STANDING COMMITTEE ON GENERAL GOVERNMENT
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
ASSOCIATION OF MUNICIPALITIES OF ONTARIO
ONTARIO WASTE MANAGEMENT ASSOCIATION
ECO-COUNCIL OF PETERBOROUGH AREA
ONTARIO FARM ENVIRONMENTAL COALITION
ONTARIO FOREST INDUSTRIES ASSOCIATION
PICKERING AJAX CITIZENS TOGETHER FOR THE ENVIRONMENT
BRUCE PENINSULA ENVIRONMENT GROUP
ASSOCIATION OF CONSERVATION AUTHORITIES OF ONTARIO
LUNG ASSOCIATION, METRO TORONTO AND REGION
CONTENTS
Thursday 4 November 1993
Environmental Bill of Rights, 1993, Bill 26, Mr Wildman /
Charte des droits environnementaux de 1993, projet de loi 26, M. Wildman
Association of Municipalities of Ontario
Terry Mundell, vice-president and chair, environment policy committee
Gary Cousins, co-chair, environment policy committee
Chiefs of Ontario
Gordon Peters, regional chief
Doug Maracle, grand chief, Association of Iroquois and Allied Indians
Dan Miskokomon, chief, Walpole Island, and grand chief, Union of Ontario Indians
Nancy Kleer, legal counsel
Nelson Toulouse, special assistant, Union of Ontario Indians
Ontario Waste Management Association
Carl Lorusso, president
Terry Taylor, director, public affairs
Nancy Porteous-Koehle, vice-president
Eco-Council of Peterborough Area
Jean Greig, representative
Ontario Farm Environmental Coalition
Roger George, co-chair; president, Ontario Federation of Agriculture
Jeff Wilson, co-chair; chair, Agricultural Groups Concerned About Resources and the Environment
Terry Daynard, member; executive vice-president, Ontario Corn Producers' Association
Ontario Forest Industries Association
Marie Rauter, president
Robert Bennett
Pickering Ajax Citizens Together for the Environment
Bill Parish, past-president
Bruce Peninsula Environment Group
Siegfried Kleinau, secretary
Wildlands League
Tim Gray, executive director
Association of Conservation Authorities of Ontario
Richard Turkheim, executive director
Jill McCall, manager, planning and technical services
Lung Association, Metro Toronto and region
Cyrus Mavalwala, representative
STANDING COMMITTEE ON GENERAL GOVERNMENT
*Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)
*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
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
Offer, Steven (Mississauga North/-Nord L) for Mr Sorbara
Mathyssen, Irene (Middlesex ND) for Mr Morrow
Tilson, David (Dufferin-Peel PC) for Mr Arnott
Wiseman, Jim (Durham West/-Ouest ND) for Mr White
Clerk / Greffier: Carrozza, Franco
Also taking part / Autres participants et participantes:
Arnott, Ted (Wellington PC)
Ministry of Environment and Energy:
Lessard, Wayne, parliamentary assistant to the minister
Shaw, Bob, coordinator, Bill 26 implementation
Staff / Personnel: Luski, Lorraine, research officer, Legislative Research Service
STANDING COMMITTEE ON GENERAL GOVERNMENT
THURSDAY 4 NOVEMBER 1993
The committee met at 1001 in committee room 2.
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 Mike Brown): The standing committee on general government will come to order. The purpose of the committee meeting this morning is to listen to deputations on Bill 26, An Act respecting Environmental Rights in Ontario.
ASSOCIATION OF MUNICIPALITIES OF ONTARIO
The Chair: Our first presentation this morning will come from the Association of Municipalities of Ontario. If you would like to come forward, the committee has allocated 20 minutes for your presentation and always appreciates some time to ask some questions and have a conversation with you. Therefore, you may begin, and if you would, for the purposes of Hansard, introduce yourselves.
Mr Terry Mundell: Good morning and thank you very much for the opportunity to speak to the committee this morning. My name is Terry Mundell and I'm a reeve from the village of Erin, a councillor from the county of Wellington, a vice-president of the Association of Municipalities of Ontario, and the chair of the association's environment policy committee. With me today is the committee co-chair, Mr Gary Cousins, who's the planning director for the county of Wellington, and Kelly McGee, who's the solicitor for the region of Ottawa-Carleton.
I'd just like to take this opportunity to, first of all, thank the committee members very much for allowing AMO the opportunity to speak to you and allowing us the opportunity to, in fact, go to our board of directors and get approval for this report today which is being presented to you. It is indeed sanctioned by the AMO board and executive as we speak today.
The association's representatives during the summer met with staff from the ministries of Environment and Energy and Municipal Affairs to seek clarifications on the implications of the bill for municipalities. The association appreciates the cooperation of the ministries' staff.
We have a number of concerns with the bill, and we believe the implications of this legislation for municipalities remain unclear and reveal the need for further discussion and analysis. In its 1992 report, the Task Force on the Environmental Bill of Rights itself recognized this when it stated: "Municipalities were not represented at the task force meetings and their perspective on the application of the EBR to municipalities and the Planning Act would be an important one....The task force concluded that it would be difficult to apply the EBR to municipal instruments without hearing the specific views of representatives of municipalities."
In its response to the report of the task force, AMO requested that the ministry work with municipal representatives towards understanding the implications for the municipal sector and to evaluate the issues related to applying the EBR to municipal decisions. Nevertheless, the final bill was developed without consultation with municipalities.
AMO therefore is unable to support the passage of the EBR unless municipal concerns are addressed. As a matter of principle, we're not prepared to support legislation that does not clearly identify its effects on municipal government.
Along with this presentation we are providing you with a summary of the association's recommendations and amendments, and I understand that copies of AMO's response to Bill 26 have already been distributed to committee members.
The Chair: That's correct.
Mr Mundell: Our foremost concern with the bill is that its effects on municipal government are unknown and that it will introduce more uncertainty into municipal operations. We have raised as-yet-unanswered concerns about the definition of and proposals and classifications for instruments, the appeals process and the allocation of responsibilities in circumstances where municipalities have delegated authority from the province.
I would like to briefly highlight each one of these concerns and introduce the principal recommendations of the association.
Uncertainties about instruments and other pieces of legislation: Under the bill the proposed definition of "instrument" is potentially all-encompassing. "Instrument" is defined as "any document of legal effect issued under an act and includes a permit, licence, approval, authorization, direction or order issued under an act, but does not include a regulation." This definition is too broad. The existence and all functions of municipalities are governed by provincial acts. As statutory entities, municipalities cannot act unless authorized by an act. It is arguable then that all instruments issued under all acts governing municipalities fall within the EBR's proposed definition.
The bill, through the sweeping definition of "instrument," casts a huge net over all activities of provincial and municipal government. The bill then provides three ways out of the net: The activity has no significant environmental effect, the use of the minister's discretion and future regulation. All of these means of not coming under the legislation are uncertain and out of municipal control. Despite assurances from the task force and ministry staff that there is no intention to ensnare the daily operations of municipal government in the net, the legislation provides no assurances. The all-encompassing definition of "instrument" contains the potential to catch most municipal operations. AMO has raised questions as to whether grants, sewer line extensions, subdivision approvals, road projections and recycling facilities are instruments that are or will be subject to the legislation, but the association is not satisfied with the answers.
If all or most of the examples above are considered instruments, then this will have an impact on municipal infrastructure projects, which also rely on provincial funding programs and will be subject to the components of the EBR. For example, given that there is a relationship between the certificates of approval and provincial grants, the delays could cause uncertainty and the possibility of loss of provincial grants. They could be significantly affected by delays while appeals or inquiries are undertaken, especially when an appeal or inquiry is launched after a tender is awarded. Many municipal projects are seasonal in nature and cannot tolerate delays of several months.
The classification of instruments is crucial in determining notice, comment, potential hearing requirements and rights of appeal. A fair assessment will require technical expertise in waste management, water resources and air emissions.
However, the new sections 19 to 26 from the draft bill on classifying proposals for instruments are also not clear from a municipal standpoint. Prescribed instruments and their classification are left to future regulation with little guidance. It is not entirely clear what each classification means, and the rationale for creating these classification distinctions. We are not willing to leave our unanswered questions to the minister's discretion and future regulations. Therefore, AMO urges the provincial government to establish a process whereby municipalities participate in defining and prescribing instruments and developing the regulations which will establish the classification scheme for instruments that apply to pieces of legislation that govern the work of municipalities.
Furthermore, from reviewing the report of the task force and meetings with its chair in 1992, AMO understood that the Planning Act was not to be included under the Environment Bill of Rights except for provincial policies and regulations. The final bill, however, is ambiguous about the status of the Planning Act.
The provincial staff have informed AMO that the EBR may apply to the instruments issued under the Planning Act in 1998 and, in the interim period, the provincial government will decide on how to proceed with recommendations of the Sewell commission with regard to changes to the Planning Act. The province currently passes policy statements, usually environmentally related, under the authority of section 3 of the Planning Act, 1983. This is the key provincial instrument passed under the Planning Act. The status of this instrument must be addressed whether or not the EBR's principal components are applied to the Planning Act.
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Therefore, AMO has a second recommendation in this section: that the language of the bill be amended to recognize the existing public participation process already built into certain instrument approvals under the Planning Act, thereby avoiding duplication and ensuring an efficient government approvals process.
The appeals process: Provincial staff have assured AMO that the EBR would neither duplicate public participation processes under existing legislation nor require new hearings. However, the association has identified a certain lack of clarity about the appropriate appellate body under the bill.
The Ontario Municipal Board has broad appellate jurisdiction on land use and site plan control matters. It has the authority to act in the place of the Minister of Municipal Affairs in official plan policymaking.
It is AMO's understanding the purpose of section 38 of the EBR is to provide more residents of Ontario with access to appeal processes relating to class I or II instruments. However, the bill seems to create some confusion as to the designation and role of the appropriate appellate body.
Provincial staff have indicated that the intention in sections 38 through 48 was not to create any new rights of appeal. AMO recommends that the language of these sections, and in particular section 39, should be amended to more clearly reflect this goal; that is, a resident of Ontario who meets the requirements of section 38 is simply granted standing in an existing appeal procedure. In this way, the EBR creates no new right of appeal and therefore no new processes.
Delegated authority: The bill does not clearly define the scope of responsibility and accountability of those municipalities and local boards and agencies that have delegated authority from the province, primarily in relation to the operation of the electronic registry.
Under some provincial legislation, the minister may delegate certain authority to municipalities. While in some instances of delegated authority the daily administration of provincial responsibility is conducted at the municipal level, the final decision on a permit or approval rests with the responsible minister, yet the reviews of applications and recommendations concerning approvals come from the municipality.
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 ministry. AMO does not support the downloading of costs and the operation of the registry to municipalities.
The association recommends that the bill explicitly state that all responsibilities for the cost and the operation of the environmental registry, as well as any costs associated with the Environmental Bill of Rights as a whole, rest with the provincial government and not with the authorities to which provincial responsibilities have been delegated.
Applications for review and investigation: The association strongly supports the enhanced whistle-blower protection for employees provided in the EBR. However, AMO is concerned that the bill has not addressed the fact that some applications or complaints may be largely obstructive in nature. In recent years, at the local level there have been some cases where responsible municipal officials have been under investigation without knowing the source or the nature of the complaint. While being kept in the dark, the media hype around the controversy caused their reputations to suffer regardless of the outcome of the investigation.
The association recommends that the identity of those launching applications for review and investigation should become available upon request and furthermore that the minister should have wide discretion to withhold names and whether or not to proceed with the application.
In conclusion, I would like to reiterate that the association believes that the implications of this bill for municipalities remain unclear and reveal the need for further discussion and analysis. We are unable to support the passage of the EBR unless municipal concerns are addressed. Our foremost concern with the bill is that its effects on municipal government are unknown and that it will introduce more uncertainty into municipal operations. We are not willing to leave our unanswered questions to the minister's discretion in future regulations.
From the municipal standpoint, the effective implementation of this bill requires that municipalities be able to operate under a climate of certainty and predictability when carrying out planning and environmentally regulated activity.
The Environmental Bill of Rights must provide both effective procedures for public input and a reasonable time frame for government decision-making. In the implementation of this legislation, the provincial government should endeavour to avoid duplication with existing legislation. Such a duplication would be contrary to the spirit of streamlining in government today.
That concludes our presentation for today.
The Chair: Thank you very much. We have slightly less than three minutes per caucus.
Mr Steven Offer (Mississauga North): Thank you for your presentation. It's unfortunate that we have slightly less than three minutes per caucus to ask some questions on a wide-ranging presentation. I thank you for this. Certainly it's going to require some more investigation as to the real concerns that AMO has.
I'd like to ask you a question on this whole issue of instruments. I want to try to use an example, because I don't think we fully comprehend the importance of the instrument as you have outlined. If a municipality wants to construct a sewer or a watermain, it's going to have to get some sort of an approval or a certificate. Under this bill, any two residents can say, "We want you, Minister, to review the giving of that certificate or approval." A minister can say yes or no, but can say yes.
This, of course, the way I understand your presentation, puts the municipality in a problem as to timing, in a problem as to grants, in a problem as to seasonal construction. Is that in essence the concern that one has over the issue of instrument?
I have a related question. Bill 17 creates the Ontario sewer and watermain corporation, which will have some function in doing these things. I believe that the Ontario sewer and watermain corporation will be exempt from the Environmental Bill of Rights. I'd like to get the ministry to acknowledge that, firstly, and secondly, whether that might be another problem that the municipalities may have.
Mr Mundell: I guess the issue which we have with instruments is indeed that we're very concerned with timely decision-making and with municipalities being able to move on with infrastructure needs. I think everybody's aware that the new federal government has announced a $6-billion plan for infrastructure across this particular country. We're very concerned that the Environmental Bill of Rights may cause decision-making not to be done in a timely fashion and cause delays and cause some of the infrastructure needs across the province not to get addressed.
Mr Ted Arnott (Wellington): Thank you very much for your presentation. It was very insightful, and I think the government committee members have noted your concerns with respect to the lack of consultation that has surrounded this from day one as it affects municipalities, as well as the unknown impact that it will have on municipal decision-making. I just want to thank you very much for your insightful comments and turn it over to my colleague.
Mr David Johnson (Don Mills): I was just going to say a few words. I think there's something that later maybe the parliamentary assistant may wish to respond to in terms of the lack of opportunity for AMO to be involved in this process. I really can't believe that we'd go through such an important process, affecting all aspects of life in the province of Ontario, and not have one of the key organizations in this province of Ontario, representing the municipalities, involved in the process. I think the government has a lot to answer for in that regard.
One hardly knows where to start. I think you've fairly and accurately catalogued all the various aspects of municipal life that could be affected: the infrastructure, the planning. I can think of sewer projects, storm sewer projects for example, in Metropolitan Toronto that might be held up. All you need are two people who have some variance of opinion with regard to a storm sewer project that has to be implemented at a certain time of the season. I can think of a road project near a lake, for example. If there were a couple of people who disputed the exact route of the thing, they could hold it up. The list is almost endless. Where do you think the greatest impact is going to be on municipalities?
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Mr Mundell: I think the greatest impact on municipalities is the certainty in our day-to-day life and our day-to-day operations. Right now the bill is too ambiguous to allow municipalities to understand the rules of the game and how we play by the rules. That's really our concern. We need the bill tightened up. Believe me, we're not opposed to the intention of the Environmental Bill of Rights; what we're opposed to is the ambiguity in the bill itself and the lack of understanding from a municipal perspective of how we're going to operate in our day-to-day business. That's the largest concern.
Mr David Johnson: There need to be fixed guidelines so you know where you stand.
Mr Mundell: Absolutely.
Mr David Johnson: That's what you're saying, that's fair and that's before it's implemented.
Mrs Irene Mathyssen (Middlesex): I would just like a clarification on a couple of things. This issue about ambiguity: It's my understanding that draft regulations were issued in early August and will be finalized in 1994. I wonder if you've actually begun the process of commenting on these draft regulations.
Secondly, it's also my understanding that MMA staff has advised you, AMO, that you will be consulted in the development of MMA's classification regulations. That is ongoing.
Thirdly, in your brief, you indicated that you had concerns because EPA may apply to instruments issued under the Planning Act in 1998. That's five years away and it would seem to me that this gives you a very clear time frame in which to respond or make a judgement and certainly to communicate with MMA.
Mr Mundell: I guess I'll take the last one first, the concerns about the particular Planning Act in 1998. We're very concerned that, if this bill goes into legislation, in fact we won't have the opportunity in all likelihood. It's far more difficult to change legislation than it is to be able to get to the legislation and make the changes before the legislation's in place and that's in fact what we're trying to do today. We're trying to be proactive instead of reactive to that particular situation.
I'm wondering if one of my counterparts would like to address the other two particular issues.
Mr Gary Cousins: I think we'd probably like some more clarity as to what the rules are or the principles under which the regulations will be formulated. We have seen some of the early draft regulations for the Ministry of Environment only, but we haven't seen them for other ministries. We can have input into those, but we don't think they go through the same level of scrutiny as a piece of legislation.
Quite frankly, with respect to the Planning Act, we would prefer to see it dealt with in the same way that the Environmental Assessment Act is being dealt with under the legislation. Both pieces of legislation have full public participation programs involved with them and we think the Planning Act should be given the same exemption as the Environmental Assessment Act.
The Chair: Thank you very much for appearing this morning. Your presentation has been most helpful to the committee.
Mr Mundell: Thank you very much and thanks to the committee members for their time.
The Chair: The next presentation will come from the Chiefs of Ontario.
Interjections
Mrs Mathyssen: You can't have it both ways.
Interjections
Mr David Tilson (Dufferin-Peel): Twenty minutes for AMO to give a presentation.
CHIEFS OF ONTARIO
The Chair: We have the Chiefs of Ontario, if you would like to come up and take a seat by the microphones. I'd like to welcome you to the committee this morning.
Mr Gordon Peters: Good morning. My name is Gordon Peters. I'm the regional chief of the Chiefs of Ontario.
