Focus: Saxe gearing up for new role as commissioner

On a crisp Friday morning in October, environment lawyer Dianne Saxe sits on a couch in her home office in Toronto’s Forest Hill neighbourhood. At the time, she was in the midst of wrapping up a 25-year private practice to start a new job in December as Ontario’s environmental commissioner.

“It’s a big thing to give up and walk away from after building it for 25 years, but this [new job] is such an opportunity, privilege, and honour,” she says as her dog, Spirit, lies on a blue rug nearby.

Saxe has been an environmental lawyer for nearly 40 years, working first at the Ministry of Energy, the Ministry of the Environment, and the Ontario Energy Board, and then in private practice since 1989. In those years, she has represented almost a thousand clients and has carved a reputation as a pre-eminent voice on environmental law in Canada.

Saxe replaces long-time environmental commissioner Gord Miller. One of her priorities as she takes that office, she says, is to simply “make it matter.”

“It’s extraordinary that after 22 years, most knowledgeable, well-informed, English-speaking people in Ontario who are concerned about environmental issues have never heard of the environmental commissioner or the [Environmental] Bill of Rights,” she says.

Read more: How can lawyers help with environmental contamination issues?

“Hearing about the office is one thing; making use of it is another. That is my second goal: to make it usable,” she adds.

Two months before she takes office, she’s busy working with her 24-member team on the issues they’ll tackle. The work can’t wait until her official start in December, she says, especially given that she’s heading to Paris for the climate change conference as part of the Canadian delegation.

“Since climate change is one of my mandates and our past federal government was an international pariah on this issue, going to Paris with a new government that understands and recognizes the importance of climate change has got to be different,” she says. “Ten years ago, Canada had an opportunity to be a leader in the area. For 10 years, we’ve been a pariah.”

With little appetite from the last federal government for action on climate change, the provinces have taken their own measures individually, says Saxe, adding the opportunity to act federally is slimmer now than it was 10 years ago.

As Ontario moves ahead with a cap-and-trade system, Progressive Conservative MPP Michael Harris says Saxe’s oversight role is even more important.

“Her oversight on how the government rolls out the cap-and-trade system will be significant,” he says. “We see in Europe, cap-and-trade systems have been fraught with fraud and a whole bunch of things, so her oversight on this is going to be critical.”

The premise of the office of the environmental commissioner, a position created in the 1990s, is that the issue of the environment is too important to leave to the government alone. In her role as commissioner, Saxe will oversee the province’s compliance with the Environmental Bill of Rights, a document that seeks to protect the environment and increase public participation on decisions that affect it.

But if some environmental lawyers and activists have it their way, the first thing Saxe would do is push for a review of the very statute that created her office.

“Essentially, [the bill of rights] needs to go from being procedural rights to encompassing substantive rights, and particularly incorporating the right to a healthy environment,” says Devon Page, the executive director of Ecojustice, who calls Saxe “an imminently qualified” person for the job of commissioner.

“The main shortcoming of that act is that it is procedurally focused. If you divide it between procedural and substantive, procedural would be the right to know about something that threatens you. Substantive right would be the right to challenge or seek redress in the courts for harm done to you,” says Page.

It’s a viewpoint Theresa McClenaghan, executive director and counsel at the Canadian Environmental Law Association, shares. The province granted the association’s request for a review of the Environmental Bill of Rights at least three years ago but it still hasn’t gone ahead with it, she notes.

Saxe says changing the bill is within the purview of the government but she suggests that if there were an appetite to amend the legislation, she’d have to think hard about whether she’d personally support the addition of a substantive right. “A substantive right can do a number of good things but it can only move decision-making on public and financial issues to the courts from the government,” she says.

“I can assure you that I often disagree with what the government is doing [and] I can also assure you that I’ve often disagreed with what the courts have done on environmental issues. To use a very general overgeneralization, judges generally didn’t like science in high school and generally didn’t work with it during their careers . . . and they don’t have a support structure of people with knowledge in economics, environment issues, and so on. Not all decisions are best made in the courts.”

Although she’s not against the idea, she says it’s not obvious to her that a substantive right is a good move.

Besides her work as a lawyer, Saxe is president of WindShare, an organization that describes itself on its web site as “an innovative, for-profit wind power co-operative.” Her support for wind turbines rubs some activists the wrong way. A web site called Ontario Wind Resistance claims Saxe “loves turbines and trashes anyone who dares to object to them on her blog” and raises questions about whether she’ll be “an unbiased commissioner.”

Saxe says she has a lifelong commitment to renewable energy but she notes that questions around whether to build individual wind projects or where to locate them wouldn’t be up to her to decide once she takes office.

“Those decisions are all made in the first instance by the Ministry of the Environment and in the second instance by the Environmental Review Tribunal and the courts,” she says.

Members of the public can bring a request for reviews of projects, says Saxe, but her office doesn’t decide on them. If a particular wind turbine project is breaching its approval and a member of the public brings a complaint, her office will make sure the ministry receives it and track when and how it responds to it, she adds.

“We don’t have a gatekeeper function. We don’t say, ‘Oh, we don’t like this complaint, so we’re not forwarding it.’”

On occasion, the office will criticize government’s handling of reviews or complaints and will sometimes take a position on issues of public importance. It’s quite likely some of those complaints would be against clients Saxe has represented in the past. But she says she foresees no problems around conflicts.

“I have worked for a large part of the Ontario economy at one time or another,” says Saxe.

“I’ve worked for a lot of people on many issues. That’s what gives me the expertise to do the job. I have duties of confidentiality to the clients. To the extent that I have confidential information, that stays confidential. I don’t expect that to have any impact on my job. As I tried to indicate, I’m not the ministry, nor am I the tribunal.”

Saxe has in the past spoken out in favour of the polluter-pay principle in cases of environmental contamination. Ontario currently has a policy that she says is forcing innocent people to pay for cleanups, something she calls “bad public policy” that she’d like to see change.

The mandates of her office, which include the environment, climate change, and energy, are very broad. Saxe admits she’ll have to prioritize but she’s reluctant to say which issues are at the top of her agenda. “It seems to me that I have a flashlight, a can opener, and a megaphone and what we’re working on right now is what are the most important things we can do with those tools,” she says.

Saxe’s law practice will move to Siskinds LLP while she serves as environmental commissioner.

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