May 25, 2019 Sharifa Wyndham…

May 25, 2019

Sharifa Wyndham-Nguyen
Client Services and Permissions Branch
Ministry of the Environment, Conservation and Parks
135 St. Clair Avenue West, 1st Floor Toronto, ON M4V 1P5
Dear Ms. Wyndham-Nguyen:

RE: MODERNIZING ONTARIO’S ENVIRONMENTAL ASSESSMENT PROGRAM: DISCUSSION PAPER ENVIRONMENTAL REGISTRY NO. 013-5101

On behalf of ProtectNatureTO, a coalition of over 20 nature-and stewardship-based groups advocating for the protection of wildlife and improvement of natural areas across the City of Toronto, we offer our comments and recommendations below on the Ontario government’s Discussion Paper Modernizing Ontario’s Environmental Assessment Program.

The EAA is one of the oldest and most important environmental laws in Ontario. This ground-breaking legislation was first enacted in 1975, but it was substantially amended by controversial reforms implemented by the provincial government in 1996.

However, the EAA should not be reformed simply because of its age, but because the 1996 amendments have resulted in a broken and dysfunctional EA program. Over the past 20 years, many commentators, stakeholders and independent officers of the Ontario Legislature have identified the structural improvements that are needed in the EA program in order to face the environmental issues and opportunities of the 21st century.

Unfortunately, the Discussion Paper neglects to discuss or even mention these key reforms, and instead focuses on quick-fixes that will likely make the EA program less robust, participatory and accountable to the people of Ontario.
The stated purpose of the EAA is "the betterment of the people of Ontario... by providing for the protection, conservation and wise management of the environment." Therefore this law is primarily intended to advance and protect the public interest, not private corporate interests.
The provincial government first flagged its intention to "modernize" the EA process in the "made-in-Ontario" Environment Plan released in late 2018 for public consultation. However, the single sentence in the Plan about EA “modernization” contained no details on how this objective would be accomplished by the Ontario government.
Regrettably, the Discussion Paper similarly lacks many critical implementation details and fails to specify what mechanisms will be used by the government to operationalize the changes (legislative changes, regulatory revisions, policy development, or administrative improvements).
More alarmingly, the Discussion Paper appears to equate EA requirements with "red tape." This view reflects a profound misunderstanding of the importance of robust EA planning, and does not bode well for the pending reforms that may be rolled out by the provincial government.

From the public interest perspective, EA is not red tape. Instead, EA is supposed to be a rigorous process for screening out and rejecting harmful projects, (e.g. landfills at hydrogeologically unsuitable locations), while allowing necessary and environmentally sustainable projects to proceed, subject to effective and enforceable approval conditions that deliver long-lasting societal benefits and that prevent adverse impacts.

In our opinion, the overarching “vision” that emerges from the Discussion Paper simply appears be an EA program that features faster and less robust EA processes which will apply to significantly fewer projects than the current regime, and which will be plagued by ongoing barriers to meaningful public/Indigenous participation. This is not an acceptable proposal for “modernizing” Ontario’s EA program. The Discussion Paper is calling for a rollback of current EA requirements, rather than implementing progressive measures that strengthen and improve the EA program.

The Discussion Paper's "project list" concept under the EAA is particularly alarming, and represents a clear step backwards from the "all in unless excluded" approach that currently exists within the Act in relation to public sector undertakings. The question of how to trigger the application of the EAA was the subject of a major public and political battle back in the 1970s when the Act was first drafted and debated. To its credit, the provincial government of the day correctly decided against using a project list approach (or discretionary case-by-case designations), and instead opted to use the inclusive approach that currently serves as the principled basis of the EA program.

The Discussion Paper asserts that there is "duplication" between the EA program and other provincial planning and approvals regimes. This is an incorrect assertion. No other provincial statute requires proponents to demonstrate need/purpose, consider alternatives, and systematically evaluate ecological, socio-economic or cultural impacts of proposed undertakings.

The Discussion Paper states that in some cases, the individual EA process can become slow, complex and uncertain. To address such concerns, the Discussion Paper proposes to “find efficiencies” in the EA process in order to “shorten the timelines from start to finish.

The EA process needs more rule-based decision-making – and less “guidance” or “expectations” – in order to achieve the purpose of the EAA. Faster EA Decisions are not Necessarily Better Decisions.

The Discussion Paper proposes the creation of an electronic registry that would enable the uploading and sharing of digital EA submissions. The creation of an electronic registry cannot displace other traditional forms of public consultation in local communities (in appropriate languages and formats).

Missing from the Discussion Paper is e.g. the EAA still does not prescribe a climate change test for undertakings that may cause or contribute to greenhouse gas emissions, or that may adversely affect carbon storage by tree/vegetation removal. Similarly, the EAA does not expressly require consideration of cumulative effects from different projects in the same geographic region.

In light of these continuing gaps in the current EA program, there has been a widespread recognition that Ontario’s EA program needs to be renewed, revised and revitalized. Thus, important recommendations for critically needed EA reforms have been offered over the years by various stakeholders, advisory committees, the Auditor General of Ontario, and the Environmental Commissioner of Ontario.

Rather than tackling the serious systemic problems in Ontario’s EA program, the Discussion Paper merely proposes questionable “efficiency” measures (e.g. exemptions, deadlines, etc.). This narrow approach falls considerably short of the mark if the Ontario government is interested in pursuing appropriate EA reforms that benefit all Ontarians, not just proponents or their shareholders.

The Discussion Paper fundamentally fails to describe the types of structural EAA reforms that are needed to make the EA program more effective, enforceable and equitable.

Instead, the Ontario government should publicly develop and widely consult upon the long-overdue reforms that are necessary to transform the province’s EA program into a robust, credible and participatory regime.

Sincerely,
On behalf of ProtectNatureTO