Under the Environmental Bill of Rights (EBR), you can appeal (i.e., challenge) government decisions about certain instruments (e.g., licences, permits and other approvals) that may affect the environment. (You cannot appeal government decisions on laws, regulations or policies.)
However, you must first get permission (i.e., seek leave) from the appropriate appellate body – usually the Environmental Review Tribunal – to appeal the decision. The appellate body will decide whether to allow you to appeal. Note: you must seek leave to appeal within 15 days after the decision is posted on the Environmental Registry. This deadline cannot be extended.
Ontarians have sought permission to appeal more than 175 decisions. For example, Ontarians have requested leave to appeal:
- A water-taking permit issued to the developers of a subdivision in Ottawa
- An approval granted to a cabinet maker in Hamilton to discharge pollutants into the air
- Amendments to a landfill’s approval to add a gas flare, a temporary flare, and an expanded well field to its operations
Even when leave was denied, some requests to appeal have prompted improvements in ministry attention and corporate conduct.
- You must show that you have an “interest” in the decision. For example, you may live near the place that the decision applies to, or you may have commented on the original proposal to issue the instrument.
- Not every decision on an instrument is eligible for appeal. The Environmental Registry notice will tell you if it is.
- You must seek leave to appeal a decision within 15 calendar days after the ministry places the decision on the Environmental Registry. This deadline cannot be extended.
- Appealing a ministry decision on an instrument takes time, money and expertise, and you may want to hire a lawyer.
The tribunal considers the following two questions in deciding whether to allow you to appeal:
- Is there good reason to believe that no reasonable person, having regard to the law and any relevant government policies, could have made the decision?
- Could the decision being appealed result in significant harm to the environment?
If the tribunal gives you permission to appeal, the appeal itself will follow.
Appealing a ministry decision on an instrument can take time, money and expertise, and you may wish to hire a lawyer The Law Society of Upper Canada’s “Law Society Referral Service” can provide you with the names of Ontario lawyers who practise environmental law. You can learn more about the Law Society Referral Service at www.lsuc.on.ca, or by calling 1-416-947-3330 or 1-800-268-8326.
For more information on how you can request permission to appeal a decision, contact the Ministry of the Environment, Conservation and Parks.
Challenging the Approvals of a Cement Plant to Burn Tires, Bones and other Wastes
In 2006, the Ministry of the Environment and Climate Change issued approvals to Lafarge Canada Inc. to burn tires, bone meal, plastics and other wastes at its cement plant in Bath, west of Kingston. Concerned about potential air, water and human health impacts, in January 2007, members of the rock band The Tragically Hip and several environmental organizations (Lake Ontario Waterkeeper, Clean Air Bath, and the Loyalist Environmental Coalition) sought – and won – the right to appeal the approvals. Lafarge, however, challenged the Environmental Review Tribunal’s decision to proceed to a hearing. The company and the ministry argued that the ministry’s decision to issue approvals was reasonable and did not require a consideration of its Statement of Environmental Values (SEV) – which includes such concepts as the precautionary principle and cumulative effects. The courts rejected these arguments.
Because these Ontarians exercised their environmental right to seek leave (permission) to appeal Lafarge’s approvals, in the end the cement plant did not go ahead with its plan to burn tires and other wastes as fuel. More importantly, the courts made clear that ministries must consider their SEVs when issuing approvals, permits and other instruments prescribed under the Environmental Bill of Rights.