Waterkeeper submitted these recommendations to the Environmental Commissioner of Ontario in response to the Ministry of the Environment and Climate Change’s call for public comments as part of its review of Ontario’s Environmental Bill of Rights (“EBR”). The EBR is a uniquely Ontarian, powerful tool to bring citizens, government, and business together to protect the province’s environment. Over the years, issues with the EBR and its implementation have emerged. This review is a welcome opportunity to improve the EBR without undermining or compromising original protections. One aspect of the EBR’s importance that deserves highlighting is its value to charities. Political activity by charities is limited. Partisan activities are prohibited. Tools such as those created under the EBR are often the sole means by which charities can participate in government decision-making. Similarly, the EBR is a safeguard for Ontario residents who may not have geographic, political, social, or professional access to government. As such, this review is an important opportunity to re-assert the authority of the EBR when it comes to decision-making in Ontario. In addition to these comments, Lake Ontario Waterkeeper / Swim Drink Fish Canada wholly endorses the detailed comments submitted on November 4, 2016 by the Canadian Environmental Law Association (“CELA”).

1.
SUBMISSION FROM
LAKE ONTARIO WATERKEEPER
IN THE MATTER OF:
Review of Ontario’s Environmental Bill of Rights and Regulations
and Consideration of Ontarians’ Environmental Rights
EBR # 012-8002
SUBMITTED TO:
Strategic Policy Branch
Via e-mail: EBRreview@ontario.ca
FOR MORE INFORMATION, PLEASE CONTACT:
Krystyn Tully, Vice President
Lake Ontario Waterkeeper
krystyn@waterkeeper.ca
(416) 861-1237
November 8, 2016
Page 1

2.
BACKGROUND
Lake Ontario Waterkeeper/ Swim Drink Fish Canada is a registered charity working for
swimmable, drinkable, fishable water. The organization has been active in Ontario since
2001 and has made use of numerous EBR tools, including Applications for Review and
Investigation, Leave to Appeal, and the environmental registry.
Waterkeeper submits these recommendations in response to the the Ministry of the
Environment and Climate Change’s call for public comments as part of its review of
Ontario’s Environmental Bill of Rights (“EBR”).
The EBR is a uniquely Ontarian, powerful tool to bring citizens, government, and
business together to protect the province’s environment. Over the years, issues with
the EBR and its implementation have emerged. This review is a welcome opportunity to
improve the EBR without undermining or compromising original protections.
One aspect of the EBR’s importance that deserves highlighting is its value to charities.
Political activity by charities is limited. Partisan activities are prohibited. Tools such as
those created under the EBR are often the sole means by which charities can
participate in government decision-making.
Similarly, the EBR is a safeguard for Ontario residents who may not have geographic,
political, social, or professional access to government. As such, this review is an
important opportunity to re-assert the authority of the EBR when it comes to
decision-making in Ontario.
In addition to the comments below, Lake Ontario Waterkeeper/ Swim Drink Fish
Canada wholly endorses the detailed comments submitted on November 4, 2016 by
the Canadian Environmental Law Association (“CELA”).
For more information about the history and importance of the EBR, Waterkeeper
recommends readers consult CELA’s submission.
Page 2

3.
COMMENTARY
Changes should be made to the EBR’s requirements for “Public
Participation in Decision-making” in order to improve public
engagement, particularly regarding instruments. (Re: Question 4)
In 2010, Ontario implemented the Legislative Framework for Modernizing
Environmental Approvals. This framework gutted the EBR’s protections for public
participation in decision-making. At the time, Lake Ontario Waterkeeper opposed the
framework; a copy of our detailed submission is attached for your reference.
One of the main changes in the ill-conceived “modernizing” framework was the
elimination of environmental registry notices for approximately 75% of significant
environmental decisions. Waterkeeper cautioned that this would also eliminate
Ontarians’ “right” to notice, comment, and appeal for important decisions. That is
exactly what happened.
Prior to the new framework, applications for environmental approvals would be posted
to the environmental registry (www.ebr.gov.on.ca). While not perfect, this website
allowed any Ontario resident to see applications, offer comment, see decisions, and file
leave-to-appeal.
The new approvals process is a black box. The most important information is
published on a different webite site altogether
(http://www.accessenvironment.ene.gov.on.ca/AEWeb/ae/GoSearch.action?search=ba
sic&lang=en). As a result of the shift in process, the right to notice is lost because no
notice is given through the environmental registry. The right to comment is lost because
the public doesn’t even know the proposal exists. And the right to appeal is lost
because the public only learns a decision has been made months or years after the
fact, if at all.
Because approvals no longer have to be posted to the environmental registry, it is
unclear how many have been issued that will or have interfered with residents’
environmental rights. It is clear that important approvals have been issued without
public notice and that some of those approvals may have significant environmental
impacts and would have been of great public interest.
Page 3