Mr Doug Maracle: Doug Maracle, grand chief for the Association of Iroquois and Allied Indians.
Mr Dan Miskokomon: Good morning. Dan Miskokomon, chief, Walpole Island.
Ms Nancy Kleer: Nancy Kleer, Morris/Rose/Ledgett for Chiefs of Ontario.
Mr Nelson Toulouse: Good morning. Nelson Toulouse, with the Union of Ontario Indians.
Mr Peters: We had asked for time on the agenda to be able to outline some of the specifics that we're dealing with, but what I also wanted to do this morning was talk to you very quickly in terms of where we're at and then I would like these other gentlemen to speak. If we get into really technical questions in terms of the process, we also have with us Nancy Kleer, who is our legal representative in these proceedings.
At this stage right now, as you know, we're trying as much as possible and where we're able to deal with the implementation of the Statement of Political Relationship and how we deal with the protection and the enhancement of our rights within this territory known as Ontario. Through the course of that and the development of the Environmental Bill of Rights, we've had very little contact and we've not played any significant role in terms of what has been decided to this point.
It's only been in the last maybe six months that we've had any significant role to play. We made a proposal to the Environment ministry and asked very specifically how our rights were going to be protected and how we were going to deal with the treaty areas and our traditional lands with respect to the environment.
I think one thing is clear, that we all have a vested interest in maintaining and protecting the environment. From our perspective there are many ways to be able to do that. I think the message that we were trying to bring across to people is that first and foremost we were talking about our relationship in terms of the government, the government relationship, and secondly, we were trying to remind people that we had environmental practices and a way of life long before anybody decided, in the early 1970s, that there was an environmental crisis in this country and in fact in North America.
When we talk about the environment, we're talking about something that goes way beyond simply dealing with a piece of legislation and trying to maintain some harmony with people who are violating the environment, but in fact we're talking about how we affect the long term in being able to find people who are going to live a life dealing with the environmental issues.
In the last couple of weeks we've had some very strong negotiations. We met with Mr Wildman in the early part of October, I guess it was, on the particular issues that we had. We asked him very clearly to present to us a proposal and we said there's no point in us talking back and forth if we don't have something concrete on the table.
He did present us with a proposal shortly after that. We have responded with a counterproposal about what we feel are the best ways of being able to protect our particular areas, and at this point in time we're very close to achieving what we believe is a reasonable agreement in terms of the long-term protection of our lands.
We have at this point a couple of clauses which we've come to an agreement on. If you'd like, we'll read you those clauses, in particular in terms of the issues of where we're at.
In terms of the preamble, we said this clause was something we would deal with:
"First nations and other aboriginal peoples are stewards of the land, are part of the environment, have a special responsibility given to them by the Creator to protect, conserve and restore the environment for the benefit of present and future generations and have their rights recognized and affirmed by section 35 of the Constitution Act."
Then we said that we would deal with something that would resemble what has been commonly called a non-derogation clause, but in fact if we were dealing with the protection, we want it to go beyond that and start talking about the actual implementation. So what we talked about in this next section was how we were going to be able to deal with that implementation.
We have differences in terms of where this clause begins, but it reads:
"Subject to the extent of provincial jurisdiction in relation to 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."
We believe that those proposed clauses are strong enough to represent the desires that we have in being able to deal with our territories, which means our treaties and our traditional lands. They also mean that there will be some implementation in terms of how the actual bill itself will be implemented.
We made provisions as well for the statement of environmental values. We said at this point in time that we didn't want to have our views integrated into the environmental values that would be developed by other ministries.
We said that over a period of time we would develop those environmental values as a statement and we would figure out at that point, through the negotiations, exactly how they were going to mesh and what would be required.
We also agreed that we would drop other sections, where we were dealing with sections 14, 20, 67, 77 and 90. We did that based on the assumption and the commitment that there was going to be a strong preamble and a strong section 10 that we were going to deal with about how we were going to be able to advance those particular protections.
We talked and we discussed briefly about a joint forum that I guess would help us to understand how these things were going to be implemented and to find a way for us to be able to interact. I think what we've said at this point is that if we are successful in dealing with the first two items, in terms of the preamble and the implementation clause, then all those other items will fall into line, and we're open to discussions and negotiations about how those could actually be done.
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Just in terms of the overall comments I have, in dealing with those kinds of ideas that we've presented and that we've advanced in the negotiations, we believe those things are going to give us the kind of protection we need to deal with our special responsibility in terms of the environment and the land questions we have. We believe it's the beginning of a changing relationship.
We've tried hard to implement the SPR on a government-to-government basis. We've found it very difficult to advance those issues for a large number of reasons, including the fact that the federal government wasn't involved in our discussions. We find ourselves today at a point where we believe that since this is the direction that's being taken by the provincial government -- it's provincial legislation -- that's where the statement of political relations is expressly directed to, those areas of the provincial government that they can work with. I believe we can find a way to be able to have a very meaningful relationship in terms of this environmental bill, if in fact we do come to an agreement on those clauses I've outlined.
With that, I'd ask other speakers -- I'll ask Doug Maracle -- to speak to some particular issues they have because, as I said, certainly the process leading up to where we are now has not been one that we've agreed with and that we've been part of, and we'd like to be able to address some of those issues as well.
Mr Maracle: This is following on from Chief Peters in relation to the SPR. The SPR I think to everyone was a good foresight, and at the same time I think everyone was under the understanding, or at least a degree of feeling, that this was going to make things better.
At this point, on this particular document, I think it's pushing people apart for the reason of the process that was followed. There was very little time for consultation. In fact, the consultation process, as we understand it and as it has been sent through notification to both the federal and provincial governments, was not paid any time, any consideration.
As we've heard, the approximately six-month time line that we've had to deal with this is totally insufficient for our communities from the aspect of certainly not having the expertise within the organization or within our communities to interpret the intricacies of such a document and how it was going to affect our communities, let alone, without understanding it, being expected to have some input into it in a short period of time. For that consideration to be overlooked is unsatisfactory to the Association of Iroquois and Allied Indians, absolutely and totally unacceptable.
We have joined the meetings that took place, and my view has been consistently that without that absolute process of meaningful consultation, it is pushing the governments away in opposite directions rather than trying to bring us -- and more pointedly, I would think the first major issue that has come along of any magnitude since the SPR, something that is going to affect both governments, all governments, all people, should have been given more consideration. But instead, to try to accommodate the issue at hand, we participated as an organization and we did have some input. We are still looking for that consultation.
For the communities I represent, certainly there are some aspects of difficulty in communication with some of the elders in the communities, but I would think that in some other communities that others can speak to, over a period of time such as that, the degree of consultation, the lack of time even to have an interpretation, is totally insufficient. We do not accept the expediency that this thing has taken with our involvement.
We recognize that there was an invitation a while ago. At the same time, it was unclear what it was about; it was unclear what we were supposed to do with it. All we knew was that we had the feeling that this was something that was going to swallow us up whether we wanted it or not. I'm sorry to say, gentlemen and lady, that for the Association of Iroquois and Allied Indians, that's where we feel we're at.
Our organizations were not consulted in the proper manner but were in the process. We have been involved only to come to the table to try to find out what is happening. With the direction of Chief Peters, we are certainly behind him in his endeavours, as he had mentioned earlier, to try to bring this to a conclusion, but it has to be brought to a satisfactory conclusion. As late as last Friday and Saturday at the annual board meeting of the Association of Iroquois and Allied Indians, there was still some difficulty in the acceptance of this, not in the direction that the Chiefs of Ontario is going, but the direction that the provincial government is going.
Mr Miskokomon: Bonjour Chairman, members, guests and supporting chiefs. Yesterday, we talked about the SPR and Walpole Island as a signatory to the SPR. In Walpole Island, our members consider us the front line. When we say "front line," we're stressed out by pollution from the air and water, as well as the farm lands, with various chemicals that grow big crops.
What's happening recently is that a lot of things are affecting our territory, such as zebra mussels and purple loosestrife. It's not the blame of North America's boats visiting our territory and opening their ballast and the end result: danger to our environment. Also, the water is a very serious problem to us, with our intakes right from the St Clair River.
Also, in mentioning it, just to give you a feel for the sensitivity that we have when we live in a day-to-day stressful environment, Walpole is pursuing this Environmental Bill of Rights to incorporate the first nation people's concerns. Again, with the time frame involved, there weren't adequate consultation and approval mechanisms by various organizations in Ontario. That's not the fault of anybody at this point; it's just a matter of getting a bill that'll be beneficial to all parties.
Let's keep in mind that we're here to coexist and comanage our environment. Our people are very wise on the environment and how to protect Mother Earth. We'd like to provide our resources in developing the Environmental Bill of Rights. I guess the inadequacy of the time frame didn't allow us the time to come to approval in Ontario from our aboriginal leaders and also the communities we represent.
I went to an IJC meeting in Windsor and talked about creating laws to put chief executive officers and presidents in jail for their subordinates' activities. That's a very hard statement, but if you put the top dogs in prison, they undertake to account for the activities of their subordinates, so zero discharges in the rivers as well as the Great Lakes system is what we're pursuing.
Last summer, we went to Sault Ste Marie. We walked on the boardwalk and we were talking about zero discharge. Up there, there's human faecal matter still floating into the river and the Great Lakes system. That's a definite problem.
With the time at hand, we need more involvement with our aboriginal leaders to come up with a consensus on how to protect our environment. Again, the key phrase is "coexist and comanage our environment." Meegwetch.
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Mr Toulouse: Good morning, Chairman Mike Brown and members. My name is Nelson Toulouse and I'm with the Union of Ontario Indians. What I basically have to talk about is maybe a certain ideology or philosophy. It really is sad, because our philosophies weren't really incorporated into the proposed bill on the environment. But I do congratulate you. I think one of the things that institutions and governments have the ability to do is to control and manage people. We can certainly never begin to think that we can manage or control the environment, and I speak of that personally.
Going back in history, one of the sad things, and this is going back quite a ways, is that before the arrival of Europeans we did have environmental laws in North America. I guess our environmental laws were a way of life. When I looked at the document that's been introduced in the House, it's really unfortunate, and at this stage I'm not sure if you can do anything about it, that one of the principles that was not adopted was respect.
With us, in our history, life sustained a balance. We're part of the environment, and to strive for a natural balance is where you control man, but to us the underlying principle behind all that was based on respect. It is really unfortunate that those kinds of things were not incorporated into the document, especially in the preamble, because the preamble basically sets out what the document should do in terms of the law. That is really unfortunate.
One of the things I would like to share with you is that, in terms of being aboriginal-specific, we were taught that we were given certain gifts, and when Gord talked about our inclusion in the preamble he talked about that these were given to us by the Creator. But the other thing that needs to be understood is that we have to share that with everyone. In terms of the environment, the philosophies that we're trying to basically revive even in our communities, probably as I speak, are the things we need to share with you, because you are the makers of the laws. I think that if the fundamental basis of the law is based on respect, we can go a long way to managing people. You're in the business of managing people; unfortunately, I'm not.
With that, I don't know what kind of consideration those can be given, but for the record, I have to say that. Meegwetch.
The Chair: Meegwetch, Nelson. Thank you very much for appearing this morning. Unfortunately, time constraints mean we have to move on to the next presentation, but I thank you for yours and I'm sure the committee will carefully consider what's been said today.
ONTARIO WASTE MANAGEMENT ASSOCIATION
The Chair: The next presentation is from the Ontario Waste Management Association, Mr Taylor.
The Vice-Chair (Mr Hans Daigeler): You've been before us several times, so you know what the system's like.
Mr Carl Lorusso: My name is Carl Lorusso. I'm the president of the Ontario Waste Management Association. Joining me here today to also represent the association is our vice-president, Nancy Porteous-Koehle, and our director of public affairs, Terry Taylor.
The Ontario Waste Management Association is pleased to submit these comments on Bill 26, An Act respecting Environmental Rights in Ontario.
We are extremely grateful that the committee amended its agenda so that we now have the opportunity to make our submission in person. While a written submission also enables us to express our opinions, it does not allow for sufficient interaction between us. The subject matter of Bill 26 is complex and we feel it is best addressed in person.
That said, we hope the comments we make today will prompt your questions and that our answers will assist you in your deliberations.
First, we would like to provide some general comments and then we will suggest some specific amendments to the bill which we feel will enhance its acceptability and its effectiveness.
Citizens of Ontario should be able to participate in the decision-making process where those decisions have a significant environmental impact. However, there already exists an extensive and effective system of laws, regulations and government policies that particularly apply to the waste management industry. Over time, the public interest has been well protected by this system. Present government policies ensure that no decision is made on a waste management company's application for an instrument until public input is sought and considered.
With respect to the waste management industry, the Environmental Bill of Rights will not substantially enhance the public's ability to participate in government decisions that relate to the industry. However, unless this bill is amended, tremendous uncertainty and a potentially unmanageable permitting process for the waste management industry will result. The bill in its present form will also discourage future investment and will become a barrier to new job creation.
The OWMA has the following observations to make about the bill as it stands now:
We believe the designated ministries should develop and present their statements of environmental values in draft form prior to the passage of this bill. We believe the public interest would be better served if these statements were available for scrutiny and comment at the same time as the proposed legislation.
We are concerned that, with respect to parts IV and V, a person targeted by an application for either review or investigation apparently will not be able to learn the identity of his or her accuser. This is a provision that jealous and unscrupulous adversaries can exploit if they want to cause malicious mischief or otherwise disrupt their competitors' business operations. Surely you would consider these to be unintended consequences of the legislation and would want to prevent them from occurring. Many would argue that the anonymity granted to an accuser is a violation of a basic right in the courts.
We are concerned that the right to appeal a minister's decision as described in part II is too liberal. We feel the public's right to question a minister's decision should have some limitation to prevent an endless appeal process.
In section 84, we are concerned with the use of the words "imminent," 84(1), and "reasonable," 84(2)(b). How can one foretell the "imminent" future, even given a balance of probabilities? In addition, won't any response that denies an application for investigation be judged "unreasonable" by the applicant? In the absence of much-needed clarification, the usage of these words in the bill is imprecise.
We hope this is not another example of what has become an all too common occurrence of legislators deliberately passing vague laws that are a way of avoiding political controversy, relying instead upon the courts to give definition and substance to weak legislation. You should take the necessary steps now to ensure that the courts are not overburdened because of the use of such indistinct terms.
Throughout the bill there are repeated references to ministerial discretion and how the use of that discretion will determine the outcome of many applications contemplated by the legislation. Our concern is not that the minister will have this discretion, but rather that the minister will not use it appropriately because of the potential political backlash that may ensue if a decision is judged to be anti-environment.
The following comments refer specifically to the waste management industry in Ontario:
Our industry is already heavily regulated, primarily under the Environmental Protection Act and the Environmental Assessment Act. Every business operation in the waste management industry must have appropriate certificates of approval. This applies equally to haulers and processors and to the operators of transfer stations, material recovery facilities, composting sites and landfills.
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For the purposes of this submission, we suggest that proposed disposal facilities, which in themselves are the source of much public concern, be distinguished from all other waste management system facilities. No new landfill will ever be established in Ontario without first being the subject of a thorough public hearing.
We are not necessarily concerned about the impact of Bill 26 on landfills. What we are very concerned about is how this bill will affect our industry's attempts to obtain and retain certificates of approval for other types of waste management facilities, especially diversion facilities.
Even though there is at present no legal requirement to do so, the historical evidence confirms that current ministry policy is to routinely invite public and municipal involvement when new applications for certificates of approval are considered, either under the Environmental Protection Act or the Environmental Assessment Act.
In the case of an application for a new diversion facility, MOEE staff invite comment from the municipalities in which the site is to be located. In addition, the Planning Act provides for public consultation when approval of a proposed diversion facility requires either rezoning, site approval or official plan amendments.
It is our position that making waste management industry certificate of approval applications subject to the provisions of Bill 26 would only result in overregulation. Current ministry practices already recognize the public's right to participate and comment. Bill 26 would only prolong and complicate an already arduous and costly process.
Bill 26 also has some serious implications to those who have already been judged by the system and who have successfully obtained a certificate. In so doing, a waste management company commits a substantial amount of time and money as it proceeds through the approval process. Invariably, this process involves ample opportunity for public input and consultation.
Once a certificate has been received, its holder should be confident that the ministry's decision has some substance to it. There should be the assurance that the decision to grant the certificate will not always be subject to a public demand for review and possible revocation or alteration. It should be sufficient for a certificate holder to only go through the process once.
These certificates generally contain numerous conditions of operation which guarantee the protection of the environment and the public interest. The MOEE investigations and enforcement branch is well known for its vigilance in monitoring compliance with the conditions described in the certificates.
Indeed, if Bill 26 enables people to request frivolous reviews and investigations of existing certificated operations, it will deter further investment and employment in our industry. Potential investors in the private sector will be reluctant to invest in new waste management facilities if it seems that the approvals and review process is never-ending. Bill 26 creates such uncertainty. It does not send positive signals to investors.
As the bill now stands, achieving the province's goals for waste diversion will also be imperilled. During the past few years, the province has been anxious to expedite the approval of new 3Rs facilities. These are the types of facilities that you contemplated when the permit-by-rule regulations were promulgated.
Should these same facilities, which all require certificates of approval, be subject to Bill 26, their startup would be further delayed. In a worst-case scenario, it could mean that these facilities would never get established. That means fewer jobs and fewer facilities to help achieve the desired target of waste diversion from landfill. We think that Bill 26 would work at cross-purposes with the new 3Rs regulations. This would be especially true if objections to the establishment of such new facilities were based on socioeconomic reasons rather than environmental concerns.
Meeting waste diversion goals would be further hampered if the current law-abiding practitioners in the waste management industry are forced to withdraw from the marketplace because of the prohibitive defence costs associated with actions contemplated in part VI, especially if these actions are specious.
