The Environmental Bill of Rights at 20:
Achievements of the EBR
Hart House
February 12, 2014
Achievements of the EBR
The EBR is designed to provide:
• Public Participation
• Transparency
• Accountability
Achievements of the EBR
The EBR allows:
 public participation in
government
environmental
decision-making
 increased access to
tribunals/courts
Achievements of the EBR
Tools that work:
 The Environmental Registry
 Applications for Review and Investigation
 Appeals
 Environmental Commissioner’s Office
The Environmental Registry:
 A searchable on-line database
 EBR requires minimum 30-day public comment period
www.ebr.gov.on.ca
 The Ministry of the Environment maintains the
Registry
 Prescribed ministries consult the public using the
Registry
The Environmental Registry
 Shows you what
ministries are working on
 Lets you comment before
decisions are made
 Shows you the comments
of other people
 Shows you how the
ministry considered public
comments
The Environmental Registry
 A huge historical database
 Over 30,000 proposals (1995-now)
The Environmental Registry
An average year:
• ~2,500 proposals posted
• ~80 proposals for policies, acts and regs.
The Environmental Registry
The public does comment:
2011 examples
13
244
19
The Environmental Registry
The public does comment:
2012 examples
42
103
193
The Environmental Registry
The public does comment:
2013 examples
51
10,034
178
The Environmental Registry
Enough time to comment:
% of policies, acts and regs with 45 days or more
as comment period:
 2009/2010:
 2010/2011:
 2011/2012:
74%
90%
81%
The Environmental Registry
Enough information to comment:
Most proposals for policies, act and regs do provide:
 ministry contact name, phone, and address
 hyper-text links to background info
The Environmental Registry
We do learn how most stories end:
Percent of policies, acts and regs with decisions
posted:
90%
(1994 – 2012)
The Environmental Registry
Do public comments influence decisions?
The Environmental Registry
Public comments do influence decisions:
e.g. Source Protection Plans, Clean Water Act
86
Result: MOE:
• clarified text of
provisions
• broadened scope for
source protection plans
• enhanced provisions for
consultations with First
Nations
The Environmental Registry
Public comments do influence decisions:
e.g. Habitat policy under Endangered Species Act
21
Result:
• MNR made
substantial
changes to
framework for
characterizing
habitat
The Environmental Registry
Public comments do influence decisions:
e.g. Reg. for waste pharmaceuticals and sharps
Result: MOE
• refined definitions of
“sharps” and
“pharmaceuticals”
33
• required producers to
report on how their
number of collection
locations improves over
time
The Environmental Registry
Overall, the Registry:
 Offers a lot of information
 Is used by the public
 Is used by a range of ministries
 Gives the public enough information
 Gives the public enough time to comment
The Environmental Registry
Overall, the Registry works.
Applications for Review
and Investigation
That environmental
policy isn’t working!
That Act needs to
be updated to
ensure
environmental
protection!
There really ought
to be an
environmental law
about that!
Applications for Review
 You can request a review of an existing
provincial policy, Act, regulation or instrument
(e.g., permit)
The Mining Act
Road salt exemption
A Permit to Take Water
Applications for Review
 You can also request a review of the need for a
new Act, regulation or policy
Protection for the Waterloo
Moraine
Land use planning system
for northern Ontario
Applications for Review
 The ECO receives about 20 applications for review
per year
MMAH (9%)
Ministry of Natural
Resources (26%)
MNDM (5%)
ENG (4%)
OMAF (1%)
Ministry of the
Environment (54%)
MCS (1%)
Applications for Review - Issues
Water quality (24%)
Applications for Review - Issues
Land use planning (18%)
Applications for Review - Issues
Fish and wildlife management (17%)
Applications for Review - Issues
Waste management (15%)
Applications for Review - Issues
10%
11%
10%
10%
Applications for Review - Results
Ministry action
taken (79%)
For example:
• New legislation
• Amendments to regulations
• Changes to approvals
Applications for Review - Results
Denied but
ministry action
taken (32%)
Denied
(80%)
Application for Review - Example
REQUESTED
Review of the Aggregate
Resources Act
Ministry of Natural
Resources
• New reporting requirements for aggregate
operators
• New powers for ministry inspectors
• Expanded the Act’s geographic scope
• Increased fees/royalties for operators
Application for Review - Example
REQUESTED
New regulation to make
clothesline restrictions invalid
Ministry of
Energy
Restrictive covenants and
agreements that ban the use of
outdoor clotheslines are illegal
Applications for Investigation
 If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Applications for Investigation
 If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Noise, vibration or air
emissions
Applications for Investigation
 If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Damage to the habitat of
an endangered species
