1075, rue Bay, bureau 605 Toronto, Ontario, Canada, M5S 281

E: commissioner@eco.on.ca T: 416.325.3377

T: 1.800.701.6454 eco.on.ca

1075 Bay Street, Suite 605 Toronto, Ontario, Canada, MSS 281 E: commissioner@eco.on.ca T: 416.325.3377 T: 1.800.701.6454 eco.on.ca

Environmental Commissioner

of Ontario

Commissaire a l'environnement de l'Ontario

Dianne Saxe, J.D., Ph.D. in Law Dianne Saxe, J.D., Ph.D. en droit

Commissioner Commissaire

January 30, 2018

Hon. Kathleen Wynne, Premier Legislative Building Room 281 Queen's Park Toronto, Ontario M7A 1A1

Dear Premier Wynne,

RE: Prescribing Ministries, Agencies and Acts under the Environmental Bill of Rights

We are approaching the 25th anniversary of the Environmental Bill of Rights, 1993 (EBR). Ontarians can be proud that our province has this unique law that strives to protect our shared environment, and gives all residents the right to participate in government decision making.

The 25th Anniversary is an opportunity to recommit to the EBR 's principles by growing the family of ministries and legislation subject to the law. This recommitment would also add to your government's pledge to increase public participation, access to information and transparency.

Ministries and agencies that are prescribed in regulation under the Environmental Bill of Rights (0. Reg. 73/94) articulate their core principles in a Statement of Environmental Values and use the Environmental Registry to consult the public on environmentally significant decisions. This process contributes to greater transparency and better decision making.

Capturing laws under the EBR's umbrella is also important; it enables the public to participate when environmentally significant changes are being made to the laws or the regulations and certain instruments (e.g. permits, licences, approvals) issued under them. It also enables Ontarians to identify and ask for potential improvements to these laws. Depending on the type of law, it also enables Ontarians to ask the government to investigate if they believe a law has been broken.

Over the last two decades, the Ontario government has made strides toward keeping 0. Reg. 73/94 up-to-date so that Ontarians can be involved in and contribute their knowledge, expertise and opinions to environmental decision making in the province. However, there is more to be done. I have attached to this letter a list of ministries, agencies and laws that my office believes should be covered by the EBR. Prescribing these laws and agencies would expand the benefits of the EBR to more environmental decision making and would allow the Ontario government to rightfully count itself as a leader in environmental rights across the country and, in fact, the world.

.../2

ECO20180130.001

Page 2

Thank you for your consideration of this matter. If your staff require additional information, they can contact Stacey Bowman, Senior Policy Advisor at stacey.bowman@eco.on.ca.

Sincerely,

Dianne Saxe Environmental Commissioner of Ontario

cc: Deputy Minister of Agriculture, Food and Rural Affairs, Greg Meredith Deputy Minister of Transportation, Stephen Rhodes Deputy Minister of Municipal Affairs and Deputy Minister of Housing, Laurie LeBlanc Deputy Minister of Infrastructure, George Zegarac Deputy Minister of Energy, Serge Imbrogno Deputy Minister of Natural Resources and Forestry, Bill Thornton Deputy Minister of Community Safety and Correctional Services, Matthew Torigian President & Chief Executive Officer, Metro linx, Phil Verster

Mary Rowe, Executive Advisor to The Premier, Office of the Premier Jacqueline Gallacher, Lead, Environmental Bill of Rights Office, MOECC Scott Shaw, Policy Advisor, Environmental Bill of Rights Office, MOECC Julie Jamieson, Policy Advisor, Environmental Stewardship and Policy, OMAFRA Cheryl Davis, Team Lead (Acting), Environmental Policy Office, MTO David MacLeod, Senior Policy Advisor, Corporate Coordination Unit, MNIA, IVilVIFI Fausto Iannialice, Executive Assistant, Deputy Minister's Office, MOI Emma Heffernan, Policy Advisor (Acting), Strategic Policy and Research, MENG Samer Yordi, Executive Assistant (Acting), Strategic, Network and Agency Policy Division, MENG Andrea Pastori, Cabinet Liaison & Strategic Policy Coordinator, IVLENG Sally Renwick, Team Lead, Priorities and Planning Section, MNRF

Att.