Last week the delegation from Laidlaw suggested that the definition of "instrument" in part I be redrafted to exclude those instruments that apply specifically to the waste management industry. For example, such a new definition could read:
"instrument," except as otherwise provided under clause 122(1)(c), means any document of legal effect issued under an act and includes a permit, approval, authorization, direction or order issued under an act, but does not include:
(1) a regulation; or
(2) an approval obtained under the provision of the Environmental Protection Act, the Environmental Assessment Act or the Ontario Water Resources Act for a waste disposal site or a waste management system, as these terms are defined under the Environmental Protection Act, which for greater certainty can include a transfer station, waste processing facility, material recovery facility, composting facility, 3Rs facility or a landfill.
If the committee chooses not to redefine "instrument," then we propose in the alternative that the following amendments be made to Bill 26:
(1) Add to subsection 63(2): "(c) a review of an instrument made under part V of the Environmental Protection Act" and
(2) Add to subsection 32(1): "(c) a decision made under part V of the Environmental Protection Act."
The latter two amendments will provide at least some measure of certainty to companies that have already successfully completed the application and approvals process and that have received their certificates of approval.
While we would prefer the new definition of "instrument," the alternative amendments are the minimum that are needed to make the bill workable within the waste management industry. The OWMA notes there is a perceived need for portions of this legislation. However, we cannot agree with excessive regulation, which will be the inevitable result if certificates of approval granted under part V of the Environmental Protection Act are not exempted from Bill 26.
If you have any questions, we'd be pleased to answer them.
Mr Tilson: Thank you, sir. I appreciate many of your comments that you have made. Your presentation is most useful, certainly, in our concern with the government in developing the environmental bill as it is.
The one question I have, and it has come up before, is the new level of bureaucracy that's going to be created, not only the potential slowing down of the economy but the slowing down of the improvement of our environment, and you've referred to this, whether it be in certificates of approval or other examples. Can you be a little bit more specific as to the fears that you have, perhaps creating hypothetical examples that you fear this bill will create?
Mr Lorusso: I'll give you a past moment on that. The private waste management industry, as most people here know, has been given a mandate of diversion targets, those diversion targets of 50% by the year 2000. It seems like every step we take forward, we find one more barrier that prevents us from exceeding ahead quicker than we want to.
Every step of the way there's one more barrier, and I know it's coming to an end, but I guess we're a little disappointed in this because it really does directly affect the ability of opening and maintaining the certificates of recycling facilities. They can be taken away by means of non-environmental issues. By the time it's proven that they're not non-environmental, the whole perception of the company opening that facility will be lost. They'll lose interest and they'll lose the initiative to go ahead with it with the fear of that in the background.
Terry, you might be able to give some further examples of how that might affect it.
Mr Terry Taylor: I think a good example is, if you go back to when Waste Management was going to establish its recycling facility down in Etobicoke-Lakeshore on New Toronto Street, there was a situation where a company was prepared to invest something like $35 million in a new facility that was going to provide 60 new jobs in the area. They went through the hearings process and they received their certificate of approval.
Had the Environmental Bill of Rights been in effect back then, you could have seen where even though it would have been politically acceptable to establish that facility, and there would have been economic benefits to having that facility established, the locals could have gone through an endless review process and thrown up all sorts of barriers to having that thing established.
You would have ended up, as what will happen if this thing happens and it isn't changed, that potentially new facilities, potentially new jobs will just be left wanting because companies aren't prepared to go through the rigmarole of having their decisions to invest constantly reviewed and questioned.
Mrs Mathyssen: I would like to pursue that, because I think there's a misunderstanding here. It's very clear under the Waste Management Act that any types of facilities with regard to the 3Rs and waste diversion are established under permit by rules. Very clearly, they're not part of the prescribed act. In addition to that, under the EBR any frivolous complaints are not entertained by the commissioner, so I'm confused that you would be concerned about this. Very clearly, the objective here is to establish and make waste diversion part of our waste management culture.
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Mr Taylor: Ms Mathyssen, our problem is that we're a little concerned that, as many other terms in the act are a little ambiguous, the term "frivolous" might be ambiguous too. I go back to the example of the waste management facility on New Toronto Street. That just happens to have been built at the time when the MPP from Etobicoke-Lakeshore was the Minister of the Environment. You can appreciate the horns of the dilemma the minister could have been on if, on the one hand, it was a good idea to put that facility in there with the jobs and the investment it meant and, on the other hand, her own constituents said to her, "We don't think this facility should come here." Is the minister going to judge that to be a frivolous complaint? That's what we're trying to get around: not putting ministers in that impossible position of having to balance their ministerial responsibilities against their electorate responsibilities.
Mr Lorusso: You had a comment too, Nancy.
Ms Nancy Porteous-Koehle: Yes. All material recovery facilities are not under permit by rule. There are a number of MRFs that have to go through the part V hearing. The classifications for a MRF are different; we have different types of MRFs out there.
The other thing with MRF and MRF procedures and processing of materials is that MRFs are a brand-new animal and everybody comes in thinking they know how this animal has to behave. When you go for a permit, you go through for your instrument, you have to list a bunch of things you're going to do at that MRF, and that becomes part of your instrument and you must conform to that.
Now, say, two years into the processing procedure you find out that this piece of equipment isn't going to work or that we can do it better with another process. In order for you to bring that process into the facility, you then have to go back to the ministry and ask for some sort of relief from your instrument. You go back in and you ask to amend your certificate. That then opens that certificate up to your Bill 26. If somebody didn't like your facility back two years ago or four years ago when you opened your facility, this will allow them to come forward again and start you through a very arduous legal process, if in fact it's not judged to be frivolous, which I find is a real political word.
Mr Offer: Thank you for your presentation. On the last question and answer dealing with the issue of instruments and how they may be amended in the example of MRFs is exactly the question I was going to ask. Let me try to be clear for myself on this matter.
A corporation or an individual applies for a certificate and that certificate falls under the definition of an "instrument" under Bill 26, but to get that certificate or instrument you have complied and been approved by the ministry, so you've done all the things that the ministry, the minister, the bureaucrats, the law say you have to do. Then someone says under section 61, "We want that reviewed because we believe the government was wrong in saying yes to you," even though you've agreed and complied with all of the laws. Frivolous applications are totally out of the issue here. It's not a frivolous application, because it falls under section 61. What position does that put you in?
Mr Taylor: Double jeopardy.
Ms Porteous-Koehle: We're back where we started.
Mr Taylor: It's a never-ending process.
Mr Offer: The question is, how do you combat a review when you have received the certificate by complying with all existing laws?
Mr Lorusso: We agree with you 100%; it's exactly the way it comes out. What do you do? In simple terms, you never repeat what you've just done. That's the unfortunate thing. If it comes to a review and you've already spent the money and you've gone through the procedures that were outlined that were according to the law you were behaving to and were applying to, then you will not repeat it. The industry in itself will not make the same mistake twice. It will not open more facilities if that happens one time. They can't afford it.
The Chair: Thank you for appearing today. We will certainly take your comments into consideration during the clause-by-clause review.
ECO-COUNCIL OF PETERBOROUGH AREA
The Chair: The Eco-Council of Peterborough Area, Jean Greig. Good morning. You've been here for a few minutes; you understand how the committee operates.
Ms Jean Greig: Good morning to everybody, Mr Chair, members of the committee and guests. I'm really happy to be here to speak to the issue of the Environmental Bill of Rights. My name's Jean Greig and I'm here representing the Eco-Council of Peterborough Area.
Just a bit of background: My personal background is as an aquatic ecologist with some specialization in toxic contamination, but I've worked as both a paid employee and a volunteer on a variety of issues that range from water quality, water efficiency, natural areas protection, land use planning and so forth.
The eco-council is a Peterborough-based organization which acts as an umbrella group for smaller local environmental organizations in the area. We try to act as a network among those groups; we try to coordinate joint action on issues of common interest. The local groups that are part of our constituency, so to speak, are often working on more specific local problems, but the eco-council has tended in the past and now to focus on broader issues and more long-term issues, including things like regional water quality, natural areas protection, planning for transportation alternatives and land use planning in general.
We've also participated in a number of public consultation processes on behalf of environmental groups of the area. Those include things like development of our county plan, we participated in the Sewell commission process, and we've also been following the Environmental Bill of Rights process. In fact, we submitted a brief just over a year ago in response to the Report of the Task Force on the Ontario Environmental Bill of Rights. We've had a long-standing interest in this process and we're happy to be back to make more comments.
I'll say straight off that in general we're strongly in support of the principles embodied in the Environmental Bill of Rights and, with a few minor exceptions, we're in support of the structure of Bill 26.
I wanted to comment on how the bill might be useful to us as an environmental group. I think that will change as we become more familiar with the bill and its provisions and we become better versed in how we actually can use it and what the further implications of the bill are. I can see our local constituent groups using some of the more specific provisions such as requests for investigation or access to the courts. The eco-council itself, because we're dealing with broader land use type of issues, will probably, at least at first, be affected mostly by the public participation aspects of the bill.
Let me give you some examples. Two things I picked out, just going through the information we have and going through the bill, were the processes such as the development of statements of environmental values that the ministries will be required to go through and policy development and in some cases policy review.
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First of all, the statement of environmental values: We recognize that this is not going to eliminate all conflict between activities of the various ministries caught under the bill and protection of the environment, but we think it's a great process for those ministries to have to go through, in some cases for the very first time, to look at their activities and how they actually impact upon the environment and how they mesh with the goal of protecting environmental health. We're happy that this process will have to take place under the bill, and we would be very eager to monitor that process and to participate in that process by providing our input to the various different statements.
It's our feeling that by including comment from the public in general and from environmental groups specifically there's going to be a greater integrity of those statements of environmental value, that they'll reflect a broader range of opinions and a broader range of information than would be done if the process were more closed.
Similarly with policy developments, we have been involved, for example, as I stated, in the process of the Sewell commission. Our group has a particular interest in looking at the policies that may be developed out of that commission if its recommendations are implemented. We really appreciate that under this bill we would have the opportunity to participate directly and give our input into policies that are developed, just for example, out of the Sewell commission report. Again, we feel it's really important that this public input is there and that we have a right to that public input, that it will increase the integrity of the policies that are eventually developed.
One aspect of the bill we really like is the fact that there is a responsibility on the part of the ministers to respond directly to the comments made by different people or organizations that participate in the development, whether it's statements of environmental values or other proposals, so we know that our concerns have been addressed, so we have some explanation of why changes were or weren't made and have the opportunity to comment further.
There are other ways we would use the bill, I'm sure, but these are the two I focused on. I want to emphasize that in order to participate in the way I've outlined, we will undoubtedly rely very heavily on the proposed environmental registry. It's a way of inexpensively getting access to the information and the proposals and knowing what we can do and what we can comment on. We strongly support the establishment of such a registry.
We do have a concern about the registry that was stated in our earlier brief, and it's still a concern. It may have been expressed by others, but I think it deserves emphasis again. The language that's used on that registry, the notices of various proposals, needs to be simple and direct and in layperson's terms. It can be a very useful tool if we understand the information that's there, but if the language is geared towards specialists and lawyers, it's not going to help us at all. Well, it's certainly not going to help us as much; I shouldn't say "at all." It would be a lot more difficult.
Another minor concern we have with the bill is the minimum 30-day allowance for public input to proposals such as the statements of environmental values, new policy development and other proposals. We recognize that this is a minimum allowance and will not always be and may not often be applied, but our concern is that there will be cases where the minimum will be applied and the result of that will be a limitation of our ability to participate; not only ours but of many grass-roots groups.
As you undoubtedly know, most grass-roots environmental organizations and citizen groups in general that may have an interest in participating in these processes may only meet once a month, once every 30 days or less. They are often volunteer-based; they're often people who work full-time at another job and are cramming in citizen involvement in their evening hours, and to get together to get notification, gather the information, pass it around, get approval from the group as a whole and make a proposal in a 30-day time limit to something that may be fairly important could be extremely difficult. I can say it probably would be extremely difficult in most cases, especially if it's a technical document that requires some fairly substantial review.
We have a suggestion. I don't want to try and put it in legalese by any means, but perhaps the minimum allowable time for a response should be extended to 60 days. Alternatively, what we suggested in our earlier brief was that a provision be made for groups to file a notice of intention to respond within the 30-day period, and then give a reasonable amount of additional time, maybe another 30 days, for actual submission of a response. We really would like to emphasize that responding in 30 days is going to be very, very difficult for a lot of grass-roots groups. So either that minimum should almost never be applied or we should think about really taking care of it and extending that time frame.
In spite of some minor concerns about the bill, I want to emphasize again that, in general, we strongly support Bill 26. We think it's a long-needed step and we recognize that it's not a cure-all. It doesn't deal with everything. There are things that we think still need to be dealt with in Ontario law, but as a first step to ensuring that there is protection of the right to a healthy environment and the right for the public to participate in decisions that are made that affect the environment in which we live, we think it's a really positive step.
I want to thank you for the opportunity to be able to come here and make that statement before you and clarify some of our concerns. I'll be happy to attempt to answer any questions that you might have.
Mr Jim Wiseman (Durham West): It's unfortunate that the previous group has left, but we've heard from a number of environmental groups that have indicated that they feel that through the registry and through the public participation process and the free access to information, this will in fact reduce the amount of frivolous legal actions or stalling techniques, because one of the things that frustrates groups now is that they don't have the information and, in the absence of information, they have to do a lot of speculating. In the context of doing all the speculating, they may go down roads that make them somewhat more cynical and may feel there is a conspiracy around -- "If they're not telling us, why aren't they telling us?"
Ms Greig: Yes, that happens all the time, "Why aren't they telling us?" I haven't really thought about that aspect a lot. I think to a certain extent it's true that if the access to information is freer and information is more easily obtained, that may indeed happen. The other thing I think is that because there is participation up front, decisions that are made are going to, in the end, reflect a broader range of opinion. That is going to forestall a lot of complaints and requests for investigation and that kind of stuff in the future, because we've had a part in developing the proposals in the first place.
I think it's that whole concept of involving people, the public consultation concept of involving all the parties from the beginning and creating a really good system or a really good proposal and then, through that mechanism, avoiding a lot of conflict and intervention afterwards. So that's what we hope the bill will do.
Mrs Mathyssen: My two questions I think follow along from Mr Wiseman. First, there was a concern expressed by the Ontario Waste Management Association that 3Rs projects might be scuttled entirely by individuals or citizens groups under this new bill. Secondly, you said something earlier about the process of ministries developing regulations being a very healthy thing.
We also heard from AMO, and it expressed concern that while it was going to be involved in the development of the Ministry of Municipal Affairs regulations, they would have a negative impact on it. Do you see municipalities benefiting by going through this process of looking at the environmental regulations they need to abide by?
Ms Greig: The short answer is yes. I can take, for example, our own municipality and our official plan -- this is just a particular issue in our community dealing with natural areas -- which really makes no reference to environmentally sensitive aspects or areas in the city except in terms of hazard lands. So if they had to, for example, look through the official plan with respect to some of the types of values that are outlined in the bill of rights, I think they'd have to do some fairly substantial reviewing of the OP. In fact, it would probably bring the documents up to date with more of their practice, but they are essentially exempt from that process except, at this point, where citizens come in and make specific complaints or requests about how operations are going at the city.
If they started at the beginning and went through that process and involved the public in the process, then I think they'd have a much stronger long-term approach to environmental protection as a component of their whole operations. Sure, I think it would be very beneficial.
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Mr Offer: Thank you for your presentation. I understand the concern you have with respect to the registry and what should, and how it should, be put on that.
Under the bill, under section 61, any two residents will be able to have an existing regulation or instrument amended, repealed or revoked in order to protect the environment. My question is -- and we've heard some earlier testimony that questions the principles underneath that -- if an organization has obtained a certificate or an instrument by virtue of complying with all existing laws and by virtue of receiving all necessary ministerial approvals, what are the -- if you could share with me as a citizen -- bona fides of someone saying, "We want that approval revoked," even though the person has complied with the law?
Ms Greig: I haven't spent a great deal of time thinking about this particular point, so I'm not sure if I can answer it as fully as I might like to. In the first place, my understanding is that, although they can apply to have a review, that review will not necessarily take place unless there's some fairly strong evidence. They have to provide good evidence that it's actually necessary.
Secondly, I suppose if part of the purpose of the bill is to ensure that the government is following its own set of standards about protecting environmental health and if indeed there are current approvals processes that don't correspond to the types of values that are outlined in the bill or that we as a province think are important, then maybe those processes need to be reviewed. I think that's what the Environmental Commissioner's office was designed to do: to look at whether the government itself, in its own regulations, is living up to its written commitment as outlined in the beginning parts in the purposes in the bill.
If it's a really legitimate complaint, then maybe it needs to be investigated and maybe the process needs to be changed. I guess that would be our position as environmentalists and as citizens.
Mr Offer: I appreciate it.
The Chair: Thank you, Ms Greig, for appearing before us today. You've been most helpful.
Ms Greig: Thank you. I will submit a written copy to the clerk.
The Chair: For your information, the committee will be commencing clause-by-clause two weeks from today.
ONTARIO FARM ENVIRONMENTAL COALITION
The Chair: The next presentation will come from the Ontario Farm Environmental Coalition. Good morning.
Mr Roger George: My name is Roger George. I'm the president of the Ontario Federation of Agriculture and one of the co-chairs of the Ontario Farm Environmental Coalition. On my immediate right I have Jeff Wilson, who is the chairman of AGCARE; that's Agricultural Groups Concerned About Resources and the Environment. As I say, Jeff is chairman of AGCARE and also a co-chair of our working coalition. On my extreme right is Terry Daynard, who is a member of AGCARE and who's also executive vice-president of the Ontario Corn Producers' Association.
I'm just going to take a very few minutes to go quickly through the brief that we have before you and then we'll leave as much time as we possibly can for questions. What we've attempted to do this morning, by coming to you as a coalition representing over 30 farm groups, is to make your life a little easier, and ours too, with lots of one-stop shopping and comments which we believe reflect the concerns of the entire agricultural industry, which I may remind you farms some 14 million acres of land in this province. So we're very visible environmentally and we're also very involved in the environment.
