Appendix 1 ‑ Public Participation for Environmental Protection in Ontario Prior to the EBR

Environmental Protection Statutes

In Ontario, prior to (and continuing, to a degree, with) the EBR there were two main statutes governing environmental protection. The most comprehensive is the Environmental Protection Act (EPA), in which the Ministry of Environment (MOE) is delegated broad authority including extensive powers to set various regulatory standards governing activities that may adversely affect the natural environment; authority to issue a wide range of approvals for activities that may result in the discharge of a contaminant into the air or on land; and broad inspection, abatement and enforcement powers that include the authority to issue stop orders and clean-up orders. The Ontario Water Resources Act (OWRA) establishes a similar scheme to regulate activities that may result in the discharge of a contaminant into the province's waterways.

Prior to the EBR, participatory rights in the province's environmental protection statutes were uneven.  Generally, the level of public involvement in a particular decision was in the complete discretion of the Ministry.

During the 1970s, the Ministry of Environment's consultative practices varied from region to region, and would often be determined for each individual case.  In many instances, the public was not consulted at all about a decision, and the approval or administrative order would be the product of negotiations between the regulated party and the Ministry. In the 1980s, the public grew increasingly dissatisfied with the closed-door negotiations that had marked environmental decision-making in the 1970s. Many felt they had no way of determining whether the Ministry was indeed fulfilling its statutory mandate, and whether the decisions being made were advancing the interests of environmental protection. Therefore, they demanded that decision-making processes be opened up to include environmental non-government organizations (ENGOs) and the public.

In response, the MOE promulgated various non-binding policies meant to ensure more open and even consultative practices in decision making. These policies, however, continued to reserve a great deal of discretion for the Ministry to determine the most appropriate form and extent of consultation for each particular case.   For example, an MOE policy that was in effect between February 1981 and June 1985 required that the MOE publish notice of important program approvals in local newspapers and the Ontario Gazette.^[1] This requirement was abandoned in 1985 because of the cost and complexity associated with publishing notices of the increased number of approvals being issued by the MOE and because of poor public response to and a related lack of interest in the notices.

In 1986, new MOE policies governing public consultation^[2] and the abatement of serious pollution problems and related major program approvals were developed.^[3]  This revised policy was described in 1989 by one environmental lawyer in the following terms:

[If the MOE and the polluter are unable to agree on how to respond to the problem], MOE [a]batement staff will prepare a written review of the polluter’s report ...  The Director of the [Approvals Branch] will then hold a public information session, receive written comments from the public with 30 days of the session, and then “take a course of action” in the form of a recommendation.

The Director, after consulting with the Deputy Minister of the Environment, will sign the program approval if there are no intervening political reasons and if no significant alternative proposals are received in writing within 30 days of his recommendation.  If a significant alternative proposal is received, then he will conduct a second public information session, and if in his opinion a significant change in the abatement program becomes necessary, he will proceed to renegotiate the program with the polluter.  Once a revised abatement program is produced, all of the steps taken up to this point are to be repeated if required by the Director.^[4]

Poch goes on to outline that the proposed approval, the Director’s recommendation as to the proposed course of action, and any decision to renegotiate were made available at the Ministry regional, district and head offices while the public’s written comments, proposed significant alternative proposals and any revised abatement programs were made available to the local MOE office.  In addition, the proposed approval usually was sent to local MPPs and regional and local municipal offices.  He adds that [u]nfortunately, the availability of these materials to the public [was] usually not widely publicized, and as such, this distribution process was probably not very beneficial to the public.^[5]

The pre-EBR MOE policy governing public consultation on the issuance of a control document, such as a clean-up order, sets out various forms of notice a Director may use (e.g., newspapers, door-to-door fliers), various forms of consultation (e.g., written submissions, public meetings) and, finally, the criteria the Director should have regard to in deciding the most appropriate consultation procedure in the circumstances.^[6] (See Attachment A)   An example of the type of public consultation program recommended for control orders for major industries issued by the MOE is provided in a 1989 kit on public consultation developed by the MOE Communications Branch staff.^[7]  (See Attachment B)  In summary, the MOE contemplated a lengthy and complex serious of meetings and discussions between the MOE, the affected industry and the community with the following steps:

1.   Preparation of a Provincial Officer’s Report

2.   Making the Report available to the Public

3.   Discussions between the MOE, Interested Stakeholders and the Public

4.   Advertising the Open House

5.   Making the Information Available by Providing an Information Kit in advance of the Open House

6.    MOE and Company sponsor an Open House: an MOE-Company Joint Venture

7.    Public Meeting chaired by local respected person to hear public concerns

8.    Public provided 15 working days to submit written comments; draft order revised on the basis of the comments

9.    MOE provides Company with Notice of Intent to Issue Control Order and provides notification to the public as the Director “considers appropriate”

10.   When final control order issued, a news release which notes any changes as a result of public comments is issued.  MOE sends the release and the control order to everyone who submitted written comments.

