MUNICIPAL ENGINEERS ASSOCIATION
CITIZENS NETWORK ON
WASTE MANAGEMENT
GREAT LAKES UNITED
REGIONAL PLANNING COMMISSIONERS OF ONTARIO
STONEY CREEK RESIDENTS AGAINST POLLUTION
CONTENTS
Monday 12 August 1996
Environmental Assessment and Consultation Improvement Act, 1996, Bill 76, Mrs Elliott / Loi de 1996 améliorant le processus d'évaluation environnementale et de consultation publique, projet de loi 76, Mme Elliott
Municipal Engineers Association
Mr Alan Korell, president
Ms Kathleen Llewellyn-Thomas, director
Sierra Club of Eastern Canada
Mr Don Huff
Citizens Network on Waste Management; Great Lakes United
Mr John Jackson
Regional Municipality of York
Mr Alan Wells, chief administrative officer
Mr John Livey, commissioner of planning and development services
Mr Kees Schipper, commissioner of transportation and works
Regional Planning Commissioners of Ontario
Mr Rash Mohammed, vice-chairman
Safe Sewage Committee
Ms Karey Shinn, co-chair
Ms Debra Kyles
Stoney Creek Residents Against Pollution
Mr Brad Clark, chairman
Mr Guy Crittenden
Canadian Auto Workers
Ms Cathy Walker, director, health and safety committee
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
Chair / Président: Mr Richard Patten (Ottawa Centre / -Centre L)
Vice-Chair / Vice-Président: Mr John Gerretsen (Kingston and The Islands / Kingston et Les Îles L)
*Mrs JanetEcker (Durham West / -Ouest PC)
Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)
*Mr MichaelGravelle (Port Arthur L)
Mrs HelenJohns (Huron PC)
*Mr LeoJordan (Lanark-Renfrew PC)
Mr GerardKennedy (York South / -Sud L)
Mr FloydLaughren (Nickel Belt ND)
*Mrs JuliaMunro (Durham-York PC)
Mr DanNewman (Scarborough Centre / -Centre PC)
*Mr RichardPatten (Ottawa Centre / -Centre L)
*Mr TrevorPettit (Hamilton Mountain PC)
Mr Peter L. Preston (Brant-Haldimand PC)
Mr BruceSmith (Middlesex PC)
Mr BudWildman (Algoma ND)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr DougGalt (Northumberland PC) for Mrs Johns
Mr DaltonMcGuinty (Ottawa South / -Sud L) for Mr Kennedy
Mr R. GaryStewart (Peterborough PC) for Mr Newman
Mrs LillianRoss (Hamilton West / -Ouest PC) for Mr Preston
Mr EdDoyle (Wentworth East / -Est) for Mr Smith
Ms MarilynChurley (Riverdale ND) for Mr Wildman
Clerk / Greffière: Ms Lynn Mellor
Staff / Personnel: Mr Ted Glenn, research officer, Legislative Research Service
ENVIRONMENTAL ASSESSMENT AND CONSULTATION IMPROVEMENT ACT, 1996 / LOI DE 1996 AMÉLIORANT LE PROCESSUS D'ÉVALUATION ENVIRONNEMENTALE ET DE CONSULTATION PUBLIQUE
Consideration of Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act / Projet de loi 76, Loi visant à améliorer la protection de l'environnement, à accroître l'obligation de rendre des comptes et à intégrer la consultation publique à la Loi sur les évaluations environnementales.
The Chair (Mr Richard Patten): Ladies and gentlemen, we're prepared to begin. Welcome back from the weekend and whatever parts you are coming from in Canada, North America and the world. We resume our hearings this morning on Bill 76 and I would ask the members if they would ensure they have a copy of the revised list of witnesses before them. It says "Revised August 9" on the top left-hand corner of your sheets.
MUNICIPAL ENGINEERS ASSOCIATION
The Chair: We will call our first witnesses, the Municipal Engineers Association, Mr Korell and Ms Llewellyn-Thomas. Welcome. Our procedures are that each witness has 30 minutes, in your case as a group, and any portion of your presentation that is remaining in terms of time is then distributed between the three parties to ask questions of you. Thank you very much for taking time to appear before us and please introduce yourselves for the record, for Hansard. We await your presentation.
Mr Alan Korell: I'm Alan Korell and I'm president of the Municipal Engineers Association. I'm also the town engineer for Sturgeon Falls.
Ms Kathleen Llewellyn-Thomas: I'm Kathleen Llewellyn-Thomas. I'm from the Metropolitan Toronto transportation department and I'm a director with the Municipal Engineers Association.
Mr Korell: Thank you for inviting us here today. I will begin our submission this morning with some general comments and Kathleen will conclude with the Municipal Engineers Association's suggestions for changes to the proposed legislation.
The Municipal Engineers Association is a volunteer organization. We are a professional organization whose main focus is to share information and knowledge and address some issues of common concern to professional engineers employed by Ontario's municipalities. We have 750 members from 150 municipalities.
We are hands-on practitioners who manage large and small municipal infrastructure decisions on a day-to-day basis.
We are interested in EA reform because since 1981 municipal infrastructure and services have been subject to the environmental assessment process. In the past 15 years some of our members have had bad experiences in conducting EAs that have incurred long delays, high costs and lengthy hearings. This is particularly true of solid waste projects.
In 1987, the Municipal Engineers Association was granted approval of class EAs for municipal roads and municipal water and waste water projects. The class EA has been a benefit to municipal practitioners because of the certainty it provides through a pre-approved process of examining and evaluating alternatives, minimum public consultation guidelines and fixed time frames for review and approval. The class EA process has worked well for municipal roads and water and waste water projects and it may be well worth considering a similar class EA process for some landfill site undertakings.
Because of our very positive experience with the municipal class EAs, the Municipal Engineers Association strongly supports the proposed provisions in Bill 76 which add the same certainty to individual EAs, specifically through the provisions concerning approved terms of reference, enshrined public consultation, fixed time frames and mediation of contentious matters.
We support the emphasis on continually scoping the EA down, taking issues off the table and resolving them until there are only a few matters to be dealt with through the hearing process.
MEA also strongly supports the provisions of establishing class environmental assessment under the act and allowing for property acquisition prior to EA approval.
We support the provisions which permit the establishment of regulations and guidelines to add to the certainty of the EA process and would encourage the ministry to use the new act to draft regulations and guidelines to take the emphasis off the process and put it on the project and protection of the environment.
We have reviewed the legislation in detail and believe there are some areas where it could be strengthened to allow for greater certainty for all proponents including municipal engineers.
Ms Llewellyn-Thomas: I've ordered our comments this morning based on the structure of the bill and not necessarily in order of importance to the association. The first section we've dealt with is under terms of reference.
Section 6 of the act provides for the preparation and approval of terms of reference prior to beginning an environmental assessment. We support the idea of a contained process and scope of inquiry, but we are concerned that the terms of reference have the potential to become costly and time-consuming.
As municipal proponents, we know there will be pressure on us to conduct preliminary testing and studies to determine the appropriate scope for terms of reference. In addition, most responsible proponents will consult stakeholders on the terms of reference prior to their submission for approval. So we need to be careful that we're not just shifting the time and expense and uncertainty of an environmental assessment to an earlier stage in the process. Only time will tell if municipalities and ministry staff can take this provision in the bill and manage it so that it works to keep costs and time frames reasonable. We realize this probably can't be addressed through changes to the proposed bill, but we've mentioned it this morning really as a cautionary note.
There are a couple of changes we would like to see with respect to terms of reference, though. We feel that if the terms of reference are to provide the certainty proponents desire, they must be binding on all parties and decision-makers throughout the process. At the same time, however, we feel they must have some flexibility to allow major concerns not identified early in the process to be incorporated at a later stage without opening the whole terms of reference. We had envisaged this would likely be done through a public liaison committee, or something that would have buy-in to any changes and then they would be submitted to the minister through the proponent.
Our recommendations for changes to the bill are we'd like the legislation to be amended to provide that once terms of reference are approved, they should be binding on subsequent ministerial review, on the minister's decision and on the EA board scope of inquiry. We'd also like to have the bill changed so that the minister could be allowed to amend the terms of reference at the request of proponents.
We have some comments on the section that deals with ministry review of the EA application. The section that describes the minister's review includes the provision that deficient environmental assessments will have to be remedied within seven days of notice from the director. We understand that the desire in this provision is to prevent poor environmental assessments from being conducted and submitted to the EA branch as trial balloons. However, given dwindling municipal resources and a shrinking municipal workforce and fewer capital dollars for consultants' assistants, we feel that seven days is too short a period to remedy an environmental assessment's deficiencies even if they're only superficial.
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We therefore recommend that the legislation be changed to allow for proponents to begin to remedy deficiencies identified by the director within 30 days from the notice of the deficiencies.
Section 8 deals with the question of mediation. Many municipalities have had positive experiences with alternative dispute resolution through the courts and the Ontario Municipal Board. However, one of the principles of ADR is that it's carried out on a without-prejudice basis and that positions taken during the mediation are not subsequently revealed or used against other parties.
We are therefore concerned that the EA mediation will not occur in good faith and that their parties won't speak frankly when they're at the mediation if the mediator's report is subsequently made public at the hearings stage. This concern applies to both successful and unsuccessful mediation, and would apply particularly where monetary compensation or similar compensation in lieu of money has been agreed upon.
I guess our position is based on the fact that we would be concerned that there might be precedents set through the mediation that we wouldn't want to necessarily live with in all instances, and we also feel that as engineers we're always more comfortable in a situation where we can frankly deal with a mediator and have all of our information given having no regard for posturing or positioning or gamesmanship that might need to go on at a hearing stage later. We actually feel very strongly about this provision.
It's therefore our recommendation that the legislation be amended to delete the requirement that the mediator's report be made public on referral to the EA board.
Section 12 of the bill deals with the transition between the old act and the new act. In section 12.4 of the bill, it stipulates that only environmental assessments already submitted are subject to the provisions of the old act. We're concerned that the transition needs to be more gradual for environmental assessment processes which may have been going on for many years. This would apply to waste management master plans or transportation master plans, which often take years just to get to the alternative stage.
It would be too onerous for municipal proponents to go back to the beginning of a multi-year process and begin again with the preparation and approval of terms of reference. We suggest a phase-in provision be provided in the legislation. It's been suggested to us by ministry staff that for a multi-year process we could just go back and document what's happened and say that our original study design was our terms of reference, but we're concerned that once we get into that process and submitting something to the minister for approval, it could be that the scope would be widely opened again and we could add years to the process.
We therefore recommend that the legislation be amended to allow for a phase-in period for ongoing environmental assessments which have passed the point where alternatives to the undertaking have been identified, evaluated and a preferred alternative has been selected.
Our final comments are on part II.1 of the bill, dealing with class environmental assessments. MEA is a strong supporter of the concept and application of class EAs. We're very pleased with the provisions permitting them in Bill 76. The municipal class environmental assessment for roads and water and waste water projects expires in 1997 and will need to be renewed shortly. We feel that the changes proposed in Bill 76 will actually make obtaining a new class EA for municipal projects easier than it otherwise would have been.
However, we do have a concern in some of the wording in this section. Subsection 16(3) in our opinion needs to be clarified. As written, it appears to allow the minister to impose conditions on a case-by-case basis on the application of an approved class EA to any particular undertaking. The section is probably intended to apply only in bump-up situations where the minister could apply provisions for process or alternatives, but in our view that isn't clear. As worded, this section would undermine the benefit of class environmental assessments in that proponents could have the scope of work increased or process changed for a particular undertaking by minister's order.
It's therefore our recommendation that subsection 16(3) be deleted or that it be amended to make it clear that it applies only in bump-up situations.
That concludes our comments in detail. We appreciate the opportunity to make our views known to you and we look forward to working with the new act and wit
h ministry staff to get municipal projects on the rails.
Mr Trevor Pettit (Hamilton Mountain): Thank you, Alan and Kathleen, for your presentation this morning. In your presentation you mentioned how costly procedures are now under the present bill. My question to you is, do you believe that this new bill, Bill 76, will allow municipalities to deal with waste management in a more cost-efficient and effective manner?
Mr Korell: Yes. We think adding certainty to the process and the time frames will help municipalities in the long run. It may take a while to get used to the new system, but we're hoping that it will work better than the existing system.
Mr Pettit: You're hoping it will or you believe it will?
Mr Korell: We're expecting it to.
Mr Pettit: Thank you. That's the question I had.
Mr Doug Galt (Northumberland): An exceptional presentation, very thoughtful, and some of your suggestions we've heard from some other groups. Just to extend on that same question, I was looking at more detail. Do you feel it might cut the costs for all concerned by maybe 50% or a third or do you have any more concrete feelings than just that it will be more cost-effective?
Ms Llewellyn-Thomas: I think it would be really hard to put a number on it in terms of the percentage cost. Where I see the benefit happening, as Alan says, is through the certainty and the time frames, but also the concept of mediation and taking issues off the table as they're resolved. Particularly the thing that has been costly for municipalities and which is such an unknown is the length of time of hearings and the issues that can be brought up during the hearing phase. So the provisions that allow for scoping are extremely useful, and I'm hopeful that we can reduce the cost of these sorts of things by 25%.
Mr Galt: Just getting rid of some of the process and the piles of paper should be extremely helpful.
My second question relates to the transition period. You talked about a phase-in. That has come up before. Do you have any time frame on that? Were you talking maybe six months, 12 months, 52 years, two days?
Ms Llewellyn-Thomas: I'm actually looking at something that wouldn't necessarily be linked to time. I'm not sure how this would be administered by ministry staff, but what I had suggested was that it would be reasonable to cut off environmental assessments which have been ongoing and which have reached the point where they've done their analysis of alternatives to the undertaking, looked at all the different ways of doing it and evaluated them and they've selected preferred alternatives. So in the case of a landfill they'd say, "We know that it will be landfill and it will be in this part of the world" kind of idea and then, if it had reached that point, that it would be able to proceed under the old provisions without having to go back and do terms of reference. It seemed like a reasonable place to cut it off.
Mr Galt: It's kind of difficult to put that into a bill --
Ms Llewellyn-Thomas: I know.
Mr Galt: -- but the time frame probably would be more in order. Would 12 months, six months, that kind of thing, seem in order, in that time frame?
Ms Llewellyn-Thomas: I would think we'd probably like 24 months, just given how long these things often go on; 18, maybe, as a minimum.
Mr R. Gary Stewart (Peterborough): You're suggesting that you're concerned that the terms of reference process has the potential of becoming costly and time consuming. When do you feel the public should be involved in regard to terms of reference?
Ms Llewellyn-Thomas: As a proponent myself I would want to check with stakeholders at a very initial level in the preparation of the terms of reference, just because otherwise you'll end up with something coming out of the blue at the end of the day that will remove the certainty.
Mr Stewart: You're suggesting that there should be some flexibility, and yet in one of the areas here you're suggesting that once the terms of reference are set, that should stay the way it is, then as you move down with your recommendations you're suggesting there should be some flexibility when you get closer to the hearing stage. Are you suggesting that it should be quite flexible or that the things that should go to the hearing stage, as the bill suggests, should be a certain group of concerns that can be taken to the hearing?
Ms Llewellyn-Thomas: No. We'd like it to be as contained as possible, that it should just be certain things. Our suggestion that there be flexibility for the minister to amend the terms of reference is really just, if something comes up near the end of your process, to allow maybe one more issue to be dealt with without reopening the whole terms of reference. It's sort of a balancing act.
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Mr Stewart: Great. Thank you.
Mr Korell: The other thing is that if you're going to have mediation, if there's going to be a recommendation of mediation and it deals with the terms of reference, there has to be some avenue that it can be amended.
Mr Michael Gravelle (Port Arthur): Good morning. If I may, sticking to the terms of reference area that the government party has been discussing as well, certainly there's no question that all municipalities are under a great deal of pressure just in terms of costs and in terms of time for projects such as this, so presumably part of the motivation for some of the recommendations you're making is that it will be less expensive.
In the previous week of the hearings there seemed to be a sense -- in that the terms of reference are put forward by a proponent, some people would argue there needs to be a much greater definition of what public input there should be.
You said that most responsible proponents would be consulting with the stakeholders before the fact. The fact that not necessarily all would seems to me to be a reason to want to more carefully enshrine that. I just want to get a greater sense from you how you feel about that.
Ms Llewellyn-Thomas: My sense of it is, I would see that the municipalities are going to be accountable to their municipal council for whatever happens. While I say "most responsible proponents," I think probably through your council stakeholder views are going to be made known anyway. I don't think it would make any difference one way or the other if it were actually enshrined in the legislation because I think it's going to happen anyway.
Mr Gravelle: My thought is that because the legislation needs to be, generally speaking, one that is all-encompassing and covers all groups, you might want to be sure that it does cover all those areas.
Ms Llewellyn-Thomas: I would agree with that.
Mr Gravelle: What are some other areas that perhaps aren't in this bill that you would like to see changed in terms of the environmental process? There are obviously some elements that aren't in this bill and I'm curious if for you, as municipal engineers, there are some other areas that you would like to see altered.
Mr Korell: Just in general, anything that makes it easier and faster helps as long as the environment is watched. We take this as a very positive step. I know there has been a lot of discussion, over the years, of changing it drastically. One of the issues was getting it out of the Environmental Assessment Act and into the Planning Act. We're more happy that it stayed where it was. We have a history of working with the staff at MOEE and we're hoping to continue it. Maybe it's a small step, but I think it's an important one to make.
Especially enshrining the class environmental assessment into the legislation I think is a very big step forward. I guess that isn't one that's being generally talked about by the other people coming to these hearings, but we think it's a very important provision, enshrining the class environmental assessment in legislation, because that's one process which municipalities have traditionally used to build their road, waste water and water treatment plants. It's worked very well and we're glad to see it finally enshrined in legislation.
Mr Gravelle: How important do you feel the public consultation process is? I think this is a reasonably contentious part of this particular bill in the sense that there appears to be at least a less well-defined sense of what public consultation will take place, and in terms of the environment obviously it's a sensitive issue in terms of the public having an opportunity. How important do you view the public consultation process to be in a general sense?
Ms Llewellyn-Thomas: I would view it to be extremely important. Whether you consult with the public at the beginning of your process or through the middle of it or at the very end, one way or another you're going to hear from them at your municipal council. The last thing any engineer wants is to have your technical debates and your detailed discussions on the floor of council with all the overtones that go with that.
We recognize that it's important to do early, effective consultation. The bill certainly allows us to do that and in our class environmental assessment prescribes it even more in detail; it gives actual points of contact and numbers of contact and methods.
Ms Marilyn Churley (Riverdale): Thank you for coming to present to us today. I must tell you that I have some different views about this bill than you do. I'm very concerned particularly about the lack of any mention in the legislation of public consultation during the terms of reference period. Many groups came before us already, and I just want to let you know that notwithstanding that most responsible proponents would consult, we have heard horror stories already from groups in some municipalities that have not been consulted with properly and have gone through years of expense and turmoil. I think you have agreed that early consultation is really important.
Having said that, I just want to be clear that you would support having written into the legislation that there must be consultations at the very early stages during the all-important setting of the terms of reference.
Ms Llewellyn-Thomas: We could support that.
Ms Churley: Good. I want to come to the class EAs. From my reading, there is not a very strong definition of what could come under class EA in the bill and I'm certainly concerned and others have been concerned. It rang alarm bells with me when you said you would like to see some landfill come under that, and that is one of my big fears. For different reasons from you, for a whole variety of reasons I don't think landfills should come under that, because creating a landfill is more than just, as you know, putting the right liner in the right hole. What I would like to see is a better definition so that we're looking at more minor, with predictable outcomes, undertakings under the class EA. Would you support that, or how open-ended do you see it being?
Mr Korell: Class EAs, especially for road, water and waste water projects, are very defined. The regulations are made. This is just legislation enshrining them. They're very specific, what can go under and what the process is, so I wouldn't be concerned about that.
We as an association, two years ago at one of our annual general meetings, indicated that the class environmental assessment process could be expanded to small, minor landfill sites. It's essentially a disapproval process. If you're expanding an existing site for a small municipality and there's no real public outcry -- it's actually the opposite; the public wants you to be able to expand the existing site as long as you do it properly and it's just a template to go through that allows for public considerations -- it's still an environmental assessment process. It's a class process; it's just more defined. The time periods are more defined.
Ms Churley: It's not as onerous as a --
Mr Korell: It's not as onerous, but it can be as onerous. If somebody really objects to it the ministry is going to bump it up to a full environmental assessment. What it allows you to do, if there isn't a lot of public concern that you're not doing it properly, they're fairly confident that you're going about it the right way and you're looking at the proper things and they agree with what's going on, is that at least it allows you to go through with it rather than getting bumped up to a full EA. So I don't see the problem.
Ms Churley: Under this bill there is no guarantee that the minister will bump it up and there's no provision for public consultation around whether it's bumped up. That's one of the problems we have here -- if you read the bill you will see -- and that's one of the things I'll be asking for an amendment on. The minister has the power, as now. That's not changed, really, but there is a problem with the fact that they're cumulative effects, for instance.
My problem with this is that you talk about minor landfill, for instance, but I believe that you have to look at the cumulative effects of all these things. If you start letting what you consider to be minor ones come under the class EA act, you're looking at all that.
Just coming back again to public participation, you mentioned that a concern you have in the early stages is that this is where the delays may be, that there may be a reversal. Right now I don't think most people are aware, but the delays, for a variety of reasons, come during the ministry review, as you know, and you're concerned that the delays now might come at the front end.
