STANDING COMMITTEE ON GENERAL GOVERNMENT
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
CITIZENS NETWORK ON WASTE MANAGEMENT
RURAL ACTION ON GARBAGE AND THE ENVIRONMENT
CANADIAN ENVIRONMENTAL DEFENCE FUND
CONTENTS
Thursday 28 October 1993
Environmental Bill of Rights, 1993, Bill 26, Mr Wildman /
Charte des droits environnementaux de 1993, projet de loi 26, M. Wildman
Laidlaw Waste Systems Ltd
Frank Pazner, vice-president
Dianne Lemieux, solicitor
Northwatch
Brennain Lloyd, project coordinator
Citizens Network on Waste Management
John Jackson, representative
Rural Action on Garbage and the Environment
Rhonda Hustler, chair
Friends of the Earth, Canada
Jeremy Byatt, policy director
Canadian Environmental Defence Fund
David Donnelly, executive director
Nuclear Awareness Project
Dave Martin, member, steering committee
Ducks Unlimited Canada
Dr Rick Wishart, Ontario manager
Sierra Club of Eastern Canada
Michael Berger, representative
Clean North
Kathy Brosemer, chair and project manager
Ontario Mining Association
Elizabeth Gardiner, manager, environmental services
Leonard J. Griffiths, environmental counsel
C. Henry Brehaut, senior vice-president, environment, Placer Dome Inc
Committee budget
STANDING COMMITTEE ON GENERAL GOVERNMENT
Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)
*Acting Chair / Président suppléant: Eddy, Ron (Brant-Haldimand L)
*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
Arnott, Ted (Wellington PC)
Dadamo, George (Windsor-Sandwich ND)
*Fletcher, Derek (Guelph ND)
Grandmaître, Bernard (Ottawa East/-Est L)
*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:
Cooper, Mike (Kitchener-Wilmot ND) for Mr Mammoliti
Eddy, Ron (Brant-Haldimand L) for Mr Brown
Lessard, Wayne (Windsor-Walkerville ND) for Mr Morrow
Offer, Steven (Mississauga North/-Nord L) for Mr Sorbara
Mathyssen, Irene (Middlesex ND) for Mr Dadamo
Tilson, David (Dufferin-Peel PC) for Mr Arnott
Wiseman, Jim (Durham West/-Ouest ND) for Mr White
Clerk / Greffier: Carrozza, Franco
Staff / Personnel:
Anderson, Anne, research officer, Legislative Research Service
Luski, Lorraine, research officer, Legislative Research Service
STANDING COMMITTEE ON GENERAL GOVERNMENT
THURSDAY 28 OCTOBER 1993
The committee met at 1000 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 Vice-Chair (Mr Hans Daigeler): We are here this morning to continue public hearings on Bill 26, An Act respecting Environmental Rights in Ontario. Since we do have many witnesses to appear, I would like to get started. However, before we do, I understand the government whip pro tem would like to put forward a motion that I think he has circulated to all three parties. Did you want to speak to it?
Mr Jim Wiseman (Durham West): I'd just like to move that motion and hope we could have speedy passage of it.
I move that the clerk be authorized to schedule witnesses on the morning and afternoon of November 4, 1993, from the list of witnesses who have already contacted him. Witnesses will be scheduled on a first-come, first-served basis from the existing list. Presentations to the committee on November 4, 1993, will be 20 minutes in length for each witness, with the afternoon session starting at 3:30;
That the AMO will be allowed to reschedule its appearance before the committee from October 28 to November 4, 1993;
That the Chiefs of Ontario be invited to appear before the committee on the morning of November 4, 1993. If they are unable to appear in the morning, they shall be given the opportunity to appear in the afternoon of November 4, 1993;
That having heard from all the witnesses on the existing list of requests, that clause-by-clause consideration of the bill begin on November 18, 1993.
I think I've discussed the reasons for this with the committee members. I would hope we could have speedy passage of this.
The Vice-Chair: Is there any discussion?
Mr David Johnson (Don Mills): This is in line with what we were suggesting in the first instance, so I'll support it. I'll be interested to see how all the deputations can be accommodated in the one extra day. I would have thought an extra two days might have been required. At any rate, it's certainly a step in the right direction, so I'll support it.
The Vice-Chair: Any further discussion? All in favour? Carried.
LAIDLAW WASTE SYSTEMS LTD
The Vice-Chair: The first presenter is Mr Pazner, from Laidlaw, if he will please come forward. I think you're familiar with the procedure; you've appeared many times, so I don't need to explain it. Would you introduce the lady who's with you and yourself as well, just for Hansard.
Mr Frank Pazner: My name is Frank Pazner. I'm vice-president of Laidlaw Waste Systems. With me is Dianne Lemieux, our solicitor.
The Vice-Chair: Today it's only 20 minutes; I think you're aware of that. Obviously, if you can leave some time for questions, it would be appreciated.
Mr Pazner: Thank you very much, Mr Chairman, for the opportunity to be here today. Laidlaw Waste Systems supports in principle what has generally become known in the province as the Environmental Bill of Rights. Laidlaw believes that the public has a right to participate in decisions involving the environment and fully supports any process that involves the public.
However, Laidlaw must be concerned with any process that shifts the regulatory and enforcement powers to individuals from government bodies and agencies as well as the pieces of legislation that already deal with these matters, which Laidlaw believes to be the case with the Environmental Bill of Rights.
The Ministry of Environment and Energy has stated that one of the benefits of this bill is that business will have a uniform and predictable process for obtaining environmental approvals. Laidlaw is not convinced that the Environmental Bill of Rights establishes a clear-cut, timely approval process. If anything, we are concerned that the bill will delay the approval processes already in place, in particular those approval processes established under the Environmental Protection Act, the Environmental Assessment Act and the Ontario Water Resources Act where waste management companies such as Laidlaw are subject to obtaining certificates of approval.
Our submissions will follow the proposed outline of the bill and start with part I, definition and purposes. Having reviewed the definitions section, section 1 of the bill, we support the submission of the Canadian Bar Association that the definitions should be consistent with those established under the Environmental Protection Act.
It's also our submission that certain expressions noted periodically throughout the bill should be included in the definitions section. This will ensure that all parties are working from the same definitions and the courts will not be burdened with applications for interpretation of these vague expressions. Expressions such as "unreasonable threat," "environmentally significant proposals," "significant harm" and "a response that is not reasonable" are so vague as to be of no assistance to anyone and leave the door open for many interpretations. By defining these expressions in the bill, a level playing field will be created as a uniform decision will be applied by all the parties. This will also be of assistance to the courts in providing guidance as to what the legislators had in mind when inserting these expressions in the bill.
Part II, public participation in government decision-making: This part sets out the minimum levels of public participation for certain environmentally significant proposals associated with policies, acts, regulations and instruments. We will limit our comments to the proposals involving instruments, as this is the area of the bill where Laidlaw could be the most directly affected. Laidlaw's facilities operate under conditions contained in certificates of approval issued by the MOEE.
We wish to note at the outset that there appears to be a preference in favour of government policies, acts and regulations, as they are not subject to the same public participation and review requirements as proposals involving instruments. For example, section 24 of the bill refers to the possibility of oral presentations, public meetings, mediation and other public participation processes in connection with class II proposals for instruments. There are no such requirements for policies, acts and regulations.
It is our submission that applications submitted to the MOEE pursuant to the provisions of the Environmental Protection Act, the Environmental Assessment Act and the Ontario Water Resources Act should not be subject to parts II, IV and V of the bill and that the definition of "instrument" in section 1 of the bill be amended accordingly.
Waste management undertakings in particular go through a rigorous environmental approvals process and those members of the public who have a direct interest in the application are involved. If any instrument is subject to the public participation process outlined in section 24 of the bill, it should not be subject to appeal by any resident in Ontario if the ministry decides to proceed with the instrument. Public participation will have taken place, and an appeal process would simply afford the public another opportunity to further delay and increase the cost of the approval process.
This appeal process by a member of the public, with all due respect, does not provide any certainty to the approval process. In our submission, there must be a defined limitation to public participation. These sections in part II that allow an appeal by an Ontario resident of any ministry decision should be limited only to those decisions which revoke an instrument. If this is not acceptable to the committee, we propose an alternative that subsection 26(7) and section 38 of the bill be amended to limit the appeal process only to those persons who previously participated in the process.
As for public comments received by the ministry, there does not appear to be any provision to provide these comments to the proponent of the instrument. Given the fact that the ministry will be making a crucial decision with the assistance of this public information, the proponent should have the right to receive and reply to these submissions.
We suggest that section 35 of the bill be amended to require that public submissions be provided to the proponent of an instrument and that the proponent of the instrument be given an opportunity to respond to the public's submissions prior to a decision being made by the ministry.
Section 30 exempts proposals from the registry that require public participation that is "substantially equivalent" to the process under the bill. Firstly, the expression "substantially equivalent" is so vague that valuable court time could be spent just to define this expression. This expression should be included in the definitions section of the act.
Second, we have a concern with the wording in subsection 30(1)(b), as there is no actual legislative requirement in the Environmental Protection Act and the Environmental Assessment Act for public consultation, yet public consultation is carried out as a matter of course when applying for approval of an undertaking under both these statutes. Any public consultation carried out by a proponent is either voluntary or as the result of policy statements issued by the environmental assessment branch of the MOEE.
It is our further submission that part II of the bill will make the approval process considerably more onerous for those types of instruments that do not require a hearing. In our submission, those applications exempted from section 30 of the Environmental Protection Act by regulation 347 would be considered class I proposals. Under subsection 20(10) of the bill they would not require a hearing. However, subsection 26(1) of the bill states that a minister may treat class I proposals as class II proposals, which under the bill could require additional public participation as outlined in subsection 24(1).
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The Environmental Bill of Rights therefore takes away the certainty of the approval process created by the amendment to regulation 347 to replace it with the uncertainty of ministerial discretion. In our submission, the Environmental Bill of Rights will defeat the initiatives implemented by the MOEE to improve and streamline the approvals process.
For these reasons, it is our submission that applications under the Environmental Protection Act, the Environmental Assessment Act and the Ontario Water Resources Act not be subject to the bill and that the definition of "instrument" be amended as proposed by Laidlaw.
Part III, the Environmental Commissioner: We feel that the creation of the Environmental Commissioner is a duplication of the functions of the MOEE. There are no provisions in the bill that convince us at this time that the commissioner has any real power or that his staff will do a better job than the MOEE already provides.
The commissioner does not appear to have any disciplinary powers for those ministries that do not comply with the bill. A level playing field does not exist, as certain instruments are made subject to the act without any right of appeal. The proponent or the holder of an instrument must comply with the process outlined in the bill, whereas the designated ministries may choose simply not to comply with the bill without the public or Environmental Commissioner having any right of recourse.
Part IV, application for review: If the committee does not accept our proposed amendment to the definition of "instrument," we submit that the existing waste management instruments be exempted from the application of part IV of the bill. In the alternative, we submit that those waste management instruments that have been the subject of a hearing under the Environmental Protection Act, the Environmental Assessment Act or the Ontario Water Resources Act, as well as waste management instruments that were obtained after public participation, should be exempted from the application of part IV. This amendment would not be necessary if the committee accepts our proposed amendment to the definition of the word "instrument."
In keeping with our comments in connection with section 35, subsection 66(1) of the bill should be amended to specifically include the holder of any instrument under review. This amendment merely adds some certainty that the person most directly affected is kept informed of an application for review. In addition, subsection 66(1) should be amended to provide that the holder of the instrument will be provided with the information required to be submitted under subsection 61(3) by the person making the request for review.
Section 72 as well as section 81 under part V of the bill should be deleted or amended to exclude instruments from this section. Laidlaw, as a holder of an existing instrument, has the right to know who is requesting a review of an existing instrument. Every defendant has the right to know his or her accuser. The confidentiality provision merely protects those environmental groups and corporate competitors that may be the initiators of frivolous and unfounded applications for review, interfering with one's right to carry on business.
Part V, application for investigation: Subsection 74(1) duplicates the powers of the investigation and enforcement branch of the MOEE. There will be a delay in initiating an investigation by involving the commissioner. Even if the committee accepts our proposal to amend the definition of "instrument," section 76 of the bill should be amended so that the minister is required to (1) provide notice to the owner-operator that a request for investigation has been received, (2) provide the information received under subsections 74(2) and 74(3), and (3) advise that an investigation will proceed. The owner and operator should not have to learn about the request for investigation after the decision has been made and denied, as section 78 of the bill provides.
Part VI, right to sue: Part VI does not appear to give a defendant the right to be considered innocent until proven guilty. Sections 83 and 84 should be amended to refer to any "alleged" contravention, as does subsection 74(1) under part V of the bill.
Further, Laidlaw is concerned that part VI will cause the courts to become backlogged with the proliferation of court cases. The MOEE is of the opinion that the steps outlined in subsection 84(2) will limit the number of court cases. In our opinion, these steps are so vague that anyone can bring an action in court. For example, under clause 84(2)(b), any response that refuses an investigation could, in all likelihood, be deemed by the person making the request for investigation an unreasonable response. A court case could ensue. All these court actions and associated costs will increase the cost of doing business.
If a minister denies a request for investigation on the basis of those considerations set out in subsection 77(2) of the bill, a member of the public should not have the right to bring a court action. If not, all this review by the minister does is delay the inevitable: the bringing of a court action.
The defences outlined in subsections 85(1) through (4) of the bill should be included in the list of considerations that the minister must consider in deciding whether to order an investigation, and we submit that subsection 77(2) of the bill should be amended to include each of the defences outlined in section 85 of the bill. If the minister denies the application for investigation on the basis of one of these acceptable defences, a member of the public should not be given the right to initiate a court action. This is a waste of the court's time and at great expense to the defendant and adds to the cost of business.
Therefore, we submit that subsection 84(2) be amended as follows: (1) define the vague expressions as outlined in our submissions under part I; (2) if the minister has denied the application for investigation on the basis of those considerations outlined in subsection 77(2), as amended by Laidlaw's proposal, no court action can be brought by a member of the public. It is our further submission that subsection 84(2) of the bill should be amended so that a person cannot bring an action if charges have already been brought by the responsible ministry or if an ongoing investigation is being carried out by the ministry.
Notice of any court action should not be included in the registry. Only those persons directly affected need to be involved in the court action. Laidlaw is concerned that sections like subsections 87(6) and 89(1) will turn a court proceeding into a mini EPA or EA hearing with the financial loser being the defendant, even if the plaintiff's claim is dismissed. Further, the criteria that the court should consider in allowing a person to become a party should be clearly set out in the bill to avoid any confusion at a later date.
Part VII, employer reprisals: We have no concerns with part VII of the bill and fully support this section.
Part VIII, general: In our respectful submission, section 118 is a further example of the bill's bias against holders of instruments. Subsection 118(2) provides that a judicial review application can be filed if a minister has failed to comply with the requirements of part II of the bill respecting a proposal for an instrument. Part II of the bill also applies to policies, acts and regulations.
In conclusion, we wish to reiterate our support in principle for the Environmental Bill of Rights. In our respectful submission, however, Bill 26, in its present form, should not be passed as this bill leaves too many matters to ministerial discretion and there appears to be a bias against instruments which, more often than not, will affect proposed development by the private sector. A number of our concerns will be addressed if the committee amends the definition of "instrument" as we suggest. The waste management industry is currently heavily regulated by conditions of operation contained in certificates of approval. Bill 26 adds very little to the process and, in our respectful submission, will negatively impact the approvals process for waste management applications.
We hope our submissions have been of assistance and we'd be pleased to answer any questions.
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The Vice-Chair: Thank you very much, Mr Pazner. We have one minute left, basically, so one very, very quick question from each caucus.
Mr Steven Offer (Mississauga North): Thank you for your presentation. I certainly am going to re-read the presentation around the issue of instruments, but my question is, when you take a look at the bill as a whole, do you believe it provides the public with any more rights or rather adds a potential level in the decision-making process in terms of, for instance, instruments?
Mr Pazner: I'll defer to our solicitor. Dianne spends more time appearing in front of the actual EA hearings and EPA hearings.
Ms Dianne Lemieux: I believe the bill is attempting to add rights to the citizens, but in fact there's so much in the bill that's left to ministerial discretion that as a member of the public, I myself don't really know what my rights are. In terms of process, I don't think it's adding anything to the process that we at Laidlaw have to follow in terms of environmental approvals. It certainly may add to the processes for the other ministries that may be subject to the bill.
Mr David Johnson: An excellent presentation, hard to absorb in 20 minutes. Is one of your concerns that you go through a certain number of processes at present with regard to waste management, environmental assessment, protection etc and that this is a duplication to a certain degree, or is this adding another layer?
Ms Lemieux: It's both. It is definitely adding another layer, and it's certainly duplication of what is already being undertaken by Laidlaw to obtain approval for our facilities such as landfills and transfer stations.
Mr Wiseman: I'd just make a quick comment. The residents who live in my riding around the Brock West landfill site don't think this bill goes far enough in giving them the right to take both governments and others to court with respect to landfill sites. If I read this correctly, am I correct in assuming that you say it goes too far?
Mr Pazner: We think there's a process that's in place, and once you've gone through the process, all this does is merely reopen it again so you never get out of the loop. We have spent tens of millions of dollars on getting approvals and you can't get the final certification because there's always somebody else coming in, after the fact, being included as part of the process.
The process has to start and finish somewhere. You can't just continue. To have two people come up and object to something after you've gone through months and years of hearings I think is frivolous. Citizens certainly have a right, but they should be involved in the process at the beginning, and once the process is concluded then I feel a decision has to be made and a certificate should be issued.
The Vice-Chair: Thank you for your presentation. I know 20 minutes is awfully short for something as significant as this, but as you understand we have many other presenters.
NORTHWATCH
The Vice-Chair: The next witness is Brennain Lloyd from Northwatch, if you'd come forward and take a seat.
Ms Brennain Lloyd: My name is Brennain Lloyd. I work with Northwatch. We're a coalition of community-based environmental groups across northeastern Ontario. In terms of geography, our membership goes from the Almaquins north of the northern Muskokas to the Moose River basin, from the Nipissing-Timiskaming line over to the east coast of Lake Superior; quite a large region, and quite a broad range of issues and concerns that our membership and our communities address.
Northwatch is an advocate for the environment. More specifically, we're an advocate for the incorporation of environmental considerations into all aspects of social and economic decision-making and planning, given the great impact on the natural environment that our social and economic decisions and activities have.
We address issues that affect the forest. We address energy issues, waste management, waste disposal, waste reduction, mining, militarization and other issues of general concern in planning in our region.
We work from a perspective where we see the north as having a history and having had a historical relationship to the south, where the north has been treated and viewed largely as a commodity, and an economic commodity, rather than as a community or a community of communities, including both the natural communities and the human communities. That perspective really directs us in how we work and really directs us to our most fundamental positions, positions that require sustainability as being the litmus test, or sustainability as being the driver for all our decisions and plans. By "sustainability," we mean primarily ecological security -- that's paramount -- but also sustainability of the communities and economic stability. We think that to arrive at that sustainability, we have to recognize that the land must dictate its limits and the land must dictate what it can provide.
It's from that perspective that we view the bill of rights and it's from that perspective that we welcome the Environmental Bill of Rights and support Bill 26, which is the bill before us all today. I'm going to provide some general comments, walk through the bill and provide those comments from our region and from our perspective and from an environmental imperative or priority.
