Appendix 3

Summaries of ECO Annual and Special Reports

I. Annual Reports

ECO’s First Annual Report

The ECO’s first annual report reviews how well the government complied with the EBR during the period between December 14, 1993, and December 31, 1995, the initial start-up period.   Released on June 19, 1996, this report Opening the Doors to Environmental Decision Making is also a  baseline review against which future government performance will be judged. 

One of the most important aspects of the ECO’s mandate is the review of the environmental decisions made by ministries after they consider public comments made on their proposals posted on the Environmental Registry.  This review allows the ECO to examine a ministry’s compliance with its SEV and to assess whether the ministry is applying the purposes of the EBR and integrating environmental, economic, scientific and social factors in its decision making.  The ECO’s first annual report examined a number of posted decisions including ones made on the new incineration regulations and policies.  The report also reviews a number of decisions that were not posted on the Registry but that were identified as environmentally significant.  Examples include the reduction or elimination of a number of environmentally beneficial programs by the Ministries of Environment, Natural Resources, Transportation, and Agriculture, Food and Rural Affairs.

The report also noted that to participate effectively in decision making, the public needs complete and accurate Registry information.  Indeed, the quality of the information affects the public’s ability to comment on proposals and, if necessary, to use other rights, such as the right to appeal certain government decisions on licences and permits.^[1]

In her first annual report, the Commissioner also reviewed a number of applications for Investigations and Reviews that were made to the MOE.  Based on her review, she made recommendations about drinking water, air pollution, groundwater resources and landfill discharges.

ECO’s Second Annual Report

The ECO’s second annual report,^[2] titled Keep The Doors Open To Environmental Decision Making, reviews how well the government complied with the EBR during the period between January 1, 1996, and December 31, 1996.  Commissioner Ligeti concluded that hasty cutbacks, many of which were made behind closed doors, and a lack of environmental vision marked ministries’ agenda in 1996.

The report states that, throughout 1996, the ministries demonstrated an alarming lack of environmental vision, failing to put their stated environmental values into action.  Instead, their activities were characterized by omnibus-style legislation, cuts to environmental programs and the shift of environmental responsibilities to municipalities and the private sector.  The extent and pace of change were daunting.

The report notes that most of those decisions were made without fully assessing their potential environmental effects and with very little commitment to environmental monitoring and reporting, or to maintaining and increasing enforcement of environmental standards.  There also was little commitment made to help or supervise municipalities, the private sector or other organizations that now find themselves more responsible for delivering environmental protection.

The second annual report reviewed more than 100 environmental decisions by Ontario ministries, many of them posted on the Environmental Registry, some not.  In some specific cases, cost-cutting compromised ministries’ ability to protect the environment and the quality of drinking water testing, Ontario’s acid rain program, and the inspection of pits and quarries were among the areas affected.  The report states that regulatory reviews of environmental safeguards must be done with great care and with the greatest amount of public input.

The report also notes that in 1996, the Environmental Bill of Rights improved some environmental decisions when ministries used it to solicit comments from Ontarians and to avoid environmental problems.  The report features stories where the public participation opportunities provided by the EBR contributed to better environmental protection.

ECO’s Third Annual Report

The ECO’s third annual report^[3] was released on April 29, 1998.  The report reviews how well the government complied with the EBR during the period between January 1, 1997 and December 31, 1997.   The Commissioner reviewed whether the proposals on the Registry were consistent with ministries’ SEVs and with the EBR.  The ECO looked in particular at the degree of public involvement in ministry decision-making and whether public comments influenced ministry proposals and decisions.

The 1997 annual report concludes there were some improvements in ministry compliance compared with past years.  For example, in 1997 most ministries posted more proposals and decisions on the Environmental Registry, thus giving recognition to the values of transparency and accountability embodied in the EBR . Two new laws, more than 20 regulations and 15 policies were posted on the Registry for extended periods of comment during 1997. 

Trends in Ministry Decision-making

In her 1996 annual report, the Commissioner notes that the scope and pace of change to the environmental regulatory system had been staggering.  In 1997, ministries continued, at a reduced pace, to reshape  the legal and regulatory regime related to the environment.  We estimate that amendments are pending or have been made to almost half the statutes and regulations prescribed under the EBR.

