November 22, 2023 Public…

November 22, 2023

Public Input Coordinator
MNRF- RPDPB –Natural Heritage Section
300 Water St., 2nd Floor South
Peterborough, ON
K9J 3C7

Dear Public Input Coordinator:

Re: ERO 019-7696,
Bill 139 Niagara Escarpment Planning and Development Act

The Canadian Environmental Law Association (CELA) is writing to you regarding the proposed changes to the Niagara Escarpment Planning and Development Act (NEPDA) through Bill 139.

CELA has a lengthy history of involvement with the NEPDA and the Niagara Escarpment Plan (the Plan). CELA counsel, for example, have represented clients at hearings on development permit applications and plan amendment hearings under the NEPDA. CELA has also provided comments to government ministries on matters related to the NEPDA and the Niagara Escarpment Plan (Plan).

The development permit regime under the NEPDA has played a vital role in protecting Ontario’s Niagara Escarpment, designated as a World Biosphere Reserve, by the United Nations, Educational, Scientific, and Cultural Organization.

We are concerned that clause 3 of Bill 139 gives the Minister of Natural Resources and Forestry unfettered authority to exempt “any class or classes of persons, or any class or classes of development within any development area from the requirement of obtaining a development permit.”

The clause, as currently drafted, provides unfettered discretion to the Minister to exempt persons or classes for persons from the requirement to obtain a development permit, and may undermine protection of the Niagara Escarpment. Although there are examples of exemptions of classes of persons from the requirements of a law, these exemptions are generally undertaken with strict criteria. For example, the federal Controlled Drugs and Substances Act states:

56 (1) The Minister may, on any terms and conditions that the Minister considers necessary, exempt from the application of all or any of the provisions of this Act or the regulations any person or class of persons or any controlled substance or precursor or any class of either of them if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.

The Federal Minister of Health has used this authority to exempt medical practitioners and pharmacists, or those working under them, from certain requirements that otherwise would apply under the law. Specifically, the Act requires that: (i) the minister make the exemption determination directly; and (ii) the minister must be of the opinion that the exemption is necessary for medical or scientific purpose, or is otherwise in the public interest.

In contrast, Bill 139 does not specify any factors that the Minister has to consider prior to exempting a person or classes of person from having to obtain a development permit. CELA believes that any exemption from the requirement to obtain a development permit should be undertaken in a manner that upholds the purposes and objectives of the NEPDA and the Plan, and in accordance with the public interest in protecting the environment.

Accordingly, CELA submits that any exemption from the requirement to obtain a development permit should specify that the Minister is directly responsible for making this determination: (i) on a case-by-case basis; and (ii) pursuant to specific criteria which upholds the purposes and objectives of the NEPDA and the Plan. In addition, the exemptions should also take into account the public interest in protecting the escarpment.

Please do not hesitate to contact me at (416) 960-2284. Ext 7217 or via email at ramani@cela.ca if you have any questions with respect to the above.

Yours truly,
CANADIAN ENVIRONMENTAL LAW ASSOCIATION

Ramani Nadarajah
Counsel
Canadian Environmental Law Association