Manitoba’s proposed Environmental Rights Act puts pressure on Ontario to improve its Environmental Bill of Rights
When Ontario’s Environmental Bill of Rights (EBR) came into effect in February of 1994, it was at the forefront of Canadian environmental law and policy. It was hailed by Ontario’s first Environmental Commissioner and others as “a significant break with the past”. For many, it represented a new era in environmental decision-making — one characterized by enhanced public participation, citizen empowerment, and greater accountability of decision-makers.
Today, however, Ontario’s EBR is showing its age.
Experience has shown that many of its provisions have not kept up with modern thinking about protection of the environment or public participation. Yet the Ontario Government has been unwilling to update it, despite calls for reform by the Environment Commissioner, by Ecojustice, and by the Canadian Environmental Law Association, among others. In 2011, at the request of CELA and Ecojustice, the Ministry of the Environment (now the Ministry of the Environment and Climate Change) agreed to conduct a review of the EBR. More than five years later, the Ministry has not yet even decided the scope of that review, much less started the public review process.
Earlier this month, Manitoba introduced the Environmental Rights Act (Bill 20). This development has raised hopes for a meaningful review of Ontario’s EBR and shines a light on the reforms that are needed — and are possible — in Ontario. If and when Manitoba’s Environmental Rights Act becomes law, it will set a bold example for environmental rights leadership at the federal level and in provinces that have yet to introduce such legislation.
We’re especially pleased to see that Bill 20 enshrines provisions that Ontario’s Environmental Commissioner and environmental groups have been seeking for decades. Here are some highlights:
This is not to say Manitoba’s proposed Environmental Rights Act is perfect, or that it improves on Ontario’s EBR in every respect. In a few areas, it is weaker than the EBR. For example, Ontario’s EBR removes the standing barrier that prevents most civil suits for public nuisance by anyone but the Attorney General of a province. Bill 20 has no similar provision.
In other areas, it is unclear what the rights of members of the public will be, since these rights are left to be determined through regulations rather than set out in the Act. For example, Ontario’s EBR contains detailed provisions for public comment on proposed “instruments” (permits, approvals, authorizations and orders) as well as a right to request the government to review existing instruments. All Bill 20 says about such participation is that “the Lieutenant Governor in Council may make regulations prescribing licences, permits and authorizations for which opportunities for public participation will be offered”.
Despite such limitations, the Manitoba’s Environmental Rights Act serves notice on other provincial governments as well as the federal government that public participation in environmental decision-making remains as important as ever. As the Manitoba Law Reform Commission has noted, public participation has many benefits, including:
The introduction of Manitoba’s Environmental Rights Act is bound to raise the question: “If Manitoba can do it, why not Ontario and other provinces?”
Why not, indeed. From an environmental law perspective, the recognition of the human right to a healthy environment in Canada is long overdue. More than 110 countries already recognize their citizens’ environmental rights, and their experience demonstrates that it can lead to healthier communities, healthier ecosystems and innovative, resilient economies.
It’s time for Canadian legislators to join the environmental rights movement sweeping the nation.
National polling indicates emphatic public support for environmental rights, as do the 124 and counting municipalities across Canada that have passed declarations supporting the right to a healthy environment. Momentum continues to grow, and in the coming months and years we hope to see other governments follow Manitoba’s lead and introduce and pass new environmental rights laws or strengthen their existing ones — culminating in the Charter recognition of every person in Canada’s right to a healthy environment, from coast to coast to coast.
Ecojustice and the David Suzuki Foundation are partners in the Blue Dot movement, a national grassroots campaign to advance the legal protection of all Canadians’ right to live in a healthy environment.