STANDING COMMITTEE ON GENERAL GOVERNMENT
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
CONTENTS
Thursday 9 December 1993
Environmental Bill of Rights, 1993, Bill 26, Mr Wildman /
Charte des droits environnementaux de 1993, projet de loi 26, M. Wildman
STANDING COMMITTEE ON GENERAL GOVERNMENT
*Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)
*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
Arnott, Ted (Wellington PC)
Dadamo, George (Windsor-Sandwich ND)
*Fletcher, Derek (Guelph ND)
*Grandmaître, Bernard (Ottawa East/-Est L)
*Johnson, David (Don Mills PC)
*Mammoliti, George (Yorkview ND)
Morrow, Mark (Wentworth East/-Est ND)
Sorbara, Gregory S. (York Centre L)
*Wessenger, Paul (Simcoe Centre ND)
White, Drummond (Durham Centre ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Lessard, Wayne (Windsor-Walkerville ND) for Mr Dadamo
Mathyssen, Irene (Middlesex ND) for Mr Morrow
Offer, Steven (Mississauga North/-Nord L) for Mr Sorbara
Wiseman, Jim (Durham West/-Ouest ND) for Mr White
Also taking part / Autres participants et participantes:
Ministry of Environment and Energy:
Lessard, Wayne, parliamentary assistant to the minister
Shaw, Bob, implementation coordinator, environmental bill of rights office
Clerk / Greffier: Carrozza, Franco
Staff / Personnel: Leitman, Marilyn, legislative counsel
STANDING COMMITTEE ON GENERAL GOVERNMENT
THURSDAY 9 DECEMBER 1993
The committee met at 1011 in room 228.
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
Consideration of Bill 26, An Act respecting Environmental Rights in Ontario / Projet de loi 26, Loi concernant les droits environnementaux en Ontario.
The Chair (Mr Michael Brown): The standing committee on general government will come to order.
To recap previous episodes, on Thursday, November 18, we adjourned for the day, as Mr Tilson had requested some time to consider Mrs Mathyssen's motion that the question now be put. All in favour of Mrs Mathyssen's motion that the question now be put? Opposed? Carried.
Now we will deal with the question. As members will know, the motion is on the full section 2. Shall section 2 carry? All in favour? Carried.
We have section 2.1, which is a new section. Members have copies. Would someone like to make that motion? I need someone to make the motion.
Mr Wayne Lessard (Windsor-Walkerville): I'm asking for unanimous consent that this be stood down until later on. Apparently there are some discussions that are taking place as we're meeting right now with respect to this section.
The Chair: We haven't actually even made the motion. You'll have to make a motion and then ask for consent to stand it down.
Mr Lessard: All right. I move that part I of the bill be amended by adding the following section:
"Aboriginal rights
"2.1 Subject to the extent of provincial jurisdiction in relation to the government and territories of first nations and other aboriginal peoples, this act shall be interpreted and implemented to be consistent with the treaty and aboriginal rights recognized and affirmed by section 35 of the Constitution Act, 1982."
I'm now asking for unanimous consent that this amendment be stood down.
The Chair: Do we have agreement? Agreed. So we have stood down that section.
We will now deal with section 3. Are there questions, comments or amendments to section 3? Shall section 3 carry? Carried.
Section 4: Questions, comments or amendments? Shall section 4 carry? Carried.
Section 5: We have a Liberal motion.
Mr Steven Offer (Mississauga North): I move that section 5 of the bill be amended by adding the following subsection:
"Cost of registry
"(2) The cost of establishing and operating the registry shall not be imposed on a municipality within the meaning of the Municipal Act."
The Chair: An explanation of your amendment?
Mr Offer: I think in the shortened hearings there was a concern brought forward that there is the possibility that the cost of establishing this new department was, firstly, uncertain, and I understand the uncertainty, but there was a secondary concern in that in establishing this new environmental registry and the commissioner and all that goes with it, there is the possibility of some cost being foisted upon a municipality.
Because we are dealing with a matter for which we do not know the cost involved in the implementation of this legislation, especially around the commissioner and the registration system, because we do not know the extent to which this will broaden out in terms of registration and commissioner, there is within our responsibility, and certainly our power, the opportunity to limit whatever costs there are, if not in terms of dollars, then certainly not to have those costs put upon municipalities across this province.
So the intent of the legislation is to say that if there are any costs in establishing and operating the registry, as there will be, and if we don't know what those costs are, and we don't know, and if those costs are going to become more and more each year, as we know they will, then under no circumstances will the cost of establishing and operating the registry be put upon a municipality in this province.
Mr George Mammoliti (Yorkview): I like that. That's good.
Mr David Johnson (Don Mills): Mr Chairman, as you probably are aware, we had a similar motion for this clause --
Mr Hans Daigeler (Nepean): Which is out of order now.
Mr David Johnson: -- which may be out of order now, but certainly we would be supporting the Liberal motion in that regard, and if that fails, we'll be putting forward our own motion for the same reason.
I'm just looking at the brief from the Association of Municipalities of Ontario. Just reading briefly from their brief, it says:
"The issue of delegated authority also has implications for the operation of the registry. AMO recognizes the benefits of the environmental registry, which include providing a quick and comprehensive public notice of proposals and decisions that might affect the environment. However, the bill does not indicate whether the requirements that apply to ministries in relation to the cost of the operation of the registry would apply to municipalities that have delegated authority from the ministries. If the delegated authority is prescribed as an instrument (eg sewer, water under subdivision planning approvals, septic tanks approval), then the municipality or health board etc would have to participate in the registry. This would introduce a number of financial implications. AMO does not support the downloading of the costs and the operation of the registry to municipalities."
That's a quote from their own brief. They're asking that "the bill explicitly state that all responsibilities for the cost and the operation of the environmental registry rest with the provincial government and not with authorities to which provincial responsibilities have been delegated." That's consistent with the motion that has been put forward.
I recall back earlier that one of the staff indicated there was some possibility that the registry would be available in libraries. I don't know what to make of that. It raises a little red flag in my mind that this may seem fine, but this may be another way of downloading the costs on to the library system. As we all know, the library system is largely funded through the municipalities.
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There may be a view that somehow this will be just tied in, with no costs whatsoever. Some people have the view that these things happen automatically without any cost to, for example in this case, the library board. But in my view, there would be quite an excellent chance that there would be a significant cost to the library to somehow organize this and have it as part of its system. If it's the view of the provincial government that it's not going to support this cost and the library has to eat the additional cost by itself, then the library will simply go to the local municipality and ask for the money there. So in a roundabout way, the municipalities will be picking up that cost too. I just want to have that noted.
From my perspective, this motion that's before us would imply that the provincial government would pick up costs associated with that sort of approach as well.
Mr Lessard: It's not the government's intention to download any of the costs of establishing and operating the registry on to municipalities. To back up that commitment, we don't have any objection to supporting this amendment.
The Chair: Further questions or comments? All in favour of Mr Offer's amendment to section 5? Carried.
Shall section 5, as amended, carry? Carried.
Section 6, Mr Lessard.
Mr Lessard: I move that section 6 of the bill be struck out and the following substituted:
"Purpose of registry
"6(1) The purpose of the registry is to provide a means of giving information about the environment to the public.
"Same
"(2) For the purposes of subsection (1), information about the environment includes, but is not limited to, information about,
"(a) proposals, decisions and events that could affect the environment;
"(b) actions brought under part VI; and
"(c) things done under this act."
This expands the purpose of the environmental registry to allow general information pertaining to the Environmental Bill of Rights, the mandates of ministries, appellate body decisions and other information about the environment to be placed on the registry.
Mr David Johnson: I just wonder how the previous wording excluded the extra information that the parliamentary assistant is indicating will now be eligible to be included in the registry. It seemed as if the previous definition was somewhat all-inclusive. I'm just trying to determine the motivation between the change from what we had before to what we have here now.
Mr Lessard: There was one of the submissions that expressed concern about the accessibility of the public to the registry, and the availability of certain types of information on the registry as well. We felt this section would expand whatever restrictions on the definition might be perceived under section 6.
Mr David Johnson: Can the parliamentary assistant refresh me as to who it was specifically who made that deputation? Secondly, the original definition says that the registry is "to provide a means by which notice of proposals and decisions which might affect the environment can be given to the public." That seems to be rather all-inclusive. I'm not sure how that's restrictive.
Mr Lessard: It does refer to notices of proposals and decisions, and this refers to information about the environment. It seems to be more broad.
Mr David Johnson: Who was it who expressed the concern?
Mr Lessard: I'm just going to have to check that. Marsha Valiante, who is a professor from the University of Windsor, referred to that section.
Mr Offer: On section 6, it seems there are two additions to the amendment, that is, in (a) it speaks about "events that could affect the environment," and in (c) it talks about "things done under this act." I guess the question is, what do the words "events" and "things" mean? I think we are quite comfortable with the meaning of "proposals" and "decisions" and "actions," which are other things that are usually the subject matter of legislation, but what does it by mean by an "event" and what does it mean by a "thing"?
The reason I ask this is, is it a possibility that a member of the public could allege a contravention of the bill if an event anywhere in the province occurs, which could affect the environment, that isn't under the registry? It just seems that the wording "events that could affect the environment" is so broad that there is to my way of thinking an impossibility to have a registry incorporate and embrace any and all events in this province on a daily basis that might affect the environment.
Then the problem is, what happens when something does happen that could be argued as an event that affects the environment that isn't part of the registry, and a member of the public says, "There's been a breach of the intent under the legislation"? In short, I'm wondering whether that phrase is biting off way more than anyone can possibly hope to achieve.
Mr Lessard: There are provisions and procedures in the act prescribing the type of information that needs to go on the registry, but I'm going to ask Mr Shaw to respond more fully to your question.
Mr Bob Shaw: Dealing with "things" first of all, "things" could be such items as a civil suit which has been brought under the bill.
Mr Offer: I'm not worried about that.
Mr Shaw: "Events": The intent here is not that the registry must record all events; it is to allow for information concerning events to be put to the registry. This could be for example outside the bill, something dealing with the Environmental Assessment Act, which is outside the bill and outside the definition currently provided for in section 6 of the bill.
Mr Offer: My concern is not so much about (c), although I brought it forward, "things done under this act." To me, when you say, "things done under this act," there are certain parameters which you've created. It's a thing that's done under the act. But when you talk about "events that could affect the environment," there are no parameters.
I understand the previous line that says information about events that could affect the environment, but I'm wondering whether we are now giving to the general public an expectation that there is on this registry information about events that could affect the environment.
The problem I see occurring is that the registry, no matter the best intentions, will not be able to have information in it about any event that affects the environment in this province. It is boundless. There are no parameters. I just wonder whether we then give to the public an expectation which is much too high, which is incapable of ever being achieved, and then setting in place some false expectation.
I won't belabour the point, but I do believe that what you are doing is putting in a foundation, an event, a series of words, and there is no government and no registry that can ever meet the expectations of those particular words. There are no parameters, and it is a boundless expectation that you are now giving the general public. My concern is, what happens when this is not met, as it will be? How many grains of sand on the beach? You just don't know.
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Mr Paul Wessenger (Simcoe Centre): I'd just like some clarification. It appears to me that this section sets out a purpose of a registry. It doesn't create any mandatory obligations. So in effect, the clause is an enabling clause and it permits the government to maintain a registry that would contain other environmental information, and I can see that as advantageous.
Certainly there might be some thing or some event that would be deemed of public interest to have on the registry, some information such as, and I don't know what they'd be under, the number of contaminated sites, for instance, that are out there on farm land. I don't know whether "proposals" and "decisions" cover that, but that type of information would be very useful for people who are buying land, if all the contaminated land sites that were known to the government were on the registry system.
I assume that would be something that might be, and I hope it would be, contained in the registry. In case I ever have to go back to practise law again, it would be a much more convenient way, to get a computer and get it punched in.
Mrs Irene Mathyssen (Middlesex): If you take the argument one step further, obviously it's always going to be a challenge to provide complete information, but if people weren't prepared to meet that challenge, we would never have established libraries. So to say that because you may run into a challenge regarding the information, you shouldn't have it, it doesn't make a lot of sense. I think we have to do what we can, because it's important to make a beginning.