In general, I want to say that we view the bill very positively. The intent of the purposes sections I think demonstrates good cause for that positive reception: "to protect, conserve and...restore the integrity of the environment," "to provide sustainability of the environment...and to protect the right to a healthful environment." Those are three purposes of utmost importance, and we're so pleased to see them captured in this bill.
We have some specific comments, that might be semantic but perhaps are not, that we'd like to make with respect to those, but not until we've really said very clearly that we support the purpose of the bill and we think the purpose follows very well from the preamble, which I think is also very important, a preamble which recognizes the inherent value of the natural environment. That is perhaps the most fundamental statement in the bill and is a fundamental law that this bill provides us.
In details, with regard to 2(b) of the purposes, "to provide sustainability of the environment," I think it's necessary to correct our thinking and correct our language at some point. We have to recognize that we can't provide sustainability of the environment, that the environment is unto itself sustainable, sustains itself. We can't provide that sustainability. We can, however, deprive the environment of its sustainability, so we accept that statement to mean that providing sustainability will translate that we won't deprive the environment of its sustainability or its ability to sustain itself.
The second point is on 2(c), "to protect the right to a healthful environment." I think it's important for what it achieves, ie, it acknowledges and affirms the right to a healthful environment. From a human perspective that's very important, but I think it's also significant for what it almost achieves. What I believe it almost achieves is that it almost recognizes the rights of the natural environment itself. Really, over the centuries I think we've seen that progressively we've been more encompassing in what we recognize as rights. We now recognize the rights of women, we recognize the rights of humans, we recognize the rights of children, we recognize animal rights. It's time to recognize the rights of the natural world, and I think that's what's almost achieved in 2(c).
Section 2 in totality has what I would call a cumulative effect, a positive cumulative effect that fairly responds to the interests of the people of Ontario, and the interests of the people of Ontario is the recognition of the inherent value of the environment.
Going on to discussion of the statement of values, which arises in part II of the bill, we're also very positive about this section. That positive response rests on our view that the statement of values could be the main driver for environmental standards in general and for the standard of care that the various ministries provide through their governance, but because it's so important, we have a couple of areas of concern that emerge as we look at that.
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The first concern, a fairly specific one, is in clause 7(b), where we see that "consideration of the purposes of this act should be integrated with other considerations." I would just apply a note of caution there. What's valuable about this act is that it establishes the rights of the environment and establishes, I believe, an environmental paramountcy. I would give a word of caution about 7(b) because I think that undermines the environmental imperative somewhat, or it could potentially do that.
The second set of concerns that arise there first emerge in 7(a), where we see a discussion of "significant." This is a concern that in our reading of the bill emerged again and again, but I'll raise it here. We have some concerns about how the word "significant" is used, how significance is judged or measured, and that's very much coupled with our concerns about discretion and how discretion is afforded throughout the bill. Ministerial discretion is the primary example of that.
There are a number of examples. The first one arises just given that we will have a discretionary interpretation of what is "significant." We again see it in item 14, where we have the discussion of "significant effect on the environment." Discretion arises a third time in section 118 in Part VIII of the bill.
Generally, our concerns are twofold: (1) There's a large degree of discretion afforded which we have concerns and cautions about, and (2) nowhere in the discussion of significance and the measuring of significance is there any recognition of the cumulative effects of impacts. Our concern is that if in each instance we were to have a discretionary assessment made of whether or not an effect or impact is significant, at no place do we have an opportunity to look at the cumulative impact of all those effects, which have perhaps individually been judged again and again to not be so significant but collectively or cumulatively could be very significant. That's a very general, broad concern we have, one that I would classify generally as being that we could be subject to the tyranny of incremental decision-making. We could be having one decision made here and one decision made here and one decision made here, but collectively we won't see the impact.
I could find many evidences or many examples of that, certainly in forest management or in timber management, but I'll leave you with simply having made the point.
In item 11 -- this is again in the statement of values -- we have: "The minister shall take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry."
I think this is far too qualified. I think the bill needs to state simply, "The minister will ensure that the ministry statement of environmental values is considered." I think to "take every reasonable step" would mean the statement of environmental values had been considered, so "the minister will ensure."
Our next set of comments is in classifications of proposals for instruments, which begins around item 19. We have a very general comment there, that there should be a clearly laid out role for the public in the classification of proposals for instruments. I don't see that in the bill, and I think that's essential.
Moving to the discussion of the Environmental Commissioner, it's a very positive reaction we have to the section in total. I think the Environmental Commissioner's role is relatively well- thought-out and to a fair degree is a positive role and has some potential for good effect. What I see lacking there is a parallel function for the public.
In section 57 we see the Environmental Commissioner's role laid out very clearly in terms of the government and the ministry and assistance to the minister, assistance in developing a ministry statement of environmental values, but there isn't any outlining of responsibilities with respect to the public and enabling the public and providing access to the public. We need somewhere, and I think the Environmental Commissioner's office is the place, for the public to go and ask these questions: "How does this bill work? How do I use it? How do I access the registry? How do I become involved in this decision-making process? What is my role as a member of the public?" I think that's really lacking from item 57 and from the outline of the commissioner's roles and functions.
In the application for review and investigation -- I'll address those two items, part IV and part V, together -- to our thinking these are most important because they give the public access to action. We have a sense in the regions that there might be laws, there might be rules, there might be regulations, there might be standards, but if they're not being met we have no remedy to that. I think parts IV and V give us that remedy, give us that ability to require a review, to require an investigation, to require action, and there are some clearly laid out steps, procedures, deadlines, time lines and so on.
Those are incredibly important, particularly to members of the public who do not have as much access to government offices, who are not as familiar with government processes. This is a question of access and equity. It gives those of us in smaller communities in northern Ontario increased access, so greater equity. For example, it puts a citizen in Attawapiskat closer to the same ground as a full-time staff person for an industrial association living in downtown Toronto. Right now there's no comparison in terms of access to decision-making.
Section 122 on the making of regulations: Again we need it clearly set out what the roles are for the public in the development of regulations, and this section of the bill should provide that clarification. It should clarify also that the Environmental Commissioner has a role, which is not laid out in 57 and 59, where we discuss the Environmental Commissioner's role. I see my time is running, so I will try and run.
The next point I'd like to comment on is that of the registry. We are again very supportive of the registry but have some qualifiers to that support. There are two concerns we have quite specifically. We're assuming there is going to be an electronic registry; there were some comments to that effect made in some of the release materials so we're assuming that will be the case.
We have two very specific concerns, again related to access and equity. One is item 122(g), which discusses "prescribing fees that may be charged in relation to the use of the registry." Again it's a question of access, and what we want is a bill that provides us with access to information. Prescribing of fees in some instances, perhaps photocopying of documents and so on, might be reasonable, but accessing the information itself, accessing the registry itself, would not be reasonable.
Just one very parochial point from rural northern Ontario: Accessing electronic registries is not always as easy as it might be assumed from a major centre. I know this will be discussed in the regulations. I'm not clear yet what the public role is going to be in developing those regulations, but quite specifically we need an electronic registry which can be accessed from anywhere in the province. That means a 1-800 line for modem hookup. It means not having to go through Datapac, it means not having to be on-line for a long time. If you're on a party line in rural northern Ontario, it's long-distance to Datapac and it's very difficult to be on the line for longer than a very short time. I think those concerns have to be kept on the table.
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The Vice-Chair: There are about three minutes left.
Ms Lloyd: I'll just wrap up there; I'll leave some time for questions. I want to conclude by saying the bill is a very positive step forward. I want to thank you for your work on it, and I want to thank the two ministers who've brought this bill forward for their commitment to making a much-talked-about bill and a long-called-for bill come to life and come to law.
The Vice-Chair: Thank you very much for your presentation. One brief question from each caucus.
Mr David Tilson (Dufferin-Peel): I would like you to respond. One of the major criticisms of this bill is that it will create much bureaucracy. The processes will be slowed down; applications of all kinds, to all areas of our economic life, will be slowed down. The ministries themselves, although they're being cut down in staff now because of the social contract and the recession, may not be able to perform the very work they're doing now. They are being downsized; the Ministry of the Environment itself.
With this bill, members of the public -- the individual's right, which is really what this bill is all about -- will put pressures on those specific ministries which will take them away from doing other work, and this layer of bureaucracy, the whole process, will be slowed down substantially. Could you comment on that criticism?
Ms Lloyd: I don't see it that way. I actually see that this bill gives us the ability to have more efficient decision-making because we'll have more accessible decision-making. The rules will be made clearer by this bill, and I think the premises on which the rules are set out will be clearer. To give you one example of how I think that will work, the Ministry of Natural Resources at this point has, at last count, 37 different policy initiatives ongoing at the same time. I think the statement of environmental values could be the much-needed pressure to bring them together and to say, "Here is our statement of environmental values; this is our policy," and the others fit within that or flow from there.
It's going to require some efficiency measures ministry by ministry. It's going to clarify a lot of things. It's going to make the maze crystal-clear.
The Vice-Chair: I'm sorry to interrupt, but we are getting --
Mr Wiseman: Maybe we should skip the rest of the questions and move on to the next presenter. We can ask the first question next time.
The Vice-Chair: Fine. Do you have any other questions? Mr Offer, please.
Mr Offer: Thank you very much for your presentation. In light of the discussions around clause 7(b), is it your expectation that the statement of values will, in the 14 prescribed ministries, establish environment as a priority in terms of policymaking?
Ms Lloyd: I think it should establish the environmental imperative. Economic and social decision-making cannot conflict with environmental sustainability, so I expect the environmental statement of values will establish that.
The Vice-Chair: I think Mr Lessard had a very quick answer to one of your questions.
Mr Wayne Lessard (Windsor-Walkerville): I just wanted to address one of your questions with respect to accessibility and the electronic registry. It is our intention at this point to have free access by a 1-800 number for modems and access to various computer networks in the province as well.
The Vice-Chair: Thank you for your presentation. We're sorry we have to rush you so much, but 20 minutes is not a very long time.
CITIZENS NETWORK ON WASTE MANAGEMENT
The Vice-Chair: The next presenter is John Jackson from the Citizens Network on Waste Management. If you'd take a seat, please, you can begin right away.
Mr John Jackson: I'm John Jackson. I live in Kitchener and I've worked for basically the past 15 years with a wide range of citizen groups throughout Ontario, mainly on waste issues, on contamination issues, also on Great Lakes issues. The citizens network is a network of approximately 50 groups from all across the province who are concerned about these sorts of issues.
What I'm going to do today instead of going into detail -- I think you're getting a lot of that from other people. What I want to focus on today is, from our experience, why this bill is so important to us. What sorts of differences will it make if we have this bill in? I'll give you some very concrete examples of situations it would help with.
First, in terms of the presence of the environmental register, it's very important to us. Let me give you an example. I do a lot of work with groups on the St Clair River and the concerns about what sort of discharges are going into the river there. We don't know when a company in the Chemical Valley applies for a discharge permit. The citizens living there in those communities have no way to find that out. It's critical to have that sort of information so we can try to make some input into whether the discharge they're applying for is acceptable for those people living on that river or not. The environmental registry could give us access to that sort of information.
In terms of the right to be notified and to be involved in making comments on proposals for instruments, again not only do we not have the right to know what sorts of permits someone is applying for for a discharge, we also don't have the right to comment on their application in terms of what contaminants they're going to put out into the environment.
This bill is critical for allowing citizens all across the province -- in each of our little communities, permits are given all the time, certificates of approval, by the ministry to allow discharges, which none of us has the opportunity to comment on, first of all because we don't even know they exist, but secondly, even if we knew they existed, there's no formal mechanism to allow us to make input. That's absolutely critical for all of us. Another prime example where there's no guarantee of us having input is in control orders on a company for something such as a cleanup.
It is becoming an increasing practice of the Minister of Environment on a major cleanup project to consult with the community, but there's no promise, no assurance of that. It simply happens on a piecemeal basis and basically on the goodwill of local Ministry of Environment staff who may be in that community, but we have no assurance that will happen. This will give us the assurance. What could be more important to a community than to have the right to make input into the sort of cleanup orders that are going to be given to a company that is there and that is creating problems?
One of the things that won't actually change -- a lot of our work is on waste issues and hearings in terms of applications for opening a new landfill, for example. It's very clear in the legislation that once a hearing has occurred under either the Environmental Assessment Act or the Environmental Protection Act, there won't be any new appeal rights that didn't exist before. That really isn't making a change in that respect, but we're satisfied with the mechanisms that already exist in terms of those formal hearing processes.
Another right that would be added by this bill is what's called the right to seek leave to appeal a decision. In this case, what I want to refer to specifically is that when a certificate of approval is given without a formal public hearing, say for a certificate of approval for a discharge, the polluter has the right to appeal to the Environmental Appeal Board if it thinks that's too tough, but the local citizens don't have the right to appeal if they think it's too lenient.
A prime example of what can happen here is in the Uniroyal case in Elmira in the discharge of NDMA, which caused them to close down the water supply. The ministry gave an order in terms of what would be an acceptable level of NDMA discharge. Fortunately for the community, Uniroyal appealed that. If they had not appealed it, the citizens would have had no opportunity to require an appeal hearing. What came out of the hearing, because Uniroyal appealed it, is that the appeal board said that what the ministry allowed to happen in terms of NDMA discharge was too lenient. They actually came up with a decision that was tougher, more strict than what the ministry had allowed. That happened very largely as a result of the local community group bringing in experts to that hearing and making it clear what the real dangers of NDMA were. But if Uniroyal had not itself initiated the appeal, the citizens would not have had the opportunity to bring that evidence before an appeal board, would not have had the opportunity to initiate it.
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In our minds, this is one of the most critical changes in the provisions here: the right to appeal a decision not simply by a polluter, who already has that right, but by the community that is trying to protect itself.
Another right given here is the right to review, which I'm sure you've heard a lot about, and I want to give a couple of concrete examples of why this is important for us, a couple of quite controversial issues at the moment.
The first is on the IWA's search for sites for its three mega-landfills and the whole Waste Management Act. I've been working in a coordinating capacity with citizen groups around those sites that are the present targets, and from the evidence that's coming forward from our experts it's clear that it is very feasible for us to achieve more than a 50% reduction of waste through the 3Rs -- we'll actually be releasing material on that about a week from now -- but we have no mechanism to really have that make a change through the formal mechanisms. There's no mechanism to review the Waste Management Act formally; there's no mechanism to require the IWA to review that policy because it's something given to it by the ministry from on high. The other policy that's a major concern to us is: Why only three megadumps? Is that indeed the best way to take care of the disposal problem? But we've no mechanism now to initiate having those policies reviewed.
The second issue I want to raise in terms of right to review is the Ontario Waste Management Corp, and also the application which Laidlaw recently dropped for a rotary kiln to be built near Sarnia. One of the main problems the citizen groups have in both of those communities is that we don't have a hazardous waste policy in this province; everything's done on a piecemeal basis. We've just finished three and a half years of lengthy hearings on the OWMC for a hazardous waste site the province wants to build. The hearing board said, "Our role here is not to develop a policy, but indeed you are correct: There is not a policy framework within which we can make this decision."
I think we need to have a revision in this Environmental Bill of Rights to make sure that not only do we have the right to ask for a review of existing policies but that we have the right to ask for the creation of a new policy. It's not clear to me from my reading of this bill that that right's there. The lawyers would know better than I. But it's clear we must have that right to initiate looking at new policies. Hazardous waste is a prime example.
Another power given here is the ability to apply for investigations. I'm sure you all get calls all the time from local citizens complaining about a discharge they saw into the local creek -- where is it coming from?; what's causing it? -- or discoloured smoke they saw coming out of a stack: What's really causing this?
The experience for the local community residents, why they end up calling you in their frustration, is that they call the responsible government agencies and they're usually sort of shunted aside. People are too busy to deal with it or they don't really take it seriously, and you're made to feel like you're some sort of nut for even raising this sort of issue.
It's critical that this right exist to ask for an investigation so that we have to be formally responded to. If they choose not to investigate, they have to formally, in writing, say why not. That's a very critical right to give to all of us.
The final right I want to raise is the one to protect workers from employer reprisals. It is indeed the people who work in these facilities who know what's really going on. If we want to protect the environment, we have to make sure that the workers have the ability to come to the Ministry of Environment and Energy or whoever and raise the concerns they have without the fear of being punished for it. Time and time again we have examples where workers have been punished for it or have been afraid to come forward because of not being promised, not having an assurance that they'll be protected, an incredibly important right.
The final thing I wanted to raise is the right to sue. From the perspective of the local citizen groups, that's not a right that we're likely to be using at all. These other rights are the critical ones to us. Suing is an incredibly expensive undertaking, an incredibly energy-consuming undertaking. We're going to be using the other mechanisms to try to solve the problems. Therefore, the fears that tend to be out there that we're just going to be swamped with lawsuits are completely inaccurate, because it's only going to be in the very serious, major case that a lawsuit arises. In those cases, it deserves to arise and it should happen. But those are the high-profile things, and therefore they affect our vision of the entire thing that's happening.
Another example of how that happens is, say, with the Environmental Assessment Act, which often runs into a lot of criticism because of some of those major, huge hearings that have gone on endlessly. But even though we all have problems with those major hearings -- having just finished one, I have major problems with them and certainly don't want to go through one again -- I don't want that right to be taken away. Also, it's important to remember that most things that happen within the assessment act happen without a hearing, and therefore these other mechanisms are really important.
To conclude, I just want to say that for those local community groups, this bill is an incredibly important step forward and is something we are really excited about having passed.
The Acting Chair (Mr Ron Eddy): Thank you for your presentation, and time for a few questions.
Mr Wiseman: I just wanted to go back to this idea. Laidlaw this morning in its presentation said that it is not convinced the environmental right establishes a clear-cut, timely approval process. Could you comment on that?
Mr John Jackson: I'm not sure what they meant by a timely approval process, but I think very clearly it lays out the rights for people to be involved, the rights for people to at least have the opportunity to request to have something reviewed and, if the minister decides not to do a review, to have to give rational reasons for not doing it. That alone -- the discretion issue has been raised a lot, but the fact that there's requirement to in writing give real reasons for not proceeding with action is a very important step forward.
Mr Wiseman: Do you think that in some severe cases, though, there will be lawsuits, that community groups will be able to sue?
Mr John Jackson: Inevitably it will happen in some cases. Those are the critical issues where, having gone through all the other mechanism, be it trying to persuade a company to change its behaviour or trying to persuade governments to be tougher, we may simply have to take action in the final step. But it's important to recognize that that will be the final step after having tried all other procedures first.
Mr Wiseman: My local community group would like to sue Metropolitan Toronto for its mismanagement of the Brock West mega-landfill site, which is leaching all over the place, and Brock North as well. Would this bill allow them to do that?
Mr John Jackson: I'm not a lawyer, so I'm not the proper person to ask, quite frankly.
Mr Offer: Thank you, John, for your presentation. In the short time allotted to us, I want to talk about one area that you brought forward, and that was the whole issue around application for review. I know you've indicated you're not a lawyer, but you brought forward it and used the example of the 3Rs policy and Bill 143, that it was your impression that under the bill you would not be able to use the bill to revisit the 3Rs policy.
