ENVIRONMENTAL ASSESSMENT AND CONSULTATION IMPROVEMENT ACT, 1996 / LOI DE 1996 AMÉLIORANT LE PROCESSUS D'ÉVALUATION ENVIRONNEMENTALE ET DE CONSULTATION PUBLIQUE

MINISTER OF ENVIRONMENT AND ENERGY

ASSOCIATION OF MUNICIPALITIES OF ONTARIO

ONTARIO WASTE MANAGEMENT ASSOCIATION

ONTARIO SOCIETY FOR ENVIRONMENTAL MANAGEMENT

CANADIAN ENVIRONMENTAL LAW ASSOCIATION

CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY

STOP ENVIRONMENTAL DEREGULATION IN CANADA

CONTENTS

Wednesday 7 August 1996

Environmental Assessment and Consultation Improvement Act, 1996, Bill 76, Mrs Elliott / Loi de 1996 améliorant le processus d'évaluation environnementale et de consultation publique, projet de loi 76, M^me Elliott

Minister of Environment and Energy

Hon Brenda Elliott

Association of Municipalities of Ontario

Mr Terry Mundell, president

Ontario Waste Management Association

Mr Terry Taylor, executive director

Ontario Society for Environmental Management

Ms Janet Amos, president

Ms Ann Joyner, past president

Canadian Environmental Law Association

Mr Richard Lindgren, counsel

Canadian Institute for Environmental Law and Policy

Mr Mark Winfield, director of research

Stop Environmental Deregulation in Canada

Mr Doug Macdonald

Ms Andrea Mozer

Mr Sol Chrom

STANDING COMMITTEE ON SOCIAL DEVELOPMENT

Chair / Président: Mr Richard Patten (Ottawa Centre / -Centre L)

Vice-Chair / Vice-Président: Mr John Gerretsen (Kingston and The Islands / Kingston et Les Îles L)

Mrs JanetEcker (Durham West / -Ouest PC)

Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)

Mr MichaelGravelle (Port Arthur L)

Mrs HelenJohns (Huron PC)

Mr LeoJordan (Lanark-Renfrew PC)

Mr GerardKennedy (York South / -Sud L)

Mr FloydLaughren (Nickel Belt ND)

*Mrs JuliaMunro (Durham-York PC)

Mr DanNewman (Scarborough Centre / -Centre PC)

*Mr RichardPatten (Ottawa Centre / -Centre L)

*Mr TrevorPettit (Hamilton Mountain PC)

Mr Peter L. Preston (Brant-Haldimand PC)

Mr BruceSmith (Middlesex PC)

Mr BudWildman (Algoma ND)

*In attendance /présents

Substitutions present /Membres remplaçants présents:

Mrs BarbaraFisher (Bruce PC) for Mrs Ecker

Mr MikeColle (Oakwood L) for Mr Gravelle

Mr DougGalt (Northumberland PC) for Mrs Johns

Mr TedArnott (Wellington PC) for Mr Jordan (morning)

Mr JimBrown (Scarborough West / -Ouest) for Mr Jordan (afternoon)

Mr DaltonMcGuinty (Ottawa South / -Sud L) for Mr Kennedy

Mr R. GaryStewart (Peterborough PC) for Mr Newman

Mrs LillianRoss (Hamilton West / -Ouest PC) for Mr Preston

Mr EdDoyle (Wentworth East / -Est) for Mr Smith

Ms MarilynChurley (Riverdale ND) for Mr Wildman

Clerk / Greffière: Ms Lynn Mellor

Staff / Personnel: Mr Ted Glenn, research officer, Legislative Research Service

ENVIRONMENTAL ASSESSMENT AND CONSULTATION IMPROVEMENT ACT, 1996 / LOI DE 1996 AMÉLIORANT LE PROCESSUS D'ÉVALUATION ENVIRONNEMENTALE ET DE CONSULTATION PUBLIQUE

Consideration of Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act / Projet de loi 76, Loi visant à améliorer la protection de l'environnement, à accroître l'obligation de rendre des comptes et à intégrer la consultation publique à la Loi sur les évaluations environnementales.

The Chair (Mr Richard Patten): Ladies and gentlemen, welcome to the second day of hearings on Bill 76. I'd like to welcome back the committee members who travelled from Chatham yesterday, and I'd like to welcome the minister here this morning. We'll be anxious to hear, I'm sure, her comments. We will proceed on the basis of 20 minutes for the minister's opening statement, 20 minutes from the critic of the official opposition, Mr McGuinty, and 20 minutes for the environmental critic from the NDP, Ms Marilyn Churley.

MINISTER OF ENVIRONMENT AND ENERGY

Hon Brenda Elliott (Minister of Environment and Energy): Good morning, everyone. It's an honour to join you here in these standing committee hearings on environmental assessment reform in Ontario. By participating in these hearings, you are helping us shape an improved environmental assessment system, a system that contributes to the protection and sound management of the environment. Together we'll be looking at environmental assessment that was first established by a Progressive Conservative government under Bill Davis in 1975.

Ontario's Environmental Assessment Act was one of the first pieces of environmental legislation in Canada and it has in many ways served us very well over the years. But much has changed in the last 20 years since the proclamation of the Environmental Assessment Act. We are now looking at ways to reform it to ensure it meets our needs in 1996 and into the next century.

The Ontario government is committed to meeting the need for a clean environment in three ways: the establishment of high standards for environmental protection; the efficient enforcement of those standards; tough penalties for polluters.

We see environmental assessment as an important part of our protection plan.

Environmental assessment is proactive and inclusive. It helps us look before we leap, to integrate environmental factors up front in decision-making. People have learned the hard way that preventing pollution is less costly than cleaning it up.

During these hearings we will consider a series of reforms aimed at modernizing environmental assessment in Ontario. Behind us we have 20 years of invaluable experience. We have begun to understand what works and what doesn't, and we are acting on that knowledge. We have the added benefit of the experience of other provinces and the federal government with their recent environmental assessment legislation to draw upon.

This legislation will benefit the people of Ontario by maintaining the key features of the Environmental Assessment Act; broadening the definition of "environment," including social, economic and biophysical features; expanding the full range of environmental analysis, including the consideration of alternatives and mitigation; and ensuring the continued role of the Environmental Assessment Board as an independent decision-maker.

We're also introducing a number of EA firsts that will modernize that process to meet present and future needs.

For the first time in Ontario's history the public will have guaranteed access to the process from the earliest stages.

For the first time in Ontario's history there will be early and clear direction on the kind of information to be included in environmental assessment documents.

For the first time in Ontario's history there will be strict time frames imposed up front for all the key steps in the decision-making process.

For the first time in Ontario's history mediation will be available to solve conflicts in a timelier and less costly manner.

For the first time the minister will have the ability to reject an incomplete assessment early in the process.

For the first time there will be provisions to harmonize with the federal environmental assessment process. Our goal is one project, one process. This says no to duplication, no to overlap and yes to cutting red tape.

For the first time the role of class EAs will be made clear in the legislation.

And for the first time the Minister of Environment and Energy will have the power to focus Environmental Assessment Board hearings on outstanding contentious issues. Hearings will not be forced to go back to square one and cover all the issues all over again.

With these firsts, we are capitalizing on 20 years of environmental assessment experience and updating the act to make it less costly, more timely and more effective.

A full environmental assessment will still be required and the focus will be on the environmental impact of a project, not on the process. The public's right to a say in the process will be enshrined in the legislation, and new approaches to compensation and mediation offer an opportunity to move the culture of waste approvals from one of confrontation and stalemate to one of accommodation.

These EA reforms complement work we've already done to put an end to the era of costly and unmanageable waste approvals.

Today we'll be hearing from a variety of people and groups with valuable perspectives on environmental assessment. We'll be joined by community leaders, proponents, technical experts, professional and environmental organizations, and others who have had a great deal of first-hand experience with the environmental assessment process. Many interests are represented here today and I'm certain we'll have a variety of viewpoints on the improvements outlined in the bill.

The overriding interest in reforming environmental assessment is to come up with a more workable system that provides strong environmental protection.

I can say to you that I look forward to the ideas presented during these hearings.

Improving the environment is the responsibility we all share and you can be assured we will give our serious consideration to all the constructive ideas tabled with the committee.

I recognize that some who come before you will say we are not going far enough with our reforms. Others will say to you that we have gone too far. We should not be surprised by the variance in these viewpoints.

As legislators, we need to recognize the strength and progress this bill represents and be receptive to further improvements. I want to assure the people and you that, as minister responsible for this legislation, I have listened and will continue to listen to constructive suggestions.

By making the process more accessible to ordinary citizens, we have the opportunity to move away from the adversarial approach that has dominated environmental assessment cases.

One issue that has come up is whether or not we've provided enough local responsibility for waste.

We recognize that local governments are in a unique position because they are closest to the issues, as well as to the local taxpayers and residents.

When we established the first-time strict emission guidelines for incinerators and lifted the ban on incineration, we gave municipalities another option for determining the kind of environmentally sound waste management system that suits their needs best. But we must remember that some waste issues can be locally contentious, as people have to live with these decisions for many years. This involves detailed technical review.

The ministry has an important role in setting environmentally protective standards and ensuring these are met through approvals.

Technical review, with the potential for public hearings, is involved, and this kind of technical validation ensures that people who must live with the projects have confidence that the local environment is protected.

Also at issue is a need for greater certainty in the process, and this is one of the goals of our reform. We want to see that good projects get a faster yes and bad ones get a faster no. The reforms allow us to do this by ensuring that ordinary people have the opportunity to get involved early in the process and influence the decisions. More on this a little bit later.

The solutions before you that we've come up with have been developed through extensive consultation. This is a process that was under way before the current government took office.

Previous governments did recognize the need to reform the environmental assessment process and they did act. In fact, several of the reforms we're proposing stem from the work already done. This project was started by the Liberal government in 1988 with some of the same goals we're now pursuing.

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The EAPIP task force released a report in 1990 that led to a 90-day public consultation process conducted by the Environmental Assessment Advisory Committee. During that consultation, more than 180 written and oral submissions were received.

EACC recommended both legislative and administrative changes, and in 1993 the NDP government chose to proceed with the administrative reforms.

I am not underestimating the importance of administrative reform. I think everyone would agree, for instance, that the average government review time for environmental assessments has dropped from 17 1/2 months to about seven months, and that certainly is a step in the right direction.

The problem with administrative change, though, is that it can only go so far. It's like trying to fix a flat tire with a Band-Aid. To modernize the process you need to get inside the legislation.

Our reforms are consistent with the kinds of recommendations that were put forward by the Environmental Assessment Advisory Committee. We're not reinventing the wheel with these reforms.

Let's look at some of the reasons why we believe this reform is so necessary. Consider, for instance, the stories of a few examples where the system has gone off the rails:

In my riding, the Guelph-Wellington waste management plan has taken 12 years, cost $4 million and there is no solution. The process has been abandoned.

The Peterborough and Kingston waste management plans have yet to be decided upon, although they have taken 10 and 12 years respectively.

The timber management class EA did reach a decision, but it spent four and a half years trying to do so and it cost $20 million in the process of doing so.

The worst, though, the Ontario Waste Management Corp, charged with finding hazardous waste solutions, took 15 years and $145 million only to have its environmental assessment rejected near the end.

The problem with the environmental assessment process arises largely from its lack of clarity. It sets only a broad framework without giving clear and detailed direction. Over the last 20 years the process has evolved in ways that create process for the sake of process without tangible environmental benefits. The Environmental Assessment Act does not specify, for example, how many alternatives must be considered. Public sector proponents end up doing more work than necessary to cover each and every requirement that might be placed on them. As a society, we can't afford any more encyclopaedic approaches. There is also no requirement for public involvement early in the process.

The result of this is a process and a system that have come to value process more than results. The point here is not that process doesn't matter -- certainly it does -- but it should never be the dominant feature of environmental assessment. We have to not lose sight of environmental mitigation and its impacts.

We must not lose sight of the fact that peoples' lives are affected by the environmental assessment process. If the process works as it should by giving quick approval to environmentally good projects, communities and individuals benefit. When the process becomes bogged down, communities suffer. Environmental assessments can become protracted, draining resources and, worst of all, dividing communities, putting people's lives on hold.

This is not what we want to see in environmental assessment. Let's remember that many projects have environmental benefits for their communities, keeping communities safe, healthy and clean. That's what these reforms are all about: providing the best environmental protection we can.

In greater detail, let's talk about some of the reforms we're proposing and how they will help get the system back on track.

As I said earlier, for the first time in Ontario's history the public will have guaranteed access to the process from the earliest stages. Earlier public input means earlier identification of contentious issues and fewer surprises late in the process. For the first time proponents will be required to consult with the public in preparation of environmental assessments. The public will have access to independent mediation at any point in the process where contentious issues arise. We're formalizing a concurrent public and technical agency review at the formal process review stage. This ensures for the first time that the public's input is factored into formal decision-making.

Terms of reference set out the kinds of information and the level of detail required by agencies to make a decision on the environmental assessment. We will focus on key environmental issues and seek involvement from all relevant parties and stakeholders. We will use the term of reference for decisions at later stages in the progress of environmental assessments.

With regard to time lines, we will also provide greater certainty by establishing binding time lines for the various stages of environmental assessment. This will be especially good news to the communities, the municipal councils and the businesses affected by environmental assessments. At the same time, we will allow flexibility for the proponents to make sure they have a chance to get it right.

This brings me to the scope of hearings. Unfortunately, the Environmental Assessment Board must all too often deal with non-contentious issues or peripheral topics that don't contribute to environmental protection. We shouldn't be holding hearings on non-contentious issues. Hearings are useful for important environmental issues, and an independent arbiter is needed. We've preserved this role for the board. Still, issues that come before the board must be focused.

Everyone here recognizes the need for a modernized environmental assessment process that meets our needs today and in the future. The reforms we are discussing today will make the system more accessible and workable. In doing so, we'll enable the Environmental Assessment Act to fulfil its purpose, which is the wise use and management of the environment.

Environmental protection is the top priority for the Ministry of Environment and Energy. We are committed to ensuring that our communities are as safe and clean as possible and that they remain good places in which to grow, live and work. I believe that our environmental assessment reforms before you today will help us achieve these goals.

I want to thank each of you for joining us to discuss these reforms and taking the time to go through this material. Your commitment to the process will help us develop a workable system based on the highest standards of environmental protection.

Mr Dalton McGuinty (Ottawa South): I propose to mix my 20 minutes in the sense that I'll be making some comments and at the same time asking questions of the minister.

At the outset, let me commend the minister and her government for making an effort to reform the environmental assessment process in the province. I don't think there's any doubt that there has been some considerable legitimate criticisms levelled against the legislation and the fact that it produces hearings that have been too costly, too long and too unpredictable in terms of their outcome.

Having said that, as is my obligation, I intend to point out some of the shortcomings of the bill. Let me say as well that it's my conclusion that Bill 76 is not stillborn. There are defects. Those can be cured through amendments. We intend to put forward amendments, but let me address some of the particular concerns I have.

Let me begin by talking about the title. You've got to hand it to the wordsmiths today. Those are the folks who select the right words and then string them together in the right sequence. As somebody once said, you can lend the appearance of solidity to wind. This title says, "An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act." Who the devil could be against that? It might have gone on to say "and to compel Ontarians to love their mothers, enjoy apple pie and refrain from kicking dogs."

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But let's look at the contents of the bill to see if it lives up to the billing claimed in the title. And I'm surprised that there's no reference in the title to efficiency and streamlining. That's one of the objectives, surely, of any reform of environmental assessment legislation in the province.

You talk, and there has been much talk in the past both by yourself and the Premier, of a need to ensure that we continue to have full environmental assessments, and you made reference to that again today. You said a full environmental assessment will still be required. I want to outline for you why I feel that Bill 76 is not going to allow or is not going to ensure that there's going to be a full environmental assessment.

There are a number of provisions in the bill that empower you to dispense with essential EA requirements and that are going to allow proponents to avoid doing a full environmental assessment. By a full environmental assessment I mean consideration, if we take a look at the landfill context, of all the things like the importance of examining the three Rs or other alternatives to landfill; the requirement that we examine alternative sites that may be hydrogeologically superior to the site preferred by the proponent; the requirement that we examine alternative landfill designs; and the requirement, at present, that the proponent address the full range of biophysical, socioeconomic or cultural impacts caused directly or indirectly by landfills.

They're not going to have to do that under existing legislation under the proposal, under Bill 76, and that's because you have been given discretionary authority in the bill to exempt a proponent from having to meet those requirements.

I just want to remind the minister of some of the statements made by the Premier when he was leader of the third party. He made these statements in the House when raising questions with the Premier of the day or the Minister of the Environment of the day. One question asked June 27, 1991, was, "Why did the minister dismiss the Kirkland Lake proposal out of hand, without examining the merits and without permitting a full environmental assessment on that proposal?" Mike Harris, leader of the third party.

Again, October 15, 1992, Mike Harris: "You did not live up to your commitment that any new landfill sites would be `subject to the fullest kind of environmental assessment.'"

Mike Harris, October 15, 1992, again: "I will commit that there will be a full environmental assessment, that all alternatives must be considered."

Then when he was Premier, in the House on October 23, 1995, I asked a very simple question of the Premier: "My question, Premier: Do you still, today, believe that Ontario's dumps ought to be the subject of full and public hearings under the Environmental Assessment Act?" His response: "Yes, I do."

In spite of the fact that we felt the previous government was proceeding in error with their mega-dump proposal, at least they were having full environmental assessment, not trying to short-circuit the process, not going without any full environmental assessment.

My question is, if you are genuinely intent on ensuring that there be full environmental assessments for proponents for landfills or other undertakings, why have we found within the bill a number of sections that allow you to approve EA terms of reference which do not require proponents to examine alternatives to the undertaking, alternative methods of carrying out the undertaking, or the full range of biophysical or socioeconomic impacts associated with the undertaking?

Hon Mrs Elliott: There are a number of different parts here. The first one, with regard to the empowerment to dispense, for instance, there always has been an element of the environmental assessments that allowed exemptions to occur. I just looked at my notes here, and the average number of exemption orders granted annually has been something in the order of 27. We decided that there may be from time to time reasons to have that exemption still in there. But I certainly agree with you that it's important, and have in this maintained the broad definition of "environment." We have all of the projects subject to the full Environmental Assessment Act.

You have to also keep in mind that we now have for the first time in the province standardized landfill regulations. We have a compensation committee just about to go out throughout the province to help us with some kind of guidelines for compensation as well. So there are a number of things coming to bear in this as well which I think will help the citizens feel they are having the best input and we are looking at all of the aspects of the protection of the environment with regard to a landfill.

The ability for an environmental assessment to go before a hearing has always been discretionary, and that is as opposed to mandatory. Again, we are still allowing the environmental assessments to be subject to hearings. They will continue to be discretionary. It's not uncommon for environmental assessments to be accepted without hearings, particularly of course the class EAs, and 90% of the environmental assessments are class EAs.

We believe that in the case of contentious issues it's important that we be able to scope them before the board, that that arbitrator, that final voice, is there to provide a second opinion. The opinion of the board is binding, but it can be scoped. That will prevent us from getting into situations where, for instance, with the timber EA one I think the hearing process was almost four years. Our objective here is to provide the best environmental protection that we can by having a sensible and by having a timely, as you said yourself, and predictable process.

