STANDING COMMITTEE ON GENERAL GOVERNMENT
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
MINISTRY OF ENVIRONMENT AND ENERGY
CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY
CONCERNED CITIZENS OF RENFREW COUNTY
CONSERVATION COUNCIL OF ONTARIO
CONTENTS
Thursday 21 October 1993
Environmental Bill of Rights, 1993, Bill 26, Mr Wildman /
Charte des droits environnementaux de 1993, projet de loi 26, M. Wildman
Ministry of Environment and Energy
Bob Shaw, implementation coordinator, environmental bill of rights office
Sharon Suter, coordinator, environmental registry, environmental bill of rights office
Canadian Institute for Environmental Law and Policy
Anne Mitchell, executive director
Dr Mark Winfield, research director
Morgan Gardner
Marsha Valiante; Paul Emond
Concerned Citizens of Renfrew County
Ole Hendrickson, spokesperson
Conservation Council of Ontario
Duncan MacDonald, president
Chris Winter, executive director
STANDING COMMITTEE ON GENERAL GOVERNMENT
*Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)
*Acting Chair / Président suppléant: Grandmaître, Bernard (Ottawa East/-Est L)
*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
Arnott, Ted (Wellington PC)
Dadamo, George (Windsor-Sandwich ND)
*Fletcher, Derek (Guelph ND)
*Johnson, David (Don Mills PC)
*Mammoliti, George (Yorkview ND)
Morrow, Mark (Wentworth East/-Est ND)
Sorbara, Gregory S. (York Centre L)
*Wessenger, Paul (Simcoe Centre ND)
White, Drummond (Durham Centre ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Lessard, Wayne (Windsor-Walkerville ND) for Mr Dadamo
Offer, Steven (Mississauga North/-Nord L) for Mr Sorbara
Mathyssen, Irene (Middlesex ND) for Mr Morrow
Tilson, David (Dufferin-Peel PC) for Mr Arnott
Wiseman, Jim (Durham West/-Ouest ND) for Mr White
Clerk / Greffier: Carrozza, Franco
Staff / Personnel: Luski, Lorraine, research officer, Legislative Research Service
STANDING COMMITTEE ON GENERAL GOVERNMENT
THURSDAY 21 OCTOBER 1993
The committee met at 1003 in committee room 2.
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
Consideration of Bill 26, An Act respecting Environmental Rights in Ontario / Projet de loi 26, Loi concernant les droits environnementaux en Ontario.
The Chair (Michael A. Brown): The standing committee on general government will come to order. I would like to report to the committee that we had a subcommittee meeting on Monday afternoon. At that committee meeting there was agreement of the committee that we would start today by discussing procedural matters. As members of the committee know, there were a number of outstanding issues related to the scheduling of this committee's time. I will begin by entertaining any suggestions on how we deal with those procedural matters. Mr Mammoliti.
Mr George Mammoliti (Yorkview): I move that in the time remaining this morning the committee be given a technical briefing by the Ministry of Environment and Energy.
That the clerk of the committee be authorized to schedule the following witnesses to appear before the committee this afternoon for half-hour presentations: Mark Winfield (Canadian Institute of Environmental Law and Policy); Laidlaw; Marsha Valiante (lawyer/academic); Ole Hendrickson (Concerned Citizens of Renfrew County); Mimi Keenan. If a representative of Laidlaw is not available, he or she will be placed back on the waiting list and the Ontario Mining Association shall be invited to appear. If any of the above-named representatives are unable to attend, he or she will be placed on the waiting list and Morgan Gardner (academic) will be invited to appear.
That the clerk be authorized to schedule witnesses on the morning and afternoon of October 28 from the list of witnesses that have already contacted him. They will be scheduled on a first come, first serve basis from the existing list, with any new additions to be added to the bottom of the list. Presentations to the committee on October 28 will be 20 minutes in length for each witness.
Advertising in the daily newspapers will start immediately notifying the public that hearings have commenced and written submissions will be accepted until November 2, 1993.
The Chair: Do you wish to speak to your motion?
Mr Mammoliti: I don't think there's a real need to get into the history in terms of how we've gotten here. I need to put on record that I'm very disappointed with how the subcommittee has dealt with this, not at this level, not on this side of the committee, because we have certainly tried to be accommodating. We have literally bent over backwards to accommodate both the Liberals and Conservatives. On a number of occasions, after we've done that, after I've done that, they had changed their minds at the last minute and decided to renege on certain issues.
That, to me, is very disturbing, and it's not this committee only that suffers; it's Ontario that suffers with this kind of attitude. I will certainly be trying to convince not only my colleagues but the House leader to relay what has happened and why we've had to introduce a motion such as this one to the environmental community out there and let them know exactly who is holding up the process and let them know that, in our opinion, it's being done intentionally.
I'll close by saying that we've tried. We've tried to cooperate with the Liberals; we've tried to cooperate with the Conservatives. We've done it in a way that I believe hasn't been done in the past. We have given in on a number of occasions in terms of issues and areas that we felt strongly about in order to expedite the process. But they continually held things up and continually have forced our hand into putting this motion forward today.
I'm looking forward to continuing the hearings. I'm looking forward to not only hearing from the ministry but hearing from the witnesses we have planned before us this afternoon and on the 28th. In my opinion, and I think I speak for our side of the committee, if there are any further delays, it could jeopardize any communication of this bill to the rest of Ontario, which could leave environmentalists and Ontarians very upset. Frankly, I hope I don't see that.
I hope we can have a very brief debate on the motion. I'm sure that both the Liberals and the Conservatives have got something to say about the motion and I'm quite willing to listen to them, as I have in the past. But at the same time, on record, it's my guess that they're going to try to weasel their way into stalling this as long as they can. Frankly, I hope that's not the case. I hope we can get on with the hearings. I hope we can get on with the ministry briefing.
The Acting Chair (Mr Bernard Grandmaître): Thank you, Mr Mammoliti. I'm advised by the clerk that you should review the advertising period, the fact that the scheduled witnesses on the morning and afternoon of October 28 and your advertising in daily newspapers will start immediately, notifying the public that hearings have commenced and written submissions will be accepted until November 2. So it only actually gives us -- is it two days, Mr Clerk?
Clerk of the Committee (Mr Franco Carrozza): The earliest we can get is the 26th and 27th.
The Acting Chair: The 26th and the 27th. Do you think we should be spending $15,000 for two days?
Mr Mammoliti: Yes.
The Acting Chair: Very good.
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Mr Steven Offer (Mississauga North): I've read the motion moved by Mr Mammoliti and heard Mr Mammoliti's opening comments and I have a few things to say about this.
Just to begin, I think the question you've raised as the Chair in consultation with the clerk to Mr Mammoliti on what exactly the advertising in the daily newspapers actually gives to the general public is but two days from not only notification of the acceptance of presentations but also telling the general public in this province that they have a couple of hours to write their presentation underlines and underscores the matter as it has been introduced.
Let me say firstly that what Mr Mammoliti has indicated in terms of reneging on certain agreements is untrue, and I think I'm allowed to say that because Mr Mammoliti has brought this matter up in his opening comments. I believe it need only be stated it is totally untrue in terms of what he has indicated.
I won't go into the subcommittee meetings at length, except to say that agreements between the representatives on the subcommittees, representatives of each party, were not possible. There were substantial differences of opinion as to the time that should be allocated to individuals and indeed the time that should be allocated for these hearings.
What we are left with is a very complicated piece of legislation. It's a piece of legislation which carries 126 sections -- that's exclusive, of course, of the subsections -- and should affect just about everybody in this province. It's a piece of legislation which I and my party spoke in favour of, in principle, on second reading. It's a piece of legislation which we believe carries with it the need, if not the demand, for the general public to have the right to make submissions.
We heard last week that the Minister of Environment and Energy has already acknowledged that there are amendments to the bill. He stated that. Where the amendments are and what they are, we do not know; in fact the general public does not know. So not only will there be, in essence, no public hearings, but in fact we do not have the full text of the bill as a result of the acknowledgement by the Minister of Environment and Energy.
We have a list of individuals that the member wishes to be heard. I have no objection to that. I believe they should be heard. But let's remember who this committee is not going to hear. Let us remember the people who have called the clerk even before advertising, who have said, "This is an important bill, a bill on which we want to bring submissions, our opinions, to the committee."
The actions by the government, by in essence saying, "Public hearings are going to be a day and a half," exclude the Ontario Corn Producers; Ontario Waste Management Association; Ontario Aggregate Carriers Producers; the Association of Major Power Consumers in Ontario; the Ontario Real Estate Association; Metro Toronto Works; Dow Chemical; lawyers from Fraser and Beatty; Dianne Saxe, a lawyer; a person representing the firm of Miller, Thomson; an individual representing the firm of McCarthy Tétrault; the Canadian Federation of Independent Business; Hazardous Materials Management from Metro Toronto; again representation from a law firm, Gardiner, Roberts; the Ontario Federation of Agriculture; the Ontario Sewer and Watermain Contractors Association; St Lawrence Cement; the Association of Canadian Distillers; the Ontario Forest Industries Association; the Ontario Mining Association; Falconbridge; WMI Waste Management; the Canadian Chemical Producers' Association; representatives from Cassels, Brock, another law firm.
Further will be excluded representatives from Northwatch; representatives from the Citizens Network on Waste Management; representatives from Rural Action on Garbage and the Environment; representatives from Green Work Alliance; an individual, Morgan Gardner; the Toronto Environmental Alliance; Citizens for Environmentally Sustainable Development in Vespra; the Conservation Council of Ontario. The Association of Municipalities of Ontario will also be excluded. The South Innisfil Ratepayers will also be excluded. The Citizens Environment Alliance of South Western Ontario and the National Farmers Union, Local 309, want to come and they're excluded.
The Nuclear Awareness Project is excluded. The Canadian Environmental Defence Fund is excluded. The Citizens Environmental Action Group is excluded. The Sierra Club of Eastern Canada is excluded. The Friends of the Earth, Canada, are excluded. Representatives from the law firm of Genest Murray are excluded. A citizen of this province, Kara Symbolis, will be excluded. Residents Opposed to Environmental Negligence will be excluded. Julie Pearce, a citizen, and Richard Taves, a citizen, will be excluded. Kathy Brosemer, the chair and project manager of Clean North, will be excluded. Representation from the Coalition on Niagara Escarpment will be excluded. The Ontario Environment Network, the waste caucus, will be excluded. Ducks Unlimited will be excluded. The Urban Development Corp will be excluded.
With the Ontario Mining Association there appears to be some effort made, but most likely it will be excluded. Professional Engineers of Ontario will be excluded. The Ontario Waste Management Association will be excluded. An individual from the association of PACT will be excluded. The Ontario Forest Industries Association will be excluded. Nirv Centre will be excluded. The Bruce Peninsula Environment Group will be excluded. Citizens for Public Justice -- goodness, could we use them here -- will be excluded. The Federation of Ontario Naturalists will be excluded. The Peace and Environment Resource Centre will be excluded. The Wildlands League will be excluded. The Thames Region Ecological Association will be excluded.
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Mr Chair, who else will be excluded is a representative from the Lung Association. They will be excluded, as well as the Eco-Council of the Peterborough Area. These are people who, before the ads have gone into the newspaper, said, "We want to come before this committee to make a presentation on this bill," a bill which as the Environment critic for my party I stood in support of in principle, but recognized that there were some significant areas that had to be dealt with.
I hoped, actually I thought, without question, that there would be public hearings, listening to the general public as to what this bill means to them, whether they are in favour of it, whether they are opposed. If they are opposed, why? If they are in favour, why? Does the bill go far enough? Does the bill go too far? Does the bill have implications that we are not aware of, for which we rely on the general public?
There has been a task force created which really was the genesis of this bill. I don't want to put words in the mouth of my colleague Mr Tilson, representative of the Progressive Conservative Party, but we felt -- and if he wishes to correct me, he will have that opportunity -- that it was really important, because the task force was the group that started this whole thing rolling, to hear from them.
What were some of the issues that were being discussed among the groups of the task force, people who represented Pollution Probe, people who represented the Canadian Manufacturers' Association, people who represented a variety of other groups? Does the bill encompass all that they hoped it would encompass? Is the bill falling short? We thought, what problem could there be to ask the task force to come before the committee so that we would have the opportunity to ask them questions on the bill? You can see by the motion moved by Mr Mammoliti that there is no representation from the task force.
Another issue which I feel very strongly about is that this is a very complicated bill. I believe the committee must do all that it can to listen to as many people as possible. Now, members of the government will say: "Well, there it is again. There it is. It's the opposition delaying the bill; the opposition delaying a bill that they spoke in favour of."
I recognize that there are sometimes committees that can't hear everyone that they want to hear, that they have certain time constraints. This bill does not fall into that category; it doesn't because this bill is basically hearing a small group of the number of people who want to be heard.
We are not going to be hearing from the major groups and associations that I believe have a great deal to give to a committee of this kind on a bill of this nature. That is not a matter of delay. It's a matter of, are you responsible or irresponsible? Are you going to pass a bill into law not being aware of the concerns, of the issues that groups such as Ontario Waste Management or the Association of Municipalities of Ontario may have?
I believe -- and I say this knowing I spoke in support of the bill in principle on second reading -- that it borders on the irresponsible to pass into law a bill where we have not heard from individuals. It borders on the irresponsible to pass a motion which gives groups and individuals in this province about two days' notice, that they have two days to build a presentation on a bill as complex as this. It is strange that we talk about a bill which is held up as the Environmental Bill of Rights, which I happen to have some questions about, and we do not give the public in this province the right to be heard.
It seems that a bill of this nature is sort of off on the wrong foot. Surely the government cannot be so afraid to listen to individuals who may, in the main, be speaking in favour of the bill, to parties and representatives of parties who, on second reading in the Legislature, spoke in favour of the bill. Let's not forget that we spoke in favour of the bill. Let's not forget that the general outline of the bill and the work of the task force was one of which we said, "Let's support it." Let's not forget that we also think that maybe, just maybe, there are individuals in this province who might have a tad more wisdom, a tad more expertise, a tad more experience in these areas than any member in this committee and in fact any member in the Legislature.
It behooves us, as members of the Legislature, to use our time wisely and well, and that would be to have full public hearings to allow people in this province the right to come before this committee to tell us what they feel is important about this bill.
Mr Jim Wiseman (Durham West): We could have had one submission already.
Mr Offer: I understand, and I can hear some of the heckling from the government members, but they heckle and interject only when there is the position put forward, why not hear some people from the general public? There may be the argument made that the task force went on a broad consultation process. I must tell you I am not fully aware as to the process of consultation that the task force did undertake. I will take it as a given that the task force did in fact speak to a number of individuals, but that is not consultation on the bill. Consultation on a bill and public hearings on a bill are a different focus than that which the task force has done. They did their job well, no question, but now we have a bill before us on which the general public should have the opportunity to share their thoughts with us.
It is a strange day when, on an Environmental Bill of Rights, we start off by excluding rights. It is a strange day when we exclude people from bringing forward their positions on a piece of legislation which carries with it an overriding purpose for residents of Ontario to be more in tune with decisions around the environmental area.
This bill has started off on a very bad footing. This bill already could have been in public hearings. It is silly that you will give public newspaper notice of 48 hours to the people in this province to say to them, "You read the newspaper, you must also have a presentation, it must be in to the clerk and you have 48 hours to do that." It is silly to do that. It is irresponsible to be supportive of anything like that. It is irresponsible to support a motion which carries with it the façade, the sham of public hearings when in fact there are none. It is irresponsible to say that you can deal with a bill of some 126 sections in a day. It is wrong for us as a committee to entertain this motion.
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Procedurally I recognize we must, but it is wrong for us as a committee to say yes to a motion like that, because if we say yes to this motion, then I will tell the people watching that the environmental representatives and the business representatives, those who support this type of motion, will have no argument when other bills come before this Legislature and they come before committees and say, "Listen, we represent an environmental group and we think that a bill should have full public hearings and we think it's irresponsible to have shortened or no public hearings."
Those environmental groups that support this motion -- I hope there are none -- if they do, will be reminded then, "Why could you not speak out when public hearings were being afforded in another area, under the Environmental Bill of Rights?" They set a very dangerous precedent, business groups and environmental groups that are not ready to stand up and say, "The procedure as outlined by the government is wrong," even though everyone has supported the bill. There are too many people who want to speak to this bill. There are too many people who have a wealth of experience whom we as legislators should hear.
Again, in response to the opening comment made by Mr Mammoliti, which I have said in the strongest terms is untrue, I could speak, Mr Mammoliti, on this, on principle --
Mr Mammoliti: On a point of order, Mr Chair: Is "untrue" parliamentary? Is he allowed to say that in committee? I can go into a huge comment in terms of how it --
The Acting Chair: "Untrue," as far as the Chair is concerned, is acceptable; he didn't call you a liar.
Mr Wiseman: What's the difference?
The Acting Chair: Well, "untrue" --
Mr Offer: If there's no difference to you, then --
The Acting Chair: Mr Offer, please.
Mr Wiseman: Then what Mr Offer is saying is equally untrue.
Mr Offer: So I will say, again with respect to where I was before I was interrupted, that the fact is that --
Mr Wiseman: I'm glad that you know we have new lexicon of words that we can use in the House.
Mr Offer: -- I could very easily, on principle, speak this day out. I could speak on this because this just goes against every grain in my body; this is just wrong. I don't have the legislative experience of a great many other people in this place, but I do have some and I do know what's right and what's wrong. Even if you are in favour of a piece of legislation where there are a great many people who want to be heard on it, we have the right, if not the responsibility, to hold public hearings. That doesn't mean to say you hear everybody, because we do have time constraints, but it does mean to say you try to hear some people. This bill fails for that reason; this motion fails for that reason.
I will not speak the day out, Mr Mammoliti, notwithstanding your assumption, because you have been proven wrong again. I will only urge that members of the government think about not only this bill but future bills, the people who want to be heard and won't be and your constituents, who may be calling you next week and saying, "We want to be heard on this bill." Think about what you are going to say. You are going to say no to them because you supported this motion. I ask you to think about that, to think about your constituents' rights, to give them a right to walk through that door as opposed to voting in favour of this motion which does nothing less than lock this committee room door. I hope everyone will unanimously vote against this motion.
Mr David Tilson (Dufferin-Peel): Listening to and reading the motion, I can say that the Progressive Conservative caucus is so upset with this motion that we're tempted to walk out, we're so insulted by the motion. However, we have to represent our constituents and walk through the procedure this government is setting up. But it is a most insulting motion to the people who are trying to obtain rights.
It's ironic that we're talking about an Environmental Bill of Rights, the intent of which is to stand up for the little guy, to allow the little guy to fight big government, and yet we're not allowing the little guy to come to these proceedings. We're being most restrictive. It's a most ironical procedure that the government boasts that it's sticking up for the little person, the person whom it perceives now as not having rights, and now it's not giving that same person the right to come to these proceedings, a most ironical twist of procedure.
I'm going to try to restrict my comments to the procedure which this motion is. I didn't rise on a point of order that it would be out of order, but the motion that Mr Mammoliti brought last week was that the deputy speak for the duration of this morning. He brings a motion that I assume he hopes we will say nothing on, that we will simply agree with it or disagree with it and not speak on it. Hence, the time that he was allowing for the deputy is simply going to be cut down completely. My guess is, and I have a few remarks to make, that there's no question the deputy or whoever's speaking on behalf of the ministry will not have the time to make an adequate presentation because of this procedural motion, unless Mr Offer and I simply say nothing.
I can understand your hope that we would say nothing, but we have an obligation to raise our objections to the procedure that you are proceeding with. So it's reluctant. My guess is that the ministry has much to say, and my further guess is that because you're only allowing a morning for the ministry staff to come to us we will have absolutely no time to ask questions of the ministry.
The ministry has its slide machine or its overhead machine set up and all ready and is ready to proceed, and I will try to make my comments brief so that we can hear from the ministry staff, but the fact of the matter is that you know and I know, and Mr Offer knows, that we will have little or no time to ask the ministry questions of concern that we have, technical questions. We may never know the answers to those things because of the motion which you set up last week.
The motion has now been passed by this committee. It restricts this committee to simply hearing delegations. There will be absolutely no time allowed for the members of the opposition or members of the government to ask technical questions of the ministry staff. You have precluded that.
