In Ontario, we are fortunate to have some unique opportunities to participate in environmental decision making by the provincial government. Thanks to the Environmental Bill of Rights (EBR), which celebrates its 20th anniversary this year, the public receives notice of government proposals that could have a significant effect on the environment, and has a right to comment on them – before the government makes a decision.
But your rights don’t always end when a decision is made. For certain government decisions to authorize (or refuse to authorize) activities that affect the environment – by issuing “instruments” such as licences, permits and approvals – there are several ways the public can continue to be heard:
- By seeking leave (permission) under the EBR to appeal (challenge) a decision to issue particular types of instruments, such as certain permits to take water or environmental compliance approvals;
- By directly appealing a decision to issue a Renewable Energy Approval under the Environmental Protection Act or certain decisions made under the Planning Act; and
- By participating in an appeal initiated by someone else, including the instrument-holder themselves.
Exercising your right to participate in any of these ways can make a difference! Here’s just one example that I highlighted in my Annual Report this year:
In October 2012, Nestlé Canada Inc. filed an appeal of the Ministry of the Environment’s decision to impose certain conditions in a Permit to Take Water. The permit at issue allowed Nestlé to continue to take water from a well near Erin; the company had been drawing water from the well since 1988 and bottling it for commercial sale at a different location. In April 2012, Nestlé applied for a new permit to replace a previous version that would expire in August 2012.
Compared to the previous permits issued for this well, the 2012 permit allowed Nestlé to take more water per minute and per day between April and September, as long as a total monthly cap was not exceeded. Nestlé had requested this condition to allow it greater flexibility in its operations. The permit imposed another condition, which further restricted the maximum daily water taking during drought conditions; this restriction was the subject of the appeal.
Following the filing of the appeal, two non-profit non-government organizations (NGOs), Wellington Water Watchers and the Council of Canadians, applied for and were granted party status in the appeal, meaning they were entitled to make their own submissions on any potential changes to the permit.
Subsequently, Nestlé and the ministry reached an agreement that would loosen the drought restrictions and see the company withdraw its appeal; they submitted this settlement agreement to the Environmental Review Tribunal for approval, as required. The NGOs objected to the terms of the agreement, however, arguing that loosening the drought-related restrictions would not be in the public interest. At a preliminary hearing in October 2013, the Tribunal agreed with the NGOs and refused to approve the proposed settlement, instead ordering a full hearing (click here to read the Tribunal’s decision). A month later, Nestlé filed notice that it wished to withdraw its appeal; none of the other parties objected and the Tribunal accepted the withdrawal and dismissed the appeal without changing any of the conditions of the permit.
I believe that this case demonstrates the importance of public involvement in appeal processes. Without the NGO’s submissions it seems unlikely the Tribunal would have rejected the original settlement agreement, since there would have been no one to raise issues relating to the public interest. As a result of their involvement, the Tribunal was asked to carefully consider these aspects, which ultimately led to a stronger, more protective permit.
For information about other appeals and leave to appeal applications, I would encourage you to read more in the ECO’s 2013/2014 Annual Report.
You can find more information about how to exercise your rights under the EBR in Ontario’s Environmental Bill of Rights and You: A guide to exercising your right to participate in environmental decision making in Ontario.