The 1997 report reviews many of the important policies posted on the Registry by MOE related to air pollution and the proposals posted by the MNR dealing with the management of Ontario’s natural resources. MNR posted 44 proposals for public comment during 1997.  As in 1996, there is a growing interest by ministries in alternative approaches to environmental regulation, including alternative service delivery systems, voluntary compliance mechanisms, and standardized approvals.  Ministries also continue to move environmental requirements from statutes into regulations and policies, as the Commissioner observed in her 1996 annual report.

Ministry Business Plans

The business plans of all the ministries were posted on the Registry in 1997. This is an improvement over the previous year, when the plans were not posted. Unfortunately, commitments that ministries have made to the environment in their Statements of Environmental Value are not reflected in the majority of the 1997 business plans, which are even weaker than last year’s in terms of integrating the environment into ministry business.  Mention of the environment has also been deleted from the vision, mission statements, or strategic directions set forth by many ministries in their 1997 business plans.  It appears that gains in the recognition of the environmental aspects of their core business made by ministries in the early and mid-1990s are being eroded.  Thus, the Commissioner encourages ministers to take the opportunity provided by the development of their 1998 business plans to incorporate environmental values and environmental health into the core business of their ministries.

Unposted Decisions

Each year, the ECO reviews environmentally significant proposals and decisions that were not posted on the Environmental Registry, in order to confirm that the public participation rights under the EBR have been respected.  It was reassuring to see that in 1997 there were far fewer unposted decisions. As well, two new acts were posted for public comment very early in their development, while still at the stage of discussion papers, which ensured that comments submitted by the public could have more effect on decisions.  The Commmissioner continues to encourage ministries to maximize their use of the Registry for public comment, thereby increasing transparency and accountability and improving government decision-making.

Instrument Decisions Not Posted on the Registry

In 1997, we reviewed a number of environmentally significant MOE decisions on Class III instruments that were not posted on the Environmental Registry. Charts reproduced in the Supplement to the 1997 annual report outline the nature of these decisions, MOE’s rationale for not posting them on the Registry, and a brief ECO commentary.

The majority of the approvals were for new waste sites or for expansions to existing landfills.  These types of approvals are Class III instruments under the EBR. Section 22 of the EBR says that  the Minister of the Environment should “do everything in his or her power to give notice to the public ... at least thirty days before a decision [was] made whether or not to implement the proposal.”  A posting on the Environmental Registry is required as part of that notice. All of the decisions involved hearings before the Environmental Assessment Board. 

One example of MOE’s failure to comply with posting requirements was an application for amendments to a Certificate of Approval establishing the first permanent PCB processing facility in Ontario. The proposal involved the handling of hazardous waste. The MOE referred the application to the Environmental Assessment Board for a hearing and should have also posted notice of the hearing on the Environmental Registry. The amendments were approved by the Environmental Assessment Board on December 4, 1997. But no notice of the application was placed on the Environmental Registry.

As a result of this omission by the MOE, the public was deprived of its right to receive notice of this important proposal on the Registry and was unaware of the opportunity to participate in the public hearing on this Class III instrument.  In its decision the Environmental Assessment Board indicated its concern that it did not have the full  benefit of intervenor evidence.  Only one private citizen intervened. If notice of this proposal for a Class III instrument had been placed on the Registry, additional members of the public could have contributed to the Environmental Assessment Board’s deliberations. A number of people have contacted the ECO with their concerns after learning of the Board’s decision.

In reply to ECO enquiries about this compliance issue, the MOE took the position that Registry notices under the EBR were not required for most of these instruments because the issuance of the instrument was a step towards implementing an undertaking approved by a tribunal, and thus is subject to an exception under the EBR.  Therefore, the minister is neither obligated to provide public notice nor to consider public comments made on these proposals.  However, the MOE also acknowledges that the Registry represents an excellent means to share information about public hearings, and the deputy minister says that he will instruct MOE staff to use the Registry to post information notices about future hearings under section 6 of the EBR.