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I guess what I'm asking you is, what is reasonable to you in terms of the scoping and public participation so that at the end of the day you have got the best environmental planning possible for a landfill? Because, after all, the pollution that comes from a landfill that's not designed properly can last 300 to 400 years, maybe 600 years, and a few weeks here or a few months there -- I know there's a sense of urgency often, "Let's get on with it," and money spent, but what do you think is reasonable so that at the end of the day, people feel that they've been consulted properly, have had input, and you've got the best environmentally sound solution?
Ms Llewellyn-Thomas: I guess in terms of time frames it would seem to me it would be reasonable for a proponent to allocate at least 24 months to the conduct of your environmental assessment, because I don't think any proponent should begin thinking a "We'll start in August and have it over with by Christmas" kind of thing. So I think 24 months would be reasonable, but that's kind of, "How long is a piece of string?"
The Chair: I'm sorry. The time has already passed by. It passes by quickly in these hearings. I want to thank you for taking the time and coming here today and presenting your views. It's much appreciated.
Ted, our researcher, would like to make a few comments here.
Mr Ted Glenn: I've put before you two documents I've prepared. One is a summary of last week's hearings. The other one is some of the press coverage that the committee received. If you have any questions about the documents, you can just get hold of me at lunch or whatever.
SIERRA CLUB OF EASTERN CANADA
The Chair: Our next witnesses are from the Sierra Club of Eastern Canada. Welcome. Could you introduce yourself, please, for the purpose of Hansard, and begin.
Mr Don Huff: I'm Don Huff. I'm with the Sierra Club of Eastern Canada. I'm sorry I didn't have any written material. I expected someone else would be here in my stead.
The Sierra Club of Eastern Canada has been around for about 25 years, and we're affiliated with the Sierra Club of the United States. I circulated a copy of the magazine which is put out by the Sierra Club International, the red document that you have. Sue Keenan from our office is also here, the woman in yellow.
I've come to this committee somewhat perplexed, as I understand the intent of the announced changes in the Environmental Assessment Act is to make the process more predictable and efficient. With a trend towards even more ministerial discretion, you may well have been the architects of a system which is even less predictable.
I reflect on the United States' planning and environmental assessment experience, which some would argue is a more litigious environment, but it is also more predictable. You know where you stand as a proponent or intervenor, you know what the tests are, you know what the deadlines are and you must meet them. If you don't, you're bounced out of the system. The opportunities for government veto are extremely limited, and the courts act basically as the umpires or referees.
As someone who was on the EAPIP committee and is involved deeply in the timber class environmental assessment, I have concerns about the fact the minister and the EA branch director now have -- I wasn't able to get an accurate count, but there seems to be somewhere in excess of about 30 separate levels or opportunities to exercise discretionary powers, and in my view, this could reduce the potential effectiveness and predictability of the process. Heightened levels of discretionary powers do nothing to level or stabilize the playing field, but rather, make it move around a lot more, and where it goes is something that you can only bet on in some instances, I would think.
Another shortcoming of Bill 76 is the fact it doesn't address the issue of upfront intervenor funding. I'd also like to take the opportunity to bring your attention to a situation which exists through the life of this government and the last two governments, and in a pamphlet that I circulated here, which is a Ministry of Natural Resources pamphlet, you will see at the top of page 7 the statement that if significant issues exist at the end of a timber management planning process, the EA act makes provisions for further review. That means a bump-up from the class EA.
It's important to know that despite thousands of these pamphlets being circulated around the province probably for the last, I don't know, 10 or 12 years, and there have been well over 30 requests for bump-ups at my last counting, and maybe Mr Pautler can give us an exact number, but to my knowledge there's only been one case, and that's the Megisan Lake case, the area northeast of Sault Ste Marie, that's ever gone for any kind of an individual EA, so to speak, on a timber management plan, and even that one was scoped to be a timber management plan of the effects of timber management on tourism, not the effects of timber management on the environment. I suspect we have a situation here which means the Ministry of Natural Resources is reluctant to head down that road because it probably can't describe what the environment is that forestry will have the effect on.
When I look at Bill 76, I also see that there are no specific mechanisms or criteria for the bump-up, and I suspect, certainly from the people I've dealt with over the years dealing with the individual timber management plans, they've gone through the process and they say: "We'll have faith in the Ministry of Natural Resources. We'll work our way through the system, because we always have this outlet at the end." They just don't get it, as simple as that, even if there is a significant problem at the end. So that has to be addressed in some manner.
I'd also point out that the Ministry of Natural Resources is seeking to exempt itself from the terms and conditions of the approved class environmental assessment. I was at a meeting in June over at U of T, where the deputy minister, Mr Vrancart, said that basically the Ministry of Natural Resources will be seeking the exemption order from the class EA on timber management because they don't have the staff to do it. This reminds me of the situation where you have the man who's put on trial for killing his parents who's requesting leniency from the judge because he's an orphan. The Ministry of Natural Resources knew it had to meet these terms and conditions of the class EA for timber management, but it's laid off so many staff it basically can't do it. That's another problem, not within the confines of Bill 76 but something that should be reflected upon I think by the committee.
It also appears to me that this activity, in essence, revoking a board's decision, will be allowed by section 11.3 of this bill. Many people point to the class EA as why the Environmental Assessment Act needs changes, and I would argue that some changes and revisions to the Environmental Assessment Act are probably in order, but I suspect that the timber EA was also an important aspect of -- it was certainly considered by EAAC when it made its report 46 or 47. We should also not forget, before we take too bad a look at the class EA, the intransigence of the proponent. The Ministry of Natural Resources, which is a government agency, was the proponent for the class EA on timber management, and when they started that hearing, they did not even have their whole case in front of the board. The board had to take a six- to eight-month break until the Ministry of Natural Resources finished putting its case before the public. Therefore, anybody who was an intervenor in that hearing had an interest in a specific issue, had to ask every question they possibly could because they would never know if they were going to see it again. There had to be a six- to eight-month break. Then the Ministry of Natural Resources put its full case on the table. So one has to also consider the responsibilities of the proponent in this thing too.
That's the opinion section of my presentation, based on my experience of the timber management in class EA over the last few years. I really can't underestimate the frustration people feel with the unpredictability of the bump-up process. Many people put huge amounts of time and effort into assisting the Ministry of Natural Resources with individual timber management plans. They may not like how things are going, but they're very Canadian about it, they fight the good fight, they cooperate all the way through to the end, expecting that this will happen and it never does. When people have gone through that process once, their frustration and their lack of enthusiasm to be cooperative in the future is really quite heightened.
I've got a couple of other comments to make. It would appear that Bill 76 permits the minister, with the approval of the Lieutenant Governor in Council, to declare that the act or the regulations or the requirements do not apply to proponents or undertakings or classes when it's in the public interest to do so. I don't think that this is right and I think that it's more alarming that these exemption orders will not be subject to the Regulations Act and there won't be adequate provisions for them being gazetted or public notice.
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I think it would be useful to establish a regulation prescribing the exemption procedure and containing clearly defined and detailed criteria. You're also going to require greater public notice and tie it back to the environmental bill of rights process.
I think there's also some questions about the content aspects of the EA act. In effect, subsection 2(3) expressly permits the minister to approve terms of reference which do not include the prescribed requirements which are included in the existing bill. In effect, this allows the minister to dispense with the legal requirements to examine alternative methods or alternatives to. I would think that if Julia Munro were here, after her experience with the dump stuff, she'd have some concerns about that.
In a landfill context, this would mean that private or public proponents could be directed not to examine alternative sites or alternative methods. That could include things like the 3Rs programs.
The duty to consult that is established in section 6.1 only kicks in when the proponent is preparing the EA document after the approval of the terms of reference. In fact, these appear to be binding and there probably should be mandatory public consultation before the approval.
Section 8 talks about appointing mediators, but it's not clear to me who's going to be a party to the mediation. That seems to be a grey area that probably requires a little bit more definition.
Subsections 9(3) and 9(8) provide new and further constraints on public hearings under the EA act and it authorizes the minister to dictate the scope and length of a hearing. This power effectively allows the minister to significantly narrow the issues.
Although there are some obvious benefits to this, we also have to remember that we've seen a similar situation with the federal EA process, and sometimes things have been scoped so narrowly as to be relatively useless, to put it in a non-technical way.
The class EAs I commented on before. I happen to believe that the class EA process is a useful one, but at the same time there has to be some dignity used in it and some attention to the details. Public consultation also doesn't appear to be mandatory in the class EA terms of reference, and I think that needs to be addressed.
Probably the most important comment that I can bring to this session today is my real worry about the bill not having specific mechanisms on the bump-up provisions. What are the criteria going to be? What are the procedures going to be?
I know it sounds like I'm running an old record again, but let's not forget that many environmental assessment processes require enormous amounts of time and energy from average citizens in this country participating to make sure we get the best possible thing we can for the environment, for business and for whatever. To have this process which you can't ever take advantage of because it's just not going to be given to you is a real problem.
I think the class EA requires mandatory public consultation on the terms of reference. It should have a statutory definition to limit the scope of the classes of the undertaking, and we probably should see that the essential elements of the existing subsection 5(3), which is under the old EA act, are reflected in this one, both for the class EA and on the individual project level.
I think there's also some question about compliance. The minister should be able to put some kind of compliance order in place to make sure that once the system is over things are being followed properly. I think that's an area that we've fallen down on in the past.
I guess, after having sat through the last session, I could probably answer Mr Gravelle's question, which is what reforms I think are excluded or things that should be included in Bill 76 which aren't, and I would argue that there should be some consideration -- and I know it's an old question of phasing in the application of the Environmental Assessment Act to the private sector. One of the things that we've seen over the years, if you're building a private sector power dam you're not caught by the same type of regulation, the same type of legislative environment, so to speak, or regulatory environment, as Ontario Hydro is.
There should be an enhanced application of the environmental assessment to government policies and programs. Throughout the process you have to deal with cumulative effects in a timber management planning process in particular. But even though you have a class EA approval for timber management, each timber management plan is viewed as a single one. The question is what happens when you get large -- the situation can exist where you can have four timber managements come together in one spot with a very large clear-cut in a contiguous corner to each one but each one will be treated separately. That's an example of how you have to deal with the cumulative impacts.
One of the decisions that's confused me about this government is why the Environmental Assessment Advisory Committee doesn't exist. I've watched it over a number of years. I thought it was never an overly politicized group and I thought it always gave valuable information and had a real insight into how the EA process worked and how it affected the wide range of citizens and interests in this province. It was extremely good value for the money, they were a well-trusted group of people and I never did understand why they were eliminated.
Mr Gravelle: Good morning, Mr Huff, and thank you very much. There's probably a lot to talk about and there's not a lot of time. I want to clarify what you told us about the Ministry of Natural Resources and Mr Vrancart's comment in terms of what they wish to be exempt from. I want to make sure I understand this correctly because it seems pretty dramatic to me.
Mr Huff: It was pretty dramatic to me at the time.
Mr Gravelle: This is at a meeting where obviously lots were present, but perhaps you could again clarify exactly what it was he was saying they had to be exempt from because they didn't have the staff to do it.
Mr Huff: Okay. The Ministry of Natural Resources held a briefing session for people who had an interest in natural resources issues. Everyone was there, from the aggregate producers to the anglers and hunters to the various native groups, the Federation of Ontario Naturalists, the Sierra Club. It was a large, all-day meeting. The Ministry of Natural Resources should be commended for organizing it.
Mr Gravelle: It was a public meeting too, it seems almost.
Mr Huff: Yes, it was a public meeting. There were well over 100 people there. At that meeting somebody asked a question from the floor that they had heard the rumour the Ministry of Natural Resources was seeking to be exempted from the terms and conditions of the class environmental assessment. Mr Vrancart was the deputy minister, I believe. This was June 6 or 7. He said that yes, that was true, they were seeking an exemption order from the class EA on timber management, and the principal reason they were unable to carry out what they were required to do was because of the declines in staffing and budgets.
Mr Gravelle: That's very dramatic. Obviously the implications are dramatic.
Mr Huff: I don't even know if it's happened. The director of the EA branch was here. Maybe he could tell us if it's happened or not. I haven't been able to find out if it has actually taken place or whether the application was made. All I got was a clear statement from the deputy minister that it was their intent.
Mr Gravelle: The fact that he would say that to you, or to the person who asked the question rather -- I shouldn't say "casually" perhaps, but in a manner that suggested they obviously were prepared to say it publicly in that environment is pretty interesting.
Mr Huff: He was quite precise about it.
Mr Gravelle: Yes, and obviously we need to find out whether that's the case or not, although obviously what it says in terms of cutbacks, because there's a sort of a self-critical kind of a --
Mr Huff: Yes. It is understandable why they may be forced into that situation with the levels of resources they have.
Mr Gravelle: Would it be legitimate to ask for -- I mean, I appreciate this is somewhat -- no, it's not really outside; it's certainly within the scope of this committee to get some ruling from a ministry official on that or from Mr Glenn. Would that be an appropriate --
The Chair: Yes. We could ask research to gather the information, or the PA who is represented today.
Mr Gravelle: I'd be curious to see whether there's been any further movement on that because that's --
The Chair: Why don't you hang on to that question till the end and then we can deal with that.
Mr Gravelle: Okay. Fair enough.
The Chair: In the meantime, continue on. You have one minute left, Mr Gravelle.
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Mr Gravelle: Many things again: Intervenor funding: obviously an issue of some contention to a lot of people in terms of how it's been used. Can you just tell me, obviously in a very short period of time, the value of it, even the value from a proponent's point of view, because I think one can argue that intervenor funding has got value even for the proponent of the --
Mr Huff: I think intervenor funding is very valuable from a proponent's point of view. Clearly, if people are able to participate in a competent manner, there is going to be some goodwill created between the parties and some ability to create a relationship between people. You're the proponent, this is the intervenor and the whole thing, but at least you know who each other is and you're being treated with some level of respect.
If a project is coming into a local neighbourhood and it's an enormous project, an enormous company or government agency or whatever, the citizens feel relatively powerless in the thing. You really cannot do a responsible job having cookie sales; it can't be done. The question that needs to be answered, though, is setting some criteria for intervenor funding also so it's responsible, because clearly the government or the proponent has some responsibilities to be fiscally prudent at the same time.
I was with the Forests for Tomorrow coalition. We put together five environmental groups from across the province because we realized that was a better way to do it from an economic perspective. There were over 70,000 pages of transcript, there were 441 hearing days, there were 2,100 exhibits, and that was done with much less -- about $400,000, $450,000 worth of intervenor funding. We had lawyers there most of the time, we had expert witnesses who gave their fees back to the organization. There's enormous goodwill out there. When you consider what that intervenor funding was, spread over the duration and length of time of that, the government probably got good value, if for only the amount of information that was put forward. Some of the positions put forward by our expert witnesses have been incorporated into Ministry of Natural Resources documents and policies now.
Ms Churley: Thank you, Mr Huff. I have said before and I'll say again that I feel this bill is seriously flawed, for a couple of reasons, but one of the major ones is that right at the beginning, during the terms of reference stage, the minister has the discretionary power at that stage to scope what is going to, at the end of the day, be heard at a hearing. Of course it means that, as you've stated, I believe, the heart of the EA can be ripped out, and I expect will be in many cases, and that is having to look at alternatives to the undertaking, alternatives to the site and that sort of thing.
In my view, if there's that kind of discretionary power there, which there is, it is of fundamental importance that citizens and others who have an interest be involved at that early stage to the extent possible. If the government doesn't accept an amendment I will put forward about changing that and making sure the heart isn't ripped out -- would you say that it's therefore fundamentally important that people be involved from that early participation during the scoping of the terms of reference, negotiations around the terms of reference?
Mr Huff: I would agree with you that it's very important and I would go one step further to say that it would also have some practical implications. When you're dealing with a project in a local area, the sooner you get local citizens involved, the earlier you can get people with that local knowledge involved. If you've got a project and you're going to put a landfill in a certain spot, and you start out to do this and you put some work into it through the consultants and whatever, but at the same time somebody else says, "I'm a local well driller and I've been drilling wells in this area for 30 years and I think you may have your modelling off a little bit," it would be worthwhile to have that type of public comment as early as possible in the process. You can't underestimate the knowledge of local citizens across the province, particularly when you have people, quite often consultants, brought in from outside to do the research work.
I've seen Ministry of Natural Resources reports that talk about attributing the number of moose shot on a single road. They've taken an entire district's moose kill and attributed it to that one road because the people who were brought in to handle the data didn't realize how the Ministry of Natural Resources had organized it. The Ministry of Natural Resources people should have caught it.
Ms Churley: I want to move to another area of concern, and that is the lack of resources, the fact that both the Ministry of Natural Resources and the Ministry of Environment have lost substantive resources, both monetary and people. I'm concerned that with time frames and fewer staff even -- and in the past the holdup has been at the government review level, not at the level before that -- we're going to have bad decisions because there are very tight time frames and if people aren't there to do it and do it well and look at all the impacts, then it seems to me that you're going to end up having some fairly bad decisions made. Part of my question as well is around the discretionary power of the minister or the ministry. Somebody pointed out, and I think I counted a couple more, 36 different discretionary powers in this bill, 36 or more --
Mr Huff: You must count better than I do.
Ms Churley: -- to the minister or to the ministry. There is the concern about political influence and extensive lobbying that is now built into the system, which will mean that there will be unfair, unpredictable decisions made, because there's so much discretion built into it for, frankly, political influencing and lobbying to happen. A long question.
Mr Huff: I would agree, generally, yes.
Mrs Janet Ecker (Durham West): Thank you for coming today. I think the reputation and expertise of the Sierra Club has preceded you, sir, and I thank you very much for it.
Mr Huff: I hope its reputation has preceded me.
Mrs Ecker: Thank you very much for taking the time to come and put forward your input on this.
You make the point about public consultation and the terms of reference. I would be interested, based on the experience that you've had with the timber management class EAs and stuff, in what you would see as being appropriate consultation at that stage. One of the things that occurs to me is that I've seen the Environmental Bill of Rights registry, for example, be used very well. Notification of exemption order requests are routinely placed there. I know there are many citizens' groups out there with a great deal of expertise that monitor those kinds of things and respond and take part in that. Is that something that might be how you would do consultation on the terms of reference, or was there something else more specific?
I guess the concern I've got is that if we're trying to take a process and focus in on the issues that are important to the citizens' groups and are important to the proponents, we don't want to have a totally open-ended process at the terms of reference, yet at the same time there are some key issues that need to be resolved at that terms of reference stage.
Mr Huff: I may defer on this. I notice that John Jackson is here. He's truly much more of an expert than I on the public consultation aspects of things. All I could suggest would be dealing with the issue of principles, and the principles are that you want to have those people who are interested in it as early as possible, presumably even before the rumour stage starts, because if the rumour stage starts, then people are solidified in their positions and they already have a perception of how this thing is going to unfold. Anything that has legitimate representation of the people who will be affected by it as early as possible has got to be good, but that's only the principles. Again, I'm not going to talk about the specific mechanism. I'm not prepared to. I don't have those.
Mrs Ecker: Are there comments Mr Jackson might wish to make?
The Chair: He'll have a chance; he'll be the next witness.
Mrs Ecker: Oh, okay.
Mrs Lillian Ross (Hamilton West): I want to pursue that questioning with respect to public consultation. If there were a mechanism in place to ensure that public consultation began at the first step and along the way -- it's my understanding it's included all along the way with respect to the mechanism in place already for mediation -- do you not think those steps would eliminate or at least discount the need quite substantially for intervenor funding? Because you made the comment yourself that if public consultation was enshrined right at the beginning --
Mr Huff: It would minimize it, but I can't say that it would probably eliminate it. I'm not trying to be cute about that. The point is that to engage in any kind of an assessment of a project, an assessment in the crudest of terms, requires an awful lot of different expertise that is quite often not within the hands of individual citizens. That doesn't denigrate the role an individual citizen can play because you'll find, for instance, that in the dumps battles that were going on through the Interim Waste Authority process it was quite remarkable what resources individual groups brought in. They found well drillers and they found people who taught at the university and knew everything there was to know about a certain type of bird or whatever. It was impressive. But there still will be a need for intervenor funding. The lack of intervenor funding is a serious shortcoming in how we're trying to deal with environmental matters in this province right now. You could argue that it may actually even increase the chance of someone getting ambushed with a problem further down the road because people aren't able to do the front-end stuff.
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Mrs Ross: Let me ask you about the time lines. Would you agree that in the new bill there are time lines in place for steps along the way and that this is a better way of dealing with things? Because if you just leave it totally --
Mr Huff: Time lines are good, but at the same time they also have to be balanced with increases in discretionary power. There's an equation there and I'm not quite sure how the equation works out. It's very frustrating when you don't have firm time lines now, and that is one of the things that is impressive about the timber management planning process and some of the environmental assessment planning processes in the States. It begs the question of whether we have picked the right time lines. Again, I'm not the expert to talk about that, but one would hate to enshrine something in regulation and then find out in practice that the timing's not quite right.
The Chair: I'm sorry, our time has elapsed. Mr Doyle, I hope you get on the next round.
Mr Ed Doyle (Wentworth East): That's fine. My question was answered anyway.
The Chair: Mr Huff, thank you for joining us this morning. Thank you for taking the time and for filling in so adequately.
CITIZENS NETWORK ON WASTE MANAGEMENT
GREAT LAKES UNITED
The Chair: We now call the Citizens Network on Waste Management, Mr John Jackson. Your reputation precedes you. You might want to address some questions that, as you heard, were referred to your expertise. Thank you very much for joining us this morning.
Mr John Jackson: Thank you for inviting me. I'm John Jackson. I live in Kitchener and I'm here today representing the Citizens Network on Waste Management, which is a loose network of citizens' groups across the province who have been working for years on waste issues. I'm also representing and president of Great Lakes United, which is a coalition of citizens' groups, environmental groups and labour groups from Canada, the US and the first nations.