My goodness, there's a list that has appeared on my desk, which I assume all members of the committee have, which has 46 names of people, and I assume this is a list of people who have expressed an interest to speak; the clerk is indicating that's correct. I certainly notice that of the names I had submitted to the subcommittee, of which I had about 20, some of them are on the list but a lot aren't.
My guess is that therefore, before advertising, we're up to 60 to 70 names of people who are going to speak. We're going to spend $20,000 on an ad for one day which we can fill, without advertising, with the people who have indicated an expression to speak. That's what the clerk informs me it's going to cost, approximately. We're going to spend approximately $20,000 for an ad simply to get written submissions. So the whole process of consultation is an unbelievable farce.
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I must say I have in the past specifically complimented Mrs Grier; I think I made the comment in the House in the second reading debate. I made the comment to Minister Wildman when he was here, complimenting the government on obtaining the support of business and the environment.
But I read today an article that came to me from the Ontario Urban Development Institute, which probably won't be heard at these hearings. Mr Morley Kells has written an article which, I might add, takes an indirect shot at the Liberals and the Conservatives for patting Mrs Grier on the back. I complimented her on the back because I was led to believe by members of the task force that there had been wide consultation with respect to this bill.
So even before we get to the task force, the consultation that the government is submitting took place did not take place. Since it did not take place, there are many people out there, such as the 60 names that we know exist now before advertising, who want to appear before us. Mr Kells -- I'm going to read some of his comments -- explains how he has not been heard on behalf of the Ontario Urban Development Institute. They want to come to this. I don't know whether they're on the list or not, but I expect that --
Clerk of the Committee: Yes, they are.
Mr Tilson: They are on the list?
Interjection: But they won't be heard.
Mr Tilson: The motion says, I might add, that the group this afternoon is going to have half an hour. The following group on the next day is going to have 20 minutes. I guess it's another example with this government that some people are more equal than others, that some people are going to have half an hour to speak and some people are going to have 20 minutes to speak. My guess is we'll have little time to ask those people questions.
It's a complete joke, it's a complete sham, the process that you're setting up for consultation, and I would ask the -- I don't know what you are, Mr Mammoliti; I suppose you're the caucus chair for the government.
Mr Mammoliti: It depends on whose eyes you're looking through.
Mr Tilson: I'm trying to be respectful to you -- the spokesperson for the government. But I would ask that the government take another look at what you're trying to do, and there's still time to do that.
Mr Kells, in this newsletter of October -- which is probably on your desks today; I just received it -- quoted Mr Wildman, the Minister of Environment and Energy, from Hansard on September 27, in the House talking about the wide consultative process, "The bill represents the outcome of a very highly successful consultative process."
Then he goes one step further and he says: "One thing, though, that the business community was very concerned about and that I understand, was the need for regulatory certainty, to know what the rules are and to know that the rules will be enforced or carried through fairly. This bill provides regulatory certainty for those who want to make decisions regarding investment in this province."
I listened to the minister and I believe what he said. He's the Minister of Environment. Hopefully, he's going to tell the truth. Hopefully, I'm going to accept what he says. Maybe that's from a naïve politician --
Mrs Irene Mathyssen (Middlesex): Ha. If you're naïve, I'm the Princess of Monaco.
Mr Tilson: Well, I believed him.
Here's Mr Kells's response in this newsletter: "Now all this reads well in the legislative record, but it is blatantly not true and MOE&E staff knows it, because I've told them so bluntly. As usual, some additional background is in order and then a look at the bill from our industry's perspective."
They have made submissions to the MOE which I don't believe ever reached the task force. They want to speak at this committee, but they're not going to be allowed to speak to this committee. They have some very constructive suggestions and they want an opportunity to be heard, and they're not going to be given that opportunity.
He says, "Let me assure you that the developers, the home builders, the renovators, the construction industry and the demolition people were not part of the process. Realizing this, the Council of Construction Associations" -- and that's COCA, as you know -- "a year ago spearheaded a meeting at which we all participated and prepared a submission to the minister," who then was Mrs Grier. "Roger Beaman of Thomson Rogers," a law firm in Toronto, as you know, "and a member of the UDI executive committee, helped craft the document which covered our collective concerns in detail." Then he talks about a letter that he wrote to the ministry which appears to have been ignored.
Then he says: "The task force was composed of business, government and non-government organizations. It should be duly noted that the closest thing to representation from the development industry was consultation periods with the Sewell commission."
That's the closest this government came to consulting these groups of people, and this is just one. I don't know; I fear that as time goes on there are going to be other newsletters that are going to come forward of people who are going to complain that they were not heard.
The purpose of the bill is to enable people to be heard. That's the sad part of it. You're boasting that the bill is going to give the little person the right to be heard and here we're not allowing the little person, or the big person, to be heard. We're not allowing a whole slew of at least 60 people, before advertising takes place, to be properly heard.
Then he continues, and I'll try to be brief because I honestly want to hear from the deputy but I want to put my strong concerns -- because you're going to pass this motion, notwithstanding the unbelievable amount of flaws in this. My goodness, what an absolute farce to spend $20,000 to advertise for people to come on the 28th and you're telling them right now: "You're not going to be heard. You're not going to be heard because the people who are on the list, we're going to take it in order. If you're lucky enough to write" --
Mr Mammoliti: Are you saying the written submissions aren't important, David?
Mr Tilson: I'm saying they have the right to be heard, Mr Mammoliti. They have the right to be heard by this committee and I, as a member of this committee, have the right to question them. You are precluding me as a member of this Legislature from the right to ask those individuals questions of clarification.
I suppose, because you're ramming this through, you could say, "Oh, you have the right to write them back and ask them questions; you have the right to phone them." I personally would like to hear other members of this committee ask those questions. I may not think of them. As Mr Offer says, we are not experts in this field. Many of these people are experts. I'd like to hear Mr Offer's questions. Believe it or not, I'd like to hear your questions and I'd like to hear answers to all of those. You've made this whole process an absolute, unbelievable farce.
Mr Kells continues by saying: "Attending the quarterly meeting of the housing interest group sponsored by the MOH, I found Dr Peter Victor, assistant deputy minister in charge of the Environmental Bill of Rights, explaining about the marvellous response of business to the EBR. I took umbrage with this and told him so and I asked him who it was that he consulted so deeply with. He answered: the Ontario Chamber of Commerce." That's it; that's the consultation. Can you believe it?
"I sighed heavily and then asked Dr Victor if the bill had been altered as a result of my letter and of COCA's submission. He said no. The bill would go to the Legislature in the same form as it was before our comments."
I have to retract my compliments towards Mrs Grier and Mr Wildman, because they didn't consult as they said they did. I hesitate to use the word "misled," Mr Chair, because I appreciate it's unparliamentary, but I was led to believe something that didn't happen. I was led to believe there was wide consultation, and here's at least one group, and I'm sure there are others, as time will reveal, that says there wasn't the wide consultation.
"As a result of this, the honourable Bud is marshalling this bill through the House unaware (I suspect) that anybody had any concerns whatsoever." He's being kind to Mr Wildman. Mr Wildman was led to believe that there was wide consultation and there wasn't. There wasn't the wide consultation and perhaps Mr Wildman was led to believe something that didn't happen, to be fair to him.
"UDI has warned about definitions, applications for review, right to sue and intervenor funding," and they're saying they will not be able to adequately come forward and present to this committee their concerns with those topics.
"The land and building industry (and municipalities) were not included in the task force. The task force decided that the EBR should apply to the Planning Act at least with respect to provincial policies and instruments. The task force claims to have used a consensus public consultation process to reach unanimous decisions on the content of the EBR. However, since the land and building industry was left out of the process, there are key problems with the proposed EBR from the development industry perspective remain."
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Again, I'm quoting extensively from this October newsletter from the Urban Development Institute.
"The EBR duplicates laws, powers and causes of action already in existence in other acts, including the Environmental Assessment Act, the Environmental Protection Act and common law causes of action. UDI questions the fact that the task force could not debate whether the EBR was necessary, given existing legislation, or whether amendments to existing legislation would be preferable to creating an entirely new statute."
You may say, Mr Mammoliti, that I'm reading this and fine, and they may give me a presentation and that's fine. I would like to ask them questions as a member of this committee. I would hope you, as an intelligent member of this committee, would want to ask them questions. Certainly I know Mr Offer would. We're not going to get that opportunity because of this motion.
Then he quotes myself as patting Mrs Grier on the back and he takes an indirect slap at me and perhaps well deserved, because I was led to believe by the minister that there was wide consultation. I'm afraid that Mr Kells has said I was misled. I was led down the garden path and I'm darned annoyed by that. When I compliment a minister of the crown and I'm doing it sincerely, and I did -- Mr Kells has taken a shot at me for doing that. When I read this, he's perfectly right in his annoyance. I shouldn't have patted the minister on the back.
He talks about going to committee: "Well, as you know, it's difficult to be perceived as being opposed to the EBR, and UDI is not, but we have our concerns and so do our business colleagues.
"Where I become nervous is this almost total acceptance by society that everybody was consulted by the mere stating that they were. Well, we weren't, and that's that."
So the misleading statements that have come out by the Ministry of Environment, the minister's office. I don't mean to take shots at --
Mr Mammoliti: On a point of order, Mr Chair: The word "misleading," is that parliamentary? If it isn't, I would ask that the member withdraw the word "misleading."
The Chair: I'm certain that Mr Tilson will make sure that he's in accordance with parliamentary procedure.
Mr Tilson: Of course, Mr Chair.
Finally, Mr Kells --
Mr Mammoliti: That's an excellent ruling, Mr Chair.
Mr Tilson: Finally, Mr Kells -- well, I'm reading Mr Kells. I'm reading, "Where I become nervous is" -- I'll read it again. You didn't hear me.
"Where I become nervous is this almost total acceptance by society that everybody was consulted by the mere stating that they were. Well, we weren't, and that's that."
He concludes by talking about lobbying. That's what this is all about. Members of the public, the little person, the lobbyists, the persons who have direct interest in the Environmental Bill of Rights, the big, bad company that may be doing improper things with our environment, the person who's trying to draw those issues to attention and the fact that they may in the past have not had the legal right, may support this legislation or may oppose this legislation, but many of them have things to say as to potential amendments.
Mr Kells concludes: "Lobbying is perceived by the public to be a negative exercise barely to be tolerated and subject to ridicule and suspicion. But what are you to do when the chamber of commerce is called your industry spokespeople?" And that's what the government is saying, that the chamber -- and I don't mean to criticize the chamber of commerce. I agree with a lot of what they say. They contribute a lot to our process. They're a very worthwhile organization. The fact of the matter is, the government's saying that the chamber of commerce is a spokesperson for all of these people.
I'm continuing on with Mr Kells: "And political party policy is prepared in a vacuum by little minds and utilizing hopelessly out-of-date theories with little or no consideration of the economy or the state of the government's finances.
"What are we to make of this continuation of slights in relation to the ruling party and slants in connection with the policy of the official opposition party?"
Mr Kells has taken a shot at the government and he's taken a shot at the opposition parties for being lulled into what you have said is a wide consultation process. Well, I'm not being lulled into the wide consultation process that you're putting forward today. It's a farce and you know it's a farce to allow less than half a day for consultations, and to allow another day, October 28, which is essentially four hours, is a farce.
Mr Wiseman: I have a few comments I would like to make. Since last Thursday, I have consulted with a large number of environmental groups that I have continuous contact with. I put to them very clearly the question of what they would prefer, that we hear everybody and therefore not get this bill until perhaps June or never, given the current atmosphere, or whether they would be prepared to put in written submissions in order to have their voices heard. Unanimously, and mind you it's a small sample, they agreed that it would be preferable to have the bill, that they would be prepared to put in written submissions because it's paramount in the eyes of the public that they get this bill.
I'd also like to point out that this has been going on since May 31, 1993. If one goes back and reviews the debate in the Legislature of the last session, one will note that not really much constructive work was done until July and that this bill could have been passed in second reading in the Legislature and gone out to committee during the summer months and had a full hearing as other bills did.
I regret that didn't happen, but I think it was the product of a failed system in terms of what happens in the Legislature: posturing by all sides, playing the game, the cameras are on, people want to make their speeches, they want to get their voice heard, they want to have their constituents see them, but I think it's time that we started to set down our priorities and find out exactly what it is that we want to do.
Right now, judging by what is coming from environmental groups all over the province with respect to the contamination increases in the Great Lakes, the whole issue about contaminants from all the different uses of chemicals and so on in our society, I think we have to put the environment as a priority because, let's face it, we're experimenting with our future here. I would say that my major concern in terms of this bill is putting the environment first.
A lot of what we're talking about here, even Bill 143, the most contentious bill of the Legislature, when we discussed Bill 143 in subcommittee, was decided in subcommittee. It did not come back to the full committee to be debated with the resolutions in this way. It came back and the committee said, "Yes, we do it this way."
If memory serves me correctly, we said that every party would choose who they would hear for one full hour and then the rest would be heard for 20 minutes and that not everybody was to be heard because there were so many submissions. A lot of them were done verbally but a lot of them were also done through written submissions.
I would say it is unfortunate that we have spent almost 50 minutes this morning talking about something that should have been agreed to in subcommittee. I would also ask the opposition, when does it expect to have this bill passed? Do they expect to go with it and have it done completely, third reading finished, by the Christmas session? When do they expect that the committee will be able to do the rest of the work that is going to be brought before this committee?
There is a lot of work to be done in this committee. I'm afraid that for the benefit of society as a whole, with things changing as fast as they are, we must speed up the rate at which we work in this place. A lot of these lists could have been presented a lot sooner than they have been and they could have been prioritized as they were in Bill 143 when they were submitted.
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I think one of the principles of submitting submissions to this committee in writing is the assumption that everybody will read them. I have every intention of reading every submission that is presented to this committee, and I know other members would do so as well.
I think what we need to do is to recognize that offers have been made here to have Tuesday hearings. Nothing in this resolution -- and I'm really disgusted by the fact that we even have to put this resolution forward -- precludes the idea that we could have a subcommittee meeting and agree to Tuesdays, that we could have a subcommittee meeting and agree to Fridays or a subcommittee meeting and agree to have other days for committee hearings without having to bring it to resolution and debate it two and a half hours last week and now an hour this week.
Just in terms of written submissions, I don't know why people believe that their written submission isn't part of the consultative process, but I guess the UDI believes that. But I can tell them, and I will put it here on record now, that I read every submission that was presented at the Bill 143 hearings, whether it was written or presented orally, and that my position was after having read all of those positions.
The UDI says it was not asked. I would submit that if they've made a submission, they were consulted. They may not agree with what's in the bill entirely. That's fair, because I can tell you that the art of compromise and the art of creating legislation is going to mean that some people are never going to be satisfied. Let's face that up front. It doesn't matter whether we're the government or you're the government or the Liberals are the government, not everybody's going to be satisfied.
But personally, and without too much hesitation, I will say that in terms of the environment, for me the issue is very clear. The environment has to be a priority. The experiment that we're doing on the environment now with chemicals, with ozone, with methane and all the things that we're doing, to me this experiment has got to stop and I see An Act respecting Environmental Rights in Ontario as a move towards that.
We have spent three and a half hours jockeying back and forth here for whatever reasons. I say that it's time to get on with it and therefore I would ask that the question now be put.
The Chair: Mr Wiseman has asked that the question now be put. Upon consideration, I would note that the government has had two speakers on this issue and that each of the opposition parties have had only one. Mr Johnson.
Mr Mammoliti: On a point of order, Mr Chair: You clearly indicated in your ruling that the government had had two speakers and each of the others has had one. I would ask you to also consider the amount of time that was spent in each caucus --
The Chair: There's no debating an order. Mr Johnson.
Mr David Johnson (Don Mills): I'll try not to be too long. But I think what we'll find here is that the consultation that has occurred has occurred predominantly with people with a certain philosophy or a certain message. I think what's coming out more and more is that the consultation hasn't been as broad-based as it should have been.
Secondly, I think what we'll find is that people who were consulted were consulted with general views and general principles, but once you put it down in black and white, once you put it down with specific proposals, then the real communications really need to start, the real discussion and the real debate and talking to people directly. That's when it's most important and that's where we're at right now. We're out of some sort of general consultation into the specifics and this is when it really affects people, right in their backyard, where they really get interested and are anxious to have their views known.
That's why we're here and the unfortunate part is that, by my calculations, of the 46 people, individuals or groups, who have asked to speak to this matter, and we'll fully expect many more than those 46, we're going to be able to accommodate about 18 of them. I really think that's unacceptable.
I ask myself, if we spent even another three Thursdays, at probably 13 deputations a day, given 20-minute deputations, that would be 39 more deputations, 39 people who would feel they've had the opportunity to talk directly to the specific recommendations of this bill, not in some general fuzzy way but specifically to what's in this bill and specifically how it may impact on them or specifically how they would like to see it altered. I think that would go a long way to addressing the concerns that Mr Tilson, for example, is raising here today.
Would the sun not rise if we would just allow those three extra Thursdays? If we could complete towards the end of November the clause-by-clause, instead of in early November, would that be such a major problem? I would ask the government members to just reflect -- obviously we're going to proceed with the agenda they've laid out today -- but just reflect on that over the next week and maybe ask whoever is pulling the strings behind the scene here if we could not have just another three Thursdays -- I think that would probably do it -- to accommodate the people who really need to speak on this.
I will give you one example: On Monday I spoke to the Association of Counties and Regions of Ontario, and the AMO representation was there. AMO will be considering their deputation through their board meeting next week. They cannot make their presentation to us until they have cleared it with their board and their board meets next week.
They will not be in a position to make the presentation to this committee until after next Friday. So AMO, which represents the municipalities across this province, will not be able to make a verbal presentation to this committee. I think that's really sad because I think, from what I've heard from the minister last week, that this bill is going to have ramifications on the planning process in the province of Ontario.
On the one hand, the government has directed John Sewell to try to expedite the planning process; on the other hand, this bill, I think, is going to allow certainly for the possibility of slowing down the planning process by five months, half a year, perhaps more. The municipalities are just starting to twig to this fact. I think AMO is going to have something material to say on it but they're going to be denied that possibility.
You can say: "Yes, that's too bad. It's too bad they didn't have a crystal ball and understand what our timing was going to be but, still, they can send in a written submission and we will all dutifully read their written submission." Well, it doesn't have the same impact. They want to be here to talk to us directly. That's really what democracy is about. If we say we'll read their submission, then why do we bother to have these deputations at all? Why don't we just cancel the committee, let everybody send in a written deputation?
Mr Mammoliti: That's not fair.
Mr David Johnson: It is fair, it is important. This is an association, a key association, that represents all the municipalities in Ontario and my guess is that individual municipalities may want to make deputations as well, but they're going to be denied that opportunity.
You look at other organizations such as UDI that has been mentioned. When the member talks about environmental groups, I suspect he's not including UDI within his definition of environmental groups; I'm not privy to his definition but I suspect he's not. But here is an organization that speaks for many workers who come under the wing of the UDI in the province of Ontario. Their livelihood may be impacted.
There are many organizations here. The Ontario Waste Management Association is not given an opportunity to speak. Their operation could be greatly impacted. How could we deny an organization with some 300 members, as I can recall, across the province of Ontario an opportunity to come forward? I think three extra Thursdays would do it.
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I just have to register my strong objection to the way this has worked out. Frankly, I think the chickens will come home to roost. They can ram it through, but then half the issue will not only be the problems of the bill, half the issue will be the way this whole thing has been handled. The unhappiness with it will grow exponentially and perhaps even more out of proportion with the problems that are in it. The government, in my submission, would be wise to take another look at this and allow a few more Thursdays and allow these people to come before us.
The Chair: Further discussion on Mr Mammoliti's motion?
Mr Wiseman: I'd like to raise a couple of points about the bill. It's unfortunate that we can't -- we should move to the technical people. But if one refers to the report of the task force on the Environmental Bill of Rights that was published in July 1992 --
Interjection: When?
Mr Wiseman: July 1992. I've had it on my bookshelf since then, I've talked to people about it since then. The blue section is the structure of the original bill -- am I correct? -- that was sent out. In fact, it is close enough to the bill that is sitting here that the task force has endorsed the bill that's sitting before us. So to say that this bill is being sprung on people at the last minute is not in fact accurate. I would again just like to move along to having a technical briefing on this bill, so hopefully we will have a vote now.
The Chair: Further discussion?
Mr Bernard Grandmaître (Ottawa East): Saying that it's close enough to the bill is not acceptable, for the simple reason that when you're dealing with people's rights, I think you need to give people the opportunity to address this committee. This is not acceptable, being close enough. You're within the law or you are not; it's as simple as that.