The MOE’s interpretation of these provisions seems at odds with the intent of the framers of the EBR.  For example, the Task Force on the EBR stated in its Supplementary Report, released in December 1992, that Registry notices for Class III instruments must be posted on the Registry.  In her 1997 annual report, the Commissioner concludes that some of the examples described in the report are serious breaches of the EBR posting requirements.  The ECO will continue to monitor MOE’s compliance with Class III instrument posting requirements.

Posting Information Notices

In 1997, the ministries posted some policies and plans on the Registry as “information notices” even when these were not required under the EBR.  However, certain other proposals were posted incorrectly under this provision, since it does not require ministries to consider public comments. For example, MNR should have provided an opportunity for public comments on its decision not to enforce or administer an important provision of the federal Fisheries Act that safeguards fish habitat.  Public feedback clearly indicated that people found this to be an environmentally significant decision with potentially far-reaching consequences for Ontario fish and waters.

Reviews of Selected 1997 Ministry Policies and Decisions

In 1997, the Commissioner and her staff carried out extensive reviews of several crucial ministry proposals that will have a significant impact on Ontario’s environment.  Here are a sample of some reviews.

The Quality of Ontario’s Air — MOE

Over the past two years, the Minister of the Environment has announced almost a dozen initiatives aimed at improving air quality, and the ministry's 1997 business plan sets targets and deadlines to reduce pollutants that contribute most to smog.  In 1997, the Commissioner and her staff reviewed some of these initiatives, looking at their consistency with MOE’s SEV and whether the public was involved in ministry decision-making.  Several serious obstacles to achieving the smog reduction targets that MOE has set for Ontario were identified.  These obstacles include the following:

-The "Smog Plan" gives no detail on how approximately one-half of the needed smog reductions can be achieved.

-MOE is allocating only a small portion of the ministry’s budget to clean air.

-MOE is relying on a voluntary approach to cutting air pollution. 

-MOE has no plans to upgrade old certificates of approval to meet new and more rigorous air quality standards.

In addition, the provincial government has no plans to improve public transit in Ontario, even though road vehicles are the number one source of smog-causing pollution. Although MOE’s smog plan counts on Ontario Hydro’s coal-burning power plants to reduce emissions significantly, Hydro is now planning to shut down seven nuclear reactors and shift to more burning of fossil fuels.

On the plus side, MOE posted several proposals and decisions on the Environmental Registry during 1997 that could produce positive results for air quality in the province. In December 1997, MOE posted a decision to begin a Drive Clean program, a vehicle inspection and maintenance program designed to reduce pollutants coming from cars, trucks and buses.  In June 1997, the ministry posted a proposal for a Pilot Emission Reduction Trading project, an innovative, market-based approach to reducing emissions.  MOE also made a formal submission to the US Environmental Protection Agency, requesting that the US adopt more rigorous standards for particulates and ground-level ozone.   The potential for these initiatives to improve air quality in the province will depend on how well the programs are implemented, whether transparency and accountability measures become part of their implementation, and how well the ministry carries out monitoring of air quality.

Managing Ontario’s Natural Resources — MNR

In 1997 the Ministry of Natural Resources began a massive overhaul of land use planning.  To understand the implications of the ministry’s major new forest policies, the ECO reviewed these policies in light of the forces shaping Ontario forests. These forces include:

-The terms and conditions imposed on MNR by the Environmental Assessment Board’s 1994 Class Environmental Assessment for Timber Management.

-The increasing demand for wood.

-The intensification of resource conflicts between forestry, tourism, and natural heritage values.

MNR’s ability to deal with these diverse pressures has been affected in the past two years by deep budget reductions, which have cut its staff and forest management budget in half.

In February 1997, MNR announced "Lands for Life,"  an ambitious review of land use planning and resource management on the Crown lands that make up Ontario’s huge central forested area.   Regional Round Tables have been given the task of developing recommendations for allocating land on a long-term basis to forestry, tourism and natural heritage protection.  Within a relatively short period of time, the Round Tables have to absorb an enormous amount of information, understand complicated trends in wood supply and demand, and consider many complex forestry policies and guidelines, the needs of the tourism industry, and the need to protect our natural heritage. 