Mr McGuinty: I know there is provision in existing legislation to exempt undertakings entirely from environmental assessment hearings, but my concern, without getting into discussion of that and the merits of that, even as it's found within the existing legislation -- that's replicated in this legislation, in this bill. I'm talking about the authority here that you're going to reserve unto yourself to cherry-pick in terms of deciding what kind of requirements a proponent is going to have to meet in terms of preparing their application or their environmental assessment. That isn't found in the existing legislation.

Why is it, again, if you're telling us there's going to be a full environmental assessment, that you are reserving unto yourself the authority to say, "Well, in that case, you're not going to have to consider alternative sites; in that case, you're not going to have to consider the three Rs. Just put that forward; that's okay by me"? That isn't a full environmental assessment. That's not what you're talking about giving the people of the province. Why are you reserving that power unto yourself?

Hon Mrs Elliott: You always get into the interesting discussion of whether it's better to have the decision-making power with the minister or whether it's better to leave it with the bureaucrats. Sometimes the citizens will say, "We prefer that the bureaucrats make the decision." Others will say, "No, no, we want the minister to be able to make the decision, to be politically accountable and responsible at the end of the day."

What we believe we've done here is strike a very good balance. With the terms of reference, we still have the discussion of need and alternative that does need to go on. What we believe will work is that in the discussion of the terms of reference that will occur with the proponent, with the ministries, with the public, we will be able to focus on those issues which everyone agrees at that time are the most important with regard to the environmental impacts of the project. Those will be the issues the environmental assessment will focus on.

Keeping in mind that the Ontario government still is fully supportive of the concept of recycling -- all of our recycling rules are in place, all our expectations are there, and certainly there's not a community in the province that would for one minute, I don't think, consider going forward with a project that didn't have an element that was going to require the community to minimize its waste.

What we've done in the terms of reference is have all of the options there. We've got public involvement, we've got discussion and we have at the end of the day, through the Environmental Bill of Rights, another opportunity for public information and comment on those terms of reference as well.

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Mr McGuinty: I want to make it clear that you have not satisfied my concerns with respect to the reasoning behind your reserving unto yourself authority or power to cherry-pick in terms of deciding what burden proponents are going to have to face in preparing an application, but I want to move on to something else.

One of the things you have talked about today and has been said in the past is that Bill 76 is going to ensure that there's early, effective and meaningful public consultation. We're introducing a new animal in Bill 76: terms of reference. Yet there is no requirement at the very outset when a proponent prepares terms of reference that the public be involved. The terms of reference, as I understand them, are going to lay out what we're going to talk about, what's on the table. If the public can't be involved in lending shape to the terms of reference, then I don't think it can be argued that they are being given an opportunity to provide meaningful input into the environmental assessment process.

Why will the public not be allowed an opportunity? Why is there no obligation on a proponent who's developing terms of reference to consult the public? I should tell you that one of the advantages we've had as a committee is that while normally you would have been first to appear as a presenter, we had the opportunity to hear from a number of groups, including those that represent proponents, that indicated it was in many cases very helpful to find out who the opposition's going to be early on and to sit down with those people and begin to work in a cooperative manner to address their concerns. This isn't going to allow for that. Why isn't it?

Hon Mrs Elliott: You're absolutely right. It certainly has been the experience gleaned over the years that as early as you can get public involvement -- the proponent, whether it be a municipality or a private company, right now has no obligation to go out into the community and seek public involvement. What they have come to learn is that the earlier they do it and the better they do it, the more efficient the process moves along and they can address the real issues that will come to bear through the environmental assessment process.

What will happen here is that clearly the proponents will go to the community, as they have come to recognize is the appropriate way now. They will go to the community and seek advice. Before, though, the minister approves the terms of reference, it's our intention that the terms of reference be posted on the Environmental Bill of Rights registry, which is a tool that we have found very helpful in not only informing about the very fine details of a project but an excellent opportunity to receive input. That would be the final tool, sort of the second tool, to receive input before the terms of reference are finalized.

Mr McGuinty: I don't see any obligation in Bill 76 that requires you to post the terms of reference. In fact, we heard from a professor yesterday from the University of Windsor saying that there was nothing under the legislation governing the Environmental Bill of Rights that would permit the posting of the terms of reference. Are you telling me you're going to make the necessary amendments to ensure that there will be an obligation on the part of the ministry to post the terms of reference prior to approval?

Hon Mrs Elliott: It certainly has been our intention all the while to post it on the Environmental Bill of Rights registry.

Mr McGuinty: The issue of participant or intervenor funding came up a number of times yesterday, and it was admitted by those who had been proponents themselves or by others who had represented proponents that this had been a useful tool in finding out who was in opposition to a particular proposal and what the concerns were, thereby enabling them to develop a better and more environmentally sound proposal.

If this government is intent on ensuring that the public has the opportunity to give meaningful input, how can they do so if you've now allowed intervenor funding to lapse in the province? There's no provision made in Bill 76 to allow the public to meet some of the expenses, particularly pertaining to retaining counsel or hiring experts of their own because they're looking for some third-party corroboration. Why isn't that in here and how can you say that the public's going to have meaningful input if there's no funding available? Again, this is at no cost to the government.

Hon Mrs Elliott: You've also heard a couple of other stories about intervenor funding, both its successes and its pitfalls. One of the things that has happened, and I mentioned that in my speech, is that we have learned a lot about the process and how it's worked over the years. What we've come to recognize is that proponents, as we just mentioned, feel it's very valuable to have input from citizens' groups right at the beginning, from those most affected, and it has become the norm that the proponents essentially cover the costs of the public involvement at the beginning. There always have been and will continue to be cost awards available.

The other thing is that with the Environmental Bill of Rights, for instance, and some of the other mechanisms, it's still very possible for public participation to occur.

The other thing I found interesting when we were discussing in great deal whether we would continue the pilot project of intervenor funding or allow it to sunset as was originally intended, which was our final decision, was that intervenor funding is only done by the federal government and British Columbia. It isn't in the other provinces; only some partially in Alberta and Manitoba. Certainly in many other jurisdictions of the country they have come to recognize that public participation is still quite possible through the methods that are there and through the proponents' understanding that public involvement is important at the outset.

Ms Marilyn Churley (Riverdale): Thank you for coming today, Minister. I'll start with saying that I have some good news and some bad news for you. First, the bad news: The title of your bill is nothing short of brilliant, as my Liberal colleague said, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act. Your stated goals are superb. However, the bad news is that this bill does not achieve your goals.

The good news is, however, that this bill has not been passed in law yet. You will be hearing from a lot of people. We heard from some yesterday with a great deal of expertise on all sides of the issues who will be giving some very good advice on amendments that need to be made for you not to break your Premier's promise, and that promise was that there would be full EA requirements for any dump site or related waste facilities. With this bill that promise will be broken; there's no doubt about it.

The Environmental Assessment Act is arguably the most important environmental planning statute in Ontario, and at the very heart of the EA is the criterion to consider the alternatives. You're ripping the very heart of EA out. That is what makes the EA different from the Environmental Protection Act and makes it the strongest act in all of Canada, to my knowledge, and we've been very proud of that.

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There is no doubt that there have been problems with the process. As you rightly mentioned, our government moved on the administrative side in some of these areas; more needed to be done. I think the most comprehensive report that was done, and you alluded to that as well, in this area was the 1992 report by the Environmental Assessment Advisory Committee, which you have now disbanded. They came out with some very good recommendations, some of which are included in this bill, but unfortunately some aren't that were very important. In my view, the ones you have put in have been adapted in a rather cynical way, in a way that they can threaten the entire integrity of the EA process. I believe one of the authors of that study will be coming to speak to us later today. It will be interesting to see what he has to say about his take on your interpretation of those recommendations.

There are a couple of points I would really like to get at before I ask you a few questions. First of all, you make quite a point of talking about the fact that you now have new landfill standards, and that's good. They are improved standards, but I just want to point out that there always have been standards. They have been within the guidelines that ended up taking the force of law after they'd been written into the approval, so it's nothing new that there are now new standards; they've always been there.

It is the same with public consultation, Minister. I'm happy to see that public consultation is now enshrined in the bill, but the reality is that nobody in their right mind even tried to get to an EA hearing without public consultation. De facto public consultation happened. It's good that it's enshrined, but there's no way there wasn't public consultation. It was impossible even to prepare for an EA. They would have been turned back without proper public consultation. You're making a big deal about that and it's laudable, but it's not new.

You keep saying that now for the first time citizens and community groups will have the opportunity to be consulted up front. That isn't quite correct, because there is no requirement in Bill 76 for public consultation on the development of the terms of reference. This of course is absolutely key to what happens in an EA. This is where important negotiations take place. During that time things can be negotiated off the table, behind closed doors in secret with the proponent. Community groups, environmental groups and other concerned citizens will not have an opportunity up front to participate in the very important terms of reference which are going to set the tone for how the EA is going to be scoped. That's the time when certain issues can be negotiated off the table, including having to look at alternatives.

You have implied in your documents and you said today that the terms of reference will be placed on the EBR registry, but it's not clear to me how this would happen because the proposed terms of reference for an EA do not fall within any existing categories of proposals that go on the registry. I assume that you would be willing to amend the Environmental Bill of Rights and regulations so that this can be accomplished, because otherwise there's nothing to guarantee that it would be and there are no legislative powers to do that.

The other problem, even if it is posted, is after the negotiations have happened. It's after the fact, it's 30 days on the registry, in some cases not enough time to give the feedback that could be needed in complex cases as waste management cases are, as we well know. I'd like to hear you say today that you will amend the EBR so it's enshrined in the legislation so that it would have to go out to the public, and I'd like to hear you say that you'd give people a bit longer than 30 days to respond. What I think would really be important, and I expect you would not do this: I ask that you would consider giving the public -- which has to be defined, by the way, who the interested parties are in your new act. That is not defined. I expect there could be lawsuits over that very critical point: Who are these interested parties going to be in the process? I think that will be of great interest to community groups.

I want to ask you a couple of specific questions. Because of the Tory budget cuts, the MNR right now is believed to be out of compliance with the legal requirements of the timber management class EA approval. You referred to it. That came about through public consultation, and MNR is now required by law to go through that full environmental assessment as a result of those consultations. You have a responsibility to enforce these legally binding conditions. But I understand that everything's on hold right now, that people are waiting for you to amend the EA act to allow those protections to be gutted. At the end of the day it seems that the minister could even make the forest industry companies, rather than the MNR, the proponent. You have a lot of discretionary power here. It's my understanding from the new bill that you could do that, that you could eliminate existing protections without any need for a new hearing or a new board decision.

I want you to promise me today that you will not amend the timber EA without full consultations with the stakeholders who worked hard for years to get to this point in a very important hearing, who participated in good faith, that you will not change it without consulting again. That's my question.

Hon Mrs Elliott: You had a couple of questions. One was a number of suggestions for change. I think it would be inappropriate for me to make promises about any changes or amendments that we're going to make to this Environmental Assessment Act at this point in time, coming into the second morning of the hearings. I was very sincere when I said that the advice and the comments we'll be hearing in the next few weeks will be taken very carefully into consideration, and I certainly have noted, as I'm sure others have, the concerns that you mentioned in your question.

With regard to timber management, any requests that come from any ministry -- we do get them from time to time; I'm certain those occurred during your government as well -- are dealt with as they always have been in the appropriate way. There has been some discussion about timber management. I'm sorry, I don't have the file in front of me, but anything that would come before us would be dealt with in the appropriate process, and there was never a discussion or thought in the changes that were brought before you here in the Environmental Assessment Act that really would have any play with changes for exemptions or whatever that would come before us in the normal way.

Ms Churley: I want to come back to another issue I raised: the importance of looking at alternatives, particularly around waste management issues, because it's not just about how we manage our waste; it's also a resource consumption issue. The standards, of course, only deal with the pollution problem and not the resource consumption. May I say that the development of the 3Rs in large part came from the requirement that proponents look at alternatives to the undertaking. There is no guarantee any more that this will happen.

For instance, and I asked your staff this, if there's a proposal for, say, an incinerator, there's no guarantee that the proponent will have to look at alternatives, and of course there is a direct link and competition between materials that are used for recycling and burning. There is no guarantee; we know that. It could be negotiated off the table. What I was told was that if the proponent is in the same business of also recycling, then they might be required to look at that, but if not, they don't have to be. This is a big problem, that people will not be required necessarily to look at social impacts, would not necessarily be required to look at alternatives.

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My question is, how are you going to absolutely guarantee, since it's not for sure that these alternatives have to be looked at, that we continue on the path we are on in reaching the goal of 50% waste reduction by the year 2000?

Hon Mrs Elliott: I would say to you that our intention to minimize waste continues, that our goals have not changed to reduce waste by 50%. Many communities are hard at work at that, have achieved those goals. For instance, in my own municipality of Guelph we've got a new pilot project; actually, it's moving beyond a pilot project now. It's the first of its kind in North America, a composting project that's city-wide. It is expected that it will actually see a 60% reduction in the waste that's going to the landfill there.

Guelph is not an anomaly. There are many other communities that are coming up with all sorts of other alternatives to landfills. I think we have to remember that the environmental assessment changes you've got before you here go beyond just the search for landfills, although that's certainly important. Municipalities have to make some decisions as to what kind of waste management options they're going to pursue. These are political decisions that they have to deal with, and it's certainly been our government's point of view that these are decisions best made by the local communities because they are closest to and therefore most responsive to the needs and the wishes of their community.

That was one of the reasons why we lifted the ban on incineration, quite frankly. We felt it was important, if we had the standards and we have the strict requirements that we do have for emissions, that our municipalities had all of the options before them to deal with their waste in the way that worked best for their communities.

Ms Churley: You brought up incineration, and I don't have time to go into that today. You may have noticed again today another report in the paper about the problems with smog in Metro, and of course incineration continues to contribute to that. That's a really backwards step, especially again in terms of resource consumption.

However, Minister, I want to refer you to -- I presume you don't have it, but this is tied in -- another great title, Responsive Environmental Protection, the deregulation that your government is engaged in. On page 45 of that report there is just a small statement around, it says, improving flexibility and promoting voluntary action: "Some stakeholders recommend revoking the waste and packaging audit and work plan regulations. The ministry is seeking input on this option."

Knowing that your changes were coming out on EA around the time that these new deregulation consultation papers were coming out, how could you even put on the table a consultation around getting rid of waste and packaging audits at a time when the EA act is being gutted so that proponents do not have to look at alternatives any more? I can guarantee that in many cases, because the ministry has so much discretionary power, that is indeed what will happen. At the same time, you have on the table for consultation getting rid of a major part of that reg that will help us achieve a very difficult goal, the 50% reduction by the year 2000.

Would you commit today to take that particular component off the table so that it is not even considered? How can you possibly consider these two at the same time? It's absolutely ridiculous. My question is, will you take it off, given that the alternatives, the heart of the EA, is no longer guaranteed? It is a broken promise unless you amend it. But this, in tandem, will absolutely guarantee that we won't achieve that goal, which affects our resource consumption problem, which down the road will have all kinds of impacts that I don't have time to go into here but we will hear about later today from others.

Hon Mrs Elliott: I find it difficult to hear you use the word "gut" when we're here talking about the Environmental Assessment Act, which you just yourself a few minutes ago said was in need of reform.

Ms Churley: Reform is not tearing the heart out of the EA.

Hon Mrs Elliott: I hope that when you look at the changes, you will be thinking in terms of constructive suggestions for changes to the Environmental Assessment Act.

Ms Churley: Will you take this out of this consultation document?

The Chair: Ms Churley, will you allow the minister to finish her comments.

Hon Mrs Elliott: In the title of the booklet that you held up with regard to our regulatory review, I think the key word on that is "Responsive." Not only have we sought public advice on the changes to the Environmental Assessment Act that are before you, but we have very clearly gone out to all the people of Ontario and said, "Give us your advice on the changes that should occur to our regulatory regime." This was one of the suggestions that came forward to us, and certainly the document that you're referring to, the environmental review document, is one that is in the process of seeking advice. Whether it be on a packaging audit, whether it be on any number of things, that is the whole process here.

As far as we're concerned, our whole objective in the regulatory review is to make sure that every single regulation that we are enforcing in the ministry, we are enforcing effectively and efficiently. And most important -- it is vital -- is it important to the environmental protection of activities in this province? As far as I'm concerned, every dollar that's wasted on unnecessary red tape protecting the environment is money that's not invested in pollution prevention in this province. That's why we think it's important that our regulatory regime is examined carefully.

With regard to voluntary action, certainly our standards are high. We intend to enforce our standards here in this province, as I'm sure the federal government intends to enforce theirs across the country. But the new environmentalism will tell you that governments can't do it alone, that finding many, many partners to help us achieve our objectives is crucial, and voluntary action is very much a key component of that.

Ms Churley: Minister, I just have one minute left. I had a lot of questions around this that I can't ask now, but it's very clear to me that -- you know, you said for every dollar spent, and I won't repeat your quote again. The reality is, due to this and your deregulation and the litany of environmental cuts and deregulation, including the laying off of 750 staff, the millions of dollars cut from the budget, the litany of deregulation that's already happened, you and your government are creating a terrible environmental deficit that our children and our grandchildren will be paying for down the road. That is the reality of your actions.

There are deficits other than monetary, and what's happening here is that for the short-term interest of moving ahead with getting development -- as you put it, getting everything moving again -- the reality is that you're not going to be in power when it happens, but our kids and our grandkids are going to be paying huge amounts of money in health and environmental cleanup problems as a result. So you have to keep the long term in view as well.

I saw yesterday that Laidlaw was very happy with your changes; community and environmental groups are very upset by them. That says a lot.

The Chair: Thank you, Minister, for being here this morning. Our time has elapsed, and we will now move to the next phase of hearing our first witnesses for today. You are of course welcome to stay and join us if you have time.

ASSOCIATION OF MUNICIPALITIES OF ONTARIO

The Chair: We now call forward the presenters for the Association of Municipalities of Ontario: Mr Mundell and Ms LaValley. The opportunity is 30 minutes for your presentation and/or for an opportunity for the various members of the committee to pose questions. We divide up any remaining time from your presentation between the three parties equally. For the sake of Hansard, please introduce yourself and your co-presenters and begin your presentation. Thank you for coming.

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Mr Terry Mundell: I would like to thank you very much on behalf of the Association of Municipalities of Ontario for the opportunity to appear before you today. I'm Terry Mundell, president of AMO, and with me today is vice-president Ethel LaValley. We are here today to present to you the response of the municipal sector regarding the proposed changes to the environmental assessment legislation, especially as they relate to the waste approvals process in Ontario.

AMO's response is based on our fundamental belief that in the current climate of severe fiscal constraints, resources should be devoted to the protection of the environment instead of towards cumbersome process requirements.

At the outset, I would like to emphasize that municipalities support the province's stated objectives for revitalizing the environmental process, which is in need of urgent reform. AMO agrees with the province that reforming the environmental assessment system must achieve the objectives of greater certainty and timeliness, reduced costs to the taxpayer, while ensuring environmental protection. Some sections of Bill 76 represent a first step towards achieving these objectives.

