Canada: Government Looking For Balance: Changes To The Environmental Approvals Process

As noted by Marisa Keating and Signe Leisk in their recent article, Municipal Housing and Affairs Minister Steve Clark has released Bill 108, More Homes, More Choice Act, 2019, which introduced significant changes to planning and development legislation, as well as certain environmental statutes in Ontario.

This e-lert highlights the changes to the environmental statutes.

More Homes, More Choice: Ontario's Housing Supply Action Plan

According to the action plan, the proposed changes to the Environmental Assessment Act and the Environmental Protection Act are for the purpose of:

  • Addressing duplication and streamlining processes for projects that pose little risk to the environment;
  • Providing clarity to proponents from the outset by better recognizing other planning processes;
  • Reducing the amount of soil sent to landfill from construction sites, by making it easier and safer to reuse soil and penalizing those who illegally dump excess soil;
  • Clarifying the rules and removing unnecessary barriers to building on vacant land, to put prime land back to good use while protecting the environment and human health; and
  • Improving service standards to reduce delays.

The changes to the Conservation Authorities Act are proposed for:

  • Clearly defining conservation authorities' core programs and services, such as flood protection, and only require municipalities to pay for these services, not frivolous additional expenses;
  • Giving municipalities more say over non-core programs and services and how municipalities pay for them;
  • Streamlining and standardizing conservation authorities' role in municipal planning to reduce overlap, making approvals faster and less expensive; and
  • Improving governance and accountability.

The changes to the Endangered Species Act are proposed for:

  • Making it easier to harmonize the Act with other equivalent legislation;
  • Establishing Canada's first Species at Risk Conservation Trust so project proponents can support strategic, coordinated and large-scale actions instead of completing piecemeal requirements for permits, agreements, and regulatory exemptions;
  • Offering more certainty by improving processes;
  • Providing clarity on how protected species are identified and transparent rules on how to protect habitat; and
  • Supporting a modern ecosystem-wide approach to species protection, one that balances competing interests, that is effective and efficient.

Key Legislative Changes

The key legislative changes to the environmental statutes as proposed in Bill 108 include:
Environmental Assessment Act

  • The addition of several new sections relating to class environmental assessments, including a section that exempts specific categories of undertakings within the class from the application of the Act;
  • A new process is contemplated for governing amendments to approved class environmental assessments:

    o Under this new process, the Minister can amend an approved class environmental assessment, but must provide adequate public notice and public opportunity for comment. The Minister must give written reasons when amending or refusing to amend an approved class environmental assessment. An amendment officially comes into effect upon publication of a notice of the amendment in the registry under the Environmental Bill of Rights, 1993;  
  • Section 16 of the Act is amended to specify when and under what grounds the Minister can issue orders to comply. Specifically, the Minister may only issue an order to prevent, mitigate or remedy adverse impacts on constitutionally protected aboriginal or treaty rights or a prescribed matter of provincial importance. If the Minister fails to make a decision prior to a deadline, written reasons must be provided; and
  • Transition provisions for amendments to class environmental assessments are also provided.

Environmental Protection Act

  • The scope of administrative penalties has been broadened to include penalties for the purpose of:

    o Ensuring compliance with any requirements or orders made under the Act;

    o To prevent a person/entity from deriving any economic benefit as a result of contravening requirements or orders made under the Act; and

    o To address contraventions under the Act that are not addressed by the environmental penalties;
  • The absolute liability associated with administrative penalties remains the same. Under the current Act, payment of an administrative penalty prevents conviction of an offence, however, the proposed revisions provide that there are certain instances where a person may be convicted of an offence regardless of whether they have paid an administrative penalty in respect of and has remedied that contravention; and
  • Part V.1 of the Act is proposed to be re-enacted to provide provincial officers with the authority to seize number plates for a vehicle if the officer reasonably believes that the vehicle was used in connection with the commission of an offence and the seizure is necessary to prevent the continuation of the offence. The officer must adhere to specific notice requirements.

Conservation Authorities Act

  • Every member of an authority is now explicitly required to act honestly and in good faith with a view to furthering the objects of the authority;
  • Specific programs and services are mandatory if prescribed by the regulations;
  • The Minister may appoint investigators to investigate an authority's operations and the authority may be required to pay all or part of the cost of an investigation;
  • The authority may determine the amounts owed by municipalities in connection with the programs and services the authority provides in respect of the Clean Water Act, 2006 and Lake Simcoe Protection Act, 2008. If the municipality makes an application within the specified timeframe, The Mining and Lands Commissioner, or other body as prescribed by regulation, must hold a hearing to consider the amounts owing;
  • Authorities continue to be permitted to provide programs and services – however, if financing by a participating municipality is necessary to provide the program/service, an agreement must be entered into between the authority and the municipality;
  • On and after a day prescribed by the regulations, the authority is prohibited from including capital costs and operating expenses in respect of such programs and services in its apportionment of payments to the participating municipality if there is no agreement;
  • Authorities are also required to prepare and implement a transition plan in order to ensure they are in compliance with the program funding requirement; and
  • The Minister will have the authority to make regulations:

    o Governing the prohibitions by authorities under section 28 including prescribing the limits on river and stream valleys and determining areas in which development should be prohibited or regulated; prescribing activities and/or areas to which prohibitions by authorities do not apply; and defining "development activity," "hazardous land," "watercourse" and "wetland" for the prohibitions under section 28;

    o Governing applications for permits under section 28.1 which allow a person to engage in activity that would otherwise be prohibited by section 28, including the issuance of permits, the power of authorities to refuse permits, prescribing requirements that must be met for the issuance of permits, conditions that must be attached to a permit, etc. The regulations may also define "pollution" for the purposes of section 28.1, and/or govern the delegation of powers by an authority under section 28.4.

Endangered Species Act

  • The timeframe to create a regulation under section 7 that lists a species on the Species at Risk in Ontario List is extended from three months to twelve months;
  • The twelve-month period to enact a regulation when the Minister requests reconsideration of the classification of a species will only begin after COSSARO submits a second report to the Minister;
  • The Minister gains the regulation making authority to make an order to suspend a prohibition on killing order (section 9) for up to three years for an endangered or threatened species listed for the first time. Certain prohibitions on killing will then not apply to people who are issued permits to engage in activities for one-year after the species is listed as endangered for the first time;
  • Landscape agreements that authorize a person to engage in otherwise prohibited activities can now be entered between the Minister and persons;
  • The Minister is given authority to make regulations limiting the application of the section 9 killing prohibitions with respect to a species;
  • Section 18 is re-enacted to provide that persons authorized to engage in the regulated activity may carry out the activity, despite prohibitions, if certain conditions are met;
  • The Minister has the power to order a person not to engage in an activity or to stop engaging in an activity that might have a significant adverse effect on a species listed on the species at Risk in Ontario List as an extirpated, endangered, or threatened species;
  • The Minister must be satisfied that certain regulations made are not likely to jeopardize the survival of a species listed as an endangered or threatened species or to have any other significant adverse effect on the species; and
  • The Species at Risk Conservation Fund and an agency to manage and administer the Fund are proposed to be established. Money for the fund is primarily from species conservation charges that certain persons may be required to pay into the Fund under the Act (i.e., as a condition of a permit).

Transition and Next Steps

While some of the amendments outline specific transition steps, we will be monitoring the release of the corresponding regulations, as the regulations will significantly direct the outcomes of the new amendments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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