Our coalition, which was formed some three years ago, is co-chaired by the Ontario Federation of Agriculture, the Christian Farmers Federation of Ontario, AGCARE and the Ontario Farm Animal Council and, as I say, we have a broad membership across the farm community.
We have, as a coalition, played an active role in the development and consultation thus far on Bill 26, but I must say, starting off, that we have serious doubts as to the actual need for the Environmental Bill of Rights. We believe the approach we have taken as a farm community is certainly more efficient and we believe it will set standards far higher than anything you can possibly hope to legislate through government.
It would seem to us that we're entering into some confusion with the Environmental Bill of Rights, and it may have been simpler to make up various amendments to the Environmental Protection Act to avoid some serious duplication of effort that we believe is going to be there. However, we are here to talk about the EBR.
As I said, we really believe the approach we've taken in agriculture by coming together as an agricultural community, recognizing the importance of the environment and coming up with environmental farm plans and a broad discussion paper on the environment is probably the more productive way to go on a sectoral basis. We are concerned about the cost of doing business, what it's going to do to the size of government in enforcing this legislation and how much ministry resources are going to be needed to do this and whether that will take away from existing ministry programs.
On the specific agricultural concern, we are concerned about wetlands. The original draft contained a definition of wetlands that we objected to. We are glad that has been omitted now, but we still call for the new definition of wetlands to be consistent with the Ministry of Natural Resources wetland policy statement, and we are shocked at this point in time to find that in Bill 26 it is not defined at all and is dealt with somewhat parenthetically as a subset of land definition. We believe it's essential that there be amendments to this bill that clearly indicate what does not constitute a wetland and we offer some advice on page 3 in our document for that.
If I could move to the purpose of Bill 26 on page 4 of our brief, we, as the owners of 40 million acres of land, have a vested concern with the purpose statement in part I of the bill where our brief talks about, "The purpose of this act is to ensure that activities impacting on public land and public resources are in compliance with existing environmental laws." We believe we need that type of statement in there to provide farmers with some assurance that citizens who are philosophically concerned with some agricultural activities will not be using the courts and nuisance complaints through the EBR to make farmers' lives miserable.
In that regard, we move into the Farm Practices Protection Act, which is named on five occasions in the bill, and we are somewhat concerned that existing legislation provides only minimal protection for farmers against these nuisance complaints which we envision under the EBR legislation. Indeed, it's going to be absolutely vital for the agricultural industry that if Bill 26 goes according to plan, we are going to need to strengthen our legislation, the Farm Practices Protection Act, and I hope we can have some more discussion on that in a few minutes.
The Drainage Act: The first draft contained references to the Drainage Act. We are pleased to see that the new draft regulation pertaining to the EBR implementation schedule makes no reference to the Drainage Act, because clearly drainage becomes a vital part of many farmers' land management and environmental management. We have a lot of concerns about that.
Just finally on the implementation schedule, we have always advised the government to move slowly and carefully on the EBR and we are pleased that it has taken our advice over the last three years, has heeded our advice.
We recommend that the target dates for the implementation of this legislation again be set back, certainly to do some careful study and make sure that the legislation is properly tested by the Ministry of Environment and Energy before it's required to be implemented by other ministries.
Very clearly, as we move through, doing our business as farmers concerned about the environment, with our own environmental farm plans, we don't want to have the grief of having to worry about our ministry getting involved in the quagmire of EBR at a time when we are trying to encourage our farmers, through environmental farm plans, to be proactive and do things that way. It comes back to the fact that we believe our approach to environmental farm planning on a sectoral basis through the farm community is vastly superior to anything this government or any other government can do legislatively.
With that, those are essentially our overall comments. Let's take whatever time we've got, and my colleagues will join me and help me to answer questions.
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Mr Offer: Thank you very much for your presentation. I want to go to page 4 of your presentation, where you talk about the purpose of Bill 26. The reason I bring forward that area is because it seems in your presentation you are assuming that the bill applies only to public lands as opposed to privately held lands. I'm wondering, first, if that is the case. Second, maybe we can ask some clarification from government about whether that's indeed the situation.
To be more precise, you say that when Bill 26 is "considered in its entirety, it is clear that it will apply to public lands and public resources as opposed to private," and you have proposed an amendment in the purpose to underscore that. Is it your belief that the bill applies to just public lands and public resources?
Mr Jeff Wilson: I think the key component in there is the phrase "as opposed to private" and that it will be only used to deter illegal activity. It gets a little fuzzy then, because the main intent, in our estimation, is geared at public land, except where someone sees a practice that in their opinion could potentially border on the definition of an illegal activity, and then they would be able to utilize this piece of legislation.
Mr Offer: In general, you believe this bill applies to public lands, and only to private lands if there is some illegal activity being carried on.
Mr Jeff Wilson: Yes.
Mr Offer: I think this is crucial. Might I ask the ministry to respond to whether the bill has a broader application than the Ontario Farm Environmental Agenda Initiative puts forward?
Mr Bob Shaw: The bill itself applies to the environment broadly, and that encompasses privately held lands as well as publicly held lands. But the bill makes a very important distinction under the right-to-sue provisions. Those provisions apply only to public lands, whereas a request for an investigation of a possible contravention of the law could relate to a contravention taking place on private lands or on public lands.
Mr Offer: In essence, the bill applies to public and private lands and the only exclusion is the right to sue, but otherwise the bill has a broader application than I believe is anticipated in your presentation.
Mr Terry Daynard: Could I just make a comment? We didn't address that in the brief we've presented here, but we did have a lot of discussion with the committee that was involved in drafting this bill.
The discussion actually involved section 82 as it is at the moment. It talks about public resources and it defines "public resource" as meaning air and water, with some qualifications. Then, most critically, in clause 82(e), it talks about any plant, animal or ecological system associated with any air, water or land. Well, the land is public land, but air and water are vague in this.
We got a lot of words of assurance from both the ministry and the committee that it was not their intent to have clause (e) interpreted very broadly, but there is some unease, I would have to say, that any plant or animal or ecological system associated with air or water could include most of our topsoil, because topsoil is chock full of living organisms, air, water and ecological systems, earthworms and so on. There is some unease about it, but when we came to address major concerns, we chose not to put it in the main brief.
Mr Tilson: Mr Offer's time has expired, but I've always got the impression when speaking to anybody from the agricultural community exactly what Mr Offer has been saying; that is, you can be assured there's no problem with respect to the agricultural community. But now, having heard a clarification from the ministry, my impression is that the bill will be going much further than perhaps people in the agricultural community had ever dreamed. Can you comment now, probably without having a chance to consult among yourselves?
Mr George: I think it probably gets back to our concern about needing our Farm Practices Protection Act extension. Clearly, it isn't a question of whether we're going to be sued; it's a question of having all these nuisance complaints.
People can make life fairly miserable for us. If they see a farmer going down his field with his sprayer or his manure tanker, the next thing you know, you've got all sorts of enforcement people from various ministries on the doorstep to cease and desist until this gets sorted out. You may not end up in court, but you can lose an awful lot of time fooling around here while that particular nuisance complaint gets dealt with.
We just don't have the protection in the Farm Practices Protection Act that I believe the authors thought was there. That act gives us very minimal protection against nuisance complaints about odour, noise and dust, and that's it.
Mr Tilson: From what the ministry has just told us now, it appears you have no protection.
Mr George: We still assume that the Farm Practices Protection Act, surely to goodness, supersedes the Environmental Bill of Rights. That was our assurance at some point in time within the narrow mandate of that legislation.
Mr Tilson: Is there something in the legislation that clarifies that?
Mr Wayne Lessard (Windsor-Walkerville): It's referred to in subsection 84(4). That refers to the Farm Practices Protection Act protections.
Mr Daynard: The problem is, when you read the Farm Practices Protection Act, you find that it in turn is subordinate to a whole series of other acts, most notably the Environmental Protection Act. We have been advised by lawyers that there's some fair ambiguity in there. If anyone ever chose to challenge this in terms of just what teeth there are in the Farm Practices Protection Act -- or if it could be obliterated by the Environmental Protection Act, then there's some confusion on our part about the relationship between the Environmental Protection Act and the Environmental Bill of Rights.
Mr Tilson: Doesn't that only have to do with civil action? That has nothing to do with what Mr George is talking about. Someone complaining about how a farmer's operating is quite a different thing. He may not be able to sue him, but he can sure slow him down a lot. Maybe I'm not understanding the sections, but section 87, the way it's been described just now, involves civil proceedings. In other words, the assurances that perhaps have been given to you or your organization simply aren't true. At least that's my observation.
Mr Daynard: We would go so far as to say that there's a high level of uncertainty. I suppose we'll never know until some of these things are tested in court. We do worry a lot about the nuisance suits.
We also have to say, and we put emphasis on this major point, that we've accepted that the government is going to have an Environmental Bill of Rights -- that was very clear -- but we philosophically have a lot of problems because we believe this was basically drafted by lawyers from a legal standpoint. That's not the approach we believe is the appropriate one to take to address environmental concerns to begin with, and it's not the one we're using. That would be the biggest unease we have about this bill.
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Mr Wiseman: I'd like to go back to this whole idea of nuisance requests or whatever. I'm going to read Section 61; it needs to be quoted because it's been misquoted all morning.
"Any two persons resident in Ontario who believe that an existing policy, act, regulation or instrument of Ontario should be amended, repealed or revoked in order to protect the environment may apply to the Environmental Commissioner for a review of the policy, act, regulation or instrument by the appropriate minister."
That means they can apply. Then it goes on to describe the process, and then it says in section 62:
"(1) Within 10 days of receiving an application for review, the Environmental Commissioner shall do the following:
"1. Refer the application to the minister or ministers for the ministry or ministries that the Environmental Commissioner considers appropriate to review the matters raised in the application.
"2. Where an application is referred to a minister for a ministry not prescribed for the purposes of this part, give notice to the applicants in accordance with subsection (2)."
The minister later on also has a prescribed set of criteria that have to be followed.
It seems to me that any frivolous activity in terms of the use of section 84 or section 87 in later parts of the bill would mean that unless the farm protection act was altered to change the way you could do things, any application by two citizens in terms of practices that are already acceptable -- it would have to be changed by regulation by the minister or by legislation. Therefore, the likelihood of anybody winning any kind of lawsuit under section 6 I think would be very minimal, especially as they would be turned down previously by the minister in terms of change. Have I got that roughly right?
Mr Jeff Wilson: Notwithstanding, though, it's going to take significant resources on behalf of the plaintiff, whether that be the farmer, but also on behalf of the specific ministry that will be involved, in this case probably the Ministry of Agriculture and Food. We found with our environmental farm agenda, which was an initiative from within the farming community to begin a process through environmental farm planning to resolve some of these outstanding issues that also border on the Farm Practices Protection Act, that this is a way, in partnership with various ministries, we can develop a roadway or a pathway into the future on environmental issues and concerns, including how we deal with environmental concerns in an agricultural context.
One of our main concerns is, is there a danger that that whole process, which has phenomenal agricultural commitment in terms of resources and money and government commitment, could possibly be sidetracked by a minister or ministry responding to frivolous actions brought about on a continuing basis?
The Chair: Thank you, gentlemen, for appearing this morning. I can see we're going to have some interest in a few clauses during the clause-by-clause.
ONTARIO FOREST INDUSTRIES ASSOCIATION
The Chair: The last presentation this morning will come from the Ontario Forest Industries Association, Marie Rauter. Good morning.
Ms Marie Rauter: My name is Marie Rauter and I'm president of the Ontario Forest Industries Association. With me today I have Eleanore Cronk, who is representing us as counsel, and she works with Fasken Campbell Godfrey. If you get into some of the detailed words I am having difficulty with, perhaps she'll be able to answer some of your questions.
Our association is a provincial trade association that represents 21 member companies. We're engaged in everything from pulp, paper, lumber manufacture, and also into forestry operations. Because it is a resource-based industry, the Environmental Bill of Rights will have a greater impact on the forest industry than it will have on any other industry sector.
I'm pleased to have the opportunity to comment and to reiterate our commitment to sustainable development, and that is achieving a balance not only between the environment and the economy, but in the case of our industry it also contributes to the stability of communities, particularly in northern Ontario.
Our members do support the goals of the Environmental Bill of Rights. At a meeting we had with some of its authors, one of the authors stated, when we were discussing the first draft of the bill, that it had been created to give the public an opportunity to protect public resources where the government fails to do so. He said it was written to create an environmental ethic for the bureaucrats and to add consistent consideration of the environment to the decision-making process.
These are sound objectives. But in terms of some of the specifics, we still have many of the concerns that we expressed in our first submission, which we presented to Ruth Grier when she was Minister of the Environment just about a year ago. I've brought a copy of that and I think you also were distributed a copy. Many of the comments that were relevant then are still relevant today.
Much of our industry's focus has been on trying to make sure that we can streamline the government process, to eliminate duplication and to try to make the best possible use of very severely limited resources. As an industry, we understand the tough decisions that all of you will have to make. In our particular instance, these recessionary times have forced our companies to restructure and downsize. In the last year alone, we have lost 3,000 jobs for Ontarians. That's fairly significant. With the tough choices that are being made in both the private and public sectors, we are concerned that, as written, the bill of rights will add layers of process while duplicating some of the existing and past efforts.
For example, it has been six years since our timber management environmental assessment hearings began and we are still awaiting the rulings of the board. The decisions which emanated from those hearings will have the benefit of intensive public input and should not be subject to further review under the Environmental Bill of Rights.
Under this current draft, instruments such as licences already covered by the EA decision are protected, but we would recommend that, to avoid duplication, this protection be extended to cover all decisions from that board.
It's important to note that while the industry can support the broad objectives of the bill, we cannot determine its impact until the regulations have been fully defined. We need to have those regulations released for comment not only by us but also by the general public.
As an example, we are concerned about the impact of the environmental registry. On the one hand, it could represent a vast improvement over the existing ad hoc processes, since it should make it easier for everyone to access information on policies and initiatives under way.
However, our industry requires thousands and thousands of licences and approvals each year. If each one were listed on the registry and potentially routed through the process, increased costs and project delays could effectively shut this industry down and could effectively shut down many of the ministries as well.
The ministry has provided some relief to the uncertainty by releasing some partial regulations indicating that approvals required under the Environmental Protection Act, the Water Resources Act and the Pesticides Act will be listed on the registry and categorized as class II approvals.
We believe that a class II designation will make these approvals unnecessarily onerous and that it contradicts the stated objective of the Ministry of Environment and Energy to streamline, for example, the certificates of approval process. As a solution we recommend that all of these approvals be designated class I, with the discretion of the minister to upgrade them on an individual basis.
It is important to mention also that the impact of the bill on approvals required under the Crown Timber Act, the Aggregate Resources Act and others remains unknown to the industry. We have no idea what the impact of those regulations would be. I would therefore like to request the need for all regulations to be developed and released for comment prior to third reading in order for us to be able to assess the full implications of the bill.
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In terms of structure, the industry sees the commissioner as pivotal to the successful implementation of this bill, but we suggest that, to demonstrate the government's commitment to both the environment and the economy, the position be titled "sustainable development commissioner." This new title would also reflect the recommendations that come from the Ontario Round Table on Environment and Economy.
Aside from the title, we are concerned that the role of commissioner has not been given the authority that is required in order for it to be effective. In handling requests for investigation, for example, it would appear that the commissioner is nothing more than a collator and a distributor of paper.
Under the current draft of the bill, anyone has the right to request an investigation, provided they submit a summary of supporting evidence. Requests will flow through the commissioner's office, where they will be passed on to the appropriate minister. This could create a situation in which the government is in a constant state of response to requests for investigation, both frivolous and otherwise, and is therefore unable to conduct the business for which it has been elected.
Under the bill, the relevant minister is the only one permitted to weed out those frivolous or vexatious requests. If the commissioner were given this authority, these claims could be stopped before they were forwarded to the minister and before valuable resources were spent conducting that preliminary investigation.
In terms of litigation, our members do support the inclusion of language in the second draft of the bill which states that the new cause of action will not be in the form of a class proceeding. However, we remain concerned about investigations which do succeed in generating lawsuits, but which go on to fail in court. If a company is in compliance with all acts and regulations, it is said to have a complete defence. This does not mean, however, that the case will not be tried.
To exacerbate matters, the bill can be interpreted so that, as a matter of course, the person who initiates the lawsuit may be relieved of the requirement to pay damages if the lawsuit is unsuccessful, despite the fact that this requirement otherwise exists in any civil proceeding. This would be inherently unfair to those targeted with frivolous accusations and should be avoided.
The court must be permitted to determine whether damages should be paid, on a case-by-case basis, in accordance with existing principles of law and equity. As an added benefit, the responsibility for damages in the event of a lawsuit would be a deterrent to those frivolous claims.
Another court-related concern involves the mandatory reporting of non-compliance versus the ability of individuals to launch a civil suit. Like all sectors, the forest industry is required to report non-compliance with existing environmental regulations. This is the law and it is designed to protect the public resource. With this process firmly entrenched, it is unnecessary to allow individuals to use that information reported as the basis of civil suits. Not only could this create a disincentive to full reporting, it could provide an unfair advantage to plaintiffs by giving them access to confidential, disclosed information.
We recommend that, at the very least, the bill be revised so that none of the information provided as a result of mandatory reporting be available or accessible to those who are launching suits and that reference to or reliance on such information not be permitted in civil suits.
We are committed to a healthy environment. We support restoration plans as an alternative to funds awarded, but under the bill, restoration plans may be ordered by the court to repair damage done. Negotiation of plans will be mandatory. However, the bill goes a step further by giving the court the authority to allow any non-party to participate in the negotiations and to appeal the decision when it has been made.
If someone has nothing to lose, will he or she negotiate in good faith? And why should they, when they are not directly involved and may wish to delay the outcome, be given a right of appeal? Further, if the negotiations fail to produce a restoration plan, the bill specifies that it will be developed by the court.
As you know, the Ontario civil court system is already significantly overburdened. Restoration plans are scientific in nature and they require knowledgeable experts for their development. As such, we recommend that the bill be revised to allow experts or expert panels to develop the plans where negotiations fail to do so.