However, after reviewing the amendments in their entirety, the association is unable to support Bill 76 in its current form. The government's proposals do not address municipal concerns and priorities for streamlining the approvals process, establishing a division of responsibilities between the two levels of government while ensuring environmental protection.

In a recent business plan document, the Ministry of Municipal Affairs and Housing has stated its commitment to reforming the relationship between the province and municipalities. They indicate, "Municipalities are accountable elected bodies that have the capability and maturity to deliver services to their citizens without detailed and specific controls from the province." From our standpoint, Bill 76 is contrary to the spirit and does not resolve the questions of governance, nor does it save costs in the delivery of services to the taxpayers of Ontario.

The context for reform: Since 1980, all municipal undertakings have been subject to the Ontario Environmental Assessment Act. Over the last 16 years, especially in relation to waste management undertakings, municipalities have devoted extensive time and resources to cumbersome and open-ended process requirements. Long delays have ensued which have cost Ontario taxpayers hundreds of millions of dollars without necessarily ensuring a greater degree of environmental protection or indeed any improvement over the status quo.

From a municipal perspective, the uncertainties with the approvals process are primarily due to several key factors:

-- Unnecessary duplication between the parallel environmental assessment and planning processes.

-- Lack of provincial standards and the unrealistic expectation to search for the best alternative rather than choosing an acceptable or reasonable option.

-- Lack of closure and sign-offs on stages of approval.

-- An overly bureaucratic and technocratic process which pays little regard to the role of locally elected officials who are accountable and entrusted to make decisions that affect their communities. In other words, there is a lack of clearly defined role for local approvals.

Over the past several years, AMO has participated in and contributed to every major environmental reform initiative. Last year, AMO was encouraged by this government's commitment to tackle reform of the environmental approvals process. We applauded the Premier's decision to terminate the mandate of the Interim Waste Authority and rescind the ban on MSW energy from waste, as an important step in returning the responsibility for waste management to municipalities in the greater Toronto area. This was viewed by municipalities as a down payment on restoring local autonomy and accountability.

At that time, the Premier defined the provincial responsibility to be one of overseeing the environmental assessment process and setting environmental standards, while municipalities would have primary responsibility for waste disposal planning and implementation, consultation, site funding and establishing and operating landfill sites.

AMO also acknowledges the Premier's statement in the House on October 23, 1995, that Ontario's landfills ought to be subject to full public hearings under the EAA. AMO supports assessing the impact of facilities on the environment, the public's right to comment and a streamlined, transparent and upfront environmental assessment process.

As a contribution towards the reform effort, the association published its official position, AMO Priorities for Reforming Waste Management Approvals in Ontario. AMO argued that in order to streamline the waste approvals process, community and political issues should be disentangled from technical and design issues. In our view, this achieved an appropriate balance between the provincial role to introduce performance-based standards while allowing local decision-makers sufficient flexibility to proceed with their own undertakings.

In brief, the association advocated that solid waste approvals should be exempted from the EAA and instead placed under the authority of the Planning Act. Unlike the EAA, there are many advantages to the results-oriented Planning Act, some of which are outlined below:

-- A front-ended process requiring the proponents to produce sufficient information and the challengers to direct their comments upfront through a prescribed process.

-- A transparent process which requires public participation.

-- A focused investigation into the merits of a specific site for designated uses.

-- Established and clearly defined time frames for decision-making by accountable municipal councils.

-- Of course, an appeal mechanism.

In practical terms, under the proposed AMO approach, once a selected number of sites are identified that meet the specified standards set by the province, the final decision as to which is the appropriate site in a local community would be made by municipal councils through an open process with opportunities for public input. Community issues related to a broad range of concerns such as compensation, cultural, planning and human issues can be effectively merged within the defined rules and procedures set out over the last five decades through the Planning Act.

From AMO's vantage, Bill 76 is a missed opportunity to merge Ontario's land use and environmental planning into one simplified process.

Matters of governance: restoring responsibility for approvals to the local level: AMO believes that a proper division of roles and responsibilities between the two levels of government is an essential element of a streamlined approvals process. Under Bill 76, the approvals process continues to be dominated by officials at the ministry while the role of elected and accountable municipal councils is totally ignored. As proponents responsible for major capital expenditures paid for by local taxpayers, municipalities must have a greater say in the approvals process.

In our view, the concentration of authority in the hands of the director to judge the adequacy or deficiency of an EA and his/her ability to direct the proponents to take action is extremely troubling. Municipal councils cannot be held responsible for the actions of a director who is unaccountable to local taxpayers. Inevitably, the director will be empowered to micromanage the local approvals process. This is contrary to the stated objectives of this government to clarify provincial-municipal roles and restore taxpayer confidence in government activities.

Therefore, AMO recommends: that Bill 76 acknowledge and define the legitimate role of locally elected and accountable municipal councils in the approvals process; furthermore, that in relation to waste approvals, Bill 76 re-examine the province's responsibility to be one of overseeing the environmental assessment process and setting environmental standards, while municipalities would have the prime responsibility for waste disposal planning and implementation, consultation, siting funding and establishing and operating landfill sites.

Although we are disappointed with the approach taken, AMO supports a number of provisions in Bill 76 which represent a starting point for achieving shared provincial-municipal goals. Specifically, AMO supports:

-- The potential flexibility in the development of the terms of reference.

-- The minister's power to scope the EA and oversight of the EA board and the mediation process.

-- The ability of municipalities to purchase land early in the process prior to approvals in connection with the undertaking.

-- Explicit recognition of class EAs.

-- Harmonizing Ontario's EA with requirements of other jurisdictions in Canada.

Inconsistencies between the province's stated objectives and the legislation: After a careful review of the reform package in its entirety, the association believes that the proposed changes to the act do not substantially improve deficiencies in the current process. The few gains contained in some sections of the bill are potentially undone by other sections. The key shortcomings and AMO's recommendations for rectifying them are outlined as follows.

Definition of the environment and the investigation of alternatives: The bill retains the broad and unattainable definition of the environment and the onerous task of considering all alternatives, including those that the proponent does not wish to pursue. A more focused definition of the environment, as well as a more realistic expectation of finding a reasonable alternative could save Ontario taxpayers hundreds of millions of dollars in studies and unnecessary delays. Although the terms of reference would potentially focus the investigation of alternatives, a greater degree of certainty is needed in the legislation itself. You can read our recommendation on that particular issue.

The role of the Environmental Assessment Board should be refocused. The powers of the EA board are largely retained in Bill 76. The Environmental Assessment Board or joint boards have in practice become decision-makers, often developing policies on an ad hoc basis. Furthermore, the nature of the hearings has become adversarial rather than constructive. Board hearings often go back to square one and cover all the issues, causing long delays and costing millions of dollars to revisit old studies.

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As indicated above, AMO supports limits placed on the board's consideration of issues to those based on the approved terms of reference. AMO also supports the minister's power to issue policy guidelines that the board shall consider in making a decision. However, the minister's authority to scope issues is neutralized by subsection 9(4), subsection 9(6) and subsection 9(7). These sections would put tremendous pressure on the board to deal with any matter raised by opponents to an application regardless of the terms of reference and the minister's direction. If this problem is not addressed, past uncertainties associated with comments from the ministry and board will continue. A reasonable compromise would be to empower the minister with the option of focusing the board's enquiry to a partial hearing on those matters explicitly scoped by the minister.

Therefore, AMO recommends that the EA board should be restricted to hear arguments only on those issues specified by the minister, as defined in the approved terms of reference. This would be accomplished by the following amendments:

(a) deleting subsections 9(4) and 9(7).

(b) amending subsection 9(6) to read, "The board shall only consider the following documents when deciding an application."

(c) in subsection 9.1(1) providing the minister with an added option of referring only certain portions or aspects of an EA to be considered by the EA board under section 11.2, referral of part of a decision.

Deadlines should apply to the minister's decision of the EA. The proponent must comply with strict time lines to rectify any deficiencies. Subsection 10(3) states that the minister shall decide on the application by the prescribed deadline. However, the following subsection, 10(4), states that the minister's decision is valid even after the deadline for decision-making has passed. Also, subsection 11(3) indicates that the minister may reconsider a decision of the board or a previous decision of the minister if there is a change in circumstances or new information becomes available. The above provisions do not provide the proponent with certainty that decisions will be made within the prescribed time line.

Therefore, AMO recommend that in order to ensure greater timeliness, the minister must make a decision on an EA no later than the prescribed deadline. Therefore, subsection 10(4) should be deleted. The minister must be required to make a decision no later than the prescribed deadline or the proponent's application receives approval.

The terms of reference shall be binding on all parties. The proponent has some flexibility in developing the terms of reference. However, once reviewed by the ministry, subjected to public hearings and approval granted, the proponent is bound by the terms of reference in preparing the EA.

In making a decision, in addition to the approved terms of reference, the minister or the board must also consider the ministry review of the EA, public comments and the mediator's report, if any. In addition, the minister must consider the purpose of the act. Therefore, new issues could be introduced at various stages without proper regard for the parameters established by the terms of reference. Therefore, the fate of an EA application could potentially be decided by issues outside of the terms of reference.

Furthermore, the opponents of an undertaking may also comment on and object to any aspect they choose regardless of the approved terms of reference. AMO believes that the minister should be empowered to specify a reasonable level of upfront public consultation to be binding on all parties.

Therefore, AMO recommends that in order to provide additional certainty to the proponent in deciding the EA submission, the minister's or the board's decision should be consistent with those issues that have been defined through the approved terms of reference. Furthermore, the opponents' comments should be restricted to those issues that have been established through the approved terms of reference. Therefore, once approved, the terms of reference shall be binding on all parties, including the review agencies, proponents and the opponents.

Furthermore, by adopting the terms of reference, the minister should be empowered to specify a reasonable level of upfront public consultation which would be binding on all parties.

Ensuring unbiased mediation: In order for mediation to be an effective and non-adversarial dispute resolution technique, the parties to a conflict must be able to enter mediation in good faith without fear of prejudice in subsequent hearings. However, given that the board must consider the mediator's report in deciding an application, paragraph 9(6)5, the parties cannot treat mediation as a "without prejudice" proceeding, especially the proponent, who is obligated to pay for the costs involved. The mediator's report would become part of the record in public hearing and subsequent cross-examination.

The act also provides an opportunity for the board to conduct the mediation. In order to safeguard against future prejudices, AMO believes that a board member who has been assigned to act as a mediator should be disqualified from participating in future EA board hearings regarding that application.

AMO recommends that the mediation process should be without prejudice and, unless agreed to by all parties, the mediator's report should not be considered by the EA board in making a decision on the environmental assessment. Furthermore, if a board member is appointed to conduct the mediation, that board member should be considered disqualified from conducting a subsequent hearing on that EA.

Bill 76 indicates that the extension of current landfills is subject to the act, ie, a full environmental assessment. AMO believes that the optimization of existing landfills, ie, the extension of current closure dates to enable landfills to reach their final contours or an extension of final contours, should be exempted from the EA act.

Therefore, AMO recommends that Bill 76 should explicitly state that optimization of landfills will not be subject to the EA act and instead addressed through the revised Environmental Protection Act regulation 347 introducing standards.

Enabling municipalities to save for capital development projects: As indicated earlier, AMO supports a provision in Bill 76 which enables municipalities to purchase land early in the approvals process. In order to further assist municipalities in their waste management planning process, AMO has the following recommendation: that Bill 76 should enable municipalities to save and raise revenue for long-term capital funding of landfill development projects.

Towards harmonization of the EA act and the Planning Act on municipal infrastructure projects: As indicated earlier, AMO believes that the unnecessary duplication between the planning and environmental assessment processes is a major flaw. Therefore, AMO advocates a more proactive approach towards streamlining the approvals process for municipal infrastructure projects. In large-scale planning projects, such as official plans and official plan amendments, different land use scenarios and supporting infrastructure are examined in the course of the planning review process.

Attempts should be made to streamline and create a one-window approval process and, as much as possible, follow a single planning process. Section 16.1 of the new Planning Act provides for a regulation to be passed to enable a certain degree of integration of these processes. To ensure consistency, the new Environmental Assessment Act should also include a provision to facilitate this change. Therefore, we recommend that the approvals process for municipal infrastructure projects be harmonized with the land use planning process under the Planning Act. The opportunity for the integration of these two processes is contemplated under the Planning Act, section 16, and should be reflected in the revisions to the Environmental Assessment Act.

In conclusion, I would like to state that any successful environmental reform initiative must be sensitive to the concerns of the province, municipalities and our citizens. Ontario's legislation should require the highest standard of environmental stewardship that is efficient and effective. These objectives can be best achieved through approaches that restore a greater degree of decision-making authority to municipally elected councils. These objectives are not satisfactorily addressed in Bill 76.

It is important to acknowledge that elected councils on a daily basis balance challenging community issues with important budgetary implications. An appropriate balance must be achieved between meeting technical standards on the one hand and addressing community concerns on the other. AMO believes that councils should be empowered to approve all waste management options in their communities.

The current reform package includes detailed technical standards for siting non-hazardous landfills in Ontario which would demand substantial expenditures to comply with engineering requirements. As stated earlier, municipalities would rather spend scarce resources on the protection of the environment instead of channelling taxpayers' funds to cumbersome process requirements: a welcome tradeoff.

Municipalities remain committed to the environmental assessment reform process. We are anxious to engage the government in discussions on how provincial and municipal objectives can be achieved. It is imperative that the two levels of government work together to ensure a balance between economic objectives and environmental protection. Once again, on behalf of AMO, I would like to thank you very much for the opportunity.

The Chair: Thank you for your presentation. We now have about three and a half minutes per caucus to pose questions. Today we will lead off with the Liberal Party.

Mr McGuinty: Thank you very much for your presentation. I want to zero in on something that you made reference to on page 6 of your presentation, some of the initiatives or aspects of the bill that you support. The first one you said was, "Specifically, AMO supports: the potential flexibility in the development of terms of reference." Can you expand on that for me.

Mr Mundell: I think one of the important things that we need to understand in the environmental assessment process is that the issues you deal with are not the same across the province of Ontario, and the ability to deal with varying issues across the province to determine what the local needs are is something which is very important to make sure that the process recognizes the diversity in Ontario. That's why we see that particular section in the terms of reference to be very important, to allow to deal with those local issues.

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Mr McGuinty: Let me ask you this at the outset. The bill in its present form then, your advice to us is that we vote against it. Is that correct?

Mr Mundell: We do not support the bill in its current form, correct.

Mr McGuinty: All right. I think you mention in here somewhere that you support the Premier's statement to the effect that there should be full environmental assessments. Is that right?

Mr Mundell: Yes.

Mr McGuinty: I can't find it but it's in here. One of the concerns I raised with the minister was the fact that she is going to have the authority to allow proponents to no longer participate in what we've up to this point in time called a full environmental assessment, which means consider all the alternatives, for instance. I just want to get AMO's position on that so I'm clear. If you're telling us that you support full environmental assessments, do you not agree then that it's important in every case that we abide by the existing definition, which is reincorporated into Bill 76, and that is, what is it that proponents have to show, what tests do they have to meet when they're putting forward a proposal?

Mr Mundell: The issue that we deal with when we talk about full environmental assessment, I think one of the things we very much need to determine is the responsibilities of the two levels of governments. In fairness, I think what the province needs to do is speak through standards and set those standards and then let the municipality, through the terms of reference, through the EA process, deal with those types of issues that we have to deal with that can meet those environmental standards.

Mr McGuinty: One final question. You indicated a concern about the minister having the authority to reconsider a decision of the board if there is a change in circumstances or new information becomes available. One of the concerns I have is the minister's authority that's found in the bill to scope a hearing. I think we should profit from the very best and latest information. I'm just wondering why you suggest some concerns about limiting the information that might be available to us.

Mr Mundell: I think it's very important that what we try and do is put certainty into the process and very much make this an upfront process. I think everybody here is very aware of the planning reform which has been undertaken over the last few years and one of the major pushes through it was to in fact make sure that the public consultation came at the front end so that we had as much information as we possibly could and deal with that up front. We very much support that. The issues generally speaking that come later on in the process are generally issues which are environmental protection issues and can be dealt with under the technical standards and those types of areas you deal with under the EPA.

The Chair: Mr McGuinty, your time is up. Ms Churley of the NDP.

Ms Churley: If you were here when I gave my presentation you would have heard that we have some differences. However, it's interesting that for different reasons we have problems with some of the same sections. I want to come to the issue around the terms of reference and I'd like to ask you, do you feel that municipalities, for instance, should be involved up front in those negotiations around the terms of reference?

Mr Mundell: I think one of the things that municipal governments have under the Municipal Act is that we very much work in an environment of openness. There are rules and regulations and procedures which we must follow. We very much believe we should be involved in those terms of reference and in fact through the regulations which we have to deal with as municipally elected councillors. That's also a very open and public process for us.

Ms Churley: In terms of consultation, I'd like to hear your views, because right now the public is not involved and neither, as I understand it, is a municipality that's a proponent with the ministry negotiating the terms of reference. We will be working to expand that because it's my view that the problems will be solved overall if you have that consultation up front around the terms of reference.

You indicated that you're concerned about the minister's discretionary powers in all kinds of areas including this, that the terms of reference could get changed after it goes out for so-called public consultation, if it does. Wouldn't it make more sense for the public, however that's defined within a particular municipality, to be included very much up front so that then there would be less chance of those discretionary powers being used and everything being changed?

Mr Mundell: The issue, as we see it, is the certainty with the terms of reference. It's one which is very important to the process. It's very important to the timeliness and it's also very important to the integrity of the process. If we as municipal councillors are the proponent we have rules and regulations that we need to deal with in a very public and open format. As I said earlier, and very much like the planning process which has been set up, my belief and our association's belief is that the earlier the public are involved, in all likelihood the better ability you have to get the terms of reference made so they are correct. But the key to success to that is then to make sure, after you have had that very open process, that the terms of reference are binding on all parties.

Ms Churley: But what happens -- and you referred to this. As you know, municipalities certainly know, trying to site landfills and now perhaps incinerators is very complex. There is no intervenor funding. Complexities can arise around technical details -- environmental ground water; who knows? -- that could, especially if the public isn't involved up front in those terms of reference, be very key to environmental protection. Doesn't it make sense, if that isn't addressed -- wouldn't you want a municipality to then be able to tell its citizens, "We will add this so it will be looked at in a hearing if it's overlooked for whatever reason"? That's the problem we've got here.

Mr Mundell: We very much see it as a role of the locally elected accountable municipal officials to make sure those local issues are dealt with and addressed in the terms of reference, and whether we're the proponent or whether it's another proponent in our particular area -- I know in Guelph-Wellington, an example I was very involved in, it became a very difficult situation. With what you start at the front of the process, by the time you get to the EA board it just does not look the same. The key to success is involving the public very early. They can be involved through their municipal councils to make sure the items are addressed and then to make sure the terms of reference are very binding in the process.

Mr Doug Galt (Northumberland): Thank you for the presentation, Mr Mundell, and the tremendous amount of insight on many things that have not been presented to us in the past. One of the things I'd like you to expand on a bit -- and I was a little surprised at introducing it here -- is the definition of "environment." Certainly that's something we have to zero in on. You're suggesting that the sociocultural factors maybe shouldn't be in there. Do you want to just spend a couple of seconds expanding on that and your feelings or your organization's feelings?

