Failure to consult at issue in court challenges of Ontario’s Bill 197

TORONTO – Hearings began this week for three court challenges of Bill 197, an omnibus bill passed by the Ontario government on July 21, 2020. The bill, known as COVID-19 Economic Recovery Act, 2020 amended 20 pieces of legislation, including the Environmental Assessment Act.  

“We’re going to court to hold the Ford government accountable for failing to consult with Ontarians before they rammed through Bill 197,” said Ian Miron, a lawyer with Ecojustice, which is representing Greenpeace Canada and Wilderness Committee in the challenge. “Bill 197 made major changes to a number of environmental laws like the Environmental Assessment Act as well as the Planning Act. My clients are really concerned because under the Environmental Bill of Rights, they do have rights to participate in important environmental decisions before they’re made. Those rights were taken away from them here.”

Gord Miller was Environmental Commissioner of Ontario for 15 years, from 2000 until 2015. He is current Chair of Earthroots, which is part of a joint filing that includes the Canadian Environmental Law Association, Ontario Nature, 17-year-old climate change activist Cooper Price and Michel Koostachin from Attawapiskat. Their application alleges that Bill 197 was enacted in a manner that failed to comply with the public notice and comment requirements of Ontario’s Environmental Bill of Rights (EBR). “The EBR is the keystone piece of legislation which has held the entire provincial system of environmental protection legislation together since 1994. The government must respect that law or our natural heritage will be eroded and lost,” Mr. Miller wrote.

Proposed changes to Class Environmental Assessments under the Bill were posted as a “bulletin” on the environmental registry to advise the public about the amendment proposals to Class EAs (environmental assessments). The government said consultation was not required under the EBR because Class EAs are not designated instruments or regulations. The changes are part of the Ford government’s attempts to modernize the almost 50-year-old environmental assessment program.

The Ford government has been eroding environmental protection legislation for several years, Mr. Miller said. Provisions set out in the class environmental assessment for forestry were eliminated, for example, and the requirement to comply with the Endangered Species Act was dropped for forestry operations. 

“The environmental registry is there to make sure people are consulted about environmental measures,” said Mr. Miller. “The way we find out about the government’s bad ideas is through the environmental registry.” 

Toronto-based OTK Law is representing eight First Nations, a Tribal council and an Indigenous community in the challenge. “Through the EBR, there’s also a commitment by the Minister of the Environment to consult with First Nations for these kinds of changes and that wasn’t done,” said Kate Kempton, a partner with OKT Law. “There was no attempt to consult on the Environmental Assessment Act at all. At all. Period. Ontario purported to exempt itself from the need to do so on some basis that there was an urgent need to wipe out these environmental protections as part of some economic recovery from COVID which is not true. Those plans had been in the works well before COVID ever started. On the revocation of the declaration order that was the class EA for forestry there was some superficial consultation but our case is that it doesn’t come close to meeting the standard or the requirement that it needs to.”

Environmental assessment laws are critical to First Nations in two ways, said Ms. Kempton. “First, they’re the major vehicle for environmental protection under Canadian law. They’re proactive protection in advance from environmental harms. First Nations rely on the environment for their identities and rights more than anybody else so it’s particularly important to First Nations to have a protected, safe, viable and healthy environment,” she said. “It’s the major vehicle through which the Crown governments carry out their constitutional duty to engage with First Nations, to consult and accommodate their concerns. If there is an environmental assessment for a project it is through that process and so it is a key vehicle for the engagement of constitutional relationships between the Crown and First Nations. That’s been recognized for decades.”

“Back in the 1980s when there were major protests against clear cutting, an environmental assessment board was struck that recognized how badly First Nations had been treated in regard to many things but also including their reliance on the environment for their rights and how that was completely ignored,” she continued. “That board established environmental assessment through a declaration order or an order for forestry and both of those things, the Environmental Assessment Act and the Class Environmental Assessment for forestry were gutted by the Ford government last July, June and July. They revoked the entire application of environmental assessment to forestry. It’s gone completely from forestry and reverses 50 years of progress in that area. Secondly, they’ve taken the environmental assessment statute and made it much weaker for First Nations as a device by which they can protect their rights.” 

Ms. Kempton’s group is asking for both the revocation and the new Environmental Act to be overturned. “We want everything reinstalled the way it was before, which was not perfect and nobody’s saying that it was, but if the Crown is intent on making changes that are fundamental to First Nations more than anybody else than they should be engaging in an honourable way with First Nations going forward and not pull this stunt again,” she said. “We’re specifically saying that because the Crown, both in its process or lack of process with First Nations and in the content of what they did, like in the new Environmental Assessment Act and the removal of the Class EA for forestry, because it wasn’t in accordance with the legal standard of the honour of the Crown that they need to be declared unconstitutional. You can’t have an unconstitutional act or law so the effect is to undo.”

The two environmental groups are asking the court to make declarations. “These are formal judicial pronouncements that the government should have consulted here and that their failure to do so was not reasonable,” explained Mr. Miron. “This is part of a broader pattern of conduct where this government tries to avoid consulting with people, consulting with experts on a wide range of decisions. We’re not asking them to order the government to go back and redo things but we do hope that if we win that will provide guidance to the government that’s quite frankly needed about how it should be consulting with the public under the EBR. This is not the first time this has happened. Greenpeace was in court a couple years ago on a very similar issue where the government had failed to consult in the cap and trade program. We’re back in court again, unfortunately, and we’re hoping that if we win we will get a declaration that will avoid the need for future battles like this. We think the declaration would help generally anytime the government proposes an environmentally significant change to the law. It would clarify that they do have to consult with all Ontarians including our clients. It would clarify that that was legally required under the Environmental Bill of Rights.”

There is something called the “rule of law” which is present in all democracies throughout the world, said Ms. Kempton. “This means that all parties and all persons, especially including governments, are bound by the law. There are democratic processes by which laws are passed by elected bodies and then interpreted and applied by courts. When a government absents itself or excuses itself from the very law that the legislature passed that binds that very government, it is a defilement of the principles of democracy and the rule of law. That’s what the Ford government did in pushing through the new Environmental Assessment Act without abiding by the requirements of it on it under the Environmental Bill of Rights. In that sense, it’s about the worst thing that a government can do in terms of defiling law and democracy. I don’t mean this particular action but just to blatantly excuse itself from its own law is the opposite of democracy.”

The public hearings occurred from May 17 through May 20. A decision date is not known at this time.