Mr John Jackson: No, there were two examples I gave. The OWMC case I wasn't sure we'd be able to because that was a new policy, the hazardous waste policy. I think in this case we could use it, because the Waste Management Act is specifically referred to as one of the pieces of legislation that the bill applies to and it's an existing policy, so I would think we would be able to use it.
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Mr Offer: In your presentation, I thought I heard you say, and please correct me if I'm wrong, that you felt 50% of waste could be reduced and you were concerned that this would not be eligible for review.
Mr John Jackson: I will correct it. I'm sorry, I may not have said it clearly enough. The current policy is 50%. In material we'll be giving you about a week from now, we're saying the numbers can be much higher, from some very detailed studies of waste in this community. Before the Environmental Bill of Rights exists, I'm not confident we will have the mechanism to have that reviewed. With the bill of rights, I then am confident we would have the mechanism to have that policy reviewed.
Mr Offer: That's good to hear, because I was going to bring forward subsections 61(1) and (2), which I thought would be able to give you the opportunity to keep government on its toes with respect to changing technologies and things of this nature.
Mr John Jackson: That's exactly why we support this bill, one of the main reasons.
Mr Offer: I'd just like to thank you for your presentation.
Mr Tilson: Thank you, sir. I appreciate many of your comments. One line of questioning which I have been trying to obtain different opinions on is the issue of the slowing down of our economic process. I guess this is really a philosophical question I'd like to ask you. This bill gives the individual rights he's never had before, and that is good. I believe that, and I think most of us believe that. But the question I have is, can that be abused? How far should the rights of the individual go, for example, competitors of companies, individual competitors, not necessarily for environmental purposes? That's the risk of giving rights to the individual who may not have any direct relationship to a particular development or a particular project. Could you comment on that.
Mr John Jackson: Certainly. The bill is very clear in terms of the discretion that's given to the minister or say to the Environmental Appeal Board whether to accept an appeal or not. It isn't automatic, when someone makes an application to have something reviewed, that it will happen; there is this discretionary process first. The criteria that are outlined are that your are a neighbour or have been involved in it before; that you have to have a valid reason for being involved.
I think that discretionary process has time lines which will make that happen very quickly -- in some cases it's 15 days, in some cases I think it's 30 days -- so that can be very quickly pushed aside. Indeed, some people would say there are too many discretions in the bill. Certainly it's not a wide-open thing where anyone can come in and make an appeal, or at least succeed in carrying through an appeal, without having shown very valid reasons for their involvement.
Mr Tilson: In many of the suggestions you have made, you have been critical of some of the hearing processes. One of the other fears of this bill is that it's going to create another line of bureaucracy, and at this particular point in time of this government or any other government, the taxpayers simply can't afford it. That may be a valid argument or it may not be a valid argument. The question is, are there other ways of solving the problems? For example, in some of the examples you've given, the way to solve some of those problems should be amending specific pieces of legislation. Could you comment on that.
Mr John Jackson: I certainly would like to see some amendments as well. However, one can never, in legislation, work out all the details to deal with these sorts of things, to predict all the things that may come up. That's why a bill that generally deals with all of them is really important.
In terms of the issue of expenditure of money, bureaucracy etc, we have to look not simply in terms of what's spent today but what will be spent a year from now or two years from now. The experience we have over and over again is that citizen involvement in this sort of decision-making means that we make better decisions today which save us from expenditures for cleanup, for example, in the future that are much, much more costly.
A prime example of where the provincial government is having to sink incredible amounts of money now is the PCB cleanup of Smithville. That happened without the public having access to information, without the data being out in terms of what was really going on at that site. It was a prime example of a situation in which, because the citizens didn't know what was happening, we're now spending millions and millions of dollars we could have avoided.
Mr Tilson: I appreciate that, and that is a good response, except that the genuine fear is that the minister has said, "Let's deal directly with the commissioner's office," aside from the need to perhaps increase the number of civil servants or whoever is going to assist specific ministries. To satisfy many of these very legitimate complaints, it will require more people to do more things.
My honest concern about the commissioner's office, for example, is that the minister has said, "Well, it'll only require 15 people," I think is the number. I don't believe that. If the commissioner's office is going to do the effective job that it should -- the previous speaker talked about the need for education and participating in perhaps the development of the regulations, and there may be other things -- all this is going to require a whole pile of people. That is another issue of cost to develop a process: another bureaucracy; in other words, a bureaucracy on top of another bureaucracy. Could you comment on that.
Mr John Jackson: I think a comparison that's fair to make is with the Provincial Auditor. I'm sure none of us would want to drop that office. I don't know how many people they have in their office, but it's valuable. That report that comes out every year from the Provincial Auditor is something that helps all of you keep the government on its toes. I think we need the same thing in terms of the environmental perspective.
We're all saying that the environment and the economy are directly linked, that we need to really take care of this. I think we have to make that investment, whatever it may be. I'll trust you people and whoever to push to make sure it's streamlined and done in the best way possible, but I certainly don't want to see the office dropped.
The Acting Chair: Thank you for your presentation. Your time has run out. We appreciate it.
RURAL ACTION ON GARBAGE AND THE ENVIRONMENT
The Acting Chair: The next presentation is by Rural Action on Garbage and the Environment. Please introduce yourself, your name and position, and proceed with your presentation.
Ms Rhonda Hustler: I'm Rhonda Hustler. I live in Lambton county near Sarnia, Ontario. My presentation here today is part of a larger network of citizens' groups from across Ontario. Our group is called Rural Action on Garbage and the Environment. We were formed about four years ago to focus on waste management issues in rural Ontario.
I welcome the opportunity to speak with you this morning as a citizen activist and as someone living in a small town in rural Ontario. I'm an active member of grass-roots environmental organizations in Ontario and I believe strongly that the Environmental Bill of Rights is vitally important to us and to our work as citizens in Ontario. I support it as a tool for the protection of rights of citizens and the rights of the environment.
For the past few years, I have worked with grass-roots organizations across Ontario on a number of waste management issues, principally disposal, landfill and incineration. My own local issues in Lambton county have focused on waste transport and export, hazardous waste incineration and waste management master planning. I've been involved in all of these issues, been involved extensively with public participation and public consultation. I think part of the outstanding value of the Environmental Bill of Rights is the right of citizens to participate in the decision-making process.
My experience as a community activist has taught me the value of public participation and citizen involvement in government decisions at all levels and working together on policy decisions and strategies. It's my view that Bill 26 will provide a procedural right for the citizens' process, mainly because it regards citizens as legitimate participants in the process.
While Bill 26 may not in all aspects fulfil our expectations, it does, without question, provide clear direction for the role of the public and a common denominator for all ministries included under the bill. We're hopeful that it will work towards balancing the public's interests with the legal and administrative processes within government and the judicial system.
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My primary interest today is how we as citizens will use the bill, the question of access, and how we will use it as one means among others to ensure that government recognizes and respects our efforts. We hope the bill will work to serve the public interest, not simply the interests of special interest groups, and we see a number of mechanisms in the bill which will serve to work in this direction.
We believe the bill is a valuable tool in conjunction with other environmental measures. As you know, grass-roots organizations have few financial resources and struggle to survive financially. Those financial problems often escalate whenever the group enters, willingly or unwillingly, into a government environmental process. As John was just explaining to you, the complicated hearing process is very often an unwelcome process for citizens because it's lengthy, expensive and exhausting. The process, in terms of rights, is very important for us, but in other terms it can be very exhausting.
To make the Environmental Bill of Rights accessible, both in theory and practice, citizens need to work with government and consider a way to fund groups using the bill in a variety of ways. In our view, part of the accessibility of the bill depends almost entirely on the availability of a funding mechanism. Of course, the issue of funding raises very legitimate questions about costs: Who pays and how much, what would be the criteria, and can and should the government really afford to cover citizens' costs involved with this bill?
From my experience, we already have some methods, some models, whereby citizens can afford financially to enter into various processes. They act responsibly and, in very broad terms, benefit the public interest. A study on funding will be submitted to you shortly by another Ontario network group, the Ontario Environment Network. That study will outline various approaches. I hope you'll have an opportunity to look at that closely.
One suggestion I would like to make in particular today is that, from my experience, my own local group has used the Information and Privacy Commission as part of our efforts for environmental action. The commission was, for us, a useful mechanism, a mechanism that allows us to recover costs. I would suggest that this process be considered as a model for one aspect of funding.
The process works this way: In order to work on our local issue, we needed a considerable amount of documentation from the Ministry of Environment, and of course that documentation required considerable staff time, photocopying and research time -- real dollars for the ministry. When we applied for the information under the freedom of information act, we were sent an invoice of what that documentation would cost the government, essentially, public dollars. We were able and willing to cover those costs. It was in the neighbourhood of around $500. Over the years, we've used freedom of information several times and paid our costs ourselves.
If, however, we were a group that had been financially hard pressed, we could have asked the Ministry of Environment to waive those costs. We could have appealed the ministry's decision to the Information and Privacy Commission and then had a decision made at that level. If the commission had considered us needy of funds and unable to pay for the right of the documentation, we would have had our costs reimbursed. In my view, the process worked and it was fair. I suggest that this mechanism might be considered.
A funding system could reflect the current structure of freedom of information and the Information and Privacy Commission. An advisory board, for example, of multistakeholders in the commissioner's office could oversee the funding process and develop a funding criteria in order that the system not be abused and that it be fair. Levels of funding could be developed depending upon the kind of information or action requested by the group.
Citizen groups, from my experience, do not want to enter into complicated processes or litigation. We work very hard to work through conciliation, negotiation and the public consultation process to resolve problems long before we enter into an environmental process. We would much rather work on the issue itself than enter into appeals and reviews and government measures. For this reason, I think you can be assured that grass-roots organizations will be very discerning and very discretionary about their use of the bill. In my view, a carefully designed funding provision is essential to making the bill truly accessible to citizens.
Citizens would be expected to cover a percentage of the initial costs, and that percentage would be set by the advisory board in light of the citizens' financial resources and the kind of action requested. After the action was completed, citizens could ask to have all or a portion of their costs recovered, and the commissioner's office would then decide whether or not their action had served the public interest and whether costs should be recovered.
We recommend as well that the commissioner review the impact, be it positive or negative, of a funding system. This review could be conducted each year to analyse the impacts of a funding system for citizen groups.
This overview is only a suggestion of a possible mechanism, but we ask that you consider seriously the funding issue as equally important as the entire issue of accessibility. The critical issue is to make the bill accessible and useful and practical to citizens. In closing, we strongly support the bill and believe that the time has come for an Environmental Bill of Rights in Ontario.
Mr Offer: Thank you for your presentation. When you started, you said you viewed the bill as setting a common denominator for all ministries. I think that's something like the phrase you used. I'm wondering if you could explain how you view this bill as setting a common denominator.
Ms Hustler: In the sense that there will be a standard expected, that there will be an expectation that there's going to be an environmental value shared by various ministries.
Mr Offer: Then is it your expectation under the bill that the statement of values for all the 14 prescribed ministries will be by and large the same?
Ms Hustler: I can't answer that specifically, but there's a sense that there will be an accounting, a recognition of those common values throughout the ministries.
Mr Offer: I've been grappling with this for a while. I'm trying to find out what is the expectation of the Environmental Bill of Rights in the minds of the general public. You come with a great deal of experience at the community level. Is it your expectation that when those statements of values are finally publicized they will elevate environmental concerns as a priority in each of the prescribed ministries?
Ms Hustler: Speaking for myself on this, the expectation is that environmental consciousness and standards will be recognized as equal to other factors, so that it's going to have sure footing within each ministry and be recognized as valuable and one of the imperatives.
Mr Tilson: Much of your address has been expressed to many of us privately and even at this committee. You've emphasized accessibility to proceedings, that one of the reasons the individual may not be able to access hearings or processes is the subject of cost. One of the speakers this morning talked about the subject of fees. You and others have talked about the issue of having to hire people, I suppose, and just the general cost.
These are very complicated issues, the whole issue of environment, chemicals, understanding things. To the average person, certainly to me -- I hope I'm one of the average people -- it's very complicated to understand unless you do this stuff all the time.
So the whole issue of cost is important and accessibility is important. At the same time, all governments, whether municipal or provincial, are discovering that they too are having many financial difficulties in performing the obligations they're required to do to the taxpayer. Is this going to put an unbearable burden on a municipal government or on a provincial government that are doing all kinds of things that may affect our environment and may need to be monitored more and more?
We're talking about money. You're talking about money for the individual, your group or any other group. But is the whole set of expectations -- Mr Offer was using that word -- a false set of expectations? We're hoping we're going to be able to stop pollution, to stop the destroying of our environment by individuals having access to certain things, but do you think it's possible because of the economic situation we're in?
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Ms Hustler: To speak first of all to the expectation, I think citizen groups are abundantly realistic about the expectations of any piece of legislation, that each one will have its strengths and its weaknesses. We find in each case that we can use one piece of legislation in a certain way, and realistically we look at this in the same regard.
As earlier speakers have said, this is seen as the very last measure, that a group would not start working on an issue through the Environmental Bill of Rights. Groups look at this bill as the last expression, really, of individual and public rights.
In terms of cost, I agree entirely that there are some hard economic realities. Our group does an enormous amount of our own fund-raising and our own responsible management of money. But there are many groups, including ours at some point if the issues drag on long enough, that will become hard-pressed financially. But you can expect citizens to be frugal far beyond anything that government might be familiar with. Groups work on shoestrings; they don't expect huge amounts of dollars, and work very efficiently and ask for minimum funding. It's not going to be exorbitant or abusive in its cost.
I also think there might be a distinction between a private proponent in the same way we have intervenor funding, that kind of a plan, where it will depend largely on who's generated the issue.
Mrs Irene Mathyssen (Middlesex): Thank you for your presentation. This morning we heard from Laidlaw, and one of the concerns expressed by Laidlaw was that this bill shifts power from government agencies to individuals and that there was a danger that individuals or groups might impede businesses to the point where they couldn't do business as effectively; they were concerned about the costs of that. As someone who has been a member of an environmental group for quite some time, do you share that concern? Do you fear perhaps there could be that kind of problem created?
Ms Hustler: My own experience with private waste management companies has been that more often citizens feel they have far fewer rights than companies, certainly far fewer resources. My sense would be that in fact there would be a clearer balancing of strengths between the two groups.
Citizens don't like a prolonged process. They like resolution and a sense of fair play and equity. So it would seem to me that the more public participation we have, the better the decision-making process, the better a corporation can behave within a community and the better goodwill we have with companies.
Mr Wiseman: My question is along the same lines. In my previous life as a battler of Metro's waste management policies, it was abundantly clear to us in our group that the reason we were as angry as we were was because we didn't have information, we didn't have access. We felt that the people who were doing this were doing it to us, and they were not accountable because of all of these things. Where we did have access to the process and information and so on, we were much more likely to work together than we were to have a confrontational mode. Do you see this bill contributing to this kind of more open, collaborative, mutual exchange of ideas, as opposed to creating a confrontational situation?
Ms Hustler: I would agree entirely that when citizens know there's a mechanism and a system available to them for information, for an understanding of issues and a sense of freedom and their own rights, then there's far less hostility and far less fear of the issue. This can only be constructive in terms of relationships between the public and any kind of sector.
The Acting Chair: Thank you for your presentation and your responses.
FRIENDS OF THE EARTH, CANADA
The Acting Chair: The next presentation will be by Friends of the Earth, Canada.
Mr Jeremy Byatt: Thanks very much for giving me the opportunity to come and talk to you today. We don't often do a lot of work here at Queen's Park, being based in Ottawa and being a national organization. My name is Jeremy Byatt. I'm the policy director at Friends of the Earth, Canada. We're very glad to come and talk about the Environmental Bill of Rights in Ontario, because we do think this is an issue of importance not just in Ontario but nationally and internationally as well.
Friends of the Earth is the world's largest environmental network. It was founded in 1971 in the United States and has now spread to 51 countries with over one and a half million members around the world, and the international secretariat is based in Amsterdam. Friends of the Earth, Canada was founded in 1978 and has been very active since. Our key issues are climate change and energy.
Ozone depletion: We've done quite a bit of work with the Ontario government on ozone-depleting substance regulations in the last year and a half to two years. We have an urban forestry program called Global Relief. We are developing a sustainable agriculture campaign, and we work on selected economic issues.
Internationally, most of our work is on ozone depletion. Nationally, ozone depletion and climate change is where we do significant amounts of our work. Our mission is to be a national voice for the environment working with others for the renewal of our communities and the earth through research, education and advocacy.
I'm mentioning our mission statement for a couple of reasons. The key point is that in all of our work we usually work with other groups from all sectors of society, industry, government, other non-governmental organizations, the education system and professional associations, and in all aspects of our work we have research, education and advocacy components. We're not just an advocacy group. As a matter of fact, the largest proportion of our staff time and budget is spent on public information programs. For example, of the information you see in the press on ozone depletion, we probably do background for about 80% of it across the country. That is a lot of what we do at Friends of the Earth.
We're extremely interested in the Environmental Bill of Rights as quite a forward-looking step. Being from Ontario and being the token Torontonian in our office -- we've got a lot of Albertans and people from Quebec, and there's a lot of regional rivalry -- I'm quite happy to see it is Ontario that's leading on this issue.
We support the bill. We think it's a very good effort, and one of the things we're most interested in is seeing the emerging consensus that's coming with government, industry and non-governmental sectors. We certainly call for full implementation of the bill.
The key aspects of it are the recognition of the need for citizen participation, both as citizens with respect to government and as citizen employees within industry as well.
We also very much like the implicit acknowledgement of the doctrine of public trust, that we have a responsibility to future generations. For the Ontario government to lead on making this key step in sustainable development is really quite impressive. We talk a lot about deficits and the public debt as being a problem for the next generation. Well, we are running up even larger environmental debts, and by having implicit acknowledgement of the idea of public trust, that we have a responsibility to the next generation and generations coming up, I think is a key legislative step and quite impressive.
The main points we're concerned about: The first one is the harmonization question. As a national and international organization we see continually the problems of federal-provincial harmonization, international harmonization, and we would really hope that implementation of the Ontario government's initiatives would not stop with there, that we'd take this to the Canadian Council of Ministers of the Environment and the federal government.
We'd like to see harmonization with the proposed ideas that the Liberal government is talking about, with some sort of environmental auditor general so there could be coherent coverage of provincial regulations by the provincial bill with no overlap and clear coordination with a federal environmental auditor general. This is really important. I don't know if you've had comments from the private sector about this, but one of their biggest environmental concerns is the issue of harmonization.
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Also, through the CCME, we really hope Ontario would strongly recommend that other provinces bring in very similar forms of legislation. Many of our companies deal in more than one province, and having to learn different sets of ground rules is their challenge. Semifacetiously, I've heard quite a few people say that one of the biggest environmental challenges we have in Canada is our Constitution. As a national voice for the environment, we thought this was a key point we should raise with Queen's Park that hopefully we'll take this outside the boundaries of Ontario.
The next point I wanted to talk about was the issue of public and employee access. This, to us, is the key aspect of the Environmental Bill of Rights: giving citizens better access to government regulations and development of government regulations and giving employees more responsibility within their companies for environmental management.
In the private sector, we actually have done some work with various management consulting companies on a national level that are doing environmental management strategies for their corporations. This is starting to become an issue in larger companies: How do you change your corporate culture and have individual employees responsible for environmental management within companies?