If implemented as proposed, the bill of rights will require a commissioner and a commissioner's office; the design, implementation and maintenance of a registry; countless hours from every ministry; and despite efforts that have been made, a very large and a very intimidating process.
We are concerned about the lack of published estimates of the significant costs that will stem from this bill. We would like to reiterate our request that an estimate be released as soon as possible so we can assess the true implications of the bill and then be able to determine our true level of support.
There are a number of other areas, but I think I've covered most of the highlights.
We still have some concerns with definitions. We heard a little bit at the previous presentation. There are a number of undefined words and phrases in the bill which could be important in the context of civil proceedings: "environment" and "harm" are two significant examples. We would recommend, for example, that the word "harm" be defined as "adverse environmental effect," and that "environment" be defined as "air, land and water," as it is in the Environmental Protection Act.
Other words and phrases of significance include "degradation," "sustainability," "ecologically sensitive areas." All have been debated at length. They continue to mean different things to different people, even those within the scientific community.
It is essential, even without agreed-upon, province-wide definitions, that the bill provide the guidance as to its own intended meaning. With clear definitions, lawsuits can be simplified. Without them, lawsuits will be prolonged.
The objectives of the bill are sound. In the United States, many jurisdictions that have implemented bills have done so based on litigation, which threatens to become a giant free-for-all. The Ontario bill is being developed to benefit the environment.
We urge you to give careful thought to some of our recommendations and to consider the impact of the bill on our industry and to work towards a bill that can protect the environment while helping to ensure sustainable development. We cannot have one unless we have the other.
Mr Tilson: Just very briefly, thank you for your presentation. I can tell you that it has had such an effect on some of us on this committee that it is becoming more and more apparent to me that this committee would be totally irresponsible, as would be the government, to proceed with this bill when delegation after delegation after delegation is coming to this committee saying such things as, "We have not had an opportunity to be consulted with."
Some delegations haven't even had an opportunity to prepare written depositions, and groups such as yours coming through with very excellent suggestions -- I mean, I'm going to have to require a substantial amount of time just to digest what you've said, and to spend one day, which is coming up, on clause-by-clause, is the most preposterous thing I've heard since I've come to this place.
I find it absolutely outrageous that delegations have called me and said they're not being given an opportunity to be heard, that delegations are not given an opportunity to present presentations. There's a woman still here in the audience today who has not had an opportunity to prepare a written presentation. So I can say that, if anything, your presentation has made me even more annoyed with this whole process, and I thank you kindly for your thoughts.
Mr Wiseman: Just on the last point, we offered to meet every day, we offered to meet weekends on this. It's just political posturing, because we offered to meet more and they refused.
Mr Tilson: Baloney, absolute baloney, and you know it.
Mr Wiseman: Since I come from an environmental protest background, I'd like to just say on their behalf that I think what exists out there now is a huge misconception in terms of what we as environmental protest groups would like to do. Now I'm here, so it's a different story.
We don't have any money or we didn't when we were out there. We don't go to court. We don't want to go to court. Before I was elected, I worked on a committee that was on a very controversial issue about putting a sewer pipe right down the middle of a very sensitive creek. Because of full disclosure of information and techniques and everything, we all signed off on it. There was no problem at the end of the day in terms of how it should be done and so on.
I hold that up as an example of what can be done when there's full disclosure of information, when there's full participation by groups and when they all work together, because I don't fundamentally think that anybody really wants to hold anything up in court but that they would like to be included in the process in an open and honest way.
Ms Rauter: If that's the case, I think by revising this bill we'll just give both sides that comfort level. Because if what you're saying is true, then I don't think those groups would have any objection to putting some of these protections in the bill.
Mr Wiseman: Just on that, though, on page 4, and maybe I'm misinterpreting this about information being available in the registry, it seems to me that what we've heard from the groups all across Ontario so far is that they believe they would be able, through the registry, through open access, to get to this information and be able to work. If I'm understanding this, there is some suggestion here about perhaps not having it as freely accessible.
Ms Rauter: No. We're suggesting that there's class I, class II and class III in the registry. Because we, as an industry, require so many thousands of certificates and licences every year, if they are put in class II and we have public hearings for all of them or have a process in place, we're going to be bogged down.
We're suggesting it would be more appropriate that these be put in class I. That still means that they would be available as part of the registry, but be very careful in what class you put all of the requests we have for licences and approvals. If you put them in class II, they can be bumped up to a class III, which is a full environmental assessment. If you put them in class I, and the minister feels, "This one is of particular importance," he still has that discretion to pump it up to class II.
So we have no problem with many of these things being in class I, but if you put them in class II, they have the potential to be bumped up to class III, and that effectively will close us down as a resource industry. That's where our concern is coming from.
Mr Hans Daigeler (Nepean): Let me be frank, if you allow me to. I'm wondering a little whether you may be afraid of drawing the final conclusion from your own observations. On the one hand you're saying you support the principles of the bill, and I understand that, I think so do we. But at the same time you're putting forward some very serious concerns, which in my opinion would lead to the conclusion, "Let's improve the system that we have and forget about all the complications of this bill."
Several of the other groups, including the farmers who were just here, are in fact drawing this conclusion. Am I going too far in interpreting your between-the-lines comments, or are you saying, "Let's go ahead with this bill and try to make the best of it"?
Ms Rauter: If we had all the other legislation in place and all the checks and balances, I don't think you'd need an Environmental Bill of Rights. But right now I think you have a public that is very concerned about the environment. So if you decide that you do need an Environmental Bill of Rights, then we can support the objectives of it, because we think that the objectives are sound, but how you write it, how you implement it, is very critical.
I can give you an example with the Aggregate Resources Act. Where we, as an industry, could buy the principles of the Aggregate Resources Act, when we saw how the regulations were going to be implemented, they were devastating, because you could not apply them. We needed to go out and do surveys at one-foot levels if we were going to do anything in terms of getting some gravel off the side of some areas to try to build a road.
So we're concerned that if we don't see the regulations, we have no idea. In terms of the way some of the bill is written, it could be considered motherhood and you can't really be against a lot of it, but depending upon how those regulations are written, you really have the ability to shut industry down. More important, you have the ability to shut government down. That's why we're saying: Be very careful in how the bill is written. Be very careful how you put people into the various licences and approvals under this classification system, because you can put something in that's very good.
One of the things we're very supportive of is the restoration plan, as opposed to damages, if somebody goes forward. We think that's a good way to go. But be very careful (a) in the way the bill is written and (b) in terms of how those regulations are developed. I really urge you to look very carefully. We try to be positive and we'd like to think that our recommendations are positive, but we are concerned.
The Chair: We appreciate your comments, and I'm sure there'll be some discussion of them when we conduct clause-by-clause review.
The committee is adjourned until 3:30 this afternoon. I would ask all members to be here promptly so that we may begin the consideration of further presentations.
The committee recessed from 1205 to 1544.
The Vice-Chair: I'm going to call the committee to order even though we don't have a representative of the PC Party here yet. Given the scheduled time for the witness, I think we should begin, since we are late already because of a vote that we had to hold in the Legislature.
ROBERT BENNETT
The Vice-Chair: The next witness is Mr Robert Bennett. You were scheduled for 3:30. It's already a quarter to 4. You will nevertheless have 20 minutes. You can either use the 20 minutes in full or leave some time for questions and answers. Of course, that would be appreciated. Please go right ahead.
Mr Robert Bennett: Thank you, Mr Chairman. I appreciate your giving me time at this meeting. I am not too familiar with the Environmental Bill of Rights. I just happened to come across a copy that is called An Introduction to the Environmental Bill of Rights. I'm principally interested in acid raid. You have my little booklet in front of you.
I first got interested in acid rain way back before it became a popular issue with most politicians. About 1973, we in Muskoka -- I come from Bracebridge -- found that our fish were becoming unfit because of mercury. The then Environment minister stated that the mercury was leeching out of vats at two places, at Huntsville and Bracebridge, and going into the fish by way of food.
I had mud analysed above and below the tanneries and in eight other spots around the Muskoka lakes. It cost me at that time $850 to have the mud analysed. I got it analysed down in Texas at the University of Texas site at Aransas Pas. That proved that the mud was the same all over. There was no difference in the mud below or above the tannery.
The next thing they said was that there was a natural leeching of mercury out of the rocks. Probably you people don't remember this. Well, I proved that wrong.
Then about 1974 or 1975, people began to talk about acid rain. A friend of mine, who was a scientist, summered in Port Carling. We did testing and I got blamed for the testing that was done in the future. For instance, on page 12 of my little booklet there, it says, "Criticism of Bob Bennett is uncalled for, his persistence probably forced public tests." The reason the Ministry of the Environment was doing tests was because we were doing them and it wanted to refute them, but it couldn't.
However, I became mayor of the township of Muskoka Lakes. I had in the meantime lost a lake of brown trout. I owned a small lake and the brown trout died. I didn't know why. I had no idea. Then on the farm the frogs started to disappear. A friend who liked to fish usually gathered two or three dozen of what we call cheepers -- small frogs in the grass. At the end of 1974 he said, "I wonder what's happening to the frogs?" Then in 1975 he couldn't find any. We didn't know why, but I know now that it was because of acid rain.
The history of the Ontario government: In 1915 it passed an order in council exempting 12 townships in the Sudbury area for agricultural purposes. The reason for this was that the farmers were finding that their trees and crops were dying. Over the years, they formed a committee called the committee for the examination of sulphur fumes, as it affects crops. This went on for quite a number of years until we began to be aware of what was happening further afield in Muskoka, Haliburton and so on. So then they formed the present environmental section in the provincial government.
I have found out that over the years, in the last 12 years, starting with about 1981, 1980, we have spent $22 million cladding the hills in Sudbury with plants, limestone and fertilizer, and the environmental section of the Ontario government has boasted that your acid rain reduction is working, because this is proof, "We're growing trees in Sudbury now." If any of you have been to Sudbury you will see that the hills are starting to green, but if you spend $22 million on fertilizer and limestone you can do that. This year, in 1993, we're planting 50,000 trees, and I suppose they'll have the fertilizer and limestone as well.
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My little booklet will tell you many things about what's happening with Inco. Two things are quite important. The Falcon Indian band started to sue Inco for damage to their trees; Inco settled out of court. Then Falconbridge was getting complaints about the citizens of Happy Valley, where there are 25 home owners. The Ontario government paid to have the homes moved, torn down, at least to get rid of the people in Happy Valley, because the acid rain and fumes were too strong for them to live there.
I want to tell you that, generally speaking, people who live in Muskoka and are working on acid rain will tell you the Americans contribute most of the acid rain to Muskoka. I'll tell you that the Americans don't contribute any acid rain to Muskoka. I'm sorry I didn't come down here prepared for this meeting -- at short notice. I don't have a photostat machine, but I want to show you a little map and you can find that map in the source: Acid Precipitation in Ontario Study, annual program report for 1988 and 1989.
That map shows St Cloud, Minnesota, where they released tracers in the air. Those tracers, over 45 days, were distributed over an area from 200 to 400 kilometres. The chimneys are on the average of 500 feet. None of it got to Muskoka. It fell far short of Muskoka. The farthest it got -- if you want to look up that book -- was about the Lakehead of the Great Lakes.
There has been a large study done by Americans who released traces at the air force base in Dayton, Ohio, and Sudbury. Canadians must have participated in this study, because it was discovered that much of the pollution that comes from Sudbury, while dissipating throughout the atmosphere, actually travels up to 1,200 kilometres. It was discovered on the east coast of the United States.
Our environmental people, working for the Ontario government, must know about that study. In fact, Dr Tom Brydges, probably the most highly paid person in the environment in Canada, made a large study, didn't use any tracers and then at the end of the study admitted the study may have been a little flawed because he didn't use tracers. The study has been done, the information is there, and you'll find that in my little booklet that I've given to you.
There've been a lot of studies done by Canadians; most of them are flawed. The most recent study, a young lady from the Canadian Environmental Law Association handed me a booklet here and the conclusion reached there was: "Attention has also been focused on the obvious decline of sugar maples in parts of eastern Canada," which includes Muskoka. "Studies to date suggest that the damage is due to a complex set of factors such as drought, climate, air pollutants and acidification acting in concert."
I can tell you that drought isn't killing trees in Muskoka. It will kill small trees on a ridge that's bare of much soil. But I've lived in Muskoka all my life; I'm 76 years old and I've worked in the bush, cut wood and burned wood for many, many years, and I've never seen a dead tree that was suitable for wood purposes die because of drought. We had in 1949 the worst possible infestation of army worms you could imagine. The end of the farmer's barn was covered as if there were a fur blanket on the barn. It killed a few trees on these rocky ridges where there was no soil; some people lost trees. But to say that maple trees are dying in Muskoka because of drought and for reasons other than acid rain is wrong. Acid rain is killing trees.
I bought a cord and a half of wood this fall, half of it made up of black cherry. The black cherries are going to be gone in just a few years. They seem to be all dying.
I hope I have drawn to your attention something about the problems of acid rain in Muskoka. I haven't been very popular there because I've been working on acid rain for 20 years. I gave a speech to the Muskoka chamber of commerce about acid rain and three or four of the people came up -- it just happened they were hotel owners -- and asked me, "What are you trying to do, kill our business?
Well, ladies and gentlemen, the business is dying. Elgin House, our premier resort in Muskoka, is closed. Keswick House, a 400-person accommodation, is closed, and the others are getting grants from the government to keep operating. American tourists were insulted. The district council placed on windshields little pamphlets asking people to take it up with their representatives in Parliament to try and stop the acid rain coming from the States. We had friends who stayed at the Elgin House who were very well aware of Sudbury, and they took offence at two pamphlets they got and quit coming. That's one of the reasons for Elgin House closing.
I tell you in my book here that the people in the district of Muskoka thought they would get the Americans up and give them a tongue-lashing because of their acid rain. Let me quote from the Sudbury Star:
"Acid Rain View Angers Politicians of Some States.
"Bracebridge, Ontario. Some US states have reduced their sources of acid precipitation more than Ontario and don't like Canadian calls for additional curbs, US officials say. `We started back in 1971,'" when we didn't know we had acid rain, although the big stacks started in 1972 and that's the cause of acid rain in Muskoka. To continue, "`Our cutbacks are bigger than what you have accomplished...and you want us to jump through hoops for you now,' Illinois state representative Edward Meyers told a special meeting with Ontario Thursday."
We didn't get those reports in our papers. We did hear prior to the meeting how our representatives were going to set them on their ear to clean up acid rain coming from the States, but we do not, in Muskoka, get acid rain from the US. Proof of it is that prior to the big chimney being built at Sudbury, the chimney there was 325 feet high, and we had virtually no acid rain in Muskoka. They built the 1,215-foot chimney, and the idea was that the solution was dilution. Well, it isn't a dilution as far as we in Muskoka are concerned.
I have some facts I'm not releasing just now about health. On the back page I mention that I did make a study of a group of homes in Muskoka. In the 20 years prior to the big stack being built, one person in my little village died of cancer. After the big stack got operating, in 20 years 11 people died of cancer. These are facts.
I guess I've taken up that 10 minutes. Are there any questions?
Mr Wiseman: You started off your presentation by indicating that you hadn't seen the Environmental Bill of Rights.
Mr Bennett: No, I haven't.
Mr Wiseman: Then let me ask the question from a different angle. In all the years you've been trying to access information in order to do the research you've done, how easy has it been, and what have been your greatest roadblocks?
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Mr Bennett: I've had to steal information. There's a book put out by the regional municipality of Sudbury, and it lays out the year's outputs on limestone and fertilizer. It's very difficult to get information on acid rain. There's a booklet called Acid Precipitation in Ontario Study, Annual Report, 1988-89. I was told it was out of print. I got a copy of it. I have felt, in the 20 years I have worked on acid rain, that no one in Muskoka but myself wants to do anything about it, apparently. Frank Miller, former member of Parliament and Premier I don't think has ever said a word about acid rain.
Our federal member is Stan Darling, who by the way is a pretty good friend of mine. He says he used to think the way I do, but he went up to Sudbury and the winds were blowing from the southwest to the southeast and it all goes on Quebec, so why should we worry about it? This is what I've been up against, Mr Wiseman.
Mr Wiseman: In terms of accessing information from government and getting studies, perhaps you could describe what you've tried to get and how difficult it was.
Mr Bennett: I've got piles of material from the government. Mr Darling sent me an envelope that must have weighed 20 pounds. I told you about the studies done by the Americans at St Cloud and in Akron, Ohio. They don't need to do any more studies. God knows, there have been lots of studies done, lots of money spent on it. Mr Darling tells me the federal government alone spends $1 billion on environmental issues and has 100,000 people.
I don't know what the Ontario government's doing, but the Ontario government does run a large organization at Dorset Research Centre. Busloads of school children come there, and three years ago I asked the lady in charge there, "Are you still telling the school children that most of the acid rain comes from the States?" "Oh, yes." I asked them again last year when I went over. "Oh, yes, it does." They have pigeonholes for all the people who work there, so I put one of these booklets in each of the pigeonholes.
I'm happy to say that the director is starting to change his tune. There was an article in the Star a week or so ago where he said that the stated objective of, I believe, allowing 18 pounds of sulphur dioxide to fall per hectare per year is not good enough; we must have half that. Half that still isn't good enough. We need the chimney down. It's an aberration. There's no point in having a chimney distributing all these poisonous gases, fumes and so on all over Ontario and harming all of Ontario.
If the chairman of Sudbury defends acid rain -- I believe they put this fax sheet out. It states: "In the Muskoka-Haliburton region, for example, Ontario government studies of environmental data show that some 90% of airborne acidic chemicals come from the south. Inco's Sudbury operations are north of the region." That is absolutely wrong.
Mr Wiseman: I think you might find the bill intriguing, if you look at section 61 and the sections under the registry.
Mr Bennett: I know. I talked to the Canadian Environmental Law Association. I wanted to sue Inco. I've a lawyer who calls himself a litigation lawyer; he's smart, but he doesn't know anything about environmental.
