Exempting five Lakes and Rivers Improvement Act orders from certain requirements of Part II of the Environmental Bill of Rights, 1993 through proposed amendments to Ontario Regulation 73/94

The Environmental Bill of Rights, 1993

The EBR Act requires that Ministers provide opportunities for public participation before decisions are made regarding proposals for instruments that are identified in Ontario Regulation 681/94 made under the EBR Act. Ontario Regulation 681/94 identifies the instrument proposals that must be posted to the Environmental Registry of Ontario (ERO), and classifies these instrument proposals as either Class I, II, or III proposals. The primary form of public consultation on instrument proposals is by way of a posting on the ERO.

Class II instrument proposals must be posted on the ERO for a minimum 30-day public review period. The responsible Minister must consider providing more than 30 days for public review and comment; plus, some other form of public notice must be given (e.g., stakeholder notification).

Currently, there are seven LRIA orders that are classified as Class II instrument proposals.

Under subsection 121(1) (l) of the EBR Act a regulation may exempt from Part II any class of proposal for an instrument including for the purposes of expediting decision-making about proposals.

The Lakes and Rivers Improvement Act

The Ministry of Natural Resources and Forestry (MNRF) is responsible for administering the LRIA and its associated regulations. The Minister is provided with authority to issue orders requiring a dam owner to provide information about the condition of a dam, or repair or remove a dam, or take other action necessary to further the purposes of the LRIA, which include the protection of persons, property, waters and natural resources

We are proposing to exempt five LRIA compliance orders, which are prescribed Class II proposals for instruments under Ontario Regulation 681/94, from the requirements under Part II of the EBR Act except the requirement to post a decision notice. If the proposed amendment is approved, these Class II proposals for instruments would no longer be posted on the ERO for public consultation. The Ministry would continue to post a decision notice after the order is issued.

The main purpose of LRIA compliance orders is to prevent harm to people, property, and the environment. Expedient action to avoid injury or further damage to the environment is often required.

The proposal is that the exception would apply to the following five LRIA orders that are Class II proposed instruments:

• Subsection 17(1) - order to repair or remove a dam
• Subsections 17(2) - orders to rectify problems with a dam based on an engineer’s report
• Subsection 17(3) – order to do what is necessary in respect of a dam to further the purposes of the LRIA based on an examination and report of an engineer
• Subsection 17(4) - order to construct a fishway at a dam
• Subsection 36(2) - order to take steps to remove a substance or matter from a lake or river

A quick response time is often critical to achieve the intended purpose of these orders in the public interest. In this context, posting proposed orders for public consultation in advance of issuing them may cause a delay that undermines the effectiveness of this compliance tool. Specifically;

• When an order is issued to repair or remove a dam that was constructed without approval, timing would be critical for obtaining plans and specifications of the dam and performing any necessary work. Requiring posting of an ERO proposal notice may cause delay that may pose additional risk to persons, property, or the environment.
• Delaying the examination of a dam by an engineer, receipt of engineer reports, or an owner making dam improvements, including the installation of a fishway, by requiring ERO proposal notice for minimum 30-day public review and comment period, could pose a risk to persons and the environment.
• Delaying the removal of a substance or matter that was thrown, deposited, or discharged in a lake or river or on it’s banks by requiring an ERO posting of a proposal notice could pose risk to persons and the environment.

Following the completion of this consultation period, the Minister will consider any comments made. The Minister may recommend to  MECP, proposed amendments to O. Reg. 73/94 under the EBR Act to exempt the five LRIA orders from the requirements of Part II of the EBR Act except for the requirement to post a decision notice.

The posting and public consultation requirements under the EBR Act are separate and distinct from the Crown’s duty to consult with Indigenous peoples. The ministry will continue to assess whether LRIA orders have the potential to adversely impact Aboriginal or treaty rights and will consult Indigenous communities where required.

Regulatory impact analysis

We anticipate the environmental consequence of this proposal would be positive as action to stop and/or prevent environmental harm could be pursued more quickly. 

We anticipate that the social and economic consequences of the proposal would be neutral.

This proposal would not create new administrative costs to businesses in Ontario.