The Environmental Bill of Rights at 20: Achievements of the EBR Hart - - PowerPoint PPT Presentation

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

 Shows you what

ministries are working on

 Lets you comment before

decisions are made

 Shows you the comments

• f 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 Environmental Registry

The public does comment:

2011 examples

244 244 13 13 19

The Environmental Registry

The public does comment:

2012 examples

42

103 193

The Environmental Registry

The public does comment:

2013 examples

51 178 10,034

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

86

Result: MOE:

• clarified text of

provisions

• broadened scope for

source protection plans

• enhanced provisions for

consultations with First Nations

The Environmental Registry

Public comments do influence decisions: e.g. Habitat policy under Endangered Species Act

21

Result:

• MNR made

substantial changes to framework for characterizing habitat

The Environmental Registry

Public comments do influence decisions: e.g. Reg. for waste pharmaceuticals and sharps

33

Result: MOE

• refined definitions of

“sharps” and “pharmaceuticals”

• required producers to

report on how their number of collection locations improves over 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

There really ought to be an environmental law about that! That Act needs to be updated to ensure environmental protection! That environmental policy isn’t working!

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

Land use planning system for northern Ontario

Applications for Review

 You can also request a review of the need for a

new Act, regulation or policy Protection for the Waterloo Moraine

Applications for Review

 The ECO receives about 20 applications for review

per year

MMAH (9%) MNDM (5%) ENG (4%) OMAF (1%) MCS (1%)

Ministry of the Environment (54%) Ministry of Natural Resources (26%)

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 Resources Act

REQUESTED

• New reporting requirements for aggregate
• perators
• New powers for ministry inspectors
• Expanded the Act’s geographic scope
• Increased fees/royalties for operators

Ministry of Natural Resources

Application for Review - Example

New regulation to make clothesline restrictions invalid

REQUESTED

Restrictive covenants and agreements that ban the use of

• utdoor clotheslines are illegal

Ministry of Energy

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

 The ECO receives about 10 applications for

investigation per year

Technical Standards & Safety Authority (1%)

Applications for Investigation

Ministry of Natural Resources (19%) Ministry of the Environment (80%)

 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

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 agricultural mill

REQUESTED

• Charges laid against company under the

Environmental Protection Act

• Company fined $15,000 and required to

take noise abatement measures Ministry of the Environment

Application for Investigation - Example

Investigation of sewage issues in provincial parks

REQUESTED

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

 The Environmental Commissioner reviews and

reports on ministries’ handling of applications

EBR Applications - Oversight

 Over the past 20 years, Ontarians have submitted:

 650 applications for review and 237 applications for

investigation

EBR Applications

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

• f success (often the addition of

conditions to the approval)

Third Party Appeals

 Best used legal tool under the EBR  Over 150 requests for leave to appeal since EBR was

enacted (about 100 instruments)

 ~6 instruments in an average year

 ECO posts summaries of each appeal on the

Environmental Registry, and highlights some in our Annual Report

What’s being appealed?

 About 95% of EBR leave to appeals are challenging

MOE decisions on:

 Permits to Take Water (31%)  Air approvals (28%)  Waste approvals (21%)  Sewage approvals (15%)

Water Takings Air Approval Waste Approval Sewage Approval Other

Appeal – Example

MOE granted a Permit to Take Water to a hydropower operator An individual requested leave to appeal raising several grounds:

 River was “at risk”; further studies were

needed to assess impacts of dam on river

 Water temperatures below dam too warm

for fish

 10-year duration of PTTW too long

Appeal – Example

Outcome:

• Environmental Review Tribunal

granted leave to appeal on all grounds

• Parties engaged in mediation
• Reached settlement – changes to the PTTW:

 Duration 5 years, not 10 years  New clauses about dam operation  Record-keeping requirements  Run-of-the-river flow to be restored ASAP after power

interruptions

Environmental Commissioner of Ontario

• Another tool that works!

Environmental Commissioner of Ontario

• Review compliance of 14 ministries with the

various requirements of the EBR

• Review how well the Environmental Registry

is working

• Present Annual Reports on the above – and

much more – to the legislature

• Education and Outreach

Achievements of the EBR

These tools work!

 The Environmental Registry  Applications for Review and Investigation  Appeals  Environmental Commissioner’s Office

Achievements of the EBR

Thank you for 20 great years!

Michelle Kassel, Senior Manager, Policy Analysis Tyler Schulz, Senior Policy and Decision Analyst Ellen Schwartzel, Deputy Commissioner