ECO20180130.001

Ministries and Agencies Recommended for Prescription under the Environmental Bill o Ri hts 1993 Ministry or Agencyl

- Environmental Significance

Metrolinx Metrolinx develops and implements integrated regional transportation plans for the Greater Toronto and Hamilton Area that have far-reaching environmental effects, including significant impacts on climate change and air quality. The Ministry of Transportation recently posted Metrolinx's draft 2041 Regional Transportation Plan on the Environmental Registry as an information notice (013-1550), acknowledging the environmental importance of the agency's policies. Transit planning is the subject of consistent public interest and scrutiny. The draft plan received over 10,000 comments through the ministry's website. Officially recognizing Metrolinx as an environmentally significant agency by prescribing it under the EBR would ensure these consultation opportunities continue, and that the public learns the effects of their comments.

Ministry of Finance* The Ministry of Finance provides fiscal and economic policy advice to the Premier and Cabinet, affecting all ministries and government programs. Economic policies, such as subsidies and administrative charges, can have major impacts environmental decisions. The EBR umbrella is incomplete without this key ministry.

Ministry of Research, Innovation and Science

The Ministry of Research, Innovation and Science influences the prioritization and funding of research projects, many of which could have significant environmental impacts. Funding decisions are often undocumented in the public domain, yet they are made based on criteria that include how that research would benefit Ontario (e.g. Ontario's Early Researcher Award). Increasing the transparency of those decisions would provide the province with better information and improve public trust.

Ontario Heritage Trust The Ontario Heritage Trust promotes natural heritage conservation through land acquisition, conservation easements, land donations and public awareness. The acquisition of land for conservation is essential for preserving Ontario's natural resources, protecting important ecosystem services, and conserving biodiversity. It is also an issue many Ontario residents are passionate about, as demonstrated by the work of land trusts throughout the province. The Ontario Heritage Trust holds more than 160 properties. Ontario residents should have the ability to learn about and comment on decisions that affect these public properties (e.g., Cheltenham Badlands), in the same way that they can learn about and comment on decisions that affect provincial parks.

Note that provincial budgets and economic statements are exempt from the posting requirements of the EBR, even if the Ministry of Finance were to be prescribed. The EBR would only apply to environmentally significant decisions.

The government can deem an agency to be a ministry for the purposes of the EBR through regulation, according to section 121 (1) (b) of the Act.

1

ECO20180130.001

Ontario Energy Board The Ontario Energy Board develops environmentally significant policy that contributes to a sustainable and reliable energy sector and protects consumers. For example, it determines the regulatory framework within which natural gas utilities will reduce greenhouse gas emissions. Prescribing the Board under the EBR would allow more Ontarians to be aware of and contribute to these policy processes, supporting the Board's own goal of enhancing opportunities for consumers to participate in policy development processes.

Acts Recommended for Prescription under the Environmental Bill of Rights, 1993 Ministry Act Environmental Significance

OMAFRA Drainage Act The Act sets out rules and protocols for the establishment and maintenance of municipal drains, which can have detrimental environmental impacts (e.g. can threaten wetlands — see The Drainage Act: Drying Up Ontario's Wetlands, pages 108-112 of the ECO's 2010 Annual Report). OMAFRA and MNRF have voluntarily posted policy and regulatory proposals under the Drainage Act to the Environmental Registry in the past (e.g., 011-5657, 011-5985), but currently the public is unable to request a review or investigation related to the Act under the EBR. In addition, officially recognizing the Drainage Act as environmentally significant by prescribing it under the EBR would ensure consultation opportunities through the registry continue, and that the public learns the effects of their comments. The ECU has been asking for the Drainage Act to be prescribed under the EBR for well over a decade.

OMAFRA Weed Control Act The Act's Schedule of Noxious Weeds determines the plant species subject to the Act's provisions for mandatory eradication from areas that could harm agriculture. The public is understandably very interested in how this Act is administered, and the contents of the Schedule of Noxious Weeds; there can be significant financial repercussions for landowners with noxious weeds on their properties that need to be removed. Eradication often includes pesticide use, which can have environmental impacts on the receiving and surrounding lands and waters.

