Ontario government broke the law in failing to comply with the Environmental Bill of Rights: court

A recent Ontario Divisional Court ruling declared that the Ontario government broke the law and violated Ontario’s Environmental Bill of Rights when it failed to consult the public before changing the Planning Act.

The decision released on September 3, 2021, declared that the Minister of Municipal Affairs and Housing acted “unreasonably and unlawfully” in failing to consult with the public on changes to the Planning Act regarding Minister’s Zoning Orders.

The court said the government failed to announce proposed amendments to MZOs on the Environmental Registry before passing the bill.

Under the EBR, residents of Ontario have a right to “participate in certain environmental government decisions.”

Gord Miller, Ontario’s former environmental commissioner and chair of Earthroots said in a statement, “I am heartened to see the Court uphold the rights of people to participate in government decision-making affecting the environment. The Court’s declaration is clear — the Government of Ontario broke the law in violating those rights.”

The court ruling on Bill 197 reaffirms the public’s right to participate in environmental decision-making and is significant because future governments and departmental advisors will be leery of avoiding compliance with the EBR, says Theresa McClenaghan, executive director of the Canadian Environmental Law Association.

The government claimed Bill 197 was an emergency due to COVID, but McClenaghan says the courts rejected the emergency exception.

 In August, the Ontario government passed the COVID-19 Economy Recovery Act [Bill 197] to kickstart Ontario’s economic recovery from COVID-19. Bill 197 amends 20 pieces of legislation, including the Environmental Assessment Act.

The bill amended the Planning Act, increasing the government’s power to use minister’s zoning orders, which enable development projects to proceed without public consultation or the right to appeal.

Several environmental groups filed judicial review applications over the government’s failure to consult with the public before enacting Bill 197.

Before Bill 197 passed, McClenaghan says that the EBR auditor general sent a letter to the government stating EBR requirements. Still, the government failed to consult with the public until after the passage of the bill.

“The bill was introduced, debated and passed without being posted to the environmental registry, and it included significant amendments to the environmental assessment and significant amendments to the Planning Act that should have been posted on the environmental registry for public input and comments, according to the requirements of the EBR.”

Although the court agreed that the minister should have consulted the public on the MZO amendments, McClenaghan says the courts found other changes to the EAA enacted through Bill 197 permissible because the bill included a “retroactive deeming provision” that excused changes from the consultation requirements of the EBR.

Ontario Nature said on their website that the timing, scope of changes and lack of transparency in passing Bill 197 undermines Ontario’s democratic process because the government failed to provide consultation for any amendment to the EAA despite a legal obligation under the EBR.

The website said that the bill’s content is poorly reflected and hides the negative environmental, social, and economic implications.

Communities in Ontario need to be engaged and provide input on environmental issues, McClenaghan says. As well, EBR requirements are not tedious and can clarify bill amendments before they pass legislation.

“If the only perspective is industry or developer and government perspective, then quite significant areas of knowledge, impact or perspective would be missed in the decision making, and so having the Environmental Bill of Rights give us [Ontarians] the ability to provide input on new environmental policy, regulations and legislation is very important.”