If you are participating in the 2011 A.D. Latornell Conservation Symposium this week and are interested in biodiversity, don’t forget to attend Water as Biodiversity (Session W1C) on Wednesday (November 16) at 2 pm in Room 10. Commissioner Miller will be speaking about biodiversity in Ontario and what we must do by 2020. For more on what the ECO has said about biodiversity, click here.

The ECO also has a new booth and interactive touch screen. Come visit us at Booth #6 in Exhibitors Gallery A – Crystal Ball Room. We will be there to answer questions about the Environmental Bill of Rights, the Environmental Registry, our Annual Reports and other questions related to the ECO.

We will also be tweeting at the conference. Follow us at @ONT_ECO.

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September is such a great time; you can still wear sandals, but it’s getting cool enough that you can start to think straight.  Only problem is, everyone else is starting to think straight too, and is busily gumming up your fall calendar with meetings, seminars and workshops.  Amidst all that busyness, how do you manage to stick to your own priorities – how can you influence or actually help set the environmental policy agenda?

Try submitting an Application under the Environmental Bill of Rights (EBR).  Together with a modest investment of time and thought, it may help you leverage the kind of environmental improvements that you know are needed.  If you have strong arguments and evidence that an Ontario environmental law or policy ought to be changed, or that an environmental law has been broken, then you already have the raw materials for submitting an Application.

The application form is user-friendly; you can access the forms for reviews and investigations and our user guide, The EBR and You, here on our website. You don’t need a lawyer or a petition; just one co-applicant.  Submit the completed form to our office; we act as the clearing-house for EBR Applications and promptly pass them on to the appropriate Ontario ministries.  Ministries then have a legislated timeline of 60 days to consider your application and respond.  Ministries may agree to review or investigate the issues you raise – or not.   Regardless, I will comment on the matter; either in my next Annual Report or in its Supplement, and I review how ministries handled your request.  Often, my comments illustrate the larger environmental context, and sometimes I will recommend that ministries take stronger action.  Sometimes the nudge of the EBR Application is enough on its own to get policy wheels churning, as in this case on rehabilitation of sand and gravel pits, or in this case on integrating climate change adaptation into stormwater management.  Sometimes the combined scrutiny of my Annual Report and the public spotlight help to illuminate why things are stuck and where traction is needed, as in this case on bike lanes in Toronto.

Applications under the EBR serve as important ground-truthing mechanisms for both our office and the ministries, highlighting issues that really matter to the public, and often spurring further research.  Applicants often support their arguments with an impressive level of technical knowledge and thoughtful insight, and can show admirable passion and tenacity in the face of frustrating situations. To get a flavor for the range of topics that applicants have submitted, you can browse some of the Applications for Review and Applications for Investigation featured in my recent Annual Reports.

I really like the EBR Applications tool.  I like the fact that it sets deadlines for ministry responses, and that it assures confidentiality for applicants.  At the same time, applicants are free to go public with their applications, and many have done so over the years, with news releases or website publication.  I’m also impressed with the diverse range of people who have submitted Applications over the years, including village residents, scientists, townships, environmental groups, First Nations groups, waste haulers, mayors and Members of Provincial Parliament.

And here’s a final very practical tip; try to submit your next Application to our office by mid-November 2011.  That way, your issue will have a better chance of being processed by the ministries in time to be included in my fall 2012 Annual Report, or its Supplement.  Why not make an EBR Application the focus of your own autumn agenda for change?

The Ministry of Natural Resources (MNR) has just released its State of Ontario’s Protected Areas Report on the Environmental Registry.  Protected areas are a critical tool to conserve biodiversity in Ontario.  This report lays out:

• a brief historical perspective of the protected area system;
• legislative and strategic direction for the protected area system;
• an overview of protected area selection, planning and management;
• information on the ecological, geological and cultural heritage features within the system of protected areas;
• known pressures on ecological integrity, and responses to those pressures; and,
• social and economic aspects associated with protected areas.

The Environmental Commissioner of Ontario (ECO) first talked about the need to report on the over-all ecological health of our system of provincial parks and conservation reserves in our 2006/2007 Annual Report.

In our 2008/2009 Annual Report, the ECO wrote that it is extremely important that this report provide a frank assessment of the state of Ontario’s protected areas. This report should hopefully be used by MNR to focus its resources on key systemic issues, be they common threats to ecological integrity or the need to expand government policy to adequately address a developing issue.

I am frequently struck by the seeming inability of the ministries I oversee to understand the minimal public consultation system set out in the Environmental Bill of Rights, 1993 (EBR).

