The Ontario government has ignored the public's right to consultation on environmentally significant decisions, according to a new set of environmental audits that highlight transparency issues.
The auditor general's annual report on the environment found the Ministry of the Environment and several others "deliberately avoided" consulting the public on such decisions, though they are legally obligated to do so.
Four ministries made environmentally significant decisions over the last year without the required consultation, including Natural Resources and Municipal Affairs, and seven ministries took too long to provide notice of environmentally significant decisions in third of cases reviewed by the auditor general's office.
Even when information is made public, ministries didn't always provide all the information people need to give informed feedback, the audit found.
Under the Environmental Bill of Rights, Ontarians have an enshrined right to public information and consultation on decisions that may impact the environment, similar to French-language and employment rights.
But the audit said the Environment Ministry has failed to show leadership on that law, and some other ministries don't have formal procedures for following it.
The audit found some changes were made by ministries that don't have to follow Environmental Bill of Rights and in other cases environmentally significant changes were made to laws that aren't covered by it.
As an example, the audit pointed to changes made to the Conservation Authorities Act that happened without consultation because they were included in a budget bill.
In another case, the public wasn't consulted on the amalgamation of several tribunals that deal with mining, planning and environmental protection because the Ministry of the Attorney General, which isn't prescribed under the Environmental Bill of Rights, made the changes.
The report also flagged the increase in the municipal affairs minister's powers to issue Minister's Zoning Orders — which can bypass consultations for development projects — as a violation of the Environmental Bill of Rights.
It also found the Environment Ministry has not met its obligations to educate residents about their environmental rights.
Lack of transparency was also highlighted in other environmental audits, one of which found the province is not providing timely, comprehensive reports on the state of the environment or progress on its environmental goals.
Another audit flagged a lack of timely and comprehensive disclosure about the quantity and harm of hazardous spills. That audit also recommended the Environment Ministry strengthen its compliance and enforcement protocols on polluters.
The audit on spills found that over 73,000 hazardous spills were reported in the province over the last decade, but the ministry only attempted to recover response costs three times, and in those cases the government only pursued half of the costs.
A probe of 30 spills where the government didn't pursue costs estimated the response cost to taxpayers at $4.5 million.
Another audit found the government has not taken enough action on diverting business and industrial waste, which threatens to keep the province from meeting its targets in that area. It leaves questions about "where to put all this waste and how to pay for it," according to auditor general Bonnie Lysyk.
That audit found 15 per cent of waste from businesses and institutions is diverted, compared with 50 per cent of residential waste, because many businesses and institutions are not required to recycle.
The Environment Ministry was dinged in another audit for failing to protect species at risk by essentially approving all permit applications that would harm species at risk. That audit found such permits have increased by 6,000 per cent since 2009.
Ontario ‘automatically’ okays permits that harm at-risk species
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Ontario Auditor-General Bonnie Lysyk.
Ontario’s Ministry of the Environment automatically approves permits for developments expected to harm at-risk species, the province’s Auditor-General says in a series of reports that also chastise the government for failing to recoup millions in costs for investigating toxic spills, and for breaking its own law on public consultations.
In an annual batch of environmental reports tabled on Monday, Auditor-General Bonnie Lysyk said the province is failing to protect wildlife from developers and resource industries. The Environment Ministry, she added, is “essentially facilitating development rather than protecting species at risk.”
Since 2009, the first full year Ontario’s Endangered Species Act was in force, the annual number of approvals for projects that harm species at risk has risen from 13 to more than 800, the audit says. While the projects are approved with conditions, the government has never completely turned down a permit because of the harm it would do to an at-risk species. The number of species at risk has increased 22 per cent over the same time period.
“We believe that the public would expect a ministry named the Ministry of the Environment to take the lead and be pro-active in ensuring that Ontario’s environment is protected for future generations,” Ms. Lysyk told reporters. “However, our work indicated that there are many areas where this is not the case.”
The auditor’s report shows that the number of “approvals to impact” at-risk species had risen rapidly under the previous Liberal government, hitting 802 in 2017. In 2019, under the current government, 972 such permits were issued. Another 827 were issued last year.
The audit also says the ministry’s species-at-risk advisory committee “is now dominated by industry representatives.”
Environment Minister David Piccini defended his government’s record. He told reporters that Ontario is the only province in Canada that is “anywhere close” to meeting its 2030 emissions reduction targets. But Ms. Lysyk has previously warned that the province is unlikely to hit those targets. In a follow-up report issued Monday, she said Ontario’s own estimates show that, under its current commitments, its 2030 greenhouse gas emissions would fall by just 3.4 megatonnes below the province’s business-as-usual forecast – well shy of its 17.6-megatonne goal.
Ontario’s Progressive Conservative government introduced changes to the Endangered Species Act in 2019. One of the new provisions allowed developers to contribute cash to protect habitat across the province, rather than mitigating environmental damage caused by their own building projects. Environmentalist critics labelled the idea “pay-to-slay.”
On the issue of protections for at-risk species, Mr. Piccini said the new, developer-funded government system to pay for habitat and mitigation projects is not yet fully up and running and therefore cannot be judged.
“Through this fund, we’re going to see incredibly impactful actions to preserve species at risk,” Mr. Piccini said. He added that development permits are subject to “robust oversight” and conditions to protect species.
