The Ontario government is revoking a regulation it passed on April 1 that suspended a wide range of environmental protection laws. Citing COVID-19 as the reason, the regulation allowed the government to bypass part two of the Environmental Bill of Rights.
Established in 1993, the EBR was created to allow Ontario residents to participate in environmental decision-making. Bypassing part two “was a green light for going ahead and making decisions on things without the public knowing and being able to comment,” says Rob Wright, a lawyer for Ecojustice, an environmental group.
Typically, when an environmental change is proposed, the government must post it to the environmental registry and provide a comment period during which the public can voice concerns. After hearing the comments, the government decides whether to go ahead; make a change, or reject the proposal. Under certain circumstances, the public is also able to seek a leave to appeal at a higher tribunal.
By removing this, it allowed the government to bypass certain checks and balances in the decision-making process during the pandemic. The problem with this is that the regulation covered more than just issues pertaining to COVID-19; it increased the government’s power to make decisions about all environmental policies without anyone keeping them in check, Wright says.
In his opinion, the regulation was “over the top.” He points out that there is a clause already written into the EBR that lets the government skip public consultation in the case of an emergency. “If some kind of project came up…they could have used this provision to dispense with the comment period,” he says. Instead, the government did away with consultation altogether.
Some changes were listed on the government website, albeit without a comment period, including an extension of the deadline on when industries had to report their greenhouse gas emissions. But what worries Wright is how many changes were possibly made and not listed. To keep the government transparent about these changes, Ecojustice submitted an application for review on May 14.
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The first part of this application asked that the government review the regulation and revoke it. The second part of the application asked “for transparency as to what was decided during this period of exemption and to give opportunities for comment, and, potentially, leave to appeal if someone wanted it,” Wright says. Ecojustice expects to receive an answer to the application in July.
Other groups in Ontario have taken similar stances. The Federation of Ontario Cottagers’ Associations released this statement: “FOCA believes that to respect the public’s right to know and participate, the Province should retroactively disclose all proposals for laws, policies, regulations, and instruments which would have been posted for comment, if not for the suspension regulation, and restart the comment period on those items which are not urgent COVID-19 actions.”
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Currently, there is no word on why the government suddenly decided to revoke the regulation or whether it will open comment periods on changes made over the past two and a half months. “It is now much better than it was with this being revoked and part two being put back in place,” Wright says. But “it’s not a complete assurance because we have yet to actually see a full list.”