Mr Mundell: Our particular feelings on that are that it goes somewhat back to the definition of the roles and responsibilities between the two levels of government. Some of the issues we see very much as provincial in terms of setting standards. We think that when you define the environment you need to define it from a provincial government type of goal, roles and responsibilities, and in those you deal mainly with the technical type of issues -- the landfill standards, those types of issues. When you redefine "environment" you start to look at all those other issues which I happen to see as being local. The social issues, all those other things I see as being dealt with then through the local process, through your municipal councils. I see the very distinct separation between technical issues and local issues.

Mr R. Gary Stewart (Peterborough): At the top of page 5 you have, "In practical terms, under the proposed AMO approach, once a selected number of sites are identified" etc and the appropriate site is chosen in consultation with municipal councils and public input. Certainly the municipal councils and the public input I have no problems with, but what I read into that is that the process you're suggesting is exactly the process we're doing now, that we're going to find half a dozen sites in a municipality, totally alienate all the people around it and go through the same process we have in the past. I believe that under Bill 76 it alleviates that problem, where you look at economic impact, social impact, environmental impact, willing host etc, and if it meets the terms of reference and the criteria, you then go and build your site, whereas this, in my mind, says that it's exactly the same as what we've been doing in the past except for the final decision-making.

Mr Mundell: I would suggest that after having been through that process I don't want to go through that process again, in fairness.

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Mr Stewart: That's what surprised me. A clarification on that particular case, because I read that as what we've been doing other than the final decision-maker.

Mr Mundell: No, that is not the case at all. What happens now is that there's a difference in terms of what's the best site and what's the appropriate site. That's where the difference comes in. Right now, under the environmental assessment process, we have to go out and find the best site, and that particular process which we use today quite frankly does not, in my opinion and through Guelph-Wellington's search, allow you to choose the best site.

What we would like to do is deal with the specific standards which are set by the province and which enhance environment protection and make sure that is done, use those particular standards in concentration with the appropriate community needs and then try and go out and approve or find the specific site within the community. I don't envision this process to be going out and finding 50 sites and starting to go through the process. It's too cumbersome, it's too difficult, it's too costly, it puts your money into process and not protection, and that's definitely not what we are --

Mr Stewart: I can't agree with you more, but when I read the first couple of lines in there, I get very concerned that it's much similar and you're going to totally alienate the people of the province much the same as we have now. I appreciate that.

Mr Mundell: Just maybe to that, I think when you go through this particular process, you will not find 20 or 30 sites within your municipality -- in our case it's our county -- that would meet the specific standards set by the province. I don't believe those standards would allow that to happen, the process we have today.

The Chair: Thank you kindly for joining us today and appearing before us and sharing your views. We hope you see the results of your views in the pending legislation.

ONTARIO WASTE MANAGEMENT ASSOCIATION

The Chair: We would now call forward the next group, the Ontario Waste Management Association.

Mr Terry Taylor: Ladies and gentlemen of the committee, good morning to you all. My name is Terry Taylor. I'm the executive director of the Ontario Waste Management Association. Joining me here today are John Sanderson of Brampton, the president of our association, and Tom Barlow and John Zimmer, who are associated with the law firm of Fasken, Campbell, Godfrey. Mr Barlow and Mr Zimmer greatly assisted us in our analysis of Bill 76 and in the preparation of our suggested changes to it.

The OWMA is pleased to have this opportunity to appear before the committee. We believe our opinions will be helpful to you in this debate. I say this because of the extremely important role our membership plays in Ontario's waste management and recycling industries. We are an integral part of those industries.

My comments this morning will touch on three topics. First, I want to briefly describe our association for the benefit of those of you who may not be familiar with us. Second, I want to discuss some critical weaknesses that we have identified in the bill. I also want to introduce some amendments that will address those shortcomings, in an effort to strengthen the bill and to make it a more effective piece of legislation. Finally, I want to outline the two very different end games that are possible, depending on how you craft the final version of the bill.

With nearly 300 members, the OWMA represents the private sector. Our members provide the products and services for a better environment. Our direct service members collect waste from two thirds of Ontario's residences and from over 90% of its businesses.

OWMA members are also actively engaged in all 3Rs activities. One of our members invented the blue box program, which is now supported by over three million Ontario households.

We operate material recovery facilities and remarket Ontario's recyclable materials throughout the world.

Our members conduct waste audits for their customers and provide them with expert advice on the implementation of waste minimization strategies.

We also own and operate landfill sites, transfer stations and energy-from-waste facilities. These are the types of infrastructure investments that are subject to environmental assessments.

We are here today because Ontario's present environmental assessment system has three fundamental flaws: It costs too much, it takes too long and it basically doesn't work.

As an aside, we want to commend this government for acknowledging what the real problems are with the current process and for having the political courage to try to fix it.

These deficiencies are identified in the backgrounder that accompanies Bill 76, implying that these amendments to the Environmental Assessment Act will render the EA process less costly, more timely and more effective.

The synonym for effectiveness is certainty. I can assure you that the most critical task before you is to dramatically increase the certainty for a proponent.

Certainty means different things to different groups. This bill requires the minister to make any number of decisions during the many stages of an application's consideration. Hence, to the members of the Ontario Waste Management Association, certainty means that those decisions will actually be made rather than postponed or needlessly delayed.

The prospect of having a hearing drag on for years, with its attendant costs escalating into the millions of dollars, is what primarily deters the private sector from bringing forth proposals. Therefore, if the element of certainty is satisfactorily addressed, then the problems of time and money will quickly fall into place.

We are particularly pleased with the options presented in subsection 6(2) with respect to the composition of the terms of reference. In particular, 6(2)(c) acknowledges that Ontario is a diverse province and that different proponents will have different issues to address. The flexibility provided by this section still safeguards and protects the environment while recognizing that, in effect, there are alternative methods available to accomplish that. You would greatly undermine the intent of this bill if you make any changes to the present wording that would either limit the scope of 6(2)(c) or reduce the available latitude that is inherent in its current form.

Our association conducted an exhaustive review of the bill. We tried to identify those subsections that would operate to increase uncertainty, and we crafted alternative wordings. Our suggestions are attached to this document. While each has merit and each would increase the effectiveness of the bill if incorporated, there are some amendments that are more critical than others.

First, let me refer you to amendments 21 and 22. If your goal is to truly make the environmental assessment process more effective, then it is absolutely essential that the minister be able to limit the issues that a board can consider. As this model has been explained to us by ministry staff, the board would only consider those issues that have not already been resolved between the parties. However, if the present wording remains, a hearing could be consumed with argument on topics over which there is no dispute. This would only serve to lengthen the hearing, drive up the cost and increase the uncertainty.

I think it unlikely that any member of the Ontario Waste Management Association will submit a proposal under this new process if the minister's ability to scope a hearing is not substantially improved. Amending subsections 9(3) and 9(4) as we have suggested here is absolutely essential if you expect to see any new significant private sector investments in the waste management industry in this province.

Let me now turn to amendment 33. We said earlier that certainty comes from the knowledge that decisions will be made. We want to amend section 11 to enable the minister to choose a fourth course of action, namely, the option to refer the matter to a joint board at the request of the proponent. By doing this there is no need to engage other tribunals or entities as referenced in 11.1, 11.2 and 11.3. The introduction of alternative decision-making bodies just adds to the uncertainty. A joint board is an appropriate available forum to consider any unresolved issues.

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If you amend section 11 as we propose, it is our submission that sections 11.1, 11.2 and 11.3 can then be deleted. The minister has the authority to issue a decision with conditions which must be satisfied before any approval takes effect. We would prefer to see these conditional decisions by the minister rather than referrals or deferrals to other entities.

Let me now turn to amendment 37. The government has made much of the deadlines that appear throughout this act. Unfortunately, the current wording allows the minister and/or the board to endlessly defer the proceedings for reasons that are largely undefined and open to a wide range of interpretation. These are, in effect, deadlines without teeth.

Once again, we want to build certainty into the process. Since it seems an impossibility to develop an appropriate sanction that would apply in the event that a deadline is missed, we propose an alternative approach. Actually, our solution is simple: Just limit the number of times that a deadline can be extended. This method provides the mechanism that ensures that the deadlines have meaning and that the decisions will be made. Even if these decisions go against us as proponents, it is our opinion that a negative decision is still better than an endlessly delayed decision.

If you are serious about this notion of strict timeliness, you will incorporate this proposal into the bill.

Now I would like to refer you to amendments 16 and 19. Like the government, we too believe that the increased use of mediation will contribute much to the resolution of issues in an environmental assessment. However, it would be naïve to think that all issues will be resolved through mediation. There will of course be unresolved issues that will ultimately be referred to a hearing.

If you want this mediation process to be effective, you must enable the parties to speak frankly and without prejudice. If mediation becomes just another type of discovery, with everyone's statements on the record, then mediation will simply become another stage of an unnecessarily lengthy process. Therefore, in fairness to all concerned, we propose that no portion of the mediator's report that refers to an unresolved issue be made public. As well, we suggest that for all issues that remain unresolved after mediation attempts, the parties will have participated in the mediation without prejudice to themselves.

Let me now turn to amendments 9, 10 and 11. We are concerned that one possible interpretation of the present wording in subsections 7(4), 7(5) and 7(6) could mean that a rejected environmental assessment would require a proponent to start at the very beginning by submitting new proposed terms of reference. If that is not the government's intention, then either redraft these sections appropriately or incorporate our proposed text.

Let me also make a comment about amendment 26. This amendment is in keeping with the bill's intent to guarantee early public input. It should therefore be incumbent on those interested parties to come forward early and to get involved. It might also be a way of addressing the issue of who is an interested party. An interested party is obviously somebody who comes forward and expresses an interest early on.

I will not make specific comments on the other amendments, but at the end, I will be pleased to answer any questions you may have about them.

Let me conclude by saying this: The government has chosen to separate consideration of the landfill standards initiative from Bill 76. While there may be merit in doing that, you must realize that ultimately the two come together and become part of the same issue.

A company can make the business decision to hire a contractor to build a landfill that has been approved. That is a very different decision from attempting to gain that approval by starting down the environmental assessment road in the first place.

Even if the new landfill standards were uncontentious -- and they are not -- no private sector proponent would submit a project for an environmental assessment if Bill 76 remains as it is presently drafted. On the other hand, if the cost of building an overengineered landfill outweighs the economic benefits of operating it, then no matter how smooth the EA process, no one will spend the money to build such a facility. All the pieces of the puzzle must fit together if you want the private sector to take the lead on investing in waste management infrastructure.

Let me give you a real-life example of what we're talking about here. Last week, the news reported that several months ago, the town of Tillsonburg and WMI, Waste Management of Canada Inc, an OWMA member, began discussions about building a landfill here in Ontario to handle waste for Metro Toronto. This would be a multimillion-dollar project, financed entirely by the private sector. It would provide many short-term and long-term jobs. It's the type of infrastructure development that we haven't seen in Ontario for over a decade and it would keep Toronto's waste disposal fees here in Ontario. WMI was denied its request to appear before you, but if they had made a presentation, I'm sure they would have told you that those discussions might appear premature, now that they know both the nature of the proposed landfill standards and the extent of the environmental assessment reforms outlined in the current version of Bill 76.

This committee has the opportunity to create an environmental assessment process that will balance the legitimate concerns of the environmental groups with those of the business community, but if you fail and at the end of all this we have an EA process that is still clouded with uncertainty, still costs too much and still takes too long, then the ultimate environmental legacy of this government and indeed this Legislature will be that it chose waste export to the United States as its preferred method of waste disposal.

Simply put, substantial amendments like the ones we have proposed here today are needed if the government is to deliver the meaningful environmental assessment reform that the province desperately needs. Ontario should be self-sufficient in the management of its waste. With the right leadership, the leadership that you can give, it can be.

Thank you, and again, we appreciate the opportunity of being here, and we'd be pleased to answer any of your questions.

The Chair: We have five minutes per caucus. We lead off with the NDP.

Ms Churley: I wonder if you could elaborate on your statement relating to your request for amendments to 9(3) and 9(4), that if these aren't amended, you would absolutely not put in proposals in Ontario for a landfill. I suppose I would ask, what is worse in this, in your consideration, than what's already in existence?

Mr Taylor: I'd be happy to answer the question, but I have to admit, I'm a bit confused. In the last three and a half years of your government's mandate, we tried to meet with the Minister of the Environment six different times on matters that we thought were extremely important, and every time we asked for a meeting it was denied to us. If the NDP wasn't interested in our opinions when you were the government, why would you be interested in them now?

Ms Churley: Mr Chair, I think I will pass for the time being.

The Chair: You pass on all questions? Fine. We'll move to the government side.

Mr Galt: Thank you for the presentation -- very thoughtful and certainly some interesting thoughts in it. You made reference on many occasions to certainty and concerns about it. One area you didn't make reference to, and we have had comments before and some thoughts on it, is the area for the proponent when developing the actual environmental assessment, that once the terms of reference are in place, there is not a time line for the proponent. Would you see time lines being put in there to promote certainty in the process, whereby there is an end to it, there is a limit to how long the proponent has to develop those terms of reference? In other words, it's open-ended right now for the proponent.

Mr Taylor: Ultimately, the proponent isn't going to bring forth his application until he's satisfied that he's done his homework and that he's given proper research and thorough research on all the issues he's going to have to confront and satisfy. I think our certainty starts from the time the application is submitted. That's when we want to see the decisions made. Some proponents and some undertakings may take longer than others to bring forth for consideration. Putting a time line on the proponent to submit the application I don't think is as important as having the clock start to run and make sure decisions are made once the application is in.

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Mr Galt: When you develop the terms of reference for how you're going to develop your environmental assessment, would it be logical to have in there the time frame you would accomplish those terms of reference in?

Mr Taylor: Again, the flexibility that is provided by not having you meet a time line allows the proponent to make sure that as he fulfils the requirements of the terms of reference and makes his application and his environmental assessment ready for presentation, he can take as much time as he needs to make sure he does the job right. I'm not sure you'd be all that advantaged or disadvantaged by having to meet the clock. I think you have to do the job thoroughly and properly. In some cases it will take longer than others; in some cases not as long.

Mrs Julia Munro (Durham-York): We've heard many groups that have been very concerned about the nature of the terms of reference and the question of the public consultation at that point. I wonder if you could give us your views on the nature of the terms of reference and a response to the concern raised in the hearings about the need for a mandated role of public consultation in the development of terms of reference.

Mr Taylor: Practically speaking, I think no terms of reference will be approved by the minister unless it is clearly laid out what steps the proponent is going to take to consult with the public who might be affected by the proposal. It's a matter of negotiation, if I could use that word, or a matter of a memorandum of understanding, or just a matter of a meeting of the minds, for each different undertaking, as to what the terms of reference for that undertaking should be. The legitimate public concerns are the same from one undertaking to another: "Is it safe? Will it leak? Am I downwind? Am I upwind? What am I going to do about traffic?" and so on and so forth. The public's concerns tend to be consistent.

I think the negotiation of what should be in the terms of reference is a matter between the proponent and the minister, and as long as the public is enabled to voice their concerns and to get the appropriate amount of public education, be consulted, I think that's the important thing here. I don't think they necessarily have to be involved in the development of terms of reference, but they certainly have to be into the loop early on to make sure their considerations are taken into consideration.

Mr Mike Colle (Oakwood): I guess the bill should maybe add another phrase in its title, that is, a bill to ensure the exportation of waste to the United States. It seems that is the major flaw in this bill, that it in essence still encourages the export of our waste to the United States and the turnover of millions of dollars in disposal fees to the United States. Metro is on the verge, it seems, of going the US route in hauling our waste, to Utah, I think it is. How many dollars would be lost, if Metro approves that waste haul contract to the United States, to the Ontario economy?

Mr Taylor: I'm not privileged to the economics of the individual proposals. I don't think the bill is pushing waste export. What we're saying is that if the process isn't fixed, if you don't provide for some meaningful reforms, then you're going to come to a stage somewhere down the road where you're running out of landfill space, where municipalities don't have any money because their transfer payments are being cut back, the private sector isn't about to go through protracted and open-ended and uncertain environmental assessments to try to get proposals built -- they're not going to waste their money that way -- and you're going to have an ever-increasing need for disposal capacity and no adequate or rational process to have landfills built here in the province.

If you can't dispose of your waste here because there are no landfills available to do it, what are your options? One option is to export it outside the jurisdiction. We're not saying that the bill promotes waste export; we're saying that a flawed process is ultimately what is going to drive you to that inevitable conclusion.

Mr Colle: But in essence, the way the bill is presently crafted, it seems to me from your comments that it makes it virtually, rationally or physically impossible for the private sector to undertake an infrastructure investment that will ensure that large contracts of waste disposal like the ones from Metropolitan Toronto will stay in Ontario.

Mr Taylor: Mr Colle, we're saying that the bill's attempt to fix the problems of time and cost uncertainty still has some shortcomings to it. You can address those issues, you can fix the problems of time and cost uncertainty, you can make the process better, but you're going to have to amend the text of the bill to do it as we've suggested. If you make the process better I think you'll see a number of private sector proponents come forward to propose building waste disposal facilities here in the province. This is where we do business, this is where we want to do business, but we can't do business with this open-ended crap shoot of a process we have right now.

Mr Colle: I think you've listed your proposed amendments in priority. If I'm not mistaken, the thing you're asking for first is to amend subsections 9(3) and 9(4) as most essential.

Mr Taylor: The proposal to focus the board as it is presently crafted in the bill in our opinion might focus it from the standpoint of issues on which you can hear evidence but doesn't preclude the board from hearing argument on anything it wants to. Our concern is that if the board is only going to deal with unresolved issues, then limit them by dealing with them only by argument or testimony on unresolved issues. That's what the board is there for: to deal with issues that are in dispute.

I can tell you that the process would quickly fall off the rails and the board would be running back at the end of the 60 days saying, "We need more time here because we haven't heard argument or evidence on issues that we think we should be hearing evidence on; we want to have the minister amend the direction to the board because issues have been raised and we're not entirely satisfied," and we'll be right back into the process we're in now. It goes on forever, resolves nothing, costs millions of dollars and nobody is further ahead.

Mr Colle: As the bill presently stands, you would ask that we vote against it unless these amendments were to be made.

Mr Taylor: I'm asking you to adopt our amendments and then everybody is a winner.

Ms Churley: I would like to use my two minutes to make a comment, given that Mr Taylor has declined to answer my question.

I would like to say that your presentation today was extremely one-sided. You came in here taking the position that basically can be summed up in five words, "My way or the highway." Generally, no matter which government is in power, it is not the way we do things around here. There are compromises to be made, balances to be found. There are people who have a different point of view than you do and those balances, even by this government, have to be at least taken into account.

You mentioned and bragged about having developed the blue box. I can assure you that it's the very citizen groups and environmental groups that in my view you would like to shut out of the process to the extent possible that made it possible for your company to get into the business of developing the blue box system. I was one of those people who years ago fought hard to get all levels of government to start looking at the three Rs as another way, a more environmentally sound, sustainable way of dealing with our waste.