Here is how it works. When  specified ministries are considering making a decision that has environmentally significant implications, they post a “proposal notice” on the online  Environmental Registry that describes the nature of the decision. All proposal notices must be posted for a period of at least 30 days.  The proposal invites members of the public to submit comments or concerns relating to the proposal. Once the comment period ends, the ministry is required to consider the submitted comments during its deliberations. When a final decision is made, a “decision notice” is posted on the Registry describing what was decided and how the comments were taken into consideration.  As Commissioner, I receive and review the comments in my Annual Reports to the Legislature, to assess the decision and ensure that the EBR was complied with.  It seems straightforward enough and it’s required by law for certain decisions.

But frequently, this process is not followed. In some cases, the ministries receive applications for various permits or licences, and engage in elaborate conversations and negotiations with proponents without posting proposals to notify the public as to what is going on.  Only after the ministry has reached a final internal decision on the matter with all necessary internal approvals, do they post a “proposal notice” on the Registry.  The public is left to comment on a fait accompli that it cannot usefully influence or inform.  To add to the public insult, it is in these situations that the ministry complains that the Registry requirement unnecessarily delays government decision making.  In other cases, the ministry posts a proposal, perhaps at the appropriate stage, receives comments, and then never bothers posting a decision notice, even though the decision is made and implemented.  In such situations, the public never knows what happened or how its concerns were addressed, if at all.  Again, there is an implicit public insult.  I always cite these ministries in my Reports to the Legislature for their inappropriate postings, but the improprieties continue year after year.

The problem seems to stem from a lack of understanding of the fundamental nature and importance of public consultation. The ministry staff involved don’t seem to grasp that the public is a party to the decision making, and that the public’s participation actually improves the quality of the decision. People out there actually have knowledge and wisdom that is relevant and valuable to the decision-making process. At best, such participation can make the ministry’s job easier and more successful. At a minimum, including the public in the deliberation in a meaningful way will defuse possible misunderstandings and anxiety. The public most often doesn’t make any comment on posted decisions; but knowing what is going on, and that it can provide input if it wants to, creates and improves public confidence in the ministry’s decision making generally.

There was a time, years ago, when government ministries made decisions for the good of the province without public participation, because they thought they “knew best.” And, maybe they did.  These are not those times.  These are times when government action relating to the environment can have serious and widespread consequences.  And these are times when people want and expect to be informed of and engaged in such decision making.  Frustrating these desires is ill conceived, unwise and contrary to the law.

Gord Miller
commissioner@eco.on.ca

The Ministry of the Environment is currently asking for public comment on the Environmental Registry on its proposal for making the Ministry of Education subject to public consultation provisions in Part II of the Environmental Bill of Rights (EBR). The comment period ends April 25, 2011. For your comment to be considered, click here to go to the Environmental Registry page and click “Submit comment.”

In past Annual Reports, the Environmental Commissioner of Ontario has called for the Ministry of Education to be prescribed under the EBR:

Prescribing Education: Crucial to Future Sustainability (2006)

Prescribing the Ministry of Education under the EBR (2001)

The Ministry of Natural Resources is currently asking for public comment on the Environmental Registry on its proposal for protecting caribou habitat, including when permits would be required under the Endangered Species Act (ESA) and when some forms of development would be exempted. The comment period ends March 10th, 2011.

The Environmental Commissioner of Ontario (ECO) has reported on caribou conservation in several of its Annual Reports to the Ontario legislature, most recently in September 2010.

The ECO also released a Special Report to the Ontario legislature in March 2009 providing an overview of the ESA: The Last Line of Defence: A Review of Ontario’s New Protections for Species at Risk.

Energy has been a hot topic of debate lately, and on November 23, the government of Ontario released its Long Term Energy Plan, which sets out a plan about where our electricity will come from over the next 20 years and how much conservation of electricity we can achieve during that time period.

The stakes are high. Given the long lifetime of our energy infrastructure, the choices Ontario makes now will have environmental and economic impacts that will be felt for many years to come.

What you may not know is that there is still an opportunity to have your views considered. The government has posted a draft Supply Mix Directive on the Environmental Registry for comment. This directive is the legal tool by which the government lays out the goals of the Long Term Energy Plan. More background on government directives and Ontario’s regulatory framework for electricity is available in my report Rethinking Energy Conservation in Ontario: Annual Energy Conservation Progress Report 2009 (Volume One) . The Supply Mix Directive is the first step in a process that eventually leads to the development of the energy projects needed to achieve the Plan’s goals.

