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Delayed Decisions Deny EBR Applicants Their Environmental Rights

EBR-Proclamation-Updated-300x231The Environmental Bill of Rights, 1993 (EBR) gives all Ontarians the right to ask the government to review certain environmental laws, regulations, policies and instruments. This is called an “application for review.” If the responsible minister decides that it is in the public interest to take on a requested review, the review must be conducted “within a reasonable time.”

Apparently, the Ministry of the Environment and Climate Change (MOECC) thinks that it’s reasonable to make members of the public wait many years for a decision. The ECO disagrees. Here’s the story:

In 2010, the ECO received two separate applications asking the MOECC to undertake reviews involving the EBR itself. The first application, submitted in January 2010, requested that the ministry consider the need for an EBR regulation that would allow for a “stay” of a government decision to grant an approval, licence or other instrument that affects the environment when someone has applied for leave to appeal (i.e., challenge) that decision. A stay would suspend any activities permitted by the instrument while the leave to appeal application is being considered. The applicants argued that the ability to stay decisions is necessary to avoid the significant harm to the environment that could occur while a decision on a leave to appeal application is pending.

The second application, submitted in December 2010, asked the MOECC to undertake a formal public review of the entire EBR and its regulations, and to solicit input on ways that the law could be changed to better achieve its broad purposes. The applicants asserted that such a review is necessary to bring the EBR in step with changing environmental priorities and societal values.

The MOECC agreed to undertake both reviews together, but years have passed since then without a decision; when last contacted by the ECO, the ministry could not even provide an estimated timeframe for completion of the review. While “within a reasonable time” leaves significant wiggle room, it is beyond any reasonable interpretation of that deadline for a ministry to take half a decade (and counting) to provide applicants with a final decision. Disappointingly, the ECO has reported several times on unreasonable delays in completing EBR reviews, most recently in Part 1.4 of our 2014/2015 Annual Report.

When the MOECC first agreed to undertake the reviews requested in these applications, the ECO had high hopes that it would lead to a stronger EBR and renewed public engagement in environmental decision making (see our 2010/2011 Annual Report (Part 7.1)). At a conference to celebrate the EBR’s 20th anniversary in early 2014, attendees were eager to discuss potential reforms that would make the EBR a more effective tool for protecting the environment and encouraging public participation in environmental issues.

Today, as the end to 2015 fast approaches, there is still no evidence that EBR reform is on the horizon. And the Ontarians who exercised their EBR rights by submitting these applications for review are left waiting for answers.

You can find more details about these outstanding EBR applications for review in Section 2 of the Supplement to the ECO’s 2014/2015 Annual Report.

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