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| Theresa McClenaghan |
Back in the 1970s, Ontario oversaw public health and environmental protection in an ad hoc or project-by-project manner. There was little in the way of province-wide standards to put public health protection on an equal footing across the province.
This ad hoc approach favoured government discretion and project development almost to the exclusion of public participation.
There were no substantive requirements for the government or project proponents to ensure the public is provided information and allowed to comment on how a project may impact them or their community. And, there was certainly no acknowledgement of the duty to consult with, and gain consent from, Indigenous communities on proposals for their territories.
This ad hoc and government-led approach led to many communities being unfairly and disproportionately exposed to pollution.
In response, successive governments from all political parties built a system of environmental and human health protection focused on province-wide and health-informed standards, including obligations for public participation in development.
Although we have seen incremental erosion in this system in recent years, Bill 5 will be the death knell of Ontario’s modern environmental protection system.
Here’s how Bill 5 would dismantle our remaining environmental protection safeguards.
First, it would empower the government to create “law-free” special economic zones exempt from legal protections and public oversight in order to expedite resource extraction.
Bill 5 includes a “Special Economic Zones Act,” which would give the government the power to create “Special Economic Zones” where provincial laws, regulations, instruments, municipal bylaws and municipal instruments can be suspended to enable “trusted proponents” to develop projects. It also includes measures aimed at avoiding public accountability by seeking to shield government decisions from civil liability.
These “law-free” zones raise serious concerns about the rule of law. And allowing “trusted proponents” to bypass statutory protections puts human health and the environment at risk.
Second, it would exempt key projects from environmental assessment and erode core functions of environmental assessments.
Bill 5 exempts two significant projects from environmental assessment requirements. Specifically, the Dresden landfill and the Eagle’s Nest Mine, which is located in the Ring of Fire, are both exempted from an environmental assessment.
Third, Bill 5 would significantly weaken the government’s capacity to safeguard species that are endangered, threatened or of special concern.
It repeals the 2007 Endangered Species Act and replaces it with a weaker Species Conservation Act.
This new Act changes the purpose of Ontario’s endangered species legislation to require “sustainable economic growth” be factored into decisions related to the safeguarding of endangered species. It also narrows the definition of an endangered species’ “habitat” to dwellings and its immediate surroundings, excluding areas critical to full lifecycle needs.
It also expands the power of cabinet to ignore — without criteria — science-based proposals to list a species at risk under the Act. Non-listed species will receive no protection under the Act.
Finally, it reduces accountability by abolishing obligations for the government to create recovery strategies and report on species recovery efforts.
Fourth, Bill 5 weakens the Mining Act by amending the purposes of the Mining Act to emphasize the “protection of Ontario’s economy” without a commitment to preventing harm to public health and the environment. It also expedites the permitting process at the expense of ensuring a thorough and comprehensive review of mine permit applications.
Finally, since the 1970s, Canadian governments and courts have increasingly acknowledged the constitutional obligation to respect and protect Indigenous rights.
Meanwhile, Bill 5 repeatedly fails to acknowledge Indigenous rights, including the Crown’s Duty to Consult and the principle of free, prior and informed consent outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Here, Bill 5’s intent — the fast-tracking of extraction projects in areas such as the Ring of Fire by going back to a 1970s approach to environmental protection without meaningful assessments or consultations — may come into direct conflict with Indigenous rights.
Indeed, the overall premise of the legislation — that economic prosperity and environmental protection are opposed — is false.
It ignores something we’ve learned since the 1970s: how strong environmental laws underpin sustainable, long-term economic prosperity.
Theresa McClenaghan is executive director and counsel at the Canadian Environmental Law Association.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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