In part, the complexity of the recommended process reflected the difficulties that the MOE had faced in Terrace Bay in 1987 when then Minister Jim Bradley had attempted to impose a control order on a large pulp mill operated by Kimberly-Clark.   In that case, the company threatened to close the mill in response to the control order, and local residents responded angrily because the mill was the major employer in the community.^[8]

What is unclear is how many times the ministry followed this lengthy process when it proposed to issue control orders on major companies.  (In 1992 estimates prepared by MOE staff to determine workload implications of EBR implementation, the Approvals Branch estimated that it issued about 20 each year. Between November 15, 1994 and December 31, 1997, the MOE issued nine control orders.^[9])  MOE costs for these types of consultation processes on major control orders exceeded $30,000 in some instances.^[10]  By the early 1990s, budget cuts at the MOE meant that these consultation initiatives had to be scaled back significantly.

Meanwhile, MOE consultations on hundreds of approval decisions continued to vary considerably, depending on a range of factors such as whether new technology was involved, the extent of the harm that would result, whether local residents were concerned and political sensitivity.

In 1990, an Ontario Court (General Division) judicial review decision clarified that neighbouring landowners were entitled to notice and an opportunity to comment on certificates of approval for proposed recycling facilities on adjacent lands.^[11]  In this case, often referred to as Matthews and Mangilardi after the names of landowners involved, the applicant owned 78 acres of industrial land, and had applied for various approvals to permit high density residential and mixed industrial and commercial uses.  These lands abutted 1.94 acre property for which a C of A had been granted of a waste transfer and recycling facility.  The owner of the land where the proposed facility was to be situated then acquired another nearby property, 4.4 acres in size, where he intended to site another waste transfer and recycling facility and applied for a C of A for the second site.  In April 1990, solicitors for the applicants wrote to the Minister to request a public hearing on the C of A for the new facility at the second property.  At the time, the applicable Ministry policy on discretionary hearings for waste sites^[12] required a Regional office to hold a hearing under certain conditions (e.g. there were a significant number of requests from the public or a request from the local municipality) were met.

In October 1990, the MOE decided not to hold a hearing on the proposed facility.  Madame Justice Marie Corbett of the Ontario Court’s General Division found that a decision to issue a C of A is a matter affecting the interests and property rights of neighboring and abutting landowners, whether or not the land was similarly zoned.  The landowners had not received notice for either proposed facility, and they were entitled to both notice and an opportunity to be heard.  However, the court did not order a public hearing.

In response to this decision, the MOE began to modify its practices so that notice and an opportunity to comment on certain proposed Cs of A were regularly provided to nearby landowners.  In addition, MOE staff were urged to consider the principles of the decision in developing consultation plans for control orders.  However, variations in practice persisted; some regions adopted good practices while others did not.  For example, the MOE developed a policy that a proponent would be required to provide notice and an opportunity to comment to adjacent landowners within 400 metres of the proposed site when a municipality or private proponent sought to construct and operate a waste transfer station or a mobile facility to collect household hazardous waste and a public hearing under the EPA was not required under the existing policy.  However, this court decision did not require the MOE to provide notice to the entire community.

With the passage of the EBR, the policies on public consultation on instruments such as control orders and facility approvals that existed prior to its passage were superceded by the minimum legislated standards set out in the EBR.  In 1994, the MOE undertook a significant revamping of its policies and guidelines so that conflicts between previous ministry policies and the EBR standards would be reduced and/or eliminated.   The updated version of the MOE policy manual, retitled as the Manual of Guidelines and Procedures, was released in December 1994.^[13]   A key feature of the manual was that MOE consultation requirements for certain instruments like control orders which went beyond the minimum EBR requirements were eliminated.  Moreover, new policies in the MOE’s EBR manuals indicating how the new discretionary provisions of the EBR with respect to bump-ups, public meetings and mediation are to be applied by the MOE staff, are vague and merely repeat the requirements of the EBR.^[14]  In absence of more detailed policies and in the current climate of fiscal restraint, it is understandable that MOE staff are reluctant to apply the features of the EBR in a manner that would encourage greater public input on certain decisions.

Although the EBR was intended as the minimum standard for public consultation, it appears that, in some cases, MOE harmonization of the standards may have lowered levels of public participation, especially when current procedures are compared with the lengthy and complex processes described by Poch and outlined in the MOE’s 1991 Compliance Policy.

To summarize, unlike American environmental protection statutes, the EPA and OWRA do not impose a minimum level of consultation that must be undertaken by the Ministry prior to making a decision. In other words, the public had no statutory guarantees that it will be consulted in decisions like those involving the Director's issuance of a control order.  (This continues to be the case for certain decisions that are not caught by the EBR such as emergency approvals.)