With the introduction of lean production techniques loosely based on the Japanese model in the auto industry, the auto industry has already delegated tremendous amounts of responsibility to individuals on the shop floor. In the leading production facilities across the country, you will see that any single employee can stop the whole process if he sees a problem. The most successful and internationally competitive companies in our country have this tremendous delegation down to the lowest levels and also very flat decision-making structures. There are quite a few specific examples that many of you are well aware of.
When it comes to changing the environmental culture within a company, the single most important aspect in eliminating waste and pollution across a company has been involvement of employees right down to the bottom. I don't know if you've had anybody testifying from the chemical industry, but there certainly have been a lot of changes through the "responsible care" program across North America to reduce toxic waste. Company after company has stated that the key point for success was to have individual employees to care and to identify these areas of waste.
What the Environmental Bill of Rights does is that the companies on the leading edge will probably not be in the slightest bit worried about whistle-blower laws, because they probably already have them within their own companies. But this is a really good case of the government, by putting this in statute, va encourager les autres, to make sure that the companies that aren't doing that are moving that way.
Many of the companies that have advanced waste management strategies across the company are also finding it's extremely profitable. Northern Telecom, when it phased out use of CFCs for cleaning circuit boards, saved $4 million in the first year; that's why they did it. Some of our more traditional structures might find it's a shock in the first place to be affected by a whistle-blower law, but it could actually increase the competitiveness of the Ontario economy. I don't know if anybody's made that point. There's a very clear correlation between very clean companies and very profitable companies. It's an extension of the whole concept of lean production, as efficient a use of resources as possible. I think this will be a good push to those companies that aren't moving that way.
Some of us in our society think that environmental protection is a cost. If it's an end-of-pipeline add-on, it is a cost of business, but if it's built into the production process, then it can lead to greater efficiencies. A key aspect of that is the buy-in of individual workers, and the empowerment that the Ontario government's proposing with whistle-blower legislation is going to be a real boost to that. I hope that argument's made much more publicly in Ontario; I haven't seen that argument made more publicly, that this is not a burden but an opportunity. In Mandarin script, the symbol for danger and for opportunity is the same symbol. I think that's a key point that has to be made that we should bring into our culture here.
Within the Ontario government, I think the same thing goes. Opening up the environmental regulatory system, across ministries, to the public will certainly make regulation a lot easier. It's incredibly expensive to enforce regulation, and regulation is in all of our best interests to prevent environmental degradation, and that's implicit in the public trust doctrine. So why not get all the citizens of Ontario involved in assisting the regulatory process? It sounds to me like a pretty cheap way to do it, and a lot of people care. We've had Participaction for physical fitness, and that's probably going to be extended to some kind of environmental Participaction with the new federal government.
I remember as a school boy in Toronto learning about litter and picking up litter. One of the reasons Toronto's such a clean city is not because -- well, there are big programs to clean up the streets, but also it's been included in the educational process that it's a citizen's responsibility. I think here we have to look for opportunity, and with the Environmental Bill of Rights we're opening up more opportunities.
How am I doing for time?
The Acting Chair: Fine. We'd like you to leave some time for questions, if you would.
Mr Byatt: Certainly. I can discuss the issue of intervenor funding. As a question, I don't know if that's already been clearly dealt with.
Just to sum up, the Environmental Bill of Rights is actually a piece of sustainable development legislation, which is unfortunately all too rare across the western world, but it is increasingly coming in because it's acknowledging the concept of public trust and the rights of future generations and it's bringing all of us, as employers, as citizens, into the process.
It's a very good first step. I don't think it's going to be any surprise for people at the forefront of change in any sector of society. It certainly might be a bit of a shock for people who are at the trailing edge. I don't think any of us should be frightened by bringing in this kind of legislation. I think we should instead be excited.
From what I've heard from other participants about the consensus-building process that's involved, that's a really important step, because this sort of legislation discussion shouldn't be a battleground for competing special and political interests. It should be an opportunity for us to all learn from each other and work together and move ahead.
For us at Friends of the Earth it's important to work together and to work with others for the renewal of our communities and the earth. That's what we see at the Ontario government's trying to do with the Environmental Bill of Rights.
The Acting Chair: Thank you for your presentation. Questions?
Mr David Johnson: You mentioned intervenor funding but you didn't really have an opportunity to get into it. The previous deputant mentioned intervenor funding as well and felt that there should be money available for community groups to be able to pursue -- I'm thinking of Ontario Hydro projects, and we see that through the environmental process there's a great deal of money involved with intervenor funding, large sums, millions of dollars involved, and I guess some people wonder if that's being wisely spent.
I'd be interested in your comments on it and how it's controlled, from your experience as a broad-based spokesman for the environmental groups. What sort of fund would you set up through the Environmental Bill of Rights? The Treasurer has to set a budget.
Mr Byatt: Exactly. This is really tough. My immediate gut reaction is that we're broke; as much money as possible would be greatly appreciated. We're a national organization and we don't have a travel budget. The reason I'm here in Toronto is because somebody's paying me to give a speech tomorrow afternoon. That's why I'm here today, or else we wouldn't have been able to come.
In the Ontario context, one of the advantages of intervenor funding, especially travel money, is that it allows groups outside of Toronto to speak. Toronto-based groups have an inordinate influence on the political process, just as Ottawa-based groups have an inordinate influence on the federal process. That's very much an Ontario issue.
The question of intervenor funding is quite difficult. I think we all recognize the constraints on public finances. I pay taxes too, and I certainly don't enjoy so much of my tax money going to pay interest on federal and provincial and local debt. We're very aware of that.
There's also an ideological question of independence: Should groups accept money from the government to go and lobby the government? The question of independence is something we discussed within Friends of the Earth, international and national, and there are strong arguments made that one shouldn't accept intervenor funding because you can lose some of your objectivity.
The argument in favour of establishing intervenor funding is balancing the economic strength of various lobbies. If you're representing a private company, you're going to have a travel budget and you're getting a salary for that day, so the argument made in favour of intervenor funding is to give more voices access.
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There's also a particular problem in Canada about funding non-profit organizations, and that's some of the aspects of the tax structure with respect to foundations and charitable donations. In the United States there's much less intervenor funding available, but the amount of foundation money that's available to non-profits is roughly 100 to 200 times more, not 10 times, as you'd expect. The economy's 10 times bigger, but there are two orders of magnitude more money available. That's the difference in the tax code. The same with donations to charitable organizations: You can really get only about a 50% write-off, so it's more difficult for non-profit organizations to raise money. As a result, there's been a history of going to back to the public sector to get intervenor funding.
Also with intervenor funding, you need travel money and then research time. I would think that in this case the key thing to do is to make data available. Research time is really difficult to fund and it's very difficult to get information. Subscribing to journals is expensive. If this information is made available electronically, free of charge, using the interface, that in essence is a form of intervenor funding because with us, when we budget our time, research time's really important. If you could do that, that would be a very cost-effective way to do it.
It's unfortunate, but given the current structure of charitable donations in Canada, I think there has to be money available for travel for groups outside of Toronto. Maybe there's got to be some kind of radius rule for people from small towns, even for people from small towns in eastern Ontario, like Ottawa. We need to be able to come down here. For us to come and speak here, it costs a week's salary for one of our researchers. That's the reality of the situation if you want to come down here, especially if it's on short notice and you can't plan well ahead. Really that's what we're looking at, if you want to pay the full travel costs.
Mrs Mathyssen: I appreciated your presentation and I was intrigued about what you had to say about the cost of doing business and the reduction in the cost of doing business by good environmental management. Given the accepted reality of the 1990s, can our economy survive unless we do this kind of thing, unless we do have environmental bills of rights across this nation?
Mr Byatt: If you take a look at two countries which have quite democratic structures in their industry, which would be Japan and Germany, Japan's already tied up 80% of the US market for air quality control equipment and BMW and Mercedes Benz are already designing their cars from scratch for disassembly and recycling. It's the only way to go. We'll get crushed by our trading partners if we're not moving that way for the most efficient use of resources possible.
Mrs Mathyssen: So only the dinosaurs will complain.
Mr Byatt: Yes.
Mr Offer: Thank you for your presentation. Because of the organization being not only national but international, there are, I understand, some other jurisdictions that have, if not the same type of legislation, the same direction this legislation wishes to accomplish. I'm wondering if you might, in the short time available to us, share with us some of your experience with legislation of this kind in other jurisdictions.
Mr Byatt: Unfortunately, I haven't done any research on that question myself. Susan Tanner, our executive director, who was unfortunately unable to come today, would have been able to talk to that point very well. As a matter of fact, she's just come back from the international annual general meeting in Djakarta, and she is an environmental lawyer. My background is economics and engineering, and I haven't done any work on that, which is too bad. But that might be an interesting point to do some study on. That could very much help a communications program once this bill is enacted and you have to go out and sell it to the rest of the province. That could be very useful to put into the public communications strategy.
Mr Offer: If Ms Tanner could put down something in writing on that, I think it would be quite helpful to the committee.
The Acting Chair: Thank you for your responses and your presentation.
Mr Byatt: It's a great pleasure and it's nice to come down to Toronto for a couple of days. I must admit I'm glad I get to go back outside, because it's awfully hot and stuffy in this room. You've got my sympathies.
The Acting Chair: I noticed that, yes. Sometimes it's worse.
CANADIAN ENVIRONMENTAL DEFENCE FUND
The Acting Chair: The next presentation is by the Canadian Environmental Defence Fund.
Mr David Donnelly: I hope this water comes from the lake and not from some bottle.
The Acting Chair: It's excellent water.
Mr Tilson: Lots of chlorine.
Mr Donnelly: Thank you for inviting me here today. My name is David Donnelly. I'm the executive director with the Canadian Environmental Defence Fund located in Toronto. I've been the executive director for five and a half years now.
The founding principle of the fund was to ensure that no citizen be denied environmental justice on the basis of cost alone. In fact, our raison d'être is to provide people with the type of funding that you've heard, from people who have already presented today, is required. In fact, we started with a novel case where a citizens' group went to court and was successful. They were given a cost award and took that money, $5,000, put it in a bank and said, "Next time a public-minded citizen group comes along and pursues a precedent-setting environmental law case, we'll give them the money and see how they do." That's how the fund was started.
Since 1985, when we incorporated, we've provided over $1 million to citizens' groups across Canada pursuing nationally significant or precedent-setting environmental law cases. We've also provided legal counsel, planners and scientific expertise to these groups as part of our legal and expert assistance program.
This funding is only available to citizens who are involved in extraordinary cases where there are extraordinary circumstances, where a nationally significant public resource is to be compromised by a government decision or an action by industry. I want you to frame that phrase in your mind for my presentation today: "extraordinary circumstances."
These are the groups like the Newfoundland Inshore Fisheries Association, which tried in 1990, unsuccessfully, to have a moratorium placed on the cod fishing, and at that point tried to have an environmental assessment on dragger technology and trawling on the spawning grounds imposed. They were unsuccessful, and then two and a half years later they had to rue the consequences of that government decision. It's groups like the Innu nation in Labrador, who for five years have been fighting low-level flight training which has had a devastating impact on their communities, all of which you may be familiar with if you had occasion to see the plight of the children in Davis Inlet last year. It's Martha Kostuch and the Friends of the Oldman River, who are fighting now to preserve Canadians' right to a private prosecution in federal court. It's groups like the Temagami Wilderness Society and others.
In my presentation today, I'd like to address three topics in ascending importance. The first is to give our general support for the bill; the second is to talk about our recommendations for improvement; and third, I'd like to spend the majority of my time on recommendations for funding, as we think we have the answers to these questions about where you can get the money, how it's to be disbursed and who is to administer the fund. We have the answers here.
I should add that I will be making a written submission to the committee. I just have notes I'm referring to today, but I will make a submission in the next couple of days which you can refer to during your deliberations about improvement of the bill.
First, our general support for the bill: The CEDF supports the concept of an Environmental Bill of Rights for Ontario. It is our respectful submission that Bill 26, An Act respecting Environmental Rights in Ontario, is a significant step in the movement to establish an Environmental Bill of Rights for Ontario. As such, the CEDF supports swift passage of Bill 26 into law.
The bill creates many new opportunities for the public to defend public resources like air, water and soil. Important tools for increasing public access to environmental decision-making have been created in this bill, such as the registry, the commissioner's office, and enhanced public notice of government decision-making. Incremental improvement in citizen access to courts is a further necessary and long-overdue improvement in our province's environmental protection regime.
Despite these important and even historic gains, implementation of these provisions will determine the success or failure of this important public policy exercise. Too much time and public money have been invested in this exercise to have the bill fail through neglect or indifference. Every elected official and their constituents must now scrutinize the all-important implementation of the bill.
Now to our recommendations.
First, we think that one of the unfortunate omissions in the bill is the fundamental right to a healthy environment. We believe that should be included in the purpose of the act and not in the preamble. This was promised in Bills 12, 13, 23 and others. It is the cornerstone of the movement to establish an Environmental Bill of Rights. It is a fundamental and immutable right which may not be provided now but will be provided some day in this province, and we look forward to participating in that movement.
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There's a saying in the Bible, "These, having not the law, are a law unto themselves," which is Romans 2:14. When I dwell on this aspect of providing this right to a healthy environment, I'd like you to think of that, because the bill only allows the public to enforce the existing law. Tribunals certainly serve their purpose in Canada. In fact, in Ontario we do a particularly good job of administering tribunals, and it does provide the public with good access to decision-making.
But enforcing the law is not enough. What about the extraordinary circumstances? If James Bay II is ever built, it will be legal. The decimation of the northern cod stock, a wholly man-made tragedy, was done legally. Low-level flight training, which has caused so much suffering, is presently legal. The logging of Clayoquot Sound is permitted by law.
What about Ontario? I have a personal experience, and that is my experience with Long Point, Ontario, which is one of Canada's two most important ecological reserves. It contains 671 species of vascular plant. It contains rare and endangered species of fish. It is a class 1 wetlands in the province. It is designated as internationally significant by the Ramsar Convention on Wetlands. It is a UNESCO biosphere reserve. Yet somehow a trailer park, a marina, a hotel and condominiums have all been located in and adjacent to those wetlands. I was personally involved in the struggle to stop that. Some of what was done was legal. All of it was supported by the MNR. The minister would not intervene, and the local MPP wrote a letter to my employer intimidating me and questioning my integrity in involving myself in this issue.
This is what happens to citizens in the province who don't have this fundamental right to question these types of decisions in the courts. Tribunals are simply not enough. Where the law is wrong or does not exist, we need the enforceable right to a healthy environment.
The experience in Michigan with the Michigan Environmental Protection Act tells us that there will not be a flood of cases. There has been less than one every two months now in the year since it was passed. One case was even brought against the automobile in Michigan with this right to a healthy environment, and the person was thrown out of court on their ear.
I'll make this part of my written submission, but I want you to know that this right to a healthy environment is expected by many people, including the Canadian Environmental Defence Fund, and I will make reference to that in my submission.
We have other recommendations as well for improvements. First, we'd like to see the standing provision in public nuisance suits liberalized. We think the remedies provided in the civil cause of action should include damages. We have trouble with the new defence. Also, the test for the leave to appeal class I and II permits to the Environmental Appeal Board is too onerous and we feel it should be liberalized. That would be clauses 41(a) and (b) of the bill.
Now to the part on which I believe I speak with most expertise, and that is on the issue of funding.
Many of the bill's provisions create new rights and opportunities to protect significant natural resources. Most provisions require groups to retain experts. In cases where the public interest is being defended, these groups will require supplemental funding. The question is, who is going to provide it?
Certainly the groups will do their own part. They will hold their bake sales, they will hold their raffles. This is what we call bake sale justice, and it works, to an extent. There are some agencies and groups, like the Canadian Environmental Defence Fund, that support those groups, and we ask people from across Canada to involve themselves in local issues to defend provincially and nationally significant resources, and that has some effect as well. But there must be an equal partnership, and I am here to tell you today that government has admitted that it has a role to play in the funding of these groups.
The CEDF undertook a review of the Intervenor Funding Project Act, and what we found is that "Communities and interest groups have indicated that they have been able to mount a credible and complete case with funding support and that without funding they would have lost their personal resources or they would not have participated at all." The study concluded, "Without funding for intervenors, access to important decision-making affecting public resources is effectively denied."
In the report of the Sewell Commission on Planning and Development Reform in Ontario, there is a recommendation that government funding be provided to principled public interest intervenors. The Task Force on the Ontario Environmental Bill of Rights reviewed the issue of funding, and in fact in a submission made by a number of environmental groups, they stated unequivocally that, "Funding under the Environmental Bill of Rights is a right that is as essential as any provision contained in the bill." I'll make reference to this in my written submission.
Finally, the need for funding unselfish, civic-minded citizens has been witnessed by the CEDF for over eight years. Having funded the Innu nation in its struggle against low-level flight testing, inshore fishermen and outport communities in Newfoundland trying to save the cod stocks, retired people in Port Rowan, Ontario, attempting to stop condominium projects from being located in internationally significant wetlands and Martha Kostuch fighting for the principle of fair environmental assessment and the right of prosecution, the experience of the CEDF should clearly make out the need for supplemental funding of future cases such as these.
Now, where to find the money? Certainly in our discussions in the private sector we have had interest in funding an Environmental Bill of Rights fund. Law firms are willing to participate, in my view. Certain corporations and foundations will be willing to participate and the law foundation under the law society should also have a role to play, as it did in the creation of the class proceedings fund.
Certainly the CEDF will go to its members. We will also attempt to fund-raise. We have been doing this for eight years. It takes a lot of hard work, but we're prepared to do it and we're prepared to contribute our share.
But at the end of the day, the government also has a role to play. You have a share that you have to put up. If you would like us to come in and find the money in the budget, we'll do so if necessary, but the amount we're talking about is only $50,000, $100,000 -- seed money to start the fund. That's all we're looking for, and it would be an equal share.
The real issue is how to sustain the fund, because the government doesn't want to pay out in perpetuity for this fund and we respect that. But there are provisions right within this very bill for sustaining a fund that could be given to citizens' groups involved in these extraordinary circumstances. I'll talk in a moment about criteria for eligibility for funding, but again these would be extraordinary cases, not every citizen using the Environmental Bill of Rights, probably less than 10%, probably 1% of the people using the bill.
Subsection 95(8) of the bill states, "A restoration plan may provide for money to be paid by the defendant only if the money is to be paid to the Minister of Finance," then there's (b), but (c) "the Attorney General and the defendant consent to the provision." Even if it isn't within the bill, why not create even just a government directive that it is a possibility that defendants, should they so choose, could pay money into the fund so that future users of the Environmental Bill of Rights could be funded in their principled public interest acts.
We've been told by lawyers in the private sector that they would be happy to have penalties paid by their clients paid into something useful and constructive as opposed to just back to the Minister of Finance.
It is our recommendation to the Attorney General to direct that any monetary awards arranged under section 95 be directed to the fund, particularly where the plaintiff benefited from the use of the fund in initiating the proceeding.
Section 100 gives the court discretion to award costs in a case under section 84 of the act and may consider whether the action is a test case or raises a novel point of law. The judiciary could be informed of the existence of the EBR fund and of the social benefit of directing costs awards to the fund where appropriate. This occurs now in private prosecutions; this occurs now where judges direct funds to public interest or to public benefit causes.
