GETTING TO K TO GETTING Environmental Commissioner of Ontario 1075 Bay Street, Suite 605 Toronto, Ontario, Canada M5S 2B1 Telephone: 416-325-3377 Fax: 416-325-3370 ( Toll Free: 1-800-701-6454 NO www.eco.on.ca ) W Disponible en français ISSN 1205-6298 Annual Report | 2007-2008 This Annual Report is printed on Canadian-made Rolland Enviro100 paper manufactured from 100% post-con- sumer waste fibre, is Process Chlorine Free (PCF) and used BioGas in its production (an alternative “green energy” source produced from decomposing waste collected from landfill sites) to reduce greenhouse gas emissions and the depletion of the ozone layer. Rolland Enviro100 saves the harvesting of mature trees, reduces solid waste that would have gone into landfill sites, uses 80% less water than conventional paper manufacturing and helps reduce air and water pollution Certified Processed Chiorine Free 100% Post-Consumer Waste Fibre Recyclable Where facilities Exist Green Energy Source One-half the troubles of this life can be traced to saying yes too quickly and not saying no soon enough. — Josh Billings (1818 - 1885) ECO Staff List 2006/2007 Emily Chatten Michelle Kassel Nadine Sawh Policy & Decision Analyst Policy & Decision Analyst Case Management Assistant Bev Dottin Lynda Lukasik Ellen Schwartzel Information Officer Policy & Decision Analyst Senior Manager – Policy Analysis Dennis Draper Jo-Anne MacKinnon Tyler Schulz Senior Policy Advisor Office Administrator Policy & Decision Analyst Hayley Easto Dania Majid Lisa Shultz Communications & Policy & Decision Analyst Policy & Decision Analyst Outreach Coordinator David McRobert Chris Wilkinson Emma Followes In-House Counsel/Sr. Policy Advisor Policy & Decision Analyst Policy & Decision Analyst Rachel Melzer Carrie Hackett Policy & Decision Analyst Resource Centre Librarian Cynthia Robinson Greg Jenish Office Administrator Policy & Decision Analyst “ ” Environmental Commissaire à Commissioner l’environnement of Ontario de l’Ontario Gord Miller, B.Sc., M.Sc. Gord Miller, B.Sc., M.Sc. Commissioner Commissaire October 2008 The Honourable Steve Peters 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 2007-2008 Annual Report of the Environmen- tal Commissioner of Ontario for your submission to the Legislative Assembly of Ontario. Sincerely, Gord Miller 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 environmental commissioner of ontario | Annual Report 07/08 1 Table of Contents Commissioner’s Message: Getting to K(no)w 4 Part 1 – The Environmental Bill of Rights 7 1.1 The ECO Recognition Award 10 1.2 Education 11 Part 2 – Significant Issues 13 2.1 Ontario’s Action Plan on Climate Change: Deserving of Credit? 13 2.2 Environmental Assessment: a vision lost 28 2.3 Drought in Ontario? Groundwater and Surface water impacts and response 49 2.4 Air Quality Monitoring and Reporting in Ontario – Fostering a False Sense of Security 57 2.5 The Greening of the Ontario Government 62 2.6 Protected Areas Planning: Managing for Ecological Integrity? 68 2.7 Doing Less with Less: Rebuilding MOE and MNR – A Glimmer of Hope 74 2.8 Biodiversity in Crisis 76 2.9 Land Acquisition Program Update 82 Part 3 – Ministry Environmental Decisions 87 3.1 Canada – Ontario Agreement Respecting the Great Lakes Basin Ecosystem 87 3.2 MOE’s Financial Plans Regulation for Municipal Drinking Water Systems 90 3.3 The Water Taking Charge Regulation 94 3.4 Environmental Penalty Regulations 98 3.5 Amendments to Regulation 903, R.R.O. 1990 (Wells Regulation) 103 3.6 Fisheries Protocols Undermined by Crippling Cutbacks 106 2 environmental commissioner of ontario | Annual Report 07/08 Table of Contents 3.7 Legislative Brownfield Reform 111 3.8 Developing an Odour Policy Framework 115 3.9 Burning of Used Oil in Space Heaters is Banned in Southern Ontario 118 3.10 Municipal Hazardous or Special Waste (MHSW) Program Plan 121 3.11 Ministry of Transportation Environmental Standards Project 124 3.12 Regulatory Modernization Act, 2007 128 Part 4 – Applications for Review and Investigation 133 4.1 Permitting Water Takings by Commercial Water Bottlers 134 4.2 Land Use Planning and Protecting Groundwater Resources 138 4.3 Dofasco KOBM Meltshop 142 4.4 Reforming the Mining Act 147 4.5 Other Applications of Interest 149 Part 5 – The Environmental Registry 152 5.1 Quality of Information 152 5.2 Unposted Decisions 156 5.3 Information Notices 159 5.4 Exception Notices 161 5.5 Late Decision Notices and Undecided Proposals 162 Part 6 – Ministry Progress 165 6.1 Keeping the EBR in Sync with New Laws and Government Initiatives 165 6.2 Progress Report on Statements of Environmental Values (SEVs) 172 6.3 Ministry Responses to Past ECO Recommendations 173 6.4 Cooperation from Ontario Ministries 181 Part 7 – Appeals, Whistleblowers and Lawsuits 184 Part 8 – Developing Issues 192 8.1 Roads – Pathways for Humans, Barriers for Functioning Ecosystems 192 8.2 Wildlife Management: Ontario’s Mammalian Predators 198 Part 9 – Financial Statement 207 2007/08 Recommendations 210 Ministry Comments 213 Index 224 environmental commissioner of ontario | Annual Report 07/08 3 commissioner’s message Commissioner’s Message: Getting to K(No)w wenty-five years ago, when I first started working in pol- Tlution abatement for the Ontario Ministry of the Environ- ment, my colleagues and I – the technical experts and bureaucrats of the ministry – made all the decisions about what were acceptable environmental protection proce- dures and what amount of pollution should be allowed to be discharged into the environment. Ministry staff made these decisions by themselves, behind the closed doors of their offices, without bothering either to let the public know what was happening or to ask their opinion on what should be done. Now don’t get me wrong. To a very great extent, the decisions made turned out to be correct, re- sponsible and in the public interest. The point is: nobody asked, because nobody thought the public needed to know. The ministry and its expert staff, including me at that time, thought it was our job alone to protect the environment. But that’s not the right way to do things and, eventually, everyone realized it. The public has to be involved because the decisions being made during the process- ing of various environmental and planning approvals have profound implications for our land, our water and our ecosystems, all part of the natural heritage that the public owns and upon which the economy and our quality of life depend. Further, the consequences of these types of decisions often extend far into the future, with important implications for generations yet to come. There was an interesting exception to the general approach of making decisions in private. The Environmental Assessment Act was passed in 1976 and it required a lot of public involvement and consultation. But, the Act only applied to a limited number of public sector projects; the thousands of environmental decisions and approvals made throughout the years relating to private sector activity were ex- plicitly exempted from its purview. Nonetheless, it was visionary legislation, and well ahead of its time. Unfortunately, as we discuss in this report, that vision may have become muddled, if not lost entirely, in the more than 30 years since the passage of the Environmental Assessment Act. Support for meaningful public consultation on environmental decisions increased gradually through the 1980s and early 1990s. With the passage of the Environmental Bill of Rights, 1993, the right to transparency in government decision-making relating to the environment was crystallized into law. Today, it is generally recognized that public consultation in environmental decision making is important and necessary. But is Ontario conducting successful consulta- tions? There seems to be a lot of public dissatisfaction with the nature of the cur- rent consultation opportunities offered during environmental approval processes. Recent proposals for quarries, landfills, and various energy projects provide illumi- nating examples of a growing public frustration with approvals processes. So, what 4 environmental commissioner of ontario | Annual Report 07/08 commissioner’s message is Ontario doing right, and where has it gone wrong? Is there a better model for proper public consultation? The concept of meaningful consultation is clearly evolving in our society, and there is a lot of uncertainty and confusion about what needs to be done. Most interestingly, that evolution is not being driven by internal efforts to improve Ontario’s frustrating environmental approvals mechanisms, but by the initiatives of aboriginal peoples in the courts. Perhaps it is too early to define what full and meaningful consultation involves, but a couple of aspects are becoming clear. First, consultation is not simply telling people what you intend to do and, then, lis- tening to their comments. Consultation begins with engaging all the parties that have an interest in the proposed project and determining to what degree they understand what the project is, the full range of its potential impacts and how it may be important to them. If the audience doesn’t understand the nature and complexities of the project and/or how it may impact their interests, however sub- tly, then meaningful consultation can’t occur. In such a situation, it is necessary to step back and first help to educate the impacted constituencies and build their capacity to fully participate in and comprehend the decision that is being made. The parties have to get to a position where they all know the full implications of a proposal before a meaningful dialogue can occur.