Canada: Ontario Proposing Environmental Assessment Changes

On April 25, the Ministry of the Environment, Conversation and Parks published a Discussion Paper that presents its vision of an improved environmental assessment process. Modernizing the Environmental Assessment Act, first introduced in 1975, would seek to: ensure better alignment between the level of assessment and the level of environmental risk associated with a project, eliminate duplication of approval processes, increase efficiencies in the environmental assessment (EA) process to shorten the timelines, and go digital by allowing online submissions.¹

In Ontario, EAs are required for almost all public sector projects with an existing streamlined or class EA for various types of projects such as municipal infrastructure projects.  Meanwhile, some private sector projects in Ontario do not have to undergo such assessment unless they are scheduled by regulation or have other requirements under other legislation. Thus, the government suggests that low-risk projects should be able to move forward more efficiently while private higher-risk projects should have an appropriate requirement to complete an assessment. The government is considering a project list approach to identify which projects should undergo an environmental assessment based on type, size and location.²

Secondly, duplication with other legislation and processes should be eliminated. The Canada-Ontario Agreement on Environmental Assessment Cooperation (2004) provides a harmonization process between the federal and provincial government to eliminate duplication in the environmental assessment area.  While the federal government proposes to replace the Canadian Environmental Assessment Act, 2012 with the Impact Assessment Act (Bill C-69), the Ontario government believes Bill C-69 is in fact a more costly and time consuming environmental assessment process. Ontario wants a one-project-one-review approach for federal and provincial environmental assessment processes to avoid duplication.³ It is not known what changes to the harmonization agreement would be proposed.

Furthermore, the current system for environmental assessment process can be complicated and time consuming because it requires applicants to not only take into account municipal policies and by-laws but also the mandates of other provincial and federal agencies.

There may also be additional more-detailed studies that are required to obtain subsequent approvals and permits post-completion of the environmental assessment process. As a result, the revised one-window approach⁴ is proposed to achieve greater coordination and balance the need to ensure environmental protection with the need for timely completion of projects. Specifically, the new framework would enable applicants to initiate permit and approval applications during the environmental assessment period and allow similar work completed in one process to be used for another process. 

Going digital is another way to modernize the current environmental assessment process. Ontario is the only province that does not accommodate electronic submissions for environmental assessment documents. The lack of centralized digital location for applicants and the ministry has caused much frustration amongst interested persons and applicants. 

An electronic registry similar to that which exists at the federal level where interested parties can submit and the ministry can review documents would potentially increase transparency and access to environmental assessment information, allow data sharing for the consultation and review process, and potentially increase overall efficiency. Some ideas for this area include creating a new e-registry catering to the needs of the environmental assessment program, phasing out the paper-based process and allowing for electronic submissions. Going digital may further help facilitate greater public participation in the decision-making and consultation process.⁵ However, there is a concern that digital submissions may be challenging for some stakeholders to access.

Conclusion

The government's proposed modernized plan contains a number of elements that will make the current provincial EA process more efficient. However, until the government provides a list of projects that it intends to capture under its proposed "higher risk" category the impact will be unknown. The comment period regarding the proposed changes closes on May 25, 2019.  No proposed legislative language has been released thus far.

The author wishes to thank articling student Coco Chen for her help in preparing this legal update.