On September 3, 2021, The Ontario Divisional Court ruled that the Ontario Government broke the law when it failed to consult with the public as required under the Environmental Bill of Rights (EBR). See Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 4521 (CanLII).
Bill 197
The issue is the passage of Bill 197, COVID-19 Economic Recovery Act (CERA), 2020 without public consultation as required under the EBR. More specifically, as reported by the CBC was the failure “… to post proposed amendments over the controversial use of Ministerial Zoning Orders on the Environmental Registry prior to implementation.”
Ministerial Zoning Orders
The use of Ministerial Zoning Orders (MZO) (which is found under Section 47 of the Planning Act) is controversial and opposed by many environmental groups. Especially as they have been used to a much greater extent under the current administration.
“…an after-the-fact posting does not satisfy the requirements of the Ontario Bill of Rights which is meant to give the public an opportunity to be consulted on certain types of proposals…” (Image by Arek Socha from Pixabay).
The law firm Borden Ladner Gervais LLP (BDL) describes MZOs as follows, “Section 47 of the Planning Act allows the Minister of Municipal Affairs and Housing (Minister) to make ‘Minister’s Zoning Orders’ (MZOs), to govern land uses within areas subject to the order. An MZO prevails over any other zoning by-law in effect in the area, giving the Minister complete authority to regulate land use on specific lands.”
BDL continues, “As of July 21, 2020, and pursuant to Bill 197, the COVID-19 Economic Recovery Act, 2020, the Minister can now make what are becoming known as “Enhanced MZOs…”
Environmental Groups Speak Out
One environmental group (which is actually a group of organizations) describes MZOs under the current administration this way: “A Minister’s Zoning Order (MZO) is meant for situations of extraordinary urgency. It overrides local planning authority to approve development without expert analysis, public input, or any chance of appeal. Since taking office, the current Ontario government has been issuing MZOs at an extraordinary rate to impose low-density sprawl and other risky development on wetlands and other protected lands.” Their website also has an interactive map of approved MZOs and those under consideration.
Ontario Divisional Court
Months after Bill 197 was law, the Ontario Government posted the Bill for Public Comment. The Ontario Divisional Court stated. “These are amendments that manifestly could have a significant impact on the environment, and there is nothing in the record to support the reasonableness of the decision not to post…an after-the-fact posting does not satisfy the requirements of the Ontario Bill of Rights which is meant to give the public an opportunity to be consulted on certain types of proposals that could have a significant effect on the environment before such a proposal is enacted.”
Conclusion
As we understand, there were several challenges in this case. But as the blog from the law firm McMillan provides, “While the Court dismissed the majority of the applicants’ challenges, it granted the applicants declaratory relief in one respect: the Court confirmed the unreasonableness of the failure of the Ontario Minister of Municipal Affairs and Housing (the “MMAH”) to comply with the EBR requirements for posting the proposed amendments to the Planning Act respecting MZOs on the Environmental Registry (“ERO”) for public consultation prior to its implementation.”
They continue, “While such declaration has no practical impact on the legislation itself, which remains validly enacted, the Divisional Court’s decision nevertheless confirms the government’s consultation obligations under the EBR.”
If you need help with an environmental issue, feel free to contact our Windsor office at 519-948-7300. You can also email our senior project manager, Christopher Pare’, P.Geo.
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