Mr Offer: Just on that point, does that mean that on the registry, you have to have the sale of every car that takes place and every running car in the province? Because that's an event that could affect the environment.
Mrs Mathyssen: As Mr Wessenger pointed out, the whole point of this is enabling.
Mr Offer: On this?
Mrs Mathyssen: This is enabling, so it's a beginning.
Mr Wessenger: It's not mandatory, it's enabling.
Mr David Johnson: I think it is somewhat material, though, as we get into this, to have a good idea of what is expected to be on this registry, not only in the beginning but in the final analysis. I don't know if the staff or anybody can give us any guidance in terms of what they expect to have on this registry. For example, the mining association is concerned. The mining association literally has hundreds if not thousands of permits and licences etc on a continual basis.
I'm looking down this end of the table, I suppose. I don't know where else to look for this answer. Will each and every one of these licences and permits have to be on the registry and continually updated?
Mr Shaw: The bill sets out what we need to put on the registry right now in terms of the types of notice of proposals etc. In addition to that, we have some ideas of information we'd like to put on the registry, such as general information concerning the bill, mandates of ministries, how to get further assistance in the use of the bill, but trying to crystal-ball five or 10 years from now and saying what would be put on the registry, I'm afraid we don't have a clear picture. I would like to clarify that what types of approvals or licences or instruments need to go on the registry will be defined by regulation, a specific regulation for each ministry which is required to do that.
Mr David Johnson: Can you advise me at the present time, and maybe you'll say you have to wait until the regulation comes out, but is it the intent that all of the various permits and licences etc, which the mining association indicates number in the hundreds if not in the thousands, that their members are associated with, be on the registry and will they all have to be updated on a regular basis? I assume many of them are annual or for various periods of time. Will they have to be continually updated?
Mr Shaw: I can only speak to what instruments the Ministry of Environment and Energy intends to put on the registry. The Ministry of Northern Development and Mines and the Ministry of Natural Resources, this part of the act that affects instruments does not affect them until 1996, and therefore they will not be coming forth with their regulations until that time.
The three types of approvals that come to mind that potentially would be required by the mining industry are permits to take water, the possibility of an approval for operation of a waste disposal site and approvals for air emissions. Those are three that this ministry would issue, and those three instruments are prescribed for notice being placed on the registry. In the case of those three instruments, those do not have annual renewals or anything, so they go on the first time they are applied for.
Mr David Johnson: This registry would be centrally maintained, is that right?
Mr Shaw: This would be a government-wide registry, centrally maintained.
Mr David Johnson: So each of the ministries will be feeding the information that's required into some central input agency, I suppose, or into the Environmental Commissioner's office, I guess.
Mr Shaw: They'd be feeding it to a central entity that would make sure it goes on to the registry.
Mr David Johnson: At this point then, I gather you really don't know or are unwilling to speculate on the size of this registry, let's say at its maturity, maybe by the end of the decade for example. Does anybody have any speculation?
The reason I ask is because we're assured that there's only going to be a certain level of staffing associated with this, but obviously the staffing is dependent on the complexity, the size and the magnitude of the registry. If the registry is small, presumably a small number of staff will suffice, but if the registry grows to some of the suspicions, particularly when we see words like "events" and "things," and the mining association is worried about all its licences and permits, that sort of thing -- I'm not even talking about the municipalities, all their planning proposals. For example, if you look at all the planning proposals across the province of Ontario that may come under Municipal Affairs when it comes on board, we could be talking about thousands and thousands of entries into this registry, in which case I assume that would take quite a contingent of people to update and maintain. The question is, has anybody got any estimate of what this thing is going to be like at maturity?
Mr Shaw: Based on the preliminary work that both our ministry and other ministries have done, the total number of proposals for instruments going to the registry per year at maturity, when all the ministries are on line, is estimated in the order of 10,000 per year.
Mr David Johnson: Ten thousand updates?
Mr Shaw: No, 10,000 new proposals per year. The proposal goes on the registry. Once the decision is made about the proposal, that goes on the registry, and then that is removed after a certain period of time, probably in the order of 60 days, because the registry is not intended to maintain a record ad infinitum of all decisions made.
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Mr David Johnson: The 60-day deletion might pertain to some permits that are time-dated, I would guess; that 60 days after the permits have been issued, it doesn't make much sense to have it on there. But certain planning procedures take place over a long period of time. Sixty days would barely scratch the surface of an official plan change, for example.
Mr Shaw: The concept is that when a ministry receives an application for an instrument, the notice goes to the registry and stays on the registry until a decision is made. For example, if somebody had applied for an approval for a waste disposal site and we had to give notice on the registry, we would put the notice that we have the application on the registry and then it would stay on the registry as it goes through the approvals process until such time as a decision is made. Then notice of that decision goes on, and then some time after that, everything will come off.
Mr David Johnson: That would be more than 60 days.
Mr Shaw: Yes, you're right. It would be on for a period of time while it goes through the decision-making process.
Mr David Johnson: You're talking about 10,000 new proposals each year and you're also talking about a number of proposals that, as you say, will take place over a period of time and will stay on. How many entries in total: new proposals and entries that have carried forward? Let's call this a database of some sort. How big a database would this be?
Mr Shaw: At any given time, it could probably be 50% higher than the total number of proposals, which would mean that if you have 10,000 spread out evenly over the year, you could have maybe 1,500 entries on the system at any given time.
Mr David Johnson: I think that's a little optimistic, but it depends on your interpretation. That implies quite an amount of activity, with 10,000 coming in, some items carrying over, items being deleted. What sort of staff number do you intend to manage this database?
Mr Shaw: Each ministry is responsible for its own entries and it's all being done electronically. If a ministry is putting notice of an application on, it creates the electronic file and it's moved by e-mail through to the central registry office. Their only job is to upload it, they don't have to do any entry or anything like that, so the central registry office will be very small: one, maybe two people.
Mr David Johnson: The work would be primarily out in the ministries.
Mr Shaw: It will be spread out among the 14 ministries, so you don't need to build a brand-new, centrally located office and staff it up with a large number of people.
Mr David Johnson: And I guess somebody's looked at that to see that it's workable. It's amazing to have so many people involved, with their fingers in the pie.
Mr Lessard: We do have a number of technical staff people who've been working on this for many months. We had a briefing originally, but because of the shortness of time we were only able to scratch the surface as far as this part is concerned. If members would like further information at a later date, that is information that is available. In fact, the electronic bulletin board has already been established on a rough basis; people can call in now to have some idea of what the system will look like when it's up and running and how they may be able to access the information.
Mr David Johnson: I just one last question. Unfortunately, I was having another discussion I couldn't get away from when you were talking about the word "events." The word "events" has been indicated as being very broad. If there's an expectation in the public that "events" is broader than the 10,000 proposals that you anticipate coming in at maturity, that it includes activities or events that aren't included in that 10,000 and if there are complaints that people expect more on the database, then how is that dealt with? Where would those complaints come in? Would they come to the individual ministries or would they come to some central area? How would that happen?
Mr Shaw: In order to avoid confusion to the public about what is available at any given time on the registry, when you go on to the registry, there will be what I'll call a table of contents at the front end of the registry which tells people the type of information they may find on the registry, and it will be quite specific about what is on there.
If the public had a complaint that a certain type of information was not being placed on the registry and they thought it should be, then that complaint would be directed to the ministry responsible for that information.
Mr David Johnson: Then it would be up to the ministry to --
Mr Shaw: To discuss that with probably the Environmental Commissioner's office to determine whether it was feasible or realistic to place that additional information on the registry.
The Chair: Further questions or comments? Shall Mr Lessard's amendment to section 6 carry? Carried.
Shall section 6, as amended, carry? Carried.
Section 7: Questions, comments or amendments? Shall section 7 carry? Carried.
Questions, comments or amendments on section 8? Shall section 8 carry? Carried.
Questions, comments or amendments on sections 9, 10 and 11?
Shall sections 9, 10 and 11 carry? Carried.
Sections 12, 13, 14, 15, 16, 17, 18 and 19: Are there questions or comments or amendments on these sections? Shall sections 12, 13, 14, 15, 16, 17, 18 and 19 carry? Carried.
Section 20.
Mr Lessard: I have an amendment to section 20.
I move that paragraph 4 of subsection 20(2) of the bill be struck out and the following substituted:
"4. Consider each provision identified in step 3 and identify and describe each type of proposal for an instrument about which an implementation decision could be made under the provision that the minister considers should be classified as a class I, II or III type of proposal because of the potential for implementation decisions about proposals of that type to have a significant effect on the environment."
The Chair: And an explanation for that amendment.
Mr Lessard: Well, I thought that was pretty clear just the way it was amended. However, the original wording of this paragraph requires that if a type of proposal for an instrument could have a significant effect on the environment, then all proposals of that type are to be classified. The original wording requires types of proposals to be classified because of the exception rather than the usual case. This will result in the environmental registry being cluttered by proposals for instruments which were not environmentally significant. The original wording would thus require all applications for certain types of emissions, for example, from a restaurant to be classified, whereas the vast majority of them would not be environmentally significant. This amendment modifies the classification process to avoid this problem from occurring.
The Chair: Are there questions or comments?
Mr Daigeler: What is clearer here, the answer or the original amendment?
Mr David Johnson: This amendment actually restricts what will be put on the registry, I gather.
Mr Lessard: That's right.
Mr Daigeler: Good.
The Chair: Further questions or comments on Mr Lessard's amendment? Shall Mr Lessard's amendment to paragraph 4 of subsection 20(2) carry? Carried.
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Are there further questions, comments or amendments to section 20? Shall section 20, as amended, carry? Carried.
Sections 21, 22, 23, 24, 25 and 26: Do we have questions, comments or amendments on these sections?
Shall sections 21, 22, 23, 24, 25 and 26 carry? Carried. Section 27.
Mr Lessard: I move that paragraph 3 of subsection 27(2) of the bill be struck out and the following substituted:
"3. A statement of where and when members of the public may review written information about the proposal.
"3.1 An address to which members of the public may direct,
"i. written comments on the proposal, and
"ii. written questions about the rights of members of the public to participate in decision-making on the proposal."
The Chair: For clarity, an explanation?
Mr Lessard: This amendment ensures that notice on the registry indicates how anyone who is interested may obtain more details about the proposal, and this will assist people to formulate comments about it. The amendment also ensures that a person who may be interested in a proposal is not misled into delaying the submission of comments by only submitting questions.
The Chair: Are there questions or comments regarding Mr Lessard's amendment? Shall Mr Lessard's amendment to subsection 27(2), paragraphs 3 and 3.1, carry? Carried.
Further questions or comments regarding section 27? Shall section 27, as amended, carry? Carried.
Sections 28, 29, 30 and 31: Are there questions, comments or amendments to sections 28, 29, 30 and 31? Shall sections 28, 29, 30 and 31 carry? Carried.
Section 32.
Mr David Johnson: I move that the bill be amended by striking out subsection 32(1) and substituting the following:
"Exception: Instruments in accordance with statutory decisions
"32(1) Section 22 does not apply where, in the minister's opinion, the issuance, amendment or revocation of an instrument would be a step towards implementing an undertaking or other project approved by,
"(a) a decision made under an act after affording an opportunity for public participation;
"(b) a decision made under the Environmental Assessment Act, part V of the Environmental Protection Act or the Ontario Water Resources Act."
A concern about this section was vehemently expressed by the Ontario Waste Management Association and the Association of Municipalities of Ontario. This amendment is forwarded to recognize existing public participation processes already established in instrument approval processes. It is imperative that potentially costly duplication is avoided and an efficient and effective approval process is maintained. My recollection is that the Ontario Waste Management Association, for example, already goes through a process with regard to its facilities, and I guess the Association of Municipalities of Ontario agreed that there would be duplication to impose another process on an already existing process, a process that already required public participation and a process that was dealing with environmental issues. Indeed, if a body went through those processes and successfully satisfied those processes, then it shouldn't be subject to another equivalent process in the form of duplication.
The Chair: Are there questions or comments regarding Mr Johnson's amendment?