Mr Bernard Grandmaître (Ottawa East): I'd like to pursue The Acid Rain Story claiming that Canada produces more acid rain than the United States. I'm quoting from page 13 of your book; it's not your quote, it's from The Acid Rain Story, Environment Canada. "Smelter SO2 emissions yearly: United States 1,400,000 tonnes, Canada 2,125,000 tonnes."
Mr Bennett: Yes. This is from the smelter emissions only. We do produce more from smelters than the Americans. They produce considerably more from coal-burning institutions than we do, much larger, all over the States. By the way, they're far ahead of us in trying to clean up. Many of the chimneys down on the border have scrubbers on them.
I visited a scrubber last winter in Arizona, and while I was there they punched a button and showed that in the previous 30 days they had taken out 92.3% of the pollution. The trees around were green. The stream had fish in it. They do it, and we sit back and hope that our governments will do something similar.
There are little stories there, one-line stuff. I mention Phelps Dodge smelter, shut down in Douglas, Arizona, by threats of a class action suit by the townspeople.
Perhaps we'll be able to do something now with this new environmental act, but we haven't been able to sue Inco because they're acting under licence. The Ontario government sets the limits on their licence. You have to sue the Ontario government.
The Vice-Chair: Thank you very much.
Mr Bennett: Is that it?
The Vice-Chair: Yes, I'm sorry. Your time is up, and we do have other presentations. We thank you for your presentation, and if you should have further comments on Bill 26, we can still receive written comments as well. If you'd like to pass those on to the clerk, we'd also take those into consideration.
Mr Bennett: Mr Chairman, looking at the introduction to the Environmental Bill of Rights, I don't see anything there for acid rain.
The Vice-Chair: As I say, if you wish to submit further comments, and perhaps the parliamentary assistant or anybody else from the government might want to give you further information, there is still time to submit something in writing if you wish to; you don't have to. Thank you for appearing before the committee.
PICKERING AJAX CITIZENS TOGETHER FOR THE ENVIRONMENT
The Vice-Chair: The next group scheduled to appear is the Pickering Ajax Citizens Together for the Environment, PACT.
Mr Bill Parish: My name is Bill Parish. I'm a past president of PACT; with me is David Steele, who is a vice-president. I think you all have our little brief; the clerk of the committee very kindly distributed it to you this morning.
I want to thank the committee for hearing us. I'll skip the background part about us, just to save time so there's maximum time for presentation and questions.
We have general comments on the bill and specific comments. If we'd had more time, we would have prepared more specific comments, but we realized the time was short and we thought we'd get some in at the present time.
Our general comments are these: PACT strongly supports the ideals expressed in the preamble to the bill. However, PACT has a great many concerns about this bill, both in its terms and in its processes.
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In our environmental experience fighting dumps in Pickering and Ajax, PACT has found that one of the major problems for the people in striving to achieve a clean, healthful environment is government, at all levels. No matter which political party is in power, the government of Ontario acts as if it has the divine right to proceed environmentally as it wishes, regardless of the law and the people. Let me quote some examples, and this is all in our experience.
First, in 1987 Metro Toronto and the provincial government attempted to avoid the Environmental Assessment Act when Metro Toronto sought to open the Brock South dump in Ajax.
Second, in 1989 Metro Toronto, the region of Durham and the provincial government attempted to avoid the EAA process to force the P1 dump on to the people of Pickering.
Third, in 1991 the provincial government imposed the IWA on the people and again ignored the input of the people and the full processes of the EAA.
Fourth, with respect to the Brock West dump, which we've lived with for some 19 years in Pickering, it is clearly evident from PACT's research that -- I'm just quoting six things here; actually, this was the foundation of an 18-page letter with 46 questions to the minister.
First, and these are direct quotes, "The volume capacity and contours of the site appear to have been altered, enlarged or extended beyond that approved in the original certificate of approval dated August 28, 1973. This alteration, enlargement and extension has occurred without any hearing, although a hearing appears to be required by the Environmental Protection Act."
Second, "The site has been overbuilt beyond the contours prescribed in the original 1973 certificate, and, indeed, beyond the contours laid out in Metro plans 1670-1706 and 1670-1707, which, Pickering has only recently discovered, have been incorporated into the certificate since February 5, 1980. This alteration, enlargement and extension has occurred without any hearing under the Environmental Protection Act."
Third, "This overbuilding has occurred without Metropolitan Toronto or the ministry conducting any studies of its environmental impact, including its impact on the site's leachate collection system, gas collection system or liner."
Fourth, "This site was originally designed to accept about eight million tonnes of waste, for a total volume capacity of waste and fill of about 18.5 million cubic yards. It now contains over 16 million tonnes of waste and is intended to occupy over 26 million cubic yards."
Fifth, "Metro's reports indicate that the leachate collection system may already have collapsed, that a leachate mound of about 80 feet has been measured, that a contaminant plume has migrated offsite and that the level of contamination exceeds the reasonable use guidelines."
Sixth, "Metropolitan Toronto nevertheless continues to overbuild the site, apparently with the blessing of the ministry."
Consequently, PACT's concerns about the bill are:
With respect to Brock West, will Bill 26 help the people to require the Ministry of Environment and Energy and Metro Toronto to obey the government's own laws and regulations and to close Brock West immediately? If so, how?
With respect to the IWA and Bill 143, will Bill 26 help the people to change this process into one that is fair, open and democratic and that places a safe, healthful environment above all? If so, how?
With respect to future landfill site searches, will Bill 26 ensure that such searches will be open, democratic, fair and controlled by the people so that the environmentally safest site will be the one chosen? If so, how does the bill provide that?
Lastly, why doesn't Bill 26 set up mechanisms to ensure that the ministries of the government must see that their own environmental laws and regulations are obeyed? It's pretty frustrating when you find that governments don't have to obey their own laws and regulations at any level. That's our principal concern here.
In our specific comments on the bill, we think you should add two more purposes: to recognize the inherent value of the natural environment to the people by the means provided in this act and by all other lawful means, and, secondly -- and we think this is the most important purpose of all -- to ensure that the people of Ontario have all the means to achieve, in an effective, timely, open, fair and democratic manner, the common goal of the protection, conservation and restoration of the natural environment for the benefit of present and future generations by the means provided in this act and by all other lawful means.
We think that subsection 2(1) should be changed. After the words "by the means provided in this act," the words "and by other lawful means" should be added. We're a little frightened that if you can only go "by the means provided in this act," it may restrict the freedom of the citizen and the right of the citizen to use any other lawful means. We're just a little wary of that kind of wording, that it may indeed hurt us, and we're asking for those words to be added.
In part II, public participation in government decision-making, PACT is concerned that the statements of environmental values of each ministry have not been published.
This bill was brought into the Legislature for first reading on May 31. It's incredible, in our view, that those ministerial statements of environmental values have not been published and are not brought forward for public hearings at this time. They should be here.
PACT supports open, fair, honest, meaningful public participation in government decision-making. The people must be involved from the very beginning and must be truly consulted, and by "truly consulted" we mean we're listened to, we're not brought in on a pro forma basis: "Okay, we've listened to those guys; now we'll do what we want." We've been subjected to quite a bit of that. No reflection on this committee, but we've been subjected to that kind of treatment in the past.
PACT sees the wording of section 11 as very weak. What does "every reasonable step" mean? What are the "decisions that might significantly affect the environment"? These words give the minister so much room to vacillate, to do nothing and to act contrary to the best interests of the environment and the people.
PACT recommends that Bill 26 provide that any person may appeal to the Environmental Commissioner if the minister is shown to be acting contrary to the intent and purposes of this bill or any other environmental laws and regulations and that the minister must respond to the appeal at a public hearing within 14 days.
Section 15 gives the minister too much discretionary power. PACT recommends the same appeal process as in our paragraph 3.2.4 above.
As far as the Environmental Commissioner is concerned, part III, PACT regrets that the Environmental Commissioner lacks the powers to effectively protect the environment and to assist the people to achieve a healthful environment. We don't see him as anything more than a report writer. PACT recommends that the Environmental Commissioner be empowered to hear appeals from citizens where any citizen shows that the minister is not acting to protect the environment, as defined in Bill 26, and that the Environmental Commissioner be empowered to hear appeals from citizens where a citizen shows that any Ontario environmental law or regulation has been violated.
Part IV, application for review: Again in this part, PACT finds that far too much discretionary power is left with the minister, with no provision for appeals or remedial action. PACT recommends that a citizen be permitted to appeal to the Environmental Commissioner any decisions made by the minister in sections 69, 70 and 71 and that within 14 days from the receipt of the appeal the Environmental Commissioner must hold a public hearing to hear the appeal.
Application for investigation: PACT recommends that a citizen be permitted to appeal to the Environmental Commissioner any decisions made by the minister in sections 77 and 78 and that within 14 days from the receipt of the appeal the Environmental Commissioner must hold a public hearing to hear the appeal.
Part VI, the right to sue: Subsection 84(8) places the onus of proof of a contravention on the citizen. How could any citizen or non-governmental environmental organization afford to take on the government of Ontario? The legal costs and the costs of technical experts in an adversarial situation could bankrupt a citizen or an NGO.
This part is a clear admission that the government recognizes that the Ministry of Environment has failed and is failing to enforce the environmental laws and regulations in Ontario. PACT recommends that to assist citizens in their attempts to achieve the purposes of Bill 26 an intervenor funding clause be added, such clause to provide that intervenor funding pay at least 50% of any court action.
I've gone over my time a little bit, Mr Chairman, but I'll conclude there.
The Vice-Chair: No, that's fine. Thank you very much for your presentation.
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Mr Grandmaître: I'd like to follow up on intervenor funding because, as you know, some four years ago intervenor funding was started to help people or groups such as yours, not to fight the government, but to work out your differences. Are you telling me that in Bill 26, even if it's not mentioned -- maybe I should be addressing my question to the parliamentary assistant. Is the intervenor funding -- let's call it "program" -- in the province of Ontario excluded from Bill 26 or included in Bill 26?
The Vice-Chair: This is actually your time, but would you permit a response?
Mr Parish: Yes, certainly.
Mr Shaw: The intervenor funding is not included under Bill 26.
Mr Grandmaître: Excluded?
Mr Shaw: It's excluded.
Mr Grandmaître: Can I ask why? On your behalf.
Mr Parish: Yes, thank you.
Mr Grandmaître: Why?
Mr Shaw: To answer that question, I think you have to go back and look at the derivation of the bill. The bill, as has been spoken to before, is a result of consensus developed by a task force and public input to that task force and supplementary recommendations. The bill that has been brought forward in the legislation basically is a reflection of that position. The task force did not see fit to include provisions for funding underneath this bill at the time they created it and none have been included since that time.
Mr Grandmaître: That's it.
Mr David Johnson: I agree with your statement that the ministerial statement should be here and should be part of the public process. A number of other groups have indicated that same fact.
You posed a question and maybe on your behalf I'll pose it to the staff over here so we can both get an answer. I think the question, when I was coming in, was that this environmental bill is in place and how does it impact on existing landfill sites such as Brock West, for example? You have some concerns about Brock West. How does it impact upon new landfill sites? How does it impact upon the IWA process? It seems to me we've discussed this in the past, but there isn't a clear message. I wonder if you could give us the full gamut of how this bill is going to impact on all aspects of landfill, including the IWA.
Mr Shaw: If I may break the question down and start with existing landfill sites which already have a certificate of approval, what the bill provides for is for any two residents to request a review of that certificate of approval. The bill also provides for a request for an investigation if there is belief that the certificate of approval has been contravened with respect to a new waste disposal site or landfill.
It's hard to generalize, but if we are talking about a major waste disposal site for a municipality for solid waste disposal, because the approval mechanism for such sites is underneath the Environmental Assessment Act and the Environmental Assessment Act contains provisions for public participation in it, then there is not a duplication under the Environmental Bill of Rights and the process proceeds only under the Environmental Assessment Act.
The Vice-Chair: Mr Wiseman.
Mr Parish: May I just respond to that answer? No?
The Vice-Chair: Okay.
Mr Parish: Here you have a situation: If you're going to go to the Environmental Commissioner to go to the Ministry of Environment because a certificate of approval is being violated, you're playing bureaucratic games. Why can you not go directly to the minister responsible for issuing the certificate of approval and get an answer from him? I think it just makes a citizen more frustrated. How does the bill help us? That's the question. We should be able to go to the minister and if the certificate of approval's being violated, the minister should put it right or hold a public hearing or some other thing, but it should not have to go from one to another to another. I don't think the people are served by that kind of duplication.
The Vice-Chair: Mr Wiseman, do you want a quick question?
Mr Wiseman: Yes. I guess my question really is, if we go back to the 1980 changes that were done to the certificate of approval to eliminate the Liverpool Road bypass through Brock West and the infilling that took place there, that was all done pretty quietly. I'd just like to have a comment from perhaps counsel or the parliamentary assistant about how the registry would have played in a situation where there was an attempt to change the certificate of approval.
The Vice-Chair: Again very quickly. We are already behind time.
Mr Shaw: There was a proposed amendment or change to an existing certificate of approval, and if it did not require a hearing under the Environmental Assessment Act, then there would be a requirement for notice on the public registry.
Mr Wiseman: So the public would be notified through the registry.
Mr Shaw: That's correct.
The Vice-Chair: Thank you, Mr Parish and Mr Steele, for appearing before the committee and for submitting your brief, which I'm sure is going to be useful to the committee. Unfortunately, the time is very short but I think you understand that there are a number of people, obviously, who want to appear before the committee. So thank you and we appreciate your presence.
BRUCE PENINSULA ENVIRONMENT GROUP
The Vice-Chair: The next presenter is the Bruce Peninsula Environment Group, Siegfried Kleinau. I think you're familiar with the process. It's 20 minutes, and if you want to leave some time for questions and answers, we'd appreciate that.
Mr Siegfried Kleinau: Thank you very much, Mr Chairman, members of the committee, for a chance to make this presentation. My name is Siegfried Kleinau, better known as Ziggy. That's what everybody calls me. Some call me worse than that.
We've been involved in this process, trying to work out the best way of addressing all the problems in the environment. Our group had a few meetings on it with a lot of input, but it has been kind of put in a certain context in the report that I would like to present.
The environment is the basis of life. The air we breathe, the water we drink, the soil that grows our food, if any of it is contaminated, life suffers. The longer the contamination exists, the more living species will be affected by way of the graduated food chain.
We couldn't have said it any better than Environment Canada. In their fact sheet on water, which was released in 1989 under the title Clean Water: A Priceless Asset, they say that water is the lifeblood of the environment, essential to the survival of all living things, plant, animal and human, and we must do everything possible to maintain its quality for today and the future.
We have witnessed death and destruction in the animal world. We are seeing human immune systems breaking down under the stress of coping with a polluted environment. There is hardly a person to be found who is not suffering from one allergy or another. Especially children show many forms of environmentally induced allergies.
We need to defend our right to a clean environment. Therefore the Bruce Peninsula Environment Group is fully supportive of a speedy introduction of Bill 26.
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Realizing the need to protect the health of all peoples, we would like to see this reflected in the categoric approach to the measures taken. Firstly, in the preamble, we recommend changing the word "healthful" to "health-giving" to fully underline the reason for strong environmental protections. Just as important, we urge the committee to remove from all clauses of the act all limitations, like "unreasonable" threat or "significant" effect on the environment. There is just too much leeway given for interpreting these restrictions. Make this law a strong, explicit one. Don't weaken it right at its inception.
In part II, sections 5 and 6, there is only a brief reference given to the establishment of an environmental registry. As this, in our opinion, is the pivotal point for the public to obtain all information and enable residents to participate effectively, it is paramount that this institution be given the status it deserves.
Therefore, a fully qualified registrar should be appointed under the Public Service Act to administer the registry, and this should be written into the bill. This registry should be set up to afford the easiest access possible to any resident of Ontario. It should receive the latest updated information from all the ministries.
In regard to sections 19 to 48 of part II, we would like to refer to a statement made by the Task Force on the Environmental Bill of Rights in its report released July 1992, where it states on page 71: "The task force does not wish to encourage the development of overly formalized `bureaucratic' processes that discourage rather than facilitate investigations."
These above-named sections have been especially expanded from the original draft in such a cumbersome way that its original intent has been lost in bureaucratese. Outline the main directives only.
In other respects, we find that the ministers are given too much flexibility in making decisions by overriding stipulated rules.
Part III envisions the installation of an Environmental Commissioner. His or her office is the key to enforcing the statutes of this vital bill. Therefore, we find that the commissioner should be an especially elected member of the Legislature -- not appointed -- to be more accountable. He or she should be next in line only to the Premier of Ontario. The commissioner should also have the same powers as the Provincial Auditor, with full access to all ministries' dealings and documents under the act.
The commissioner should also have the duty to make public all contraventions of the act by personnel of ministries and recommend suitable action against these contraveners.
Regarding part VI: As this part of the act gives persons the right to sue to prevent or rectify environmental harm to a public resource and court action is being used only as a last resort, it would seem logical that under the circumstances, plaintiffs should not carry the cost of these actions on the public's behalf. We urge, therefore, that intervenor funding be made an explicit part of the act to ensure that environmental concerns are fairly represented.
We see a problem in the judiciary dealing with an increase in the number of environmental damage cases. There is not enough expertise regarding the different aspects of the workings of our natural environment to ensure a competent hearing. A special branch of the court system should be created, with the appointed judges receiving special instruction geared to environmental knowledge.
We strongly recommend a toll-free calling system for people reporting environmental contraventions, naming it the environmental crime-stoppers line. There should also be a free legal advisory service specified in the act.
We welcome the protection the act gives employees concerned about harmful practices in industry, but feel it could be strengthened.
Last but not least, let us stress one point: A law is only as good as its enforcement. We have seen it for decades now in the federal jurisdiction: thousands of warnings issued, a few court cases, but only a handful of convictions. This doesn't send the right signal to polluters. Strong enforcement entails a well-trained, well-funded investigation branch, no-nonsense prosecution and a dedication to protect our all-important health-giving environment.