As my Tory colleague pointed out, AMO is a very important organization representing, what, 660 municipalities out of 800. I think it's very important that these people be given an opportunity to address this committee. After all, this is why we do have committees at Queen's Park, to try to listen to the people.
Strangely enough, the government of the day for the last three years has been telling us that every piece of legislation that comes to the House has been widely distributed and it has gone out of its way to listen to people, yet when legislation is introduced, most people are very, very upset, especially with this bill. They're not being given the opportunity to be heard. I think to proceed without having an understanding that everybody should be heard would go against the principles that were established to have committees at Queen's Park.
I don't think this is acceptable. The advertising period is very, very short, and as was pointed out earlier, a great number of people will not be heard. I think it's very unfair to leave these people out and ask them to provide us with a written submission instead of appearing before this committee.
Mr Hans Daigeler (Nepean): What strikes me here is that, from the interventions by Mr Wiseman, he doesn't seem to quite understand the difference between a government task force and a legislative committee.
Mr Wiseman: I understand fully.
Mr Daigeler: A legislative committee is an all-party committee, and a government task force is obviously something the minister has set up to get some advice before he brings matters before the Legislature.
We had over the summer a very useful experience on the graduated licences, where it was a draft bill the minister put forward -- it was not a bill yet; there were draft regulations -- but rather than have a ministry task force, he had legislative committee hearings over the summer. The report isn't finalized yet, but most likely there will be mention that all members of the committee were very appreciative of this experience.
When we're saying that the public hasn't been properly heard and apparently will not get a proper chance to be heard on this, we're talking about a legislative committee that brings its viewpoints from three parties' perspectives to a specific proposal of the government. Because of that, we feel very strongly that the time being given to the public here is totally inappropriate, and that's why we're so concerned about this motion coming forward from Mr Mammoliti.
Mr Mammoliti: Like Mr Wiseman, I would like to listen to the ministry at this point. If I'm the last speaker, I'll give up my time and we'll take the vote and just listen to the ministry.
The Chair: Is there further discussion? Mr Mammoliti has moved --
Mr Offer: A recorded vote, please.
The Chair: Mr Mammoliti has moved a motion which we won't read out but which is in front of all members. All in favour of Mr Mammoliti's motion?
Ayes
Fletcher, Lessard, Mammoliti, Mathyssen, Wessenger, Wiseman.
The Chair: Opposed?
Nays
Johnson (Don Mills), Daigeler, Grandmaître, Offer, Tilson.
The Chair: Mr Mammoliti's motion is carried.
We still have one procedural item to deal with, that is, the researcher's duties that we want to clarify. The major question we have to clarify is whether we want a summary of all presentations to be prepared before the clause-by-clause. As members would note in Mr Mammoliti's motion, presentations must be before the committee by November 2 and clause-by-clause commences on November 4, which may give the research staff some difficulty. I would like some direction from the committee for the researcher to either prepare or not prepare a summary, and any other questions she may have.
Mr Offer: Just for clarification, would that be a summary of all the submissions which come before us, or on only those which have made public presentation?
Ms Lorraine Luski: It's up to you.
The Chair: That's a decision for the committee to make, Mr Offer.
Mr Mammoliti: I think it's reasonable to ask the research department to look at the written submissions as well and see whether they could be added.
Mr Wiseman: Just summarize the recommendations, and that would do it.
Interjection.
The Chair: I'm getting different messages here. Mr Fletcher?
Mr Derek Fletcher (Guelph): That doesn't give much time for the people preparing this list, does it?
Mr Grandmaître: Are you in favour of the motion, or are you going to change your vote, Derek?
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Mr Fletcher: No. I'm just wondering about the time lines for preparing this. I'm looking at the workload on the person who is going to be preparing this.
The Chair: Perhaps we could hear from the researchers; it might help.
Mr Lewis Yeager: Lorraine has put together a day-by-day summary of how the process would move from this point, should you proceed. Your last day of public hearings would be October 28, you've proposed a cutoff day for written summaries of November 2 and you're going into clause-by-clause November 4.
To realistically assimilate the Hansard and the submissions from the public hearings and as many as possible of the written submissions -- and hopefully people would expedite that and get them in quickly -- a realistic cutoff date might be the Friday after your public hearings, or October 29, for material that is actually going to go into a summary. That would give you all of the material that came in from the hearings plus hopefully a good proportion of the written submissions which we could synthesize and categorize and put into perspective.
Undoubtedly, additional written submissions would continue to come in. A possibility might be that those be distributed to you for your consideration along with the summary but not be included into the summary, so that the summary can be a better summary essentially. That would mean some individual submissions would not appear in the summary but all members would have access to them.
A possible cutoff date of Friday, October 29, for material to go into the summary might give you a good summary of what's available to date and leave you less individual written submissions to pore through, but undoubtedly there would be a few of those remaining that you would have to consider individually. That's just one possible scenario you might want to look at.
Mr Mammoliti: I like the suggestions and I would certainly approve of that.
The Chair: Just to phrase that for us, we would --
Mr Wiseman: We'll go with what they just said.
Mr Mammoliti: A cutoff date of the 29th and copies of written submissions that come in after the 29th to be handed to all the members of the committee as well.
The Chair: Are members clear on what we are being asked to adopt?
Mr Grandmaître: That really means we're excluding people, preventing people from addressing this committee.
Mr Tilson: Just a question to Mr Mammoliti, who is suggesting, with respect to his --
Mr Wiseman: If you want to go for Tuesdays, we'll go for Tuesdays.
Mr Tilson: My question is with respect to receiving the written responses. After members read these written responses, will time be allotted by the government members of the committee in which we can come back to raise issues, perhaps with the ministry staff, of legitimate questions and proposed amendments? Will we have an opportunity to do that? If there are issues raised in the written discussions and amendments that may be proposed, will we have an opportunity to discuss and debate these matters in committee other than the clause-by-clause, because there could be substantial --
Mr Mammoliti: We've made it clear to both oppositions that we'd be happy to sit other days before November 4 and that we'd be willing to amend any motion and deal with any motion you want to bring forward to do that. I haven't seen anything to date in terms of a motion. I haven't seen a suggestion on your part. I would strongly recommend that you consider that as well. We'd be happy to sit, as we said, on Tuesdays. If those days were chosen to perhaps speak to the ministry, then so be it. That's still open to us.
Mr Tilson: I understand what you're suggesting. The difficulty I have with that is that the written submissions will be accepted, under the last paragraph of your motion, until November 2. There could be substantial written submissions that could be given to us on November 2, and that's hardly sufficient time for this committee to adequately deal with written submissions when it's possible that a whole slew of written submissions may be received at that date.
Mr Mammoliti: If you were listening to research a few minutes ago, you'll know that one of the recommendations they're proposing, something we agreed to on this side, was to hand those individual written submissions that have been forwarded after the 29th to every member of this committee. Whether you choose to read those written submissions is up to you. I know this side will read those written submissions. If you want to read them, that's up to you.
Mr Tilson: I understand what you've said; I understand those comments. The difficulty I have is allowing time for issues that may be raised. I have already expressed, as have all members of the opposition, our preference that we would rather hear oral submissions together with written submissions as opposed to simply reading a whole stack of written submissions. I'd rather listen to these people so that we can adequately ask them questions. However, I understand your tactics. I understand that you're saying that written submissions will be accepted up until November 2, and on November 4 we will start clause-by-clause, for one day.
My problem is that there may be proposals put forward in these written submissions which we may receive on or before November 2 in which there may be very constructive suggestions or amendments to this bill. If these people are going to take the time to write to us and they have until November 2, I want time to read those papers and I want an opportunity to be able to comment to them, perhaps ask legislative counsel to prepare amendments in response to those requests. To proceed on November 4, after receiving these written submissions on November 2, is hardly acceptable.
I'm asking if the chair of the government side of the committee would consider extending the time for these hearings until into November so that we would have an opportunity to at least give the people who've taken the time to write these comments the courtesy to adequately read them and possibly prepare amendments.
Mr Mammoliti: I can only respond by saying that perhaps Mr Tilson could look at what's happened up until now and reflect on the way he dealt with his concerns in subcommittee, as well as anybody else who was there, and think of how he could've perhaps prevented what he's complaining about at this point. If he had dealt with things differently in subcommittee, perhaps he would have had the time to deal with the things he's complaining about at this time. I'd ask him to reflect on what's happened, and tell him that I'm not willing to do anything other than my motion at this point.
Mr Tilson: I take great offence at the last comment when it was Mr Mammoliti who walked out of the subcommittee meeting the last time. He was the one who walked out. Mr Offer and I sat there and were prepared to debate this matter, and he walked out.
Interjections.
The Chair: Order. Mr Offer.
Mr Offer: I understand that what we're talking about is the suggestion made by Mr Yeager and Ms Luski with respect to the reporting mechanism. The way I see it is that under the Mammoliti motion, we're telling the general public, "You've got till November 2 to bring forward your presentations." I hear Mr Yeager and Ms Luski, quite understandably, saying, "The motion also says you're going to deal with clause-by-clause on November 4." They need some time, so they're asking to October 28 or 29.
Very briefly, I understand exactly why you have to take that position. You only have a certain amount of time, and there's only so much you can do in a certain amount of time. The problem I see is that of course this has been dictated by the Mammoliti motion, so if we eventually vote on it, I will be voting against that on the basis of your telling the public by the newspaper, "You've got till November 2" but not informing them that it's not part of the report.
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The Chair: Further discussion? If not, Mr Mammoliti has moved that the research officers will provide a summary of the oral and written submissions submitted to the committee by October 29, 1993.
Mr Offer: Recorded vote.
The Chair: Mr Offer has requested a recorded vote.
Mr Tilson: On a point of order, Mr Chairman: I question whether the resolution --
The Chair: There's a vote taking place and the vote is in order.
Mr Tilson: Prior to the vote taking place, I'm questioning --
Mr Mammoliti: Hurry up; I'm getting tired.
Mr Tilson: Do whatever you like, George.
The Chair: What's your point of order?
Mr Tilson: If you'll give me a chance, my point of order is that we have a resolution. We're going to be receiving public written submissions until November 2. The resolution is out of order, I would submit, because it's saying that the summations, those between October 28 and November 2 will not be dealt with. That's essentially what this motion's saying.
The Chair: I think it's a point of view.
Mr Tilson: It contradicts the first resolution.
The Chair: There's no point of order here; it's a point of view. All in favour of Mr Mammoliti's motion?
Ayes
Fletcher, Lessard, Mammoliti, Mathyssen, Wessenger, Wiseman.
The Chair: Opposed?
Nays
Daigeler, Grandmaître, Johnson (Don Mills), Offer, Tilson.
The Chair: Mr Mammoliti's motion has carried.
MINISTRY OF ENVIRONMENT AND ENERGY
The Chair: We will then move to the next order of business of the committee, which is a briefing by the Ministry of Environment and Energy. As they are coming up here to make their presentation, though, I would like to inform the committee that the clerk and I attended the Board of Internal Economy on Tuesday last. At that meeting we discussed budgets and, as members might know, through a variety of circumstances we have a deficit position in this committee. We would like to discuss a further supplementary budget and the Speaker would be most happy with this committee if I could report that to them by some time in the middle of November, so I'm just asking that somehow we find some time to discuss the budget.
Good morning. If you'd like to introduce yourselves for the purposes of our Hansard recording, you can take the committee through this bill.
Mr Bob Shaw: My name is Bob Shaw. With me is Sharon Suter. We are both from the Environmental Bill of Rights office with the Ministry of Environment and Energy.
Ms Sharon Suter: Do you want us to leave any time for questions?
The Chair: If you could attempt it, that would be nice.
Ms Suter: We'll attempt it.
Mr Shaw: What Sharon and I will do this morning is go through the bill, highlighting all the major components of the bill and the functionality of the bill. This is an outline of the intended presentation.
We'll start off with the purposes of the bill. The bill sets out its primary purposes as being:
"to protect, conserve and, where reasonable, restore the integrity of the environment by the means provided in this act;
"to provide sustainability of the environment by the means provided in this act; and
"to protect the right to a healthful environment by the means provided in this act."
The bill then goes on to state the means by which the act provides to fulfil those purposes. It provides:
"means by which residents of Ontario may participate in the making of environmentally significant decisions by the government of Ontario;
"increased accountability of the government of Ontario for its environmental decision-making;
"increased access to the courts by residents of Ontario for the protection of the environment; and
"enhanced protection for employees who take action in respect of environmental harm."
The next part of the bill, part II, starts off and deals with the environmental registry. Sharon will do the section on the environmental registry.
Ms Suter: The bill establishes a new minimum level of public participation for the government of Ontario on decisions that are environmentally significant, those being policies, acts, regulations and instruments.
The purpose of the registry, as dictated in the bill, is "to provide a means by which notice of proposals and decisions that might affect the environment can be given to the public." The interpretation we've made is that our role is to then establish a functional electronic registry to ensure that all of government has access to that registry and to make that registry accessible to the public.
The bill also specifies the types of information that are to be made available to the public on the registry. There's additional information that we're opting to make available, things like general information on the bill. At proclamation there will be no requirement on any body to have information available on the registry, so there'll be information on the bill, the regulations, the implementation and time lines for the government ministries, definitions that fall under the bill, a series of help screens.
The registry is being developed with a series of menus that you work through. The bill then requires the information on the statement of environmental values. First, a draft statement on the bill would be placed on the registry within three months of proclamation, at which time there will be public participation on that statement, and then a final statement would be placed on the registry, the full text of the final statement within nine months of proclamation of the bill.
Notice of proposals and decisions on environmentally significant acts and policies, regulations and instruments: The bill goes on to require the notice of third-party or applicant appeal on a class I or class II instrument, and we've opted to close the loop by also putting the decisions on those appeals on the registry. So there would actually be the proposal, the decision. If third-party appeal is initiated within 15 days of the decision being placed on the registry, the notification of the appeal would be placed on, and the outcome of that appeal would then be placed on, which closes the entire file. The final bit of information is the court action and then any decisions on the court action.
The time line, which is really the regulatory and legislative requirements placed on us to implement the environmental registry, is that at proclamation -- which we are now assuming, as per the draft regulation which has been introduced under the bill, to be January 1, 1994 -- the environmental registry be functional, that it be accessible by the public and that we're putting general information on the bill to be available on the registry. So for anyone who wants the full text of the bill, the regulations, the interpretation, the definitions, that would all be available.
By April 1, 1994, draft SEVs by all 14 ministries, and then all ministries at that time -- this is what we're hoping -- will be capable of information upload into the registry. By July 1994 the Ministry of Environment is required to place notice of policies and acts on the registry, and any court actions which were initiated will also go on during that time frame.
By October 1994, all final SEVs by the impacted or prescribed ministries would be placed on the registry. The ministries' regulations and instruments and any notice of appeals on instruments and obviously decisions would go on in that time frame. By April 1995 policies and acts of the other impacted or prescribed ministries would be placed on the registry.
I have a set of overheads on how the registry is being proposed and how the interactivity of the menus will work which I'm not putting up, but I can if anyone's interested. If, for example, some member of the public were looking to find a new active ingredient in a pesticide, right now the process would be that the ministry would review the consideration of whether that active ingredient should be introduced through OPAC, the Ontario Pesticides Advisory Committee. It would be gazetted for 18 months, during which time that active ingredient could be used, and then at the end of the 18-month period OPAC would re-review that active ingredient based on the comment they received.
How EBR would come into play in this particular example is that the proposal as shown here would be placed on the registry for 30 days, or whatever was deemed appropriate by the minister. At the end of the 30-day comment period the decision would be placed on, at which time it would then be free to be gazetted, so we're actually introducing this requirement prior to the gazetting requirement that's in place right now.
This is the type of information, if you work through the menus, that would be found on the registry. You'd be searching on information for the Ministry of the Environment and Energy, you'd be looking for instruments, you'd be looking for a pesticide and you would go through and you might find this example.
This is pretty close to the vision we have of what it would look like right now. Obviously, we will be working with different groups to get some input as to whether or not this information is adequate for their needs. We'll be looking at identifying the instrument type, which is the Pesticides Act, the legislative power under which this instrument's being issued, and then a layman's interpretation of what that means.
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I have to emphasize that at every stage through this there would be definitions of all the words, such as "instrument." If we talked about a proposed schedule, as we do in this one, schedules 1, 2, 3, 4, 5, there would be a help screen then to identify what a schedule 1 pesticide was. In this case I've just added this extra information that it's a pesticide to be used by the home owner. This is the type of information the registry would pull up for you.
The next issue with respect to the registry is the public access. The assumption we've made is that it would be accessible on line or dial-up to any resident of Ontario. We've been trying to use, where possible, any existing infrastructures rather than creating some new, standalone environmental registry process.
The access points that we're exploring right now are to make the registry available by dial-up. If someone had a computer and a modem in their home, there would be a local number as well as a 1-800 number. Anyone outside of the province of Ontario would obviously be paying their own long distance charges for accessing the registry.
Public libraries: I'll talk briefly about the Ministry of Culture, Tourism and Recreation automation project that's been in place since 1991. It's a project that we've opted to piggyback on. It's a project that has automated public libraries to provide them with hardware to be made accessible to the public. I'll talk to that in a second.
College and university libraries: All of them in Ontario have a network called Internet, which is really a research tool that provides international access to a myriad of information, databases and technical information. By limiting and building a registry and restricting access on the Internet to Ontario nodes, we can limit college and university access to those in Ontario so that people can come in to the registry from those locations.
Government libraries that exist across the province that have GONet, the government of Ontario network, or the Ontario version of the Internet: We'll also be exploring using those as public access points.
Contact North I'll speak to again in a moment. It's a government of Ontario program under the Ministry of Education and Training. It provides us also with 100 additional fully or partially serviced sites in the province to make access to the public.
We've been working with the Nirv Centre. WEB, as many of you may know, is a network that is used quite often by the environmental interest community. Technically, it's feasible. We're in discussions right now with the Nirv Centre on making the registry a standalone menu item for that community, and then it would use its own communications in the WEB network to communicate and exchange information. Then there will be government-targeted access points like in the Ministry of Environment at 135 St Clair -- on the first floor there's a public information centre; it's the perfect spot to put a computer and a modem -- and Queen's Park. These things are all being considered right now.
The public libraries automation program was funded by the Ministry of Culture, Tourism and Recreation in 1991-92. It's expanding. Right now, there are 200 of the 1,200. There are 1,200 public library access points. They're not all in major centres. The 200 that have been automated right now are in major centres. I have a list of those if anyone would like to see them and the population that they serve. Of the 200 Ontario public libraries that are automated right now, 42 are in first nations libraries. It helps us in looking at some of the more remote areas and how we can provide access to some of the remote communities.
Under that program, the minimum equipment that was provided was a 386 computer -- for those of you who know, that is very powerful -- modem, printer and CD ROM drive. We're looking at storage and retrieval options so that this information can be rolled off the registry and stored, and in this case historical information also could be used by those libraries.
There's a training infrastructure, which is a really key point for us. The Ministry of Culture, Tourism and Recreation has Ontario public library service north and south. The staff in those establishments can go out and train. The librarians can help them, put signs up and help them understand what the Environmental Bill of Rights is all about. They wouldn't actually play a role in helping the public access, but they would simply show them where the equipment was and make sure that it was properly marked.
First Nations Technology Institute is also an infrastructure we would tap into where it provides training to the first nations librarians in whatever tongue is required. What it basically does is to provide us access to the libraries without any cost or administration.
The Contact North program is a government of Ontario program designed to remove barriers to learning and enhance opportunities for education and training at all levels. They don't actually conduct training; they facilitate training.
By looking at those Contact North sites that are already established there are 43 fully serviced sites, meaning they have full-time staff and they have computers and modems that are available to the general public as a training tool. We could make those available during the open hours of those centres for people to access using that modem into the registry.
This is the map that shows the distribution of those 200 public libraries in the province. What I don't have on there is the Contact North locations which go much farther north than that covers.
Mr Shaw: The second part of the bill also sets out the requirement for ministries to create statements of environmental values. These are the 14 prescribed ministries. The bill states the purposes of these values:
"(a) explains how the purposes of this act are to be applied when decisions that might significantly affect the environment are made in the prescribed ministry; and
"(b) explains how consideration of the purposes of this act should be integrated with other considerations, including social, economic and scientific considerations, that are part of the decision-making in the ministry."
