First Nations and Environmental groups challenge Ontario’s changes to Environmental Assessments

Environmental groups and First Nations are challenging the Ontario Government’s changes to environmental legislation contained in Bill 197 The COVID-19 Economic Recovery Act.

Kate Kempton is preparing a legal challenge on behalf of four Ontario First Nations – though she says she expects more to join – arguing the amendments are a violation of s. 35 of the Charter, which recognizes and affirms existing Aboriginal and Treaty rights. Kempton, a partner at Olthuis Kleer Townshend LLP, says the challenge will be launched in the coming weeks but cannot name the clients involved because they do not yet have a final list of participants in the lawsuit. 

Kempton is also challenging recent amendments to General Regulation 334 under the Environmental Assessment Act, which revoked environmental assessments for forestry activities within a large portion of the province.

“After decades of building up protections, including the right of meaningful engagement with First Nations in the environmental assessment sector and in the forestry sector… This government has been knocking down all of those things that were built, back to the way it was 40 years ago,” says Kempton.

“And by putting it in a big omnibus bill and by not doing the required Environmental Bill of Rights public notice and consultation, they just tried to slip it through and hoped it wouldn't attract any attention, let alone opposition… They are attracting a lot of opposition,” she says.

Bill 197 is also the target of a challenge from Ecojustice. On Aug. 7, Ecojustice – the legal advocacy group which focuses on environmental issues – launched a judicial review on behalf of Greenpeace Canada and Wilderness Committee, arguing the province intentionally violated the Environmental Bill of Rights by not consulting with Ontarians before passing the legislation, which made major changes to environmental law.

“Since being elected, the Ford government has attempted – I think it’s fair to say – to dismantle environmental protections in Ontario,” says Ian Miron, a lawyer for Ecojustice. “We also represented Greenpeace in a past challenge, concerning the failure to consult, by the Ford government, when it repealed the cap and trade regulation.”

“We certainly are concerned that this is appears to be a pattern of behaviour on the part of the government.”

Prior to the changes, public projects required an environmental assessment unless the public agency could justify how they were specifically exempted in the regulations, says Kempton. Bill 197 “flipped the regime on its ear,” she says. Now no public project is subject to an environmental assessment unless it is specifically listed or designated by the Minister in the regulations, she says.

The changes will impact the duty to consult and accommodate First Nations impacted by projects because it is the environmental assessments which trigger that duty, says Kempton.

“Things could just start out there on the lands to which first nations have significant rights without telling First Nations at all. And that's just inviting disaster,” she says.

In their amendments removing environmental assessment requirements for forestry projects, the Government said it is “eliminating duplication and onerous and ineffective processes.”

“And that's not true,” says Kempton. “Where there is legitimate excess red tape and duplication, my clients have nothing against that, but that's not what's going on. They are removing environmental protection, procedural requirements and costs for companies to make it easier for companies to get on the land – the environment – and go industrialize it.”

“And all purportedly being necessary to restore the economy because of COVID-19, which also isn't true. These environmental assessment Act Amendments were in the works well before COVID was even known to exist by the Ford government,” she says.