Finally, section 74 also provides an opportunity to replenish the fund. It can be anticipated that a number of investigations initiated by private citizens may eventually be taken over by the MOEE. Fines resulting from these convictions, owing their initiation to the provisions contained in the EBR, should be ordered to be directed to the EBR fund.
It is our respectful submission that with minor changes to the Environmental Bill of Rights, and with a few directives from the Attorney General and from the government, this supplemental funding could be achieved through the bill. The fund could be self-sustaining, and we look forward to working with this committee and working with this government, working with whoever is interested to try and create that fund.
I'll finish with just who should be eligible and the conclusion.
We receive hundreds of applications for funding every year. Every single case is a good one, and we have to make the determination about which five or six groups are going to benefit from our fund. We have criteria that states that the case that's applying must involve human health and the natural environment; it must involve a nationally significant or precedent-setting environmental law case; the public interest must outweigh the private interest. Then we have a national advisory committee that instructs us as to which groups should be eligible, which groups are so important that they could establish a precedent that will be used by future generations.
Creating such criteria would not be difficult, and we would be happy to instruct anyone interested about how that could be done. It is subjective, and yet you will find there will be cases that are so extraordinary they will cry out for funding and it'll be an easy and simple determination to give them a small bit of money, not a huge sum -- $5,000, $10,000. They will always be the majority funders of their own cases, but by providing them with something, a small share, you encourage people to pursue those cases which are in the public interest which are so extraordinary that every citizen would admit that at least -- at least -- they should have access to justice. The CEDF does not take positions on issues. We try to defend that simple principle, that no one should be denied access to justice on the basis of cost alone. We say let the courts decide.
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In conclusion, I say that this bill is very good and deserves our support, but if it is to succeed, it must be properly implemented. But to be really fully and truly implemented, the concluding statement I would like to make is that the government has got to play its share in the funding of public interest citizens using the Environmental Bill of Rights. This is the conclusion of the environmental community, in my view. It is also the conclusion of the CEDF.
That ends my oral statements for today. I'd also like to remind you that I will be putting in a written submission on these points, and now I think I'm supposed to entertain questions.
The Acting Chair: Thank you for your presentation. We note your commitment to forwarding a written submission.
Mr Wiseman, our time is very short. There will be a vote called.
Mr Wiseman: Could you elaborate on what you meant by the threshold levels in section 41, which is the leave to appeal? You indicated that they were too onerous, I believe.
Mr Donnelly: The standard is simply too high. You can imagine that there would be a number of reasonable interpretations, a number of reasonable possibilities. I guess what we're looking for as environmentalists is that the most reasonable should be the one that is abided by, so this is somewhat an artificial hurdle, a somewhat artificial threshold to get over.
Mr Wiseman: Can you give us some wording that would make this section a little better from your perspective?
Mr Donnelly: I wouldn't want to do any legal drafting on the spot, but I'd be happy to give you a submission.
Mr Wiseman: If you could do it in your written submission, I would appreciate that.
Mr Donnelly: I will do that.
Mr Offer: Thank you for your presentation. You've given us much food for thought and we're looking forward to receiving the written presentation.
It's interesting that you suggest moving the preamble into the bill. There is in other bills much discussion about that. You believe that by moving the preamble out of the preamble and into the text of the bill it changes, if not the wording, the strength of the words that now exist.
Mr Donnelly: The purpose of this bill should be explicit: to provide the right to the public for a healthy environment. That's where it belongs, in the purpose, if that's what you believe is the purpose of the bill.
Mr Offer: Quite interesting.
Mr Tilson: The major concern I perceive in letters to my office has been the overall issue of cost. You're talking about the cost of the private people responding to governments themselves. A municipality in my own constituency wrote a letter to me expressing the concern about more cost to the taxpayer because ultimately, whether you're talking funds or financial assistance, it's going to mean more taxes. Can you make some of the taxpayers feel better that it won't increase taxes substantially?
Mr Donnelly: I'd love to. We're in the process of doing a review of the federal environmental assessment process and what we're finding is that in all cases where there has been insufficient review of major undertakings that will have a significant environmental impact, there is a direct and substantial public cost.
In the case of the cod stocks, for example, it is costing us $800 million just to pay those fishermen to stay at home and do nothing. The Rafferty-Alameda dam, which was not assessed, has been written off by the Saskatchewan government to the tune of a quarter of a billion dollars. There are direct and substantial environmental costs if these things are not properly reviewed.
If you look at siting costs, for example, the cost to provide people with adequate information, to have an adequate assessment, whether that be through the Environmental Assessment Board or just through public hearings or public meetings, is minimal compared to the overall cost of the project.
The Acting Chair: Mr Lessard, the parliamentary assistant.
Mr Lessard: I was intrigued by your comments with respect to the establishment of a fund, and I was wondering whether in your experience such a fund may encourage or discourage the pursuit of frivolous actions.
Mr Donnelly: The answer to that is an emphatic and categorical no. If you talk to any person who is engaged particularly in the legal process, it is a horrendous experience. It is very costly. There is the risk at any time of losing and having to pay the other side's cost, which is a very direct threat. People who go forward with these types of actions are extraordinary citizens because they take such a risk.
In this case, if you provide funding, again it would only be a minority sum of what they are required to raise on their own. Their personal commitment will be very large. The public commitment in terms of funds would be relatively small. The risk is all theirs and yet the benefit will be society's.
The Acting Chair: Thank you for your responses and your presentation. Our time has now expired, so the meeting is adjourned. Thank you for attending.
The committee recessed from 1205 to 1558.
The Vice-Chair: Could we get started, as we have a full agenda this afternoon. Welcome to the sittings of the standing committee on general government on Bill 26.
NUCLEAR AWARENESS PROJECT
The Vice-Chair: The first presenter is Mr Dave Martin from the Nuclear Awareness Project. I think you know you have 20 minutes, which is not very long. If you can leave some time at the end of your presentation for some questions from each caucus, it would be appreciated. Please go right ahead.
Mr Dave Martin: Thank you. Members of the committee should have brief comments on the Environmental Bill of Rights and also a copy of a recent Nuclear Awareness Project newsletter and our 1992 annual report.
Just by way of general background, Nuclear Awareness Project is a non-profit group. We're based in Durham region; our office is in Oshawa. We're a member of the Ontario Environment Network and we've played a leading role in the formation and operation of the Ontario environment/energy caucus of the network. Nationally, we're part of the Canadian Environmental Network as well as the Campaign for Nuclear Phaseout. We have one affiliated group, a local group based in the municipal region of Durham, called Durham Nuclear Awareness, DNA.
I think from our annual report you can get an idea of the kind of role we play in public education and research. Our newsletter, which by the way has also gone out in the mail to all members of the House, will give you some idea of our current issues of concern.
We've participated in hearings before the Ontario Environmental Assessment Board, the Ontario Energy Board and the National Energy Board. Our main focus is on nuclear issues, on nuclear power in particular, but we have a deep interest in energy conservation as well as renewable energy. I sit on the steering committee of the energy environment caucus of the OEN and I'm a member of the Council on Renewable Energy, which advises the minister.
Just generally on the act, I'd like to start by saying that Nuclear Awareness Project strongly supports the bill, along with, I think I can say safely, the environmental movement in general. We have for years fought to be involved in public decision-making around the environment and to create some degree of transparency and public control over environmental decision-making. It's been, I think it's safe to say, a long, very hard road and a very frustrating one. I think you have to search no further to understand, therefore, why the EBR has been, in general, so warmly received.
I think you can also see the reason why there has been such a long-term flirtation with the whole concept, and not just with the present government but with other parties as well. The EBR speaks to the collective frustrations and disappointments of the environmental community as we have watched the environment be destroyed. I think the EBR is a good model. It's a not a perfect model, and that's what I want to get into right now, because I hope that the members of the committee, in government and opposition, are going to help to improve the bill as it's laid out.
I'd like to start by making a general observation. We do a lot of work at Nuclear Awareness Project, as you can well understand, with Ontario Hydro. There's been some question raised as to whether the EBR is going to apply to Ontario Hydro and, for that matter, other crown corporations. I would urge you to clarify this question. There's no question in our minds that the EBR should apply to Ontario Hydro. I wish to draw to your attention as well that in the draft regulations the Power Corporation Act has not been included. It should be.
I'd like to comment specifically on section 2, the purposes of the act. There are a number of qualifications in subsections 2(1)(a), (b) and (c), if you want to look at those. There should be an unqualified and straightforward commitment to environmental protection. We recommend the deletion in 2(1)(a) of the words "where reasonable." The definition of "reasonable," in our view, is subject to enormous dispute. Similarly, in subsections 2(1)(a), (b) and (c), the words "by the means provided in this act" should be deleted. In our view, the scope and power of the act should not be intentionally limited.
In that same vein, in subsection 2(2)1, the words "an unreasonable" should be deleted, so that subsection would read, "The prevention, reduction and elimination of the use, generation and release of pollutants that are a threat to the integrity of the environment."
Next, I'd like to address something which is of particular concern to Nuclear Awareness Project as a group concerned with energy issues. I'd like to point out that the purposes of the act, as defined in 2(2), do not include the conservation of energy.
We suggest that a new section, 2(2)6, might be created which might read, "The encouragement of energy efficiency technology, and renewable energy, as well as the efficient use of non-renewable energy resources."
Next, part II, public participation and government decision-making, some general comments.
The environmental registry: an excellent idea in principle. From our viewpoint, it supports the public's right to know in a very practical way, which I find very appealing. My concern is that in order to make that registry accessible, there's got to be funding provided to get the information out, and I'd like to see something to that effect put into the bill. I think it's the only way the environmental community and the public interest can be defended.
The ministry's statement of environmental values: Again, I think it's a great idea and our organization, for one, is looking forward to consulting with the 14 ministries that are listed. I would, however, suggest several amendments in this section. I can assure you, having been through many, many consultations -- more than I care to name -- that 30 days is an insufficient period of time to allow for adequate consultation.
You as politicians have your own staff, your parties have research people, the government has its vast bureaucracy to call on, but our groups out there that are defending the public interest don't have staff, by and large. They depend on volunteer time, and the tradeoff here is time. We just need more time to deal with information and to cope with it. Our networks and caucuses need time to mail out. It's that simple. We need to mail out to our member groups, and then once the individual groups out there in the community find out about it, they need time to turn it around with their members to consult them in turn. I'm suggesting that subsection 8(4) -- that's page 8, if you're interested -- be amended to read, "The minister shall not finalize the ministry's statement of environmental values until at least 60 days after giving the notice under this section."
There are a number of following amendments that need to be made in line with that. Subsection 8(5) would be amended to read, "The minister shall consider allowing more than 60 days between giving the notice under this section and finalizing the statement in order to permit more informed public consultation on the statement."
I'd just like to observe that the bill expects the public to comment in 30 days, but I note that the government allows itself nine months in subsection 9(1) to make its amendments. In part IV, the application for review section, the ministries are allowed 60 days just to reach a decision on whether or not to even hold a review. So I put it to you, in all fairness, if the government needs that much time, with its resources, to make simple decisions, how can you expect environmental groups to turn it around in a shorter period of time?
My major concern with this statement of values has to do with what recourse the public will have in the event that there's a violation of the statement. The act, in my view, must be amended to provide some remedy for lack of compliance; otherwise these statements just may be turning out to be window dressing. I don't know how, but perhaps the commissioner can play a role in providing some sort of remedy for non-compliance, but I put it to you that this is a very serious question that needs to be addressed.
On proposals for policies, acts, regulations and instruments, a number of specific comments: First, a removal of qualifications in subsection 15(1); again an explicit requirement for 60-day notice for the reasons I've already mentioned. Subsection 15(1) therefore should read, "If a proposal under consideration for a policy or act could, if implemented, have a significant effect on the environment, the minister shall give notice of the proposal to the public at least sixty days before the proposal is implemented in order to allow for amendments."
Similarly, subsection 16(1) can be amended. I've got a text in the brief.
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Subsections 15(2) and 16(2) I believe should be deleted for the simple reason that administrative and financial acts can also have significant impacts on the environment. Again, the consultation period of 60 days should be amended in subsection 17(1). Subsections 22(1) and 23(1) should be similarly amended.
With regard to the Environmental Commissioner, a general sort of recommendation that I would like to make is that the act should mandate the creation of an environmental advisory committee composed of public interest advocates to act in an advisory capacity to the commissioner, a auditor for the auditor, if you will.
Parts IV and V, application for review and application for investigation: I think there's a fundamental problem here and that is that we believe the minister in question, whoever it may be, is given too much discretion to determine whether or not a review or an investigation will take place. How to remedy that? I haven't had time to really devise a specific recommendation, but it should be balanced, I suspect, by explicitly defining the triggering mechanism that takes place, for example, if the ministerial statement of values is contravened in some fashion.
Finally, the right to sue: We believe that subsection 84(7), the little section in there where class actions are prohibited, should be deleted. I see no logical reason why that collective action should be prohibited. It's simply an efficient way of dealing with problems. We believe that subsection 85(3), dealing with the defence option, should be deleted in so far as it offers too much interpretative leeway for defendants.
With that, I'd like to end my comments and I would invite questions.
Mr Offer: Thank you for your presentation. You've raised a question that just has to be asked, through you and through the Chair back to the parliamentary assistant and ministry staff: Under the Environmental Bill of Rights, is Ontario Hydro included? In fact, are all other crown corporations going to be included under the bill?
Mr Lessard: Ontario Hydro wouldn't be included directly under the Environmental Bill of Rights at the present time. However, if the ministries are prescribed and if the minister were to make a policy statement that would affect an agency, board or commission that came under their jurisdiction, then the policy statements could be subject to review under the Environmental Bill of Rights.
Also, any agency, board or commission could be subject to a request for investigation. They're currently being investigated, so there's no change there. Also, the provisions of the act with respect to expanding the rights to sue would apply so that members of the public would still have those expanded rights available to them.
Mr Offer: I don't know if you wish to respond, but I think you've raised a crucial point. Here we have a Ministry of Environment and Energy, under which falls one of its major crown corporations, Ontario Hydro, a schedule 2 agency, if memory serves me correctly, and that agency is not under this particular bill. From the parliamentary assistant's response, apparently neither would any other crown corporation such as the Ontario sewer and watermain corporation. It would also be exempt from the EBR. I think that might come as a surprise. I thank you for bringing this up because it is something which, in this short period of time that's been allotted to us, we're not aware of. Obviously the Power Corporation Act is also exempt.
Does this mean that the current discussions going on with respect to Ontario Hydro and what it may do in terms of restructuring would not be subject to review by individuals in this province under the Environmental Bill of Rights? I was asking that because you opened it up.
The Vice-Chair: Did you wish to comment?
Mr Dave Martin: Maybe I could make a comment, because Wayne probably answered it in part. It's certainly going to be captured under some aspects of the bill, the investigation and review and that kind of thing. I would argue that Ontario Hydro really is a special case in many ways. It's a tail that tends to wag the dog and I think needs to be addressed explicitly. I take the comments you've made.
Mr Tilson: I'd like to continue with this. I asked this question last week with respect to Bill 17, the one that's before the House now, on the various corporations that are being created for roads, water and real estate, a number of corporations. That's really going to take a large percentage of what this government is doing and hand it over to crown corporations. We might as well deal with those as well. To the parliamentary assistant, and I raised this last week, will this bill apply to those corporations as well?
Mr Lessard: Which corporations were those?
Mr Tilson: The corporations that are being created under Bill 17.
Mr Lessard: I think that would be the same answer as Ontario Hydro. They're included under agencies, boards and commissions that are directly responsible to a ministry, and the minister could make policy statements which would be subject to review. As far as the act requires ministries to provide statements of environmental values, those provisions aren't imposed on agencies, boards and commissions. They don't have to provide statements of environmental values. The reason for that is that the heads of agencies, boards and commissions aren't elected officials. They're actually appointed to those positions and they're not directly accountable to the voters.
Mr Tilson: That's the point. We're now having even more matters that have normally been under the control of the government being assigned to crown corporations, and it has become quite clear to me, with your answer at least, that this bill will not apply to them. We're clearly having even more agencies that will deal with environmental matters that this bill won't apply to.
However, I'd like to return to your comments with respect to the statements. You've talked about -- and I quite concur -- what happens if they're violated? That's a legitimate question. Have you even put your mind to what happens if you don't like the statements in the first place? So a ministry makes a statement. Well, so what? Or they make amendments; another government comes along and amends them. They make a statement and you go through the various time frames, the 30 days or whatever is allowed, and it's put into the registry for a period of time. So what?
Mr Dave Martin: Personally, I'm satisfied. There is, as I'm sure you know, pretty elaborate consultation there on the statements, and the same process is required for amendments. I'm reasonably satisfied with that opportunity to help determine what the statements are going to be.
Mr Wiseman: You were talking about creating a new section to encourage energy efficiency technology in renewable energy. I'm just trying in my own mind to fit this in. Is it not possible that, through the registry and through the role of the commissioner, where there is no statement or policy, through the vehicles in the bill it would be possible to push the government into creating and directing and making those policies? I've heard that from other groups and I'm just wondering if you agree.
Mr Dave Martin: It's possible, but my point is a valid one. In section 2, where the purposes of the act are defined, it's a very notable absence that energy conservation is not explicitly included, and I can't see how it fits in any of the five items listed in 2(2). If you can show me how it is, I'd be happy to withdraw my suggestion.
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Mr Wiseman: I'm not arguing with your suggestion. Do you feel comfortable that there's a mechanism here that will be able to force the creation of regulations, the creation of statements and the creation of policies on a lot of items that are not even foreseen at this point?
Mr Dave Martin: You're probably right, but it's a symbolic thing. It's a matter of principle, and it's identifying issues of principle that we're concerned about. That's important, and I think it deserves amendment. It doesn't alter the nitty-gritty of the bill substantively, but for us it's a matter of principle, and I really hope you would amend it to include it.
The Vice-Chair: Thank you very much, Mr Martin, for your presentation. We appreciate it had to be short, but nevertheless it's important for us to know your concerns, and you've brought up some very important points that weren't previously considered.
Mr Dave Martin: Thank you.
DUCKS UNLIMITED CANADA
The Vice-Chair: AMO, as you know, has been rescheduled for next week. The next presenters, from Ducks Unlimited, are here, so if we could proceed now with them we might have a little more time at the end of the day to go to the vote in the House. Mr Wishart, I understand you are the executive director of Ducks Unlimited.
Dr Rick Wishart: My name is Dr Rick Wishart and I'm the provincial manager for Ducks Unlimited in Ontario. I'd like to thank the committee for allowing me, on behalf of Ducks Unlimited Canada, to address you about aspects of concern we have over the present Environmental Bill of Rights, Bill 26.
To give you a bit of background about who we are, Ducks Unlimited is a non-profit conservation organization which began in Canada over 55 years ago. We have sister organizations operating in the United States, Mexico, New Zealand and Australia. We're dedicated to the perpetuation of waterfowl through the protection, restoration, creation and management of habitat. This work is funded through donations of lands, funds and other resources from citizens, corporations, governments and agencies.