The ECO’s review of the Lands for Life process revealed significant concerns.  These include:

- an extremely tight timetable for making long-term decisions;

-the public’s concern that the consultation process has not been carried out fairly; and

-concern about the quality of information available both to the public and to the Round Tables.

Environmental Monitoring

Environmental monitoring is the keystone to good environmental decision-making, as has been recognized in the Statements of Environmental Values by both MOE and MNR.  In 1997, the ECO evaluated a number of MOE and MNR environmental monitoring programs relating to the management of air, water and natural resources.  The programs were assessed to gauge the quality of both monitoring and reporting, and also to evaluate how effectively the programs are connected to any current stated ministry targets.

In her reviews, the Commissioner found that in both ministries, significant environmental information is not being collected or, if collected, is not being analysed and reported.  For example, the Ministry of Natural Resources has not analysed or reported forestry data since 1991 and has no population surveys for small game species or non-game wildlife or population estimates for most wildlife species that are vulnerable, threatened or endangered.  Similarly, the MOE

-is not tracking total loadings of industrial discharges into waterways.

-does not monitor persistent toxics in effluents of sewage treatment  plants.

-does not compile statistics on total loadings of raw sewage spills to waterways.

-has drastically reduced reporting on municipal/industrial discharges to water.

-has little data on the condition of the province’s one million-plus septic systems.

In other cases, even when MOE has stated targets for environmental parameters, such as inhalable particulates and waste water discharges, the ministry often lacked monitoring data needed to assess progress toward the target.  A number of other programs monitoring other parameters, such as an incidence of spills, urban air quality, or quality of water in cottage lakes, were not connected to environmental targets. In still other cases, ministries have gathered monitoring information  - databases on rare species, forest regeneration, contaminants in sport fish, or air quality in Ontario urban centres - but the information is not being used fully to bring about environmental improvement.

Many of these monitoring programs are undergoing major restructuring to cope with budget cutbacks, and must rely on strongly committed staff and volunteers.

Voluntary Agreements

In recent years, Ontario has joined a global trend toward relying on voluntary approaches to environmental protection rather than on government regulation.  However, our review of these approaches during 1997 shows that voluntary agreements in Ontario are usually negotiated without any involvement of the public or environmental groups.  In the future, it will be important to ensure that the negotiation process includes meaningful public involvement and backdrop regulations to increase public confidence in the use of voluntary agreements.

Alternative Service Delivery

Several provincial ministries introduced alternate methods of delivering services during 1997.  ECO staff reviewed two of these programs — MNR’s Aggregates Licensee Inspections and MOE’s Remedial Action Plans (Support for Public Advisory Committees) — looking at the way changes to each delivery system were planned and then implemented by both ministries. 

In her review, the Commissioner looked at ministry planning before the implementation of the new delivery systems, at the quality of public consultation, and at the preparation and training of both ministry staff and the people who would now be delivering the services.  Finally, the ECO asked whether the new alternative delivery systems would achieve the goals the ministry established when proposing the changes in service delivery.  The Commissioner found that a ministry’s ability to achieve its goals is enhanced by good communications and careful advance planning.

ECO’s Fourth Annual Report

The ECO’s fourth annual report^[4] was released on April 29, 1999.  The 290-page report reviews how well the government complied with the EBR during the period between January 1, 1998 and December 31, 1998. 

Reviews of Selected Ministry Policies and Decisions

In 1998, the ECO carried out extensive reviews of several crucial ministry proposals and decisions that will have a significant impact on Ontario’s environment.  Here is a sample of some reviews contained in the 1998 annual report.

Ministry of Health: SEV Commitments and Environmental Health

The Statement of Environmental Values of the Ministry of Health makes specific statements that the ministry will support the elimination of environmental causes of cancer, encourage hospitals to be environmentally responsible, and work to ensure a safe, high quality physical environment. The ECO’s review of MOH’s SEV shows that the ministry has devoted few resources to these commitments and has made little effort to help ensure that practical measures are taken to protect the public from the effects of environmental hazards.

Management Board Secretariat: SEV Commitments and Ontario’s Real Estate Properties

The ECO review concluded that MBS has not followed requirements for environmental assessment of environmentally significant lands, and the public does not have access to the records promised in the SEV nor the opportunities to comment on government plans to sell properties. MBS has committed to review and improve current practices in a number of areas as a result of this ECO review.