I certainly am not asking a question at this point and don't expect a comment back. I would just like to say that I think it's important that no matter who is in government or who is in power, even though we have our disagreements, we all try to work together to come up with the most environmentally sustainable way of dealing with our garbage. That's the position I take; that's the position my party took and will continue to take.

The Chair: Would you like to make a final comment, Mr Taylor?

Mr Taylor: It's no use.

The Chair: Thank you very much for sharing your views with us today.

We will reconvene this afternoon at 2 o'clock.

The committee recessed from 1201 to 1403.

ONTARIO SOCIETY FOR ENVIRONMENTAL MANAGEMENT

The Chair: Our first witnesses are from the Ontario Society for Environmental Management. Welcome to our hearings. Thank you for taking the time to appear before us. You probably have heard the instructions. You have half an hour and the remaining time will be divided equally among the parties. The last to go was the government side, so the opposition side will go first this time around with the remaining time.

Ms Janet Amos: Thank you, on behalf of the Ontario Society for Environmental Management, for the opportunity to speak before your committee today. With me today is Ann Joyner, past president of the Ontario Society for Environmental Management. My name is Janet Amos. I'm the current president.

Our paper today is a combination of views and comments from many contributors from our own society. I want to tell you a little bit about the society before we begin.

We're a volunteer organization of professionals. We are self-supporting from our members' dues. The Ontario Society for Environmental Management, OSEM, was established in 1976 in response to a need for an interdisciplinary organization to both improve and promote the practice of environmental management in Ontario. The membership, which is currently approximately 150 professionals, is drawn from a wide range of disciplines including physical, biophysical, social sciences, planning and law. Our members are united by ecologically based principles and a resolve to maintain and enhance environmental health in the province today.

The society encourages high standards of competence and ethics among its members and supports education and research. The society promotes environmental management through conferences, meetings, seminars, workshops and the publication of a society newsletter, and participation in environmental policymaking and review such as we have here today.

The membership has a strong interest in the way in which land use and environmental planning is carried out, and the views contained in this brief are those of the council of the society, but given the time constraints, we were unable to gain the concurrence of the entire membership. However, we are confident that they are reflective of the views of the whole of the society.

On the whole, we view Bill 76 as what we term an incremental improvement to environmental assessment in Ontario today. We're here today to offer constructive suggestions to assist the government in its efforts, as we heard this morning, to focus on environmental impacts through a reformed EA process. It's important to have that smooth process to ensure that the key focus remains on mitigation of environmental impacts and the protection of our natural heritage features.

The context from which Ann and I will be speaking today and our paper speaks to is our background of approximately 15 years each of experience in both public and private sectors in environmental management. This has involved our roles as proponents, agents for proponents, and as well, agents for opponents of the process and projects within the process.

We work in multidisciplinary teams on federal and provincial environmental assessments as well as class environmental assessments and we work extensively with the other environmental protection measures found in the province, including provincial regulations and the Planning Act.

We view environmental planning as an integrated whole of which environmental assessment is only one component, albeit an important one. We've heard a lot this morning already about the implications for solid waste and solid waste projects and we want to stress that this is not the only type of project which is being considered under the Environmental Assessment Act today. Included in the list of topics which Ann and I have dealt with over our careers are transit and road projects, water and waste water infrastructure, storm water management as well as solid waste and utility corridors.

With that, I want to turn it over to Ann, who will review our key recommendations. We'll both be happy to answer questions from the committee.

Ms Ann Joyner: I'd like to thank you as well. I'll give you a little highlight of the organization of our comments. On the first two pages you'll find a summary of the recommendations that we're making. Secondly, we provide some general comments. We then provide a little bit of a detailed overview of our comments with respect to the terms of reference and integrating environmental assessment and planning in the province. Then at the back, under section 2.4, you'll find a whole list of additional recommendations and comments.

I'm going to launch first into our general response. OSEM is generally supportive of the fundamental direction of the bill. We are encouraged to see that the principles of the environmental assessment process and the types of projects subject to the act have been maintained. That is a fundamental component of the new bill that we are quite pleased with. We see that the environmental assessment process has added value to planning in Ontario through the consideration of a wide range of environmental effects, the need to consider alternative solutions to problems, the need for clear documentation and public consultation. All those elements have been maintained in this bill and we were very pleased to see that.

I'd like to add that we also see that the Environmental Assessment Act and the precedent it has set in terms of the way planning is done in the province has spread beyond the way work is done for the environmental assessments to work done under the Planning Act and other legislation. It sets a very fine precedent for environmental planning in the province, and we're glad to see that maintained.

We also support the proposed changes to the class EA process. Most of the work that is done in the environmental assessment area is actually done under the class EA program. Most of our members work almost wholly with that process. We are satisfied that the class EA process has been maintained in this bill and strengthened and also made more flexible.

On the other hand, we do have some concerns about the bill. These relate primarily to the level of uncertainty that remains with the way that environmental assessment will actually be undertaken in practice in the province under this new bill. In particular, we're concerned with the approach that will be applied to transition to the new legislation, the use of terms of reference, the way EA and planning are going to be integrated and how consultation will actually occur in practice. Those are the areas I'm going to speak to for the rest of my time.

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Fundamentally, we see that this bill would be strengthened by providing greater certainty in those areas through associated regulatory or procedural guidelines that should be put in place. In our view, they should have been put in place at the same time the bill was tabled so that it would give people like us who actually do this work a greater level of certainty and trust that the intent of the government is what we think the intent is: to maintain the good things in the environmental assessment process. We have some very specific suggestions on what we think could be done to provide greater certainty to supplement the bill as it stands today. I'm going to start with the terms of reference.

In the past, our foremost criticism of the environmental assessment process has been of course the length of time it takes, the lack of certainty in the process and the lack of autonomy given to proponents; in other words, they need a greater ability to customize the environmental assessment process to their specific needs. I think you've probably heard lots about the problems with environmental assessment. So we do support the terms of reference in that they appear to provide a process that will allow greater certainty and will allow this customization of individual environmental assessments to circumstances as they arise for specific proponents.

Although we support the terms of reference from that perspective, we find that the legislation leaves a lot of uncertainty about how the terms of reference actually will be implemented. That revolves around two areas:

First of all we are concerned that a specific section, clauses 6(2)(b) and (c), allows too much flexibility for proponents to deviate from the fundamental requirements of environmental assessment as they are stated under subsections 6(1) and 6(2). Subsections 6(1) and 6(2) outline what the basic requirements of the EA are: the assessment of alternatives, the need to include public consultation, the need to address mitigation etc.

We'd like to see regulations or guidelines passed in the very near future that clarify the intent of the government that environmental assessments will not deviate from those two subsections, 6(1) and 6(2). It appears that terms of reference could be used for example to remove the requirement for the assessment of alternatives. We don't think that's the intent of the government, but at the moment it isn't clear.

Secondly, we think the terms of reference should be used or should be able to be used for proponents to focus their environmental assessments if they have completed parts of the environmental assessment process through one of the other mechanisms for planning in the province, such as the Planning Act or a master planning process. For example, a municipality might complete a strategic plan that looks at alternative growth scenarios, looks at alternative infrastructure requirements through one of their planning processes, like an official plan update or a master plan.

When they then complete the individual environmental assessments for the infrastructure of a particular road or stormwater facility or a water or waste water facility, they shouldn't be required to go back and repeat the work that was done at the strategic level. I think the terms of reference could be clarified to make it very obvious to municipalities that they can use them in that manner to streamline the process and integrate the two processes.

We have a couple of other comments on the terms of reference.

Changes to work plans, which is really what the terms of reference are -- they're a work plan -- are inevitable in the environmental assessment process. New data can arise or a new issue can arise or the need or opportunity may change during the terms of the project. There needs to be a mechanism in place to change terms of reference, and our recommendation is that the minister should be given the authority to allow changes to the terms of reference.

We also would recommend that there be an appeal mechanism for terms of reference and that it be limited to the proponent. Our concern is that terms of reference will be approved that are not affordable or implementable by the proponent, so a project can't proceed because the terms of reference are too onerous or too unrealistic or perhaps just not relevant. We believe that proponents should be able to appeal the terms of reference to the minister for changes.

I'd like to go on to our second major area of comment, which is the need for better integration of environmental assessment with planning. I'm going to start with a few remarks about why we believe that integration is important. I think you're going to hear this theme from a number of different organizations. You may have heard it this morning; certainly OPPI supports us on this. We believe that the time has come to integrate the Planning Act and EA processes to improve environmental planning, avoid duplication and streamline the decision-making process.

We believe that the demand for infrastructure is clearly tied to the distribution of population and employment. You don't need infrastructure if you don't have growth occurring in a particular area, so the beginning point for environmental assessment should be the need and opportunity, which ties directly into approvals under the Planning Act. Most community plans, like official plans or master plans, include some infrastructure components that are subject to the Environmental Assessment Act, so automatically you've got planning applications and environmental assessment applications that are overlapping. Furthermore, decisions on where to locate infrastructure should be consistent with planning policies contained in official plans and as put forward under the new Planning Act this past year.

There are many problems currently existing with environmental assessment and planning occurring separately. My own practice has experienced these and many of our members have as well. I won't go on in a lot of detail here, but we see that at a fundamental level good environmental planning isn't necessarily occurring in every municipality. Under the Planning Act, municipalities could undertake land use decisions using a process such as the environmental assessment process, where they look at alternative growth scenarios for their municipality: "Do we grow east? Do we grow west? What are the implications for the environment? What is the associated infrastructure with that growth?"

Some, maybe I should say many, municipalities are taking that approach today, but it is not consistent across the province because it's not required under the Planning Act. What we find is that when the infrastructure decisions come forward under the Environmental Assessment Act, for example a road associated with a growth area, it's the environmental assessment process that gives the public a kick at the can on why growth is occurring in that area in the first place. It throws the whole thing out of sync, where you've got growth already being approved under the official plan and the associated infrastructure gets caught up in this environmental assessment process subsequent to the growth being approved.

At a more procedural level we have two sets of public consultation activities occurring for the two processes, and sometimes they're not synchronized; the documentation is often duplicated and it's extremely confusing for the public.

Our suggested recommendations to solve those problems include first the one I already mentioned, that for individual environmental assessments we could have regulations or guidelines that make it clear that terms of reference can be used to focus environmental assessments where another strategic process has already assessed alternatives and undertaken consultation and fulfilled the requirements of environmental assessment. We need to have regulations or guidelines not only to clarify that, but we need to have education for municipalities so that they understand this option is available to them. These regulations and guidelines should clearly define the basic elements that must be present in the official plan or master planning process to fulfil EA requirements. For example, if it's a requirement that consultation occur, that should be clear to municipalities. If it's a requirement that alternatives need to be evaluated, that should be clear to municipalities. They can then rely on their strategic documents for all subsequent infrastructure projects that fall out.

Second, there is a process under way right now to revise existing parent class environmental assessment documents. These documents are the cookbooks that tell us how to undertake stormwater, water, waste water and transportation projects for municipalities. We think it's essential that mechanisms be integrated into these revised documents to allow this same kind of integration between planning and the class EA process. We could embed that right in these class EA documents so that as municipalities undertake infrastructure projects, if some steps in the environmental assessment process have already been covered through an official plan or a master plan, they can rely on those strategic documents.

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Third, it's our understanding that the class EAs can now be used more flexibly. For example, municipalities could complete their own parent class EA document to cover all their own infrastructure projects. If this is the intent of how the class EA process can be used, we think it should be clarified and that training or education should be provided to municipalities so they understand that they can be writing their own parent class EA documents.

We think that teamwork is essential for better integration of EA and planning, and that means that the Ministry of Environment and Energy and the Ministry of Municipal Affairs and Housing have to support the concept of better-integrated planning. Integrated planning means better environmental planning under the Planning Act. Our experience is that municipalities understand that and many officials in the two ministries understand that. What we'd like to see is that they support the process that allows that integration.

With regard to integration, with the proclamation of this bill we hope to be involved in ongoing consultation activities that will provide greater clarity and produce these regulations and guidelines. We'd like to be at the table and provide our input based on the long experience of our members.

Finally, I'm just going to highlight a couple of additional comments that we have with regard to the bill.

First, with regard to harmonization, we suggest that the legislation include a safeguard that the most comprehensive legislation will prevail, whether that's the federal legislation or the provincial legislation. If any of you are familiar with the two sets of legislation, they actually are not completely compatible. Each has its own sections. They have different requirements, and I think it's important that we get the best environmental planning out of the harmonization.

With regard to the obligation to consult, we support the fact that this has been enshrined in the bill but we think that some guidelines should be prepared to make it clear what section 6.1 is intended to mean, and in particular that it ensures that consultation occurs at all steps in the process, including the development of the terms of reference themselves.

With regard to remedying deficiencies, we think the seven-day period is completely unrealistic and should be deleted.

Section 12.4 on transition: We need better guidance on how transition will occur. There are many projects under way in the province right now, in particular in the waste management field, that will need more certainty than is provided in this bill on how transition will occur.

With regard to class EAs, the sections under 14(2) are too discretionary and there needs to be greater clarity on what the contents of a class EA would be. In particular it should be enshrined that all class EAs, these are the parent documents, will fulfil section 6.2.

With regard to mediation, we're supportive of the mediation process as it's proposed.

Finally, with regard to cumulative effects, the provincial legislation could and should be made more consistent with the Canadian Environmental Assessment Act. The Canadian Environmental Assessment Act has explicit recognition of cumulative environmental effects. Things like malfunctions and accidents, the significance of effects and the capacity of renewable resources are requirements for those projects under a screening for environmental assessment under the federal legislation. There's no reason why the provincial legislation shouldn't be consistent with the federal. It will make harmonization a lot easier.

My own practice is finding that the federal legislation is becoming more and more applied. I think in the past it wasn't applied in every circumstance where it could have been. We're finding it being applied in a much more rigorous way, and these issues of harmonization are going to be more and more important.

We look forward to working with the government in implementing and preparing subsequent documents to support this legislation. We thank you for inviting us to speak today.

Mr Colle: I have a brief question in terms of your discussions about the relationship between master or official plans of municipalities and EA requirements. I was just thinking of an example. If a municipality, for instance, is going to widen a road or install a new transit way, are you saying that if there is an official plan process going on that takes that into consideration, there shouldn't be a specific independent EA done on the new road extension or widening as long as it's included in the official plan review that's taking place?

Ms Joyner: The official plan process would fulfil what I call phases 1 and 2 of the environmental assessment process, which are the need and opportunity and the assessment of alternatives to or alternative strategies. It would assess why a road, why a transit way and what's the best corridor for that transit way. You still need to complete the back end of the environmental assessment process, which is, what are the specific effects of that undertaking on the environment? Our proposal is that the official plan or master plan can be relied on to fulfil the front end of the environmental assessment in those cases where it's been completed.

Mr Colle: The back end or the technical end still has to be undertaken, though. Is that what you're saying?

Ms Joyner: Yes.

Mr Colle: Okay, thank you.

Ms Churley: Thanks for your presentation. I think we're in general agreement on many problems expressed in your response.

One thing I want to clarify with you is that you said you're pleased to see that the bill keeps the fundamental, important aspects of an EA, of which of course the heart is looking at alternatives. Then you refer to a concern you have about the terms of reference, that you don't think it's the government's intention but that throughout those negotiations with the proponent that could be lost. The fear here is that there is no guarantee that at the end of the day all fundamental conditions, like alternatives, after negotiations between the proponent and the government, will be looked at. I just wanted to clarify for you that this is a key area of concern because that is what will happen in some cases.

I know you asked that the terms of reference criteria be clarified. How do you feel about who should be involved in that process of negotiations for the terms of reference?

Ms Joyner: Our position is that we'd like to see more clarity enshrined in regulations or guidelines now. We were pleased with the way the Planning Act was put forward in that the regulations and guidelines associated with that act basically came out at the same time that the legislation did, so we had the whole package in front of us. It's our understanding, from speaking to staff at the ministry, that the intent is to use things like the existing sectoral environmental assessment process or other guidelines to clarify what the meaning of those terms of reference is. We're saying we'd like to see that clarification now.

Ms Churley: You would like to follow up, you would like to make sure that the full meaning of EA is included in those terms of reference, that some key components aren't negotiated away at the very top end of the process?

Ms Joyner: Right, maybe with the exception that if those requirements have been fulfilled through another process, say under the Planning Act or through a master plan, that's also acceptable. But the terms of reference should refer to those documents.

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Mrs Barbara Fisher (Bruce): My question relates to your predecessor this morning who made a comment with regard to mediation. One of their recommendations was that any findings with the mediation ought to be made public. I would ask you to comment on whether or not you feel that even if mediation is carried out in an in camera session setting, do you or don't you agree that the findings should be public when we're looking at fuller public consultation and input?

Ms Amos: There's been some discussion among our members on that, and we've discussed it with staff as well. I think there is confusion, from reading Bill 76, about the role of the public, which I think is the one you're raising, in terms of mediation and the question of whether or not the public can be a party to mediation, which indeed this bill I believe anticipates, and whether or not the mediation itself should be public and then, thirdly, whether or not the mediation report should be made public. We haven't had an opportunity to canvass our members on it, but if you'd like my opinion, I'd be happy to provide it.

I think you will raise some problems with the prejudice issue for the eventuality of a board hearing, if there is a board hearing. If you make that report public at the same time as you launch into a board hearing, it could cause problems. Right now, the way the bill is worded, the minister will make that report public. We may want more opportunity for the minister's discretion; that if, for example, there are three matters scoped for a board hearing and the fourth was solved by mediation, there's no need to make that mediation report public. If there's new evidence or interesting topics brought out which will be discussed at the board among parties who were at the mediation and who will be at the board, it may be appropriate. It may require some case-by-case determination. But it is problematic.

You'll want to hear from groups which specialize in the mediation field, because it's becoming quite a specialty as to how it works best. There are good and bad reasons to keep it public and keep it private.

Mrs Munro: Thank you very much for your presentation. I wanted to come back to an issue that you raised towards the end of your presentation. You suggested in the area of the terms of reference that you would support some public consultation at that stage. This certainly seems to be an area that has generated a great deal of response by people who have presented. My question is about the nature of the consultation that you would envisage and support. I would like it if you could comment on that and provide some kind of specifics that wouldn't jeopardize any kind of potential confidentiality within the notion of the proponent. Is that an issue?

Ms Amos: I don't think the confidentiality of the terms of reference is an issue at all. Currently I work for a municipality, and when we prepare our terms of reference we do it with the assistance of public stakeholders, provincial agencies, local agencies and so on. It's all wide open. Anyone who calls, anyone who wants to find out about it can. We even put ads in the paper saying that we're thinking of developing terms of reference and would people like to help. Confidentiality, for most proponents, is not a problem. I certainly don't think it's contemplated by the staff at the ministry that this would be confidential.

I am concerned when I hear people referring to, as we've heard this morning, "negotiations" on terms of reference, which somehow makes it sound like it's behind the doors. I don't see it working that way in practice. Terms of reference, as Ann has said, are a work plan. A proponent who is launching a major public project is not going to develop a work plan, other than maybe the first draft while they get some of their ideas straight and put them out on paper, in any closed-room setting.

