ontario’s environmental bill of rights (ebr): …...ontario’s environmental bill of rights...
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Ontario’s Environmental Bill of Rights (EBR): Your Environment, your Rights
EBR Training Workshop March 4 and 5, 2014
With the Sustainability Network and the Ontario Professional
Planners’ Institute
WELCOME!
EBR Training Workshop you’ll learn about:
the Environmental Registry
Applications for Review
Applications for Investigation
Appeals
the work of the ECO
Why do we need the EBR? Before EBR:
• Little transparency: ministries could make rules and
policies behind closed doors
• No obligation to consult the public (although some would
do so)
• No obligation to explain how they made their decision
The Environmental Bill of Rights: (EBR)
worth using
has limitations; deal with it
better input = better results
The Environmental Bill of Rights: (EBR)
The EBR is designed to provide:
• Public Participation
• Transparency
• Accountability
What is under the EBR umbrella: 15 ministries, including:
Ministry of the Environment
Ministry of Natural Resources
Ministry of Agriculture and Food
Ministry of Energy
Ministry of Municipal Affairs and Housing
Ministry of Northern Development and Mines
Ministry of Transportation
Achievements of the EBR Tools that work:
The Environmental Registry
Applications for Review and Investigation
Appeals
Environmental Commissioner’s Office
The Environmental Registry www.EBR.gov.on.ca
The Right to Know and Comment The Environmental Bill of Rights gives you the right to:
know about environmentally significant decisions the
Ontario government makes; and
have a say in the decision-making process
The Environmental Registry
A searchable on-line database of government
proposals and decisions that affect the environment
Ministry of the Environment
The Environmental Registry Environmentally
significant policy, act, regulation or instrument (e.g., permit or approval)
Environmentally significant policy, act,
regulation or instrument (e.g., permit or approval)
The Environmental Registry
Proposal notice: • Description of
proposal • Links to proposal
and background material
• Contact info • How to comment
The Environmental Registry
The Environmental Registry Decision notice: • Description of
decision • Links to decision • Comments
submitted online • Effects of
consultation
The Environmental Registry
Invasive Species Act
Environmental standards for end-of-
life vehicles
Provincial Fish Strategy
Permits to Take Water
Exploration permits under the Mining Act
Environmental Compliance Approvals
Shows you what ministries are working on
Lets you comment before decisions are made
Shows you the comments of other people
Shows you how the ministry considered public comments
The Environmental Registry
A huge historical database
Over 30,000 proposals (1995-now)
The Environmental Registry
In an average year, about 2,500 proposals are
posted on the Registry
• About 80 proposals are for policies, acts and
regulations
The Environmental Registry
Ontarians use the Registry
10,034 comments
187 comments 193 comments
244 comments
Registry Comments DO Influence Decisions
For example, the Ministry of the Environment used the Registry to consult the public on requirements for preparing source protection plans.
86 comments
As a result, the ministry: • clarified provisions • broadened the scope for source
protection plans • enhanced provisions for
consultations with First Nations
Using the Environmental Registry Browse the Registry for notices
Quick Searches (Notices posted today/this week/this month)
Notices open for commenting
Content of Proposal Notices and Decision Notices
Search the Registry for notices on a particular topic
Filtering by keyword, proponent, ministry, notice type, time period, geographic area
Submit comments on a proposal
View comments submitted by others
Read how public consultation affected the decision
FAQs, useful links and information how to use the Registry
The Environmental Registry www.EBR.gov.on.ca
Environmental Registry Tips
Change default year in your Advanced Search
To see the proposal notice on an already made decision, you
must click on the link on the bottom of the decision notice
Be wary using Keyword and Geographic Location Filters
Note that formatting in your comments may be lost
Keep your comments polite, specific and succinct
The Environmental Registry is not a petition or vote
You might be left out of the loop on new laws, regulations and
policies
You might be kept in the dark on changes to environmental
approvals and permits in your neighbourhood
What you LOSE if you
Don’t Search the Registry
Your comments won’t be part of the permanent public record
Ministries are not obliged to consider your comments when
making a decision
Ministries are not required to explain how public consultation
affected a decision
The Environmental Commissioner of Ontario won’t have access to
your comments when reviewing the ministry’s decision
May not consider and raise your comments in our Annual Reports
What you LOSE if you Don’t
Comment via the Registry
The Environmental Registry
Overall, the Environmental Registry is a powerful tool!
