Construction of the Lower Mattagami hydroelectric dam project.
Credit: Ontario Power Generation
On July 8th, 2020, the Ford government introduced Bill 197, the COVID-19 Economic Recovery Act, a piece of legislation that would modify 20 existing laws, perhaps most notably the Environmental Assessment Act. A mere two weeks following its introduction, Bill 197 was passed into law without any public consultation as required under the Environmental Bill of Rights.
Many Ontarians have taken to social media to express their concerns, while environmental groups such as Canadian Environmental Law Association (CELA) and First Nations Communities have opted to pursue legal action against Bill 197. Among critics of this piece of legislation is Auditor-General Bonnie Lysyk, who publicly stated that she will be conducting a report on the matter in the months to come. The Auditor-General referred to two portions of the bill as unlawful earlier this year. Despite Ford’s choice to “respectfully disagree” with her finding, it remains that Bill 197 is raising questions of whether the environment is being kept safe while Ontario moves forward with economic restoration initiatives.
While there has arguably not been a great deal of urgency attributed to this issue in the media, Schedule 6 of Bill 197 has been the subject of widespread public criticism for the last three months since it was passed. With a second window of opportunity for public input of Bill 197 approaching, it is important for Ontarians to understand exactly what's being changed, what the public should be concerned about, and how to take action.
Among the many amendments to the Ontario Environmental Assessment Act (EAA) that are set out in Bill 197, what may perhaps be deemed the most significant is Ontario’s Project Proposal List. Prior to the changes brought by Bill 197, all public sector undertakings were automatically subject to the EAA unless exempted. Private sector projects were also subject to the legislation, provided that they were designated as “major”. In the amended version under Bill 197, however, only 13 project types are included in the list of proposed projects that will undergo an environmental assessment, while all others are either subject to the “streamline” process that has yet to be defined, or, alternatively, will not be required to undergo any assessment. The EAA’s federal counterpart, the Impact Assessment Act, on the other hand, has a total of 61 project types in their respective project list. Needless to say, these modifications point to a significant narrowing of the applicability of environmental assessments under the reformed legislation.
The changes laid out in Bill 197 provide the Cabinet with unrestrained discretion in selecting which projects are subject to undergo an environmental assessment. The Ontario provincial government has stated that the current list was crafted with "experience", a parameter that many public critics of the legislation would consider to be troubling and unclear. This lack of transparency, many are concerned, may be an indication that Ontario’s “modernization” of environmental assessment processes will, instead, weaken the province’s environmental policies.
By requiring fewer major public and private projects to undergo an environmental assessment, a plethora of standards that were once upheld by Canadian environmental law are now being tossed aside. Within the global context of climate change, important considerations such as the site location, technological choices and project designs must remain important factors when weighing the potential nature and magnitude of the environmental impacts of a project. Given that no criteria can be found in the amended EAA, its purpose statement, or the definition of "project" justifying how these decisions relating to environmental assessments are and will be made, questions concerning the credibility of this legislation continue to arise.
Among those most significantly impacted by the changes set out in Bill 197 are Indigenous communities in Ontario, some of which have sought legal action against Bill 197. Though the reformed EAA does preserve specific consultation rights for Indigenous communities, the modifications also accelerate land claim settlement projects and other agreements with Indigenous communities. As a result, Schedule 6 has come under fire for neglecting to acknowledge that the Government of Ontario has an obligation to consult and accommodate Indigenous communities in accordance with section 35 of The Constitution Act, 1982. Ontario’s re-designed EAA violates constitutionally protected Aboriginal and treaty rights, failing to recognize that Indigenous consultation rights are overarching, and are therefore engaged regardless of the amendments proposed by Bill 197. Bill 197 creates a risk of the pre-approval of streamlined projects that may violate these rights, which may in turn require the need for judicial intervention. This would mean that the Indigenous communities in question would be at an increased risk of the disproportionate siting of polluting infrastructures [such as mines and pipelines] in their communities, among other identified vulnerabilities.
Another problematic component that has arisen as a result of the claimed modernization of the EAA is its limitations on public participation. Under this re-write of the EAA, members of the public cannot file a request to have a project require a comprehensive environmental assessment as opposed to the streamlined process as laid out in the new framework. The new sections allow for one exception: Indigenous communities seeking elevations of Class EA in the event that the project may have adverse impacts on treaty or s. 35 Aboriginal rights. Even so, it remains within the Minister’s discretion to either grant or deny this request.
Many questions remain to be addressed by the Ontario government in response to the expressed public disapproval of Bill 197’s impact on environmental assessment processes in Ontario. Though the public comment period on the proposed list ended on November 10, 2020, Ontario has stated there will be another round of public consultation on the draft regulation. The re-design of the EAA under Schedule 6 of Bill 197 is regressive in its nature, shifting away from an opportunity to seek a recovery from the COVID-19 pandemic that would ensure a green, sustainable future for all - one that is based on equity. By relaxing the pre-existing Ontario Environmental Assessment regulations, removing laws that protect Indigenous sovereignty, and limiting the public’s right to meaningful participation, Bill 197 is moving us backwards instead of forward.
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