On behalf of the Osgoode…

On behalf of the Osgoode Hall Law School’s Environmental Justice and Sustainability Clinic, we are writing to provide comments on Bill 132, the Better for People, Smarter for Business Act. We note that as Bill 132 is a large and complex omnibus Bill containing significant changes to a large number of statutes, we have been unable to consider all the amendments proposed within the constraints of the 30-day Environmental Registry comment period. We urge the government to ensure there is robust consultation with the public and with Indigenous communities before any of the proposed changes are adopted and implemented and before any further amendments are proposed.

Below we address the schedules of Bill 132 that eliminate or modify the following:
• The Local Planning Appeal Support Centre (Schedule 3)
• Acts under the Ministry of the Environment, Conservation and Parks (Schedule 9); and
• Acts under the Ministry of Natural Resources and Forestry (Schedule 16)

In our view, a number of proposed amendments in Bill 132 should be rejected. We have serious concerns about many of the proposals in Bill, including, but not limited to, the following:

1. The elimination of the Local Planning Appeal Support Centre (LPASC) will exacerbate access to justice issues in the Province by limiting the ability of low-income people and marginalized groups to participate in planning decisions that impact their lives and communities. The burden of development and environmental harms are already disproportionately felt by low-income people and people of colour in Ontario, yet they face financial and other barriers in participating in these decisions. Elimination of the LPASC compounds earlier cuts to legal aid, particularly the vital work of the Canadian Environmental Law Association serving low-income clients on environmental matters.

2. The amendments to the Pesticides Act introduce discretion into the regulation of pest control products, eliminate a source of valuable non-partisan expertise, and threaten to loosen restrictions on cosmetic pesticides. These products can have significant environmental and health impacts and should be strictly controlled in accordance with science-based standards and expert advice.

3. The amendments to the Aggregate Resources Act remove important issues from consideration by decision-makers and eliminate municipal authority to protect groundwater resources from aggregate extraction. The changes also expand discretionary power to permit self-filed and unilateral site plan amendments. We are concerned that this could undermine the conditions of approval for pits and quarries without public consultation or Ministerial oversight.

4. The amendments to the Crown Forest Sustainability Act introduce a new permit for non-forestry operations in Crown forest that excludes any sustainability considerations and undermine the purpose of the Act, and increase ministerial discretion to extend forest management plans.

5. Proposed changes to the Oil, Gas, and Salt Resources Act would allow for unlicensed drilling and exploration activities with the potential for serious environmental impacts. Such changes require robust consultation with Indigenous peoples and communities.

Below we provide a detailed outline of our concerns. In sum, we recommend that Ontario withdraw the proposed amendments identified below; and, if any amendments are to be implemented, this should follow robust consultation processes with all stakeholders and with Indigenous communities.

ANALYSIS

Bill 132 Process and Consultation

Bill 132 is a long and complex omnibus Bill. It proposes amendments to 14 different environmental statutes. This level of change to provincial environmental regulation requires meaningful public engagement and careful consideration of public and expert input. Yet, the public has been provided with just 30 days to respond to the substantive changes to several environmental laws contained in Bill 132. In our view, the government should extend the consultation period to ensure any amendments are evidence-based and meaningfully incorporate public concerns.

Further, we note that some of the proposed amendments were already under consultation in accordance with the Environmental Bill of Rights under ERO Notice #019-0556 when Bill 132 was introduced. The Aggregate Resources Act (ARA) proposals were originally posted on the Environmental Registry on September 2019 with a 45-day comment period. However, prior to the end of that consultation period, the proposals were incorporated into Bill 132. This raises serious concerns about the government’s approach to consultation on environmental issues. We remind the government that the Environmental Bill of Rights protects public participation in environmental decision making in Ontario. Many individuals and organizations spent time and energy preparing comments on the ARA proposal documents. The timing of Bill 132 means that these comments will have no effect on the proposed amendments and that changes to the ARA were predetermined prior to, or during, the comment period. This undermines public trust in environmental decision-making and government transparency.

Recommendation: We recommend the Aggregate Resources Act changes be withdrawn from Bill 132 and reconsidered in light of the comments received under ERO Notice #019-0556 and this Notice.