With that, I thank you very much for the opportunity to make this presentation.
Mr David Johnson: Well, Ziggy, I appreciate your presentation and deputation. It's going to be very helpful to us. I must say that the comment with regard to the court system being able to handle the cases and having the expertise to handle the cases is an issue that's been raised before and I suspect you've put your finger on something that very much will need to be looked at when this is implemented.
I just wondered, however, since your group has been in operation since 1989 and has a number of members, I assume -- I don't know exactly how many -- in your experience and your group's experience, what sorts of environmental problems -- perhaps if you could tell us the kinds of issues that you've seen in those years specifically about which you think this bill might be helpful to you.
Mr Kleinau: We have looked, especially because we're a peninsula, at the water pollution and regarding especially the human waste, farm waste and also the pollution that is coming out of the Bruce nuclear plant, which is not on the peninsula but not too far down the shore from our region. Besides that, we know that any kind of chemical pollution will eventually get airborne out of the water and will come down on the land and contaminate crops and the feed that livestock eat. In other words, it will get into our food chain.
Mr David Johnson: You mentioned farm waste in there. Could you be specific as to how you feel your group might use this bill against whatever form of farm waste you think there is?
Mr Kleinau: I know that there's been a strong lobby by the farmers' organizations not to have too much intervention by Bill 26 into the farming operation. It's been mentioned in several parts here that -- I forget now the specific name of the farm act that seems to supersede a number of matters that could be brought up as environmental harm. But I would think if the government put more emphasis on the organic way of farming, it definitely would help as far as the contamination of water is concerned.
Mrs Mathyssen: Thank you for coming and presenting to us, Mr Kleinau. I see you have two concerns here and I'm wondering if representatives from the ministry, through the parliamentary assistant, might address these specific concerns. One was with the registry, and we had a quite extensive description of how that registry would function and how it would provide information, and secondly, the independence and accountability of the commissioner. Could the parliamentary assistant or the ministry staff through him explain specifically those two areas and perhaps ease some of Mr Kleinau's concerns?
Mr Shaw: The envisioned access to the electronic registry at this time will be by a variety of means. It could be from a modem at a home computer. It could be by any of the existing networks and probably through major public libraries. It will be accessible, if you're using a home computer, through a 1-800 number dial-in, so there'll be no charge to go into the registry itself. The intent is to be able to reach as many people as possible with the registry.
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Mr Kleinau: When you're talking about major public libraries, how far would we, for instance, have to travel to access the registry then?
Interjection: Wiarton.
Mr Kleinau: We have small libraries in Tobermory and Lion's Head. The first one that is slightly major would be Wiarton, which is about an hour's drive from the top of the peninsula.
Mr Shaw: I'm not in a position to answer your question specifically. I could tell you it would be approximately 200 libraries across the province.
The Vice-Chair: Any further questions? Mr Grandmaître.
Mr Grandmaître: Yes, just one question. I know that you've been very interested in the Niagara Escarpment Commission for the last number of years. I remember, as Minister of Municipal Affairs, receiving letters from you. Do you think that Bill 26 will help your group and other groups that are dead opposed to this commission? Do you think Bill 26 will be a useful tool?
Mr Kleinau: I really would like to have more public access shown in this bill. That would definitely be a big help.
As far as the NEC is concerned, there are a lot of different attitudes. If you remember that a lot of people have lived there for the length of their lives and all of a sudden they find themselves under the NEC, they are certainly not happy as far as the provisions are concerned. But then we have a very distinctive member of the community up there by the name of Maitland Warder. He's a commissioner on the NEC and his whole life has been spent up there and he's very supportive of what the NEC is doing. In other words, I can't really say one way or another how this bill is going to affect people who might have concerns against the NEC.
Mr Grandmaître: Or even protect you from the decisions of the NEC.
Mr Kleinau: As far as I'm concerned, there's always controversy in everything. This bill might open up a way of addressing it. I'm not 100% sure, so that's all I can say to that.
Mr Grandmaître: Would you like to see the NEC disbanded, giving these responsibilities back to the 27 or 29 communities involved on the --
Mr Kleinau: No, I definitely wouldn't.
Mr Grandmaître: Very good. Thank you.
The Vice-Chair: Thank you very much, Mr Kleinau, for your presentation. We appreciate your appearance before the committee and I'm sure we'll take your comments into careful consideration.
Mr Kleinau: Thank you. I recommend this as reading for anybody because it really opens everybody's eyes. A fact sheet --
The Vice-Chair: If you want to leave it with some of the members, you're free to do so.
Mr Kleinau: Yes, I could leave that with the clerk, if possible.
The Vice-Chair: You can give it to the clerk, yes.
WILDLANDS LEAGUE
The Vice-Chair: The next presenter is the Wildlands League, Tim Gray. Please have a seat. You have 20 minutes, and if you would leave some time for questions and answers, we'd appreciate it. Perhaps you'd like to go right ahead because we are already a little bit behind time, as you realize, because you were scheduled at 4:30.
Mr Tim Gray: My name's Tim Gray. I'm the executive director of the Wildlands League, which is the Ontario chapter of the Canadian Parks and Wilderness Society. We have 15,000 members nationally and approximately 7,000 members and supporters in Ontario. The area we work in is forest policy, protected areas, and to a lesser extent fisheries and wetlands.
I've been involved, personally, with a number of issues that I think the Environmental Bill of Rights will have impact on in various areas. I've acted as co-chair of the Forest for Tomorrow coalition, which is involved in the class environmental assessment and timber management. I also sit on the Old Growth Policy Advisory Committee in the Ministry of Natural Resources, as well as being involved in other advisory committees mainly with the Ministry of Natural Resources.
The Wildlands League supports the Environmental Bill of Rights and recommends it be given third reading and royal assent as quickly as possible. The league particularly supports the four main thrusts of the bill: (1) increased public participation in environmental decision-making by government; (2) enhanced governmental accountability for its environmental decision-making; (3) creation of the right to request investigations of suspected environmental offenses; (4) Enhanced ability for members of the public to appeal certain approvals and to go to court to protect public resources against environmental harm.
I think taken together the various EBR tools will provide an effective framework for the Wildlands League and other conservation groups to advance an environmental agenda respecting the protection and conservation of Ontario's natural resources.
As I have previously indicated, the Wildlands League supports the Environmental Bill of Rights, and we look forward to using it as sustainable resource management policies and practices are developed and implemented in Ontario. However, there are six provisions of the EBR that the league would like, in hindsight, and are desirable suggested amendments to strengthen the bill.
First, in the preamble and purposes section of the bill, we generally support it, and we specifically support the principles in subsection 2(2), paragraphs 1 to 5, the ones that refer to biodiversity, protection of natural resources, wise management of natural resources and protection of ecologically sensitive areas.
We would also recommend, however, that the phrase, "by the means provided in this act" be deleted from clauses 2(1)(a), (b) and (c), because we believe it unnecessarily dilutes the otherwise strong language that's found in this section.
The second point is that we support the statement of environmental values. We think perhaps the drafts that are put together by a ministry such as MNR should have a longer comment period than the 30 days suggested and in fact should be increased to 60 as a minimum.
Part II, public participation in decision-making: We support this regime that's established in Part II of the proposed bill and we're very happy that the two ministries we most often work with, the Ministry of Natural Resources and the Ministry of Northern Development and Mines, will be caught within section 15; that is, the notice and comment on proposed acts and policies.
It's also true, from what we can understand, that maybe the acts and statutes these ministries operate under will be caught by section 16, notice and comment on proposed regulation, and also by their operating instruments under section 22. However, the league feels that the draft EBR regulation allows too much time before these ministries come underneath the provisions of the bill, some of them not to be phased in until 1995 or 1996.
We would suggest that the time frame be moved forward and that there is no real reason why both the Ministry of Northern Development and Mines and the Ministry of Natural Resources couldn't come underneath the provisions of the EBR at a much earlier date.
Part III, Environmental Commissioner: We support the creation of an independent environmental watchdog and believe the Environmental Commissioner will provide an important and an efficient mechanism to review and report on environmental mismanagement by government.
Part IV, request for review: The Wildlands League sees this part as a particularly valuable tool to cause review of existing laws, policies, regulation and instruments that are obsolete or inadequate to protect the environment. From our experience, policies such as the 1972 forest production policy, the 1964 Crown Timber Act, and the parks act which was last amended in the 1950s, I feel all of these are either policies or acts that could fall underneath the review sections of the Environmental Bill of Rights, and we would use them.
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In addition, we believe that part IV will cause a review of the need for new laws, policies and regulations where they don't exist presently. In some of the areas that we're working on now, we feel there is a need to push for new acts or new policies, such as old growth forest, wildlife or biodiversity.
Section 6, the right to sue: The Wildlands League supports this new cause of action since it will provide an important tool of last resort to protect public resources, like crown timber, watercourses, lands, parks etc. We have had experience where we have been unable to use the existing policy framework, the existing appeal process to seek recourse for environmental damage that's been done to public lands. I think having a tool that is there, that both industry and the bureaucracy realize we have legal recourse to as a final end point, could be very advantageous to us.
Due to cost considerations, the lack of funding under the bill, we don't foresee a flood of litigation under this section, but I think it definitely should be available when, as I said, non-judicial attempts to protect resources have failed.
We're pleased that a number of key resource management statutes, ie, the Aggregate Resources Act, Crown Timber Act, Endangered Species Act, Game and Fish Act, fisheries act and the Provincial Parks Act, will be underneath the Environmental Bill of Rights and can trigger a new cause for action if either the crown or industry is found to be in violation of these acts.
I'd like to thank the committee for the chance to present in support of Bill 26, and I'm more than happy to respond to any question.
Mr Wiseman: Thank you for your presentation. We were getting a somewhat mixed array of messages on this bill. I would like you to expand perhaps on that last comment you made about litigation, because we have heard from private sector companies that think they're going to be litigated to death, and that this is going to be a recycling of litigation and that every chance they get under section 61, groups are going to apply for certificate of approval reviews, and it's just going to go on, and on and on for ever. That's pretty much what we've heard from perhaps the mining sector, the forestry sector and the waste management sector. Could you comment on that?
Mr Gray: I can't comment from their perspective, but I don't think it's really realistic to assume that this bill is going to result in a flood of litigation. Litigation isn't easy for anybody, including groups that are trying to push a particular position, and I think the rest of the bill that carefully details how we can streamline and standardize the public review and public consultation process is going to help avoid that.
I think the advantage will be that concerns that have been voiced by a large number of people or by individuals or organizations that have been involved for a long period of time will be taken perhaps more seriously than they currently are, because I think under the case of serious violations of crown resources, right now there is the awareness by both industry and by government that we, as the public, really have no recourse, and that they can be pushed to the wall and there's not really anything we can do if we can't get a review or the damage undone or stopped through political or policy avenues. This provides, I think, a last resort, but I don't think people are going to preferentially choose litigation.
Mr Grandmaître: Are you disappointed that this bill, Bill 26, does not include the possibility of intervenor funding?
Mr Gray: I hadn't actually really thought about that too much, because we have had some intervenor funding through the environmental assessment process. I think it's worth considering the idea that if we've got to the stage where public organizations felt that they needed to take a particular issue through the legal route beyond the public consultation and review stage, then that could make the whole process much easier for groups to do that, because one of the barriers of litigation of course is the cost. So it would make that stage of the process, I think, more user-friendly for the public.
Mr Grandmaître: But you're not too concerned if it's not included.
Mr Gray: I'd still support the bill without it.
Mr David Johnson: In terms of the litigation, to get back to that again, one aspect is the volume: the flood or the non-flood or less than flood. The other aspect that was expressed by the previous deputant and by other deputants we've heard is the expertise of the judges, I guess, in the system to deal with these kinds of issues, that they may not indeed have that kind of expertise and some people are a little bit concerned with what sort of judgements they may make based on a lack of expertise. I wonder if you'd comment on that.
Mr Gray: It's definitely a concern. We don't want to see resource policy being decided on necessarily by the judiciary. They quite often do not have the training in the issues being discussed. But if there is a clear violation of an existing act that was written to protect crown resources and it can be shown that both the public review process and the political route were unable to resolve that and there is a clear violation of an existing act, I think it's important that we have the ability to go that route. Even if it is perhaps with a particular government a political issue that it would prefer to keep doing things in the way they've been done and violating one of the statutes in the province, I think we should have the ability to challenge that.
Mr David Johnson: I was just curious. If this had been in place a couple of years ago, the Environmental Bill of Rights, how would your group have used the bill over that period of time?
Mr Gray: I don't know if we actually would have ever got to a litigation stage with the bill, but I think the other components of it, the review aspects and the streamlining of the public participation, could have resulted in some of our concerns being taken more seriously by the agencies responsible for resource management decisions.
As you know, there are varying levels of public participation between ministries and some are better than others at having their own processes in place. The Ministry of Northern Development and Mines has a very limited public participation process and having the aspects of the bill that will provide for that in place would have helped us in dealing with that ministry to quite a large degree.
I also think some of the provisions on the legal side and some of the provisions in the Crown Timber Act for sustainable harvest of crown forest could have been used by our organization to push for sustainable harvest of Ontario's forests. I think if both the Ministry of Natural Resources and the forest industry were aware of the possibility of litigation to force compliance with that act, they might take its provisions more seriously.
The Vice-Chair: Thank you very much for your presentation. We appreciate your presence.
ASSOCIATION OF CONSERVATION AUTHORITIES OF ONTARIO
The Vice-Chair: The next presenter is the Association of Conservation Authorities of Ontario, Jill McCall, executive director. I'm sorry, Richard Turkheim is the executive director and Jill McCall I think is accompanying him.
Mr Richard Turkheim: Thank you, Mr Chair. The hour's late.
The Vice-Chair: You have 20 minutes.
Mr Turkheim: The presentation is brief, and the presentation will not get into a dissection or a clause-by-clause of the bill. We want to talk more broadly and generally about the context of this bill. We're pleased to be here to meet with you this afternoon with regard to Bill 26.
First point: Ontario's conservation authorities fully support the intent of this legislation: to protect, to conserve and to restore the integrity of the environment. These are the very values that the conservation authority movement has been promoting and advocating for over a half-century in this province.
Ontario's 38 conservation authorities have consistently recognized the need for and the value of maximizing public participation in and scrutiny of decisions related to the planning and the management of natural resources in our watershed. This is a direct outgrowth of our parentage and our municipally styled decision-making processes. All but the most routine decisions are made by conservation authority boards of the people's representatives, the same boards that review on a regular basis even the routine decisions of authority officers.
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The style, the openness and the full public and financial accountability of our decision-making in the public interest are fundamental traits of conservation authorities and our movement. It indeed gives rise to and forms the basis upon which we can provide support to the intent of the proposed bill.
However, these same traits of ours also cause us to question the need for and the cost-effectiveness of the Environmental Bill of Rights, especially within the current fiscal climate of this province, a negative fiscal climate that is indeed, on many other accounts, jeopardizing other forms of provincial support for the environment.
The ACAO supports the intent of the Environmental Bill of Rights and its underpinning principles, particularly the people's right to a healthy environment, to be informed, to be heard, to request a review, to initiate an investigation, to take action and to blow the whistle. Those are valid things.
However, we question the ultimate successfulness of this type of legislation in meeting the positive goals of this province for the environment. We are all well aware of a new language that has been developing in the field of natural resources management, a new language that centres on new words such as "proactive," "partnerships," "ecosystem approach," "sustainable development" and "conservation of biodiversity."
All of these words have been used to describe a new field of thinking or a new way of looking at things, to acknowledge that everything is related to everything else, in the words of Crombie, or to acknowledge, in the name of another renowned conservationist, that there is no such thing as a way.
We question, though, whether this type of legislation is the most effective way to deal with the tenets of this new philosophy and the new language. We question whether the Environmental Bill of Rights advances the cause of sustainable development, because we do view this bill, and perhaps we're wrong in this view, as in fact working in the direction of and trying to augur and provide greater support to sustainable development, that being an overall provincial objective.
We ask that question because in our view the bill could perhaps inadvertently perpetuate the myth of the environment versus the economy, pitting the two against each other as if they were adversaries, when in fact the environment and the economy must work to achieve complementary goals. We're also concerned that the proposed legislation focuses more on policing and pollution control and in fact placing the environment into protective custody than on better planning and more proactive measures to ensure that environmental values are brought into the mainstream of economic decision-making. That's a concern.
Further, the legislation seems to be more reactive than proactive, by putting specific mechanisms in place to deal with decisions after the fact or by encouraging reactions to, as opposed to the prevention of, incidents of pollution. The end result, we fear, is that the legislation, as proposed, does little if anything to promote increased awareness of, education about and valuation of the environment as our basic capital asset upon which the prosperity of this province has been built and upon which it will continue to be built.
This legislation could engender a lot more process without accomplishing much increased benefit for the environment and the public. As very open, democratic and accountable watershed management agencies, we face continually reduced provincial funding for delivery of our environmental programs. Lack of assurance to this point in time that the Environmental Bill of Rights will not further consume operating capital in critically short supply causes us concern.
As you will remember, earlier this year conservation authorities' operating grants for environmental programs were cut by 22%. At a time when we are significantly reducing costs, we question the need to add more costly process. Many of our clients are already concerned with the amount of time taken to process applications and would not welcome further delays that this process could cause.
We would strongly encourage the architects of the proposed legislation to ensure that this legislation is more visionary than reactive. We can go back to the seven points of principle upon which it is based. Three are proactive; four strike me as reactionary.
The worst-case scenario is that the many publics we commonly serve will view the proposed Environmental Bill of Rights as yet another example of the piecemeal approach to environmental protection and planning. As a province, we have over the years created a tangled maze of approvals that many people see as inefficient and ineffective in protecting the very resources and the natural systems we seek to safeguard. No doubt many of you are familiar with that kind of diagram that the conservation authorities have placed before all members in the House.
