Project Overview and Status
This project considers legal accountability mechanisms for environmental protection in Ontario.
All Ontarians share responsibility for protecting our environment. However, the government holds primary responsibility for environmental decision-making and, in this role, must balance a complex web of social, economic and other factors contributing to the public interest. How can our legal system most effectively hold government to account for environmental protection while accommodating the diverse and competing interests at stake?
Currently, Ontario’s Environmental Bill of Rights (EBR) provides that the people of Ontario have a “right to a healthful environment”. The EBR defines this as a right to receive information about and participate in government’s environmental decision-making. These rights are supervised by the provincial Auditor General but there is limited access to the courts to enforce them. Some argue that this political accountability model has failed to stem the tide of environmental harm and there is an urgent need for an alternative solution. The Auditor General has recently expressed concern that the government’s failure to act consistently with the purposes of the EBR risks undermining public confidence in environmental decision-making.
The EBR was enacted over 25 years ago. There has been limited reform other than to eliminate the Office of the Environmental Commissioner and transfer its duties to the provincial Auditor General. Meanwhile, concerns about the health of our environment and, indeed, the future of our planet, have become ever more insistent. A range of contemporary approaches to environmental accountability have been adopted or are under development in other Canadian provinces and internationally to meet these concerns.
The LCO approved this project at its September 2020 Board meeting. We are currently conducting background research and consultations and developing the project scope.
What Issues Are Being Looked At?
The LCO project considers how well the EBR is working, whether reforms are needed to the procedural rights created by the Act, and whether courts, or another tribunal, should have an expanded role in protecting environmental access to justice. The LCO is also examining alternative models for achieving environmental accountability. It is seeking creative solutions informed by, among other things:
- indigenous law and world views;
- legislative solutions and best practices in other jurisdictions throughout Canada and internationally;
- tort and other common law principles;
- international human rights law; and
- corporate social responsibility and industry-based initiatives.
One proposal for strengthening environmental accountability in Ontario is to legislate a substantive right to a healthy environment. The LCO’s project moves beyond the rhetoric of substantive environmental rights and conducts a critical analysis to evaluate the desirability, feasibility and enforceability of such a right. It examines the potential content of such a right, who might enjoy the right, corresponding responsibilities and how the right might be balanced against competing rights and economic interests.
The LCO’s project also explores procedural accountability mechanisms as an alternative or complement to substantive environmental rights.
The LCO is still developing the scope of the project but anticipates it will touch on a broad range of issues in environmental and aboriginal law, tort law and other common law principles, environmental governance, domestic and international human rights law, constitutional and administrative law, the law of standing and justiciability, crown liability and class proceedings. As with all its projects, the LCO has a special interest in promoting access to justice in the legal system.
The LCO’s Approach
The issue of environmental accountability is complex, controversial and politicized. The LCO is committed to bringing its usual rigorous, evidence-based and non-partisan approach to this project. We encourage input from all Ontarians representing a full spectrum of political and ideological views and having a range of environmental and economic interests.
The LCO will consult with a broad array of stakeholders, including legal and environmental experts, indigenous communities, government and justice system leaders, industry representatives and individual Ontarians interested in environmental issues.
Indigenous rights and indigenous laws are a necessary lens built into the foundation of the LCO’s project. Legal history pre- and post-settlement support environmental rights as a key aspect of the reconciliation framework to be carried out in Canada. The LCO is exploring Indigenous rights, perspectives and traditions as a possible source of environmental rights, as well as the crucial impact of environmental harm on Indigenous peoples in Ontario and elsewhere. The LCO is developing partnerships to assist us in reaching out to Indigenous communities.