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Follow us on TwitterThe Drummond Report, Public Services for Ontarians: A Path to Sustainability and Excellence (pdf), recommends numerous changes to Ontario’s environmental protection regime that, if adopted, could fundamentally change environmental protection in Ontario.
Of particular interest to me and many of my clients is the recommendation to streamline provincial environmental assessments:
Review opportunities to further streamline the environmental assessment process (coordinate further with the federal government’s process or integrate EA with certain approvals). Full use of the equivalency provisions in the Canadian Environmental Assessment Act would serve to reduce unnecessary, costly duplication.
Currently there are environmental assessment requirements at the federal level under the Canadian Environmental Assessment Act as well as a provincial Environmental Assessment Act. Why two Acts? Federally EAs apply to private and public projects whenever certain federal approvals are required such as approvals for harming fish habitat. Provincial EA only applies to public sector projects such as roads, municipal waste, and related matters unless cabinet passes a regulation applying provincial EA to a private project (such as the Melancthon Mega‑Quarry).
Rarely, an assessment is required at both levels and must be conducted that meets both federal and provincial content and process requirements. When this happens there is an existing agreement (the 2004 Canada–Ontario Agreement on Environmental Assessment Cooperation) which allows a single assessment to be conducted.
Contrary to the commentary in the Drummond Report (which begins at p.340) there is no inherent “duplication” or uncertainty in this process which is costly to industry. Since only public sector projects must be assessed provincially, any requirement to conduct an EA at both levels is either easily addressed (since a public authority is the project proponent) or deliberate on the part of cabinet designating a private project at the provincial level.
Occasionally delays are caused by proponents of projects and federal authorities who struggle to avoid determining whether a federal assessment is required. These are easily avoidable by those parties addressing and assessing federal EA triggers early in the process as the requirements at the federal level are sufficiently clear.
In making this proposal, Drummond has accepted at face value the now completely refuted arguments of industry that there is duplication when in‑fact, there is no credible evidence that a cost or duplication problem actually exists. In support of this he cites the Supreme Court of Canada case of MiningWatch v. Department of Fisheries and Oceans released in January 2011. What Drummond does not state is that this case held that both acts can apply to one project and that a full assessment must be undertaken at both levels of government. MiningWatch does not support clawing back or streamlining provincial EA processes. Rather, it supports improved use of existing coordination mechanisms.
The complete lack of cited evidence of a coordination problem worth addressing, including an absence of evidence of cost or environmental benefit in the Drummond report is startling. Drummond does not even assess the environmental, social or economic benefits of EA, only the alleged costs and duplication in utterly vague terms. Drummond assumes rather than demonstrates that the cause of delays in the EA process is a lack of legislative streamlining. In this he is utterly incorrect and his recommendations should not be followed on this point.