You have until January 7, 2011 to provide your views on the Supply Mix directive through the Environmental Registry. Following this, the government will consider the comments received and make a final decision.

Aging landfills are a longstanding issue for the ECO. Since opening our office in 1994, we have received hundreds of calls from the public concerned about the potential environmental harm resulting from small and aging landfills. Sharing their frustrations, we voiced our concerns regarding the lack of Ministry of the Environment (MOE) oversight of small and aging landfills in our 2006 Annual Report, and strongly urged MOE to create a publicly accessible inventory of all landfills in Ontario, and to update outdated Certificates of Approvals (C of A) for landfills. These findings were also echoed in the Auditor General of Ontario’s 2010 Annual Report, released yesterday.

We decided to revisit this issue in our 2010 Annual Report and found that our concerns regarding MOE oversight and transparency on landfills remained unresolved. The ministry had lost track of hundreds of aging landfills, which potentially threaten Ontario’s water and air quality. MOE was only inspecting 11 per cent of landfills with Cs of A, while approximately 1000 dumps that closed prior to the creation of MOE were, for the most part, forgotten. The public was still unable to access up-to-date information on landfills, despite MOE publishing an inventory in 1991. Furthermore, a process to update outdated landfill Cs of A still did not exist.

We are happy to learn that in response to the issues raised by both our office and the Auditor General, MOE has begun to work on some good initiatives to strengthen the oversight of aging landfills. Among these is a publicly accessible list of 2,400 Ontario landfills with Cs of A that has been added to the MOE website.  This list will evolve so the information can be easily searchable. We have also been assured that monitoring, assessment, and reporting on compliance of landfills will all be improved over the coming months and years. Stay tuned for more information on MOE’s progress in meeting our recommendations and its own commitments for better oversight of landfills.

Each of the ministries subject to the Environmental Bill of Rights (EBR) has a Statement of Environmental Values (SEV). The SEV guides the minister and ministry staff when they make decisions that might affect the environment. You can find each Statement of Environmental Values on the Environmental Registry website.

Each SEV should explain:

• how the ministry will consider the environment when it makes environmentally significant decisions
• how the ministry will apply the purposes of the EBR when it makes environmentally significant decisions
• how the ministry will integrate its environmental values with social, economic and scientific considerations when it makes environmentally significant decisions. Each minister also makes commitments in his or her ministry’s SEV that are specific to the work of that particular ministry.

You can use the SEV to see how each ministry complies with the EBR. For example, you may be concerned about a proposed ministry policy. You can use the ministry’s SEV to see if the proposal reflects the goals of the EBR and is consistent with the ministry’s stated environmental values.

The Environmental Commissioner of Ontario (ECO) also reviews how the ministries apply their SEVs to their decision making. If you think a ministry has made a decision that isn’t consistent with its SEV, contact the ECO.

The Ministry of the Environment is in the process of reviewing and updating the SEVs. Stay tuned for the results!

The Commissioner was asked how the ECO might encourage a “culture of respect for nature” in Ontario. He responded that the Ministry of Education should be prescribed under the Environmental Bill of Rights (EBR). (The ECO has made this an official recommendation on two occasions, in 2001 and 2006.)

Background

When the EBR was first proclaimed in February 1994, the Ministry of Education (EDU) was not listed as a prescribed ministry. It was therefore not required to develop a Statement of Environmental Values, nor to post notices on the Environmental Registry inviting public comments on proposed decisions for environmentally significant Acts and policies.

In late 1999, the Environmental Commissioner received an application for a review of the need to add the Ministry of Education to the list of provincial ministries subject to the EBR.  This way, the applicants argued, the public would be able to request a review of the ministry’s decision to remove Environmental Science from Ontario’s secondary school program. The application was turned down, under the reasoning that “the purposes of the EBR would not be furthered by making the Ministry of Education subject to the Act.”

Our office received another application in 2004, arguing that “students in Ontario are not ecologically literate because they are not being taught ecological education.”

This time, the Ministry of the Environment (MOE) recommended that EDU should be prescribed, and requested that they prepare a Statement of Environmental Values. A proposal notice to this effect was posted on the Environmental Registry, but a decision never followed.

The MOE also suggested that most of EDU’s decisions are financial and administrative in nature, and thus outside the purview of the EBR.

So, to this day, decisions of the Ministry of Education are not considered environmentally significant enough to warrant public participation provisions and the applications for review process under the EBR.