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The new year is a suitable time for environmental practitioners to take stock of new or revised regulations, rules and recent developments impacting the sector.

On December 6, 2023, the Legislative Assembly of Ontario confirmed Shelley Spence as the province’s next Auditor General, effective January 8, 2024. Spence replaces Nick Stavropoulos, who assumed the role of Acting Auditor General (AAG) in September.

According to the preamble to the Environmental Bill of Rights (EBR), an Ontario Act passed by the Legislature thirty years ago last month, the following is stated:

“The people of Ontario recognize the inherent value of the natural environment.
The people of Ontario have a right to a healthful environment.
The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.”

While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner.

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Shelley Spence, the new Auditor General of Ontario, began her career as an auditor at KPMG and later owned her own auditing firm. She was most recently a partner at Deloitte LLP in the Audit and Assurance practise, serving clients in the Government and Public Sector. She holds a Bachelor of Commerce degree in accounting from the University of Alberta. (Credit: Legislative Assembly of Ontario.)

The EBR sets out minimum levels of public participation that must be met before the Government of Ontario makes decisions on certain kinds of environmentally significant proposals for policies, acts, regulations and instruments. The Bill also sets out mechanisms that must be used to provide opportunities for public participation.

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One aspect that is absent from the EBR is a means of enforcement. There are no penalties if the government chooses to ignore most aspects of the Bill of Rights.

That is exactly what the Ontario Government has chosen to do, according to the AAG of Ontario, the public official currently charged with reporting annually on the operation of the EBR Act. In a press release issued at the time of release of his review of the EBR the AAG stated:

“The government made significant changes to energy, land‑use planning and housing policies without meaningful consultation, undermining Ontarians’ ability to participate in decisions that can impact the environment.”

The government may arguably claim that the issues on which it bypassed the Environmental Bill of Rights were urgent issues which would cause more suffering, both to society and the environment, if the EBR process were to delay implementation of preferred solutions.

However, the examples presented by the AAG do not support that defence: sweeping changes to the Province’s land use and housing framework; removal of lands from the Greenbelt; and decisions about a new clean energy plan and changes to the framework for electricity conservation programs are all issues where planning takes time, where government officials may not have a complete understanding of all of the environmental and community implications, and for which community input may provide valuable advice.

One of the real benefits of the EBR is that it can help bring government officials, both politicians and departmental officials, up to speed on aspects of issues about which they were not aware. The EBR is a relatively quick process that will help avoid government mistakes that will actually or potentially cause unwarranted spending and avoidable harm to the environment and communities.

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This has been so obvious to the AAG and to his predecessors that a recommendation to extend application of the EBR to more Ontario Government ministries than are presently covered has been recommended in the present and past reports, so far without a positive response.

Project developers would be wise to ensure that projects with which they are engaged have been subject to review through the EBR or at least a similar process, whether the government thinks it to be necessary or not.

The very detailed report of the AAG of Ontario on Operation of the Environmental Bill of Rights, 1993 and other relevant documents from the AG can be found here.

Colin Isaacs is a chemist with practical experience in administration, municipal council, the Ontario Legislature, a major environmental group, and, for the past three decades, as an adviser to business and government. He is one of the pioneers in promoting the concept of sustainable development for business in Canada and has written extensively on the topic in the popular press and for environment and business platforms.

Featured image credit: Queen’s Park/LAO

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