The Environmental Bill of Rights at 20: Achievements of the EBR Hart House February 12, 2014
Achievements of the EBR The EBR is designed to provide: • Public Participation • Transparency • Accountability
Achievements of the EBR The EBR allows: public participation in government environmental decision-making increased access to tribunals/courts
Achievements of the EBR Tools that work: The Environmental Registry Applications for Review and Investigation Appeals Environmental Commissioner’s Office
The Environmental Registry: A searchable on-line database EBR requires minimum 30-day public comment period www.ebr.gov.on.ca The Ministry of the Environment maintains the Registry Prescribed ministries consult the public using the Registry
The Environmental Registry Shows you what ministries are working on Lets you comment before decisions are made Shows you the comments of other people Shows you how the ministry considered public comments
The Environmental Registry A huge historical database Over 30,000 proposals (1995-now)
The Environmental Registry An average year: • ~2,500 proposals posted • ~80 proposals for policies, acts and regs.
The Environmental Registry The public does comment: 2011 examples 19 13 13 244 244
The Environmental Registry The public does comment: 2012 examples 193 42 103
The Environmental Registry The public does comment: 2013 examples 10,034 51 178
The Environmental Registry Enough time to comment: % of policies, acts and regs with 45 days or more as comment period: 2009/2010: 74% 2010/2011: 90% 2011/2012: 81%
The Environmental Registry Enough information to comment: Most proposals for policies, act and regs do provide: ministry contact name, phone, and address hyper-text links to background info
The Environmental Registry We do learn how most stories end: Percent of policies, acts and regs with decisions posted: 90% (1994 – 2012)
The Environmental Registry Do public comments influence decisions?
The Environmental Registry Public comments do influence decisions: e.g. Source Protection Plans, Clean Water Act Result: MOE: • clarified text of provisions • broadened scope for source protection plans • enhanced provisions for consultations with First 86 Nations
The Environmental Registry Public comments do influence decisions: e.g. Habitat policy under Endangered Species Act Result: MNR made • substantial changes to framework for 21 characterizing habitat
The Environmental Registry Public comments do influence decisions: e.g. Reg. for waste pharmaceuticals and sharps Result: MOE • refined definitions of “sharps” and “pharmaceuticals” • required producers to report on how their number of collection locations improves over 33 time
The Environmental Registry Overall, the Registry: Offers a lot of information Is used by the public Is used by a range of ministries Gives the public enough information Gives the public enough time to comment
The Environmental Registry Overall, the Registry works.
Applications for Review and Investigation
That environmental policy isn’t working ! There really ought to be an environmental law about that! That Act needs to be updated to ensure environmental protection!
Applications for Review You can request a review of an existing provincial policy, Act, regulation or instrument (e.g., permit) The Mining Act Road salt exemption A Permit to Take Water
Applications for Review You can also request a review of the need for a new Act, regulation or policy Protection for the Waterloo Land use planning system Moraine for northern Ontario
Applications for Review The ECO receives about 20 applications for review per year MMAH (9%) Ministry of Natural MNDM (5%) Resources (26%) ENG (4%) OMAF (1%) MCS (1%) Ministry of the Environment (54%)
Applications for Review - Issues Water quality (24%)
Applications for Review - Issues Land use planning (18%)
Applications for Review - Issues Fish and wildlife management (17%)
Applications for Review - Issues Waste management (15%)
Applications for Review - Issues 10% 11% 10% 10%
Applications for Review - Results Ministry action taken (79%) For example: • New legislation • Amendments to regulations • Changes to approvals
Applications for Review - Results Denied but ministry action taken (32%) Denied (80%)
Application for Review - Example Review of the Aggregate REQUESTED Resources Act Ministry of Natural Resources • New reporting requirements for aggregate operators • New powers for ministry inspectors • Expanded the Act’s geographic scope • Increased fees/royalties for operators
Application for Review - Example New regulation to make REQUESTED clothesline restrictions invalid Ministry of Energy Restrictive covenants and agreements that ban the use of outdoor clotheslines are illegal
Applications for Investigation If you believe someone has contravened or violated a prescribed Act, regulation or instrument, you can ask the government to investigate
Applications for Investigation If you believe someone has contravened or violated a prescribed Act, regulation or instrument, you can ask the government to investigate Noise, vibration or air emissions
Applications for Investigation If you believe someone has contravened or violated a prescribed Act, regulation or instrument, you can ask the government to investigate Damage to the habitat of an endangered species
Applications for Investigation If you believe someone has contravened or violated a prescribed Act, regulation or instrument, you can ask the government to investigate Leachate from a landfill
Applications for Investigation The ECO receives about 10 applications for investigation per year Ministry of Natural Resources (19%) Ministry of the Technical Environment Standards & (80%) Safety Authority (1%)
Applications for Investigation Legislation most cited: Environmental Protection Act (65%) Section 14 – Prohibits discharge of a contaminant into the natural environment that causes an adverse effect, including: Injury or damage to property or plant/animal life Harm or material discomfort Loss of enjoyment of normal use of property Interference with normal conduct of business
Applications for Investigation Legislation most cited: Environmental Protection Act (65%) Ontario Water Resources Act (34%) Environmental Assessment Act (14%) Fisheries Act (10%)
Applications for Investigation - Results Undertaken (24%)
Applications for Investigation - Results Ministry action taken (74%) For example: • Laying of charges • Provincial Officer’s Order
Applications for Investigation - Results Denied but ministry action still taken (35%) Denied (76%)
Application for Investigation - Example Investigation of noise from REQUESTED agricultural mill Ministry of the Environment • Charges laid against company under the Environmental Protection Act • Company fined $15,000 and required to take noise abatement measures
Application for Investigation - Example Investigation of sewage issues REQUESTED in provincial parks Ministry of the Environment • Ministry requested that specific parks address issues of non-compliance • Provincial Officer followed-up to ensure compliance • Ministry encouraged parks to enhance sewage management practices
EBR Applications - Oversight The Environmental Commissioner reviews and reports on ministries’ handling of applications
EBR Applications Over the past 20 years, Ontarians have submitted: 650 applications for review and 237 applications for investigation
How to Submit an EBR Application www.eco.on.ca
Appeal Rights under the EBR
Appeal Rights under the EBR EBR creates a right for individuals to appeal certain ministry decisions to issue an instrument to another person or business
EBR Appeals EBR creates a right for individuals to appeal certain ministry decisions to issue an instrument to another person or business Where the instrument holder itself has a direct right to appeal Any resident of Ontario can also appeal
Third-Party Appeal Rights Another important tool designed to provide: Public involvement Ensure accountability
Third-Party Appeals Not an automatic right to appeal Must first be granted “ leave ” (permission) to appeal Two-part test – must demonstrate: No reasonable person could have made the decision Decision could result in significant environmental harm
Third-Party Appeal Process Obtaining “leave” is a hurdle But a feasible one (roughly 1 in 5 succeed)
Third Party Appeals Those who do overcome the hurdle get to present their full arguments to the Tribunal In most cases, achieve some level of success (often the addition of conditions to the approval)
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