I think after that what you will find in practice is that the public, by virtue of their need to comment on it so that they don't object to it at the time on the Environmental Bill of Rights registry when they have the opportunity to object, will be involved. However, we don't feel it would hurt to have that enshrined in a subsection in the legislation. We have a couple of subsections now which talk to the public being consulted about "the undertaking." We feel those could be broadened as well to talk to the public about the entire environmental assessment process, and that could be widened to include the preparation of the terms of reference.

The Chair: I'm sorry, we actually went a little bit over the time. It was very interesting. We appreciate your coming before us and the effort you put into your presentation.

CANADIAN ENVIRONMENTAL LAW ASSOCIATION

The Chair: Next we have the Canadian Environmental Law Association, Mr Lindgren. Welcome, and thank you for taking the time to be with us.

Mr Richard Lindgren: My name is Richard Lindgren and I'm a staff lawyer with the Canadian Environmental Law Association. I'd like to thank the committee for inviting us to appear to speak to this very important legislation.

Some committee members may know that CELA was first established in 1970. We've been particularly active in the area of environmental assessment at both the provincial and federal levels. At the provincial level, we were quite actively involved in the original passage of the Environmental Assessment Act in 1975 here in Ontario.

Since 1975, we have represented numerous residents, ratepayers' groups and public interest groups in environmental assessment hearings and in the courts from time to time. We've also been involved in the various EA reform efforts that the minister mentioned this morning, such as the EA task force report. We commented on that. We were also involved in the public deliberations held by the Environmental Assessment Advisory Committee a few years ago.

I should also mention that I'm a member of the Environmental Assessment Board advisory committee dealing with procedural reform and I also teach environmental assessment law at law school and at university. I'm tempted to say that environmental assessment is my life, but I won't say that because people will tell me to get a life, so I'll just leave that one alone.

We reviewed Bill 76 in quite some detail and brought to bear our extensive EA experience and our unique public interest perspective in terms of what the bill does and what it doesn't do. After reviewing the bill, it's our conclusion that the bill is fundamentally flawed and it should not be passed in its present form. Our recommendation to the committee is that the bill be withdrawn unless it is substantially overhauled to close many of the loopholes, address many of the deficiencies and correct many of the problems that are found throughout the legislation.

I was here for the morning presentations. I heard a similar recommendation made by AMO and the OWMA, and I find myself in strange company echoing that concern, perhaps for different reasons, but I guess environmental assessment, like politics, makes for rather strange bedfellows.

I was also here this morning to hear the minister offer her views on the good things about Bill 76. I heard her response to the questions posed by Mr McGuinty and Ms Churley. It's unfortunate that I couldn't have an opportunity to ask questions. I certainly have lots of questions to put to her.

The first one would be, is she reading the same Bill 76 that I am reading? Because I hear the minister, from time to time, talk about how the bill entrenches public participation rights, increases accountability, ensures full environmental assessment and all the rest of it. In our respectful submission, the bill does nothing of that. It doesn't achieve those worthy objectives at all. I'm not sure which bill she's looking at. It's certainly not the one that's before this committee.

It's our view and it's our experience that the existing Environmental Assessment Act is fundamentally sound. There have been problems. We heard some of them this morning. I'm not here to say that the process is perfect. I'm the first one to tell you that there is a need to update and improve certain aspects of that legislation. It has not been substantially changed since 1975 and it's time to benefit from our experience and to implement the necessary changes. The problem is that Bill 76, as drafted, does not improve the act. It in fact dismantles many of the key provisions and key protections of the existing legislation, and that is why we do not support the bill as drafted.

CELA's many detailed concerns and comments about Bill 76 are contained in our 50-page brief that we filed with the clerk and that's now been distributed to the committee members. I appreciate that the committee is under very tight time constraints and I'm sure you don't have much leisure time to read bedtime reading like this. But if you can't read the full brief, I would commend the executive summary at the beginning. It, in a very concise way, summarizes our key recommendations. It's only about seven pages in length.

If you don't have time to read that, then I would commend to you the document that's also been distributed called, Bill 76 -- Questions and Answers. That's something that we put together to provide, on two pages, our essential and most fundamental concerns with Bill 76. I would refer to this as the Coles Notes to our full brief. If you don't have time to read the full brief, read the Coles Notes.

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In my remaining time I don't propose to read into the record any portions or excerpts from my brief. Instead, what I propose to do is focus some verbal comments on the five most problematic aspects of Bill 76, and then I'll conclude my remarks by tabling and briefly discussing the various legislative amendments that we have tabled and put forward for the committee's consideration.

I should note at the outset that our suggested recommendations don't attempt to fix every single problem in the bill, but I think they do go a long way in addressing some of the fundamental problems with the bill. If they are implemented or something like this is implemented, then perhaps we can salvage something useful out of Bill 76, on the assumption that it does go forward.

I mentioned that I was going to outline CELA's five major concerns with the bill, and to start that off, the first concern is this: Bill 76 does not guarantee that there will be a full environmental assessment for landfills, incinerators or any other environmentally significant undertaking. In short, Bill 76 contains several provisions which allow the minister to essentially vary or dispense with important, essential requirements under the existing act.

We heard my friends from OSEM a few moments ago identify one of those provisions. That's the provision with respect to terms of reference which allows the minister, with a stroke of the pen essentially, to dispense with the requirement to look at alternatives that may be appropriate for the proponent to look at.

That's one example where the minister, under Bill 76, has sweeping new powers to evade or circumvent or undermine some of the important safeguards under the existing legislation. By any objective standard, that has got to be viewed as a rollback, and in my view it marks the demise of sound environmental planning in this province. If you're not going to require the proponent in every instance to look at a reasonable range of alternatives, that's not environmental planning, that's not environmental assessment.

Just to conclude that remark, that rollback -- namely, that there will be no guarantee of full EA -- is also contrary to various commitments to full EA that have been made by the minister and the Premier. Mr McGuinty this morning read into the record some of those commitments that have been made, and Ms Churley was right when she said that if this bill goes forward as drafted, those commitments, those promises for full EA will have been broken. That is regrettable, in my view. That's concern number one.

Concern number 2 is this: Bill 76 does not guarantee early or effective public participation in the EA process. Again, that's despite comments made by the minister this morning in support of effective and meaningful public participation.

First of all, as the committee has heard many times already, there's no mandatory requirement for upfront public participation in the development of the critically important terms of reference. Those terms of reference, committee members will recall, are very important because they determine the scope and nature and extent of the EA planning process to be followed by the proponent. They're more than just a work plan, as OSEM described it. They are binding, and that is going to be the benchmark to assess the EA that's ultimately produced. Because of the binding and important nature of the terms of reference, it's absolutely imperative that affected or interested members of the public be consulted up front while they're being developed, not after and not through perfunctory EBR registry notices. They have to be involved in a meaningful way up front. That's the first public participation concern under Bill 76.

Another is that although section 6.1 says, "Thou shalt consult interested people," there's no definition of consultation and no definition of interested person, so we're all left kind of guessing what exactly does consultation mean for the purposes of the legislation and who exactly has to be consulted. Does it mean, for example, that only people living within 120 metres of a proposed landfill site have to be consulted? I don't think that's the intent, but certainly that's a reasonable interpretation of the legislation as drafted.

Finally, under the heading of public participation, I would be remiss if I didn't remark upon the absolute lack in Bill 76 of any requirement for proponents to provide intervenor or participant funding. That type of funding, in my view, is absolutely essential if we're going to have meaningful public participation in the EA process. Without that kind of funding I really cannot take seriously any statement, any assessment, that there will be meaningful public participation under this legislation.

This past April, as committee members will know, the current government allowed the Intervenor Funding Project Act to expire. The government deliberately refused to extend or re-enact that very important legislation, and now we see that the same government has refused to incorporate into Bill 76 any requirements regarding intervenor funding or participant funding. The result is this: Given the absence of those funding mechanisms, many Ontario residents and Ontario groups will simply be unable to effectively exercise their public participation rights under this legislation.

I heard the minister this morning refer to what she understood to be the norm, which is proponents often give out money in advance to people so they can do peer reviews. I've been practising environmental law for about 10 years now and I've been at the EA front lines for close to a decade. That is not the norm; it's very much the exception. Very, very few proponents are enlightened enough to provide that kind of money, and without the requirements in the legislation provided, it will not happen.

The minister also referred to the possibility of receiving a cost award at an EA hearing. I guess that's supposed to be a sop to us all. In fact, very few matters, very few undertakings, get to the Environmental Assessment Board. Only 1% of all projects and undertakings under the legislation actually go to a hearing, and as I'll discuss in a moment, the minister can still deny reasonable hearing requests. There's no guarantee you'll even get a hearing, even for controversial, environmentally significant undertakings like landfills. So to tell the Ontario public, "Don't worry about no intervenor funding; you can get costs at the hearing," in my view is not an acceptable or plausible explanation for the lack of intervenor funding in this bill. Quite frankly, most people will not get to the board under this legislation.

Concern number 3 is this: Bill 76 does not reduce uncertainty or unpredictability within the EA process. In fact, to the contrary, it adds uncertainty and unpredictability to the process and it does so by essentially overpoliticizing the EA process. I have reviewed the bill and I have counted at least 36 different discretionary powers that are being conferred upon the minister and the director -- 36 different discretionary powers in a bill that probably only has 30 sections. That's got to be some sort of legislative record.

The problem is that while there may be a need for some discretion, there are no substantive or detailed or specific criteria in the bill to help structure the exercise of those criteria and to help ensure some accountability when decisions are made. As well, you will see that often where these discretionary decisions are going to be made, they're not required to provide upfront public notice for comment opportunities.

A lot of these decisions will be made by the minister or the director or some designate behind closed doors, without public input and without any meaningful criteria. That, to my mind, does not lend itself to accountability, predictability. What it's going to result in is case-by-case discretion, which is going to be very hard to really analyse and predict with any kind of measure of confidence.

The problem here is that there is virtually unfettered discretion being given to the director and to the minister and also, incredibly enough, the minister has sweeping new powers to delegate most of those powers, those discretionary decisions, to other people, other ministry officials. As far as I can tell, people who are not even employees of the provincial government could potentially receive delegated powers under this legislation. Where is the accountability in that? Where is the predictability?

Comment number 4 is this: Bill 76 places unjustifiable constraints on the availability, scope and independence of EA board hearings. First of all, as I mentioned a moment ago, you may not even get an EA hearing under this legislation. The minister can refuse to send matters on to a hearing even where the request comes from the public and involves a particularly significant or controversial undertaking.

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I don't think we have to look any further than what happened a couple of weeks ago with respect to the proposed Taro landfill in Stoney Creek. It's a proposal to establish a very big landfill in a quarried-out pit near the Niagara Escarpment. I cannot think of a more controversial, more environmentally significant undertaking that should go to a hearing, and yet the minister said no to a hearing. That kind of thing will continue under this legislation. So let's not pretend we'll get environmental assessment hearings under Bill 76. They will be a rare bird indeed.

But even if we got a hearing under Bill 76, as the committee members now know, the minister has the power to dictate what matters get heard by the board, what testimony gets heard by the board, how long the hearing will take and so forth. This is all despite the fact that the ministry is a party to the hearing and can still dictate what's happening. It can sweep the contentious issues right off the table.

In my view and in the view of the Canadian Environmental Law Association, the right to request and receive a hearing under the Environmental Assessment Act is a fundamental right that should not be taken away except in the rarest of circumstances, namely, where the hearing request is clearly frivolous, vexatious or made for the purposes of delay. That's the test that should be incorporated into Bill 76.

As well, we do not support the ability of the minister to scope, constrain or limit what happens before the board. The board and the parties are best equipped to do that, particularly if the terms of reference are working. These issues should be identified and scoped long, long, long before it gets to the board.

Fifthly and finally, the class EA regime established under Bill 76 falls way short of the mark. This is a particularly significant point because, as OSEM pointed out a few minutes ago, most EA activity occurs under class EAs that have been approved under the existing legislation. The problem, in my view, is that the Bill 76 class EA regime suffers from many of the same problems that the individual EA regime suffers from, namely, lack of upfront consultation on the class terms of reference, ability to deviate or dispense with essential EA requirements.

But I guess in the class EA context my most fundamental concern with part II.1 of the legislation is the refusal of the government to put in place provisions in Bill 76 which limit class EAs to truly minor projects. Now class EAs evolved in this province to ensure that there are streamlined EA requirements for minor projects that recur frequently, are similar in nature, are minor and predictable impacts that are subject to mitigation. That was the whole rationale for having streamlined EA. So you can get approvals for municipal road extensions or sewer works and so forth in a relatively efficient fashion.

There's no attempt in this legislation to limit classes of undertakings to things that are minor and have predictable and limited environmental impacts. So under Bill 76 there's nothing to stop the minister from approving a class EA for a whole collection, a whole class of undertakings that are otherwise quite environmentally significant. There's nothing in this legislation that would prevent the minister from approving a class EA for landfills, incinerators, nuclear generation stations. The list goes on and on. That is a travesty. Those are things that do require individual environmental assessment. So if the committee's going to do anything about class EAs, it's got to ensure that there are provisions in Bill 76 which limit the scope of the types of undertakings that could be subject to class EA.

In a nutshell, those are our five main concerns about Bill 76. I'd be happy to take questions about them.

Let me conclude by briefly discussing CELA's recommended amendments to Bill 76 and that's the document entitled, surprisingly enough, CELA's Recommended Amendments to Bill 76.

Now I'm not a legislative draftsperson. There's no magic in the language that's used here. I sat down yesterday afternoon and started to put into legal language the types of amendments that would have to be implemented into Bill 76 to make it acceptable. As I say, I don't profess to be a legal draftsperson, but the intent is clearly here and if there are better ways to get at the intent behind these provisions, I'd certainly be happy to discuss them.

There are 20 amendments that we've put forward. Without taking any time I would tell you that there are five that are probably most critical, and I'll conclude on this remark. The most critical amendments, in my respectful submission, are as follows:

Item 4 at the bottom of page 2 fleshes out and improves the terms of reference process. Those are the types of amendments that are necessary to salvage something useful out of the terms of reference, because our suggested rewording deals with public participation, the need to ensure full compliance with existing essential EA requirements and so forth. I would commend section 6 or something like our redraft of section 6 to the committee for its consideration.

The next critical amendment is number 5 at the bottom of page 3, which fleshes out what public consultation really means and should mean under Bill 76.

The next critical one I would highlight for the committee is item 7 at the bottom of page 4, which recommends the deletion of subsection 6.2(3), which is part of the legislative provisions which allow the minister to dispense essential EA requirements at the terms of reference stage. That provision has got to go.

Then flipping over to page 5, item 10, you'll see a number of subsections within section 9 have been earmarked for deletion. Those are the ones that allow the minister to unnecessarily constrain the scope of the EA hearing and what can happen at the EA hearing. Those have got to go, in my respectful submission.

Then on the very last page you'll see some of our comments about class EAs. This is item 18 at the top of page 8. Quite frankly, class EAs are so important to the overall structure and administration of the EA program that we've got to make sure we do it right. So our primary recommendation is just to delete the existing part II, go back to the drafting table and come up with something that's more useful and more effective in terms of ensuring public participation and consideration of EA requirements.

That's the point I'll conclude on. It's taken a long time to reopen the EA act. It's been 20 years since it has been passed and it may be 20 years before we get another crack at it. I would urge the committee to exercise, as I'm sure it will, caution in terms of the amendments it may propose or put forward because EA is important. Environmental assessment legislation that we have in Ontario is arguably our most important environmental protection and it helps protect us against bad landfilling decisions, bad siting decisions with respect to incineration.

This is critically important legislation. I'm pleased to see that the committee's going to be dealing with it, but let's think long and hard about what we do. Let's come up with the best legislation possible because we're going to be stuck with it. My children will be stuck with it and your children will be stuck with it for a long time. I'll end on that note, subject to any comments.

Ms Churley: First, let me clarify, Mr Lindgren, that despite the beefs with the past NDP government, you are willing to answer my questions today, are you, unlike Mr Taylor from the OWMA?

Mr Lindgren: That's correct.

Ms Churley: Okay. I wanted to ask you to clarify for the committee why looking at alternatives -- I said this morning I see it as the heart of the EA and that of course has been ripped out, given the discretionary powers of the minister now, and obviously it's not going to be a major component in many instances. Can you explain to the committee so that we all fully understand why that component is so important to the process?

Mr Lindgren: The strength of the existing legislation is subsection 5(3) which has, I guess, been replicated in subsection 6.2(2). That is the section that requires proponents to take a long, hard look at various things like alternatives to the undertaking, alternative methods of carrying out the undertaking, the advantages and disadvantages of the alternatives, the various biophysical and social economic impacts and so forth. What does all that really mean? It means that the proponent is directed by law to come up with an environmentally preferable solution to a perceived problem or opportunity.

That's the difficulty I have with Bill 76. It would allow a proponent to say: "I'm not going to look at alternatives that may be better or safer for the environment or sites that provide better groundwater protection. I'm not going to deal with that. I want that site because I own it now. That's where I'm going to build. Let's get on with it." That's not environmental planning. By allowing that to happen, you're losing the rigour, the comprehensiveness and the various environmental benefits of full environmental assessment. That's why the act was passed; that's why alternatives are important; that's why we cannot lose that under Bill 76.

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Ms Churley: An example, for instance, as I brought up this morning, is that in an incineration proposal, not looking at the 3Rs in that context would be a problem because of the competition and the conflict between the materials that are used for both. Would you consider that to be a prime example of where alternatives would need to be looked at?

Mr Lindgren: Absolutely. There seems to be a sense among some people that EA is essentially a site-specific impact analysis: You just look at where the fallout's going to occur and that's the end of it, that's all you have to look at. But in fact siting an incinerator has more profound resource implications than simply the toxins that will be coming out of the stack. It will, for example, be competing with the resources that are currently within the waste stream or the 3R stream. Those kinds of things have to be taken into account if we're going to make an informed, rational decision about whether an incinerator should be approved.

Mr Trevor Pettit (Hamilton Mountain): Mr Lindgren, I guess it's safe to say that in your role with CELA you must have some familiarity with EA acts throughout Canada.

Mr Lindgren: I have from time to time looked at various other jurisdictions.

Mr Pettit: Could you give us a brief overview as to how you would compare Bill 76 with the acts you're familiar with in other provinces?

Mr Lindgren: I would start the comparison by looking at how Bill 76 compares to what we now have at the federal level, because that's probably the most current environmental assessment reform to come down the pike and a lot of people look to that as a model. Unfortunately there are a lot of bad similarities between Bill 76 and what we see at the federal level. In fact, those of us who practise EA law sometimes say that Bill 76 in essence reduces Ontario's process to the level of the federal process. The federal process, in my respectful submission, is not very rigorous at all. It's not something to attain or aspire to, yet that's where Bill 76 seems to be heading.

In terms of other jurisdictions, I think a comment I make in my brief is that I've always regarded the Ontario legislation as perhaps the strongest EA legislation -- the existing legislation, that is -- because we have the opportunity for independent review and approval by the Environmental Assessment Board, which makes a binding and enforceable decision. No other jurisdiction does that. That is, I think, the strength of our process. We've got an independent decision-maker that can look at this stuff.

