The climate crisis is arguably the defining conflict of this generation. It is a battle between those fighting for the future and those fending for capitalistic gain. With the future of humanity in mind, it is astonishing to think that government bodies continue to stay silent on this subject. Even worse, some governments are passing legislation that actively harms the environment, whether directly or indirectly. Such harmful legislation has unfortunately been passed by none other than the Government of Ontario. The Environmental Activity and Sector Registry absolves the province of its liability in some environmental affairs. It rather ironically came into force as a result of a break-through ruling in environmental law interpretation.
The Lafarge case of 2008, represented a milestone in environmental law; broadening the horizons for Ontario residents to hold their government accountable on decisions regarding environmental activities. In Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, Ontario allowed Lafarge Canada Inc to burn scrap tires, plastic, and other wastes as “alternative fuel” at its cement plant in Bath, Ontario (nearby Kingston, Ontario) (Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, 2008). Upon permission being granted to Lafarge for the burning of unnatural materials, a number of groups sought to request leave (permission) to appeal the decision under s.41 of the Environmental Bill of Rights (from here on referred to as “the EBR”). The EBR “was enacted with the purpose of protecting, conserving and, where reasonable, restoring the integrity of the environment, providing sustainability of the environment and protecting the right to a healthful environment” (Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, 2008). Section 41 of the EBR permits individuals to request leave to appeal government decisions on environmental activities (Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, 2008).
Many of the groups who requested appeal were denied, but Clean Air Bath which represented roughly 200 constituents had their leave accepted by the Ontario Environmental Review Tribunal (from here on referred to as “the Tribunal”). The appeal was allowed by the Tribunal and Lafarge was stripped of its approval to burn “alternative fuel”. Lafarge then appealed this decision to the Ontario Superior Court of Justice where the court sided with the decision of the Tribunal and dismissed the appeal. But what is most important is the guidelines they set out for interpreting the EBR.
The court clarified several points:
That the test for granting “leave” under the EBR should be done in a manner that facilitates “fostering access to justice in environmental matters” (Lindgren, 2018).
To be permitted “leave” the applicant must only prove their case on a prima facie basis, not a balance of probabilities (Lindgren, 2018).
The Tribunal can reasonably consider the commitments in the Statement of Environmental Values (SEV) stated in the EBR in considering appeals to environmental activities (Lindgren, 2018).
The Tribunal can also consider the rights of nearby landowners in environmental activities (Lindgren, 2018).
Not only does this ruling clarify the correct method for interpreting the EBR, but it assists EBR appellants in pursuing their case. It allows the terms of the EBR to be interpreted in favour of environmental values and allows EBR appeal evidence to only have to be established at a threshold lower than a balance of probabilities. Despite these successes, shortly after this ruling, the Ontario government passed legislation that allows certain sectors to be exempt from the citizen appeals process under the EBR. The Environmental Activity and Sector Registry (from here on referred to as the EASR), allows companies performing certain activities to register under this provision and not need to request approval for said environmental activities (Government of Ontario, 2015). These include but are not limited to waste management, specific water-taking activities, and certain activities requiring the assessment of air conditions (Government of Ontario, 2015). The creation of the EASR is particularly problematic as it revokes citizens’ ability to appeal decisions that gravely affect the environment in which they live.
Ontario’s creation of the EASR in response to the Lafarge ruling is a blatant attempt to avoid liability in environmental undertakings. It undermines citizens’ rights to not only appeal these decisions, but their human rights to live in an environment that does not undermine their bodily autonomy. With appeals already being limited to those who can afford the litigation, they should not be further limited by restrictive government policy. Environmental damage is a human rights concern that must also be a concern of this province’s governing body. If not, there is a dismal future yet to come.
References
Photo: Sarah Lindström, Wildfire, 2015 // Banff
Government of Ontario. (2015, December 4). Environmental Activity and Sector Registry.
Ontario.ca.
Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON
SCDC), https://canlii.ca/t/1z17k.
Linden, R.D. (2018, June 6). Blog: Accessing Environmental Justice: The 10th Anniversary of
the Landmark Lafarge Decision. Canadian Environmental Law Association.
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