Schedule 3

Bill 132 dissolves the Local Planning Appeal Support Centre (LPASC) and repeals the Local Planning Appeal Support Centre Act, 2017. The LPASC was created in 2017 with the goal of providing people across Ontario with information on land use planning and assisting in navigating and advising on the land use appeal process. It was intended to provide a cost effective system of support services respecting any Planning Act or LPAT matters. Land use planning cases are often long and complex, requiring legal and scientific expertise. Obtaining legal advice on planning issues is onerous and expensive, particularly for individuals and small organizations. While the Canadian Environmental Law Association does important work in representing clients on planning matters, demand for assistance and representation is far higher than they can meet, particularly given the recent cuts to legal aid in Ontario. The LPASC was intended to fill this gap by providing specific expertise and representation on planning matters.

Despite this important role in improving access to justice, the LPASC was shut down in 2019. Its elimination in Bill 132 risks reducing citizen engagement on a range of planning matters, such as zoning bylaws, amendments to official plans, and amendments to subdivision plans that could have negative consequences on the environment. In particular, it risks eliminating opportunities for low-income and marginalized groups in Ontario to engage in decisions about their communities, therefore exacerbating environmental justice issues in the province.

Recommendation: The Local Planning Appeal Support Centre Act should not be repealed and the government should re-instate the LPASC.

Schedule 9

Administrative Monetary Penalties

Bill 132 repeals environmental penalties provisions in the Environmental Protection Act (EPA), the Pesticides Act, the Ontario Water Resources Act, the Nutrient Management Act, 2002 and the Safe Drinking Water Act, 2002 and introduces new provisions imposing administrative monetary penalties. For example, in the EPA the current s 182.1 is replaced. Under the current section, an environmental penalty is an order by the Director requiring payment of a penalty for discharges of a contaminant, if the owner of a pollutant and the person with control over a pollutant that is spilled does not do everything practicable to prevent, eliminate or ameliorate the adverse effect, or if person contravenes any provision of the EPA, an order under the EPA, or an authorization of the EPA that puts a limit on the amount of anything that can be discharged into the environment. The amendments in Bill 132 replace environmental penalties under the above Acts with administrative monetary penalties. Unlike environmental penalties, violations that may be subject to an administrative monetary penalty are to be prescribed in regulations. However, no such regulations have been proposed and no information is provided about the timeline for, or content of, these regulations. Therefore it is impossible to comment on the penalties proposed.

In our view, several key changes to penalties in Schedule 9 undermine the ability of the government to hold polluters to account and should be rejected. They represent a major step backwards for environmental law in Ontario. In particular, the proposed changes shift from a per diem penalty model during the period in which an offence continues to a per contravention penalty model. We are concerned that this will result in lower penalties for offences. The Bill also removes the reverse onus on appeal, which requires polluters to prove the alleged facts did not occur. We are concerned this may lead to fewer polluters being held accountable under these Acts.

Further, the administrative monetary penalty provision no longer includes an opportunity for the Director and a regulated person against whom an order was made to come to an agreement to be published in the Environmental Registry requiring the person to take steps to remedy the harm. Schedule 9 also removes the condition that if a person fails to comply with an environmental penalty, that person’s environmental compliance approval may be suspended, or the Director may refuse to issue that person an environmental compliance approval or a licence. Finally, under the current EPA, an environmental penalty does not prevent a person from being charged, prosecuted and convicted of an offence under the Act where an environmental penalty has been imposed or paid. The new
s 182.1 provides for exemptions from conviction to be prescribed by regulation, providing that persons in payment of an administrative penalty shall not be convicted for the same contravention if prescribed.

Recommendation: The government should not replace environmental penalties with administrative monetary penalties. If replaced, administrative monetary penalties must include all of the aspects of an environmental penalty necessary to hold polluters accountable.

Pesticides Act

The Pesticide Act plays a crucial role in regulating potentially dangerous products and protecting human and ecological health. Bill 132 introduces changes to the listing process for pesticides. We are very concerned that Schedule 9 introduces discretion into the listing process and risks relaxing Ontario’s provincial standards for pesticides. The amendments also eliminate the Pesticides Advisory Committee. This long-standing committee reviews the operation and content of the Pesticides Act annually. The removal of one of the longest standing advisory agencies in the province eliminates a key source of information and guidance about the impacts of pesticide application and scientific expertise on pesticide use. Elimination of the committee raises concerns about government accountable and public access to information about pesticide use in the province.