Mr Lessard: I have a couple of concerns. One is with respect to clause (a), where the change in the wording involves the deletion of the phrase "by a tribunal." What this section is doing is actually exempting from the process certain types of decisions, and in the original section it would be decisions that have been made by a tribunal. By taking out that wording, it's actually broadening the exemption that's provided by the subsection, and that's not our intention in that subsection.
Clause (b) would also exempt instruments which follow upon instruments that have been made under the waste management part of the Environmental Protection Act or the Ontario Water Resources Act with no public participation. The provisions in the bill are to exempt from the processes under the Environmental Bill of Rights decisions that have been made after an opportunity for some public input has been provided. This would exempt instruments that no public participation has been involved in, and we don't want to exempt those types of instruments. We want to make sure that there is an opportunity for public participation in cases where decisions have been made without that public participation.
Mr David Johnson: It certainly is the desire to broaden the exemptions. I'm not as familiar with the Ontario Water Resources Act, but certainly it was my understanding that under the Environmental Protection Act or under the Environmental Assessment Act public participation was mandatory. Indeed, in the kinds of decisions that are made in this day and age, there seems to be very healthy public participation. I think we're seeing that in Vaughan, Caledon and Pickering; at the present time we're seeing hundreds, if not thousands, of people who are involved.
I don't know if the government's intent here is to run various proposals through two sets of public hearings and two sets of public involvements. This is going to be a problem for those who have to go through a duplicate set of processes. The Ontario Waste Management Association is certainly one organization that thinks that's going to happen. I'm just trying to recall the specific instance that AMO saw as a problem here, but obviously AMO has also seen this as a problem.
I'm wondering what the government's proposal is. Is it simply that there would be two sets of processes now, that perhaps a recycling plant might be a case in point, they may go through environmental assessment and then again go through the provisions of this bill as a secondary process?
Mr Lessard: It's not the government's intention to have two separate sets of processes. I'm advised that under the Environmental Assessment Act there is a statutory provision for public participation, and that's not the same under the Environmental Protection Act or under the Ontario Water Resources Act. So the purpose of the Environmental Bill of Rights is, in the cases where decisions are made under those two acts without public participation, to permit public participation.
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Mr Offer: On the same point, under the EPA or under the Ontario Water Resources Act, though, there is the possibility that decisions are made without participation by the public. There is still a process that a proponent will have to have gone through.
Mr Lessard: There would be a process, yes. There wouldn't have been public notice, however.
Mr Offer: That's right. This is one issue that I've been trying to get some comfort with. Basically, a proponent would be making a proposal of some kind under the EPA or under the Ontario Water Resources Act, have gone through all of that and have received a positive decision. Then two individuals in the province being notified of this decision can have this matter brought forward under the Environmental Bill of Rights. Is that the intent or the working of the EBR?
Mr Shaw: No, that is not the intent nor is that how the bill is structured to work. If a proponent filed application, and let's use the Ontario Water Resources Act, and if that was an approval that public notice must be given under the Environmental Bill of Rights, then at the time the ministry receives the application and before it starts into the process, the notice would be given under the Environmental Bill of Rights. So then the two processes, the notice process under the Environmental Bill of Rights and whatever the review issuance process is under the Ontario Water Resources Act, run parallel. It is not a matter of your doing one and then it gets turned around and sent back to do it again another way under the Environmental Bill of Rights.
Mr David Johnson: Can I just follow up on that? That sounds tempting, I suppose, but can we be assured that the timing is automatically the same? I'm not familiar with how long it takes the Ontario Waste Management Association or the Ontario Mining Association or whoever might need permits or licences or whatever that could involve the Ontario Water Resources Act, but it's my suspicion that under the Environmental Bill of Rights, notwithstanding that this bill says there is a time frame -- how many months? Two months or something of that nature?
Mr Shaw: Thirty days.
Mr David Johnson: Depending on the number of complaints, this time frame could be extended. I only draw as a parallel that under the Planning Act, municipalities are supposed to respond within 30 days with regard to official plan amendments or zoning amendments or that sort of thing but it's regularly -- well, that doesn't happen, at any rate. Any major appeal or any major amendment can take a year, and my guess is that the same thing is going to happen here: If there is any significant number of appeals under the Environmental Bill of Rights there could well be a backlog. Then you could have an industry, say the mining industry, which might comply with the water resources act and might meet all the requirements that the government has put forward but be denied a permit because the process that they're working through the Environmental Bill of Rights because two people have complained may be still going on. Can you tell us today that this won't happen?
Mr Shaw: The way you just described it, yes, I can tell you that will not happen. A proposal will come in to a ministry and a notice will go on to the registry while the proposal is being processed. Prior to the issuance of, let's say, an approval at the end of this process, two things must happen: One, that approval cannot be issued earlier than 30 days from the time the notice was put on the registry, and two, the public comments that were received on that proposal have to be taken into account in the decision.
The bill states what types of comments need to be taken into account. It says that comments on the regulatory framework surrounding the issuance of an instrument are not relevant comments and therefore do not need to be considered. Because somebody objects to something does not mean that the approval will not be issued.
The approvals are issued on the same basis as they are now. The Environmental Bill of Rights does not create any new criteria for the issuance of an approval. It just creates a process for public notification about an application.
Mr David Johnson: So what you're saying is that the permit would be granted even though the process through the Environmental Bill of Rights hasn't been completed.
Mr Shaw: No, the process through the Environmental Bill of Rights would be completed after 30 days' notice had been given to the public.
Mr David Johnson: All right.
Mr Shaw: If I could try to clarify it: You could give the public 30 days' notice, and if the applicant had fulfilled all of the requirements under the issuing legislation and the director was satisfied that all of those requirements had been fulfilled and the required notice had been given to the public and their comments had not changed the director's opinion that all requirements had been fulfilled under the issuing legislation, not under the Environmental Bill of Rights, then the approval would be granted.
Mr David Johnson: There's a basic assumption here, I think, through all this that this will be cleared in 30 days, and that's sort of the cornerstone of your --
Mr Shaw: You cannot clear earlier than 30 days. We unfortunately don't clear all our approvals in 30 days now.
Mr David Johnson: Okay. Maybe I'm missing the point here, but you're saying that the Environmental Bill of Rights complaints will be cleared or clarified within a specified period of time.
Just before you respond, I'm looking at the experience with planning procedures in Ontario, which greatly exceed the time frames. I'm looking at rent review procedures in Ontario. I don't know what the backlog there is but I constantly get people complaining to me about a huge backlog of complaints that were made a year or two ago. I'm looking at the case load in the Human Rights Commission and the backlog there. I'm not sure why this will be any different from those.
If it is and if there is a severe backlog, then my question is, notwithstanding the best efforts of the staff that are administering the processes of this bill, if they're just swamped with complaints, then is it not possible that some permit, for the waste management industry or the mining industry or the forest industry, could be held up, notwithstanding that they've complied with all other regulations -- the Ontario Water Resources Act, the Environmental Protection Act, whatever acts govern them? They've met all those requirements but two people have complained, they're caught in the Environmental Bill of Rights process, there's a huge backlog of complaints in the environmental process and the staff just can't clear them out. It could be a six-month or a one-year backlog. Isn't that even remotely possible?
Mr Shaw: I don't believe there is. I believe that there is some confusion on two processes being mixed together here.
When you make an application for an approval, the process is that the public is given a minimum of 30 days to comment on that -- not to complain; to comment -- or raise questions that they want responses to during that time period. The ministry or the issuing director, which is normally the case, is required to take into account those comments -- not respond to those comments but to take into account those comments -- if they're relevant, when he or she makes a decision about granting the approval.
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Now, the other process under the bill allows for any two citizens of the province to request a review of something that already has been issued. You can't ask for a review during the process to issue; you can only ask to review something which somebody inside the government has already approved or issued.
If, as an example, an application came in, notice was put on the registry, subsequently issued and somebody's not happy with it and they turn around and they ask for a review, the bill provides for basically a presupposed five-year immunity against that request for review, provided that the approval was issued in a manner consistent with the bill and no new evidence is brought forward to change the director's opinion.
Mr Offer: Just two short questions: It appears from your explanation that there are not two processes but rather two are really merged into one in terms of if somebody wishes to use the EBR with the Ontario Water Resources Act. If there is an application under the OWRA and somebody wishes to be part of that, they are not part of it by virtue of the OWRA but rather by virtue of the EBR. However, in the decision-making process in terms of granting or not, the desire of the proponent is still dictated by the OWRA. So in that respect, apart from now being part of the hearing, the individuals under the EBR do not get any new rights.
Mr Shaw: That is correct.
Mr Offer: The second thing is that if the decision goes against their wishes, they then can ask for a review of the decision under the EBR.
Mr Shaw: That is correct.
Mr Offer: Is there a provision in the legislation which basically stops an individual from asking for a review of a decision after they have already been part of the initial application? Do they basically get two kicks at the can?
Mr Shaw: Yes, they can still ask for the review, but the bill is quite clear on the types of grounds. It states right in it that the minister shall determine that it's not in the public interest to undertake a review if the decision is less than five years old.
Mr David Johnson: I think I understand better what's intended now, so it's been useful to me at any rate. But nevertheless, the comments are still here from the waste management association. They used the words "neverending process." I think the mining association and the forestry association used very similar phraseology as well. Mr Offer's indicated they basically get two kicks at the can and I suspect that there are other kicks beyond that again. I think the minister has leeway to allow further appeals, notwithstanding that five-year period when there aren't supposed to be more appeals.
I guess this is really saying that the staff involved with administering the Ontario Water Resources Act are essentially not doing their job when they're allowing a permit to be issued or when they give approval. So the public is being the watchdog here, which I think is maybe a sad commentary.
Mr Jim Wiseman (Durham West): Somebody better watch that government.
Mr David Johnson: The member for Durham East, I guess, will --
Mr Wiseman: West.
Mr David Johnson: -- West, right, near the landfill site, will be a watchdog for sure.
Mr Wiseman: The one that's going to be owned by Metro.
The Chair: Just on a brief question of fact, is there any instance that you can think of that the EBR actually lengthens the time a permit would take to process?
I am most familiar with the forestry industry, thousands and thousands of permits and a lot of them really quite minor. A lot of them are important but there are a lot that are really quite minor, and some of those are processed very quickly because of their nature.
Are there any permits in this province, because of the EBR, that will be lengthened because of statutory time frames?
Mr Shaw: There is a possibility. For example, we as a ministry issue about 113,000 types of instruments a year. A lot of them are as described, mundane, very straightforward, and as a result they're not going on the registry.
On the instruments that we issue there is a possibility that non-complex approvals for a new air emission will take some additional days because of the 30-day comment period on them. For example, we have not put things such as our licences, septic tanks etc, which are normally turned around in days and are not environmentally significant under the definition of the bill, on to the registry.
Mr David Johnson: The other issue of course, and we're talking about 113,000 permits -- I didn't realize there were that many -- I think what the industry is saying is that it may be possible for them to defend this through this process. I guess they'd be quite confident because they will have had their permit in the first instance. It will have been given to them because they've complied with all the requirements of whatever act they're getting the permit under, but nevertheless two people could take them through this process again and then they'd have to defend themselves.
That in itself is a burden and an exercise, because as an industry you can't just sit back and say: "Well, we've complied with everything. We've met all the requirements so we really don't need to put much effort into defending the permit that we have legitimately obtained." They obviously would have to have legal counsel, they have to have staff associated with defending in this process and that is a burden on them from a financial point of view and from a human resource point of view.
It's something that I think a number of industries are very concerned about. They have to be competitive in a global market. They can't afford to have staff unproductive. Just as around here we have to have everybody carrying their weight, their staff have to do the same thing. If they have staff, perhaps their operating staff as well as their legal staff, off defending against a multitude of these complaints, then from their point of view that's going to be very unproductive time and that's going to put a burden on the industries.
I think that's a point that perhaps we're forgetting here. That's one of these things that comes up when you talk about red tape and the cost of doing business in the province of Ontario. That's just another straw on the camel's back. I think that needs to be said.
Mr Lessard: I just wanted to respond to that. I understand your concern. I don't necessarily agree with it. However, the amendment that you've proposed to this section really doesn't address the comments that you've made.
You're talking about part IV, the application for review process, to which this amendment is not really connected. Those points may be better made when we're discussing those sections, but they don't apply with respect to the amendment that you've put forward here.