Enhancement of habitat is accomplished on a multi-use basis, providing not only benefits to waterfowl but also very broadly to biodiversity, the general environment and to people. The work on the ground that we do occurs at thousands of specific project sites, but this is undertaken in a manner aimed at restoring lost habitat values over broad landscapes. As well, we are committed to working in an increasing role with land owners, children and the general public to inform, educate and demonstrate to them the value and importance of conserving wetland habitat.
Historically, many of those who have donated to DU were waterfowl hunters who recognized that without wetlands and habitat there would be no waterfowl. Today, of our 140,000 members across Canada, some 38,000 members in Ontario alone, about half are not hunters, but indeed they recognize the wide environmental values of the work we collectively do.
Since our inception in Canada half a century ago, Ducks Unlimited has enhanced and protected over 17 million acres of habitat here. Since 1976, when operations began in Ontario, we have invested $36 million in enhancing over 185,000 acres of habitat at 700 project locations in Ontario.
We deliver a wide range of programs, which include: working with farmers and other land owners to encourage the use of conservation farming practices; securing through purchase and easements and leases remnant large marsh areas along the shorelines of our Great Lakes; working to control the damage caused to wetlands by the introduced purple loosestrife plant; providing water management facilities to restore, enhance and manage wetlands; and managing beaver pond habitat in our forested areas to enhance their biodiversity for wildlife.
As well, we are initiating cooperative educational programs with such conservation centres that exist here as Kortright, Wye Marsh and a number of other conservation authorities. Most of this work is done under the aegis of the Northern American waterfowl management plan in cooperation with a variety of other agencies.
We feel that the things we are doing in Ontario are not only good, but necessary. Some 80% of the wetlands in southern Ontario have been lost, and most of the remainder are degraded through a combination of drainage, flood control, water impoundment, soil erosion, introduction of pollutants and other forms of physical damage. Hundreds of species of plants and animals, many of which are rare, threatened and endangered, depend on the viability of these ecosystems, which, like the equatorial rain forests, are among our most productive on the globe.
While many of the remaining wetlands that we see out there today look healthy, they are not. Many no longer benefit from the naturally occurring cyclic drying and flooding which is necessary to maintain their health. Protection alone of these areas is not enough. If we cannot restore natural water cycling, keep out eroded soils, carp, loosestrife and pollutants, these areas quickly die. The enhancements and water management that we perform can restore traditional values of these areas. By managing water fluctuations, depths and quality, a diversity of natural plant species can flourish, which leads to a variety of cover and food required as habitat by a multitude of animals in these habitats.
While in principle we support the ideals of Bill 26, we are genuinely fearful that such legislation will bring this valuable habitat management work to a halt. Some so-called environmentalists hold a preservationist philosophy. Their ideal is to protect areas from any form of human intervention, whether it is positively or negatively motivated. There is the perception that ambient conditions should be maintained at all costs even if such habitats are no longer wilderness areas functioning under so-called natural forces.
Let's face it. Sadly, little of what remains in southern Ontario and many other parts of Canada can now be defined as either natural or wilderness. The solution is not to turn our remaining landscapes into defective parks, but rather, the concept of sustainable development proposed by the Brundtland commission and advanced by the Rio environmental summit should be our ideal.
It's true that Bill 26 establishes in its preamble the common and noble goal for Ontario as being the "protection, conservation and restoration of the natural environment." However, based on what I've stated above, I would like to know what is meant by "natural." Elsewhere early on, it sets out the purposes of the act being to "protect, conserve and, where reasonable, restore the integrity of the environment." Below this the values of environmental "sustainability," conservation of diversity and "encouragement of the wise management of natural resources" are mentioned.
These are important concepts, but we feel there is a need to strengthen and emphasize them further in the preamble and elsewhere, wherever possible, in the text. However, I do not like the limiting connotation behind the phrase "where reasonable" to "restore the integrity of the environment." With the tremendous loss and degradation of habitat we have sustained in Ontario, a much stronger statement is needed to encourage all that can be done to restore these areas.
In reality, despite these concepts espoused in the preamble, which, as I say, need further strengthening, in our view it is a certainty that the bureaucracy established by this bill will catch within its net a variety of works like those undertaken by Ducks Unlimited and others to restore, enhance and manage habitat. Those groups and individuals that hold an anti-management view will use this legislation, we believe, to stop, block, delay and discredit the use of techniques in a province that is probably in most need within Canada of such measures.
Don't get me wrong; we are not fearful that such management work can be defended. Defendability and legitimacy of these efforts are not our concern. Rather, the reality is that there will be a tremendous increase, we believe, in delays and cost of undertaking such efforts with the EBR bureaucracy.
Already, under existing legislation, these burdens are nearing the breaking point, in our view. Resources for such habitat work are limited and must be invested wisely if we are to maintain the level of efficiency and credibility required for people to continue donating to our efforts in Ontario. Using precious resources in legal wranglings and consultant studies to feed the requirements of such a bureaucracy may quickly lead to very few benefits to Ontario's habitat coming out the other end of this process.
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Any national or international group faced with this situation would need to evaluate its options, which would include changing programs or investing in existing initiatives elsewhere where tangible results can still be achieved. Right now, I'm proud to say that every dollar donated by Ontarians to our work is put back into DU's habitat work in Ontario. I would like to think this could continue. However, even late last year, delays in project approvals saw close to $1 million of our budget go unspent and need to be redirected to other regions of the country.
In the initial phases of work conducted by the task force that has led to this bill, these concerns were not evident to us and thus we did not raise them in the public forums that were available. We envisioned that the bill would provide enhanced protection for our habitat and environment and that work of the type done by Ducks Unlimited would be encouraged even further.
We no longer totally feel this way and are now legitimately concerned that this bill could bring some aspects of this important work to an end. Such concerns were expressed in a letter to Mr Wildman earlier in the year before this bill was introduced. This committee's hearings are now the final venue available to us to raise these issues and seek changes before the bill is passed into law.
To reiterate, we feel that, as a minimum, much stronger language is needed in the bill to not only recognize the value of habitat rehabilitation and management but to encourage and facilitate more of this action. This clarity must occur in the bill because, as I understand it, there will be no regulations to accompany this bill. I'd be happy to work with the committee to that end if this is the decision that is reached.
The Vice-Chair: Thank you very much for your presentation.
Mr Tilson: I'd like to spend some time, whatever time I have, on the topic of wetlands. This has been a topic that has been a problem. As you know, the province of Ontario has had a great deal of difficulty, and I don't profess to be that knowledgeable about it other than I gather it involves a number of ministries: Natural Resources, Environment.
As to your statement that "Some 80% of the wetlands in southern Ontario have been lost and the remainder are degraded through a combination of drainage, flood control, water impoundment, soil erosion, introduction of pollutants and other forms of physical damage," these statements have been going on for some time, yet the chair of the Environmental Bill of Rights task force says, "We dropped the definition of `wetlands' because we couldn't come up with a satisfactory definition; one couldn't be developed." Then he says, "It will probably be reinserted in the legislation after another round of public consultation." This was reported in the magazine Farm and Country, from July 20, in which the topic was the concern about the disappearing of the wetlands in the province of Ontario, and yet the bill of rights, for some reason, doesn't deal with it. I know you've dealt with it in your paper, but I'd like you to perhaps elaborate some more of your thoughts on the topic of wetlands.
Dr Wishart: The province has developed a wetlands policy, and maybe that's the reason it doesn't appear specifically in here. We were able, I feel, to get some of this stronger language about wetlands in the wetlands policy, but despite our ability to do that -- and it was done in partnership with other agencies with which we work in delivering the North American plan -- since the inception of that bill, we see a lot of problems with interpretation of that policy and inconsistencies among offices of MNR in interpreting how to implement that policy in relation to the types of works we've done here for 20 years.
We're seeing a difference or a change in attitude in the review of these proposals in relation to that policy, an inconsistency, and I believe that's why we're seeing a greater expenditure of our funds going into developing these proposals and to meeting with MNR to explain them. It's frustrating when you see that degree of inconsistency among MNR offices in relation to the similar types of proposals, and it's really led to a loss of $1 million towards Ontario's habitat as a result. We've made these views known.
Mr Tilson: Have you got any suggestions for a proposed amendment? Now is the time. This committee does have the ability to put forward amendments with respect to wetlands. I know you've had short notice, but in the next period of time, if you can put forward any recommendation for a proposal that would satisfy your concerns, I personally would appreciate receiving that and I'd be prepared to -- obviously, I'm not going to give you a blanket agreement but, depending on what you say, I'd be interested in hearing further from you on that.
The Vice-Chair: Perhaps we could put you on notice in that regard. If you have any future recommendations, all the members of the committee would appreciate it.
Mr Wiseman: I have a couple of questions. I want to pursue the wetlands part. There are draft regulations that are out on this bill. The very first one says, "Beginning January 1, 1994, the provisions of part II of the Environmental Bill of Rights, except for section 15 and sections 19 to 26, apply in relation to the following ministries." The Ministry of Municipal Affairs is one of them, so within the Ministry of Municipal Affairs is the Planning Act, and under section 3 of the Planning Act is where the wetlands policy is. I think it's going to apply, and in the wetlands policy itself it talks about rehabilitation and actually providing funding for the rehabilitation.
In the section of the bill under the preamble, the definitions and purposes, it says, "`land' means surface land not enclosed in a building, land covered by water (which for greater certainty includes wetland) and all subsoil." As a person who moved the resolution in the Legislature on wetlands and the protection of wetlands, I certainly am quite adamant about the protection of wetlands and would not want to see them eroded.
Dr Wishart: Neither would I.
Mr Tilson: Put it in the bill.
Dr Wishart: We've been very supportive of the protection of wetlands. That's why we exist.
Mr Wiseman: In fact, the wetlands policy was used to stop the development on the wetlands in Simcoe, up near Lagoon City. There was also another decision handed down by the Ontario Municipal Board which took the wetlands policy and applied it, even though there wasn't a classification on the wetlands that it was being applied to, and said, "Because we think and because we have deputations by habitat experts that this is a class 2 or 3 wetlands system, we're going to apply it even though it hasn't been classified." I'm very hopeful that with respect to that, we are protecting wetlands.
Dr Wishart: I think we are, and that's the first step in the process. What we're saying is that in many cases, whether they're class 1, 2 or 3 wetlands, a lot of these areas have been damaged. What we're finding is that there is difficulty in some cases of coming up with acceptable techniques and methods and proposals to take it a step further from protecting these areas which, if we don't do anything with them, go through a process of degradation and further loss of value.
Mr Offer: Thank you for your presentation. I have a few short questions. After reading and listening to your presentation, I'm stumped. I'm stumped because of the fact that you don't see protection under the purposes for, in this case, Ducks Unlimited. The purposes talk about protecting, conserving and where reasonable, restoring. You've brought forward that issue.
But it also goes on to say under subsection (2), "protection and conservation of natural resources, including plant life, animal life and ecological systems." In this committee, though I spoke on second reading in support of the legislation, I bring forward some of my concerns. To me, I see wording here that does meet your concerns. I'm wondering why in your opinion it doesn't.
Dr Wishart: I don't think it's strong enough. That's the problem. Everything we do is directed towards protecting wetlands, whether it would be under any of the three or four programs we deliver. The first step is protecting. In some cases, that's all that's required, but there is often another step required to restore, rehabilitate and manage these areas to restore the values that have been lost through pollution, loss of wetland cycle that these areas naturally and historically evolved under. A lot of that's lost now, and what we're seeing lately is a trend towards protection of these areas, which we think is the first step, but there's a lack of recognition that in many cases in southern Ontario there are other steps required.
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Mr Offer: Is it not a fact when we're talking about wetlands, and I've been involved in one particular area for many years, that the issue is not protection first, but the government always says the first issue is identification, and once identification has taken place, then protection follows? But the government's been clear that protection does not carry with it dollars, so people are left with, "Well, you've identified it, but now how else are we going to protect it if we can't have some funds to do that work?"
Dr Wishart: The wetlands policy in and of itself will lead to the protection of wetlands, so that's a great step forward. It leads the way in Canada, but I don't think it recognizes strongly enough the other steps that are required.
Mr Wiseman: If you could give us a written presentation on what you think these other steps are, we could perhaps have a better understanding of what it is you would like to see the next step be.
Dr Wishart: The other steps, in some cases, are the rehabilitation of these areas and management.
The Vice-Chair: I think you heard what some of the other members of the committee said. If you have an opportunity, it would be appreciated. Of course, it's up to you. We will welcome further submissions.
Dr Wishart: What are you looking for? Specific changes in wording, in areas we can insert something?
The Vice-Chair: Yes, that is always helpful. The more specific you can be, the better it will be for the committee members, but it's up to you.
Thank you very much for appearing before the committee. We look forward to perhaps hearing from you again.
SIERRA CLUB OF EASTERN CANADA
The Vice-Chair: The next presenters are here as well, the Sierra Club of Eastern Canada. Please go ahead.
Mr Michael Berger: My name is Michael Berger and I'm with the Sierra Club of Eastern Canada. I'd like to tell you a little about some of the issues we're working on and also some of the issues I'm working on personally. Then there's one specific example I'd like to spend a little more time on. I don't have written information around that particular issue, but I will be happy to follow up after the meeting in terms of written material that will be a little clearer on that particular issue. The concept is extremely important and I'd like to put the concept in front of the committee and at a later date follow up.
In terms of the club itself, we're obviously concerned about clean water, clean land and clean air, in very general terms, and I'll go a little more specifically into some of the issues we are working on.
We are concerned about such areas as wetlands, pesticides, climatic change in general terms, James Bay as well, and such specific areas as the Tatshenshini forest, the fixed-link bridge and Clayoquot Sound. One of the things we're doing in the near future is having a train that goes from eastern Canada to western Canada concerned about Clayoquot Sound. Hopefully, the government will be working in some areas to protect that, but we are also hoping to protect it. You've read a lot about it.
One of the areas we're also looking at is not only outlining some of the problems, but very specifically looking at the types of technologies that can be part of the solution. I'll mention one of them as I go along through my discussion.
Those are the kinds of areas we're involved in in general. Specifically, I'm involved mostly with issues around Toronto. Our concerns are to do with the expansion of the main sewage treatment plant. We're looking at that aspect of it, together with some other organizations. Hopefully, we're trying to not have an expansion, because we think there are other, more environmentally friendly ways of handling some of these. One of these is living machines and solar technology, which is an area I will come to specifically and describe a little more carefully in a few minutes.
First of all, I do support the bill. I believe it is needed in Ontario for reasons I'm sure a lot of other groups have shared, and I'll share a few of them with you as well.
We believe the public is important in decisions affecting the public. We believe the public often has important contributions to make, good ideas and different perspectives, and that the public can represent the diversity of views in society.
I'll come to why the Environmental Bill of Rights is important to my organization when I come to the details.
One of the other issues we're involved in is working on what's called a regional consultation committee, to do with the Interim Waste Authority. We have gotten together with a group of three people, with participant funding, to do an ecosystem approach. The report is this thick. I won't read you the report, but I do want to read you one or two lines, our vision statement, coming from the report.
You have heard a great deal about an ecosystem approach recently. Mr Charest mentioned it when he talked about the concern for the fish stocks off the eastern coast of Canada, that if they used an ecosystem approach as opposed to weighing the fish, we would be further ahead than we are now. I'd like to just read you the vision statement from our report, and obviously if anybody is interested in the report, we would be happy to share a copy with you.
"We have a vision of a new way of siting major facilities that considers the environment in a holistic way. This new way of planning recognizes and respects the interrelated impacts on the ecosystems in which we live. At the end of the day, these major facilities would be compatible with human and built environments while having the least degrading effect on the natural environment."
This is the vision statement of the report we have made. Unfortunately, at this stage we have not had the type of response from the Interim Waste Authority that we would like. Even though this is late in the day in the situation with the Interim Waste Authority, we and other people on the committee have been raising these concerns for quite some time, so they're not new. Once the participant funding was available, we started working together quickly with the three people who are working on our coalition for that. Two things we want to do:
(1) Even in this late stage in the process, we want the Interim Waste Authority to use a different type of approach in looking at the remaining sites. I think there is some time left, because I think that through the legal court cases it will take them still some time before decisions are reached.
(2) We think, looking to the future, that this is an important aspect and that this approach should be used.
Getting back to the point I think is crucial and one I want to be very specific on, in terms of why the EBR is important to our organization, part IV, the application for review section of the bill, sections 61 to 73, provides the opportunity for our group to ask the relevant ministry to review a policy in this regard, and I will give you an example of the policy. We want a new policy for proving and testing of living machine technology.
This brings me to the point of what living machine technology is.
To put it in fairly simple terms, living machine technology is a technology developed by John Todd, who is a Canadian now living and working in the States. He's developed a technology which is old and new at the same time. It's a method of treating waste water using plant life, a system of using plants to treat waste water. It has the advantage today, which is extremely important, that it is environmentally friendly in that it does not use any chlorine at all and, secondly, it is cost-effective.
If we're looking at green technologies in the province, this is an area that requires and needs not only as much help as possible but as much encouragement as possible. Unfortunately, the opposite seems to be the case in many respects, and let me be specific on this one.
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There are several places where this technology is being developed here. One is the Boyne conservation area, about an hour and a half northwest of Toronto, where all the waste water there is treated using this particular type of technology. A second one is a building in Toronto, the main building The Body Shop has, which is in the York Mills-Bayview area. The opening was just several weeks ago. Some of you may have read about it in some of the newspapers; the Ottawa newspaper had a nice article on that. Basically they are dividing their waste water into two different streams. One is the regular stream from the washrooms and the sinks, and the other one is the commercial. Right now I'm not talking about not the commercial, because they're still doing more work on that, but I'm talking about the application for the ordinary sewage.
When we're talking about simple sewage, it doesn't have any toxins; we're not talking about heavy metals and we're not talking about chemicals. It is being treated there using this plant life, in a room probably smaller than this, without odour problems. It's excellent technology.
Now, what is the problem with it? Well, I'm not a lawyer and I'm not a technician; I'm just a volunteer in a number of different environmental organizations. But let me try to give you this particular problem in fairly simple terms. I can get it better defined afterwards in written form, if you like, in legalese, but I think the most important thing is to get the concept across and worry about the legal part later on.
Let's assume this is the system of treating the waste water. On the one side the water from the source comes in; on the other side is the clean water. It's normal that you have to test the water at the beginning of the process and at the end of the process. Nobody disputes that and that is fine. The problem is, under the current situation, in addition to testing it at the beginning and at the end, the Ministry of Environment and Energy regulations require testing quite a few different places along the path here. That causes two obvious problems: (1) This is a technology we want to push as quickly as possible within the safety guidelines we're all concerned about; (2) we don't want to add to the cost. The Body Shop has gone a long way in using this technology. They're leaders in many ways and we want to encourage them and encourage others to do a similar kind of work.
If you have to test it -- I don't know the exact number; it can be anywhere from five to 13 times -- along this path, you are adding tremendously to the cost, so instead of trying to move the technology along, you are holding it back. You are making it more expensive, the very thing we don't need in this environment, this climate. This is one thing I very strongly suggest we look at, whatever it is within the legal framework that holds it back within a ministry. As far as I know, it's just the Ministry of Environment. Again, I'm no expert in that, but there's a question of how to move this technology along. This is an area I strongly suggest we should take a look at.
Another organization I belong to, the Coalition for a Green Economic Recovery, just had a conference up in Parry Sound where we looked at this technology. We looked at what the obstacles were and we looked at what the possibilities were, because we feel that Ontario can be a world leader in using this type of technology.
