Canada: Ontario Resurrects Proposed Great Lakes Protection Act As Part Of Larger Great Lakes Strategy

On February 25, 2013, Ontario's Minister of the Environment, Jim Bradley, re-introduced the Great Lakes Protection Act, the government's first major step in implementing its Great Lakes Strategy released in December 2012. Given the central role that the Great Lakes play in the lives of the majority of Ontarians, it is expected that the Great Lakes Strategy and proposed Act will play a significant role in the province's regulatory framework.

Background: Ontario's Great Lakes Strategy (December 2012)

Amidst growing concerns about the effects of population growth, new chemicals of concern, invasive species, climate change, and other new challenges facing Ontario's critically-important Great Lakes, the Government of Ontario began pursuing a "Great Lakes Strategy" in 2009 with the release of a discussion paper entitled "Healthy Lakes, Strong Ontario." In June 2012, Ontario issued a draft version of the Great Lakes Strategy and engaged scientific experts and community stakeholders – including First Nations and Métis communities – in a series of public consultations. This process culminated in the Ontario Great Lakes Strategy report (the GLS Report), released in December 2012.

In addition to Lakes Superior, Huron, Erie and Ontario, and their connecting rivers, the GLS Report identifies Lake Simcoe, the St. Lawrence River and the Ottawa River as water bodies of interest.  The primary objective articulated by the GLS Report is to ensure that the Great Lakes remain "drinkable, swimmable and fishable."  To accomplish this objective, the GLS Report identifies six goals, each having specific and explicit performance measures:

Additionally, the GLS Report provides "guiding principles" that underlie Great Lakes protection efforts. These principles are: the Ecosystem Approach (recognizing the interdependence of land, air, water, and living organisms, and the intrinsic value of the Great Lakes); the Precautionary Approach (caution will be exercised even in the face of scientific uncertainty); Accountability; Adaptive Management (continuous and frequent policy reassessment); Collaboration and Engagement; and the Recognition of First Nations and Métis Communities.

The GLS Report makes a strong economic argument in favour of Great Lakes protection. The GLS Report states that the Great Lakes fishing industry contributed about $234 million to Ontario's economy in 2011, over 95% of agricultural land is in Great Lakes watersheds, and Great Lakes waters help generate 80% of the province's electricity (through hydro-electricity generation and the provision of cooling water for power plants). The GLS report also cites a 2010 economic study that found that investments in initiatives aimed at preventing high levels of nutrients and invasive species from entering the lakes and protecting coastal waters yielded significant economic returns.

Proposed Great Lakes Protection Act

The proposed Great Lakes Protection Act (GLPA) was first introduced by the Ontario Government on June 6, 2012.  The GLPA was carried at first reading, but died on the order paper when the Legislature was prorogued on October 15, 2012. The GLPA was re-introduced on February 25, 2013.

Key highlights of the proposed GLPA include:

• Establishing the Great Lakes Guardians' Council, comprised of other Ministers whose portfolios touch upon the Great Lakes, municipal representatives, First Nations and Métis representatives, and representatives from the scientific community. The Council's mandate is to provide a forum to identify action priorities, funding measures, and information sharing;
• Requiring the Minister of the Environment to maintain the GLS and review it every six years;
• Empowering the Minister of the Environment to direct public bodies, including municipalities, local boards, conservation authorities, and government ministries, to establish qualitative or quantitative "targets" and to develop proposals for geographically-focused initiatives (GFIs);
• Establishing a mandatory consultation procedure for proposals for GFIs;
• Requiring decisions made under the Planning Act or the Condominium Act, 1998 to conform with "designated policies" established in a GFI, which would prevail in the face of a conflict;
• Prohibiting municipalities and municipal planning authorities from starting public works or other undertakings, or passing by-laws that conflict with a designated policy set out in a GFI; and,
• Creating the authority to issue regulations regulating or prohibiting activities that may adversely affect the Great Lakes.

Discussion

The speedy re-introduction of the GLPA may suggest that the Ontario Government, under newly chosen Premier Wynne, is assigning some priority to the Great Lakes Strategy.

The proposed GLPA confers broad discretionary power upon the Minister of the Environment to develop GFIs. Although what may constitute a GFI is not entirely clear, Ontario businesses, developers, municipalities, and even homeowners should not be surprised to encounter new, region-specific restrictions and obligations enacted under the GLPA if it is passed. This is particularly true given that decisions under the Planning Act and the Condominium Act, 1998, will have to conform with policies established in GFIs.

Jurisdictional limitations aside, far too little time is spent in the GLS and GLPA on cross-border issues with individual American states that also border the Great Lakes. Without greater and more concerted cross-border efforts, initiatives developed under the GLS and GLPA may not be effective.

As it stands, the GLPA has only been introduced in the Legislature and has received its first reading. Whether it is enacted into law remains to be seen.

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