Mr David Johnson: We're talking in a general sense to some degree here too.
Mr Lessard: All right.
Mr Offer: Just one final question: Of the 113,000 proposals, are they all going to be found on the registry?
Mr Shaw: No.
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Mr Offer: Isn't that a breach of section 6?
Mr Shaw: No.
Mr Offer: Why?
Mr Wiseman: This debate's getting quicker.
Mr Lessard: We're going back to debate section 6 again.
Mr Offer: No, no. I think there's an expectation by the general public that at least any proposal before the ministry could find its way onto this much-ballyhooed registry. I had a concern earlier on about "events" because I thought it was too broad, but certainly I would think the general public, at the very minimum, expects that the purpose of the registry is to contain information that carries with it any proposal pending. How else do they know?
Mr David Johnson: Isn't a more complete answer that yes, they all could be on, but it's not the intent or it's not the staff's view that it's the intent of the various ministries to put them all on?
Mr Lessard: It's not a necessity to put them on. It isn't a requirement.
Mr David Johnson: It's not a necessity, but in actual fact the ministries could choose to put all 113,000 on. There's nothing that precludes this under the act. The public could demand it of their elected representatives and of various staff, and indeed the final analysis could be that you could have all 113,000 on.
Mr Lessard: Under section 19 and what follows, classifying proposals for instruments, that's where the definition of instruments that need to be placed on the registry is contained. Why a ministry might want to put on every mundane approval I don't know. I can't understand why they might want to do that.
Mr David Johnson: Because the public might demand it, or certain people in the public might demand it.
The Chair: Further questions and comments regarding Mr Johnson's amendment, subsection 32(1)? Shall Mr Johnson's amendment to subsection 32(1) carry? All in favour? Opposed? Mr Johnson's amendment is lost.
Questions, comments or amendments to section 32? Shall section 32 carry? Carried.
Section 33 and section 34: Do we have questions, comments or amendments to those sections? Shall section 33 and section 34 carry? Carried.
Section 35. Mr Johnson.
Mr David Johnson: I move that subsection 35(2) of the bill be amended by striking out "subsection (1)" in the first line and substituting "this section."
Mr Chair, anticipating your desire, we are moving the deletion of subsection (1) in this section to allow the following amendment on subsection 35(3) to proceed. Perhaps I should indicate what that is. Should I do that at the same time?
The Chair: I think we should deal with them one at a time, but you can bring your explanation.
Mr David Johnson: Subsection 35(3) was brought forward by Laidlaw, among others. The bill, as it is presently worded, does not provide any provision for the minister to provide public comments to the proponent of any given instrument. Since the ministry will be making a major decision with respect to public comments and related information, the proponent should be granted the right to receive and respond to these submissions. Laidlaw, among others, felt it should have this information as any decision made could affect its business.
The Chair: Further questions or comments regarding Mr Johnson's amendment to 35(2)?
Mr Lessard: For the first amendment, he's just talking about removing subsection (1). I don't know what, legally, the effect of that might be, but the practical effect is that it obscures the clarity of the provision by not immediately directing the reader's attention to the provision affected by the subsection.
Mr David Johnson: So I gather the parliamentary assistant supports the amendment?
Mr Wiseman: That would be one interpretation.
The Chair: Further questions or comments? Shall Mr Johnson's amendment to subsection 35(2) carry? The amendment's lost.
Mr Johnson.
Mr David Johnson: This is subsection 35(3). I move that section 35 of the bill be amended by adding the following subsection:
"Proponent's response
"(3) A minister who gives notice of a proposal for an instrument under section 22 shall take every reasonable step to ensure that the proponent, if any, of the proposal, has an opportunity, before a decision about the proposal is made in the ministry, to,
"(a) review all comments relevant to the proposal that are received as part of the public participation process described in the notice of the proposal; and
"(b) submit a response to the comments in the manner specified by the minister."
This is in line with the explanation I gave previously that the bill, as it is presently worded, does not provide any provision for the minister to provide public comments to the proponent of any given instrument. As the ministry will be making a major decision with respect to the public comments and related information, the proponent should be granted the right to receive and respond to these submissions.
Representatives who were before us expressed the concern that a complaint is being made and information is being given to the ministry which could affect a permit or a licence or an approval for a given proponent, and that the proponent would not have the ability (a) to be aware of what is being said and (b) to respond and give the minister information that might assist the minister in making a decision. That would seem to be a fairly basic right, frankly, if somebody's business or approval is potentially being affected.
Mr Lessard: I would think that if you had the opportunity to respond to a comment, that may have the effect of actually lengthening the time before a decision would be made as well. It could have that effect. But the purpose of the section is to ensure that the public's comments are taken into consideration by the ministry when the decision is being made. The intention here is that if the ministry requires further information from the proponent, it would seek that information on an as-necessary basis in making the decision.
Mr David Johnson: That may be the intent, but if you or I were in business out there in the real world, intentions are not something we can bank on. If that's the intent, then I would suggest that the parliamentary assistant would not have any objection to having it written in, even beyond the intent, that it was a requirement that the business have the right to provide that information.
Again, I think the business community is not concerned about lengthening the process in that regard, because it would be their view that if they gave relevant information, that would more than likely shorten the process because the minister would be able to make a quicker decision based on good information. I think the concern here is that decisions may be made based on information from a complaint that may be inaccurate information, and the proponents could provide information that would be of assistance, would be perhaps more accurate, to the minister.
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Mr Mammoliti: The Conservative House leader is on the phone.
Mr David Johnson: Say hello.
The Chair: Continue, Mr Johnson.
Mr David Johnson: I think I just made the point. When we're doing these bills, we should be a little cautious about what the intent is, because intent is something that can change from day to day but what's written in a bill is something you can count on.
Mr Lessard: The intent is to give the public an opportunity to provide comment with respect to the decisions that are being made by the ministry, where they don't have that now.
Mr David Johnson: That's clear, and the bill formalizes that process, but what it doesn't allow is for businesses to provide information about the complaint that the public is making, which may be accurate, but may not be accurate. If the minister is formulating any sort of decision on this information, then it may be a one-sided decision.
Mr Lessard: They wouldn't be complaints. They'd be comments or questions, and if these questions required answers from the proponents, the ministry would contact them for the answers.
Mr David Johnson: "Complaint" is a generic word. Any way you cut it, even if you call it questions or comments, they're intended as a complaint, I'm sure, because that's the nature of the whole process. It's a complaint type of process.
Mr Lessard: The decision-making process, I would think, would require any information that was going to be used as a basis for making a decision to be verified. That would just be the prudent course of action.
Mr David Johnson: Well, I've made my point, Mr Chairman.
The Chair: Mr Offer, then Mr Wessenger.
Mr Offer: No, I have no statements or questions.
Mr Wessenger: I'd just like to make the comment that I think this clause, if added to the bill, would be very problematic. In other words, we're legislating in more administrative steps, and the more administrative steps you put into the process, the more bureaucratic and slow the whole process is. I think we want to limit the number of rigidities put into the system. We obviously don't want further delays, and for that reason I don't think it's a good amendment.
The Chair: Further questions or comments regarding Mr Johnson's amendment to subsection 35(3)? Shall Mr Johnson's amendment to subsection 35(3) carry? All in favour? Opposed? The amendment's lost.
Further questions and comments to section 35? Shall section 35 carry? Carried.
Sections 36 and 37: Do we have questions and comments or amendments? Shall sections 36 and 37 carry? Carried.
Section 38; Mr Lessard.
Mr Lessard: I move that paragraph 2 of subsection 38(1) of the bill be struck out and that the following be substituted:
"2. Another person has a right under another act to appeal from a decision whether or not to implement the proposal."
The Chair: An explanation?
Mr Lessard: Yes. This amendment simplifies the wording to make it easier to understand. It doesn't change the original meaning of the section, but there was confusion with respect to the interpretation that had been presented by one of the groups, I think AMO.
Mr David Johnson: It's really replacing the words "a person directly affected by a decision has a right to appeal" with "another person has a right...to appeal." It seems to me that it broadens who has the right to appeal. The original wording indicated that it would have to be a person directly affected by the decision.
Mr Lessard: The concern was that the same person may appeal, rather than it being the requirement that it be another person. The same person can't continually appeal. It would have to be someone else, other than the original appellant.
Mr David Johnson: If the parliamentary assistant says that's what it does, then I'll have to believe him, but it doesn't appear that that's what means.
Mr Lessard: That was their concern, that once an appeal was lost, the same person could appeal once again and that it would be a constant appeal process.
Mr David Johnson: I'm just not sure how this accomplishes that.
Mr Offer: But on the appeal side, if there is a group of people, each person has the right to appeal -- although it wouldn't serve any purpose. As I was asking the question, I was also giving myself the answer, so you can withdraw the comment.
Mr Wiseman: It was rhetorical.
Mr Offer: No, it wasn't. It was a good question. I just had the answer to it.
The Chair: Further questions or comments on Mr Lessard's amendment to paragraph 38(1)2?
All in favour of Mr Lessard's amendment to paragraph 38(1)2? Carried.
Mr Lessard: I move that section 38 of the bill be amended by adding the following subsection:
"(1.1) For greater certainty, subsection (1) does not permit any person to seek leave to appeal from a decision about a proposal to which section 22 does not apply because of the application of section 29, 30, 32 or 33."
Mr Offer: That simplifies it, doesn't it?
Mr Lessard: It did say "for greater certainty."
Mr Offer: Dealing with subsection 38(1.1), "For greater certainty, subsection (1) does not permit any person to seek leave to appeal from a decision about a proposal to which section 22 does not apply because of the application of section 29, 30, 32 or 33," is there anyone in the province who actually would fall within this section? Or would know?
The Chair: Further questions or comments? Shall Mr Lessard's amendment to 38(1.1) carry? Carried.
Are there further questions or comments to section 38?
Mr David Johnson: I have one to subsection 38(5).
I move that section 38 of the bill be amended by adding the following subsection:
"Standing
"(5) A resident of Ontario who meets the requirements of this section is granted standing in an existing appeal procedure."
The note I have on that is that AMO recommends that sections 38 through 48, which refer to appeals of decisions on class I and class II instrument proposals, and in particular section 39 on appellate body, should be amended to clearly indicate that there will be no new rights of appeal under the Environmental Bill of Rights and therefore no new processes.
This amendment states that a resident of Ontario who meets the requirements of section 38 is granted standing in an existing appeal procedure. It appears the purpose of section 38 is to provide more residents of Ontario with access to the appeal processes relating to class I or class II instruments.
However, the bill seems to create some confusion -- that's got to be an understatement -- as to the designation and role of the appropriate appellate body.
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Mr Wiseman: Did you want that as part of your amendment? It was probably recorded in Hansard the way you said it.
Mr Lessard: The purpose of section 38 is to provide an ability to decide who would be granted the right to appeal, and by this subsection 5, it would state that anybody who meets the requirements of that section be automatically granted that standing. It would actually remove the right of the court to be able to make that decision. It would mean that any person who has an interest in a decision would have the right to appeal automatically, and that would really introduce an unacceptable level of uncertainty into the government's approval process. I'm not sure the explanation you gave matches the impact of the amendment.
The Chair: Further questions or comments regarding Mr Johnson's amendment? Shall Mr Johnson's amendment to subsection 38(5) carry? All in favour? Opposed? The amendment is lost.
Further questions, comments or amendments to section 38? Shall section 38, as amended, carry? Carried.
Questions, comments or amendments regarding sections 39, 40, 41, 42, 43, 44, 45 and 46? Shall sections 39, 40, 41, 42, 43, 44, 45 and 46 carry? Carried.
Section 47, Mr Lessard.
Mr Lessard: I move that subsection 47(1) of the bill be struck out and the following substituted:
"Public notice of appeals under other acts
"(1) A person who exercises a right under another act to appeal from or to seek leave to appeal from a decision whether or not to implement a proposal for a class I or II instrument of which notice is required to be given under section 22 shall give notice to the public in the registry of the appeal or application for leave to appeal."
This is to simplify the language. I know it's difficult to understand that when you just consider it out of context; however, it does parallel the language that's used under subsection 38(1.1).