Ministry of Transportation: Progress Toward Selected SEV Commitments

The Ministry of Transportation’s Statement of Environmental Values says the ministry will integrate the purposes of the EBR into its actions by promoting the use of public transportation, reducing transportation-related air emissions, and working toward a planning process that is open to comment and scrutiny. In our review of MTO’s compliance with its SEV, the ECO found that MTO provides very little support for public transit, does little to monitor local public transportation systems, and does not participate actively with the Ministry of the Environment in furthering Ontario’s Smog Plan.

Ministry of Economic Development, Trade and Tourism: SEV Commitments and the Support of Green Industries

The ECO reviewed MEDTT’s SEV commitments to support the establishment and expansion of green industries; to support the development of environmentally sound production and processes; and to increase awareness in its client groups, through the information it provides and the decisions it makes, of the benefits of economic development that is sustainable in the environment. This review found little targeted support for green industries.

Ministry of Energy, Science and Technology: SEV Commitments to Promote Research into Environmental Sciences^[5]

In its 1998 Statement of Environmental Values, the Ministry of Energy, Science and Technology indicated that it wants to fund research into environmental science and technology. In 1998 and early 1999, the ministry’s Ontario Research and Development Challenge Fund invested in 31 projects, none of which were for environmental research, and given the structure of the Fund, few are likely to be undertaken in the future.

Other Detailed Reviews Contained in the ECO’s 1998 Annual Report

1.  Ontario’s Progress on Climate Change

2.   Urban Sustainability

3.  Waste Reduction and Product Stewardship

Reviews and Investigations

Members of the public can use the EBR’s application process to urge ministry action they believe is needed to protect the environment.  The issues raised by investigation and review applications in 1998 included:

-a review application on the need for the MOE to develop a new legal and policy framework for hazardous waste management in the province

-several investigation applications alleging contraventions of the Crown Forest Sustainability Act by forest companies

-several investigation applications alleging contraventions of numerous acts, regulations and instruments by a range of facility operators including waste management companies.

ECO’s Fifth Annual Report

The ECO’s fifth annual report was released in October, 2000. (The ECO shifted our reporting period to the fiscal year of the ministries when we prepared this report.)  The report reviews the government’s compliance with the EBR during the period from January 1, 1999, to March 31, 2000. In this report, the Commissioner suggested that we, in Ontario, need a change in perspective on environmental protection. Many of the environmental challenges, such as Great Lakes toxins, the loss of biodiversity, and groundwater protection are problems on an ecosystem scale. Yet, the institutions and policies that regulate them continue to be site-specific. In this report, he suggests broadening our thinking to break down the jurisdictional barriers between ministries and adopting an ecosystem approach to environmental protection.

Unposted Decisions:

In this report, the ECO noted that it has generally observed improved performance by ministries with a trend towards more Registry notices and fewer unposted decisions. In 1999/2000, there were still some environmentally significant decisions that were not posted on the Registry. These included changes to the Green Workplace Program, the announcement of the 1999 Ontario Forest Accord, and the proposal to allow hunting in existing provincial parks under the Living Legacy Strategy. 

The 1999/2000 report focussed special attention on a number of environmental issues that the ECO feels require prompt attention and improved handling by ministries. The Commission is concerned that for some issues such as intensive farming, current management by ministries may be resulting in further environmental damage. Other issues, such as groundwater, are being regulated by a patchwork of confusing, outdated, and ineffectual laws and policies.   Furthermore, many ministries are operating without a baseline of environmental data such as groundwater monitoring. The issues dealt with in this report include:

-the protection of Ontario’s groundwater,

-the management of the Great Lakes ecosystem,

-the protection of species at risk,

-intensive farming,

-and the sale of government lands without the required environmental studies or the public’s knowledge.

More than 2,000 decisions were made by Ontario ministries during the period under review. In it’s 1999/2000 report, the ECO included detailed reviews of 25 of the most environmentally significant of these decisions. Some of the decisions under review were Ontario’s Living Legacy Strategy, the decision to close the spring bear hunt, the amendments to the Niagara Escarpment Planning and Development Act and the policy framework Recognising and Encouraging Voluntary Action (REVA).