While we need more time to assess the implications of the suggested changes to the Pesticides Act, we are concerned that weakening the regulation of pesticides will put public health at risk and may exacerbate ecological impacts on pollinator species. Ontario has made progress in protecting people and the environment from harmful substances in recent years. These changes threaten to move us backwards and should be rejected.

Recommendation: The amendments to the Pesticides Act should be withdrawn. The amendments introduce opportunities for more relaxed standards for the application of pesticides and greater exceptions for products that would otherwise be considered pesticides and potentially harmful to human and ecological health.

Schedule 16

Aggregate Resources Act

As noted above, the government proposed amendments to the Aggregate Resources Act on the Environmental Registry in September with a comment period open to November 4th, 2019. Bill 132, implements the proposed changes without completing the consultation process or considering the submissions. Aggregate pits and quarries result in significant environmental impacts in Ontario and are often of serious concern to local residents and Indigenous communities. Further, the current planning framework already prioritizes aggregate mineral extraction above other land uses and environmental and heritage values. Therefore, any changes to the ARA and any future regulations provided for in Bill 132 should be carefully considered and subject to a robust process of consultation, including with Indigenous peoples whose constitutionally protected rights may be affected.

We are concerned about several of the proposed changes to the ARA. One of our key concerns is how Bill 132 will limit the role of municipalities in the regulation aggregate minerals extraction. In particular, the proposal to remove municipalities’ authority to regulate the depth of extraction limit’s their ability protect groundwater resources. Municipalities play a crucial role in land use planning in Ontario, including in the protection of groundwater resources. In our view, these changes limit municipalities’ options to fulfill their duty protect groundwater and undermine their planning jurisdiction.

The amendments would also prohibit decision makers under the ARA from considering road degradation that may result from proposed truck traffic to and from the site. As the Canadian Environmental Law Association notes, road damage from high-volume truck traffic can be an important consideration, particularly for residents living along haul routes and for smaller municipalities with numerous aggregate operations and limited funds for road repair and maintenance. Decision makers should be able to consider the full spectrum of impacts of any proposed project under the ARA to ensure robust and evidence-based decision-making.

Finally, Bill 132 expands the potential for self-filed amendments to ARA site plans without Ministerial approval. The current Act provides limits regulation-making authority to “minor amendments that may be made without the Minister’s approval”. Schedule 16 would remove the word “minor” and open up the possibility of more significant and even major changes being permitted without Ministerial approval. In our view, site plans should not be open to unilateral changes by a licensee. They are legally binding instruments and licensees should be held to the terms and conditions of approval. The amendment could exacerbate existing issues of transparency, accountability, and enforcement under the ARA.

Finally, we note that while the government’s earlier proposals referenced the need to strengthen groundwater protection, Bill 132 contains no additional protections for groundwater resources. Indeed, removing municipal authority to regulate the depth of extraction is a substantial move in the opposite direction and may put groundwater resources at risk.

Recommendation: The ARA amendments that would exclude road degradation from consideration in decision-making, remove municipalities’ authority over aggregate extraction depths, and increase, through regulation, the ability of licensees to amend site plans without Ministerial approval should be withdrawn.

Crown Forest Sustainability Act, 1994

Bill 132 proposes the introduction of a new permit under the CFSA to authorize the removal of forest resources from Crown lands for the purpose of allowing non-forestry activities to be carried out, such as the building of a road or development of a transmission line. Alarmingly, these proposed permits would not be required to provide for the sustainability of the Crown forest, and would not be subject to the Forest Management Planning Manual, forest management plans, forest operations prescriptions, nor to work schedules. In other words, removal of forest resources under these permits would be exempted from all the forest management tools in the province and would not have to be justified as sustainable. Further, it remains unclear whether such permits would be subject to public notice and comment.

