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Environmental Bill of Rights

. Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks)

In Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2021) the Divisional Court sets out basics of the Environmental Bill of Rights:
The Statutory Framework

[4] The purposes of the EBR are set out in s. 2 of the Act. Subsection (1) states that those purposes are,

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

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

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

[5] Part II of the EBR deals with public participation in governmental decisions affecting the environment. Subsection 3(1) sets out the purpose of Part II, which is to establish “minimum levels of public participation that must be met before the Government of Ontario makes decisions on certain kinds of environmentally significant proposals for policies, Acts, regulations and instruments.” This Part applies to ministries prescribed by regulation (s. 4). Each of the respondents to this application for judicial review is a minister of a prescribed ministry.

[6] Section 5 deals with the establishment of the Environmental Registry (“ERO”), whose purpose, as set out in s. 6(1), is to provide a means to give information about the environment to the public.

[7] Section 15 is of central importance in these applications. It sets out the criteria that a minister must consider in determining whether a proposed policy or Act should be posted on the ERO. First, the minister must determine whether a proposal under consideration for a policy or Act “could, if implemented, have a significant effect on the environment”. Second, the minister must decide whether the public should have an opportunity to comment on the proposal before implementation. If so, the minister “shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.” Pursuant to s. 1(6)(b) of the EBR, a proposal for an Act is implemented on the date of third reading in the Legislature.

[8] Subsection 15(2) provides an exception to posting if a policy or Act is “predominantly financial or administrative in nature.” There are other exemptions set out in the EBR, but Ontario does not rely on any of them in these applications, except for s. 33.1, enacted as part of the CERA, which will be discussed later in these reasons.

[9] Section 14 sets out the factors that a minister must consider when deciding whether a s. 15(1) consultation is required:
1. The extent and nature of the measures that might be required to mitigate or prevent any harm to the environment that could result from a decision whether or not to implement the proposal.

2. The geographic extent, whether local, regional or provincial, of any harm to the environment that could result from a decision whether or not to implement the proposal.

3. The nature of the private and public interests, including governmental interests, involved in the decision whether or not to implement the proposal.

4. Any other matter that the minister considers relevant.
[10] If a minister decides that a proposal should be posted, the public is entitled to receive notice of the proposal, as set out in s. 27, and to submit written comments on it. The minister must take every reasonable step to ensure that relevant comments are considered by the ministry when decisions are made on the proposal in the ministry (s. 35). The minister must give notice of the implementation of a proposal, including a brief explanation about the effect of public participation, if any, on the decision (s. 36).

[11] Separate and apart from the minister’s decision under s. 15 and the related requirements, s. 11 of the EBR requires each minister to “take every reasonable step to ensure that the ministry statement of environmental values [“SEV”] is considered whenever decisions that might significantly affect the environment are made in the ministry.”
. Eastern Georgian Bay Protective Society Inc. v. Minister of the Environment, Conservation and Parks

In Eastern Georgian Bay Protective Society Inc. v. Minister of the Environment, Conservation and Parks (Div Ct, 2021) the Divisional Court set out basics on the Environmental Bill of Rights, 1993:
Legislative Framework – The Environmental Bill of Rights

[4] The Legislature enacted the EBR in 1993. The EBR is largely procedural legislation: it provides for public participation in government action that has a significant impact on the environment. The EBR does not preclude changes to Ontario’s environmental policies. Rather, it requires a process of meaningful public consultation respecting government actions that may be significant for the environment. Although largely procedural in nature, the EBR is nevertheless significant legislation which compels governments of all colours, no matter what their stated policies, to respect the principle of public consultation in relation to governmental actions affecting the environment. And it is clear that the legislation requires far more than lip service to be paid to that process: Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629 (Div. Ct.) at para. 1 and 82.

[5] The Preamble of the EBR stipulates that “The people of Ontario have a right to a healthful environment” and that “While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner.”

[6] Section 2(1) sets out the purposes of the EBR which include:
(c) to protect the right to a healthful environment by the means provided in this Act.
[7] Section 22 of the EBR requires the Minister give 30-days’ public notice of any environmental compliance approval application under the Ministry’s consideration. Section 22 states:
The minister shall do everything in his or her power to give notice to the public of a Class I, II or III proposal for an instrument under consideration in his or her ministry at least thirty days before a decision is made whether or not to implement the proposal.
[8] Section 27 of the EBR requires the notice under s. 22 to be posted on the online Environmental Registry created by the EBR. Section 27(3) also requires the notice on the Registry to contain a description of various rights of public participation in the decision-making concerning the proposal.

[9] Section 35 of the EBR requires the Minister to take every reasonable step to ensure that all comments relevant to the proposal that are received as part of the public participation process are considered when decisions about the proposal are made in the Ministry.

[10] Macey Bay’s ECA application was a Class II proposal, as it was granted under s. 20.3 of the Environmental Protection Act. Where a proposal is classified as “Class II” under Ontario Regulation 681/94, the EBR requires the Minister to consider providing additional public consultation opportunities for the proposal. For instance, s. 23 of the EBR states that where the Minister is required to give notice under s. 22 of a Class II proposal for an instrument, the Minister shall consider allowing for more than thirty days of public notice in order to permit more informed public consultation on the proposal.

[11] Similarly, s. 24 of the EBR provides that a minister required to give notice under s. 22 of a Class II proposal for an instrument shall also consider enhancing the right of members of the public to participate in decision-making on the proposal by providing for such things as oral representations, public meetings and mediation.

[12] Section 118(2) of the EBR allows any person resident in Ontario to apply to the courts for judicial review of a decision of the Minister on the grounds that the Minister failed in a fundamental way to comply with the public consultation requirements of Part II respecting a proposal for an instrument.

[13] Section 32(1) of the EBR provides a limited exception to the posting requirements under s.22. The relevant portions of s. 32 state:
32 (1) Section 22 does not apply where, in the minister’s opinion, the issuance, amendment or revocation of an instrument would be a step towards implementing an undertaking or other project approved by,

(a) a decision made by a tribunal under an Act after affording an opportunity for public participation.
....

[44] Public participation rights created by s. 22 of the EBR are not unqualified. There are several provisions of the EBR dedicated to exceptions to the s. 22 notice requirement in addition to s. 32(1)(a) – specifically, sections 22(3), and 29 through 33. Furthermore, in all cases except s. 33, the determination of whether an exception applies is at the Minister’s discretion. The exceptions in ss. 29, 30 and 32 state that s. 22 does not apply where, “in the minister’s opinion”, the particular circumstances surrounding the proposed instrument fit the exception. The use of the phrase “in the minister’s opinion” introduces a discretionary element into the application of the provision. This also indicates that the Minister’s decision should be afforded deference, since it is enough to satisfy the provision if in the Minister’s opinion the facts surrounding the instrument fit the elements of the exception provision.



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