Since our formation, conservation authorities have been key players in natural resources planning, management and protection in Ontario; it is our legislated mandate. We have witnessed at first hand many of the serious problems that exist as a result of the way responsibilities for management of our environment are currently parcelled out among agencies. As we've pointed out in our Blueprint For Success, whence that diagram comes, we have to stop introducing ad hoc pieces of legislation that only confuse an already complex regulatory framework.
In our work at the local level in Ontario's watersheds, we consistently help many clients on a daily basis who are struggling to work through the maze of agencies and legislation in order to find logical ways, simpler ways, more cost-efficient ways, to better manage and enhance the resources of our watersheds. Our clients' most fundamental problem is that with so many players involved there is never anyone who will take full responsibility for any decision.
If, working together, we are to achieve greater levels of sustainable development in Ontario, we must move to an ecosystem-based approach to planning and development that would better prevent many of the problems that the Environmental Bill of Rights is attempting to address after the fact.
We need to move to an approach that better integrates upfront, not after the fact, and we need to move to an approach that is more inclusionary of many parties' different valuations of and positions on the environment and development, not an approach that tends to celebrate and vaunt such differences after the fact.
Whatever we do as a province, we need to seriously address citizens' concerns about layer upon layer of new legislation. We need to undertake a comprehensive review of the legislation currently in place and the agencies involved, to reduce the overlap and the duplication and to allow for more comprehensive and participatory environmental management to occur in this province.
The challenge is to develop a new system that integrates the various issue-specific legislation, regulations and mandates into a comprehensive ecosystem planning and management system. Such a system must provide for what I would term the comprehensive valuation and management of all aspects of the ecosystem under one jurisdiction. That jurisdiction must cover the entire watershed.
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In summary, from our perspective the Environmental Bill of Rights in itself is a solid piece of legislation for the 1970s, but we're worried that it does little to really advance people's understanding of, acceptance of and willing participation in sustainable development in Ontario in the 1990s and beyond.
Sustainable development in this province will only be achieved if we move to an ecosystem-based management approach. That includes planning that is focused on sustainability of our natural resources base and it includes streamlining of our current delivery systems to eliminate waste and confusion that currently impede stronger protection of the environment.
As stated earlier, we see merit in certain features proposed within the bill. While we question whether the proposed legislation overall represents the best return on a public dollar invested in strengthened public understanding and support for the environment, we will incorporate the legislation's positive features in our operations. We've consistently followed such an approach in incorporating other improvements to our service record over 50 years, and we'll continue to do so.
Mr Grandmaître: You question the ultimate success of Bill 26 for a number of reasons. One reason you've pointed to was the cutback in grants accorded to the conservation authorities of Ontario -- you had a cutback of 22% or 23% last year -- and you also mention that this could be an additional cost to conservation authorities. Can you explain this?
Mr Turkheim: We anticipate there will be costs for conservation authorities in terms of complying with the legislation.
Mr Grandmaître: In what way?
Ms Jill McCall: We're looking at additional costs for the environmental registry which has been discussed, the hardware and software access etc. We're looking not only at the costs from the authorities' point of view but from the development industries' point of view in our client base, and they're looking at delay costs in the processing. Whether those will actually exist or not, we're not sure.
Mr Grandmaître: Is that the reason you told us this bill could be seen as the environment fighting the economy or vice versa?
Mr Turkheim: No. The point I was trying to make there is that, from our approach over 50 years, what we've always tried to do is bring development and environment to the table at the start, up front before decisions are made, not after decisions are made.
This bill strikes us as reactive. It puts in place a number of particular tools and mechanisms that are intended to give a second kick at the cat after a decision is made.
We have limited dollars in the treasury and we have to decide where they're best invested. From our viewpoint on the investment of those dollars, if we're interested in sustainable development, if we're interested in wider public, positive valuation of the environment over the longer term, the question has to be answered: Are those dollars better invested in upfront tools, mechanisms, procedures etc that get people into the planning and decision-making process, rather than putting a door in place for them afterwards?
Mr David Johnson: I had the opportunity to serve on the Metropolitan Toronto and Region Conservation Authority a few years ago and I know from firsthand experience that the people in the conservation movement are very concerned about the environment but have a great deal of common sense. I certainly value the experience you bring here and am most interested in your brief.
You've indicated that there could be delays in the process. You're talking about the development industry, but conservation authorities themselves have major capital projects in various areas. You have to operate within time frames, you have to operate within budgets and the projects have to be done at certain times of the year to be effective, and I'm wondering if you're saying this could impact directly on your own capital projects, that there could be a delay or various appeals against projects the conservation authorities might be doing.
Mr Turkheim: It's a possibility. The extent of the application of the bill is currently a matter of discussion among two ministries, Environment and Natural Resources, and ourselves, and many of those details have to be worked out.
Mr David Johnson: But there are many projects involving river valleys, for example. Storm sewer projects go into the valleys. They may be more municipal projects. These are projects that could involve appeals, reviews, that sort of thing. Has this been discussed at the conservation authority?
Mr Turkheim: Yes. I'll turn that question to Jill, because of her involvement in that area in some detail.
Ms McCall: Capital projects that we currently undertake are done through the class environmental assessment process, and I don't anticipate we would have much further delay. Our class A was just renewed last year. We've included a much more rigorous public participation component in that class environmental assessment document, and we think it will fulfil all the concerns that the Environmental Bill of Rights is meant to address.
Mr Wiseman: On this whole question of sustainability and sustainable ecosystems approach, I've been involved in environmental issues for some time. One of the things -- and I've said this to other groups -- that causes the greatest concern for an environmental group is to not have the information, to not be included in the process. Out of that comes a fear that somehow or other they're not being treated fairly or they become cynical and look for conspiracies or whatever.
Every group that has been before the committee that has come from the environmental movement has indicated that they feel the registry will be one of the best tools they have to get information, to be included in the process. When they heard there would be a modem access to this registry and that the registry would be delivered to schools and libraries via a modem they were quite pleased with being able to get that kind of information. The fact that these announcements and activities would be on the registry, allowing them to have access to it so they could monitor it in a way that would be meaningful to them, all these things were really quite positive and did not reflect the view that you've just given in terms of being reactive. It seems to me that what they're screaming for is some mechanism to allow them to be proactive and that they want to be involved. The rest of the bill really only happens if that doesn't work.
Mr Turkheim: You're referring to the kick-in parts. I would agree on the value of the registry for those purposes outlined. If indeed it motivates, particularly youth, to greater levels of involvement, awareness, sensitivity to valuation of the environment, that's wonderful.
The ad hoc reference I made to the legislation as being somewhat based in the 1970s and reactive refers more to the whole concept of the legislation itself and to some of the other tools that would come into play with regard to further petition of approvals granted or permits sought.
Mr Wiseman: Were you here when PACT made its presentation on the environmental issues?
Mr Turkheim: No, I wasn't. I'm not familiar with what PACT is.
Mr Wiseman: They are most concerned about the whole process around the Brock West landfill site, which happens to be in my riding, and how it managed to achieve level after level of approval, expansion after expansion, with no certificates. They feel really strongly that they should be involved in the process and that they should participate, that in fact there is a place in legislation to empower local groups to do just that.
While you say that is a 1970s approach, I wish it was even more antiquated than that and unnecessary, but fundamentally, there are things happening out there by people who do not necessarily take the high road in terms of what they do in communities. The operation of the Brock North, Brock West, Beare Road landfill triangle in my riding and just across in the other is a good example of what it is that really makes community groups angry and want to participate and want to have this kind of legislation.
Mr Turkheim: There may well be, widely spread throughout this province, situations such as was just referred to where the merits of the bill are clear. The comments we make are based on our operations, our environment, if you will; those 100,000 square kilometres we try to take care of from a watershed and ecosystem perspective.
The Vice-Chair: Thank you very much. We appreciate your presence; your intervention is valuable to the committee. Time is not very long, but you did get your 20 minutes.
Mr Turkheim: I'll leave this here.
The Vice-Chair: Thank you. The clerk will distribute that.
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LUNG ASSOCIATION, METRO TORONTO AND REGION
The Vice-Chair: We have a final presenter, Cyrus Mavalwala, from the Lung Association, Metro Toronto and region.
Mr Cyrus Mavalwala: Good afternoon. My name is Cyrus Mavalwala. The Lung Association is an organization committed to improving air quality through education, research and advocacy. On behalf of the Lung Association, I'm pleased to have this opportunity to make the following comments.
The Lung Association views the Environmental Bill of Rights as a landmark piece of legislation which we support in principle. For example, we support increasing public participation in environmental decision-making by government through the environmental registry system and proposals for policies, acts and regulations. We also support the enhanced protection for employees who blow the whistle on polluting employers.
However, from an environmental health perspective, we believe the omission of the indoor environment from the EBR document weakens its ability to protect public health from indoor pollutant exposures. For example, under part I, section 1, the word "air" is defined as air that is "not enclosed in a building, structure, machine, chimney, stack or flue." We suggest changing this definition to one that includes air in private homes or apartments, office buildings and public and private buildings and institutions such as shopping malls, restaurants and schools.
Indoor air should be included in the EBR because studies have concluded that the air quality inside a home, office building or public place is often several times worse than the ambient air quality on even a smoggy day in the city. For example, TEAM studies -- total exposure assessment methodologies studies -- and Ontario Ministry of Environment and Energy studies found that most target compounds observed, such as particulates, volatile organic compounds and biologicals, were found in higher concentrations in the indoor environment.
Additionally, the World Health Organization declares that 30% of homes and office buildings contain enough indoor pollutants to cause adverse health effects that range from just a sniffle to more serious ailments.
Furthermore, most of us spend at least 90% of our time indoors, and for the young, elderly and sick, this percentage may even be higher. In all of these indoor settings, we need environments which will allow us to be productive and effective individuals. Poor indoor air quality has been associated with low productivity and increased absenteeism due to sickness. To disregard air quality in the EBR is an impractical allocation of resources.
The EBR is needed to provide leadership in the area of indoor air quality because no ministry is presently accepting the ultimate responsibility for indoor air quality problems. The EBR should fully address the problem of a lack of protective legislation for indoor air quality for the home, office and public and private indoor settings.
Currently in Ontario, no enforceable guidelines exist to create or maintain healthy indoor air quality. Heath and Welfare Canada does recognize sick building syndrome as a legitimate illness, but the citizen is often powerless when trying to remediate the problem because of the unenforceable standards or guidelines dealing with indoor air quality in Ontario.
The Lung Association recommends that the following additions to the draft regulation of the EBR be made: The Ministry of Education, the Ministry of Consumer and Commercial Relations, the Ministry of Housing and the Ministry of Labour should be included under parts II, IV, V, VI and VII of the EBR.
The Lung Association works with the community to improve air quality and therefore would like to be involved with any further discussions of the EBR or any work group dealing with indoor air quality issues.
On behalf of the Lung Association, I would like to express my gratitude to the standing committee on general government for the opportunity to comment. Thank you. I'll be happy to field any questions.
Mr David Johnson: It was a very interesting deputation and I certainly thank you for it. I wonder if you could elaborate a little, if the air quality was part of the bill, on how you would see that working. For example, if I was dissatisfied with the air in this room, whom would I lay a charge against or who would I --
The Vice-Chair: The clerk.
Mr David Johnson: The clerk? I say that because there may be a number of different influences, and you would be the best qualified here in this room to tell us that, I'm sure. There's the street, there's the general smog -- you mentioned the smog conditions within the city itself -- and it may not be totally within the clerk's jurisdiction to be able to deal with all the pollution that's in this room at the present time. How would it work?
Mr Mavalwala: That's a problem. Currently, people will phone us and say: "We think there's an air quality problem. What can we do about it?" They can phone the various ministries in relation to the problem. For instance, if it's a school, some will say it's the Ministry of Labour and then some will say it's Education. But no one has a specific mandate and responsibility to take care of that problem. When they go to the Ministry of Education and if they talk to it, the ministry will say, "Even if it is a problem, the budget's low," or something like that. Because it's not enforceable, usually nothing gets done about it.
Mr David Johnson: Your association has probably looked into the sources of pollution. I think combustion in the automotive engine, for example, or vehicles is a prime source here within an urban area like Metropolitan Toronto; factories and various sources like that. These would be somewhat external to this particular room, but I imagine their influence is coming in here.
Where would you see this leading? Would you see this leading to forcing more restrictions on automobiles or on factories, or just in dealing with influences that are internal to the room itself?
Mr Mavalwala: Certainly, the quality of the indoor environment is influenced by the outdoor environment, especially if we're taking in outdoor air to circulate within the indoor environment. However, the levels of pollution and types of pollution indoors are not very highly correlated with what's outdoors. In terms of some sources of pollution -- the curtains, carpeting -- it depends what type. If it's particle board, formaldehyde will come off; if this carpet got wet, maybe someone spilled some water, and it's a warm environment here, perfect for bacteria to grow; if the humidity's too high, maybe the ventilation's not suitable. Often, to conserve on energy, a lot of buildings will cut down on the ventilation or simply put plastic right over the intake so there's no fresh air coming into the building.
Often now, especially with partitions in buildings and so on, there are many more people per room than were supposed to be in how the building was originally designed. So I think we would be looking at specific indoor sources. We agree that the outdoor sources are a problem and we are working on those problems also, but the indoor air quality sources that are causing pollutants have to be examined on their own.
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Mr David Johnson: I presume smoking would be a big one there too.
Mr Mavalwala: Yes.
Mr David Johnson: I presume your association would see using this bill in terms of any buildings that still permit smoking.
Mr Mavalwala: Certainly. Just today, I got a call from a lady saying some of their workers don't want to be in the same room as smokers and is there some sort of mask or something that they can wear. The answer to that question is no.
Mr David Johnson: The Environmental Bill of Rights would be the answer, would it?
Mr Mavalwala: Hopefully, yes. I certainly hope so.
Mr Derek Fletcher (Guelph): Thank you for your presentation. I know you're coming at this from one perspective, and that's the indoor air quality. Other than that, you see the bill as a landmark decision and a landmark piece of legislation. I'm glad you see it that way, because so does the government of the day.
As far as indoor air is concerned, and Mr Johnson touched on this, a lot of people have done retrofitting, plugged up the holes. Ventilation isn't as good as it used to be any more and some of the products that were used to plug up the holes were just as bad or even worse than what was already there.
If I had a visitor in my house and they were getting ill from the air quality or something, the EBR, as you see it, should be there to protect them also. I'm just trying to get a grasp. Could I be charged or taken to court? I just want to get where you're coming from.
Mr Mavalwala: It would be different again if you lived in an apartment building. Then maybe you would have some way of getting the owner of the apartment building to rectify the problem. That brings on other questions such as the children. If their parents are smoking, can they sue their parents to get them to stop smoking and so on?
Mr Fletcher: Yes.
Mr Mavalwala: We haven't looked into every single avenue that might occur. Presumably, a friend, if they would go into your house, I don't think they'd want to sue you.
Mr Fletcher: I know what you mean.
You brought up an interesting aspect there as far as children are concerned. If their parents smoke, that would be a health concern as far as the children are concerned, the second-hand smoke. That is a ramification that could happen, could occur. Is there a way around this? Is there some way that we can include what you're saying without being ridiculous? I don't mean ridiculous in that way, but going to this far extreme.
Mr Mavalwala: I think certain parameters would have to limit -- regulations could be drafted to make it more specific -- what can be done, under what circumstances and so on. For instance, if someone came into your house, they have the option to leave. However, if they're working, do they have an option? Maybe. If they left and said, "I don't like the air quality," I can tell you what's going to happen.
Mr Fletcher: Could you address this under occupational health and safety in the workplace, as far as air quality is concerned? I know it's a tough one.
Mr Mavalwala: In terms of specific chemicals and so on, that's taken care of, but where the legislation is lacking is the office setting.
Mr Fletcher: I know. Government buildings are probably some of the worst.
Mr Mavalwala: There are a number of problems. There's a lot of legislation for factories and so on, for indoor air quality, if they're dealing with certain chemicals or pesticides and so on. But it is the office building that has been seen in the past as a clean environment, a healthy environment, and only now we're beginning to realize. We don't even know the full extent of the problem, but everywhere that's been tested they're coming up with new problems, new sources they haven't even thought about.
Mr Fletcher: A lot of these sources could be the --
The Vice-Chair: I'm sorry, Mr Fletcher, but Mrs Mathyssen has a question.
Mrs Mathyssen: Actually, I think probably I was going to ask Mr Fletcher's question. I'm quite interested in some of the things in terms of your investigations, your findings regarding the things we should look for in the sick building. What are they specifically?
Mr Mavalwala: Sick building syndrome can be from a variety of sources, of factors, and there are many health implications. Most commonly it's ventilation, and that would be from more modern buildings that are more airtight, that don't have leaks and so on which allow small amounts of air to come in. Their air ventilation is more tightly controlled, so if they want to turn it down on the weekend, when presumably not too many people are in the building, they can do that. However, they may switch it on half an hour before people enter the building Monday morning. That's conserving energy.
But for the workers, you're letting all the dust settle in the ducts and so on and when you turn it on, that's just spewing all the moulds and so on, whatever is growing there, if they're not cleaned out properly and so on, right into the environment. Ventilation maybe accounts for about 50%, as some studies would say.
Other sources of pollution are biological, from ourselves: house dust. Dust mites thrive on house dust and dust mites are number one in terms of allergic reactions. So if things aren't cleaned properly, that could be a problem.
Certain air filters: People think, "If I buy an air filter, that solves the problem." In many cases, the air filters don't do the job as the person selling them claims, and in some cases they can actually pollute the environment more so.
So it really depends. You have to go case by case if you are looking at a building or a roof and so on.
The Vice-Chair: Thank you very much for your presentation. We appreciate your presence.
This concludes the public hearings part of the committee sittings. We were able to accommodate all the people who had requested to appear before the committee.
I should remind the members who are left that if you want to put any amendments forward, the clerk would appreciate receiving them as soon as possible but especially before the 18th.
This concludes today's sittings.
The committee adjourned at 1737.