During this review period, the ECO received and forwarded 16 applications for review and 27 applications for investigation. This represents a significant increase over the number received and forwarded in each of the previous four years. The majority of applications for review were denied. The ECO accepted the rationale of the ministry that a review was already under way that addressed the concerns of the applicants. These reviews, however, often failed to take all of the concerns of the applicants into account.

One application in particular was considered an EBR success story. This application alleged violations of the Crown Forest Sustainability Act by Avenor Inc. and Buchanan Forest Products Ltd. In this case, MNR carried out a thorough investigation and took appropriate action to address the contraventions that were verified by its investigations unit.

This report included some recommendations for handling of applications including:

- improve client services

-perform the review or investigation without prejudice

-use the criteria provided for in the EBR when deciding whether to undertake or deny an application

-when denying an application because the issues are already subject to review, the ministries should explain the scope of the review and how applicants can become involved in the decision-making process, set out time lines, and indicate when proposals will be posted on the Registry for public comment.

New ECO Initiatives-2000

In the first quarter of 2000, the ECO established a Multi-Stakeholder Advisory Committee. The Committee is made up of nine members with a broad sampling of expertise but who share a concern about the environment and sustainability. It is hoped that they will be able to provide the Commissioner and his office with a broad range of knowledge, experience, and expert advice.

Special Reports:

Special Report On Ontario Regulation 482/95

On January 17, 1996, the Environmental Commissioner submitted her first Special Report to the Legislative Assembly.^[6]  The Report addresses Ontario Regulation 482/95, which affects the role of the Environmental Commissioner and the effectiveness of the Environmental Bill of Rights.

The most significant aspect of Regulation 482/95 is that it removes the Ministry of Finance from the list of ministries that are subject to the EBR.  It also temporarily suspended, until September 30, 1996, public notice requirements for any environmentally significant proposals which are linked to the government's realignment of expenditures and cost-cutting initiatives.

The Ministry of Finance had been included among the prescribed ministries because it has and will continue to play a vital role in this province's move toward sustainability.  The main functions of the Finance ministry are to develop the Provincial Budget, decide how much to spend where and manage the province's finances.  These functions are consistent with other government programs and policies, the ministry has the power to influence environmentally significant decisions.  The Ministry of Finance also is responsible for a number of Crown Corporations with environmentally significant mandates, including the Ontario Clean Water Agency.  Since it is now exempted from the EBR, the Ministry of Finance no longer has to consider its SEV which says it will integrate environmental considerations with economic, social and scientific considerations in the course of its work.  In the mid 1990s, the Ministry of Finance had become more open in its decisions that could affect the environment.  For example, in response to recommendations from the Fair Tax Commission, the ministry had begun holding pre-budget consultations on sustainability.  Regulation 482/95 meant that important changes to various pieces of environmental legislation made through the Savings and Restructuring Act,^[7] Bill 26, were not be open for public scrutiny or comment through the EBR.

In her special report, the Commissioner urged the government to revoke Regulation 482/95 and restore the Ministry of Finance to the list of ministries subject to the EBR.   This recommendation appears to have been rejected by the government.   On a positive note, even though Regulation 482/95 exempted certain decisions from public notice and comment, the ECO reviewed and reported on how the ministries took their respective SEVs into account in making the exempted decisions in late 1995 and 1996.

Second Special Report

On October 10, 1996, the Environmental Commissioner submitted her second Special Report to the Legislative Assembly.^[8]  The report addressed the fact that the ministries prescribed by the EBR are failing to comply with the public participation and notice requirements of the legislation.  This is a clear and unacceptable departure from the goals and purposes of the EBR.  The government’s sweeping changes to environmental safeguards are happening too quickly and without enough public consultation. 

The report notes that Ontario has undergone a massive policy shift in environmental protection.  Ministries have changed and eliminated environmental safeguards behind closed doors or with minimal public consultation.  The report also states that when decisions are made too quickly, and without the expertise and insight of the public, those decisions are going to be poor ones.  The Commissioner contends that poor decisions need costly repair later on, which is bad for the economy and bad for the environment.  Like many Ontarians, the Commissioner supports progressive environmental reform; however, the reform process must be effective, timely, open and fair.