Mr Offer: That's for sure.
The Chair: Questions or comments? Shall Mr Lessard's amendment to subsection 47(1) carry? Carried.
Mr Lessard: I move that subsection 47(2) of the bill be struck out and the following substituted:
"Same
"(2) For greater certainty, subsection (1) does not require any person to give notice to the public of an application or appeal respecting a proposal to which section 22 does not apply because of the application of section 29, 30, 32 or 33.
"Delivery of notice
"(2.1) The notice required by subsection (1) shall be given by delivering it to the Environmental Commissioner, who shall promptly place it on the registry."
That also parallels the changes that were made in wording to subsection 38(1.1).
The Chair: Shall Mr Lessard's amendment to subsection 47(2) carry? Carried.
We have a government amendment to subsection 47(5).
Mr Lessard: I move that subsection 47(5) of the bill be amended by adding after "notice is given" in the fourth line "to the public in the registry."
This amendment eliminates any confusion over whether the date of the notice is the date the notice is given to the Environmental Commissioner or the date the Environmental Commissioner places it on the registry. It was intended that the 15-day time period commence when the notice was actually placed on the registry.
The Chair: Shall the amendment to section 47(5) carry? Carried.
Are there questions or comments on section 47? Shall section 47, as amended, carry? Carried.
Questions, comments or amendments to section 48? Shall section 48 carry? Carried.
Section 49.
Mr Lessard: I move that subsection 49(5) of the bill be struck out and the following substituted:
"Nature of employment
"(5) The Environmental Commissioner shall not do any work or hold any office that interferes with the performance of his or her duties as commissioner."
The original section stated that the commissioner shall not hold any other employment. It was determined that this might exclude certain candidates from the position. This amendment substitutes the standard that applies to public servants generally. So an Environmental Commissioner, for example, wouldn't be prevented from doing such things as continuing to teach a university course or writing articles or participating in a public interest group, provided that work doesn't interfere with the work being done as the Environmental Commissioner.
Mr David Johnson: The parliamentary assistant may have answered my question, but is this the same phraseology that applies to deputy ministers, for example?
Mr Shaw: Yes, it is.
Mr David Johnson: This would then allow the Environmental Commissioner to have other employment. You mentioned teaching at a university, but it could be a lawyer. It could be a broad range of employment opportunities. Who defines if the other employment opportunities interfere with the duties?
Mr Lessard: The Environmental Commissioner is an officer of the Legislature, so it would be the Legislature that could decide.
Mr David Johnson: How does that work then? You say the Legislature. Presumably, it would be a cabinet decision then. Is that how that works?
Mr Lessard: I think persons such as the Ombudsman or the commissioner on election finances may be similar types of positions. I'm not sure. I see Mr Jackson nodding his head back there. He may have some further knowledge about this.
Mr David Johnson: So essentially, it would have to be raised in the Legislature by a member that the Environmental Commissioner is pursuing other duties that are onerous and impacting on the performance, and fuss would have to be made and something would come from there. But again, it would have to go through the cabinet, because the Legislature by itself doesn't really have that much authority.
Mr Wessenger: We have a committee of the Legislative Assembly to which several officers of the assembly do report. So it would probably be through that committee, unless the Legislature decided to arrange it to report to another committee, but through a standing committee of the Legislature would be the way the commissioner would report.
Mr Offer: I'm a little concerned about this amendment, to be very frank with you. I had always thought the Environmental Commissioner would in essence be a full-time position, and the duties put upon the commissioner were going to be significant, substantial and onerous and would not permit, in terms of his or her duties, the holding of a second and/or third job. Also, in principle, do we want the Environmental Commissioner of the province of Ontario to be writing articles or other matters outside of his employment? It might have the impact, in terms of the general public, of introducing a certain bias of the commissioner.
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That will happen if the person is allowed to do it. He or she will very innocently write an article. It will probably be a person who is extremely qualified, and all of a sudden there is this article that appears somewhere by the Environmental Commissioner, written in his capacity as another, and there will be a big to-do about it, that this is a tilt by the commissioner.
I just think, as an employee of the Legislative Assembly, why do we want to even get into that? Why wouldn't we want to have somebody who wants to stand as the Environmental Commissioner for a five-year term? This is the amount. They're part of the public service pension plan and this is the commitment, a minimum of five years, totally, fully obligated to maintaining this particular piece of legislation.
Why would we create in a section, by amendment, a problem which we know is going to happen and will most likely occur very innocently? It will impeach the whole integrity of the legislation and do so in an incredibly innocent fashion. I think people want their Environmental Commissioner full-time. I don't understand why you'd want to create more problems.
I'm opposed. I state my opposition to this amendment very strenuously. I believe the Environmental Commissioner should not be involved in any other form of work, because of the duties that are going to be put on that person. The whole integrity of the legislation is going to rest on that person's shoulders, and we know that. The integrity of this legislation is not going to be on what is or is not in a registry located in some library somewhere; it's going to focus and manifest itself on the individual called the Environmental Commissioner.
Mr David Johnson: Is there any response from the government? I think Mr Offer is putting forward excellent logic. This is a position that needs to have all the appearances of being fair and beyond other influences. The possibility arises that if this person does have some form of employment, there could be the appearance of some influence. I don't know. It would depend on the kind of employment, I suppose, but you're opening the door to that. This is surely one of the most important, most visible positions this government will create and I would think you would want it pure.
Mr Lessard: It is a full-time position, but it doesn't mean that a person's working at it 24 hours a day. The purpose of the amendment was to bring it more in line with the restrictions that are placed upon public servants generally. However, Mr Shaw has some further explanation about other examples of employees of the Legislature and of other public servants.
Mr Shaw: In checking the statutes, we determined that in fact there is no stated restriction in the actual statute on the Provincial Auditor, the Human Rights Commissioner, the fire marshal or the chief medical officer of health for the province.
Mr Offer: There's no statement, but there's nothing that also states that they can hold something. It's left silent.
Mr David Johnson: In other words, would there be such a clause as this that pertains to the Human Rights Commissioner, for example?
Mr Shaw: No. There's no clause such as this in the statute that pertains to the Human Rights Commissioner.
Mr David Johnson: Why is such a clause being introduced here? One could imply that if there is no clause pertaining to the Human Rights Commissioner, the expectation is that would be a full-time job, not only from the point of view of perhaps the workload but from the point of view of the perception that the Human Rights Commissioner, the Environmental Commissioner, must be seen to be pure and aboveboard, unbiased, as well as actually being so. If they're involved in some other form of employment, there is always the potential that this other form of employment could come into conflict with the duties of the Human Rights Commissioner or the duties of the Environmental Commissioner. That's the kind of office that needs to be beyond that somehow.
Mr Offer: In the committee that Mr Wessenger has alluded to, it would be improper for a member of that committee to ask an applicant to the position whether it is going to be a full-time position, because it would be outside of the legislation. You could not say, "Are you going to do this full-time?" The person will say, "I will abide by the legislation." It would be wrong and totally improper to ask somebody to do something in a position which the legislation does not ask. If this weren't there, then you could ask the person, "Will this be full-time?" Then you could do it. This section precludes that question, because you are asking somebody to do something that the legislation particularly says is not necessary. I think it's a rotten amendment.
Mr Lessard: It is a full-time job.
Mr Offer: A full-time job is when there is no other thing that the person will do, because he's doing it full-time. Here it says that this person can do his job and do something else.
Interjection: Where does it say that?
Mr Offer: That's the amendment. Don't shake your head. That's the amendment.
The Chair: Further questions or comments? Shall Mr Lessard's amendment to subsection 49(5) carry? Carried.
Further questions or comments on section 49? Shall section 49, as amended, carry? Carried.
Questions, comments or amendments to sections 50, 51, 52, 53, 54, 55 and 56? Shall sections 50 through 56, inclusive, carry? Carried.
At this point, I think it would be a good time to adjourn the committee for the morning, and we'll see everyone at 3:30.
Mr Mammoliti: Mr Chair, as you know, there's a subcommittee meeting at 12 o'clock. We agreed to that yesterday.
The Chair: Yes.
Mr Mammoliti: Just as a clarification, because of the lack of time, in terms of the subcommittee's decision with regard to talking about this this afternoon, can the committee can give the subcommittee -- I'm not sure whether the subcommittee already has it, but that's another question I pose -- the ability to make the decision for the committee?
The Chair: No.
Mr Mammoliti: We'd have to come back this afternoon.
The Chair: The process will be that the subcommittee will make a report to the committee. The committee can adopt that report or choose to do something different.
Mr Mammoliti: When will the report be given to the committee?
The Chair: Motions are always in order.
Mr Mammoliti: This afternoon? Yes, okay. That's fine.
The Chair: The committee's adjourned until 3:30.
The committee recessed from 1159 to 1534.
The Chair: The standing committee on general government will come to order. Mr Mammoliti.
Mr Mammoliti: I move acceptance of the subcommittee report in front of us.
The Chair: And what might that be?
Mr Mammoliti: That the committee request of the three House leaders that we meet during the recess to review for one week Bill 95, An Act to provide for the passing of vital services by-laws by the City of North York, George Mammoliti, MPP.
The Chair: Is there discussion of that? I believe the subcommittee agreed to that this morning. All in favour? Carried.
When we left this morning, we were busily considering the Environmental Bill of Rights in clause-by-clause, and we had got to section 57. I believe we have a Liberal amendment.
Mr Offer: I move that section 57 of the bill be amended by adding the following clauses:
"(c.1) provide educational programs about this act to the public;
"(c.2) provide advice and assistance to members of the public who wish to participate in decision-making about a proposal as provided in this act."
The Chair: Thank you, Mr Offer. I would think you have an explanation.
Mr Offer: Yes, I do. Basically, this amendment is trying to add a few more functions to the position of the Environmental Commissioner in an area where we think it is important, such as educational programs about what this act is and how the public can interrelate with it, and also advice and assistance for people who wish to be part of the particular legislation.
The Chair: Further questions or comments on Mr Offer's amendment to section 57?
Mr Lessard: It's our position, of course, that these functions, even though not specifically stated in the bill, would be implied as part of the Environmental Commissioner's duties. However, I should point out that there's the possibility, if this amendment becomes part of the bill -- and we don't really have any objection to it -- that it could increase the cost of administering the bill and the office of the Environmental Commissioner.
The Chair: Further questions or comments to Mr Offer's amendment? Shall Mr Offer's amendment to section 57 carry? Carried.
We have a government amendment.
Mr Lessard: I move that section 57 of the bill be amended by adding the following clause:
"(e.1) review recourse to the rights provided in sections 38 to 47;"
That also expands the duties of the Environmental Commissioner; specifically, it would ensure that the commissioner, as part of his duties, review the use of third-party appeal rights. The amendment makes the list of components of the bill in section 57 that the Environmental Commissioner is to review complete. Section 59 permits the assembly to require the Environmental Commissioner to do additional things as well.
The Chair: Further questions or comments on Mr Lessard's amendment? Shall Mr Lessard's amendment to clause 57(e.1) carry? Carried.
Further questions or comments or amendments to section 57? Shall section 57, as amended, carry? Carried.
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Section 58: questions, comments, amendments.
Mr Offer: I have an amendment to 58(2)(b).
I move that clause 58(2)(b) of the bill be amended by adding at the end "including a summary of information about compliance with ministry statements of environmental values gathered as a result of the review carried out under clause 57(a)."
The Chair: And the explanation would be?
Mr Offer: What I'd like to do is make this amendment so that there is more information provided by the Environmental Commissioner about any decisions he or she may make, the summary of information. It just gives the public more information about any decisions made by the Environmental Commissioner.
I understand that there's some concern about some of the wording here.
Mr Wiseman: I was just going to move an amendment to your amendment.
Mr Offer: Okay. Basically, the premise of the amendment is that if the commissioner comes out with some recommendation, they also add the reason; some further background information about the decisions they make.
Mr Wiseman: I would like to make an amendment to Mr Offer's amendment.
I would move that after the word "including," "for greater certainty," be included and that the rest of the amendment remain the same.
The Chair: Are there questions or comments regarding Mr Wiseman's amendment to Mr Offer's amendment?
