ECO report: Auditing Ontario's environmental protections

The Environment Commissioner of Ontario ("ECO") released his annual report last week. Media response emphasized the Commissioner's description of sustainable development challenges in southern Ontario, but a closer reading of the 200-page report reveals host of other important observations and recommendations. The entire report is available online.

The ECO's observations relate to the implementation of the Environmental Bill of Rights ("EBR"). The rights to a review, an investigation, and to notice and comment about important environmental decisions are all described in the EBR, which can be accessed online.

Key issues (comments on substance)

• The ECO noted that there was significant response to the proposed Great Lakes Water Resources Agreements, including much criticism. The ECO commended the Ministry of Natural Resources for responding to public comment and withdrawing its support in lieu of a "no diversions" agreement. (View Waterkeeper's submission)

• The ECO expressed concerns about lax enforcement of the Fisheries Act in Ontario, confusion about federal and provincial enforcement roles, and dramatic cuts to federal enforcement staff. The ECO recommended that government begin to address these issues by immediately consulting with the public on changes to the Fish Habitat Compliance Protocol drafted in 2004.

• The Ministry of Natural Resources included a statement recommending that Ontario residents who wish to trigger an investigation under the Fisheries Act use the petitions process and the office of the Commissioner of the Environment and Sustainable Development.

• The ECO describes how Bill 133 (known as the "Spills Bill") includes language that makes the Ontario Water Resources Act a tougher provincial tool, more similar to the federal Fisheries Act. (View Waterkeeper's submission)

• The ECO notes that the new Adams Lake Mine Act also amends the Environmental Protection Act to, "prohibit anyone from using, operating, establishing, altering, enlarging or extending a waste disposal site where waste is deposited into a lake that is at least one hectare in area, including a lake that results from human activities and that is directly influenced by or influences groundwater." This decision may affect proposals to dispose of contaminated sediments in Lake Ontario waters.

• The ECO commends the Ministry of Environment for improving the Permit-to-Take-Water program.

• The ECO confirmed that the proposed Scrap Tire Diversion Program Plan advocated burning tires, which is contrary to the Waste Diversion Act. The ECO also confirmed that the Plan was withdrawn in June, 2005. The public was never notified of this decision. (View Waterkeeper's submission)

• The ECO cited Lake Ontario Waterkeeper's request for a review of Procedure F55, the provincial policy that protects beaches from combined sewer outfalls. The ECO supports Waterkeeper's assertion that F55 is a valuable tool for protecting Ontario's waters and encourages the MOE to study the move towards mandatory compliance measures in the United States. The ECO commended the MOE for initiating a review of compliance with F55. (View Waterkeeper's submission)

• The ECO identified human pharmaceuticals in the environment as one important emerging issue. Pharmaceuticals such as contraceptives, pain killers, antibiotics, and antidepressants are being found in Ontario's drinking water supply and the effluent of our sewage treatment plants. The ECO states that pharmaceuticals in the aquatic environment may pose risks to ecosystems and to human health and demands attention.

• The Ministry of Environment only posted information about clean-up plans for the Deloro Mine site on the environmental registry after urging from the ECO. No decision on the clean-up plan has been yet been made, and no new information has been posted since December, 2004. (View Waterkeeper's submission)

Public involvement (comments on procedure)

• Since 2002, the Ministry of Environment has been updating thousands of Certificates of Approval but has failed to notify the public of environmentally significant changes.

• Too often, government fails to notify the public when it has decided not to proceed or postponed a decision. The ECO cited examples such as the Electricity Restructuring Act and the Strong Communities (Planning Amendements) Act, which became law in 2004 but no formal decisions were published until spring, 2005.

• Last year, the ECO received 15 applications for review of existing legislation or policies and 8 applications for investigation of suspected violations. The government denied the majority of these applications for reasons the ECO did not agree with.

• The ECO noted that only 1 of 7 leave to appeal applications was granted. This means that, with one exception, citizens and NGOs were denied the ability to appeal permits issued by the Ministry of Environment.

• The ECO notes that only one lawsuit has ever been launched under the right to sue for harm to a public resource provision. Similarly, no one has ever used the whisteblower rights provisions to report the unsafe environmental practices of their employer.