Sharon has mentioned the bill sets out a time frame that the draft of the statement of environmental values is to be made publicly available by the registry within three months of proclamation and that the final statement of environmental value is to be available nine months following proclamation. The bill requires that the prescribed ministries undertake a minimum of 30 days' consultation. On the statement of environmental values, we anticipate that this consultation period will be a minimum of three months.
The next part of part II of the bill deals with what needs to be placed on the registry. The first part of this is policy and the bill very broadly defines policy as "a program, plan or objective and includes guidelines or criteria to be used in making decisions about the issuance, amendment or revocation of instruments." It then goes on to exclude acts, regulations or instruments to avoid confusion.
The bill requires that in the case of policy, the minister shall do everything in his or her power to give the public at least 30 days' notice before a proposal is implemented if the minister considers that the policy, if implemented, could have a significant effect on the environment, and the public should have an opportunity to comment on the proposal. The exception provided for in the bill to this is policies which are predominantly fiscal or administrative in nature.
The bill then goes on to deal with regulations and requires that for regulations the minister do everything in his or her power to again give the public a minimum of 30 days' notice before a proposal for a regulation is implemented if the proposal for regulation is under a prescribed act, and the minister considers that, if implemented, the proposal could have a significant effect on the environment. Again, there is the same exception for fiscal and administrative regulations.
The next component deals with instruments. The bill sets out that there will be three classes of instruments. It also sets out the steps that prescribed ministries are to follow in order to determine what instruments are to be classified and what class those instruments are to be placed into.
Class I instruments: The bill requires that a minimum of 30 days' notice be given to the public of a proposal for this type of instrument. For a class II instrument, it requires that in addition to that minimum 30 days' notice some other additional form of public notification is provided, and the bill speaks to approximately a dozen ways that additional public notification may be provided. For class III instruments, it requires not only the minimum 30 days' notification, but these are also instruments that require a public hearing.
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The way the bill, in combination with the first-draft regulation, is structured is it starts and it sets out prescribed ministries. So for ministries that are going to be prescribed for instruments, there are five ministries: MOEE, MNR, MCCR, MNDM and MMA. The second step is then that acts of these ministries are prescribed. The third step is that for each of those acts you have to walk through the procedure laid out in the bill to determine what instruments under those acts will be prescribed.
So, for example, for the Ministry of Environment and Energy, we are prescribed for the Ontario Water Resources Act and have gone through the exercise of determining what instruments will be described under that act, and in the draft regulation number 2 released indicated instruments such as permits to take water will be prescribed.
On the other hand, a question has come up with regard to whether building permits could be prescribed and required to go on the registry. The act under which building permits are issued is administered by the Ministry of Housing. The Ministry of Housing is not a prescribed ministry for instruments, thus it has no prescribed acts, thus no prescribed instruments.
Mr David Johnson: Official plans or zoning amendments?
Mr Shaw: Those are the Ministry of Municipal Affairs, and what the Ministry of Municipal Affairs must do is that in 1998 it must examine the Planning Act and determine what instruments.
The Chair: Just a question of clarification. In unorganized townships where buildings are built with revisions to zoning orders, those building permits would therefore be prescribed where building permits in organized municipalities would not? Is that the case?
Mr Shaw: No, that is not the case. Neither of them would be.
The Chair: Why?
Mr Shaw: I don't want to quote the wrong act here.
The Chair: Maybe we could get it later.
Mr Shaw: No, it's okay. Building permits are issued under the Building Code Act. The Building Code Act is an act of the Ministry of Housing. The Ministry of Housing is not prescribed for instruments. Therefore, the Building Code Act is not a prescribed act. Therefore, there are no instruments such as building permits that will be prescribed and need to go on the registry.
The Chair: But in unorganized townships the mechanism is different. The mechanism in unorganized townships is that a building permit as such does not really exist, at least in my understanding. The way it is done is by an amendment to a minister's zoning order, which is a zoning order which would fall under the Planning Act, which would then fall under MMA.
Mr Shaw: And the decisions in that regard would be made in 1998 when the Planning Act is considered.
The Chair: Thank you.
Mr Tilson: On a point of order, Mr Chairman: My understanding of the information that we got from the clerk was that the Ministry of Housing is one of the groups.
Mr Shaw: The Ministry of Housing is prescribed. It is prescribed for the development of a statement of environmental values and it's prescribed for the placement of new policies or acts of environmental significance to go on to the registry. It is not prescribed for the purposes of instruments.
Mr Offer: As we're on this matter, I see that the Ministry of Finance is not there. I believe the levy on beer cans comes out of the Ministry of Finance. Is that correct?
Mr Shaw: I'm not sure.
Mr Offer: I believe it's a taxation matter. So that would not fall under the EBR?
Mr Fletcher: Environmental concerns.
Mr Offer: No.
Mr Shaw: The Ministry of Finance is a prescribed ministry. It's one of the 14, but it is not prescribed for instruments.
Mr Wiseman: It was in CCR.
Mr Offer: I don't think so.
Mr Tilson: Sure. That's Finance.
Mr Offer: That's Finance.
Interjection.
Mr Offer: It's a tax.
Mr Tilson: That's exactly how it came in.
Mr Offer: So the levy on beer cans wouldn't necessarily fall under that prescribed --
Mr Shaw: If it was the Ministry of Finance, if the levy on beer cans was brought in by a regulation -- I'm assuming -- then no, it would not appear on the registry as the current scheme sets it out.
The bill also introduces third-party appeals with regard to both class I and class II instruments. The way in which the appeal process will work is, as Sharon has indicated before, both a proposal for an instrument and a decision regarding the instrument will be placed on the registry. The public then have 15 days in which they may seek to appeal that decision after it has appeared on the registry.
The appeal board that will hear their application to seek leave to appeal is the same appellant body that would normally hear the appeal on the instrument. In the case of the Ministry of Environment, that's the Environmental Appeal Board. That appellant body will make a decision whether to grant leave to appeal or not grant leave to appeal. If it grants leave to appeal to a third party, the instrument is stayed and is no longer valid unless the board rules otherwise and the appeal will move on to a hearing.
In order to obtain leave to appeal as a third party a decision on an instrument, two conditions must be fulfilled, and the appellant body is the body which makes the decision on these. One is that there is good reason to believe that no reasonable people having regard to relevant law and any government policies developed to inform decisions of that kind could have made the decision and that, having made the decision, that decision could result in significant harm to the environment.
Mr Offer: Is there any thought around the word "significant"? It appears in a number of places.
Mr Shaw: The bill sets out four statements to assist a minister in determining what is significant with respect to the environment. These are not quotes. I have taken the liberty of paraphrasing slightly off the bill. Essentially what it speaks to is the extent and nature of measures that will be required to mitigate or prevent harm to the environment which could result from a decision. It speaks to the extent of the impact of the decision. It speaks to the nature of private or public interests, including government interests, that are involved in the decision and any other matter the minister may consider relevant.
I'm going to turn this back over to Sharon. The next part of the bill discusses the creation of the Environmental Commissioner.
Ms Suter: The Environmental Commissioner's office was proposed in the task force report. I wanted to just backtrack and look at the considerations the task force was faced with.
Through the consultation process, the concerns of the stakeholders were brought forth that a bill such as this would need to be enforced and how would you enforce that the EBR would be handled consistently across government. How would the public be able to know whether or not the bill was being used or abused if a minister had inappropriately used discretion, if a minister had not provided for the public participation rights, if a ministry had not responded to a request for review or request for investigation in a timely manner, and how could the public be assured of an independent, objective and knowledgeable oversight of the bill?
Given those concerns of the stakeholders, the task force reviewed several options as to how this could be enforced or managed. One of the options they looked at, which were detailed in the task force report, was looking to the media to publicize where a minister abused or did not abide by the legislative requirements under the bill. The difficulty there is that you're always competing with the daily priorities of the media and the fact that some other big issue may come up and these things would never be brought to the light of the public.
There was another option, to use the standing committee, through the legislative process, to have the standing committee established and monitor and investigate a minister's compliance. Another option was ministerial statements, where you left it to the onus of the minister to bring forth how he or she used public participation in coming to environmentally significant decisions and how the discretion was used.
Another was the judicial system, where citizens could be left to apply to the courts in an attempt to overturn decisions by a minister or a ministry to do something under the bill, or the ballot box, where poor environmental considerations by a government would be obviously illustrated by the public through voting. The final consideration was establishing an Environmental Commissioner, and this was the option that was recommended by the task force.
Once the task force introduced the draft of the Environmental Bill of Rights, it was supported through public comments that were received, but the emphasis seemed to be on a need for an independent and knowledgeable commissioner, someone who could really oversee and maintain the independence. This was something that, I think you'll see, is changed from the draft to the final. That was emphasized.
The final bill now shows the Environmental Commissioner, under part III of the bill, appointed by the Lieutenant Governor, staff salaries commensurate with that of the Ontario public service. The annual budget was to be established and approved by the Board of Internal Economy. The board has the authority under this bill to direct orders to the Environmental Commissioner's office to modify a budget or to control the size of the staff. Right now, we're looking at establishing the Environmental Commissioner, at proclamation, with a staff of four and growing to 15 at maturity.
The Chair: Thank you. The members are being called for a vote. The committee will reconvene this afternoon at 3:30 sharp to hear from the Canadian Institute of Environmental Law and Policy, followed by Morgan Gardner, Marsha Valiante, Concerned Citizens of Renfrew County and the Conservation Council of Ontario. Thank you very much.
The committee recessed from 1203 to 1530.
The Chair: The standing committee on general government will come to order. The purpose of the committee this afternoon is to deal with Bill 26, An Act respecting Environmental Rights in the Province of Ontario, and the purpose of the committee this afternoon is to deal with presentations from the public. Our first presentation will be from the Canadian Institute for Environmental Law and Policy. If Dr Mark Winfield and Anne Mitchell would approach, you may just have a chair right there.
Mr Mammoliti: I'm wondering, Mr Chair, if just before the presentation we could do a small housekeeping item, if possible, if I could have some consent from the Liberals and the Conservatives to perhaps talk about an issue the House leaders have asked me to bring up here.
The Chair: I would just point out, Mr Mammoliti, we are in a very tight time frame.
Mr Mammoliti: I realize that, and I don't think it'll take very long. Perhaps it might be better to deal with --
Mr David Johnson: Do we know if all the deputants are here?
Clerk of the Committee: We have two of them so far.
Mr Wiseman: Why don't we take five minutes at the end?
Mr Mammoliti: Perhaps it might be wise to take five minutes at the end of the day to deal with it.
The Chair: Do you want to deal with the issue now?
Interjections.
The Chair: What is it? Do we have a motion, Mr Mammoliti?
Mr Mammoliti: I would prefer that we do it as a consensus, Mr Chair.
The Chair: We still require a motion, whether there's consensus or not.
Mr Mammoliti: The House leaders seem to be talking now about extending time limits in committee. They're still talking apparently, and they've asked me to reconsider the part of the motion this morning that talked about advertising and to drop the advertising until they can deal with it.
The Chair: Will you make a motion then to drop the advertising?
Mr Mammoliti: I'd certainly like to at this particular time, if possible, yes.
The Chair: Is there discussion on that motion by Mr Mammoliti to withdraw the advertising portion of the motion this morning?
Mr David Johnson: I'm not sure if I understand the consequences. Is it now the suggestion we don't advertise or what?
The Chair: That's what the suggestion is.
Mr David Johnson: Frankly, I thought it was going to be embarrassing to advertise because people wouldn't be able to make deputations, but at least they could still make written submissions and the advertising would at least, if it was allowed to go forward, allow them that possibility. So even though I think the advertising is going to be somewhat embarrassing, still it fulfils a little bit of a purpose at any rate, and I think on that basis I'd have to disagree with the motion that apparently is coming forward.
Mr Mammoliti: So you disagree with dropping the advertising?
Mr David Johnson: Yes.
Mr Mammoliti: Then at this particular time I would just go back to status quo and keep it at that. We'll keep the advertising.
The Chair: Thank you. I apologize for our brief little procedural skirmish.
CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY
The Chair: You have been allocated 30 minutes by the committee for your presentation. Often presenters like to allow some time for conversation with the members following the presentation. So you may introduce yourselves for the purposes of Hansard, your position in the organization, and then you may begin.
Ms Anne Mitchell: Good afternoon to all of you. My name is Anne Mitchell. I'm the executive director of the Canadian Institute for Environmental Law and Policy. I have with me Dr Mark Winfield, who is CIELAP's director of research and has prepared our submission on Bill 26 that we're going to share with you this afternoon. We thank you for the opportunity to meet with you.
I would like to begin by saying a few words about CIELAP and its work. CIELAP was founded in 1970-71 as the Canadian Environmental Law Research Foundation. CIELAP is an independent, not-for-profit professional research and educational institute committed to environmental law and policy analysis. CIELAP's mission is to provide leadership in the development of environmental law and policy which promotes the public interest and the principles of sustainability, including the protection of the health and wellbeing of present and future generations and of the natural environment.
We welcome the opportunity to address the standing committee on general government regarding Bill 26, the proposed Environmental Bill of Rights. Environmental bills of rights have been introduced as private members' bills in the Ontario Legislature on a number of occasions over the past several years. There has been strong support for the concept among the environmental community in the province. In fact, in the very first edition of Environment on Trial, which is this book here, a project of our organization and CELA published in 1972, J.A. Kennedy QC, the chairman of the Ontario Municipal Board from 1960 to 1972, said:
"Basic changes are needed in our planning procedures, indeed in our lifestyles, if real environmental crisis is going to be avoided, but even now we have the right to a clean and attractive environment.
"This book outlines the steps now available to protect these rights, limited though they be. Beyond this, however, is the long-term goal of an Environmental Bill of Rights for Ontario to ensure maximum citizen participation in the achievement of a quality environment."
That was written over 20 years ago. These comments have been reprinted in the third edition of Environment on Trial, which was published last month in Ontario.
CIELAP has long supported the concept of an Environmental Bill of Rights for Ontario and therefore strongly supports the proposed bill. We strongly endorse the principles of strengthened public participation in decision-making and increased political accountability.
We are particularly supportive of the elements which propose to establish an office of the Environmental Commissioner, create an environmental registry, provide for notice and comment periods prior to the implementation of new instruments under the Environmental Protection Act, expand standing to appeal instruments issued under the Environmental Protection Act to the Environmental Appeal Board, permit citizens to ensure that environmental statutes are enforced and remove limits on the pursuit of common-law public nuisance actions.
Our comments this afternoon will be focused on the role of the Environmental Commissioner and how it can be enhanced, applications for reviews and investigations and how they can be strengthened and improved, the appeals process and the whistle-blower's protection clauses of the bill.
I'm now going to ask Dr Winfield to review some of those comments and recommendations, which are in our submission.
Dr Mark Winfield: As Ms Mitchell pointed out, we're going to focus our comments this afternoon on four specific topics: the role of the Environmental Commissioner; the provisions of part II of the bill related to appeals of class I and II instruments -- those will be sections 41 and 42 of the bill; part VII of the bill as it relates to whistle-blower's protection; and also the elements of the bill related to the applicability of judicial review to the bill.
Beginning with the office of the Environmental Commissioner, we regard this as one of the most important and innovative aspects of the bill and strongly support in principle the notion of creating an office of the commissioner. However, we believe that there is a need for some substantial changes to the mandate of the commissioner's office in order for it to be able to fulfil the functions which is intended to be able to carry out effectively.
In particular, we believe that the clauses of the bill related to the mandate of the office -- this would be section 57 of the bill -- need to have a number of amendments. In particular, the Environmental Commissioner should be given an explicit mandate to review the consistency of ministry policies and actions with the statements of environmental values prepared under the bill. In addition, under the commissioner's reporting duties, the commissioner should be required to report on the same to the Legislature as part of his or her annual report.
In addition, we believe that the commissioner's office should be given a mandate to undertake reviews of legislation, regulations, policies or issues in response to requests from members of the public. This obviously would provide for a much more dynamic role on the part of the Environmental Commissioner and would also affect elements of part IV of the bill.
We also believe that the commissioner's mandate should be expanded to include educational activities in relation to the bill, and also the commissioner should be explicitly permitted to assist members of the public in participating in decision-making processes using the bill. This would again be principally an educational function.
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In addition, we believe that the powers of the commissioner's office must be expanded in a number of specific ways. This would relate to section 60 of the bill. In particular, we believe that a "cooperation" clause should be added to the bill. This is a clause which would simply require that officials of the Ontario government cooperate with the commissioner in assisting him or her in the execution of his or her duties. A similar clause already exists under the Ontario Ombudsman Act, and we would recommend that the language of the Ombudsman Act be simply imported into section 60 of the EBR.
In addition, we believe that the commissioner should be given the power to engage the services of professional or expert individuals from time to time to assist in the execution of the duties of the office.
With respect to sections 41 and 42, these relate to appeals of class I and II instruments to the -- normally, under the Environmental Protection Act, it would be an appeal to the Environmental Appeal Board. With respect to section 41, this is a new innovation in the sense of granting leave to appeal such instruments at all to third parties, and we note that the leave will only be granted where "there is good reason to believe that no reasonable person...could have made the decision" in question. Legal advice on the interpretation of this phrase indicates that what this means is that a third-party intervenor -- that is to say, a household or a non-governmental organization -- would have to be able to prove that no reasonable official could possibly have issued the instrument in question in order to obtain standing to appeal an instrument to the Environmental Appeal Board. We believe that this test is so onerous that it would be virtually impossible to overcome.
So, in effect, the bill would be granting a right to appeal in section 38 but would then be taking it away through the language of section 41. We would suggest that this limitation be removed and, in addition, such an approach would be consistent with the approach to third-party appeals contained in a number of British Columbia statutes and in the recently enacted Alberta Environmental Protection and Enhancement Act.
With respect to section 42, we believe this relates to stays of decisions under appeal. We believe that this clause could have the potential to undermine certain important aspects of the 1990 Bill 220 amendments related to the effect of director's orders under the Environmental Protection Act. We would like to see this clause amended to ensure that it does not undermine the intent of the Bill 220 amendments related to director's orders, in particular the notion that director's orders would have to be carried out regardless of whether or not they're under appeal.
With respect to part VII of the bill -- these are the whistle-blower's protection clauses: This part of the bill would repeal section 174 of the existing Environmental Protection Act. We regard this as a fairly serious issue because we believe, on the basis of the legal advice which we have received, that doing so would take away the possibility of prosecutions being undertaken under the Environmental Protection Act for employee harassment by employers which currently exists. Under the existing law there are two recourses. Harassing an employee for reporting environmental wrongdoing on the part of a company is a distinct offence under the Environmental Protection Act; in addition, an employee would have the option of going to the Ontario Labour Relations Board and seeking redress there as well.
The wording of the EBR takes away the possibility of its being a distinct offence under the Environmental Protection Act to harass an employee. We would regard this as an unacceptable outcome because it would reduce the existing rights of employees. We feel that the bill should be amended to address this problem or, failing that, the existing section 174 of the Environmental Protection Act should be allowed to stand as is.
Finally, with respect to judicial review -- this relates to section 118 of the Environmental Bill of Rights -- as currently written, there is only availability of judicial review of the implementation of the bill in relation to part II of the bill, which is the process for establishing new instruments. We believe that the wording of the current subsection 118(2), which allows for judicial review of actions under part II of the bill, should be applied to the whole bill with the exception of four sections. These would be section 11, which relates to the effects of statements of environmental value; section 14, which relates to factors in determining the effects of proposals on the environment; section 35, which is a requirement that the minister consider comments received in response to the notice-and-comment provisions of the bill; and section 67, which is the determination of whether a request for review warrants a review.
We regard each of these four sections as dealing with the substantive content of environmental policy and believe that those should remain in the political as opposed to judicial rounds and therefore should be insulated from the possibility of judicial review, but otherwise the possibility of judicial review should be available for the remainder of the bill.
We'd be happy to respond to any questions you might have regarding the bill or regarding our proposals for amendments to it.
The Chair: Thank you. I'm sure the members will have some questions. We will do the questions in rotation, starting with the official opposition, and I will divide the time evenly among the parties.
Mr Offer: Thank you for your presentation. I note that in your presentation, you haven't dealt with all of the issues that are in your written submission. I think you've covered important issues not only through the oral presentation but that some of those areas are equally important.
One question I would like to ask you deals with this opportunity for the general public to question or ask the ministry to review a particular act or policy. This is an area which has been much ballyhooed, and I'm wondering if you can share with the committee your thoughts about the structure and process that is in place in the bill.