4.
Here are two examples illustrating that significant decisions are being made without
public participation:
Darlington Nuclear Generating Station, Environmental Compliance Approval for
sewage work
The Darlington Nuclear Generating Station is located on the north shore of Lake
Ontario. In August 2013, the Station received an Environmental Compliance
Approval for a sewage work to handle its wastewater and stormwater. At the
time the Approval was issued, it was known that the Station had a water quality
problem. For example, boron, iron, cadmium, copper, hexavalent chromium,
lead, molybdenum, toluene, vanadium, and zinc were all known to exceed
provincial water quality standards in stormwater on the site. Further, public
concerns about storm and wastewater management were widely documented
during this time and, arguably, were the reason for the ECA application in the
first place.
As one of the largest water users on the lake, a facility with known water quality
problems, and a site where numerous serious contaminants are found, this ECA
should have been posted to the Environmental Registry. If there was ever an
ECA that triggered the potential for environmental impact and public concern, it
was this one. Yet the ECA was issued under the “modern” framework, without
public notice, comment, or appeal. The ECA was only discovered by
Waterkeeper more than a year later, during a federal environmental regulatory
process.
Toronto Environmental Compliance Approvals, Humber Wastewater Treatment
Plant and Ashbridges Bay Wastewater Treatment Plant
In 2016, Toronto’s ECAs for two wastewater treatment plants were amended.
The changes flowed directly from an Application for Review filed by the founders
of Lake Ontario Waterkeeper. The Application requested that the ECAs be
amended so that the City would have to notify the public when bypasses occur
at the two plants.
The City and the MOECC amended the ECAs, without posting a notice to the
registry, without soliciting any public comment, and without issuing a public
decision that would preserve the right to appeal.
As a result of this closed-door process, the ECAs arguably undermined
environmental protections at the facilities and the community’s right to know
Page 4

5.
about events that may affect recreational water quality. Specifically, the new
ECAs changed the definition of “bypass”, creating loopholes that allow for the
overflow of potentially-contaminated water into Lake Ontario without notice to
the MOECC or the public. They weakened the prohibition against bypasses
found in the previous approvals. Furthermore, the changes didn’t actually
include the public notification requirements that were the focus of the
Application for Review and the trigger for the ECA amendments in the first
place. Had the ECAs been posted to the registry for public comment, these
issues would have been identified and addressed through productive dialogue.
For these reasons, no review of the EBR would be complete without an analysis of the
2010 Framework, its impact on decision-making, and its interference with the public’s
right to participate.
→ Recommendation #1: Restore the right to notice, comment, and appeal for
instruments.
→ Recommendation #2: If the new “modernized” approvals portal is maintained,
ensure the public has access to applications before they are approved and has a
reasonable opportunity to request that approvals be posted to the environmental
registry for comment.
Changes should be made to the Application for Review part of the
EBR in order to ensure transparency, accountability, and protection of
the environment. (Re: Question 7)
The Application for Review is the only non-political, transparent process Ontarians
have for bringing policy change requests to the Ontario government. In theory, the
Review process allows individuals and institutions to help improve environmental law
and policy based on the merits of their recommendations, rather than other levers of
political influence. It is the sole process that guarantees access to decision-makers for
every resident, regardless of where they live or who they know. This makes it an
invaluable process for improving environmental law and policy and for protecting
people’s right to participate in environmental decision-making.
In addition to the issues identified by the Canadian Environmental Law Association,
there are some practical aspects of the Review process that should be addressed.
First, the Minister conducting the review communicates with stakeholders and invites
Page 5