We're not saying it's for everybody, but it has certain particular uses. The treatment of septage is one of them; the treatment of lakes is another one. We don't have to look very far north of Toronto to find lakes like Musselman Lake and the Kettle lakes that have very serious water quality problems. This type of technology can be applied for that, and we are moving in that direction, working in conjunction with the clean water corporation. So there are possibilities and there are people who are environmentalists who spent $175 a weekend to try to solve the problems and yet are being stifled by this type of problem. We see that we need help wherever it comes from in order to move this along.
I've explained the technology to you. Let me just add one point. I mentioned briefly that it's good for septage. Septage is very difficult to treat and fairly expensive to treat. This particular technology is very good for treating septage. If we look at tile fields in Ontario, possibly southern Ontario, we're in a situation where, by regulation, people have to put in tile fields. At the same time, we know that a large percentage of those, I think 50% -- you probably have the figures better than I -- do fail. So we're asking people to put in a technology which is a failing technology on the one hand, and we're not helping the people who are putting in technology that is not only not a failing technology but doesn't require chlorine and is cost-effective and where we can be a world leader. I think that's a real problem, and I think it's a real opportunity, on the other hand. I'm not looking at it so much as a problem but as an opportunity, so a new policy to encourage new technologies and ensure they do not get hung up on bureaucracy, however that happens.
In summary and in conclusion, we support the bill for the reasons I've mentioned and hope that this committee does approve the bill.
Mr Wiseman: Sorry; I missed just the last part. What you were talking about in the early part of your presentation has to do with solar aquatics?
Mr Berger: Yes, solar aquatics and living machines. Let me differentiate the two for a little. Or if you want to ask the question, go ahead.
The Vice-Chair: He only has two minutes.
Mr Wiseman: I just want you to know that there is some work being done by the government in terms of investigating solar aquatics. In fact, the whole talk about closing the loops and finishing off the whole process is something that is absolutely crucial in terms of understanding waste systems.
I would suggest that if you haven't and you don't know about it, you should take a look at the Ontario Science Centre. The province participated in the funding of a composting machine that's at the science centre, which is quite interesting in that there are plans to expand that into greenhouses and other areas, solar aquatics, as the funds become available; so that these systems can be created and can be shown to work, find out what the problems are and then expand them outwards.
Mr Berger: Just to throw it back to you for 30 seconds, we're not talking about composting, although we encourage composting as much as possible, of course. We're talking about living machines technology, and our example is the Body Shop. In the Body Shop, if things could be moved, and I'd be very happy if they are, so that the approvals could be granted and done as quickly as possible and done in a safe manner at the same time to reduce the bureaucracy, this would be wonderful.
Mr Wiseman: You mean in terms of certificates of approval and approvals? I agree with you on that 100%.
Mr Offer: From your concern and the response that solar aquatics is now being undertaken, the EBR would not be of any help to you. You would make your request for review under section 61 and the minister would respond by saying, "We're looking at it, thank you very much." Are you content with that?
Mr Berger: We would be content only if we had results. If we didn't have the results through that, then my answer would be that we wouldn't be content and we would have to look at whatever else had to be done in order to get that approved.
Mr Offer: The EBR, in terms of the application, doesn't put a time frame on when the review is to be completed. It gives you some time frames for acknowledgement of the review and that it shall or shall not be instituted, but if it is going to be instituted, it does not give a time frame for its completion. Do you believe that should be given? Do you think it's possible that something like that could be given?
Mr Berger: Based on the answer I just gave to the previous question, my response would be that without a time frame, that would make it more difficult. If a time frame makes it easier to do and encourages new technology, which is what I'm suggesting, then possibly a time frame might be an approach we would look at.
Mr David Johnson: I apologize; I missed a bit of your presentation as well. I believe I heard you commenting on the Interim Waste Authority and I'm most interested in your comments on that. You indicated you're encouraging the Interim Waste Authority to take a different approach in that you felt there would be a considerable period yet that the IWA could go in that direction, that there will be legal court challenges etc. I suspect you're 100% correct: That's exactly what will happen. I wonder if you would elaborate. I'd be quite interested to know more of the details about the different kind of approach you would suggest for the IWA.
Mr Berger: As our time is limited now -- a copy of the report has been sent to many people, and I'd be happy to make a copy available to you. I think that would give you the answer in a better manner than I could give you in 30 seconds or two minutes. It's quite complete.
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Mr David Johnson: I'd certainly appreciate getting that. We still have a minute, though, so I wonder if you could outline some of the major points.
Mr Berger: I have a two-page summary; again, rather than doing it by rote, I can make a copy of the two-page summary available to you. I have it here. It is a vision statement and a summary. I'll outline two or three of the points and then make available to anybody who would like it, further copies.
The Vice-Chair: You can leave that with the clerk. We can make it available to all committee members.
Mr David Johnson: You still have 30 seconds.
Mr Berger: There's an IWA process and an ecosystem site-selection process. The IWA process studies and evaluates parts of the ecosystem rather than the whole ecosystem. The ecosystem site-selection process focuses on the functions and interrelationships that comprise the system. That just touches very briefly on two different approaches, but the summary and the report will give you as much detail as you would like.
The Vice-Chair: If you could leave that with the clerk we will make copies available to all members of the committee. Thank you very much for appearing before the committee and sharing your views with us.
CLEAN NORTH
The Vice-Chair: The next presenter is Kathy Brosemer from Clean North. You might want to speak to us a little about what Clean North is.
Ms Kathy Brosemer: Thank you very much. My name is Kathy Brosemer, I'm a microbiologist by training and I live in Sault Ste Marie. I work with a grass-roots volunteer group called Clean North.
Clean North is a volunteer group of about 200 people, about 50 of whom are active in various environmental issues and work. We formed almost five years ago around solid waste issues, specifically the blue box. Even still, our work is largely focused on solid waste, but we work on a number of other issues. As you are all aware, everything is connected, and we found we need to work as well on water quality, air quality, energy, transportation, a number of issues.
Most of the work we do could be considered to fall under the heading of public education. It's our belief that there's a great need for change in order to prevent the environmental destruction we're already seeing and further destruction, and ultimately the eventual end of human tenure on this planet. At the moment we humans are on a path that makes the end of human tenure appear to be inevitable. As a philosopher said, if we do not change direction we'll wind up where we are headed.
We believe the foundation for necessary change is education to allow an informed citizenry to make intelligent, informed and wise decisions about human activities and actions. As a result of that belief I have to make one statement firmly and unequivocally: We are in support of the Environmental Bill of Rights.
There are many segments to this bill that are not only necessary in an open, democratic society, but are also necessary for the development of environmental citizenship. The environmental registry, which provides an opportunity for citizens like me to inform themselves about environmental measures, the right to apply for a review of existing measures, the right to apply for initiation of new measures and the right to request an investigation of violations of environmental measures are fundamental to the exercise of responsible environmental citizenship.
No sector in isolation can change our course. Government, industry, commerce, academics -- any of those sectors working alone will fail. We must all work together and we must provide the means for an informed citizenry to participate in this process.
I'll give you just a couple of the specific concerns to us in the Sault. One is that we're working on a remedial action plan for the St Marys River, one of the 41 toxic hot spots in the Great Lakes. We're beginning stage 2 of that process. We see a need for citizen participation in that process, and not just that process but processes that will lead into that: the development of further water quality measures, the review of existing water quality measures -- comment on all of that.
Another issue that particularly troubles me: Just in the past few weeks we were informed in Sault Ste Marie that we have a much higher incidence of lung cancer than the general Canadian population and they want to know why. The federal government has attributed it to lifestyle factors. I reject that. We live in a steel town and we have a high incidence of particulate matter in the air, particularly PM-10, particulate matter less than 10 microns, which lodges in the lungs and is an irritant to the lungs. It's already been shown that irritants to the lungs produce lung cancers. That's a concern.
We need more air quality regulations in the province and something that would fall under this bill for ordinary citizens like me to participate in the development of those air quality initiatives.
The final thing I want to tell you is that I have a strong personal interest in the whistle-blower protection. I had an experience over the last two years. I served on the board of a local conservation authority, and while I was on that board I uncovered some questionable business practices of that board. As a result of that, the general manager is now facing criminal charges. However, the three junior employees who brought those matters to my attention and to the attention of other authorities were subsequently harassed and then dismissed. They are all three still unemployed. They were dismissed at the end of 1992. Two of the three became new fathers shortly after their dismissal.
I have become painfully aware of the dilemma faced by employees who have to choose between their conscience and their livelihood. While those matters were not environmental matters, strictly speaking, I think whistle-blower protection needs to be extended as far and wide as possible, and this Environmental Bill of Rights takes a step in the that direction. One of the concerns we have with our major industries in the Sault is that whistle-blowers have no protection, and it's the people inside the plant who are most aware of the problems in that plant.
Mr Offer: Thank you for your presentation. I'd like to ask you a question about a matter which you haven't raised on the Environmental Bill of Rights; that is, from a community organizational standpoint, is there the need for funding in order to fully protect your rights? We've heard some presentations this morning with some suggestions for funding. I'm wondering, from someone who has a history of community work in this area, whether any thought has been put in that area.
Ms Brosemer: Funding certainly is of great interest to community workers. Ontario has taken a great lead in the Intervenor Funding Project Act, and I think this bill provides tools that could possibly be linked with the intervenor funding act. Perhaps the intervenor funding act could be expanded to cover certain of the functions that are provided for in this bill. It certainly would be useful.
Mr Offer: Another area deals with the question of the statement of values. One of the first presentations we heard said it would be better if it were a statement of principles, that values are something that are not ever meant to be enforced but are rather a goal to be attempted to reach; that there is a significant yet subtle difference between values and principles.
One of the concerns I've had is that we haven't seen any of those statements yet and I think there might be an expectation in the mind of the general public that might not be met by the actual statements themselves, and I thought they would be a good subject matter for discussion.
But back to the question: Are there some thoughts around the whole question of statement of values that you might want to share with us?
Ms Brosemer: As a scientist and not as a linguistics expert, I guess I have difficulty making a distinction between values and principles. There may be something in law that I don't understand between the two words, but I don't feel it's something I need to comment on.
I do think this bill provides a number of tools, the strength of which we will see in regulation. It can be regulated to be as strong as I and people like me would hope. It could be regulated less, but we would see that in the ultimate implementation of the bill.
Mr Offer: Does the issue of significant regulatory advantage or opportunity concern you at all? In other words, we'll have an EBR with a particular framework that may be acceptable and agreeable to all, but the real essence of the bill will be found in the regulation. If these are significantly watered down, then we'll never have the full import of the bill.
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Ms Brosemer: I guess I assume that I'll have a chance to scream about that if I need to when the time comes.
Mr Offer: We'll wait till when the time comes.
Mr David Johnson: I thank you as well for your presentation, which you started by indicating that you and your group were interested in solid waste in the first instance and specifically mentioned the blue box program, which certainly is a major factor in waste management today. I wondered how you saw this bill pertaining to the waste management process, if you had any specific ideas on how citizens might use the provisions of this bill to involve themselves in waste management.
Ms Brosemer: I see the strength of this bill in requiring public consultation, that citizens can use that to comment on waste management master plans and siting processes.
Mr David Johnson: As you've been involved in this area of solid waste, is there a particular issue that's come up in the Sault over the last five years, say, involving waste management -- other than the blue box, which seems to be one that most people have very large support for? But thinking back, over the last five years, is there some specific way you think you and your other 199 members might have used this bill?
Ms Brosemer: I think we still could use it. As a result of funding constraints and lack of political will, my city has yet to host a single household hazardous waste collection day. I see that there's a possibility that there could have been a means of asking for a requirement, in some way, of dealing with household hazardous wastes.
Mr David Johnson: Earlier this morning, there was a company involved in waste management expressing the concern that there could be an endless loop in terms of the environmental processes it may have to go through. They're involved with the Environmental Protection Act, I think there's a water resources act or something of that nature and there are one or two other acts they are required to comply with and hearings etc associated with those processes. Then they're concerned that after going through all that, getting all the approvals, again this process may open up and it may be literally impossible to get any kind of approval for a waste management site, a landfill site, for example, or a certificate to carry on operations. I wondered if you had any comments on that or if you've had any experience in that regard in the past.
Ms Brosemer: Not direct experience, except that I think even without this bill we're headed in that direction anyway. I think the amount of not-in-my-backyard sentiment that's out there will delay and delay and delay mega-landfills. That's why I was really proud to have been part of a network of environmental groups that developed a set of position papers on waste management, including a position paper called No More Dumps: Positive Alternatives to Mixed-Waste Landfills.
I think that without this bill, it will become largely impossible to site a megadump and we should look at alternatives.
Mr David Johnson: Let's switch, if we can, to the planning process. You may not have been involved with that, but it sounds as if you've been fairly active in Sault Ste Marie. The planning process is another area I'm attempting to clarify with regard to this particular bill. Municipalities go through public hearings. There are zoning applications, official plan amendments, that sort of thing, committee of adjustment procedures. There is some concern being registered, because there's a large component of environmental issues that comes up during those processes, and the environmental considerations are very much at the top of the list.
Having gone through those processes, which are quite lengthy and many people complain they are much too slow, take too long and it's difficult to get a quick answer -- through the OMB process it can take well over two years from start to finish -- this may be tacked on to the top end of that, again making it a two- to three-year process. I wonder if you've had any experience in that regard or if you see that your group or other community groups in the Sault Ste Marie area might use this bill to have involvement with the planning process.
Ms Brosemer: I'm not sure at this point. Sault Ste Marie is starting an official plan review right now and it's having some meetings on that to which our group's been invited, the second week in November. I expect to get more information on it then to find out what it involves. I don't know a lot about the planning process.
I may be at a disadvantage in addressing a question like this as well; in Sault Ste Marie and the areas I'm familiar with we don't have double-layered municipalities. I'm sure the situation is different here and in most areas of the province than it is in Sault Ste Marie, so I feel a bit at a loss to answer the question.
Mrs Mathyssen: Thank you for your presentation. I have two quick questions. We've heard from a number of environmental groups, specifically this morning from Citizens Network on Waste Management. Mr Jackson said he had some concerns that this bill didn't go quite far enough; he would like to see it provide more of a mechanism for citizens to participate in the creation of policy. I noted that you said, and correct me if I misheard, you thought this bill would help you and your group to participate in policy development around air quality issues. I wonder if you could explain how you see this working positively to help your group.
Second, I was very intrigued about the No More Dumps project you're working on. I think we can eliminate the carnage and the waste we perpetuate if we sort, separate, recycle and reuse. I wondered about your research on this. What kind of time frame do you see in terms of eliminating the need for the solid waste site?
Ms Brosemer: I think the bill sets out a stepwise procedure we can use in the air quality issues. The first is to ask for the information about what measures are there that we can use and deal with and whether our local industries are in compliance with those measures -- freedom of information would get us some of that as well -- and then to look at those measures to see where they may be adequate or may be inadequate, ask for a review where we believe they're inadequate, and ask for them to be strengthened in the course of that review.
Further to that, there will be areas where there are gaps, not just inadequacies but gaps, in the measures, and we can ask for the initiation of new measures to control things that were either unknown at the time or not considered a problem at the time the original measures were drafted, then, ultimately, request investigations of violations to give us the opportunity of protecting people who might know of violations and can provide information about those violations, who would otherwise be in fear of losing their jobs. There is a series of measures within this bill that are very important, that we can use as tools as we try to improve the air quality and the prospects for our children.
There's another personal reason on this, especially the air quality issues. I moved to Sault Ste Marie five years ago from a small university town, and that winter my son had a very nasty nasal congestion. He never really had a cold, but for months he had this congestion. In the spring it cleared up. Concurrently, in the spring, I took him to the doctor for a routine physical and I asked her what this might have been about. She said, "Where do you come from?" I told her, and she said, "Any industry?" I said, "No." She said: "It's the air inversion. Temperature inversion in the city in the wintertime holds the particulates in the atmosphere, and you don't see that in kids who grow up in the Sault because they're acclimatized to it, but kids who come in from somewhere else show this problem on a regular basis."
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So I have a personal interest in seeing that some of this gets cleaned up. Usually we, as Canadians, think of ourselves as net importers of air pollution from the States. I think in Sault Ste Marie it's quite the reverse. We export our pollution to the States, and that's another image I'd like to see cleaned up.
What was your second question?
Mrs Mathyssen: No More Dumps.
Ms Brosemer: With the will to do it, we could make a tremendous amount of progress in a short period of time. I don't think we have the will yet. I think we need material bans from landfills, and we haven't seen nearly enough of that yet. I think we need to see a lot more development of facilities for storage of materials until markets develop, and I think we need to require mandatory source separation.
Those things are fundamental, and I think if we had the political will to do it, we could do it very quickly. The reason I just walked in at 10 to 5 is I was at the Recycling Council of Ontario's annual meeting these past two days and I'll be there again tomorrow, and there's a strong focus there from various sectors on the idea of product stewardship. With the participation of the private sector, we can make tremendous strides, and I look forward to seeing something develop in the next year.
The Vice-Chair: Thank you very much for your presentation and for coming before the committee and sharing your views. We appreciate your presence.
COMMITTEE BUDGET
The Vice-Chair: Unfortunately, the next presenter is not here yet; of course, they are scheduled for 5:40. However, we have one other item that with the permission of the committee we could take a look at, and that's the same thing they're doing in the House, approval of a supplementary budget. I think the clerk has distributed to you the requirements. Would you want to speak to it, Mr Carrozza, briefly?
Clerk of the Committee (Mr Franco Carrozza): The supplementary budget is based upon a number of points. The first is that when we first prepared our committee budget, the committee decided it would present a bare-bones budget, for approximately $47,000.
We are now in the situation where we are in a deficit position. We went before the Board of Internal Economy, and it asked us to prepare a budget which would contain approximately four weeks of hearings during the winter. Based upon that, I proceeded to set before you a budget that contains four weeks for hearings and for one advertisement. If you'll notice, that's the fourth item from the top. That is to cover a deficit for the advertising on Bill 40 which we reviewed during the summer. Out of the four weeks we put aside just in case the committee has to travel, there are travelling arrangements -- for travelling of the members and the staff. Basically, that's it.
The Vice-Chair: Any debate?
Mr David Johnson: Just a couple of questions. The $47,000 figure was for the whole year, the budget for the whole year?
Clerk of the Committee: That is correct, yes.
Mr David Johnson: It's curious to me. I haven't been through this process in other years, but it seemed to me that there weren't any exceptional circumstances. It was Bill 40 we dealt with. There were only two weeks for Bill 40, weren't there?
Clerk of the Committee: A total of three weeks.
The Vice-Chair: I think the exceptional circumstance was that the budget was set very low.
Mr David Johnson: It must have been set below reality, I would suspect, because there was no travel involved.
Clerk of the Committee: If I may answer that question, Mr Johnson, what happened was that we went back to look at the budget for the previous year, and the committee only met for one week during the summer and they only spent about $25,000. So in reality, we doubled the previous year's budget.
Mr David Johnson: You budgeted for two weeks.
Clerk of the Committee: That's correct.
Mr David Johnson: And we actually met for three weeks and as a result there's a deficit. What's the actual to date, right now?
Clerk of the Committee: About a $7,000 deficit.