The report showed that in late 1995 and most of 1996 the prescribed ministries were not putting environmentally significant proposals on the Registry, they were not giving Ontarians enough time, information and opportunity to comment on proposals, and they were not assessing or reporting the environmental effects of proposed changes to environmental laws.  The Commissioner noted that the ministries are using the Registry unevenly - or not at all.   For example, in May 1996 the MNR did not post the policies in its six new business plans which cover most of the ministry’s mandate.  Because there was no posting, most Ontarians had no say in plans that are just as sweeping as the MOE’s regulatory review, which, in contrast, had been posted twice on the Registry by October 1996.

The report also explained that Ontario’s agenda for environmental policy change is crowded and that the ministries are not giving Ontarians enough time to absorb, understand and comment on major environmental change.^[9]  Moreover, ministries are not giving people enough information to comment.  The Ministry of Housing’s February 1996 Registry posting for its consultation paper on the Ontario Building Code^[10] failed to disclose that energy conservation requirements for things like insulation and window glazing may be reduced or eliminated altogether from the Building Code.  Ontarians had to get a separate discussion paper to find this out.

The report also recommends that ministries assess and report the environmental effects of proposed changes to environmental safeguards using objective, measurable parameters.   The report  suggests that including a Regulatory Impact Statement is a practical and efficient way to show the public how the environment will be safeguarded under proposed regulations.  Only four out of 42 proposals posted by the MOE as of August 31, 1996, were accompanied by a Regulatory Impact Statement.

The report recommends that ministries take the public participation and notice requirements of the EBR seriously by posting environmentally significant proposals on the Environmental Registry, providing Ontarians with adequate time, information and opportunity for comment, and assessing and reporting the environmental effects of proposed changes.

The Protection of Ontario’s Groundwater and Intensive Farming (3^rd Special Report)

This was the first special report submitted by Gord Miller after assuming the role of Environmental Commissioner six months earlier. The report contained two articles, still in draft form, from the Environmental Commissioner of Ontario’s (ECO) 1999-2000 annual report, which was to be submitted in October 2000 to the Legislature. In the meantime, however, the Walkerton tragedy took place. The Commissioner believed that the circumstances surrounding Walkerton required that these parts of the Annual Report be released earlier as a Special Report to the legislature.  This would ensure that there was informed public discussion and participation in the proposals that followed in the wake of Walkerton and would assist the inquiry in its investigation.

The first document in the report is entitled "The Protection of Ontario’s Groundwater". It includes an analysis of the confused patchwork of policies and laws that attempt to protect and conserve groundwater in the province and calls for leadership by the Ministry of Environment on a comprehensive groundwater strategy for Ontario.

The second document is entitled "Intensive Farming" and explores the relationship between large livestock operations and environmental damage.

THE PROTECTION OF ONTARIO’S GROUNDWATER

Three million Ontarians depend on groundwater for drinking water, and it is also used for crop irrigation, livestock operations and many commercial operations.  Groundwater sustains ecosystems by releasing a constant supply of water into wetlands and provides habitat for fish, wildlife and flora.

Today, housing development and the intensification of land use in rural southern Ontario are placing extraordinary demands on groundwater, creating concern that some aquifers are being depleted faster than they can be recharged.

Several Ontario ministries share responsibility for groundwater management - Environment; Natural Resources; Agriculture, Food, and Rural Affairs; and Municipal Affairs and Housing.  These ministries must work with key stakeholders and the public to develop a comprehensive groundwater management and protection strategy.

A groundwater strategy could contain many interrelated elements:

-an inventory of groundwater resources and a data management system;

-a long-term monitoring network of water levels for major aquifer systems;

-identification and protection of sensitive aquifers and groundwater recharge areas;

-an inventory of current and past uses of groundwater and sources of groundwater contamination and an evaluation of their potential effect on health and ecosystems, including cumulative impacts;

-a strong regulatory program aimed at preventing contamination;

-an economic assessment of groundwater value, including current and replacement value;

-a means of coordinating decision-making between all ministries and agencies that have jurisdiction over groundwater.