Mr David Johnson: Can I just ask what Mr Wiseman's amendment means: "including, for greater certainty"? Greater certainty about what? I assume there wouldn't be less certainty.
Mr Wiseman: The amendment "for greater certainty" will allow for that amendment to be focused and not to exclude or to include other aspects of the bill. If you want even a further explanation, I think somebody else can handle it.
Mr Lessard: I was afraid he was going to say the parliamentary assistant.
The Chair: Further questions or comments?
Mr Offer: I'll be very brief. Really, what we're talking about is that 58(2)(b) is the Environmental Commissioner reporting annually to the Speaker and providing a summary of the information gathered by the commissioner as a result of performing his or her functions under the bill, section 57.
We want to just say that in that particular summary the commissioner can provide a summary of information about compliance with those ministry statements of values. I think the amendment is saying that it should also contain the caveat that it should be done for greater certainty, basically.
What we're trying to do is that when the commissioner at the end of the year says, "This is what has happened," there is something more to it, if that will clarify matters: what has happened; have they complied with the statement of values; where they didn't. It provides a fuller type of report to the general public and to the Legislative Assembly.
Mr Lessard: I just wanted to indicate there is a possibility that interpreting the section as amended would actually limit the type of information that the commissioner may include in his report. Rather than considering generally this section to be only a summary of the information gathered, it could be interpreted that it should only include a summary of information about compliance with ministry statements of environmental values and not any other things. There's a possibility that it could be interpreted narrowly by the commissioner when he's preparing his or her report, so it's something that could cut both ways.
The Chair: Further discussion? Shall Mr Wiseman's amendment to Mr Offer's amendment carry? Carried.
Now we're dealing with Mr Offer's amendment as amended by Mr Wiseman. Further discussion to that amendment. Shall Mr Offer's amendment, as amended, carry? Carried.
Further questions, comments or amendments to section 58? Shall section 58, as amended, carry? Carried.
Section 59: Questions, comments or amendments to section 59? Shall section 59 carry? Carried.
Section 60: The government has an amendment.
Mr Lessard: I move that section 60 of the bill be amended by adding the following subsection:
"Delegation
"(3) The Environmental Commissioner may authorize in writing any person or group of persons to exercise the commissioner's powers under this section."
The explanation for that amendment is that it enables the Environmental Commissioner to have the appropriate person or persons in his or her office carry out the examination and require the production of documents referred to in this section.
If it weren't for this delegation of authority, the functions would be limited to the commissioner and that might limit the effectiveness of his or her office. Section 60 talks about the sorts of things that the commissioner can do; for example, examining persons under oath, requiring the production of evidence or documents or other things. If the commissioner didn't have the power to delegate responsibility for doing some of those things, it may limit his ability to carry out his function.
Mr Offer: Is there any limitation to the delegation that the people who are to be delegated are within the employ of the office of the Environmental Commissioner?
Mr Lessard: It doesn't seem to be in this provision and I'm not aware of it being in any other provision of the legislation.
Mr David Johnson: The chairman of Greenpeace, for example, or Pollution Probe or It's Not Garbage; you know, any member of an environmental group.
Mr Lessard: There are no restrictions.
Mr David Johnson: No restrictions --
Mr Wiseman: They wouldn't be able to do that --
The Chair: Order. Try it one at a time. Is there an answer?
Mr David Johnson: It could be any citizen.
The Chair: Okay. Mr Wiseman?
Mr Wiseman: No, never mind.
Mr David Johnson: So it's non-restrictive whatsoever. It can be any citizen of the planet, then, presumably.
Mr Lessard: Right.
Mr David Johnson: Have you really thought this through? It sounds unbelievable.
Mr Offer: Especially since it's not limited to people of this planet.
Mr David Johnson: Yes, it doesn't even have to be on the planet; that's right. If the commissioner delegates some authority to somebody who has a clear bias in a situation, this exercise is not going to be perceived to be fair and just. Is there any response to that?
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Mr Lessard: I would think that in situations where the commissioner was going to be examining persons under oath or requiring examination of evidence, you're talking about something that's almost a quasi-judicial process and would require some elements of fairness in exercising that role. If it were restricted to persons who were in the employ of the commissioner's office, that would really restrict the ability to establish some special investigative body, for example, to conduct an investigation or to retain outside counsel, for example. There could be a number of situations where that necessity may arise.
The Chair: Further questions or comments? Shall Mr Lessard's amendment to subsection 60(3) carry? Carried.
Mr Offer, you have an amendment to section 60?
Mr Offer: Yes, I move that section 60 of the bill be amended by adding the following subsection:
"Duty to cooperate
"(3) The Environmental Commissioner may from time to time require any officer, employee or member of any governmental organization who, in his or her opinion, is able to give any information relating to any matter that is being investigated by the Environmental Commissioner to provide him or her with that information and to produce any documents or things that, in his or her opinion, relate to the matter and may be in the possession or control of that person."
Basically, the reason for the amendment is to give to the Environmental Commissioner some greater power that, when someone has requested the Environmental Commissioner to do something and the Environmental Commissioner has the responsibility of making inquiries with another body within the ministry, the people to whom the Environmental Commissioner makes that request are in fact obligated, within the bounds of existing legislation, to cooperate with the Environmental Commissioner in the carrying out of his or her duties.
Mr Lessard: The act really isn't set up for the purposes of permitting the Environmental Commissioner to conduct his own investigations. It does permit him, in section 60, to examine persons under oath or to require the production of documents or evidence in the performance of the commissioner's duties pursuant to this act. However, this doesn't have that same restriction. It really implies that the Environmental Commissioner can conduct investigations and, in the course of conducting those investigations, require the production of documents or things that may relate.
That's not part of the functions of the Environmental Commissioner. In fact, those are functions that may most likely be conducted by ministers or within ministry offices, and to provide that power to the Environmental Commissioner would actually be a duplication of responsibilities. He would be able to do investigations in addition to ministers or ministries doing investigations. I know that's a concern that's come up on several occasions in the course of our discussions as something that we wanted to try to avoid.
Mr Offer: Basically, it means that if somebody wants to avail himself of the services of the Environmental Commissioner and in fact does so, and the Environmental Commissioner makes a request to another ministry and the ministry says no for no reason whatsoever, then the only thing that's available to the Environmental Commissioner, notwithstanding the substantive nature of the request or the bona fides of the request, is to make that public in the annual report.
Mr Lessard: To the Legislature. Right.
The Chair: Further questions or comments? Shall Mr Offer's amendment to section 60 carry? All in favour? Opposed? The amendment is lost.
Further questions and comments regarding section 60? Shall section 60, as amended, carry? Carried.
Section 61: Questions, comments or amendments to section 61? Shall section 61 carry? Carried.
Section 62. Mr Offer.
Mr Offer: I move that subsection 62(1) of the bill be amended by adding after "following" in the third line "unless he or she is of the opinion that the application is frivolous or vexatious."
The Chair: And the reason is?
Mr Offer: The reason is that I would like to give the Environmental Commissioner the opportunity of making a decision at his or her desk with the staff that he or she will have and the delegation powers that he or she now has and to inform that person that the request is indeed frivolous or vexatious. It is just something in which the Environmental Commissioner, I would think, in the choosing of that person, would have the expertise to make that decision, and in fact would form the subject matter of the annual report to the Legislature.
I think there are a whole variety of other examples where people who are called upon to investigate matters can make the decision at the outset that something is clearly and totally frivolous and/or vexatious. There are examples that this happens. In fact, that doesn't stop people from making claims. Rather, it cleanses the process in terms of giving to the general public an idea as to how their particular question is viewed and, if it happens to be viewed as frivolous or vexatious, why that happens to be the case. Maybe that's not a bad power that the Environmental Commissioner should have.
Mr Wessenger: I'd just like to raise a question for perhaps the parliamentary assistant or legal counsel in this matter. My concern with this amendment is that by adding it to it, in effect we are saying to the Environmental Commissioner that he has an obligation to refer all matters for review unless they are frivolous or vexatious. In effect, the result of the amendment would take away the discretion of the Environmental Commissioner to make a decision on whether it's appropriate to refer. It might be not appropriate to refer even if the matter was not frivolous or vexatious in the sense that it was not felt to be -- I don't know. I'm just asking that question for the parliamentary assistant or legal counsel because my concern is that this amendment would in effect require a referral of all matters unless they were deemed frivolous or vexatious.
Mr Lessard: The concern that I have is the fact that you're really trying to expand the powers of the Environmental Commissioner. As Mr Shaw indicated earlier, there's a possibility of thousands of instruments and proposals and policies being listed on the registry. For a determination to be made as to whether any one of those is frivolous or vexatious and shouldn't be referred to a relevant ministry would require all of them to actually be scrutinized by staff at the Environmental Commissioner's office and would very likely necessitate an increased amount of staff and a much larger budget to run that office.
If they didn't have the expertise within the Environmental Commissioner's office to make the determination as to whether something was frivolous or vexatious, then they'd have to rely on the expertise of the ministry that may be responsible, and that could add to significant delays and really would again result in a duplication of efforts. The function of the commissioner is to ensure that instruments are placed on the registry and that people are given an opportunity to make public input and then to review the way various ministries comply with the act, not to make determinations as to the validity of comments or questions that may be raised by the public.
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Mr David Johnson: Mr Chairman, as you are aware, I had a similar amendment to add paragraph 62(1)3 to effectively accomplish the same thing, so I would be supportive of the motion.
The government's indication was that it didn't feel there would be very many appeals under the Environmental Bill of Rights. We put forward the motion on the basis that surely there could be some criteria developed such that the Environmental Commissioner and his very limited staff could quickly go through those appeals that did come in. The criteria could be set for what is frivolous or what has no merit, and those could be weeded out. That would remove the uncertainty that would be hanging over the head of the person who would be having the appeal lodged against him, in a sense, plus the necessity for that person to be aware of what's going on, build a case, have staff involved with it, have legal counsel involved, perhaps, and have that hanging over his head.
On the basis that the government's saying there aren't going to be that many appeals anyway, and that some probably relatively simple guidelines could be determined as to what "frivolous" and "no merit" would include, I think this could be workable, and I'd support it.
Mr Lessard: First of all, we're not talking about appeals in this section; we're talking about applications for review.
Mr David Johnson: What's the difference?
Mr Lessard: I don't recall any of the ministry staff referring to how many applications for review may be expected, because it's very difficult to determine how many groups of any two people may make application to the Environmental Commissioner for the review of a policy, act, regulation or instrument to the appropriate minister. We don't have any way of determining what the response to that provision may be at this point.
I know from my experience as a lawyer that what's frivolous and vexatious is really a term that's developed by interpretation of various cases, and sometimes it's even difficult for courts to determine what may be frivolous or vexatious. It requires some evidence to be presented to make that determination. I don't think that's a responsibility we want to place on the Environmental Commissioner's office. You've been concerned on many occasions about the cost of administering this act, and it would seem very clear that if this was a determination that would have to be made by that office, it would require additional staff and additional resources.
The Chair: Further questions or comments to Mr Offer's amendment to subsection 62(1)? Shall Mr Offer's amendment to subsection 62(1) carry? All in favour? Opposed? That's lost.
I see that Mr Johnson has an amendment. I think he will agree that the question has been decided on his amendment to 62(1)3, so it may not be in order.
Mr David Johnson: I'll bow to your wisdom, Mr Chairman.
The Chair: Further questions or comments on section 62? Shall section 62 carry? Carried.
Section 63.
Mr Lessard: I move that clause 63(2)(a) of the bill be struck out and the following substituted:
"(a) a review of an existing act, regulation or instrument other than a prescribed act, regulation or instrument."
The authority to make regulations enables things to be prescribed. The change in wording ensures that grammatically the clause refers to things that are prescribed rather than things that are not prescribed so that the wording parallels the regulation-making authority. This is a fairly technical change in the wording.
The Chair: Shall Mr Lessard's amendment to clause 63(2)(a) carry? Carried.
Mr David Johnson: I move that subsection 63(2) of the bill be amended by adding the following clause:
"(c) a review of the existing instrument that was issued under the Environmental Assessment Act, the Environmental Protection Act or the Ontario Water Resources Act."
