The Ontario government has made the Temporary Exemptions Relating to Declared Emergency (Regulation) exempting all proposals for policies, acts, regulations and instruments from posting requirements under the Environmental Bill of Rights (EBR) and removing the requirement to consider Statements of Environmental Values (SEV).

On March 17, 2020, the government  had made an order declaring an emergency (the “Emergency Declaration”) under section 7.0.1 (1) the Emergency Management and Civil Protection Act to respond to the COVID-19 outbreak.

Section 1 of the Regulation states that it applies until the end of the 30th day after the day on which the Emergency Declaration is terminated under the Act. However, the government’s track record of rolling back environmental legislation has created concern in some quarters that the duration and scope of the Regulation may be extended.

The Environmental Bill of Rights

The EBR gives Ontarians the right to participate in certain government decisions that affect the environment.

Part II of the EBR imposes a number of requirements on responsible ministries, including:

• the requirement to consider the Statement of Environmental Values (SEV)
• the requirement to post proposals for policies, act, regulations and instruments on the Environmental Registry for Ontario (ERO)

Government rationale

The government had this to say about the Regulation in its bulletin posted on ERO.

While the Minister did everything in his power to post a proposal of the proposed regulation for 30 days, he is unable to do so because the proposed regulation is part of an urgent response to the ongoing state of emergency…

The requirements of Part II of the EBR include procedural requirements that are impractical in the current state of emergency. The government must act quickly to address issues arising from this emergency, often to protect the health and safety of persons.

As such, we have temporarily exempted proposals for policies, acts, regulations and instruments from Part II of the EBR and removed the requirement to consider the SEVs so that we can expedite decision-making and implementation of measures to respond to the emergency.

This means that while the regulation is in effect:

• • proposals for policy, act, regulation and instrument notices will no longer be required to be posted for 30-day comment period
  • decision-makers will no longer be required to consider their SEVs

Ministries will post information notices (Bulletins) on the ERO for acts, regulations, policies and instruments for the duration of the regulation, in order to ensure transparency, and public awareness.

Decision makers will continue to consider SEVs for the duration of the regulation, where feasible.

All other Parts of the EBR will remain in effect, including:

• • procedures for applications for review and investigation
  • the function of the Commissioner of the Environment

The proposed regulation is temporary and will automatically terminate 30 days following the termination of the state of emergency.

There are 14 ministries, along with Treasury Board Secretariat, that have been prescribed under the EBR and will be affected by the proposed regulation.”

The Regulation can be found at this link :https://www.ontario.ca/laws/regulation/r20115

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.

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