Today I will be talking about the proposed amendments and this bill from the perspective of waste management. I've worked on waste management issues for 15 years and waste management is often the issue that's thrown out as the reason why we have to make changes to the assessment process.
There is no doubt that we can and need to improve the environmental assessment process, but I think it's critical that we not overstate the problem. Again using the waste issue as the example, we are getting approvals -- and we seem to forget that very often in the waste field -- for waste issues under the current process. Looking since 1990, in the past six years we have had 10 landfills approved without even going to a hearing, but with the community's full support and with the community accepting that there was no need for a hearing and therefore telling the minister, "Don't bother with a hearing; let's proceed."
These have been for large municipalities: the one I'm from, the region of Waterloo; Windsor and Essex county, for example; from more mid-sized places like North Bay; and from very small places in northern Ontario and southern Ontario. They've also been approved without hearings, again with full community support, for new sites, what are called greenfield sites, as well as for extensions. It is very feasible to get approvals using the current environmental assessment process without going through and getting blocked on it.
In addition, we have had three landfills approved since 1990, with hearings. These are the North Simcoe one, the Storrington one and the Halton one. We've had three that have gone to hearings -- only three -- that did not get approval: Meaford; the Ontario Waste Management Corp, which I personally spent a lot of years on; and the Steetley one, which the board didn't approve although it's still up in front of the cabinet in terms of what ultimately will happen with that one.
It's critical that we not think this is a crisis in terms of the assessment act and therefore we have to make dramatic changes to it.
An example that's commonly thrown out by the minister to show the failing of the assessment process is the city of Guelph and Wellington county, which has been going on for years. They've been spending a lot of money on it. I've been heavily involved in that process. What's interesting is that each time they've come to a preferred site in that planning process and then ultimately ended up rejecting it, the reasons for rejecting it were because of information that their own technical consultants brought to them that said, "Hey, this is a lousy site, even though we've spent all these years." The most recent turning down, they'd actually started a hearing, the city and the county, when their own hydrogeologist came forward and said: "This thing is going to leak. We've done the studies and it's going to leak." So they withdrew from the EA hearing.
The message from that is we need to make changes to the assessment act process but we don't need to transform it, we don't need to completely change it. I know we're told that in this case we're not transforming, we're just making some adjustments, but the reality is that there are some fundamental changes being proposed in this bill. I want to focus on two of them that I see as the changes that are fundamental losses to us in terms of making good waste management decisions.
The first is the weakening, and in fact the loss, of the obligation to assess the rationale for the undertaking, what we usually refer to as need, and to fully assess alternatives. It doesn't have to be in the terms of reference. It's clearly stated there that in terms of what the minister approves for terms of reference, that could be scoped out right at the beginning stages, before any discussion begins, before any studies are carried out in terms of need and alternatives.
Also, even if it was part of the study, it can be taken out by the time you get to a hearing in that the minister has the power to say to the board, "There are certain topics that you will not receive evidence on." It's quite feasible that the topics the minister would chose not to have evidence presented on would be need and alternatives.
It does say in the legislation that even though the board doesn't receive evidence on them, it could still comment on those topics, but it would be very foolish of a board to make a decision on the basis of something it had not received evidence on. By saying the board can't receive evidence, you are in effect saying it can't make decisions on that basis.
It's absolutely critical that we look at need and alternatives, for two reasons. First is the money we can waste by putting together proposals that frankly aren't needed or are too large. The Ontario Waste Management Corp is the classic example where all parties ended up saying: "This is a foolish exercise. We shouldn't waste more time on it. We don't need it. The need has not been proven."
In terms of alternatives, we need that there to help move us forward and look for better solutions. One of the reasons we have made such progress in Ontario in reducing the amount of garbage we send to disposal is because municipalities and private proponents were forced to look at alternatives such as 3Rs and therefore we've developed that program much further.
The second area I'm concerned about that will be dramatically weakened in this bill is the requirement for hearings. Again, the minister has a broader discretion than before not to give hearings even if they are requested and the minister is able, even if there is a hearing, to lessen and scope in advance what will be heard in terms of evidence at that hearing, therefore making the hearing much less significant and a much less serious canvassing of the issues.
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We are repeatedly told by the minister, "We'll still have hearings throughout this process," yet the most recent example, which I'm sure you'll hear more about this afternoon, is Taro, where despite the fact that there was a petition with 3,000 names on it asking for a hearing, despite the fact that a public conservation authority asked for a hearing, that site has not been given a hearing.
Those then are the two fundamental areas that I'm alarmed about, that make really serious changes in terms of the planning process and the decision-making process we now use for waste management under the environmental assessment process, which would be dramatically changed and weakened.
There are some good directions in this bill, however, and I want to point those out, but the problem is that the good directions themselves, while the concepts are good, have some fundamental flaws in them and therefore need to be revised to make the good concepts work as well.
The first one is inserting the idea of terms of reference. In principle, that is definitely a good idea; we all want more clarity up front in terms of what we're going to do. I look at it as really being a work plan: This is what I intend to do, these are the time lines in which we're going to do it, and we have the ministry and the public agreeing in terms of those time lines.
The problem with the way in which the terms of reference are stated here, however, is that we should not, in setting up the terms of reference, be able to, at that point, scope out certain topics such as discussion of why we need the undertaking at all and discussion of alternatives. That is something that should be sacred to the process, that we should go through, make sure we study and make sure we have full public discussion of. We may agree, as members of the public and the community, that when we get to the hearing point that's no longer an issue, but that's the point at which we scope it out, not before anyone has done any work to know if there are serious alternatives or not, or to know how serious the need is.
The other problem in the terms of reference as stated here, as I've heard said many times this morning already, is that there's no guarantee of public involvement in the development of those terms of reference. That is a flaw that must be changed. But even if there is a guarantee of public involvement, the fundamental problem here is, will those people who could be most directly and seriously negatively affected by the proposal be involved at the terms of reference stage? By that I mean the people who could end up living next door to the site of a landfill or an incinerator. It's very unlikely, because at that point we're not going to know where that facility could be. Therefore, it's unrealistic to think that all of us who are so busy, have a lot of other issues to deal with, have our families, our work or all the other parts of our life to deal with, just because we see a notice in the paper that says, "Terms of reference being developed for waste management plan now. Come out and be involved," why would we come out and be involved? The effect is that at the terms of reference stage, you cannot expect those who will be most directly negatively affected to be out and involved; it's completely unrealistic.
The other area that is a useful concept to introduce is mediation. We all want to work out the problems as much as we can before we ever get to a hearing stage, or avoid a hearing stage if possible. It's not fun for citizens' groups to go through either, just as it's not fun for a proponent. None of us wants to do that unless we have to.
The difficulties in the way in which the mediation process is here is that it puts too much discretion in the hands of the minister in terms of who will be parties to the mediation and what the topics of the mediation discussions will be, and makes it very private. In terms of the decisions about who the parties will be, what the topics will be, it all happens behind closed doors without community involvement. The effect of this is that you could end up with a mediated agreement which a substantial segment of the community did not agree with, because they were not part of the discussion, they were not involved in it. That's a very dangerous situation to create.
The scoping of hearings is another topic which I'm sure we all agree with. However, again, there needs to be a public process of the scoping of what the topics of the hearing will be, rather than it simply happening in the minister's office or in some bureaucrat's office. Again, I think the Environmental Assessment Board is beginning to set up processes to scope hearings before they begin, and I think that's working well. It's only starting. But I think that's the way you scope: where all the parties are sitting at the table and say, "Yes, let's take these topics off the table; let's limit the amount of time we spend on this topic." That makes a hearing much more efficient and work much better.
Public involvement at an earlier stage: again, a very good direction. To make it work, however, we do have to have not just intervenor funding for a hearing stage; we need participant funding to let citizens have access to resources to do thorough assessments of documents before we ever get near a hearing.
The final thing is time limitations. We all agree with the need to put time frames so that we know when things are going to happen. I'm not confident, however, that we can do that through legislation or regulation, because each situation is so different. I think the point at which we should set up those time frames is when we develop the terms of reference, so the parties sit down together with the ministry and the proponent and the community and say, "Yes, we think these are the reasonable time frames to respond in, these are the times to do it," and that will vary by project. If the time frames are to work, as I've heard mentioned this morning, it is critical that the ministry have the staff and have the resources to do the job. I fear now the response time is going to be longer than it was before, not shorter, because of the resources not being there in the ministry.
To conclude, what I want to stress is that this is only part of an overall package of what's being changed in the way in which we make waste management decisions. I see a pattern developing here that alarms me. Let me just quickly summarize it for you. I see us moving away from planning for waste management and instead focusing on a single project, building a landfill, instead of looking at what our waste management scheme is. One of the things that is escalating that happening is the withdrawal of funding from municipalities by the province to do waste management planning. That money will be gone as of March 1997. So that makes us become much more ad hoc and not working together and not looking at overall schemes and plans.
The second thing I see happening is moving away from hearings, in fact I fear dropping hearings, and setting up, for example, the landfill regulations, which are now under discussion, and the incineration regulations, which have already been approved. It makes me worry that we're creating a situation where we'll be told: "Okay, I came in, I conform with the regulation. Therefore, Minister, say we don't need a hearing because from your bureaucrat's perspective we conformed." That's the direction I see happening there, which I think is a serious mistake.
I'm seeing more discretion coming to the minister and the civil service through this proposed legislation. I'm seeing a weakening public role, with funding gone to help citizens' groups to play a serious role in the job, with hearings either disappearing or being weakened in terms of the fullness of the topics related to the discussion and, with so many topics now being thrown on the Environmental Bill of Rights registry for 30 days to respond on all of these various components which we can't possibly deal with that quickly, a weakening of the public role.
The overall effect that I fear we are going to have from this in terms of waste management decision-making is less predictability, not more, and secondly, more conflict and more confrontation, because as people lose the confidence and the ability to use the environmental assessment planning process to achieve the goals that we all share, they'll then start looking for other avenues to try to deal with it, either trying to block things through the courts if they can afford it or through demonstrations or whatever. I know none of us want to go in that direction. So that's the concern that I want to throw out in front of you: to be aware of what we're really doing to the overall waste management decision-making process here.
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Ms Churley: Just on one of the last areas you touched on and that is the terms of reference negotiations going on the registry, it's not clear how that would happen, because right now, the proposed terms of reference for an EA would not fall within the existing categories, so there would have to be an amendment to the Environmental Bill of Rights and its regulations to make that happen -- the goodwill could be there -- and the fact that it's after the fact is a problem. I found your comment very interesting about, how could you get the public immediately affected involved at the front end of the terms of reference if it's not clear where the site is being proposed, and I'm wondering what suggestion you have to get around that, because I agree with you that the public has to be involved from day one.
Mr Jackson: Yes, and I think this is the problem we confront under the current system too, so I don't want to just raise this as a problem in the proposed system, which a lot of us discussed. I think the reality we've all come to realize is that you try seriously and you will get some people seriously involved at the beginning stages, and those tend to be the people who are already in the community working on environmental issues or working on waste issues. But you have to have enough flexibility in your work and your planning to recognize that inevitably, at a later stage when you do talk about siting of facilities, there are going to be new people who get involved at that stage, and you have to have the flexibility as a proponent to bring them on at that stage and to be willing to discuss a wide enough range of issues that they're going to be satisfied. We can't avoid it. As I said, we're all so busy, you can't expect someone to come out at that point.
Ms Churley: That's something that we're going to have to look at in terms of amendments.
You talked about the board in some cases will be told that it can't receive evidence in some areas. An example would be an incineration proposal. If at the beginning of the process, looking at alternatives to the undertaking, for instance, is off the table, and I've been told that it would be -- maybe this has changed -- unless that proponent is also in the actual business of 3Rs, then that proponent would not have to look at alternatives and therefore wouldn't be on the table. So how do you think that would work? If you're looking at setting up a huge incinerator to deal with hundreds of thousands of tonnes of garbage every year and not looking at the competitive side of that, and that is the recycling and reuse, I'm wondering how you see that could work.
Mr Jackson: It's bad news, and that applies not just to private proponents but as well to municipalities, and one of the driving forces that has really helped move along 3Rs in this province has been the fact that you go and talk to a municipality and they realize: "We're going to end up at a hearing. We're going to have to justify why we're putting this much stuff into disposal. That means we have to look at 3Rs seriously and have some programs up and running to show our good faith to the hearing board." It's been a powerful driving force, and I fear that if that's taken off the table, we're going to lose that driving force.
Ms Churley: But presumably they wouldn't even have to prove or show how they're going to deal with taking that recyclable and reusable object out of the waste stream and not have it going into the incinerator?
Mr Jackson: That's the way I interpret the legislation, yes.
Mrs Ecker: Thank you very much, Mr Jackson, for coming today and taking the time. I appreciate that you've been very involved in the previous process under the current legislation, but I have some familiarity with some of the examples that you've mentioned, and I have difficulty thinking that a process is working well when it takes, for example, the OWMC 16 years to come up with a decision that we shouldn't go ahead with this. Halton took, I think, something like 10 years. You've got Kingston that's been 12 years in a process that still has an outstanding decision. You've got Peterborough that's been about 10 years. I guess I'm a little concerned that a process that is taking that long to come up with a decision either to proceed or not to proceed is certainly a difficulty for not only the proponents obviously, but also the citizen groups.
Mr Jackson: Definitely.
Mrs Ecker: Very much so, so I guess what I would be concerned about is, don't you think that we need to take a look at how to improve the process so we're not doing that to the citizens' groups and the communities and everybody else? Because I guess, to be kind of cynical about it, if you took a large waste management company or something, they could just wait you out for 10 years if they had all these resources.
Is there not a need to make this system a little more streamlined so it works better for everybody? Is there not a need to have a mediation process which allows us to focus in on the key issues, to use the expertise of the groups, such as yourself, to sit down with the proponents and work out those problems? I know that many times they learn things that they didn't know when they started. Where's the balance here? Because I'm concerned that the previous system certainly didn't have that balance.
Mr Jackson: I totally agree and that's why I listed, I think, five or six items that I said are excellent concepts that are in the new legislation. Mediation was in them, the time frames etc. But my concern that I state in those is that we need to change those to make sure that they don't create some additional problems. The concepts are good in those respects, but I don't think they're workable the way in which they're presented. A lot of it is because of the very high level of discretion that's placed in the minister's office or in the office of someone she may delegate it to.
Mrs Ecker: There's a fair bit of discretion there now in the current legislation --
Mr Jackson: There is.
Mrs Ecker: -- and I would suggest the flexibility that's been talked about by some of the proponents where you need to be able to respond to what the community groups are doing -- if you've got it all wrapped up in red tape, nobody can respond. You're stuck in a process. Even if a community brings forward something that everybody says, "Oh, yeah, fine that's not a problem, let's go ahead," don't you need flexibility to be able to respond to those local community needs?
Mr Jackson: But the catch in the flexibility is that the way in which it's defined now I fear that too much is going to happen behind closed doors in that discretionary process. The flexibility has to happen through community discussion, through the concerned people in the community and the proponent and the ministry as one party at the table sitting around and discussing, "Okay, we're at a stage now we need to do mediation, for example. These are the topics let's put on for mediation, these are the people to be involved," and have that happen through community discussion. I think that's increasingly happening, we're exploring it. And that's excellent. That's why I like the idea of putting into the legislation the concept that reinforces that mediation is good and we should try to do it.
But my fear in the way it's now set up is that too much of the discretion in terms of -- it says very specifically, for example, the minister will decide who the parties are at the mediation. The community has to decide that, or else it can never be accepted by the community. It's very much set up as a secretive process in the mediation process. To work, mediation has to be something the community buys into, and I fear it won't this way.
So, as I said, there's a list of concepts there, some which you mentioned, that I fully support the idea, but I fear that the way in which it's defined in this legislation can create serious new problems for us because it's not open enough.
Mr Gravelle: Thank you, Mr Jackson. That was a really terrific presentation and I think you brought up a lot of interesting areas and some new information too in terms of how the process has worked. Obviously, the point of going to public committee hearings such as this is to basically talk frequently about how one can improve a bill, because there's an agreement there's a need to streamline and you're not disagreeing, and I think a lot of the previous presenters have not been disagreeing as well, but I think this is the opportunity to obviously make some changes which will improve it. I think you have clarified a couple of them in a simple way, and I want to even deal with the whole question of needs and alternatives.
In a way it strikes me as astonishing that would not be automatically there, and I'm trying to figure out, why would it be removed? Why would it not always be there? Is it ultimately simply a cost-saving measure to not have to confirm why there is a need, or is it in terms of having to determine what the alternatives may be? Clearly your point was if you don't deal with what the alternatives are, you're putting us potentially in a position where things could be much worse off in the future. I'm just curious as to your thoughts on that.
Mr Jackson: I think you'd have to ask the proponents, first of all, why they don't like the idea of it being there. I can't think of any good reason for it not being there. It's critical in terms of community planning.
The message I get, if we take out the discussion of need and the discussion of alternatives, is that we're not developing any more, for example, a waste plan in terms of how to deal with waste in our province and in our municipality. Instead all we're doing is focusing on building a disposal facility, and history has shown us that if we focus on building a disposal facility, we do not find the best ways of dealing with our garbage.
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Mr Gravelle: Can I, in the short time I have left, talk just a bit about intervenor funding too. Could you assist the committee, because obviously you've got some experience with public consultation. You were defined as being kind of the expert earlier by Mr Huff. There has been some controversy about intervenor funding and how it's used. Could you basically give us a good sense of how it should be interpreted and how that could be interpreted? We'll argue about the need for it, and I would certainly insist that there's a great need for it and it could be better for the project altogether, but could you help us pin down how you would recommend you do fund intervenor funding?
Mr Jackson: I think we need to combine intervenor funding with having what's usually called participant funding at an earlier stage. For example, on the Interim Waste Authority process, because there was participant funding there that allowed the community groups to do some serious assessment before we ever got near a hearing, to say, "Look, these are some fundamental flaws with what's going on here," we then got to the stage of it becoming obvious to everyone that it was silly to go ahead with the hearings, that there were serious problems here. We saved money at the hearing stage. I think if you have participant funding up front, we need less intervenor funding later because we're going to have scoped the issues.
I know in the Ontario Waste Management Corp we had participant funding. As a result of that, in the hearing stage we didn't discuss the siting issues at all. We said, "We think they did a good jobs in terms of siting." We have some other serious problems to the effect that they shouldn't have sited this at all, but in terms of siting, which of the eight sites was best, we looked at it earlier -- it's relatively cheap to look at it at that stage -- and said, "Drop this issue off the table." So when we got to the hearing, we told our lawyers, "Don't cross-examine on it." We didn't put any witnesses up on that issue. It saved a lot of money and time at the hearing.
Mr Gravelle: You're saying it can can save money. Okay. Thank you.
The Chair: Mr Jackson, thank you very much for appearing before us this morning. We appreciate your effort and your time.
REGIONAL MUNICIPALITY OF YORK
The Chair: Our final presenters for this morning are the group from the regional municipality of York, if you would come forward, please. Welcome.
Mr Alan Wells: I'm Alan Wells. I'm the chief administrative officer for York region and we're here representing our regional council. With me and participating in the presentation are John Livey, who is our commissioner of planning, and Kees Schipper, who is our commissioner of transportation and works. We hope to bring some practical discussion to this matter because we're involved day to day in administration of this act.
First of all, I'd like to thank you for the opportunity to make this presentation. At York region we are proud of our track record and our involvement with the EA process and we will look forward to the changes, which we'll speak to. As you know, we are very much involved in issues related to transportation and public works at the regional level. Our perspective is from the side of being a proponent on many environmental assessment studies, as well as a governing agency trying to deliver much-needed services in as efficient and effective a way as possible while maintaining due regard for the environment.
I should also like to add before we start off that I had the opportunity of attending a meeting with all the regional chairs of Ontario with Minister Leach recently and I can tell you that the chairs had some discussion on this matter and expressed their general agreement in support of improvements. We discussed our paper at that meeting and they gave their informal support, although you can appreciate, with the time, that resolutions have not formally been made at regional council.
Overall, York is in support of the reforms with respect to how they affect the maintenance and construction of roads, road-related facilities, and water and waste water facilities. Specifically, we are pleased to see little if any necessity to change the class environmental assessment documents for roads and water and waste water. We believe these processes are now well understood and accepted by the public and as such there is no necessity for change.
The fact that the class EA process will be enshrined within the act itself is supported. With more than 90% of our assessments conducted according to the class process, it is appropriate that they be enshrined in the act.
The third point I'd like to make in a general sense is that we are supportive of the use of "harmonization" within the act. By providing the minister with the authority to declare the requirements of other jurisdictions equivalent to the Ontario EAA, duplication and waste are effectively eliminated. We're very much in support of any steps to reduce duplication and waste.
Some of the members here are familiar with the costs of dealing with issues in Durham and Peel and Halton. In each of those cases the chairs of those areas wish to express the amount of time and costs that were involved in EA processes, particularly related to solid waste sitings.
I'd now like to ask John Livey, who's been involved in working with the government on reviewing legislation, to talk in terms of the coordination of the EA process with other legislation.
Mr John Livey: Procedurally, this act and the Planning Act have yet to be harmonized. There have been a number of attempts in the past. We think this new bill is a much truer bill to the original objectives of the Environmental Assessment Act, namely, to ensure that there's proper environmental assessment, broadly defined, of large-scale environmentally significant projects; ie, Hydro, major waste disposal sites, highways and other public works. It's more clearly designed to assess the environmental impact of a proposal than to be an environmental planning act, which is what the old act grew to be.