The problem with our regime -- and other jurisdictions do a better job of this -- is that we don't seem to apply it very often to private sector undertakings. I think other jurisdictions do a better job at ensuring that environmentally significant private sector development gets assessed in a rigorous process. We don't really do that. Under our regime, private sector development is exempted unless it's specifically designated as being subject to the act.

Mr McGuinty: I apologize for not being here at the outset, Rick, but thank you very much for your presentation and for your ongoing support. I know you've put a lot of work into this and I appreciate that.

One of the things I asked the minister this morning was what she planned to do to ensure there was public notice given with respect to the terms of reference and to allow opportunity for public input into that, and she suggested that she might post on the Environmental Bill of Rights. Let's discount for a moment that there may very well be legislative hurdles to doing that and let's discount for a moment that I think only 30% of Ontario households now have personal computers in them, and I'm not sure how many of those are on the Internet and I'm not sure how many people are going to make their way to the library to get on to the registry. Practically speaking, what's the missed opportunity here? That's what I'm driving at. What is the missed opportunity here if we don't get people involved at the outset with respect to drafting terms of reference?

Mr Lindgren: Not involving people at the outset is a recipe for delay and controversy and litigation. That's the price you pay by excluding interested and affected people at the very outset. I listened to the minister with great relish this morning as she was touting an Environmental Bill of Rights registry as the way to let people know that this stuff is happening. I was on the EBR task force. I drafted the legislation, or helped draft it, I guess, and it is an important way of providing notice to the public, but the EBR itself recognizes that the registry is a minimum form of notice. It is not the all-inclusive way to get people involved. Not everybody has a computer or a modem and can tap into the registry.

There are other more practical, more efficient, more traditional ways to get people involved at the terms-of-reference stage, like mailouts, door-to-door campaigns, newspaper notices, open houses. Those kinds of things that can be done and have been done under the EA process need to be moved forward in the process so that people do have a meaningful opportunity to get involved at the earliest possible stage.

The Chair: Mr Lindgren, thank you kindly for your time and for your presentation here this afternoon.

CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY

The Chair: Our next witness is the Canadian Institute for Environmental Law and Policy, Mr Winfield. Welcome.

Mr Mark Winfield: My name is Mark Winfield. I am director of research with the Canadian Institute for Environmental Law and Policy. The institute is a not-for-profit, independent environmental law and policy research and education organization founded in 1970 as the Canadian Environmental Law Research Foundation. CIELAP has been involved with the environmental assessment process and its formulation in Ontario since its origins with the green paper on environmental assessment in 1973.

In 1986, CIELAP's predecessor, the Canadian Environmental Law Research Foundation, completed a comprehensive landmark study of the environmental assessment process in Ontario entitled Environmental Assessment in Ontario. I'm going to file a copy of this report with the clerk so it's available for reference by members of the committee. It's a very comprehensive review of the act, and I think although done more than 10 years ago, it's still very relevant to the issues which are before the committee today with the Bill 76 amendments to the bill.

With respect to Bill 76, it's become clear over the last few years that reform is needed with respect to the environmental assessment process in Ontario, but Bill 76 is in our view a disappointment in the sense that it doesn't reflect the kinds of recommendations for reform which were made by the Canadian Environmental Law Research Foundation or more recently by the Environmental Assessment Advisory Committee.

Unhappily, we take the view that the proposed amendments seem to us likely to weaken the process significantly as an environmental planning procedure. Indeed, they seem likely to produce a more, not less, uncertain and inconsistent process by introducing such a large amount of discretion in the hands of the minister and her officials in terms of the application of the act, the content of environmental assessments, the provision and content of public hearings under the act, and elements like the right of the minister, which is being introduced through this bill, to reconsider environmental assessment decisions.

In our view, before this bill proceeds, it is in need of major revisions. In fact, you will see from our brief that we've recommended no less than 37 separate amendments to the bill.

I'm going to focus my remarks on a number of key aspects of the bill which I think deserve committee members' particular attention, and there are seven in particular I'd like to address. I'll deal with them largely in the order in which they appear in the bill.

The first one is the question of harmonization. That is the situation where the environmental assessment requirements of more than one jurisdiction might apply to a particular undertaking. In the case of Ontario, it would be a situation where the federal government's environmental assessment process would apply to a project as well as the Ontario process.

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We're concerned by the approach which is proposed in the bill, which is essentially to dispense with elements of one or the other level of government's requirements for such assessments. We find this particularly surprising in Ontario, given that we already have a model for dealing with situations where you may have more than one assessment process applying to a particular undertaking. I think particularly of the Consolidated Hearings Act, which was enacted in 1981.

We think what we should be attempting to do with Bill 76 is to seek the consolidation of the requirements of both levels of government into a single process which meets the requirements of both levels' legislation. In terms of particular amendments to Bill 76, it means that the element of the bill in section 3.2 dealing with this issue should be amended so that where the requirements of more than one jurisdiction apply to an undertaking, the requirements of the Ontario process should only be dispensed with where equivalent requirements are applied under the other jurisdiction's legislation. In addition, we believe there must be provisions made for public consultation in the development of joint assessment processes.

The second aspect of the act which I'd like to focus on, and one which has drawn a lot of attention, is the question of the introduction of the notion of terms of reference in terms of the definition of the scope of particular environmental assessments. This causes a great deal of concern, as it seems to have the potential to remove a number of key requirements from the environmental assessment process; in particular, the elements related to consideration of need and the consideration of alternatives. In effect, what is proposed is to replace the current provisions of the act which say that all environmental assessments have to consider the rationale for the undertaking and the availability of alternative means of meeting that need and to replace that structure with a process whereby terms of reference for the content of each assessment will be negotiated between the minister and the proponent.

In our view, this introduces a number of problems. It seems to have the potential to dispense with key elements of the process. In addition, it seems to have the potential to add less certainty, not more, to the assessment process, as the content of each individual assessment will now be determined on a case-by-case basis.

In our view, we don't object necessarily to the notion of the development of terms of reference in relation to environmental assessments, but we believe they should indicate how the basic requirements of the act will be met and not whether they will be met. In addition, we believe there must be provision made for public consultation in the development of terms of reference around environmental assessments. We think that's absolutely essential.

A third issue which I would like to draw committee members' attention to is one that Mr Lindgren just mentioned in his previous presentation, which is the issue of the potential for the limiting of the scope and content of Environmental Assessment Board hearings by the minister. We are very seriously concerned by the proposal to give the minister the power to limit the subjects on which the board can hear evidence or to impose time lines on the board for its hearings.

In our view, this raises serious concerns about fairness. It seems to us an invitation to judicial review of board decisions, as there are obvious grounds for arguing that the board did not have the opportunity to hear essential evidence or did not have time to hear essential evidence. In fact, the bill itself in a sense recognizes this, because it actually tries to make a provision which cuts off the possibility of people seeking judicial review of board decisions on this basis. In our view, these provisions simply should be deleted. It's the best way to deal with them.

I would also like to draw committee members' attention to the issue of class assessments. As a number of witnesses have said, class environmental assessments have become an essential part of the environmental assessment process in Ontario, but oddly enough, there is no statutory basis for the conduct of class assessments in the existing act. In a sense we welcome the step that there's some effort to provide some basis, but at the same time we're concerned by the content of what is before us.

In particular, we believe the bill needs to provide some very clear criteria about what can be included in class environmental assessments. As Mr Lindgren said, as the bill is drafted now, anything could be put into a class assessment: landfills, incinerators, nuclear power plants. In our view, the bill should be amended to limit the use of class assessments to activities with minor, well understood, mitigable environmental impacts and around which there is a low level of public interest.

In addition, we are concerned that the bill's provisions around class environmental assessments do not include certain key elements of the general assessment process, and in particular consideration of the rationale and the availability of alternatives to the undertakings which are proposed to be dealt with under class assessments.

We're also concerned that there seems to be quite a serious omission in that there doesn't appear to be any provision for public hearings being conducted in relation to class assessments, and clearly this issue has to be dealt with. Class assessments should be potential subjects of hearings.

With the general provisions of the act, we believe the minister should be required to grant hearings, unless the request can be shown to be frivolous, vexatious or made solely for the purpose of delay.

We also believe that there need to be criteria and a clearer process provided for dealing with situations in which people ask for the bumping up of undertakings from being dealt with under the class environmental assessment process to being dealt with under an individual assessment.

The fifth thing I'd like to draw members' attention to is the question of the introduction of provisions around the development of policy guidelines in relation to environmental assessment. This reflects, to a certain degree, recommendations made by the Environmental Assessment Advisory Committee. We find it somewhat surprising that the way the bill is presently worded, these guidelines are only targeted at the Environmental Assessment Board. One would think that in order to be consistent with the Planning Act process and policy guidelines made under the Planning Act, any policy guidelines made under the Environmental Assessment Act should apply to proponents and be considered by the board and the minister in their decision-making under the act.

The other surprising thing with respect to the notion of policy guidelines is the absence of any provision for public consultation in the development of these policy guidelines. Clearly there needs to be provision made for that in terms of public notice and comment periods, and requirements that the minister respond in some way to whatever public comments are received.

Sixth, the issue of public participation, and specifically intervenor funding, has been raised already by a number of witnesses. In general, we welcome the references in the bill to public consultation and the availability of mediation, but in order for the provisions to be meaningful they need to be applied throughout the bill, in particular in relation to public consultation. The particular vehicles and forms of consultation which must occur have to be specified in the bill, and that would essentially follow the model of the Environmental Bill of Rights.

With respect to intervenor funding, it's clear -- a number of witnesses have already drawn attention to this -- that with the expiry of the Intervenor Funding Project Act in April of this year, public interest intervenors, be they individual citizens, community groups, citizens' groups, public interest organizations, are going to face enormous barriers in participating in the environmental assessment process. We find it very disappointing that the government has not taken the opportunity of the consideration of Bill 76 to address this issue meaningfully.

Finally, there are a number of issues to which I'd like to draw the committee's attention because they reflect the degree to which, in our view, Bill 76 is a lost opportunity, in the sense that there are a number of long-standing issues with respect to the environmental assessment as a process in Ontario, which were identified as far back as when the act was first enacted in 1975, that are not addressed by Bill 76.

The ones that come to my mind most immediately include the question of the application of the act to private sector undertakings. Ontario is currently the only jurisdiction in Canada which makes a distinction between public and private sector undertakings in the application of its environmental assessment legislation.

The issue of the application of the act to government policies and programs should be addressed. Consideration of cumulative effects and the integration of an ecosystem approach to environmental assessments in the environmental assessment process should also be considered. Provision should be made for the monitoring and enforcement of the implementation of terms and conditions that are imposed on approvals made under the act. This should relate both to approvals granted and also terms and conditions imposed on exemptions granted under the act.

Finally, we believe that the committee should give serious consideration to using this opportunity to re-establish the Environmental Assessment Advisory Committee. This committee was abolished by the minister this fall. In our view, this was perhaps a hasty move in the sense that the committee had been a very important and very useful and well-respected source of independent advice to the minister on Environmental Assessment Act exemption requests, and also of advice on the reform of the environmental assessment process itself.

I think I'll conclude there and would be pleased to answer any questions which members may have.

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Mr Stewart: Thank you, sir, for your presentation. I have two concerns and two problems with the way the hearings have gone on in the past. One is the time element, and one is the cost element.

If I heard you right, what you're suggesting is that there should not be any time lines and that any issue whatsoever should go before the hearings. When I look at some of the hearings over the past number of years that have exceeded two years, I have a little difficulty with that. Surely to goodness we can put in some type of guidelines that can protect what we want to protect but get on with the job. The only people who really benefit on this thing are those being employed to carry on these types of hearings for this length of time. To me, if you don't put in some type of restrictions it just goes on forever and you get nothing done.

I'd like you to address why you feel there should not be some type of control, guidelines, whatever, and limits on this.

Mr Winfield: I think trying to impose them through the hearing process itself, using the legislation, is a very heavy-handed way of doing this, and I think it does raise some quite serious problems about procedural fairness in the sense of directing the board to take issues off the table or directing it to complete its hearings within set time frames. I think those are invitations to judicial review of board decisions on the basis of fairness.

The board probably does need, in its own procedures, to be more vigilant about the issue of relevance of the evidence which is brought before it, and there have been some steps taken towards trying to make the process more efficient. Everyone recognizes there were problems with the OWMC assessment and the timber class EA where the hearings went on for years and years. We need to look at the board procedures in the way in which it deals with evidence -- in that forum, though; it's really partially a management problem for the board itself -- and then the other factor is that there are some elements in terms of providing more focus in the assessment process which might be used to try to provide more focus in board hearings.

I think the introduction of the notion of mediation through this bill is a more constructive way of trying to get at that problem in the sense of trying to find ways to winnow down what actually goes before the board as being real issues in contention, as opposed to things that might have been settled in a non-quasi judicial forum.

Those are other mechanisms which the bill itself contains which might provide better and less heavy-handed ways of dealing with trying to bring the length and scope of board hearings under control.

Mr Stewart: Do you not think that if you put in some type of controls or limitations or time elements it may force -- I guess I could use that word -- the people involved to arrive at some decisions without it just going on and on? It doesn't matter whether it's only at the hearings, whether it's changing criteria, whether it's these waste management master plans that keep being changed with no limitations on. You know when you look at some of the costs that have been incurred in this province over the last eight or 10 years and we have got no place in terms of looking after our waste other than some of the three Rs etc. We've got to do something, do you not feel, to try to push this on to some type of a completed form some time?

Mr Winfield: Yes, there have to be end points in the process, and there are now. In the view of an awful lot of commentators on the process, part of the problem has been that for some of the more problematic hearings in particular -- one thinks of the timber EA, the OWMC hearing, some of the waste management hearings -- the hearings and the process have been occurring in a policy vacuum on the part of the government, so that major policy issues are having to be resolved by the board in the hearing process. That inevitably leads to very long hearings because the board has been, more or less, left to solve these things on its own. The hearing process before the board may not be the ideal forum for trying to deal with that, but in the absence of anything else, that's what's grown up.

With respect to the issue of waste management, one has to look at this carefully. We would like to raise a very fundamental question, one which is probably at odds with the view taken by the OWMA. The government needs to ask itself, does it really want to make it that much easier to get a landfill approved in the province of Ontario? We're talking about undertakings which by their very nature have enormous environmental impacts in terms of surface waters, groundwaters, air emissions, surface disruption, noise, nuisance. Do we really want to make it that easy, particularly when making it somewhat difficult to get landfill approved provides some very powerful incentives for municipalities and waste generators to undertake all kinds of measures to try and divert waste from landfill and to reduce our need for those kinds of facilities?

Mr Stewart: Waste management doesn't just mean landfills.

The Chair: Mr Stewart, your time is up.

Mr McGuinty: Thank you very much for your presentation. Just for the record, I want to state as well that as the environment critic for my party, I've always found the materials put out by your organization extremely helpful and I would recommend their reading to all members of the committee. They don't have to agree with everything that's in them, but they are very useful as a resource.

I want to talk to you a little about the provisions found in the bill which enable the minister to scope the hearings. Tell me, if you would, please, practically speaking, what this might mean. Why don't I leave it at that.

Mr Winfield: I think you mean with respect to subsection 9(3) in particular.

Mr McGuinty: Exactly.

Mr Winfield: What it means in effect is that the minister can take issues off the table for consideration by the board, and this could be any one of a number of issues which may be very important to some of the intervenors. One could imagine that the minister could say, "The board doesn't have to hear testimony and consider issues related to the need for the undertaking, or the availability of alternatives, or need to consider questions related to a particular dimension of the environmental impacts of the undertaking under review because we've decided that those are" -- in fact, it's not even limited to things which have already been resolved; it's purely at the discretion of the minister.

The wording is, "The minister may direct the board to hear the testimony concerning only those matters that the minister specifies," so anything could be taken off the table, including the most contentious issues. It also limits the board from hearing evidence on issues which might actually arise during the hearing and which may actually emerge as being quite critical to the evaluation of whatever's under review. That's just ruled out if the minister exercises this right.

Mr McGuinty: I'd ask you to step back and look at the big picture for a moment so the committee members better understand. Could you comment on our reputation internationally as a jurisdiction vis-à-vis the environment? The general thinking, and it's not without some basis, is that environmental regulation constitutes a very real impediment to economic development in the province and that the best way to promote economic development would be to get rid of or to lessen that regulatory burden.

One thing I can think of off the top of my head is that about 30,000 people in this province are employed in the environmental technology sector, the fifth-largest employment sector in the province, who in a very real sense owe their living to the fact that regulations in this province relating to the environment acted as a real catalyst to promote the development of that industry and we're now considered experts on a worldwide level. But just where have we stood so far internationally?

Mr Winfield: In terms of Ontario's international stature, certainly in the last decade but even in some ways extending further back than that, into the period of the Davis government and even the Robarts government, Ontario has been one of the leading jurisdictions certainly in North America and probably throughout the OECD in terms of environmental standards and environmental regulations, in the strength of the standards, the sophistication of the institutional infrastructure within the Ministry of Environment and Energy and other organizations like the conservation authorities.

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That historically has been the record, and one result of it has been that we have developed a fairly strong environmental industry sector. Certainly the literature around that kind of industry is very clear that demand for products of the environmental industry is driven by the strength of regulations in the domestic jurisdiction and that high domestic jurisdictional regulations are very important in obtaining export markets for environmental technologies.

This is a point that's been made by people like Michael Porter and Nicholas Ashford and a number of other academics who have studied this very carefully. There is growing concern within the environmental industry sector within Canada -- this doesn't just apply to Ontario, but to other jurisdictions too -- that as certainly forward movement on environmental standards is slowing and as we're seeing a very clear backsliding in a number of jurisdictions, domestic demand for environmental technologies and environmental services is drying up and that's also having a secondary effect of gaining access to export markets very difficult as well.

Ms Churley: Thank you for your presentation. It was quite useful, good information. I just want to make a comment about the distinction that you said Ontario makes between private and public proponents in terms of the undertaking. I consider this is more urgent now under this particular government because of its obvious direction vis-à-vis privatization. I just wanted to make that comment. That's all the more reason why we should amend this bill now to include the private sector undertakings as well.

I want to ask you, however, about the time frames, because that is an issue that continues to come up and will continue to come up. It's my understanding that the government review time is the stage where most delays occur at this time. That's why I think under certain conditions mediation makes sense, with provisos which I don't have time to go into now. To try to speed that up, I think it could be quite helpful.

My concern is, though, that I don't think any or hardly any of these stated objectives of the government are actually going to work with this particular act. I think with the 750 layoffs that have already taken place and the $200-million cut to date from the ministry there are going to be fewer staff for the government review, and also because there's so much discretionary power to the minister and to the staff and there's so much confusion up front: how the terms of reference are going to be done, how long that is going to take, how long the consultations then with the public are going to take, who the public is, all that stuff. It occurs to me that if you combine the two, it could take even longer than it is taking now to get through the entire process.