Opposition leaders seized on Monday’s reports, calling them more evidence that Premier Doug Ford’s government doesn’t care about the environment. When Mr. Ford came into office in 2018 he cancelled green-energy projects and railed against the federal government’s carbon pricing scheme. While he has in recent months called for Ontario’s auto sector to become a leader in manufacturing electric cars, he has also once again drawn the ire of environmentalists by promising to build two new highways in the Greater Toronto Area. An election is set for June.
Another of Ms. Lysyk’s new reports says various government ministries, including the Ministry of Environment, “deliberately avoided consulting the public on environmentally significant decisions” over the past year by failing to post decisions online for citizen feedback. This, the report says, defied the province’s Environmental Bill of Rights. The findings echoed a recent Ontario Divisional Court ruling on a challenge launched by environmental groups. The court declared the government’s moves unlawful.
The government policy changes on which consultation wasn’t done included amendments to the Environmental Assessment Act, a move to weaken the powers of local conservation authorities and a boost to the authority of unappealable ministerial zoning orders (MZOs), which the government frequently uses to fast-track approvals of development projects.
Another of Ms. Lysyk’s reports says that the province sought to recover its costs for investigating and monitoring the cleanup of only three hazardous spills between 2011 and 2020, out of 73,000 spills that occurred during that time. Even then, it only sought half of the total $1.3-million it spent.
Looking at a sample of 30 other spills, the report says the province spent $4.5-million on staff time and laboratory tests, but failed to recover the money from polluters. (In most cases, polluters must bear the costs of the actual cleanups themselves.)
On recycling, another report warns that Ontario could run out of landfill room in as little as 11 years because it hasn’t done enough to boost the diversion of industrial, commercial and institutional waste. While about 50 per cent of residential waste is diverted, only 15 per cent of industrial and business waste is kept from winding up in landfills, the report says.
Ford government ‘deliberately’ avoided
public consultations on environment,
auditor concludes
By Kristin Rushowy
Queen's Park Bureau
Mon., Nov. 22, 2021
Minister’s zoning orders should be subject to public scrutiny, Ontario’s auditor general says in a new report that also lambastes the provincial government for not being more transparent with the public on environmental issues.
“Ministries are not notifying and consulting Ontarians about all of the environmentally significant decisions that they should be,” Bonnie Lysyk said in the report released Monday.
“Some ministries have deliberately avoided consulting the public about some proposals,” she wrote, adding that “even when this avoidance is legally valid, such actions to prevent the public from participating are inconsistent with the purpose and spirit” of the Environmental Bill of Rights Act.
And even when ministries do hold public consultations under the act, “they are not always providing Ontarians with clear, accurate and complete information about their proposals and decisions, including the environmental implications, and they are not always providing notice in a timely manner,” the report said. “Both are needed for meaningful consultation and transparency.”
The Star has written extensively on the Ford government’s frequent use of minister’s zoning orders — which are known as “MZOs” —to expedite developments in a manner that cannot be appealed.
Lysyk also said Municipal Affairs and Housing Minister Steve Clark violated the Environmental Bill of Rights Act “when he failed to consult on amendments to the planning act that enhanced powers regarding minister’s zoning orders.”
In response to the report by Lysyk and Tyler Schulz, commissioner of the environment in the auditor general’s office, the municipal affairs ministry said “the minister has publicly stated that he expects that before a municipality requests an MZO they do their due diligence which includes consultation in their communities, connecting with conservation authorities and engaging with potentially affected Indigenous communities.
“The minister has also publicly stated that he expects that municipal requirements for a zoning order include a supporting council resolution. As council meetings are generally open to the public, this expectation is meant to ensure public awareness of a request being made for the minister to consider making a zoning order.”
But Lysyk said that “proposals for minister’s zoning orders under the Planning Act have the potential to have significant effect on the environment. Revoking the exempting for minister’s zoning orders under the (Environmental Bill of Rights Act) would give Ontarians the right to be consulted about environmentally significant proposals.”
The report points to Pickering’s Lower Duffins Creek, a sensitive wetland that the minister later removed from his zoning order, something Lysyk said could have been avoided with proper public consultation.
In 2020, the government issued an MZO for a warehouse and other buildings at the site, which initially included the environmentally sensitive area.
Lysyk also had harsh words for the Ministry of the Environment and its handling of issues such as hazardous spills and policies for endangered species.
“The public would expect a ministry named the Ministry of the Environment to take the lead and be proactive in ensuring that Ontario’s environment is protected for future generations,” she said at Queen’s Park.
However, she added, “our work indicated there are many areas where this is not the case.”
Green Party Leader Mike Schreiner said “the lack of accountability on climate and environment from this government is simply astounding. It puts people at risk.”
Environment, Conservation and Parks Minister David Piccini told reporters at Queen’s Park that the government has “robust oversight for species at risk.” He said criticism that an oversight committee is dominated by non-experts and lobbyists ignores the talent, and that “we embrace diversity of opinion.”
He also noted the government has created Ontario’s first climate change impact assessment.
NDP climate crisis critic Peter Tabuns, however, said the government is “rubber stamping requests for MZOs” and “going ahead with unneeded highways.”
“Instead of making big polluters pay for 78,000 toxic spills they are responsible for, Doug Ford is forcing Ontario families to pay millions in cleanup costs, letting big industry off the hook,” Tabuns said. 