Now is an appropriate time to review the interaction between the two acts, the Environmental Assessment Act and the Planning Act, so as to minimize processes related to the task of planning for municipal infrastructure, and parenthetically the provincial infrastructure, for developing communities.
In the case of new secondary plans in York region, there's no need to have two sets of public meetings and procedural requirements on notice and appeals operating at the same time related to conceptual infrastructure planning; the need, the justification and the overall servicing scenarios are ones that are relatively duplicated between the Planning Act and the Environmental Assessment Act on nearly every one of our major secondary plans.
The specific design related to the provision of the infrastructure -- the actual design of the roads, the actual design of the pumping stations -- could be left to the Environmental Assessment Act, but the preceding overall conceptual infrastructure should be integrated with the Planning Act. Under the current process, a stakeholder often objects to either one of the two acts, such as a proposed infrastructure improvement under the Environmental Assessment Act, but during the planning process the same stakeholder may not have objected to the development proposal that is creating the need for the infrastructure improvement.
In order to strengthen the community planning process and the assessment of the infrastructure related to it, it would be appropriate to merge the needs and justification aspect and the review of alternative solutions for major infrastructure projects with the regulations under the Planning Act, namely subsection 16(1), which are now in the Planning Act but have yet to be prescribed by regulation. This will ensure continuing consistency with the objectives and standards of environmental assessment, but with the advantage of dealing with the planning aspects of infrastructure under the requirements of the Planning Act.
The same argument can be used for the Expropriations Act. Within this act it is necessary to have meetings which allow the public the opportunity to address concerns with respect to expropriations. Under current legislation this cannot occur until the EA work is complete. A more favourable process would be to allow the EA act to show required expropriations should the proposed solution of the EA be accepted. By allowing the amalgamation of the public notification and information processes under the two acts, a great deal of time and resources can be saved.
I'll turn it over to Kees Schipper, our commissioner of transportation and works.
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Mr Kees Schipper: We at the region of York have a real interest in the waste management aspects of this proposed legislation, as approximately 35% of the solid waste that is disposed of in Ontario is disposed of in York region at Metropolitan Toronto's Keele Valley landfill site. York region does not want the Keele Valley site expanded, nor does York region want to continue to receive Metro Toronto's waste beyond the closure of the Keele Valley site.
As you are well aware, under the Interim Waste Authority process, York region was destined to continue to receive waste from Metropolitan Toronto. York was extremely pleased with the government's decision to terminate the IWA process. York also supports the government's decision to allow waste incineration with energy recovery as an acceptable waste management alternative. York is vitally interested in ensuring the existence of an approvals process that is going to streamline the approval of additional waste disposal capacity in Ontario.
The following are our comments with respect to solid waste management.
Firstly, the concept of terms of reference: We support this concept. The minister's approval of the terms of reference will ensure that the issues of need and alternatives will be fully understood by all parties early in the process. It is our understanding that the regulations will ensure that the board is also bound by the minister's decision on the terms of reference.
Secondly, proposed environmental assessment approval time lines: The proposed approach is certainly a step in the right direction. However, two concerns must be noted. It has been the practice in the past for proponents to submit draft EA documents for initial review by ministry staff. We expect this practice to continue. Should this be the case, time lines suggested in the proposed legislation for EA documents should also apply to draft documents. Secondly, there appears to be no penalty associated with the time lines not being met. We therefore question the effectiveness of this approach.
In regard to mediation, we support the concept of mediation. However, we'd like to make three points. Firstly, issues resolved by mediation must not be referred back to the board. Secondly, a board member, if he or she is involved in the mediation of an issue, should not be able to return back to the hearing as a board member. Finally, the content of the mediator's report referring to unresolved issues should be held without prejudice and kept confidential.
According to the proposed legislation, when the minister refers an application to the board, the minister must be able to direct the board to hear testimony in respect only of the matters specified by the minister. Subsection 9(4) gives us some concern in that it appears to contradict the previous section in the proposed legislation.
With regard to property acquisition, the ability to acquire property or rights in property before a proponent receives approval to proceed with an undertaking is a positive change.
The last comment we'd like to make deals with the willing host concept. The definition of "willing host" must be given, presumably in the forms of regulations and guidelines. The ability to define "willing host" as part of the terms of reference for an environmental assessment does not go far enough in resolving this issue. It is felt that the concept of a willing host for a solid waste management facility should be further investigated. Although there may be difficulties in defining the willing host concept, it appears that the environmental assessment approval process could be significantly reduced with this scenario. Further work in this regard should be carried out.
Mr Wells: In conclusion, York will continue to be very proactive in providing environmental initiatives with respect to the services we provide to the public. Our dealings with the water and road class EAs are now well understood by the public, and as such it has become an effective and streamlined process. We are pleased with the efforts to streamline the EA process further but we believe further progress can be made by even further combining with other acts, in particular the Planning Act. It's through that act that the public has the basic identification with local government.
The solid waste management concerns are significant to the region of York, and indeed to all the regions in Ontario. We hope you will find benefit in our suggestions. Again, we're here to make our brief presentation and to maybe serve as a sounding board to the committee if you have any questions.
Mr Pettit: Thank you, gentlemen. John, I believe it was you who early on in your presentation mentioned the harmonization of the EA act and the Planning Act and then you said now is an appropriate time to review the interaction between the two acts. Can you tell the committee of any obstacles or impediments that you see relative to the integration of those two acts?
Mr Livey: Currently the requirements of the class EA would still have to be formally carried out and approved under that act. Similarly, the Planning Act still requires a community plan to go through a planning process that's authorized under the Planning Act. The Planning Act has subsection 16(1), as I mentioned, yet to be prescribed, but until the Environmental Assessment Act authorizes an approval to take place under the Planning Act in conformance with class EA requirements, you're still going to have two acts operating and two potential avenues of challenge. The suggestion would be to make some approval up to the needs justification and alternative side underneath the Planning Act by ensuring that MOEE, for example, is able to comment on that aspect into the Planning Act process and allow one approval to take place.
Mr Galt: Just a point of clarification on your concern about having two public meetings for the two acts: Both acts do require that you have a public meeting, but there's nothing in either act that says they can't be together, and we would encourage a common meeting at the same time rather than having them separated out and creating more concern.
The question I'd like to pose to you -- you made reference to mediation and the release of that report; I gather you're suggesting it be kept in confidence because it might prejudice the board's decision or what happens with the board -- would you be comfortable if that was released once everything was completed, that it was available to the public down the road?
Mr Schipper: Yes. I think our main concern is that any discussions throughout the mediation process should be held in confidence and should be without prejudice. Once the entire issue has been resolved by the board and final approvals have been given, I don't think there's, from our perspective, any danger or any shortcomings of that information being released.
Mrs Julia Munro (Durham-York): Thank you very much for giving the presentation today. I have one question that hasn't come out certainly in the act itself. Could you comment for me: As we see more and more the development of public-private partnerships taking place, do you see this process being inhibited or in any way made more difficult or enhanced through this proposed legislation?
Mr Schipper: I would say there is nothing inherent in the proposed legislation that would work for or against the private or public sector being a proponent for a waste management facility. In both cases there are certain additions to the act that we applaud and there are some further suggestions, but I don't think there's anything inherent about public sector participation that would be frustrated by this legislation.
Mr Wells: If I may, as a supplementary: While we're investigating and exploring a public-private partnership on our long-term water supply, we've been conscious of the EA process, and right from the beginning all steps we're taking are to harmonize with potential hearings in the future.
Mr Gravelle: Thank you very much, gentlemen, for your presentation. I just want to discuss with you again the concept of public consultation which has been coming up frequently and what your feelings are about it. Obviously you're dealing with the municipality of York. It's an important element in terms of how this bill affects things. I just want to get a sense of the value of public consultation and how you think it should be dealt with.
Mr Livey: The best suggestion I have for you is to try and distinguish between the broad and conceptual issues and the detailed, site-specific issues. We heard that from the last speaker and about people being very concerned about something being physically located beside their house and property. It's quite understandable that you'd want to give them some opportunity to have input into the process.
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I go back to the harmonization of the Planning Act and the EA act. The Planning Act and the official plan side, broad conceptual issues are dealt with in a fairly straightforward process and the zoning bylaw and site plan issues are often the ones that are site-specific in nature. If there is some harmonization between the two acts, you have the opportunity of dealing with both those issues through an established process that the community knows well and understands.
The issues in the Environmental Assessment Act as proposed of scoping, of terms of reference and access to that thing may have to have a similar kind of two-stage approach, of broad conceptual issues on individual liaise versus the more detail of site-specific considerations and type of notice that you would give on those site-specific considerations when they come up, when they're identified.
Mr Gravelle: Are you saying -- perhaps I misunderstood you -- that you think, obviously in terms of site-specific, there should be consultation but it's not as important in the broad conceptual sense?
Mr Livey: No, I think you give that opportunity in both cases. I agree with the last speaker that it's unlikely that you'll get everybody to understand how it really impacts them until later. You give them the opportunity, but they don't often have in their busy lives the time or inclination to come out. But then you pay attention to the site-specific questions and you pay attention to site-specific concerns of individuals by providing notice.
Mr Gravelle: Do you think it's important to define in the early stage, in the terms of reference stage, for example -- I think the way it's phrased at this stage is, "The proponent shall consult about the undertaking with such persons as may be interested." Is it important or valuable to clarify or pin that down rather than "as may be interested," which is an odd term in its own way because one can argue that a lot of people would be very interested?
Mr Livey: I think it's a bit of a catch-22, because you don't know at the beginning exactly what the preferred alternative may be. Where you think the preferred alternative is going down a very specific road, leading to a very specific undertaking, I guess you could design it that way. But the flexibility inherent in these terms of reference is that you could identify that when a site is selected there will be adequate consideration to giving further notice to applicants to make submissions.
Ms Churley: Thank you for coming today to give us your views on the bill. I want to come back to your comments about mediation. There are a number of issues and that's one we're hearing different points of views on: how public the process should be and whether it should be done in secret or very openly and then the reports made public. Certainly that's a valid criticism for having it held in secret and the results not given to the public, because as you know, in these very often volatile, demanding, complicated processes citizens' groups and others can get very upset if they think that things are being done in secret and that they don't have access to the information.
I'd like to ask you, understanding your reasons why you said you'd prefer it to be that way, how you propose, if that's the case, to deal with all these people who are not happy about being left out of that very important process and then not having access to what happened in that room. I think that would be a major, if nothing else, political problem. Do you have any comments on that?
Mr Livey: My comment would be that by its nature the mediation process will involve the exploration of potential solutions. There may be many things suggested that may be pursued or not pursued, and each party will feel free to negotiate as it sees fit. In the end, if a matter is successfully concluded through the mediation process, whatever has led to that successful conclusion has been based on discussions without prejudice. I would suggest that the final resolution taken to its final approval by the board and by the minister, any comments made in achieving that mutual solution, should be held in confidence and without prejudice. As I said earlier in response to a question, our main concern is that those discussions be held in private during the approvals process. I would suggest that after the approvals process is completed, at that time it's a different issue.
Ms Churley: Who do you see would be involved then in the mediation process?
Mr Wells: We would see all the parties involved and we would see in a mediation process that if there's a group, there would be a representative group. We understand the sensitivity of having a public process in hearings, but really the mediation is an interim step in trying to resolve a number of outstanding items. Kees is suggesting that it be confidential during that process to give the parties some scope to put various items on the table without prejudice. Clearly, once the mediation is completed and there's a report back, they would have to be very public and accountable. John, who's involved from the planning perspective, may want to add some comments as well.
Mr Livey: It's very difficult in legislation to promote good practice in mediation. I don't think you'll find a practical way of doing that in legislation. In many cases you find that mediations held in fully public forums lack the creativity because the participants are unwilling to offer some blue-sky ideas. Some practical ways of dealing with this are to have the mediator report on a regular basis back to the public and give some statements of progress without revealing the actual deliberations or potential options that were discussed, publishing the report afterwards so that people see it was a credible and practical way of dealing with some of the issues. I think that's what you have to do in terms of good practice, and much of it depends on the circumstances at hand.
Obviously you want to have the adequate, the right number of parties at the table; you want to have a representation of a broad variety of issues. You don't want to leave something off the table by not having somebody there to represent it who later will come back to become a problem. Designing who is going to be there, designing some feedback on progress and making the report available later I think are three key, good-practice elements that you would employ as a mediator in the process without legislating that.
Ms Churley: I know it is a difficult area. I guess you would agree with me that the essence of successful mediation is that all parties with a stake in the issue are there voluntarily --
Mr Livey: Yes. It's inclusive.
Ms Churley: -- that you can't coerce a party which has great philosophical differences to come to the table. I presume you'd agree that the mediator should be someone whom all parties are comfortable with, that it should not be the minister's choice but all parties should agree so that there's no trouble with one party --
Mr Livey: Or be neutral.
Ms Churley: -- and that everybody has got to agree to sitting down to take part in the process, that they can't be forced to mediate.
Mr Livey: That's correct.
Mr Wells: The parties must have confidence in the mediator.
Mr Livey: At the end of the day you have a process in place for arbitration if the mediation is unsuccessful, and you know that's there to fall back to if you can't make best efforts to get successful mediation.
The Chair: Thank you, gentlemen, for joining us today. We appreciate the effort and your appearance here before the committee.
These were the witnesses for this morning.
Mr Gravelle: I'd like to make a formal request first, if I may, to the research officer, Mr Glenn, in relation to the information that was given to us this morning by Mr Huff from the Sierra Club related to the meeting he attended, I think he mentioned June 6 or 7, with the Ministry of Natural Resources and with Mr Vrancart, at which time the statement was made in relation to the exemption of MNR from the class environmental process. I wonder whether there might be minutes available from that meeting, because clearly it was a meeting of a variety of groups -- it would be useful if we were able to receive those -- and also to find out whether or not any formal or informal request has been put in to the Ministry of Environment and Energy.
I would like to ask Dr Galt, if I could, whether he has any information he could provide to us in light of this. Clearly it's got reasonably dramatic implications if that's the case, particularly if it's got to do with a lack of staffing, so if he can provide the committee with any further information, that would be very helpful.
Mr Galt: I'd be more than pleased to look into that. I am not aware that it has been submitted to our ministry, but the way we've been handling questions so far with this committee is that if you would put it in writing, then we're clear on the request and we'll try to have an answer for you tomorrow.
The question from last Thursday, I just picked it up this morning, to Ms Churley. We don't have an answer today but certainly will have tomorrow, if that's in order with you. If you don't mind, it doesn't have to be typed up or anything; just scratch it out on a piece of paper so it's clear. I'll get it turned in and we'll try to have that for you tomorrow morning.
Mr Gravelle: That would be great.
The Chair: Very good. Thank you. Any other business? We resume at 1:30 sharp, please.
The committee recessed from 1200 to 1331.
REGIONAL PLANNING COMMISSIONERS OF ONTARIO
The Chair: Ladies and gentlemen, our witness is from the Regional Planning Commissioners of Ontario organization, Mr Rash Mohammed, vice-chairman. Welcome to the hearings.
Mr Rash Mohammed: Thank you very much for having us here. My name is Rash Mohammed and I'm the vice-chairman of the Regional Planning Commissioners of Ontario.
We are a group of professionals, planning officers of all the regions, including the restructured county of Oxford as well as the district municipality of Muskoka, and together we deal with the population in these areas, about 6% or 7% of the population of Ontario -- at least, that's my estimate -- in 1996.
First of all, I'd like to tell you that our submission is one based on consensus of the regional planning commissioners. It is not the position of the regional corporations. I'm sure some of these corporations will be making presentations to you in their own regard. Indeed, we want to say that our submission has not been approved or reviewed by our councils. We are a bunch of professional practitioners in the field and we're here to offer some assistance to this committee. Incidentally, I'm from the region of Halton.
In our paper, which I assume you have got before you now, what we've done is attempt to examine each of the major points the province promoted in its background materials on the bill, and we emphasize our comments on the proposed changes to the class EA. There are 16 recommendations we've made, and they're listed on pages 12 to 14, specific recommended actions we're presenting. In addition, there are a number of administrative matters that I won't be talking about, listed on pages 15 and 16, that I will just leave with the committee.
We were under the understanding that the province was working on reform of the EA process pertaining to waste management. The regional planning commissioners, of our own volition, decided that we would work on looking at the whole matter of the environmental assessment process, and actually we started that over a year and a half ago. In that process, we established some objectives for any new approach to an integrated Planning Act and Environmental Assessment Act. I'd like to outline to you some of these objectives we set that any reform to the legislation must meet. These objectives are as follows:
Achieve efficiency, affordability and cost-cutting measures by scoping the need for projects.
Evaluation of reasonable alternatives for each situation, reflecting specific municipal contexts.
Allow clear decision-making through complete documentation which is understandable to all participants.
Continue public accountability through municipal council process and decision-making.
Obtain closure at key decision points through a process that is goal-driven.
Provide public notice and/or involvement at a scale commensurate with the project.
Provide means of appeal and alternative dispute resolution, where appropriate, to mediate disputes.
Overall, we are quite pleased to see that the proposed new legislation goes a long way to meeting most of these objectives.
Fundamentally, ideally, we believe that the Planning Act and Environmental Assessment Act should be merged so there is one process for planning and impact assessment for infrastructure projects resulting from land use planning decisions. That's the conclusion we've come to. It's been 20 years since the act was initiated, and I should tell you that since about the mid-1970s our profession, applicable legislation and procedural tools outside of the Environmental Assessment Act have become increasingly sophisticated and more environmentally responsible.
Since 1981, the Environmental Assessment Act has been applied to a wide range of infrastructure projects carried out by municipalities. These projects were also subject to public review and related land use approvals under the Planning Act. As a result, municipalities are increasingly hampered by two planning processes under two pieces of legislation for which two different reports and two sets of public meetings and potential hearings are required. This inevitably leads to duplication, delay, extra costs and confusion.
We believe the time to eliminate the duplication and costliness of the two processes is during the review of the legislation that you're doing now. Therefore, we're requesting that the government provide specific means for municipalities to meet the requirements for both the Planning Act and the Environmental Assessment Act. We're convinced that a precise link between both pieces of legislation is necessary and possible.
Therefore, first of all, what we would like to suggest to you is that a reference to the Planning Act be included in sections 6 and 13.1 dealing with the contents of the terms of reference. This would ensure the proponents may specifically access this related legislation in preparation of an individual or class environmental assessment.
Therefore, we're suggesting that you add to subsections 6(2) and 13.1(2) as follows:
"(d) indicate that the environmental assessment will be prepared in accordance with such requirements as may be prescribed in 16.1 of the Planning Act."
In essence, what we're saying is that what's already in the Planning Act we'd like cross-referenced in this piece of legislation.
As municipal proponents, we welcome a fuller and clearer description of the class environmental assessment process in Bill 76. However, we are concerned that there is a lack of reference as to purpose, rationale and consideration of alternatives in subsection 14(2), which describes the proposed contents of the class EA. Therefore, what we're suggesting is that you can add to subsection 14(2) some words like "a description of the purpose and rationale for the class undertakings" and "a description of the alternatives to the undertakings within the class."
Also in section 14, there are two words there which give us some difficulty. We are opposed to those words, which read, under paragraph 8, "A description of the method to be used to determine the final design of a proposed undertaking...." We suggest that "final design" has a distinct meaning within the municipal context which is outside of the scope of the environmental assessment process and we believe that better words might be "means to implement." What we're suggesting is to remove "final design" and add the words "means to implement."
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The dilemma the ministry finds itself in is similar to that of a proponent: How much flexibility and how much certainty should be provided to participants and stakeholders? We agree with the ministry's attempt to provide early direction through the introduction of the terms of reference prior to the preparation of an EA. Unfortunately, that approach assumes that all participants can accurately predict the issues and points of contention before they occur. For example, to suggest that the terms of reference would be approved "if the minister is satisfied that an environmental assessment prepared in accordance with them will be consistent with the purpose of this act and with the public interest" is at best hopeful. If the parties could understand and agree on "the public interest," then we would hardly need mediation or board hearings.
We applaud the opportunity for real scoping of all decisions through the use of the terms of reference. We recommend that this could be better accomplished by stating more clearly in the legislation the purpose of the act. An additional purpose, added to section 2, would assist in the focusing of issues and the preparation of the terms of reference and environmental assessments. This purpose would be consistent with the federal environmental assessment framework and the principles of environmental assessment found in subsection 6.2(2) of Bill 76. Our suggested wording would be "to plan undertakings in order to prevent, mitigate or remedy significant adverse environmental effects, including cumulative effects and effects upon future generations."
The minister, in making her decision, must have regard to a number of matters specified in subsection 10(2). Similarly, the board in subsection 9(6), as a key decision-maker, should be directed in its decisions by the purpose of the act. Revised wording, including this reference, should also be included in subsection 9(6).
The effect of the introduction of the terms of reference and their approval is that the real decisions will be made early in the process. However, these terms of reference are not binding on all parties to the process, only the proponent. To ensure the terms of reference have the effect of focusing the process, all parties, including the agencies, minister, director, mediator and public, should be required to consider the approved terms of reference in providing comments and identifying issues in the process. Therefore, we're recommending changes to section 2 which would add a suggested purpose and we're suggesting revision to subsections 6.5(2) and 7.2(2) to add reference to the "approved terms of reference."
Finally, we are recommending that the board or the minister would equally make decisions based on these documents.
On the issue of guaranteed public consultation, we believe that the terms of reference could be used to delimit the public consultation, which could have the benefit of shortening the process. Unfortunately, the bill, as worded, only provides for consultation on the undertaking, not on the alternatives or the environmental effects and so on. We believe that section 6.1 should be revised to address this matter.
