Small Things Matter Annual Report 2014/2015 Landscape is the texture of intricacy. ...A bird’s feather is an intricacy; the bird is a form; the bird in space in relation to air, forest, continent, and so on, is a thread in a texture. — Annie Dillard Environmental Commissaire à Commissioner l’environnement of Ontario de l’Ontario November 2015 The Honourable Speaker of the Legislative Assembly of Ontario Room 180, Legislative Building Legislative Assembly Province of Ontario Queen’s Park Dear Speaker: In accordance with Section 58 of the Environmental Bill of Rights, 1993, I am pleased to present the 2014/2015 Annual Report of the Environmental Commissioner of Ontario for your submission to the Legislative Assembly of Ontario. Sincerely, Ellen Schwartzel Environmental Commissioner of Ontario 1075 Bay Street, Suite 605 1075, rue Bay, bureau 605 Toronto, Ontario, M5S 2B1 Toronto (Ontario) M5S 2B1 Tel: (416) 325-3377 Tél: (416) 325-3377 Fax: (416) 325-3370 Téléc. (416) 325-3370 1-800-701-6454 1-800-701-6454 Contents Commissioner's Message: Small Things Matter 4 Part 1 The Environmental Bill of Rights 6 1.1 The Toolkit of the EBR 8 1.1.1 Understanding the ECO’s Jurisdiction 10 1.2 Use of the Environmental Registry 11 1.2.1 The Environmental Registry: Ripe for an Overhaul 17 1.2.2 Outdated Proposals 19 1.3 Ministry Co-operation 21 1.4 Ministries' Handling of Applications for Review and Investigation 22 1.5 Keeping the EBR in Sync with Government Changes and New Laws 24 1.6 Statements of Environmental Values 27 1.7 Appeals of Prescribed Instruments 29 1.8 Use of the EBR's Legal Tools 34 1.9 Education and Outreach 36 1.10 The ECO's Recognition Award 37 Part 2 Reducing Pollution 38 2.1 Making the Polluter Pay: Collecting Adequate Financial Assurance for Environmental Rehabilitation 39 2.1.1 Financial Assurance for Mining Projects 43 2.2 Systemic Pesticides: A Primer 46 2.3 Toxics Reduction Act Update: Living List Framework 52 2.4 A New Regulation for Greenhouse Wastewater 57 2.5 Fatal Attraction: When Birds Hit Buildings 61 2.6 Ministry Ignores Requirement for Environmental Compliance Approval 64 Part 3 Managing Water for the Future 68 3.1 A Renewed Agreement to Restore and Protect the Great Lakes 69 3.1.1 Managing Water Transfers within the Great Lakes Basin 76 3.2 A Problem Too Big to Ignore: Microplastics in the Great Lakes 78 3.3 A Drop in the Bucket: Water-Taking Charge Falls Short of Recovering Costs 82 3.4 Public Participation in Water-Taking Decisions 87 3.4.1 New Ways to Understand Water Quantity: Tools the Ministry Could Use to Inform Permitting Decisions 93 3.5 Ontario Ensures Experimental Lakes Research Will Continue 94 2 Environmental Commissioner of Ontario Part 4 Ontario’s Commitment to Biodiversity 98 4.1 Conserving Biodiversity: Who is Protecting What Sustains Us? 99 4.2 Planning Protected Areas for Ecological Integrity 106 4.2.1 Ecological Integrity is for the Birds: The Presqu’ile Provincial Park Management Plan Amendment 111 4.3 When Darkness Doesn’t Fall: The Ecological Importance of Nighttime Darkness 115 4.4 Going, Going, Gone: Land Acquisition Programs 120 4.5 Moving North: Expansion of Wild Turkey Hunting 125 4.6 The Ecological Impacts of Waterpower Projects on Fish Passage 129 4.7 The Return of the Spring Bear Hunt 134 Part 5 Species at Risk: Going Through the Motions 140 5.1 Government Response Statements: No New Action 141 5.2 Harm and Harass Policy: Unclear Permitting 146 5.3 Habitat Regulations: A Mixed Bag 151 5.4 Caribou Range Management Policy: The Government Won’t Say No 155 5.5 New Rules for Milkweed: Monarchs get a Boost 162 Appendix A 2014/2015 Annual Report Recommendations 166 Appendix B Financial Statement 167 Abbreviations 171 Index 172 Annual Report 2014/2015 3 Small Things Matter Small things matter: an odd title, you might think, for a hefty report that covers a vast terrain. But small things loom large in the following pages, as you will see. This report tries to capture how well Ontario is protecting its great expanses of landscapes, its renowned biodiversity and its wealth of waterways – an annual snapshot, is one way to think of it. Of course, a single snapshot can’t do justice to a complex landscape. And the policy landscape of environmental protection in Ontario has evolved a highly complex texture, patterned by successive waves of legal reforms and shifting priorities. One feature does remain constant over time; under Canada’s division of pow- ers, provincial governments are assigned a very big role on environmental protection. In Ontario, over a dozen provincial ministries are the joint stewards of air, water, land, animals, plants and minerals – pretty much everything out there. Their job is huge. The job of our office – the Environmental Commissioner – is to keep