Applications for Review
There really ought to be an
environmental law about that!
That Act needs to be updated to
ensure environmental
protection!
That environmental policy isn’t working!
Applications for Review You can request a review of an existing
provincial policy, Act, regulation or instrument
(e.g., permit)
The Mining Act Road Salt Exemption
A Permit to Take Water
Land use planning system for northern Ontario
Applications for Review You can also request a review of the need for a
new Act, regulation or policy
Protection for the Waterloo Moraine
Applications for Review The ECO receives about 20 applications for review
per year
Ministry of the Environment (54%)
Ministry of Natural Resources (26%)
Applications for Review The ECO receives about 20 applications for review
per year
Municipal Affairs and Housing (9%)
Northern Development
and Mines (5%)
Energy (4%)
Agriculture and Farming (1%)
Consumer Services (1%)
Ministry of the Environment (54%)
Ministry of Natural Resources (26%)
Applications for Review - Results Over the past 20 years, Ontarians have submitted over 650 applications for review
Applications for Review - Results
Undertaken (15%)
Over the past 20 years, Ontarians have submitted over 650 applications for review
Applications for Review - Results
Ministry action taken (79%)
For example: • New legislation • Amendments to regulations • Changes to approvals
Over the past 20 years, Ontarians have submitted over 650 applications for review
Applications for Review - Results
Denied (80%)
Over the past 20 years, Ontarians have submitted over 650 applications for review
Applications for Review - Results
Denied but ministry action
taken (32%) Denied (80%)
Over the past 20 years, Ontarians have submitted over 650 applications for review
Application for Review - Example Review of the Aggregate
Resources Act REQUESTED
• New reporting requirements for aggregate operators
• New powers for ministry inspectors • Expanded the Act’s geographic scope • Increased fees/royalties for operators
Ministry of Natural Resources
Application for Review - Example New regulation to make
clothesline restrictions invalid REQUESTED
Restrictive covenants and agreements that ban the use of outdoor clotheslines are illegal
Ministry of Energy
Application for Review - Example
Application for Review Oak Ridges Moraine
Conservation Act Application for Review
Application for Review - Example
Application for Review Provincial Parks and Conservation
Reserves Act Application for Review
Reasons Why Ministries Might Turn Down Your Application
1. You are asking the ministry to review a decision that was made in the past five years
2. The public has already had an opportunity to participate in the decision’s development
3. The public interest does not warrant a review • No potential for harm to the environment • Issues raised already subject to periodic review
4. You raised issues outside the ministry’s mandate 5. The ministry lacks the resources to undertake the review
Do your homework
Find out what you can and cannot request (see O. Reg. 73/94)
How to Prepare an Application Excellent
^
www.eco.on.ca
Acts and ministries prescribed under the
EBR
Application form
How to complete the form (including sample
forms)
Submission process and timelines
www.eco.on.ca
Do your homework
Find out what you can and cannot request (see O. Reg. 73/94)
How to Prepare an Application Excellent
^
www.eco.on.ca www.e-laws.gov.on.ca
Research the issue
Search the Environmental Registry for related proposals and decisions
Search through past ECO Reports and Supplements for applications on similar topics
Make your request specific and try not to duplicate
Make your application logical and clear
Frame your request so that exceptions do not apply
Decision made in the past 5 years?
Periodically reviewed?