The role of the public in mediation is ambiguous. The minister "may" identify and "may" dictate the manner in which the parties are to be identified prior to the mediation and not the actual parties. The mediation is not open to the public unless the mediators decide to open the proceedings. These provisions could lead to significant delays as interested but excluded persons seek leave to participate.
Therefore, we're suggesting that section 6.1 be revised to ensure consultation "during the preparation of the EA" and not merely the "undertaking."
We believe that in section 8 there should be a clarification as to "who" may be considered parties to a mediation and that the minister "shall" identify them.
Under the issue of timely decisions, certain key decisions are subject to restrictive time lines that may be difficult to meet. Experience with the Planning Act application process has shown us that for time lines there should be an amendment procedure and clear implications for missing the time lines. We suggest that if the minister fails to decide within a certain time frame, where no extensions are provided, then the minister forfeits the opportunity to dispose of the application and it is automatically approved. This could be accomplished by deleting subsection 10(4). We note that the minister would retain rights under subsection 11.3(3) to amend a decision subject to prescribed rules.
In subsection 7(4) there is a time line for a proponent to have seven days to respond to and correct deficiencies in an EA. This may have the effect of weeding out the really bad environmental assessments early in the process, but it does little to assist a less experienced proponent trying to meet the requirement set out in the approved terms of reference. We recommend that subsections 7(4) and (5) be amended to eliminate this provision altogether, as this short time frame would not be a useful addition to the process where an EA is clearly deficient. Instead, either a refusal with reasons should be provided by the minister or, alternatively, conditions for the proponents should be given that would have these sectors correcting the deficiency.
We believe that the focusing of board hearings and the scoping of board hearings through the directions provided by the minister is an excellent addition to the legislation. Subsection 9(6) should be amended, as noted above, to strengthen this provision such that the board should be consistent with the minister's direction and with the approved terms of reference and, in an effort to keep the hearings scoped, should not be able to add indefinitely to the list of documents and matters under consideration.
Subsection 27(1) provides for the minister to develop policies to guide the board. This section should be broadened to include others who may be guided by these policies -- the proponent, the ministry staff, the minister, mediators, agencies and so forth.
Under the issue of mediation, we are pleased to note the addition of means to mediate disputes in the EA practice. Often, the key to a well-planned project is the ability of the proponent or the approval authority to resolve specific issues through a mediated approach. The addition of section 8 provides for such resolution. However, consistent reference should be made to the mediation process through the new legislation; for example, in subsection 30(1.1), where the ministry record is created. Revisions should also be made to indicate how and for what purposes a mediation may proceed and/or be used.
The value of the mediation process is severely constrained if the resulting outcome is not used in the focusing of matters affecting a decision by the board or the minister. For example, section 65 of the Planning Act states that the minister or the board or the council of a municipality shall, "if they consider it appropriate, at any time before a decision is made under this act, use mediation, conciliation or other dispute resolution techniques to attempt to resolve concerns or disputes in respect of any planning application or matter." We say this from experience, because virtually every day of our practising life we do mediation, so we've got an extensive amount of experience in this process. We believe that the existing wording in Bill 26 should be replaced.
It is positive to note that there is a 60-day response for mediators. That's very good, but to add real value to the process, major, contentious issues should be permitted to have a longer time frame in mediation, if required. Therefore, we recommend the minister specify the time frame for mediation. The minister can use the 60 days as a guide. A time frame should be developed in consultation with the mediators, proponents or other parties.
Under minister's orders, we note that there are six major types of orders. We like replacing the so-called "exemption" orders and "bump-up" decisions with minister's orders. We believe it will add much-needed flexibility to the EA approval process. It remains unclear to us how section 16 of the new legislation is triggered in the context of existing class EAs. At what specific points would the minister receive a request for a minister's order under subsection 16(1)? It would appear that a proponent of a class EA, for example, pursuant to 16(3) would be required to provide notice to the public and that an objector could request a minister's order. However, given the wording of 16(1) and 16(3), the minister could determine that an order may be appropriate at any time, not merely following the formal notice of completion in the class environmental assessments. Clarification must be made and class EAs will need to be amended to address this issue.
Under the issue of harmonization and consolidation, the proposal to harmonize this act's provisions with other jurisdictions is quite welcome. A minister's order may be triggered when the minister determines that requirements imposed by another jurisdiction are "equivalent to the requirements imposed under this act" where the minister declares that this act does not apply to an undertaking or where only certain provisions of this act will be applied. It is presumed that these types of orders would result in a request from a proponent, and this must be made clearer. The basis upon which the minister may make the decision should also be specified.
We recommend that the minister should be guided by the purpose of the act, by section 6(2) of the act -- that is, preparing the approved terms of reference -- and by the public interest. We are recommending that the minister be guided, in making an order on harmonization, by the purpose of the act, section 6(2) of the act concerning terms of reference, and the public interest.
The last two pages of administrative regulations I won't deal with. I want to thank you for the opportunity to be here.
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Mr Gravelle: Good afternoon, Mr Mohammed. You've certainly put a lot of effort into this and there are obviously many amendments that you'd like to make, and I'm sure that we'll all be looking at them carefully.
You mentioned that it's not been reviewed or approved by the respective councils. I presume that's a time issue?
Mr Mohammed: It is a time issue. We were working on this issue, so therefore we were able to prepare this discussion paper rather quickly. We didn't have the time to go to councils. Especially in summertime, councils close shop.
Mr Gravelle: But you have confidence, I would think, that most of what you're saying or a large bulk of it reflects the views of many municipalities?
Mr Mohammed: I sit on the board of directors of AMO and I've seen the submission of AMO. We believe you'll find some reasonable consistency between what we're saying and what AMO is saying. We deal with practical applications; AMO is dealing with governance issues. I know for sure in terms of my council, that I've been before since the mid-1980s on this issue, they're well aware of this issue.
Mr Gravelle: Your reference to the terms of reference and how they basically need to be expanded has certainly been an issue that has come up frequently in front of this committee, the fact that the consultation really needs to be expanded. I'd like to get your thoughts on what the reasons are for that. Certainly we know why we think that is the case in terms of more consultation and a wider consultation being needed. Obviously you agree because you're talking about providing consultation on the undertaking and the fact that it's not done in the alternatives and everything else. So you feel strongly about the fact that there's a wider consultation needed, and more formally so.
Mr Mohammed: Yes, I believe a wider consultation is needed. However, I want to tell you that in any of the consultation processes, closure has to take place. So if all the parties agreed upon the terms of reference -- agencies, the ministry, the minister, the public -- closure has to take place, and from there we can move on.
I've had the experience of doing what I consider the most horrible environmental assessment, other than Dr Chant's, of course, which is the one for landfill in Halton. It was a very difficult process. I believe that this process with agreed-upon terms of reference will go a long way, and I want to commend the ministry for proposing it.
Mr Gravelle: You make a quick reference also to the minister's level of power in terms of this new legislation, and I must admit to some degree it seems a bit ambiguous whether or not you think it's a good or a bad thing, because in some areas clearly you think the minister should not have the power he or she will have. At least that's how I'm reading it. I appreciate I'm just reading it now, but there does seem to be almost a mixed message that you're putting across here.
Mr Mohammed: I hope I'm not giving you a mixed message. I believe in ministerial discretion. The political process needs that. However, I do think there are certain things that we mention in our paper that we need clarification on. For example, I mentioned minister's orders. We need clarification on how that's to be triggered, because we're looking to a clearer and discernible process that everybody can understand.
In one area of our position paper we said that the minister should also be subject in his decision-making regime, time regime, to put up or shut up. So we're saying, look, make a decision. You can amend it or you can add conditions and so forth. If you're not going to do that, then let's get on --
Mr Gravelle: If you miss your own deadline.
Mr Mohammed: Yes.
Mr Gravelle: I trust that's a significant part.
Ms Churley: It's a very thoughtful document, quite technical in places, but it's clear that you did a very thorough job of examining the bill. I think you've pointed out some key areas that need amendments and revisions. I like your definition, "To plan undertakings in order to prevent, mitigate or remedy significant adverse environmental effects, including cumulative effects," because that's one of my concerns under the class EA act, that these be taken into consideration.
It's my understanding that you're saying there are some problems with the lack of definition about class EAs and with the fact that -- and tell me if I'm wrong in this -- alternatives or reasons for the undertaking do not have to be looked at.
Mr Mohammed: I think that's what we're saying. Let me make it clearer. Class EAs were introduced because the EA process was complex. A good example are sewer works. So groups of things like that could be done together. What we're saying here is that no public infrastructure project should be done without knowing its purpose. What we're saying is that you should have a very clear purpose and rationale and it should be put in and re-emphasized on the class EAs too, as you would do in an individual EA. We're suggesting equally, like on an individual EA, you've got to look at alternatives. We want to make it very clear that class EAs should equally state a purpose and rationale and should equally look at alternatives.
Ms Churley: Are you aware that under the act now, even with a full EA, the terms of reference can be scoped and negotiated in such a way that alternatives to the undertaking, and in fact need, will not necessarily have to be looked at, that it's up to the discretion and however the negotiations come out? Were you aware of that?
Mr Mohammed: I'm aware of it. In all my years I've had very limited scoping; I wish I could have had more. For example, I know for Halton we're doing some major master planning that needs some closure and needs some scoping. It's getting too expensive and too long-winded for providing public municipal infrastructure.
Mr Stewart: Your thought about having the wording understandable is a great thought, because I think half of these acts, most of the public, including myself, can never interpret them. So it's a great suggestion. That's not my question, though.
When you're suggesting that we don't have restrictive time lines, if we do have time lines which tend to move the process on, and certainly I believe Carleton region was looking for a landfill back a few years ago -- have they ever got it approved yet?
Mr Mohammed: Who?
Mr Stewart: Carleton region. Have they got it approved now?
Mr Mohammed: Actually, we got one of the few landfill approvals under the Environmental Assessment Act, yes.
Mr Stewart: Yes, and it was some six or eight years, was it not, or longer?
Mr Mohammed: Oh, yes.
Mr Stewart: Okay. I'm leading up to the point that time lines are not necessarily all that bad. I guess my question to you is, if the time frames stay in place, which I believe you should have, do you feel that some type of appeal mechanism would satisfy your concerns, so that if somebody did have a problem to get prepared within the seven days or whatever it may, they could appeal it to try and make a variation so they would have a little bit more time, but still leave time frames in that people have to try and adhere to?
Mr Mohammed: Personally, and I know that I can speak on behalf of my peer group, in fact we like time lines. So we're not suggesting there should be no time lines.
Under the seven-day issue, we think that's unworkable, so we're suggesting delete that. On the other issue I mentioned, there is, for example, a 60-day time line on the response from the mediators. That might be fine for most environmental assessments, but if you have a complex issue like an incinerator hearing, for example, an EFW hearing, or a decision on a landfill, depending on the complexity of the issues, what we're suggesting is, let the ministry sit with the mediators, the proponents and all the parties and work out, using the 60-day guideline, what is reasonable and have everybody hold to it. But to impose a 60-day alone, I foresee some difficulty on complex issues. For most small stuff it may not matter, but on complex issues it could.
It takes a long time to mediate. I've done it all my life, and we do this every day of our lives. I'm telling you it takes a long time to mediate and we need to hear from those who are participating in the process on how long it will take.
The Chair: Mr Mohammed, thank you kindly for joining us, for the preparation you've put into this and for appearing before us. We appreciate it.
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SAFE SEWAGE COMMITTEE
The Chair: Our next witness is from the Safe Sewage Committee, Karey Shinn. Welcome this afternoon. Thank you for coming.
Ms Karey Shinn: My name is Karey Shinn. We represent a large number of residents' associations, organizations and individuals. Debra couldn't get a slot to speak, so I intend to share my time with her as one of our member groups.
The Chair: That's fine. Would you identify yourself please for the purpose of Hansard.
Ms Debra Kyles: My name is Debra Kyles.
The Chair: You have, in combination, a total of 30 minutes. Whatever time you do not use permits us to divide the time between the three parties to pose questions to you. You may begin whenever you like.
Ms Shinn: We'll try to keep our time down.
Who understands the act -- only lawyers? -- and are proponents accountable? Some effort will be needed by the Ontario government to spell out what the Environmental Assessment Act means to local politicians who at the end of the day end up as the unwitting proponents of projects they have not got the time to understand the finances of, let alone new technologies or workings of the EA act.
I've included a book here of an enormous amount of resources available to people that I don't think people even are aware of.
Safe Sewage went to Metro council begging for mediation in the full environmental assessment of the Ashbridges Bay sewage treatment plant and were told categorically by the chair of the then Metro works committee that Metro was committed to a hearing. I might add that these councillors even claimed to be familiar with the current act but didn't know there are provisions to mediate even now. We would have appreciated that two years ago.
Key improvements to the EA act should include:
(1) Clear criteria to state what triggers an EA. What is the process or protocol that the proponent must follow and therefore the public can see has been followed? And what mechanism or process is in place for the public to initiate an EA?
(2) What set of policies and regulations will the minister or appointed director be using as guidelines for exemptions? This should be clear for all classes: municipal, public-private, private companies and municipal service providers.
(3) In the class assessment process, openings must be created for emerging and new technologies, including Ontario-based environmental industries, to review proposals with the opportunity to better improve the environment and also create new jobs.
Note: Currently when a business signs up in Metro for an industrial surcharge agreement under the sewer use bylaw, they are just told how much they are to pay Metro. There is no provision for these industries to find local companies and technologies that might be very cost-effective at offsetting the need to even have excess strength discharge into the costly public sewer.
(4) In the case that a full individual environmental assessment is required under the provisions of the new act or mediation is requested by the minister or director, funding is necessary, including third parties, to hire independent technical help or legal representation at the hearing or mediation talks.
Note: With the advent of public-private partnerships for water and sewage, for example, certain issues such as accounting practices and profits versus environmental improvements in the public interest may become contentious. A small local municipality could be a third party at a hearing and be considerably disadvantaged by the sheer scale of some projects and the financial strength of the proponent they are up against.
I'm going to give you an example. This is just one that I know is around. The problem: the York region water supply. One of the problems I will use as an example is the project to bring water to one million additional people in York region.
Water comes from Georgian Bay: If the water may come in a pipeline from Georgian Bay, it will likely be a consortium of two international companies under some sort of agreement with York region, however that is worked out and who is accountable to the public. So far there is no EA, not even a class EA, and the so-called alternatives remain limited to the three or four proposals that arrived as a response to a request for qualifications from York region.
Georgian Bay water becomes sewage in Lake Ontario: Now, although the project is advertised as water supply, in reality up to 80% of this cannot avoid becoming sewage as it is used. So the water supply for one million additional people in York region will become the impending sewage filling up the already near-capacity sewer trunks of the York-Durham sewer system. This will discharge effluent in Pickering-Ajax, sewer overflow all along the Metro Toronto waterfront, if they get their permission to open the bulkheads at the north end of Metro, and then create 20,000 additional dry tonnes of incineration in the Duffin Creek sewage incinerator, 10,000 tonnes going to landfill and the other 10,000 dry tonnes becoming either airborne toxic particulate or greenhouse gases. These impacts are avoidable with better direction. We'd like to see it.
Sewage discharges into Lake Ontario are close to the drinking water intakes: All sewage treatment plant discharge pipes on the Lake Ontario waterfront are often within two kilometres of the neighbouring water intake pipes for drinking supply for most of the population of Ontario. Tritium in the Harris filtration plant on the border of Scarborough and the city of Toronto is testament to the westerly flow of discharges from the Pickering nuclear generator. Other intake pipes are more affected than that one.
How will this new EA act resolve these problems? What is the process? Why didn't the request for qualifications address the sewage or other related flooding issues or the pressure for urban sprawl it will cause?
How will the alternatives be assessed? The public on the waterfront and in small communities along these pipelines and trunk sewers are third parties in this huge project, yet without some kind of funded effort, who will ensure that all the alternatives are seriously considered, such as:
(1) Groundwater recharge to manage stormwater from development through deep-root or living machines or constructed wetlands.
(2) Infiltration basins to eliminate the need for outfall on Lake Ontario at all. A single system in Moose Jaw has continued to service up to 34,000 people since the late 1950s.
(3) Water reclamation and reuse facilities in the region can keep water close to its source. This should be part of any water supply proposal. Some 25% of residential water needs are met in some jurisdictions this way for swimming and irrigation, especially in peak summer months.
(4) Non-structural stormwater management: Even a 50-50 out-of-pipe stormwater management, 50 in and 50 out, costs 75% less than an all-in-pipe solution. All we've seen is all-in-pipe. That's the most expensive.
If the current Ministry of Environment is sincere about public access, early and clear direction and harmonization, we request that the act be clearly written in such a way that the public -- and I include here local elected politicians -- be informed of their rights and due process before we find ourselves on the receiving end of a misrepresented project, such as this York region water supply.
York region has requested to open the bulkheads into the Metro trunk system. We can only assume they don't know Metro is already overflowing all along the waterfront, especially when it rains. The MOE should know this. They have just exempted the western beaches storage tunnel to resolve one small part of the shoreline, at a cost of $60 million. Where is the environmental assessment in York region? We have a very productive EA going on in Metro, and we want to know what process the public can have access to in York region for early and clear direction.
If no EA is initiated, what then? If resolution of these impacts are not resolved in an EA, will the public have to sit before the Ontario Municipal Board? Is that option even available?
The Great Lakes must not become worse chemical dumps and more concentrated sewage ponds. The fish die and the turtles are gone.
Waterfront communities do not even have MISA regulations that would have begun to regulate the effluent from municipal treatment plants and non-point sources. It is impossible for us to understand how the interests of the public, especially to protect our resources for drinking water, Lake Ontario, are going to be looked after. Increased human activity governed by less regulation will not keep us at the current levels of degradation.
How many more surveys have to conclude that over 25% of the public are turning to bottled water, do not trust the drinking water, before we get the regulations we need to ensure the public is getting some value for our tax dollars?
Parts per million, deaths per million and who is counting? With regulation disappearing, we will have to resort to the dead body count, and if so, how many more people have to die? I hear these air pollution things that Health Canada put out. Two people a day are dying from air pollution. What are we doing? I don't know. I can't tell if anything is being done. More incinerators. I don't know. It's just costing billions of dollars every year for this. We need to tighten up the regulations to stop the systemic poisoning of the environment which is now causing death.
How will the changes work, and who will pay? When a project is proposed, it would be prudent for the Ministry of Health to calculate how much we save the taxpayer by having industry and municipalities comply with more strict regulations. What can the Ontario health insurance plan and individuals save for? Puffers, in-home air and water filtration, energy increases, trips to the emergency wards, respirators, bottled water, loss of work etc?
When climate change takes on biblical proportions these days, we feel there is no room to relax on pollution. If risks to the environment are avoidable, we expect government to govern, and that is to put the screws where the regulations need to be tightened up.
I have to tell you, as a mother of a couple of kids, I went to sign my daughter up for Brownies camp, and I sat there with eight other mothers with little seven-year-old girls. We didn't get to talk about the fun they were going to have down in the woods; we had to talk about power of attorney, because four of those little girls had chronic asthma and one of them had to arrive at camp with a respirator. I was shocked. I really think we've got to do something about what's going up in the air and coming down in the deluges of floodwater.
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Ms Kyles: I'm going to be addressing deregulation and how I believe it affects the economy. My name is Debra Kyles and I've worked with the Safe Sewage Committee for about six years now. I also belong to a group called Coalition for a Green Economic Recovery. Their aim is to encourage industries and individuals working in the environmental end of business by promoting their products and their services and providing network opportunities.
The work I've been doing is centred around sewage treatment and water treatment and how they affect the air and water qualities. I have an honours degree in fine art design, and in order to bone up on the technological aspects of these facilities I have attended several conferences in the United States for engineers and operators. These were held by the Water Environment Federation, the American Water Works Association and the University of Washington in connection with the Northwest Biosolids Association. They're comprised of engineers, businesses, consulting firms, municipal and private facility operators. It was at these technological conferences in the States that I learned where Canada fits into the western world as far as environmental technologies are concerned, and I was shocked. I was appalled, actually, and I was embarrassed.
When you compare Canada to the rest of the westernized world for the growth of environmental technology, industrial and consulting, we are almost at the bottom of the heap. It was with great embarrassment that I listened to a presentation in Phoenix by one of the largest consulting engineering firms in the States talking about working in a Canadian city. This is what he said -- he attempted to be polite -- and he's talking to engineers at the conference and describing his consulting:
"You must understand that when you work in Canada they have no environmental legislation. There are no real regulations and they are still dealing with systems that are now illegal here in the States. The operators and municipal engineers have nothing to work from because there are no real guidelines, and when you try to introduce the new technologies they don't have any Canadian firms who are aware of them, and so we have to explain it to them in detail."
I felt like I was from a Third World country. This is what it's like when you step outside of Canada: We're going backwards while the rest of the world is moving ahead. It pretty much sums up the effect that a lack of regulations can bring.
In the United States, when the federal Environmental Protection Agency launched and passed Bill 503, which regulates pollutant discharges from sewage treatment facilities and water treatment facilities, it spawned a boom in research and technology growth. It created thousands of jobs, and now US companies are exporting these technologies and they're consulting around the world. At the last conference I was at in Washington, DC, several companies made presentations on the work they were doing now in other countries, taking the technology with them that they learned because of the Bill 503 regulations. One of these cities was Cairo. These are big jobs we're missing out on.