a fair and watchful eye on their stewardship, and to flag concerns for Ontario’s legislators and the public at large. Each year, our Annual Report offers samplings of how well ministries are meeting their environmental responsibilities; how they protect spe- cies, how they prevent pollution, and how they enforce environmental rules. The report in fact is a whole collage of snapshots, a multitude of close-ups and sketches that together give a sense of that stewardship in progress. So I invite you to simply dip in, and sample at will. Select a small image or the thread of an idea here or there. See where it connects in the larger texture. See what questions arise for you. Consider, for example, in part 2.5 of this report, the fate of a migrating songbird. A trivial fluff of feathers, when it collides with an office tower. When millions of birds are killed by windows and preventative remedies are not enforced, is it still a triviality? Or consider the negligibly tiny flecks of plastic described in part 3.2, floating in Lake Ontario. Now that government surveys have found over six million bits of plastic per square kilometre in that lake, is “negligible” still the right word? 4 Environmental Commissioner of Ontario You might also glance at certain laughably small expenditures in the provincial budget highlighted in part 4.4; such as the $6,263 spent on acquiring provincial parkland last year. When the Ontario government no longer has a fund for land purchase to protect vulnerable natural heritage, is it still a laughing matter? Or reflect (part 3.3) on the pittance that the province recovers from water takings per year; a mere 1.2 per cent of what the Ontario government actually spends annually on managing water quantity. What happens when we fail to adequately value a public resource like water? In a complex policy landscape, bright spots are important too; part 3.5 offers a snapshot of the Experimental Lakes Area, and the vital ecological research this institute excels at. Despite losing federal funding, its work can continue, thanks to the Ontario government’s decision to step in with support. Another bright spot focuses on the Ontario government’s changes to its list of “noxious weeds”; these changes, in part 5.5, mean Ontarians are now allowed to grow milkweed, critical for the declining monarch butterfly. And how encouraging that 1,100 Ontarians spoke up about milkweed via the Environmental Registry – a seemingly small matter, with large implications. The Environmental Registry itself is only a small wheel in the overall machinery of government, and yet Ontari- ans’ environmental rights depend on it. Unfortunately, the Registry’s IT platform has become a creaky antique. Learn why it needs an overhaul in part 1.2.1. There you have the briefest introduction to this collage of snapshots – this assemblage of “small things” that matter greatly to the environment. I encourage you to explore further for yourself. Be curious. Ask your own questions. Engage. To quote the writer and poet Annie Dillard, “If you can’t see the forest for the trees, then look at the trees; when you’ve looked at enough trees, you’ve seen a forest, you’ve got it.” Ellen Schwartzel Environmental Commissioner (Acting) Annual Report 2014/2015 5 Part 1 The Environmental Bill of Rights The Environmental Bill of Rights, 1993 (EBR) is an environmental law unlike any other in Canada or the world. The purposes of the EBR are to: • protect, conserve and, where reasonable, restore the integrity of the environment; • provide sustainability of the environment; and • protect the right of Ontarians to a healthful environment. To achieve these goals, the EBR requires the Ontario government to consider the environment in its decision making. While the government has the primary responsibility for protecting the natural environment, the EBR recognizes that the people of Ontario have the right to participate in environmental decision making, as well as the right to hold the government accountable for those decisions. The EBR enables Ontarians to exercise their rights to: • comment on environmentally significant ministry proposals; • ask a ministry to review an environmentally significant policy, act, regulation or instrument; • ask a ministry to investigate alleged harm to the environment; • appeal certain ministry decisions; and • take legal action to prevent environmental harm. 6 Environmental Commissioner of Ontario THE ENViroNMENtaL COMMISSIONER OF ONtario The Environmental Commissioner of Ontario (ECO), as an independent Officer of the Legislative Assembly, is responsible for reviewing and reporting on the government’s compliance with the EBR. The ECO monitors how ministries exercise their discretion and carry out their responsibilities under the EBR.