OMAFRA has posted regulation proposal• and decision notices to the Environmental Registry for changes to the Schedule (e.g., 012-2634), some of which acknowledge that plant species that have been treated as weeds for decades can sometimes be integral to biodiversity (e.g., milkweed — see Revenge of the Weeds, pages 62-67 of the ECU's 2012 Annual Report). Officially recognizing the Weed Control Act as environmentally significant by prescribing it under the EBR would ensure these consultation opportunities continue, and that the public learns the effects of their comments.

MMA Building Code Act, 1992

The Act is currently prescribed only as it relates to septic systems. However, the Act contains many provisions that can contribute to climate change mitigation and adaptation, such as standards for energy efficiency and insulation, as well as provisions that can contribute to other environmental goals, like water conservation. Commendably, the MMA posted a proposal notice regarding changes to prescribed sections of the Building Code in 2016 (012-8208), and in 2017 the ministry also posted a proposal for changes to other parts of the code with environmentally significant impacts regarding climate change adaptation and mitigation (013-0536), such as energy efficiency requirements. Officially

2

ECO20180130.001

Ministry Act Environmental Significance

recognizing the Building Code Act, 1992 as environmentally significant by prescribing it under the EBR would ensure these consultation opportunities continue, and that the public learns the effects of their comments.

MMA Municipal Act, 2001 and City of Toronto Act, 2006

The Municipal Act, 2001 has substantial influence on a municipality's environmentally significant policies, including policies to protect tree cover and natural vegetation. It enables municipalities to:

• adopt tree and forest protection by-laws; • impose conditions on site-alteration permits regarding soil conservation and rehabilitation; and • participate in long-term energy planning that considers energy conservation and climate change.

The City of Toronto Act, 2006 enables the City of Toronto to pass by-laws requiring and governing the construction of green roofs, and protecting trees and forests. It also enables the City to impose conditions on site-alteration permits regarding soil conservation and rehabilitation, and to participate in long-term energy planning that considers energy conservation and climate change. Like the Municipal Act, it requires that the City adopt environmentally significant policies, such as policies to protect tree cover and natural vegetation.

The health of Ontario residents' immediate environment — within their own town or city — is greatly influenced by decisions made at the municipal level. Those municipal decisions are heavily affected by the Municipal Act, 2001 and City of Toronto Act, 2006 as well as the Planning Act and its attendant policies. While the latter is fully prescribed, the former two are not, depriving Ontario residents of their right to know about and comment on policy that directs many of the decisions of their municipal representatives.

MOI Infrastructure for Jobs and Prosperity Act, 2015

The purpose of the Act is to "establish mechanisms that encourage principled, evidence-based and strategic long-term infrastructure planning that supports job creation and training opportunities, economic growth and protection of the environment, and incorporate design excellence into infrastructure planning." It lists infrastructure planning principles, which include that infrastructure planning and investment should minimize environmental impact, and that infrastructure should be resilient to climate change effects.

The new asset management regulation under the Act, posted to the Environmental Registry (013-0551), encourages accounting of green infrastructure as assets and managing them according to an asset management framework, which allocates long-term funding for maintenance and replacement. This regulation has the potential to greatly influence urban forest and green infrastructure management — items of great public interest and concern, as evidenced by the multitude of community groups devoted to improving their health and management.

3

ECO20180130.001

MENG Electricity Act, 1998 Energy Consumer Protection Act, 2010 and Ontario Energy Board Act, 1998*

The Electricity Act, 1998, Energy Consumer Protection Act, 2010, and Ontario Energy Board Act, 1998 are all integral to the development and governing of energy conservation programs and initiatives, which affect how and how much energy Ontario residents use in their homes and businesses. Energy policy is essential to Ontario's ability to meet its climate law obligations, but has too often been decided in isolation.

The purposes of the Electricity Act, 1998 include ensuring sustainability of energy supply and establishing mechanisms to encourage electricity conservation. ENG has posted regulation proposals under the Electricity Act on the Environmental Registry this year (e.g. a regulatory proposal regarding siting renewable energy generation facilities — 013-1916).