Dr Winfield: What we are actually proposing is something of a restructuring of those elements of the bill. As the bill is written, what would happen is that a request for a review would be essentially routed through the office of the commissioner and then passed on to the relevant ministry, and then it would be up to the relevant ministry to decide whether the request warrants a review and then to undertake the review.
We have some concerns about that structure. In fact, what we are proposing would be a change to part IV of the bill such that -- I mean, the availability of individuals going to a minister and requesting a review should remain in place, but in addition, what we're suggesting is that the Environmental Commissioner be given a mandate to respond directly to requests from the public and that the Environmental Commissioner undertake reviews of legislation, policies, events, whatever, himself or herself. This is somewhat different from what's proposed here, but there are precedents for such a structure in Canada; I can detail them in some detail if you'd like me to.
Mr Offer: So your proposal for the area of review is that if the individual wishes to ask a ministry to review a policy, they can now do that through the commissioner and the commissioner sends on the individual's request. You are saying that the commissioner should in fact incorporate that as his or her own request.
Dr Winfield: Even somewhat differently: What we envision would be the commissioner's office doing the actual review of the policy itself and delivering a report to the public and the Legislature on the statute or the regulation or the policy or the practice which is under review. In effect, the commissioner would be given a mandate to investigate and conduct substantive reviews of the content of statutes or whatever in response to a request from the members of the public.
We think this would provide for a much more thorough review than would be the case if the ministry itself undertakes the review, because then it would be reviewing its own statutes or policies or practices. We think having a third party undertake the review, the Environmental Commissioner, would be a much more effective approach. As I say, there is a precedent for such a structure in Canada. It actually existed in Alberta, called the Environment Conservation Authority. It was established in 1970, and the historical record demonstrates that that approach was highly effective and very popular.
Mr Offer: Does the Environmental Commissioner under the bill have the teeth it should have?
Dr Winfield: No. We have made a number of suggestions related to both the commissioner's mandate and the commissioner's powers. In particular, in addition to the review function I just outlined to you, we've also suggested that the commissioner be given an ongoing mandate to review the consistency of ministry policies and practices with those statements of environmental value which they're required to prepare, and to report on that to the Legislature each year.
In addition, in terms of powers, we believe, as I said, that what's called a cooperation clause should be added to the bill. That would be a clause which essentially requires that officials of the government cooperate with the commissioner in the execution of his or her duties; in effect, be required to provide information and assistance and that kind of thing.
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Mr Offer: Is there a precedent for that type of cooperation clause?
Dr Winfield: Yes. As I outlined in my presentation, there is such a clause in the Ontario Ombudsman Act. We've actually cited the specific section of the Ombudsman Act in our presentation. We would suggest that might provide some good language to incorporate into section 60 of the EBR.
Mr Offer: Dealing with the statement of values, do you have any concerns with respect to the wording now in the legislation? I'll preface everything by saying that I've always taken the position that those statements should be before the committee so we can actually see what these words are, but in principle, is there some concern about the legislation in terms of this whole question of statement of values?
Dr Winfield: As we outlined in our presentation, we'd prefer they were called something else: statements of environmental principles or statements of environmental goals or environmental purpose or something like that. Beyond that, I think what you need is some structure which will produce some kind of interaction between those statements of values and ministry behaviour. This is the reason we're suggesting that the commissioner be given a mandate to review ministry behaviour in relation to those statements of values so that their behaviour can be reviewed against what they've said -- how they've made this statement of principle, if you like, of how they're going to behave on environmental matters -- and provide a report to the Legislature each year on how they have performed in relation to those statements.
I think that's probably the best way to approach it. The only other way you could do it would be to allow for judicial review of ministry consistency with that statement of environmental values. I think that would open the door to a wide range of problems in terms of the role of the judiciary in environmental policymaking.
Mr Tilson: Thank you for your comments this afternoon, particularly on such short notice to come to make your presentations. We will be looking forward to reviewing them in more detail.
One of the concerns I have expressed in the past, which I'd like your comments on, is what I perceive as the discretion that's being allowed to a minister to do certain things. I'm getting to the whole issue of the teeth of the bill. The bill says that certain things should be done. You could flip through, not every section, but many sections, sections 15, 16, 26, 29, 30, the one you mentioned, and there are a lot of words where it says "in the minister's opinion," "if the minister decides."
It even gets to the discretion of the court. In section 90, for example, "The court may stay or dismiss the action if to do so would be in the public interest," and in subsection (2), "In making a decision under subsection (1), the court may have regard to environmental, economic and social concerns and may consider" a number of other things; in other words, if it's too costly to a government, I suggest. I'm not too sure what that means.
One of the criticisms that have been made of this bill at the very outset is that it's like the Ombudsman Act: When the Ombudsman came in, everybody was all excited because a lot of our concerns were going to be saved by the Ombudsman, but, with due respect to the Ombudsman, I'm just saying that office has not lived up to the requirements, perhaps, that we had all hoped.
With the discretionary powers that are to be given to the minister as opposed to mandatory powers, with the discretion that's been given to the court to -- I don't know whether that means, but I believe it does, that someone can even say, "It's too costly, and therefore we're going to stay it." Have you addressed your thoughts to those concerns?
Dr Winfield: Yes. There are a number of dimensions to your question, and it can be answered on several levels. I think part of what underlay the bill was a struggle in the minds of the drafters with respect to the appropriate role of mechanisms of political accountability versus mechanisms of judicial accountability, in the sense that they were concerned that if they went too far in using mandatory language in the bill, it could have the potential to invite extensive litigation under the bill which, among other things, would both be costly and complex in itself but also would have the potential to move certain important decisions related to environmental policy out of the political realm and into the hands of the judiciary. As we've outlined in our proposal and in other places, we would have some concerns about that as well.
On the other hand, in terms of the direct language of the bill, I agree with you that in some ways there is too much discretion. Our proposal with respect to the application of judicial review under the bill in relation to how section 118 of the bill should be applied attempts to address that in a fairly direct way in the sense of providing for a greater scope for the potential of judicial review under the bill. In addition, what we are suggesting is --
Mr Tilson: If I could just interject, in other words, the way you read the bill now it means that if the minister takes no action in this discretionary power they have, tough beans.
Dr Winfield: Yes, and this is part of the reason we are arguing for a strengthening of the role of the commissioner's office as well. The penalty for failure to act would be a sanction from the commissioner, in the sense that the government would be embarrassed by the commissioner's reports to the Legislature or investigations saying that ministers have failed to perform their duties appropriately under this bill.
In effect, it does reflect the decision to opt for a mechanism of political accountability as opposed to a mechanism of judicial accountability. In general, we support that principle, but what we are saying is the mandate of the commissioner's office is going to have to be strengthened quite significantly for it to be able to perform that function adequately.
Mr Wiseman: I have a number of questions. On page 14 you say, at the bottom, "While a well-designed system of administrative procedures may greatly enhance public awareness and understanding of environmental decision-making, the system also has the potential to introduce significant delays in the implementation of new environmental measures." Could you elaborate on that for me, please?
Dr Winfield: What we had in mind again was particularly in relation to parts II, IV and V of the bill.
With respect to part II, the attempt to provide a structure of notice and comment procedures for new instruments and new proposals does involve a significant formalization, in fact legalization, of the process for developing and implementing new instruments and it mandates a number of bureaucratic steps which it would be required to follow. There is the potential, in doing that, if the implementation of that system is not well designed, that it could introduce significant delay.
With respect to parts IV and V of the bill, the request for investigations and the request for reviews, the request for reviews parts in particular are quite complex. They lay out the procedural steps in great detail, what may in fact be excessive detail, and there again there is a potential for delay or difficulties in dealing with these aspects of the bill, particularly on the part of members of the general public.
We have suggested that the committee might want to think about how those aspects of the bill might be tidied up somewhat, made more simple and more user-friendly.
Mr Wiseman: You say the Environment Council of Alberta is the only precedent in Canada for an office or body along the lines that's proposed in the Ontario bill. Also, you mention that some of these instruments are in the Environmental Management Act, the Waste Management Act, the Pesticide Control Act, the Water Act and the Public Health Act of BC. That's in your footnote. Could you perhaps do some kind of quick comparison in terms of what is in those bills that make them particularly successful that may or may not be in this bill?
Dr Winfield: The reference to the Alberta Environment Conservation Authority and the reference to the BC legislation are with respect to different aspects of the EBR. The reference to the BC bills and the Alberta Environmental Protection and Enhancement Act is in relation to the appeals provisions related to the implementation of new instruments, the class I and II instruments, in sections 38 to 42 of the bill.
What we are saying there is that the normal practice in Alberta and British Columbia is to allow third-party appeals, that is to say appeals by members of the general public, of the issuance of things like certificates of approval to an environmental appeal board without the limitation which is imposed by section 41 of the draft Ontario Environmental Bill of Rights. There is no such limitation in the BC or Alberta legislation.
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My comment with respect to the Environment Conservation Authority was in relation to the office of the Environmental Commissioner. As I say, the Environment Conservation Authority is the only actual existing, operationalized precedent for an office of the type which is being proposed here in the EBR. What I'm suggesting is that certain aspects of the Environmental Commissioner's mandate proposed here be made fairly similar to those given to the Alberta Environment Conservation Authority, because all the historical record related to the Environment Conservation Authority indicates that it was a highly effective and extremely well-received office.
Mr Wiseman: With that in mind, in terms of buy-in, have all the communities in Alberta bought into that kind of activity, including the business community, the developers and all that?
Dr Winfield: Yes. I don't want to digress too much. The story of the conservation authority is somewhat complex, because there were significant changes made in this mandate in 1977 which reduced his discretion. But during the period in which it had this fairly wide freedom of action, the authority acquired a remarkable reputation for integrity and honesty and thoroughness of examination of issues and responses to members of the public and also interested economic concerns as well. Everything I've ever heard about it has been positive, and this was a significant part of my doctoral thesis. I did a lot of interviewing around it. Quite honestly, in all the interviews I did in Alberta, I never heard a negative word about the operation of the conservation authority.
Mr Wiseman: Perhaps you could pass along some of that information to us on the committee so that we could read it.
Dr Winfield: No problem at all.
The Chair: Further questions? We have about a minute.
Mr Tilson: Mr Chair, I have no further questions. We are finished with the questioner.
The Chair: We appreciate you coming before the committee today. Thank you very much.
Ms Mitchell: Thank you very much for your time.
Mr Tilson: If I could ask the committee before we proceed with the next delegation, my understanding is there is unanimous consent by the three parties to allow Mr Mammoliti to proceed with a motion without debate.
Mr Mammoliti: I think the motion was put forward earlier, if we could bring that motion back up again without any debate.
The Chair: The motion, as I understand it, is that the committee does not advertise on Bill 26. All in favour? Carried.
Mr Mammoliti: Amazing.
MORGAN GARDNER
The Chair: The next presentation will be from Morgan Gardner. Good afternoon and welcome to the committee. The committee has allocated 30 minutes for your presentation, and the members always enjoy using some of that time to ask some questions. You may begin when you're ready.
Ms Morgan Gardner: First of all, I'd like to thank the committee for the opportunity to speak today. I'd also like to say that I'm speaking as a citizen and as a user of this bill.
I'd also like to outline the areas I'd like to cover in this presentation. First, I'd like to give a brief background on my participation and involvement in the bill as a citizen and as a member of the environmental community, and also indicate my personal position on the bill. Secondly, I'd like to articulate my understanding of who the environmental community is. Third, I'd like to talk to the issue of why I feel environmental rights are important. Fourth, I'd like to present my understanding of environmentalists' position on the bill. And fifth, I would like to indicate some of my concerns and amendments that I would suggest be made.
My background: My involvement with the proposed Environmental Bill of Rights, now Bill 26, began the summer of 1991. Since that time, I have followed the development of this bill and have been active in issues surrounding it. This involvement has been as a citizen and board member of a local grass-roots group in London, Ontario, called the Thames Region Ecological Association. My involvement has also been as a board member of the Ontario Environment Network, as a researcher and as a graduate student at the University of Toronto in its PhD program and, lastly, as an organizer. As I've just recently moved to Hamilton, my present local group affiliation is with the Hamilton chapter of the Conserver Society, although today I'm speaking on my own behalf and experience as opposed to on behalf of any particular organization.
In this forum I would like to articulate my overall general support for Bill 26. I believe that for citizens and local environmental community groups, this bill is needed and can play an important role within the larger context of responsible environmental protection and stewardship within Ontario.
Finally, within this context of support, I also want to state that I have some concerns with this bill and would like to see some amendments and implementation issues considered by this committee.
My understanding of the environmental community: I've been formally involved in the environmental community for the past seven years. Before that, my involvement has been in an informal way, around my personal lifestyle choices.
As a member of the environmental community in Ontario, I am clear that the bill has a strong and growing constituency within this community.
My experience and understanding of the environmental community is that it is heterogeneous as opposed to homogeneous. It is a broad-based community composed of a diverse array of over 600 groups with differing backgrounds, perspectives, strategies, philosophies and objectives. The size of these groups varies from five members to over 300,000 members, probably with an average membership of between 50 and 100 citizens.
There are also differing levels of involvement: people who participate in crisis situations once in a while to those who really are active on an ongoing, daily basis. There are those who focus just on the household level, some others on workplace, some at the municipal, regional and provincial levels.
The scope of issues dealt with by these groups ranges from community-based agriculture projects to overseeing waste management programs in their communities, from energy conservation to water quality issues in the Great Lakes, from Bike to Work Week to Cloth Bag Day to forestry practices in northern Ontario. In this sense, we are talking more about a matrix of environmental communities as opposed to an environmental community.
My experience also tells me that the overwhelming majority of these communities are semiorganized, non-profit, locally based, volunteer and community-driven. Most importantly, they are composed of people who are concerned about the wellbeing and health of their community, their family and the surrounding physical environment because of contamination, degradation and lack of responsible protection and conservation in their surrounding communities. Without doubt, the most predominant aspect that composes the environmental community or communities is concerned, everyday local citizens who want to participate in safeguarding the quality of their environment.
Why do I think environmental rights are important? My understanding is that rights are a controversial issue, whether we are speaking of human or environmental rights. In the issue of rights, as with almost any issue, there are limitations as well as possibilities to consider. Given the brevity of this presentation, I would like to quickly identify some of the importance and possibilities of environmental rights. Some of their limitations I will address in my last agenda item.
The points I would like to elucidate are as follows. The first one is that the struggle against environmental degradation is in part a conceptual battle, and environmental rights work to address this battle. What I'm trying to say is that how we define and perceive the environment is a conceptual issue; that is to say, how we talk about the environment, whether we talk about it as a commodity or whether we talk about it as a living ecosystem. The language and visibility we give the environment in policies and acts which inform actions are important.
How, as a citizen, can I hold a public official responsible to a certain vision if there is not acknowledgement of that vision in the policies and laws which govern the society I live in? Therefore, I feel environmental rights express intent and articulate a collective valuing of nature, its worth and deep interconnection to human health and wellbeing.
It is also a conceptual issue with regard to how, as a society, we conceive of or understand the role that citizens play in environmental protection. I believe that environmental rights can formalize the roles and responsibilities of government and also give citizens clear recognition of entitlement to certain rights.
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I want to address how I think this present bill deals with some of these aspects. The rights within this bill provide, first, an affirmation and formal recognition of who we are -- and when I say "we," I'm talking about the environmental community or communities. So why does it affirm and give a formal recognition of who we are? It does because it acknowledges that we are citizens who want involvement, voice, accessibility and say in how government makes decisions affecting the environment.
Secondly, this bill of rights articulates important aspects of what we are striving for, mainly a clean and healthy environment for ourselves and future generations, a government and system that is environmentally responsible and accountable, and also a recognition of the inherent value of the natural environment.
In addition to some of the conceptual issues the bill deals with, rights are also more than abstract statements of values or intentions, but are also concrete and practical tools to be used by rights holders. Today I'm talking about rights holders as citizens and local citizens groups. That is to say, beyond statement of values, they need to provide concrete mechanisms to facilitate and enforce these rights in a fair and equitable manner.
I believe this bill establishes some of these concrete mechanisms and I'd like to outline some of them. As far as rights to greater transparency and accountability of decision-making, I think the bill does provide a number of mechanisms. First is getting notice of proposals through the environmental registry system. Lots of proposals are decided upon within government of which the public has no clue that their proposal is even on the table or is even going to be decided upon. This is a lot of our struggle as citizens and as grass-roots groups and this bill certainly acknowledges that difficulty and barrier. I think the creation of a registry helps deal with some of that problem and barrier which has been up for a long time.
Secondly, statements of the public's right to involvement in a given decision is also crucial and I believe it is also a concrete tool to help facilitate rights. My knowing what my rights are, by having them in print on a registry system to say what my involvement may be in a proposed decision, gives me clarity and gives me a sense of what my entitlement is.
Thirdly, I think it's crucial that in this bill there is required government response to our input of why a particular decision was made. Nothing is more frustrating as a citizen, or as a citizen group, than to spend hours of time on a submission, doing research, networking with others, using money out of our own pockets and our membership fees and to submit it to a minister and have no sense of reply, to have a decision be made and say: "I can't believe it. Did they not at all hear me?"
I think the bill does provide some form of concrete tool to establishing that barrier of saying, "Yes, you're heard." I also realize that doesn't mean we're also heard the way we want to be heard. But the fact that the minister has to give reasons of why the decision was made I think is an important step in the right direction.
Other mechanisms such as the right to appeal an instrument approval I think is also important.
Lastly, I just want to mention the creation of an Environmental Commissioner's office. As citizens, we can't do all of this monitoring ourselves. Most of us do this all on a volunteer basis; we have full-time school work or full-time jobs, have families. We can't spend all this time monitoring government and their actions and whether or not they're taking us seriously. That's why an Environmental Commissioner who is at arm's length from government I think is a crucial step to making these tools real, to making them effective, so that they're not just fancy words in text.
Finally, as far as the issue of environmental rights is concerned, I want to clearly state that I believe environmental rights are a means to change but they're not an end to change. I believe they must be placed within a larger societal context. They don't stand alone; they work in relation with other measures and means to protect the environment. I don't claim to be an expert on all of this larger context. A lot of it is overwhelming if you're not spending full time understanding it.
But from my experience I do see rights within a larger context and I think it's important to place it in that context. This bill will not end irresponsible treatment of the environment, but it does provide mechanisms that can assist us in working towards this direction, and I feel that's important.
The last area in my presentation I want to deal with is the notion of consultations on the draft bill, some of my concerns and amendments I think need to be made.
In the early fall of 1992, environmental non-governmental organization consultations were held in 12 communities across the province. When I say across the province, this is northern Ontario, southern Ontario, western Ontario, eastern Ontario, and when I say 12 communities -- one was held in London, for instance, which I coordinated -- it doesn't mean just London people came. People from the London and surrounding area came to these workshops.
It's also important to say that these consultations were facilitated by the Ontario Environment Network. What is it? It's a non-advocacy network of ENGOs, or environmental non-governmental organizations, across the province. I was involved in two of these consultations, in London and Toronto.
Some of the salient points in this document which resulted from these consultations are as follows. I have the report here and I hope you all have a copy of it, because I think it's important to again refer to and take serious consideration of it at this stage in the process.
(1) The report indicates that there was widespread support for the concept of an Environmental Bill of Rights.
(2) The report also indicates that such a piece of legislation has long been advocated by Ontario's environmental community.
(3) Throughout these consultations citizens expressed their support for the further development of the draft EBR. There was also general support for many of the core components of the bill, such as the model of public participation, the right to apply for review, the right to apply for an investigation, the right to sue when needed and expanded coverage of whistle-blowers.
However, it is also clear these consultations revealed concerns that citizens and groups wanted to have addressed within the further development of this bill. I want to raise a few of these concerns that I see have not been addressed and feel are in need of the attention of this committee. The two I'd like to raise that were identified and have already been raised in this session are ministerial discretion and funding. I'll go into them briefly.
The report, based on the draft text, indicated that there was too much ministerial discretion and throughout the EBR consultations citizens repeatedly identified the degree of discretion given to ministers as a concern.
I would like to suggest that subsections 15(1) and 16(1) in particular be changed to reduce the minister's discretion regarding notice of proposals for policies, acts and regulations and that an objective test be imposed in order to reduce this subjectivity. An objective test would enable a minister to be held more easily accountable and to be more easily reviewed by citizens and the Environmental Commissioner.
