By Kanisha Acharya-Patel, Staff Lawyer
In December 2024, the Office of the Auditor General of Ontario (Auditor General) – an independent body responsible for overseeing the Ontario government’s spending of public funds and compliance with laws and policies – released its Performance Audit on the Operation of the Environmental Bill of Rights, 1993 (EBR). A performance audit is an independent, objective and systematic assessment of how well the government is following through on what they said they would do. The Auditor General is tasked with reporting annually on how well the government is meeting its obligations under the EBR.
What is the EBR?
The EBR is a provincial law aimed at conserving the environment, protecting our right to a healthy environment, and making sure our government’s decisions are consistent with these goals. One of the primary ways the EBR tries to meet these purposes is by ensuring that members of the public can participate in environmental decision-making, because public participation leads to better outcomes for the environment. The EBR is supposed to support transparency and accountability for the government’s decisions.
A side note – monitoring Ontario’s compliance with the EBR used to be the responsibility of the Environmental Commissioner of Ontario: the province’s independent environmental ‘watchdog’. However, in 2018, the provincial government got rid of the environmental commissioner and gave that responsibility to the Auditor General. This is very on brand with the Ontario government’s approach to avoiding accountability when it comes to environmental decision-making.
What does the government have to do?
When the government is contemplating a decision that may have negative impacts on the environment, they are obligated to notify the public – for example, by posting notices on the Environmental Registry of Ontario (ERO) – so that people can voice their concerns before a decision is made. Depending on the nature of the issue, the branch of the Ontario government who is responsible for posting the notice will vary. For example, when a company applies for a permit to open a mine, the Ministry of Mines must post it on the ERO for at least 30 days, during which time anyone can submit comments. The level of public participation required varies depending on the proposal and its expected impacts on the environment, but the goal is the same: to make sure the public has the time and information required to understand the potential impacts and make informed comments.
Each notice must include a description of the proposal, including potential impacts on the environment and Indigenous rights, how the public can participate, and how the Ministry will consider its Statement of Environmental Values (SEV): document that explains how the purposes of the EBR are applied and considered when decisions are being made that might negatively impact the environment. The Minister has to meaningfully consider the comments submitted by the public and, in its decision regarding a proposal, must explain exactly how those comments were considered and addressed.
What did the Auditor General find?
The Auditor General found that the provincial government did not always meet their EBR obligations, which undermines the public’s ability to exercise their participatory rights and risks eroding the public’s confidence that their EBR rights are being respected.
Several decisions were made in a way that goes against the EBR’s purposes – for example, many proposal notices didn’t include enough information for the public to understand the environmental impacts. When decisions were posted, they often did not explain how the SEV or the comments from the public were considered. The Ministry would simply state that “comments received were considered”, which is not enough to meet the requirements of the EBR. This approach suggests that the Ministry had already made their decision when they posted the proposal, rendering the public’s feedback meaningless.
The systemic gap in information disclosure and procedural fairness noted by the Auditor General, which is a prerequisite to meaningful public participation, unfortunately, did not come as a surprise to LAND. In our recent comments on behalf of the Friends of the Attawapiskat River, we found a similar situation where five ERO postings for mineral exploration permits, all by the same company, in an environmentally and culturally significant area on Treaty 9 territory did not include enough information for the public to understand the scale of the environmental impacts and be able to make informed comments. These permits would allow the company to clear land, drill holes and extract water from nearby lakes, and even though the Auditor general has stated that mining is an inherently environmentally significant activity, the proposals framed the potential impacts as minor and temporary.
The Ministry strategically posted each proposal separately: when each permit is looked at in isolation, it’s easy to make it seem like the environmental impacts won’t be significant. But when all of the permits are considered together, the land that will be disturbed will amount to more than 5000 football fields. This will all occur on the homelands of Indigenous communities, who rely on the region for food, water, medicine and sacred spaces for traditional practices, ceremonies and burials. This region is also part of the second largest peatland ecosystem in the world – a type of wetland which stores huge amounts of carbon and provides habitat for countless species, including the threatened boreal caribou. We’ve asked the Ministry of Mines, when issuing their decisions, to comply with the EBR and explain how they considered our comments and their SEV.
While not explicitly discussed by the Auditor General, we can’t ignore the significant procedural limitations of the ERO that effectively dissuades the public from participating in environmentally impactful decisions: it is unreasonable to expect everyday people to be constantly checking the ERO for new proposals, especially when the proposals are often in technical language. There is a tool on the ERO where you can sign up for notifications of new postings related to specific keywords, but this still relies on the public having knowledge of what keywords to use. Checking the ERO also presents barriers for people who, for example, don’t have access to the internet or speak a different language.
Why should you care?
Every day, the government contemplates decisions that could have very real and harmful effects on our environment, including air pollution, water contamination and destruction of wildlife habitat. These decisions can also have real impacts on the rights of Indigenous peoples, including their ability to exercise Treaty rights to hunt, fish and trap and rights to conserve their lands and waters.
Government decisions can have significant impacts on our everyday lives as well – take Bill 212, the Reducing Gridlock, Saving You Time Act, for example. This law, introduced in October 2024, will, among other things, allow the province to remove highly used bike lanes in the City of Toronto. During this time, over 17,000 comments were submitted in response to the ERO posting. The public pointed to studies that show that the removal of bike lanes does not reduce congestion, and highlighted that removing bike lanes would impact the safety of all road users, discourage the use of this zero-emissions form of transportation and be a misuse of taxpayer dollars. The public comment period closed on November 20, 2024, and the bill was passed just five days later, on November 25. It is not possible to review, consider, and address over 17,000 public comments within five days. This is made clear in the government’s decision which, instead of explaining how the thousands of comments were considered and being addressed, simply stated that “the comments were considered and the bill was subsequently passed”. It is the public’s right, under the EBR, to have their concerns heard and addressed by our decision-makers, and this right is not being upheld.
Where do we go from here?
Despite the challenges with the EBR and the critical need for transparent and accountable decision-making that advances environmental justice, there is a way forward. In a recent report by the Law Commission of Ontario, they recommended that the EBR should:
- Make it easier for the public to enforce their rights under the EBR, for example, by allowing the public to sue the government for making decisions that violate their right to a healthy environment;
- Require the provincial government to develop strategies and targets describing how the purposes of the EBR will be upheld, and regularly report on its progress;
- Require the ministries to regularly update their SEVs and annually report on how their actions were consistent with the commitments established in their SEVs;
- Mainstream environmental justice as a key decision-making consideration, recognizing that environmentally hazardous sites, like mines and polluting industries, are disproportionately established in areas inhabited by Indigenous, racialized and low-income communities who lack political power and have historically been excluded from environmental decision-making; and
- Reinstate an independent Environmental Commissioner with increased powers to investigate environmental decision-making and hold decision-makers accountable.
At the very least, the government ought to comply with the Auditor General’s recommendations to consistently notify the public of environmentally significant proposals with enough information to understand the potential impacts on the environment and Indigenous rights, give the public enough time to participate, and explain how the public’s comments and the ministry’s SEV were considered in their decision.
LAND will continue to be a vocal advocate for environmental justice. That means weighing in on decisions and changes to laws and policies that restrain the public’s ability to meaningfully participate in safeguarding nature, and the communities who so depend on it for their health and wellbeing. Join us in staying informed and updated – add your name to our email list for regular law reform and take action alerts.