How to Prepare an Application Excellent
^
Gather and include supporting material and evidence
Transparency, accountability and timelines
Notification of receipt by ministry (20 days)
Deadline for ministry’s accepted/denied decision (60 days)
Review within “a reasonable time”
What you LOSE if you don’t use
EBR Application for Review process
Your request won’t be included in the ECO’s annual
report to the Ontario Legislature
Your concerns won’t be highlighted by the ECO
Applications for Review
www.eco.on.ca
Applications for Investigation If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Applications for Investigation If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Noise, vibration or air
emissions
Applications for Investigation If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Damage to the habitat of an endangered species
Applications for Investigation If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Leachate from a landfill
Application for Investigation - Example Investigation of noise from
agricultural mill REQUESTED
• Charges laid against company under the Environmental Protection Act
• Company fined $15,000 and required to take noise abatement measures
Ministry of the Environment
The ECO receives about 10 applications for
investigation per year
Technical Standards &
Safety Authority (1%)
Applications for Investigation
Ministry of Natural Resources (19%)
Ministry of the Environment
(80%)
Legislation most cited:
Environmental Protection Act (65%)
Section 14 – Prohibits discharge of a contaminant into the
natural environment that causes an adverse effect, including:
Injury or damage to property or plant/animal life
Harm or material discomfort
Loss of enjoyment of normal use of property
Interference with normal conduct of business
Applications for Investigation
Legislation most cited:
Environmental Protection Act (65%)
Ontario Water Resources Act (34%)
Environmental Assessment Act (14%)
Fisheries Act (10%)
Applications for Investigation
Applications for Investigation - Results
Undertaken (24%)
Applications for Investigation - Results Ministry action
taken (74%)
For example:
• Laying of charges • Provincial Officer’s Order
Applications for Investigation - Results
Denied (76%)
Applications for Investigation - Results
Denied but ministry
action still taken (35%)
Denied (76%)
Applications for Investigation - Denied
Why ministries deny applications:
Would duplicate a completed or ongoing
investigation (45%)
Contravener has been brought into
compliance (43%)
No jurisdiction, or limitation period has
expired (40%)
Application for Investigation - Example Investigation of sewage issues
in provincial parks REQUESTED
Ministry of the Environment
• Ministry requested that specific parks address issues of non-compliance
• Provincial Officer followed-up to ensure compliance
• Ministry encouraged parks to enhance sewage management practices
The Environmental Commissioner reviews and reports on ministries’ handling of applications
EBR Applications - Oversight
Applications for Investigation: your step-by-step
gather evidence, witnesses
is the contravention “prescribed”?
two Ontario residents
sworn statement of belief (lawyer, notary public)
fill out application form
make a copy for yourself
one copy to Environmental Commissioner
be patient
Applications for Investigation:
Should you contact the ministry first?
It depends.
Applications for Investigation:
Should you contact the ministry first?
It depends.
Notification of receipt by ministry (20 days)
Deadline for ministry’s accepted/denied
decision (60 days)
Investigation within 120 days or ministry’s
written estimate
ECO’s independent review
ECO’s report to the Ontario Legislature
Elevates your concern within the ministry
What you LOSE if you don’t use
EBR Application process
Over the past 20 years, Ontarians have submitted:
650 applications for review and 237 applications for investigation
EBR Applications
How to Submit an EBR Application
www.eco.on.ca
Appeal Rights under the EBR
EBR Training Workshop March 4 and 5, 2014
With the Sustainability Network and the Ontario Professional Planners’ Institute
EBR Appeals
EBR creates a right for individuals to appeal certain
ministry decisions to issue an instrument to another
person or business
Where the instrument holder itself has a direct
right to appeal
Any resident of Ontario can also appeal if they
have “an interest in the decision”
EBR Appeals
Another important tool designed to provide:
Opportunity for public involvement
Accountability
Third-Party Appeals
Not an automatic right to appeal
Must first be granted “leave” (permission) to appeal
Two-part test – must demonstrate:
No reasonable person could have made the decision
Decision could result in significant environmental harm
Applying for Leave to Appeal
Leave to Appeal Application must include:
A statement describing your interest in the decision
Identification of the portions of the instrument you seek to appeal
The “grounds” you are relying on in seeking leave to appeal, namely: the reason(s) why you think no reasonable person could have made the decision; and the reason(s) why you think the decision could result in significant harm to the environment
A statement of all facts and evidence you are relying on in support of your application
Environmental Review Tribunal website: http://www.ert.gov.on.ca
Timeline for Seeking Leave to Appeal
Applicants have 15 days to file their request to
appeal.