In our view, streamlining permitting processes by exempting classes of tree removal from the sustainability requirements at the core of the CFSA is unacceptable. The purposes of the CFSA are “to provide for the sustainability of Crown forests and, in accordance with that objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations.” Sustainability is defined in the Act as the “long term Crown forest health.” The introduction of these permits runs counter to these purposes and should be rejected. We are particularly concerned about these exemptions in light of a legislative trend allowing for exceptions to permitting requirements for prescribed activities under other Acts, such as the Mining Act, the Aggregate Resource Act, and the Environmental Assessment Act. These exemptions threaten to undermine human health and environmental integrity in the province and may violate constitutional protected Indigenous rights.

In addition, we concerned that the amendments increase Ministerial discretion in relation to forest management plans. The changes would allow the Minister to extend a previously approved forest management plan. This removes opportunities for public and Indigenous engagement in forest planning and could undermine the Act’s sustainability purpose. Further, Bill 132 removes ministerial oversight of work schedules and authorizes unilateral revisions by a licensee. Again, this limits transparency and accountability and could undermine the purposes of the Act.

Recommendation: The amendments to the Crown Forest Sustainability Act introducing a new permit for non-forestry activities, allowing the Minister to extend a Forest Management Plan, and eliminating ministerial oversight of work schedules should be withdrawn.

Oil, Gas and Salt Resources Act

Bill 132 proposes to amend the definition of a well in the Oil, Gas and Salt Resources Act to allow drilling for geological evaluation or testing as prescribed by regulation. The Act currently provides that no one is allowed to operate or engage in activities on or in a well without a licence. The amendments would exempt certain prescribed activities from licensing requirements if done in accordance with terms, conditions and requirements in the regulation.

In our view, the amendments proposed under Bill 132 could loosen the safeguards put in place to minimize drilling and negative consequences from drilling and operating wells. These amendments could have long-term and negative environmental impacts if there is not adequate supervision of unlicensed well operations. Further, constitutionally protected Indigenous peoples could also be affected where exploration and geological testing activities occur without a licence and therefore without necessary consultation and accommodation. Changes to the regulation of oil and gas in the province should be subject to robust consultation and guided by expert scientific evidence and Indigenous knowledge.

Recommendation: The proposed changes to the definition of a well and exceptions to for unlicensed operation of a well should be withdrawn. However, if the government does implement the exception to the prohibition of well activities, there must be robust consultation with community stakeholders and Indigenous peoples in order to determine the prescribed terms, conditions and requirements for the exception.

CONCLUSION

As outlined above, we have serious concerns about several of the amendments to environmental statutes proposed in Bill 132. Overall, the changes proposed in Bill 132 threaten to weaken provincial environmental regulation, put human and ecological health at risk, and erode relations with Indigenous communities. We have made the following specific recommendations and urge the government to reconsider:

• The Local Planning Appeal Support Centre Act should not be repealed and that the government should reinstate the LPASC.

• The government should not replace environmental penalties with administrative monetary penalties. If replaced, administrative monetary penalties must include all of the aspects of an environmental penalty to ensure polluters are accountable to Ontarians.

• The amendments to the Pesticides Act should be withdrawn for further consideration and consultation. The amendments introduce the potential for more relaxed standards on and greater exceptions to the application of products that would otherwise be considered pesticides and potentially harmful to human and ecological health.

• The Aggregate Resources Act changes should be withdrawn from Bill 132 and reconsidered in light of the comments received under ERO Notice #019-0556 and this Notice. If changes to the ARA are implemented, the amendments that would exclude road degradation from consideration in decision-making, remove municipalities’ authority over aggregate extraction depths, and increase, through regulation, the ability of licensees to amend site plans without Ministerial approval, should be withdrawn.

• The amendments to the Crown Forest Sustainability Act introducing a new permit for non-forestry activities, allowing the Minister to extend a Forest Management Plan, and eliminating ministerial oversight of work schedules should be withdrawn.

• The proposed changes to the definition of a well and exceptions for unlicensed operation of a well in the Oil, Gas and Salt Resources Act should be withdrawn. However, if the government does implement the amendments, there must be robust consultation with community stakeholders and Indigenous peoples in order to determine the prescribed terms, conditions and requirements for exemptions from licensing requirements.