If you multiply this effect by the vast number of possible industries not related to sewage and water treatment, you get tremendous opportunity for economic growth, and this is evidenced in the employment figures of the US compared to Canada over the last few years. As we've been losing jobs, they've been gaining over one million jobs. We're in a loss position.
Over 70% of the Ontario population wants stricter environmental regulations. If you're not representing the people of Ontario in this attempt to deregulate, who are you representing the interests of? By looking at the growth of technology in the States, Europe and Japan that is spawned by proper regulations, it's definitely not the general business population either.
Having one of the worst environmental records in westernized countries also affects tourism. I've talked to German tourists who were advised as a group: "Don't go near Lake Ontario. The level of contaminants from their industries is so high that it's dangerous to your health." Other European countries have referred to us in the media as a bunch of beer-drinking louts destroying our own resources instead of using them wisely.
If you think about the dynamics of the Third World country -- you have a handful of people making a tremendous amount of money exploiting the natural resources while the rest of the country suffers tremendous unemployment and is totally reliant on other countries for all their technological needs -- then you've got to look at what deregulation does. We are now losing jobs to the States. Canadians are now having to move to the States to do their work because we have no need for their advanced technological businesses, industries and machines etc. Now compare that to the boom in employment in the United States as they meet stricter and stricter guidelines and regulations.
Last but not least, without legislated regulations municipal and private operators will not choose to self-regulate at a level equal to public regulation. It's been proven in the States. Bill 503 forced thousands of facilities to make changes. These regulations not only spawned tremendous business opportunities, but in the majority of cases that I heard at the conference I was at in the States, the cost to the taxpayer of operating these facilities was reduced when these stricter regulations were brought in. On top of that, from the consulting engineers who worked with the industries, most of the industries found that when they were reusing their chemicals and reducing and rethinking their systems, they ended up saving money within a three-year period of time and that saved money was after the cost of what it took to change this around.
All of this was spawned by Bill 503, which was brought in about two and a half years ago. It started 10 years before Bill 503. The industry started 10 years ago. They are now 15 years ahead of us and they are making money throughout the world with these technologies and there's a boom in the economy in the States.
Being just about the only westernized country in the world with little or no environmental regulation is going to hurt us financially as well as environmentally, and if you add the skyrocketing health problems caused by the level of pollutants now emitted, you have an even greater economic problem. Diseases are skyrocketing. Asthma is skyrocketing. The largest number of admittances to hospitals in the summer, which is a huge cost to us, are children with asthma. This is ridiculous. This is money that is being wasted.
Give people a fair playing field. Give them at least the level of regulation of their nearest neighbour -- the United States. Canadian environmental businesses even now must do a great deal of their work in the US; there's no market for them here. Some of them have moved down there and never come back because they can't do any business up here. Why should Canadians have to move to the US with their technological businesses? It is again an embarrassment that we can't even employ our own people in Canada, that they must go to another country to have their new technologies appreciated.
You've got to look at the economics behind what you're doing and you have to look at how we look in the rest of the world. If you step outside Canada and look at their regulations and look at the way they look at us, I think you'll rethink your ideas.
Ms Churley: Thank you very much for your presentation. I know that both of you have become over the years, through necessity, experts in sewage issues, so I won't even begin to ask you technical questions about the sewage issue that you've been battling for a great number of years. I hear the frustration in your voices around that. I think we have a lot to learn from people from citizens' groups who have come forward, because we hear the other side -- we hear a lot from companies and municipalities and proponents -- but we have to hear and we have to listen to the frustration and anger, I suppose mostly frustration, that citizens have already been having with the existing system. Now we're about to launch into a new Environmental Assessment Act which, if I understand correctly, Karey, you want to make sure is understandable.
One of the problems -- and there's a lot of material we don't have time to go into here -- is that intervenor funding is now gone. The government did not renew the intervenor funding act. I'd like either one or both of you to talk about, from your experience so far and the complexities of, in your case, sewage issues, but also waste management issues, what would happen to groups like yours if you had to go to a complicated hearing on complex issues without any kind of intervenor funding. Could you participate fairly?
Ms Shinn: It's pretty well impossible because, as I think Mr Stewart mentioned, the language of these acts is unbelievable. As a resident who finds oneself underneath what's going to be a twice-as-big smokestack or something, what do you do? Go and get the act out of the bookstore. You read the definitions and then the rest is gobbledegook. You don't know what the history of fighting those diddly-bob (a), (b), (c)s with little Roman numerals after them is all about. It takes it right out of the hands of the public into a completely different playing field where you have to be equipped with your technical advice and your lawyers or you're just not playing the same game.
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On the one hand we're asked, "What are the alternatives?" and on the other hand we're ridiculed for not being technical experts. We have been to so many conferences, and I'll tell you I distributed these books; I hope you take them back to your constituencies. I send these out to the people who call me from all over Ontario because the technical expertise is here, and unless we can get the money to find it at the right time, for the right project, we get just bigger of the same old stuff we have now and we're not getting better. I think it's absolutely necessary, if there isn't the project funding act, maybe as an adjunct to mediation or hearings there should be some other mechanism for funding.
Ms Kyles: I want to add -- again I have to use some US examples -- our example here of being in a public consultation for six years is one of the most ridiculous things I've ever been part of. In the United States they work so closely with industry and the public that they can have the problem solved and the new technology beginning in two years. When they're working with the public and working with industry, and people work together for the same final solution, to make something work as best it can, it really works well, but what I've found in the States is that when people don't have the money to get involved they go to court. It's a ridiculous situation. The public, industries, everybody should be involved in a situation and should have the resources to be involved in a useful way.
Mrs Ecker: I missed the first part of your presentation. I guess one thing I was having a little concern about is the people you were quoting and supposedly describing Ontario's environmental regulations. I had great difficulty understanding that.
Ms Kyles: Canadian, actually.
Mrs Ecker: I have been part of and have seen many times where this jurisdiction, Ontario, has set the standard not only for Canada but also for the United States on many things in environmental protection. There have been more problems and times --
Ms Churley: Bye-bye.
Mrs Ecker: Not bye-bye with this -- where this jurisdiction, because of the concern and the importance that we place on the environment, has fought very strong battles with the United States because of their lack of regulation and their lack of enforcement of regulation.
There is one question that I would ask you because you made reference to the point that up here it's been taking you six years; down in the States they did it in two. I would certainly agree with you that what seems to be happening here with our regulatory structure is that we're substituting process and length of time for environmental protection. Is there not a way that we should be streamlining this legislation so that we can do the important environmental things, as you mentioned, without dragging groups such as yours through six years -- or many of the other examples; we're up to 10 and more years -- of work that they're trying to do before they get a decision, if any? Is there not a way to streamline here? Do you not agree that we should be doing that so we can focus on those very important environmental issues, as you've pointed out?
Ms Kyles: I believe the most important aspect of consultation with the public over a proposed project is that there is an actual consultation, that the groups are able to discuss it at length and that all the answers can be dealt with, all the questions can be answered and all parties are part and parcel of it. I think you need whatever requirement of time to do that. I don't think you can say, "All right, we're going to take this issue and you've got 30 days," because I know myself that sometimes you can't get documents for 32 days. You've got to give the proper amount of time.
I agree with you that to drag something out over six years is just absurd; the money that has been spent, and all that happens is that one group of people comes to the meeting and says, "This is how it is," and the other group says, "No, we don't believe it because we've seen this," and then they go away and they keep doing it. It's a waste of time and a waste of money. You've got to make sure there's communication.
In all the comments that I refer to I'm working within the sewage and water facilities. I know that down in the States their enforcement -- in fact, I've got city by city of when they did their enforcement, what their enforcement is, what their fines are. Some cities went from a $500-a-day fine to a $25,000-a-day fine when they found that what was going into their sewage system was ruining the ability to use that sludge in an economical, beneficial way.
Within sewage and water it's appalling. I wish you could be there. It's so embarrassing. I try to find the darkest corner of the room and I sit there in a very dark suit because in that particular industry it's quite appalling. If you don't have the actual communication going on, if people are not listened to and if industry is not taken care of, if they're not given the options they need in order to participate financially, if people aren't working together, whatever time limit you give is not going to be enough because people are going to work around it or work against it and there will be problems. But if you communicate and you do it properly, I don't see any reason why it should take six years, that's for sure.
Mr Gravelle: Thank you very much for your presentations. They were both very passionate. I recognize that there's a great deal of technical expertise behind your organization and what you do but I think it's important that you expressed yourselves in the way you did today. You're right about a number of things. Certainly, and it has been mentioned before, the average person has a very difficult time, if not well nigh impossible, understanding what a bill means or what legislation means, and it's very difficult to get through, so they often don't recognize what significance there is in the changes that go forward.
I think you're also right where obviously you're making reference to the increase in airborne things that are going on and asthma and all the health-related effects that are clearly there. It seems, if anything, like there's a greater need for us, from an economic point of view because with this government that seems to be the only way to make the case, may I say, literally to base it on an economic point of view and they just might listen. So I was very impressed by what you had to say.
I want to get back to what Ms Churley was talking about too in terms of intervenor funding. I think there tends to be a mythology, at least put out by some, that there's been too much intervenor funding, that it's been spent in a way that doesn't make sense. Somehow they manage to give it a bad name when it seems to me that the only way to be fair and the only way to actually have the process have a chance is to have intervenor funding. I just want to give you another opportunity to explain the value and the need of it.
Ms Shinn: I'd just like to make a comment too. We have undertaken this as a public committee almost -- the sidebar on this one is, we hope no other municipality has to go through this again. If we can produce a track record of listing for people: "What are your options? You're a community of this size, you want to grow this much, these are your options. This will produce high-quality water, good-quality sewage solids. You can use this stuff and offset the costs of buying fertilizer and offset all those greenhouse gases" -- that's 11,000 cars' worth of CO2; we're talking half of the sludge we're burning at Metro. The benefits are huge.
If you can take an example out of an environmental assessment, and I think Barrie has done this with water conservation, and instead of every municipality throwing money after the same water conservation program and the same environmental assessment to assess the same kind of sewage treatment they want in the same kind of municipality, you maybe only have to make that investment the odd time. Then, like case histories in law, you've got the case history that says, "Okay, this year we looked at these technologies; they were well looked at, they were documented, they had some mediation, they did what they could do," that becomes part of the public record and some community that didn't know it was going to grow into four times the size it is today is going to be able to look at those documents -- that's why we do our newsletters -- and know where it can go to find out what it's going to do.
You can't do it without money. It's cost my family tens of thousands of dollars to go to conferences and things. It's cost Debra her job. We don't get a cent. I don't think this is right. I'm here as a resource. I get called by the MOEE to find their own documents. Please help us to get this thing done so that the public has a resource; and we can't do it with no money. I've just been lucky. We get money in Deutsche marks and US dollars. We've had to diversify our family income, and we do it so that I can stay alive doing this just long enough that hopefully we can finish it. We'd like to go to mediation, and that's the one part of the changes in the act I'm really looking forward to, but we do need funding.
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Ms Kyles: The cost comes out in that the beginning of this particular EA, the engineers said in their document page blah, blah, blah, there are no real alternatives to incineration. This is the most expensive technology, and operators in the States in their presentations have said, "Be very careful, because we had engineers recommending the most expensive thing and we luckily went and found other engineers and now we're doing something that's costing us a third." So from original documents that said there are no alternatives to incineration, we have two pilot projects of biosolids, which has been proven across North America to be much cheaper. We've done this through our own personal money. I paid to go to Phoenix, I paid to go to Washington, I paid to go to Seattle, and I think that's sick. I think it's really sick.
The Chair: On that compassionate note, thank you very much for appearing before us and putting the time in. It will be considered by the committee.
STONEY CREEK RESIDENTS AGAINST POLLUTION
The Chair: The next group is the Stoney Creek Residents Against Pollution, SCRAP. Mr Clark, would you come forward, please.
On your agenda you may see for 2:30, Hazardous Materials Management magazine. Mr Crittenden will be coming and will start at 3. He's late so we substituted the witness.
Mr Brad Clark: My name is Brad Clark. I'm the chairman of Stoney Creek Residents Against Pollution. To give you a bit of background as to how I find myself here before you today, for the past two years I've been arguing on behalf of the Stoney Creek Residents Against Pollution for complete and full public hearings into the Taro/Philip east quarry landfill environmental assessment in the city of Stoney Creek.
SCRAP has received and delivered over 10,000 signatures and petitions and letters opposing this landfill; 3,000 signatures were submitted specifically requiring that the minister refer the Taro EA to the Environmental Assessment Board for public hearings. We retained expert legal advice. We submitted our formal response to the minister citing the reasons why the Taro EA should be referred to a public hearing.
We cited the ministry's policies and guidelines which do not support the approval of this particular landfill, such as the Greenhat review guidelines, the engineered facilities policy and the Halton landfill criteria. We clearly demonstrated that the Taro EA did not meet the requirements of section 5.3 of the Environmental Assessment Act. But the minister, using her absolute discretion, ignored the deficiencies in the proposal and accepted it and later approved it without a hearing. Moreover, under section 33 of the Environmental Assessment Act, using her discretionary authority, the minister has precluded the Taro EA from the usually mandatory Part V EPA hearing.
The Taro EA, which has received national media attention, has been referred to by many observers as the most controversial landfill assessment ever approved by any minister without referring it to an EA board for public hearings. It is a landfill EA that is steeped in political interference, deception and misrepresentations, with a deliberate and total disregard for the legislated requirements under section 5.3 of the current EA act.
As a result of the minister's errant decision not to refer the Taro landfill to a hearing, we are compelled to comment on Bill 76 and the impact that it will have on the residents of Ontario. We are in fact compelled to sound a warning to all of our neighbours in Ontario that any broadening of the minister's absolute discretionary powers means a loss of public consultation, a tragic disregard for legislated EA content requirements and the forfeiture of our rights as citizens of Ontario to require independent public hearings before the Environmental Assessment Board.
There are a number of sections within the new act that deserve closer scrutiny and amendments. As Bill 76 stands, it is not an improvement of the current Environmental Assessment Act. It is, in our opinion, a regressive act that gives the minister sweeping, new discretionary authority under the guise of streamlining the EA process.
Our main issues and concerns -- terms of reference: Under section 6.1 of the proposed act, the proponent's application will consist of terms of reference, intended to predetermine the content of the EA which will be approved by the minister. These approved terms of reference are binding on all parties and will be incorporated into the formal EA documentation. These terms of reference, as we understand them, will be determined by the proponent in consultation "with such persons as may be interested." This section needs clarification and regulation. The scoping or focusing of the content of an EA cannot be allowed to preclude the legislated content requirements under section 6.2(2).
Furthermore, it is not clear who the proponent will be consulting with during their deliberations on proposed terms of reference. There's no direction or regulation in this regard. The statement, "with such persons as may be interested," is open to a broad interpretation. It may well be that a proponent could consult with their stockholders and their family. After all, it could be argued that both groups are interested parties. We believe that the intention of the act is public consultation. However, it is not clearly defined.
Recommendations: We believe section 6.1 should be amended in the following manner:
Public notice and comment periods must be required under section 6.1 with regard to proposed terms of reference. A regulation should be inserted that requires a minimum public comment period of 30 days through the Environmental Bill of Rights registry, as well as public notices being placed in local papers.
Under section 6.1, the proponent must notify the public of their intention to scope terms of reference for the EA. All interested parties should be consulted, including the local government, the traditional commenting agencies and the public at large.
An approval of terms of reference must be placed on the EBR registry.
Content requirements: Clearly, the act as written would allow the minister to approve terms of reference under section 6.1 that are binding -- for example, no other terms can be added at a later date -- which could and would preclude in a landfill environmental assessment the "needs analysis," "alternatives to," "alternatives of," and the "rationale." Section 6.2, formerly section 5.3 of the Environmental Assessment Act, is the very essence of an environmental assessment process and must be strengthened, not weakened. Allowing the minister to gloss over deficiencies of an environmental assessment on an absolute discretion basis is a breach of process and the public trust. Requirements should be strictly enforced and not displaced on a personal whim.
The Taro landfill decision is an example of what discretionary authority can do to an EA process. In essence, the minister dispensed with the requirements of section 5.3 for the Taro landfill. The proponent did not prove need. There is a regional landfill, which was improperly referred to as a domestic landfill in the environmental assessment, which has the largest approved capacity for industrial waste in Ontario. The Taro landfill proposal was only nine million tonnes. Furthermore, all of the objective commenting agencies agreed that there was no real or authentic alternative site comparison.
The outcome was predetermined by the proponent's comparing of the east quarry site to obviously less suitable landfill sites. This point was made by the city, the Niagara Escarpment Commission, the study group itself, the conservation authority and the residents. Just these two deficiencies alone have been sufficient for the Environmental Assessment Board to reject other landfill undertakings.
However, the environmental assessment branch glossed over these glaring deficiencies and the minister compounded the injustice by accepting the EA documentation and then approving the EA without public hearings. In essence, the minister ignored section 5.3. She dispensed with parts of the requirements of the Environmental Assessment Act. The minister with absolute discretion approved a deficient environmental assessment which would never have survived the scrutiny of an EA board hearing. Clearly, the minister's action on the Taro EA foretells the future if Bill 76 is approved without amendments.
Recommendations: We believe that section 6.2 should be amended in the following manner:
Section 6.2(2): With respect to a landfill EA, the following content requirements should be added: a minimum hydrogeological standard; an impact analysis of contingency operations, for example, dewatering; and a psychosocial impact analysis.
Section 6.2(2) should be amended to ensure that all EA content requirements are met with no exceptions or exemptions.
Section 6.2(3) should be deleted. The minister may approve terms of reference that are binding but cannot preclude, exempt or dispense the EA from the legislated EA content requirements as prescribed in section 6.2(2).
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Exemption declarations and minster's discretion: As I have stated earlier, Bill 76 is not an improvement of the EA act. The current EA act was written to protect the environment by forcing environmental assessment on undertakings that could have an irreparable impact on the environment. There was a mechanism in place whereby full public hearings by an independent body, the EA board, could be required. The EA hearing process, although cumbersome, guaranteed a fair impartial hearing of concerns and issues, verified that the content requirements of the act were met and allowed for a final decision free from political interference.
It is ironic that when the current legislation was being developed in 1974, there was a great deal of debate as to how much discretion should be given to the minister. At that time another Conservative government chose to eliminate a great deal of discretion by giving more authority to an impartial and independent tribunal known as the EA board. The government of the day felt that more emphasis should be spent on environmental planning and meeting the act and less efforts on lobbying and attempting to persuade the minister.
Bill 76 is a complete reversal. It is a regressive step where virtually all of the decisions on assessments are being placed within the absolute discretion of the minister. As we understand the proposed act, the minister can make the following decisions without any accountability for her actions: section 6(1), approve "binding terms of reference" without public consultation or comment; section 6(2)3, dispense or exempt undertakings from legislated content requirements; section 3(2), "declare" that the act, the regulations and requirements do not apply to any specific undertaking where it is in the "public interest"; sections 9(3) and 9(8), dictate the scope and length of public hearings under the EAA; section 27.1, empowered to issue "policy guidelines" that the EA board shall consider in their decision on any undertaking.
Giving the minister this amount of unprecedented discretion excludes the public from any meaningful participation in the process and removes all accountability. Ministerial decisions of this nature will invite judicial reviews, which will waste much more time and taxpayer dollars than the current EA hearing process. If a minister can change the rules or exempt undertakings from specific requirements at will, then the residents will have no choice but to challenge such decisions in court. Is that the kind of system we want? Is this working in the best interest of the public?
Evidently the government's public statement that Bill 76 will improve the environmental assessment process is nothing more than a semantic sugar coating. In fact we are witnessing a complete gutting of current environmental regulations, policies, guidelines and process.
Recommendations:
Section 3(2) should be deleted. The minister should not have the discretionary power to exempt any undertaking from the EA act, the requirements or regulations therein.
Sections 9(3) and 9(8) should be amended that the EA board has the discretion to decide scope and length of public hearings under the EAA.
Section 27.1 should be deleted. The minister should not dictate to the EA board any policies or guidelines to be followed during an EA hearing. The board should have the latitude to decide relevant case authority as determined in previous EA board decisions.
Conclusions:
Our current Environmental Assessment Act does need improving. It needs to be enforced. The policies and guidelines of the EA board should be adhered to by the environmental assessment branch. It defies logic that the EA board has the power to make decisions on undertakings; however, their decisions do not set a precedent for the EA branch to follow during EA documentation.
Environmental legislation is not about streamlining. It's not about cutting red tape. Environmental legislation is about protection. It's about securing our environment for future generations. Bill 76 has been developed and written within a vacuum. It was written in isolation from the human equation.
Environmental legislation should protect our community and residents from the risk of contamination. It should distance political decisions from environmental planning decisions. The approval of the Taro landfill EA, which did not meet the requirements of the current act, without public hearings is an ominous foreboding of things to come.
Stoney Creek Residents Against Pollution are opposed to Bill 76 as it is written. We hope you will give serious consideration to our recommendations enclosed.
Mr Pettit: I'd like to speak to you about the public involvement in the EA process. I had the opportunity to read the notes from your study group meeting from June of this year, and it seems the consensus there was that the key thing they would like to see is earlier public involvement, that there wasn't enough there, especially in your particular situation, and that a lot of the groups that were in opposition had the opportunity to participate as early back as 1992, but a lot of them didn't come forward until perhaps as late as 1994 and thereafter.
Do you think that with the introduction of the terms of reference and the guarantee of early public involvement at the beginning, that will be beneficial in the future to other groups who are in similar situations such as you were, just to help eliminate this 11th-hour finagling that sometimes goes on?
