Ontario continues to throw environmental pre-caution to the wind with Bill 197

On Tuesday, the Ontario government passed the Omnibus COVID-19 Economic Recovery Act, 2020 (aka Bill 197) which makes significant changes to Ontario’s environmental assessment (EA) process. How exactly these changes will affect First Nations in Ontario is difficult to know as the final details of how the new system will work in practice are yet to be disclosed. However, given Ontario’s deep commitment to “streamline” the environmental review process and increase “efficiency” for proponents, chances are good that the changes will have a negative impact on the ability of First Nations in Ontario to be meaningfully consulted and accommodated (or even notified) about projects occurring in their territories.

The key changes are:

• Individual EAs will be replaced with a project list, subject to “Comprehensive” EAs.
• Standardization of the terms of reference for Comprehensive EAs in some sectors (which sectors and how they are to be standardized is yet to be disclosed).
• Shift from Class EAs (which essentially pre-approve a class of projects subject to certain conditions) with “streamlined EAs” created by regulation.
• Creation of new timelines for EAs including a maximum 10-year limit for EA completion.

While First Nations should be concerned about the current changes, the real cause for concern is the lack of transparency about how these changes will be implemented and the ultimate end goal of Ontario’s “modernization” of the environmental assessment process. Ontario is effectively “project-splitting” its widescale overhaul of the environmental regulatory regime, as many of the key changes will happen through regulations or Ministerial order down the line.  

For instance, while Ontario is going ahead with a project list, there is no information about how the project list will actually work and what the criteria will be to make it onto the project list. The legislation creates the very real possibility that significant projects may be excluded from the environmental assessment regime. While First Nations still have the ability to request a “bump-up” from a streamlined EA to a Comprehensive EA where Aboriginal and treaty rights may be impacted, a gap still remains. If a project isn’t on the project list or covered by a streamlined EA then there doesn’t appear to be any process to review those projects, e.g. there is no process for First Nations to ask for the Minister to designate any project for a Comprehensive EA. The ability to request a “bump-up” is limited matters covered by a Class EA/streamlined EA. Where Ontario has entirely exempted certain projects from the EA process (as has happened recently in forestry), there is no ability to request a bump-up.

Projects with a “small or medium” environmental footprint can and do have serious impacts on s. 35 rights. This is part of the reason that most First Nations have strongly opposed using project lists in environmental assessment regimes. The Crown has a constitutional obligation to ensure that First Nations are consulted and accommodated about impacts to their rights. However, the reality is that if there isn’t a regulatory regime in place to allow for scrutiny of projects, it is difficult for First Nations to be adequately consulted, or to even to know about projects.

This is all deeply concerning because the existing process for EAs in Ontario is already filled with holes: the arbitrary exclusion of projects on private land; Class EA processes that are usually inadequate and frequently provide no opportunity for proper consultation with First Nations; failure to account for or consider cumulative impacts in any meaningful way; and no clear requirement to consult and accommodate First Nations about impacts.

At the same time Ontario is making legislative changes, it is also announcing interim changes to eight of the 10 existing Class EAs on the way to the end goal of the streamlined EA regulations that will replace all Class EAs. The consistent theme is one of reducing the amount of scrutiny of projects and proponents. The changes to the Municipal Class EA for instance exempt certain categories of “low-risk” projects entirely from any EA requirements.

One bright note in all the recent proposals is the exemption of activities related to land claim settlements, which could help shorten the implementation of land claim settlements.

Ontario’s changes, pushed through with no consultation, seem much more of a return to the past. A past when proponents were given wide latitude in the name of efficiency at the expense of First Nations’ rights. Even a brief contrast with the updated environmental assessment regime in British Columbia highlights the backward-looking approach in Ontario. While the BC regime is not without problems, BC does at least seem to be facing forward.

BC’s environmental regime pushes for early notification of projects, emphasizes sustainability, sets compliance with the United Nations Declaration on the Rights of Indigenous Peoples as a guiding principle, and pushes consensus with First Nations at various stages of the process. These steps are much more consistent with a “modernized” approach to environmental assessment than the changes Ontario continues to advance.

Ultimately a process that seeks to streamline the environmental assessment process by limiting opportunities for First Nations to engage and to understand the impacts on their rights will only increase conflict in the long-run.