This amendment suggested by the Ontario Waste Management Association is consistent with earlier amendments, which I think were turned down, which protect the validity of established public participation processes included within approval processes under the Environmental Protection Act, the Environmental Assessment Act and the Ontario Water Resources Act.
This amendment, along with earlier amendments, will ensure that individuals will not be able to utilize provisions of the Environmental Bill of Rights immediately after the required hearings conducted through the processes of the aforementioned acts.
I guess we had that discussion this morning. The concept here is that we don't drag people through the same process twice. That's certainly the view of the Ontario Waste Management Association. I concur with its views and I've put forward the amendment here.
Mr Lessard: If this amendment were to pass, it would remove all instruments issued under the Environmental Protection Act and the Ontario Water Resources Act from the request-for-review provisions of the bill. That would mean the public couldn't request a review of an instrument, no matter what its age and no matter whether there hadn't been public participation in the original decision. This would include such instruments as certificates of approval for waste disposal sites, waste processing sites, transfer stations, sewer treatment facilities, director's orders and other things as well.
It would also prevent new socioeconomic, scientific or other evidence being taken into consideration with respect to old instruments, and that refers to section 68, which provides the five-year requirement for matters to be reviewed if they've already been part of a public participation process.
Mr David Johnson: I'll simply briefly reiterate that there's a perception, and an accurate one, I think, among several industries, not only waste management but mining and forestry and by the municipalities as well, that this could be a never-ending loop of various approvals and hearings that one will have to go through to obtain valid permits, licences and other approvals. I think that's perhaps an accurate perception.
It's also my understanding that the minister has the authority to waive that five-year period, so there is again a perception out there that the five-year provision isn't a whole lot that you can take to the bank.
Mr Lessard: That's why I referred to section 68, where you can waive that five-year provision if there is socioeconomic, scientific or other evidence that failure to review the decision would result in significant harm to the environment. This would take away that ability to review things based on those factors.
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Mr David Johnson: The concern in a number of industries is that, based on that clause, there certainly is the possibility that there could be constant reviews, over and over again. In particular, socioeconomic kinds of complaints or requests for review are open to interpretation. It's hard to decide precisely what sort of information would be needed there, and certainly the way is clear for anybody to stand up and indicate that their socioeconomic wellbeing is being harmed by something that has been reviewed a year ago, for example.
Again we have the prospect of continual reviews in certain industries. Certain industries are very concerned that they will face a very frequent review situation, and this would be detrimental to them and will be harmful to job creation and the economy.
The Chair: Further questions or comments?
Shall Mr Johnson's amendment to clause 63(2)(c) carry? It's lost.
Further questions, comments or amendments to section 63? Shall section 63, as amended, carry? Carried.
Section 64 and section 65: Questions, comments or amendments to sections 64 and 65? Shall sections 64 and 65 carry? Carried.
Section 66; Mr Johnson.
Mr David Johnson: I move that section 66 of the bill be struck out and the following substituted:
"Notice to persons with direct interest
"66(1) A minister who receives an application for review from the Environmental Commissioner in respect of an instrument shall also give notice that the application has been made to the holder of the instrument and to any other person who the minister considers ought to get the notice because the person might have a direct interest in matters raised in the application.
"Same
"(2) A notice under subsection (1) shall include a copy of the application."
As a matter of consistency with the previous amendment that I placed earlier to section 35, we have concern with respect to the minister forwarding appropriate information regarding an application for review to the affected instrument holder. This amendment ensures that the holder of an instrument receives the relevant information from the minister regarding an application for review.
I think that's only an element of fairness. The parliamentary assistant may quarrel with this, but in a sense, if the holder is being charged or if some sort of review or something is being requested against that permit, then the accused should have knowledge and be aware of the situation.
Mr Lessard: The way subsection 66(1) is drafted at the present time, it requires the minister to give notice to a person who may have a direct interest in matters raised in the application for review. That would include the holders of instruments, in my submission, and subsection (2) really would, in my mind, be a breach of the privacy of the person who may be making an application for review. They have the right to remain anonymous, and providing a copy of the application would indicate who was making the application for review to the person being reviewed. That's not something we're in favour of.
Mr David Johnson: I gather in the first part, then, the parliamentary assistant concurs that the holder of the instrument be informed. It's just too bad it doesn't specify that clearly, because some people are not clear that in fact that will happen. If it is going to happen, if there was intent that it would happen, then it's too bad that it isn't clarified here.
I must say, there is a difference of opinion about whether two people in the province of Ontario should be able to anonymously accuse or ask for a review, put an industry or an individual or whatever through a process, and should be able to do that anonymously. That certainly wouldn't happen in the courts in our province. It could lead to all sorts of abuse. I think it will be interesting to see what experience we have with that aspect of the bill.
The Chair: Further questions or comments on Mr Johnson's amendment to section 66? Shall Mr Johnson's amendment to section 66 carry? All in favour? Opposed? The amendment is lost.
Further questions or comments on section 66? Shall section 66 carry? Carried.
Questions, comments or amendments to sections 67 and 68? Shall sections 67 and 68 carry? Carried.
Section 69.
Mr Lessard: I move that subsection 69(1) of the bill be amended by adding at the end "within a reasonable time."
The explanation with respect to that amendment would be to require the minister who had determined that a review should be conducted to conduct that review within a reasonable time. I would think Mr Johnson would think that would a reasonable amendment.
Mr David Johnson: I don't disagree with the parliamentary assistant, but what is his definition of "reasonable"?
Mr Lessard: I guess everybody has different interpretations of what's reasonable.
The Chair: Further questions or comments? Shall Mr Lessard's amendment to subsection 69(1) carry? Carried.
Questions or comments to section 69? Shall section 69, as amended, carry? Carried.
Questions, comments or amendments to sections 70 and 71? Shall sections 70 and 71 carry? Carried.
Section 72.
Mr David Johnson: I move that the bill be amended by striking out section 72.
We discussed this just a couple of minutes ago. I'm moving the deletion of section 72 -- section 81, I guess, will come up later -- on the recommendation of the Association of Municipalities of Ontario. Sections 72 and 81 provide that personal information on applicants requesting reviews or investigations should not be disclosed. In other words, you can make an anonymous request for a review, an anonymous complaint, in a sense. It is the contention of the Association of Municipalities of Ontario that deletion of these sections will provide a safeguard against obstructive claims.
Also, the identity of the complainants may initiate a resolution by encouraging an open resolution as opposed to a costly structured resolution through the government or the courts. In other words, AMO is saying that if the accused and the accuser were able to understand each other and know who each other was, they might be able to sit down together and simply rectify the problem without going through this formalized process.
They're also concerned about claims that may not be constructive. They don't use the words "frivolous" or "vexatious," but I guess if I went beyond what they say, that could be the case. If your name isn't there, then certainly it's much easier to put in any sort of complaint than it would be if you were required to sign your name to it.
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The Chair: In order to be a little helpful to you, Mr Johnson, I would tell you that the way to actually do what you're intending to do is to vote against this section rather than attempt to put an amendment which happens to be out of order.
Mr David Johnson: I see.
The Chair: I'm going to have to reluctantly rule this out of order.
Mr David Johnson: I appreciate your guidance.
Mr Wiseman: Is that a sign of bias?
Mr Mammoliti: Don't do it reluctantly.
The Chair: I'm just trying to be helpful. Mr Johnson is a relatively new member.
Mr David Johnson: You're being very helpful, Mr Chair. I appreciate your continued --
The Chair: I'm sure in the future he would not put an amendment like this.
Mr David Johnson: I hope I can remember as far as section 81, but my memory isn't very good this afternoon.
The Chair: We will deal with section 72. Do I have questions, comments or amendments to section 72? Shall section 72 carry? All in favour? Opposed? It's carried.
Do we have questions or comments to section 73 and section 74? Shall sections 73 and 74 carry? Carried.
Mr Offer has an amendment to section 75.
Mr Offer: I move that section 75 of the bill be amended by adding at the end "unless he or she is of the opinion that the application is frivolous or vexatious."
The rationale behind this amendment is the same as that amendment which was moved by myself under subsection 62(1).
Mr Lessard: And my response is the same, that it would require additional staff and additional resources at the Environmental Commissioner's office to make that determination and may add to the length of time it would take to make that determination.
The Chair: Shall Mr Offer's amendment to section 75 carry? All in favour? Opposed? Mr Offer's amendment is lost.
Mr David Johnson: My amendment goes a little bit beyond that.
I move that section 75 of the bill be amended by adding the following subsection:
"Where referral not required
"(2) Despite subsection (1), the Environmental Commissioner need not refer an application to a minister if the commissioner considers that,
"(a) the application is frivolous or vexatious;
"(b) the alleged contravention is not serious enough to warrant an investigation; or
"(c) the alleged contravention is not likely to cause harm to the environment."
In explanation, in the interest of maintaining the integrity of the environmental review process and avoiding the necessity of reviewing frivolous complaints at both the ministerial level and at the commissioner's office, the commissioner should have the authority to reject an application without passing it on to the minister. This is an amendment that was suggested by the Ontario Forest Industries Association.
Mr Lessard: The same explanation as with the previous suggested amendment, in that it would need additional staff, it would cause delays. This is a duplication of subsection 77(2) and the powers that the minister has in that section. To have the Environmental Commissioner have identical powers could lead to duplication and to significant delays.
The Chair: Shall Mr Johnson's amendment to subsection 75(2) carry? All in favour? Opposed? Mr Johnson's amendment is lost.
Questions, comments or amendments to section 75? Shall section 75 carry? Carried.
Section 76.
Mr David Johnson: I move that section 76 of the bill be amended by adding the following subsections:
"Notice to affected persons
"(2) Within twenty days of receiving the application from the Environmental Commissioner, the minister shall take every reasonable step to give notice that the application has been made to,
"(a) any person alleged in the application to have been involved in the commission of the contravention; and
"(b) any other person who the minister considers might have been involved in the commission of the contravention.
"Same
"(3) A notice under subsection (2) shall include a copy of the application."
This is to ensure, again, that the holder of an instrument is properly notified of an application for investigation. We move that section 76 be amended to require a submission of the request to all parties involved, including a copy of the actual application. One of the deputants requesting this certainly was Laidlaw. I do believe, from the look on the parliamentary assistant's face, that he feels he's already addressed this issue and is prepared to turn thumbs down on it.
Mr Lessard: This would be like notifying drug dealers that you had a search warrant to come over and search their house. It would make it pretty difficult to conduct an investigation and gather evidence if you were to give notice that you were coming over to do so. Also, on subsection (3), my response is the same, that it would be a violation of the Freedom of Information and Protection of Privacy Act.
Mr David Johnson: It's interesting, just briefly, that the parliamentary assistant might have chosen another analogy than to equate --
Mr Lessard: I could have.
Mr David Johnson: I just mentioned the firm Laidlaw, and (1) to use the analogy of a drug dealer is a very unfortunate comparison and (2) there is an implication that the firm having the review or the request for a review against it is guilty until proven innocent. I think those are both unfortunate analogies.
Mr Wiseman: Just on that comment, the element of being able to, on the basis of probable cause, investigate an establishment or an area is important because there are some -- and I'm not pointing out anybody in particular -- companies in some places that, if they knew they were being investigated, would clean up.
So that whenever the inspectors or whoever showed up, there would be nothing to see. I think it's important that we understand that if a company or some municipality or other group was acting in that way in contravention of the law, it wouldn't be too far to assume that it would clean up so that it wouldn't be in contravention. I just wanted to make that point because my experience is that on more than one occasion that has happened.
Mr Offer: Just after listening to the discussion, I must share the concern of Mr Johnson. I think it was an unfortunate and inappropriate example to be chosen in terms of trying to make sense of a particular section. I don't think any company or any person would appreciate having that analogy affixed to them.
The Chair: Further questions and comments to Mr Johnson's amendment? Shall Mr Johnson's amendment to subsections 76(2) and (3) carry? All in favour? Opposed? Mr Johnson's motion is lost.
Shall section 76 carry? Carried.
Section 77: Questions, comments or amendments? Shall section 77 carry? Carried.
Section 78.
Mr David Johnson: I move that clause 78(1)(b) of the bill be struck out and the following substituted:
"(b) Each person to whom a notice has been given under subsection 76(2); and"
This amendment is required to complement the provisions of a previously introduced amendment on section -- I guess it doesn't make any sense any more. I should have read that first.