Mr Clark: First, I'd like to address the participation of our group in reference to your comment about the study group. The study group was formed by the proponent in this particular situation with the Taro landfill. This study group advertised in the local papers that they were opposed to the landfill and every month there was another article or ad in there showing that they were opposed. The residents were getting frequent documentation that showed there was opposition to the landfill coming from the study group. Then, at the 11th hour, they switched. The study group supported the proponent. So there was participation all the way through, we thought the residents were being represented and we were scammed.
To the other side point in terms of terms of reference, sitting down with the proponent, as the study group did, to scope out terms of reference early on, how can anyone in this room possibly tell me that would be a fair situation, given that the proponent has all the information, given that the proponent knows the Environmental Assessment Act, the Environmental Protection Act, the Ontario Water Resources Act and the numerous other acts that may have any pertinence to that particular proposal?
The residents have absolutely no understanding of these acts and they're taking all of the word from the proponent. The terms of reference would come down from the proponent, and the residents would be absolutely sitting back in awe and just assuming that they're being told the truth, and in fact it may not be the truth. So no, the terms of reference would serve absolutely no purpose at all in focusing or narrowing it, except it would help the proponent get away from the requirements under the act, and that's what we see that particular time frame as.
Mr Doyle: Hi, Brad. You had mentioned in your brief, and we had discussed this earlier, if a minister can change the rules or exempt undertakings from specific requirements at will, then the residents will have no choice but to challenge such decisions in court. It's that kind of system. "Is that the kind of system we want?" you had asked. Is it still, do you think, your intention to proceed with some kind of a court hearing?
Mr Clark: Let's put it this way: The way it stands at the present time, we asked for a hearing, the government denied the hearing. The requirements were there for a hearing. There is only one alternative left to the residents, and I find it extremely frustrating and tragic that the residents will have to spend hundreds and hundreds of thousands of dollars in taking the Ontario government to Divisional Court to challenge the minister's decision.
The government knows, and they have very good lawyers, that clearly the act states that the decision was made in her absolute discretion. So the difficulty is, how do we convince a Divisional Court judge to overturn a minister's absolute discretionary decision? Virtually impossible. The residents have been scammed. We have lost our opportunity to speak on this issue completely. There was no hearing. Bill 76 will do that; it will enshrine it. Bill 76 is almost the justification of the decision on the Taro landfill.
Mr Gravelle: Good afternoon, Mr Clark. Thank you very much. I think you say it all in your conclusion, in terms of what the whole process should be about. It's not about streamlining, it's not about cutting red tape, it's about protection. I think actually, ultimately, if you put anybody in a corner, any one of the members, no matter what party, they would probably individually agree it was about protection.
Having said that, there seems to be this mood to try and do some streamlining, so I just want to try something out here and ask you, presuming the process was in place, presuming there was a bill in place that actually met some of the needs, do you think there could be some streamlining, as in having processes happen more quickly or not take as long a time?
I recognize your concerns about this bill and I certainly myself, my party and our critic shared a lot of those concerns, and I think some amendments are very much needed. But I guess I wanted to just think, if we're trying to be as helpful as possible, if all the right things were in place, is there a way that it could be done more quickly?
Mr Clark: I have been absolutely amazed in the last two years at all of the time frames we've heard about five years, seven years, six years, 10 years and on and on. I'm amazed that when you go to a criminal court proceeding, you can actually get a trial done relatively quickly, in 30 days, and you're out the door and there's a decision by a judge. But in this situation, when we deal with environmental assessments, the time frame seems to go on for ever and ever.
Mr Gravelle: Exactly.
Mr Clark: I don't have the answer to that. I really don't. I'd like to know, when you're looking at the time frames, what all are you looking at? Are you looking at the proponent's initial research from the very first stage, where they say, "Let's consider a landfill or an incinerator," to the final stage after the hearing, or are you considering how long it takes for a hearing to go?
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Everyone talks about streamlining this, but no one is actually dealing with, how do you streamline it itself? What you're wanting to do is all of a sudden scope it and say, "Okay, everything's going to be done within 40 days," or 110 days, or whatever the case is. If you deal with that, if you try to scope the time frame down, one of the problems you have is that inevitably in a complex situation there will be stones that have been left unturned. I have to look at, for example, a landfill environmental assessment proceeding. A landfill will have a contaminating lifespan of 300 years by some proponents' tables, 500 years by the Interim Waste Authority, and by the EPA in the United States, 1,000 years. I ask you, is a five-year process in relation to a 1,000-year contaminating lifespan that much?
Mr Gravelle: That's precisely the point, of course. It's got an extraordinary potential impact for a very long period of time, and I think that's what really we are grappling with. If there's a way of saying the processes could be done and you would not leave any stones unturned, I think probably all of us, including yourself, would say great. We'd all like to do it more quickly.
You made some obviously very, very strong statements. You've obviously had a pretty extraordinary experience, the Stoney Creek group, yourself, so you feel very strongly.
Tell me your thoughts -- I don't think I'll be surprised -- on the intervenor funding issue. This is crucial, I believe.
Mr Clark: In very simple terms, the government turned around and allowed the intervenor funding act to die on the table. It was not revised; it simply died. The statement I heard from so many people from the government is, "We're trying to save the government money." Intervenor funding came from the proponents. I want to know where the money's being saved by the government. If the proponent is the one that is actually funding the intervenor funding act, then how is the government saving money?
The reality is that the proponent lobbied very hard to allow the IFPA to die, and that's what occurred. Without intervenor funding, the majority of residents' groups, the majority of citizens' coalitions could not in any way, shape or form afford a $350-an-hour environmental lawyer.
Mr Gravelle: I think you can certainly legitimately argue as well and make the point that a number of very important bits of information are provided as a result of the intervenor funding. It can be as good for the proponent in that sense.
Mr Clark: Generally they would argue that it's not good for the proponent, because generally it's an opposition situation.
Mr Gravelle: Some will say it's useful.
Mr Clark: You need a lawyer to proceed in this situation. We went as far as we could, over a year, without hiring a lawyer, and then in the final crunch we had no choice but to hire one from McCarthy Tétrault.
Ms Churley: Following up on the intervenor funding question, certainly we have had some proponents say they would like better clarification of that -- not all, of course, but there are some who understand that it makes sense to have citizens' groups involved from the very beginning in a knowledgeable, meaningful way because it helps them down the road, and all of us. There are other citizens' groups who, it's very clear, with intervenor funding help save whole waterways from being polluted by landfill, in one case in particular because of their intervention, which they couldn't have done without the intervenor funding.
I wanted to come back to your last page, where I think you put it in a nutshell: "It was written in isolation from the human equation." We know that most landfills -- we tend to forget this -- do not actually go to a full EA. In fact, very few things actually end up before a full EA. When something does come before a full EA board, we know it's very complex and it's there because it is very complex. There are a lot of objections, a lot of problems. I think this is where it's naïve at best to think we're going to be able to do these really complex ones really fast.
I don't think anybody objects to setting up the time frames after the documentation gets before the government. Some of those I think are not realistic, but most people again don't realize that the stage where most of the delays occur is at the government review stage. So there are time frames there.
What we're left with is all the front-end stuff and the minister's discretion through all of this and the fact that in negotiating the terms of reference, the public can be left out of that because it's not legislated in, and the guts or the heart of EA, like looking at need and alternatives, can be negotiated off the table. That to me suggests there can be long delays at the front end because of these discretionary powers and the public possibly being left out.
I'm wondering, even in terms of dealing with red tape and shortening the time frame, do you think these changes to the beginning, and discretionary powers and lack of clarity about who, what and where, the consultation during the terms of reference process, could actually slow things down at that end?
Mr Clark: My gut reaction is that terms of reference could first off be scoped without public consultation. There are no public notices in the legislation stating, "We're going to look at terms of reference for a new landfill." Let's assume the terms of reference were dealt with and the proponent got together their little study group or whoever they were going to deal with and in consultation came up with terms of reference, and the minister approved those terms of reference. Now it goes before the public. The public now knows there's this EA happening, and the terms of reference have already been scoped and we didn't know about it. The public outcry would be monstrous. Talk about trying to jam something through without public consultation. Is that going to slow it down? Ask a proponent how much public opposition can slow down a project. It's immense. It can slow it at every single turn.
If they sit down and deal in an open fashion and actually deal with the requirements of the Environmental Assessment Act, and those requirements are adhered to by the EA branch -- not glossed over, but adhered to: "This is what we need to approve this landfill; this is what you need to put it through" -- then the residents know the rules of the game and so does the proponent. As it stands now, nobody knows the rules of the game except the minister.
Ms Churley: It can change from hearing to hearing.
Mr Clark: It can change with every EA. Gee, she really enjoyed the barbecue last Sunday with one particular proponent, and next thing you know it's approved. It can change completely with each EA because there's absolutely no regulation, no guidelines, no specifications. It's up to the whim of the minister. That's outrageous in a democracy.
Ms Churley: In terms of your particular situation now, as far as you're concerned it's over and there's nothing further you can do?
Mr Clark: No. We're awaiting a legal opinion paper from our lawyers at McCarthy Tétrault to find out how exactly we would proceed by taking the Ontario government to court.
Ms Churley: Would it prejudice your case, if there is one, if I ask you how you think the new act, if passed in this form, could affect your position legally? Perhaps you can't answer that at this time.
Mr Clark: At this point, this new act, if it's passed, would not be retroactive. However, there's one section of the act where again, at the minister's discretion, she might turn around and say it does apply to a previous EA. So we really don't know. We won't know until it gets passed and we have an actual legal opinion as to what is passed.
The Chair: Thank you very much, sir, for joining us this afternoon and sharing your views with great clarity.
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GUY CRITTENDEN
The Chair: Next we have, representing the Hazardous Materials Management magazine, Mr Guy Crittenden, editor-in-chief. Thank you for coming and joining us and sharing your thoughts. You may proceed.
Mr Guy Crittenden: Please let me know if you need me to speak up at some point. I have a bit of a chest cold and I tend to mumble.
I'd like to thank the committee for this opportunity. I'd like to start by saying that I do not officially represent any special interest or stakeholder group. However, I am the publisher and editor of two Canadian trade magazines. The first is Hazardous Materials Management, which is a Canadian trade publication on pollution prevention and control. The other is a new magazine called Solid Waste Management, which addresses municipal and commercial solid waste issues.
In the past seven years, as an owner and operator of these trade magazines, I've become fairly acquainted with some of the national and regional pollution prevention issues and have written extensively on the topic and edited articles from people who are experts in the field. It's in my capacity as a member of the environmental services industry and the waste management industry that I come before you today.
I'd also like to disclose to you that for the past two years, I have participated in the Conservative Party's policy advisory council on environment, and although the opinions I'm about to express are my own, you should know that I have that affiliation and I am aware that some of the government's enthusiasm for environmental assessment reform derived from the momentum that was created out of the council.
To get straight into the subject, I'd like to make a few brief comments about things that I think are good in the legislation, but then spend most of my time on a couple of areas of concern.
I'm going to say a few positive things to counterbalance some of the negative things you might be hearing from various special interests. First of all, the government is to be commended for having the courage to address a piece of legislation which has been allowed to fester during the previous two governments. Since it was introduced under a Conservative government, it's also fitting that it should be reformed by a Conservative government.
The legislation does appear to empower the minister to bring about much-needed changes in the board. In my meetings over the years with professionals in the environmental services industry, I can tell you that one of the greatest concerns they had with the environmental assessment process was in the staffing, the technical competence and expertise of the board and what they call the culture of the board. The combination of the complexity of the process and problems on the board had led people in the environmental business to become extremely cynical. Projects were being sabotaged at the end of the process by people who knew how to manipulate the system. This cost millions of dollars to many people.
The old legislation was commonly referred to by environmental professionals as the lawyers' and consultants' welfare act, which was a nickname well deserved.
The second thing that strikes me from reading the legislation draft is that the scoping of issues and the application of time frames is extremely desirable and may prevent this process from simply being a labyrinth into which meritorious projects disappear. Waste management infrastructure is critical to the public interest, as much as other more routine forms of infrastructure, which for whatever reason seem to be less controversial. Project proponents in this area deserve to find out early on whether their projects have a chance of success.
There are other things I like about this legislation, but in the interests of time, I'd like to focus on my areas of concern. I'd also like to point out, as if it needed pointing out, that I'm not an engineer or a city planner or a lawyer, and I will not presume in my remarks or in my written comments to micro-analyse the text of the legislation or advise you about technical details. Instead, I would assume that your committee will rely on the advice of recognized experts when drafting formal changes.
My concerns are twofold. The first is economic, as it appears that the legislation, as drafted, will continue to discourage much-needed private sector investment in the waste management infrastructure of Ontario, and the second point I'll elaborate on in a minute concerns the enhanced discretionary power of the minister.
On the first point, the legislation does not appear to offer the private sector waste management companies enough business certainty to make significant investments in waste management infrastructure in Ontario. I understand that the OWMA, the Ontario Waste Management Association, and other similar groups have advised you on these matters. There's no shortage of detail on that. I've read the OWMA's suggested changes and agree with them, so that's all I'll say about that point.
But I think it is worth mentioning that if at the end of the day -- I'm just going to skip through my notes here -- we have new legislation but no significant investment by the private sector in landfills and other waste management projects, the entire exercise of environmental assessment reform is going to be pointless.
A large amount of our province's waste is exported to the United States currently. This doesn't disturb me for any ideological reasons, but it's an appalling loss of economic opportunity and tipping fee revenues which are being exported south of the border for no apparent environmental reason.
Ontario, as has been pointed out to you by others, is competing with neighbouring jurisdictions such as Michigan where the formal dimension of an EA takes just 120 days. We are now looking at a portion of Metro Toronto's residential garbage about to be exported and some of it likely to go as far away as Utah. That, to me, suggests that there is something very dysfunctional about the current process, so I urge this committee to take seriously the suggestions of the waste management industry.
The second point of concern -- this is the one that I'm less certain you've heard a lot of complaints about, at least from people who are at least philosophically sympathetic to what the party is doing and generally approve of the environmental reforms -- is the concern about the discretionary power of the Minister of Environment, which appears to be enhanced. I can understand the impetus for this. In attempting to cut through the red tape, to use the government's own jargon, it would seem desirable that the minister be able to use his or her judgement to allow proposals to move forward at critical points. They're trying to cut through various logjams that appear.
However, this benefit is also potentially a flaw, and what used to be called the lawyers' welfare act may become named the lobbyists' welfare act. In my own straw poll canvass of opinions of people in the waste management industry and the environmental services business, a very frequent comment that I've heard concerns the lack of arm's-length objectivity at the review, and there is a concern that waste management companies, if you read this legislation, are going to be even more encouraged than they already are to lobby the minister and his or her staff. In other words, there's far too much potential in this legislation as drafted for it to simply turn the whole thing into a lobbying game and to look for special favours or to look for the minister to exercise discretionary power in their favour, and that concerns me.
It's possible that people who approve of the current government will be comfortable with this, but what concerns me is if I imagine only a few years ago we had one minister, and I don't want to get too partisan here, but we did have one minister who had what you could call an ideological bent against certain technologies and approaches, and to some people in the waste management industry itself, that person's decisions seemed arbitrary and unfair, and some of these decisions led to a circumventing of the full EA process. We had the Interim Waste Authority, which cost in excess of $80 million, with no perceived extra value. We had a wet-dry facility in Guelph, which may be an interesting technology, but it came in at an exorbitant price because it was rushed through without proper consideration. So the thought of any Minister of Environment having even more arbitrary discretionary power is indeed disturbing.
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I suggest that if one carefully re-reads the draft legislation as you have it now and imagines in the future some time a biased, unscientific or anti-business Minister of Environment being presented with a project proposal, you must ask yourself, could he or she use this legislation to derail or stymie positive projects that are environmentally sound? I would answer yes. That's a pretty big concern, because the environmental assessment process is supposed to judge things on their environmental merits.
There are specific things in the draft that feed into this. I'm a supporter of the concept of mediation, but when you think of the discretionary power of the minister -- let's imagine a theoretical minister who doesn't make decisions that we might think are good ones -- that mediation section could be used and abused. Imagine a minister presented with a project that they wanted to derail. They could send it to mediation, knowing perfectly well that when you get NIMBY groups, not-in-my-backyard groups, opposed to something, you're not always going to get a complete resolution of an issue. Then that could be used as an excuse to derail a project, and the minister comes out and says, "I'm sorry, but the mediation failed," so the project is killed.
I imagine the government wants mediation to be a tool and a step towards consensus building, but right now I don't think it's nearly clear enough about how it's to used and how clear the resolution has to be. Given that scenario, it will still be possible potentially for a handful of opponents or even an individual to derail a project.
In the interests of time, I'm going to skip forward in my notes a little bit. There's a section in there about of the minister making the board beholden to certain policies, and there are other things. I'll just go right to reading the one paragraph that I think is the worst this way and is most typical of the potential problem we have here. I'm not sure of the exact annotation in the legislation, and I wouldn't suggest it's necessary for you to read this along with me, but in my copy of this, it says "Decisions on the Application," and there's a section where it talks about when the minister can refer an issue to the board:
"If under subsection 7.2(3) a person requests the minister to refer an application to the board for hearing and decision, the minister shall refer it to the board unless in his or her absolute discretion,
"(a) the minister considers the request to be frivolous or vexatious;
"(b) the minister considers a hearing to be unnecessary; or
"(c) the minister considers that a hearing may cause undue delay in determining the application."
Maybe I'm missing something here, and maybe a lawyer would go over this and say, "Oh, Guy, there are clauses and subclauses that address this," but to my reading, this is an area of concern, and frankly, if any political party were putting this forward, I would be very worried about this. We have seen from the private sector waste management business some very serious abuses of power, some very good projects stopped and some very stupid projects go forward, often at great expense to taxpayers, because of this kind of unbridled discretionary power of ministers.
I'm not sure what you're going to do as you redraft this legislation to deal with that, but I would take a very close look at paragraphs like that and I'd be saying to myself: "What if we had this imaginary hostile minister in power in the future? Is this legislation going to serve the public interest not only under this current government but for future governments?" I think it's in the long-term interests of the province that you do this once and do it right and be aware that this discretionary power is potentially a liability.
I'd like to close my remarks with the following quick analogy; I don't know how good this is, but I'll try it on. Imagine visiting Ontario and discovering that all the airports have fallen into a state of disrepair and are closing, which in Toronto is not hard to imagine. A strange piece of legislation called the Airport Safety Review Act is so complex and uncertain, so overly protective of safety that no one builds airports, so instead of flying into Toronto, people land in Buffalo, Rochester or Detroit, then pay for a truck or train trip across the border.
In this scenario, the economic losses are stunning and businesses are investing elsewhere. Airlines and would-be airport builders point out that the government's revised safety legislation will not encourage a single new airport to be built, yet it's uncertain whether the government is taking their concerns seriously. The legislation allows the minister extraordinary discretionary powers to reject projects almost out of hand.
Now substitute waste disposal facilities for airports and substitute the new environmental assessment legislation for the revised airport safety act and you have a reasonably accurate description of the current state of affairs. Please correct the situation.
That is the end of my remarks.
Mr Gravelle: Good afternoon, Mr Crittenden. I think your position is pretty clear in terms of how you think things should be done differently. It certainly is clear that you basically feel that there are some real opportunities for economic development or business growth that are not happening as a result of essentially the process that's been in place. Is that a fair summary?
Mr Crittenden: Yes. When companies consider whether to export garbage to the United States or to build infrastructure here, it's a very obvious business decision to export to the United States because of the procedural uncertainty and the logistics of building something here because of this process.
Mr Gravelle: But there are obviously various other aspects of environmental protection; I'm sure you wouldn't argue. There are all kinds of elements that we need to be very careful of. The thing I'd like to find out from you is, what do you think the balance needs to be? It seems very strongly so that you feel, aside from your concerns about the minister, which I think we share as well in terms of the minister's discretionary powers, that indeed you want to open the shop up more; in other words, make it easier. I presume that you have as much concern about the environment as -- at least, I would hope you would.
Mr Crittenden: Absolutely.
Mr Gravelle: Certainly some of the terms you use -- I know you have some semi-scathing things to say or at least some credible things to say about the "professional environmentalists" as you phrase them. Anyway, I very much would like to get a beat as to where you come from. I appreciate your being up front about the role you played in terms of the Conservative policy reform. Where is the balance? Is the balance going to be always based on, "This is going to be able to give us more business opportunities," which we all want in this province. But at what cost? That is what we're grappling with all the time, and is the human element involved? I don't know if you were here for one of our previous presenters; there are a lot of other issues at stake here.
Mr Crittenden: I was here for the previous presenter and I don't think it would be appropriate for me to critique his presentation. I'll just say that I personally reviewed the files for the Taro landfill expansion and I did approve of them personally on their technical merits. I think the public interest was well served by that expansion being allowed to continue. That is the kind of thing I would like to see more of.
But one of the things that has to be stated up front is that in none of this waste management infrastructure would anybody in my peer group or, I suspect, the government be looking at tradeoffs of environmental protection. It seems that this whole environmental assessment becomes hung up around not-in-my-backyard issues. Those are very vexatious and, even in the final form of this act, will probably still haunt and torment us.
There's nothing in what I'm proposing that should make it possible for people to build environmental projects and waste management projects that are not environmentally protective. This is not rocket science. You can go to the States and see state-of-the-art regional landfills, high-tech modern incinerators. You can see some of them in Ontario. The PRRI facility in Brampton is an incinerator that people drive by and they have no idea that they're driving by an incinerator.
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Mr Gravelle: You know not everyone shares your view, of course. That's not a surprise to you.