Dealing with the issue of ministerial discretion I believe connects directly to a comment on the Environmental Commissioner's office, and that is to say it's important to emphasize the Environmental Commissioner's importance to monitor such issues of discretion. I feel that no matter what piece of legislation it is, there is going to be discretion, and one of the Environmental Commissioner's roles is to monitor how discretion is used within government and to report that to the Legislature.
Another problem is the lack of a funding mechanism in the bill. There are a lot of issues around funding, most of which I don't have time to raise here. I am writing a formal report and submission about these funding issues and I will submit it shortly for your consideration. I also know there will be other presentations that will deal with this issue directly.
However, I do want to deal with one item, and that is the lack of an accompanying regulation in the bill which recognizes a proponent-pay principle in cases of mediation that occur under the bill. It's very clear that citizens placed around the mediation table do not have the resources or the funds to prepare for mediation or participate on an equal footing with industry or government representatives. Based on the gas utility proceedings, I believe and hope a precedent has been set which recognizes the proponent-pay principle for mediation.
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In this sense, I hope the present bill has an implicit assumption within it that when mediation is looked into in more detail in the EBR office, this will be formalized, whether in the bill or in the regulations accompanying the bill or in the implementation. I think we can clearly say that mediation will not be seen as an effective and meaningful tool of participation without some kind of funding support.
There are other amendments I want to suggest to be made which I will include in a written submission. But, to conclude, I want to say that I personally believe citizens groups do support the bill and want it passed as soon as possible. We do not want this bill to demonstrate another failed attempt at bringing environmental legislation to Ontario. There have been too many failed attempts already. We want to use the bill.
As a bill stemming out of a consensus task force process, there was a compromise involved on the part of all parties. In this respect, some of the needs of all the sectors represented on the task force were met, not solely the needs of the environmental community.
I will end by saying that I know without doubt that citizens and citizens' groups aren't interested in merely enhancing our present bureaucratic or litigious culture but are interested in rights that are as user-friendly and accessible as possible. Both the act itself and its implementation must work clearly towards these goals. Thank you for your time; I am finished.
The Chair: Thank you. I am sure we have some questions. Mr Tilson, there's about three minutes for each party.
Mr Tilson: I understand your cynicism in dealing with ministers, dealing with big government, just trying to reach them, writing them letters in hope that you get a response, trying to set up a meeting with them. I understand that. You've obviously been following these proceedings and I hope you understand my cynicism with these whole proceedings, that there's going to be only a select group of people who are going to be allowed to appear before this committee. I'm cynical about the whole process from start to finish, considering we're talking about rights.
I guess I get to the next issue. The bill will pass, because the government will deem it to pass. I understand your statement to say it should be passed as soon as possible, notwithstanding many of the concerns you have expressed, and they may or may not be listened to by this government.
I'd like to get to the stage where the little person wants to object about something. In other words, you talk about the issue of financing to the little person who's going to be handed a package, presumably a bill of 126 sections, unless it's amended, a rather complicated process. We know now this province is almost broke. It's cutting back on the whole issue of assistance, financial sharing, with respect to the Minister of Environment and other ministries. They simply do not have the funds. Yet we're now going to have a commissioner who's going to be criticizing a Minister of Environment for not doing his job because he doesn't have the funds to do things.
I know you've indicated that you'll be talking about the funding at a later time, but is it possible in these times, when we're getting cutbacks to Ministry of Environment staff -- they're not able to enforce many of the provisions they now have because of whatever reasons, perhaps because they don't have enough staff, yet there is the whole fear of whether or not the commission can really do its job. You and others are saying, "Well, let's expand the role of the commissioner from the 15 people who are now being suggested to perhaps an even larger bureaucracy." All of this is going to cost a great deal of money. I'm not putting down the environmental problems; I'm talking about the economic reality in this province. Would you comment on those remarks?
Ms Gardner: I count at least six issues you raise. You're saying I can answer on any one of those issues?
Mr Tilson: Take the quick ones; I'm easy.
Ms Gardner: I think clearly that everybody is under fiscal constraints now, whether it's government or certain ministries within government or me as a citizen. We are all being financially careful and cautious. But I also feel that certain acts and pieces of legislation need to go forward within this present economic climate and I feel this bill is one of them. For instance, I do not stop my activism because I'm no longer on my scholarship from my school or because I just didn't get a job. It doesn't mean I no longer try to make that phone call or do that networking. I have to try to be more creative about it, but I don't stop --
Mr Tilson: You could do that now.
Ms Gardner: But I don't stop my activism even if my finances are reduced, and they have been and they probably will be.
As far as the issue of funding is concerned, more largely, I think that a lot of traditional ways of funding are still important and I also think we're at a time when we have to look at new ways of funding and new priorities, at what funding means and where it should go.
I'll speak only personally. I don't think it's just government's responsibility to help groups get funding under this bill. I see it as the responsibility of multiple sectors. I guess the only thing I can say for myself within this climate is that maybe if we all give a little bit, together we'll have enough. I don't expect just me to give or just you, as government, to give, but to come together, to be cooperative and to create dialogue around this -- I'll give a little bit -- and also prioritize what's most important at this stage in the bill to provide funding around.
My bias is certainly in the early stages of participation, because it will -- and when I talk about funding, it's not a larger Environmental Commissioner's office, which might cost more money; for me it's about basic education and awareness programs on the bill and how to use the bill. That doesn't have to come from just government. Education awareness is one activity that foundations and private sectors are often willing to fund-raise for. I can fund a cloth bag day in London quite easily compared to a more contentious issue.
Mrs Mathyssen: Thank you very much, Ms Gardner, for representing London and area so very well. Two quick questions. You talked about the importance of the arm's-length commissioner in terms of being a monitor. It seems to me that there's a great deal to know. If I were the commissioner, I would need a lot of expertise. I wondered what qualifications you think a commissioner should have. Secondly, if you could comment, you mentioned the fact that there'd been an extensive consultation process and a real give and take among a number of parties that are affected by this bill. Could you identify perhaps one or two areas where that compromise, that give and take and listening to each other, made it a better bill?
Ms Gardner: As far as the issue of extensive consultation is concerned, I'm referring to the consultations conducted by the Ontario Environment Network with 12 communities across the province. I feel this was an important forum to help citizens understand the bill and to raise issues around the bill, which then went back to the task force.
As far as my comments on compromise were concerned, I was not a task force member, clearly, and my understanding of the process came by, I guess, trying to put my ear to the ground or trying to be as aware as possible of what was happening. Why I know there was compromise was because a group of citizens who were involved in the community consultations across the province were working together after that point in time to say: "Okay, here's this document. We have a constituency saying basically what we wanted. How can we summarize this in a very short form, in the form of a citizen or an activist document, saying what do we want to give to the task force, to say to Paul Muldoon or Rick Lindgren, please take these concerns to the task force as strongly as you can because out of all the possible amendments, these were really consistently important to us."
So my knowledge on compromise is that all of those issues that we brought to Rick and Paul to bring to the task force were not gotten, and funding is a good example. The issue of funding was not at all dealt with within the task force; it was seen as outside the consensus. Ministerial discretion could be another issue which we raised with them, and within the time constraints the task force was dealing with and the difficulty in resolving some of these issues, that necessarily wasn't dealt with to our adequacy either.
So those are a couple of examples of my having the understanding that compromise did occur. It wasn't a matter of them saying, "If we don't get this, that's it." I think there was give and take on all sides.
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Mr Grandmaître: Thirty seconds?
The Chair: Yes.
Mr Grandmaître: I know you're not interested in talking about funding today, but can I get away from Bill 26 for 30 seconds and talk about intervenor funding? What are your thoughts on intervenor funding?
Ms Gardner: I can only say that I have never participated in an Environmental Assessment Act hearing, nor have I ever applied through the Intervenor Funding Project Act. My only familiarity with the IFPA, if those are the correct initials, is some documentation I have read about its importance. I don't know the titles of the documents except that one came through the Canadian Environmental Defence Fund and I believe one was also done by Marsha Valiante, who I believe is speaking after me. I do believe that those reports, in which consultation had occurred with people who are users of the IFPA, said that it was crucial and very important to their representation and ability to represent themselves and their groups at these forums.
Mr Grandmaître: One short last question? Good.
You told us that you have been following Bill 26 since 1991, if I'm not mistaken, and you've even chaired a meeting in London, and yet I get the impression that you feel, even with a task force and all these great meetings, you weren't given a fair shake. Am I misreading your thoughts or misunderstanding your delivery?
Ms Gardner: If this bill were largely a litigious bill rather than a procedural bill, I would say that perhaps we have been given an unfair shake, as you've put it, but I see that 80% to 90% of this bill is about process rather than about using the court system. For me as an environmentalist and friends I know, a lot of our concerns in these consultations were about implementation of the bill. We saw the framework and we said, "Yes, this looks like this can help us," but a lot of our questions said, "How will this look in implementation?"
I think in that sense we have been given a fair shake, because I think a lot of our responsibility as groups is to work with the office of the EBR, which to some extent we have tried to do over the last several months, to work towards changes, and so far it has been positive in receiving us.
The Chair: Thank you very much for appearing before us today. We appreciate your coming from Hamilton to see us.
MARSHA VALIANTE PAUL EMOND
The Chair: The next presentation will be from Marsha Valiante. Good afternoon. It's good to see you on short notice.
Ms Marsha Valiante: Good afternoon, Mr Chair and members of the committee. My name is Marsha Valiante and I'm a professor of environmental law at the University of Windsor. With me today I would like, if it's okay with the committee, to share my time with Professor Paul Emond of Osgoode Hall Law School in the depths of North York. I think he came farther than I did today.
What I want to do is to make a statement and then Professor Emond would like to say a few words about the bill. The perspective I'm going to take is to talk from a more general perspective on the Environmental Bill of Rights, to talk about some of the larger issues and the larger context of it. I want to start by talking about the need for an Environmental Bill of Rights and then talk about what I see as some of the strengths and weaknesses in the bill. I apologize for not having a written submission but I will undertake to put this into the computer and send it to the committee next week.
My first point is about the need for an Environmental Bill of Rights. As we increasingly realize the complexity of the environment, the link between environmental quality and economic security and the intractability of many environmental problems, environmental decisions are getting more difficult to make.
We now accept the need for more preventive action; we accept that a sustainable future requires the commitment of all members of society and, in order to make these difficult choices that we have to make for our future, it's important that we recognize that citizens are legitimate partners in environmental decision-making.
Increased citizen participation is essential in making these decisions for several reasons: First of all, they will result in better decisions. Input of citizens provides decision-makers with a greater range of facts and opinions about the consequences of their actions, it allows them a fuller understanding of the range of issues involved in a decision and makes them better able to make a decision in the public interest, which is the requirement under most environmental legislation. There is an assumption underlying this that there is no one transcendent public interest; there are many perspectives that are brought to bear and that it's up to a decision-maker to bring those together and make an appropriate decision.
A second reason why citizen participation is essential is that it increases accountability. As the basis for a decision becomes more transparent, accountability improves and there's greater chance of acceptance of the decision by those who participate.
Third, and probably the most important reason why citizen participation is necessary, is that it's fair. Citizens of this generation or following ones are the ones who ultimately bear the risks of environmental decisions that are made now, for good or ill. In most cases, as consumers and taxpayers, we also ultimately pay the economic costs, whether it's in the cost of products or in the cost of increased health care because of environmental contamination.
In our legal tradition, persons who are affected by a decision have the right to be heard. In Ontario, many environmental decisions are made without any or with minimal public involvement. The impulse towards greater participation has been accepted in many processes and is a part of the policy of many ministries, but it is inconsistently applied. Different processes are used at different times; the timing is not always early enough in the process to get the value of public participation; there is a glaring imbalance of resources which minimizes the impact of a lot of public participation; and many different levels of information are provided from process to process. The result of this is uncertainty, not just for citizens who want to participate, but for proponents as well.
I appear before you today to support the Environmental Bill of Rights for its attempt to bring more openness and more predictability to environmental decisions. I consider this a legitimate and proper choice to be made. However, I recognize that greater openness is not an absolute value. For me, the key to evaluating Bill 26 as a whole is in the balance that's struck between increased citizen participation and the restraints on that participation that ensure it's responsible. By responsible, I mean that participation will be relevant and constructive and that it doesn't result in inordinate delay to the process.
In my view, Bill 26 contains an acceptable balance. I realize it's a compromise bill and I don't look to it to solve all environmental problems, but I view it as a very positive step forward. I see this as a step that's largely consistent with the rights and procedures that are available in other jurisdictions in Canada and in the United States.
Although I support the bill as a whole, I do want to emphasize what I consider its major strengths and weaknesses. In terms of strengths to start with: The focus in the bill on participation in administrative decision-making is appropriate, in my view. Administrative decisions are usually the most important environmental decisions that are made: They are where a policy is put into practice.
In the making of what, under the bill, are called instruments, this is the least open process now. I have one hat as a professor; my other hat is as a member and a director of a local environmental group in Windsor, and we see this day in and day out, that we are not privy to the decisions that are made on instruments that affect the people of Windsor.
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The focus is also appropriate because -- you may not find many lawyers saying this -- to provide access only to courts would not empower most citizens' groups as a practical matter. No citizens' group, especially a local citizens' group, opts for litigation, because it doesn't have the resources to undertake litigation. So I consider it appropriate that the focus be on administrative decision-making. It's also important because it puts the emphasis at the front end of the process rather than the back end of the process, which is what litigation does.
The provisions of Bill 26 will formalize participation, ensuring greater predictability. I see the provisions as balanced, and there are a lot of examples of where there is that balance. One important area is where there's a hierarchy of participation that's related to the significance of the environmental effect. I see that as appropriate. The more significant the effect, the more participation that should happen.
A second strength that I see in the bill is the establishment of the office of the Environmental Commissioner. I see that as a very important advance and I would echo the comments of the two earlier submissions to you today. I think it's especially positive because it's an office independent of any ministry and it relies on what I consider the underestimated power of publicity and embarrassment, the shame factor, to prompt appropriate government action.
A third strength is the establishment of a central registry of proposals and decisions. That has value in having one place for all the relevant information. It's important for citizens to have it accessible, because I don't know one person in Windsor who's ever read the Ontario Gazette. I think having an accessible place for it is very important.
You read it, right?
Mr Wiseman: Wayne has it.
Ms Valiante: Right, Wayne does. He did when he was a law student.
Another strength of the bill is the inclusion of a right to appeal instruments by citizens. I consider that appropriate because it equalizes the opportunity for review. That doesn't occur in the Environmental Protection Act now.
I think the ability to apply for review and investigation is also a strength, but I do have some reservations about it. That's echoing the earlier submissions as well.
Another strength I see is the inclusion of the cause of action, which is essentially a citizen suit provision. I see that as positive because ministries -- no one, I think, would disagree -- cannot ensure the enforcement of all contraventions of environmental legislation. The experience in the United States with citizen suits has shown that the agency takes on more significant cases while citizens' groups, using a citizen suit provision, take on the smaller cases with more localized impact, which is a workable division of labour in terms of contraventions of environmental legislation which has worked well there.
A final strength that I'll mention is the change in the public nuisance standing rule. I see that as a partial dismantling of the rule, but it's a dismantling that's long overdue.
There are weaknesses that I would like to raise. First of all, the declaration of a right to a healthful environment is too tentative. There's a growing international consensus that environmental rights are fundamental to the exercise of other rights and they're fundamental to long-term economic security. I think that could have been more strongly placed in the bill.
I think the balance that's struck in the bill does allow for excessive discretion, and this works with the judicial review provisions. There's a weakness because very few requirements are there to actually implement the purposes of the bill. There are more what lawyers would call "weasel words," but lawyers also find ways of getting around those.
A third weakness I see, which relates to the amount of discretion, is that the judicial review is too circumscribed. That's been discussed by other people and I won't go any further on that.
The fourth weakness is that, in my view, the citizens suit provision will not be used as much as expected. First of all, it's available in very circumscribed circumstances, so the opportunity to use it will not present itself that often. But more important, the bill fails to ensure that information about non-compliance is released to the public via the registry. Another weakness in the bill with respect to the citizens suit provision is that it fails to change the costs rule or to provide intervenor funding, so that citizens and groups won't be able to afford to bring a citizens suit.
The lack of funding in the bill will also limit the ability of citizens and groups to participate in the administrative processes, in the appeals and in mediation. I consider this ironic because the bill, on the one hand, is giving greater responsibility in recognizing the responsibility of every person to protect the environment, but does not address the imbalance of resources that will allow the fulfilment of that responsibility in a responsible way.
Despite all of these weaknesses, in my view, Bill 26 is a positive step forward and should be supported. I would like to read a quote that expresses my view on this that was written by Professor Bob Paehlke at Trent University. He says:
"Democracy, participation and open administration carry not only a danger of division and conflict but as well perhaps the best and, I would add, the only means of mobilizing educated and prosperous populations in difficult times."
Mr Paul Emond: Just a few comments, because I know you want to ask some questions. I first became involved with environmental legislation in Ontario in 1970 with the introduction of the bill that led to the passage of the Environmental Protection Act, then followed the development of the Environmental Bill of Rights over the last 20 years. It began first with the Michigan legislation, then with the call from the Canadian Environmental Law Association for an Environmental Bill of Rights.
The focus in those early years was on a requirement that there be a substantive right to a healthy environment. The focus in this bill has shifted a little bit, so that the right that's demanded and indeed the right that's provided in this bill is a process or a procedural right. I think that's a sensible development that's taken place.
Indeed, I think the balance that's been struck in the bill, a balance that empowers citizens through better, more effective participatory rights to play a role in environmental decision-making and environmental protection, essentially as equal partners in the process, is a very positive development and, like my colleague from the University of Windsor, I'm very supportive of the bill.
Let me stop there, and perhaps the balance of the time might be spent dealing with questions you may have.
The Acting Chair (Mr George Mammoliti): Thank you very much. We'll go to the New Democrats at this point.
Mrs Mathyssen: I'll ask a question then, if Mr Wessenger has none. You alluded to the need for information to be released to the public by the registry, the non-compliance. Can you suggest a specific mechanism for that, so we can discuss that?
Ms Valiante: I actually did a submission to the task force which fleshed out this a little bit more, but my view on the registry was that it was fairly narrow and that there are a lot of databases that -- my knowledge is of the Ministry of Environment and I don't profess to know about every one of the ministries that could possibly be covered by this. But within the Ministry of Environment, there are a number of databases that are supposedly publicly available if you were to access them. There's generator registration for hazardous waste. There are a number of things that are compiled. In my view, the registry could be a place for all of those things.
I think the participation of citizens in environmental decision-making -- not just that that's dealt with in this bill, but that's dealt with globally -- would be greatly enhanced if all of those databases could be put on to the registry that's created in this bill. So I think information that is supposedly public within the Ministry of Environment, whether it's on a database now, I guess, should be put into the registry and be available if it is actually public. I think that would go a long way to helping particularly citizens' groups that aren't in Toronto to participate in their community.
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Mrs Mathyssen: So you think along the way that information has moved the private sector along in terms of --
Ms Valiante: My point is that that information is provided now. You're not asking the industries that are regulated to provide more information. That information is provided now. It's accumulated in the Ministry of Environment but it's very difficult to get, because there's no real mechanism for tapping into that when you're in a community such as Windsor. It's very difficult to get all of that in one place. You're not able to. My view on the registry is that it could be that vehicle.
The Chair: Mr Daigeler?
Mr Daigeler: I had to be in the House, so I wasn't able to hear the presentation, so unfortunately I'm not be able to ask any questions.
The Chair: Then Mr Tilson.
Mr Tilson: Thank you for your presentation. I appreciate the shortness of the time that you had to prepare and we will look forward to seeing your written comments.
My understanding with respect to the Environmental Commissioner, in fact I suppose really the whole bill, is that it's only responsible for Ontario ministries. Only matters involving Ontario ministries can be challenged. So in effect, for example, a corridor that's going to be prepared for Ontario Hydro, a gambling casino in Windsor, which may be challenged, for example, by the Concerned Citizens of Renfrew County for whatever reason -- and that may be a legitimate request, although I understand the way the gambling casino in Windsor is being established there may be an overlap and it may not be under the jurisdiction completely of the Ontario Ministry of Consumer and Commercial Relations. I'm not suggesting that there will be one, but that's an example in your own area.
