No Checks and Balances
If the Harper government has their way, the limited responsibility of the Canadian Environmental Assessment Agency (CEAA) will be downloaded onto the provinces. In the current budget, the federal government has already done that for all projects funded under the pork barrel commonly known as the Infrastructure Fund.
In Ontario, this means that environmental responsibility will be downloaded onto an environmental assessment (EA) process that the Environmental Commissioner of Ontario (ECO) has outright declared as “broken”.
Ontario’s environmental protection process is broken in so many ways that a full discussion of these problems is well beyond the scope of this blog. Instead, we will focus on arguably the most crucial issue – the almost total lack of checks and balances in the EA process.
The Ontario Environmental Assessment Act (EAA) sets out a decision-making process to be used by government ministries, municipalities, and the private sector that is intended to promote sound environmental planning.
The EAA establishes a minimum process for EAs and further defines that Classes of projects that routinely occur (such as municipal roads), can be defined by the Ministry of Environment (MoE) along with a Class EA process that such projects are to follow.
For example, the MoE decided long ago that the Class EA process for municipal projects is defined by the Municipal Class EA (MCEA) process and that the responsibility for the MCEA process was to be downloaded onto the Municipal Engineers Association of Ontario. This is a professional association of the civil engineers who build municipal roads and infrastructure – having no expertise in ecological or natural environment matters.
Furthermore, since everyone expects that municipalities and provinical government ministries and agencies will act responsibly, the EAA defines that Class EA projects are to be “proponent-driven”.
This puts class projects into a different league than those done by the private sector. There are no checks on the Class process followed by a proponent, nor are there counter-balances that can be used to enforce compliance even if process irregularities are reported. Meanwhile private sector proponents have to implement a process monitored by the MoE, creating a Do As I Say and Not As I Do situation.
This also means that provincial authorities such as the MoE and Ministry of Natural Resources (MNR) have actually no authority to tell municipalities how to conduct an EA. At best, they provide an advisory role to municipalities and, except for their role in granting various permits that may be required for a project, have no authority to tell a municipality to shape up.
For example, the MoE cannot tell the City of Ottawa that the Terry Fox Project is overdue for public consultation and is unable to compell the City to review a decade’s worth of changes to the project with the residents who will be affected by it.
The MCEA process relies entirely on the City determining, on its own, that sufficient changes to project scope or context have occured to warrant the effort of preparing an EA Addendum (which effectively restarts the EA process).
No Public Comment
Ontario’s Environmental Bill of Rights (EBR) doesn’t help matters because, under Section 32, ministreies do not have to provide an opportunity for public comment for permits issued to implement a project that has been approved by the EAA.
This means that once an MCEA project is approved by the filing of a Notice of Completion for the EA that was done, there is only a narrow 30-day window in which it can be challenged.
Even though the project may not be implemented for years afterward, or may even be changed in scope subsequently, there is no opporuntity for further public intervention in the process.
Meanwhile a municipality can make significant changes, apply for permits, and obtain approvals for those changes all without public review and comment. Depending on the permit application involved, there may be a limited window for comments on the application, but this is spotty and relies on public monitoring of little-known registries where these permit applications are posted.
Take the example of permits to take water. Private-sector proposals to take water from wells, streams or lakes are posted on the Ontario Environmental Registry for public comment in case there may be concerns about significant environmental impact. If the public continues to have concerns once a permit to take water is issued, the EBR provides the right to request an appeal. An independent tribunal applies strict criteria to decide whether or not to grant the appeal, hears the case if an appeal is granted, or facilitates a settlement.
But if a municipality wants to take water, it is only required to go through an EAA process and no EBR notice is required. Hence a change to a project involving the routing of a storm or sanitary sewer can be done silently after the 30-day Notice of Completion window has expired.
The public misses important opportunities to provide input on municipal water-taking approvals even though water quality and quantity issues have been of concern for many Ontarians since the Walkerton incident.
Enter The Clowns
The net result is that:
- municipalities can and do assert that they are compliant with the EA process when often they are not. In fact, they can make a total mockery of the process and get away with it.
- the municipal EA process is effectively regulated by a non-governmental body having no public accountability.
- there is no ecological natural “environment” expertise mandated in the EA process at all.
- there are no checks on the process and even if there were, there are no balancing forces to assure the outcome intended by the EAA.
- there is no tribunal that the public can appeal to when a municipality violates their trust. Their only recourse is an expensive application to the court system where they will face an opponent funded by their own tax-dollars!
Is this how we want to protect our environment?