Mr David Johnson: So it's about $54,000, and what you're recommending is $118,000 or $119,000.
Clerk of the Committee: This covers four weeks' meeting during the winter recess.
Mr David Johnson: Do we have any idea what items the committee will be dealing with during that period?
Clerk of the Committee: No, I don't; only the suggestion from the House leader that I prepare for four weeks.
Mr Wiseman: If we don't spend the money, it goes back to the Board of Internal Economy.
Clerk of the Committee: That's correct.
Mr David Johnson: That's very true, but still, one needs to be as realistic as possible, because you could set every budget considerably high and say: "Don't worry. If we don't need it, we won't spend it."
Clerk of the Committee: Mr Johnson, if the board tells me to prepare for four weeks, I take its word for it.
Mr David Johnson: I appreciate your position; you have to do that. But away from your level, on the political level, I'm just trying to test whether that's realistic. I guess we have to check with the government members.
Mr Paul Wessenger (Simcoe Centre): If I might comment on that, I certainly think it is realistic. I have a private member's bill before this committee that I would like to have dealt with in the winter recess and I'm sure there will be other items. Knowing what legislation is coming up this fall, I would anticipate that there would be plenty of work for this committee to do in the winter.
Mr Offer: Just a question: You've put in travel and transportation. That's just in case the committee decides to go on the road?
Clerk of the Committee: That's correct.
Mr Offer: This was a matter that came up in another committee, and I'm not a regular member of this committee. It had to do with the issue of simultaneous interpretation. In another committee I was sitting in they were saying let's have the Board of Internal Economy or the Speaker decide on whether that's going to be part of it, as opposed to having each committee decide upon that issue on an ad hoc basis. I guess nothing has yet been decided.
Clerk of the Committee: This is in accordance to Bill 7, which the former government passed. Whenever we travel to a community that is classified as francophone, under the act we must have interpreters with us when the committee meets.
Mr Offer: I was thinking about that as something to do with the signing aspect, but that's not in this budget.
Clerk of the Committee: There is translation of material for the committee. For instance, if you have a report that you wish to be translated, that's separate.
Mr David Johnson: I'm in no position to know if this is realistic or not. It seems like a lot of money. I think we have an obligation to be as frugal as possible.
The Vice-Chair: Do you want to postpone the decision on this and talk to your colleagues?
Mr David Johnson: If it's possible.
The Vice-Chair: We've been living on deficit for a while, so --
Mr David Johnson: We could authorize the payment of the extra $7,000 or whatever, make a recommendation that if the clerk's in trouble and they're going to put him in jail, that amount of money be covered in whatever fashion. But it would be good for me personally to see what the government has in mind for those four weeks. I suspect there's more than a private member's bill.
The Vice-Chair: I'm in your hands.
Mr Wiseman: I would move that we go ahead and pass it the way it is so that we can get the financial --
The Vice-Chair: You're moving that?
Mr Wiseman: Yes, because I know that at the end of the day we can remain frugal in terms of what we're spending.
The Vice-Chair: So you're moving the adoption by the committee of the supplementary budget as presented on October 28. Any further debate? All in favour? Opposed? Carried.
Could you take a look again to see whether the mining association is here? If not, I guess we'll have to recess. We're ahead of time. Frankly, I have to catch a plane.
Mr Offer: Maybe we could just adjourn.
The Vice-Chair: Maybe we will have to adjourn. They're not here yet. Can we adjourn for seven minutes and come back a little bit earlier? Okay?
The committee recessed from 1730 to 1738.
ONTARIO MINING ASSOCIATION
The Vice-Chair: We can start a little earlier. The Ontario Mining Association was scheduled for 5:40, so don't feel bad that you're a little rushed. We happened to have a cancellation and therefore we were finished a little earlier.
Ms Elizabeth Gardiner: The Ontario Mining Association welcomes the opportunity to comment here today on behalf of its member companies on Bill 26. I'd like to introduce my colleagues. On my immediate right is Henry Brehaut. He's senior vice-president of environment for Placer Dome Inc. Leonard Griffiths is environmental counsel with Fasken Campbell Godfrey.
Just a word about the Ontario Mining Association: The OMA was founded in 1920 as a trade association representing companies engaged in the exploration, production and processing of minerals in Ontario. Our membership also includes firms providing services to the mining industry. A list of our member companies will be made available to the committee at a later date.
The OMA's 40 member companies account for the direct employment of over 30,000 people, and while most mining activities are located in northern Ontario, our members also mine salt, talc, gypsum, graphite and nepheline syenite here in southern Ontario. The value of minerals produced in Ontario is about $7 billion annually, and if the semi-fabrication of mineral products is taken into account, these numbers increase to employment for about 200,000 people and a value of goods reaching about $20 billion.
The OMA has an environmental policy that demonstrates the commitment of its members to environmental protection and the concept of sustainable development. We believe the environment can best be protected if all stakeholders -- government, industry and the public -- work together in a spirit of cooperation. Today, for your information, we brought a few copies of our new environmental publication called Sustainable Mining in Ontario.
The OMA has participated as much as possible in the development of the Environmental Bill of Rights. There is absolutely no question at all that the business and industry representatives on the task force did an excellent job. They really are to be highly commended. However, I'd like to point out that it is the resource industries such as mining and forestry that will be most heavily impacted by this bill, as our activities occur primarily on public lands. For this reason, together with the economic importance of our industries to this province, we feel it was really unfortunate that we were not invited to join the task force. Despite this, since April 1992, the OMA has met with members of the task force on several occasions. These meetings were very helpful and we appreciate the time spent with us.
The OMA is a clear and strong supporter of a healthy environment and sustainable development. However, we do not believe that the introduction of a new and separate statute is necessary for the purpose of environmental protection in this province. Currently, the mining industry is one of the most heavily regulated industries in the province, and while we agree that there is room for improvement in existing legislation, especially in the areas of public participation and the provision of consistency and transparency of decision-making, we do not believe that a separate statute is necessary to achieve these improvements, particularly a statute that creates increased costs to the taxpayer and that creates a whole new level of bureaucracy.
Due to the short notice we had in coming here today, we won't be able to submit written comments to you today, but we will within the next few days. That will probably make about the fourth submission we have made to date on the Environmental Bill of Rights. Thank you very much for the opportunity. I'd like to turn it over to my colleagues now.
The Vice-Chair: Thank you, and we certainly appreciate the short notice.
Mr Leonard J. Griffiths: My name is Len Griffiths. I'm an environmental counsel. I act for the Ontario Mining Association. As to the submissions Ms Gardiner referred to, I think you'll find that the submissions we're making today are consistent with the submissions we've made in the past.
My colleague Mr Brehaut and I will be touching upon most sections, in a very short period of time, in the Environmental Bill of Rights. I'll first be addressing the new cause of action. Mr Brehaut will then deal with the definitions very briefly. Hopefully, I'll have a chance to touch on the request for investigation and the Environmental Commissioner. Then Mr Brehaut will finish up with the review of instruments.
In our view, and Ms Gardiner touched on this, the direction that the Ontario Mining Association and its members want to take is not litigation-based. We want to avoid litigation and focus on consensus building and conciliation. For that reason, we don't believe that a new cause of action is required in the Environmental Bill of Rights. In our view, there are sufficient mechanisms in the current legal system that provide for causes of action for people who suffer damages or who are alleged to have suffered damages. That of course is the new cause of action that is provided in part VI of the Environmental Bill of Rights.
So our first position is that no new cause of action is required. We've always taken the approach that if it's not broke, we shouldn't fix it. We don't think there's anything broken in terms of cause of action, but if you take the view that there is something that's broken, in our view you have to look at the purpose of the Environmental Bill of Rights that we saw when it was first introduced, and that was some concern that government and business were not dealing with the environment in an appropriate fashion and as a result the environment was suffering.
Our concern about the cause of action that's been introduced is that it's focused on taking on private industry and is not government-focused, as we think it should be. For example, if you look at section 86 of the proposed Environmental Bill of Rights, it requires the plaintiff to serve the Attorney General with the statement of claim, and it then allows the AG to opt into the action and lead evidence if the AG chooses to do so. In our view, that's a step backwards from the original draft that was put out by the task force.
Indeed, we don't think the original draft was strong enough. We think the government is a necessary party for any cause of action and that to allow the government the choice to opt into the action is an error. We think it's more appropriate that the government be there, because after all, our best defence on behalf of a mining company that's faced with this kind of action is going to be that we followed the statute or the regulations and that the government participated in that and monitored us, and that now we're faced with an action by someone who alleges damage.
The government surely should be joined in that action. We may have some difficulty if at a later date the government is not joined by the plaintiff and we try to bring the government into the action. We may not be able to. We're concerned that the government is being left out, that Hamlet's being left out of the play.
We also think that when you move down the list in the cause of action, the court itself should not be involved in the creation of a remediation plan in the event that it's determined damage has been suffered. That's section 98 of the Environmental Bill of Rights. In our view, it's more appropriate, if the court finds that damage has been caused, that the court would send that matter to the appropriate body which would normally be charged with creating a remediation program, such as perhaps the director under the Environmental Protection Act or with an appeal to the Environmental Appeal Board.
We just don't think the court is the right avenue to come up with a remediation plan, as contemplated by section 98. We look at the Michigan model, where under the Michigan Environmental Protection Act the matter is sent back to the people who deal with these in the normal course. The court retains jurisdiction in order to review, to determine whether or not the remediation plan was sufficient to accommodate the damage that was suffered.
On a very technical matter, in order to avoid causes of action being commenced where the conditions precedent to bringing a cause of action have not been met, in our view the form that's used for commencing a cause of action should include a requirement for the plaintiff or plaintiffs to indicate that the conditions precedent, such as making a request for an investigation and not receiving back the adequate response, actually is included in the cause of action before the registrar allows the cause of action. We're very concerned that there will be frivolous actions that are started and we want them screened out as soon as possible.
Mr C. Henry Brehaut: I'd like to turn now to the definitions under section 1, in the sense that there are two that give great problems. I guess I speak here partly as a businessman and partly as a person who has environmental responsibilities within my company.
To look at the definition of "environment," it is new. It adds to the existing definitions and is something I do not understand, and it will probably take a number of years in the courts and other venues to get some clarity so that I can understand it in making business decisions.
It is noted that in the preamble we talk about the "natural environment." That's the term that is used in the EPA, and it flows through and it has had good usage, good understanding, from all sides as to what it means and I believe it offers as much protection as the new definition. So in the sense of trying to get a process that we can see our way through and be able to make business decisions for the long term, I suggest that a return to the existing definition within other statutes and in use in Ontario be considered.
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The other definition is "harm." This is the one that perhaps gives me most trouble in that it's sort of undefined. There's no clarity, there's no measure. Any contamination can mean anything in the present context. Again, perhaps a number of years down the road, if this goes forward in this form, we'll have some understanding and there'll be enough precedents and usage of it that it will take on a practical means, but at the present time, if I'm faced with a decision that is open-ended, if I have to deal with any contamination, I submit it increases my nervousness about making investment decisions in Ontario and receiving a return over the long term.
I submit that both of these definitions need serious consideration. They definitely need clarity and to come to something that I can understand, that I can deal with, that I can predict, that there's a process I can follow. It would be very helpful in the context of making business decisions.
Mr Griffiths: The next two points I'd like to make: First, going back to the if-it-ain't-broke principle, we don't believe there's any need for a separate section in part V of the EBR requiring a request for investigation. In the current regime, under the Environmental Protection Act, people can make complaints and they're investigated by the investigation force or branch or an abatement officer under the Environmental Protection Act and the Ministry of Environment and Energy.
In our view, that system works. To encumber it with another formal system that requires a response from the government, in our view is without justification. There's nothing we can see that's broken in the current system, and if the requirement is to have the Ministry of Environment be required to respond in some fashion to every complaint, then the Environmental Protection Act should be changed to indicate that. In our view, to add a formal process in addition to the informal process that exists now will only cause confusion and won't return any benefit to us.
On the last point I'm going to address, it may be semantics; obviously, it's semantics. The term "Environmental Commissioner" in our view gives the wrong impression. Under part III, if there's going to be this commissioner who does this, we think the Ontario Round Table on Environment and Economy, in its report on restructuring for sustainability, got it right. It's a sustainability commissioner that we're talking about. It's not just an Environmental Commissioner, but it's someone who is going to take into account all of these issues and come up with the right approach. So we recommend to you the recommendation that was made by that round table that the government of Ontario establish an office of commissioner of sustainability. It said it would be the equivalent of a Provincial Auditor.
Mr Brehaut has final comments on the instruments.
Mr Brehaut: Returning to the instruments, and in particular the draft regulations, I'd like to note that regulation 626 deals with approvals under the Ontario Water Resources Act. At the present time, we obtain a number of permits under this act. The industry obtains many permits under the act. There's a very clear process that we have to go through. There's a clear role for the government in issuing these permits and judging the environmental effect.
Standards have been established in many venues, MISA being one where an exhaustive process has just been gone through. The best available technology and environmental effects have been thoroughly examined and we're coming to the point where the process is reasonably streamlined. It can get better, but we are working towards a process where we can work with the government, the regulators, and end up at the end of the day being able to get on with our business in an environmentally sound way.
I'd just like to note here that if this were a class II, it would add further complications and delays to the process. In that there are no hearings required now for such permit regulations, we submit it should be a class I. In saying that, we recognize that the minister has the opportunity to bump up to class II, but we submit that it should definitely be a class I requirement. In that regard, it would be in concert with the objective to streamline the process and enable us to move ahead in a reasonable manner.
Turning then to the application for review under subsection 61(1), the requirement that an existing policy, act, regulation or instrument should be dealt with, we submit the application of this act to instruments should be deferred for five years. We have difficulty understanding how this would apply to our industry, to individual instruments, especially those where you have to get renewals or modifications. The whole process seems very complex.
Given some of our concerns as to definition and other concerns with the act, we think the application of this act to instruments should be deferred for five years. It is something we have difficulty understanding: how this would apply to our industry, to individual instruments, especially those where you have to get renewals or modifications. The whole process seems very complex. Given some of our concerns about definition and other concerns with the act, we think the application of this act to instruments should be deferred for five years while a lot of the working realities are sorted out for the policies, acts and regulations.
On a different point, on 68(1), the purpose of this act on instruments is that there would be no application for five years preceding the date of application. A lot of business decisions do not get their money returned in five years, and we submit that 10 years is more appropriate. When a company is entering into certificates, getting new approvals, or even decisions we've made in the past, there should be 10 years before this act comes into force.
Finally, the question of timeliness comes back to the streamlining issue as well. We're very concerned in the sense that what we could end up with here is a process that has no end. Whether it's in the courts, waiting for responses from the government or whatever, there is definitely a need to have some time lines, some response times, so that a company, especially one like ours that is quite willing to enter into public debate to discuss the issues with the various stakeholders -- if we do it right, we submit there should be an ability for a company to fast-track through the process. To put it in other terms, if there are deadlines, if a company has met certain requirements to communicate and engage the public in full discussion, then there should be an onus on the government for a quick response.
We need the assurance that in any type of decision, again whether it's a new certificate or a modification, things could be dealt with in a reasonable time frame. In some instances, we could be faced with having to shut down our operation, just because we don't want to be in contravention with a certificate that has ended up being out of date, and be waiting for the process to go through. There's definitely a need for some timeliness to enter into the requirements in the process, particularly on response times when things do get into this process.
Just a concluding comment: To repeat what I've said, our company and the mining industry are willing to get out and to discuss issues in the public. We feel it's in our self-interest to do that, for a number of reasons. The intent of this act will of course encourage that, but by the same token, the act should be a carrot, not a stick.
The Vice-Chair: Thank you very much for appearing before the committee. A quick question for each caucus.
Mr David Johnson: An excellent presentation; I really appreciate it. I think it's the second time today we heard it described as something like a process with no end. Previously, a waste disposal company called it an endless loop. I wonder if you could give me an example in your industry; you mentioned a certificate that might need to be approved. I wonder if you could be as specific as possible about such a situation.
Mr Brehaut: Certificates govern the rate of production, the process you use, by implication it brings in your effluent limits, and so on and so forth. Often you just have to make one change. We're going through this in Quebec, although the same phenomenon exists in Ontario. We want to change our corporate structure, and just having the name change at the top means that five things get changed in the body of the certificate. By coming in and having a change, it opens it up now for this process to be applied. If there are the steps taken under this act and there's no requirement for the government to respond or, worse still, if it were to end up in the courts and there was an argument as to effect or whether there is harm -- and I guess that's the biggest exposure we would have, if the degree of harm came into question -- we're certainly left in a vacuum today. It's going to be a long day or long court battle before this gets sorted out and clarified to the necessary extent.
Mr Wiseman: I just have a couple of quick comments to make. All of the environmental groups we've heard today are really quite excited about the fact that the registry will put information they need in their hands. We heard from more than one that they feel this will speed up the process, that this will eliminate unnecessary requests for environmental bump-ups and that this will allow them to participate more fully, because no group takes on the onerous task of raising the kind of money necessary to take businesses or government to court. They don't take that task on easily, and I can attest to that fact because of my involvement.
But there is something that's underlying here, that most people in environmental groups -- maybe not most; I shouldn't categorize it like that, but there is a great, huge mistrust of government and there's a great, huge mistrust of business. What the people are saying in their support of this bill is that they want to be part of the process, and that being part of the process they'd be able to participate and evaluate. You say there's nothing broken. They would argue that's not the case.
Mr Brehaut: Our argument on nothing being broken is that there are a number of things that work very well within the system. In terms of participation in the process, I fully support it, because we support the same objectives. If we can have these discussions, get to some common objectives at the going-in stage, then we have that framework where it's not needed to come in with a hammer in the type of situations I've alluded to. As a company, we do that.
One of our mines in BC has been very productive. The Mining Association of Canada is involved in discussions on liquid effluent regulations right now where it's a multistakeholder type of situation, and I'm fully supportive of that. I'm supportive of that aspect of the bill, that it perhaps is not embodied into fact; it's de facto. I guess I can't argue against encouraging and enabling that to go on.
In early discussions with the people within the government who came to us to talk to us about the overall framework, that was the thing we've supported right from the start, as a means of bringing everybody to the table early rather than late.
Mr Offer: Thank you for your presentation. I'm sure all members have a number of questions they would like to ask you, keeping in mind the time of day. I'd just like to get your thoughts on whether the bill as proposed will result in more court applications, more matters before the court.
Mr Griffiths: We hope not, and I think that's a hope shared by the non-business environmentalists. But unfortunately, the way it's drafted now, we think there's going to be a lot of litigation to just figure out what the heck it says, let alone when you actually get into a request for investigation and then move on to a cause of action.
The reality is that there will be actions under this bill. If there weren't going to be actions, there wouldn't be a part on new cause of action; it wouldn't be there. We're hopeful that the Michigan experience will be one that's shared by Ontario, but our biggest fear is that we're going to spend the next 10 years litigating what it means, let alone whether it does anything good for anyone.
Mr Brehaut: And the judge having to decide things which he's not competent to judge.
The Vice-Chair: Thank you very much for your presentation. I understand you're going to submit something in writing, and we will appreciate that as well; it will be circulated among the committee members. Sorry for the short notice, but you know how this works; you've been before the committees before. It's still very important to hear your views. The committee stands adjourned.
The committee adjourned at 1803.