Environmental Bill of Rights should incorporate right to healthy environment: Law Commission report

Report also noted the lack of Indigenous consultation in legislation’s development

Environmental Bill of Rights should incorporate right to healthy environment: Law Commission report
Nye Thomas

A new Law Commission of Ontario (LCO) report on environmental law calls on the Ontario government to cement a right to a healthy environment into its Environmental Bill of Rights.

The LCO released “A New Environmental Bill of Rights for Ontario: Final Report” on Monday. According to the report, “major law reforms” are necessary for the Environmental Bill of Rights (EBR) to ensure environmental accountability in Ontario. The LCO made 50 recommendations for EBR amendments and other policy changes.

A right to a healthy environment is “emerging as an international legal standard for how to judge actions of governments when they're making an environmentally significant decision,” says Nye Thomas, LCO executive director. The right would create substantive and procedural protections that apply to governmental decision-making, he says.

“This accountability mechanism ensures that there be better environmental outcomes, stronger environmental laws and policies, and more public participation in environmental decision making.”

In addition to establishing a right to a healthy environment, the LCO recommends that the provincial government give Ontarians the right to launch environmental protection actions in court.

The LCO also made several recommendations for the improvement of public participation in environmental decision-making. These include improving the Statements of Environmental Values, strengthening the Commissioner of the Environment’s role, improving access to environmental information, and enhancing data collection and transparency.

The NDP government of Premier Bob Rae passed the EBR in 1993. The legislation established a new legal framework for environmental decision-making in Ontario. The LCO said its project examined how the EBR is currently functioning; the potentially necessary updates that would better reflect current environmental priorities, concerns, and “accountability strategies;” and how amendments could “improve its procedures and clarify its application.”

The LCO undertook a two-year research and consultation process looking at Canadian and international environmental accountability issues.

The LCO’s recommendation that the province establishes a right to a healthy environment reflects the current EBR and environmental legal practice around the world, said the report.

The report also highlighted the absence of Indigenous influence in the EBR. The LCO said there was a lack of Indigenous representation in the task force that developed the legislation and noted that the EBR did not identify Indigenous issues as a factor for consideration in environmental accountability, nor did it recognize the need to engage with Ontario’s Indigenous communities.

The report said that Ontario enacted the EBR before crucial developments in the relationship between the Crown and Indigenous peoples, including the Truth and Reconciliation Commission and the federal government’s enactment of the United Nations Declaration on the Rights of Indigenous Peoples Act.

“We're saying that in order to appreciate and understand Indigenous environmental accountability issues appropriately, we need to have a separate, dedicated project, working with Indigenous organizations, working with Indigenous communities, to get their views on what reforms, if any, might be appropriate,” says Thomas.

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