The superdumps: When you look at the environmental issues that are concerned in this province -- and there's all kinds of them: the Great Lakes, water, air -- certainly one of the most controversial issues at this time is the superdumps in the greater Toronto area, for example. Those are under the jurisdiction of the Interim Waste Authority and at this present time, this bill, if it was law today, would not apply to those groups.
We're now on the verge of passing Bill 17, I think it is, the bill creating the three corporations. I don't know the answer to this, but I'm not so sure about the one that's creating a corporation for roads, a corporation for water, a corporation for real estate. You may know somewhat of that.
I don't know whether or not, for example, by the government divesting its responsibilities for those areas, if someone is objecting to something that's going on by specifically one of those corporations, because it's not really an Ontario ministry -- and I could be challenged on this, because I don't know the answer to that, but I'm very suspicious of it.
In other words, are we being had -- I say we, the citizens of Ontario -- in that we're going to get all kinds of rights as individuals, but yet not really? Because there are all kinds of things, and I've listed off some of them and if we put our heads together we could think of others, that have very serious environmental repercussions, and the individual, the small person, the large person, whoever, won't have those rights under the environmental bill. Could you comment on that?
Ms Valiante: It's important I think to see the bill in its context. This is not an organic statute that's the only environmental bill in Ontario. You have it being grafted on to a number of other pieces of legislation.
In terms of waste management, obviously the Environmental Assessment Act will apply which has its own sort of protocol for citizen participation. Municipalities have their own mechanisms when you talk about land use planning. There are rights of citizens to participate in those decisions. A lot of those overlap at some level.
I don't agree that the citizens of Ontario are being had. I don't know exactly which ministries will be covered and which won't, and I don't know whether crown corporations will, ultimately or today.
Mr Tilson: I'm not disputing the issue of ministries. What I'm saying is there's a whole bunch of things out there, whether it's the gambling casino, to take a nice interest in a local issue for you, to a Hydro corridor, to a superdump. Under this bill people who are very concerned with these issues have no rights under the environmental bill to challenge the Minister of Environment and Energy, the Minister of Consumer and Commercial Relations or any other ministry. They do not have the right because the commissioner in this bill only applies to Ontario ministries. I believe that's what it does anyway.
Mr Emond: The substantive right in the bill applies far more broadly than that, and if, for example, the IWA is engaged in activity that leads to a contravention of a law or regulation and a significant impact on the environment, one has the right, after you've followed through the procedure that the act sets out, to initiate an action.
Mr Tilson: The minister has denied that there is a process for public hearings under the IWA, notwithstanding that the members of the public who are in the three regional areas are very cynical of what the IWA is doing. They are challenging the IWA, and the fact of the matter is the Minister of Environment is saying, "Sorry, that's a separate jurisdiction; the Ministry of Environment has nothing to do with that," and you can't challenge that under Bill 26.
Mr Emond: You can challenge anything you want under any bill you wish. Whether you'll be successful, I guess, is the key to your question. Will it be a successful challenge? You're absolutely right to raise some questions about the Waste Management Act and the way in which it has exempted the IWA from certain activities within a particular geographic region. But I think that is a separate issue. That is other legislation that was designed to put in place other policies, with which you may disagree. I suspect you do, in light of the question you've asked. But I don't think it's fair to say this bill is ineffective, because there is legislation that speaks specifically to waste management matters within the greater Toronto area.
Mr Tilson: That's the point of my question.
Mr Emond: I appreciate that, but if the Legislature passes legislation that exempts a particular ministry or a particular corporation or an individual from certain acts such as this act or the environmental portions of the Environmental Assessment Act, it's at the point when that legislation is passed, does that then say that one must be vigilant, rather than to say now that the legislation is passed that all the other legislation that doesn't apply is therefore ineffective. I think this is effective legislation. I think this is good legislation. But I appreciate the frustration that you express with regard to the Waste Management Act.
The Chair: Are there further questions from members? Mr Fletcher.
Mr Tilson: Going another round, are we?
The Chair: One party waived its right to ask questions.
Mr Tilson: Then I can have some more time?
The Chair: You've had considerably more time than any other caucus.
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Mr Fletcher: I was just wondering if the parliamentary assistant or his help could expand upon what Mr Tilson was saying. I think that's serious, if that is the case.
Mr Wayne Lessard (Windsor-Walkerville): With respect to?
Mr Fletcher: What Mr Tilson was saying about the IWA.
Mr Lessard: Mr Shaw is from the ministry. He may be able to clarify that.
Mr Shaw: The draft regulation which has been released at the time of first reading prescribes the Waste Management Act of 1992, which is Bill 143; therefore, that act is subject to the provisions of this bill, ie, a request for a review of that act. In the various policy statements which surround the issues of Bill 143, such as incineration, recycling etc, a request for review may also be made of those under the provisions of the bill.
The site selection process that the IWA is involved in is proceeding under the Environmental Assessment Act, and the bill makes specific provisions respecting the Environmental Assessment Act to avoid a duplication of process.
The Chair: Thank you for taking the time, on such short notice, to appear before the committee today. We appreciate your presentation. If you wish to submit a written one, we would be more than pleased to accept that.
CONCERNED CITIZENS OF RENFREW COUNTY
The Chair: The next presentation will be from the Concerned Citizens of Renfrew County, Ole Hendrickson. You have 30 minutes allocated to you.
Mr Ole Hendrickson: I certainly appreciate the chance to be here today. The purposes of Bill 26 are very general, as I'm sure you're aware: to protect the environment, provide for its sustainability and to protect the right to a healthful environment. I'd like to put Bill 26 in the context of other types of environmental protection instruments that are available for the people of Ontario, such as regulations on specific pollutants under the Environmental Protection Act and the environmental assessment procedures under the Environmental Assessment Act.
I also want to generally discuss and will spend a fair bit of time on the use of economic instruments for environmental protection, such as environmental taxes and subsidies, and also briefly talk about initiatives that promote greater awareness of the environment, greater information flow. I feel the Environmental Bill of Rights primarily falls in that latter category. I think the Environmental Bill of Rights is particularly valuable because it enhances all of those tools I just mentioned, although I consider it primarily a public information tool. I think it increases overall public participation in environmental decision-making and makes other existing tools more effective.
First, I'd like to address some of the limitations of regulatory approaches. They're often focused on end-of-pipe solutions to waste problems, to pollution problems. We know there are limitations to regulating pollution. We can't, for example, achieve sustainability just by regulating toxic pollutants, because a lot of the problems in the environment arise from things that really aren't toxic, like carbon dioxide. It's essential for life, but when we have too much carbon dioxide from burning fossil fuels it also is a problem in the environment. CFCs are widely used because they are so non-toxic, yet we've discovered that those are depleting the ozone layer.
We use regulations to limit toxic chemicals in the environment and we can set maximum levels for those chemicals, but really our ultimate goal is to eliminate certain toxics and not to regulate them. There we see the need for economic instruments to work in harmony with regulations to achieve that end.
None the less, we tend to focus on regulatory approaches to protecting the environment, and what does the Environmental Bill of Rights do? It gives us a single window for finding what regulations are available, what tools are available on the regulatory side for environmental protection. Some people might feel we will simply be swamped under a mountain of regulations and policies and instruments under the registry of the Environmental Bill of Rights, but I don't agree. I think what that registry will create is at least something of a simplification. There'll be a single window in which you can go to find out what regulations from different ministries are affecting a case you may be personally interested in.
The Environmental Bill of Rights, in a regulatory sense, is essentially a neutral instrument. There may be flaws in our current regulatory system. If so, those will come out as people start using the registry and using the Environmental Bill of Rights to make challenges. If there are regulatory approaches that are overly complex or unnecessary, those will gradually become revealed as citizens challenge waste problems under the Environmental Bill of Rights.
I agree, of course, that the procedural rights that are created by the Environmental Bill of Rights are very important citizen tools: the application for investigation; the right to appeal new instruments, new policies; the right to sue. Those are extremely important tools which enhance the effectiveness of regulations because, as other speakers have pointed out, sometimes small cases slip through the cracks, and citizens may be quite aware of the local situation which is a problem that can be sometimes fairly easily addressed but it has escaped the notice of the ministry that's responsible. It is a very important citizen empowerment tool for using existing regulations.
One of the areas where I don't think regulations have worked too well in the past is in dealing with natural resources: resource depletion, resource use. For example, in Renfrew county, which is where my group is working, we see that licences to cut crown timber have been issued almost in a hereditary fashion. Sometimes people have held order-in-council licences for generations, literally, and sometimes they are granted access to crown timber at far less than market value, so essentially they are getting subsidized timber and, far worse, often the differential between the rate they pay on stumpage and the open market rate is greatest for the highest-value species like white pine or red oak, and of course that promotes poor forestry practices such as high-grading. One thing I very much hope is that the Environmental Bill of Rights, the regulations, will capture timber licences as perhaps a class II instrument in the future so we can have a better look at how we're allocating this public resource and perhaps manage it and protect it better for future generations.
Now I'd like to turn to economic instruments and give a little philosophical overview of why I think there's more scope for use of economic instruments as an environmental protection tool. I'd like to quote a well-known ecological economist named Herman Daly, who has three principles for sustainability, and sustainability is part of the goal of the Environmental Bill of Rights. These are, very briefly:
For renewable resources such as timber, the rate of harvest should not exceed the rate of regeneration. That's sustainable yield.
For waste we're generating from manufacturing or other processes, the rate of waste generation should not exceed the capacity of the environment to assimilate that waste. That's sustainable waste disposal.
And there's an interesting third condition for sustainable development, that is, that depletion of non-renewable resources should require comparable development of renewable substitutes. We have to move our society, gradually but steadily, from non-renewables to renewables.
Daly and his colleagues suggest that there may be a wide variety of economic instruments, and some of those are marketable permits, fees, environmental performance bonds and property rights to implement those three conditions of sustainability. They talk about severance taxes on consumption of non-renewable resources, on greenhouse gases and so forth. Quoting Daly, "Fees, taxes and subsidies should be used to change the price of activities that interfere with sustainability versus those that are compatible with it."
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Many people recognize the need for markets to reflect the full environmental cost of products, yet I think there's a very acute awareness, particularly among politicians and bureaucrats, that if a jurisdiction shows leadership in using economic instruments for environmental protection it may endanger its existing industries and markets, so who will lead? That is a big limitation of relying on economic instruments, because it does risk loss of your current industry.
I think in the long run Ontario would derive a lot of benefits from greater use of economic instruments in regulating resource use and sustainability. This is true particularly if we shift taxes gradually from the point of consumer purchase back towards earlier stages of resource extraction and manufacturing, if we tax pollutants, if we tax extraction of non-renewable resources. Why? Because putting the taxes at the front end encourages further value added processing downstream. That will help speed a transition to economies that are based on more sustainable resource use, more recycling, value added manufacturing, self-reliance, diversification and perhaps allow us to decrease sales tax and personal income taxes.
Just to make my point clear, I think we need to consider carefully new economic measures to promote resource conservation and waste reduction. Our regulatory approaches can only partly get us where we need to be. I think they're important too. I think the Environmental Bill of Rights can and should be used to stimulate public debate on resource taxation measures, and I strongly recommend that drafting regulations for the Environmental Bill of Rights take this into account.
In particular, I recommend against taking a strict approach to subsection 16(2) of the Environmental Bill of Rights. That section suggests that ministers need not give notice to the public of a regulation that is "predominantly financial or administrative in nature." This is where I think we get to the idea that environmental rights are fundamental. Every cent we spend as a government has an impact on the environment, and we can't come to grips with sustainability without realizing that fact.
I note that the Ministry of Finance is one of the ministries that is expected to prepare a statement of environmental values under the bill of rights, and I strongly support that. I think that with some encouragement both the Ministry of Finance and the public will be willing and able to tackle environmental protection using things like economic instruments, government procurement policies, new fiscal measures.
Now I'd like to turn to environmental assessment as a tool for environmental protection. There are limitations to environmental assessment, and one of those limitations is that it's very much focused on the final decision. If a project has been developed in the absence of well-thought-out sustainability, and also, I would argue, in the absence of proper market signals for sustainability, it places a minister who has to make a decision in a no-win situation: Do you accept the flawed proposal or do you reject development altogether?
Often with the environmental assessment process, we're faced with decisions that are flawed. They're no-win; we've got a bad project. A bad project arises from an earlier problem in government, which is a bad policy or a bad program, and this is where I think the Environmental Bill of Rights can really come into play. It will help increase public involvement in earlier stages of government decision-making because policies will be captured under the registry. We will have notice of new policies, new programs, and that will help the public be involved in getting better environmental policies in the province.
In my area of Renfrew county I think we have suffered in particular from bad energy policies in Canada which have led to large subsidy. We are now very dependent on AECL Chalk River for employment, and I think that's unfortunate. Nuclear power is not a particularly sustainable industry, and I think savings could have been made from more citizen participation, more knowledge in an earlier step in terms of policymaking.
Another key goal I see that the Environmental Bill of Rights will facilitate is diffusion of sustainable decision-making through different government ministries. Again, the ministry statements of environmental values should be very helpful in this regard. So ministries that perhaps in the past haven't thought of themselves as environmentally concerned will be thinking along those lines when they prepare those statements of environmental values, and I think the public will be interested in being involved in that process.
I see environmental assessment as primarily a tool for enhancing public awareness, for promoting public information. I think both the Environmental Assessment Act and the Environmental Bill of Rights are primarily tools for conveying public information. I don't see the Environmental Bill of Rights as primarily a litigious instrument and, again, one very important thing to remember about the Environmental Bill of Rights is section 85, the concept of due diligence.
A key benefit of the Environmental Bill of Rights for industries and for institutional investors is that it will reveal gradually what the public concerns are about the environment in their particular sector. They will be able to look at other companies in that sector that have encountered challenges and they will recognize the need for due diligence in their own manufacturing waste management procedures.
So it will put an onus on companies to also incorporate sustainability concerns into their thinking and their decision-making, because it's not enough for the government to get its own house in order, to incorporate environmental assessment into its spending and its regulatory activities. That thinking about sustainability has to be incorporated throughout society into businesses, into households, and the Environmental Bill of Rights again has some merits in accomplishing that goal.
Now some concluding remarks. I've talked about regulatory instruments and about economic instruments. The distinction between those is probably less distinct than many people would suggest. Things like tradeable emissions permits, pollution taxes and resource severance taxes all accomplish regulatory aims by correcting misleading market signals, by avoiding externalities.
So really the goal isn't to get government out of the marketplace, but to ensure that government intervention occurs in a fair and cost-effective manner. As I suggested earlier, the Environmental Bill of Rights should be designed to encourage the use of economic instruments to supplement our regulatory instruments, which we tend to focus on for environmental protection.
I also have a lot of concern about where environmental protection is going internationally. I see that there is a trend these days to deregulation, a sense, especially at the international level, that we've just got to take away regulations because other countries will outcompete us; if we have stricter regulations, our companies will simply flee the province.
As I pointed out earlier, I think there's a lot of merit for Canada, a very resource-dependent country, and Ontario as a resource-dependent province, to champion better use of economic instruments because you can keep more financial activity at the local level.
One very important thing about the Environmental Bill of Rights in Ontario: It's a sign that the deregulatory tide may be turning; it's a sign that we still believe in protecting the environment with a variety of regulatory instruments and making them more effective by empowering citizens to use them better.
I am a very strong believer in voluntary action by citizens, but I'm not a particularly strong believer in voluntary action by corporations and by government because they operate in a more open, public domain. So, fundamentally, what the Environmental Bill of Rights is doing is helping link citizen voluntary action to government regulation, and also it will open, potentially, channels of communications with businesses.
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I'd like to just read a quote from an ecologist, C.S. Holling, who made the following statement:
"Sustaining the biosphere is not an ecological problem nor a social problem nor an economic problem. It is an integrated combination of all three. Effective investments in a sustainable biosphere are therefore ones that simultaneously retain and encourage the adaptive capabilities of people, of business enterprises and of nature. Those adaptive capacities depend on those processes that permit renewal in society, in economies and in ecosystems. In nature it is biosphere structure, for business and people it is usable knowledge and for society as a whole it is trust."
I think most fundamentally the Environmental Bill of Rights is about creating a society where businesses, governments and ordinary citizens are open and honest in their dealings with each other and it is fundamentally about trust.
Thank you for this opportunity.
The Chair: Mr Daigeler, we have about three minutes a party.
Mr Daigeler: Thank you very much for your presentation. As somebody from eastern Ontario, it doesn't happen too often that we come down for a presentation to the committee, so it's appreciated. Were you already involved in the task force that prepared the bill that's before us?
Mr Hendrickson: No, I was not.
Mr Daigeler: Could you tell me what is the main concern of the group that you represent? I seem to detect you're mostly related to the lumber industry there.
Mr Hendrickson: Mostly, actually, to the Chalk River nuclear labs of Atomic Energy of Canada Ltd, which are federally regulated, but that has given me some insights into things like environmental assessment. For example, we're very active in the proposed removal of the low-level waste from Port Hope, which would come up to the Deep River-Chalk River area. That is really one of the two sites that's in the radioactive waste siting process, which is being run federally, but I suspect that Ontario will at some point be asked to render a decision on that.
Mr Daigeler: I still have a bit of difficulty with this environmental registry. I'm not really involved in this area so much. Can you see an instance where you or your group would use that register, where you would tap into it, and could you give me an example?
Mr Hendrickson: Yes. An example is that about four years ago the AECL in Chalk River was operating a radioactive waste incinerator. To operate that incinerator, they needed not only Atomic Energy Control Board permission but also a permit from the province of Ontario. We were simply not even aware that there was a radioactive waste incinerator operating there.
I think that a registry might help alert groups like ours, small groups with pretty limited resources, that something like that was happening in our neighbourhood. It's not currently operating, but it did disperse a fair bit of radioactive, gaseous substances in the vicinity of the Chalk River labs.
Mr Tilson: Thank you for coming. You've obviously read a lot and thought about many of the issues that you've put forward, and I appreciate your coming and expressing your views.
I appreciated the issue of voluntary action that you were suggesting in your comments. An expression that I've heard recently, and I don't know how widespread it is, is that instead of talking about the 3Rs we should be talking about the 3Es, in other words environment, energy and economy.
I suppose the example would be the firm that develops a treatment plant for the purposes of reuse of water and suddenly finds out that economically it pays to do that, and that type of thinking I agree with, as opposed to having regulation after regulation and ordering people to do certain things. Whether we like it or not, all of these things are wrapped into one, and you have said that much more eloquently than I.
I guess my question to you is that if we're going to try and encourage companies, the larger polluters or whoever, the small polluters, to do these things and to take the voluntary action that you suggest -- and you have said in your comments that you think Bill 26 will do that, but will it really? Should we be working on the legislation that we already have?
We can be very critical of ministries for not doing certain things. The Environmental Commissioner is going to come forward and say that. But shouldn't instead a government, whatever government, be in fact trying to improve legislation which we all know is inadequate, the actions that are being taken by the Ministry of Environment, for example. My question is, really, is Bill 26 going to solve the problems, and they're very intelligent solutions that you've been talking of.
Mr Hendrickson: No, it won't solve all our problems. It's one tool. I think it makes other tools more effective. What you asked about voluntary action by companies, I suggested that we certainly need regulations. I don't entirely believe that voluntary action can solve our problems, but I also mentioned the concept of due diligence.
I think that's where companies have some scope for voluntary action in preparing their own environmental audits, which may not be required under legislation, in alerting their own workers about the need for environmental protection, in the CEOs, the senior management, taking personal responsibility for transferring that sense of stewardship throughout the company. I think, sure, there's some scope for voluntary action but you have to have regulations. You've got to have ground rules, baselines, that everyone has to follow, a sort of level playing field.
Mr Wiseman: You went down a road that isn't really directly connected to the bill.
Mr Hendrickson: Yes, I understand that.
Mr Wiseman: But it's one that I'm interested in and I want to hear your views on, and it has to do with tradeable permits. In the United States, of course, they've moved in that direction of tradeable permits with respect to sulphur dioxide emissions and it's hoped that it will move the number from 26 million tons a year down to about 13 million.
That's the problem, as I see it, and I just want your comments on it, that it would get it so far and then they'll be able to trade around and you can pollute here or there and you may even be able to overload one section of the country with pollution because you've traded all the permits to that one area. Then you've got a situation where it's no longer dispersed equally but it is now more concentrated and causing even more ecological damage at maybe even the beginning of an ecosystem, so that everything downstream and downwind becomes even worse.