6.
them to provide additional information. The original applicants never see these
communications. They have no opportunity to respond, clarify, or contribute additional
insight to the review. As a result, decisions are made without fully disclosing the basis
or reasons for the decision. This is contrary to fair decision-making.
Second, decisions are not shared with the general public. Publishing decisions, for
example on the environmental registry, would improve transparency and accountability.
Third, there is no mandatory reporting on the implementation of Ministry decisions. As
seen in Waterkeeper’s recent successful Application for Review regarding Toronto’s
handling of information about sewage spills, there is no penalty for delays in the
implementation process. The absence of mandatory public reporting by the Minister
places a burden on the Environmental Commissioner and/or the applicants. At a
minimum, public reporting of follow up activities would improve transparency. Better
still, the consequences for failing to implement a decision would improve compliance.
Fourth, when an Application for Review is denied, there should be an avenue of appeal,
reconsideration, or mediation. The process does not need to be overly formal, but it
would address many of the failings CELA identified. Because the Ministry responsible
for deciding whether or not to conduct a Review is often being asked to review its own
operations, there is a very real perception of bias. The integrity of the EBR process is
undermined if the public believes internal conflicts-of-interest are influencing
decision-making.
→ Recommendation #3: Ensure all materials and decisions related to an Application
for Review are made public and that there is an open call for comments.
→ Recommendation #4: Require Ministries report on implementation of decisions
made following Applications for Review.
→ Recommendation #5: Give applicants an opportunity to request a second opinion
when Applications for Review are rejected by Ministries with perceived conflicts.
Ministry of Infrastructure should be covered under the EBR. (Re:
Question 2)
Page 6

7.
CELA provides a list of additional Ministries that should be covered under the EBR,
including the Ministry of Infrastructure. This Ministry plays a key role in determining the
fate of Ontario’s air and water and should absolutely be covered under the EBR,
including provisions related to Review.
CELA’s list also begs the question: why are all Ministries not covered under the EBR by
default? Many of the core principles of the EBR related to decision-making processes
and values. If Ontarians actually have environmental rights, as the legislation’s name
suggests, then surely those rights must be respected by every government
department? It seems problematic to instruct some Ministries to consider
environmental values when making decisions but to exempt others. This creates
competing value systems and obligations within government. To ensure all Ministries
are actually working to protect the environment and the rights of Ontario residents,
EBR values should apply to all Ministries by default.
→ Recommendation #6: Make all Ministries subject to basic EBR values, by default.
Changes should be made to the Application for Investigation part of
the EBR in order to ensure transparency, accountability, and
protection of the environment. (Re: Question 8)
The Application for Investigation process is under-utilized because the application is far
too complex. The knowledge of environmental law and the evidence required to
complete an Application is unreasonable, even for experienced professionals. In
Waterkeeper’s experience, the level of information required to complete an Application
for Investigation is virtually identical to the level of information required to launch a
private prosecution.
Residents are asking for an Investigation; they shouldn’t have to actually conduct an
Investigation themselves. This process should be simplified. Residents should be
asked to identify their concerns and the appropriate Ministry should conduct the
Investigations based on a simplified Application. Failing that, the Environmental
Commissioner’s office should be given the resources to hire staff lawyers who would
work with the public, free of charge, to help them complete a fulsome Application.
Failing these changes, Ontarians’ “right” to request an investigation is a right in name
only.
Page 7

8.
→ Recommendation #7: Simplify the Application for Investigation process.
SUMMARY OF RECOMMENDATIONS
In light of the above commentary, Lake Ontario Waterkeeper submits the following
recommendations:
1. Restore the right to notice, comment, and appeal for instruments.
2. If the new “modernized” approvals portal is maintained, ensure the public has
access to applications before they are approved and has a reasonable
opportunity to request that approvals be posted to the environmental registry for
comment.
3. Ensure all materials and decisions related to an Application for Review are made
public and that there is an open call for comments.
4. Require Ministries report on implementation of decisions made following
Applications for Review.
5. Give applicants an opportunity to request a second opinion when Applications
for Review are rejected by Ministries with perceived conflicts-of-interest.
6. Make all Ministries subject to basic EBR values, by default.
7. Simplify the Application for Investigation process to make it more accessible to
residents.
Page 8