Lake Ontario Waterkeeper comments on proposal to remove Fisheries Act from Environmental Bill of Rights
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EXECUTIVE SUMMARY

Notice of proposed amendments to Ontario Regulation 73/94 (O. Reg 73/94) under the Environmental Bill of Rights (EBR) was posted on the Environmental Registry on April 18, 2008 (EBR Registry #010-2308). The draft amendments are not yet available, though generally the Ministry of the Environment is proposing to add new ministries and legislation to the EBR, update references to amended legislation, and remove the Fisheries Act from the application for investigation provisions of the EBR. Waterkeeper recommends the following:
Adopt the changes as proposed regarding prescribing additional ministries and statutes, in particular adding the Ministry of Health and Long Term Care to the list of ministries in section 5 of the regulation.
Incorporate additional ministries and statutes as recommended by the Environmental Commissioner of Ontario.
Do not remove the Fisheries Act from the list of prescribed legislation.
Make the draft Regulation available for public comment, to ensure transparency and informed consultation.
BACKGROUND
Notice of proposed amendments to Ontario Regulation 73/94 (O. Reg 73/94) under the Environmental Bill of Rights (EBR) was posted on the Environmental Registry on April 18, 2008 (EBR Registry #010-2308). No draft version of the amended regulation is currently available; Waterkeeper has relied on the description of proposed changes from the Ministry of the Environment (MOE)'s Regulation Proposal Notice.
The EBR, enacted in 1994, recognizes the need for government to provide transparency and accountability when making decisions that will have an impact on the environment. This legislation provides procedural requirements and legal mechanisms that enable the public to participate in government decision-making. O. Reg 73/94 outlines those ministries and statutes that are subject to the EBR requirements, giving meaning and force to this piece of legislation.
Four rights are created by the EBR. First, the public has the right to participate in government decision-making, including the right to review proposed policies, acts, regulations, and instruments, as well as the ability to appeal certain decisions. Second, the public has the right to make an application for review in order to have existing policies, acts or regulations reviewed. Third, the public has the right to make an application for investigation. Fourth, the public has the right to sue where harm to a public resource has occurred. In addition to these rights, a prescribed ministry must create Statements of Environmental Values; each Statement contains the ministry's commitment to environmental protection and influences its decisions.
The proposed amendments within this notice include the addition of several new ministries and pieces of legislation to the prescribed list. Waterkeeper recommends that the MOE adopt these amendments. It is also proposed that one act be removed from the list, namely the Fisheries Act. Waterkeeper has serious concerns about the implications of this amendment and strongly recommends against the adoption of this change.
The Environmental Commissioner of Ontario (ECO) recommends that the MOE include several ministries, agencies and pieces of legislation in addition to what is currently being proposed. Waterkeeper defers to ECO's judgment in this matter and requests that the MOE fulfill ECO's requests.
COMMENTARY
Proposal #1: Prescribe new Ministries and Statutes under the Environmental Bill of Rights Prescribing new ministries whose undertakings can have environmental impacts will be a positive development for the protection of the environment. Waterkeeper recommends in favour of the MOE's proposal to add the Ministry of Health and Long Term Care to the list of ministries in section 5 of the regulation; these ministries are subject to the application for review provisions under the Environmental Bill of Rights, 1993.
The Ministry of Health, as well as Medical Officers of Health, often play an important role in protecting the environment and restoring clean water to our communities. For example, inclusion of the Ministry of Health and Long Term Care creates a stronger link between the Environmental Bill of Rights and beach protection policies such as the Beach Management Protocol, which is developed pursuant to the Health Protection and Promotion Act. In our experience, this measure will help protect recreational water quality and improve swimming conditions at Ontario's waterways.
Proposal #2: Remove the Fisheries Act from the list of prescribed Legislation Dismissed as a “housekeeping matterâ€, the MOE proposes removing the Fisheries Act from O. Reg 73/94, section 9; this section lists the Acts which are subject to the application for investigation provisions under the Environmental Bill of Rights, 1993. The proposal is based on the current protocol between the federal and provincial government entitled An Inter-Jurisdictional Compliance Protocol for Fish Habitat and Associated Water Quality (2007 Protocol) (Fish Habitat Advisory Group [FHAG], 2007). This protocol establishes the Department of Fisheries and Oceans (DFO) and Environment Canada as the lead enforcers for Fisheries Act pollution and habitat destruction provisions.
For the following five reasons, Waterkeeper recommends against removing the Fisheries Act from the list of prescribed statutes.
1: Retaining the Fisheries Act under O. Reg 73/94 is consistent with purpose of EBR The purposes of the EBR are to protect, conserve and restore the integrity of the environment. Moreover the EBR is meant to provide sustainability of the environment and to protect the right to a healthful environment. Maintaining the Fisheries Act, one of Canada's strongest environmental laws, as a prescribed legislation can only work to promote these purposes.