Mr Winfield: I think that's a real possibility. With respect to the government review process in particular, one point that my predecessors made in this report was that the biggest source of delay wasn't the hearings; it was the government review process and what went on there. Clearly, as resources are shrinking among all the agencies involved in the review process, that's likely to introduce further delay and also likely to diminish the quality of the comments which come forward. What you're likely to see is that most of the other agencies will essentially drop out of the government review process because they won't have the resources and they won't have the time to make contributions. I think that could be quite a serious loss when you're dealing with agencies like conservation authorities and the MNR, where you've got a lot of expertise about natural resources and that kind of thing which is just going to be removed from the process.

The other thing specifically on the government review part: There is a source of concern in the bill too in the sense that it does talk about prescribing time lines for the government review process but it doesn't specify what those time lines might be. The rumour we've heard has been 45 days. You also have to keep in mind that the government review process is occurring parallel to the public review process, so whatever time constraints are put on the government reviewers are also imposed on members of the public who might want to comment on an assessment as well. If you cut the time line too short you'll reach a point where it simply becomes impossible to comment meaningfully on any of this. Sure, things speed up if you impose those kinds of time lines, but one has to ask all kinds of questions about the quality of the decisions which would emerge from the process as a result.

The Chair: Mr Winfield, thank you kindly for coming and testifying here this afternoon before our committee.

STOP ENVIRONMENTAL DEREGULATION IN CANADA

The Chair: Our final witness of the afternoon is Stop Environmental Deregulation in Canada. Welcome this afternoon. Thank you for appearing before us.

Mr Doug Macdonald: My name is Doug Macdonald. With me are Mr Sol Chrom and Ms Andrea Mozer. I appreciate the fact that you're coming to the end of a long, hot summer day and that everybody in the room may be a wee bit tired, so we will try and be brief and direct. What we would like to do in terms of a format, if this is acceptable to you, I'm only going to speak for a couple of minutes to introduce the representatives of Stop Environmental Deregulation in Canada and to give you the two-minute summary of our presentation. The actual presentation is going to be made first by Andrea and then by Sol, then we're open to questions and comments and discussion.

I teach environmental policy and politics at Innis College at the University of Toronto and at the faculty of environmental studies at York University and I'm in the process of completing a PhD in environmental policy at the faculty of environmental studies. Mr Chrom is a lawyer who has recently completed a master in environmental studies at the faculty of environmental studies at York University. Ms Mozer is in the process of completing a PhD in the area of environmental policy at the University of Toronto in the department of political science.

We also have with us a couple of other representatives of our organization: Mr Yasuo Ikari, who has recently completed a master in environmental studies at York and this fall will be going to the United States to undertake PhD studies in environmental policy, and Ms Jennifer Morrow, who is a student in the master program, also at the faculty of environmental studies at York University.

Stop Environmental Deregulation in Canada, as you can see, is an organization which has been created very recently, largely representing graduate and undergraduate students in the area of environmental studies. The name pretty much tells you the mandate and concern of the organization, but we'll be elaborating on that in the brief.

If I were to take just a minute and give you the overview summary of what we would like to say to the panel today with respect to Bill 76, I would do it by posing two questions to the panel, and the answers to both of these I think are self-evident: First, what is unique about the Ontario Environmental Assessment Act in comparison to other environmental legislation; and second, what is unique about this Ontario government in comparison to all other Ontario governments since we began to establish an environmental protection regime in the 1950s and the 1960s, and then what happens when you put together those two unique characteristics?

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The answer to the first question, as you know, is that the unique characteristic of the Environmental Assessment Act is a requirement to consider alternatives. All other environmental legislation simply provides for a licensing system which imposes some form of standards on the regulated industry or municipality which has that licence. Environmental assessment is unique because of the fact that it is a planning tool, a planning mechanism to allow a consideration of alternatives.

Secondly, what is unique about this government? This government is the first, since the time of Leslie Frost and John Robarts, to actually weaken our ability to protect the Ontario environment. We will be giving some examples, but you are as aware as I am that this government is embarked on a systematic agenda of limiting and reducing our ability to protect the Ontario environment.

When you put these two together you have Bill 76 which, as many of the representatives appearing before you have pointed out, allows a proponent to receive an Environmental Assessment Act approval without having done a full assessment through the terms of reference provision, and then you have a government which has demonstrated that it is not interested in environmental protection, that it has other priorities, that it is interested in reducing environmental protection. We can only conclude that this bill is environment deregulation, that it is doing away with the unique possibility of consideration of alternatives. That leads us to our recommendation that this committee recommend that this bill be withdrawn and that this committee take a further step and recommend to this government that it stop environmental deregulation.

That is the summary of our comments. I'll now turn the floor over to my colleagues to present our more detailed submission.

Ms Andrea Mozer: The following constitutes the submission of Stop Environmental Deregulation in Canada, SEDIC, to the standing committee on social development regarding Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act. It sets out who we are and why we are concerned with the deregulatory actions of the Mike Harris government, it provides comments on Bill 76 and, finally, provides our recommendations to this committee.

Who and what is SEDIC? Stop Environmental Deregulation in Canada is a very new lobby group formed by environmental studies students and other environmental professionals who are deeply concerned by actions being taken by the Ontario, Alberta, federal and other governments in Canada which are drastically reducing our ability to protect the natural environment. The Canadian and Ontario systems of environmental law were put into place in the early 1970s. Since then, successive federal and provincial governments have introduced tougher standards and brought in new measures to ensure public consultation and access to decision-making. Although progress may have been slow at times, the direction which we were moving in was always towards increased environmental protection.

Now all that has changed. The Chrétien and Harris governments are moving backwards towards decreased environmental protection. Laws which protect our environment are being dismantled. Rights to participate in environmental decision-making are being taken away from Canadians. Governments, particularly in Ontario, are abandoning their responsibility for environmental protection. Bill 76 is part of that process.

SEDIC was formed initially in January of this year by students in the faculty of environmental studies, York University, and quickly expanded to include environmental studies students at the University of Toronto, Trent and the University of Waterloo. Our mandate is to identify and publicize environmental deregulation by governments in Canada. We are working to galvanize public opinion, alerting citizens to the fact that their elected representatives are dismantling Canada's federal and provincial environmental protection regime. Our objective is to force those representatives to pay the political price which inevitably will accompany environmental deregulation.

We are working to achieve the following policy goal: Prime Minister Chrétien and Premier Harris must state explicitly, in writing, that their governments will not take any further actions which will weaken our ability to protect the Canadian environment.

In the past year, the Newt Gingrich Republicans in the US have slipped dramatically in popular support, in large part because of their efforts to deregulate in the area of environment. The same thing will happen here in Ontario. A majority of Ontario citizens oppose environmental deregulation. A poll conducted by Synergistics Consulting in December 1995 found that 78% of Canadians believe that "strict environmental regulation must continue in the midst of recession" and that 43% of Canadians believe that protecting the environment is more important than protecting the economy; 41% think that they are equally important. SEDIC exists in order to publicize, in this province, the deregulatory actions being taken by the Mike Harris government and thus mobilize the latent opposition represented by these polling results.

You ask what environmental deregulation is. SEDIC defines environmental deregulation as any change in environmental law, regulation, policy or enforcement that results in any of the following: (a) an increase in the amount of pollutants released into the air, soil or water environment in Canada; (b) a reduced capacity for public participation in environmental decision-making; (c) a decrease in the amount of land set aside for the protection of wildlife, wilderness and parks; (d) an increase in Canada's environmental debt and deficit, defined as actions taken today which impose environmental remediation costs on the future; (e) the squandering of governmental, public and business resources which have been invested over the last quarter century in protecting the environment; or (f) any other change that results in decreased capacity of governments or citizens to protect the environment.

SEDIC views environmental deregulation as a serious and shameful threat to the health of the people of Ontario, the other species with whom we share this land and to the future of our children and grandchildren. We view it as a sacrifice of the long-term needs of the many for the short-term benefit of a few.

Mr Sol Chrom: I'll just pick up there. Bill 76 does not improve environmental protection, increase accountability or enshrine public consultation in the Environmental Assessment Act. Rather, it will reduce the capacity of the government and people of Ontario to protect the environment, the health of Ontario citizens and the future for our children and grandchildren. For these reasons, Bill 76 is a prime example of environmental deregulation.

More importantly and specifically, Bill 76 makes it possible for a proponent to receive environmental assessment approval without undertaking a full environmental assessment. I might add that this is contrary to commitments made by Premier Harris with respect to waste management. This is because Bill 76 provides for "terms of reference governing the preparation of an environmental assessment" that shall be approved by the minister "if the minister is satisfied that an environmental assessment prepared in accordance with them will be consistent with the purpose of this act and with the public interest."

However, Bill 76 does not require these terms of reference to meet the essential EA requirements of the current Environmental Assessment Act, subsection 5(3), particularly the consideration of alternatives and alternative methods. Therefore, Bill 76 permits the watering down of the environmental assessment process during the critical early stages of decision-making on projects that are reviewed under the Environmental Assessment Act. As a result, the provisions for terms of reference effectively dismantle critical aspects of the environmental assessment process in Ontario.

When we turn specifically to the record and agenda of this government, we would not advocate giving any government the power to remove those critical aspects of the EA process. This government in particular, however, has demonstrated since its election that it cannot be trusted with such powers. Since being elected in June 1995, consider the following highlights of environmental deregulation undertaken by this government.

Firstly, the termination of three advisory watchdog committees: the Advisory Committee on Environmental Standards, the Environmental Assessment Advisory Committee and the Municipal-Industrial Strategy for Abatement Advisory Committee. After dissolution of the MISA Advisory Committee, changes to MISA standards were brought in which increased the annual quantity of toxic substances that can legally be discharged into Ontario waters.

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Secondly, changes to the Land Use Planning and Protection Act, Bill 163, brought in by the previous government as a result of the work of the Sewell commission, which weakened the environmental protection and public participation aspects of that act.

Thirdly, the exemption of the Ministry of Finance from the provisions of the Environmental Bill of Rights.

Fourthly, the cancellation of intervenor and participant funding, reducing public access to environmental decision-making.

Fifthly, massive budget cuts to the ministries of Environment and Energy and Natural Resources, which would inevitably reduce their ability to protect the environment and conserve natural resources.

Sixthly, release of this consultation document Responsive Environmental Protection, which advocates a variety of deregulatory actions such as removing the requirement that pulp and paper plants achieve the goal of zero AOX emissions.

This government quite clearly is intent on weakening environmental protection. We are convinced that any terms of reference for an environmental assessment in the future approved by this government would not require full consideration of alternative methods and need for undertakings.

As it has evolved, the Ontario environmental assessment process is a planning tool primarily applied to solid and hazardous waste disposal facilities. The best alternative, in our submission, to the disposing of such waste is not generating it in the first place. For that reason, solid waste is only partially a waste and pollution issue. Far more importantly, it is also a resource conservation and land use planning issue.

Until now, proponents, in order to receive environmental assessment approval, have been required to develop plans to maximize waste reduction, reuse and recycling efforts. It is now proposed under Bill 76 to give the minister power to abandon any such requirements, at the same time that the ministry is considering, as set out in the Responsive Environmental Protection document, revoking both the waste and packaging audit and work plan regulations and the refillable soft drink regulation. This government is thereby abandoning the policy of waste reduction which has been consistently produced by successive governments since former Conservative Environment Minister Keith Norton introduced the Blueprint for Waste Management in Ontario in 1983.

The government's response is that it has brought in new landfill standards, but such standards are of value only for the pollution aspects of the issue. They ignore and cannot address the resource conservation or land use aspects of the issue. That can only be done by keeping mandatory requirement for consideration of both alternatives to undertakings and alternative methods of carrying out undertakings.

With respect to harmonization, Bill 76, section 3.1, provides for harmonization of the Environmental Assessment Act with the requirements of other jurisdictions "if the minister considers the requirements...to be equivalent" to those imposed under the Environmental Assessment Act. It further grants wide-sweeping powers to the minister to alter the Environmental Assessment Act or do away with the environmental assessment process entirely. It does not provide, however, meaningful criteria for determining whether the requirements of another jurisdiction are equivalent to those of the provincial EA act, or for determining how the minister may exercise her discretionary powers to alter the requirements of the act or set them aside entirely.

As a result of the loose and general wording used in section 3.1, Bill 76 opens a door for environmental protection at the level of the lowest common denominator in Canada: harmonizing at the level of the weakest rather than the strongest standard. This will reduce government capacity to protect the environment and therefore constitutes environmental deregulation.

In conclusion of our formal submission, we would stress that the people of Ontario and Canada strongly oppose environmental deregulation. We have given examples of ways in which Bill 76 constitutes environmental deregulation, such as the provisions under section 6 regarding the terms of reference, the provisions under section 3.1 regarding harmonization, and various sections under Bill 76 which do not require public notice and comment on key EA act processes and therefore undermine public consultation and participation.

SEDIC considers Bill 76 to be another in a series of efforts by the current provincial government to dismantle an environmental protection regime which has developed over the past quarter century by successive Conservative, Liberal and New Democratic governments working in consultation with both industry and environmental groups together who have devoted countless hours and millions of dollars to a cooperative process of putting in place good regulation and environmental protection.

In conclusion, we have two recommendations. Firstly, we urge the standing committee to recommend that Bill 76 be withdrawn, and secondly we urge the standing committee to recommend that the Ontario government desist from the practice of environmental deregulation. That concludes our formal submission and in the time left we are willing to entertain questions and discussion from members of the committee.

Mr McGuinty: Thank you very much for your presentation. Your group is to be commended for taking it upon yourselves to pull together and to respond to government policy which you feel is ultimately going to be harmful to the people of the province, let alone the country.

I want to thank you for reminding us that it's good politics to look after the environment. Sometimes we lose sight of that fact. While it may not be a top-of-mind issue today when you knock on a door in Ontario, you scratch the surface a little bit and people will tell you they place a continuing obligation on the part of their government to protect the environment. At a minimum, maintain existing standards; better still, continue the slow but inexorable movement we've had towards a better regulatory safety net.

I'm not sure I have a question for you. I'm just --

Ms Churley: End of the day.

Mr McGuinty: Yes. I'm very impressed with the --

Mr Macdonald: We would certainly agree with your comment, Mr McGuinty. This is one of the points we want to make, that successive politicians from all three parties -- somebody like Andy Brandt got the message that it made good political sense to bring in environmental protection. We are convinced that this government too will come to see that and will, before the end of its term of office, reverse direction.

Mr McGuinty: Thank you.

Ms Churley: I'm not so fully convinced that this government is going to reverse its direction, but perhaps will come to some real common sense down the road and certainly understand that there's a cumulative effect. I believe that's partly what you're saying when you outlined some of the other areas of deregulation to date. I must tell you, you only scratched the surface. Those were some of the major components, but there are pages and pages of areas where this government has cut and deregulated, so when you take the cumulative effect it's going to have a very serious impact on the environment in the long run.

Just in the minute I wanted to come to the question I ask other people, and it has been raised by members sitting around this table and that is, let's take it for granted that the government is not going to withdraw the bill. Having said that, I'm not going to ask you, because there's no time now, what kind of recommendations you would make, but what would you say to people from all sides who have said there have been problems with the EA -- and I think I've heard everybody from all sides say that to some extent and that changes need to be made. Supposing the bill isn't withdrawn, can you answer in a minute or so what the problem is and how you would go about -- given that I said earlier that the government review period seems to be where the problem is in time frames?

Mr Macdonald: I'd be happy to provide a very quick response to that. Yes, of course, we agree that there have been problems which come from things like uncertainty, lack of predictability and length of time devoted to hearings.

We would point out, however, that in part this is simply the price we pay for environmental protection, that time and cost of hearings is time and money well spent. We have murder trials which do not have -- it was suggested that limits should be put on or, as is suggested in this bill, that government should be able to reach into a board hearing and manipulate that hearing. We don't apply that to the judiciary. We think those things are important enough that we should pay that price in terms of time and cost.

Our major recommendations would be, in terms of environmental assessment that, first of all, intervenor funding should be brought back, which was taken away by this government and that, secondly, we should start to work to bring in the certainty and predictability, which the minister says she wants but has not provided, in order that we can then extend the Environmental Assessment Act to the private sector as was originally promised by the Bill Davis government.

Mr Galt: Thank you for your presentation, most interesting, pointing out the extreme concern about environment. Our two opposition parties have expressed their concern. I can extend to you and assure you that the Conservatives in Ontario are also very concerned about the environment, concerned about the clarity and certainty of getting on with making things happen. Maybe we're going about things in a slightly different style than what you would recommend or that you would support, but certainly number one is the environment and we recognize the public's concern about the environment, and that's certainly the direction we're going.

I'm intrigued with your new organization, and I congratulate you on this organization being developed and rolling. I'm curious how old it would be or when you might have had an inaugural meeting.

Ms Mozer: We've been around since about January of this year; the initiative started last fall. I'd like to point out though, we'd like to not exist and we'd like to be working on developing environmental policy, not trying to stick a finger in the dike to prevent all this deregulation from spilling over.

Mr Galt: What involvement have you people had with environmental assessment activity in the past?

Mr Macdonald: We represent, as I said, students who are from a number of universities studying environmental studies and, of course, part of that is dealing with environmental assessment. I personally have undertaken an environmental assessment, the assessment of the Storrington township landfill extension, which takes waste from Kingston and Kingston township, which went through a hearing a couple of years ago. I at that time was acting on behalf of another actor which has appeared before your committee, Laidlaw Inc.

Mr Galt: You represent various centres of learning, I think in your case, Mr Macdonald, the University of Toronto, you're on faculty there.

Mr Macdonald: The University of Toronto.

Mr Galt: Do the comments made here today represent those respective schools of learning?

Mr Macdonald: Oh, I don't think we could speak for -- I might ask my colleagues, but I would feel nervous saying that we in any way represent any university. We represent a group of people, and we have brought along -- I forgot to mention -- copies of our brochure, and we spent considerable dollars on the printing job for this, as you can see --

Mr Chrom: It's on recycled paper too.

Mr Macdonald: -- and we can provide copies. This lists the names, at time of printing, of the people. We're a group of people who came together because we're concerned about what's happening. We printed up this brochure, we're sending letters, and we held a press conference and we're appearing here before you. The three of us can speak on behalf of the organization, Stop Environmental Deregulation in Canada. We can't speak on behalf of anybody else.

I'll leave these brochures with you, Mr Chairman, if anybody's interested in having a copy.

The Chair: Thank you very much for appearing before us and taking the time to share your views.

Mr Macdonald: We would like to thank you for giving us the opportunity.

The Chair: Is there any other business?

Ms Churley: One question. In terms of amendments, is there a deadline for getting them in to the legislative committee? Because I've got some in, but over time there'll be more, I'm sure.

The Chair: Did you not receive a copy of the subcommittee report?

Ms Churley: Oh. Okay, I'll read it.

The Chair: Yes, it's in that.

Ms Churley: Thank you. That was you who told him to say that, wasn't it, Madam Clerk?

Mr Galt: There were two questions asked yesterday, one by Mr McGuinty and one by Ms Churley. We have the answers here. We'll pass them out and if there's any further clarification required, please let us know and we'd be pleased to do a follow-up for you.

The Chair: Very good. Thank you very much for that, Mr Galt.

Ladies and gentlemen, we'll reconvene tomorrow morning at 10:30 in Kingston, Ontario. We hope to see you all make it safely. We will adjourn the meeting for this afternoon.

The committee adjourned at 1605.