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The Chair: Yes.
Mr David Johnson: I should have read that first.
The Chair: Mr Johnson, I'm afraid this amendment is out of order, given the disposition of your amendment to 76.
Mr David Johnson: I abide by your decision.
The Chair: Further questions or comments regarding section 78? Shall section 78 carry? Carried.
Sections 79 and 80: Questions, comments or amendments to sections 79 and 80? Shall sections 79 and 80 carry? Carried.
Section 81.
Mr David Johnson: Mr Chair, I was going to move that this be struck out, but after your excellent advice, still bearing in mind that it's the contention of the Association of Municipalities of Ontario that having deleted this section would have provided a safeguard against obstructive claims, and also, the identity of the complainants may initiate a resolution by encouraging an open resolution as opposed to costly structured resolution through the government or the courts, nevertheless I will simply vote against this clause and not offer an amendment at this time.
The Chair: I'm happy you're on the fast learning curve, Mr Johnson.
Section 81, questions, comments or further amendments? Shall section 81 carry? All in favour? Opposed? Section 81 is carried.
Section 82: questions or comments or amendments? Shall section 82 carry? Carried.
Section 83.
Mr David Johnson: I move that section 83 of the bill be amended by striking out "a contravention" in the second line and substituting "an alleged contravention".
According to the present wording, Bill 26 does not grant a defendant the expressed right to allow a defendant to be considered innocent until proven guilty. Therefore, sections 83 and 84 should be amended to make reference to any alleged contravention, as in the case of subsection 74(1) of the bill.
I think I alluded to this earlier, that if there is a review being requested or a charge being made, the party to which the review or charge is being directed towards should be considered innocent. Normally that's the procedure in our courts, certainly, in the province of Ontario. They must be proved to be guilty before they're considered guilty. That's the essence of this amendment.
Mr Lessard: We did discuss this when the group was here. Basically the way the section reads now it would require that there be a contravention as a prerequisite to bringing an action. If you were to change the words to read "an alleged contravention," that would mean you could actually bring an action before someone had been found guilty. It would only be alleged. I don't think that's something you intend to have happen. It would actually lower the threshold for bringing an action. It doesn't accomplish what it is they had hoped it would.
The Chair: Further questions or comments? Shall Mr Johnson's amendment to section 83 carry? All in favour? Opposed? Lost.
Further questions or comments to section 83? Shall section 83 carry? Carried.
Mr Johnson, for section 84.
Mr David Johnson: I move that subsection 84(1) of the bill be struck out and the following substituted:
"Right of action
"(1) Where a person will imminently contravene or has allegedly contravened an act, regulation or instrument prescribed for the purposes of part V and the imminent or alleged actual contravention will imminently cause or has caused significant harm to a public resource of Ontario, any person resident in Ontario may bring an action against the person in the court in respect of the harm and is entitled to judgement if successful."
It's the same rationale I indicated earlier for section 83.
The Chair: Further questions or comments? Shall Mr Johnson's amendment to subsection 84(1) carry? No.
Mr David Johnson: I have another amendment to subsection 84(10).
I move that subsection 84(10) of the bill be struck out and the following substituted:
"Rules of court
(10) The rules of court, including rules as to costs, apply to an action under this section."
Members of the public should not assume there will be little, if any, financial consequences to the initiating of court action. Court actions under this legislation should not be considered as Environmental Assessment Act-type hearings where members of the public are reimbursed for costs even if they were unsuccessful in convincing a tribunal to proceed with the undertaking. Again, Laidlaw was one of the parties that brought this to our attention.
The Chair: Questions, comments?
Mr Lessard: It's my submission that this is already dealt with in section 100. It talks about the courts exercising their discretion with respect to costs.
The Chair: Further questions or comments to Mr Johnson's amendment to subsection 84(10)?
Shall Mr Johnson's amendment to subsection 84(10) carry? All in favour? Opposed? The amendment is lost.
Further questions or comments to section 84? Shall section 84 carry? Carried.
Sections 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104: Are there questions or comments or amendments to those sections? Shall sections 85 through 104, inclusive, carry? Carried.
Section 105.
Mr Lessard: I move that paragraph 1 of subsection 105(3) of the bill be amended by striking out "the making of" in the first line and substituting "decision-making about."
This amendment expands the whistleblower protection to include not only the initial making of a statement of environmental values, policy, act, regulation or instrument but also any subsequent modifications of them.
The Chair: Questions, comments? Shall Mr Lessard's amendment to subsection 105(3) carry? Carried.
Further questions or comments to section 105? Shall section 105, as amended, carry? Carried.
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Sections 106 through 117, inclusive: questions, comments or amendments? Shall sections 106 through 117, inclusive, carry? Carried.
Section 118. Mr Johnson.
Mr David Johnson: We're getting there, Mr Chair.
The Chair: Making great progress.
Mr David Johnson: I move that subsection 118(2) of the bill be amended by striking out the words "respecting a proposal for an instrument" at the end.
Subsection 118(2), as it is presently worded, holds that a judicial review application can be filed if a minister has failed to comply with requirements of part II of the bill respecting a proposal for an instrument. Part II also applies to policies, acts and regulations. To make the bill more manageable for instrument holders, we propose the deletion of the words "respecting a proposal for an instrument" at the end of that clause.
Mr Lessard: This would make all of part II of the Environmental Bill of Rights subject to judicial review, and that would include public participation with respect to policies and regulations. The bill provides for ministerial discretion in determining whether the public should be given the opportunity to comment on a proposal or a policy or regulation. What this provision would do would be to subject ministerial discretion to judicial review, which would be totally inappropriate. Judicial review is usually used with respect to decisions leading to the granting of approvals or things of that nature and not used for exercising discretion with respect to policies.
The Chair: Questions, comments? Shall Mr Johnson's amendment to section 118(2) carry? All in favour? Opposed? Mr Johnson's amendment is lost.
Further questions, comments or amendments to section 118? Shall section 118 carry? Carried.
Sections 119 and 120: questions, comments or amendments? Shall sections 119 and 120 carry? Carried.
Section 121: questions, comments or amendments to section 121. Mr Lessard.
Mr Lessard: I don't have any comments.
The Chair: Mr Johnson has an amendment to section 121.
Mr David Johnson: I move that the bill be amended --
Mr Wessenger: Mr Chair, I believe it's a new section, since it's 121.1.
The Chair: That's right. Thank you, Mr Wessenger.
Questions, comments regarding section 121?
Mr David Johnson: Mr Chair, I have an amendment.
The Chair: Yes, you can put 121.1. That's really a new section. That's what Mr Wessenger just helpfully pointed out to the Chair.
Shall section 121 carry? All in favour? Opposed? The section will be struck out.
Now, Mr Johnson.
Mr David Johnson: I move that the bill be amended by adding the following section:
"Review of act
"121.1 Within three years of the coming into force of this act, a committee of the Legislature shall conduct a review of the act to advise the minister responsible for the administration of the act on whether it is advisable for the act to continue in force."
By way of explanation, a mandatory review of the act should be initiated after three years to determine the legislation's effectiveness at dealing with environmental investigations and reviews. It should also be noted that the intention of this legislation is to settle disputes without going to court and the legal system would be considered as a last resort. Therefore, the effectiveness of the legislation at avoiding legal action should also be considered.
During the course of our deputations, there were a number of concerns that were raised. I have posed many amendments in an attempt to address those concerns. I guess they've all been voted down, but it perhaps points out the necessity to have a look at this and to have the review specified to see whether some of those concerns are valid or are causing hardship. There is concern that this bill may cause hardship in a number of sectors within our society, so our suggestion is that we simply incorporate a precise time for a review to re-examine how effective this whole thing has been and what hardships, if any, have been caused.
The Chair: Questions or comments regarding Mr Johnson's amendment?
Mr Lessard: Legislation is always subject to review and can be repealed or amended at any time. Even though in terms of the amendments the responsibility for administration of the act may lie with the Minister of Environment and Energy, as he's the minister who has introduced this bill, the administration of the act is really within the purview of the Environmental Commissioner. I'm not sure that reviewing this and advising the minister responsible would have much of an impact.
Mr David Johnson: I'm disappointed again, Mr Chairman. I thought the parliamentary assistant was going to suggest, "Make it two years instead of three years." I simply point out that it's always possible, but if there isn't some date or some period, and I guess it would be called a sunset clause, then these kinds of reviews always fall by the wayside and tend not to happen. I'll just leave it at that.
Mr Offer: On that point, what the parliamentary assistant said with respect to this particular amendment holds, but only to a point. Where you have a section specifying review of a particular piece of legislation in the act, then it becomes the will of the Legislature to review the legislation. Always, any government can call any particular piece of legislation for review at any time, but it is at its call. Sometimes, legislation which should be reviewed isn't reviewed. Where a section like this is put in legislative form, then it becomes the will and the dictate of the Legislature that a particular piece shall be reviewed.
Firstly, there is a safeguard mechanism attached to it. Secondly, it does not mean that while the legislation is reviewed, it is necessarily of no effect. The legislation can still proceed while the review is ongoing. It's just that it is taken away from the political sphere and put into the Legislature, and that's not necessarily a bad idea.
The Chair: Further questions or comments?
Mr Lessard: As part of the provisions of the bill, it is necessary to prepare a report and report to the Legislature. Therefore, it does come before the Legislature. I'm trying to think of examples of legislation that may have been passed by any government, Liberal or Tory, that has some sort of provision for a mandatory review, and I can't really think of any.
Mr Offer: What about farm stabilization? Is that coming back?
The Chair: Further questions or comments? Shall Mr Johnson's amendment, section 121.1, carry? All in favour? Opposed? Mr Johnson's amendment is lost.
Do you have another amendment, Mr Johnson, a section 121.2?
Mr David Johnson: I'm not aware that I do. Oh, yes, I know the one you're referring to. It was previously voted down.
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The Chair: Mr Lessard, section 122.
Mr Lessard: I move that subsection 122(1) of the bill be amended by adding the following clause:
"(j.1) specifying intervals at which reviews of regulations under subsection 21(1) shall occur;"
The explanation for this amendment is that it provides regulation-making authority to specify the interval at which ministries' instrument classification regulations are to be reviewed.
The Chair: Questions or comments? Shall Mr Lessard's amendment adding clause 122(1)(j.1) carry? Carried.
Mr Lessard: I move that clause 122(1)(n) of the bill be struck out and the following substituted:
"(n) respecting mediation under section 34, including but not limited to regulations respecting the costs of mediation, the confidentiality of representations made during mediation and the procedures to be followed in mediation;"
This amendment adds clarification to ensure that costs, confidentiality and procedures may be adequately addressed by regulation to provide for effective mediation.
The Chair: Questions or comments? Shall Mr Lessard's amendment to clause 122(1)(n) carry? Carried.
Further questions or comments to section 122? Shall section 122, as amended, carry? Carried.
Section 123, questions, comments or amendments? Shall section 123 carry? Lost. The section will be struck out.
Section 124.
Mr Lessard: I move that section 124 of the bill be amended by striking out "this act receives royal assent" wherever it appears and substituting "this section comes into force."
The explanation is that as this act comes into force on proclamation, the amendment to subsections (2) and (3) ensures that there can be no clash between the coming into force of provisions of the Environmental Bill of Rights and Bill 99, which is the bill with respect to the Limitations Act.
The Chair: Questions or comments? Shall Mr Lessard's amendment to subsection 124 carry? Carried.
Further questions or comments to section 124? Shall section 124, as amended, carry? Carried.
Shall sections 125 and 126 carry? Carried.
We have two amendments that have been stood down.
Mr Lessard: I'm going to ask that the amendment to the preamble be withdrawn and ask that the amendment with respect to section 2.1 be withdrawn as well.
The Chair: Shall the bill, as amended, carry? Carried.
Shall the bill be reported to the Legislature? Carried.
I would like to thank the committee for its cooperation. I'd especially like to thank the Hansard staff, the legal staff, the clerk and all others who've expressed an interest in this bill. I look forward to further debate on this bill on third reading in the Legislature.
The committee adjourned at 1656.