The Tribunal has been unequivocal that this is a firm
statutory deadline.
15 Days!
Third-Party Appeal Process
Obtaining “leave” is a hurdle
But a feasible one
Roughly: 1 in 5 succeed
Third Party Appeals
Those who do overcome the hurdle
get to present their full arguments
to the Tribunal
In most cases, achieve some level
of success (often the addition of
conditions to the approval)
Third Party Appeals
Best used legal tool under the EBR
Over 150 requests for leave to appeal since EBR was
enacted (about 100 instruments)
~6 instruments in an average year
ECO posts summaries of each appeal on the
Environmental Registry, and highlights some in our
Annual Report
What’s being appealed?
About 95% of EBR leave to appeals are challenging
MOE decisions on:
Permits to Take Water (31%)
Air approvals (28%)
Waste approvals (21%)
Sewage approvals (15%)
Water
Takings
Air Approval
Waste Approval
Sewage Approval
Other
Appeal – Example
MOE granted a Permit to Take
Water to a hydropower operator
An individual requested leave to
appeal raising several grounds:
River was “at risk”; further studies were
needed to assess impacts of dam on river
Water temperatures below dam too warm
for fish
10-year duration of PTTW too long
Appeal – Example
Outcome:
Environmental Review Tribunal
granted leave to appeal on all grounds
Parties engaged in mediation
Reached settlement – changes to the PTTW:
Duration 5 years, not 10 years
New clauses about dam operation
Record-keeping requirements
Run-of-the-river flow to be restored ASAP after power
interruptions
EBR’s Leave to Appeal
• Another tool that works!
Using the Reports of the ECO
Presentation to Sustainability Network
March 4, 2014
Mike Parkes, [email protected]
The ECO’s Annual Reports
Learn about:
• Environmental decisions by ministries
• Ministry responses to applications for review and investigation
• Current and emerging environmental issues
• How well ministries co-operate with the ECO
• How well the Environmental Registry is working
• ECO Recommendations to ministries
• All on-line and searchable; our Supplements have even more detail
The ECO’s Expanded Mandate In May 2009, the Green Energy and Green Economy Act, 2009
amended the EBR, mandating the ECO to also report annually on:
Progress of activities in Ontario
to reduce greenhouse gas
emissions
Progress of activities in Ontario to
improve energy conservation
(all fuels) – 2 vol per year
Special Reports
The ECO may also produce special reports “at
any time on any matter” related to the EBR,
e.g;
Adapting to climate change
Biodiversity
“Eco fees”
budgets for MOE & MNR
Strengths of ECO Reports
Unique reference source for environmental issues:
Plain language explanations of how Ontario environmental laws and
policies work (often only source)
Current information not otherwise in public domain (based on ECO
information requests to ministries)
Ontario-focused viewpoint
Fair praise or critique of ministry decisions (politically neutral),
based on environmental implications
Uses of ECO Reports
Improve the quality of your organization’s policy and advocacy work (Environmental Registry comments, Applications for Review/Investigation, meetings with government, etc.)
Historical perspective with 20 years of analysis: identified concerns, attempts to change laws, ECO comments, etc.
Case studies for Applications for Review/Investigation (particularly Supplement) :
Why do Applications succeed or fail, and how can you improve your Application’s chances?
Where to Find ECO Reports Memory stick:
Comprehensive
catalog of all
reports through fall
2013 (.pdf format)
Plain text search
through Adobe
Reader
(Edit->Advanced
Search)
Where to Find ECO Reports Website (www.eco.on.ca) :
News, Reports & Publications – specific reports
Blog and social media – updates between reports
ECO Issues – topic searches (Wiki)
Environmental Commissioner of Ontario
ECO Twitter Accounts
Ontario’s Environmental Bill of Rights
Thank you!