Applications for Investigation
 If you believe someone has contravened or violated
a prescribed Act, regulation or instrument, you can
ask the government to investigate
Leachate from a landfill
Applications for Investigation
 The ECO receives about 10 applications for
investigation per year
Ministry of Natural
Resources (19%)
Ministry of the
Environment
(80%)
Technical
Standards &
Safety Authority
(1%)
Applications for Investigation
 Legislation most cited:
 Environmental Protection Act (65%)

Section 14 – Prohibits discharge of a contaminant into the
natural environment that causes an adverse effect, including:
 Injury or damage to property or plant/animal life
 Harm or material discomfort
 Loss of enjoyment of normal use of property
 Interference with normal conduct of business
Applications for Investigation
 Legislation most cited:
 Environmental Protection Act (65%)
 Ontario Water Resources Act (34%)
 Environmental Assessment Act (14%)
 Fisheries Act (10%)
Applications for Investigation - Results
Undertaken
(24%)
Applications for Investigation - Results
Ministry action
taken (74%)
For example:
• Laying of charges
• Provincial Officer’s
Order
Applications for Investigation - Results
Denied but
ministry action
still taken (35%)
Denied
(76%)
Application for Investigation - Example
REQUESTED
Investigation of noise from
agricultural mill
Ministry of the
Environment
• Charges laid against company under the
Environmental Protection Act
• Company fined $15,000 and required to
take noise abatement measures
Application for Investigation - Example
REQUESTED
Investigation of sewage issues
in provincial parks
Ministry of the
Environment
• Ministry requested that specific parks
address issues of non-compliance
• Provincial Officer followed-up to ensure
compliance
• Ministry encouraged parks to enhance
sewage management practices
EBR Applications - Oversight
 The Environmental Commissioner reviews and
reports on ministries’ handling of applications
EBR Applications
 Over the past 20 years, Ontarians have submitted:
 650 applications for review and 237 applications for
investigation
How to Submit an EBR
Application
www.eco.on.ca
Appeal Rights under the EBR
Appeal Rights under the EBR
 EBR creates a right for individuals to appeal certain
ministry decisions to issue an instrument to another
person or business
EBR Appeals
 EBR creates a right for individuals to appeal certain
ministry decisions to issue an instrument to another
person or business
 Where the instrument holder itself has a direct
right to appeal
 Any resident of Ontario can also appeal
Third-Party Appeal Rights
 Another important tool designed to provide:
 Public involvement
 Ensure accountability
Third-Party Appeals
 Not an automatic right to appeal
 Must first be granted “leave” (permission) to appeal
 Two-part test – must demonstrate:
 No reasonable person could have made the decision
 Decision could result in significant environmental harm
Third-Party Appeal Process
 Obtaining “leave” is a hurdle
 But a feasible one (roughly 1 in 5 succeed)
Third Party Appeals
 Those who do overcome the hurdle
get to present their full arguments
to the Tribunal
 In most cases, achieve some level
of success (often the addition of
conditions to the approval)
Third Party Appeals
 Best used legal tool under the EBR
 Over 150 requests for leave to appeal since EBR was
enacted (about 100 instruments)
 ~6 instruments in an average year
 ECO posts summaries of each appeal on the
Environmental Registry, and highlights some in our
Annual Report
What’s being appealed?
 About 95% of EBR leave to appeals are challenging
MOE decisions on:
 Permits to Take Water (31%)
 Air approvals (28%)
Air
Approval
Waste
Approval
 Waste approvals (21%)
 Sewage approvals (15%)
Water
Takings
Sewage
Approval
Other
Appeal – Example
MOE granted a Permit to Take
Water to a hydropower operator
An individual requested leave to
appeal raising several grounds:
 River was “at risk”; further studies were
needed to assess impacts of dam on river
 Water temperatures below dam too warm
for fish
 10-year duration of PTTW too long
Appeal – Example
Outcome:
 Environmental Review Tribunal
granted leave to appeal on all grounds
 Parties engaged in mediation
 Reached settlement – changes to the PTTW:
 Duration 5 years, not 10 years
 New clauses about dam operation
 Record-keeping requirements
 Run-of-the-river flow to be restored ASAP after power
interruptions
Environmental Commissioner of Ontario
• Another tool that works!
Environmental Commissioner of Ontario
• Review compliance of 14 ministries with the
various requirements of the EBR
• Review how well the Environmental Registry
is working
• Present Annual Reports on the above – and
much more – to the legislature
• Education and Outreach
Achievements of the EBR
These tools work!
 The Environmental Registry
 Applications for Review and Investigation
 Appeals
 Environmental Commissioner’s Office
Achievements of the EBR
Thank you
for 20 great years!
Michelle Kassel, Senior Manager, Policy Analysis
Tyler Schulz, Senior Policy and Decision Analyst
Ellen Schwartzel, Deputy Commissioner