2: Federal criminal and quasi-criminal legislation is systematically enforced by the province The Fisheries Act is a distinctive piece of environmental legislation because it is quasi-criminal; this has specific implications. Although the MOE and the Ministry of Natural Resources (MNR) no longer have lead enforcement roles, they are not prohibited from enforcing it. Many of our most important criminal statutes, such as the Criminal Code (R.S. 1985, c. C-46), Controlled Drugs and Substances Act (1996, c. 19), Firearms Act (1995, c.39), are federal statutes over which the province plays a major role in enforcement. The Fisheries Act should be no different. It is a useful instrument for the protection of the environment, and law enforcers should not dismiss it because it is a federal law.
3: Precedent exists at the provincial level for successfully enforcing the Fisheries Act The provincial government has successfully used Fisheries Act provisions to the benefit of the environment and Ontarians in the past. For example,
In 1996, for example, the Ministry of Natural Resources initiated a prosecution under the Fisheries Act for the alteration of a riverbank causing silting, erosion and flooding which resulted in the alleged contravener agreeing to rehabilitate the stream (Environmental Commissioner of Ontario [ECO], Supplemental, 2002, p.304).
In 2000, the MNR investigated Ontario Hydro's use of Admiralty brass condenser tubes in their power generating stations, which deposited metal contaminants into waterways. These investigations led Ontario Hydro to commit to no longer using these metallic tubes (ECO, 2001, p.145).
As recently as 2005, well after the agreement that the federal agencies would take the enforcement lead, the MOE successfully charged Imperial Oil Limited with the deposit of a deleterious substance into St. Clair River. The company paid a fine of $300,000 for spilling methyl ethyl ketone and methyl isobutyl ketone.
Such successes demonstrate the important role the Fisheries Act plays at the provincial level, allowing the province to force offending companies to internalize the costs of their pollution creation (Ministry of the Environment [MOE], 2005).
4: Provincial government remains engaged in Fisheries Act matters In some circumstances, even where the MOE is not required to provide notice and comment for certain pieces of legislation, it still chooses to do so. The Fisheries Act is one such statute where proposed regulatory changes are routinely posted to the Environment Registry. This shows an understanding of the importance of this legislation to members of the public as well as the ongoing interaction and cooperation between the federal and provincial government in its maintenance and enforcement. Many examples of collaboration between the provincial and federal government can be shown to demonstrate the collaborative nature of enforcing the Fisheries Act. In fact, the 2007 Protocol itself sets out that, “provincial resources management agencies (MNR, MOE) have confirmed an enforcement support role through the implementation of this multi-agency Fish Habitat Compliance Protocol†(FHAG, 2007, p.24).
The MNR and MOE, moreover, are listed as primary contacts regarding the discovery of pollutants and physical alterations of fish habitat. They are also listed as appropriate agencies for completing assessments, assisting in court cases, and providing experts (FHAG, 2007, p.26).
5: Keeping the Fisheries Act as prescribed under EBR creates a minimal responsibility
Reviewing the history of applications for investigation for Fisheries Act contraventions under the EBR reveals that a very modest number of requests have been made over the years. The ECO notes that few more than 16 applications for investigation were made between 1996 and 2000 (ECO, 2002, p.57).
Keeping the Fisheries Act as a prescribed legislation will create a minimal burden the MNR and MOE. The EBR has created important rights for Ontarians. When environmental harm occurs unlawfully, the public has a right to ask for assistance from the government in undertaking investigations. This right, amongst others, is crucial to the public's ability to participate in the protection of our environment. The benefits gained from an ability to make an application for investigation under the EBR using the Fisheries Act far outweigh the costs to the provincial government.
RECOMMENDATIONS
In light of the above, Lake Ontario Waterkeeper submits the following recommendations:
Adopt the changes as proposed regarding prescribing additional ministries and statutes, in particular adding the Ministry of Health and Long Term Care to the list of ministries in section 5 of the regulation.
Incorporate additional ministries and statutes as recommended by the Environmental Commissioner of Ontario.
Do not remove the Fisheries Act from the list of prescribed legislation.
Make the draft Regulation available for public comment, to ensure transparency and informed consultation.
REFERENCES
Environmental Commissioner of Ontario. (2002). Developing Sustainability. 2001/2002 Annual Report. Retrieved on May 16, 2008 from www.eco.on.ca/eng/uploads/eng_pdfs/ar2001.pdf.
Environmental Commissioner of Ontario (2002). Developing Sustainability. 2001/2002 Annual Report Supplement. Retrieved on May 16, 2008 from www.eco.on.ca/eng/uploads/eng_pdfs/ar2001su.pdf.
Environmental Commissioner of Ontario. (2001). Having Regard. 2000/2001 Annual Report. Retrieved on May 16, 2008 from www.eco.on.ca/eng/uploads/eng_pdfs/ar2000.pdf.
Fish Habitat Advisory Group. (2007). An Inter-Jurisdictional Compliance Protocol for Fish Habitat and Associated Water Quality. Retrieved May 16, 2008 from http://www.ontla.on.ca/library/repository/mon/20000/277365.pdf.
Ministry of the Environment. (August 16, 2005). Imperial Oil Limited Fined $300,000 for Spill into the St. Clair River, News Release. Retrieved May 16, 2008 from http://www.ene.gov.on.ca/envision/news/2005/081602.pdf.