Good Choices, Bad Choices. Environmental Rights and Environmental Protection in Ontario 2017 Environmental Protection Report The people of Ontario recognize the inherent value of the natural environment. The people of Ontario have a right to a healthful environment. The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations. While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner. Preamble to Ontario’s Environmental Bill of Rights, 1993 Select citations have been included to help readers understand where the information the ECO cites comes from and to assist them in investigating an issue further should they be interested. Citations may be provided for: quotes; statistics; data points; and obscure or controversial information. Endnotes for these facts are generally only included if the source is not otherwise made clear in the body of the text and if the information cannot be easily verified. Exhaustive references are not provided. Ministries were provided the opportunity to provide comments on this report. Ministry comments are available on our website. October 2017 The Honourable Dave Levac Speaker of the Legislative Assembly of Ontario Room 180, Legislative Building Legislative Assembly of Ontario Queen’s Park Province of Ontario Dear Speaker: In accordance with Section 58 (1) of the Environmental Bill of Rights, 1993 (EBR), I am pleased to present the 2017 Environmental Protection Report of the Environmental Commissioner of Ontario for your submission to the Legislative Assembly of Ontario. I am proud to report further progress on environmental rights in Ontario. Government compliance with the EBR continues to improve. Almost all the 1,800 outdated proposals that languished on the Environmental Registry at the time of my appointment have been updated. The quality of notices posted by some ministries has improved, and the public now gets more information about the progress of Applications for Review. The government has promised to update the Environmental Registry software, and review the Statements of Environmental Values for prescribed ministries. Meanwhile, public awareness and use of the EBR also continues to improve, with more than 1,700 Ontarians using our alert service to keep up with environmentally significant government decisions. These changes strengthen the EBR as a tool for open government, public engagement, and social license for government decisions. The last year has been more mixed in terms of environmental protection. Although much remains to be done, the Ministry of the Environment and Climate Change (MOECC) has taken steps to improve environmental health, especially for First Nations. The MOECC is also using the modernization approvals framework respectfully and to good effect. In contrast, the Ministry of Natural Resources and Forestry is using the same framework to sacrifice the protection of species at risk for the convenience of industry. Sincerely, Dianne Saxe Environmental Commissioner of Ontario 1075 Bay Street, Suite 605 1075, rue Bay, bureau 605 Toronto, Canada M5S 2B1 Toronto, Canada M5S 2B1 E: [email protected] E: [email protected] T: 416.325.3377 T: 416.325.3377 T: 1.800.701.6454 T: 1.800.701.6454 eco.on.ca eco.on.ca eco.on.ca Environmental Commissioner of Ontario CONTENTS Executive Summary 6 Chapter 1 The Environmental Bill of Rights 14 Chapter 2 Getting Approvals Right: the MOECC’s Risk-Based Approach 70 Chapter 3 Environmental Injustice: Pollution and Indigenous Communities 98 Chapter 4 Algae Everywhere 148 4 Good Choices, Bad Choices. 2017 Environmental Protection Report Chapter 5 Lightening the Environmental Footprint of Aggregates in Ontario 166 Chapter 6 The Missing 68,000 km2: Ontario’s Protected Areas Shortfall 186 Chapter 7 Getting Approvals Wrong: The MNRF’s Risk-Based Approach to Protecting Species at Risk 216 Chapter 8 Failing to Protect a Threatened Species: Ontario Allows Hunting and Trapping of the Algonquin Wolf 252 Appendix: EBR Report Cards for 2016/2017 270 Environmental Commissioner of Ontario 5 Executive Summary outdated proposal notices on the Environmental Registry by over 80%. Only four ministries still had The Environmental Commissioner of Ontario (ECO) is the outdated proposals on the Environmental Registry at guardian of the Environmental Bill of Rights. We report to the end of the reporting year. the Ontario legislature and to the public on environmental protection, energy conservation, and climate change. 3. Overdue applications for review under the The ECO’s 2017 Environmental Protection Report, Environmental Bill of Rights: Ministries concluded Good Choices, Bad Choices: Environmental Rights and four of the seven overdue applications for review Environmental Protection in Ontario, examines eight that we identified in 2015/2016. The Ministry of the environmental issues this year. The report highlights Environment and Climate Change (MOECC) also examples of positive government action as well as cases began posting status updates of its applications for of government inaction, or worse, misguided action. review on the Environmental Registry. However, the MOECC’s review of the Environmental Bill of Rights Chapter 1: itself remains incomplete, almost seven years after The Environmental Bill of Rights this application was submitted. Each year, the Environmental Commissioner of Ontario Ministries often still take a long time to post decision reports on whether ministries have fulfilled their notices on the Environmental Registry. This delay responsibilities under the Environmental Bill of Rights, deprives the public of the right to know both the and whether their environmentally significant decisions government’s ultimate decision on a proposal within were consistent with the purposes of the law. Last year a reasonable time, as well as how public comments we called on all ministries to show more respect for the affected it. Late posting can also affect the public’s public by improving their best practices and compliance ability to appeal certain instrument decisions. with the law. In response to last year’s report cards, as well as training and outreach by the ECO to ministries, This year the MOECC – which makes the most we saw progress this year in three of the four areas that environmentally significant decisions – generally needed significant improvement: discharged its duties well under the Environmental Bill of Rights. The Ministry of Natural Resources 1. Content of notices posted on the Environmental and Forestry (MNRF), which also makes many Registry: Ministries made modest progress by environmentally significant decisions, performed less making the content of their notices for instruments well; for example, the MNRF did not document its (e.g., approvals, permits, and licences) more relevant consideration of its Statement of Environmental Values to the public and easier to understand. for all decisions. The Environmental Commissioner of Ontario expects all ministries to continuously 2. Outdated proposals on the Environmental improve how well they meet their obligations under the Registry: Ministries reduced the total number of Environmental Bill of Rights. Prescribed Quality of notices Quality of Timeliness Keeping Handling of Avoiding Considering Co-operation Ministry for policies, acts notices for of posting notices on the applications overdue Statements of with ECO and regulations instruments decision Environmental for review and applications for Environmental requests posted on the posted on the notices on the Registry up to investigation review Values (SEVs) Environmental Environmental Environmental date Registry Registry Registry The Ministry of the Environment and Climate Change The Ministry of Natural Resources and Forestry Summary of the Ministry of the Environment and Climate Change and the Ministry of Natural Resource and Forestry’s performance in 2016/2017. Green means that a ministry met or exceeded the ECO’s expectations and its legal obligations; yellow means that a ministry’s performance needs improvement; red means that the ministry’s performance is unacceptable. Arrows indicate annual trends. 6 Good Choices, Bad Choices. 2017 Environmental Protection Report EXECUTIVE SUMMARY Full Environmental Compliance Approval Required e.g., Chemical Manufacturing The ECO recommends that: EASR Registration with Assessment e.g., General Manufacturing EASR Registration with Rules Only • All ministries post documentation of e.g., Commercial Printing Exempt from Approval how they considered their Statement of e.g., HVAC Systems Environmental Values as part of posting decision notices on the Environmental Registry for all policies, acts, regulations, Highest Risk Activities Lowest Risk Activities and instruments. Ontario’s risk-based approach to environmental approvals. Source: created by the ECO. • The MOECC immediately complete its review of the Environmental Bill of Rights; all strategy for EASR registrants, which is already ministries improve their practices to address improving compliance. For example, the MOECC saw operational deficiencies in administering significant improvement in the automotive refinishing the act; and the MOECC amend the sector after taking compliance action. Environmental Bill of Rights itself to remedy legislative deficiencies. A key purpose for introducing the EASR was to enable the ministry