On April 3, 2020 and in response to the COVID-19 pandemic, the Ontario Government passed a regulation that temporarily exempts government proposals from the posting requirements of the Environmental Bill of Rights, 1993 (the "EBR"). The regulation also removes the requirement for government decision makers to consider the principles set out in ministries' Statements of Environmental Values in making decisions on policies, acts, regulations and instruments.
Part II of the EBR requires certain government ministries to inform the public about environmental acts, regulations, policies and instruments (such as, for example, environmental approvals) that are being considered and/or proposed. Where environmental decisions are significant, the public is given the opportunity to review and comment on these proposals and the ministries are required to consider the comments in making decisions.
The Ontario government's Bulletin states that the regulation suspending public participation is being made in response to the COVID-19 pandemic and will remain in effect until 30 days after the termination of the Emergency Declaration, made under the Emergency Management and Civil Protection Act. The order declaring the emergency was initially made on March 17, 2020 in response to the Covid-19 Pandemic.
It is interesting that the government chose to pass a regulation that provides a broad exemption from public participation for all new policies, acts, regulations and instruments, rather than one targeted solely on proposals that are related, in some way, to the COVID-19 pandemic. Also, the EBR already contains a provision, section 29, which allows the minister to dispense with notice requirements where the delay would result in: (a) danger to the health or safety of any person; (b) harm or serious risk of harm to the environment; or (c) injury or damage or serious risk of injury or damage to any property. To the extent the government needed to implement policies, pass legislation and/or issue instruments related to the COVID-19 pandemic, where delay could be dangerous to people or cause harm to the environment, it could have relied on section 29 of the EBR to forego posting and consultation.
Perhaps ministries are experiencing significant staffing issues related to COVID-19 and simply do not have the ability to consider public comments on any proposals during this time. It will be interesting to see whether any significant new policies are implemented or new regulations are passed, without consultation, in the coming months.
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