-In particular, the public needs to be confident that the Ministry of the Environment (MOE) is managing Ontario’s groundwater effectively. MOE staff need clearly defined policies and guidelines and better data so they can make informed decisions about groundwater.

-There will be several negative consequences if the ministries fail to develop a groundwater strategy.  These include a growing number of conflicts over groundwater throughout rural Ontario and in urban areas that rely on groundwater for municipal and industrial purposes. There is a significant risk that many water taking permits will be granted and land-use planning decisions will be made without adequate knowledge of groundwater availability. Furthermore, decisions about groundwater will not be made in a transparent and publicly accountable manner, contrary to the goals of the Environmental Bill of Rights.

-Ontario farming has been undergoing a marked and rapid change in recent years.  Traditional small family farms are being replaced by large, automated operations, often on a factory scale.  Farms with 3,000 or more pigs or 1,200 cattle are increasingly common.  They are often sources of conflict with nearby residents, especially regarding manure management.  Large scale livestock farms produce vast quantities of liquid manure, but they don’t always have the acreage they need for spreading this waste. 

-Serious environmental problems can result when manure is improperly stored, handled or spread onto land.  Problems can include pollution of waterways, fish-kill incidents, and contamination of groundwater.  Epidemiological research published in 1999 has also found that Ontarians living in rural areas with high cattle density have elevated risk for toxic E. coli infections.

-The Ontario Ministry of Agriculture and Food (OMAFRA) has long advocated a voluntary approach to controlling the environmental impacts of farm manure instead of using regulations to ensure safe manure management.  There are no legally binding standards for constructing manure storage facilities or for applying manure.  Nor is there any monitoring of the environmental effects of Ontario’s manure management practices.

-Ontario environmental legislation also specifically exempts some aspects of manure management.  In 1998 OMAFRA strengthened the legal protection for farmers against complaints from neighbours about their farming practices.  The Farming and Food Production Protection Act also stipulates that no municipal by-law can restrict a farm practice if it is deemed to be normal by a tribunal established by OMAFRA.

-Large-scale intensive farming is a rapidly growing phenomenon across North America and Europe, and other jurisdictions have seen the need to regulate this industry to protect the environment.  Regulations can include the requirement for manure management plans, limitations on manure spreading and permit systems for large facilities.

-OMAFRA has now completed its public consultation on intensive farming, and has committed to introducing legislation to address manure management practices.  But OMAFRA’s primary client group is the Ontario farm industry.  It is open to question whether the ministry can overcome this conflict of interest and effectively regulate this same industry.  Since these problems are environmental in nature, the introduction and implementation of this legislation may more appropriately be within the mandate of the Ministry of the Environment.

In 1998, OMAFRA revised its Statement of Environmental Values under the Environmental Bill of Rights.  The ministry deleted its previous commitment to "ensure an environmentally responsible and sustainable agriculture and food system."   Ontarians should be able to expect Ontario’s agriculture industry to be environmentally responsible.

"Broken Promises" - Fourth Special Report

On June 21, 2001, the Environmental Commissioner released a special report to the legislature regarding the failure by the Ministry of Natural Resources (MNR) to classify its regulation instruments (IC regulations), despite promising the ECO at least ten times over the past six years that it would do so. This has the effect of thwarting the public’s right to know about the permits and licences it grants to companies.

Regulation instruments are the legal documents such as licences, orders, permits and certificates issued to companies and individuals giving them permission to undertake activities that might affect the environment. Only when a ministry’s instruments are classified do the public’s rights under the EBR to be given notice and to comment on them come into effect.  Under the legislation, MNR was supposed to complete this process soon after April 1, 1996.

MNR issues over a hundred different types of instruments, permitting the operation of sand or gravel pits, for example, or dredging around lakes or rivers, and development of public land. The public has a strong interest and personal stake when permission is given to do something to a specific piece of land. When the EBR was enacted, it was intended that people would have the right to know and comment on such proposals. 

In his Special Report, the Commissioner concluded that MNR should finalize and publish the classification of its instruments in the Ontario Gazette before September 1, 2001 and stated that the long delay has been both unreasonable and unacceptable.