On April 5, 2004, the Ontario government announced its intention to set up an advisory panel to develop proposals on means of improving the environmental assessment (EA) process for waste management facilities, transit and transportation projects and clean energy facilities. However, formation of the advisory panel was part of a larger announcement relating to the development of a waste management strategy and, as such, a significant part of the panel’s mandate involved a review of the EA process as it pertains to waste management facilities.
Specifically, development of new waste management systems and facilities for diversion or disposal require lead time for planning, development, approvals and implementation, and also require a significant period of time to obtain necessary government approvals. The government acknowledged a need to improve the quality and timeliness of decision-making associated with the process. The Ministry of the Environment agreed that certain other sectors could benefit from this review as well.
The panel and report
The individuals appointed to the panel were intended to represent municipal, waste management and clean energy sectors, the environmental community, academics, the consulting industry and the legal community. The panel’s terms of reference were to improve the environmental assessment process by providing clear and prescriptive rules for environmental planning and decision-making, and to rebalance decision-making in environmental assessment by setting out clear roles for participants in the process. One of the key and overriding objectives was to refocus the process so that the level of review and assessment of each undertaking is consistent with the proposal’s potential environmental impact as set out in the applicable legislation, the Environmental Assessment Act.
On March 15, 2005, the panel submitted its report and recommendations to the environment minister. The report, entitled “Improving Environmental Assessment in Ontario: A Framework for Reform,” contains more than forty recommendations. The report has been published to obtain input from stakeholders and interested parties; the deadline for comments is July 4, 2005.
The report concluded that the Environmental Assessment Act (EAA) in Ontario is fundamentally sound, but did identify a significant disconnect between the provisions of the EAA and the actual delivery of Ontario’s environmental assessment program. Specifically, the report concluded that there are significant policy gaps, procedural inconsistencies and administrative shortcomings that need to be addressed as soon as possible. As such, the bulk of the report’s recommendations involve regulatory, policy and administrative reforms.
In preparing its report, the panel acknowledged that its recommendations would entail competing considerations and tensions within the EA process. In particular, there is a need for a process that is expeditious and efficient, without unduly delaying necessary projects. However, the process must be fulsome and involve consultation with various stakeholders which can, by its nature, slow down the progress of undertakings.
The panel recommended the development of a policy document by the environment ministry that would include: guiding principles intended to achieve the objectives of sustainability; a clear, consistent, predictable and timely process; transparency; public participation; and, an integrated approach. The panel also included as objectives the precautionary principle, the ecosystem approach, and environmental protection.
The panel recommended the establishment of sector-specific working groups to develop EA procedures for different sectors that are clear, consistent, predictable and timely. Specifically, the panel noted that the planning, consultation and documentation requirements for an EA must reflect the environmental benefits and risks associated with the undertaking. The panel also recommended the establishment of EA application fees, with the revenue from such applications to be directed to designated EA activities.
One of the panel’s most interesting recommendations involves the establishment of an independent provincial advisory body that would provide expert advice and solicit public views on various environmental assessment matters, such as community acceptance of proposed undertakings. While the intent associated with this recommendation is clear, it is uncertain how this advisory body might assist in achieving the overall objectives stated by the panel without compromising some of its key goals.
Another interesting recommendation relates to enforcement and involves the ministry expanding its EA monitoring, inspection and training activities to ensure compliance with the legislation and the terms and conditions within approvals.
One of the recommendations, if followed, will certainly improve access to information. The panel recommends the establishment of an enhanced environmental assessment website or online registry to facilitate proponent and public access to EA documents and project status information.
It will be interesting to follow which of the recommendations by the panel are implemented by the province, and in what manner. Appropriate implementation of the recommendations could enhance and improve a process, the effectiveness of which has been the subject of considerable debate. (See cover story.) Conversely, if the recommendations are not implemented effectively, EA in Ontario could become even more unwieldy than it is currently.
Rosalind Cooper, LL.B. is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in Toronto, Ontario. E-mail Rosalind at firstname.lastname@example.org