Mr Crittenden: I think the characterization of the United States as some kind of pollution haven, given Canada's record, has to be one of the biggest jokes of all time. We should be copying aggressively what the United States is doing. They are way ahead of us on pollution abatement and waste management. In fact, this piece of legislation, before it was revised, kept Canada about 10 and 15 years behind other countries in terms of building environmentally protective waste management infrastructure.
Ms Churley: Thank you, Mr Crittenden. Your presentation was predictable but interesting, and although some of us were aware of your association with the Conservative Party before you came in, I thank you for pointing that out, because we would have.
Mr Crittenden: There are not a lot of environmental journalists who support the Conservatives, I admit.
Ms Churley: That's true. But as I said, it's predictable but interesting in that it shows, given the presentation we had before you from a citizen who had direct involvement in the process -- yes, it was partly a NIMBY concern, which is legitimate if you're going to have a landfill in your backyard. We all acknowledge that. But there are bigger concerns as well. I think it's interesting to see the difficulty any government has in trying to reach some kind of balance, because certainly I don't support your position at all and I take some exception -- although you have every right as a free citizen -- to your characterization of Ruth Grier. Although you didn't mention her name, her particular philosophical bent is different from Brenda Elliott's and this government's and your philosophical bent.
That is one of the difficulties we have in trying to reach some kind of balance in this, but I would say that at the end of the day what we all have to keep in mind is environmental protection and finding the most viable, environmentally sound way to deal with our garbage, which is also a resource consumption issue which you cannot leave out of the equation and which unfortunately often gets left out.
My fear is that in this process and this new legislation that's coming through, in order to try to cut red tape, it will be, "Let's try to figure out what the best lining is to put in the ground and stick it in the ground and then we've got the best environmental thing for that hole in the ground but let's forget about all the rest because it's process." I think this process is fundamental to the citizens who, after all, are the taxpayers and have to live with the environmental degradation at the end of the day.
Mr Crittenden: Are you asking me a question, though?
Ms Churley: It's my time; I can use it how I choose. I hope there's time at the end. How much time do I have left?
The Chair: Two minutes.
Ms Churley: What I will get to is that there are great differences in views on how best to protect the environment. Mine is very different from yours, the NDP vision is different from the Tory vision, but there is one point we would agree on and that's the discretionary powers of the minister, because just from the purely business point of view people want certainty. Businesses want certainty and transparency because, as you say, the more discretion is in it, then, come the next election and there's a change in government and the more discretion you have, the more that uncertainty is there. My question is about your one concern about this bill, that the discretionary power gives more uncertainty down the road to a proponent who wants to get involved in anything that deals with EA in Ontario, and that should be fixed.
Mr Crittenden: Yes, that is my major concern. I'm not saying the minister should have zero discretionary power but I think this legislation could be redrafted to make it much more evident to people when and where that discretionary power kicks in and what the limits of it are. I don't know, the committee and the government are going to have to talk to people who are recognized experts in the field to find out how to tighten that up. I would not presume to know how to do it myself, but it just leaps off the page of this legislation as something that needs to be addressed before it becomes etched in stone.
Mr Galt: Thank you for your presentation and thoughtful comments and words. There's always a struggle between how much the minister should have and how much should be at arm's length etc. I point out that we're approving the terms of reference at that point and also recognizing the possibility of approval of harmonization with the Canadian Environmental Assessment Act. All the rest is essentially the same as in the old Environmental Assessment Act. Are there areas from the old one that are going to roll through into this bill? Are there specifics where you would like to see that at arm's length, and if so, what kind of body should it be at arm's length in?
Mr Crittenden: Ultimately you have an Environmental Assessment Board and then you have a hearings panel, be it the EA board holding hearings or joint board hearings. I think there's an understanding that the EA branch, the EA board and the hearings panel, if it goes to a hearing, the more the decisions can be concentrated in their hands and the less they are subject to political "interference" by an elected politician who is accountable to voters, the more of an objective arm's-length review it will be deemed to be.
What happened in the past was that the branch, the board and the hearings went out of control. They developed a culture of their own which was, one could argue, obstructionist, so there are things you can do to change the system to make that process and those three entities or stages more effective and accountable. It seems to me that the government, as one of its tools for making that happen, has increased the discretionary power of the minister at certain points. I would like to see less emphasis on that and more emphasis on other things.
There's just been too much of a history, even when the minister didn't have as much discretionary power, of it being abused. I have faith that maybe the current government will make nothing but wise decisions, but who knows what the next one will do. So you might as well write a piece of legislation that will endure over many years and not start us off on another path which we're going to have to undo in a few years.
Mrs Munro: I have one question that relates back to comments you made earlier. You mentioned, in American jurisdictions, how much further ahead they are. I just wonder if, for the record, you would care to share with us an exemplary process that you've come across in your experience.
Mr Crittenden: I'll give you one example, since we've used it already. There's a tale in our industry of Allen Fracassi, the president and CEO of Philip Environmental, having the governor send his plane to Hamilton to pick him up and fly him to Michigan to meet with the governor and to discuss why Philip Environmental should move all its business to Michigan because Michigan would assist them in moving forward with an industrial landfill and wouldn't give them the kind of grief they were getting in Ontario.
I think it could take months or years to do the preliminary work on an EA, siting a new major facility, but Michigan has laws that say the turnaround time for the government to review and improve your environmental assessment application is 90 days for this and a total of 120 days. A project proponent with a good proposal that's environmentally sound can expect that kind of turnaround. That's a state that's immediately adjacent to Ontario, and we're competing with them for business and for environmental protection business.
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The culture of American politics is such that they will do things like fly Allen Fracassi down there and talk to him. Meanwhile here, think of the years that Philip spent going through a very special version of the EA process that they designed to have the most extensive public consultation that's ever been had. Still, even with this government, they had a string of conditions attached to the approval of their landfill expansion. It's unbelievable. You have Michigan. You have other states. I think Minnesota has something that's got favourable reviews, and the list goes on. But I would take a close look at Michigan, because that's what we're up against. I think Michigan can do everything it's doing and have not only the same standards but even higher environmental standards than Ontario.
Mrs Munro: That's the second part of my question. Obviously in this process here a number of people have been very dissatisfied with the process, so I have to ask you: Are people in Michigan happy with the process? Why is it that they can accept this kind of thing happening in their communities and we have a problem?
Mr Crittenden: I would argue that Michigan and other jurisdictions have made the decision that they're never going to make everybody happy. I have no doubt that if you went to Michigan and walked around the neighbourhoods of some of the landfills you would find some people who are not thrilled about it. But the point is that needed infrastructure is built. I'd say the so-called silent majority is reasonably happy with what's going along, as long as there's no pollution occurring. This idea that we have in Ontario that we're going to create a system in which everybody is happy at the end of the day, and that there's nobody who's going to be still railing on the barricades after the decision is made, is completely unrealistic. It's never going to happen.
The Chair: Mr Crittenden, thank you kindly for being with us this afternoon and sharing your views. We appreciate your being here.
CANADIAN AUTO WORKERS
The Chair: Our final witness of the day is Cathy Walker, director of the health and safety committee, Canadian Auto Workers. Welcome.
Ms Cathy Walker: Thank you very much. The Canadian Auto Workers represents more than 150,000 members in the province of Ontario. We are concerned about the environment for two main reasons: First, our members are residents of the communities of Ontario. They and their families are affected when the environment is harmed. Second, they work in industries which may produce environmental harm, either directly from pollution emitted from their workplaces or indirectly as a result of pollution from the products of the goods they produce.
As responsible individuals, we want to ensure that our work produces as little adverse environmental impact as possible. Public polls have shown that the Ontario public places environmental protection high on their list of priorities for tough and effective government regulation. These polls reflect the opinions of our membership.
It is for these reasons that we come here today to address our concerns about Bill 76. We see this proposed piece of legislation as a retrogressive step. It will retard efforts to improve the environment.
The name of Bill 76, the Environmental Assessment and Consultation Improvement Act, is an example of double-talk. In fact, the bill does nothing to improve environmental assessment and consultation. We submit that the bill should be withdrawn. The environment would be better off with present procedures in place.
We support the submissions of the Canadian Environmental Law Association and encourage you to study carefully its thoughtful and detailed critique of Bill 76.
Harmonization: Harmonization upwards, to the most stringent level of environmental protection, is a concept we wholeheartedly endorse. We suspect, however, that the government's real plan is to harmonize downwards, to the least effective standard of protection.
We are particularly concerned that the minister would have enormous discretion to vary or dispense with any requirement under the statute when making a harmonization order and would be able to grant wholesale exemptions from the statute, all in the guise of harmonization. This is deregulation at its worst. Why have a law at all if it's so easily evaded?
How can such sweeping powers to allow avoidance of the law be contemplated without even a requirement for public notice? How can such avoidance of the law be contemplated in complete secrecy from the public eye?
Sweeping exemptions to the requirements of the law by any proponent, undertaking or class thereof makes a mockery of having requirements in the law. If ordinary residents of a community want to have their say about an exemption application, what requirements are there for comment? Surely those Ontario residents who would be affected by a proposed exemption have a right to comment on something that may adversely affect their community.
If big or small business seeks to avoid complying with the law and makes promises that certain procedures would be followed, what stipulations are there that even these lesser procedures would be followed? If the proponent chooses to ignore them, what provisions are there for invoking penalties on the proponent to force them to comply with their commitments? Surely leaving loopholes big enough to drive a truck through would put the minister in an untenable position if a community were outraged by flagrant environmental harm caused by a proponent. Would it make any sense for the minister to comment lamely that there is nothing he or she could do if the proponent violates an exemption order?
Another form of blatant deregulation is the proposed development and approval of binding terms of reference that establish the scope and direction of the environmental assessment process for particular undertakings. Once again, Bill 76 fails to provide for public input in the development of the terms of reference. This public input should be prior to the submission of the proposed terms of reference to the minister.
There are no requirements for the contents of the terms of reference. They should include all of the elements of a full environmental assessment. Here, as elsewhere, there is a need for the proponent to provide full funding for participants to ensure that public review of the terms of reference is thoughtful and well researched.
It is critical that there is full and effective consultation with the public. Community residents lived in the area before the activity which would possibly harm the environment began and will live with the consequences for decades to come. It is important that every avenue be granted to them to ensure they have the maximum opportunity to comment.
Bill 76 must be amended to ensure there are requirements for meaningful public consultation from the earliest state of environmental assessment planning and throughout the entire environmental assessment process; clear, timely and appropriate notices at all key points of the environmental assessment process; free and timely public access to all environmental assessment documentation; and mandatory participant and intervenor funding.
As long as the government and the proponent have nothing to hide, there should be no problem with these proposals for amendments to Bill 76; if they do, then the entire bill is ill-conceived and should be withdrawn in its entirety.
Whisking an ill-considered proposal through a review process will only cause trouble for the government in the long run. Once a proposal is etched in stone, it becomes much harder to meet the condemnation of public disapproval. Better to ensure that any proposals are thoughtfully considered before there is public opposition.
The ministry employs a large number of experts who have the professional expertise to consider and reject if necessary any application by a proponent which does not meet environmentally sound criteria. They need sufficient time to adequately consider environmental assessments submitted by proponents. We support the CELA proposal for a 90-day review period rather than a 45-day review period.
Mediation must never take the place of the government's obligation to do its job to protect the environment. When it is used, however, there must be requirements for the proponents to provide participant funding to ensure that the public is able to participate meaningfully in mediation.
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Once again, this new ministerial authority must be curbed by an opportunity for the public to comment. Written, published reasons why the minister has deferred or referred a matter must be given. And there must be criteria prescribed which limit the ability of the minister to defer or refer matters.
There must be a right to a hearing if it's requested from the public. When public hearings are held, there must be public notice and comment opportunities where the minister promises to vary or substitute a board decision or to require a new board hearing or to reconsider, amend or revoke a previous environmental assessment approval or conditions.
Streamlining, by any other name, is deregulation. We are opposed to it. Laws are laws. They should be followed by all Ontarians. Class environmental assessments are effectively deregulation for a particular class of industry. As an absolute minimum position, we support the CELA recommendations for fairness, public input and timeliness.
The best law in the world is useless without stringent compliance. At a minimum, if this shoddy deregulation exercise, Bill 76, becomes law, there must be provisions that allow the minister to enforce what little remains in the form of approvals, special deals, as well as the procedural and regulatory requirements of the statute.
Bill 76 must prohibit pre-approval site alteration and authorize the minister to issue restoration orders.
There are so many and varied reforms omitted from Bill 76 that it's difficult to list them all. The EAAC recommendations, however, are the minimum that should be included in the proposed statute. They include private sector application of the Environmental Assessment Act; assessing government policies and programs; cumulative effects and ecosystem approach; integration of environmental assessment and land use planning; and restoring and maintaining the EAAC itself.
We conclude by urging you to recognize how little public support there is in the province of Ontario for environmental deregulation. We urge you to withdraw this ill-conceived piece of environmental deregulation, Bill 76.
Mr Galt: Thank you for your presentation and coming before us today. Recently we had a presentation concerned about environmental protection. They thought one of the ways of protecting the environment was to try to keep landfill sites from occurring, and to do that they thought it was a good idea to have excess process, so we'd spend a whole lot of time working and would probably not end up with landfill sites. Is that the kind of philosophy you're suggesting? Do you have the same kind of thinking?
Ms Walker: Our feeling on landfill sites is that there must be much more effort devoted to reducing waste in the first instance, to reusing and recycling far more than is presently done. Certainly the blue box efforts are a first step, but there is far more that could be done. When you look at the example, for example, of West Germany where you're not allowed to package material without being required to take back that packaged material, where they have programs for recycling all parts of cars to make sure that they don't simply wind up in landfill sites, that they must be reused wherever they possibly can be, you can see that we could do far more in North America than we presently are. We'd greatly reduce our need for landfill sites.
Mrs Munro: Thank you very much for coming here today. On page 1, under "harmonization," in the second sentence you say, "We suspect, however, that the government's real plan is to harmonize downwards," and I just wondered if you could clarify that. Are you referring to federal legislation there?
Ms Walker: Unfortunately, federal legislation as well is really deeply problematic. The federal government is, I believe, trying to get out of the government business -- they've certainly told us that in a number of contexts -- and give to the provinces a number of environmental responsibilities. We think that's wrong. We think there is a role for the federal government to play in environmental protection.
But the harmonization we're particularly concerned about here really is harmonizing downwards to the standard Alberta is setting in all sorts of areas. They have really led the way à la New Zealand in trying to get out of the government business. We're deeply concerned about that. We really do believe there is a role for government and a role for law.
Your party has quite a good record in the province of Ontario, prior to the last year, of recognizing that there is a role for law and a role for leadership on the part of the provincial government, as well as the federal government, in environmental regulation.
Mr Stewart: Needless to say, you're very supportive of the present legislation. One thing bothers me a little when you're talking about public opinion. Clearly, under the present legislation the province set the process, period; the province set the criteria, period. The only time people got involved was in the waiting process of that. Due to the process, the public couldn't get involved until the final sites were announced, and then it hit the fan, became very confrontational etc.
What we're suggesting in this is that we get the public involved immediately. I have difficulty with your rationale of the old one, how great it was, when there was no public involvement at all. Everything was set by the province that we had to abide by -- this is in landfill -- whereas now there's some flexibility for the people to get involved before it is in their backyard.
Ms Walker: I would take your comment as being genuine if there was to be intervenor funding right from the beginning. If there isn't, I don't think there's much opportunity, really, for the public to become meaningfully involved.
Mr Stewart: But there wasn't under the old legislation either, for intervenor funding, until you got to the hearing. Participant funding, yes, if it happened to be done by the proponent, but not otherwise. My concern is that you want public involvement, which I believe has to happen, but it can't be done under the old legislation; it has to be done under the new.
Ms Walker: Will you commit to introducing participant funding much earlier in the process? Then I'd think you'd have a point.
Mr Stewart: I'm talking about public participation, not necessarily intervenor funding.
Mr Gravelle: Thank you very much, Ms Walker, for your presentation. You really hit the nail on the head in terms of some of the key elements that are of great concern and have been brought up by many of the presenters today and in the last week or so, certainly in terms of the whole public consultation aspect.
I think you're quite right. The bill is basically being trumpeted as one that will enshrine public consultation. That is the spin the government is putting across, when indeed it's not clear that there will be more public consultation. Your reference to the terms of reference -- "such persons as may be interested" is the term they're using in terms of the terms of reference at this stage; that's not particularly clear, so I think it needs to be clear. I have no difficulty agreeing with you.
I think you're right, too, when you say, "As long as the government and the proponent have nothing to hide, there should be no problem with these proposals for amendments to Bill 76." I think that's true.
I just want to get a greater sense from you, if I can, as to the value -- we've asked this of a lot of people and I'm going to ask you as well: the whole value of intervenor funding, participant funding, but intervenor funding in particular. What difference does it make? In other words, if you don't have it, which we don't have now, what does that mean in terms of the public's involvement in the process?
Ms Walker: Let me give you one example of something that was a very important public issue, environmental issue, which was the whole issue of, should there be uranium mining in the province of British Columbia? That issue was of importance to everyone in the province, really. There were sites all over the province where there was uranium exploration. Should the public have an opportunity to meaningfully comment in an issue like that that obviously involved the entire province, that obviously involved the possibility of environmental harm? We knew about the example of the province of Ontario where uranium mining had gone on, caused harm to workers, caused harm to the environment.
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Could citizens in small communities like Atlin, all sorts of places you've never heard of before, Clearwater, tiny little villages that were all affected by this, possibly have had any meaningful role to a royal commission of inquiry had it not been for intervenor funding? It didn't matter whether it was a citizens' group, whether it was the United Church, whether it was the medical association, whether it was the union movement. Whoever it was required some opportunity to hire people to do research, to find out what had happened in Ontario, in other provinces, to bring in people who had mined, who were experts in radiation issues, who could provide meaningful and useful comment to a royal commission.
It seems to me that's a really good model any time you look at the whole question of intervenor funding. You can't make informed comment, you can't even arrive at hearings to listen to what other people are saying, without some opportunity to have funding to be there. The public simply can't meaningfully comment otherwise.
Mr Gravelle: Exactly, and as we said before, this legislation and this area are complicated. The average person shouldn't be expected -- but if indeed the government believes the public should be involved, I think it's only fair to accept the fact that there needs to be some form of intervenor funding to enable them to do it. And there is truly an advantage to that process; there can be a great deal learned from the people who are involved in the intervenor funding. To me, it's something that needs to be looked at again.
Ms Churley: Thank you very much for your presentation. I want to come back to the issue around public involvement and participation based on the questions by Mr Stewart.
The reality is that de facto under the present EA act, there is public involvement from the very beginning. It's great to see some of that enshrined in legislation, but it's also been used as a red herring, because it gives the government an opportunity to enhance the title of their bill. But the reality is that it is a red herring, for two reasons: At the end of the day, public consultation on this bill is actually lessened because (1) there's so much more discretionary power by the minister that can shut the public participation out, and (2) the intervenor funding act has been allowed to sunset with nothing in its place, so there can be no meaningful participation in complex, complicated hearings that go before a board.
The other ones don't go before a board; most things that come up, the majority -- I don't know the percentage -- don't even come before a board. If they do, they're very complex and require a lot of expert witness and lawyer involvement.
If the government is really serious about public consultation, they will make sure there is some form of intervenor funding put back in place, participatory funding, and that public participation is enshrined in other areas of the bill, including that very important terms of reference part, and throughout in other places where the minister has a lot of discretion. That's what has to be looked at if this is truly serious, otherwise it's a farce. I thought it was really important to clarify that, because otherwise it's a shell game. It sounds good, but it's not the reality.
I wanted to ask you about what's left out of this bill. One is the intervenor funding. Because the bill will not be withdrawn, will you feel more comfortable, be satisfied to some extent, if the government, in particular in the two areas I mentioned -- public participation up front on the terms of reference, all alternatives, the full EA, no discretionary power to negotiate some of those off the table at the front end; and public participation, with intervenor funding. That would go a long way towards helping me accept this bill. Would that make a difference to you?
I could live with the time frames, by the way, once it gets to the government review, because that's where the holdup is. I would want to change some of them; some of them are unworkable. But that I can live with. It's that upfront part and other areas of the bill where the public is shut out and it's too discretionary.
Ms Walker: That's really critical. We spent a long time lobbying the federal government to withdraw Bill 162, the Regulatory Efficiency Act, which I think was an abominable piece of legislation that would have gutted not just environmental regulation but much more. I think this seeks to go in the same direction and that's wrong. Ministerial discretion ought to be fettered by laws. They ought to play by rules as well, and the public ought to know what the rules are so that no one can go in the back door and make some sort of special deal by virtue of the fact that they know who to talk to and what means there are to evade the rules.
I would agree, meaningful public participation is critical -- there's got to be intervenor funding for it to be meaningful -- and certainly there's got to be far less discretion for the minister.
The Chair: Thank you kindly for coming this afternoon and taking the time to prepare and share your views.
That was our last witness. Is there any business from the members? If not, tomorrow morning we will hopefully all arrive at the airport in North Bay and we'll begin the morning at 11. We have nine witnesses, right through until 4:30 in the afternoon, so get some good rest tonight.
There is also a subcommittee meeting on the 125 in room 110, if I might remind those people.
Ms Churley: I guess de facto I'm on the subcommittee.
Clerk of the Committee (Ms Lynn Mellor): Not for that issue.
Ms Churley: What issue is it?
Clerk of the Committee: It's the standing order 125.
The Chair: This committee has been asked to look at environmental assessment, but normally our areas are education, community and social services and health; this is an unusual area for us to look at. It's from another examination in terms of children's services.
The meeting is adjourned until tomorrow morning in North Bay.
The committee adjourned at 1558.