Mr Hendrickson: Tradeable permits again, that's one instrument. I share your concern. It gets you down to some baseline level and then you can end up stuck there. I personally think that tradeable permits may be -- maybe you need pollution taxes or something like that to really make the market signal effective, because our goal should be ultimately elimination. But for something like sulphur dioxide, realistically we're not going to achieve an elimination of sulphur dioxide in the near future.
To some extent I've suggested that there may be a sustainable environmental assimilation capacity for certain things. We see that with carbon dioxide. There's probably some sustainable assimilation capacity for sulphur; we can live with some of it probably in ecosystems. Maybe that's something where tradeable permits aren't the worst idea for that particular thing, but I wouldn't certainly recommend them for a toxic pollutant, for example, because there you clearly want to get to elimination and not just reduction.
The Chair: One minute. A very short question with a very short response.
Mr Wiseman: Under the Environmental Assessment Act, it requires that the proponent would have to prove that there are no other alternatives to the activity that they are undertaking, that they will have to prove, for example, that what they are doing is the only choice. Under the Environmental Bill of Rights, wouldn't they be required even more so to find other alternatives than just using the environmental assessment process?
Mr Hendrickson: I'm not quite sure I follow your question; I'm sorry.
Mr Wiseman: All right.
The Chair: Well, that's an appropriate response.
Mr Wiseman: In 30 seconds I don't think I'm going to be able to clarify it, but thanks anyway.
Mr Hendrickson: I'm really sorry.
The Chair: You could have this discussion following the committee meeting. Thank you very much, Mr Hendrickson, for appearing before us today.
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CONSERVATION COUNCIL OF ONTARIO
The Chair: The final presentation of this afternoon is from the Conservation Council of Ontario, Duncan MacDonald and Chris Winter. Good afternoon, gentlemen. You have been allocated one half-hour for your presentation before the committee this afternoon. We appreciate your appearing on such short notice. You might want to reserve some of the time for a discussion of your presentation with the members.
Mr Duncan MacDonald: In a reflection on the shortness of notice, your copies of our presentation are in transit. You'll be getting them any moment.
Mr Chris Winter: We've got them; you will.
The Chair: We appreciate the time lines were very tight.
Mr MacDonald: What I would like to do in my presentation --
The Chair: I'm sorry; would you just introduce yourselves for the purposes of Hansard?
Mr MacDonald: My name is Duncan MacDonald. I'm president of the Conservation Council of Ontario.
Mr Winter: I'm Chris Winter. I'm the executive director for the Conservation Council of Ontario.
Mr MacDonald: Just by way of background, I'd like to tell you briefly about the Conservation Council of Ontario. We're a council that was established in 1951. Our patron is the Lieutenant Governor of Ontario. We bring together 32 provincial organizations that have an interest in the environment and the conservation of natural resources. We are quite a diverse group that represents a broad spectrum of interests in the province of Ontario. So we thought it was very important to be here today to put forward our views.
Just for the record, we are supportive of the need for a provincial Environmental Bill of Rights, and we expressed this concern to the then Environment minister, Ruth Grier, last year. So any of our remarks I think should be taken within the context that we are supportive of this idea.
We have a section in our brief on general concerns, and I will deal with those. Chris will deal with the whole area of the environmental statement of values, which we think is very important to the bill of rights. Then in the rest of our brief we look at different sections of the bill, putting forward the concerns we had in 1992.
Some of our general concerns: The rationale for the Environmental Bill of Rights is to open the environmental decision-making process to the residents of Ontario; give them access to the information necessary to take action; guarantee them the opportunity to go to court, if necessary, to protect the Ontario environment; and protect them from undue pressure, coercion or other penalty in the exercise of these rights. The foundation of these new rights is the establishment of an open, understandable, accessible process of environmental decision-making.
While the draft EBR we have before us makes great and unprecedented strides in the achievement of that objective, the CCO has some concerns as to the format and contents of the bill. We emphasize that we support the bill and present our recommendations and suggestions as friendly amendments that would, in our opinion, strengthen the bill and help ensure its objectives are realized. The CCO's general comments follow.
We are concerned about the dense, impenetrable, legalistic tone of the current draft. While the bill is directed at including the individual, in its tone and its language it tends to exclude everyone without a law degree. We encourage that a companion document that provides a clause-by-clause analysis be published to encourage public use of the bill's provisions.
The CCO is concerned about the degree of ministerial discretion built into the legislation.
The CCO is concerned about the excessive time allotted to the implementation phase. Allowing for the nine months allocated to the drafting of ministerial statements of environmental value and the "reasonable length of time" given for the drafting of regulations for the categorizing of classes of instruments, we do not foresee a working version of the EBR in place and operating before the end of 1996. We would recommend that much of the preparatory work could be completed over the next 12 months.
The CCO is unable to comment in an authoritative manner on a number of substantive issues -- the nature and structure of the registry, the content and use of the SEVs, the application of the EBR to crown corporations, the grandfathering of environmentally significant instruments such as class EAs etc -- which are to be covered or will be covered by regulation. We would welcome an opportunity to make recommendations in these areas when the supplementary regulations are released.
I would now ask Chris to talk briefly on the statements of environmental values.
Mr Winter: Thank you all for giving us the time to be here. I guess that in pulling together this recommendation we wanted to make sure we were dealing from an area of strength of the conservation council and what we've been doing. That area of strength is in the whole concept of environmental strategies and how we really make sense out of this whole mishmash of regulations, legislations, policies, instruments -- whatever you want to call them -- both within government and non-government, and private sector as well. There has certainly been, in the last five years, a lot of energy now being dedicated to the environment. Our goal is to make sure that energy all goes in the right direction, in a positive direction, and that there's some common sense and coordination among them.
We see the Environmental Bill of Rights as being the first piece of legislation that is intended to do that, to bring all the various pieces of legislation and instruments together and create some harmony and consistency and sense of purpose among them. There is a tremendous potential in this bill, and that potential is in building better government, more environmentally responsible government and more effective and cost-effective government. All this depends on how the Environmental Bill of Rights is applied.
What we see with the draft we have in front of us is that there's a potential for it to be a major contributor to an improved environmental strategy for Ontario. There is also a potential for it to be business as usual and still proceeding along in a muddled, confused way. I think a lot of that depends on how we approach the statement of environmental values.
The first thing to highlight, keeping in mind this comment about how the bill should be people-friendly, is that I had to go to the companion document to get the comment about the bill that I wanted to describe its purpose. That's from An Introduction to the Bill of Rights, where it says: "The bill will place a greater emphasis on making right environmental decisions in the first place. It will require greater political accountability when government makes decisions. If government fails to protect the environment, citizens may go to the courts. The courts are seen as a last resort."
I don't know the process and the presentations you've had here, but my sense is that the tendency with any bill like this is to look at the legal ramifications and what's going to happen in terms of lawyers and court cases and dollars and everything like that. I look at this and say, "The most important thing we do is up front," and look at the statement of environmental values as a statement that is going to guide ministries and bureaucrats within those ministries and also guide us outside government, in the non-government community, in the private sector, on how we focus on environmental priorities. So a stronger emphasis has to be made on upfront planning and effective public consultation.
The Task Force on the Environmental Bill of Rights said in its July 1992 report, "Many ministries within the Ontario government have developed the equivalent of `mission statements' or `strategic plans,'" and encourages the ministries to use those as a starting point. "This statement should not be lengthy and should achieve two objectives: it should provide a concise statement of what the purposes of the Environmental Bill of Rights means to environmental decision-making within that ministry and second, it should integrate the purposes of the Environmental Bill of Rights into the considerations that are already being applied as part of that ministry's decision-making." Essentially, it's saying that the statement of environmental values should say how the ministry expects to respond to all the provisions in the EBR.
We compare this with what we said in our 1991 environmental strategy for Ontario, where we brought together about 200 individuals to brainstorm on an environmental strategy. The very first recommendation in our strategy was that each provincial ministry and federal department should publish a clear and concise strategy outlining the major problems under the ministry's jurisdiction and proposed remedies. We say the strategy should be short -- no more than 20 pages -- and contain a statement of major concerns and their implications, current plans to resolve the problems, new ideas under study which would further help resolve the problems and research needs; ie, what we don't know but need to know. So there's a similarity in what we've been asking for and what's in the Environmental Bill of Rights.
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There's also a difference in that the Environmental Bill of Rights, in the current wording in section 7, focuses mostly on process questions. It deals with the process of dealing with environmental concerns and at the moment, in what I read in the text, it doesn't give us an assurance that the ministries will identify and address the significant environmental issues in meeting the requirements of the bill. So I'd like to see that component strengthened.
The differences that we see would be a more detailed description of environmental issues and their ecological, economic and social impacts and a statement of the existing and proposed instruments for addressing these reviews. That I'd like to see, if not written into the bill, certainly written into the description and guidelines of how each ministry should develop them.
We point to the common ground of the Ministry of Agriculture and Food as an example where they deal with all the issues facing the ministry. They have a one-page section on environmental responsibility. It gives a quick listing of issues, such as soil degradation and farm water supplies, and it says the that ministry will develop long-term and integrated strategies for dealing with these. It sounds fine to me. I think that's what we're all after, but I think what we need to go from this statement to what should be in the Environmental Bill of Rights and statement of environmental values is something that says: "Here is how we are addressing these issues, the shortcomings we see in what we're doing, what we need to focus on, and do we think we are able to make an improvement? What kind of improvement can we make?"
So get down to some substantive issues, put those on the table in front of us and give us the opportunity to comment on the ministry's proposed direction. If you do that, then you're able to focus the attention and energies of the entire environmental movement, the ministries and the corporate sector on to common, understood environmental priorities. It allows us to streamline and focus the activities of each ministry in achieving environmental improvement and enhancement.
A couple of points on specifics on the statement of values: First of all, it allows for the minister's discretion to hold a public hearing. We think that should be stronger. We'd like to see at least a workshop or a hearing on the statements of environmental values. If you've got good public input at this early stage, that will set the tone for good governance and good planning all the way through the process right down to what happens on the ground.
That could seem to be a pretty heavy expense, to hold public hearings on each ministry doing a statement of environmental values, so we suggest it either be integrated into workshops that are looking at a number of ministries or, through the Environmental Commissioner, you can select individual ministries for review at any given point in time, similar to what's already done on the estimates process where you target individual ministries and focus on them each year. It can be done within financial constraints and in an effective process.
Secondly, there's no requirement that once these statements are done, they have to be reviewed. It says the minister can review from time to time or not review from time to time. We've suggested in our environmental strategy that each time a new government is elected, it be charged with preparing an environmental strategy, so that when you've got a new political mandate coming into power, you've got it developing a statement of its mandate in that statement of environmental values. Bear in mind that these statements of environmental values are going to be political statements, statements that the government of the day is standing behind. Therefore, they should be reviewed on a regular basis, and I think one of the best ways is to say that each new government should, at the very least, review and re-endorse, reaffirm its support for its environmental strategy or statement of values.
If we have a strong statement of environmental values, I think it will result in cost savings, it will result in an improved environmental movement in Ontario and it will provide for meaningful consultation at the earliest stage of government planning.
As I mentioned, I remember the question in the earlier session on the Environmental Assessment Act. One of the problems with environmental assessment is that we don't have good direction guiding the environmental assessment process or the planning process. If you have good government direction guiding the planning process, then you will have better projects coming out of that process and the environmental assessment will be a much more focused and effective process than is currently the case.
At the moment, environmental assessment is about our only window of opportunity to get at government policies. So you see things like environmental assessments being used to raise issues about why there is no wetlands statement, what should there be in terms of timber management policy. If you switch that around and put the public consultation up front, you're going to reduce the need for expensive processes at the bottom end and it'll be a much better process and a cheaper process all the way through because the people doing the planning will know what it is they're supposed to address and achieve because it's right there in the statement of environmental values.
In conclusion, again we'd want to express our support for the bill. We think it's one of the most progressive pieces of legislation to come forward in a long time because it does have the potential to address some of the fundamental problems in integrating environment issues into social and economic development questions. We'd like to offer our services in helping develop the guidelines for a statement of environmental values and other aspects and, as Duncan mentioned, the regulations as they come forward. Thank you for your time.
Mr David Johnson: I'd like to thank the Conservation Council of Ontario for not only the deputation but the good work that it does in the province of Ontario. I think in a previous life we have talked about various issues when I was at the municipal level, if I can recall. I found your advice and counsel excellent at that time as well.
I've noted a few words --
Mr Winter: Are they misspelled?
Mr David Johnson: No, no -- well, I won't comment. I realize that you had to put this together in a hurry, but that wasn't my point. I picked out a few key words. You mentioned process. You mentioned a detailed description of environmental issues and cost-effective cost savings. I'm going to roll them together.
One of the areas that I am attempting to clarify in Bill 26 is the planning process within the province of Ontario. First of all, it's a lengthy one, and I must say that there's a commission set up to try to streamline that process. The former mayor of the city of Toronto, John Sewell, has been involved with it. It's a process also that involves environmental considerations, first of all at the local level, where there's a process to analyse local input, public hearings -- the public are involved -- mandatory hearings. Even before that, quite often proponents will get together and meet with the general public and discuss these things, because they don't want to go into a public hearing cold; they want to have it all sorted out. But after the public hearing, after a decision is made, there's quite often an Ontario Municipal Board process, which is a lengthy one, and that involves planning issues, transportation issues, environmental issues.
I'm just trying to determine how this fits in there as well. This seems to be another process put on top of that process. There's great concern that the process is already too lengthy, and I wondered if you had any specific ideas in that area: how we can avoid duplication, how we can make this cost-effective, how we're not hitting the same issues two, three, four times. Have you had any thoughts about that?
Mr Winter: In my 10 years with the Conservation Council of Ontario, I've had many thoughts on that. I was involved with the public advisory group on the environmental assessment program involvement process, EAPIP, back in, I guess, 1988, 1989. At that time we were saying, with very little impact, that you cannot look at revising the Environmental Assessment Act on its own; you have to look at the planning process, because without good planning and direction to people who are involved in development, you cannot have a good assessment process and you are going to wind up with de facto an expensive environment assessment process because you're trying to correct some of the mistakes that were probably inherent in the process because there weren't good policies and direction at the top.
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So we said that you should link a review of the Planning Act in particular, and probably other legislation, into a review of the Environmental Assessment Act, and say, "What are the requirements for good planning?" On the flip side of that, when the whole Sewell commission was running, we were also saying, "You cannot look at the Planning Act alone; you have to look at environmental assessment and say, `How is this planning process going to reduce the need for expensive environmental assessment hearings, where possible?' not deny access to courts, not deny the access to environmental assessment and accountability, but to reduce the need for it."
I think it's only when you start integrating and looking at all these things together that you put the people, the planners, the policymakers, the bureaucracy, the politicians in a mindset that says, "We have to integrate this in a way that reduces the cost and gets the results that we want at the bottom line." That's where I think the statement of environmental values has a tremendous potential because it gets all the key stakeholders sitting down around the table at the beginning of the process saying, "At a provincial level, what is important to us and what's the best way of achieving it?"
Mr Wiseman: Underlying all of what you've just said is something that I think we really need to grapple with, and that is that it's not sufficient to go through the entire process and get to the end result which is going to be very negative and still have to do it. There has to be an option of no being no. There has to be an option that when you get to the end of the day and it's not a good project, that it's no; it's not no, maybe. It's no. You can't tear down that woodlot because it's environmentally sensitive. It doesn't mean you can go in and work around it at some other time, and that's what's missing from a lot of what we're talking about.
I was involved with a process in my community where they wanted to run a sewer line down the middle of the river valley. It wasn't an option to say, "No, don't put it there." It was only an option of "How can we put it there with the least damage," but it's still going to do damage.
Mr Winter: When I started on the environmental review process, they trotted out an example of a successful environmental assessment, and it was Highway 406, I think, from Brockville to Ottawa. Their example of the success of the process was that there were people concerned about a small woodlot and some old trees, and their solution was they diverted the road around that woodlot. That was an environmental assessment to them.
To me an environmental assessment starts with, why do we need this road in the first place; what are the impacts of that road on the agricultural economy and the rural landscape and the environmental landscape; all those tough questions. At the end of the day, you may decide, yes, we still need that road, in spite of the impacts, but at least you've stood up and identified them, had the guts to say, "These are problems, and this is the decision we have to make."
We can't ignore the fact that good governance requires having guts. You've got to be able to stand up and say, "No development on wetlands," or be able to stand up to the environmental community and say, "I'm sorry, we need to develop on wetlands," and face the consequences of an irate environmental movement. But until the government stands up and says, "This is the way it is going to be," then you're going to wind up with a very expensive process of applications for changes in zoning and so on and so on.
The example is, I think up on Lake Simcoe, there was a proposal to put in a new development on a wetland. A request for an environmental assessment of that was made by environment groups and the ministry responded: "We don't think it should have an environmental assessment because it is subject to the new wetlands policy just recently introduced. We refer you to the fact that the wetlands policy says no development on class 1, 2, 3 wetlands. Case closed." You just avoided a very expensive environmental assessment process by making a strong decision.
The thing you have to bear in mind is that to make the process work, there has to be strength at the top. You cannot streamline without strengthening. That's the key thing that has to be there, and the statement of environmental values is the commitment to actually do things.
Mr MacDonald: Just following that up, if I may, the other thing that you have to deal with when you're writing any kind of legislation is the perception out there that many people have, the feeling of alienation, that "There are rules and there are rules, and if I have some resources I can come to Toronto and get myself a couple of good lawyers and I can either tie it up in the courts or they can introduce me to the right people and I can get around any rules." I think it's very important, and this is not something that has just happened in the last six months. I suspect in Ontario it goes back until the first Legislature about 200 years ago.
So what you have to do is to have to set up a system that's open, that's transparent, where people know that you go from step 1 to step 2 to step 3, that everyone is treated fairly in that kind of system and that there is a beginning to the process, there is an end to the process and it doesn't draw in the entire resources of Ontario, Canada and the universe.
I think those are issues that go beyond the Environmental Bill of Rights. It's just saying: "We elected you. We need legislation. Make it open. Allow us the opportunity to have our say, at times, in there."
Those are some of the comments that we wanted to bring out, some of the general comments that are important to dealing with that feeling of alienation that a lot of people are feeling from any kind of institutional process.
Mr Daigeler: Just a quick question. I must say you seem to be some of the experts in the field. When you said, "It's difficult to understand the law, and could you publish something that's more accessible to the ordinary person," that worried me a little bit. I think that brings me to my question: How can one put the principles of this bill to the general public, not just the concerned élite that you do represent but the ordinary public, so that people can understand and feel comfortable with what this bill proposes?
Mr MacDonald: I don't think there's an easy way of doing that. I think you start from the premise that the government is here to serve the needs of the people, and one place to start is by identifying those issues. If you're going to pass legislation, then a simple thing: Write it so people can understand it, so that they read it and say, "Oh, it seems the problem is A and the solution is B." I would say that's probably trying to reverse over 100 years of tradition where it's basically, "Don't worry; we'll pass laws that will affect you and you vote for us because we're doing a good job." That is a bit of a revolution in there.
I think you just have to keep working at it and you always have to remember that that's one of the points of legislation. If people don't understand it, then they don't know if it's good or not. They will probably start leaning towards "It's probably not good," and then you get into the whole mythology that the problem is government. I think the problem is an institution that is perceived as being insensitive to the particular needs of the people in your riding. I don't think there's an easy solution to that. You just have to keep working at it all the time.
Mr Winter: I remember when the Canadian Environmental Protection Act was being drafted and they came out with a couple of drafts for public review. One column was the actual text and the other column was a description of what it actually said and what it was actually doing. Those who were legal eagles read the one side and the rest of us, whose eyes glaze over when we read legalese, read the other side and said: "Okay, I think I understand what they're trying to do. Now I can red-pen it." That would be a simple way of addressing that and making it more accessible for those who want to understand the act itself and the powers they have because of the act.
The other way is going to be just in the way the Environmental Commissioner and the registry communicate information to the public. Hopefully you've got some good communication skills there so that people don't necessarily have to refer to the act to know what their rights are, that there is someone telling them and assisting them.
The Chair: Thank you, gentlemen, for appearing today, especially on short notice. We did get the brief, so boy, you're efficient. Thank you very much for appearing.
For the members, I would indicate to you that public hearings will continue next Thursday morning at 10 am. The clerk is scheduling the people according to the motion of the committee. Thank you very much. We're adjourned.
The committee adjourned at 1800.