ENG posted a regulatory proposal under the Energy Consumer Protection Act, 2010 on the Registry this year — 013- 1915 — for regulatory amendments to put consumer protection provisions in place as part of extending net metering eligibility. ENG has also posted a regulatory proposal under the Ontario Energy Board Act, 1998 on the Registry this year — 013-1913 — to enable third-party ownership of net-metered generation facilities. Officially recognizing these three Acts as environmentally significant by prescribing them under the EBR would ensure these consultation opportunities continue, and that the public learns the effects of their comments.

MNRF Wilderness Areas The Act provides for the creation and management of Wilderness Areas. There are currently 11 protected areas in Act Ontario designated under this law. Ontario residents are proud and protective of their provincial parks, which are

governed by the Provincial Parks and Conservation Reserves Act, 2006 (PPCRA). Because the PPCRA is prescribed under the EBR, the public has the right to know about and comment on how those parks are managed.

Wilderness areas, however, are created and managed by the Wilderness Areas Act, which is not prescribed under the EBR. Given that wilderness areas are preserved "for the protection of the flora and fauna," decisions that determine how they are created and managed are environmentally significant, and should be prescribed under the EBR. This would give Ontarians the opportunity to know about and comment on proposals regarding how these public lands are used.

MNRF Forestry Act The Act defines "woodlands" — which are significant components of natural heritage within the land use planning framework — and provides for their management, protection and/or establishment. How woodlands are defined and managed has far-reaching implications for land-use planning across the province, a topic in which Ontario residents show considerable and consistent interest. Woodlands are critical to preserving biodiversity, mitigating climate change by sequestering carbon, absorbing and filtering water, and mitigating air pollution. They can also improve the mental and physical health of Ontarians who can see and access them.

*Clauses 88 (1) (a.1) to (g) of The Ontario Energy Board Act, 1998 are currently prescribed under the EBR. They enable the government to make regulations providing for the establishment, administration and operation of a tracking system to link electricity with the processes and fuel types used by its generation facility, and with the types and quantities of contaminants the generation facility emits.

4

ECO20180130.001

MNRF Algonquin Forestry Authority Act

The Act authorizes the Algonquin Forestry Authority, a Crown Agency, to commercially harvest timber in Algonquin Provincial Park, despite the general prohibition of timber harvest in the Provincial Parks and Conservation Reserves Act, 2006. It also authorizes the Crown Agency to acquire and hold public lands, and permits the MNRF to determine objectives related to the management of Crown forest in Algonquin. The governance and oversight of forestry operations in Algonquin have long been under intense public scrutiny — Ontario residents have clearly shown their interest in being able to exercise their rights to know about and comment on decisions affecting the ecological health of one of the best-used parks in the province. For example, in 2005 the ECO received an Application for Review of the need to prescribe the AFAA under the EBR — see Regulating Logging in Algonquin Park, pages 128-131 of the ECO' s 2006 Annual Report.

MNRF Ontario Forest Tenure Modernization Act, 2011

Under the Crown Forest Sustainability Act, 1994, Ontario's Crown forests can be managed by Sustainable Forest Licence holders — forest management companies that obtain these licenses from the MNRF. As part of a modernization process to change the way forest licences are distributed and who can hold them, the Forest Tenure Modernization Act, 2011 was passed. The Act provides for the incorporation of new entities called Local Forest Management Corporations (LFMCs) who can also hold Sustainable Forest Licences and manage Crown forests according to the Crown Forest Sustainability Act, 1994. Forest tenure is a publicly contentious subject, especially in northern Ontario where so many communities depend on the forest industry to fuel their economies. The MNRF has previously posted policy related to forest tenure modernization on the Registry, including the creation of the Forest Tenure Modernization Act, 2011 — see Environmental Registry notices 011-2378, 011-5241, and 012-5052.

MNRF Forest Fires Prevention Act

The Act sets out forest fire prevention measures; responsibilities for fire extinguishment, reporting and evacuation; and prohibitions on actions that could cause forest fires. Depending on their origin and context, forest fires can be both destructive and necessary to the health of Ontario forests (see Walking the Fire Line: Managing and Using Fire in Ontario 's Northern Forests, pages 2-26 of the 2016 Environmental Protection Report). The law and regulation that govern human actions to prevent, control and extinguish forest fires should be subject to the EBR's public notification and commenting provisions.

5

ECO20180130.001

-

ECO20180130.001