Featured Contributor Erin Garbett: Public Comments Under Ontario’s Environmental Bill Of Rights Made Easy

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Hi!  My name is Erin and I’m in my second year of law school. I’m pretty set on a career in environmental law, and I believe that one of the best things the legal community can do to promote environmentalism, is to promote legal mechanisms to the non-legal community. When it comes to environmental issues, the law is like a box of tools.  Some are better for the task at hand than others, and the more you know about them, the more likely you are to pick the best one right off the bat.

With that, I now endeavour to discuss (at a very cursory level) a part of one such tool: Ontario’s Environmental Bill of Rights (EBR). This is a piece of legislation that many will have heard of; but of those many, few will understand what it is. The EBR has often been described as a paper tiger; as the preamble describes a substantive right to a healthy environment, but the legislation itself provides only procedural rights. However, it remains that the EBR provides multiple methods for everyone to participate in decisions that have the potential to cause significant environmental impacts in Ontario.

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More specifically, I would like to review the Environmental Registry (ER) and how to comment on proposed government actions. Other forms of public participation in the EBR include: application for review of a policy, act, regulation, or instrument, application to investigate possible contraventions of environmentally significant acts, regulations, or instruments (note: in this context “instruments” generally refers to something like a permit or a license), the ability to sue for public nuisance without special damages, and whistleblower protections. I’m choosing to focus on the ER and public comments, mainly because it involves the smallest amount of time and energy commitment of the mechanisms included in the EBR.

So, what is this Environmental Registry and how does one public comment? Well, the ER is found at this website: https://www.ebr.gov.on.ca/ERS-WEB-External/. Once you get there, you will find yourself looking at a very simple website with a search box in the centre, and not much else. Fret not! The information may appear inaccessible—and it isn’t the easiest to get to—but it is there. You can use the search box if you know generally what you’re looking for, or are looking for proposals relevant to a specific topic or area. You can also click “enter site” to go to the ER’s main page, where you can seen the most viewed notices over the last 90 days, recently posted proposals, FAQs, further links, and more.

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Once you have found a proposal that is of interest, click on it. You will be brought to the full notice, including: the address of the proponent, the instrument type, a description of the instrument, the deadline to submit comments (in almost all cases notices must be posted for at least 30 days), who to contact for further information, and sometimes links to further information. There will be a button to push to submit a comment through the ER’s online system, and an address if you’d prefer to submit a comment through snail mail. If you’re so industrious, you can sign up for an account on the ER, you can then add individual notices to a watch list and save search criteria for future use.

Don’t feel like searching the ER every day for new notices?  Interested in notices that relate to particular subject matter (such as ground water, mining, brownfields, etc.) or place?  The Environmental Commissioner of Ontario (ECO) has an email alert service (http://alerts.ecoissues.ca) that you can sign up for. Once you’ve signed up, you can add key words of phrases; you will then receive emails when a new notice related to those keywords is posted. You can also find out about controversial and/or significant proposals from local and provincial environmental organizations, and from larger public interest groups.

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A commonly misunderstood aspect of the ER and public comments is that they are not a vote in support or in opposition of the proposed action. Although the possibility exists that a decision will be influenced by a substantial number of form comments written by an organization, the ECO recommends individual comments that provide “original insight, observations and recommendations.”  The cynical part of me says that they are pushing for fewer form comments to lighten their work load, while the more optimistic part says that ECO is encouraging better comments. Perhaps it is a bit of both. At the end of the day, do what is best for you; in either case you are participating in the decision!

Once you’ve made your comment, it is largely the end of the story. The legislation states that ministers must “take every reasonable step” to ensure that all received comments relevant to the proposal are considered, in practice that means that when a decision is posted, a general overview of how comments were treated and changes (if any) will be included. A selection of comments will be available online with the decision, and most comments are available to the public through the listed contact person.

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It isn’t likely that one comment (or group of comments), no matter how eloquently and persuasively written, will convince the ministry to go back on, or fundamentally change, a proposed policy, act, regulation, or instrument, however, there have been cases where the ministry has made important changes based on public comments. For example, significant improvements were made to the Toxic Reduction Act, 2009 and the Clean Water Act, 2006 based on comments submitted by the public.

There are many valid criticisms of the EBR, including the public commenting process. Not all ministries in Ontario fall under the purview of the EBR, and those that do must only post notice of a proposal if it is “environmentally significant,” which is decided by the appropriate ministry on a case-by-case basis (although the EBR does offer some guidance). There is little transparency or accountability involved in how comments are considered. These are significant flaws, but it exists, and as Ecojustice writes, it provides “a very sound foundation for continuous improvement.” It gives those who care about environmental decisions in Ontario a voice that only stays silent if you do. So get out there and comment!

Check out eco.on.ca/2013-the-ebr-and-you-guidebook/ to learn more about comments, the ER, and other aspects the EBR.

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Figure 1- Source: mytoba.ca

 

1457505_10201717968864836_147627819_nWritten by Erin Garbett.  Check out more of her articles here: http://obiter-dicta.ca/author/erin-garbett/