of the public trust. The Bill does, however, expand an individual's right to sue in public nuisance (s.103(1)). The Bill's major achievements are in the area of public participation and government accountability. These are significant.

First, it is important to emphasize that the Act does not confer inherent rights to a better environment on the residents of Ontario, but rather only procedural rights. Section 2 states that the purposes of this Act are:

(a) to protect, conserve and, where reasonable, restore the integrity of the environment by the means provided in the Act;

(b) to provide sustainability of the environment by the means provided in this Act;

(c) to protect the right to a healthful environment by the means provided in this Act;

(Emphasis added.)

The promise that lies behind the Act is that environmental protection and sustainability are best achieved by the means provided in the Act, rather than through litigation and judicial interpretation of rather ill-defined rights that may be enumerated in the Act.

Secondly, the Act both formalizes the recent ad hoc developments that have occurred in the realm of public participation in environmental decision making12 and, to some extent, extends those developments in new and innovative ways. Effective public participation requires knowledge, opportunities for participation and an obligation on the decision maker to take public input seriously. Knowledge is provided under the Act through the Environmental Registry (ss. 5,6)--a computer data base of all applications for environmental approvals and of all facets of provincial environmental policy and regulatory activity that enables persons to acquire both comprehensive and highly specific information on activities that may affect or interest them. The public notice and provisions under the Act are extensive. For example, the Minister is required to give notice to the public that she or he is developing a Ministry "statement of environmental values" (s.8), a statement that explains how the purposes of the Act are to be applied and incorporated into the Ministry's decision making process (s.7). The Act imposes additional obligations on the Ministry of Environment and Energy to provide public notice when it makes proposals for policies, acts, regulations and instruments that could, if implemented, have a significant effect on the environment. The notice and public review provisions vary according to the class proposed (Class I, II, or III), with class describing the level of risk and the extent of potential harm involved. At one end of the notice spectrum the public is entitled to thirty days notice in the Registry (ss.22,8), at the other end of the spectrum, they are entitled to such notice as the Minister considers appropriate, including at least one of the following means:

(s.28)

Public participatory rights also include the right to seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument; the right to comment and provide input on draft statements of environmental values; the right to comment and provide input on proposed legislation and regulatory action; and finally, the right to seek cause to appeal the issuance of an instrument to a Board identified by a ministry. Also significant is the public's right to request a review. Under sub s.61(1) and (2)

		Any two persons resident in Ontario who believe 
		that a new or existing policy, Act, regulation or 
		instrument should be passed, amended, repealed or
		revoked in order to protect the environment may 
		apply to the Environmental Commissioner for
		a review ... by the appropriate minister.
	  
After providing notice to those whom the minister believes may be directly affected by the review of an existing instrument (s.66), and the general public for Acts, regulations and policies, the minister has sixty days to determine whether the public interest warrants a review (s.67(1)). If the minister finds that it does, a review shall be conducted within a reasonable time (s.69(1)) and the results reported to those who applied for the review, the Environmental Commission and those who might be directly affected by the decision (s.70). Finally, the public (again any two persons resident in Ontario) may apply to have the Environmental Commissioner request that the responsible ministerial Commissioner investigate an alleged contravention of an Act, regulation or instrument (s.74). Again, the Commissioner is required to refer the request to the responsible minster (s.75) and the minister "shall investigate all matters to the extent that the minister considers necessary" (emphasis added) (s.77). Thus, while the public has the right to get things started (a not unimportant right, when combined with the ability to embarrass a foot dragging minister), the review and investigative rights are very much dependent on the strength of an independent Environmental Commissioner and her or his commitment to ensuring that individual ministries buy into the purposes of the Act (s.3).

Government accountability is promoted by the Act in a number of ways. First, public participatory rights will automatically lead to more public accountability. Even more important, however, is the creation of the office of Environmental Commissioner. The Commissioner is appointed by Cabinet on the address of the Assembly (s.49(2)) and reports annually to the Speaker of the Assembly (s.58). The Commissioner's functions are to, inter alia,

(s.57)

In addition to annual reports, the Commissioner may make special reports to the Speaker "at any time on any matter related to the Act" (s.58(4)). Finally, if the Commissioner considers that a minister has failed to comply with its ministry's statement of environmental value, the Commissioner shall, as soon as reasonably possible, report to the Speaker. Thus, accountability to the Assembly is demanded by the Act, and the Environmental Commissioner is charged with ensuring that ministers and ministries meet that demand. Nevertheless, success will depend very much on the ability of the Commissioner to use her/his reviewing and reporting functions to win ministry compliance.

Whether "trading" largely unenforceable substantive rights13 for expanded process rights is a "good deal"14 remains to be seen. Typical of much Ontario environmental legislation, success will depend not on legal rights15 but on the commitment of politicians, bureaucrats (especially the Environmental Commissioner) and the public to environmental values.


Letters to the Editor / Lettres au rédacteur en chef